Ombudsman can't invoke immunity to clear GMA

Got this SMS from my usually reliable Malacañang insider: “R. Neri and his lawyers, Atty. Tony Bautista and Paul Lentejas, met with E. Ermita, L. Mendoza, P. Favila, M. Gaite, Venturanza, J. Lagonera last Fri. (Aug. 29) at the Palace lunchtime. Malacañang will pay for attorneys’ fees.”

Next day Saturday, and it hit the headlines Sunday, Malacañang said that Romy Neri was on his own in the ZTE case. No way was it supposedly going to help defend Neri in the Ombudsman’s graft indictment for the $329-million scam.

Contradictory words and deeds is a trademark of the Arroyo admin. The other Saturday the Palace said it would not intercede for crony Rep. Danilo Suarez’s P1-billion loan application with the state-owned DBP. The day before, the First Couple had golfed with a top DBP exec the whole morning at Manila Golf Club.

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The six Ombudsman fact-finders in the ZTE scam are all lawyers. But it is doubtful if Deputy Orlando Casimiro, Emilio Gonzales III, Robert Kallos, Rodolfo Elman, Cesar Asuncion or Jesus Micael know the law at all. This shows in their invalid invocation of “presidential immunity” to clear Gloria Macapagal Arroyo of culpability. Remember their names well. As I wrote Monday, they will soon go down in history with the likes of Virgilio Garcillano, Lintang Bedol, Jocjoc Bolante.

The six did not bother to examine Arroyo’s complicity — on grounds that she is immune from suit anyway (Joint Resolution, pages 117-119). Their copout negates what all true lawyers know. A President, an impeachable officer, even if immune from suit, is not beyond the investigative powers of the Ombudsman. It would do the six well to reread Republic Act 6670 that established the Ombudsman:

“Section 22. Investigatory Power — The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted . . . In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities.”

So there. Clearly, if they wanted to, the six could have investigated Arroyo for the aim of filing a verified complaint. But they didn’t. And now Ombudsman Merceditas Gutierrez says she stands by their report. Isn’t her ignorance of the Ombudsman Act enough cause to impeach her? Isn’t the six’s incompetence with the very basis of their legal existence solid reason to fire them?

The six should have read Supreme Court rulings in Estrada v Desierto and Estrada v Macapagal-Arroyo (353 SCRA 452, 2001). For then they would have honed up on the latest thoughts on executive immunity:

“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 or impairs the vindication of a right... The US Supreme Court... concluded that ‘when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.’ In the 1982 case of Nixon v Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers only ‘official acts.’ Recently the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v Jones, where it held that the US President’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

“There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. It declared as a state policy that ‘the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.’ It ordained that ‘public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.’ It set the rule that ‘the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.’ It maintained the Sandiganbayan as an anti-graft court. It created the office of the Ombudsman and endowed it with enormous powers, among which is to ‘investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient’.”

Again clearly, the Ombudsman has a constitutional duty to verify the truth and inform the people of sins of their officials. The fact-finders’ failure to abide by the mandate of the Ombudsman Act amounts to abandonment of duty. It also proves that they and Gutierrez are not independent of Malacañang.

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 “If God is with me, I have all I need; if not, I will always be in need.” Shafts of Light, Fr. Guido Arguelles, SJ

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