A CITIZENS group said Friday it will appeal the recent decision of the Office of the Ombudsman to charge only former Commission on Elections Chairman Benjamin Abalos and former National Economic Development Authority Director General Romulo Neri with graft and bribery before the Sandiganbayan in connection with the anomalous $329-million national broadband network (NBN) deal with China’s ZTE Corp.
The Concerned Citizens Movement, whose members filed the only complaint that included President Gloria Arroyo and her husband Jose Miguel Arroyo as respondents, said the Ombudsman’s decision to exclude the First Couple from the filing of graft and bribery charges was “fatally flawed.”
“This a decision that sanctions impunity. Why should only two co-conspirators be charged when the facts are very clear that the Spouses Miguel and Gloria Arroyo were co-conspirators to the criminal acts committed in the botched NBN-ZTE deal? In a conspiracy, the act of one is the act of all,” lawyer Harry Roque, who is both a complainant and counsel, said.
His co-complainants included fellow CCM members Consuelo Paz, Renato Constantino Jr., Guillermo Cunanan, Roel Garcia, Bebu Bulchand, Perla Bandiola and Maria Flor Querubin. They were joined in the petition by former Vice President Teofisto Guingona and representatives from Bayan Muna, Gabriela, Alliance of Concerned Teachers, Kilusang Mayo Uno, Courage and Bayan.
The CCM challenged the Ombudsman’s stance that Arroyo is immune from investigation and from suits. The principle of presidential immunity has been revised since it was first applied in Philippine jurisprudence, it said.
Roque said:
Presidential immunity finds no demonstrable textual commitment in the letters of our Constitution. It was merely a result of jurisprudence intended to improve the administration of public administration. The assumption is that without the said immunity, the President may run out of time to govern since all her time will be devoted to defending herself in court. Since the concept was first applied in our jurisprudence as early as 1910 in the case of Forbes vs. Chuoco Tiaco, it has since been revised by the our own Philippine Supreme Court, citing the US case of Clinton v. Jones. Today, the prevailing view as held in the case of Estrada v. Desierto, is that immunity should only be for official acts: “It will 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 on the same footing as any other trespasser. Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth and impairs the vindication of a right.” (Estrada vs. Desierto, (353 SCRA 452).
In a 144-page resolution, the Ombudsman also absolved Pangasinan Rep. Jose de Venecia Jr., Transportation Secretary Leandro Mendoza, Transportation Undersecretaries Lorenzo Formoso and Elmer Soneja, and ZTE officials Yu Yong, George Zhuying, Fan Yan and Hou Weigui.
The Ombudsman ordered Abalos charged for taking interest and intervening in a contract “completely alien to his duties.” Abalos had offered Neri a P200 million bribe and Joey de Venecia, namesake son of the former House Speaker and a losing bidder in the NBN project, $10 million. He had also instructed whistleblower Rodolfo Lozada Jr., Neri’s consultant in the aborted deal, to protect their “130,” an allusion to a commission.
In charging Neri, now administrator of the Social Security System, the Ombudsman said he conferred with Abalos on the project even when the then Comelec chairman was not supposed to have any role in it. Neri also met with ZTE officials when the NBN project was being evaluated, attending “lunch meetings, conferences and golf games not only with Abalos but with ZTE officials as well.”