MANILA, Philippines – The role of the Vice President vis-à-vis public accountability will most likely be placed under a magnifying glass if and when plunder charges will be filed against Jejomar “Jojo” Binay. The Vice President is expected to go to the Supreme Court where he will raise immunity from legal suits as his pivotal defense. 

Should this happen, Binay will make history as the first vice president to be charged in court. “There are no legal precedents in the Philippines to go by,” said Vicente Mendoza, former Supreme Court justice. “We are writing on a clean slate.”

A plunder case against Binay is pending with the Ombudsman for allegedly overpricing a Makati parking building contract by more than a billion pesos. Should this prosper, the Ombudsman will file charges against Binay with the Sandiganbayan, a setback to his campaign for the presidency.

But it looks like the Vice President’s claim for immunity will face tough legal obstacles.

Mendoza, a foremost authority on the Constitution, said that Binay does not enjoy immunity, unlike the President, because of two reasons:

• Binay allegedly committed corrupt acts when he was mayor of Makati, his previous position, and not when he was vice president. Neither is he being prosecuted for acts as chair of the Housing and Urban Development Coordinating Council, his cabinet post.
• The vice president does not have “multifarious duties and powers” like the president who is commander-in-chief, who controls the executive department, administers foreign policy, issues executive orders, among others.

“The overriding principle [in not clothing the vice president with immunity] is the rule of law, ” Mendoza said. “The vice president is just like any cabinet secretary…No man is above the rule of law.”

Similarly, Pacifico Agabin, former dean of the University of the Philippines College of Law and an expert on the Constitution, earlier told us that the vice president is not immune from suit. The Constitution does not guarantee the vice president’s immunity, he said: “It’s only the President who is immune [from suit] and that is based on tradition, because he is busy handling affairs of the state. But that cannot be said for the vice president.” 

We requested to interview him for this story but he begged off, saying that Vice President Binay has already engaged him.

Fr Joaquin Bernas SJ, one of the framers of the 1987 Constitution, also categorically said that Binay is not covered by executive immunity. “No, the vice president is not immune…The Constitution doesn’t say he is immune,” he told us in a telephone interview.

(When pressed to discuss the issue further, Bernas declined, saying he was busy. We gathered from those who are in touch with him that he no longer grants media interviews.)

President’s immunity settled

The 1987 Constitution is not explicit on executive immunity unlike the 1973 Constitution which contains a specific provision guaranteeing the president’s immunity, Bernas wrote last year in the Inquirer. 

The Supreme Court, however, has already settled the president’s immunity in a number of cases.

During the term of President Corazon Aquino, the Court said: “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 or 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. But 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.” (Read the decision here.)

More recently, in 2012, the Court decided in Rodolfo Lozada vs President Gloria Macapagal Arroyo: “It is settled jurisprudence that the President enjoys immunity from suit during his or her tenure of office or actual incumbency.”

Argument for VP immunity

Romulo Macalintal, an election lawyer, has opined that Binay is covered by immunity, just like the President, because he can only be removed through impeachment. 

“If the President is immune from suit while in office, the same privilege could be extended to Vice President Jejomar Binay, considering that the Office of the Vice President is regarded as a component of the Executive Department of the government,” Macalintal argued. (Macalintal is reportedly being considered for the senatorial slate of the United Nationalist Alliance or UNA, founded by Binay.)

Harry Roque, an activist lawyer, wrote in his blog that Binay is immune from suit but doesn’t explain why. Roque openly supports Binay’s bid for the presidency. 

Spare tire 

Claims that Binay enjoys immunity point to the larger issues of the Vice President’s role in the executive department and his accountability as a public official.

Going by Article VII of the Constitution, the vice president is given limited functions. He or she can be appointed to the cabinet. But the most important duty is to succeed the president in case of “death, permanent disability, removal from office, or resignation…” The vice president’s functions, Mendoza pointed out, do not justify a grant of immunity.

Like other cabinet officials, Binay is legally accountable for corruption and abuse of power.  The Constitution has enshrined, after all, that public office is a public trust.

In Latin America, two vice presidents are currently facing lawsuits for alleged corrupt activities. Argentina’s vice president was charged with bribery last year. He continues to hold office. 

In Guatemala, the vice president recently resigned after the Supreme Court stripped her of immunity because she was reportedly involved in a Customs corruption racket.

Two historical examples of US vice presidents in trouble with the law are often cited. Vice President Aaron Burr was indicted for murder in the 1800s. He did not argue then that a sitting vice president was immune from criminal prosecution.

In the 1970s, the US justice department investigated Vice President Spiro Agnew for extortion, bribery and tax fraud. Agnew eventually resigned and avoided trial. – Rappler.com