[G.R. No. 159139. March 28, 2006]

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, et al., versus COMMISSION ON ELECTIONS et al.

En Banc

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated MAR. 28, 2006

G.R. No. 159139 (Information Technology Foundation of the Philippines, et al., versus Commission on Elections et al.)

On February 14, 2006, this Court issued a Resolution directing the Office of the Ombudsman (OMB) "to SHOW CAUSE why it should not be held in contempt of court for 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..."

In compliance with that Resolution, the OMB filed, on February 24, 2006, its Comment contending that it should not be held in contempt of court. It alleged that the statement: “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," made by this Court in the Decision, dated January 13, 2004, should be "plainly construed as a judicial 'referral' to the OMB of a matter falling within the investigatory and prosecutorial authority and jurisdiction of a constitutionally independent body."[1] It averred that being a constitutionally independent body, it had no duty to render reports on the status, eventual outcome and completion of its investigation on the Comelec-Mega Pacific Consortium controversy. It alleged that the January 13, 2004 Decision did not specifically order it to make such reports.

However, the OMB also recognized that "having emanated from the highest court of the land, x x x, the x x x statement may be more stringently interpreted as a ‘directive.’”[2] Construed as a directive, the OMB opined that it was "specifically one for the Ombudsman to determine the criminal liability of the persons x x x involved in the nullified transaction; nothing more, nothing less.”[3]

Despite this dubious stand however, the OMB still repotted the actions it has taken pursuant to the January 13, 2004 Decision in this case. It stated:

"On the basis of the [January 13, 2004] Decision of this Honorable Court, then Tanodbayan (Ombudsman) Simeon V. Marcelo issued Office Order No. 04-03 S. 2004 dated 14 January 2004 directing the then Fact-Finding and Intelligence Research Bureau (FIRO), now known as the Field Investigation Office (FIO), Office of the Ombudsman to conduct an in-depth investigation on the alleged anomalies surrounding the award of the subject contract by the COMELEC to the MPC. The investigation was assigned reference number CPL-C-4-0060.

"Meanwhile, the Resident Ombudsman for the COMELEC conducted an initial investigation on the matter, and assigned to the same, reference number ORO-COM-MIM-2004-01. Subsequently, in a Memorandum dated 22 January 2004, the Supervising Resident Ombudsman for the COMELEC requested the Preliminary Investigation, Administrative Adjudication and Monitoring Office (PAMO), Office of the Ombudsman to consolidate the investigation in CPL-C-04-0060. x x x.

"On 21 January 2004, and while the FIRO was conducting its in-depth investigation in CPL-C-04-0060 and ORO-COM-MIM-2004-01, Senator Aquilino Pimentel filed a complaint before the Office of the Ombudsman charging the COMELEC Commissioners with [the] alleged violation of Section 3 (e) and (g) of R.A. No. 3019 in connection with the nullified transaction. x x x. The complaint was initially assigned reference number CPL-C-0089 and subsequently docketed before the Office of the Ombudsman Central Office (OMB-C) as OMB-C-C-04-0011-A (for its criminal aspect) and OMB-C-A-04-0015-A (for its administrative aspect). Thereafter, the said cases were referred for evaluation to the Preliminary Investigation, Administrative Adjudication and Monitoring Office (PAMO), Office of the Ombudsman, which came up with a proposed Order dated 22 January 2004.

"In a Memorandum dated 2 February 2004, of then Tanodbayan (Ombudsman) Simeon V. Marcelo, the proposed Order of the PAMO was referred to the Office of Legal Affairs (OLA), Office of the Ombudsman for exhaustive legal research on the issue of whether or not the respondents in the said cases must first be impeached before they can be criminally prosecuted. The OLA subsequently submitted a Memorandum dated 12 February 2004.

"In a Memorandum dated 11 March 2004, then Tanodbayan Marcelo inhibited himself from the said cases, and directed the Deputy Ombudsman for Luzon, Victor Fernandez to act in his place.

"On 06 April 2004, and following the inhibition by then Tanodbayan Marcelo, Deputy Ombudsman Fernandez approved the Memorandum dated 12 February 2004 and the Order dated 22 January 2004 in OMB-C-C-04-0011-A and OMB-C-A-04-0015-A (CPL-C-04-0089) which resulted in the following:

(a) The administrative disciplinary case docketed as OMB-C-A-04-0015-A was ordered dismissed;

(b) Preliminary investigation in the criminal case docketed as OMB-C-C-04-0011-A was ordered to be continued with regard to retired COMELEC Commissioners Luzviminda G. Tancangco and Ralph C. Lantion; and

(c) Further fact-finding was ordered to be undertaken in CPL-C-04-0089 with regard to the other participants in the Automated Election System contract.

"In an Indorsement dated 14 April 2004, Deputy Ombudsman Fernandez forwarded the records of OMB-C-C-04-0011-A and OMB-C-A-04-0015-A to the Tanodbayan, through the Central Records Division. On 11 May 2004, the Central Records Division forwarded the said case records to FIO for its appropriate action. Thus, the FIO continued its fact-finding investigation relative to CPL-C-04-0089.

"On 19 September 2004, Bantay Katarungan Foundation and Kilosbayan Foundation ('KILOSBAYAN' for brevity) filed before the Office of the Ombudsman a complaint for violation of R.A. 7080, (Anti-Plunder Law), violation of Section 3 (e), (g), (i) and (j) and violation of R.A. 6713 (Code of Conduct and Ethical Standards for Government Officials and Employees) against the 'COMELEC Commissioners who gave the award leading to the procurement of Automated Counting Machines' and against 'conspiring private individuals'.

"Meanwhile, on 06 October 2004, the FIO indorsed to the Office of the Deputy Ombudsman for Luzon the records of OMB-C-C-04-0011-A and OMB-C-A-04-0015-A (CPL-C-04-0089), together with the Supplemental Complaint executed by the FIO through the Chief of the Legal, Monitoring and Prosecution Division-Field Investigation Office, Maria Olivia Elena Roxas. The said Supplemental Complaint contained the results of the FIO's fact-finding investigation.

"On 07 October 2004, and consistent with his inhibition, then Ombudsman Marcelo also forwarded the Kilosbayan complaint to the Office of the Deputy Ombudsman for Luzon. Consequently, the Kilosbayan complaint was assigned a new reference number, i.e., CPL-C-04-1720 and later docketed before the Office of the Deputy Ombudsman for Luzon (OMB-L) as OMB-L-C-02-0922-J.

"Upon recommendation by the Office of the Deputy Ombudsman for Luzon's panel of investigators, OMB-C-C-04-0011-A, OMB-C-A-04-0015-A (CPL-C-04-0089) and CPL-C-04-0060 were then set for preliminary investigation and/or administrative adjudication. For this purpose, the complaints were re-docketed as OMB-L-C-04-0983-J and OMB-L-A-0706-J. Thereafter, on 30 November 2004, OMB-L-C-04-0983-J and OMB-L-C-04-0706 were consolidated with OMB-L-C-04-0922-J. Thence, the preliminary investigation and administrative adjudication proceeded.

"On 17 December 2004, the officers and incorporators of MPel who were among the respondents in OMB-L-C-04-0922-J and OMB-L-C-04-0983-J filed before the Office of the Deputy Ombudsman for Luzon a Motion to Suspend Proceedings which was denied in an Order dated 14 January 2005. Said respondents thereafter filed a Motion for Reconsideration which was also denied in an Order dated 22 February 2005. Said respondents then assailed the Orders dated 14 January 2005 and 22 February 2005 of the Office of the Deputy Ombudsman for Luzon, through a Petition for Certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure, before the Honorable Court of Appeals. The petition was docketed CA-G.R. SP No. 88955 entitled ‘Willy U. Yu, et al vs. Office of the Ombudsman, et al.'

"Meanwhile, in a Resolution dated 18 January 2005 issued in G.R. No. 159139, this Honorable Court (En Banc) directed the Ombudsman to file its Comment on the COMELEC's 'Most Respectful Motion for Leave to Use the Automated Counting Machines in Custody of the Commission on Elections for Use in the 08 August 2005 Elections in the Autonomous Region for Muslim Mindanao (ARMM)'. On 11 February 2005, and in compliance with said Resolution, the Ombudsman filed its Comment dated 10 February 2005 before this Honorable Court x x x.

"In a Decision dated 26 September 2005 in CA-G.R. SP No. 88955, the Honorable Court of Appeals denied the petition filed by the officers and incorporators of MPel, and affirmed the Orders of the Office of the Deputy Ombudsman for Luzon denying the said Motion to Suspend Proceedings in OMB-L-C-04-0922-J and OMB-L-C-04-0983-J. The officers and incorporators of MPel filed a Motion for Reconsideration from the Decision dated 26 September 2005 which was denied by the Honorable Court of Appeals in a Resolution dated 08 December 2005. The aforementioned Decision and Resolution of the Honorable Court of Appeals in CA-G.R. SP No. 88955 are now the subject of a Petition for Review before this Honorable Court, which is docketed as G.R. No. 170725 and entitled 'Willy U. Yu, et al vs. Office of the Ombudsman, et al.'"[4]

Thus, the OMB asserts that it has "long acted on the referral, or complied with this Court's directive in this case, to its full extent."[5]

It should be noted from the foregoing that the OMB seeks to shield itself from the Court's contempt powers by invoking its constitutionally mandated independence. This reasoning is flawed.

First. The power to punish for contempt, which is inherent in all courts is essential to the preservation of order in judicial proceedings; and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice.[6] There is thus, no excuse for disregarding or disobeying an order of this Court, as this act would disturb the orderly administration of justice.

Second. We sternly remind the OMB: this Court will not hesitate to exercise its power of contempt against anyone (including the OMB) who fails to observe due respect for its directives, mandates, orders and judgments.

Certainly, the Supreme Court has done so in Ang Bagong Bayani-OFW Labor Party v. Comelec,[7] in which the Comelec chairman and commissioners were found guilty of contempt of this Court for their "brazen disobedience to [the Court's] lawful directives x x x and for delaying the ultimate resolution of the many incidents of [the] case, to the prejudice of the litigants and of the country."[8] Accordingly, the Comelec chairman and commissioners were fined in the total sum of P110,000, which they all paid.

Third. The OMB's authority as a "competent investigatory body" was not in any way interfered with by this Court, when it ordered that a "copy of the January 13, 2004 Decision be furnished to the [OMB] 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." To be sure, in making that statement, this Court, recognized the constitutional mandate of the OMB as "protector of the people"[9] against erring and abusive public officials.

We are, however, also mindful of die OMB's duty to "act promptly on complaints x x x and x x x, in appropriate cases, notify the complainants of the action taken and the result thereof.”[10] Deference to this Court's simple order should have prompted the OMB to act on its responsibility to inform us of its actions regarding this case. Thus, we strongly remind it to be more prudent in performing its basic constitutional duty and in following the directives of this Court.

Fourth. The Decision of this Court, dated January 13, 2004, contained a directive, not a referral. Note the use of the words "shall determine," which are imbued with a mandatory tenor. The hesitation and quibbling of the OMB over this simple matter surprises this Court, considering that, even without this express directive, the former should have taken it upon itself to conduct a moto proprio investigation.

WHEREFORE, the Comment of the Office of the Ombudsman in compliance with the Court's Resolution dated February 14, 2006, is NOTED.

The Office of the Ombudsman is hereby DIRECTED, under pain of contempt, to report on a regular basis -- once every three months -- the steps it has taken and the corresponding results of those actions to "determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract." Accordingly, the OMB shall render its reports on or before June 30, 2006, and every three months thereafter, on September 30, 2006, December 31, 2006, and so on, till the matter is finally disposed of.

Very truly yours,

(Sgd.) MA. LUISA D. VILLARAMA

Clerk of Court

[6] Esmeralda-Baroy v. Peralta, 287 SCRA 1, March 5, 1998; Paredes-Garcia v. Court of Appeals, 261 SCRA 693, September 11, 1996; Halili v. Court of Industrial Relations, 136 SCRA 112, April 30, 1985; People v. Navarro, 121 SCRA 707, April 28, 1983; Montalban v. Canonoy, 38 SCRA 1, March 15, 1971; Commissioner of Immigration v. Cloribel, 20 SCRA 1241, August 31, 1967; Slade Perkins v. Director of Prisons, 58 Phil 271, June 30, 1933; In re Kelly, 35 Phil 944, December 21,1916.

[7] GR Nos. 147589 and 147613, Resolution dated February 18, 2003.

[9] Section 12 of Article XI, 1987 Constitution.