Friday, February 19, 2010

No one is above the law

Nothing is more mind-boggling than the rationale of outgoing Philippine president Gloria Macapagal-Arroyo in running for Congress to represent her district in Pampanga. Everyone should be thankful that she has listened to the wishes of her constituents. According to her, she filed her candidacy “in order to serve the hardworking people of my province.”

“I am not ready to step down completely from public service,” Arroyo said.

Take notice. If only all our politicians could just be like her, with her endless and untiring dedication to serve the country and her people (she’s the longest serving president of the Philippine Republic after Ferdinand Marcos), our country could never have been served well, or even better. We might as well reconstruct the Marcos bust on the highway going up to Baguio, which had been destroyed by the people’s uprising, and replace it with the ever-engaging Mrs. Arroyo, heroine of the Philippine Republic and loyal servant of her people.

We have a word in Pilipino that aptly describes Arroyo’s decision to run for office: “Walanghiya” (Shameless).

Arroyo will be the first Philippine president to run for a lower position after serving her term. She joins the company of two American presidents who ran for lower office after their terms were over. U.S. president John Quincy Adams served in Congress after his term. Andrew Johnson served in the Senate in 1875 after becoming president from 1865 t0 1869. The Johnson presidency, like Arroyo’s, was among the worst U.S. presidencies. Johnson was also the first U.S. president to be impeached.

Gloria Arroyo survived more than four attempts by Congress to impeach her from the presidency. It was only through impeachment that she could be removed, since the Philippine president still operates under the old and much-disparaged doctrine that “the king can do no wrong.” She was immune from criminal and civil suits while in office, unless of course, if removed by impeachment, whereby she would also lose her immunity.

Gloria Arroyo knows that once removed, she can now be sued.

Look at what happened to Joseph Estrada. Erap had argued that he was still the legitimate president, albeit on leave. He was not actually interested in regaining the powers and perks of the presidency, but Erap’s argument was a subtle ruse to avail himself of immunity from suits that presidents of the Philippines enjoy during their tenure. Well, the Supreme Court of the Philippines in the twin cases of Estrada v. Disierto and Estrada v. Arroyo disposed of Erap’s conundrum by ruling that the former president did not enjoy immunity from the suits. The high court said that unlawful acts of public officials are not acts of the State, and the officer who acts illegally stands on the same footing as any other trespasser. Of course, President Arroyo eventually pardoned Joseph Estrada, thus erasing whatever criminal or civil culpability he had while he was president.

There are two popular reasons why Arroyo is running for Congress, despite her personal and almost audacious declaration that she still wants to serve the public.

First, she gets legislative immunity. If she wins her congressional seat and becomes a member of the Philippine Congress, she will have the privilege from arrest while Congress is in session. Note, however, that this privilege only covers offences punishable by not more than six years. She will also have immunity for whatever statements or speeches she makes in Congress, whether libellous or defamatory, in any of its debates or in any congressional committee.

Any legislative immunity that Mrs. Arroyo derives from being a member of Congress will not be enough to fully protect her from being sued in a civil court or be charged with criminal offences arising from her actions during her term as president. Mrs. Arroyo and her team of brilliant legal advisers must know by now that the moment she steps down from the presidency, her immunity from being sued evaporates and her stature in Congress is insufficient to protect her. Unless she wants to be a fugitive from the law like incumbent Senator Panfilo Lacson who has been issued a warrant of arrest in connection with a murder case.

The second reason, which is the most likely argument why Mrs. Arroyo is running for office, is to carry on with her mantra of constitutional change. She still enjoys the support and loyalty of more than a majority of members of the House of Representatives. With all her powers and resources, she can still control her political party. Once elected, the lower house could elect her as Speaker of the House and from there she could initiate convening a constituent assembly with the task of amending the present Constitution and installing a new system of parliamentary government where she could eventually be elected as prime minister. This is what Mrs. Arroyo really wants, to stay in power beyond her presidency.

Despite the body of jurisprudence that supports the immunity of a sitting president from suits, it is a concept that is both self-defeating and perhaps, an anachronism in today’s politics. It is a judge-made law that the Americans imported to the Philippines and has become a part of the country’s jurisprudence. Under the rubric of the separation of powers between the main branches of government, the executive over time has become insulated from suits while in tenure. Thus, the idea that “the king can do no wrong,” certainly an archaic doctrine that belongs to the monarchy of yore, has been deeply rooted in our system of government.

Where is the rule of law when a sitting president can be above the law?

In Clinton v. Jones, the U.S. Supreme Court finally reinforced the basic constitutional principle that no American, not even an incumbent president, is beyond the law’s reach. Ms. Paula Jones, employee of then Arkansas governor Bill Clinton, filed a civil suit to recover $700,000 in damages from President Clinton, alleging he had made abhorrent sexual advances to her while in his employ in 1991. Clinton claimed presidential immunity from civil damages litigation but the U.S. Supreme Court in a unanimous decision rejected the president’s claim. The Court held that the claim of immunity for unofficial acts was without foundation in precedent or the doctrine of the separation of powers. Ultimately, the case was settled and the suit was withdrawn.

The U.S. high court also rejected the claim that exposure to lawsuits would place an unacceptable burden upon the ability of the president to perform his official duties. This is the most common argument raised in favour of presidential immunity, that the president will be swamped with suits right and left that could hamper the performance of his office. It also raises concerns for potential intrusions upon the autonomy of the executive branch if it is open to suits, especially when you have a very unpopular president or where the majority of Congress is in the opposition. Attempts to prosecute the president become cheap political stunts to destabilize the government.

Immunity from prosecution engenders a cowardly type of politics, which is lazy and not conducive to statesman-like government. It also encourages a politician to try to hang on to office when it might be better for him or her to leave in order to avoid prosecution. This is damaging to the democratic process as well as to the office of the president.

Worse, as it is highly predicted Mrs. Arroyo will do if elected member of Congress, the cover of immunity can lead to attempts to change the Constitution to allow further terms in office, or to rig elections, and harass and undermine political opponents. All these scenarios have already taken place during Mrs. Arroyo’s term. This kind of problem would not arise if there were no differences in the ability to be prosecuted whether a president was still in office or had already left.

It is about time to discard or circumscribe this archaic doctrine of absolute immunity of the President from suit.

Politicians are not above the law. In a democracy, no one is above the law. Immunity gives this impression that politicians belong to a higher order and can do no wrong, in short, gives them absolute power at the expense of good governance, even if it is only for their term in office.

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