OSG seeks dismissal of Leila petition vs Duterte Featured

OSG seeks dismissal of Leila petition vs Duterte

By Edu Punay (The Philippine Star) | Updated December 27, 2016 - 12:00am
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The Office of the Solicitor General (OSG) has pushed for the dismissal of the petition filed by Sen. Leila de Lima in the Supreme Court (SC) last month challenging the immunity from suit of President Duterte. PPD | AP, file
MANILA, Philippines - The Office of the Solicitor General (OSG) has pushed for the dismissal of the petition filed by Sen. Leila de Lima in the Supreme Court (SC) last month challenging the immunity from suit of President Duterte.

In a reply-memorandum filed last week, Solicitor General Jose Calida reiterated government’s plea for the outright dismissal of the petition for writ of habeas data against Duterte.

Calida, who filed the pleading as required by the high court and not as a counsel for the President, invoked the absolute immunity from suit enjoyed by the incumbent president during his tenure in office.

The OSG argued that presidential immunity is a “well-entrenched doctrine” and that Duterte cannot be held accountable during his six-year term for the charges alleged by De Lima.

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Calida rebutted the argument of De Lima in her motion for clarification that the issue on immunity touches on the merits of the case and that resolving it would be premature.

The senator earlier questioned why the SC decided not to require Duterte to comment on her petition and instead opted to settle first the issue on applicability of the President’s immunity from suit on the case.

She argued that the President should be required to answer her petition.

But the OSG agreed with the high court’s action and stressed that there is no need to require the President to even comment on the petition because his immunity from suits is automatic.

“Presidential immunity automatically attaches to the President by virtue of his office and there is no need to invoke it for its existence,” it stressed.

Citing previous cases, the OSG pointed out that the SC has automatically dropped the sitting president from the list of respondents in cases where he or she had been impleaded – as a matter of doctrine and practice.

Calida cited for instance a petition last May challenging the last appointments made by then outgoing president Benigno Aquino III in the judiciary where the SC dropped him as respondent but kept then executive secretary Paquito Ochoa as respondent for the Office of the President.

Calida also rebutted the argument of petitioner that the President’s personal attacks against her were beyond his official functions and therefore should not be covered by immunity.

“The rationale for presidential immunity is that the President must be free from any hindrance or distraction in the exercise of his duties and functions,” the top government counsel explained.

Lastly, the OSG invoked the doctrine of separation of powers of the executive and judiciary as co-equal branches of government and insisted that the doctrine of separation of powers precludes the SC from proceeding with De Lima’s petition.

“This honorable court is bound by judicial precedents in applying the well-established doctrine of absolute immunity from suit by the President,” it concluded.

The OSG filed its memorandum last month seeking dismissal of De Lima’s petition.

It argued that while the 1987 Constitution is silent on presidential immunity, the memo was based on the first sentence of Article VII, Section 17 of the 1973 Constitution, which granted absolute immunity to the president and “did not distinguish between official and unofficial acts.”

Calida also argued that the acts and statements of Duterte questioned by De Lima in her petition were made “for a lawful purpose” and “in the performance of his official duties as president.”

“It is clear that the President’s purpose in making certain statements against petitioner was in the performance of his constitutional duty to make sure that the laws are faithfully executed. The statements by the President during media interviews were made to apprise the public of petitioner’s supposed involvement in the illegal drug trade during her term as Department of Justice secretary and her adulterous relationship with her driver, who is also suspected to be involved in the drug trade,” read the memorandum.

“Petitioner, as an incumbent senator, is undoubtedly a public figure. Due to the fact that she is a public officer, there is a legitimate public interest in her life and activities. Being a public figure, petitioner’s private life is consequently open to public scrutiny and opinion,” it stressed. 

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