POSTSCRIPT / October 15, 2006 / Sunday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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There's still a way out for erring Ombudsman

CORNERED: It is becoming clearer by the day that the honorable option left for Ombudsman Merceditas Gutierrez after her blanket absolution of the public and private parties to an illegal P1.3-billion contract is to admit the error, repair the damage, and then resign.

For her to continue defending or justifying her having absolved Commission on Elections chairman Benjamin Abalos and other individuals who had a hand in approving the mega-contract is like swimming against a rampaging river.

The Comelec had awarded the 11-day-old non-bidder Mega Pacific eSolutions Inc. (not to be confused with Mega Pacific Consortium that had won the bidding) a contract to supply almost 2,000 vote-counting computers at a unit price of P500,000.

To make the transaction a fait accompli and thus complicate its voiding, the Comelec and the supplier rushed delivery and payment despite the Supreme Court’s ruling that the deal was illegal.

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FIRE SPREADS: Nine senators, seven from the minority and two from the majority, have asked the Supreme Court to annul the Ombudsman’s resolution clearing all parties to the deal, and to sanction Gutierrez for grave abuse of discretion.

The petitioners were (from the minority) Aquilino Q. Pimentel Jr., Sergio Osmena II, Panfilo Lacson, Alfredo Lim, Jamby Madrigal, Luisa Ejercito Estrada, Jinggoy Estrada, and (from the majority) Rodolfo Biazon and Richard Gordon.

The Supreme Court voided the contract in 2004 for being contrary to law and the Comelec’s own bid terms. The tribunal added that the machines, at the time of their delivery, did not meet the technical requirements and were susceptible to mass fraud

Gutierrez may have been misinformed or did not know what was going on in her office when she said, in justifying the blanket absolution, that the complainants did not show up for the 12 public hearings and failed to submit evidence.

Marami pong nakinig sa civil society groups, NGOs at iba pa,” she said. “Subalit hindi po dumalo, aktibong nakilahok at nagsumite ng ebidensiya ang complainants sa 12 araw ng pagdinig.”

As a result of the alleged failure of complainants to submit evidence, her office concluded that there was no basis for filing administrative, civil and criminal charges against those who consummated the deal.

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NO SUMMONS: But at least two of the complaining groups denied that they ignored summons to the hearings.

“We were not notified,” former senator Jovito Salonga, chairman of Kilosbayan, said in a press conference.

Augusto Lagman, Maricor Akol and Antonio Pastelero of the Information Technology Foundation of the Philippines, also one of the complainants, said the Ombudsman never notified or invited them to the hearings.

“They must have sent the subpoena to the wrong address,” Pastelero said. “There is no doubt that there was malice.”

Lagman said the claim that summons were issued was intended to put the complainants on the defensive, aside from justifying the Ombudsman’s claim of lack of evidence of wrongdoing.

Msgr. Pedro Quitorio, spokesman of the Catholic Bishops’ Conference of the Philippines, said the Church believes that there is no viable, one-shot solution that will enable Comelec to restore its sagging credibility “much more with a government agency (like the Ombudsman) clearing another government agency (Comelec).”

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WALLOP: A broad band of business and civic groups, meanwhile, has delivered another wallop that should shake the Ombudsman to her senses.

A statement (below) on the Comelec’s mishandling of the mega-deal is a must reading for citizens who want a summary and a clear understanding of the issues and why the Ombudsman erred.

It was jointly issued by the Makati Business Club, Bishops Businessmen’s Conference, National Citizens’ Movement for Free Elections (Namfrel), Transparency and Accountability Network (TAN), Association of Foundations, Philippines Inc., Caucus of Development NGO Networks, CBCP-National Secretariat for Social Action, Justice and Peace, Coalition for Bicol Development NGOs, Cordillera Network of NGOs & POs, Mindanao Coalition of Development NGOs, National Council of Social Development Foundation of the Philippines Inc., Partnership of Philippine Support Service Agencies, Philippine Partnership for the Development of Human Resources in Rural Areas, and the Visayas Network of Development NGOs.

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ISSUES RECAPPED: The group’s statement in full:

We are dismayed with the Ombudsman’s handling of the case involving the Comelec and its illegal purchase of automated vote-counting machines. Two-and-half-years ago, the Supreme Court declared the contract entered into between the Comelec and Mega Pacific eSolutions Inc. for the machines null and void and instructed the Office of the Ombudsman to investigate the Comelec and the contractor for criminal liability and for the Office of the Solicitor General to recover the money paid. The total contract price was over P1.0 billion.

In its 2004 decision, the Supreme Court voided the contract because of “clear violation of law and jurisprudence” and “reckless disregard of [Comelec’s] own bidding rules and procedure.” The Supreme Court added that “truly the pith and soul of democracy and credible, orderly, and peaceful elections have been put in jeopardy by the illegal and abusive acts of the Comelec.

The facts of the case are well-established:

The contractor was incorporated only 11 days before the bidding.

The contractor did not have a signed agreement with its consortium partners as required in the bid rules. It only had an oral agreement with its partners as attested to by Comelec Commissioner Tuason.

The prototype machines submitted for testing by the contractor prior to the awarding of the bid committed errors. The Supreme Court noted that “they failed to achieve the accuracy rating of 99.9995 percent set up by the Comelec itself… They were not able to detect previously downloaded results and prevent these from being inputted again.”

Yet the Ombudsman has now chosen to clear all the Comelec commissioners and other officials of any criminal liability in awarding the poll automation contract to Mega Pacific eSolutions in spite of the Supreme Court’s declaration of reckless disregard and illegal and abusive acts of the Comelec. This is a reversal of its own ruling of June 28, 2006, recommending dismissal of the members of the Comelec’s bids and awards committee and impeachment proceedings against Commissioner Resurreccion Borra.

In sum, an anomalous act has been committed and public money lost, but the Ombudsman can find no one liable. Under these circumstances, the government’s sincerity in fighting off graft and corruption and in modernizing our electoral process seriously comes into question.

When our leading graft-fighting agency takes more than two years to arrive at a decision, after twice asking for extensions from the Supreme Court and ignoring its own field investigators’ findings, we can only conclude that the government is not serious in improving governance, stamping out graft and corruption, and improving our electoral process.

The Ombudman’s decision does not augur well for future graft cases or for the 2007 elections. It sends a message that such cases will be tolerated and lightly handled as errors in judgment and opens the door for other similar instances to follow. It also sets a precedent in the Comelec that future procurement contracts will not come under close scrutiny even though the Supreme Court has already ruled on one such anomalous case.

The decision also creates dangerous ramifications for our own Supreme Court and the entire justice system. A case has been heard and decided by our highest tribunal. It has been determined that an anomaly has occurred. Yet no one is accused. What does this make of our own Supreme Court and our Office of the Ombudsman?

We believe that all facts pertinent to this case must be made public and that the case be brought before the proper courts to determine criminal liability. We believe that the report of the Ombudsman’s own field investigation office should be made public. If this cannot be done, there will inevitably rise serious doubts about the government’s resolve in matching its words with actions in the fight against corruption and for good governance.

Indeed, the Ombudsman owes the nation a detailed explanation of her defiance of the Supreme Court’s declaration of illegality in the Comelec case and of her decision to ignore the findings of her office’s own field investigation. Failing a reasonable explanation for her blatant mishandling of this crucial case, the Ombudsman will be hard put to justify her remaining in office.

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(First published in the Philippine STAR of October 15, 2006)

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