Speech (Impeachment against Ombudsman Merceditas Gutierrez)
Rep. Kaka J. Bag-ao, AKBAYAN Partylist
Committee on Justice
March 2, 2011 / Speaker Belmonte Hall, South Wing Annex, House of Representatives
Good morning, Mr. Chair, colleagues in the Committee on Justice, ladies and gentlemen.
“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.”
This is the first section of the 1987 Constitution’s Article on Accountability of Public Officers (Article XI).
PUBLIC TRUST – this is the essence of today’s proceedings.
In the same Article on Accountability of Public Officers, we find the provisions on Impeachment (Sections 2 and 3) and the provisions on the Office of the Ombudsman (Sections 5-14). On one hand, the article provides impeachment as an accountability mechanism, enumerates the officers who can be removed only by impeachment, and the offenses that serve as grounds for impeachment. On the other hand, the article creates the Office of the Ombudsman and enumerates its vast powers.
This combination of the provisions on Impeachment and the provisions on the Ombudsman under the same article, the Article on Accountability of Public Officers, is not accidental. Indeed, the Office of the Ombudsman, under the Constitution, is the primary office in our system of government that has the special responsibility for ensuring the accountability of public officials. This is the reason for the creation of the Office of the Ombudsman as an independent office. This is the reason for the provision that the Ombudsman can be removed only by impeachment.
Unfortunately, or, perhaps, fortunately, we are here today to hold the incumbent Ombudsman accountable. We are here today to use the accountability mechanism of impeachment against the person who is supposed to be the lead accountability official of the government.
The Ombudsman is special, extraordinarily special. In fact, the Constitution states that the Ombudsman shall be known as TANODBAYAN (Sec. 5). The Constitution calls the Ombudsman and his/her deputies, “PROTECTORS OF THE PEOPLE”. (Sec. 12) In the deliberations of the 1986 Constitutional Commission, the terms “TANGGOL BAYAN” and “BANTAY BAYAN” were considered as the name of the Ombudsman.
Malinaw na malinaw po na ayon sa ating Konstitusyon, ang Ombudsman ang dapat TANOD. Siya dapat ang BANTAY. Siya dapat ang TAGAPAGTANGGOL NG BAYAN. Siya dapat ang SUMBUNGAN NG BAYAN.
Pero ngayon po, ang Ombudsman ang ISINUSUMBONG ng bayan. Ang TANODBAYAN, naging TUTULOG-TULOG o NAGTUTULOG-TULUGAN. Ang dapat na TAGAPAGTANGGOL NG BAYAN, naging TAGAPAGTANGGOL NG MAY KASALANAN at KUNSINTIDOR NG KATIWALIAN.
Ang mga ebidensiya po nito ang ilalahad natin ngayon.
We are here to indict the incumbent Ombudsman, MERCEDITAS GUTIERREZ, for BETRAYAL OF PUBLIC TRUST, and for CULPABLE VIOLATION OF THE CONSTITUTION. Ombudsman Merceditas Gutierrez, in her five years in office, has convincingly demonstrated in so many ways that she is unfit to continue in office.
Mr. Chair, honorable colleagues, ladies and gentlemen, let me count the ways.
UNDER OMBUDSMAN MERCEDITAS GUTIERREZ’S LEADERSHIP,
THE OFFICE OF THE OMBUDSMAN HAS PERFORMED DISMALLY, AS SHOWN, AMONG OTHERS, BY THE LOW CONVICTION RATES ACHIEVED BY THE OFFICE.
THIS INDICATES A LEVEL OF INCOMPETENCE AND INEFFICIENCY THAT AMOUNTS TO GRAVE DERELICTION OF DUTY, IN TURN CONSTITUTING A CLEAR BETRAYAL OF PUBLIC TRUST.
Mr. Chair, Honorable Members of the Committee, the low conviction rate of the Office of the Ombudsman is not a product of imagination. The figures come from several independent and reliable sources, none of which is within the ambit of partisan politics.
First, the Transparency and Accountability Network (TAN) Philippine Human Development Report (PHDR) Issue 2008/2009 reported a downward trend in the actual performance of the Ombudsman in its primary function of prosecuting erring public officials, from 55% in 2007 to 14.43% in 2008. The report concludes that this downward trend in the actual performance of the Ombudsman in its primary function of prosecuting erring public officials paints a dim picture for the country’s overall anticorruption efforts. The report cites that the Millenium Challenge Corporation (MCC) reflects this in their assessment of the Philippines, showing declining scores in the country’s control of corruption – 76% (2007), 57% (2008), and 47% (2009).
Second, the United Nations Development Programme (UNDP) Philippine Human Development Report 2008/2009 echoes the same findings, saying that “After picking itself up and gaining ground from 2001 to 2005, … credibility dropped again to a low level by 2008… Conviction rates have since decreased sharply, … falling dramatically to 14.4 percent by the first semester of 2008, with rates as low as 5 percent in March, 3 percent in May, and zero percent in June…”
Third, in a study conducted by the Philippine Center for Investigative Journalism (PCIJ), which was released very recently (the last part released only yesterday), the conclusion reached is that, “By all indications, … Gutierrez has indeed posted the most ineffectual performance yet by an Ombudsman in the anti-graft agency’s 22-year history. But more than just the supposed lack of funds, donor assessment reports show that the stunningly effete record of the Ombudsman’s Office under Gutierrez is the result largely of her own failure as leader and manager.”
These reports, Mr. Chair and Honorable Members of the Committee, were prepared by independent institutions over which the complainants have neither control nor influence. They are based on records such as reports of the Sandiganbayan, the Commission on Audit, and even the reports of the Office of the Ombudsman. As such, their accuracy is unassailable; and their credibility is unquestionable.
Ang mga pag-aaral pong ito ay nababasa hindi lamang ng mga narito sa ating bayan, kung hindi pati na ng mga nasa ibang bansa. Isang malaking kahihiyan at lamat sa pagsugpo sa korupsyon.
Ipinagsisigawan ni Ombudsman Gutierrez na noong 2008, nakapagtala and Ombudsman ng pinakamataas na conviction rate sa loob ng dalawampu’t isang taong kasaysayan ng Tanggapan ng Ombudsman.
According to her 2008 Annual Report, “The conviction rate of the OMB for CY 2008 is 73.42%. The highest rate in the twenty-one year history of the OMB.”
Mr. Chair, Honorable Colleagues, Mga kababayan, the figure she presents is not what it purports to be. Reading the same report closely, we can see that the Ombudsman is deceiving us all. The 2008 report reveals that the Ombudsman secured conviction of the following public officers, among others:
• Governor, Executive Secretary and Disbursing Officers of the Autonomous Region of Muslim Mindanao for 52 counts of malversation;
• Municipal Trial Court Judge for two counts of acts of lasciviousness and two counts of sexual harassment;
• Municipal Mayor for 221 counts of usurpation of official function.
This tells us that the Ombudsman’s conviction rate shoots up not so much because of the number of persons convicted, but because of the number of counts of criminal offenses for which an accused was convicted.
The PCIJ reports that, “by number of actual persons convicted of corruption, the Sandiganbayan database shows that Gutierrez, in four years, has managed to secure the conviction of less than one senior official per year.”
Sa report din po ng Ombudsman para sa taong 2008, ipinapaliwanag na ang 73.42% conviction rate na sinasabing pinakamataas ay nangyari dahil sa dami ng mga plea bargains na nangyari noong taong iyon, na umabot sa 76.
Ipinagmamalaki po ng Ombudsman ang mga plea bargains. Talaga bang binabargain na ng Ombudsman ang hustisya?
Hindi pa po kasama dito ang knotrobersyal na plea bargain sa kaso ni General Garcia dahil noong nakaraang taon lang ito nangyari. Pero may binanggit din po ang Ombudsman report, para naman sa taong 2009, kaugnay ni General Garcia.
Ipinagmamalaki muli ng Ombudsman ang kasong perjury ni General Garcia bilang “most high-profile conviction secured by the Ombudsman in 2009.”
Hindi po nakakapagtaka, na mula 2005 hanggang 2009, mataas na bilang ng mga kaso – sa kabuoan ay mga kaso laban sa 881 na tao – ang na withdraw ng Ombudsman mula sa Sandiganbayan. Pinakamataas ito sa lahat ng naging Ombudsman.
What are the reasons for the dismal performance of the Ombudsman? It cannot be because of lack of funds or personnel. The PCIJ reports that the Ombudsman under Gutierrez “has enjoyed access to more money than any of her three predecessors combined.”
Mr. Chair, colleagues, ladies and gentlemen, the real reasons are incompetence, inefficiency, gross ignorance of the law, deliberate filing of defective complaint/information, and other faults.
Let us cite a few examples.
Case No. 1 – The Nani Perez case
By now, we are all familiar with the dismissal of the robbery case that was filed against former Secretary Hernando Perez for undue delay. Honorable Members of the Committee, did you know that the first Information for Robbery docketed as Criminal Case No. SB 08 CRM 0266 that was filed against former Secretary Hernando Perez did not allege “intent to gain,” which is an indispensable element for the crime charged – robbery?
Sa simpleng paliwanag, kulang, depektibo, ang isinampang kaso laban kay Nani Perez.
This fatally defective Information was signed by no less than Ombudsman Gutierrez herself. Hindi ba niya pinag-aralang mabuti ang kaso? Hindi ba siya nagsusuring mabuti at gumagawa ng desisyon ayon sa kanyang masusing pag-aaral? Hindi ba niya pinaghahandaan ang mga kaso, lalong lalo na ang mga kasong ang sangkot ay mga matataas na opisyal ng gobyerno kagaya ni Nani Perez?
Mahalaga nga palang banggitin na si Nani Perez ay dating naging “boss” ni Ombudsman Gutierrez sa Department of Justice.
The fatally defective Information, initially released to media for which reason a copy was fortunately preserved, was later withdrawn and substituted with another Information bearing the same docket number, but this time alleging the element of intent to gain.
Sinadya ba ito para matalo?
Case No. 2 – The P200 case
In another case, docketed as SB 08 CRM 0281, Ombudsman Gutierrez filed a fatally defective Information for violation of Section 3(e) of the Anti-Graft and Corrupt practices Act, charging the accused with having caused undue injury to the government in the amount of P200. The Sandiganbayan summarily dismissed the case for lack of probable cause. Indeed, case law teaches us that undue injury to government means “the injury suffered or benefit received can be perceived to be substantial enough and not merely negligible”. (Eusebio vs. Fonacier, G.R. No. L-50691 [December 5, 1994])
Hinahabol ang dalawandaang piso, pinapalusot ang milyon-milyong piso. Sa dalawang kaso pong nabanggit, parehong nadismiss ang kaso na isinampa ng Ombudsman.
Dinidiin ba ang maliliit na isda habang pinapalusot ang malalaking buwaya?
It is one thing for an accused to get acquitted after due trial on the merits; but it is quite another when dismissals of cases are due to indications of some inexcusable negligence or low level of competence as we have alleged in our Complaint.
When criminal cases against erring public officials are dismissed due to some obvious error or even deliberate defect, then there is here a grave miscarriage of justice; an obstruction of justice – a betrayal of public trust that should cause the removal of Ombudsman Gutierrez from office.
NAGFIFILE NG MGA BUTAS BUTAS NA KASO PARA MAKALUSOT ANG AKUSADO.
Ombudsman Merceditas N. Gutierrez is guilty of betraying the public trust by inexcusable neglect in the performance of her duties, as well as her breach thereof by malfeasance or, misfeasance, leading to the dismal performance of the Office of the Ombudsman under her leadership. These includes the centralization of the filing of cases at the central Office of the Ombudsman, the failure of the Ombudsman to recruit personnel to fill up vacancies, and other policies of the Ombudsman that contributed to the miserable performance.
We have here with us a copy each of the two defective criminal informations, the reports of TAN, UNDP PHDR, and PCIJ, and the reports of the Ombudsman and the Sandiganbayan. For the trial of the case, we have Mr. Vincent Lazatin, Executive Director of the Transparency and Accountability Network, who is present here today, as a witness. We will also request the Senate to issue subpoenas to the other public officers and private individuals who can give information on the records of performance of the Ombudsman.
As expert witnesses who can shed light on the operations of the Office of the Ombudsman and the Office of the Special Prosecutor, we have former Ombudsman Simeon Marcelo, and former Special Prosecutor Dennis Villa-Ignacio. Other former and, even incumbent, officials of the Ombudsman will also be identified and presented as witnesses during the trial at the Senate.
Magpapatuloy po tayo. Marami pa po.
Upon opening the website of the Office of the Ombudsman, one is greeted by an array of its supposed programs and services. There is one which will readily caught the attention of the website user – a radio program aptly called “Magsumbong sa Ombudsman”.
It appears, Honorable Members of the Committee, that that is all there is to this incumbent Ombudsman. Pagkatapos po nating magsumbong, wala nang nangyayari. There can be no expectation of a real, substantial and successful prosecution of erring officials.
Ganito po ang nangyari sa kontrobersiyal na NBN-ZTE transaction. Alam na po nating lahat ang mga pangyayari kaugnay ng maanomalyang transaksiyon na ito. Marami na pong lumabas na impormasyon kaugnay nito. Pero ang ipapaliwanag ko ngayon ay ang maanomalyang pag-aksiyon na ginawa ng Ombudsman kaugnay ng kasong ito. Hahatiin po natin sa tatlo ang paliwanag.
Case No. 3 – The NBN ZTE case – Neri and Abalos
On 9 October 2007, then Representative Risa Hontiveros-Baraquel filed a complaint for Corruption (violation of Article 212 of the RPC) before the Ombudsman against former Commission on Elections Chair Benjamin Abalos in relation with the NBN-ZTE Broadband scandal.
It was only on August 27, 2009, or almost two years from the filing of the complaint, when the Office of the Ombudsman issued its resolution to file the criminal case against Abalos and Neri. Even the decision on the administrative case against Neri was likewise issued on the same date.
Despite the findings of the Senate investigation regarding the liabilities of respondents Neri and Abalos, the Ombudsman still unjustly delayed the filing of the charges against the aforementioned individuals. The atrocious delay is inexcusable and appalling because the Ombudsman’s resolution was admittedly based mainly on the Senate report.
In the report of the Senate Committee on Accountability of Public officers and Investigations (Blue Ribbon), dated November 11, 2009, the Blue Ribbon Committtee stated that the investigations “have yielded more than enough information to … discover the culpability of public officers and private individuals who aided and abetted the commission of malfeasance, misfeasance and nonfeasance in government.”
Despite this, the Ombudsman did not perform its job. Even RA 6770 specifically said that the Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties. This is a violation of a clear mandate of the law.
The inexcusable and unexplained delay in the Ombudsman’s action on the NBN ZTE case, indicate either incompetence or deliberate accommodation that amounts to a betrayal of public trust. We must emphasize that the NBN-ZTE case should have been considered a priority case by the Ombudsman, especially in view of the involvement of high-ranking government officials, up to and including President Gloria Macapagal-Arroyo and her husband, Jose Miguel Arroyo.
Worse, the Senate Committee report stated that the “timing of the release is suspect since both Joint Resolutions were dated April 21, 2009 but they were released only on August 27, 2009 at the height of the impeachment proceedings against Ombudsman Merceditas Gutierrez, and before the reopening of this investigation on September 1, 2009.” In fact, the Senate Committee report speculates that the Ombudsman resolution was issued “to pre-empt the Committee Report.” The Senate report further states that “we will show the Ombudsman how to conduct a proper, complete and impartial investigation through this Report.”
This brings us to the next aspects of the case.
Case No. 4 – The NBN ZTE case – former First Gentleman Jose Miguel Arroyo
There were four complaints filed before the Ombudsman against former First Gentleman Jose Miguel Arroyo and former President Gloria Macapagal-Arroyo in relation to the NBN-ZTE deal. All of them were dismissed by the Ombudsman saying that “the panel has not been presented with convincing and solid evidence directly or indirectly linking respondent Jose Miguel Arroyo in the project. The surmises and conjectures presented cannot be given weight.”
In its findings, the Ombudsman merely relied passively on what was presented to the investigation panel or the Senate. No active investigation was conducted by the Ombudsman. But that is not the main point.
The Ombudsman should have found probable cause against First Gentleman Mike Arroyo, in the same way that it found probable cause against Abalos and Neri. The Ombudsman chose to be selective.
On the participation of FG Arroyo, the following testimonies are relevant to show at least “probable cause” of FG’s knowledge, interest, and participation in the ZTE-NBN deal:
• Jun Lozada testified that during one of his conversations with Abalos, Abalos allegedly called FG to settle an issue on amount of commission to be derived from the project. (Joint Resolution, page 26) Lozada further testified on an alleged 4 December 2006 meeting at Wack-Wack attended by FG. (Joint Resolution, page 27)
• Joey de Venecia testified that FG bullied him out of the NBN project and, shoving a finger at him, told him to back off. (Joint Resolution, pages 36-37)
• Jarius Bondoc narrated how Neri mentioned PGMA and/or FG as being involved in the project. (Joint Resolution, pages 21-22)
The Ombudsman ruled that the testimonies of Lozada and de Venecia were sufficient to establish probable cause against Neri and Abalos, but not against FG Arroyo. In filing cases against Neri and Abalos, and allowing FG to go scot-free, the Ombudsman engaged in a double-standard application of the law.
Malinaw na malinaw po. Ang BANTAY NG BAYAN, may tinitingnan, may tinititigan.
We have to mention that the Ombudsman and the former First Gentlemen were law school classmates?
Case No. 5 – The NBN ZTE case – former President Gloria Macapagal-Arroyo
Despite the evidence against Gloria Arroyo implicating her with the corruption charge, the Ombudsman dismissed the complaint filed against her on the ground that the president cannot be sued during her tenure (page 115 of the Resolution).
Despite the allegations against PGMA’s involvement in the ZTE-NBN deal, the Ombudsman failed to investigate and did not investigate PGMA, or her alleged involvement in this case. PGMA was simply dropped as a respondent allegedly due to her presidential immunity from suit. (See Joint Resolution, pages 117-119)
This action of the Ombudsman is clearly contrary to Section 22 of RA 6770, which clearly allows the Ombudsman to do investigation of impeachable officers including the President.
The Ombudsman clearly avoided its mandate to investigate. The Senate report left questions which could be the starting point for the Ombudsman’s investigation– “ 1. She did not do anything actively after Chairman Neri told her of the alleged P200 Million bribe offer by Chairman Abalos; 2.) She still went to China to witness the signing of the Supply Contract with ZTE when the night before, she knew that there were anomalies surrounding the contract; and 3.) She went to play golf in Shenzhen, China upon the invitation of ZTE in spite of the fact that she knew that ZTE was lobbying for a contract with her government. The President should have been more careful and circumspect in her actuations.” (page 91 of the Senate Report)
Even if the president is an impeachable officer and immune from suit, s/he is not beyond the investigatory powers of the Ombudsman. The Ombudsman, if she had wanted to, could have investigated PGMA for the purpose of filing a verified complaint for impeachment. The Ombudsman did not do that. The Ombudsman DELIBERATELY refused to act.
We have here with us a copy of the Senate report, and the Ombudsman’s resolutions.
Sa kaso ng NBN-ZTE, nagsumbong ang bayan at ang mga halal na kinatawan ng bayan. Walang nangyari sa Ombudsman.
Saan magsusumbong ang taumbayan, kung ang sumbungan ay walang pakialam? Kailangan pa bang umabot ang pagsusumbong sa ibang bayan para lamang makamit ang katarungan? Ganun na ba ka-baba ang kalidad ng ating Ombudsman na napipilitan na ang mga tao na tumakbo na lamang sa international bodies para makahingi ng hustisya?
Mr. Chair, honorable colleagues, the appalling inactions of Ombudsman Gutierrez has cast a bad light on our justice system in the international community. The Ombudsman’s repeated and continuous failure to perform her Constitutional mandate to protect the people and act promptly on complaints is a betrayal of the sacred trust that the public bestowed upon her.
A clear example of this is the case of Ensign Philip Andrew Pestaño.
Case No. 6 – The Pestaño case
On September 27, 1995, Philip Pestaño died on board a naval vessel in Bacolod City. According to the Philippine Navy, he committed suicide with a firearm. However, the death of Ensign Pestaño was hounded with uncertainties especially since he previously told his parents that the naval vessel carried shabu worth a staggering P1 Billion pesos. Also, a day before the death of Ensign Pestaño, his parents received an anonymous phone call warning that their son’s life was in danger.
Believing that their son was murdered because of his attempt to expose the anomalies taking place in the naval vessel, the parents of Ensign Pestaño filed a complaint with the Office of the Ombudsman.
On March 2000, Ombudsman Desierto dismissed the complaint but the case was ordered re-opened by Ombudsman Simeon Marcelo on October 27, 2005. The parents of Ensign Pestano finally found a glimmer of hope with the re-opening of the case. However, this hope was only short-lived.
With the assumption into office by Ombudsman Merceditas Gutierrez, the case languished for several years uninvestigated. Despite the report of the Senate Committees on Justice and Human Rights and on National Defense and Security which both stated that the death of Ensign Pestano was NOT due to a suicide but was attended with violence, the Ombudsman did nothing. It seemed that the Ombudsman was determined to keep the circumstances surrounding the death of Ensign Pestaño a complete mystery.
On 24 April 2007, determined to get justice for their son’s death, the parents of Ensign Pestano filed a Communication before the United Nations Human Rights Committee (UNHRC) under the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR). They highlighted the violations of their rights through the actions, or rather, the inaction, of the Philippine Government, including the Office of the Ombudsman.
The parents of Pestano finally found the justice they were looking for from the UNHRC.
On 23 March 2010, the UNHRC issued its Views under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights declaring that the Philippine Government violated its obligations under the ICCPR by failing to provide the parents of Ensign Pestaño “an effective remedy in the form, inter alia, of an impartial, effective, and timely investigation into the circumstances of their son’s death.”
This is a clear manifestation of the Ombudsman’s failure to promptly act on complaints filed before her office. It reflects badly on the capacity of the Philippine justice system to address human rights violations committed against its citizens within its territory. Is this the perception that we want to maintain with the international community? That our government tolerates violations of the basic rights of our citizens? I hope not Mr. Chair.
We have here the findings of both the UNHRC and the Senate Committees on Justice and Human Rights and on National Defense and Security which both stated that the death of Ensign Pestano was not due to a suicide but was attended with violence.
Mr. Chair, hindi po dito nagtatapos ang injustice sa mga naiwan ni Ensign Pestano. Despite the clear pronouncement of the UNHRC that the death of Ensign Pestano was a violent one resulting from a homicide and despite the findings of the Senate Committee that there has been a deliberate attempt to make it appear that Ensign Pestano killed himself, the Ombudsman callously dismissed the complaint filed by the Pestanos through a Resolution dated 15 June 2009.
Ang nakapagtataka, Mr. Chair, the Resolution of the Ombudsman was dated June 15, 2009 but was received by the Pestanos only on July 29, 2010, more than a year after the supposed date of the resolution. Pati ba naman po ba sa pagpapadala ng mismong Resolution, made-delay rin ng isang taon? Lahat na lang ba ng ginagawa ng Ombudsman kelangan may delay? Either that or the resolution was made to appear that it was rendered one year from the actual promulgation of the decision. Why? To reduce their delay from five years to four years perhaps? We can only surmise.
It is interesting to note however, that while it was dated June 2009, the Overall Deputy Ombudsman Casimiro indicated that he was signing pursuant to his delegated authority dated May 17, 2010.
The Pestanos received this resolution on July 29, 2010, one week after the filing of the impeachment complaint against the Ombudsman.
Hindi po ba ito panlilinlang? If this is not betrayal of public trust, then what is? Mr. Chair, as eloquently stated by William E. Gladstone, justice delayed is justice denied. Sa kaso ni Ensign Pestano, hindi pa nakuntento ang Ombudsman sa pagpapatagal ng kaso ng limang taon only to dismiss it in the end. They had to delay even the promulgation of the decision for a year. They even had to resort to deception in order to make it appear that they were only in delay for four years and not five.
Anong klaseng hustisya ang meron tayo? This is not the justice system that the Filipinos deserve?
In addition to the documents that we mentioned earlier, we will present the parents of Ensign Pestano who are here with us today. As complainants in this impeachment case, they hope that they can hold Ombudsman Gutierrez accountable for denying them justice.
We can also present as witnesses Atty. Adel Tamano (who acted as counsel for the Pestanos) and, as expert witness, Dean Merlin Magallona (an International Law expert who can explain the implications of the UNCHR views).
Another complainant is asking for the same remedy. She is no less than former member of the House of Representatives, Risa Hontiveros-Baraquel.
Case No. 7 – The arrest of Risa Hontiveros-Baraquel
At this point, Mr. Chair, honourable colleagues, ladies and gentlemen, allow us to present a clear piece of evidence.
As seen in the video of the arrest of Rep. Hontiveros-Baraquel on March 2006, she was physically restrained by members of the Philippine National Police against her will and taken to Camp Karingal in Quezon City. This occurred during an International Women’s Day rally at Welcome Rotunda and while she was a member of the House of Representatives. When asked why she was being arrested, the police officers who arrested her informed her that she was being arrested for “illegal assembly ata”.
On 13 March 2006, then Rep. Hontiveros-Baraquel filed a complaint for arbitrary detention and violation of parliamentary immunity under Article 124 and 145 of the Revised Penal Code, among others, before the Office of the Ombudsman. Surprisingly, in a resolution dated July 9, 2007, but, again, approved on a much later date, January 31, 2008, the complaint were dismissed by the Office of the Ombudsman stating that Rep. Hontiveros-Baraquel was not “arrested” but merely taken away from the site of the rally for her protection.
Section 1 of Rule 113 defines an arrest as the taking of a person into custody in order that he may be bound to answer for the commission of an offense and is made by the actual restraint of a person to be arrested. However, in complete disregard of this legal definition of arrest, the Ombudsman held that Ms. Hontiveros was not arrested but was merely “taken away from the site of the rally for her protection” and at the time that the police officers took her into their vehicle, the police were merely protecting her from the dispersal of the unlawful rally and to quote the resolution “she was not handcuffed, her finger prints were not taken, no pictures of her were taken, and she was not subjected to questioning, as would have been all normal procedure for persons arrested”.
Mr. Chairman, kahit sinong tao ang makakakita sa video ng paghuli kay Ms. Hontiveros-Baraquel, hindi nila maitatanggi na ang nangyari ay isang pag-aresto. Applying the legal definition of arrest, Ms. Hontiveros-Baraquel was taken into custody and actual restraint against her person was made. No matter how you look at it, the fact remains that Ms. Hontiveros-Baraquel was arrested and not merely taken into protective custody as suggested by the Ombudsman.
Worse, the arrest was made when Ms. Hontiveros was a member of this august body and the Congress was then in session. Article VI, Section 11 of the 1987 Constitution states that a Senator or a member of the House of Representatives, shall, in all offenses punishable by not more than six years imprisonment, must be privileged from arrest while Congress is in session. Despite this, the Ombudsman simply ignored the truth.
Similar to the Pestano case, the complainant who did not get any remedy from the Ombudsman got justice elsewhere. On November 3, 2010, the Commission on Human Rights issued a Resolution on a similar complaint filed by Ms. Hontiveros-Baraquel. Unlike the Ombudsman, the Commission ruled that the complainant was deprived of her liberty without due process of law. More importantly, the Commission likewise made a pronouncement that “there is no law allowing law enforcement to remove a person by force from a situation and detain her for a few hours in the interest of her security”.
Inuulit ko po Mr. Chair, the video speaks for itself, malinaw na inaresto si Ms. Hontiveros –Baraquel ng walang basehan. It seems that only the Ombudsman cannot comprehend this fact. Either the Ombudsman is ignorant of the law or is deliberately ignoring the fact of the arrest for malicious reasons. Kahit alin diyan sa dalawang yan, Mr. Chair, malinaw ang paglabag ng Ombudsman sa kanyang Constitutional mandate.
Mr. Chair, the declaration by the Ombudsman that Rep. Risa Hontiveros-Baraquel’s arrest in March 2006 was lawful is in flagrant violation of the law and amounts to a betrayal of public trust. The Ombudsman, being the protector of the people, is expected to possess the highest qualifications and a profound knowledge of the law. For, how can the Ombudsman effectively protect the people if she does not even have the grasp over the most basic laws of the land? The case of the illegal arrest of Rep. Hontiveros-Baraquel highlights the Ombudsman’s gross ignorance of the law amounting to a betrayal of public trust.
Case No. 8 – The Le Cirque Dinner
After the State of the Nation Address in July 2009, then President Gloria Macapagal Arroyo, together with several cabinet members, Senators and Members of the House of Representatives, went to the United States to meet U.S. President Barack Obama. During this trip to the U.S., it was reported in the New York Post that the former president GMA and her party dined at Le Cirque spending almost Php1,000,000.00 for caviar and other expensive food;
On 12 August 2009, Representative Walden F. Bello wrote a letter to the Ombudsman calling for an inquiry into the P1,000,000.00 dinner at Le Cirque for the party of President Gloria Macapagal-Arroyo, on the ground that this raised the possibility of “illegal, or at the very least, improper acts committed by government officials.”
Representative Walden F. Bello pointed out that regardless of how or by whom the dinner was paid, and whether the funds used are public or private funds,, the incident raises clear violations of several laws and that the level of expenditure is far from being “modest”;
Specifically, Rep. Bello cited possible violations of existing laws, particularly the following:
a) Section 4(h) of Republic Act No. 6713 which provides that public officials shall lead modest lives appropriate to their positions and income appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.
b) Article 211 of the Revised Penal Code which provides as follows:
“Article 211. Indirect Bribery.- The penalties of prision correccional i its medium and maximum periods, suspension and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office;
c) Presidential Decree No. 46 which makes it punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing to any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employees or his immediate relatives.
Representative Walden F. Bello requested Ombudsman Ma. Merceditas Navarro-Gutierrez that the concerned officials should be made to explain why such extravagant expense was incurred, who the public officials were present and where the funds came from;
In the September 30, 2009 hearing of the Committee on Appropriations on the budget of the Office of the Ombudsman, Rep. Bello requested from Ombudsman Gutierrez a status update on the letter request. According to Ombudsman Gutierrez, her office is “already acting” on the complaint.
Again, despite this letter, the discussion between Bello and Ombudsman durin the budget hearing, and despite the widespread public and media clamor for an investigation, the Ombudsman failed to act, once more betraying the public trust reposed in her office to look into official wrongdoing and enforce accountability of public officers. To date, no action on said letter of Representative Walden F. Bello has been heard from the Office of the Ombudsman. Hon. Bello has not received any information from the Office of the Ombudsman as regards any action or status of his complaint letter;
Such inaction or unreasonable and inordinate delay to investigate the Le Cirque incident is a violation of public trust. As already pointed out earlier, the 1986 Constitutional Commission has described betrayal of public trust as referring to all acts even if punishable by statute as penal offenses which would render the officer unfit to continue in office. Betrayal of public interest, breach of official duty by malfeasance or misfeasance, cronyism, favoritism etc. to the prejudice of public interest and which tend to bring the office in disrepute are some illustrations of such betrayal.
By her inaction on the Le Cirque incident, Ombudsman Ma. Merceditas Navarro-Gutierrez has violated not only any law but the fundamental law of the land. Section 12, Article XI of the 1987 Constitution, the Ombudsman and his/her deputies is mandated to act PROMPTLY on complaints filed in any form or manner against public officials. The Ombudsman Ma. Merceditas Gutierrez miserably failed to perform such Constitutional mandate.
Mr. Chair, Honorable Colleagues, OMBUDSMAN MERCEDITAS GUTIERREZ PERFORMED ACTS AMOUNTING TO CULPABLE VIOLATION OF THE CONSTITUTION.
THE REPEATED FAILURES OF THE OMBUDSMAN TO TAKE PROMPT ACTION ON A WIDE VARIETY OF CASES INVOLVING OFFICIAL ABUSE AND CORRUPTION VIOLATES ARTICLE XI, SECTION 12 AND ARTICLE III, SECTION 16 OF THE CONSTITUTION, WHICH MANDATE PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.
Mahalaga pong itanong natin, sinasadya bang Ombudsman ang paglabag sa mandato ng Saligang Batas?
We have to emphasize that other government agencies have asked the Ombudsman to act. Other government agencies did their part and asked the Ombudsman to do her job.
We can cite some examples.
In the Fertilizer Fund Scam, the Senate Committees on Agriculture and Food, and Accountability of Public Officers and Investigations (Blue Ribbon), in its Committee Report No. 54, dated March 1, 2006, made a recommendation to file administrative and criminal charges against the following public officials,in violation of Law on Plunder and Anti-Graft and Corrupt Practices Act (Section 3 [e], Republic Act 3019)
1. Undersecretary Jocelyn “Joc-joc” Bolante
2. Secretary Luis Lorenzo
3. Undersecretary Ibarra Poliquit
4. Undersecretary Belinda Gonzalez
5. Assistant Secretary Jose Felix Montes
However, not one among those recommended by the Senate had been charged by the Office of the Ombudsman. Ombudsman Guttierez has delayed the filing of the criminal cases against the supposed culprits. We have here a certification from the Sandiganbayan that, as of yesterday, March 1, 2011, no case had been filed against these individuals.
The evidence is clear as submitted in Senate Committee Report No.54. Ombudsman Gutierrez failed to prosecute any one of those involved in the Php 728 million fertilizer fund scam. This is a clear violation of her mandate of enforcing public accountability among government officials. This is not merely negligence, this is culpable defiance of the Constitutional mandate and the Senate’s recommendation.
Next, the EURO-GENERALS case.
PNP Director Eliseo De La Paz was the Comptroller of the Philippine National Police at the time, was arrested by customs inspectors at Moscow International Airport on 11 October 2008 after he was found carrying 105,000.00 Euros (P6.93M) in his carry-on baggage, which exceeded the 3,000 – euro limit for departing passengers.
He was investigated by the Philippine Senate upon his return to the Philippines where it was established that he took out foreign currency (Euro) worth more than Ten Thousand United States Dollars. Gen. De La Paz admitted under oath during the hearings of the Senate Foreign Relations Committee, which issued the Senate Committee Report after the hearings, that he brought out of the country more than Ten Thousand United States dollars worth of Euros without declaring the same with the Philippine Customs as required by the Central Bank circulars and that he was aware of that requirement.
Gen. Eliseo De La Paz clearly violated the following Bangko Sentral Regulations: BSP Circular No. 308 issued 2001, MB Resolution No. 1779 issued 2001, as amended by BSP Circular No. 57 issued 2006, and MB Resolution No. 1558 issued 2005 which all require “a person who is bringing into or out of the Philippines foreign currency in excess of $10,000.00 or its equivalent” to furnish the Monetary Board with a statement in writing disclosing the source and purpose for carrying the subject amount of money.
As early as November 13, 2008 the Philippine Senate under Senate Committee Report No. 229, found that “some or all of them (interpol delegation) might be criminally liable under the following laws: Penal Code, for malversation under Article 217; Technical malversation of public funds under Article 220; R.A. 3019, a.k.a Anti-Money Laundering Act of 2001; and the New Central Bank Act, Section 36”. The Philippine Senate even recommended that copies of its report be provided to the Ombudsman for preliminary investigation of the persons with apparent criminal liability, however due to reasons only known to the Ombudsman, the same were not immediately acted upon considering that it took her one year and ten months to act on the matter by suspending the responsible police officers only on September 10, 2010 (Director Silverio Alarcio Jr. of the Directorate for Operations; Director German Doria of the Directorate for Human Resources and Doctrine Development; Chief Supt. Orlando Pestaño, finance service director; Chief Supt. Tomas Rentoy III, budget division director; Supt.Samuel Rodriguez, special disbursing officer and Supt. Elmer Pelobello.)
Next, the COMELEC Modernization Scam, or the Mega Pacific case.
Again, on January 13, 2004 the Supreme Court en banc nullified the COMELEC Resolution. In its decision, the Court said that due to the irregularities in the award, COMELEC has put at grave risk the holding of a credible and peaceful election by shoddily accepting hardware and software that admittedly did not pass the legally mandated requirements, the award was also made illegally and the contract was executed In favor of a non-eligible bidder. The Supreme Court deemed it necessary to refer the matter to the Ombudsman for the investigation and prosecution of those involved in the anomaly.
Likewise, the issue was also brought before the Senate Blue Ribbon Committee. And after conducting parliamentary investigation on the matter, the Committee came out with a report similar to the findings of the Supreme Court. This was embodied on the Senate Committee Report No. 44, of the 13th Congress, Second Regular Session.
The Senate Blue Ribbon Committee referred the criminal prosecution of the erring COMELEC officials to the Ombudsman. This is in consonance with the Supreme Court opinion, that COMELEC Commissioners can be criminally prosecuted before they are impeached. This was provided in the Supreme Court Resolution in A.M. No. 03-8-22 SC.
The Supreme Court Resolution and the referral by the Senate Blue Ribbon Committee is an express and apparent command to the Ombudsman to perform its mandate under the Constitution.
Ironically, the Ombudsman did not take any concrete action on this matter. From the date of the promulgation of the decision of the Supreme Court and the referral of the Blue Ribbon Committee, it took almost two (2) years before it made an initial move.
From her gross inaction, the Supreme Court issued a Resolution dated February 14, 2006, requiring Ombudsman Gutierrez to show cause why she should not be held in contempt for failure to comply with the its directive to investigate and prosecute. And unbelievably, the Supreme Court has to reiterate its directive, in a Resolution dated May 3, 2006.
And, of course, the NBN ZTE case, which was explained earlier.
All these show a pattern.
These Resolutions from the Senate and from the Supreme Court, and the Ombudsman’s stubborn refusal to act, are clear and apparent confirmation that the Ombudsman acted DELIBERATELY in violation of her mandate as provided under the Constitution.
Purposely, the Ombudsman delayed its investigation. One of the purposes of such delay can be deduced from the outcome of her long stalled investigation. The investigation was delayed so that the issue will cool down and so when her resolution finally came which exonerated those who are criminally liable, the degree of scandal is barely retained in the minds of the Filipino people.
The Constitution provides:
“Section 12, Article XI . 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, or any subdivision, agency or instrumentality thereof, including government –owned or controlled corporations…”
To the supposed lead protector of the people, this Constitutional provision is meaningless. There is, not merely negligence, but a blatant and scandalous violation of the Constitutional mandate.
It is not surprising, that, contrary to the supposed special role of the Ombudsman, the Office of the Ombudsman has remained secretive of its records and other pieces of information in its custody in clear VIOLATION OF ARTICLE XI, SECTION 13(6) AND ARTICLE III, SECTION 7 OF THE CONSTITUTION
Verily, the refusal of the Ombudsman to accord ready access to public documents not only was violative of the Constitutional guarantee on public access to information but effectively deprived the public of their participatory right to hold our public officials accountable and ultimately corroded the trust of the people in our public officials.
According to Constitutional Commissioner Colayco, the Ombudsman was created to cure the despair of the common people with our government officials. (II RECORD 265) It is an office which can act in a quick, inexpensive and effective manner on complaints against administrative officials and employees in dealing with people. In this case, instead of securing redress for the people, the Ombudsman indulges corrupt officials and nurtures a culture of impunity.
These constitute clear and culpable violations of Article XI, Section 13(6) and Article III, Section 7 of the Constitution.
All these failings, taken together, indubitably amount to a betrayal of the public trust, and a culpable violation of the constitutionally established duties of the Ombudsman, on the part of Ombudsman Gutierrez. This fact provides more than ample basis for impeaching Gutierrez as Ombudsman of the Philippines under Article XI, Section 2 of the Constitution.
Let me say a final word.
Ombudsman Gutierrez has shown a pattern of inability, inefficiency, and manifest partiality in favor of these high-ranking government officials to the detriment of the welfare of the general public. These amount to an abdication of the Ombudsman’s Constitutional mandate to be a protector of the people. There is no more reason to keep Ombudsman Gutierrez in office.
The case of the hostage-taking by a be-medalled policeman gone rogue – Mendoza – is most illuminating of the extent of damage that the Ombudsman Gutierrez has inflicted on the Office of the Ombudsman where people are driven to commit such heinous crimes as their only means of achieving “justice”, no matter how twisted and macabre, the methods may be.
Are we going to wait for another similar tragic incident just to convince us that we have to act to protect the institution of the Ombudsman and also restore the faith and trust of the people in the government and in like manner, in us, the representatives of the people, who are, in the final analysis, the last vanguard against the abuses of an ombudsman gone rogue.
Like police officer Mendoza, Ombudsman Gutierrez holds everyone hostage. Congress should not allow itself to be held hostage to Ms. Gutierrez. She should be removed from the Office of the Ombudsman.
TAMAAN NA NG KIDLAT ANG DAPAT TAMAAN!
Maraming salamat po.