Graft charges were likewise recommended against Comelec commissioner Resurreccion Borra, who headed the agency’s poll modernization program, if he is impeached.
The Ombudsman also recommended the dismissal of officials of a five-member committee that awarded the contract to MegaPacific, which was later found by the Supreme Court (SC) to be anomalous.
The Ombudsman found that Borra allegedly failed to prevent anomalies in the awarding of a P1.2-billion contract to MegaPacific eSolutions Inc. for the purchase of nearly 200 ballot counting machines in 2003.
The machines were supposed to be used for the May 2004 general elections.
Under the 1989 law that created the government’s chief anti-graft arm, the Office of the Ombudsman recommended Borra’s impeachment because it has no disciplinary authority over elective and appointive officials who may be removed only by impeachment.
"On this point, it is not amiss to state as head of a multi-billion project, respondent Borra was duty-bound to study (the Comelec’s bids and awards committee’s recommendation and not simply accept the same hook, line and sinker," the Ombudsman said in its 34-page resolution. "He was tasked to ensure that no irregularity or illegality attended the bidding and award."
The STAR tried but failed to reach Borra for comment. Comelec Chairman Benjamin Abalos declined to comment until he has read the Ombudsman’s findings, except to say that he felt "bad" for those found liable.
In 2003, the Comelec purchased nearly 200 ballot counting machines from MegaPacific at the cost of P1.2 billion in line with government efforts to modernize the electoral system.
But the Supreme Court in January 2004 nullified the Comelec’s purchase contract with MegaPacific, citing irregularities in the contract awarding.
However, the court ruling inadvertently derailed government plans to modernize the country’s antiquated electoral system, which is riddled with opportunities for poll fraud. It takes election officials weeks to complete the counting of votes.
The ruling forced election officials to revert to the manual counting of votes and initially sparked concern that the 2004 elections would be postponed.
In a strongly-worded decision, the Supreme Court ordered the Ombudsman to investigate those involved in the MegaPacific deal for possible criminal liability.
It also ordered the Office of the Solicitor General to take back whatever money was paid to MegaPacific for the machines.
The Ombudsman also recommended yesterday graft charges and the dismissal of officials in the Comelec’s bids and awards committee — chairman Eduardo Mejos and members Jose Balbuena, Lamberto Llamas, Bartolome Sinocruz and Gideon de Guzman.
Their retirement benefits were ordered forfeited and they were permanently barred from entering government service.
Two other Comelec officials — Jaime Paz and Zita Buena-Castillon — and Department of Science and Technology officials Jose Tolentino and Rolando Villoria were cleared of wrongdoing.
Eight MegaPacific officials also face graft charges — Willy Yu, Bonnie Yu, Enrique Tansipek, Rosita Tansipek, Pedro Tan, Johnson Fong, Bernard Fong and Lauriano Barrios.
The Ombudsman also recommended further investigation to find out if more officials were involved.
The findings stemmed from a Supreme Court order on May 3 to Ombudsman Merceditas Gutierrez, which gave her until yesterday to finally determine and report to the tribunal if Comelec officials and MegaPacific should be held liable for the anomalous purchase of ballot counting machines. The court sternly warned it would cite Gutierrez for contempt if she failed.
If there is probable cause, Gutierrez should file charges with the proper court and report to the Supreme Court on the progress of the case every three months.
The court order stemmed from a petition filed by Information Technology Foundation of the Philippines asking for speedy action on the case.
President Arroyo is currently battling opposition allegations that she cheated her way to victory in the 2004 election.
She admitted having an inappropriate conversation with an unidentified election official — believed to be former Comelec commissioner Virgilio Garcillano — before Congress declared the winner but denies manipulating the poll outcome.
Mrs. Arroyo successfully fought off an impeachment bid in the House of Representatives last year but the political opposition revived its attempt to oust her by filing an impeachment complaint everyday beginning last Monday.
Senate Minority Leader Aquilino Pimentel Jr., meanwhile, who has also been calling for action, has suggested that Gutierrez be given a two-month extension to wrap up her probe into the anomalous election modernization contract following her request for more time.
Pimentel, who has been criticizing the Ombudsman for failing to act on the case of the election automation project, said he was giving Gutierrez the benefit of the doubt on her initial assessment that she might need more time to complete the probe.
"It might be true that the Ombudsman needs time to finish her investigation of the alleged irregularities in the MegaPacific deal. Perhaps granting her a non-extendible period of two months to do her job would go a long way towards giving the Comelec officials, who may be liable, their comeuppance," said Pimentel, who was an alleged victim of electoral fraud in the 1995 senatorial election.
Pimentel was the first to file a complaint against the Comelec officials following the 2004 ruling of the Supreme Court that nullified the election automation contract.
He has also been calling for the replacement of Comelec officials in time for the 2007 mid-term elections in the wake of the electoral fraud allegations against Mrs. Arroyo.
Gutierrez recently told the Supreme Court that the Ombudsman’s Office of Legal Affairs had found "sufficient grounds for the conduct of further investigation" to determine criminal liability of the officials and individuals involved in the deal.
However, Pimentel did not agree with Gutierrez’s claim that the Supreme Court’s rejection of her appeal to reconsider its directive could trigger a constitutional crisis and undermine the independence of the Office of the Ombudsman.
"What constitutional crisis? Since when has a Supreme Court order to a subordinate official been the cause of a constitutional crisis? I am sorry to disagree with the Ombudsman in this regard," he said.
Pimentel said that the High Court was right in issuing the order to the Ombudsman in order to expedite the resolution of the case, which he filed with the Ombudsman shortly after the Court voided the MegaPacific contract on Jan. 13, 2004 due to legal infirmities.
In its order to the Ombudsman, the Supreme Court emphasized that the body was the "protector of the people" and that it should "act promptly on all complaints filed in any form or manner against any public official or employee of the government."
Pimentel said there is nothing in the court’s order that would undermine the independence of the Ombudsman.
"Ombudsman Gutierrez probably thinks that because hers is a constitutional office, the Supreme Court cannot order her to expedite cases under investigation by her office. I think that she is in error here because if the Supreme Court can nullify acts of Congress or of the President, who are constitutional officials, and sometimes order the performance of positive acts, there is no reason why the Supreme Court cannot order the Ombudsman to do something to attain the ends of law," Pimentel said.
Pimentel said the resolution of the case by the Ombudsman is long overdue since it has dragged on for more than two years now.
Former senator Jovito Salonga, whose civic organization Kilosbayan is a principal complainant in the poll automation case, reserved comment. "I have to study it (the findings) before I give my comments," he told The STAR.
The former Senate president, however, was surprised that Comelec chairman Abalos, an Arroyo appointee, escaped liability. "Abalos is scot-free and Borra got buried!"
But he was satisfied to learn that Gutierrez recommended the dismissal of several officials in the committee that awarded the Comelec contract to MegaPacific. — With Marvin Sy, Marichu Villanueva, James Mananghaya