Wednesday, October 11, 2006 Ombudsman justifies acquittal of poll execs in anomalous deal
* Senator backs Ombudsman's decision
OMBUDSMAN Merceditas Gutierrez on Tuesday defended the decision of her office to clear all officials of the Commission on Elections (Comelec) of any criminal and administrative liabilities in the controversial P1.3 billion contract entered into by the commission with Mega Pacific Consortium that had already been voided by the Supreme Court (SC).
"I signed, I approved it. I take full responsibility for it," said Gutierrez in a press conference. She was joined by other prosecutors led by Chief Special Prosecutor Dennis Villa-Ignacio who drafted the resolution on the case.
Gutierrez said the complainants, including the Kilos Bayan organization of former Senate president Jovito Salonga, did not attend the 12 public hearings conducted by the Ombudman's panel from last July 13 to August 23 to hear the testimonies of various resource persons and witnesses.
Gutierrez denied that Malacañang influenced her office in coming up with the decision favoring the Comelec.
In the same press conference, Gutierrez said she was on official mission to Switzerland when the Ombudsman's released its ruling on the Mega Pacific case.
She urged critics of the Ombudsman's decision to read their decision carefully as she pointed out that if the SC had found an irregularity in the deal, the high court could have ordered the confiscation of the 1,991 automated counting machines (ACMs) purchased by the Comelec from Mega Pacific eSolutions Inc.
Villa-Ignacio, who is the vice chairman of the Ombudsman investigating panel, earlier said when the high tribunal declared that the automation deal was anomalous, it only dealt with the civil aspect of the case and did not touch the criminal aspect.
He also said they have evaluated carefully each piece of evidence as well as the motion for reconsideration filed by the aggrieved party.
These were the reasons why it led to the reversal of their June 28 ruling wherein they have recommended the filing of criminal charges against Comelec officials involved in the deal, he added.
Meanwhile, Senator Miriam Defensor-Santiago dared the opposition to present proof that Gutierrez and Abalos are guilty of arbitrariness, despotism, or hostility.
"If the opposition has no such proof, it should shut up instead of agitating the people over picayune legal points exaggerated beyond reason," Santiago said.
She accused certain opposition leaders of suffering from "feral blood lust" in calling for the removal of Gutierrez and Abalos after the Ombudsman recommended the dismissal for lack of probable cause the criminal and administrative charges filed against members of the Comelec five-member bids and awards committee.
Santiago emphasized that under the Constitution, the Ombudsman is an independent constitutional agency and that although the high court may direct the Ombudsman to investigate certain cases, the high court cannot order the Ombudsman to make a finding one way or the other.
"The opposition is deliberately twisting the Constitution. Under the Charter, the Supreme Court has no authority to deprive the Ombudsman of its constitutional independence," said Santiago.
Santiago said if the Ombudsman found that there is no probable cause for charging Abalos and other Comelec officials with any crime, such finding is well within the Ombudsman's constitutional discretion.
"I am so sure of my constitutional grounds that I challenge the opposition to file a petition with the Supreme Court against the Ombudsman and Comelec officials led by chairman Abalos. I am perfectly sure that any petition to question the Ombudsman's resolution and the clearance granted to Abalos will be upheld," Santiago said.
Santiago said the original case which led to the SC's in January 2004 was a special civil action for certiorari assailing the award by the Comelec of the automation contract to Mega Pacific.
Santiago explained that in the original case, the issue before the high court was whether the Comelec committed grave abuse of discretion in awarding the contract to Mega Pacific.
"It is entirely possible that the Comelec may have committed grave abuse of discretion but it is an entirely different matter on whether there is probable cause to file a criminal case against Comelec officials who were named as respondents," she said.
Santiago said both Gutierrez and Abalos enjoy under the Rules of Court the presumption that official duty has been regularly performed and that the opposition has not presented any new evidence to establish a well-founded belief that a crime has been committed.
"The Ombudsman panel found that the evidence submitted by the opposition failed to establish that the Comelec bids and awards committee exercised its function with malice, bad faith, or bias," she said.
Santiago stressed that the Ombudsman's findings are conclusive and that the burden of proof lies on the opposition to show that the Ombudsman committed grave abuse of discretion.
She said in a long line of cases, the SC has established that the Ombudsman has freedom of discretion in making its own findings and in evaluating the case before it.
Santiago cited the 2005 case of Singian versus Sandiganbayan wherein the SC ruled that courts should not interfere with the Ombudsman's powers, unless clothed with grave abuse of discretion.
In that case, the SC said it respects the Ombudsman's investigatory powers granted by the Constitution.
In addition, the court said it is not practical for the SC to interfere with the Ombudsman's functions otherwise numerous petitions will be filed before the SC seeking to overturn the Ombudsman's findings.
"Grave abuse of discretion is defined as the capricious and whimsical exercise of judgment on the part of the Ombudsman, which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoyed by law, or to act at all in contemplation of law, where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility," she said.
"Earlier, in the 2004 case of Information Technology Foundation of the Philippines versus Comelec, the Supreme Court directed the Ombudsman to determine criminal liability, if any, of the public officials involved. The Supreme Court did not order the Ombudsman to file criminal charges," Santiago also said.
Santiago quoted a later resolution in the same Infotech case issued last June 15 wherein the SC said: "Nowhere in the questioned resolution did the court demand the Ombudsman to decide or make a specific determination - of the culpability of any of the parties. Our directive was for the Ombudsman to report on its final determination of whether probable cause exists against any of the public officials." (Sunnex with report from CPB)
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