B. Privileges, inhibitions, and disqualifications

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

Frequency: ★★★★★ | Probability: ★★★★☆

1. Privileges

a. Presidential immunity

Concurrent with incumbency. The presidential immunity from suit exists only in concurrence with the president’s incumbency. (Saez v. Arroyo, En Banc, G.R. No. 183533, 25 September 2012)

Same; While in office; Cannot be invoked by non-sitting president. The President enjoys immunity from suit during his or her tenure of office or actual incumbency. Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure. (Lozada, Jr. v. Arroyo, En Banc, G.R. Nos. 184379-80, 24 April 2012)

Lozada v. Arroyo (2012)
since her tenure of office has already ended, former President Arroyo can no longer invoke the privilege of presidential immunity as a defense to evade judicial determination of her responsibility or accountability for the alleged violation or threatened violation of the right to life, liberty and security of Lozada. (Ibid.)
Estrada v. Desierto (2001)
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.

Impeachment – Not a pre-requisite for accountability. When impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him. (Estrada v. Desierto, En Banc, G.R. No. 146710-15, 02 March 2001)

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BAR EXAM QUESTION

(Question II, Political Law, 2018 Bar Exam)

Agnes was allegedly picked up by a group of military men headed by Gen. Altamirano, and was brought to several military camps where she was interrogated, beaten, mauled, tortured, and threatened with death if she would not confess her membership in the New People’s Army (NPA) and point to the location of NPA camps. She suffered for several days until she was released after she signed a document saying that she was a surenderee, and was not abducted or harmed by the military. After she was released, and alleging that her rights to life, liberty and security had been violated and continued to be threatened by violation of such rights, she filed with the Supreme Court (the Court) a Petition for the Writs of Amparo and Habeas Data with prayers for Temporary Protection Orders, Inspection of Place, and Production of Documents and Personal Properties. The case was filed against President Amoyo (who was the President of the Philippines when the abduction, beating, mauling and life threats were committed), General Altamirano, and several military men whom Agnes was able to recognize during her ordeal. The Court, after finding the petition to be in order, issued the writ of amparo and the writ of habeas data and directed the respondents to file a verified return on the writs, and directed the Court of Appeals (CA) to hear the petition. The respondents duly filed their return on the writs and produced the documents in their possession. After hearing, the CA ruled that there was no more need to issue the temporary protection orders since the writ of amparo had already been issued, and dismissed the petition against President Amoyo on the ground that he was immune from suit during his incumbency as President. Agnes appealed the CA ruling to the Court. The appeal was lodged after President Amoyo’s term had ended.

(a) Was the CA correct in saying that the writ of amparo rendered unnecessary the issuance of the temporary protection order? (2.5%)

(b) Will the President’s immunity from suit continue even after his term has ended, considering that the events covered by the Petition took place during his term? (2.5%)

Suggested Answer:

(a) Yes. Under the Rule on the Writ of Amparo and jurisprudence, the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus, once the privilege of the writ of amparo is granted, there is no need to issue a temporary protection order independently of the former. The order restricting respondents from going near petitioner is subsumed under the privilege of the writ.

(b) No. Under jurisprudence, the President enjoys immunity from suit during his or her tenure of office or actual incumbency. Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure.

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b. Executive (Presidential) privilege

Executive privilege. Executive privilege – means the power of the President to withhold certain types information from the courts, the Congress, and ultimately the public. Apart from diplomatic and military secrets and the identity of government informers, another type of information covered by executive privilege relates to information about internal deliberations comprising the process by which government decisions are reached or policies formulated. (Neri v. Senate Committee on Accountabilty of Public Officers and Investigations, En Banc, G.R. No. 180643, 25 March 2007)

Steps to follow in claiming executive privilege:
1) It must be clearly asserted and by the Government to which the privilege belongs;
2) there must be a formal claim of privilege, lodged by the head of the department having control over the matter; and
3) the statement of the claim must be specific and the claim must state the reasons for withholding the information. (Ibid.)

Reasons – cannot be compelled from the Executive. The Senate cannot require the executive to state the reasons for the claim with such particularity as to veritably compel disclosure of the information which the privilege is designed to protect in the first place. (Ibid.)

Confidential information. Executive privilege is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. (Senate v. Ermita, En Banc, G.R. Nos. 169777, 169569. 169660, etc., 20 April 2006)

Exclusive and limited to the President. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is “By order of the President,” which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. (Ibid.)

Same; Reasonable time to inform the President. It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. (Ibid.)

Adheres to the Office of the President. Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. (Neri v. Senate Committee on Accountabilty of Public Officers and Investigations, En Banc, G.R. No. 180643, 04 September 2008)

Same; Akin to confidentiality of judicial deliberations. The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers. (Ibid.)

Rooted on separation of powers. Executive privilege is rooted on the doctrine of separation of powers, a basic postulate that forbids one branch of government to exercise powers belonging to another co-equal branch; or for one branch to interfere with the other’s performance of its constitutionally-assigned functions. It is partly in recognition of the doctrine that “presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court… or executive sessions of either house of Congress… cannot be pried open by a co-equal branch of government.” (Neri v. Senate Committee on Accountabilty of Public Officers and Investigations, 2007 case, supra.)

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BAR EXAM QUESTION

(Question A.6, Political Law, 2019 Bar Exam)

A committee of the Senate invited Mr. X and Mr. Y, the Secretary of Foreign Affairs and Secretary of Energy, respectively, as resource speakers for an inquiry in aid legislation. Mr. X refused to attend, arguing that the Senate, not its committee, has the power to compel attendance. Meanwhile, Mr. Y attended the committee hearing but upon being asked about discussions made during a closed-door cabinet meeting, he refused to answer invoking executive privilege. The committee members insisted that Mr. Y answer the question pursuant to the right of Congress to information from the executive branch.

(b) Is Mr. Y’s refusal to answer based on executive privilege valid? Explain. (2.5%)

Suggested Answer:

No. Answer

Under jurisprudence, it is only the President who can invoke executive privilege. When an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. Rule

In the case at bar, there is no indication that Mr. Y consulted with the President and was thereafter directed to invoke executive privilege on behalf of the President. Apply

Thus, Mr. Y’s refusal to answer based on executive privilege was not valid. Conclusion

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2. Inhibitions

Avoid conflict of interest. The President and Vice-President shall strictly avoid conflict of interest in the conduct of their office. (Section 13, Article VII, Ibid.)

3. Disqualifications

Holding any other office or employment.

The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. (Ibid.)

Practicing any profession. They shall not, during said tenure, directly or indirectly, practice any other profession… (Ibid.)

Participating in any business. They shall not, during said tenure, directly or indirectly… participate in any business… (Ibid.)

Be financially interested in any Government transaction. They shall not, during said tenure, directly or indirectly… be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. (Ibid.)

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