Cosmetics

No amount of evidence that "speaks for itself" can cosmetize the patent error and give the appearance of correctness to the acrobatic stunt displayed by the Office of the Ombudsman on the ACM case. Something fishy keeps on cropping up by simply looking at the big picture. The act of flip-flopping alone is in itself facially irregular. The initial June 2006 resolution was issued after almost two years of investigation as ordered by the Supreme Court. Two years of investigation is definitely more than enough to gather all the evidence to determine the liability of those involved. In fact, the former Ombudsman Simeon Marcelo was about to come out with the results except that he mysteriously resigned from his post. If the evidence at that time was not enough, the new Ombudsman should not have come out with that resolution and should have conducted further clarificatory hearings. Coming out with the initial June 2006 findings after more than two years of investigation then completely reversing it in just three months with new evidence submitted to the new Ombudsman who replaced Marcelo, is rather unusual. Such peculiar process inexorably leads to a well founded inference that there is a devious attempt to salvage the illegal deal in order to use the machines that had, according to the Supreme Court in the case of ITF vs. Comelec (G.R. 159139, Jan. 13, 2004), "undeniably failed to pass eight critical requirements designed to safeguard the integrity of the elections".

This conclusion is confirmed by the subsequent actuations of no less than the President’s election lawyer. He immediately came out and told the press that the Ombudsman’s resolution has now made it necessary for the SC to review its ruling that scrapped the automation contract and disallowed the use of the 1,991 automated counting machines (ACM’s). This lawyer even proudly announced that the Ombudsman’s resolution vindicated him and proved that the SC was wrong after all. He said that he will use the said resolution in going back to the SC for a reopening of its previous ruling.

The sequence of events in this case is so interwoven as to prove some kind of coordination (conspiracy?) between this lawyer, the Comelec and the Ombudsman. After the June 2006 resolution, the Ombudsman asked for more time to further study the case and the liability of the other Commissioners aside from Borra. In the meantime, this lawyer went back to the SC to reopen the ACM case and to ask that the Comelec be allowed to use the 1,991 ACMs. When the SC thumbed down his motion, the Ombudsman then came out with its brazen somersault followed by that proud announcement of the "vindicated" lawyer that he will go back to the SC using the Ombudsman’s resolution. He is in effect asking the SC to follow the Ombudsman’s contrary ruling in utter disregard of the Rules of Court putting finality and closure to court litigations. It is a total disrespect for the highest court of the land. This picture is so clear for the SC to miss.

Contrary to some arguments, the SC did not become a "trier of facts" in this case, which admittedly is not one of its functions. The facts are already on record and it shows that "for the automation of the counting and canvassing of ballots in the 2004 elections, Comelec awarded the contract to Mega Pacific consortium, an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual automation contract with Mega Pacific eSolutions, Inc, a company that had joined the bidding but had not met the eligibility requirements". These facts already speak loudly of a probable violation of the Anti Graft Law by those Commissioners who approved the bidding and signed the contract. Yet the panel still cleared these Officials because there was allegedly "nothing wrong with the deal". Apparently the Ombudsman had to clear these officials as it is the only way to justify the use of the defective ACMs. Is there nothing wrong with awarding the bid to a non-participant and signing the contract with a participant which had no eligibility requirements? Some administration allies in Congress believe so. Such must really be the effect of too much "pork".

The Ombudsman Panel cleared the Comelec and Mega Pacific officials after a clarificatory hearing because "no iota of evidence that constitute manifest partiality, evident bad faith and gross inexcusable negligence have been found against them". They absolved the officials because the evidence against them is not enough to sustain a conviction when filed in court. But this is not its function. Determining the sufficiency of evidence to convict persons involved in a crime is the function of the Courts. The Ombudsman’s only function is to find out whether there is probable cause to hold them for trial by the Courts. Based on the facts already on record especially regarding the illegality of the award and the irregularity of the bidding process, the Ombudsman should have just filed the case before the Sandiganbayan. Exonerating the Comelec officials is more a function of the courts than the Ombudsman.

Besides, the illegal acts in this case obviously involve a violation of a special law (the Anti-Graft Law) rather than of the Revised Penal Code. So, the mere commission of the act prohibited by law (malum prohibitum) is already punishable. The presence or absence of bad faith or gross inexcusable negligence or criminal intent is not a defense. Clearing these officials merely because they were not in bad faith nor were they grossly negligent is definitely erroneous.

From any point of view and even with the "cosmetics" something is wrong with the Ombudsman’s complete turnaround on the ACM case. What happened here is a serious setback to the fight against graft and corruption and to the principle of accountability of public officers. With the kind of Ombudsman we have, Bolante would be better off coming back here than languishing in the comforts of an American detention center.

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