Impeachment Complaint vs Ombudsman Merceditas Gutierrez

8/8/2019 Impeachment Complaint vs Ombudsman Merceditas Gutierrez

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REPUBLIC OF THE PHILIPPINESHOUSE OF REPRESENTATIVESHouse of Representatives Complex

Constitution Hills, Quezon City

IN THE MATTER OF THEIMPEACHMENT OF MA. MERCEDITASNAVARRO-GUTIERREZ ASOMBUDSMAN OF THE PHILIPPINES,

Renato Reyes Secretary-General of

BAYAN, Mo. Mary John Mananzan ofPAGBABAGO, Danilo Ramos SecretaryGeneral of Kilusang Magbubukid ng Pilipinas (KMP), Atty. Edre Olalia acting Secretary General of National Union ofPeoples’ Lawyers (NUPL), FerdinandGaite Chairperson of COURAGE, JamesTerry Ridon Chairperson of League ofFilipino Students (LFS)

Complainants.

x----------------------------------------------------x

VERIFIED IMPEACHMENT COMPLAINT

COMPLAINANTS, Renato Reyes Secretary General of BAYAN, Mo.

Mary John Mananzan of PAGBABAGO, Danilo Ramos Secretary General

of KMP, Atty. Edre Olalia acting Secretary General of National Union of

Peoples’ Lawyers (NUPL), Ferdinand Gaite Chairperson of COURAGE,

James Terry Ridon of the League of Filipino Students (LFS), most

respectfully state:

PREFATORY STATEMENT



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Public officials are accountable to the people, not “sometimes”, not

“often” times, but at ALL times and must serve them with utmost

“responsibility and efficiency”. Section 1 of Article XI of the Constitution

declares so:

Section 1. Public office is a public trust. Public officers and employees

must at all times be accountable to the people, serve them with utmostresponsibility, integrity, loyalty, and efficiency; act with patriotism and

justice, and lead modest lives.

The Office of the Ombudsman was created by the Constitution

precisely to ensure this.

Under Article XI of the 1987 Constitution, the Office of the

Ombudsman was created as an independent office duty-bound to take

prompt action on complaints filed against public officials and other

employees of the government. By fearlessly taking action and by promptly

investigating and prosecuting complaints brought before it, the Office the

Ombudsman is envisioned to be the bulwark in enforcing public

accountability among public officials.

“Article XI: Accountability of Public Officers

Section 12. The Ombudsman and his Deputies, as protectors of the people,

shall act promptly on complaints filed in any form or manner againstpublic officials or employees of the Government, or any subdivision,

agency or instrumentality thereof, including government-owned or

controlled corporations, and shall, in appropriate cases, notify thecomplainants of the action taken and the result thereof.

Section 13. The Office of the Ombudsman shall have the following

powers, functions, and duties:

1. Investigate on its own, or on complaint by anyperson, 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.”1

1 Section 15 of the RA 6770 or the Ombudsman Law similarly provides: Sec. 15. Powers,Functions and Duties— The Ombudsman shall give priority to complaints filedagainst high ranking government officials and/or those occupying supervisorypositions xxx



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Section 15 of the RA 6770 or the Ombudsman Act on the powers and

functions of the Ombudsman, carries the same provision:

“Sec. 15. 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.” (emphasis supplied)

The above is the reason why the Ombudsman is vested with

independence, as well as vast powers and broad discretion in carrying out

its mandate of enforcing public accountability within the ranks of the

government service. It is expected to take a proactive role in rooting out

corruption, inefficiency and impropriety in government, and not merely

stand as a passive receiver of complaints and evidence from the public.

What is the remedy if the person charged, such as the Ombudsman,

with prosecuting public officials for acts or omissions which appear to be

illegal, unjust, improper or inefficient is herself charged with acts which are

illegal, unjust or improper at the very least appear illegal, unjust, improper

or at the very least inefficient ? The recourse is impeachment under Section

2 of Article XI:

“Section 2. The President, the Vice-President, the Members of theSupreme Court, the Members of the Constitutional Commissions, and the

Ombudsman may be removed from office, on impeachment for and

conviction of, culpable violation of the Constitution, treason, bribery, graftand corruption, other high crimes, or betrayal of public trust. All other

public officers and employees may be removed from office as provided by

law, but not by impeachment.”

Ultimate Facts

Public service is of crucial importance to effective governance. This is

the reason why the Ombudsman was given the broad powers to prosecute

not only acts or omissions that are illegal, unjust or improper but even acts

or omissions that merely APPEARS to be ILLEGAL OR IMPROPER. In fact,



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the Constitution mandates the Ombudsman to prosecute acts or omissions

which constitutes inefficiency.

The impeachment of the Ombudsman, being the only recourse left,

deserves no less than the same standard from Congress acting as an

impeachment body. If the Ombudsman can criminally prosecute lowly

public officials for appearing corrupt, unjust, improper or inefficient, the

Ombudsman must also be impeached for betrayal of public trust should she

be found to have committed the same through her acts or omission. After

all, impeachment is not even a criminal procedure which results in theimprisonment of the respondent. It is not even a civil case where the

respondent may be found liable for damages. It is not even an

administrative complaint in the sense that it results in the banishment of the

respondent from office since an impeachment in the House of

Representatives does not mean the respondent is guilty of the impeachable

offenses charged. Impeaching a public official merely means that the

Articles of Impeachment is transmitted to the Senate, who, in turn, is

required to hear the complaint and decide whether the impeached official

should be allowed to remain in office.

A decision of the House of Representatives impeaching Merceditas

Gutierrez does not mean she is guilty of the offense charged, but rather, that

there is a legal and constitutional basis for the Senate to conduct a hearing

on the complaints filed by concerned citizens.

Presuming that ultimate facts are necessary to be alleged in the

Impeachment Complaint itself, the House should not require more than the

ultimate facts required in the filing of a criminal information. In a criminal

case, after a finding of probable cause, the Prosecutor files an Informationwith the court for the criminal prosecution of the accused, and the ultimate

facts in such Information is generally written in the following manner:



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“That on or about (this date) in (this place) within the territorial jurisdiction of this Honorable Court, the above named accused didthen and there wilfully, unlawfully, and criminally (e.g. stabbed thevictim to death) contrary to law or in violation of (this law).”

The ultimate facts contained in the example above is sufficient in

substance and form to trigger the criminal prosecution of the accused in

court. An impeachment complaint, which is a stage lower than actual

prosecution because it is merely akin to a probable cause hearing before a

prosecutor, should not require more than the above ultimate facts. In fact,

the probable cause hearing before the prosecutor is triggered by a mere

affidavit complaint and any additional data or evidence may be required by

the fiscal during the hearings on the preliminary investigation. An

impeachment complaint, especially in the substance and form stages, only

requires that an impeachment complaint names the respondent and alleges

acts or omission which constitutes the offense and the law or constitutional

provision violated, thus establishing the jurisdiction of the Justice

committee. Inordinately stringent interpretation of the requirements onsufficiency of an impeachment complaint as to substance and form will only

make it difficult if not impossible for impeachment complaints of ordinary

citizens to prosper beyond the first stage of the impeachment process and

will signal the death of the only accountable mechanism left in the

Constitution.

Despite the above arguments, Complainants in herein impeachment

complaint made sure that herein Complain contains similar allegations to

ensure that the complaint fulfills the requirements of the House of

Representatives. The Complaint particularly contains :

(A) the name of the respondent (Merceditas Gutierrez);

(B)the act or omission committed (such as refusal or failure to

prosecute the respondents in the Fertilizer Scam or “Euro General” Eliseo

de la Paz); and

(C) the violation and ground (violation of Article XI of the

Constitution, RA 6770 or the Ombudsman Act, RA 3019 (Anti Graft and



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Corrupt Practices Act) and RA 6713 (Code of Conduct and Ethical

Standards for Public Officials and Employees Act) constituting the

impeachable ground of Betrayal of Public Trust and culpable violation of

the Constitution).

Considering that impeachment is not a criminal complaint, the

Impeachment proceedings should not be more stringent than a Regional

Trial Court trying an accused for a criminal complaint. It should not even

be more stringent than the probable cause proceedings before the state

prosecutor conducting preliminary investigation.

The reasons for the filing of herein impeachment complaint

The incumbent Ombudsman, Ma. Merceditas N. Gutierrez has

miserably failed to live up to the role of Ombudsman during the five (5)

years she has held the position. Far from the zealous and impartial body

envisioned in the Constitution, the Office of the Ombudsman has instead

become synonymous with inaction, delay, partiality and corruption in favor

of high-ranking government officials. During the term of Ombudsman

Gutierrez the filing of a complaint on illegal acts involving then President

Gloria Arroyo, the First Family or top officials of her administration with

the Office of the Ombudsman virtually carried with it a guarantee that the

complaint will all be forgotten, the perpetrators unpunished, and the

taxpayers’ money siphoned into their pockets will never be recovered.

“ There is a crime but there is no criminal” seems to be the rule under

Ombudsman Gutierrez. The Supreme Court found irregularities in the

Mega Pacific deal, but Ombudsman Gutierrez found no criminal that

requires prosecution. The irregularities were found in the congressional

investigation in the NBN ZTE deal, Hello Garci scandal, the fertilizer scam,

and the Euro Generals but Ombudsman Gutierrez found no criminal that

requires prosecution. The Supreme Court in the case of Sec. of Defense vs.



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Manalo and even the Arroyo created Melo Commission identified Gen.

Jovito Palparan accountable for the extra judicial killings and

disappearances in the country, but Ombudsman Gutierrez did not find this

sufficient to prosecute Gen. Palaparan for acts or omissions which, at the

very least, appear illegal or unjust or improper.

The Filipino people deserve an Ombudsman who will perform her

constitutional mandate to protect them from graft and corruption – not

someone who condones –and in essence protects– the very thieves and

traitors that the Office was mandated to prosecute. Our people expect thosewho wield the immense powers of the Office of the Ombudsman to spare

no effort in ensuring honesty and integrity in public service and to take

positive action against graft and corruption. They deserve no less.

As this Verified Impeachment Complaint will show, Ombudsman

Gutierrez’s acts or omissions and failure to investigate or prosecute, taken

altogether, constitute a veritable betrayal of the public trust, and a culpable

violation of the constitutionally established duties of her office. For all that

she has done –and all that she has failed to do – her impeachment from

office is thus most respectfully sought.

NATURE OF THE ACTION

The instant verified Impeachment Complaint is being brought under

Section 2, Article XI, of the 1987 Constitution against Ombudsman Gutierrez

for : (a) Betrayal of Public Trust; and (b) Culpable Violation of the

Constitution

PARTIES TO THE COMPLAINT

The complainants in this Verified Impeachment Complaint are:



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(1) FERDINAND GAITE, Filipino, of legal age and Chairperson of the

Confederation for Unity, Recognition and Advancement of

Government Employees (COURAGE);

(2) RENATO REYES Filipino, of legal age and Secretary General of

BAYAN,

(3) MO. MARY JOHN MANANZAN, Filipino, of legal age and

Convenor of PAGBABAGO,

(4) DANILO RAMOS, Filipino, of legal age and Secretary General of

Kilusang Magbubukid ng Pilipinas (KMP)(5) ATTY. EDRE OLALIA Filipino, of legal age and acting Secretary

General of National Union of Peoples’ Lawyers (NUPL)

(6) JAMES TERRY RIDON, Filipino, of legal age and Chairperson of the

League of Filipino Students.

For purposes of the instant Verified Impeachment Complaint,

complainants may be served with pleadings and processes of the Honorable

House of Representatives at 4th Floor, Erythrina Bldg., No. 1 Maaralin St.,

Central District, Quezon City.

No less than the 1987 Constitution allows the complainants to bring

the instant Verified Impeachment Complaint in pursuance of the imperative

need to maintain the inviolability of public office.

The RESPONDENT in this Verified Impeachment Complaint is MA.

MERCEDITAS N. GUTIERREZ (hereinafter referred to as “respondent” or

“Respondent Ombudsman”) is the incumbent Ombudsman of the

Philippines and is being sued in her official capacity. She may be served

with summons and other processes of the Honorable House ofRepresentatives at the Office of the Ombudsman, Ombudsman Building,

Agham Road, North Triangle, Diliman, Quezon City 1101.



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GENERAL ALLEGATIONS

1. Ombudsman Gutierrez, who assumed office on 30 November 2005, is

the fourth Ombudsman of the Republic of the Philippines.

2. Immediately prior to respondent’s appointment as Ombudsman, she

was appointed by former President Gloria Macapagal-Arroyo as

Chief Presidential Legal Counsel in the Office of the President.

3. Ombudsman Gutierrez graduated from the Ateneo De Manila

University School of Law in 1972 from the same class as erstwhile

First Gentleman Jose Miguel “Mike” Arroyo.

4. Ombudsman Gutierrez’s constitutional duty as Ombudsman is to act

promptly on complaints for acts filed in any form or manner against

public officials or employees of the government, or any subdivision,

agency or instrumentality thereof, including government-owned or

controlled corporations, and shall, in appropriate cases, notify the

complainants of the action taken and the result thereof.

5. Complainants hereby accuse Ombudsman Gutierrez of committing

the impeachable acts of gross betrayal of the public trust and culpable

violations of the Constitution. The present complaint will discuss how

respondent committed these acts warranting her impeachment from

office in the following instances:

(a) Failure and omission to act promptly, in violation of the

Constitution and Philippine laws, on the anomalous disbursement of funds

and other anomalous transactions in the case of the “Fertilizer Scam”

despite Senate Report 54, COA Findings and complaints filed by KMP and

other concerned citizens detailing the anomalies and graft riddenirregularities in the transactions.

(b) Refusal to prosecute Gen. Eliseo de la Paz, in violation of the

Constitution and Philippine laws, one of the “ Euro Generals” for his illegal

act of not declaring before customs officials the more than Ten Thousand



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United States Dollars (US$ 10,000.00) that he brought out (“exported”) of

the country despite his public admission under oath that he committed this

illegal act; and

(c) Repeated failure to take action on the poll automation contract

awarded to the Mega Pacific Consortium which was declared anomalous

and void by the Supreme Court in 2004.

GROUNDS AND ARGUMENTS IN SUPPORT OF

IMPEACHMENT:

BETRAYAL OF PUBLIC TRUST and CULPABLEVIOLATION OF THE CONSTITUTION

I. BETRAYAL OF PUBLIC TRUST

(1) OMBUDSMAN GUTIERREZ

COMMITTED BETRAYAL OF PUBLIC TRUSTTHROUGH HER GROSS INEXCUSABLEDELAY IN INVESTIGATING AND FAILURE INPROSECUTING ANY ONE OF THEOSEINVOLVED ON THE ANOMALOUSTRANSACTIONS ARISING FROM THEFERTILIZER FUND SCAM DESPITE THEBLATANT ANOMALOUS TRANSACTATIONSREVEALED IN THE COA FINDINGS, SENATECOMMITTEE REPORT 54 AND THECOMPLAINTS FILED WITH RESPONDENTON THE “FERTILIZER SCAM”.

(2) OMBUDSMAN GUTIERREZCOMMITTED BETRAYAL OF PUBLIC TRUSTWHEN SHE DID NOT TO PROSECUTE GEN.ELISEO DE LA PAZ FOR VIOLATING BSPCIRCULAR 98 (1995), AS AMENDED BY BSP

CIRCULAR 507 (2006), IN RELATION TOREPUBLIC ACT 6713, WHICH PROHIBITS THETAKING OUT OF THE COUNTRY OFCURRENCY IN EXCESS OF US $ 10,000.00WITHOUT DECLARING THE SAME TO THEPHILIPPINE CUSTOMS, DESPITE THE FACT



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THAT GEN. ELISEO DE LA PAZ PUBLICLYADMITTED UNDER OATH BEFORE THESENATE BLUE RIBBON COMMITTEE THATHE TOOK OUT OF THE COUNTRYCURRENCY IN EXCESS OF US$ 10,000.00WITHOUT DECLARING THE SAME WITH THEPHILIPPINES CUSTOMS.

(3) OMBUDSMAN GUTIERREZ BETRAYEDTHE PUBLIC TRUST THROUGH HER GROSSINEXCUSABLE DELAY OR INACTION BYACTING IN DELIBERATE DISREGARD OF THESUPREME COURT’S FINDINGS ANDDIRECTIVE IN ITS DECISION ANDRESOLUTION IN INFORMATION TECHNOLOGY FOUNDATION OF THEPHILIPPINES, ET AL. VS. COMMISSION ON ELECTIONS, ET AL.

II. CULPABLE VIOLATION OF THE CONSTITUTION

THROUGH HER REPEATED FAILURES ANDINEXCUSABLE DELAY IN ACTING UPON THEMATTERS BROUGHT BEFORE HER OFFICE,OMBUDSMAN GUTIERREZ VIOLATEDSECTION 12 AND SECTION 13, PARAGRAPHS1, 2 AND 3, ARTICLE XI ON WHICH HERCONSTITUTIONAL DUTY IS ENSHRINED, ASWELL AS SECTION 16, ARTICLE III OF THECONSTITUTION, WHICH MANDATESPROMPT ACTION AND SPEEDY DISPOSITIONOF CASES.

DISCUSSION OF ARGUMENTS AND RECITAL OF

FACTS

1. BETRAYAL OF THE PUBLIC TRUST



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6. Betrayal of the public trust is a ground for impeachment provided by

the Constitution to cover all manner of offenses unbecoming of a

public functionary which are not punishable by criminal statutes.

This includes negligence of duty, tyrannical abuse of authority,

breach of official duty by malfeasance, cronyism, favoritism (and) or

obstruction of justice.2

7. Under Article XI, Section 7 of the Constitution, as implemented by

Republic Act No. 6770 (the Ombudsman Law), one of the principal

duties of the Office of the Ombudsman is the prosecution of offenses

committees by public officers.

(1) OMBUDSMAN GUTIERREZCOMMITTED BETRAYAL OFPUBLIC TRUST THROUGH HERGROSS INEXCUSABLE DELAY IN

INVESTIGATING AND FAILUREIN PROSECUTING ANY ONE OFTHEOSE INVOLVED ON THEANOMALOUS TRANSACTIONSARISING FROM THE FERTILIZERFUND SCAM DESPITE THEBLATANT ANOMALOUSTRANSACTATIONS REVEALED INTHE COA FINDINGS, SENATECOMMITTEE REPORT 54 AND

THE COMPLAINTS FILED WITHRESPONDENT ON THE“FERTILIZER SCAM”.

8. Despite blatant anomalous transactions revealed in the COA Findings

and the Philippine Senate Committee Report No. 54 (dated March 1,

2006)3

attached as Annex “A”, which contains its findings on the“Fertilizer scam” and the evidence supporting the same, Respondent

Ombudsman has not only inexcusably delayed the investigation but

2 Records of the Constitutional Commission, Vol,. 2, page 272.3

Report of the Joint Hearings by the Blue Ribbon Committee and the Committee on Agriculture and Food.



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also, has not filed any criminal Information in any court against any

respondent for the said anomalous transactions more than four (4)

years after she started her much delayed investigation.

9. Said anomalous transactions were not only found in the COA and

Senate Report but were also detailed in the complaints filed with the

Ombudsman by Kilusang Magbubukid ng Pilipinas (KMP) and

former Solicitor General Frank Chavez.

10. This omission by Respondent Ombudsman is a clear violation of thefollowing: her oath of office and her duties under the Article XI of the

Constitution, RA 6770 (Ombudsman Act), RA 3019 (Anti Graft and

Corrupt Practices Act) and RA 6713 (Code of Conduct and Ethical

Standards Act) constitutive of betrayal of public trust.

11. The issue of whether a crime was committed in the P 728-million

Fertilizer Fund scam had been pending before the Office of the

Ombudsman for more than four years since the Senate of the

Philippines transmitted in 2006 its Committee Report finding

anomalous transactions therein. This inordinate delay is a violation of

her constitutional duty and Philippine anti graft laws and at the very

least constitutes gross inexcusable negligence that constitutes

Betrayal of Public Trust.

12. Considering that the Senate Report was even preceded by the

separate complaints filed by the farmer members of the Kilusang

Magbubukid ng Pilipinas (KMP), former Solicitor General Francisco

Chavez and the late journalist Marlene Esperat detailing the same

anomalies, Respondent Ombudsman failure to file the necessaryinformation before any court against any accused constitutes this

impeachable ground.



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13. The evidence of blatantly anomalous transactions were contained the

above Senate Report No. 54 which contained the following Findings:

14. Firstly, the funds used in the “ Fertilizer Scam” was a portion of alarge fund called the “Farm Inputs and Implements” as discussed in

Page 13 of the Senate Committee Report 54:

“The Php 728 million Fund is just a Portion of a Larger Fertilizer Fund Released during the Elections of 2004

The Php 728 million fertilizer fund is just part and parcel of the huge fund

releases to the Department of Agriculture totaling Php 2.806 billion intended for the

purchase of farm inputs and implements in 2004, all made just before the May 10,2004

elections. Its breakdown as follows :

Nature of Fund/ SARO Number Date/ Amount

GMA Farm Inputs and E-04-0014 Php 728 million

Implements February 3,2

GMA Rice and Corn and E-04-00294 Php 1.102 billion

February 11,2004

Marcos Wealth for CARP E-04-01 090 Php 544 million

April 28,2004

GMA Rice Program From Agency Budget Php 432 million

And Fertilizer Procurement

And Distribution Component TOTAL Php 2.806 billion

In a document submitted by the Department of Agriculture”, the Php 728 million fertilizer

fund forms part of the Farm Inputs and Farm Implements Program in 2004 to assist LGUs

in boosting their agricultural production and increasing farmers’ income.”

15. Secondly, the role of then DA Usec. Jocelyn “Jocjoc” Bolante and the

others in the disbursement of funds as discussed in Page 19 of the

Senate Committee Report 54:

“In the fertilizer fund scam, Undersecretary Bolante is the declared architect.

He designed it. He was its brains. It was he who worked with the DBM for the

immediate release of the fund. It was him who prepared and submitted names

who would become the fertilizer fund’s proponents. It was Undersecretary

Bolante who sent letters to various congressmen and local officials informing

them of the availability of funds under the DA’s CMA Project. It was him who

directed these officials to coordinate with his office to discuss all therequirements to facilitate the said project fund.

Undersecretary Bolante in the words of his then Chief of Staff, Ibarra

Poliquit, had a hand in determining how the GMA Project fund works and

will be spent. X x x x



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In the Committee of the Whole public hearing of January 31, 2006,

Undersecretary Belinda Gonzales specifically mentioned that it was the

Office of Undersecretary Jocelyn Bolante who ordered the release of funds to

the recipients stated in the list. “I got instructions from Usec Bolante that this ---

- P 1 00 million ---- will be be transferred to the different regional offices.

Secretary Luis Lorenzo and Undersecretary Belinda Gonzales served ascosignatories of Mr. Bolante in transferring the money from the Department of

Agriculture to the regional field units (RFUs) and to local governments.”

16. Thirdly, that farmers did not receive the said fertilizer “farm inputs”

as testified by farmers from all over the country including the

Kilusang Magbubukid sa Pilipinas as discussed in Page 21 of the

Senate Committee Report 54 :

“BUT NO ONE RECEIVED THE FERTILIZERS.

The Farmers’ Voices. The Peasants’ Woes.

In all public hearings conducted, the farmer groups were its most active and

cooperative participants. Farmers and peasant leaders from as far as the

Ilocos region and Western Mindanao aired their collective grievances. Theirs

are the voices of desperation.

One of the largest farmer organizations in the country, the Kilusang Magbubukid ng Pilipinas (KMP) through its national leaders, Danilo Ramos

said that not one among their 64 provincial chapter fanner members from the

15 regions nationwide had received assistance from the so-called fertilizer

fund. Mr. Ramos lamented about their plight that for every bag of urea

fertilizer they would loan, they would pay an equivalent of three (3) 50-kg bagof palay during harvest, adding that the system of usury is still widespread

because farmers have not received any support whatsoever from the

government.

The KMP emphasized that the meager amount of fertilizer that they should

have received during the year 2004 seemed to point to the direction of theelection fund campaign of Ms. Arroyo.

In the words of respected farmer leader Tatay Greg Rivera, “Ni isang butil nu

abono hindi kami nakatanggap ’’

In their consultations with other farmer organizations, the KMP group of Mr.

Ramos confirmed that other farmers groups which happened to be within their

alliance also indicated not having received fertilizer assistance.”

17. Fourthly, the disbursement of funds and other transactions were partof a scam as discussed in pages 26-31 of the Senate Committee Report

54:



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(1) The Senate Report discussed the mysterious beginnings of the “Farm Inputs and Implementation Program” in Page 26 of the Report, to wit: “As confirmed

by Secretary Panganiban himself during the budget hearing, nobody in the

Department of Agriculture knew of the existence of the Farm Inputs and

Implements program. In the files of the Department itself, there is no single

document that

would

support

the

existence

of

such.”

(2) There was overpricing as Page 28 of the Senate Report stated: “Even the

design and implementation of the fertilizer fund scam manifest the height of

scandalous corruption. The gross overpricing as reported by the Commission on

Audit is absolutely abominable, with the ordinary foliar fertilizer (which was

allegedly supplied in almost all transactions) overpriced from almost 700 to

1,250 percent.”

(3) Ghost and questionable suppliers and deliveries haunt the fertilizer fund scam as contained in page 29 of the Senate Report: “AKAME Marketing is the identified supplier of a substantial number of transactions in the Php 728‐

million fertilizer fund. Process servers of the Senate failed to locate its business

address indicated in its registration. Tacloban Star, a regional newspaper in

Leyte and Samar, reported that its telephone number corresponds to a

“gulayan ” stall in Kaloocan City. Another company named Castle Rock

Construction was awarded multiple contracts under the same fund. COA, in its

audit memoranda, noted that “no copies of the documents from the

Department of Trade and Industry was available that can show that Castle

Rock Construction

can

engage

or

do

business

relative

to

the

trading

of

fertilizer.

Witness Jose Barredo stated that FESHAN Philippines, Inc. one of the largest

suppliers, is originally a medical supplier and started to supply fertilizer only in

2004. Its office address as submitted to the DA is a non‐existing address.”

(4) The corruption or at least the flawed and wasteful design of the program was discussed in page 30 of the Senate Report: “Undersecretary Jocelyn Bolante

cunningly, wittingly listed 105 congressmen, 53 governors and 23 mayors to

justify the immediatelyrelease of the fund. It specifies uniform amounts,

regardless of which congressional districts or local units the proponents

represent, whether the same are rice or corn‐ producing LGUs or not. Bolante is

not even mindful that the locality or legislative district from where the

proponent came from is part of the farm‐absent Metro Manila. From this list, it

can be deduced that it was an intended flawed program using public funds.

18. The Senate Report in Pages 32-35 then recommended the following, in

very clear terms:

(a) Criminal and Administrative Charges must be filed against Usec. Jocelyn

Bolante, Sec. Lorenzo Ruiz, Usec. Ibarra Poliquit, Usec. Belinda

Gonzalez, Asec. Jose Montes, and all DA Regional Directors who

participated in the illegal transactions for violating Sec. 3 (e) of RA 3019.



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(b) The Ombudsman together with the Anti‐Money Laundering Council

scrutinize the voluminous documents and trace its flow from the

Regional Field Units of the Department of Agriculture to the local

officials and file charges against them, whether elected or appointed, for

violation of the Anti‐Graft and Corrupt Practices Act.

(c) The partners, suppliers or subordinates in the private sector who

worked in cahoots with the above‐mentioned officials of the

Department of Agriculture who participated in overpricing, supplying

substandard and diluted fertilizers should be charged as co‐conspirators

under the Plunder Law and Anti‐Graft and Corrupt Practices Act must be

filed. The Ombudsman is advised to check the various records which

would indicate their names and the complete paper trail of their

respective transactions.

19. As stated above, Respondent Ombudsman to date has not found

anything illegal, improper or inefficient in the above transactions or at

the very least found anything that “appears” illegal, improper or

inefficient in the above transactions, sufficient to merit the

prosecution of any of those involved in the “Fertilizer Scam”.

20. The criminal inaction on the Report is compounded by blatant

disregard of Respondent Ombudsman of cases filed before her

including the case by farmers groups composing the Kilusang

Magbubukid ng Pilipinas.

21. On June 11, 2004, Kilusang Magbubukid ng Pilipinas

represented by Danilo Ramos, Pambansang Lakas ng

Kilusang Mamamalakaya ng Pilipinas represented by

Fernando Hicap, AMIHAN - National Federation of Peasant Women represented by Carmen Buena, Alyansa ng

Magbubukid ng Gitnang Luson represented by Joseph

Canlas and DANGGAYAN DAGITI MANNALON TI

CAGAYAN VALLEY represented by Reynaldo Abrogena

filed a complaint for violation of Republic Act No. 7080 or

the Anti-Plunder Act, Republic Act No. 3019 or the Anti-

Graft And Corrupt Practices Act, Malversation of Public

Funds under Articles 217 and 220 of the Revised Penal

Code, Republic Act 6713 or the Code of Conduct and

Ethical Standards for Public Officials and Employees and



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violation of Batas Pambansa Blg. 881 or the Omnibus

Election Code against the then President of the Philippines

GLORIA MACAPAGAL-ARROYO, EMILIA T.

BONCODIN who was then Secretary of the Department of

Budget and Management, MARIO I. RELAMPAGOS then

Undersecretary of the Department of Budget and

Management, NORA C. OLIVEROS the Director of BMB-E

of the Department of Budget and Management, LUIS P.

LORENZO, JR. who was the Secretary of the Department of

Agriculture, JOCELYN I. BOLANTE who was the

undersecretary of the Department of Agriculture and JOHN

DOEs and JANE DOEs for illegal disbursement and release

of SEVEN HUNDRED TWENTY EIGHT MILLION PESOS (P

728,000,000.00) of PUBLIC FUNDS from the National

Treasury to the Department of Agriculture and

subsequently given to several named members of the House

of Representatives and to provincial governors and

municipal mayors, belonging to Mrs. Arroyo’s national

political party and/or allied party or perceived to be her

supporters.

22. In violation of her oath of office and the duties

imposed on her by the Constitution and the Ombudsman

Law to “promptly” investigate and prosecute “acts which

appear to be illegal, unjust, improper or inefficient”,

respondent Ombudsman never issued any notice,

resolution, or order to the complainants in the KMP

complaint and to the respondents relative to the case.

23. Despite the voluminous evidence in the Senate report

and the complaints pending before RespondentOmbudsman in 2004 on the illegal disbursement of the said

public funds, respondent Ombudsman Gutierrez through

inaction, prejudicial to public interest, has not filed a



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criminal information against the respondents in the said

complaint before any court.

24. These violates the following, and constitutes Betrayal

of Public Trust:

24.1 Violation of her oath of Office and her duties to act

promptly on complaints provided under Article XI,

Section 12 and Section 13 of the Constitution which

states:

Section 12. The Ombudsman and his Deputies, as protectorsof the people, shall act promptly on complaints filed in any

form or manner against public officials or employees of theGovernment, or any subdivision, agency or instrumentalitythereof, including government-owned or controlledcorporations, and shall, in appropriate cases, notify thecomplainants of the action taken and the result thereof.

Section 13. The Office of the Ombudsman shall have thefollowing 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 beillegal, unjust, improper, or inefficient.

24.2 Violates RA 6770 particularly:

(i) For failure to act promptly on the complaints, the

Senate Report and COA findings, Section 13 which

provides that:

Sec. 13. Mandate. - The Ombudsman and his Deputies,

as protectors of the people, shall act promptly oncomplaints filed in any form or manner against officersor employees of the government, or of any subdivision,agency or instrumentality thereof, includinggovernment-owned or controlled corporations, andenforce their administrative, civil and criminal liabilityin every case where the evidence warrants in order topromote efficient service by the Government to thepeople

(ii) For failure to prosecute, Section 15 which states

that:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers,functions and duties:



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(1) Investigate and prosecute on its own or oncomplaint by any person, any act or omission of anypublic officer or employee, office or agency, when suchact or omission appears to be illegal, unjust, improperor inefficient

24.3 Violation of RA 3019 or the Anti Graft and Corrupt

Practices Act, particularly:

(i) for manifest partiality in favor of those involved in

the fertilizer scam or at the very least for gross

inexcusable negligence, violation of Section 3 (e)which states that it is corrupt practice to

(e) Causing any undue injury to any party, includingthe Government, or giving any private party anyunwarranted benefits, advantage or preference in thedischarge of his official administrative or judicialfunctions through manifest partiality, evident bad faithor gross inexcusable negligence.

( i i ) For violating Section 3 (d)

f) Neglecting or refusing, after due demand or request,without sufficient justification, to act within areasonable time on any matter pending before him forthe purpose of x x x giving undue advantage in favor of or discriminating against any other interested party.

24.5 RA 6713 or the Code of Conduct and Ethical

Standards of Public Officials and Employees,

particularly:

(i) Section 4 (a) for not upholding public interest :

(a) Commitment to public interest. — Public officialsand employees shall always uphold the public interestover and above personal interest. All governmentresources and powers of their respective offices must be employed and used efficiently, effectively, honestlyand economically, particularly to avoid wastage in

public funds and revenues.

(ii) Section 4 (b) for failing to perform and discharge

her duties with the highest degree of

professionalism, intelligence and skill:



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(b) Professionalism. — Public officials and employeesshall perform and discharge their duties with thehighest degree of excellence, professionalism,intelligence and skill. They shall enter public servicewith utmost devotion and dedication to duty. They

shall endeavor to discourage wrong perceptions of theirroles as dispensers or peddlers of undue patronage

(2) OMBUDSMAN MERCEDITASGUTIERREZ, IN VIOLATION OF THECONSTITUTION AND RA 6770 AND THEOMBUDSMAN ACT, COMMITTEDBETRAYAL OF PUBLIC TRUST WHEN SHE

WILLFULLY REFUSED TO PROSECUTEGEN. ELISEO DE LA PAZ FOR VIOLATINGBSP CIRCULAR 98 (1995) AS AMENDED BYBSP CIRCULAR 507 (2006) IN RELATIONTO REPUBLIC ACT 6713 WHICHPROHIBITS THE TAKING OUT OF THECOUNTRY OF CURRENCY IN EXCESS OFUS $ 10,000.00 WITHOUT DECLARING THESAME WITH THE PHILIPPINE CUSTOMS,DESPITE THE FACT THAT GEN. ELISEO

DE LA PAZ PUBLICLY ADMITTED UNDEROATH BEFORE THE SENATE BLUERIBBON COMMITTEE ON NOVEMBER 15,2008 THAT HE TOOK OUT OF THECOUNTRY CURRENCY IN EXCESS OF US $10,000.00 WITHOUT DECLARING THESAME WITH THE PHILIPPINES CUSTOMS.

25. Ombudsman Gutierrez committed gross inexcusable inaction when

she did not prosecute “Euro General” PNP Dir. Eliseo De la Paz

despite his public admission under oath before the Senate Blue

Ribbon Committee that he did not declare with the Philippine

Customs that he was bringing out of the country or exporting

currency worth more than US$ 10,000.00 in violation of BSP Circular

98 (S 1995) as amended.

26. Gen. de la Paz, who was the Comptroller of the Philippine National

Police at the time, was arrested by customs inspectors at Moscow

International Airport on 11 October 2008 after he was found carrying



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105,000 Euros (P6.93M) in his carry-on baggage, which exceeded the

3,000-euro limit for departing passengers.

27. He initially declared that the amount he took out, totaling P 9.1Million, was cash advance for the PNP delegations trip to Moscow.

He later declared it came from intelligence fund to buy equipment.

His last version was that the money came from a friend who asked

him to buy an expensive watch.

28. He was investigated by the Philippine Senate upon his return to the

Philippines where it was established that he took out foreign currency

(Euro) worth more than Ten Thousand United States dollars.

29. Gen. De la Paz admitted under oath during the hearings of the Senate

Foreign Relations Committee, which issued the Senate Committee

Report after the hearings, that he brought out of the country more

than Ten Thousand United States dollars worth of Euros without

declaring the same with the Philippine Customs as required by

Central Bank circulars and that he was aware of that requirement.

30. The Senate Committee Report No. 229 (dated November 13, 2008)

also stated that Airport Customs Collector Teresita Roque has

declared that Gen. De la Paz did not declare any excess currency

when he left the country.

31. The said Senate Committee Report No 229 (attached as Annex “B”)

contained the laws and regulations violated by Gen. de la Paz for

such failure to declare, to wit:

Dela Paz Violated Banko Sentral Regulations

BSP Circular No. 308 issued 2001; MB Resolution No. 1779 issued

2001, as amended by BSP Circular No. 57 issued 2006; and MBResolution No. 1588 issued 2005, all require “a person who is bringing

into or out of the Philippines foreign currency in excess of @10,000 or its

equivalent,” to furnish the Monetary Board with a statement in writing

disclosing the source and purpose for carrying the subject amount of money.



23

R.A. No. 7653, aka the New Central Bank Act, Section 36, imposes apenalty of: “A fine of not less than @50,000 nor more than @200,000, or

by imprisonment of not less than two (2) years or more than ten (10)

years, or both. at the discretion of the Court.”

32. The same Senate Committee Report 229 recommended the filing ofcriminal charges against Gen. Eliseo de la Paz:

33. The failure to declare the above amount is subject to prosecution as

provided under BSP Circular No. 98 dated 11 December 1995 and BSP

circular 308 as amended (attached as Annex “C”) in relation to

Section 36 of RA 7653 which provides for a fine or imprisonment of

“not less than two years nor more than ten years or both” as penalties

for violation of Central Bank or BSP circulars.

34. The act or omission of Gen. de la Paz is clearly a violation of the law

and BSP circulars as it consists of the two elements constitutive of the

offense, namely: (1) the taking out of the country of currency in excess

of Ten Thousand United States Dollars (US$ 10,000.00); and (2) the

failure to declare the same with the Philippine customs. (This is akin

to a criminal case for illegal possession of firearms where the judge

must convict the accused once he admits under oath that he

committed the following: (1) possessing a firearm, and (2) he was not

licensed to possess such firearm).

35. Despite this clear violation, that requires no lengthy investigation as

Gen. de la Paz himself admitted to both the elements, the office of the

Ombudsman continued to make pronouncements that they are

investigating the case months after the incident and even well into

2009.

36. To date, Ombudsman Gutierrez has not filed any criminal

information against Eliseo de la Paz.4

1. Ombudsman Gutierrez even refused to prosecute Gen. De la Paz despite therecommendation of the PNP itself that he be prosecuted for De la Paz for violation of PD1445.



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37. If it is true that Gen. de la Paz returned to the PNP the funds

confiscated from him in Moscow, that does not constitute absolution

for his violation of Philippine laws and BSP circulars.

38. The inexcusable inaction of the Respondent Ombudsman in not

prosecuting Gen. Eliseo de la Paz despite his admission of guilt

constitutes a Betrayal of Trust.

(3) OMBUDSMAN GUTIERREZBETRAYED THE PUBLIC TRUST BYACTING IN DELIBERATE DISREGARD OFTHE SUPREME COURT’S FINDINGS ANDDIRECTIVE IN ITS DECISION ANDRESOLUTION IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, ET AL. VS. COMMISSION ON ELECTIONS, ET AL.

39. In Information Technology Foundation of the Philippines, et al. vs.

Commission on Elections, et al.5, the Supreme Court made the followingrulings:

a. Declared null and void Comelec Resolution No. 6074

dated April 15, 2003, awarding contract for the purchase of

election counting machines to Mega Pacific Consortium.

b. Declared null and void the Contract executed betweenMega Pacific eSolutions, Inc. and the Commission on Election

for the purchase of the said election counting machines.

c. Enjoined the implementation of any other contract

relative to the Automated Election System project.

40. The controversial contract weight heavily on the public coffers. The

contract was worth One Billion Three Million (1,300,000,000.00) Pesos, and

the taxpayers shouldered the cost of storage expenses for the counting

5 G.R. No. 159139, January 13, 2004



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machines which amounted to P329,355.26 per month or P3,979,460.24

annually. The amount involved in the contract emphasizes the seriousness

of the acts committed by the officials of the COMELEC. The Supreme Court

pointed out the following anomalies in the transaction:

a. The contract was awarded to an entity (Mega Pacific

eSolutions, Inc.) which did not participate in the bidding.

b. The awardee did not pass the eligibility

requirements for the bidding.c. The bid of the awardee did not pass the technical

requirements for the bidding.

d. The bid specifications were changed during the evaluation

of the bid.

e. The resolution awarding the contract was issued before the

Bids and Awards Committee issued its written report.

41. Due to these irregularities, the Supreme Court, in Information

Technology Foundation of the Philippines, supra, made the following

observations:

“Unfortunately, Comelec has failed to measure up to this historictask. As stated at the start of this Decision, Comelec has not merelygravely abused its discretion in awarding the Contract for the

automation of the counting and canvassing of the ballots. It has alsoput at grave risk the holding of credible and peaceful elections byshoddily accepting electronic hardware and software thatadmittedly failed to pass legally mandated technical requirements.Inadequate as they are, the remedies it proffers post facto do notcure the grave abuse of discretion it already committed (1) on April15, 2003, when it illegally made the award; and (2) ‘sometime’ inMay 2003 when it executed the Contract for the purchase ofdefective machines and non-existent software from a non-eligiblebidder.”

42. Undeniably, the irregularities occurred not only during the

proceedings before the Bids and Awards Committee but also during the

approval of the award by the COMELEC en banc. In other words, the entire

process was rigged. Consequently, the liability for the irregularities should



26

rest not only on the members of the Bidding and Awards Committee, but

also on the Commissioners of the COMELEC. Due to the seriousness of the

irregularity and the officials involved, the Supreme Court deemed it

necessary to refer the matter to the Office of the Ombudsman for

investigation and to prosecute those involved.

43. It is worthy to note that in its Report6 dated 12 December 2005, the

Senate Committee on Accountability of Public Officers and Investigations

(Senate Blue Ribbon) chaired by Senator Joker Arroyo also came out with a

similar conclusion, finding several COMELEC officials and members ofBAC liable on the illegal and nullified contract.

44. While she took initial actions in compliance with the aforementioned

directive of the Supreme Court, the Ombudsman sat on the investigations.

One year and four months after the referral, no concrete actions were

undertaken. The unexplained delay in the investigation has prompted the

Supreme Court to issue a Resolution dated February 14, 2006 requiring her:

“to SHOW CAUSE why it should not be held in contempt of courtfor its failure to fully comply with the Court's directive in the January 13, 2004 Decision on the instant case, and to MANIFEST compliance with the directive..."

45. In its Resolution dated May 3, 2006, the Supreme Court reiterated its

directive to Ombudsman Gutierrez. The dispositive portion of the said

Resolution provides:

“WHEREFORE, the Motion for Clarification of petitioners is NOTED.

The disposition of the Court in its March 28, 2006 Resolution ishereby CLARIFIED, consistent with the above disquisition, asfollows: The Office of the Ombudsman shall, under pain ofcontempt, report to this Court by June 30, 2006, its final

determination of whether a probable cause exists against any of thepublic officials (and conspiring private individuals, if any) involvedin the subject Resolution and Contract. If it finds that probablecause exists, it shall continue to render its reports every threemonths thereafter, until the matter is finally disposed of by the

6 A copy of which is hereto attached as Annex “A” and made an integral part hereof.



27

proper courts.”

46. Obviously, the Ombudsman intentionally stalled the investigation on

the irregularities, thereby shielding the perpetrators, especially the

commissioners and other high ranking officials of the COMELEC.

47. When the Ombudsman finally came out with her Resolution on the

investigations, she exonerated Chairman Benjamin Abalos, and other

COMELEC officials. Worse, she overturned her own Resolution7 which

found Commissioner Resureccion Borra liable for the said irregularities and

recommending his impeachment, thereby absolving everyone from and

negating the very existence of a crime This decision is obviously contrary to

the findings of both the Supreme Court as held in Information Technology

Foundation of the Philippines, supra, as well as the findings of the Senate

Blue Ribbon Committee.

48. Ombudsman Gutierrez simply ignored all the facts that clearly

implicated Chairman Abalos and the other COMELEC commissioners and

officials involved in the transaction. It must be reiterated, both the Supreme

Court and the Senate Blue Ribbon Committee found that the entire bidding

process was rigged, thereby involving not only the members of the BAC,

but also the commissioners who approved the award.

49. Her refusal to investigate, her decision to exonerate those involved in

the irregularities, notwithstanding clear evidence establishing their criminal

liability and in stalling the investigations on the above-mentioned

irregularities, and, indicate that Ombudsman Gutierrez betrayed the public

trust reposed on her as the head of the agency which was created to act as

the “protector of the people” which “shall act promptly on complaints filed

in any form or manner against public officials or employees of the

Government.”8

7 Dated 28 June 2006. A copy of the Press Release of the Office of the Ombudsman relative to the

Resolution recommending the impeachment of Commissioner Borra is hereto attached as Annex “C” and

made an integral part hereof.8 Sec. 12, Art. XI, 1987 Constitution



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2. CULPABLE VIOLATION OF THE CONSTITUTION

THROUGH HER REPEATED FAILURESAND INEXCUSABLE DELAY IN ACTING

UPON THE MATTERS BROUGHT BEFOREHER OFFICE, OMBUDSMAN GUTIERREZVIOLATED SECTION 12 AND SECTION 13,PARAGRAPHS 1, 2 AND 3, ARTICLE XI ON WHICH HER CONSTITUTIONAL DUTY ISENSHRINED, AS WELL AS SECTION 16,ARTICLE III OF THE CONSTITUTION, WHICH MANDATES PROMPT ACTIONAND SPEEDY DISPOSITION OF CASES.

50. Under Section 12, Article XI of the Constitution, Ombudsman

Gutierrez, as the “protector of the people” has the duty to act

promptly on all complaints filed against public officials or employees

of the Government. Lamentably, Ombudsman Gutierrez has failed

miserably to live up to this constitutional mandate as discussed

above. She has in numerous instances failed to act promptly, if at all,and has repeatedly invited suspicion of her protecting those charged

with wrongdoing, particularly former President Macapagal-Arroyo

and her associates – in blatant violation of constitutional role as an

independent investigating and prosecuting body.

51. This in turn, also constitutes Culpable Violation of the Constitution

particularly Sections 12 and 13 of Article XI:

Section 12. The Ombudsman and his Deputies, as protectors of the

people, shall act promptly on complaints filed in any form or

manner against public officials or employees of the Government, or

any subdivision, agency or instrumentality thereof, including

government-owned or controlled corporations, and shall, in

appropriate cases, notify the complainants of the action taken and the

result thereof.





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the Filipino people. Needless to say, Ombudsman Gutierrez’s

inaction on complaints against erring public officials robs the public

of their right to see justice done and public wrongdoing punished. It

further erodes the public accountability and confidence in our

government officials and the offices they hold.

FORMS OF RELIEF PRAYED FOR

WHEREFORE, PREMISES CONSIDERED, Complainants pray for

the Impeachment of Respondent Ombudsman Merceditas Gutierrez

pursuant to the procedure laid down by Section 3, Article XI of the 1987

Constitution on Accountability of Public Officers, and that the Articles of

Impeachment be immediately transmitted to the Philippine Senate by the

Honorable House of Representatives.

Other forms of relief, just and equitable are likewise prayed for.

Quezon City, Metro Manila, 3 August 2010.

RENATO REYES DANILO RAMOSSecretary General Secretary-GeneralBagong Alyansang Makabayan (BAYAN) Kilusang Magbubukid ng Pilipinas4th Floor, Erythrina Building No. 20 Maaralin St.

No. 1, Maaralin cor. Matatag Streets, Bgy. Central DistrictBarangay Central, Quezon City Quezon City



Documents

Impeachment Complaint vs Ombudsman Merceditas Gutierrez