Posted by: nupl | March 8, 2008

LAWYERS CONDEMN USE OF LEGAL PROCESSES TO COVER UP CRIMES: Bringing the issue to the Courts is a legal trap

UPDATE: Click here to download the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea (JMSU) from the Newsbreak website.

March 7, 2008

Press Release

The NUPL condemns Pres. Gloria Arroyo’s use of legal institutions and processes to mislead the people and suppress the truth behind charges of corruption behind the NBN-ZTE contract and harass those who are oppose to this suppression of the truth. The belated “revocation” of EO 464 is a worthless legal mumbo-jumbo of no legal consequence and is a blatant attempt to mislead the people and the CBCP. Without the unhindered testimony of Sec. Romulo Neri and other witnesses, the “bring it to the court line” espoused by the executive is a legal trap.

EO 464 is dead: Executive Privilege is still alive

The announced revocation of EO 464 by Pres. Arroyo is of no legal consequence. The fact that it was only revoked now, is actually proof that Malacanang has persisted in using it in complete disregard of the Supreme Court decision in 2007. Rather than hailed, it should be exposed for what it is—an arrogant assertion that Pres. Arroyo only follows the Supreme Court when and if she wants to.

The Senate has decided not to accept the compromise agreement offered by the Supreme Court. Malacanang which has arrogantly disregarded the Court’s decision on EO 464 has no right to call the Senate’s assertion of its power to investigate an arrogant act. We hope the Senators will continue to be united despite differences in opinion on the compromise agreement. The issue of executive privilege is essentially a clash between the executive and legislative branches requiring the decisive intervention of the judiciary. In the end, the Supreme Court has to decide on the issue squarely and break the impasse. We hope the Supreme Court will rule on the side of the truth and accountability.

Bring the issue to the courts: a Legal Trap

The line proposed by Executive Officials to bring the NBN-ZTE case to the courts is nothing but an attempt to mislead the people and trap them into a legal limbo that will thwart efforts to hold public officials accountable.

Firstly, no criminal information in court can be filed without the filing of a complaint with the Department of Justice and the Ombudsman, the two institutions that did not raise a finger to investigate the NBN-ZTE contract even after Pres. Arroyo cancelled the same and after Sec. Romulo Neri implicated under oath Mr. Benjamin Abalos for bribery in the NBN deal. The Ombudsman is required under Sec. 15 (1) of RA 6670 to:

1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan x x x

The ZTE contract was cancelled or suspended by Pres. Gloria Arroyo because of irregularities—a clear admission that corruption has taken place. Under the law, the Ombudsman should have acted as early as last year, on its own, not only because of the reported cancellation of the contract but also because a cabinet member has admitted the bribery attempt in a Senate investigation. The Ombudsman, however, did not find these acts illegal or at the very least ‘improper’, a clear sign of its lack of interest to seriously investigate and prosecute the anomalies.

The Justice Secretary has been known to have sworn loyalty to President Arroyo and has in fact been accused by the Supreme Court of ‘prostituting’ his office to persecute critics of the President. There is no chance that the DOJ will genuinely prosecute those involved in the ZTE scam and bringing a complaint before them is another legal trap.

Both the DOJ and the Ombudsman have been compromised and are perceived to have sworn loyalty to Pres. Arroyo and are not expected to rule with independence and integrity in any criminal complaint against Pres. Arroyo.

Secondly, the filing of a complaint in court is a trap because if filed the Pres. Arroyo can immediately ask for its dismissal on the ground that Pres. Arroyo enjoys immunity from suit. Government lawyers sought the dismissal of the case against Pres. Arroyo in the complaint filed by former Senator Jovito Salonga with the Ombudsman and the Amparo petition filed for Jun Lozada in the Court of Appeals. It is unfortunate that many local government officials parrot the ‘bring it to the court’ line knowing full well that no case in court will prosper due to the president’s immunity from suit. Pres. Arroyo has not waived her immunity from suit so that she can be investigated and prosecuted in independent tribunals for her involvement in various violations of the laws and the Constitution. Since courts are expected to declare the president immune from suit, it is hypocritical for Malacanang to call for the filing of the cases in court.

Joint Marine Seismic Undertaking is Void

The challenge of Malacanang to bring the issue on the Joint Marine Seismic Undertaking on the Spratlys-Kalayaan Islands issue to court is of no value unless Pres. Arroyo allows Sec. Neri to testify and the negotiations leading to the JMSU, including the Agreement itself, are made transparent and publicly submitted to the Senate investigation.

The JMSU is void if signed by Pres. Arroyo and the Chinese government in consideration of fraudulent transactions in the various projects and loan agreements involving Chinese companies. In fact, due to the fraudulent transactions accompanying the loan agreements, the Philippine has every right to demand the voidance even of the loans itself should fraud be proved between the two parties. The Filipino people should not be made to pay for loans, a large portion of which went to private individuals with the knowledge of the contracting parties. This is no different from the fraud tainted behest loans during the time of Pres. Marcos such as the Bataan Nuclear Plant.

Absence of Presidential Immunity

Despite claims by Pres. Arroyo to presidential immunity, however, NUPL asserts that the claim to presidential immunity no longer has the similar constitutional sanction under the 1973 Constitution and that the courts should not interpret the same as shielding the president from any form of accountability. Unlike the 1973 Constitution which contains a provision expressly granting the President immunity from suit, the 1987 Constitution no longer contains such a provision, a sign that the Constitution no longer affords her the absolute immunity that Pres. Marcos had. Under international law, the head of state cannot claim immunity for unofficial acts and the commission of crimes, as stated in Article 27 of the Rome Statute of the International Criminal Court under which the Philippines is a signatory:

Article 27—Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Our obligation under the Vienna Convention on Treaties to observe the Rome Treaty in good faith trumps the unwritten ‘presidential immunity’ principle. The obsolete medieval doctrine of the “king can do no wrong” has been largely eroded mainly because kings actually do a lot of wrong and should not be allowed to hide behind it. Pres. Arroyo has been hiding behind executive privilege and presidential immunity as a shield against charges of human rights violations, electoral fraud and graft. Its about time that our courts strip her of the very mechanism that spawned impunity in the country.

Continuous violation of the rights of others

NUPL condemns the continuous blatant violations committed by executive officials against the rights of others. The filing of a perjury case against Violet Lozada, the wife of ZTE witness Jun Lozada, is another example of the use of legal processes to harass witnesses. While Violet Lozada was charged with perjury for merely exercising her right to file a habeas corpus petition on behalf of her husband, executive officials such as Usec. Gaite, Sec. Lito Atienza and others are not subject to the same treatment for lying during the Senate investigation. The fact that Violet Lozada ‘saw’ her husband the night before she filed the habeas corpus petition does not settle the issue of custody and threats against the life of Jun Lozada, and Violet has all the right to seek recourse from the courts.

The harassment of rallyists is another persistent violation of people’s rights. In the case of Valmonte vs. de Villa, the Supreme Court only allowed visual search in checkpoints and prohibited the authorities from stopping vehicles and ordering people to get down. The act of inspecting buses, ordering passengers to get down and stopping rallyists from exercising their constitutional right to expression is not only a criminal offense on the part of the police but also an illegal use of government office and resources to harass critics of Pres. Arroyo in the same way that the DOJ and the Ombudsman are being used to preempt the serious investigation and prosecution of public officials involved in the corruption that went with the ZTE contract.

The NUPL condemns the continuous use of legal processes and institutions in efforts to derail serious investigation on crimes committed by public officials and suppress the truth. The use of public offices and resources to violate the constitutional rights of the people to assemble, to petition government for redress and to information is totally unacceptable and officials involved in these acts are criminally liable under the law. We ask members of the legal profession to contribute their legal skills and organize a Committee Against Impunity so that the proper charges can be filed against ALL public officials, including the police and the military, who may be responsible not only for violating constitutional rights but also for the cover-up of these crimes. We should barrage legal institutions, no matter how compromised, with criminal complaints and force both the institutions and the perpetrators to contend with this legal counter-offensive. We reiterate our demand for Pres. Gloria Arroyo to desist from the use of the office of the Presidency for her personal protection and shield her and her officials from accountability for acts constituting as violations of the Constitution and Philippine laws.

Reference Person: Atty. Neri Javier Colmenares – Secretary General





  1. […] lawyers warn that the undertaking is void: “It is void if signed by Pres. Arroyo and the Chinese government […]

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