CA affirms suspension of Comelec officials in folder scam

MANILA, Philippines - The Court of Appeals (CA) has affirmed the order of the Ombudsman suspending the officials of the Commission on Elections (Comelec) implicated in the botched P690-million ballot secrecy folder deal in the automated polls in May last year.

In a 12-page decision, the special 15th division of the appellate court junked the petition of the Comelec for lack of merit.

The appellate court dismissed the petition filed by the members of the Comelec Bids and Awards Committee (BAC) led by Maria Lea Alarkon in seeking nullification of their suspension order issued on July 29 last year.

The other members of the Comelec committee that filed the petition are Allen Francis Abaya, Ma. Norina Casingal, Martin Niedo and Antonio Santella.

The CA said there was “no grave abuse of discretion on the part of the Ombudsman in issuing the assailed order.”

“A preventive suspension is not a penalty and such an order, when issued by the Ombudsman, is accorded the highest deference unless the order violates Section 24 of RA 6070 (Ombudsman Act of 1989),” stated the ruling penned by Associate Justice Magdangal de Leon.

The CA stressed the Ombudsman has the inherent power to put under preventive suspension any officer or employee of the government pending investigation to determine if the evidence is strong.

The CA allowed the argument of the Ombudsman that it “made a careful assessment of the facts and circumstances of the case” when it issued the suspension order.

Alarkon and the members of the Comelec committee filed the petition in August last year, saying the suspension order on them by the Ombudsman was “too broad” as it also effectively prevented them from discharging their duties.

The petitioners argued their duties and functions were not connected or related to the issue or the accusations against them.

But the CA ruled that questions on the strength of the evidence to support the preventive suspension order are squarely within the jurisdiction of the Ombudsman.

The CA said the law, Section 24, does not require the Ombudsman to issue notice of the charges before an order for a preventive suspension would be issued.

“While preventive suspension order may stem from a complaint, the Ombudsman is not required to furnish the respondent with a copy of the complaint prior to ordering preventive suspension,” the CA explained.

“Finally, it is immaterial that, as petitioners contend, no evidence has been adduced to prove that their continued stay in office might prejudice the case against them. It is sufficient that there exists such a possibility,” the CA said. 

Comelec Commissioner Nicodemo Ferrer said the decision of the CA upholding the suspension order of the Ombudsman on the Comelec officials linked to the ballot secrecy folder project has no bearing in the case.

“Actually there’s no case yet. The Office of the Ombudsman has not even conducted a preliminary investigation. The suspension was implemented (to give way to) the preliminary investigation,” Ferrer said.

According to Ferrer, the suspension was implemented to allow the Ombudsman to determine if the case has merit during the preliminary investigation.

“The suspension order did not state if there was probable cause. The order (of the CA) has nothing to do with it,” Ferrer said.

Comelec executive director Jose Tolentino Jr. is the highest poll official suspended by the Ombudsman but he did not join the petition filed in CA.

The case stemmed from an administrative complaint filed by the Field Investigation Office (FIO) of the Ombudsman against the Comelec officials for violation of the Code of Conduct and Ethical Standards for Public Officials and Employees.

The petitioners were accused of dishonesty, gross neglect of duty, grave misconduct, and conduct prejudicial to the best interest of the service.

A fact-finding body also filed a parallel criminal case against them and two private individuals of OTC Paper Supply for alleged violation of the Anti-Graft and Corrupt Practices Act before the Preliminary Investigation and Administrative Adjudication and Monitoring Office (PAMO), also under the Office of the Ombudsman.

In the complaint, the FIO alleged Tolentino, as head of the Specifications Committee, “provided unwarranted benefits, advantage or preference to OTC Paper Supply by making prior arrangements and/or divulging valuable and confidential information to them as shown by OTC’s astonishing speed to produce a tailor-fitted, Comelec-approved design in just a matter of days.”

The investigation revealed that on Feb. 9, 2010, the private contractor submitted a proposal to the Comelec offering for sale their version of the ballot secrecy folder to be used for the May 2010 elections.

Tolentino presented last Feb. 11 to the Comelec the design prototype of the OTC for its consideration and barely six days later, he was able to present the second design prototype of OTC bearing all the modifications in accordance with the commission’s concerns.

The FIO said the members of the BAC had failed to follow the Manual of Procedures for Procurement of Goods and Services in conducting direct contracting procurement in violation of the Government Procurement Reform Act. – With Sheila Crisostomo