POSTSCRIPT / October 12, 2006 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Ombudsman depends solely on complainants?

WAITING GAME: The line of Ombudsman Merceditas Gutierrez that her office simply waits for complainants, and is solely dependent on whatever evidence they submit, to be able to determine probable cause is startling, even frightening.

Gutierrez told the press Tuesday that her office did not receive any evidence of criminal liability, malice and bad faith in the award by the Commission on Elections of an illegal contract to a firm that was not even a bidder but whose chief is a friend of the Comelec chairman.

On the basis of supposed lack of evidence, the Ombudsman had absolved of administrative, civil and criminal liability Comelec chairman Benjamin Abalos and other officials who had a hand in the award of the P1.3-billion contract for vote-counting machines to non-bidder Mega Pacific eSolutions Inc.

(Mega Pacific eSolutions Inc., which is different from Mega Pacific Consortium that actually won the bid, was hurriedly organized just 11 days before the bidding and had no technical track record in electronic voting.)

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ACTIVE PROBER: Unlike courts that PASSIVELY evaluate and then rule on the basis of the law and the evidence submitted by the parties, the Ombudsman is an ACTIVE investigative body that need not wait for evidence to materialize on its desk.

Acting on leads, it must seek evidence to fulfill its mandate to determine probable cause. It can order persons and documents brought before it. It does not depend solely on what complainants might allege and submit.

The Ombudsman is not a court that must satisfy itself of guilt beyond reasonable doubt. All it needs is probable cause or prima facie evidence, which is less demanding, to file charges before the Sandiganbayan.

It does not even need complainants to pursue an investigation. Motu proprio (“of its own accord”), it can look into reported graft and such wrongdoings of public officials.

The first paragraph of Section 13 of Article XI (Accountability of Public Officers) of the Constitution says that among the duties and functions of the Ombudsman is to:

“1. Investigate ON ITS OWN, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” (CAPITALS mine)

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GRAVE ABUSE: For the Ombudsman to conclude that Comelec officials were innocent just because the complainants were often absent from hearings or did not submit enough proof, is a lame excuse for indolence, if not incompetence.

(Augusto Lagman, president of Information Technology Foundation, one of the complainants, said: “There was never any invitation [to us] to a hearing. If there was one, I don’t know where the Ombudsman sent it,” An opposing party’s not being notified is an old trick.)

Considering the nature of the case and the magnitude of the consequences of the illegal transaction, the claimed zero-evidence and the resulting blanket absolution by the Ombudsman is an instance of GRAVE ABUSE OF DISCRETION.

Even without complainants, with only the prior directive of the Supreme Court for it to determine any culpability, the Ombudsman — an ACTIVE investigative body — should have acted with dispatch and thoroughness. It did not.

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BAD LOGIC: The preliminary investigation should not have depended solely on the aggressiveness or diligence of the complainants. After all, these parties came in only after the Supreme Court already ordered the Ombudsman to investigate.

Is Ms Gutierrez saying that the life or death of a case before her rests solely on the complainant and his proffered evidence? Even assuming the complainants vanished after filing, her office could and should have probed deeper into the case.

The Ombudsman’s bad logic is appalling. Imagine her saying in effect that the Comelec officials involved are innocent just because the complainants did not show up or did not submit enough evidence.

What if something covered the eyes of the Ombudsman so she would not see the evidence of guilt? If dark clouds are covering the sun, that does not mean that it is not there.

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MWSS MESS: At the Metropolitan Waterworks and Sewerage System, some officials are having nightmares looking for technicalities to justify the qualifying of two foreign firms in the bidding for a bulk water project tapping Laguna de Bay.

They need not crack their heads, or ruin their reputation. All they have to do is apply the law and the bidding terms. They should not listen to influence peddlers and big shots up there telling them to sneak in this or that favored bidder.

The causes of their headaches are Ranhill Utilities of Malaysia and Kintech Technology of Taiwan, whose financial capacity and corporate citizenship are being questioned by other bidders for the 300-mld (million liters per day) project to supply more water to half of Metro Manila.

Sierra Madre Water Corp., one of the two Filipino companies that have been prequalified (the other is New Kanlaon Construction), was preparing last week to file charges against MWSS, if necessary, to clear up these issues.

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RP FIRMS SHORT?: On the question of financial competence, the Filipino partners of a bidder must have the financial resources to satisfy 60 percent of the minimum project equity.

But neither of the Filipino partners of Kintech and Ranhill (that have formed a consortium) has demonstrated capability to invest US$18 million each, or 60 percent of the US$30 million required under the prequalification terms, Sierra Madre said.

The paid-in capital of Kintech Phils is reportedly only P667,500, which is less than one percent of the required Filipino counterpart of US$18 million under the MWSS bid documents.

As of last report, Foundation Specialists, the Filipino partner of Ranhill, has a net worth of only US$1.7 million, which is only 9.4 percent of the required amount.

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COMPLIANCE TEST: According to Sierra Madre, to determine if a consortium has the financial capability, the net worth of each of the members is added up to determine if the US$30 million is met.

To test compliance for nationality, the net worth of the Filipino partners must also be added up and must reach at least 60 percent of US$30 million.

If the net worth of the Filipino partner does not meet this test, the consortium cannot be considered as complying with the nationality requirements, according to Sierra Madre.

Both Kintech and Ranhill appear to have failed the tests and must be disqualified. But MWSS officials are reportedly under pressure to let them bid even at the risk of violating their own rules, the Constitution and the BOT (Build-Operate-Transfer) Law.

In a letter to MWSS board chairman Oscar I. Garcia, Sierra Madre president Rolando M. Zosa asked for the sake of transparency that MWSS publish the Filipino members of each consortium, and indicating the certified, verifiable net worth of each. Will MWSS do this?

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CREDIT CARD: Are you one of the countless consumers complaining — in vain — against stores tacking on a surcharge whenever you use your credit card for purchases?

A report has it that the Department of Trade and Industry plans to forbid retailers from charging consumers extra fees when they use credit cards. But that is still a pie in the sky.

Catanduanes Rep. Joseph Santiago, who has filed a bill banning such surcharges, said: “Merchants who impose an additional five to 10 percent are just plain greedy. The extra levy is wrongful, unfair and discriminatory.”

Okay, we groaning consumers agree heart and soul. But nothing has changed in the market despite the press releases of officials and the angry complaints of consumers.

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LOOPHOLE: The DTI’s Bureau of Consumer Welfare earlier said it would soon disallow the surcharges for violating the Price Tag Law. Retailers are required to post only one price tag and to honor the price displayed.

Under the draft department order, all retailers honoring such cards would be prohibited from collecting additional charges over and above the price tag on the product or service.

The trick used by many stores to go around the Price Tag Law is to post a “credit card” price. If a buyer pays in cash, he is given a discount. In effect, two prices are followed, with cardholders paying more.

Let us see how DTI plugs this loophole. The crooks in the market seem to be always three steps ahead.

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(First published in the Philippine STAR of October 12, 2006)

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