Merci in jeopardy

PERRYSCOPE
Perry Diaz

For the second time in two years, Ombudsman Merceditas “Merci” Gutierrez will soon be facing impeachment charges against her in the House of Representatives. But this time around, with her protector — former President and now-Congresswoman Gloria Macapagal Arroyo — no longer in power, Gutierrez would be dealing with a House dominated by a coalition allied with President Benigno Aquino III.

Recently, in an attempt to defend herself from calls for her resignation, Gutierrez held a press conference where she defiantly declared: “There is no law that says you should resign if you have a case. There would be no due process.” She said she is ready to face an impeachment trial in the Senate.

During the first impeachment complaint against her in March 2009, she arrogantly said, “I have my mandate, I have my term and I believe this is my duty, my service to our countrymen.” With the word “my” repeated four times in one sentence, one wonders if she really cared much about what her “mandate” was all about.
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When Gutierrez took office on December 1, 2005, she declared, “I will be merciless to the grafters… no one can bribe me!” But within eight months, “Merci,” as her friends and associates affectionately call her, was accused of being too merciful to influential people suspected of graft and corruption. On July 31, 2006, the Malaya editorial said: “The Office of the Ombudsman has become a joke after Merceditas Gutierrez, a classmate of Mike Arroyo, succeeded Simeon Marcelo. How many big-time corruption cases have been sleeping the ‘sleep of the dead’ on the desk of Gutierrez?”

Appointed to a seven-year term of office by Arroyo, the constitution stipulates that the Ombudsman can only be removed from office “on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.”

What made the impeachment complaint extraordinarily unusual is that Gutierrez, as the Ombudsman, is the “Tanodbayan” — literally, the “Protector of the People” — who is duty-bound to prosecute corrupt public officials who use their positions to enrich themselves. That’s her mandate. If she fails to perform her mandate, then she will be derelict of her constitutional duty to “protect the people.” That would be tantamount to “betrayal of public trust,” an impeachable offense.
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Prior to her appointment as Ombudsman, Gutierrez was appointed by Arroyo as Chief Presidential Legal Counsel and Chairman of the Presidential Anti-Graft Commission — or Anti-Corruption Czar — in December 2004. Her two concurrent appointments made her one of the most powerful officials in the Arroyo administration.

But it was during Gutierrez’s “czarist” days that corruption dramatically increased. In 2004, before she became the Anti-Corruption Czar, the Philippines was the fifth most corrupt country in Asia. In 2005, during her first “czarist” year, the Philippines became the third most corrupt country in Asia. In 2006, during her first year as Ombudsman, the country moved up to second most corrupt country in Asia. In 2007 and 2008, the country became the most corrupt country in Asia. In 2009, the country improved to sixth place. In 2010, however, it moved up to fourth most corrupt country on a list of 16 Asian countries.
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The basis for the first impeachment complaint against Gutierrez involved at least five cases of corruption in high places, which Gutierrez allegedly failed to investigate or prosecute.

Although then-president Arroyo had publicly distanced herself from the impeachment complaint against her three-time appointee and friend of her husband, many believed that Arroyo pressured — or bribed — most of those who signed the impeachment petition to withdraw their signatures. As a result only 30 congressmen’s signatures remained on the petition, which was not enough to meet the one-third minimum requirement for an impeachment complaint to progress.

This time around, with ex-president Arroyo incapable of protecting Gutierrez, impeachment seems imminent. Last March 15, 2011, the House Committee on Justice submitted its final committee report and the Articles of Impeachment to the House Committee on Rules, which found probable cause to impeach Ombudsman Merceditas Navarro-Gutierrez for “betrayal of public trust.” The report’s prefatory statement says, “When an impeachable officer is no longer able to faithfully discharge his duties and protect the highest interests of the Republic, the fundamental law grants one remedy to vindicate the people’s will and restore the trust in their government. That ultimate sovereign remedy is impeachment by the popular branch of government.”
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This is squarely in line with the provision of Section 2, Article XI of the 1987 Constitution, which states: “The President, the Vice-President, the Members of the Supreme 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, graft and corruption, other high crimes, or betrayal of public trust.”

The Articles of Impeachment contain six allegations against Gutierrez, to wit:
1. Inaction of the Ombudsman in the matter of the fertilizer fund scam;
2. Inaction of the Ombudsman in the matter of the MegaPacific deal;
3. Inaction of the Ombudsman in the matter of the Euro Generals;
4. Unreasonable failure to take prompt and immediate action on complaints filed against
various public officials, including former President Gloria Macapagal-Arroyo and
Jose Miguel Arroyo with regard to the NBN-ZTE broadband project;
5. Inexcusable delay of the Ombudsman in conducting and concluding its investigation
into the wrongful death of Ensign Philip Andrew Pestaño aboard a Philippine navy
vessel; and
6. The Office of the Ombudsman has performed dismally as shown by the low
conviction rate achieved by the office. It is expected that the Articles of Impeachment – House Resolution 1089 -- would be debated and voted upon in a plenary session of the House the week before Congress goes into its month-long Holy Week recess on March 25. It would take at least 94 votes – or 1/3 of the 283-member House – to impeach Gutierrez. However, it is anticipated that as many as 150 congressmen would vote for impeachment.
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Once the House impeaches Gutierrez, the next -- and final -- step is a Senate trial where Gutierrez would either be convicted and removed from office or absolved. The Senate trial is expected to start in May after the recess. It would take at least 16 votes – or 2/3 of the 23-member Senate -- to convict Gutierrez. However, with Sen. Ping Lacson still out of the country, there will only be 22 senator-judges on hand to render a verdict. The question is: Can Gutierrez convince eight senator-judges to absolve her or can the House prosecutors convince 16 senator-judges to convict her? It’s going to be a toss-up either way. But my take is that the outcome would be decided by one vote.

Unless a cork plugging a bottle is removed, the content of the bottle will not flow out. Similarly, for as long as Merci Gutierrez remains as the Ombudsman, corruption cases will be bottled up and justice will not be served.It’s time for Merci to have her day in the “people’s court.” Mercy or no mercy? -- PerryDiaz@gmail.com