ITFP v COMELEC

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ, JR., Petitioners vs. COMMISSION ON ELECTIONS, COMELEC CHAIRMAN BENJAMIN ABALOS, SR., COMELEC BIDDING AND AWARDS COMMITTEE CHAIRMAN EDUARDO D. MEJOS AND MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ, JR., Respondents

G.R. No. 159139/G.R. No. 174777

June 6, 2017

FACTS:

In Information Technology Foundation of the Philippines (lnfotech) v. Commission on Elections, the Supreme Court (SC) nullified the COMELEC's award to Mega Pacific Consortium of the procurement contract involving the automated counting machines (ACMs) for the 2004 national elections. SC found that the COMELEC gravely abused its discretion when it awarded the contract to an entity which failed to establish itself as a proper consortium, and despite the ACMs' failure to meet certain technical requirements.

On January 13, 2004, SC promulgated the Decision in lnfotech declaring as null and void: (a) COMELEC Resolution No. 6074 which awarded the contract for Phase II of the Comprehensive Automated Electoral System to Mega Pacific Consortium (MPC); and (b) the procurement contract for ACMs executed between the COMELEC and Mega Pacific eSolutions, Inc. (MPEI). They found that the COMELEC's failure to follow its own rules, policies, and guidelines in respect of the bidding process, and to adequately check and observe financial, technical and legal requirements constituted grave abuse of discretion. As a result of the foregoing lapses of the COMELEC, they also directed the Ombudsman to determine the criminal liability, if any, of the public officials and private individuals involved in the nullified resolution and contract.

As mandated by the Infotech Decision, the Ombudsman initiated a fact-finding investigation. On January 21, 2004, Senator Aquilino Pimentel, Jr. also filed criminal and administrative complaints against COMELEC Chairman Benjamin S. Abalos, Sr. and other COMELEC officials with the Ombudsman. Kilosbayan Foundation and Bantay Katarungan Foundation later filed a related complaint with the Ombudsman against COMELEC officials and stockholders of MPEI on September 19, 2004. The Field Investigation Office (FIO) of the Ombudsman filed a supplemental complaint on October 6, 2004. These cases were later on consolidated by the Ombudsman.

In the meantime, the petitioners in the Infotech case filed a Manifestation and Motion dated December 22, 2005, as well as a Supplemental Motion dated January 20, 2006, alleging that the Ombudsman has yet to comply with SC directive in the Infotech Decision. Thus, on February 14, 2006, SC issued a Resolution directing the Ombudsman to show cause why it should not be held in contempt for its failure to comply with the Court's directive. In compliance with the foregoing Resolution, the Ombudsman filed its Comment contending that it should not be held in contempt of court because it has "long acted on the referral, or complied with this Court's 'directive' in this case, to its full extent." In a Resolution dated March 28, 2006, SC directed the Ombudsman, under pain of contempt, to submit quarterly reports to the Court starting June 30, 2006.

On July 13, 2006, the investigating panel of the Office of the Ombudsman reconvened to carry out further investigation and clarificatory hearings. In all, the investigating panel conducted a total of 12 public hearings between July 13, 2006 and August 23, 2006, interviewed 10 witnesses, and received no less than 198 documents.

Following these public hearings, the Ombudsman issued a Supplemental Resolution dated September 27, 2006 which reversed and set aside the June 28, 2006 Resolution, and dismissed the administrative and criminal complaints against both public and private respondents for lack of probable cause. The Supplemental Resolution stated that the Investigating Panel "cannot find an iota of evidence to show that the acts of [the Bids and Awards Committee (BAC)] in allowing MPC to bid and its subsequent recommendation to award [the] Phase II Contract to MPC constitute manifest [] partiality, evident bad faith or gross inexcusable negligence" and that it cannot establish that any "unwarranted benefit, advantage or preference was extended to MPC or MP[E]I by [the] BAC in the exercise of its administrative function in the determination [of] MPC's eligibility and subsequent recommendation made to [the] COMELEC." In sum, the Ombudsman opined that a finding of grave abuse of discretion in the lnfotech case cannot be considered criminal in nature in the absence of evidence showing bad faith, malice or bribery in the bidding process.

The dispositive portion of the Infotech decision reads:

WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium (MPC). Also declared null and void is the subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI). Comelec is further ORDERED to refrain from implementing any other contract or agreement entered into with regard to this project.

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. Let the Office of the Solicitor General also take measures to protect the government and vindicate public interest from the ill effects of the illegal disbursements of public funds made by reason of the void Resolution and Contract.

The Ombudsman maintains that it has the discretion to determine whether a criminal case, given the facts of the case and the applicable laws and jurisprudence, should be filed. The respondents in G.R. No. 159139, the COMELEC and MPEI, support the Ombudsman's position. They point to the plain text of the dispositive portion, i.e., the use of the phrase "if any," which clearly demonstrates the Court's intent for the Ombudsman to conduct its own investigation and render an independent assessment based on whatever evidence the Ombudsman gathers.

ISSUE:

This case presents the question of whether the SC conclusion in lnfotech that the COMELEC committed grave abuse of discretion is tantamount to a finding of probable cause that the COMELEC officials violated penal laws, thereby making it the ministerial duty of the respondent Ombudsman to file the appropriate criminal complaints.

RULING:

The Supreme Court held that:

In view of the constitutional delineation of powers, we reject the petitioner’s contention that we already made a determination in the Infotech case that a crime has been committed. We could not have made such determination without going beyond the limits of our judicial power and thereby unlawfully impinging the prerogative of the constitutionally created Office of the Ombudsman. In Infotech, we only exercised our mandate to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the COMELEC. However, a finding of grave abuse of discretion is not necessarily indicative of probable cause. To determine the latter, the constitutive elements of the crime must first be considered. In the exercise of our certiorari jurisdiction in Infotech, we only resolved whether the COMELEC acted in a capricious, whimsical, arbitrary or despotic manner. We never decided whether the facts were sufficient to engender a well-founded belief that a crime has been committed and that the respondents were probably guilty thereof.

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Having ruled that the Ombudsman did not commit grave abuse of discretion, it is no longer necessary to belabor the issue on contempt. Suffice it to say that our directive to the Ombudsman was simply to determine if there was any criminal liability on the part of the public and private respondents in G.R. No. 159139. The Ombudsman sufficiently complied with this directive when she found that, based on the hearings conducted and documents gathered, probable cause did not exist.

WHEREFORE, the petition docketed as G.R. No. 174777 is DISMISSED. The Motion dated October 17, 2006 filed by the petitioners in G.R. No. 159139 is DENIED.

SO ORDERED.