MANILA - A group of citizens will appeal the Ombudsman's ruling which cleared President Arroyo and First Gentleman Jose Miguel Arroyo of criminal liabilities in the botched US$329 million National Broadband Network (NBN) deal with Chinese telecommunications firm, ZTE Corp..   

The resolution of the Office of the Ombudsman recommended graft charges only against former Commission on Elections (Comelec) Chairman Benjamin Abalos Sr. and former National Economic and Development Authority (NEDA) director-general Romulo Neri.  

“The Concerned Citizens Movement (CCM), whose members stood as complainants in the only complaint that included spouses Gloria and Miguel Arroyo as respondent for violations of the Anti-Graft and Corrupt Practices Act in connection with the NBN-ZTE deal, will appeal the recent decision of the Ombudsman,” CCM counsel and complainant Harry Roque said in a statement on Friday.  

CCM was among the complainants in the consolidated case against several public officials and private individuals linked to the anomalous government project cancelled by President Arroyo in September 2007.

Roque said they will file before the Supreme Court a petition for certiorari before the 60-day period for appeal expires.  

No presidential immunity?

Roque challenged President Arroyo’s immunity from investigation and suit. He said the principle of presidential immunity has been revised since it was first applied in Philippine jurisprudence.
 
Citing the case of Estrada vs. Desierto, Roque said presidential immunity only covers 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,” he explained.
 
Among the members of CCM are former Vice-President Teofisto Guingona Jr., militant groups (Bayan Muna, Gabriela, Kilusang Mayo Uno, and Bayan), and other private citizens. 

“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?,” Roque added.

Photos of President Arroyo and the First Gentleman, on a golf course with ZTE Corp. officials in China before the NBN agreement was approved in April 2007, were released to the media at the height of the controversy in 2008.
 
The ZTE officials involved in the aborted project--Yu Yong, George Zhuying, Fan Yan, Hou Wei Gui—were also absolved by the Ombudsman.

Justice in next administration

Another complainant against the First Gentleman, lawyer Ernesto Francisco, said he will appeal the decision, too.  

Witness Jose De Venecia III, a losing bidder in the NBN project, testified in a 2008 congressional hearing that Mr. Arroyo told him to "back off" from the deal. He said the project was overpriced by at least $130-million to allow kickbacks to Abalos and senior government officials.

The Ombudsman said the First Gentleman was not included since the contract between the government and ZTE Corp. had been scrapped, and that it found no probable cause to charge Mr. Arroyo.

The 144-page decision was signed by Deputy Ombudsman Orlando Casimiro, who headed the five-man panel created by Ombudsman Merceditas Gutierrez.  

“As the complainant against the First Gentleman, I have the right to file a motion for reconsideration and appeal the dismissal all the way to the Supreme Court. I will definitely do that hoping that under the next administration, justice will finally be served,” Francisco told abs-cbnNEWS.com/Newsbreak in a phone interview.  

But Francisco is wary that the Palace will be able to pressure the Court of Appeals to dismiss an appeal of the Ombudsman ruling. Thus, he will first file a motion for reconsideration before the Office of the Ombudsman.  

"Hopefully, it [motion for reconsideration] will take time there until it reaches the next administration," he said.

Akbayan Rep. Risa Hontiveros has not decided what legal step she will pursue against the First Gentleman to “make sure that he goes to jail along with Abalos and Neri.”

“He should not celebrate. He should treat this as a preview of what will happen to him and GMA after 2010. If they think they can just rake public funds by abusing the authority and power of the Office of the President, then they are mistaken,” she added.

Hontiveros also accused Malacañang of intervening in the Ombudsman resolution to clear the First Gentleman.

“Despite Ombudsman Merceditas Gutierrez’s inhibition, it is obvious that special treatment was given to FG Mike Arroyo,” she said.  

“For one, why was the case against him dismissed when the same testimonies that were used to pin down Abalos presented FG Arroyo's involvement,” she added.  

Timing suspicious?

Hontiveros is also suspicious that the Ombudsman resolution was released while the House of Representatives is hearing an impeachment case against Gutierrez.  

“Akbayan filed the complaint on October 9, 2007. It took them months to hold the hearing. The Joint Resolution was finally signed by the five-member panel that investigated the case on April 21, 2009, but was only approved and signed by Over-all Deputy Ombudsman Orlando Casimiro on August 27, 2009,” she said.  

On Tuesday, two days before the Ombudsman decision was disclosed, the House committee on justice held a hearing to allow ten pro-impeachment congressmen to argue that the impeachment of complaint against Ombudsman Merceditas Gutierrez is “sufficient in substance.”  

Complainants, led by former Senator Jovito Salonga, had filed the impeachment complaint accusing Gutierrez of betrayal of public trust and culpable violation of the Constitution for sitting on "clear graft and corruption cases, some leading to the President herself or that of her closest associates.” The botched NBN-ZTE project is among the cases cited in the complaint.  

Next week, the anti-impeachment congressmen will also present their arguments.

House Speaker Prospero Nograles conceded that the Ombudsman decision could influence the committee on justice.

“Technically, this may help influence the votes at the proper time. That all depends on the members of the justice committee. It’s best to just sit and wait for the developments in the next two hearings,” Nograles said in a text message.

“I have suggested to the members to try and finish this by middle of September and bring it to the plenary as we would like to just concentrate on pending legislative matters,” he added.