US AND RP JURISPRUDENCE DISPROVES COMELEC EXECS CLAIM OF IMMUNITY FROM CRIMINAL PROSECUTION

Senate Minority Leader Aquilino Nene Q. Pimentel, Jr. (PDP-Laban) today asked the Office of the Ombudsman to disregard the argument of Chairman Benjamin Abalos and other commissioners of the Commission on Elections that they could not be investigated or criminally prosecuted by the Ombudsman unless they are first impeached, citing judicial precedents in the United States and the Philippines.

Pimentel contended that there is no legal impediment at this stage to look into the involvement of the top Comelec officials in the P1.3 billion poll automation contract which was voided by the Supreme Court for being tainted with anomalies, and to recommend their prosecution and impeachment if warranted by evidence.

The Constitution does not say that impeachment must first be resorted to so that erring Comelec commissioners may be subjected to the penalties of the law, he said.

I suggest that since the Comelec commissioners violated the law in the Mega Pacific poll automation contract, they may be made immediately accountable because they are not above the law.

Pimentel said American jurisprudence has upheld the principle that constitutional officials can be investigated and prosecuted without first being impeached; as shown in the following judicial rulings:

1. The US Supreme Court held in Morrison vs. Olson case in 1988 that the Independent Counsel Act that authorized the investigation and prosecution of executive officials, including the President, was constitutional.

2. In the US vs. Isaac case, the Supreme Court upheld that the Vice President and all civil officers were not immune from the judicial process and that removal need not precede indictment.

3. In several other cases, the US Supreme Court declared that courts have especially held that a federal judge (or an impeachable officer) is indictable and may be convicted prior to removal from office (through impeachment). It said that impeachable officials are not immune from criminal law.

Pimentel also cited judicial precedents in the Philippines to disprove the claim of Chairman Abalos and his fellow election commissioners that the Ombudsman could not exercise jurisdiction over them while they are in office:

1. The Supreme Court, in a decision on Aug. 15, 2003, declared that the Comelecs notion that impeachable officers cannot be held in contempt is palpably incorrect or at least misleading.

2. The high tribunal ruled that lawmakers (who are constitutional officials) are not totally exempt from criminal proceedings. The court cited past rulings in the De Venecia vs. Sandiganbayan, People vs. Jalosjos, Santiago vs. Sandiganbayan, Pardes vs. Sandiganbayan and Martinez vs. Morfe cases.

Pimentel also said that in the Bagong Bayani-OFW Labor Party vs. Comelec and the Bayan Muna vs. Comelec cases, the Supreme Court found Chairman Abalos and Commissioners Luzviminda Tancangco, Rufino Javier, Ralph Lantion and Mehol Sadain guilty of contempt of the high tribunal for willfully and knowingly issuing resolutions degrading the dignity of the court and brazen disobedience of its lawful directives.

In these cases, the senator said, the Supreme Court rejected the suggestion of the Comelec officials that they should not be cited for criminal contempt because they are impeachable officials.

In fine, they argued that before they could be held for criminal contempt by the Supreme Court, they should be found guilty in impeachment proceedings, Pimentel said. The Supreme Court repudiated their stand as utter nonsense.

Pimentel, one of the complainants in the cases against the Comelec officials in connection with the MegaPacific deal, also asked the Ombudsman to prevent the issuance of clearances to the respondent Comelec commissioners for purposes of retirement or resignation.

In this regard, he said the Ombudsman should officially request the Commission on Audit not to issue such clearances, which are required before retirement or separation pensions and other benefits can be paid.