G.R. No. 227635, October 15, 2019

EN BANC [ G.R. No. 227635, October 15, 2019 ] LEILA M. DE LIMA, PETITIONER, VS. PRESIDENT RODRIGO R. DUTERTE, RESPONDENT. RESOLUTION. BERSAMIN, C.J.:
By petition for the issuance of a writ of habeas data petitioner Senator Leila M. de Lima (Sen. De Lima) seeks to enjoin respondent Rodrigo Roa Duterte, the incumbent Chief Executive of the Philippines, from committing acts allegedly violative of her right to life, liberty and security.

At the core of the controversy is the inquiry on the application, scope and extent of the principle of presidential immunity from suit. The question concerns the immunity of the President from suit while he remains in office.

Yet, prior to the consideration and resolution of the controversy, a preliminary matter of substance must be considered and resolved. May the petition prosper because the incumbent President of the Philippines has been named herein as the sole respondent?

Antecedents

On May 9, 2016, Davao City Mayor Rodrigo Roa Duterte was elected as the 16th President of the Philippines. A key agenda of the Duterte Administration was the relentless national crackdown on illegal drugs. This prompted several human rights advocates to heavily criticize the strategies and devices forthwith adopted by law enforcement agencies in pursuing the crackdown. Among the vocal critics of the crackdown was Sen. De Lima.

On August 2, 2016, Sen. de Lima delivered a privilege speech on the floor of the Senate calling a stop to the alleged extrajudicial killings committed in the course of the crackdown, and urging her colleagues in the Senate to conduct investigations of the alleged victims.[1]

In response, President Duterte issued a number of public statements against Sen. De Lima, including denunciations of her corruption and immorality. The statements prompted her to initiate this petition for the issuance of a writ of habeas data against President Duterte.

In her petition, Sen. De Lima adverted to several public statements that allegedly threatened her right to life, liberty and security, namely:
  1. The August 11, 2016 public statement of President Duterte threatening to destroy Sen. De Lima. The statement reads: "I know I'm the favorite whipping boy of the NGOs and the human rights stalwarts. But I have a special ano kaya no. She is a government official. One day soon I will – bitiwan ko yan in public and I will have to destroy her in public."[2] Incidentally, in the same event, President Duterte insinuated that with the help of another country, he was keeping surveillance of her. "Akala nila na hindi rin ako nakikinig sa kanila. So while all the time they were also listening to what I've done, I've also been busy, and with the help of another country, listening to them;"[3]

  2. The statement uttered in a briefing at the NAIA Terminal 3, Pasay City in August 17, 2016 wherein President Duterte named Sen. De Lima as the government official he referred to earlier and at the same time accused her of living an immoral life by having a romantic affair with her driver, a married man, and of being involved in illegal drugs. "There's one crusading lady, whose even herself led a very immoral life, taking his (sic) driver as her lover... Paramour niya ang driver nya naging hooked rin sa drugs because of the close association. You know, when you are an immoral, dirty woman, the driver was married. So you live with the driver, its concubinage."[4]

  3. The statements that described her as an immoral woman;[5] that publicized her intimate and personal life,[6] starting from her new boyfriend to her sexual escapades;[7] that told of her being involved in illegal drugs as well as in activities that included her construction of a house for her driver/lover with financing from drug-money;[8] and

  4. The statements that threatened her ("De Lima, you are finished")[9] and demeaned her womanhood and humanity.[10] "If I were De Lima, ladies and gentlemen, I'll hang myself. Your life has been, hindi lang life, the innermost of your core as a female is being serialized everyday. Dapat kang mag-resign. You resign.[11] and "De Lima better hang yourself ... Hindi ka na nahiya sa sarili mo. Any other woman would have slashed her throat. You? Baka akala mo artista ka. Mga artistang x-rated paglabas sa, pagkatapos ng shooting, nakangiti ...".[12]
Sen. De Lima traces this personal presidential animosity towards her to the time when she first encountered President Duterte while he was still the City Mayor of Davao and she the Chairperson of the Commission on Human Rights investigating the existence of the so-called "Davao Death Squad".[13]

Sen. De Lima concludes that taking all the public statements of the President into consideration the issuance of the writ of habeas data is warranted because there was a violation of her rights to privacy, life, liberty, and security, and there is a continuous threat to violate her said rights in view of President Duterte's declaration that he had been "listening to them, with the help of another country."[14]

Also, the petition argues that President Duterte is not entitled to immunity from suit, especially from the petition for the issuance of the writ of habeas data because his actions and statements were unlawful or made outside of his official conduct; that based on the pronouncements in Rodriguez v. Macapagal-Arroyo[15] and Clinton v. Jones,[16] the immunity of the President from suit covers only the official acts of the Chief Executive; that his statements constituted violations of various laws, particularly Republic Act No. 6713,[17] and Republic Act No. 9710,[18] and, as such, were not to be considered the official acts of the President worthy of protection by presidential immunity from suit; and that because the habeas data proceeding does not involve the determination of civil or criminal liability, his acts and statements should not be considered as warranting the protective shield of presidential immunity from suit.

Sen. De Lima seeks the following reliefs:

WHEREFORE, the petitioner respectfully prays the Honorable Court that judgment be rendered:

[1] Granting a Writ of Habeas Data –

  1. Enjoining respondent and any of his representatives, agents, assigns, officers, or employees from collecting information about petitioner's private life outside the realm of legitimate public concern;

  2. Disclosing to the petitioner the name of the foreign country who, according to respondent, "helped him" listen in on petitioner, the manner and means by which he listened in on petitioner, and the sources of his information or where the data about petitioner's private life and alleged private affairs came from;

  3. Ordering the deletion, destruction or rectification of such data or information; and

  4. Enjoining the respondent from making public statements that (i) malign her as a woman and degrade her dignity as a human being; (ii) sexually discriminate against her; (iii) describe or publicize her alleged sexual conduct; (iv) constitute psychological violence against her; and (v) otherwise violate her rights or are contrary to law, good morals, good customs, public policy, and/or public interest; and

[2] Conceding unto petitioner such further and other reliefs this Honorable Court may deem just and equitable in the premises.[19]
An important constitutional hurdle must first be surmounted before the Court considers taking full cognizance of the petition for the issuance of a writ of habeas data. Is the President entitled to immunity from suit warranting the immediate dismissal of the petition considering that he is the sole respondent in this action?

In the resolution promulgated on November 8, 2016, the Court has directed Sen. De Lima and the Office of the Solicitor General (OSG) to present their respective sides on the issue of whether or not President Duterte is immune from this particular suit.[20]

In compliance, Sen. De Lima insists in her memorandum that the President is not immune from this particular suit because his actions and statements were clearly made outside of his office as Chief Executive as to constitute unofficial conduct not covered by presidential immunity; that to consider and determine the issue of whether or not the President is immune from suit is premature considering that President Duterte has yet to invoke the same in his verified return; that until and unless President Duterte invokes the immunity himself, the issue may not even be considered; that the immunity of the President does not automatically attach every time he is sued; that in the United States of America (USA), proper balancing of interest – on the one hand, the private interest to be served, and, on the other, the danger of intrusion unto the authority and function of the Executive Branch – must first be made; that allowing the petition will not violate the principle of separation of powers; that on the basis of the pronouncement in Clinton, the doctrine of separation of powers does not require the courts to stay all private actions against the President until he leaves office; that the reason behind the immunity is not present in this case; that suing the President herein will not degrade the office of the President nor cause harassment or distraction; and that she is an aggrieved party by virtue of the President's actions, and thus deserves a judicial remedy.

On its part, the OSG seeks the immediate dismissal of the suit. It submits that the immunity of the sitting President is absolute, and it extends to all suits including petitions for the writ of amparo and writ of habeas data; that despite the non-inclusion of presidential immunity in Section 17, Article VII of the 1973 Constitution from the 1987 Constitution, the framers intended such immunity to attach to the incumbent President; that the present suit is the distraction that the immunity seeks to prevent because it will surely distract the President from discharging his duties as the Chief Executive; that based on the ruling in David v. Macapagal-Arroyo,[21] the President is immune from any civil or criminal case during his tenure and the only way to make him accountable to the people is through impeachment; that such absolute immunity established by jurisprudence is based on public policy considerations, and Sen. De Lima has not provided compelling reasons to warrant the reversal or modification of the doctrine; and that, accordingly, the doctrine of stare decisis must be respected.

The OSG argues that even assuming that the immunity only covers official acts of the President, the statements made were still covered because they were made pursuant to the exercise of his power to faithfully execute the laws under Section 17, Article VII of the Constitution; that the President's statements revolved around the involvement of Sen. De Lima in the illegal drugs trade; that any mention of her relationship with Ronnie Dayan was incidental because their romantic relationship was intertwined with the relationship as principal and accomplice in her involvement in the illegal drugs trade; that the statements of the President were made while the House of Representatives was conducting an investigation regarding the illegal drug trade in the National Penitentiary wherein Sen. De Lima was implicated; and that the petition should be dismissed because it was erroneously filed with this Court following Section 3 of the Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC) due to the petition not involving public data files of government offices.

On November 29, 2016,[22] the Court required Sen. De Lima and the OSG to traverse each other's submissions in their respective memoranda.

In her compliance, Sen. De Lima points out that the doctrine of presidential immunity from suit is not absolute, but entertains exceptions; that under Clinton, the immunity only covers the official acts of the President;· that the judicial pronouncements on the absoluteness of the doctrine were doubtful because the only rulings cited in support of absoluteness (Forbes v. Chuoco Tiaco[23] and Nixon v. Fitzgerald[24]), being issued prior to the promulgation of the 1987 Constitution, were inconclusive as to whether or not the immunity of the incumbent President was absolute.

Sen. De Lima downplays the effects of the petition, and states that her suit will not distract President Duterte from the discharge of his duties as the Chief Executive considering that he has the OSG to handle the suit in his behalf; that the statements in question were not made in the performance of his duties, but were personal attacks rooted in their past encounters as the Chairperson of the Commission on Human Rights and as Mayor of the City of Davao; and that her immediate resort to the Court was proper because the President has been collecting data on her, and the data thus collected are being stored in his office.

The OSG counters that the doctrine of presidential immunity absolutely applied; that Sen. De Lima improperly invokes the jurisprudence of the USA to support her stance despite such jurisprudence being non­binding in this jurisdiction; and that although Estrada v. Desierto[25] cited Clinton and Fitzgerald, the Court did so only for the limited purpose of determining the suability of the non-sitting President, which was the issue presented and considered in Estrada, not the suability of the incumbent President as presented herein.

According to the OSG, the Court has been clear in Lozada v. Macapagal Arroyo[26] about the immunity automatically attaching to the office, and about not needing the Presiclent to invoke the immunity in order to enjoy the same. The OSG assures that any suit, including this one, necessarily distracts the President from discharging his duties considering that he is the sole embodiment of the Executive Branch, unlike the Judiciary and the Congress that are either collegial bodies or comprised by several individuals.

Anent the need for proper balancing before the immunity attaches, the OSG posits that national interest – the fight against illegal drugs – prevails over the supposed incessant intrusions on the rights of Sen. De Lima; that the statements of the President were made in furtherance of his constitutional duty to faithfully execute the laws; and that the Court must respect established precedents to the effect that absolute immunity pertains to the Chief Executive if no compelling arguments are submitted to the contrary

Issue

May the incumbent Chief Executive be haled to court even for the limited purpose under the Rules on the Writ of Habeas Data?

Sen. De Lima reiterates, citing Clinton, that the President's immunity from suit should not shield him from being haled to court because his statements and actions, being clearly unofficial acts, are outside the ambit of the immunity. In tum, the OSG counters, also citing Clinton as well as Fitzgerald, that the immunity must be extended to the President.

Ruling of the Court

The petition must be dismissed even without the President invoking the privilege of immunity from suit.

A careful study of the development of the doctrine of Presidential immunity from suit shows that the presidential immunity from suit as recognized and applied in the USA differs from the doctrine recognized in this jurisdiction.

I
Origins and Development of
Presidential Immunity from suit

The concept of executive immunity from suit for the Chief Executive can be traced as far back as the days of Imperial Rome. Justinian I noted in his Corpus Juris Civilis that Roman law recognized two principles connected with the development of what we now know as executive immunity from suits – princeps legibus solutus est (the emperor is not bound by statute); and quad principii placuit legis habet (what pleases the prince is law). These two principles remained dormant until their revival in feudal Europe, particularly in England.[27]

In The Origins of Accountability: Everything I know about Sovereigns' Immunity, I learned from King Henry III,[28] Professor Guy Seidman observes that the concepts under Roman Law, Church law, traditional-customary-tribal laws, and laws of the feudal system fused together to form the principle that has been traditionally recognized[29] as the origin of the present day's concept on executive immunity from suit – the principle that is expressed in the maxim "the king can do no wrong. " He explains the development of the maxim "the king can do no wrong" in England in this manner:
The maxim has actually stood for four different propositions at various points in English legal history. The first is that the King is literally above the law and cannot do wrong by definition; this understanding of the maxim reached its zenith in the 7th century under the banner of the "divine right of Kings". A second meaning is that even if the King's actions are not lawful by definition, there is no remedy for royal wrong doing through ordinary legal channels; one might term this a "procedural" or "remedial" understanding of the maxim. A third meaning, which actually represents the true historical origin of the maxim, is that the King has no power or capacity to do wrong; this was literally the case with Henry III, who assumed the Kingship while in his minority. A fourth meaning is precisely the opposite of the first: it means that the King is eminently capable of doing wrong but cannot do so lawfully. One can meaningfully combine this understanding with the second "procedural', understanding to yield a legal regime in which royal acts can meaningfully be described as unlawful but are not subject to remedies by the ordinary law courts. In such a scheme, however, subordinates who follow the King's orders may act at their peril.[30]
Although the maxim clothed the King with immunity, equitable remedies remained available,[31] such as the development of the doctrine of ministerial accountability[32] and impeachment. Due to increasing demands for the accountability of government officials and to the eventual removal of the King's participation from political and state affairs, the immunity once enjoyed by the monarchs started to wane.
II
American Development of the
Concept of Presidential Immunity

The American Founding Fathers were well aware of the doctrine of "the king can do no wrong." Citing Blackstone's Commentaries on the Laws of England (Blackstone's Commentaries), Prof. Seidman has summarized the pre-American Revolution understanding of the maxim, and points to how Blackstone's Commentaries influenced American legal thought, thus:
All of this background information was available to the Founding Fathers. Blackstone's Commentaries summarized and explained the legal doctrines concerning government accountability. The Commentaries make several substantive references to the doctrine 'that the king can do no wrong'. Blackstone begins his comprehensive discussion of the King's Prerogative explaining that 'one of the principal bulwarks of civil liberty' was the limitation of the king's prerogative.

What is an English subject to do "in case the crown should invade their rights, either by private injuries or public oppressions?" The English common law, suggests Blackstone, provides remedies in both cases. As for private injuries his answer is double: first, there [sic] is a remedy is the petition of right, and while it is only as 'a matter of grace' that the king provides the compensation requested, he is mostly to permit this charity; second, Blackstone cites Locke to the effect that the King is unlikely to inflict much damage personally, and immunizing him is a fair price to pay for the benefits of the regime.

As for 'public oppression': in most cases the answer is clear – "a king cannot misuse his power, without advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished." Such persons could be indicted or impeached by Parliament 'that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong' because simply stated, there is no redress against the king. The results are less clear in the most severe cases 'as tend to dissolve the constitution, and subvert the fundamentals of government,' where the branches of government are in clear dispute.

Speaking specifically of the king[']s political capacity Blackstone famously stated that the law ascribes to the king 'absolute perfection' –
The king can do no wrong. Which ancient and fundamental maxim is not to be understood, as if everything transacted by the government was of course just and lawful, but means only two things.

First, that whatever is exceptionable in the conduct of public affairs is not be imputed to the king, nor is her answerable for it personally to his people: for this doctrine would totally destroy the constitutional independence of the crown which is necessary for the balance of power ... in our compounded constitution. And secondly, it means that the prerogative of the crown extends not to do any injury it is created for the benefit of the people, and therefore cannot be exerted to their prejudice.

The king, moreover, is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness." [Citations Omitted]
The language may seem archaic, the terms technical, and the fictions it described mystical. Yet the Commentaries represented the better part of the Founding Generations' legal education and they were quite fluent in Blackstonian.[33]
Thus, American law followed this concept of 'the king can do no wrong' as well as other common law doctrines of England until the former began to develop independently after the revolution of 1776.[34] Common law concepts, including the principle that 'the king can do no wrong,' carved out a legal path and conception different from their English roots considering that the USA had an elected President instead of a hereditary King to control the reigns of governmental power. As such, the immunity given – be it to the President or to the lowest government official – rested no longer on established English political theory based on the Common Law but rather on public policy considerations.[35] Some of the public policy considerations in upholding official immunity of public officials are: (a) the absolute immunity of judges being necessary to ensure judicial independence (Bradley v. Fisher);[36] and (b) policy considerations enunciated in Bradley for judges being equally applicable to executive officials because the civil liability would cripple the proper administration of public affairs (Spalding v. Vilas).[37]

The interesting and yet sporadic concern is how to hale the President of the USA to court either as a witness or as a party litigant; or, is it even possible at all to hale him to court? In either instance, American jurisprudence has provided answers based on established policy considerations.

Insofar as the susceptibility of the American President to be served with judicial processes is concerned, American jurisprudence has been clear that the President can be served with processes. As early as 1807, in United States v. Burr,[38] the US Supreme Court, through Chief Justice John Marshall, issued a subpoena duces tecum against then President Thomas Jefferson in order to obtain documents and letters necessary for the treason trial of respondent Aaron Burr. In issuing the subpoena, the US Supreme Court acknowledged that:
[i]f upon any principle, the president could be construed to stand exempt from the general provisions of the constitution, it would be because his duties as chief magistrate demand whole time for national objects. But it is apparent that this demand is not unremitting; and if it should exist at the time when his attendance on a court is required, it would be shown on the return of the subpoena, and would rather constitute a reason for not obeying the process of the court than a reason against its being issued ... It cannot be denied that to issue a subpoena: to a person filling the exalted position of the chief magistrate is a duty which would be dispensed with more cheerfully than it would be performed; but a duty, the court can have no choice in the case ... The guard furnished to this high officer, to protect him from being harassed by vexatious and unnecessary subpoena, is to be looked for in the conduct of a court after those subpoenas have issued; not in any circumstance which is to precede their being issued.[39]
Aside from President Jefferson, other Presidents (President James Monroe, President Gerald Ford and President Ronald Reagan) were at the receiving end of judicial process. Of particular significance is United States v. Nixon[40] wherein the U.S. Supreme Court ordered President Richard Nixon to surrender certain recordings of White House conversations relevant to the criminal prosecution in relation to what is now known as the Watergate Scandal. The U.S. Supreme Court ruled that the President's general interest in confidentiality could not defeat the request for the subpoena.

While sufficient judicial precedents as regards Presidential susceptibility to receive judicial processes existed, there is a dearth of jurisprudential precedents on the possibility of suing the incumbent U.S. President.

Relevant to this discussion are the different types of immunity granted to officials like the President. Immunity can be classified either by (a) extent, i.e., absolute or qualified; or (b) duration, i.e., permanent or temporary.

Absolute immunity is granted to a government official who has proven that his actions fell within the scope of his duties, and that his actions are discretionary rather than ministerial, that is to say, that the conduct or the action performed must not involve insignificant or routinely office work but rather the challenged action must involve personal judgment.[41] Further, in Butz v. Economou,[42] the US Supreme Court held that absolute immunity can only be invoked if it is demonstrated that absolute immunity is essential for the conduct of the public business. In other words, absolute immunity attaches to the function instead of the office.

Qualified immunity was initially given to a government official who was able to prove that at the time of the commission of the act complained of, he possessed a good faith belief that his actions were lawful. This was known to be the subjective element.[43] The US Supreme Court enhanced the criteria on when to invoke qualified immunity. In Wood v. Strickland,[44] the US Supreme Court ruled that aside from the aforementioned subjective test, it is also important to show if the public official should have known that his act constituted a violation of the rights of the claimant. If the government official should have known that his acts violated the claimant's rights, then immunity is not granted to the government official; otherwise, the government official is entitled to qualified immunity.[45] This is referred to as the objective test. This two-tiered test to determine the need to grant qualified immunity was modified in Harlow v. Fitzgerald,[46] where the US Supreme Court removed the subjective test reasoning that inquiring into the subjective motivation of government officials would be "disruptive of effective government." Harlow now requires a two-step analysis in the determination of whether or not a government official is entitled to qualified immunity; first, as a threshold matter, the court must determine if the statutory or constitutional right asserted by the plaintiff was clear at the time of the alleged wrongful action; and, second, the court must determine whether the official should reasonably have known the action was contrary to law.[47]

The second classification of immunity is based on duration, which may be permanent or temporary. This classification was brought about by footnote 31 in Nixon v. Fitzgerald,[48] where the U.S. Supreme Court recognized that executive immunity could be derived from Article 1, Section 6 of the US Constitution.[49] Temporary immunity or congressional immunity from arrest provides temporary immunity to legislators from litigating even private suits while "at Session" of Congress as public officers, while permanent immunity or the immunity for speech or debate provides immunity from liability in law suits that arise out of the performance of public duties of democratic deliberation.[50]

Under these concepts, the U.S. Supreme Court has ruled on two cases wherein presidential immunity was invoked as a defense to defeat a claim. In Nixon v. Fitzgerald, supra, the respondent filed a complaint for damages against former President Nixon due to the fact that he had been removed from office by the President as a retaliation for giving damning testimony in Congress. Nixon invoked presidential immunity, but his invocation was ignored by the District Court and the Court of Appeals which held that Nixon was not entitled to absolute immunity. The US Supreme Court ruled, however, that Nixon was entitled to absolute immunity from liability for damages predicated on his official acts. Justifying its ruling, the US Supreme Court ruled that the determination of the immunity of particular officials was guided by the Constitution, federal statutes, history and public policy; and that the absolute immunity of the President was a "functionally mandated incident of his unique office, rooted in constitutional tradition of separation of powers and supported by the National's history;" it extended the scope of the President's immunity to the "outer perimeter" of his duties of office. Lastly, it noted that there were sufficient safeguards to ensure that misconduct would be checked, and the President remained accountable to the people through impeachment, Congressional oversight and the Press.

While Nixon provided absolute immunity to the President, the US Supreme Court, in Clinton v. Jones, supra, ruled that presidential immunity only covered official acts of the President. In Clinton, the respondent filed a complaint for damages against the incumbent President based on the sexual advances committed prior to his becoming President and while he was the governor of Arkansas. The President moved to dismiss the case on the basis of presidential immunity. The District Court denied the motion to dismiss but deferred the trial of the case until after the President's term. The Eighth Circuit Court affirmed the denial of the dismissal but modified the District Court's ruling to temporarily bar trial until the end of the President's term. The US Supreme Court sustained the lower courts and allowed the suit to proceed noting that the concept of presidential immunity covered only official acts, not unofficial conduct.
III
Philippine Concept of Presidential Immunity

The concept of executive immunity was first tackled in 1910 by the Philippine Supreme Court in Forbes v. Chuoco Tiaco.[51] The country was then still under American occupation. Chuoco Tiaco was a Chinese national deported from the Philippines in 1909 on orders of then Governor-General W. Cameron Forbes. In 1910, he returned to the Philippines and filed a suit in the Court of First Instance of Manila against Governor-General Forbes and other government agents, seeking thereby a preliminary injunction to prevent them from deporting him again, and demanding damages. Among the issues resolved was the question of whether or not the trial court could assume jurisdiction of cases relating to the exercise of powers by the Chief Executive of the land.

Posing the question as whether or not the courts would ever intervene or assume jurisdiction in any case brought against the Chief Executive as the head of government, the Court observed that although the subject had often been discussed before courts of other jurisdictions and by various commentators, there had been no consensus reached thereon. It considered to be settled that the courts would not interfere where the Chief Executive exercised inherent, political, or discretionary duties, such as the power to deport or expel undesirable aliens; and declared that the courts would not intervene for the purpose of controlling such power, nor for the purpose of inquiring whether or not the Chief Executive was liable for damages in the exercise thereof.

But while the case law cited in Forbes depended on principles of executive immunity prevailing in foreign jurisdictions, the Philippine concept of presidential immunity diverged in 1981, and the variation became concrete through the 1973 Constitution, under whose Article VII the following provision was written, viz.:
Section 15. The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure.
In 1986, during the interval between the 1973 Constitution and the 1987 Constitution, the Court maintained the concept of presidential immunity. In In Re: Saturnino V. Bermudez,[52] an original action for declaratory relief, the Court was asked to interpret the 1986 Draft Constitution. The petition therein claimed that it was unclear if the transitory provisions on the terms of the incumbent President and Vice­-President referred to the tandem of Corazon C. Aquino and Salvador Laurel, or to Ferdinand E. Marcos and Arturo Tolentino. The Court reaffirmed the legitimacy of the government of President Aquino, and ruled that the petition amounted to a suit brought against her. In a sweeping but nonetheless unequivocal manner, the Court declared that "incumbent presidents are immune from suit or from being brought to court during the period of their incumbency and tenure."[53]

The period of 2000-2001 was tumultuous for the Office of the President. Public disapproval of President Joseph Estrada reached fever pitch, leading to his forced departure from the Presidency. Following his departure, he faced multiple criminal complaints before the Office of the Ombudsman, including charges of bribery, graft and corruption, and plunder. The former President filed a petition for prohibition with the Court (Estrada v. Desierto[54]) seeking to enjoin the Ombudsman from proceeding with the criminal complaints against him. Among the former President's defenses against the multiple cases was his claim of presidential immunity from criminal prosecution. The Court came to the conclusion that President Estrada had resigned from his post as the Chief Executive. The narrow issue coming before the Court related to the scope of immunity that he could claim as a non-sitting President, the Court concluded that President Estrada, being already a former President, no longer enjoyed immunity from suit.

In 2006, President Macapagal-Arroyo issued Presidential Proclamation No. 1017 and General Order No. 5 declaring a state of national emergency, and called out the Armed Forces of the Philippines in her capacity as Commander-in-Chief to maintain law and order throughout the country and to suppress acts of lawless violence, insurrection or rebellion. Several petitions were filed, and were consolidated (David v. Macapagal­-Arroyo[55]disputing the factual bases for the orders, and challenging their constitutionality. Three of the petitions impleaded President Arroyo herself as a respondent.

In threshing out the procedural issues, the Court ruled on the legal standing of the petitioners in each case, and later on pronounced that it was not proper to implead the President as a respondent, to wit:
x x x Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment.[56]
In Rubrico v. Macapagal-Arroyo,[57] petitioner Lourdes Rubrico alleged that she had been abducted, detained, and interrogated by armed men belonging to the Armed Forces of the Philippines. Even after her release, Lourdes and her family continued to be harassed and threatened. She brought a petition for the issuance of the writ of amparo seeking to proceed against named military and police personnel and the Office of the Ombudsman. The petition impleaded President Gloria Macapagal-Arroyo as respondent.

In the proceedings before the Court of Appeals (CA), to which the hearing was meanwhile assigned, the CA dropped President Arroyo as a respondent. Among the issues later elevated to this Court was the propriety of dropping the President as a party respondent. The petitioners specifically claimed that the immunity enjoyed by the Chief Executive under the 1935 Constitution and 1973 Constitution had been removed by its non-inclusion the 1987 Constitution.

The Court upheld the exclusion of President Arroyo as a respondent, maintaining that presidential immunity from suit remained under our system of government, despite not being expressly reserved in the 1987 Constitution, and declared that the President could not be sued during her tenure. In addition, the decision pointed out that the petition did not allege specific presidential acts or omissions that had violated or threatened to violate petitioners' protected rights.

Presidential immunity in amparo proceedings was again taken up in Balao v. Macapagal-Arroyo.[58] James Balao had been allegedly taken by unidentified armed men, believed to be members of the military. The petitioners filed a petition for the issuance of the writ of amparo in the Regional Trial Court (RTC) in Benguet. The respondents argued in the RTC for the dropping of President Arroyo from the case on the basis of her presidential immunity. The RTC rejected the arguments explaining that presidential immunity was not applicable in amparo proceedings which were not nagging, vexing or annoying to the respondent. In fact, the petition would aid the President in discharging her constitutional duty to make sure that the laws on human rights were being observed.

Although the pleadings did not tackle the issue of presidential immunity, the Court ruled that the RTC had erred in holding that such immunity could not be invoked in amparo proceedings. It pointed out that President Arroyo, as the Chief Executive, was enjoying immunity from suit when the petition for a writ of amparo was filed; that the petition was bereft of any allegation of specific acts or omissions that had violated or threatened to violate protected rights; and that President Arroyo should be dropped as a party-respondent from the petition for writ of amparo.

IV
Current State of the Concept of Presidential Immunity

The concept of presidential immunity is not explicitly spelled out in the 1987 Constitution. However, the Court has affirmed that there is no need to expressly provide for it either in the Constitution or in law.[59] Furthermore, the reason for the omission from the actual text of the 1987 Constitution has been clarified by this exchange on the floor of the 1986 Constitutional Commission:

MR. SUAREZ: Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity suit provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of immunity he might be spending all of his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

FR. BERNAS: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit.

MR. SUAREZ: So, there is no need to express it here.

FR. BERNAS: There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and do add other things.

MR. SUAREZ: On that understanding, I will not press for any more query, Madam President.[60]
The existence of the immunity under the 1987 Constitution was directly challenged in Rubrico v. Macapagal-Arroyo,[61] but the Court steadfastly held that Presidential immunity from suit remained preserved in our current system.

While the concept of immunity from suit originated elsewhere, the ratification of the 1981 constitutional amendments and the 1987 Constitution made our version of presidential immunity unique. Section 15, Article VII of the 1973 Constitution, as amended, provided for immunity at two distinct points in time: the first sentence of the provision related to immunity during the tenure of the President, and the second provided for immunity thereafter. At this juncture, we need only concern ourselves with immunity during the President's tenure, as this case involves the incumbent President. As the framers of our Constitution understood it, which view has been upheld by relevant jurisprudence, the President is immune from suit during his tenure.

Unlike its American counterpart, the concept of presidential immunity under our governmental and constitutional system does not distinguish whether or not the suit pertains to an official act of the President. Neither does immunity hinge on the nature of the suit. The lack of distinctions prevents us from making any distinctions. We should still be guided by our precedents.

Accordingly, the concept is clear and allows no qualifications or restrictions that the President cannot be sued while holding such office.

V
Applicability of Presidential Immunity to a
Proceeding for the issuance of the Writ of Habeas Data

Sen. De Lima maintains that presidential immunity does not lie because President Duterte's attacks against her are not part of his official duties and functions; that before presidential immunity applies, there must first be a balancing of interest; and that the balancing favors her because her right to be protected from harassment far outweighs the dangers of intrusion on the Office of Chief Executive.

Sen. De Lima wants us to apply principles established by the US Supreme Court in the celebrated cases of Nixon and Clinton, supra. Such decisions, though persuasive, are not binding as case law for us. As earlier asserted, the Philippine concept of Presidential immunity from suit diverged from its foreign roots, from the time of the amendment of the 1973 Constitution. Presidential immunity in this jurisdiction attaches during the entire tenure of the President. The immunity makes no distinction with regard to the subject matter of the suit; it applies whether or not the acts subject matter of the suit are part of his duties and functions as President. Furthermore, no balancing of interest has ever been applied to Presidential immunity under our jurisprudence. We are not prepared or willing to recognize such a test without constitutional, statutory, or jurisprudential basis.

Both Sen. De Lima and the OSG disagree on whether or not the statements of the President regarding her have been part of the discharge of the President's official duties, but our declaration herein that immunity applies regardless of the personal or official nature of the acts complained of have rendered their disagreement moot and academic.

Sen. De Lima argues that the rationale for Presidential immunity does not apply in her case because the proceedings for the writ of habeas data do not involve the determination of administrative, civil, or criminal liabilities. Again, we remind that immunity does not hinge on the nature of the suit. In short, presidential immunity is not intended to immunize the President from liability or accountability.

The rationale for the grant of immunity is stated in Soliven v. Makasiar,[62] thus:
The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance of distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demands undivided attention.[63]
The rationale has been expanded in David v. Macapagal-Arroyo:
x x x It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment.[64]

With regard to the submission that the President must first invoke the privilege of immunity before the same may be applied by the courts, Sen. De Lima quotes from Soliven where the Court said that "this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf."[65] But that passage in Soliven was made only to point out that it was the President who had gone to court as the complainant, and the Court still stressed that the accused therein could not raise the presidential privilege as a defense against the President's complaint. At any rate, if this Court were to first require the President to respond to each and every complaint brought against him, and then to avail himself of presidential immunity on a case to case basis, then the rationale for the privilege – protecting the President from harassment, hindrance or distraction in the discharge of his duties – would very well be defeated. It takes little imagination to foresee the possibility of the President being deluged with lawsuits, baseless or otherwise, should the President still need to invoke his immunity personally before a court may dismiss the case against him.

Sen. De Lima posits that her petition for habeas data will not distract the President inasmuch as the case can be handled by the OSG. But this is inconsistent with her argument that the attacks of the President are purely personal. It is further relevant to remind that the OSG is mandated to appear as counsel for the Government as well as its various agencies and instrumentalities whenever the services of a lawyer is necessary; thus, a public official may be represented by the OSG when the proceedings arise from acts done in his or her official capacity.[66] The OSG is not allowed to serve as the personal counsel for government officials. If Sen. De Lima's position that the acts complained of are not related to the official functions of the President, then it also necessarily follows that the OSG can no longer continue to represent him.

Besides, any litigation, whether big or small, naturally serves as a distraction to a party-litigant. Even while represented by counsel, a litigant is still responsible for certain facets of the case, like presenting evidence and disputing claims, and cannot simply leave the course and conduct of the proceedings entirely to the discretion of his or her chosen counsel.

Sen. De Lima hinges her allegations of violations of her rights on the Magna Carta of Women, as well as on Republic Act No. 6713. Although she claims that her present recourse does not seek to hold the President administratively, civilly, or criminally liable, it will be impossible for the Court to enable her cause of action to be established without first determining whether or not said laws, which carry penal sanctions, had been violated. Any ruling on her petition will necessarily entail a judgment on whether or not the President violated said laws.

Finally, Sen. De Lima asserts that for every right violated, there must be a remedy. No one can dispute the validity of her assertion. We agree with her, but at the same time we must remind her that this ruling will not deny her any available remedy. Indeed, the Constitution provides remedies for violations committed by the Chief Executive except an ordinary suit before the courts. The Chief Executive must first be allowed to end his tenure (not his term) either through resignation or removal by impeachment. Being a Member of Congress, the petitioner is well aware of this, and she cannot sincerely claim that she is bereft of any remedy.

WHEREFORE, the Court DISMISSES the petition for the writ of habeas data on the ground that respondent Rodrigo Roa Duterte as the incumbent President of the Philippines is immune from suit during his incumbency.

SO ORDERED.

Carpio, Peralta, Perlas-Bernabe, Gesmundo, Hernando, Carandang, Lazaro-Javier, Inting, and Zalameda, JJ., concur.
Leonen, J., see separate opinion.
Caguioa, J., joins the opinion of J. Leonen.
A. Reyes, Jr., J., please see separate and concurring opinion.
J. Reyes, Jr., J., on leave.


[1] Rollo, pp. 6; 47-49.

[2] Id. at 6.

[3] Id.

[4] Id. at 7, Media Briefing at the Ninoy Aquino International Airport (NAIA) Terminal 3 in Pasay City last August 17, 2016.

[5] Id. at 7-10

[6] Id. at 6-7.

[7] Id. at 11. In his September 22, 2016 speech, President Duterte was quoted to have said: "Ngayon hanggang ngayon kita mo. De Lima, she was seven years chairman of the Human Rights. Binibira niya aka, hindi pina-file ang kaso. As Secretary of Justice, she was building a name at my expense para ma-popular. So what now? Tignan mo, she was not only screwing her driver, she was screwing the nation... Yan yung pinaka sinasabi ko kay De Lima "you better hang yourself" kasi nandito nasa mga kamay ko yung – sinabit na nila, tiningnan ko na. So all the while, because of her propensity for sex – ayon... Ngayon lang aka nakakita ng babae na lumabas sa buong social media nakangiti parang huang. ... kung nanay ko 'yan barilin ko.

[8] Id. at 8.

[9] Id. at 9.

[10] Id. at 11-12.

[11] Id. at 10.

[12] Id. at 11-12.

[13] Id. at 8.

[14] Id. at. 6.

[15] G.R. No. 191805, November 15, 2011, 660 SCRA 84.

[16] 520 U.S. 681 (1997).

[17] Code of Conduct and Ethical Standards for Public Officials and Employees.

[18] Magna Carta of Women.

[19] Id. at 21.

[20] Id. at 105.

[21] G.R. No. 171396, May 3, 2006, 489 SCRA 160.

[22] Rollo, p. 178.

[23] 16 Phil. 534 (1910).

[24] 457 U.S. 731 (1982).

[25] G.R. Nos. 146710-15, March 2, 2001, 353 SCRA 452.

[26] G.R. Nos. 184379-80, April 24, 2012, 670 SCRA 545.

[27] Seidman, Guy I., The Origins of Accountability: Everything I Know about the Sovereigns' Immunity, I Learned from King Henry III Saint Louis University Law Journal, Vol. 49, No. 2, Winter 2004/2005.

[28] Id.

[29] See also Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001 353 SCRA 452; and Agabin, P., Presidential Immunity And All The Kings Men: The Law Of Privilege As A Defense To Actions For Damages, 62 Phil. L.J. 113 (1987).

[30] Seidman, op. cit., supra note 27, at 5.

[31] Id. at at 44; 54.

[32] Id. at 54. As Seidman puts it. "if the King is in error, the guilt lies only with the Minister who ought to have enlightened him, and this minister even if approved by the King, deserves the impeachment formerly reserved for traitors."

[33] Id. at 96-98..

[34] Biegon, B. Presidential Immunity in Civil Actions: An Analysis Based upon Text, History and Blackstone's Commentaries. Virginia Law Review, Vol. 82, No. 4 (May 1996), p. 679.

[35] Stein, T. Nixon v. Fitzgerald: Presidential Immunity as a Constitutional Imperative. Catholic University of Law Review, Vol. 32, Issue 3, Spring 1983. 32 Cath U.L. Rev. 759 (1983).

[36] 80 U.S. (13 Wall.) 335 (1871).

[37] 161 U.S. 483 (1896).

[38] 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692d) cited in Biegon, B. Presidential Immunity in Civil Actions: An Analysis Based upon Text, History and Blackstone's Commentaries. Virginia Law Review, Vol. 82, No. 4 (May 1996).

[39] Biegon, B. supra note 34, at 708-709.

[40] 418 U.S. 683 (1974).

[41] Orenstein, A., Presidential Immunity from Civil Liability, Nixon v. Fitzgerald. Cornell Law Review, Vol. 68, Issue 2, Article 7, January 1983 68 Cornell L. Rev. 236 (1983), pp. 23-238; citing Spalding v. Vilas, 161 U.S. 483 (1896) and Barr v. Matteo, 360 U.S. 564 (1959).
[42] 438 U.S. 478 (1978).

[43] Orenstein, supra at 240.

[44] 420 U.S. 308. (1975).

[45] Orenstein, supra at 241.

[46] 102 S. Ct. 2727 (1982).

[47] Stein, supra at 766.

[48] 457 U.S. 731, 750 (1982).

[49] "The Senators and Representatives... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

[50] Amar, A. R., & Katyal, N.K., Executive Privileges and Immunities: The Nixon and Clinton Cases. Harvard Law Review, Vol. 108, No. 3 (January 1995, p. 708.

[51] 16 Phil. 534 (1910).

[52] G.R. No.L-76180, October 24, 1986, 145 SCRA 160.

[53] Id. at 162.

[54] G.R. No. 146710-15, March 2, 2001, 353 SCRA 452.

[55] G.R. No. 171396, May 3, 2006, 489 SCRA 160.

[56] Id. at 224-225.

[57] G.R. No. 183871, February 18, 2010, 613 SCRA 233.

[58] G.R. No. 186050, December 13, 2011, 662 SCRA 312.

[59] David v. Macapagal-Arroyo, supra, at 224.

[60] Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986 (R.C.C. No. 42).

[61] Supra note 57.

[62] Soliven v. Makasiar, G.R. No. 82585, 82827, 83979, November 14, 1988, 167 SCRA 393.

[63] Id. at 399.

[64] David v. Macapagal-Arroyo, supra note 59, at 224-225.

[65] Soliven v. Makasiar, supra note 62, at 399.

[66] Pascual v. Beltran, G.R. No. 129318, October 27, 2006, 505 SCRA 545, 558-559.

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