Final Complaint Vs. Ombudsman

REPUBLIC OF THE PHILIPPINES HOUSE OF REPRESENTATIVES TH 14 CONGRESS OF THE PHILIPPINES House of Representatives Complex Constitution Hills, Quezon City

IN THE MATTER OF THE IMPEACHMENT OF MA. MERCEDITAS NAVARRO-GUTIERREZ AS OMBUDSMAN OF THE PHILIPPINES,

JOVITO R. SALONGA, RAUL C. PANGALANGAN, FLORIN HILBAY, EMILIO C. CAPULONG, JR., RAFAEL M. ALUNAN III, QUINTIN S. DOROMAL, EMIGDIO P. DAKANAY, JR., ANTONIO R. TOBIAS, D.D., LETICIA SHAHANI, TERESITA QUINTOS DELES, KARINA CONSTANTINO-DAVID, ERNEST LEUNG, CORAZON JULIANOSOLIMAN, LEAH LOPEZ NAVARRO, JOSE Z. MOLANO, JR., VERINICA F. VILLAVICENCIO, SOSTENES CAMPILLO, JR., MARY JOHN MANANZAN, OSB, CRISPINO T. AGUELO, VITALIANO NANAGAS, MILAGROS EOS REGALADOCAPISTRANO, GUILLERMO G. CUNANAN, MARY ANNE TERENAL, YASMIN BUSRAH-LAO, REMEDIOS I. RIKKEN, ELIZABETH U. YANG, LEON G. FLORES III, RAMIL V. CINCO, MARILOU C. BORJE, RAUL SOCRATES C. BANZUELA AND RANDY DAVID,

Complainants, x--------------------------------------------- x -1-

IMPEACHMENT COMPLAINT COMPLAINANTS XXX, by themselves and through undersigned counsel, unto the Honorable House of Representatives, respectfully state: PREFATORY STATEMENT “Public office is a public trust. Public officers and

employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.” – Section 1, Article XI 1987 Constitution (emphasis supplied)

The Office of the Ombudsman was created under Section 5, Article XI of the Constitution, with the primordial responsibility of protecting the people against public officers who betray the public trust. The office is designed to be an independent office, shielded from the officials that it may eventually investigate and prosecute. Though the Ombudsman and the office’s other officials are appointed by the President, they must not be beholden to any political master except the People. The Ombudsman—the “Tanod-Bayan” or literally “Protector of the People”—is expected to be merciless against public servants who pursue their own interests at the expense of the public good. At the very least, he or she is compelled to transparently and expeditiously perform his or her

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duties and functions as outlined in Republic Act No. 6770 or “The Ombudsman Act of 1989.” An Ombudsman who fails to meet these expectations fails our democracy and contributes to the disintegration of the delicate relationship between the People and its government. Unfortunately, with Ombudsman Ma. Merceditas N. Gutierrez at the helm since 1 December 2005, the public trust has completely collapsed. High-profile cases that involve graft and corruption of insurmountable amounts of public funds have either been gathering dust or have been permanently relegated to the archives. The prosecution and conviction of high-ranking officials, involving huge sums of taxpayer’s money, remain scarce under the watch of the incumbent Ombudsman, even as low-ranking public officials have been charged at the Sandiganbayan. “Ombudsman” has become synonymous to inaction, mishandling, or downright dismissal of clear cases of graft and corruption, some leading to the President herself or that of her closest associates. Some of the latter are not in government anymore, and their continued freedom is an insult to the People who work hard and honestly pay their taxes and to other government officials who perform their functions honorably. Her gross and manifest incompetence to perform her duties amounts to betrayal of public trust and culpable violation of the

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Constitution. The facts stated in this complaint clearly establish how the “Protector of the People” has transformed into the coddler of the powerful and corrupt. Among the notable graft and corruption cases in which Ombudsman Gutierrez betrayed the public trust and culpably violated the Constitution are: the Mega Pacific Graft and Corruption Case of former COMELEC Chairman Benjamin Abalos and his subordinates, World Bank-financed Road Projects Collusive Scheme, Fertilizer Fund Scam of former Undersecretary of Agriculture Jocelyn “Jocjoc” Bolante, former Secretary of Justice Hernando “Nani” Perez Extortion Case and Euro-Generals Scandal. As long as Ombudsman Gutierrez sits, anyone is at the mercy of her arbitrariness. Hence, this Impeachment Complaint must prosper so that the Filipino people’s cry for justice against graft and corruption, regardless of stature and political affiliation, will be heard.

I NATURE OF THE PETITION 1.0 This is a verified Impeachment Complaint under Section 2, Article XI, of the 1987 Constitution against Ombudsman Gutierrez for any or all of the following constitutionally provided grounds: (i) Betrayal of Public Trust; and (ii) Culpable Violation of the Constitution.

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II. PARTIES 2.01 Complainants are the following who are all Filipino citizens, of legal age and residents of the Philippines: 2.01.1 JOVITO R. SALONGA, Founder and Adviser of Bantay Katarungan, with address at No. 8, Acacia St., Valle Verde 3, Ugong, Pasig City, where he may be served with legal processes. 2.01.2 RAUL C. PANGALANGAN, Chairman of Bantay Katarungan, Chairman

together of

Bantay

with

FLORIN

Katarungan

HILBAY, and

Vice-

EMILIO

C.

CAPULONG, JR., Executive Director of Bantay Katarungan with address at 1st Street, No. 7 Acacia Lane, Mandaluyong City, where the may be served with legal processes. 2.01.3 RAFAEL M. ALUNAN III, President of Kilosbayan, together with QUINTIN S. DOROMAL and EMIGDIO P. DAKANAY, JR., Trustees of Kilosbayan with address at 1st Street, No. 7 Acacia Lane, Mandaluyong City, where they may be served with legal processes. 2.01.4 ANTONIO R. TOBIAS, D.D., Bishop of Novaliches, who may be served with legal process through counsels.

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2.01.5 Former senior government officials, leaders of civil society groups and other concerned citizens namely, LETICIA

SHAHANI,

KARINA CORAZON

TERESITA

QUINTOS

DELES,

CONSTANTINO-DAVID,

ERNEST

LEUNG,

JULIANO-SOLIMAN,

LEAH

LOPEZ

NAVARRO, JOSE Z. MOLANO, JR., VERINICA F. VILLAVICENCIO, SOSTENES CAMPILLO, JR., MARY JOHN

MANANZAN,

OSB,

CRISPINO

T.

AGUELO,

VITALIANO NANAGAS, MILAGROS EOS REGALADOCAPISTRANO, GUILLERMO G. CUNANAN, MARY ANNE TERENAL, YASMIN BUSRAH-LAO, REMEDIOS I. RIKKEN, ELIZABETH U. YANG, LEON G. FLORES III, RAMIL V. CINCO, MARILOU C. BORJE, RAUL SOCRATES C. BANZUELA AND RANDY DAVID 2.02 MA. MERCEDITAS NAVARRO-GUTIERREZ (“hereinafter referred to as “Respondent” or “Ombudsman Gutierrez”) is the present Ombudsman of the Philippines and is being sued in such official capacity. She may be served with summons and other processes of this Honorable Chamber at her office address at the Office of the Ombudsman, Ombudsman Building, Agham Road, North Triangle, Diliman, Quezon City 1101.

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II GENERAL ALLEGATIONS 3.01 Ombudsman Gutierrez is the fourth Ombudsman of the Republic of the Philippines and has assumed her office on 1 December 2005. 3.02 Immediately

prior

to

Respondent’s

appointment

as

Ombudsman, she had been appointed by President Gloria Macapagal – Arroyo as the chief Presidential Legal Counsel in the Office of the President, and on 25 November 2005, she was designated the Acting Executive Secretary when the Executive Secretary went abroad on an official mission. 3.03 Ombudsman Gutierrez graduated from the School of Law of Ateneo de Manila University in 1972 with the First Gentleman, Jose Miguel “Mike” T. Arroyo, as her well-known classmate. Ombudsman Gutierrez and First Gentleman, Jose Miguel “Mike” T. Arroyo flunked the bar exam the first time they took it and barely passed after they took it the second time. 3.04 Ombudsman Gutierrez’s constitutional mandate as the Ombudsman is to act as the “Protector of the People”, by acting promptly on complaints filed in any form or manner against public officials or employees of the government, of any subdivision, agency or instrumentality thereof, including government-owned or controlled -7-

corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. 3.05 Complainants accuse Respondent of the impeachable acts of grossly betraying public trust and culpably violating the Constitution. The present complaint shall discuss how Respondent committed the aforesaid acts, warranting her impeachment, through the following notable cases: namely, (a) the Mega Pacific Graft and Corruption Case of former COMELEC Chairman Benjamin Abalos and his subordinates, (b) World Bank-financed Road Projects Collusive Scheme (c) Fertilizer Fund Scam of former Undersecretary of Agriculture Jocelyn “Jocjoc” Bolante, (d) former Secretary of Justice Hernando “Nani” Perez Extortion Case, (e) Euro-Generals Scandal and (f) the arbitrary dismissal and suspension of Provincial Governors’ Tupas and Garcia, respectively. IV GROUNDS FOR IMPEACHMENT 4.01 OMBUDSMAN MA. MERCEDITAS GUTIERREZ BETRAYED PUBLIC TRUST.

NAVARRO-

4.01.01 OMBUDSMAN GUTIERREZ BETRAYED PUBLIC TRUST BY DELIBERATELY DISREGARDING THE SUPREME COURT’S FINDINGS AND DIRECTIVE ON THE “MEGA PACIFIC GRAFT AND CORRUPTION CASE” WHEREIN THE SUPREME COURT DECLARED AS NULL AND VOID THE P1.3 BILLION EQUIPMENT PURCHASE CONTRACT ENTERED INTO BY THE COMMISSION ON ELECTIONS UNDER THEN CHAIRMAN BENJAMIN ABALOS, WHO WAS

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COMPLETELY EXONERATED ALONG WITH HIS SUBORDINATES. 4.01.02 OMBUDSMAN GUTIERREZ’S DELIBERATE AND INORDINATE INACTION ON THE COLLUSION SCHEME ENTERED INTO BY BIDDERS, GOVERNMENT OFFICIALS AND PUBLIC FIGURES ON THE WORLD BANK-FINANCED ROAD PROJECTS CONSTITUTES BETRAYAL OF PUBLIC TRUST. 4.01.03 OMBUDSMAN GUTIERREZ’S ACT OF FILING LATE AND DEFECTIVE INFORMATIONS ON THE CRIMINAL CASES FILED AGAINST FORMER JUSTICE SECRETARY HERNANDO “NANI” PEREZ FOR HIS EXTORTION ACTIVITIES AGAINST FORMER CONGRESSMAN MARK JIMENEZ CLEARLY SHOWS HER DELIBERATE INTENT TO CAUSE THE DISMISSAL OF SUCH CASES, OR AT THE VERY LEAST GROSS IGNORANCE OF THE LAW AND OVERLY MANIFEST INCOMPETENCE AS OMBUDSMAN, ANY OR ALL OF WHICH CONSTITUTES BETRAYAL OF PUBLIC TRUST. 4.01.04 OMBUDSMAN GUTIERREZ BETRAYED PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE INACTION ON THE GRAFT AND CORRUPTION CASES ON THE MORE THAN P1 BILLION FERTILIZER FUND SCAM TO PERPETRATE MASSIVE FRAUD IN THE 2004 PRESIDENTIAL ELECTIONS INVOLVING FORMER DEPARTMENT OF AGRICULTURE UNDERSECRETARY JOCELYN “JOCJOC” BOLANTE, WHICH WAS SEPARATELY FILED BEFORE HER OFFICE BY THE SENATE OF THE PHILIPPINES, FORMER SOLICITOR GENERAL FRANK CHAVEZ AND MURDERED JOURNALIST MARLENE ESPERAT.

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4.01.05 OMBUDSMAN GUTIERREZ’S COMPLETE FAILURE TO PROMPTLY RESOLVE THE GRAFT AND CORRUPTION CASE INVOLVING THE “EURO-GENERALS”, DESPITE OVERWHELMING EVIDENCE, INCLUDING AN ADMISSION FROM GENERAL ELISEO DELA PAZ, CONSTITUTES GRAVE DERELICTION OF HER CONSTITUTIONAL AND STATUTORY DUTIES AND/OR UNLAWFUL AND CULPABLE NEGLECT, BOTH OF WHICH CONSTITUTE BETRAYAL OF PUBLIC TRUST.

4.01.06 OMBUDSMAN GUTIERREZ’S MANIFEST BIAS IN ISSUING ARBITRARY DISMISSAL AND SUSPENSION ORDERS AGAINST CHIEF EXECUTIVE LOCAL OFFICIALS, PARTICULARLY ILOILO GOVERNOR NEIL TUPAS AND BATAAN GOVERNOR ENRIQUE GARCIA, RESPECTIVELY, CONSTITUTES GRAVE ABUSE OF DISCRETION IN THE EXERCISE OF HER FUNCTIONS, AMOUNTING TO BETRAYAL OF PUBLIC TRUST. 4.02 OMBUDSMAN MA. MERCEDITAS NAVARROGUTIERREZ COMMITTED CULPABLE VIOLATION OF THE PHILIPPINE CONSTITUTION. 4.02.1 OMBUDSMAN GUTIERREZ VIOLATED THE RIGHT TO DUE PROCESS OF LAW UNDER SECTION I, ARTICLE III OF THE CONSTITUTION BY ARBITRARILY AND CAPRICIOUSLY ISSUING SUSPENSION AND/OR DISMISSAL ORDERS AGAINST CHIEF LOCAL OFFICIALS, PARTICULARLY ILOILO GOVERNOR NEIL TUPAS AND BATAAN GOVERNOR ENRIQUE GARCIA, WHICH IS A CULPABLE VIOLATION OF THE CONSTITUTION. 4.02.2 OMBUDSMAN GUTIERREZ VIOLATED SECTION 16, ARTICLE III OF THE CONSTITUTION THROUGH HER INORDINATE DELAY IN THE

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DISPOSITION OF THE GRAFT AND CORRUPTION CASES BEFORE IT, INCLUDING THE FORMER AGRICULTURE UNDERSECRETARY JOCELYN “JOCJOC” BOLANTE FERTILIZER FUND SCAM, FORMER JUSTICE SECRETARY HERNANDO “NANI” PEREZ EXTORTION CASE AND EUROGENERAL SCANDAL, WHICH IS A CULPABLE VIOLATION OF THE CONSTITUTION. 4.02.3 OMBUDSMAN GUTIERREZ VIOLATED SECTION 12 AND SECTION 13, PARAGRAPHS 1, 2 AND 3, ARTICLE IX ON WHICH HER MANDATE TO BE THE PROTECTOR OF THE PEOPLE IS ENSHRINED, WHICH ARE CULPABLE VIOLATIONS OF THE CONSTITUTION. V. DISCUSSION I. BETRAYAL OF PUBLIC TRUST 5.01

Betrayal of public trust is a new ground added by the

Constitutional Commission to cover all manner of offenses unbecoming of a public functionary which are not punishable by the criminal statutes, like “inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, (and) obstruction of justice.1

OMBUDSMAN GUTIERREZ BETRAYED PUBLIC TRUST BY DELIBERATELY DISREGARDING THE SUPREME COURT’S FINDINGS AND DIRECTIVE ON THE “MEGA PACIFIC GRAFT AND CORRUPTION CASE” WHEREIN THE SUPREME COURT 1

Records of the Constitutional Convention, Vol. 2, page 272, as cited in Philippine Political Law by Justice Isagani Cruz, page 359.

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DECLARED AS NULL AND VOID THE P1.3 BILLION EQUIPMENT PURCHASE CONTRACT BY THE COMMISSION ON ELECTIONS UNDER THE CHAIRMANSHIP OF BENJAMIN ABALOS. 6.01

The Supreme Court, in the case of Information

Technology vs. COMELEC, 2 penned by no other than former Chief Justice Artemio V. Panganiban, declared null and void the Php1.3 billioncontract for the purchase of automated counting machines entered into by the Mega Pacific and Commission on Elections (COMELEC) under the chairmanship of Benjamin Abalos. The illegality and irregularities surrounding the contract have seriously eroded the credibility, integrity and independence of COMELEC. It should be underscored that this null and void contract has burdened our taxpayers of having to shoulder the P329, 355.26 a month or P3,979,460.24 annually for the storage expenses of the automated counting machines. Needless to state, this was made even worse by scandals involving Chairman Abalos such as the NBN-ZTE Deal, which have necessarily caused the complete collapse of the COMELEC. 6.02

The Supreme Court, in its decision penned by then

Associate Justice Artemio V. Panganiban, said that there were “clear violations of law and jurisprudence” and “reckless disregard of COMELEC’s bidding rules and procedure.” It also ordered the 2

G.R. No. 159139, 13 January 2004.

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Ombudsman to investigate the criminal liability of the public officials and private individuals involved in the nullified and voided contract. It cited irregularities in the bidding process, such as the award of the contract to an unqualified bidder, the changing of the bid specifications in the middle of the evaluation and the award of the contract prior to the report of the Bids and Awards Committee (BAC). It should be underscored that of the members of the Supreme Court, only one justice rendered a dissenting opinion, joined by two other justices. It is worthy to note that the Senate Committee on Accountability of Public Officers and Investigations (Senate Blue Ribbon) chaired by Senator Joker Arroyo also came out with a similar report3 on 12 December 2005 finding several COMELEC officials and members of BAC liable on the illegal and nullified contract. 6.03

In spite of the clear findings of the Supreme Court and

the Senate Blue Ribbon Committee chaired by Senator Joker Arroyo, Ombudsman Gutierrez on 27 September 2006, in a Resolution that shocked many law-abiding citizens, absolved COMELEC Chairman Abalos and other COMELEC officials after overturning her own

3

A copy of which is hereto attached as Annex “A” and made an integral part hereof.

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Resolution

4

, which has earlier found, COMELEC Commissioner

Resureccion Borra, among others, as liable for impeachment.

OMBUDSMAN GUTIERREZ’S INORDINATE INACTION ON THE COLLUSION SCHEME ENTERED INTO BY BIDDERS, GOVERNMENT OFFICIALS AND PUBLIC FIGURES ON THE WORLD BANK-FINANCED ROAD PROJECTS CONSTITUTES BETRAYAL OF PUBLIC TRUST. 7.01

Official notice can be taken of the fact that as early

as May 2006, the Department of Institutional Integrity (INT) of World Bank has already provided the Office of the Ombudsman with an oral briefing on the interim findings of an administrative finding inquiry that the World Bank had conducted into allegations of fraud and corruption in the first phase of the Philippines National Roads Improvement and Management Project (NRIMP-1), a $150 million project, approved by the World Bank Board in February 2000. Notwithstanding such information and her constitutional duty to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient as expressly mandated in Paragraph 1, Section 13, Article XI of the 1987 Constitution, Ombudsman Gutierrez did not initiate any investigation.

4

Dated 28 June 2006. A copy of the Press Release of the Office of the Ombudsman relative to the Resolution recommending the impeachment of Commissioner Borra is hereto attached as Annex “B” and made an integral part hereof.

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7.02

Further, official notice can likewise be taken of the

fact that when the investigation of the World Bank was completed, it furnished Ombudsman Gutierrez with a copy of the Referral Report on November 2007, which contains a summary of the investigation’s findings. In its Referral Report, the Department of Institutional Integrity identifies private contractors, DPWH officials and Filipino public figures who have allegedly participated in the collusive scheme on the World Bank-financed road projects. Again, Ombudsman Gutierrez failed to perform her duty and unduly sat on the investigation. 7.03 On 14 January 2009, the World Bank blacklisted seven firms, including three (3) Filipino contracting firms, namely: EC De Luna Construction Corp., CM Pancho Construction, and Cavite Ideal Construction. It must be underscored that had it not been due to the announcement of the blacklisting of these firms, the alleged collusive schemes and bid rigging would not be brought upon the knowledge of the public since Ombudsman Gutierrez did not do any action on the matter. 7.04

A careful scrutiny of the foregoing incidents would

readily reveal Ombudsman Gutierrez’s her manifest inordinate inaction. The Ombudsman is equipped with all the powers to perform her mandate,

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unfortunately, despite such, Ombudsman Gutierrez idly sit on the controversy. 7.05

The Referral Report submitted to Ombudsman

Gutierrez as early as November 2007 should have already prompted her to motu proprio conduct an investigation on the matter, considering the seriousness of the allegations therein and personalities involved. However, the undisputed fact remains that Ombudsman Gutierrez never acted on the World Bank’s Referral Report which glaringly displays that she was indeed in remiss of her constitutional duty. At present, and since November 2007, no criminal charges have been filed by Ombudsman Gutierrez against the accountable officials on the matter. 7.06

In short, in not promptly conducting investigation

and/or in not filing any criminal charges relative to the World Bank’s Referral Report, Ombudsman Gutierrez committed the sin of omission and guilty of constitutional non-feasance, to the damage and prejudice of our Constitution and of the Filipino people which constitute betrayal of public trust.

OMBUDSMAN GUTIERREZ’S ACT OF FILING LATE AND DEFECTIVE INFORMATIONS ON THE CRIMINAL CASES FILED AGAINST FORMER SECRETARY OF JUSTICE HERNANDO “NANI” PEREZ FOR HIS EXTORTION ACTIVITIES AGAINST FORMER CONGRESSMAN MARK JIMENEZ CLEARLY

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SHOWS HER DELIBERATE INTENT TO CAUSE THE DISMISSAL OF SUCH CASES; OR AT THE VERY LEAST, HER ACT CONSTITUTES GROSS IGNORANCE OF THE LAW AND OVERLY MANIFEST INCOMPETENCE AS OMBUDSMAN, ANY OR ALL OF WHICH CONSTITUTES BETRAYAL OF PUBLIC TRUST. 8.01

In January 2007, Ombudsman Gutierrez issued a

Resolution ordering the filing of graft and extortion charges against former Secretary of Justice Hernando “Nani” Perez based on a complaint filed by former Manila Representative Mark Jimenez for allegedly extorting US $2 million from him. After more than a year, or on 18 April 2008, the Ombudsman filed before the Sandiganbayan several cases against Perez, including an information for violation of Section 3(b) of Republic Act 3019 or the “Anti-Graft and Corrupt Practices Act,” among others. 8.02

Sadly however, the information filed by Ombudsman

Gutierrez was fatally defective, which as expected was eventually dismissed by the Sandiganbayan5 on the ground that the facts alleged in the Information filed by the Ombudsman do not constitute the offense charged.

5

Resolution dated 13 November 2008 on People of the Philippines vs. Hernando Perez, et. al., Crim. Case No. SB-08-CRM-0265 A copy of the Sandiganbayan Resolution is hereto attached as Annex “C” and made an integral part hereof.

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8.03

In light of Ombudsman Gutierrez’s twenty-one (21)

years of experience in the Department of Justice, her act of filing a defective information after so much delay constitutes a deliberate attempt to cause the eventual dismissal of the case6; or at the very least, her act constitutes gross ignorance of the law and manifest incompetence as Ombudsman. OMBUDSMAN GUTIERREZ BETRAYED PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE INACTION ON THE GRAFT AND CORRUPTION CASES ON THE MORE THAN P1 BILLION FERTILIZER FUND SCAM TO PERPETRATE MASSIVE FRAUD IN THE 2004 PRESIDENTIAL ELECTIONS INVOLVING FORMER UNDERSECRETARY OF AGRICULTURE JOCELYN “JOCJOC” BOLANTE WHICH WAS SEPARATELY FILED BEFORE HER OFFICE BY THE SENATE OF THE PHILIPPINES, FORMER SOLICITOR GENERAL FRANK CHAVEZ AND MURDERED JOURNALIST MARLENE ESPERAT

P728 Million Fertilizer Fund Scam Case7 9.01.

The more than P1 billion Fertilizer Fund Scam of

Jocelyn “Jocjoc” Bolante has long been pending before the Ombudsman since 20 February 2006 when the Senate of the Philippines transmitted8 its findings and all the evidence it had gathered on the scam and the 6

Ombudsman Gutierrez’s inordinate filing of the complaint has caused the dismissal of another case involving former Secretary of Justice Perez, which was expressly stated in Sandiganbayan Resolution dated 20 November 2008; People of the Philippines vs. Hernando Perez, Crim. Case No. SB-08-CRM-0266. A copy of which is hereto attached as Annex “D” and made an integral part hereof. 7 Transmitted by Senate before the Ombudsman and filed by Former Solicitor General Frank Chavez. 8 A copy of the Senate transmittal, which was duly stamped received by the Office of the Ombudsman is hereto attached as Annex “E” and made an integral part hereof.

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respective filing of complaint by former Solicitor General Frank Chavez and by murdered journalist Marlene Garcia Esperat in May 2004 and in July 2004, respectively. 9.02.

It should be emphasized that, except for the creation in

February 2006 of “Task Force Abono” to investigate the Fertilizer Scam, nothing significant happened to the criminal complaint against former Undersecretary of Agriculture Jocjoc Bolante. To date, although Ombudsman Gutierrez made a public commitment in December 2008 to resolve the Jocjoc Bolante Fertilizer Scam by end of January 2009, however, up to this date, no complaint has been filed yet. 9.03

Ombudsman Gutierrez’s inordinate failure to promptly

resolve the criminal complaint against former Undersecretary of Agriculture Jocjoc Bolante, despite the existence of more than sufficient documentary and testimonial evidences which are more than enough to convincingly establish prima facie evidence of guilt, clearly and undeniably constitutes grave abuse of discretion, manifest injustice, and palpable excess of authority.

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P432 Million Fertilizer Fund Scam9 10.01 In July 2004, Marlene Garcia Esperat, a previous employee of the Department of Agriculture (DA)’s resident Ombudsman in Central Mindanao, filed graft and corruption charges against Jocelyn Bolante, Belinda Gonzales, and other high-ranking DA officials for alleged misuse of a P432-million fertilizer fund under the Ginintuang Masaganang Ani (GMA) Program.

Esperat alleged several anomalies surrounding the

procurement of P432 million fertilizers. 10.02 In the midst of Esperat’s exposé of the said fertilizer scam, she was murdered on 24 March 2005 in front of her 10-year old son, James, while they were having lunch. Up to this date, the crusade against graft and corruption, which Esperat fought for, died with her after Ombudsman Gutierrez dismissed the P432 million graft and corruption charges despite the existence of strong probable cause to the contrary.

OMBUDSMAN GUTIERREZ’S COMPLETE FAILURE TO PROMPTLY RESOLVE THE GRAFT AND CORRUPTION CASE INVOLVING THE EURO-GENERALS, DESPITE OVERWHELMING EVIDENCE, INCLUDING AN ADMISSION FROM GENERAL ELISEO DELA PAZ, CONSTITUTES GRAVE DERELICTION OF HER CONSTITUTIONAL AND STATUTORY DUTIES AND/OR UNLAWFUL AND CULPABLE NEGLECT,

9

Esperat filed the cases before the Ombudsman and were docketed as OMB-C-A-04-0448-1 and OMB-CA-04-0449.

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BOTH OF WHICH CONSTITUTE BETRAYAL OF PUBLIC TRUST.

11.01 The entire police force in the Philippines was put into bad light when PNP Dir. De la Paz was stopped by customs inspectors at Moscow International Airport from boarding a plane after finding 105,000 euros (P6.93M) in his carry-on baggage, which exceeded the 3,000-euro limit for departing passengers. Several investigating bodies in the Philippines have conducted inquiries on said incident, such as the Senate Committee on Foreign Relations, PNP Criminal Investigation and Detection Group (CIDG), PNP Directorate for Investigation and Detective Management (DIDM) and National Police Commission (NAPOLCOM), all of which have found overwhelming evidence and sufficient probable cause to file criminal and administrative complaints against De la Paz and other police officers.10 Immediately, the PNP closed its investigation on 4 November 2008 and turned over to the Office of the Ombudsman the evidence it had gathered on the subject controversy. 11.02

During the 15 November 2008 Senate Hearing, De la

Paz himself admitted that he was the one who authorized the release of the amount from the PNP intelligence fund. Further, Airport Customs Collector Teresita Roque expressly admitted that the PNP delegation’s 10

A copy of each of the investigation report is hereto attached as Annex “F”, “G”, “H” and “I”,

respectively, and made an integral part hereof.

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hand carried bags were not checked when they left Manila International Airport for Russia. They also did not declare any excess currency. De la Paz openly admitted during the Senate hearing on 15 November 2008 that he knows that there is a requirement to declare the excess amount of money. Up to this date, no resolution has been made by the Ombudsman despite the evidence and the public admissions.

OMBUDSMAN GUTIERREZ’S MANIFEST BIAS IN ISSUING ARBITRARY DISMISSAL AND SUSPENSION ORDERS AGAINST CHIEF EXECUTIVE LOCAL OFFICIALS, PARTICULARLY ILOILO GOVERNOR NEIL TUPAS AND BATAAN GOVERNOR ENRIQUE GARCIA, RESPECTIVELY, CONSTITUTES GRAVE ABUSE OF DISCRETION IN THE EXERCISE OF HER FUNCTIONS, AMOUNTING TO BETRAYAL OF PUBLIC TRUST. 12.01

Known political figures, who among others, include

Iloilo Governor Neil Tupas and Bataan Governor Enrique Garcia have all been baselessly suspended and/or dismissed by Ombudsman Gutierrez.

The Case of Iloilo Governor Neil Tupas 12.02

The case of Iloilo Gov. Neil Tupas, who is known to be

in opposition to the present administration, was dismissed by virtue of an order issued by Ombudsman Gutierrez, which was forcibly served by Department of the Interior and Local Government (DILG) on 12 January 2007, a day before the start of the May 2007 election period. From the - 22 -

foregoing, it is reasonable for one to conclude that the evident reason for such dismissal was to effectively disqualify Gov. Tupas from running in the May 2007 Elections. This is a simple case of political harassment.

The Case of Governor Enrique Garcia 12.03

The Ombudsman, in its 28 October 2008 Order, 11

arbitrarily and illegally imposed a six-month preventive suspension against Gov. Garcia for administrative charges supposedly committed during his previous term. This is contrary to the Supreme Court’s rulings in the cases of Aguinaldo vs. Santos12 and Salalima vs. Guingona13 where it upheld the principle that a public official cannot be removed for administrative misconduct committed during a previous term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore. 12.04

Official and judicial notice can be taken of the well-

known fact that majority of the people of Bataan are aware that Ombudsman Gutierrez has a personal grudge against Gov. Garcia, whom she blames for the defeat of her brother Roseller Navarro who ran for mayor in Ombudsman Gutierrez’s hometown, Samal, Bataan, in the last 2007 elections, and recently, for filing criminal charges against her brother that has led to the issuance of more than fifty (50) warrants of 11

In Administrative Case No. OMB-L-A-08-0039-A. G.R. No. 94115, 21 August 1992. 13 G.R. Nos. 117589-92, 22 May 1996. 12

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arrest against the latter. Cases like these prompted the Supreme Court to admonish the Office of the Ombudsman in the case of Venus vs. Desierto [G.R. No. 130319, 21 October 1998] to be wary of undertones of political harassments in its actions. 12.05

In spite of Supreme Court rulings, however, the

arbitrariness of Ombudsman Gutierrez and her lack of respect for due process are very apparent in both cases.

II. CULPABLE VIOLATION OF THE CONSTITUTION “Culpable violation of the Constitution” is the wrongful, intentional or willful disregard or flouting of the fundamental law. The following allegations show how Ombudsman Gutierrez culpably violated the highest law of our land.

OMBUDSMAN GUTIERREZ VIOLATED THE RIGHT TO DUE PROCESS OF LAW UNDER SECTION 1, ARTICLE III OF THE CONSTITUTION BY ARBITRARILY AND CAPRICIOUSLY ISSUING DISMISSAL AND SUSPENSION ORDERS AGAINST CHIEF EXECUTIVE LOCAL OFFICIALS, PARTICULARLY ILOILO GOVERNOR NEIL TUPAS AND BATAAN GOVERNOR ENRIQUE GARCIA, RESPECTIVELY, WHICH IS A CLEAR CULPABLE VIOLATION OF THE CONSTITUTION.

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13.01

Section 1 of Article III of the Constitution provides

that “No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.” The Supreme Court, in various cases14 (please see footnote), has recognized that while public office is not property to which one may acquire a vested right, it is nevertheless a protected right, 15 in which due process must be observed. Further, in Ang Tibay vs. CIR, 16 the Supreme Court laid down seven (7) cardinal rights of a respondent in an administrative case.17 Unfortunately, these were deliberately disregarded by Ombudsman Gutierrez, and thereby deprived the subject local chief executives of their constitutional right to due process of law.

The Case of Iloilo Governor Neil Tupas and Bataan Governor Enrique Garcia 13.02

The Ombudsman rode roughshod over said

cardinal due process rights of Gov. Neil Tupas when Ombudsman Gutierrez issued the order of dismissal against the latter based on a pattern of personal hostility, malice, capriciousness and arbitrariness. 14

Bince v. Commission on Elections, G.R. No. 106291; Namil vs. Commission on Elections, G.R. No. 150540; Sandoval vs. Commission on Elections G.R. No. 133842; Bautista vs. Commission on Elections G.R. Nos. 154796-97; Abella vs. Civil Service Commission, G.R. No. 152574. 15 Bince v. Commission on Elections, G.R. No. 106291 16 69 Phil. 635 (1940). This precedent has been followed unerringly by the Supreme Court in later cases similarly situated, up to the present. 17 Namely: (1) right to a hearing, (2) the tribunal must consider the evidence presented, (3) there must be something to support its decision, (4) the evidence must be “substantial,” (5) the decision must be rendered on the evidence presented at the hearing, (6) the tribunal must act on its or his own independent consideration of the law and facts, and (7) the tribunal should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered.

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This was obvious because in spite of the fact that the Ombudsman for the Visayas based in Cebu originally investigated the cases against Gov. Tupas, the Ombudsman based in Manila suddenly took over the cases without even notifying Gov. Tupas, notwithstanding the provision Section 28 of the Ombudsman Act (R.A. No. 6770), which allows the investigation to be conducted by the Regional Deputy Ombudsman. Further, contrary to the Rules of the Ombudsman, the Petitioners were never given any opportunity to present evidence, to refute adverse evidence, or to submit their position papers. 13.03

Again, as previously stated, the execution of the

dismissal orders against Gov. Tupas notably happened at the start of the election campaign period for the 14 May 2007 elections. Gov. Tupas was known to be running for reelection under the Opposition. The actuation of the Ombudsman in suddenly springing an adverse decision against Gov. Tupas and ordering immediate execution shows the obvious hand of partisan politics. 13.04

In the same way, the earlier cited case of Bataan Gov.

Enrique Garcia, in paragraphs 11.03 to 11.04, shows an arbitrary issuance of a suspension order despite the lack of any legal and justifiable ground. Further, existing jurisprudence is against the said arbitrary suspension order. Definitely, the due process rights of Governor Garcia were violated.

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13.05

Any local official is exposed to risk of the same

arbitrary treatment and violation of due process right from Ombudsman Gutierrez if this practice is left as is.

OMBUDSMAN GUTIERREZ VIOLATED SECTION 16, ARTICLE III OF THE CONSTITUTION THROUGH HER INORDINATE DELAY IN THE DISPOSITION OF THE GRAFT AND CORRUPTION CASES FILED BEFORE HER OFFICE, NAMELY, FORMER UNDERSECRETARY OF AGRICULTURE JOJOC BOLANTE’S FERTILIZER FUND SCAM, THE EUROGENERALS SCANDAL, AND FORMER SECRETARY OF JUSTICE HERNANDO “NANI” PEREZ” EXTORTION CASE, WHICH CONSTITUTES CULPABLE VIOLATION OF THE CONSTITUTION. 14.01

Section 16, Article III of the Constitution states that

“All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.” It must be emphasized that whenever a case is not promptly acted upon by the Ombudsman or dismissed by reason of inordinate delay of the Ombudsman, it is not only the right of the accused that is being violated, but also the people’s rights as well. As correctly held by the Supreme Court in the case of Jose P. Lopez, Jr. vs. Office of the Ombudsman, et

al.,18

18

G.R. No. 140529, 06 September 2001.

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The constitutional right to a ‘speedy disposition of cases’ is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to a case may demand expeditious action on all officials who are tasked with the administration of justice.

14.02

Official notice can be taken of the fact the people have

long pleaded to Ombudsman Gutierrez to promptly act on the cases before her. But the pleas of the people have been left unheeded and fell on deaf ears. Among the several cases in which Ombudsman Gutierrez utterly

failed

to

promptly

resolve

are

the

following:

former

Undersecretary of Agriculture Jocelyn “Jocjoc” Bolante Fertilizer Fund Scam-- unacted upon for almost three years since the Senate transmitted its report on 20 February 2006; former Secretary of Justice Hernando “Nani” Perez Extortion Case -- dismissed by the Sandiganbayan for failing to act on the case when it is more than ripe for resolution 19 ; EuroGenerals Scandal -- despite public admission of De la Paz, and many other graft and corruption cases filed by our vigilant citizens. 14.03

In truth, the only beneficiary in any delay in the

processing of complaints at the Ombudsman's Office is an accused who is guilty to the detriment and expense of all the Filipino people. Bluntly put, where evidence to support a finding of probable cause is so clear and strong that it would be plainly grave abuse of discretion to simply dismiss

19

Per Sandiganbayan Resolution dated 20 November 2008; People of the Philippines vs. Hernando Perez, Crim. Case No. SB-08-CRM-0266. A copy of which is hereto attached as Annex “D” and made an integral part hereof.

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the complaint, there is nothing to prevent the ‘investigator’ and the ‘investigated’ to connive to just allow the case to go unresolved until it becomes “ripe” for the ‘investigated’ to invoke his constitutional right to a speedy disposition of his case. 14.04

Needless to state, each day that a complaint against an

erring public official remains unresolved may constitute manifest injustice as the Filipino people go farther and farther away from the public servants they truly deserve.

Consequently, accountability is

disregarded. Indeed, as British politician William Gladstone once said: “Justice delayed is justice denied.” And even worse, Ombudsman Gutierrez’s utter failure to act on graft and corruption cases involving high-ranking public officials has weakened the democracy in the Philippines.

OMBUDSMAN GUTIERREZ VIOLATED SECTION 1, SECTION 12 AND SECTION 13, PARAGRAPHS 1, 2 AND 3, ARTICLE IX OF THE CONSTITUTION, ON WHICH HER MANDATE TO BE THE PROTECTOR OF THE PEOPLE IS ENSHRINED, AND THESE ARE CULPABLE VIOLATIONS OF THE CONSTITUTION. 15.01

To reiterate Section 1, Article XI of the Constitution:

“Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost

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responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives”. It is not a mere routinary provision in the Constitution but a necessity to perpetuate the nature of the mandate reposed in all public officers who are expected first and foremost to be the protector of the people against abusive and corrupt public officials. 15.02

No less than, Section 12, Article XI of the 1987

Constitution requires that: "The Ombudsman and his Deputies, as protectors of the People, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall in appropriate cases, notify the complainants of the action taken and the result thereof. (Emphasis supplied)”

This provision is likewise reiterated in Section 13 of Republic Act. No. 6770, otherwise known as The Ombudsman Act of 1989. 15.03

From the foregoing provisions, it cannot be denied that

it is constitutionally and statutorily incumbent upon Ombudsman Gutierrez to promptly and swiftly act on all complaints filed before her, pursuant to the constitutional mandates of maintaining honesty and integrity in public service and to take positive and effective measures against graft and corruption to ensure that public office will always remain as a public trust. 16.01

In sum, all the facts and points raised under betrayal of

public trust, namely, the Mega Pacific Graft and Corruption Case, World - 30 -

Bank-financed Road Projects Collusive Scheme, former Secretary of Justice Hernando “Nani” Perez Extortion Case, Euro-Generals Scandal, former Undersecretary of Agriculture Jocelyn “Jocjoc” Fertilizer Fund Scam, and the arbitrary issuance of dismissal and suspension orders against Governors’ Tupas and Garcia, respectively, establish clear violations of the Ombudsman’s constitutional mandate. 16.02

The Philippines deserves an Ombudsman who will

perform her constitutional mandate and protect the people from graft and corruption – NOT someone who protects the perpetrators of graft and corruption. Our people expect the Ombudsman to ensure honesty and integrity in public service and to take positive actions against graft and corruption. 16.03

The pattern of Ombudsman Gutierrez’s deplorable acts

is highly dangerous. It all points to her lack of respect for the basic requirements of due process and utter disregard of her constitutional mandate which clearly constitute betrayal of public trust and culpable violation of the Constitution.

VI. RELIEF WHEREFORE, PREMISES CONSIDERED, pursuant to the procedure laid down by Section 3, Article XI of the Constitution on

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Accountability of Public Officers, Complainants respectfully pray that the present impeachment complaint against Ombudsman Ma. Merceditas Navarro-Gutierrez be included in the House of Representatives’ Order of Business within ten (10) session days thereafter to determine the sufficiency in form and substance of the instant Impeachment Complaint.

Thereafter, after due proceedings, Complainants pray that the present impeachment complaint against Ombudsman Ma. Merceditas Navarro-Gutierrez be given due course, and for the Committee on Justice of the House of Representatives to submit a report to the House of Representatives recommending the adoption of the present complaint as the Articles of Impeachment against Ombudsman Merceditas N. Gutierrez or adopting its own Resolution of Impeachment.

Thereafter, Complainants pray that the Articles of Impeachment or Resolution of Impeachment against Ombudsman Ma. Merceditas Navarro-Gutierrez, as the case may be, be acted upon favorably by the House of Representatives through the affirmative vote of one-third of its members and said Articles of Impeachment transmitted to the Senate of the Philippines for trial.

Complainants pray for other just and equitable relief.

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