POSTSCRIPT / October 8, 2006 / Sunday


Philippine STAR Columnist

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Is Lady Justice blind -- or just blindfolded?

OVERSTEPPING: The Office of the Ombudsman is not the graft court Sandiganbayan above it. The Ombudsman’s job is to investigate and determine if there is probable cause or prima facie evidence for filing charges with the Sandiganbayan.

Their relationship is much like that of the prosecutor’s office (formerly called the fiscal’s office) and the courts. The prosecutor investigates complaints and then files the charges with the proper court if it finds prima facie evidence.

It is not the function of the Ombudsman (or the prosecutor) to make a full and final determination of the guilt or innocence of the accused. That is a function reserved for the Sandiganbayan (or the court), when the case is filed with it.

When the Office of the Ombudsman absolved all Commission on Elections officials who had approved the purchase of some 2,000 vote-counting machines for around P500,000 apiece, it was obviously looking — as if it were a court — for evidence of wrongdoing beyond reasonable doubt.

In its sweeping absolution of all Comelec officials and those of the counting machines’ supplier — the Mega Pacific eSolutions Inc. — the Ombudsman said it did not find such evidence.

Lady Justice is depicted as blindfolded. Maybe it really is.

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GLARING POINTS: If the Ombudsman just stuck to its circumscribed assignment of looking for probable cause or prima facie evidence of wrongdoing — and not proof beyond reasonable doubt — it would have done a fine job without difficulty, because there was evidence of errant conduct all over the place.

But the Ombudsman acted like it was the Sandiganbayan. For whatever reasons, it decided to render a sweeping not-guilty judgment in the absence, in its perception, of evidence of guilt beyond reasonable doubt.

Having arrogated unto itself the higher-level function of the Sandiganbayan, the Office of the Ombudsman personified by its chief Merceditas Gutierrez is now reaping the whirlwind of criticism.

So glaring was the Ombudsman’s suspicious behavior that even non-lawyers who have followed the P1.3-billion scandal have been emboldened to comment on legal matters normally discussed only by lawyers.

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PLAYING BLIND: Indeed, one need not be a lawyer to be able to see these points that the Ombudsman missed in its suspicious haste to clear Comelec officials and their suki suppliers:

  1. The Comelec awarded the P1.3-billion contract to Mega Pacific eSotlutions Inc. although this firm that was hurriedly put together 11 days before the bidding had no track record on electronic voting. It was not even a bidder! It was just a namesake of Mega Pacific Consortium, another firm that had won the bid but not the contract.
  2. There is no valid contract to serve as basis for eSolutions to deliver almost 2,000 automated counting machines that had been described by the Supreme Court as susceptible to mass fraud and lacking the needed software.
  3. There is no contract to justify Comelec’s paying around P1 billion for the computers, or P500,000 apiece, which many infotech technicians say is an overprice.
  4. Further, there is no legal justification for the Comelec to now spend some P3.9 million a year to warehouse the computers that it, or the government, does not own and should not handle or use.

The Ombudsman claimed it did not see the above glaring points, among many other circumstances that constitute prima facie evidence of wrongdoing. Ano ba yan?

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SENATE RUCKUS: The Senate has become a livelier beat for media coverage. The chamber has perked up with the heated exchanges of senators over some firms related to the business of satellite communications fetching multibillions for the owners.

Sen. Juan Ponce Enrile took a lot of flak with his recent outbursts as he tangled with Sen. Jamby Madrigal (who once broke into tears when the former Marcos defense secretary went after her for some remarks) and with the Sensate Minority Leader Aquilino “Nene” Pimentel over the anti-terrorism bill.

But Enrile had many heads shaking when he dressed down officials of the Philcomsat Holdings Corp. during a recent Senate investigation. Many observers saw him as virtually lawyering for their rival group at the Philcomsat and the Philippine Overseas Telecommunication Corp., where he has personal interests.

The government owns 40 percent of POTC. Philcomat in turn owns 82 percent of Philcomsat Holdings Corp. The government controls 40 percent of POTC and Philcomsat as they have been sequestered by the Presidential Commission on Good Government.

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HOT DOCUMENTS: It is an open secret, however, that the board at the PHC, on one hand, and that at Philcomsat and the POTC, on the other, are at odds with each other over questions of who between them should lead the boards of the respective companies.

The PHC board is headed by Enrique Locsin and Ramon Nieto, while the Philcomsat and POTC boards are led by Victor Africa and Erlinda Ilusorio Bildner. The Locsin-Nieto bloc had questioned the election of the Africa-Bildner group into the Philcomsat and POTC boards as it accused them of resorting to irregular means to clinch the elections.

The SEC and the Supreme Court had already ruled in favor of the Locsin-Nieto group, but for reported machinations carried out by the rival group itself, they have yet to take over Philcomsat and POTC.

Just last month, the Senate Committee on Government Corporations and Public Enterprises looked into the alleged mismanagement of POTC, Philcomsat and PHC, including the supposed mismanagement of their funds.

But instead of questioning all of them regarding the issue, Enrile limited the questioning to the representatives of PHC, even confronting them on PHC’s financial records, which were reportedly obtained through a break-in at the PHC office.

By confronting the invited resource persons with what looked like documents illegally obtained from the PHC, Enrile appeared to have violated his undertaking to inhibit himself from the proceedings.

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ENRILE BEHAVIOR: Some senators and businessmen deplored Enrile’s behavior and attitude toward PHC. They pointed out a conflict of interest marring the Senate investigation, which was the very reason why he inhibited himself in the first place.

Enrile is an incorporator of Philcomsat and his daughter, Katrina, is part of the rival Africa-Bildner board at the corporation. Enrile’s family reportedly owns 6.6 percent of Philcomsat.

For this reason, former senator Rene Saguisag, who represented PHC directors Luis Lokin Jr. and Philip Brodett, questioned his posturing during the investigation. Enrile’s behavior, according to Saguisag, may be construed as protecting his family’s interests at the expense of the rival group.

In a seven-page letter to Senate President Manuel Villar, Saguisag asked him to look into Enrile’s demeanor. He said that Enrile’s virtually dressing down PHC officials with the use of illegally obtained documents was tantamount to lawyering for POTC and Philcomsat.

This is a prohibited act of a senator under the Constitution, he said, citing Section 14 of Article 6 prohibiting any member of the Senate to act as lawyer for anyone, especially where his family has a pecuniary interest.

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ARREST WARRANTS: In his letter, Saguisag asked that the chamber “determine whether it is good and proper for Senator Enrile, the Senate, the nation, and history to allow the spectacle of having a brilliant and aggressive Senator-lawyer protect his family’s interest, asserting in one breath to have recused himself, and then proceeding to take part anyway, and defaming and ripping apart those concerned before a nationwide radio-TV audience largely unable to defend themselves.”

Saguisag also observed how some people behind the investigation are seemingly railroading the Senate investigation to discredit PHC officials. He said his clients have been issued arrest warrants by the Senate for not attending the hearing. Both, however, swear that they did not receive any invitation.

It is not proper for the Senate to look into the row at the PHC, Philcomsat and POTC, Saguisag added, because aside from being an internal affair, public discussion of it violates the sub judice rule. There are scores of cases pending in various courts against the officers of the three companies, involving the same issues.

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(First published in the Philippine STAR of October 8, 2006)

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