The senators also asked the SC to sanction Gutierrez for grave abuse of discretion in her controversial decision on Sept. 27 to exonerate the officials.
The petitioners from the Senate were Minority Leader Aquilino Pimentel Jr., Sergio Osmeña III, Panfilo Lacson, Alfredo Lim, Jamby Madrigal, Luisa Ejercito, her son Jinggoy Estrada, Rodolfo Biazon and Richard Gordon.
Despite Malacañang’s apparent support for the Ombudsman’s decision, government lawyers are poised to move for the recovery of the money paid to Mega Pacific.
"These are two different dimensions,’’ Solicitor General Eduardo Antonio Nachura explained.
"The basis of our action is the Supreme Court decision. The Supreme Court said two things: it ordered the Ombudsman to investigate criminal liability, and the government to recover the amount already paid for the machines," Nachura said, referring to the SC decision on Jan. 19, 2004 declaring the contract null and void.
In a 30-page petition filed through lawyer Aquilino "Koko" Pimentel III, the senators said Gutierrez made "a blatant mockery" of the judicial system when she cleared the officials despite an earlier SC ruling declaring the contract as null and void.
The SC had also rebuffed the Comelec for its "reckless disregard of its own bidding rules and procedures" when it awarded the deal to Mega Pacific.
Aside from clearing Comelec and Mega Pacific officials, the Ombudsman had also declared the automated counting machine deal as "not disadvantageous" to the government.
In their petition, the senators said the Ombudsman’s ruling was "patently erroneous, arbitrary, whimsical, contrary to law and issued with grave abuse of discretion amounting to lack of jurisdiction."
They said the Ombudsman’s decision reflected its "utter disrespect for the court."
"Graft and corruption in government continues to be the most potent and dangerous scourge of our society. Our Constitution mandates the Ombudsman to combat this malady, arming it with vast and far-reaching powers," the petitioners said.
"Unfortunately, respondent Gutierrez fell weak to a more sinister force and miserably failed to perform her constitutional duty," they added.
"It is doubly sad that the very institution entrusted with the duty and power to fight our internal enemy and prosecute the people who perpetuate this evil, is the very same institution which refuses to recognize the crime that has been committed and to prosecute those who are guilty of the same," the petition read.
They lambasted Gutierrez for ignoring the "overwhelming body of evidence" mentioned in the SC decision. They said the SC even made clear that "Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and be held accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their functions."
Gutierrez, they added, also ignored the documentary evidence gathered by the Ombudsman’s own Field Investigation Office which recommended the criminal prosecution of Comelec and Mega Pacific officials.
Earlier, Sen. Juan Ponce Enrile said the SC may review the action of the Ombudsman, but not prosecute anybody over the MegaPacific deal.
"You know , the Supreme Court is not a court of fact, it is a court of law. Now the Supreme Court can only review the action of an agency of the government like the Ombudsman if there’s an abuse of discretion," Enrile said.
"Now, since this is a criminal case filed against the Comelec commissioners, it is within the jurisdiction of the Ombudsman to sift (through) the facts to charge the persons to be charged," he said.
"We are pursuing our case before the Makati City regional trial court. There is no instruction to withdraw,’’ Nachura said.
He also voiced objection to the proposal of President Arroyo’s election lawyer Romulo Macalintal to allow the use of automated counting machines in the coming local elections.
"It would be as if we continue with the acquisition (ACMs) and we will have the obligation to pay for the machines," Nachura said adding the machines were defective. Malacañang is supportive of Macalintal’s proposal.
"But of course it is a question of law, because the Supreme Court already made a decision on this. If this law will allow it, then we can use that (ACMs). If not, there is still a chance to institute and to implement a computerization which is very necessary in order for us to have a more efficient and effective elections," presidential chief of staff Michael Defensor said.
Mega Pacific had filed a case to force the government to pay for the machines.
Nachura maintained that Macalintal’s proposal was an "independent issue’’ but would hamper government’s efforts to recover the money nevertheless.
At Malacañang, Presidential Spokesman Ignacio Bunye praised the passage of the poll automation bill by both chambers of Congress, saying it would pave the way for a "stronger democracy founded on the sanctity of ballot.’’
The Palace also lauded the Comelec and the Department of National Defense for signing an agreement that would ensure a depoliticized military during elections.
"Electoral reforms are on top of President Arroyo’s good governance agenda. It is high time to put an end to the mess of the past and to bring our nation closer to the threshold of political modernization and maturity," Bunye said.
Meanwhile, Comelec chairman Benjamin Abalos said the Senate’s approval of the automated poll bill might be a little too late. The Senate also approved the Comelec’s proposed initial allocation of P1.2 billion for automated elections next year.
The approved Senate Bill 2231 is intended to replace Republic Act No. 8436, which authorized Comelec to automate the election system for the May 1998 elections.
But Abalos explained there was no more time for Comelec to prepare for computerized elections, even on a partial basis.
He said Comelec may have to make do with manual counting in the 2007 elections. He said Comelec will do everything to make the 2007 polls clean and honest. It is the Comelec’s duty to select 12 areas in the country where partial automation will be implemented.
Sen. Richard Gordon, chairman of the Senate panel which sponsored the bill, said the measure provided for instantaneous counting of votes and immediate electronic transmittal at the end of the voting day. The bill stipulates full computerization of elections by 2010.