Ombudsman Gutierrez logs a record of going easy on Abalos, Comelec

About a year ago the Office of the Ombudsman did what everyone thought was unthinkable – absolved all officials of the Commission on Elections led by Chairman Benjamin Abalos who are involved in the anomalous P1-billion contract for the purchase of automated counting machines.

It was then unbelievable because the Ombudsman led by Ma. Merceditas Gutierrez in effect doused cold water on a January 2004 Supreme Court ruling declaring null and void the Comelec contract with Mega Pacific Consortium.

In its decision, the High Tribunal had ordered the Ombudsman to determine if public officials and private individuals could be held criminally liable, even threatening contempt for failure to comply with the directive.

Now, faced with an impeachment complaint, Abalos resigns as Comelec commissioner. It seems Abalos has weighed his options and has decided to try his luck with the Ombudsman.

In her almost two years in the Ombudsman, Merceditas Gutierrez has yet to order the filing of charges against a big fish—at least, not to those belonging to the administration camp.

The Ombudsman, of course, prosecuted and won the plunder case against former President Joseph Estrada.

In January this year, Gutierrez approved the filing of graft, extortion and falsification charges before the Sandiganbayan against former Justice Secretary Hernando Perez, his wife Rosario, brother-in-law Ramon Arceo and business associate Ernest Escaler following the $2-million extortion case filed against them by former Manila congressman Mark Jimenez.

Perez was DOJ secretary when Gutierrez was one of the department’s undersecretaries.

Even before the case is filed, Jimenez dropped the case. Jimenez announced last month at the DOJ that he will unconditionally withdraw the plunder case he filed against Perez before the Ombudsman as well as those against his children, wife and Justice Secretary Raul Gonzalez.

Still, in announcing its findings against Perez, Ombudsman officials quickly pointed out that the charges have nothing to do with the government contract with Argentine firm Industrias Metallurgicas Pescarmona Sociedad Anonima (Impsa). They said the Impsa deal has never been part of their investigation on the complaint against Perez.

Uncovering the Impsa deal would expose other Arroyo government officials to possible criminal liability.

Four days after the Arroyo government came to power in 2001, Perez issued a ruling turning over to Impsa the $470-million contract to rehabilitate the Caliraya-Botocan-Kalayaan hydropower plant in Laguna. The DOJ legal opinion signed by Perez removed legal obstacles to the implementation of the contract.

There were allegations that the $2 million is part of an alleged $14-million payoff to some Arroyo administration officials in exchange for the approval of the Impsa deal, which Jimenez brokered.

Jimenez filed plunder charges against Perez, accusing him of demanding money so that he would stop forcing him to execute damaging affidavits against cronies of former President Joseph Estrada. Jimenez was Estrada’s presidential adviser on Latin American affairs.

Bank documents show that Jimenez deposited $2 million to Coutts Bank in Hong Kong in February 2001. Escaler’s Coutts Bank account was the initial transferee of the Jimenez fund. From Escaler’s account, the funds were transferred to Rosario’s and Arceo’s Swiss accounts.

The Perezes initially stated before bank authorities that the money deposited is the inheritance of Rosario and Arceo, then claimed in their joint counter-affidavit that the funds were proceeds of the same of their Batangas property. The Ombudsman said the Perez couple failed to substantiate their claim.

The Ombudsman has yet to act on complaints filed against former Agriculture Undersecretary Jocelyn “Joc-Joc" Bolante for allegedly diverting P728 million worth of fertilizers intended for farmers for Arroyo’s 2004 electoral campaign.

Bolante is a close friend of the First Gentleman. Both are members of the Makati Rotary Club. In July 2006, US Immigration officials in Los Angeles, California apprehended Bolante for having a cancelled visa.

Abalos, like Bolante, is also a friend to the First Gentleman. When Abalos was a judge, Mike Arroyo had appeared as counsel in his sala. They also share a passion for golf.

Abalos also has a history with the Macapagal family: President Diosdado Macapagal, President Arroyo’s father, appointed Abalos as fiscal, and later municipal judge of Pasig.

He is godfather to the son of President Arroyo’s half-sister, Cielo Salgado, and admits to a closeness with Arthur, the president’s brother.

Both Gutierrez and Abalos have been beneficiaries of Arroyo’s rise to power.
President Arroyo had appointed Gutierrez to the constitutional body in December 2005. The appointment drew criticism then because of Gutierrez’s close ties with the Arroyo family.

She was a law school classmate of First Gentleman Jose Miguel Arroyo, and both are incorporators of the Ateneo Law Class 72 Foundation Inc.

The President plucked Gutierrez from the Department of Justice in September 2004 and named her chief presidential legal counsel.

Gutierrez had risen from the ranks at the DOJ, starting as state counsel in 1983 before becoming assistant chief state counsel. Shortly after Arroyo assumed the presidency in 2001, she appointed Gutierrez DOJ undersecretary.

She was acting DOJ secretary from November 2002 to January 2003 when then Secretary Hernando Perez resigned, and in December 2003 to August 2004 with the resignation of then Secretary Simeon Datumanong.

President Arroyo appointed Abalos as chairman of the Metro Manila Development Authority in 2001. The following year, he was named head of the poll body.

A year into his leadership, the Comelec was rocked by the controversy on the Mega Pacific deal. A group of IT experts filed a petition with the Supreme Court to stop the Comelec from implementing the contract and conduct a rebidding of the automation project.

The Jovito Salonga-led NGOs Kilosbayan Foundation and Bantay Katarungan Foundation filed a complaint for plunder and violation of code of conduct against Abalos and the rest of the Comelec commissioners as well as Mega Pacific officers before the Ombudsman in September 2004.

Sen. Aquilino Pimentel had also filed a graft complaint, naming an additional nine Comelec senior officials besides Abalos, the commissioners and Mega Pacific incorporators. Pimentel filed two other complaints in relation to the deal.

Then Ombudsman Simeon Marcelo, came up with a ruling that the investigation against Abalos and the commissioners can proceed despite the fact that they are impeachable officials “for the purpose of supplying the House of Representatives with factual findings that can be used by the latter to initiate impeachment proceedings."

But Marcelo inhibited himself from the case in March 2004. He eventually resigned in September 2005.

The case dragged on. In February 2006, the Supreme Court issued a resolution directing the Ombudsman to “show cause" why it should not be held in contempt of court for failure to fully comply with its directive in the January 2004 ruling and to manifest compliance with the directive.

The Ombudsman under Gutierrez was apparently slighted by the contempt threat. Commenting on the resolution, the Ombudsman noted that being a constitutionally independent body, it had no duty to submit reports on the Mega Pacific investigation. The Ombudsman, however, agreed it would proceed with the investigation, “nothing more, nothing less."

The justices issued another strongly worded resolution in March 2006, directing the Ombudsman—under pain of contempt—to report once every three months the steps it has taken to determine the criminal liability of the public and private persons involved in the deal.

Finally, in June 2006, the Ombudsman issued a resolution dismissing the charges against Abalos and the other Comelec commissioners except for Resurreccion Borra, commissioner in charge of the automated counting machines. The resolution added, however, that the findings against Borra “may be placed at the disposal of the House of Representatives" for possible impeachment.

The Ombudsman ordered the filing of graft charges and the dismissal from service of five senior Comelec officials who are members of the Bids and Awards Committee. Eight stockholders of Mega Pacific were also ordered charged with graft.

These included BAC chairman Eduardo Mejos, one of Abalos’ aides whom he brought to the Comelec after he moved from the MMDA. Mejos is the top finance official of the MMDA during Abalos’s term, he was assistant general manager for finance and administration.

Opposition leaders were outraged over the ruling, noting that Gutierrez succumbed to pressure from Malacañang to clear Abalos. Malacañang claimed it had nothing to do with the decision.

Heads had barely stopped shaking in disbelief when the Ombudsman delivered another ruling: In September 2006, the Ombudsman reversed its ruling and dismissed the criminal complaints against all public and private respondents for lack of probable cause.

The resolution noted that the evidence presented by the parties “miserably failed" to establish malice, bad faith or bias on the part of the Comelec and Mega Pacific officers.

In October 2006, nine senators filed a petition before the Supreme Court seeking to annul the Ombudsman resolution and to cite Gutierrez in contempt. - GMA News Research