Test case vs Arroyo seeks removal of presidential immunity

CITIZEN-complainants led by former Vice President Teofisto Guingona today filed a criminal case against Gloria Macapagal-Arroyo before the Office of the Ombudsman in connection with the scandal-ridden national broadband network deal, seeking in the process to invalidate the doctrine that grants the President immunity from suits while in office.

Also named respondents along with Arroyo were her husband, First Gentleman Jose Miguel Arroyo, former elections chairman Benjamin Abalos Sr., and former socioeconomic planning secretary Romulo Neri.

“This case involves a novel yet important point of law — the issue of whether Mrs. Arroyo, who is a sitting President, can and should be sued for unlawful acts or omissions, in the face of the traditional doctrine of presidential immunity from suits,” says lawyer Harry Roque, lead counsel for the complainants.

The citizen-complainants are calling for the abolition of what they call a “colonial jurisprudential legacy” that shields the highest official of the land from suits even when, in the case of Arroyo, the President is “guilty of disregarding her constitutional duties.”

Read the criminal complaint vs Gloria Macapagal-Arroyo, Jose Miguel Arroyo, Benjamin Abalos Sr., and Romulo Neri.

A “functional” approach, they argue, is more appropriate as this recognizes that immunity must give way to responsibility particularly in cases where impunity in any form is perpetuated by those who occupy a high office. This, they add, is in keeping with the constitutional principle that “a public office is a public trust.”

Roque points to Section 1 of Article XI of the 1987 Constitution which, he says, goes against the idea that the President is “akin to royalty, or one who must not be touched, or that her office should be protected from suits simply because it should be publicly revered.” He says such ideas were borrowed from court practice in colonial times, when the Philippine Supreme Court under the American colonial government bestowed the Governor General with blanket immunity from suits.

“Even the American Supreme Court has veered away from the old notion of presidential immunity, as shown by the case of Clinton v. Jones, where it allowed a suit for damages against a sitting President for unofficial acts,” says Roque.

The Clinton case, however, was a civil suit that involved acts when Clinton was not yet president. Nonetheless, Roque says the U.S. Supreme Court, in its decision affirming the Court of Appeals, abandoned the concept of absolute immunity by allowing private civil lawsuits against the President even before his term of office ends.

“Today, a culture of impunity in government reigns — extrajudicial killings, enforced disappearances, and as addressed in this case, graft and corruption. What has the President done to solve this problem?” asks Roque. “Instead, as in this case, we find the President herself abetting and allowing the commission of a crime involving a member of her own Cabinet in the anomalous ZTE broadband deal.”

The complaint alleges that Arroyo is guilty of the following criminal acts:

• abetting or tolerating the commission of a crime when she did nothing despite her having been told by Neri about a bribe offer from Abalos (violation of Article 208 of the Revised Penal Code)

• knowingly and willfully obstructing, impeding or delaying the apprehension of suspects and the investigation of criminal cases by “her express invocation of ‘executive privilege’ through her alter ego — no less than Neri himself — when pressed to shed light on the anomalous deal by members of the Senate” (violation of Paragraph 1 (a) of Presidential Decree 1829)

• “manifest partiality, evident bad faith, or at least, gross inexcusable negligence” when Arroyo presided over the signing of the NBN deal between her own agents and officials of the ZTE considering that Arroyo knew about the bribe offer, the onerous nature of the ZTE proposal, and that there were better offers than ZTE’s (violation of Paragraph 3 (e) of Republic Act 3019, the Anti-graft and Corrupt Practices Act)

The involvement of her husband, the First Gentleman, in the same controversy, the complaint argues, could indicate that Arroyo is “in fact, part and parcel of the same conspiracy to grant ZTE the NBN contract…even assuming that she did not benefit in any pecuniary way in the same onerous transaction.”

Charges against Abalos include:

• violating Section 3(b) of RA 3019 when he received perks and privileges from ZTE in connection with its proposal to undertake the NBN project, even admitting that ZTE financed his trips to China, “three or four” times; and on account of his admission that his daughter received assistance from ZTE officials on her import business

• violating the Commission on Election ban to enter into contracts during elections “when he received gifts and benefits from ZTE and tried to influence or influenced other government officials in connection with the NBN project”

• violating Section 3(h) of RA 3019 as it is “clear that he had financial and pecuniary interest in the NBN project…calling it his ‘last hurrah'” based on de Venecia III’s testimony

• violating Section 3(a) of RA 3019 when he tried to persuade and induce Neri, another public officer, to approve the NBN project despite knowing that the ZTE proposal was grossly overpriced and clearly disadvantageous to the government

• direct bribery, indirect bribery, and corruption of public officials (under Articles 210, 211, 212 of the Revised Penal Code)

At the very least, the complaint says Abalos should be held liable for indirect bribery, considering that he presented himself before ZTE officials as a person with sufficient authority or influence to steer the award of the NBN contract to ZTE, and the monetary consideration was offered to him by reason of his position as Comelec chair.

Moreover, Neri testified that Abalos offered him a P200-million bribe so he would give a favorable recommendation or endorsement of the ZTE proposal for the NBN project.

The First Gentleman, on the other hand, is accused of:

• violating Section 5 of RA 3019 when he threatened and tried to coerce Jose de Venecia III into withdrawing from the NBN project

As the spouse of the current occupant of the Office of the President, Mr. Arroyo is prohibited by law to intervene, directly or indirectly, in any business transaction or contract with the government. Complainants allege that his actuations during the meeting between Abalos and de Venecia III show his “pecuniary interest in it, not to mention the conspiracy hatched between him and Abalos to make sure that ZTE and not any other proponent bag the NBN contract.”

“His presence there was meant to impress upon anyone — to de Venecia III in particular — that he carried with him the color of the authority of the office occupied by his wife and that he is in the position to influence government officials on such matters as public contracts,” according to the complaint.

As to Neri, the complaint says he should at least be made an accessory to the criminal acts perpetrated by Mrs. Arroyo, Abalos and Mr. Arroyo for dereliction of duties in connection with the following acts:

• attempt to conceal the criminal acts of other government officials involved in the ZTE controversy, maliciously and deliberately using “executive privilege” during the joint hearings at the Senate to do so

• approval of the ZTE proposal/contract by the Investment Coordinating Committee and the National Economic and Development Authority, in which he was still the chairperson, despite him having been offered what he considered a bribe in the amount of P200 million and considering that such approval by the ICC and NEDA is an indispensable requirement for the signing and conclusion of the ZTE contract