VICE-PRESIDENTIAL IMMUNITY

By Judge Marlo Campanilla

Note: The discussion is made to benefit those who will take the bar examination. Please refrain from
making a political statement as a reaction to this writing. The opinion is subject to a future decision of
the Supreme Court.
Under Article 14 of the Civil Code, penal laws shall be obligatory upon all who live or sojourn in the
Philippine territory. This is the generality principle. Hence, a person regardless of his citizenship, religion,
political position or any other status can be criminally prosecuted and convicted as long as he is living or
sojourning in the territory of the Philippines.
Under the US Constitution, American citizen has the right to bear firearms. Even though an American
citizen is in possession of US license to carry firearm, he can be prosecuted for illegal possession of loose
firearm if a failed to obtain permit from PNP to carry it. RA No. 105911 on loose firearm is obligatory to
him regardless of his foreign characteristic. (People v. Galacgac, C.A., 54 O.G. 1027) The American
constitutional provision on firearm is not operative in the Philippines.
However, penal laws shall not be obligatory upon a person, who enjoys criminal immunity from suit. In
October 21, 2015, a Chinese diplomat and her husband killed two Chinese diplomats in Cebu. The
Philippines authorities did not prosecute the killers for murders because of diplomatic immunity
protected by the Vienna Convention on Diplomatic Relations. The case was referred to China. They will
be prosecuted under Chinese Law.
Under the Section 7, Article VII of the 1973 Constitution, the President shall be immune from suit during
his tenure. However, there is no provision on presidential immunity under the 1987 Constitution. But
despite the present Constitution has not adopted the rule on presidential immunity under the Marcos
Constitution, case law or jurisprudence recognizes this immunity. Because of this immunity, penal laws
are not obligatory to the President.
The President of the Philippines is entitled to immunity from suit subject to the following conditions: (1)
the immunity has been asserted; (2) during the period of his incumbency and tenure; and (3) the act
constituting the crime is committed in the performance of his duties. Presidential immunity will assure
the exercise of presidential duties and functions free from any hindrance or distraction, considering that
the Chief Executive is a job that demands undivided attention. (Estrada v. Desierto, G.R. Nos. 146710-15,
March 2, 2001)
In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the
President from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President's
immunity from suits for money damages arising out of their official acts is inapplicable to unofficial
conduct. Thus, non-function related crimes such as rape, robbery, and kidnapping are not covered by
the immunity.
During the period of his incumbency and tenure, President Aquino cannot be charged with reckless
imprudence resulting in multiple homicides in connection with the Mamasapano incident where 44 SAF
members were killed because of his presidential immunity. His decisions concerning the handling of the
police operation leading to the tragic event are official acts. However, after the tenure of the President,
he can be criminally charged since the presidential immunity is not anymore invocable. But, in Nacino v.
Office of the Ombudsman, G.R. Nos. 234789-91, October 16, 2019, the Supreme Court found no
probable cause to charge President Aquino for reckless imprudence resulting in multiple homicides in
connection with the Mamasapano incident. It was held that Aquino participated in the planning of Oplan
Exodus to arrest Marwan and Usman by approving the suggested alternative date of execution and
ordering the increase in the number of troops and coordination with the AFP. However, these acts
barely qualify Aquino as an active player in the entire scheme of the operations, more so point to any
criminal negligence on his part.
Is the principle on presidential immunity applicable to the vice-president? It is submitted that a Vice
President is not immune from criminal prosecution. The job of the Vice President, unlike the head of the
executive department, does not demand undivided attention. Hence, the circumstance, on which the
presidential immunity is based, is not obtaining if the position is vice-presidential.
Pacifico Agabin, former dean of the University of the Philippines College of Law and an expert on the
Constitution, earlier told us that the vice president is not immune from suit. The Constitution does not
guarantee the vice president’s immunity, he said: “It’s only the President who is immune [from suit] and
that is based on tradition, because he is busy handling affairs of the state. But that cannot be said for the
vice president.” Fr Joaquin Bernas SJ, one of the framers of the 1987 Constitution, also categorically said
that Binay is not covered by executive immunity. “No, the vice president is not immune…The
Constitution doesn’t say he is immune”. (See: Rappler article entitled Vice-president does not enjoy
immunity published on June 5, 2015)
Some experts are saying that criminally prosecuting a vice-president will violate Section 2 of Article XI of
the Constitution, which mandates that the Vice President may be removed from office only through an
impeachment proceeding. It is submitted however that there is no constitutional violation since in case
of conviction, he can function as Vice President while serving sentence in prison. However, accessory
penalty of disqualification, which involved removal from office, is not implementable since the
enforcement thereof will offend the impeachment provision.