What is the extent of President’s immunity from suit?

The President, like the judges of the court 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.

The principle of non-liability does not mean that the chief executive may not be personally
sued at all in relation to acts which he claim to perform as such official. The President is liable
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.

Also, when the cases filed against the President are criminal in character, it would be
anomalous to hold that immunity is an inoculation from liability for unlawful acts and
omissions. 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 other
trespasser (Estrada v. Desierto, G.R. No. 146710-15 and 146738, March 2, 2001)

Rules on executive immunity

A. Rules on immunity DURING tenure:

1) It is elementary that incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure (In re: Bermudez, 145
SCRA 160).
2) An impeachment complaint may be filed against him during his tenure. (1987
Constitution, Article XI)
3) The President may not be prevented from instituting suit.
4) There is nothing in our laws that would prevent the President from waiving the
privilege. He may shed the protection afforded by the privilege.

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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 Thus, an
accused in a criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against
such accused. Moreover, there is nothing in our laws that would prevent
the President from waiving the privilege. Thus, if so minded the President
may shed the protection afforded by the privilege and submit to the court's
jurisdiction. The choice of whether to exercise the privilege or to waive it is
solely the President's prerogative. It is a decision that cannot be assumed and
imposed by any other person (Beltran vs. Makasiar, 167 SCRA 393).

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 5) Heads of departments cannot invoke the President’s immunity (Gloria v. CA, G.R. No.
119903, August 15, 2000)

B. Rule on immunity AFTER tenure:

Once out of office, even before the end of the 6-year term, immunity for non-official acts is
lost. Immunity cannot be claimed to shield a non-sitting President from prosecution for the
alleged criminal acts done while sitting in office.

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Incumbent Presidents are immune from suit or from being brought to court
during the period of their incumbency and tenure" but not beyond. Considering the
peculiar circumstance that the impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a
condition sine qua non to his criminal prosecution before the Ombudsman that he be
convicted in the impeachment proceedings. As 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. 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 (Estrada vs. Arroyo, GR 146738, March 2,
2001).

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When a non-sitting President is not immune from suit for acts committed during his
tenure

A non-sitting President does not enjoy immunity from suit, even though the acts were done
during her tenure. The intent of the framers of the Constitution is clear that the immunity of
the president from suit is concurrent only with his tenure and not his term. Former President
Arroyo cannot use the presidential immunity from suit to shield herself from judicial scrutiny
that would assess whether, within the context of amparo proceedings, she was responsible or
accountable for the abduction of Rodriguez (Rodriguez v GMA, G.R. No. 191805 &
193160, November 15, 2011)

When a former President cannot be impleaded

Moreover, the reason cited by the petitioners Stewards for including former President
Macapagal-Arroyo in their petition, is not sufficient to implead her as an unwilling co-
petitioner. Impleading the former President as an unwilling co-petitioner, for an act she made
in the performance of the functions of her office, is contrary to the public policy against
embroiling the President in suits, "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. Therefore, former President Macapagal-Arroyo cannot be impleaded as
one of the petitioners in this suit. Thus, her name is stricken off the title of this case
(Resident Marine Mammals v Reyes, G.R. No. 180771, April 21, 2015).