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Ombudsman ignored own investigator’s report holding Comelec officials liable

Posted by: Avigail Olarte | October 3, 2006 at 10:24 pm
Filed under: Comelec Watch, In the News

AFTER a two-year-long investigation, the Office of the Ombudsman yesterday finally released its findings on the P1.3-billion poll automation deal, absolving all officials involved in the controversy of any wrongdoing.

In a 52-page resolution, the anti-graft body cleared the Commission on Elections (Comelec) chair Benjamin Abalos, five other poll officials, and executives of the Mega Pacific eSolutions Inc. (MPEI) of any criminal and administrative liability.

Many were surprised with the ruling as it was a complete turnaround from the June 28, 2006 report, which recommended the indictment of Comelec officials and eight Mega Pacific officers and that impeachment charges be filed against elections commissioner Resurreccion Borra.

But what may not be known to many and what newspapers failed to report, is that on September 4, the Ombudsman’s Field Investigation Office (FIO) submitted a report to Ombudsman Merceditas Gutierrez, recommending “all sitting Comelec officers” at the time the anomalous contract was signed, a Department of Science and Technology official, and six Mega Pacific incorporators and stockholders, “be held criminally, administratively, and civilly liable in connection with the voided contract.”

“The report was totally opposite (from yesterday’s ruling). The question is, what happened to that report? Was Gutierrez aware of it and what was her decision?” raises former Comelec commissioner Christian Monsod. He says Gutierrez must be “very transparent on the findings of the opposing panel.”

According to the report submitted by Atty. Maria Olivia Elena Roxas, FIO graft investigator and prosecutor, excerpts of which were published in Solita Collas-Monsod’s column last Saturday, records show that:

• The bidding process was tainted with irregularity (The Comelec en banc, for example, awarded the contract to Mega Pacific Consortium but the contract was signed by MPEI on behalf of MPC).

• The MPC or the MPEI never complied with the requirements of the Request for Proposal and thus, were ineligible.

• The automated counting machines’ hardware and software, when they were tested by the DOST prior to the award, did not pass the required accuracy rating criterion.

• The contract entered into by MPC or MPEI was grossly disadvantageous to the government (an example is the overpayment of P62 million from the use of wrong foreign exchange rate).

“Crucial and glaring violations were committed by Comelec officials through all the phases of the bidding process. From the determination of the eligibility to the evaluation of the proposals until the final deliberation of the award. It cannot be helped but noticed that they acted in unison pointing to a well-defined conspiracy to favor the MPC or MPEI,” Roxas said.

“The presence of conspiracy among the Comelec officials was likewise apparent in that not one single official or officer questioned the illegal and irregular actions attendant to the bidding process. They obviously turned a blind eye to the questionable transaction probably because of Chairman Abalos’s close links with MPEI key officers,” she added.

Roxas explained that records show Abalos’s “close and personal ties” with the couple Tansipek — the two principal incorporators of MPEI; Abalos is also reportedly a wedding godfather to a child of the Tansipeks.

In the report, Roxas concluded: “The issues to be addressed are simple enough. Was there an illegal transaction? Should respondents be held responsible? To these questions, given the established facts and the evidence presented by the government, there can only be one answer and that is the affirmative. Clearly, all the respondents should be held criminally, administratively, and civilly liable.”

Over three weeks after the Roxas report, the special investigating panel chaired by Overall Deputy Ombudsman Orlando Casimiro, however said it “cannot find an iota of evidence to show that the act of the BAC (Bids and Awards Committee) in allowing MPC to bid and its subsequent recommendation to award Phase II Contract to MPC to constitute manifest partiality, evident bad faith or gross inexcusable negligence.”

With the recent ruling, Monsod further said the Office of the Ombudsman “effectively repudiates the Supreme Court” which declared in 2004 the Comelec-Mega Pacific contract as null and void.

“How can everybody be off the hook when the SC said the contract is legally void?” says Monsod.

The Supreme Court ruled that the Comelec awarded the contract to purchase 1,991 counting machines “with inexplicable haste, without adequately checking and observing mandatory financial, technical, and legal requirements.”

The High Court also ordered the Ombudsman to determine the criminal liability, if any, of election officials and members of the consortium.

But the Ombudsman argued in its recent ruling that “the finding of probable cause must…be supported by a clear and convincing evidence of malice, bad faith, bribery, manifest impartiality, unwarranted benefit and undue advantage. In this case, none has been presented.”

Among its other findings were:

• The bid offer submitted by the Mega Pacific Consortium was the lowest and most responsive and it provided for a nationwide coverage.

• The automated counting machines passed the mandatory key requirements when tested by the DOST with a 100-percent accuracy rating.

• There was no overpricing.

In its June report, however, the Ombudsman said there were “factual findings” that could be used in an impeachment action against Borra, head of the second phase of the automation project.

The Ombudsman at that time also recommended further investigation of Abalos, Commissioners Florentino Tuason and Mehol Sadain, and retired Commissioners Ralph Lantion and Luzviminda Tancangco, and the filing of charges against members of the Comelec’s Bids and Awards Committee.

“The Comelec reversed (its earlier decision). Are they saying that there was an earlier misappropriation of funds? Or that they did not get their facts correct (the first time)? The case has been there for two years how can they be so wrong on the appropriation of facts?” Monsod says.

Akbayan party-list Rep. Etta Rosales also says the recent ruling “raises questions on the integrity of the Ombudsman to do its job in investigating anomalies of public officials given its total reversal of its initial recommendations.”

Ma. Corazon Akol, board member of the Information Technology Foundation of the Philippines, one of the petitioners in the Comelec-Mega Pacific case, also said that the Ombudsman’s decision to hold no one liable in the poll contract controversy “is a total letdown.”

“It is clear that the anomaly was committed. If we let something like this pass, there’s no fear of the law now. This is sending the wrong message to everyone,” she told gmanews.tv in an interview.

As early as May, Senate minority floor leader Sen. Aquilino Pimentel Jr. already said that “unless the case is resolved, the stigma of graft will continue to hang over the Comelec that will render it ineffective in performing its constitutional duties and in safeguarding the integrity of the electoral process.”

In December last year, the Senate unanimously approved the blue ribbon committee’s findings, which found the said Comelec officials liable for prosecution for the “manipulated bidding (of the Comelec’s election computerization system) done in flagrant violation of the law and with utter disregard for the public interest.

Pimentel said he was “reliably informed” that then Ombudsman Simeon Marcelo promised to sign the resolution against the respondents before his resignation last November. Marcelo however failed to do so.

Gutierrez took over on December 2005. Three months after, the Supreme Court ordered the Ombudsman to hasten its investigation on the liability of Comelec officials and was given until June 30 to submit its report. A partial report was submitted in time for the deadline; after which, the Casimiro panel held 12 public hearings to further investigate the matter.

Comelec spokesperson James Jimenez, in an interview with reporters, said the poll body was “vindicated” with the Ombudsman’s findings.

“This is what we have been saying all along, that there is no irregularity (in the acquisition of the ACMs,” he said, adding that Comelec will still have to decide on what to do with the machines since “it is already too late to use them for the 2007 elections.”

Comelec, Jimenez said, will also have to wait for the Supreme Court’s decision before it can plan its next move.

Meanwhile, Pimentel, who is also a complainant, said they will be filing a motion for reconsideration before the Office of the Ombudsman. They will then elevate the matter to the Court of Appeals, which will allow complainants to argue the case before the Supreme Court.

This entry was posted on Tuesday, October 3rd, 2006 and is filed under Comelec Watch, In the News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

12 people have left comments

The Ombudswoman is really living up to GMA’s expectation. She is proving to GMA that she was the right choice for the job.

Perez money laundering case
Bolante Fertilizer scam

rich_ong wrote on October 4, 2006 - 12:53 am | Visit Link

mecy, mercy. there’s your moment of thruth for mareng winnie and the inquirer. indict the comelec officials? ok lang kayo? hellooo Garci! at hello rin sa isa diyan… try defending this one.

jr_lad wrote on October 4, 2006 - 12:21 pm | Visit Link

vindicated daw o. mercy is merciful. will the SC be merciful too?

jr_lad wrote on October 4, 2006 - 12:38 pm | Visit Link

Impeach the Ombudsbitch?

conway wrote on October 4, 2006 - 4:33 pm | Visit Link

Hi Alecks! I am currently doing a research on the Election Modernization project of the COMELEC and I need some data on what have been automated so far or can i call it “milestones” in the attempts at modernization? Can you help me with that?

Also I wonder if you can post PCIJ’s corruption exposes (articles you have done on corruption since 1998) and what the concerned agencies have done so far to address them after the exposes. In that way we can really see how we have been faring in our fight against corruption in this country. What do you say to that?

Thanks so much! Will be waiting for that post.

shiekcez wrote on October 4, 2006 - 6:52 pm | Visit Link

“When Mercy seasons justice….” ( “Merchant of Venice” with apologies to Shakespeare)

Can the Supreme Court review the findings of the investigating panel of the Ombudsman and affirm/reverse it?

The process at the Ombudsman’s level is not yet done because Merceditas has to approve those findings. The Ombudsman usually just signs a reference slip approving the findings, or if it is a disapproval, the Ombudsman can also sign a reference slip and check the box that says “disapproved” in which case he/she again tosses it to another investigating panel. In the case of Aniano Desierto, there had been times when he did not even deign a small paragraph explaining why he was reversing, he would just tick off “disapproved” and assign another investigator.
The Supreme Court at its en banc might choose to wait for Merceditas to sign the investigation report (and that was why she has kept quiet.).
Why has Mercy been too merciful on those who paid off P1.2 billion in public funds on machines that cannot now be used? Since the Supreme Court two years ago had ordered an investigation to find criminal liability, you can be sure that the highest court of the land would have her back if she touched the untouchables, and would back her up if she finds probable cause against the biggest in the Comelec. If the Supreme Court is backing you up, what are you afraid of?
What is Mercy afraid of?
But maybe it is not fear but ambition. Lawyers in the prosecutorial arm of government are career officials, and apparently, Mercy, having come from that mode, is still more keen on career advancement rather than being merciless on crooks. And those on the career path, whether they are in the Sandiganbayan bench or the Ombudsman’s office, are looking at a career in the highest levels of the judiciary, or, eventually, the Supreme Court.

Where else will they go? They’re not inclined to run for office and be like the politicians they should be prosecuting. It is no secret that the Sandiganbayan justices and Ombudsman Ani Desierto had themselves nominated in the JBC to be shortlisted for the Supreme Court. (in the case of Ani, some smart aleck lawyer found out he was disqualified

chattel wrote on October 4, 2006 - 7:18 pm | Visit Link

(continuation.sorry.)
(in the case of Ani, some smart aleck lawyer found out he was disqualified on account of, I think, age or years or service or retirement. )

And it is Gloria who appoints and she’s there till 2010.

Who knows, the Supreme Court justices today might find themselves seated next to Mercy in the bench in the not too distant future.

chattel wrote on October 4, 2006 - 7:31 pm | Visit Link

[...] APART from calling the Office of the Ombudsman’s resolution absolving all officials involved in the P1.3-billion poll automation deal a “brazen somersault,” former Senate President Jovito Salonga also says there was “an inept, obscene attempt to cover up the truth” when the anti-graft body ignored a “contrary report” filed by its own field investigation office (FIO). [...]

INSIDE PCIJ » Salonga on Ombudsman ruling: ‘Obscene attempt to cover up the truth’ wrote on October 4, 2006 - 10:35 pm | Visit Link

Hay naku… naku… nakuuuuuu ….!!!! HOW LOW CAN WE GO? ANG MGA ‘UTANG INANG ITO HINDI TITIGIL HANGGA’T HINDI SAGAD-BUTO, O HABANG SI GLO AY NASA PWUESTO…!!!

Ang desisyong ito ay isang insulto, hindi lang sa Korte Suprema at Senado, kundi sa lahat ng Pilipino. Putaktihin sana kayo at nawa’y ito’y maging multo, sa mga nakaupo sa administrasyong ito.

Nguni’t sa kabila ng bulok na desisyong ito, ayon sa isang tsonggong may pangalang Prospero ay tama ito, dahil diumano, ang Ombudsman kuno, ay hindi sakop ng Korte Suprema kuno.

Hoy Tsonggo, saan mo nakuha ang interpretasyon mo, dahil kahit grade 1 ay alam ito, na ang huling taga interpreto, ay ang Korte Suprema kung mayrong problemang ganito.

Hindi ka dapat naging kongresista, dahil laging nakakahiya ang ginagawa mo, lalo na sa mga kabayan mong na humahal saiyo.
Ito’y isang pang ebedensya, na ang ating Kamara maraming m’yembro na may utak-aso, humigit kumulang 70 ang bilang nito.

Mga kababayan, mag-isip at mag-munimuni tayo. Dahil sa dami-daming ginawang panloloko, ay tila bagang manhid pa rin tayo. Kikilos ba tayo kung patay na ang kabayo? Hay…. ambot saiyo. (aywan sa inyo in Yaraw)

Ambuot Saimo wrote on October 5, 2006 - 5:48 am | Visit Link

i made a mistake. the papers said Mercy already approved the report. Soweee.

chattel wrote on October 5, 2006 - 3:07 pm | Visit Link

A lot of my energy has been consumed these past few weeks because of this scary thought…. what next when the Ombudsman fails?

The Ombudsman Supplemental Resolution on the COMELEC/MegaPacific case is some strong signal about how Gutierrez just plans to play her game the next seven years. Yes people, she’s got seven years as Ombudsgirl and that’s a scary thought!

I’m no lawyer but I do know a bit about how governance works in this country. We in the Transparency and Accountability Network have been ranting about the Ombudsman Supplemental Resolution. And who shouldn’t when it’s full of disinformation?! Significant facts of the case established in the Supreme Court decision have been deliberately ommitted or mis-presented in the resolution. At the very least, the resolution is confusing the greater public. And the worst thing that you can think about this resolution is that it is part of the government’s general disinformation campaign.

So what now that the Ombudsman is failing the people?

Unfortunately for all of us, there is no alternate solution. Only and only the Ombudsman does the job of ‘protecting the people.’ The Ombudsman is the only agency charged with prosecuting cases against abusive government officials at the Sandiganbayn. When it doesn’t do its job, we’re stuck with that. Sure, we can run and ask for the Supreme Court’s intervention. But what will come out of it is just for the Supreme Court to probably declare an ‘abuse of discretion’ on the part of the Ombudsman. And then… ask the Ombudsman to re-do its job. Again and again, the job that has to be done goes back to Gutierrez by virtue of the agency’s independence. This is Gutierrez’ strongest weapon… she is hiding behind the cloak of independence!

But so they say, impeachment is a solution… NOT with the composition at Congress. Impeachment as a political process is no solution at all… it’s all a numbers game. Forget the evidence, forget the arguments. The deliberations that happen are all for show to the unknowing public. The numbers are determined early on in the game and for the undecided, the convincing usually happens behind closed doors with money on the table. Of course, there are those very few that actually seriously consider the outcome of the proceedings…

So what next?!

My wish is that the Supreme Court will stand its ground and over and over again remind the Ombudsman of its mandate, however embarassing for the latter! The Supreme Court could be accused of overstepping its authority but with constitutional gaps such as this, it is just but called for that the Supreme Court take an active stance in pursuing the purpose and spirit of the Constitution.

When the Ombudsman fails to protect the people, I hope and pray that the Supreme Court gladly assume the role as protector of the people.

http://toixed.blogspot.com

toix_poray wrote on October 31, 2006 - 1:26 am | Visit Link

[...] Today, 2 October 2006, the Ombudsman absolved all respondents involved in the Mega Pacific controversy of all administrative and criminal liabilities. To recall, the Supreme Court threatened to cite the Ombudsman in contempt for its delay in determining the criminal liability, if any, of the public officials (COMELEC) involved in the bungled automation of the 2004 elections (Information Technology Foundation of the Philippines [ITF] vs. COMELEC, G.R. No. 159139 [2004]). The Ombudsman, in the person of the Honorable Ma. Merceditas N. Gutierrez, is now the subject of scathing public criticisms. [...]

The Office of the Ombudsman, mandated as Protector of the People at Philippine e-Legal Forum wrote on October 31, 2006 - 1:48 pm | Visit Link

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