‘It’s up to courts to decide if case vs Binay will prosper’

WHETHER the case against the Vice President will prosper is up to the courts including the Supreme Court, Justice Secretary Leila de Lima said.

“The courts, especially the Supreme Court can categorically decide on whether or not the filing of a criminal charge amounts to a violation of impeachability,” she said in a text message to reporters.

While the Constitution is silent on the issue of immunity of impeachable officials, “conventional wisdom” in law practice, criminal cases against them do not prosper in court until after they are impeached or have served their term in office.

“The Constitution states that impeachable officials shall not be removed from office except by impeachment. It does not say categorically to what extent they may be subject to prosecutorial action without their impeachability being affected. Theoretically, they can be subject to criminal proceedings so long as they are not removed from office, such as what the Supreme Court has done with Commissioners of the Comelec in several cases when it cited said Commissioners in criminal contempt,” de Lima said.

“However, the conventional wisdom among lawyers is that any criminal action against an impeachable official can only go so far as filing an information,” she added.

Binay has been accused of amassing illegally acquired wealth. He already has two plunder cases pending before the Office of the Ombudsman in connection with the New Makati City Parking Building and the Makati Science High School Building.

De Lima’s statement is a slight turnaround from her statement last October where she said that only the President enjoys immunity.

“The principle of immunity from suit applies only to two entities, the State and the President. Among government officials, only the President is immune from suit. On the other hand, impeachability refers only to the mode of removal, not to immunity. Impeachability does not mean immunity. Thus, among the impeachable officials, only the President is immune from suit,” she had explained last year.

But her recent statement agrees with that of veteran poll lawyer Romulo Macalintal who said that aside from the President, the Vice President, justices of the Supreme Court, the Ombudsman and other constitutional officials are impeachable officials – and therefore cannot be subject of trial in court without first having him impeached from office.

Earlier, Macalintal rebutted the opinion of Senate President Franklin Drilon that Vice President Binay is not immune from suits.

“If the President is immune from suit, then all constitutional officials, like the Vice-President, Supreme Court Justices, Members of Constitutional Commissions, and the Ombudsman who could only be removed by impeachment, are likewise immune from suit,” he said.

Macalintal believes that such position being pushed by Drilon and administration allies “smacks of unjust or invidious discrimination, thus, violative of the equal protection clause of the Constitution.”

The poll law expert cited the 2001 SC ruling in the case of former President Joseph Estrada vs. Ombudsman Desierto where then Chief Justice Reynato Puno wrote of “a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.”

Macalintal said the high court, in its 2010 ruling voiding President Aquino’s first executive order creating the truth commission against former President and now Pampanga Rep. Gloria Macapagal-Arroyo, held that any ruling saying that the President is immune from suit while the others, like the Vice-President is not, “partakes of an unwarranted partiality or prejudice, where the sharper weapon to cut it down is the equal protection clause” of the Constitution.

He further cited a third case, Central Bank Employees Association vs Bangko Sentral ng Pilipinas, where the SC ruled in 2004 that any disparity in treatment of persons belonging to the same class would “definitely bear the unmistakable badge of invidious discrimination. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous.”

Macalintal explained that immunity is actually a “tradition” that applies to actual cases filed in courts against these officials.

“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,” he added.