Executive immunity: A comparative perspective

On July 1, 2024, in Trump v. United States, the United States Supreme Court resolved the issue: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

An act of a US president may be official or unofficial.

For unofficial acts, there is no immunity.

Official acts are of two kinds: 1.) acts within the core and exclusive constitutional and statutory authority, and 2.) acts within the outer perimeter of official responsibility. For the former, there is absolute immunity from criminal prosecution. For the latter, there is presumptive immunity — meaning, that the president is immune from prosecution “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

There is no specific constitutional text supporting presidential immunity or a “presidential immunity clause.” Nonetheless, jurisprudence recognizes presidential immunity for at least three reasons:

1. A specific textual basis is not a prerequisite to recognition.

2. The doctrine of separation of powers and the vesting of executive power solely in the president mandates “certain presidential privileges and immunities.”

3. Presidential immunity is necessary for a “vigorous and energetic” executive, to safeguard its independence and effective functioning, and to enable it to carry out constitutional duties without undue caution.

Trump dealt only with criminal liability. As to civil liability, the June 1982 case Nixon v. Fitzgerald recognized that a former president “is entitled to absolute immunity from open damages liability predicated on his official acts.” For acts within the “outer perimeter” of his official responsibility, there is absolute presidential immunity from civil liability to allow the president to take the “bold and unhesitating action” required of an independent executive.

On March 2, 2001, in Estrada v. Desierto, the Philippine Supreme Court, resolved: “Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity.” In this same ruling, the Court using the “totality test,” held that petitioner, Joseph E. Estrada, resigned as president on Jan. 20, 2001.

In the Philippines, the “principle of nonliability” first emerged as case law in Forbes v. Chuoco Tiaco in 1910. The Court ruled that “governors-general, like the judges of the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties.” But governors-general may still be held liable even for official acts “when he acts in a case so plainly outside of his power and authority that he cannot be said to have exercised discretion in determining whether or not he had the right to act.” He is “not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, he acts, not as Governor-General but as a private individual, and as such must answer for the consequences of his act.”

The 1935 constitution and the 1973 constitution framed by the 1971 Constitutional Convention did not contain any provision on executive immunity. In 1981, the 1973 constitution was amended to include Article VII, Section 17, which states: “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.” Ferdinand E. Marcos was then the president.

The 1987 constitution did not reenact the immunity provision of the 1973 constitution, amended in 1981. On Oct. 24, 1986, the Supreme Court in Re: Saturnino V. Bermudez, ruled that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.” This rule is reiterated in two recent rulings: De Lima v. Duterte (Oct. 15, 2019) and Nepomuceno v. Duterte (May 11, 2021).

In Estrada, the Court held that immunity does not extend beyond a president’s tenure: “We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. 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.” Citing the 1967 US case Wallace v. Board of Education: “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.” It added, moreover, that important provisions in the 1987 constitution “will be devalued if we sustain petitioner’s claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency.”

In both Trump and Estrada, petitioners were ex-presidents claiming post-tenure immunity for acts done during their incumbency. In the former, the US Supreme Court granted the petition. In the latter, The Supreme Court of the Philippines denied it. Following Estrada, the president is immune from suit during their incumbency but not beyond. By contrast, Trump made presidential immunity in the US today not unlike the immunity provision in the 1973 Philippine constitution, amended in 1981, when Marcos Sr. was president.

Millard O. Lim is a lecturer at the Political Science department of Ateneo de Manila University.