‘Constitutional officials are immune from suit’

If the President is immune from suit, then all constitutional officials who can only be removed from office by impeachment, such as the Vice President, Supreme Court justices, members of constitutional commissions and the Ombudsman, are likewise immune from suit, an election lawyer said, citing the equal protection clause of the Constitution.

“To say that only the President is immune from suit smacks of unjust or invidious discrimination… is violative of the equal protection clause of the Constitution,” lawyer Romulo Macalintal said in a statement on Sunday.

“Since the President belongs to a similar class of impeachable officials under the Constitution, there is no rhyme or reason why the other constitutional officials cannot enjoy the same immunity privilege,” Macalintal added.

The issue of immunity was raised amid the ongoing Senate investigation of probable corruption involving Vice President Jejomar Binay, some members of his family, his aides and friends.

The Binay camp earlier claimed that the investigation would come to naught since the Vice President enjoys immunity from suit and cannot be charged in court. His allies also said that Binay’s immunity was violated by a Court of Appeals freeze order on his assets.

Macalintal said there was nothing in the Constitution or any existing law that says only the President is immune from suit.

The lawyer said the doctrine of immunity among impeachable officials started as a “mere tradition,” and that the Supreme Court could issue a ruling abandoning it if it was shown that it was being abused, like the condonation doctrine that reelected local officials sometimes cite to escape culpability from administrative offenses committed in their previous terms.

Macalintal said the immunity applied only when actual cases are filed against the covered officials in court.

“The President and all other constitutional officials can be investigated by the Ombudsman since its decision is merely to file or not to file a criminal case at the [antigraft court] Sandiganbayan. In other words, the case before the Ombudsman is not the ‘suit’ contemplated in the immunity issue, because the Ombudsman does not make a decision where the accused official (can) be removed from office; it can only issue a resolution recommending the filing of a criminal case against a public official before the Sandiganbayan,” he said.

“Once the case is filed with the court, that is where the privilege of immunity could be invoked since the official faces the danger of being removed from office by a judicial action and not by impeachment,” the lawyer added.