Wednesday, November 23, 2011

Prosecuting corrupt former presidents

Former Philippine President Gloria Macapagal-Arroyo behind bars
on charges of electoral fraud filed by the Department of Justice and
the Commission on Elections.
Prosecuting sitting presidents or former ones could be the biggest challenge that faces democracy. 

It is much easier for an illegitimate government, one that has been installed by a military coup for example, because of the risk posed by a former head of state. Illegitimate governments often consider their predecessors as threats. This is also true in cases where governments had been toppled by a rebellion. A recent example is Egypt where its president, Hosni Mubarak, was arrested and brought to trial after thousands of protesters brought down the government. The death of Muammar Gadaffi in the hands of rebels and protesters pre-empted his prosecution and public trial for crimes against the Libyan people.
With the fall of Hosni Mubarak, center, a military council led by Field Marshal
 Mohamed Hussein Tantawi, left, has run Egypt. Photo courtesy of NYTimes and
 Aladin Abdel Naby/Reuters.Click link to view "Opening moments from Mubarak's
But it’s never easy in a democracy, as oftentimes it’s messy, to bring a sitting or former president to public trial for crimes or offences against the state. Ordinarily, a sitting president is constitutionally immune from ordinary prosecution but is not the moment he or she leaves office, an outcome that can be obviously hastened by impeachment.

The issue is not the president personally but the institution of the presidency. Former U.S. President Bill Clinton was impeached by Congress but he survived and finished his term of office. Philippine former president Joseph Estrada was not as lucky. Although not impeached, Estrada was found guilty by the Sandiganbayan for committing economic plunder and eventually pardoned by his successor, Gloria Macapagal-Arroyo. Arroyo, who stepped down from the presidency in 2010, is now the defendant in a suit filed against her by the Philippines’ tandem of Department of Justice and Commission on Elections for alleged electoral fraud in 2007.

Other past presidents have been sued in court but these actions have never been successful. Augusto Pinochet is an example of how the prosecution of a former president might unfold. In 1998, the one-time dictator of Chile, then eighty-two years old, was seized in Britain on a Spanish warrant of arrest. Pinochet was charged with several crimes alleged to have been committed during his seventeen years in power—including torture, illegal detention, and forced disappearances. He was placed under house arrest in an English mansion while waiting for the outcome of several months of complex proceedings. The British determined that Pinochet was medically unfit to stand trial and returned him to Chile where he eventually died before he could get tried for his crimes.

But this peaceful process would be difficult to replicate with an American political figure. Unsuccessful attempts were made to sue former President George Bush and his vice-president, Dick Cheney, for waging an illegal war in Iraq and the illegal use of torture, including waterboarding. It would be likewise equally difficult to expect the United States to extradite former leaders who were granted political asylum in the country and regarded as friends of the American government. This probably explains why the Philippine government at that time did not exert serious efforts to have Ferdinand Marcos extradited so he could be tried for his crimes However, a civil suit against Marcos was filed in Honolulu for damages by victims of his martial law regime but the judgment against him has not been enforced to date.

There are other recent examples of suits brought against former heads of states. Former Brazilian President Luiz Inacio Lula da Silva has been sued by federal prosecutors in Brazil, charging him of misusing public funds in sending more than 10 million letters to retirees telling them about low-interest payroll loans from Banco AMG.

Family members and survivors of the 1997 attack in the Mexican state of Chiapas that killed 45 indigenous people sued former President Ernesto Zedillo for his alleged complicity in the massacre.

The United Church of Christ in the Philippines has sued former Philippine President Gloria Arroyo on charges that security forces under her control killed and tortured at least six members of the church.

Former Philippine President Joseph Estrada, together with Senator Panfilo Lacson and others were sued before a California Court for compensatory and punitive damages for the killing of Salvador “Bubby” Dacer and his driver Emmanuel Corbito in November 2000, under the Alien Tort Claims Act and Torture Victim Protection Act, both American statutes.

A Chilean court has allowed a lawsuit to proceed against the former president, Michelle Bachelet, over failings in Chile's tsunami warning system during the 2010 earthquake. Victims of the tsunami have accused Ms. Bachelet and other senior officials of “denial of assistance” over the tsunami which struck after the 8.8 magnitude earthquake.

The relatives of 11 French engineers killed in a 2002 bombing in Pakistan have brought charges against former President Jacques Chirac, claiming he ignored risks of reprisals against French personnel by stopping bribe payments to Pakistani officials.

Trivial and serious suits can be brought against former presidents but the likelihood of their success is very small. When Barack Obama was asked in August 2008 during the presidential campaign if he would seek to prosecute officials of the Bush administration for the illegal use of torture during the Iraqi war, he offered a very guarded response. He said, “I would not want my first term consumed by what was perceived on the part of the Republicans as partisan witch-hunt, because I think we’ve got too many problems we’ve got to solve.” His adviser similarly warned that pursuing prosecutions of Bush administration officials would generate a cycle of partisan recriminations. This is a plausible explanation why prosecuting former presidents has never been commonly resorted to.

But creating a precedent and thereby opening a floodgate of future suits against former presidents was not foremost in the mind of Philippine President Benigno Aquino III when he ordered the laying of charges against his predecessor. Upon succeeding Gloria Arroyo as president of the republic, Noynoy Aquino’s first major decision in office was to create a Truth Commission that would investigate and prosecute Gloria Arroyo for corruption during her years in power. That was his campaign promise and he wanted to keep his word.

However, Noynoy Aquino was tripped by the Supreme Court which declared his Truth Commission unconstitutional on the ground that it violated Ms. Arroyo’ s right to equal protection under the Constitution. It took Noynoy Aquino and his administration more than 500 days to regroup and devise another scheme to go after Arroyo, this time charging her of election fraud. The Supreme Court might as well rebuff Noynoy Aquino again for hastily pulling out an arrest warrant against Arroyo that contravened a previous order by the High Court to vacate a temporary order restraining Arroyo from leaving the country for medical consultation abroad.
Former Philippine President Gloria Macapagal Arroyo is seen with a neck brace
 as she  arrives on a wheelchair for a flight to Hong Kong at the Ninoy Aquino
 International  Airport where she was eventually  prevented from leaving. Click
link to view "Arrest warrant issued for former Philippine President Gloria Arroyo,"
This is looking more and more like Noynoy Aquino’s personal mission to prosecute Gloria Arroyo than anything else. That he was willing to sidestep the legal niceties is proof of his rabid determination to accomplish his election promise, although not in pursuit of those guilty of corruption. But then, electoral fraud might as well be on the same plane as corruption, because this was equally an abuse of power in order to stay in power.

No one is above the law, and that applies to President Noynoy Aquino, his predecessor former President Gloria Arroyo, and to their legal minions. Arroyo’s day of reckoning could have been hastened if only Congress decided to impeach and remove her on the same charges of corruption and electoral fraud while she was still in office.

Once out of office, former President Arroyo is still accountable to law and to the country. The question though is how, when, and by whom.

After Richard Nixon resigned from the U.S. presidency following the Watergate scandal, President Gerald Ford pardoned Nixon for all actions committed during his presidency. Ford did not find it beneficial to the country that a former president be brought to trial. To President Ford, trying Nixon was less important than preserving the tranquility of the nation by avoiding a divisive prosecution.

Noynoy Aquino does not have this kind of dilemma. He has the popular support of the Filipino people. All he has to do—and this means his own legal advisers—is to ensure that Arroyo’s prosecution is within the bounds of the law. President Aquino’s actions, so far, appear capricious and merely vindictive, thus he could be wasting the enormous political capital the people have invested by electing him as president.

In a democracy, the decision to prosecute a former head of state is ultimately a balancing act between the retributive and utilitarian functions of the law. The retributive function assumes that the law should be applied equally, regardless of rank and privilege. When presidents engage in misconduct and violate the law, they betray public trust. They place their office in disrepute and invite disrespect of the law. Anyone who steals or abuses public funds deserves to be arrested and prosecuted. And there should be no impunity because no one is above the law.

On the other hand, there is nothing to be gained politically in prosecuting a former president. The prosecution of one head of state may lead to divisiveness, and may dilute the quality of politicians if succeeding leaders fear prosecution for actions taken while serving the country.

There appears to be a huge public outrage over Gloria Arroyo’s abuse of power in plundering the country’s economy and in keeping her in power by sabotaging the electoral process. It will serve the country well, and create an effective institutional deterrent for future politicians, to prosecute Gloria Arroyo for her egregious violations of the law. If only President Noynoy Aquino could stay within the parameters of the law and not let vindictiveness or vengefulness become the principal driving force for his actions.

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