The President is placed beyond the reach of judicial direction- illustrate and explain.

What is presidential immunity?

                  By the decision of the Court in Mississippi v. Johnson,in 1867, the President was placed beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial. An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stenberg, who argued, inter alia, the absolute immunity of the President from judicial process. The Court refused to permit the filing, using language construable as meaning that the President was not reachable by judicial process but which more fully paraded the horrible consequences were the Court to act. First noting the limited meaning of the term “ministerial,” the Court observed that “very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.”[1]

            A hot topic these days is the undying claim of Joseph Estrada that he is still the legitimate President of the Philippines, albeit, on leave. It is worthy to note, however, that this amusing claim of Erap is not aimed at regaining the powers and perks of the Presidency but only to avail himself of the immunity from suits which Presidents of the Republic enjoy during their tenure. Regardless of the legality of Erap’s claim we shall now examine the intricacies of Presidential immunity. [2]



             It is interesting to note that the 1987 Constitution does not provide for presidential immunity from suit.  Unlike congressional immunity, presidential immunity is not expressly stated nor prescribed by the Constitution. Basis for the immunity is only found in jurisprudence, both in the U.S. and the Philippines, which, by virtue of Article 8 of the Civil Code, “forms a part of the legal system of the Philippines.”

             In the case of In re: Bermudez, (1986), the Supreme Court expressly held that, Incumbent presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.

            The purpose of the immunity was discussed in the case of Soliven, et al, vs. Judge Makasiar (1988), where the Supreme Court stated that “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. [3]


                  In the same case of Soliven, et al., vs. Judge Makasiar (1988) petitioners argued that “the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit”. He contended that if criminal proceedings ensue by virtue of the President’s filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court’s jurisdiction. This would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury.


                  In turning down petitioner’s argument, the Court held that the 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.


                  On 27 May 1997, a unanimous United States Supreme Court held in Clinton v. Jones that the Constitution does not protect a sitting President from a lawsuit that is predicated on private, pre-presidential conduct. Basically, the Court stated that an incumbent was liable to a suit for damages, based on actions taken before his term began. The Court held further that an official’s absolute immunity should extend only to acts in performance of particular functions of his office because immunities are grounded in “the nature of the function performed, not the identity of the actor who performed it.

                  Further, an official’s absolute immunity extends only to acts in performance of particular functions of his office.  The doctrine of immunity finds no application and cannot be invoked in cases where the public official is being sued in his private capacity or as an ordinary citizen.  The mantle of protection afforded public officers is removed the moment they are sued in their individual capacity. This usually arises where the government official acts without authority or in excess of the powers vested in him or his office such as when he has acted with malice and in bad faith, or beyond the scope of his authority or jurisdiction. [4]


Constitution of Bangladesh:

48. The President:

(1) There shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law

(2) The President shall as Head of State, take precedence over all other persons in the State, and shall exercise the powers and perform the duties conferred and imposed on him by this Constitution and by any other law.

(3) In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister; Provided that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court.

(4) A person shall not be qualified for election as President if he-

           (a) Is less than thirty-five years of age; or

           (b) is not qualified for election a member of Parliament; or

           (c) Has been removed from the office of President by impeachment under this Constitution.

(5) The Prime Minister shall keep the President informed on matters of domestic and foreign policy, and submit for the consideration of the Cabinet any matter which the President may request him to refer to it.

 49. Prerogative of mercy:

               The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.

 51. President’s immunity.

  (1) Without prejudice to the provisions of article 52, the President shall not be answerable in any court for anything done or omitted by him in the exercise or purported exercise of the functions of this office, but this clause shall not prejudice the right of any person to take proceedings against the Government.

   (2) During his term of office no criminal proceedings whatsoever shall be instituted or continued against the President in, and no process for his arrest or imprisonment shall issue from any court.

 Human rights about criminal proceeding:

 1. Bangladesh

On the Convention against Torture:
Bangladesh ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 5 October 1998, but a decade later, the country still does not have any specific law criminalizing torture. Bangladesh has not ratified the Conventions Optional Protocol.

A draft bill criminalizing torture and custodial death, prepared in accordance with CAT obligations, was submitted to parliament as a Private Members Bill by Mr. Saber Hossain Chowdhury on 5 March 2009. The bill has primarily been reviewed by the Private Members Bill Review Committee led by former law minister Mr. Abdul Matin Khasru, a Supreme Court lawyer.

Existing domestic law:
To be free from torture is a fundamental right under article 35 (5) of Bangladesh’s constitution: No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. In reality however, torture is not a punishable crime in Bangladesh. While the Penal Code of 1860 (sections 330, 331 and 348) penalizes offences relating to causing hurt or wrongful confinement for the purpose of extracting confessions, these provisions do not define torture as a crime or meet the standards of the CAT.

Meanwhile, section 46 of the constitution empowers the government to extend immunity from prosecution to any state officer on any grounds: Parliament may by the law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration or order in any area in Bangladesh. This provision is used to protect police and joint operations units from prosecution for human rights abuses. In a similar manner, sections 132 and 197of the Code of Criminal Procedure, 1898 protect public servants from prosecution unless prior government approval is obtained. Under current interpretation of these provisions, courts refuse to take cognizance of crimes committed by state agents without the prior approval of the state. This reflects the countries moral and jurisprudential deficit.

Furthermore, until recently, the lower courts Magistrates and Sessions Judges courts had been under the control of the Ministry of Home Affairs and the Ministry of Law, Justice and Parliamentary Affairs. The courts were subjugated to the extent that even now, they behave as if they are not accountable to a superior court, but to a government officer; their allegiance lies in the executive, not the judiciary. Additionally, the process for complaints, investigation and prosecution of cases involving allegations against state agents is largely non-functional.
Since torture is not criminalized, torture victims cannot get any compensation in Bangladesh at all. Despite the fact that the right against torture is a fundamental constitutional right, there is no specific law providing compensation for victims.

Witness protection:
           Bangladesh has no specific law concerning witness protection, and nor does it have any provisions protecting witnesses in other laws, including its criminal procedure code. Although courts may impose relevant conditions when granting bail to the accused, these are often violated with impunity. The lack of judicial commitment in addressing witness protection has been demonstrated through years of neglect. In these circumstances, witnesses in torture cases remain beyond legal protection, resulting in further threats, intimidation and even the possibility of having fabricated charges filed against them.

The magnitude of the problem:

The endless practice of torture practiced with impunity has entrenched fear within Bangladeshi society. People have lost faith in the criminal justice system. Victims refrain from complaining about torture due to the fear of further persecution. Even if they were not afraid of making complaints, they would not be able to afford the bribes and huge litigation expenses that make up the complaint process. Ninety per cent of the Bangladeshi population belongs to the less affluent class of society, and they are the victims of violence committed by state agencies.

The countries law-enforcement officials and policymakers see torture as an effective tool for criminal investigation, particularly due to poor infrastructural facilities.

Bangladesh has 629 police stations. Torture is routinely practiced in all of these police stations, whether to maintain law and order, as a means of investigation, or to extort money for personal gain. Even if only a single person is assumed to be tortured per day per station, an alarming number of 229,585 persons are being tortured in Bangladesh every year. This figure excludes victims tortured outside police stations and detention centers.

The countries police force is not the only state agency practicing torture. Paramilitary forces like the Rapid Action Battalion, the armed forces, the border security forces, intelligence agencies such as the Directorate General of Forces Intelligence (DGFI) and special cells such as the Task Force for Interrogation and the Joint Interrogation Cell also practice torture. The latter two agencies, by the very nature of their mandate, are professionally trained to extract confessions from detainees, for which torture is the most common tool.

 Judiciary system in Bangladesh:[5]

            The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. It passed through various stages and has been gradually developed as a continuous historical process. The process of evolution has been partly indigenous and partly foreign and the legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Mughal and English law. The Indian sub-continent has a known history of over five hundred years with Hindu and Muslim periods which proceeded the British period, and each of these early periods had a distinctive legal system of its own.

           The Hindu period extends for nearly 1500 years before and after the beginning of the Christian era. The ancient India was divided into several independent states and the king was the Supreme authority of each state. So far as the administration of justice was concerned, the king was considered to be the fountain of justice and was entrusted with the Supreme authority of administration of justice in his kingdom.

  1. SourceWeb site of Ministry of Law, Justice and Parliamentary Affairs

            The Muslim period starts with the invasion of the Muslim rulers in the Indian sub-continent in 1100 A.D. The Hindu Kingdoms began to disintegrate gradually with the invasion of Muslim rulers at the end of eleventh and at the beginning of twelfth century. When the Muslims conquered all the states, they brought with them the theory based o n the Holy Quran, their religious book. According to the Holy Quran, sovereignty lies in the hand of Almighty Allah and the king is His humble servant to carry out His will on the earth. The ruler was Almighty’s chosen agent and trustee.

            The modernization of ancient Indian legal and judicial system took place in the hand of the British people who came here as being trading company under a series of Royal Charters. East India Company gradually established control and possession over Bombay, Madras and Calcutta which were later on known as Presidency Towns. Ultimately the Company participated in administration of justice in co-operation with the local authorities.

The Charter of 1726 issued by King George-I, by way of granting Letters Patent to the Company, was the first gateway to introduce English legal and judicial system in India. Later on, Charter of 1753 was issued by King George-II with a view to remove the defects of the Charter of 1726. To improve the system, the secret committee of House of Commons intervened, and passed the Regulation Act, 1773 under which the King issued a separate Charter of 1774 establishing the Supreme Court of judicature at Calcutta. Subsequently, Supreme Courts were established in Madras in 1801 and in Bombay in 1824.

              In 1853, the first Law Commission was established in India and an all India legislature was created whose laws were to be binding on all Courts. East India Company was dissolved and the Government of India was taken over by the British Crown in 1858, following the event of mutiny in 1857. The Civil Procedure Code, Criminal Procedure Code, Penal Code, Evidence Act, etc. were enacted and with this common legal fabric, the British Parliament in 1861 enacted Indian High Courts Act which provided for the establishment of High Courts in three Presidency Towns (Calcutta, Bombay & Madras) replacing the Supreme Court. After the establishment of High Courts a regular hierarchy of Civil and Criminal Courts were established by Civil Courts Act, 1887 and Criminal Procedure Code, 1898 respectively. The present system of Civil and Criminal Court, in Indian sub-Continent has their legal basis by virtue of these Civil Courts Act, 1887 and Criminal Procedure Code, 1898 respectively. The British Parliament declared India & Pakistan as independent dominions on 15 August, 1947 by the Indian Independence Act, 1947. This Act also provide that until the new Constitutions were framed for independent India & Pakistan, the Government of these two countries were to run by the Government of India Act, 1935. Judicial structure mostly remained the same as it was before 1947.

            The Government of India Act.1935 changed the structure of the Government from unitary to that of federal type. Accordingly, in both India and Pakistan Federal Court was retained to function until new constitutions were framed. Pakistan constituent Assembly passed the privy council (Abolition of Jurisdiction) Act, 1950 which abolished the system of appeal to the Privy Council from the Federal Court of Pakistan. The Federal Court appeared as the highest Court in Pakistan till 1956, when the High courts in the provinces and the Supreme Court of Pakistan in the centre were established under the new Constitution. In Pakistan, the constitution of 1956 was abrogated in 1958 and another one was introduced in 1962, but the whole judicial structure remained all the same. After liberation in 1971, Bangladesh adopted its Constitution in 1972, which provides the structure and functioning of the Supreme Court comprising with the High Court Division and the Appellate Division. Needless to say that in Bangladesh the sub-ordinate judiciary both in Civil and Criminal side originated from Civil Court Act, 1887 and Criminal Procedure Code, 1898. Apart from this, in Bangladesh there are some other special laws providing for the basis of some special courts, such as labor court, Juvenile Court, Administrative tribunal etc. [6]

  1. Source: Web site of Ministry of Law, Justice and Parliamentary Affairs

 My point of view:

        From the research, we can see different countries have their own constitution and also power of their president. President is the head of a country. He or she can use his or her power in times of needed. He or she has the right to use his or her power. Like this, he or she can use his or her power in criminal proceeding.

        Theoretically, it’s good to have that power. In case of death sentence of a criminal the president can use his or power to minimize criminal’s punishment. In a sense, it would be save a incent person from the death. He or she might not be the main culprit.

         But, in reality what we can see in terms of country like Bangladesh. Here presidential power uses for the party. A president can save a most wanted criminal from his or her deserving punishment. For an example, recently we saw some news in news paper. President use his power to save a party member who is actually a dangerous criminal.

        So, country like Bangladesh here must be some guidance or constitution which can limit a president’s power. By which an innocent people can get relief from a false punishment.


                    At last, I can say that power of a president must be come to the control of a state’s constitution. By which he or she will be bounded by state. He or she has to give some valid reason why he or she uses his or her power in the criminal proceeding. Otherwise he or she cannot use his or her power. In article, we can see that it says, “The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”. It should be fair and also acceptable by all.


  5. http://Constitution/Anatomy%20of%20presidential%20immunity%20issue.webarchive
  12. Web site of Ministry of Law, Justice and Parliamentary Affairs