By TOTO CAUSING

(Merceditas Gutierrez; Benjamin Abalos Sr.; Romulo Neri; Mike Arroyo; Gloria Macapagal Arroyo)

“Calculated risks.”

This is the gist of the decision of the Office of the Ombudsman in its apparent bid to hide the plot behind why it indicted former Commission on Elections (Comelec) Chairman Benjamin Abalos Sr. and Social Security Systems (SSS) Chairman Romulo Neri—and punished the latter for a six-month suspension from office.

This is so because they know that Abalos and Neri have a very good chance to be acquitted after trial by the Sandiganbayan on the ground of insufficient evidence.

Such that Abalos and Neri are not actually fall guys. They are plain and simple decoys.

Although not said publicly, Dyaryo Magdalo sees the decision more as a gambit to save face for Ombudsman Merceditas Gutierrez. She now faces the impeachment proceedings. Members of the House of Representatives who are as clean as Abalos and Neri are slated to vote: to impeach her or not.

The Office of the Ombudsman wanted to portray to the whole world that she is doing her job right; that she is hunting down thieves in the government; that she is morally qualified to stay in the exalted office; that she is giving meaning to the basic governmental principle saying “Public Office is a Public Trust.”

She announced she inhibited from deciding the three cases of corruption filed against Jose Miguel Tuazon Arroyo, Gloria Macaraeg Macapagal Arroyo, Abalos and Neri.

But her personal assistant, Assistant Ombudsman Mark Jalandoni monitored the investigation. This presumes she wielded influence as to what should be the outcome of the investigation.

Perhaps the man with the longest and cleanest record of good governance, Salonga and his group Kilosbayan claimed Gutierrez committed “betrayal of public trust and culpable violation of the Constitution.”

Salonga insisted she just sat on, mishandled and dismissed outright various cases pending before the Office of the Ombudsman. He said she “sat on clear graft and corruption cases, some leading to the President herself or that of her closest associates.”

The particular cases cited in the impeachment complaint are:

(1) P1.3 billion Mega-Pacific equipment purchase contract entered into by former Commission on Elections (Comelec) chief Benjamin Abalos Sr., where Abalos and company were later acquitted by the Ombudsman although the contract itself was declared by the Supreme Court as void;

(2) the collusion and bid-rigging in the US$150-million World Bank-financed roads project where the seven contractors and DPWH officials suspected of having a hand therein remained not charged;

(3) extortion case against former Justice Secretary Hernando ‘Nani’ Perez, where it was alleged by then Congressman Mark Jimenez that he was bilked by the former of about $2-million on a power project by an Argentine firm but the criminal case against the Batangueño was dismissed by the Sandiganbayan for violation of the speedy trial right caused by long delay in the filing of the information against him;

(4) P1-billion fertilizer fund mess involving former Agriculture Undersecretary Jocelyn “Joc-Joc” Bolante, who remains scot-free despite the clear showing of probable cause of commission of corruption crimes as shown by the Senate investigations, which also revealed that it led to the murder of journalist Marlene Esparat, the person who first blew the whistle on the scam;

(5) the caper involving former National Police comptroller Gen. Eliseo dela Paz who was caught in Moscow, Russia carrying 105,000 euros (P6.9 million), the amount exceeded the 3,000 euro limit for passengers in Moscow; and

(6) arbitrary dismissal of Iloilo Gov. Neil Tupas and Bataan Gov. Enrique Garcia.

The complaint was lucky to gain the attention of many congressmen. That is although many amongst them were hesitant because they, too, have cases with the Office of the Ombudsman. Some of those who have cases found a perfect opportunity to exchange their votes for the dismissal of their own cases with Gutierrez.

Apparently, the Office of the Ombudsman found a tool in the NBN-ZTE case involving the Couple in the Palace, Abalos and Neri to use to prepare a stage for allied congressmen to give their votes for her.

But the gambit seems not working as planned.

The timing of release of the decision betrayed the secret plan. The packaging is too imperfect to hide what is inside. These manifestations revealed what is hidden: to save the face of Gutierrez and congressmen who would go for her favor come impeachment vote and at the same time hasten the image of the Couple in the Palace.

For how will people believe in their sincerity in office when who are being punished and indicted are the “less guilty”?

Shame on all of you!

Shame on the Office of the Ombudsman! Shame on the Ombudsman herself. Shame on Abalos. Shame on Neri. Shame on the Couple in the Palace.

They freed two persons who could be the “guiltiest” in rigging the $329-million national broadband network project.

The project is in itself anomalous or improper: to install internet facilities even to the remotest barangay and to places and islands with no electric infrastructures that computers cannot be powered on.

For how could the people believe that only Abalos and Neri deserve to be punished?

This only solidifies the belief that this government has the habit of doing what it wills even to the point of public contempt.

This decision of the Office of the Ombudsman came on the heels of the insulting P1-million dinner in Le Cirque in New York and P750,000 dinner in Bobby Van’s in Washington District of Columbus while the people were hungry and mourning for the “Saint of People Power.”

Reading the decision shows it is doubtful to convict Abalos or Neri.

For one, how can Neri be convicted when the proof required is beyond reasonable doubt?

How can it be proven beyond reasonable doubt Neri became interested in the NBN-ZTE project if he will not reveal what did Gloria Arroyo tell him after he revealed to her that Abalos told him: “Sec, may 200 ka dito”?

Secondly, how can Abalos be convicted if there is no proof beyond reasonable doubt that the words “Sec, may 200 ka dito” referred to the supposed kickback that would be given to Neri if both of them will choose not to speak up?

Not only these. Plenty of other matters would show upon reading the decision that the indictment of Abalos and Neri are only actually planned.

Clearly, it would show that there would be no probable cause if the availability of evidence to prove beyond reasonable doubt were used as the basis to decide whether to charge Abalos and Neri in court.

The Charges and The Issues

A reading of the decision of the Office of the Ombudsman shows manifest errors in its disposition of important issues hurled against the Couple in the Palace, Abalos and Neri. They were charged in the complaint filed by lawyer Harry Roque and company.

Others charged were former Speaker Jose de Venecia and his son Joey De Vencia Jr., in a separate complaint filed by lawyer Roel Pulido.

Also charged were Transportation and Communications Secretary Leandro Mendoza, Lorenzo Formoso, Elmer Soneja, Yu Yong, George Zhu Ying, Fan Yan and Hou Wengli. These were charged in a separate complaint filed by Congressman Padilla and the National Bureau of Investigation (NBI).

Let it be cleared, however, that Dyaryo Magdalo and this author do not have the purpose of influencing any official body that handle the next phase that may come—through a motion for reconsideration or a petition for certiorari before the Supreme Court as these concerns criminal charges.

To begin with, these bodies are occupied by persons who know the science and principles of laws and their applications to facts.

The most important issue in the case is whether Gloria Arroyo can be included as a respondent, or an accused.

Nevertheless, there were four other main issues, which are whether the four persons being “accused” are probably guilty: (a) of “entering into a contract” that is grossly and manifestly disadvantageous to the government; (b) of “giving” unwarranted benefit or “causing” undue injury to a party including the government; (c) of “becoming interested” in any contract or transaction or business where they intervened in official capacity or in which they are prohibited by the Constitution or law from having any interest therein; and (d) of corrupting a public official.

The first three charges are based on Republic Act 3019, or the so-called Anti-Graft and Corrupt Practices Act, particularly its Section 3, sub-paragraphs g, e and h, respectively.

The fourth refers to violation of Article 212 of the Revised Penal Code.

The panel that conducted the preliminary investigation for the Office of the Ombudsman were composed of Director Caesar D. Asuncion, Deputy Special Prosecutor Jesus A. Micael, Deputy Special Investigator Robert E. Kallos, Assistant Ombudsman Rodolfo A. Elman and Deputy Ombudsman for the Military and Other Law Enforcement Office Emilio A. Gonzalez III as the chairman.

The decision was approved by Overall Deputy Ombudsman Orlando C. Casimiro for Gutierrez inhibited herself.

The Errors

The first error Dyaryo Magdalo saw in the resolution of the Office of the Ombudsman is its resolution to exclude Mrs. Arroyo as one of the accused. Its reason is flawed when it says she enjoyed immunity being the sitting President.

The Ombudsman tried to distinguish acts done by a sitting president as a class done with clear authority, another done on a judgment call that it was within the authority and the other that was clearly done without authority.

It then made a postulate that only when there is no contest or it is clear or unmistakable that the act was done without authority that the sitting president can be stripped of immunity.

On this, the Ombudsman said: “…If he (the President) decides wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over this determination.”

The Ombudsman decided to drop Mrs. Arroyo from the list of the accused without explaining why the acts of entering into a contract was not without authority.

This is a clear error.

First, let it be cleared that the Ombudsman itself believed there is probable cause that Abalos indeed tried to bribe or corrupt Neri with P200 million. It even used this fact in indicting Abalos for the crimes of “corruption” of an officer and “becoming interested” in the proposed contract to install a gigantic broadband network across the country.

As such, the P200-million bribe being alleged is believable considering the amount of the proposed project: $329 million in US currency. This is equivalent to 16.5 billion in Philippine pesos!

So that if the Ombudsman believed in the P200-million bribe try infecting the contract, how can then it be said that Mrs. Arroyo could have authority to proceed with the said contract?

Even a Grade 1 pupil can clearly distinguish this to be revolting to conscience—that it was a clear bribery such a President has no authority to proceed with.

She allowed the contract procedures to be completed before withdrawing when public outrage erupted.
So why she was dropped as a respondent or an accused when it was clearly unauthorized to proceed with the contract?

Explain, Office of the Ombudsman!

Unexplained acquittal of Mr. Arroyo

The second error of the Office of the Ombudsman is it absolved or acquitted Mr. Arroyo.
In dismissing the case against him, the Ombudsman offered a one paragraph reasoning, which reads:

“Concerning the criminal complaint against respondent Jose Miguel T. Arroyo, the same should be dismissed. The panel has not been presented with convincing and solid evidence directly or indirectly linking respondent Jose Miguel T. Arroyo in the project. Suffice it to state that only surmises and conjectures have been presented to this panel for assessment. To be certain, these presumptions cannot be given any weight.”

More than half of the Filipino people watched the saga as the NBN-ZTE investigation was unfolding in the Senate.

The testimonies of Jun Lozada cannot be discarded. He had everything to lose yet he risked everything and appeared to tell all in the Senate. If he were lying, he will never ever do that only to put his life on the line.
The testimonies of Jose “Joey” de Venecia Jr., son of the former Speaker, cannot also be set aside.

In so doing, Joey knew that his father will be kicked out if he would speak about matters that will surely implicate the Couple in the Palace.

Since he and his family had everything to lose if he would speak, it is then legally presumed that he was telling the truth when he risked everything in exchange for revealing what he wanted to reveal.
And when he spoke, Joey spoke loud and with conviction.

It must be stressed that despite the most grueling cross-examination done by senators allied to the Couple in the Palace, Lozada and Joey stood their ground. The public knows this.

So that how could the Office of the Ombudsman explain that it was just “conjectures and surmises” or “lies” when Joey revealed that Mr. Arroyo shouted at him: “BACK OFF!”

Joey revealed this “Back Off” encounter occurred in one of the meetings about the project. Joey was there because he was competing to bag the project under the Amsterdam Holdings Inc.

So that how could the Office of the Ombudsman now “BACK OFF” from its erroneous decision or resolution?

Execution of contract not required

The third error committed by the Office of the Ombudsman is when it acquitted Abalos and Neri from the charge of “entering” into a contract grossly and manifestly disadvantageous to the government and the charge of “causing” undue injury to a party or “giving” unwarranted benefit to a party.

In so acquitting, the Office of the Ombudsman reasoned out that these crimes did not occur because there was no contract to begin with.

It reasoned out that there was no contract because the President officially withdrew from the contract and that withdrawal was officially conveyed to China President Hu Jintao.

This is incorrect because the two laws—Section 3(e) and Section 3(g) of Rep. Act 3019—did not require that a contract must have been executed.

The Office of the Ombudsman conveniently overlooked the fact that the Section 3(g) merely says “entering” and it does not say “entered.”

So that it should have been enough that there was an attempt to enter or an act of entering and not necessarily completing the act of entering.

The office also erred in concluding that since there was no contract to speak of, there could be no undue injury to any party or give of unwarranted benefit to any private party.

What about the injury caused on the Joey de Venecia in the form of lost opportunity to bid?

Were it not for their unfair acts, Joey could have won the bidding. Of course, Joey had already spent a lot in the form of buying bid forms that costs hundreds of thousands of pesos. He had already paid his technical staffers in preparing their project proposal. He also suffered undue injury in the form of sleepless nights, anxieties, fears and besmirched reputation? He could have not been shouted at by Mr. Arroyo with “back off” if only the contract bidding and vetting was done above board.

Obviously, the Office of the Ombudsman parochially looked only at the amount of the contract to acquit Abalos and Neri such that when there is no contract there is no amount of money lost.

Ombudsman betrayed by own ruling

All these errors of the Office of the Ombudsman became evident when it ruled to indict or hail to court Abalos and Neri on the charge of “becoming interested” in a contract, transaction or business.

If there was no contract according to it, then why the office found probable cause to bring Abalos and Neri to trial by ruling that the two became interested in a contract or transaction or business?

Is the contract it refers to in this charge different from the one stated as errors?

Moreover, the Ombudsman took as a gospel truth that Mrs. Arroyo officially withdrew the contract.
If there was no contract to begin with, then there should be nothing to withdraw?

So that if these errors were to be corrected, the Couple in the Palace should be charged along with Abalos and Neri, in conspiracy, for violations of Section 3(e), (g) and (h) of RA 3019.

With respect to corruption of officer charge under Article 212 of the Revised Penal Code, it is incorrect that the office did not indict the Couple in the Palace along with Abalos because the latter cannot just make an offer in huge amount of P200 million without the blessing of the principals.

As to Joe de Venecia and his father, it is reasonable that there was insufficient evidence to warrant they were guilty of the crimes charged against them.

On Mendoza and all others accused, particularly the officials of ZTE, they should have been included.

To begin with, the P200-million bribe cannot happen without the cooperation of ZTE officials.

Additionally, it will be Secretary Mendoza who would sign the contract being the secretary of the department in charge of the broadband network project. That is, although the paper was established to have been lost.

And before Mendoza should sign, all his trusted officials must examine first the contract and sign the same to recommend to him the approval of the contract. Until there, the conspiracy was clear.

Conspiracy became bigger

Now, the conspiracy became bigger.

The Office of the Ombudsman participated after the fact of these crimes, making its officials as accessories. As such, they can also be prosecuted for obstruction of justice.

Shame on all of you!

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reynz is one Uragon and a Filipino-American, has many years of public accounting & auditing, broadcast investments, housing tax credits and equity investments as his background. Based in the US, he maintains his personal and humor blog at reyna elena dot com. A graduate of Aquinas U, he went to GWU and Temple U in the United States.