Ombudsman clears President Macapagal Arroyo, et al, from alleged abduction of NBN-ZTE whistleblower Jun Lozada

June 1, 2010 8:35 pm 

MANILA, June 1 — The Office of the Ombudsman (Ombudsman) on Tuesday dismissed the complaint filed by Senator Jamby Madrigal exonerating President Gloria Macapagal-Arroyo and several others from the alleged abduction of NBN-ZTE whistleblower Engr. Rodolfo Noel "Jun" Lozada Jr. for him not to appear and testify before the Senate Blue Ribbon Committee hearings in September 2007.

In an 81-page Joint Resolution signed and approved by Overall Deputy Ombudsman Orlando Casimiro, President Arroyo was absolved in the said complaint because of her immunity from suit as sitting President of the Philippines.

The Ombudsman particularly cleared President Arroyo, former Executive Secretary Eduardo Ermita, Presidential Adviser for Special Concerns Remedios Poblador, Deputy Executive Secretary Manuel Gaite, Malacanang consultant Marcelino Agana IV, SSS President Romulo Neri, former Manila Mayor Lito Atienza, Chief Supt. Paul Mascarinas, NAIA Asst. General Managers Angel Atutubo and Octavio Lina, former PNP Chief Director General Avelino Razon Jr., PNP Director Romeo Hilomen, Aviation Security Group member Rodolfo "Roger" Valeroso, former Presidential Chief of Staff Mike Defensor, Marcelino Agana and Atty. Antonio Bautista.

They were all exonerated from the charges of violation of Presidential Decree 1829, otherwise known as the Obstruction of Justice, Article 144 of the Revised Penal Code (RPC), otherwise known as the Disturbance of the Proceedings of the Senate and RA 6713, otherwise known as the Code of Conduct and Ethical Standards of Public Officials and Employees.

The Ombudsman panel, chaired by Deputy Ombudsman for the Military Emilio Gonzalez III, did not find any probable cause against the accused which caused the dismissal of the complaint filed by Madrigal on Feb. 15, 2008.

Concurring with the ruling were Deputy Special Prosecutors Roberto Kallos and Jesus Micael, along with Asst. Ombudsman Rodolfo Elman and Asst. Special Prosecutor Caesar Asuncion.

Casimiro made the approval in view of the inhibition from handling the case made by Ombudsman Maria Merceditas Navarro-Gutierrez.

The Ombudsman found that there is no merit in the complaint filed by Madrigal against President Arroyo for being an impeachable officer who enjoys immunity from suit.

"As to the complaint against President Macapagal-Arroyo, the same is dismissed outright for lack of jurisdiction. Under Section 21 of RA 6770 (Ombudsman Act of 1989), the disciplinary authority of the Office of the Ombudsman does not extend over officials who may be removed only by impeachment. As President of the Philippines, she enjoys immunity from suit during her tenure," the ruling said.

It further stressed to Madrigal that she "is aware of the President's immunity from suit, but she is impleading her anyway so that when her immunity expires on or before June 30, 2010, this case against her should forthwith prosper. Such speculative stance of the complainant cannot be given due course by this office, in the light of the same mantle of immunity that she meantime enjoys."

Madrigal is accusing President Arroyo as mastermind in the abduction of Lozada to prohibit him from testifying before the Senate as to the NBN Broadband deal with ZTE.

The Ombudsman argued that as to the alleged violation of Obstruction of Justice, the same cannot prosper since it is very clear from the proceedings of the Senate that he was able to appear and testify.

It also pointed out that the said crime is inapplicable to the case and against the accused since it covers only a criminal proceeding and not a Senate inquiry in aid of legislation.

"Witness Rodolfo Noel I. Lozada was commanded and required to appear before the Senate to testify in its hearings in aid of legislation, and not in a criminal proceeding as required by law," the document said.

Records also show that Lozada was the one who refused to testify at the Senate at that time due to death threats he is receiving which he confessed to then Malacanang officials Atienza and Gaite, "hence, contrary to the accusation that Lozada was being prevented from attending the Senate hearings, it was in fact Lozada himself who was unwilling to go to the Senate. But this notwithstanding, the fact that he already testified on the alleged NBN-ZTE anomalies at the Senate renders moot and academic the instant complaint of allegedly impeding, preventing or obstructing him from attending the said hearings."

In the violation of Article 144 of the Revised Penal Code or Disturbance of Proceedings, the complaint does not hold water since there was no actual disturbance of the proceedings done by the respondents and no evidence was submitted to prove the same.

"Indeed, except that bare and sweeping accusations against all the respondents, no separate and concrete evidence was submitted to prove the disturbance they committed. The evidence presented did not clearly show that the foregoing elements have been satisfactorily met, thus, for lack of probable cause, we find no reason to prosecute the herein respondents in court for violation of Article 144 of the Revised Penal Code," it said.

As to the complaint of alleged violation of the Code of Conduct, the case must also be dismissed since Madrigal failed to substantiate the same which would warrant the filing of the case after finding probable cause against the respondents.

"Moreover, except for the general conclusion that the respondents violated their sworn duties, the complainant failed to mention how the respondents committed the administrative offense, and also failed to substantiate the same," it added.

The Ombudsman even told Madrigal that it must be her "who has the burden of proving (the charges) by substantial evidence the allegations in the complaint. In the present case, after evaluating the totality of the evidence on record, this Office reaches the conclusion that complainant failed to present substantial evidence to establish that the respondents were administratively liable." (PNA)

DCT/PTR

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