ACM case going to SC

A government watchdog group questioning the controversial P1.3-billion automated counting machine (ACM) deal between the Commission on Elections and the Mega Pacific consortium will take its fight to the Supreme Court.

Kilosbayan said asking the Office of the Ombudsman to reverse its decision clearing the officials involved in the deal of any criminal or civil liabilities "will just delay the process."

"We will not be filing an MR (motion for reconsideration) because it will just delay the process. We will go directly to the Supreme Court," Kilosbayan legal counsel Romeo Capulong said.

"The Supreme Court had already ruled that the automated counting machines were defective. They were investigating things already ruled on by the Supreme Court. What the Ombudsman did was just revisit the issue. The hearing was grossly abusive of discretion," Capulong said.

He said his group is preparing to file a petition for writ of certiorari before the SC.

Capulong also disputed the claim of Special Prosecutor Dennis Villa Ignacio that Kilosbayan was absent during the so-called clarificatory hearings.

According to Capulong, he was present during the first three hearings conducted by the panel headed by Overall Deputy Ombudsman Orlando Casimiro. He admitted having failed to attend the subsequent hearings as he was hospitalized.

Capulong said he was puzzled by Villa Ignacio’s claim because they had even talked to each other on the second day of the hearing.

"I asked him (Villa Ignacio) why the panel is still tackling issues already decided on by the Supreme Court. He did not give me an answer," he said.

In an earlier press conference, Villa Ignacio said the complainants in the case should not file a memorandum for reconsideration before the Office of the Ombudsman because they did not participate in any of the clarificatory hearings.

Kilosbayan also lashed out at the Ombudsman for coming out with a resolution that "contradicts and defies the established factual findings made by the Supreme Court."

"We hold that by its resolution, the Ombudsman not only contradicts and defies the settled and established factual findings made by the Supreme Court on the case, but stands guilty of blatant abuse of discretion, of perversion of legal process, and of shaming our judicial system," Kilosbayan said in a statement.

The group said the Ombudsman possibly gave in to pressure from Malacañang. "We have no concrete evidence but that is the popular perception," Capulong said.

At the House of Representatives, Majority Leader Prospero Nograles said it was the absence of most of the complainants in the hearings that left the Ombudsman with no choice but to clear the Comelec and Mega Pacific officials.

"They snubbed the hearings several times to prove their charges before the anti-graft body and henceforth, the Ombudsman has to decide based on the evidence presented to them during the course of the investigation," Nograles said.

The Davao City congressman said critics have no right to assail the Ombudsman "because they are partly responsible for the result of the anti-graft body’s ruling."

"The investigators made a fair and appropriate decision in throwing out the case because these complainants had even snubbed the hearings and thus failed to substantiate their charges," he said.

Nograles said the Comelec officials "exercised diligence in proving their position that the government actually saved billions of pesos in awarding the contract to Mega Pacific."

"It is the most responsive because documents presented during the hearings showed that its winning bid was more cost-effective, amounting to only P31.22 per voter, in contrast to the P88.29 offer per vote by the losing bidder, Total Information Management Corp.," Nograles said of Comelec’s choice of Mega Pacific.

"The utter lack of interest on the part of the complainants to appear before the panel was a virtual admission that they neither had the evidence nor resolve to substantiate their ruinous allegations against the respondent Comelec officials," Nograles said in a statement.

"One should remember that the burden of proof lies with the complainants, who have apparently chosen to ignore the opportunities given to them by the Ombudsman to prove their allegations," he pointed out.

Ombudsman Merceditas Gutierrez also found an ally in Surigao del Sur Rep. Prospero Pichay, who brushed aside threats by opposition lawmakers to withhold the Ombudsman’s budget for next year.

"The Ombudsman’s status as an independent constitutional body should keep it outside the administrative control of even the SC," Pichay said.

"There was nothing illegal with the voided poll automation contract inked by the Commission on Elections," he said.

"There is no provision of the Constitution that says the SC can dictate upon the Ombudsman in an administrative manner, meaning, it cannot direct the Ombudsman to conduct a probe or to rule on a controversy in a certain manner," Pichay explained.

"Thus, to assail the Ombudsman’s decision on the grounds that it runs counter to any SC ruling does not hold water," he said. "The Ombudsman should be free from congressional, SC interference."

In an earlier statement, Pichay vowed to defend the Ombudsman’s functions. "The majority will not allow the crippling of the Ombudsman’s crucial functions as prober and prosecutor of government malfeasance and misfeasance by withholding its operating budget next year."

Pichay said the proper venue for the prosecution and punishment of the Comelec commissioners for violating the law would be to file impeachment cases against them in the House.

"In any case, the SC had asked the Ombudsman to probe the circumstances behind the Mega Pacific contract, and not to rule either way for or against the criminal liability of the Comelec and Mega Pacific officials," he stated.

He added that it was highly questionable for the SC to dictate upon the Ombudsman regarding its probe of the Comelec automation deal, since the Comelec was an independent constitutional body.

"The SC never ordered the Ombudsman to indict anyone, only to probe the Mega Pacific deal. And that is what the Ombudsman did, to conduct several hearings and gather and receive evidence, so there should be no conflict with any SC order," Pichay insisted.

Pichay noted that the complainants did not present enough evidence.

"They did not even bother to appear even once, so why should they now assail the Ombudsman for finding no criminal liability?" Pichay asked.

The Mindanao lawmaker also expressed hope that the SC would reconsider its decision barring the use of ACMs in next year’s local elections.

"Sayang naman at nabayaran na iyan (It’s such a waste of money, it’s been paid for already), the Comelec says they can make use of the equipment for the intended purpose of automating next year’s polls. It would be a tragic waste of taxpayer’s money for this current state of affairs to continue." — Mike Frialde, Delon Porcalla