penchants and mindmines

Plagiarism Debases Court's Stature

2010-11-24T11:43:00.002+08:00

In writing decisions, the Supreme Court is building up a body of legal literature that will be read, analyzed, quoted, and referred to not just by lawyers in their pleadings, but by academic researchers as well. Their articles will end up in law journals or journals of other academic disciplines with the ever growing need for interdisciplinary studies.

To add the element of intent for judicial plagiarism to be considered wrong and reprehensible is like adding water to wine. It changes the very essence of the proscribed act. It adulterates the process of engendering knowledge.

Rather than strengthening the safeguards to prevent the act from being committed, the Court loosens the rigor of scholarly judicial writing that can lead to undisciplined cut-and-paste behavior among its fold.

A copied sentence or paragraph in a Supreme Court decision might find itself quoted in an academic article and can be attributed to the Court, when, in fact, it is not the Court's language but someone else's whose work was not properly cited in the Court decision.

If the Court will insist on differentiating plagiarism in the judiciary from that in the academe, its decisions will be relegated to just mere adjudication of rights of the parties involved and will cease as a source of scholarly research that can define norms.

Creating a different norm for dealing with plagiarism in the courts waters down the value of court decisions as a reliable repository of scholarly discussions of or disquisitions on matters brought before the magistrates.

Justices who are supposed to be at the helm of legal philosophy are reduced to mere adjudicators of legal rights between opposing parties and not the legal scholars they ought to be.

It is this that will debase the Court's stature, not the call for justices to rectify an error or for them to resign their posts.

Bantay Boto sa Presinto

2007-05-03T23:36:00.000+08:00

Mga Kababayan:

Paano natin mababantayan ang ating boto?

Sa antas ng presinto, narito ang mga mahahalagang paalala at pamaraan ng pagmamatyag:

1. Siguruhing ang Pinuno ng BEI ay nakatalikod sa mga watcher habang binabasa niya ang bawat balota.

2. Siguruhing ang pagtatala ng mga boto sa Election Returns ng Poll Clerk at sa Tally Board ng Pangatlong Kasapi ng BEI ay nakikita hindi lamang ng mga watcher kundi maging ng mga tao sa labas ng presinto.

Ang mga balota ay babasahin isa isa galing sa bungkos na tig-iisandaan. Habang binabasa ang bawat boto, ang poll clerk at ang pangatlong kasapi ay magkasabay na itatala ang boto sa Election Return at sa Tally Board. Ang pagtatala ay gagawin sa pamamagitan ng patayong guhit sa bawat boto at pahilis na guhit sa bawat panlimang boto.

3. Dahil karaniwang sa gabi ginaganap ang pagbibilang ng mga boto, siguruhing maliwanag sa mga presinto. Maghanda ng mga ilaw na magagamit sakaling magka brown-out.

4. Pagkatapos ng bilangan, siguruhing nasuma ang mga boto nang tama at eksakto batay sa mga natalang boto.

5. Kunin ang numero ng mga sumusunod:
a. Election Returns
b. Selyo para sa Ballot Box.

6. Hintaying matapos ng BEI ang pagfill-up ng mga Election Returns at Certificates of Votes. Huwag iwanan ang presinto hanggang hindi umaalis ang mga kasapi ng BEI para dalhin ang Election Returns sa munisipyo o city hall.

7. Kopyahin ang resulta sa inyong presinto. Kunin ang boto ng bawat kandidato at sumahin din ang boto ng lahat ng kandidato sa bawat posisyon para may maihahambing sa tala ng boto sa antas ng munisipyo o lunsod.

Ang suma total ng boto sa bawat posisyon ay mahalaga para sa pagtatasa ng mga boto sa sunod na antas ng bilangan.

Ito ang mga hakbang upang mabantayan ang ating mga boto sa antas ng presinto. Sa susunod, isusulat ko ang tungkol sa pangangalaga sa ating mga boto sa antas ng bilangan sa munisipyo/lunsod/ probinsya.

Nawa'y makatulong ito sa ating lahat.

Para sa malinis at marangal na halalan,

Dan Adan

Precinct Vote Guard

2007-05-03T23:32:00.000+08:00

Countrymen:

How do we guard our votes? At the precinct level, here are the important reminders and safeguards:

1. Make sure that the chairperson of the BEI positions himself/herself with her back on the watchers who must be able to see every ballot he/she is reading/appraising.

2. Make sure that the tallying of votes in the election returns by the Poll Clerk and at the Tally Board by the Third Member are made in full view not only of the watchers but of the general public

The ballots will be read one by one, in bundles of a hundred each. As each vote is announced, the poll clerk and the third member shall record simultaneously in the election returns and the tally board. Tallies are made by a vertical line for every vote and a diagonal line for every fifth vote.

3. As the counting of votes is normally done at night, make sure that every voting precinct is well lighted. Prepare emergency lighting in case of brown outs.

4. At the end of the counting, make sure that votes tallied are summarized correctly.

5. Get the serial number of the following: a. Election Returns b. Self-locking fixed-length seal

6. Wait for the BEI to complete the accomplishment of Election Returns and Certificates of Votes. Do not leave the polling place until the members of the BEI leaves to transmit the election returns to the municipal/city/ hall.

7. Copy the results in your precinct. Get the number of votes per candidate and add all the votes per position so you can compare these with the tally at the municipal / city level.
The control totals per position are important in conducting an audit of votes at the next level of canvassing.

These are the steps we can take to guard our votes at the precinct level. Next time, I will write about protecting our votes at the municipal / city/ provincial canvassing level.

Hope this helps us all.

For a clean and dignified election,
Dan Adan

BAC has no discretion in determining eligible bidders

2006-11-24T18:03:00.000+08:00

The Office of the Ombudsman ruled that “the BAC exercised its discretion in accepting their (referring to the six corporations that formed the consortium) collective bid as advantageous to the government in ruling MPCs eligibility to bid.”

It likewise points to the ruling in NPC vs Philip Brothers Oceanic Inc, (369 SCRA 629) in saying that “discretion given to the authorities to accept or reject a bid is of such latitude that (courts) should not interfere with unless it is shown that it is used as a shield to a fraudulent award.”

It further relied in GS Transport Corp. vs CA, (382 SCRA 262) to point out that “the determination of the winning bidder should therefore be left to the sound judgment of the agency which is in the best position to evaluate the proposals and to decide which bid would most complement the needed services. The exercise of the discretion to choose the best bid is a policy decision.”

In stressing the discretion of the BAC in accepting MPC’s bid, the Office of the Ombudsman showed an utter disregard of the IRR of EO 40, which were the applicable rules at the time of the bidding.

In the definition of terms in the IRR, eligibility check is defined as follows: “Eligibility Check refers to a simplified form of pre-qualification based on non-discretionary pass/fail criteria, as specified in Sections 16 and 17 of these IRR.”

The Office of the Ombudsman, then, is disregarding the applicable rules which clearly prescribe a “non-discretionary pass/fail criteria” in the determination of the eligibility of the bidders.

The IRR further states:

“16.4. In relation to Section 18 on submission of bids, and subject to the provisions of Section 14.6 of these IRR, the BAC shall determine if each prospective bidder is eligible to participate in the bidding by examining the completeness of each prospective bidder’s eligibility requirements or statements against a checklist of requirements, using a non-discretionary “pass/fail” criteria, as stated in the Invitation to Apply for Eligibility and to Bid, and shall be determined as either “eligible” or “ineligible.” If a prospective bidder is rated “passed” for all the eligibility requirements, it shall be considered eligible to participate in the bidding, and the BAC shall mark the set of eligibility documents of the prospective bidder concerned as “eligible.” If a prospective bidder is rated “failed” in any of the eligibility requirements, it shall be considered ineligible to participate in the bidding, and the BAC shall mark the set of eligibility documents of the prospective bidder concerned as “ineligible.” In either case, the markings shall be countersigned by the BAC chairperson or duly designated authority, and the documents shall be submitted to the head of the agency or his duly authorized representative for review and approval.”

The Eligibility Check is specified in Section 16.7 of the IRR”

“16.7. Eligibility Check for the Procurement of Goods and Civil Works
The determination of eligibility shall be based on the submission of the following documents to the BAC, utilizing the forms prepared by the BAC and using the criteria stated in Section 16.2:

1 BAC certification of the official registration of the prospective bidder, referred to in Section 16.1.1 of these IRR.

2 Technical Documents
a) Valid joint venture agreement, in case of a joint venture.
b) Letter authorizing the BAC or its duly authorized representative/s to verify any or all of the documents submitted for the eligibility check.
c) Statement of the prospective bidder that it is not “blacklisted” or barred from bidding by any government agency, office or corporation, including, in the case of procurement of civil works, non-inclusion in the “blacklist” of contractors issued by the Construction Industry Authority of the Philippines.
d) Statement of the prospective bidder of all its completed contracts in the last three (3) calendar years or more. The statement shall state for each contract whether said contract is:
d.1. Completed: in the last three (3) calendar years or more, as prescribed by the agency in the Invitation to Apply for Eligibility and to Bid; and
d.2. Similar in nature and complexity to the contract to be bid. The term ìSimilarî shall be defined by the concerned agency in the in the Invitation to Apply for Eligibility and to Bid. The statement shall include, for each contract, the following:
d.2.1. For the procurement of goods:
(i) the name of the contract;
(ii) date of the contract;
(iii) kinds of goods sold;
(iv) amount of contract;
(v) date of delivery;
(vi) end userís acceptance; and
(vii) specification whether prospective bidder is a manufacturer, supplier or distributor.”

Take note of the requirement of a valid joint venture agreement for joint ventures.

The fact that the consortium did not submit a valid joint venture agreement should have prompted the BAC to declare it “ineligible.” The BAC is given no discretion in determining the eligibility of the bidders when the IRR specified the use of a “non-discretionary pass/fail criteria.”

The fact that BAC exercised discretion in holding MPC eligible to bid when it was not given any discretion in the determination of eligible bidders, renders its act invalid as it acted without authority. It is not an abuse of discretion but an invalid act that BAC has committed in ruling MPC to be an eligible bidder.

Ombudsman Misreading a Legal Provision

2006-11-09T16:34:00.000+08:00

In justifying the BAC’s finding that MPC is qualified to bid, the Ombudsman ratiocinated:

In any case, section 7 (23) (sic) of Republic Act No. 8436 provides that the BAC may disregard or allow certain deviations or deficiencies in weighing the demonstrable capability of the bidders.

Thus, “In the procurement of this system, the Commission shall adopt an equitable system of deductions or demerits for deviations or deficiencies in meeting all the above stated features and standards.”

This is a clear misreading of the law.

The “equitable system of deductions or demerits for deviations or deficiencies” contained in Paragraph 4 of Sec. 7 (and not Sec 7 (23) as stated in the Ombudsman Supplemental Resolution) pertains to the twenty-three features and standards enumerated in the preceding paragraph of said Section which reads:
“In addition, the System shall as far as practicable have the following features:
1. It must be user-friendly and need not require computer-literate operators;
2. The machine security must be built-in and multi-layer existent on hardware and software with minimum human intervention using latest technology like encrypted coding system;
3. The security key control must be embedded inside the machine sealed against human intervention;
4. The Optical Mark Reader (OMR) must have a built-in printer for numbering the counted ballots and also for printing the individual precinct number on the counted ballots;
5. The ballot paper for the OMR counting machine must be of the quality that passed the international standard like ISO-1831, JIS-X- 9004 or its equivalent for optical character recognition;
6. The ballot feeder must be automatic;
7. The machine must be able to count from 100 to 150 ballots per minute;
8. The counting machine must be able to detect fake or counterfeit ballots and must have a fake ballot rejector;
9. The counting machine must be able to detect and reject previously counted ballots to prevent duplication;
10. The counting machine must have the capability to recognize the ballot's individual precinct and city or municipality before counting or consolidating the votes;
11. The System must have a printer that has the capacity to print in one stroke or operation seven (7) copies (original plus six (6) copies) of the consolidated reports on carbonless paper;
12. The printer must have at least 128 kilobytes of Random Access Memory (RAM) to facilitate the expeditious processing of the printing of the consolidated reports;
13. The machine must have a built-in floppy disk drive in order to save the processed data on a diskette;
14. The machine must also have a built-in hard disk to store the counted and consolidated data for future printout and verification;
15. The machine must be temperature-resistant and rust-proof;
16. The optical lens of the OMR must have a self-cleaning device;
17. The machine must not be capable of being connected to external computer peripherals for the process of vote consolidation;
18. The machine must have an Uninterrupted Power Supply (UPS);
19. The machine must be accompanied with operating manuals that will guide the personnel of the Commission the proper use and maintenance of the machine;
20. It must be so designed and built that add-ons may immediately be incorporated into the System at minimum expense;
21. It must provide the shortest time needed to complete the counting of votes and canvassing of the results of the election;
22. The machine must be able to generate consolidated reports like the election return, statement of votes and certificate of canvass at different levels; and
23. The accuracy of the count must be guaranteed, the margin of error must be disclosed and backed by warranty under such terms and conditions as may be determined by the Commission.”

Nowhere does the law say that "the system of deductions or demerits for deviations or deficiencies" applies to the “demonstrable capability of bidders” as the Office of the Ombudsman would want us to believe.

Factual Determinations in the Mega-Pacific COMELEC Case: Ombudsman vs. SC

2006-11-09T16:23:00.000+08:00

The Ombudsman totally disregarded the findings of the Supreme Court in the Infotech case. Instead, it came up with its own determination on matters that have already been passed upon by the Supreme Court.

On the identity, existence and eligibility of Mega Pacific Consortium as a bidder, the Supreme Court already determined the following:

1. Documents submitted by Mega Pacific Consortium to the BAC failed to establish the identity, existence and eligibility of the alleged consortium as a bidder.
a. The March 7, 2003 letter, signed by only one signatory, “Willy U. Yu, President, Mega Pacific eSolutions, Inc. (Lead Company/Proponent) For: Mega Pacific Consortium” does not by itself prove the existence of the consortium.
b. The letter does not show that MPeI or its president have been duly pre-authorized by the other members of the putative consortium to represent them, to bid on their collective behalf, and more important, to commit them jointly and severally to the bid undertakings.
c. The letter is purely self-serving and uncorroborated.

2. The COMELEC never bothered to check and concretely establish the existence of the claimed consortium or joint venture.

3. The four Agreements namely: Memorandum of Agreement between MPeI and SK C&C; Memorandum of Agreement between MPeI and WeSolv; “Teaming Agreement” between MPeI and Election.com Ltd.; and “Teaming Agreement” between MPeI and ePLDT are not sufficient to establish the joint venture between the MPEI, SK C&C WeSolv, Election.com Ltd and ePLDT.

a. The two MOAs are very similar in wording.
b. Neither of them contains any specifics or details as to the exact nature and scope of the parties’ respective undertakings, performances and deliverables under the Agreement with respect to the automation project.
c. The two agreements are quite bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in the revenues and/or profit from the Contract with COMELEC.
d. The ‘teaming agreements’ specifically ascribed to Election.com Ltd and ePLDT the role of subcontractors but are completely devoid of any pricing data or payment terms.

4. The contract entered into by COMELEC with MPeI never mentioned any consortium or joint venture, of members thereof, much less of joint and several liability.

5. There are no definite indicators as to the amount of investments to be contributed by each party, disbursements for expenses, the parties’ respective shares in the profits, and the like that will make it difficult for COMELEC to enforce the supposed joint and several liabilities of the members of the consortium.

6. The eligibility of the consortium should not have been based on the collective qualifications of its members as the IRR of RA 6957 as amended by RA 7718 or the Build Operate Transfer Law is not applicable.

Despite these findings of the Supreme Court, the Office of the Ombudsman, in its Supplemental Resolution had these to say:

1. The five (5) consortium members advised BAC that MPeI will be their lead proponent for Phase II of the project.

2. Their respective eligibility documents submitted to BAC were all coursed through MPeI as the lead proponent and they were submitted to show that each of them had the qualification to comply with their respective undertakings.

3. The only objection against MPeI was its inability to submit its financial records.

4. To the mind of the BAC this deficiency was supplied by the submission of the financial documents of SK C&C, ePLDT and WeSolve which taken collectively would undoubtedly establish the financial capability of the group as a whole.

5. MPeI’s Articles of Incorporation and Bank Certificate of Deposit show that it has a fully subscribed and paid up capital of Php 300 million pesos, an amount that is over and above the 10% RFP required equity base of the total project cost.

6. The respective undertakings of the parties in the project as shown by the bid documents are as follows:

a) MPeI, a Philippine corporation as the lead proponent of the consortium shall install and maintain integration services and project leadership for the Automated Counting and Canvassing Project of COMELEC.

b) SK C&C, a Korean corporation in good standing is the primary technology proponent and manufacturer of the automated counting machines (ACMs). It has a track record for having supplied counting machines in two (2) Korean national elections with more than 20 million voters.

c) Election.com, a US corporation in good standing, incorporated in the State of Delaware, USA with experience in the USA and Europe shall be responsible for the development of the election canvassing software for COMELEC.

d) WeSolv, which is responsible for the rollout, training, maintenance functions of MPC is a Philippine corporation in good standing since 1996.

e) ePLDT, a wholly owned subsidiary of PLDT shall provide computer security and encryption services.

7. BAC evaluated and ruled that Mega Pacific Consortium had the legal, financial and technical capability to comply with the contract and therefore eligible to bid.

The Supreme Court is not a trier of facts but it does so when facts are needed to pass upon the legality of an act. When facts are essential for the determination of the legality of an act, then the highest court of the land must perforce gather the facts from the documents submitted before it and presented before it during the oral arguments.

When the Supreme Court itself has made factual determinations, such determination must be respected.

When the decisions of lower courts are challenged before the highest tribunal, the Supreme Court itself rarely disturbs the factual findings of these lower courts unless they fall under certain exceptional circumstances.
As held in the recent case of Chua Tiong Tay vs. Court of Appeals and Goidrock Construction and Development Corp.:
“Among the exceptional circumstances where a reassessment of facts found by the lower courts is allowed are when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; when the inference made is manifestly absurd, mistaken or Impossible; when there is grave abuse of discretion in the appreciation of facts; when the judgment is premised on a misapprehension of facts; when the findings went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee.”
The directive of the Supreme Court to the Ombudsman was to determine the probable criminal liabilities of those involved in the transaction. While the Ombudsman is an independent constitutional body, it does not mean it can totally set aside the factual determinations made by any court, much less, the Supreme Court in the cases that come before it for adjudication.

In the supplemental resolution of the Office of the Ombudsman, however, the Ombudsman disregarded the factual determinations of the Supreme Court and substituted it with its own findings to justify the exoneration of the officials and private individuals involved in the highly anomalous transaction.

Can these factual determinations of the Ombudsman stand the mettle when the supplemental resolution is questioned before the Supreme Court?

IRR of EO 40 requires a valid joint venture agreement; COMELEC BAC ignored requirement.

2006-10-18T20:42:00.000+08:00

The main issue on the eligibility of Mega Pacific Consortium can be settled by the applicability of the Implementing Rules and Regulations of Executive Order No. 40.

The Government Procurement Reform Act (GPRA, RA 9184) was approved as a law on January 10, 2003. It was published in newspapers of general circulation the following day and took effect fifteen (15) days after its publication. Thus, GPRA took effect on January 26, 2003.

Prior to the effectivity of the GPRA, Executive Order No. 40 which was signed by Pres. Gloria Macapagal-Arroyo on October 8, 2001 consolidated the procurement rules and procedures for all national government agencies (NGAs), government-owned or –controlled corporations (GOCCs) and government financial institutions (GFIs) and required the use of Government Electronic Procurement System (GEPS). The implementing rules and regulations of EO 40 was signed on February 8, 2002.

With the passage of RA 9184, certain procurement laws, including EO 40 were expressly repealed. However, the law did not specify which implementing rules will have to be followed in the meantime that the IRR of the GPRA has not yet taken effect. This is a legislative oversight that might just prove costly if the Supreme Court will rule later on that the penal liabilities of the persons involved cannot be determined in the absence of a valid IRR of the law governing the procurement.

The Implementing Rules and Regulations of the GPRA consist of two parts – Part I (IRR-A) covers all domestically-funded procurement activities and Part II (IRR-B) covers all foreign-funded procurement activities. IRR-A eventually took effect last October 8, 2003.

The “Invitation to Apply for Eligibility and to Bid” was issued by the BAC of COMELEC on January 28, 2003 or just two days after the effectivity of RA 9184.

Which implementing rules and regulations should the BAC follow?

This was the dilemma of most government offices at that time. They are to comply with the GPRA in their procurement activities but its IRR is not yet in place.

An interesting legal question also arises: Did the express repeal of EO 40 render its implementing rules ineffective?

Procurement is an ongoing activity of government. Its conduct cannot be hampered. Otherwise, major government services will suffer. This indispensable need for procurement in the day to day operations of government renders it unthinkable that Congress, in passing the GPRA into law, intended to halt government operations because of its oversight to provide which implementing rules and regulations will have to govern in the interim that the IRR of GPRA is still being crafted and until said IRR finally takes effect.

Eighteen government offices actually sought the opinion of the Government Procurement Policy Board (GPPB) on the matter. As early as February 5, 2003 or nine (9) days prior to the release of COMELEC-BAC of the eligibility criteria, terms of reference and other pertinent documents to interested bidders, the GPPB already made a pronouncement that “the procedures embodied in E.O. 40 and its IRR shall still apply until the IRR of the GPRA shall have been finally approved.” (TSG NPM 002-2003)

Having established the applicability of the IRR of EO40, let us now consider the most important provisions that apply to the Mega Pacific Case.

Eligibility check is defined under said IRR as a “simplified form of pre-qualification based on non-discretionary pass/fail criteria.” Note the use of the word ‘non-discretionary.’ It means that the BAC has no discretion in the pre-qualification process. The BAC simply has to follow the “non-discretionary pass/fail criteria.”

Under Rule 16.7, the IRR provides, “The determination of eligibility shall be based on the submission of the following documents to the BAC, utilizing the forms prepared by the BAC and using the criteria stated in Section 16.2:
1. BAC certification of the official registration of the prospective bidder, referred to in Section 16.1.1 of these IRR.
2. Technical Documents:
a) Valid joint venture agreement, in case of a joint venture.”

This provision was, in fact, carried over to the IRR-A of RA 9184.

In ruling that there is no irregularity in the BAC decision finding Mega Pacific Consortium eligible for bidding, the Ombudsman relied on the dissenting opinion of Justice Tinga which reads,

“Nowhere in the RFP is it required that the members of the joint venture execute a single written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable may be evidenced not only by a single joint venture agreement but by supplementary documents executed by the parties signifying such intention.”

While it may not have been included in the Request for Proposal issued by the BAC, yet the bidding rules and regulations applicable at the time the COMELEC-BAC conducted the bidding specifically provided that part of the technical documents to be submitted for eligibility is a “valid joint venture agreement, in case of a joint venture.”

A valid joint venture agreement cannot but be a single document executed between and among the members of such joint venture.

We have established that the COMELEC-BAC did not follow the “non-discretionary ‘pass/fail’ criteria in evaluating the eligibility of the bidders. We have also shown that it totally disregarded the requirement for the submission of a valid joint venture agreement by any joint venture desiring to participate in the bid.

Why then, does this Government trumpet its efforts on reforming the bidding process if right at its inception, it will just be disregarded?

Why hail procurement reforms when the Ombudsman, who is supposed to be at the forefront of stamping out corruption and irregularities in government seems to be condoning the acts of COMELEC-BAC in disregarding these laws?

Can the Ombudsman Rule on Criminal Liability in the Preliminary Investigation?

2006-10-17T11:43:00.000+08:00

The Ombudsman stated in its Supplemental Resolution:

“The issues to be resolved in this case may be stated as follows:

a) Should respondents BAC members be held criminally liable under Sections 3(e) and (g) of RA 3019, for having declared MPC eligible and for allowing it to participate in the bid. Corollary thereto, will the same acts give rise to administrative liability for Grave Misconduct, Dishonesty and Conduct Prejudicial to the Best Interest of the Service?

b) Should respondents COMELEC Commissioners be held liable for violation under section 3(e) of RA 3019, when it passed Resolution No. 6074 awarding Phase II contract to MPC, an entity which allegedly did not take part in the bidding and for executing the contract with MPeI an entity which the Supreme Court found to be ineligible?

c) Is the Phase II Contract between COMELEC and MPeI grossly disadvantageous to the government for which reason public and private respondents may be held accountable under Section 3(g) of RA 3019?

d) Finally, should private respondents be held liable for violating Sections 3(e) and (g) of RA 3019 being the beneficiaries of the nullified Resolution and Contract for Phase II?”

Again, this is a manifest error on the part of the Office of the Ombudsman to be ruling on these issues when what was called for was a mere determination of probable cause.

As clarified by the Supreme Court, the task of the Office of the Ombudsman is to determine the existence of probable cause that will warrant the filing of an information. This information shall be filed with the proper judicial body, in this case the Sandiganbayan, which is the one tasked to determine the criminal liability of the accused.

The proper questions that should be answered by the Office of the Ombudsman must be:

a) Is there probable cause that the BAC members violated Sections 3(e) and (g) of RA 3019, for having declared MPC eligible and for allowing it to participate in the bid?
b) Is there probable cause that respondents COMELEC Commissioners violated Sec 3 (e) of RA 3019 in awarding the contract to MPC?
c) Is there probable cause that Chairman Benjamin Abalos, Sr. violated Sec 3(e) of RA 3019 in entering into a contract with Mega Pacific eSolutions, Inc.?
d) Is there probable cause that private respondents have committed any offense under the Revised Penal Code or any other penal statute?

If the Office of the Ombudsman will rule on the issues it stated in the Supplemental Resolution, then it is arrogating upon itself the power and duty lodged with the Sandiganbayan. Clearly, ruling on the criminal liability of the public and private respondents is beyond the powers granted to the Office of the Ombudsman.

Does absence of complainants in the clarificatory hearings affect determination of probable cause?

2006-10-17T11:39:00.000+08:00

Non-appearance of complainants does not take away probable cause. Complainants are not even obliged to present evidence.

The resolution highlighted the non-appearance of the complainants during the public hearings and added that certain individuals “who were making statements before the mass media regarding alleged anomalies in the bidding and award of the Automated Counting and Canvassing Project were likewise invited as resource persons but none of them responded to th[e] panel’s invitation.”

Ombudsman Mercedita Gutierrez capitalized on the absence of complainants to justify the supplemental resolution. As reported in the Philippine Daily Inquirer (October 11), “We had 12 public hearings in the Comelec case. We called and invited all the complainants, witnesses and all others with interest in the case -- many from civil society groups, NGOs and others listed,” Gutierrez said in Filipino. “But the complainants didn’t actively participate and failed to submit their evidence in the 12 hearing days,”

This non-appearance of parties should not have, in any way, affected the resolution of the case. The complainants need not even present evidence as the Office of the Ombudsman can “motu proprio” or on its own, act on any complaint. In fact, the OMB can act even on an anonymous complaint provided there are sufficient leads given by the anonymous complainant. Sec. 3 of Ombudsman Adminstrative order No. 07 provides, “A complaint which does not disclose the identity of the complainant will be acted upon only if it merits appropriate consideration, or contains sufficient leads or particulars to enable the taking of further action.”

This power to investigate on its own is provided for in Article XI, Sec. 13 of the 1987 Constitution
“The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”

and reiterated in Sec. 15 of R.A. No. 6770, which reads:

“Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.”

Likewise, Ombudsman Administrative Order No. 07 As Amended or the Rules of Procedure of the Office of the Ombudsman, Section 4.(f ) provides:

“If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross–examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.”

Thus, if the panel needed the testimonies of the persons they named in the resolution, they could have easily sent written questions to those individuals. It is well within their powers and the Office of the Ombudsman is given wide latitude in the conduct of investigation to gather every possible evidence to bolster the case against erring public officials.

The Ombudsman is an active investigator who should leave no stone unturned in search for evidence; it is not a court that relies on submissions of parties.

Determination of Probable Cause or Establishing Criminal Liability?

2006-10-17T11:29:00.000+08:00

In its resolution, the panel, as approved by the Office of the Ombudsman stated that the clarificatory hearings and further investigation were conducted “in order to determine criminal liability of public and private respondents.”

This mistaken belief by the Office of the Ombudsman might have been caused by the wording of the Supreme Court directive in its decision in the Infotech case. The directive reads: “Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract.”

In its Resolution dated June 15, 2006 which is also quoted in the Ombudsman Supplemental Resolution, the SC, however, clarified this by saying, “Our directive was for OMB to report on its “final determination of whether probable cause exists against any of the public officials (and conspiring private individuals, if any)…”

The job of the Ombudsman, then, is to conduct a preliminary investigation and to gather evidence preparatory to the filing of appropriate criminal or administrative cases with the proper court or the filing of an impeachment complaint if impeachable officials are involved.

“Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.” (Rule 112, Sec. 1, Rules of Court)

What is required in a preliminary investigation is to establish sufficient ground that will give rise to a belief, based on facts presented and gathered during the investigation, that the acts complained of is a criminal offense, and that the persons against whom the complaint is lodged are the ones who performed the acts.

It is not a mere belief that is required but a well-founded belief, meaning the belief must have a strong foundation to stand on. This foundation upon which such belief can be based are the facts gathered during the investigation, either as presented by the parties or as gathered by the investigator during their independent investigation.

A well-founded belief in the preliminary investigation, however, need not amount to belief in certainty of guilt. That certainty will be determined later when the criminal case is prosecuted in court. All that is required in a preliminary investigation is a belief with solid foundation that the respondents are probably guilty of the crime committed.

Yet, the Ombudsman, in its supplemental resolution wrote, “the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed.”

It is during the trial that the criminal liability of the offenders is determined, after all the available and relevant evidence are submitted to the court. This is also in consonance with the principle of ‘presumption of innocence’ that says, “Every person is presumed innocent unless proven guilty.”

In addition, the Ombudsman also reasoned out that “the mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause” and that “the finding of probable cause must, in addition, be supported by a clear and convincing evidence of malice, bad faith, bribery, manifest impartiality, (sic) unwarranted benefit and undue advantage.”

This ratiocination of the Ombudsman finds no support in law or jurisprudence.
Erroneously, the Ombudsman is raising the bar for finding probable cause.

The Ombudsman Supplemental Resolution – A Tragedy of Errors

2006-10-15T16:35:00.000+08:00

The Supplemental Resolution of the Ombudsman exonerating the COMELEC Commissioners and BAC members and the private individuals involved from any criminal and administrative liability is a resolution riddled with errors.

A careful evaluation of said resolution yielded the following very serious and disturbing errors:

1.In conducting the clarificatory hearings and carrying out further investigation, the investigating panel is mistaken in its stated objective “to determine criminal liability of public and private respondents.”

2.The Ombudsman is making an issue on the non-appearance of the complainants when it should not have, in any way, affected the determination of the existence of probable cause.

3.The Ombudsman ruled on matters that are supposed to be ruled upon by the Courts, specifically, the Sandiganbayan.

4.The Ombudsman totally disregarded the findings of the Supreme Court in the Infotech case. Instead, it came up with its own determination on matters that have already been passed upon by the Supreme Court.

5.The Ombudsman reversed the following SC conclusions in the Infotech case:

a.That Mega Pacific Consortium is not eligible to bid and must have been disqualified by the BAC outright.

b.That the bilateral agreements entered into by Mega Pacific eSolutions separately with SK C&C Co., Ltd., WeSolv Open Computing Inc., Election.com Ltd., and ePLDT do not point to any joint and several undertaking to constitute a joint venture arrangement among the parties.

c.That the machines flunked the technical evaluation on certain crucial criteria.

6.The Ombudsman relied heavily on evidence presented by the respondents during the public hearings conducted by the investigating panel, disregarding the results of the field investigation officer and the findings of the Supreme Court in the Infotech case.

7.The Ombudsman erred in holding that the BAC has discretion to rule on the eligibility of MPC and in relying on the principle that the courts should not interfere with such exercise of discretion.

8.The Supplemental Resolution misinterpreted Sec. 7 of R.A. No. 8436 as giving the COMELEC the power to disregard or allow certain deviations or deficiencies in weighing the demonstrable capacity of the bidders.

9.The Ombudsman completely reversed its initial determination of probable cause in its Resolution dated June 28, 2006 without any clear basis.

These errors call for rectification, but how do we hope for a rectification when the Office of the Ombudsman has shown manifest partiality to the cause of the respondents, acting as if it is defending instead of prosecuting the officials involved in this controversy?

There lies the tragedy - if "The Protector of the People" turns out as a defender of corruption.

Dates and Events Relevant to the Procurement of the Automated Counting Machines

2006-10-15T15:24:00.000+08:00

The following relevant dates and events were culled from the following documents and linked sites:

1.Decision of the Supreme Court in G. R. No. 159139, Information Technology Foundation of the Philippines vs. COMELEC promulgated January 13, 2004;

2.Ombudsman Supplemental Resolution on OMB-L-C-04-0922, Kilosbayan Foundation and Bantay Katarungan Foundation vs. Benjamin Abalos, et. al. dated September 27, 2006; and

3.Government Procurement Policy Board (GPPB) Website.

These dates will aid in the analysis of the anomalies that attended the bidding process and the procurement of the automated counting machines.

June 7, 1995 – Congress passed Republic Act No. 8046, An act authorizing the Commission on Elections to conduct a nationwide demonstration of a computerized election system and pilot-test it in the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM) and for other purposes.

December 22, 1997 – Congress enacted Republic Act No. 8436, An act authorizing the Commission on Elections to use an automated election system in the May 11, 1998 national or local elections and in subsequent national and local electoral exercises, providing funds therefor and for other purposes.

February 9, 1998 – COMELEC promulgated Resolution No. 2985, Deciding against full national implementation and limited the automation to the Autonomous Region in Muslim Mindanao (ARMM).

May 1998 Elections – Automated election was conducted in the ARMM while the rest of the country was still on manual counting and canvassing of votes.

May 2001 – Elections
The counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time constraints.

October 8, 2001 – Executive Order No. 40 is signed.
Consolidating Procurement Rules and Procedures for All National Government Agencies, Government-Owned or –Controlled Corporations and Government Financial Institutions, and Requiring the Use of Government Electronic Procurement System

February 8, 2002 – Implementing Rules and Regulations of EO 40 is signed.

March 20, 2002 – IRR of EO 40 is released for circulation.

April 4, 2002 – IRR of EO 40 takes effect.

October 29, 2002 – Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections.
It resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic Transmission.

January 10, 2003 - Republic Act No. 9184 Republic Act No. 9184 Government Procurement Reform Act (GPRA) is signed into law by President Gloria Macapagal-Arroyo

January 24, 2003 – President Gloria Macapagal-Arroyo issued Executive Order No. 172 Allocating the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of an additional P500 million.

January 26, 2003 – Government Procurement Reform Act (GPRA) takes effect

January 28, 2003 – COMELEC BAC issued an “Invitation to Apply for Eligibility and to Bid,” The Pre-Bid Conference was initially set on February 13, 2003 and the submission of applications for eligibility and bid envelopes was initially set on February 28, 2003.

February 5, 2003 – GPPB issued its opinion “that the procedures embodied in E.O. 40 and its IRR shall still apply until the IRR of the GPRA shall have been finally approved.”

February 11, 2003 – COMELEC Issued Resolution No. 5929 clarifying certain eligibility criteria for bidders.

February 14, 2003 – Eligibility criteria, Terms of Reference and other pertinent documents were released to interested bidders.

February 17, 2003 – COMELEC released the Request for Proposal (RFP)

February 18, 2003 – Pre-Bid Conference was held. Submission of bids was set on March 10, 2003.

February 27, 2003 – Mega Pacific eSolutions, Inc. was incorporated.

March 10, 2003 – Deadline for submission of bids.
57 bidders participated. 55 were disqualified; Mega Pacific Consortium and Total Information Management Corporation were found eligible by the BAC.

April 8, 2003 – DOST informed COMELEC that because the results of the automated counting in some precincts did not tally with the manual count there was a need to undertake a retest.

April 11, 2003 – COMELEC advised DOST to perform verification test in order to reconfirm the ACM count by conducting the retest/recounting of every precinct that contain ballots with discrepancies.

April 14, 2003 – DOST submitted to COMELEC its report on the result of the technical evaluation as well as the verification tests of both the Automated Counting Machines of MPC and TIMC

April 15, 2003 – The Financial Bids of the 2 Eligible Bidders were opened.

April 15, 2003 – COMELEC came out with its en banc Resolution No. 6074, awarding the project to Mega Pacific Consortium

April 21, 2003 – BAC submits its recommendation to the Commissioners

May 26, 2003 – 3rd Meeting of the GPPB.
“The members unanimously agreed that Government agencies are justified in applying E.O. 40 in the absence of the IRR of R.A. 9184 that in cases where invitations for bids were issued after the effectivity of R.A. 9184 but before the effectivity of its IRR, procuring entities may continue adopting the procurement procedures, rules and regulations provided in E.O. 40 and its IRR, or other applicable laws.”

May 29, 2003 – Five individuals and entities (including Information Technology Foundation of the Philippines) wrote a letter to Comelec Chair Benjamin Abalos, Sr. protesting the award of the Contract to MPC “due to glaring irregularities in the manner in which the bidding process had been conducted.”

May __, 2003 – Comelec entered into a Contract entitled “The Automated Counting and Canvassing Project Contract” with Mega Pacific eSolutions, Inc.

June 6, 2003 – Comelec Chairman, through Atty. Jaime Paz, rejected the protest and declared that the award “would stand up to the strictest scrutiny.”

June 30, 2003 – The Automated Counting and Canvassing Project Contract was notarized.

October 8, 2003 - The Implementing Rules and Regulations of R.A. 9184 takes effect.

Protect the People; Defend the Republic

2006-10-14T12:23:00.000+08:00

Weep you people of the Philippines!

How I wish that people are really weeping or else seething with rage over the outcome of the Ombudsman’s investigation on the election automation anomaly. I know this is wishful thinking, the spread of political awareness being inversely proportional to the spread of poverty.

And because I do not want to engage in wishful thinking, let me talk about realities highlighted by the Ombudsman’s resolution.

Rejoice, then, you people of the strong republic! Behold your strong republic rise despite the opposition’s noise.

Yes, a new republic is on the rise. A republic where the powerful people have full control of key democratic institutions. The strong republic is being realized, step by step, with methodical precision. All key institutions are yielding to the Palace, the seat of the strong republic.

The Garci scandal allowed us to see a COMELEC that serves the republic well. No impeachment complaint can ever prosper against its officials because Congress is vigilant to protect the interests of this strong republic. The fields are soaked in blood of those who dare go against the rulers. And the military and police need not lift a finger; extrajudicial killings are the work of subversives.

And now, we see an Ombudsman that works legal wonders to make sure that the people of the strong republic are protected against malicious prosecution by those who are besmirching the reputation and good name of its honorable leaders.

Let anyone who happen to go against the republic be dealt with in the harshest degree by applying the strong arm of the law. Let those who support the government and its powerful people get the juiciest government contracts. This is the guiding principle that rules in the hearts and minds of the people in this new republic. This is the bond that strengthens institutions and makes the whole government machinery work wonders for its people.

Why question then the Ombudsman’s supplemental resolution when it is in fact protecting GMA’s people and defending her strong republic?

So, are you complaining?

Pangalagaan ang Sambayanan! Ipagtanggol ang Republika!

2006-10-14T12:22:00.000+08:00

Magluksa ka sambayanan!

Sana nga, nagluluksa ang bayan o di kaya’y nagpupuyos sa galit dahil sa resulta ng imbestigasyong isinagawa ng Ombudsman sa anomalyang kakabit sa modernisasyon ng halalan at pagbili ng mga 'automated counting machines'.. Ngunit alam kong ito’y pangangarap lamang dahil ang saklaw ng kamalayang politikal ay kasalunga ng saklaw ng kahirapan.

At dahil ayokong mangarap na lamang, hayaan ninyong ilahad ko ang mga katotohanang tinanglawan sa pagbaba ng kapasyahan ng Ombudsman.

Magbunyi kayo, mga mamamayan ng Republika! Pagmasdan n’yong tumatayog ang republika kahit pa nag-iingay ang oposisyon.

Tama, isang bagong republika ang sumisibol. Isang republikang ang makapangyarihang mamamayan ang siyang komokontrol sa mga institusyong demokratiko. Nabubuo na ang matatag na republika, paisa-isang hakbang, sa pamamaraang walang-mintis. Lahat ng mahahalagang institusyon ay sumusuporta sa Palasyo, ang sentro ng matatag ng republika.

Ipinakita sa atin ng iskandalo ni Garci ang COMELEC na maayos na naglilingkod sa republika. Walang reklamo ng pagpapatanggal sa mga opisyal ang uusad sa Kongreso dahil mataman nitong pinangangalagaan ang interes ng republika. Ang mga bukirin ay dinidilig ng dugo ng sinumang magtangkang sumuwag sa mga naghahari. At hindi kailangan ng pulis at militar na kumilos dahil lahat ng walang pakundangang pagpaslang ay kagagawan ng mga rebelde.

At ngayon, nakita natin ang Ombudsman, ang tagausig, na kayang gumawa ng mga kababalaghang legal upang pangalagaan ang mga mamamayan ng matatag na republika at maipagtanggol ang mga naghahari laban sa mapanirang pag-uusig ng mga taong nagnanais sirain ang puri, dangal at malinis na pangalan ng mga kagalang-galang na pinuno.

Ang sinumang sasalungat sa Republika ay kailangang panagutin sa ipinapataw na marahas na kaparusahan ng batas. Ibigay sa mga tumatangkilik sa republika ang pinakamalalaking kontrata ng pamahalaan. Ito ang prinsipyong umiiral sa puso at isip ng mga mamamayan nitong bagong republika. Ito ang nagbibigkis at nagpapatatag sa mga institusyon at nagsisigurong ang buong makinarya ng pamahalaan ay gumagana para sa mga mamamayan.

Kaya bakit pa magdududa sa kapasyahan ng Ombudsman samantalang pinapangalagaan lamang nito ang MGA tao ni GMA at ipinagtatanggol ang kanyang matatag na Republika?

O ano, papalag ka?

Protektahan an Namamanwaan; Depensahan an Republika

2006-10-14T12:18:00.000+08:00

Magbangkay kamo, namamanwaan kan Pilipinas!

Sana ngani, nagbabangkay an mga tawo o kaya nagbabaga an anggot dahil sa ibinabang resolusyon kan Ombudsman manongod sa anomalya sa pagbakal kan mga ‘automated counting machines’. Alagad aram kong pangatorogan sana ini dahil an pagrarom nin kaaraman kan mga tawo sa politika kabaliktadan kan paglakop nin pagtios.

Asin dahil habo kong nangangaturugan sana, bayae na ihiras ko an mga katotohanan na nagliwanag sa pagbaba kan resolusyon kan Ombudsman.

Mag-ogma kamo, namamanwaan kan Republika! Hilinga nindo an pagbuswak kan republika dawa pa nagriribok an oposisyon.

Tama, sarong bagong republika an nagtatalubo. Sarong republikang an mga poderosong mamamanwaan iyo an nagkokontrol kan mga demokratikong institusyon. Nabibilog an pusog na republika, pasaro-sarong lakdang, sa paaging mayong paltos. Gabos na importanteng institusyon minauyon sa Palasyo, an sentro kan pusog na republika.

Ipinahiling sato kan iskandalo ni Garci an COMELEC na tultol na nagseserbisyo sa republika. Mayo nin reklamo para sa impeachment an nuarin man makakalusot sa Kongreso ta inaataman kaini an interes kan republika. An mga kabukidan dinudugdog nin dugo kan siisay man na magporbar na lumaban sa mga nakatukaw. Dai na kaipuhan pang magpagal ang pulis saka militar; an mga misteryosong garadanan gibo kan mga rebelde.

Sa ngonian, nahiling ta pa ang Ombudsman na kayang gumibo nin mga ngangalasan tangani na pangatamanan an mga namamanwaan kan pusog na republika asin surugon an mga naghahadi laban sa mga nakakaraot na balubagi asin prosekusyon kan mga tawong gustong raoton an dignidad asin maray na ngaran kan mga ginagalangan na mga lideres.

An siisay man na makontra sa Republika dapat panaguton sa pataw na padusa kan ley. Itao sa mga suportadores kan republika ang pinakadarakulang kontrata sa gobyerno. Ini an prinsipyong nagdadalagan sa puso asin isip kan mga namamanwaan sa bagong republika. Ini ang nagbubugkos asin nagpapapusog sa mga institusyon asin nagsisigurong an bilog na makinarya nin gobyerno nagtatrabaho para sa mga namamanwaan.

Kaya ano ta magduda sa resolusyon kan Ombudsman samantalang pinapangatamanan sana kaini an MGA tawo ni GMA asin dinedepensahan an saiyang pusog na Republika?

Malaban ka?