Anomalous delay

According to Section 12, Article XI of the Constitution, the Ombudsman shall act "promptly" on all complaints filed before it in any form or manner against public officials or employees. "Act" here technically means the performance by the Ombudsman of its duty to investigate the complaint, determine the existence of probable cause to charge the public official and, if so, prosecute him in court. On the other hand "promptly" has no technical meaning and is used in its ordinary sense to connote "soon" or "not long from now".

More than two years ago, or on January 13, 2004 to be exact, no less than the Supreme Court (SC) asked the Ombudsman to determine the "criminal liability, if any", of the public officials involved in Comelec Resolution No. 6074 awarding the contract for Phase II of the AES (automated election system) to Mega Pacific Consortium (MPC), as well as the Contract between the Comelec and Mega Pacific eSolutions (MPEI) executed on an unspecified date but notarized on June 30, 2003. The amount involved in these deals totals P2.5 billion. The SC in its decision promulgated on said date (ITF vs. Comelec, G.R.159139), found the said Resolution and Contract null and void, as a consequence of which, "the purchase of the machines and all appurtenances thereto including the still to be produced software as well as all the payments made therefor (P849, 167, 697.41 by Comelec computation), have no basis whatsoever in law. Thus the SC ordered the recovery of the funds expended pursuant to the void Resolution and Contract from the payees and/or "from the persons who made possible the illegal disbursements without prejudice to possible criminal prosecutions against them".

Today, almost two and a half years later, the Ombudsman has not yet fully complied with the SC directive. While it promptly started the investigation the day after the directive came out, it got stuck there. The SC itself believes that this delay and inaction is already unreasonable and inexcusable so it gave the Ombudsman until June 30, 2006 to complete its investigation. Yet instead of meeting the deadline, news report says that the new Ombudsman, Merceditas Gutierrez is asking for more time!

Such stance only enhances the ugly speculation and growing perception that pressure from powerful and influential quarters is being exerted on her. It gives credence to the previous unconfirmed reports that the former Ombudsman resigned because of the same pressure. There is indeed no plausible reason to spend such a long time before acting on the case. The facts are already determined and established by the SC in the ITF vs. Comelec case (supra). As the SC found:

"The Commission on Elections approved the assailed Resolution and awarded the Subject Contract not only in clear violation of law and jurisprudence but also in reckless disregard of its own bidding rules and procedures. For the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to Mega Pacific Consortium, an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual automation Contract with Mega Pacific eSolutions Inc., a company that joined the bidding but had not met the eligibility requirements.

Comelec awarded this billion peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proffered computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of the elections,…

The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms but have also cast serious doubts on the poll body’s ability and capacity to conduct automated elections. Truly, the pith and soul of democracy–credible, orderly and peaceful elections has been put in jeopardy by the illegal and gravely abusive acts of Comelec"

With such kind of clear and conclusive findings of facts by no less than the SC itself, the Ombudsman’s delay in taking any action already appears to be anomalous especially when taken in the light of the fact that it is so quick and efficient in nailing down lowly government clerks who have incurred a few hundred peso shortages due to extreme necessity. Such unreasonable delay likewise puts to grave and serious doubts the credibility and effectiveness of the current anti-graft and corruption campaign.

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