Harry Roque’s Blog

The Ombudsman has dismissed anew the Concerned Citizens Movement’s complaint against Mrs. Gloria Arroyo and her husband for the botched NBN-ZTE scandal. In dismissing the case against Mrs. Arroyo, the Ombudsman recited anew the mantra that the President is absolutely immune from suits while in Office. At the same time, the Ombudsman, perhaps to appease an angry public, charged former Commission on Elections Chairman Benjamin Abalos and Social Security System Chairman Romulo Neri with violating the country’s anti-graft law. It also upheld its own earlier resolution suspending Neri from office.The order of suspension is without a doubt a concrete achievement for the CCM since it was the only group of complainants that charged public officers involved in this scandal with both criminal and administrative complaints. Although co-convenor former Transportation and Communication Secretary Josefina “Josie” Lichauco did not live long enough to know about the finality of the administrative sanction against Neri, this is definitely a legal victory in that at least one sinister character in this episode was meted administrative sanction.

This latest dismissal of the complaint against the President is already the second order seeking to exonerate her on the basis of immunity in the same case. An order of dismissal was issued as soon as the CCM complaint was filed, also on the ground that while the Ombudsman is not a court, all proceedings conducted by it are apparently “suits” for purposes of presidential immunity. CCM then alleged that this was a wrong view since the Ombudsman, when evaluating complaints for violations of the country’s criminal laws on anti-graft and corruption, performs only a quasi-judicial function of determining the existence of probable cause. If it is there, the information is filed with the Sandiganbayan. If none, the complaint is dismissed. Obviously, a “suit” for purposes of the immunity of president applies only the moment an information is filed in court. It cannot include the preliminary investigation conducted by the Ombudsman in the determination of probable cause.

It is submitted that the Ombudsman’s construction of presidential immunity has further weakened an institution that the constitutional framers sought to grant with sufficient powers to uphold the constitutional adage of accountability of public officials. Like ordinary prosecutors, the Ombudsman conducts preliminary investigation with the view of not only charging those who have likely committed crimes, but also with the view of sparing the unnecessary wastage of public funds in the prosecution of those who are probably innocent. But unlike ordinary prosecutors, the Ombudsman is vested by the Constitution with extraordinary powers, including the power to:

“(1) 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.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith x x x.”

In other words, the Ombudsman is not just a prosecutor, but is also the final administrative authority that has the power fire public officers for breach of the trust reposed in them. It also has the power to compel public officers to perform their duties.

Assuming therefore that the President is immune from suits, the Ombudsman, because it is not a court, could still investigate the President for any misconduct. If, despite the existence of probable cause, it cannot charge her in court; it could at least direct Congress, the exclusive body that can initiate impeachment proceedings, to perform its lawful duty of initiating impeachment. This is pursuant to its power to “direct, upon complaint or at its own instance, any public official or employee of the Government, x x x, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties”.

But the bigger issue is whether presidential immunity from suit remains the absolute rule. Again, it is CCM’s submission that absolute presidential immunity is a thing of the past. What is recognized today is the principle of limited immunity where heads of States are immune only for purely sovereign acts. Thus, when Augusto Pinochet was charged for the commission of torture and enforced disappearances, the UK House of Lord rejected the claim of absolute immunity holding that while sovereigns are indeed entitled to immunity from suit for sovereign acts, the commission of a crime can never be sovereign in character. To illustrate the point, the House of Lord even gave an example, that of a despot who ordered that his gardener be tortured for the sheer pleasure of seeing him tortured. “What, asked the House of Lords, is sovereign in this kind of an order?”

Not far from home is the decision of the US Court of Appeals in the Hilao v Marcos case, or the class suit filed by the victims of the Marcos dictatorship before an American Court. In response to an attempt by the Marcoses to have the suit dismissed on the ground of sovereign immunity, the US Court ruled that where the jurisdiction of the Court is vested by Congress itself through the Alien Tort Claims Act, a law that vests US Courts with the power to hear and decide cases against those that may have committed the international crimes of torture, war crimes, crimes against aggression and genocide; the defense of absolute immunity will not lie.

In yet another American case, no less than the US Supreme Court allowed a civil suit filed by one Jennifer Flowers to proceed against then sitting President Bill Clinton because as ruled the court, immunity only covers official acts and presumably, sexual harassment, which was the claim of Ms. Flowers, is not official in character.

Perhaps the status of law on the matter is evident in the international warrant of arrest issued by the International Criminal Court against the sitting President of Sudan, Omar al-Bashir for genocide, crimes against humanity and war crimes. Certainly, Bashir could argue that the crimes charged were committed in the context of an on-going armed conflict and are hence, sovereign in character. Despite this, he is today an international fugitive.

With all these developments, it should be obvious why international law, if not domestic law, no longer recognize absolute immunity for heads of states. For while in the past, it was thought that sovereigns cannot err, scandals like the NBN-ZTE prove otherwise, Ultimately, the question is: why should presidents be accorded impunity for non-sovereign acts?