‘Ombudsman decisiona case for Ripley’s’ - Malaya 10.04.2006

Gutierrez urged to resign for clearing Comelec in P1.3B computer scam

BY WENDELL VIGILIA AND DENNIS GADIL

THE United Opposition yesterday said President Arroyo should consider submitting the decision of Ombudsman Merceditas Gutierrez clearing officials implicated in the P1.3 billion Mega Pacific poll automation deal to Ripley’s Believe It or Not in the category of "how not to fight corruption."

Rep. Alan Peter Cayetano (NP, Taguig-Pateros), a deputy minority leader, said the Arroyo administration "has mastered the art of cover-up, making it appear that it is but a regular policy of the government."

"Nuong eleksyon, may dayaan pero wala naman daw nandaya. Sa fertilizer scam, may overpricing pero wala naman daw nag-overprice. Ngayon naman may kaso pero walang kriminal. This is the government’s best entry to Ripley’s Believe It or Not," he said.

Sen. Joker Arroyo said the "outrageous" ruling was either part of a cover-up or of a collusion.
"This has never happened in the past," he said. "What is sacrosanct about the Comelec? This was a compromise to save the souls of Comelec officials," he said.

Senate minority leader Aquilino Pimentel warned that the Ombudsman might have inflicted a "mortal wound" on itself.

Pimentel said it is outrageous and unthinkable that the Ombudsman would come up with a decision on a patently flawed transaction that exonerates the Comelec and Mega Pacific executives who were responsible for it.

In a 52-page resolution, the anti-graft body on Monday reversed its June 28, 2006 ruling that recommended the indictment of five Comelec officials and six incorporators of Mega Pacific eSolutions for graft and the filing of impeachment charges against Comelec Commissioner Resurreccion Borra.

The latest ruling is also in sharp contrast to the June 23, 2005 resolution of a panel of Ombudsman graft investigators that recommended the filing of impeachment complaints against Chairman Benjamin Abalos and Commissioners Borra, Mehol Sadain and Florentino Tuazon on the grounds of graft and corruption and betrayal of public trust and held retired Commissioners Luzviminda Tancangco and Pablo Ralph Lantion liable for two counts of graft each.

The panel of investigators headed by Overall Deputy Ombudsman Orlando Casimiro said it "cannot find an iota of evidence to show that the acts of BAC (bids and awards committee) in allowing MPC (Mega Pacific Consortium) to bid and its subsequent recommendation to award Phase II Contract to MPC constitute manifest of (sic) partiality, evident bad faith or gross inexcusable negligence."

Cayetano said Gutierrez, a classmate of presidential spouse Jose Miguel Arroyo, should resign.

Cayetano said that by abetting and covering up graft and corruption, the Arroyo government is destroying democratic institutions.

Rep. Joel Villanueva of the party-list Citizens Battle Against Corruption said that by absolving election officials from the "computerization scam," the Ombudsman has made it appear that the SC erred in voiding the contract and in ordering the anti-graft body to undertake an investigation.

The Supreme Court in January 2004 voided the contract for the supply of 1,991 counting machines, citing irregularities in the composition of the consortium and violations of the bidding rules.

"Ang sitwasyon ngayon tuloy ay may krimen pero walang kriminal. Only in the Philippines," Villanueva said.

House minority leader Francis Escudero, UNO secretary general, said: "There seems to be inconsistency and conflict between the SC view, decision and opinion on the matter compared to Ombudsman. Only one of them can be correct and there’s no way that both decisions can stand side by side."

Senator Arroyo said that never in his long years of practice as a lawyer has he seen the Ombudsman effectively overturning the ruling of the Supreme Court.

The Senate blue ribbon committee chaired by Arroyo conducted a probe and found out that the bidding rules were rigged to favor one single bidder, Mega Pacific.

The committee also demanded the resignation of Comelec officials involved in what it said was an anomalous transaction.

OUTRAGEOUS, UNTHINKABLE

The committee said the contract was awarded to Mega Pacific "despite the fact that the
machines failed the technical test of the Department of Science and Technology."
Sen. Franklin Drilon said the Ombudsman ruling should be questioned before the Supreme Court.

"The Ombudsman doesn’t have the last say. It is the Supreme Court," Drilon said.

Pimentel, one of the complainants in the Supreme Court case along with Kilosbayan of former Senate president Jovito Salonga, said there is neither rhyme nor reason behind the ruling.
"This is ridiculous but also saddening. Perhaps this is the first time that a lower authority (the Ombudsman) has overturned the verdict of the highest court of the land," he said.

Pimentel said the Ombudsman’s recommendation runs counter to the reported findings and
recommendations by its Field Investigation Office (FIO).

The FIO’s recommendations, submitted to Gutierrez on Sept. 4, 2006, recommended that all the sitting Comelec commissioners at the time the voided poll computerization contract was signed be held criminally, administratively and civilly liable .

The FIO likewise recommended that officials of the Comelec bids and awards committee, namely Eduardo Mejos, Gideon de Guzman, Jose Balbuena, Lamberto Llamas and Bartolome Sinocruz Jr., be held for graft.

The FIO made this recommendation based on its findings that the bidding process was tainted with irregularity; Mega Pacific did not have the required three-year track record for the project; the automated counting machines turned over by Mega Pacific failed tests aspects and the Mega Pacific contract was grossly disadvantageous to government.

Pimentel said the legal battle is far from over because the complainants can file a motion for reconsideration with the Ombudsman. If the Ombudsman affirms its ruling, the case can be appealed to the Court of Appeals and it may reach the Supreme Court.

Salonga in a press statement deplored the Ombudsman’s decision

"The brazen somersault, led by recently appointed Deputy Ombudsman Orlando Casimiro on the Comelec Modernization Scam, is an unthinkable reversal of the oft-quoted, widely applauded decision penned by then Justice (Artemio) Panganiban in January 2004; a challenge to the unanimous findings of the Senate blue ribbon committee, headed by Senator Joker Arroyo, and approved by the whole Senate in the plenary session of December 12, 2005; and an inept, obscene attempt to cover up the truth, the facts and the evidence stated only a few days ago in the Ombudsman Field Investigation Report of highly respected Maria Elena Roxas, Graft Investigation and Prosecution Officer II."

"Ombudsman Merceditas Gutierrez, who had assured the media at the time she was appointed she would not be another puppet and that she would be ‘merciless,’ must not hide behind the pants of Casimiro, her own appointee. She must make a clear choice between Casimiro, on one side, and the Supreme Court, the Blue Ribbon committee, the whole Senate and Maria Elena Roxas, on the other. If she upholds what Casimiro has just done – with ‘grave abuse of discretion amounting to lack of jurisdiction’ – absolving all the Comelec officials, the Mega Pacific Consortium and e-Solutions, she should be prepared to argue her own case in the Supreme Court, in the Senate, before her dissatisfied subordinates in the Office of the Ombudsman, and finally, in the court of public opinion." Salonga said.

SC RULING STANDS

SC spokesman Ismael Khan Jr. said the SC’s ruling nullifying the computerization contract stands.

"The Court’s decision voiding the automation contract is for its finding of an irregularity, which is a matter separate from the culpability aspect. Kaya binigyan ang Ombudsman ng directive to determine probable cause," he said.

Khan said Kilosbayan and Pimentel may raise the matter before the SC "if they think there is grave abuse of discretion on the part of the Ombudsman."

Former Comelec chairman Christian Monsod said the poll body might feel vindicated by decision but it would not salvage its tainted credibility.

"I think it is an attack on the Supreme Court decision. How can all the accused come out with a clean bill of health? There is no administrative or criminal liability whatsoever?" he added.

Executive Secretary Eduardo Ermita said the Palace did not influence the Ombudsman’s decision.

"There’s no such thing. That’s an independent action by the Ombudsman," he said in a media briefing.

Justice Secretary Raul Gonzalez said Malacañang has no jurisdiction over the Ombudsman, which is an independent constitutional body.

Gonzalez said anybody can question the decision of the Ombudsman before the SC.He said the automated counting machines could not be used for the 2007 elections because the SC has already ruled against it. – With JP Lopez, Evangeline de Vera, Gerard Naval and Regina Bengco