Text of the Impeachment Complaint filed on July 22, 2010

Republic of the Philippines

HOUSE OF REPRESENTATIVES
15TH CONGRESS
Quezon City

IN RE IMPEACHMENT OF OMBUDSMAN
MA. MERCEDITAS NAVARRO-
GUTIERREZ

RISA HONTIVEROS-BARAQUEL,
DANILO D. LIM, FELIPE PESTAÑO,
and EVELYN PESTAÑO,
Complainants.

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

IMPEACHMENT COMPLAINT

COMPLAINANTS RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE

PESTAÑO, and EVELYN PESTAÑO, through undersigned counsel, respectfully state that –

PREFATORY STATEMENT

The Office of the Ombudsman was created under Article XI of the 1987 Constitution as
an independent office intended to serve as “protector of the people” principally through taking
prompt action on complaints filed against public officials and other employees of the
government.
The primordial purpose of the Office the Ombudsman is to enforce public accountability
among public officials, through, among other measures, investigating on its own, or upon
complaint of any person any act or omission by a public official that appears to be “illegal,
unjust, improper, or inefficient,” and, in appropriate cases, instituting the corresponding
directives to or initiating prosecution of the responsible officials.
The Ombudsman is thus vested with expansive authority and broad discretion in
fulfilling its mandate of enforcing public accountability within the ranks of the government
service. It is expected not to merely stand as a passive receiver of complaints from the public,
but to take a proactive role in rooting out corruption and impropriety in government. It is
empowered not merely to enforce the express commands of black letter law but to take action
on any act or omission that may be “unjust, improper, or inefficient.”
For in the end, the Office of the Ombudsman is envisioned as the ultimate bulwark that
the Filipino people may rely on against government abuse and official corruption, from the
lowest to the highest echelons of the public service.
Sadly, the current holder of this crucial Office, Ma. Merceditas Navarro-Gutierrez – in
the nearly five years since her appointment to fill the vacancy created by the resignation of the
previous Ombudsman, Simeon V. Marcelo – has failed to live up to this role.
During her watch, the Office of the Ombudsman, far from being an effective and reliable
recourse for ordinary citizens seeking succor and relief from government abuse, has become a
place where complaints of official wrongdoing go to languish, wither, and ultimately be
forgotten. In many instances, some of which will be discussed in this Impeachment Complaint,
Ombudsman Navarro-Gutierrez has unconscionably neglected to ensure that prompt and
effective action is taken on complaints from the public filed with her office.
Similarly, the Office of the Ombudsman, under the stewardship of Navarro-Gutierrez,
has become alarmingly and unjustifiably passive in taking on prominent issues involving
corruption and malfeasance at the highest levels of government. Instead of instituting
investigations on its own, as it is expressly empowered – in fact, arguably required – to do so by
the Constitution, it has sat quietly even in the face of the most scandalous reports of official
impropriety, waiting for private citizens, or other government offices, to take up the very causes
it was created to address. This Impeachment Complaint will likewise take up some of these
instances.
Finally, the effectiveness of the Office of the Ombudsman under Navarro-Gutierrez in
holding erring public officials to account by instituting successful prosecutions before the
appropriate courts and tribunals has likewise degraded to a distressing and unacceptable
degree. As this Impeachment Complaint will again show, an empirical and objective
assessment of the performance as prosecutor of the Office of the Ombudsman under Navarro-
Gutierrez, clearly establishes an intolerable, if not criminal, level of incompetence.

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 All these failings, taken together, indubitably amount to a betrayal of the public trust,
and a culpable violation of the constitutionally established duties of the Ombudsman, on the
part of Ombudsman Navarro-Gutierrez. This fact, in the view of the Complainants, provides
more than ample basis for impeaching Ma. Merceditas Navarro-Gutierrez as Ombudsman of
the Philippines under Article XI, Section 2 of the Constitution.

NATURE OF THE COMPLAINT

This is a verified Impeachment Complaint brought under Article XI, Section 2 of the
Constitution against Ombudsman Ma. Merceditas Navarro-Gutierrez for any or all of the
following constitutional grounds: (i) betrayal of public trust, and (ii) culpable violation of the
Constitution.

PARTIES

1) Ma. Merceditas Navarro-Gutierrez is the current holder of the Office of the

Ombudsman, pursuant to her appointment to fill the vacancy created by the resignation of
former Ombudsman Simeon V. Marcelo in 1995. She may be served notices and other
processes at the Office of the Ombudsman, Ombudsman Building, Agham Road, North
Triangle, Quezon City.

2) Complainant Risa Hontiveros-Baraquel is a Filipino, of legal age, and a former member

of the House of Representatives representing the Akbayan Citizens’ Action Party, of which she
remains an active member. She is currently a private citizen vigorously engaged in various
advocacies for the public interest. She may be served with notices and other processes at the
Akbayan National Headquarters, 36-B Madasalin Street, Sikatuna Village, Quezon City.

3) Complainant Danilo D. Lim is a Filipino, of legal age, and a former Brigadier General in
the Armed Forces of the Philippines. He may be served with notices and other processes at 14
Byron Street, Filinvest II, Batasan Hills, Quezon City.

4) Complainants Felipe and Evelyn Pestaño are Filipinos, of legal age, and the parents of
the late Ensign Philip Andrew Pestaño, whose death in 1995 was recently declared by the
United Nations Human Rights Committee (UNHRC) as a “homicide,” and with regard to which
the Philippine government failed to conduct an “impartial, effective, and timely” investigation.
They may be served notices and other processes at 45 C. Salvador Street, Loyola Heights,
Quezon City.

GROUNDS FOR IMPEACHMENT

I.

OMBUDSMAN MA. MERCEDITA NAVARRO-GUTIERREZ BETRAYED THE PUBLIC TRUST.

i.

THE DISMAL AND UNCONSCIONABLY LOW CONVICTION RATES ACHIEVED BY THE OFFICE
OF THE OMBUDSMAN FROM 2008 ONWARD INDICATE A CRIMINAL LEVEL OF
INCOMPETENCE AMOUNTING TO GRAVE DERELICTION OF DUTY WHICH CONSTITUTES A
CLEAR BETRAYAL OF PUBLIC TRUST.

ii.

THE UNREASONABLE FAILURE OF THE OMBUDSMAN TO TAKE PROMPT AND IMMEDIATE

ACTION, IN VIOLATION OF ITS OWN RULES OF PROCEDURE, ON THE COMPLAINTS FILED
AGAINST VARIOUS PUBLIC OFFICIALS INCLUDING FORMER PRESIDENT GLORIA
MACAPAGAL-ARROYO, AND HER HUSBAND JOSE MIGUEL T. ARROYO WITH REGARD TO
THE NBN-ZTE BROADBAND PROJECT CONSTITUTES BETRAYAL OF PUBLIC TRUST.

iii.

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THE 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 CONSTITUTES A BETRAYAL OF PUBLIC TRUST.

iv.

THE DECISION OF THE OMBUDSMAN UPHOLDING THE “LEGALITY” OF THE ARREST AND
INVOLUNTARY DETENTION OF THEN REPRESENTATIVE RISA HONTIVEROS-BARAQUEL BY
THE PHILIPPINE NATIONAL POLICE IN MARCH 2006 IN VIOLATION OF THE EXPLICIT RULES
PROVIDED IN THE REVISED PENAL CODE AND AS ESTABLISHED BY JURISPRUDENCE
CONSTITUTES A BETRAYAL OF PUBLIC TRUST.

v.

THE FAILURE OF THE OMBUDSMAN TO CONDUCT AN INVESTIGATION INTO POSSIBLE

WRONGDOING OR IMPROPRIETY WITH REGARD TO THE P1,000,000.00 DINNER FOR THE
PRESIDENTIAL PARTY AT LE CIRQUE RESTAURANT IN NEW YORK IN AUGUST 2009
DESPITE WIDESPREAD MEDIA COVERAGE AND PUBLIC CLAMOR, AND A FORMAL LETTER
FROM REPRESENTATIVE WALDEN F. BELLO CALLING FOR AN INQUIRY CONSTITUTES
BETRAYAL OF THE PUBLIC TRUST.

II.

OMBUDSMAN MA. MERCEDITAS NAVARRO-GUTIERREZ PERFORMED ACTS AMOUNTING

TO CULPABLE VIOLATION OF THE CONSTITUTION.

vi.

THE REPEATED FAILURES OF THE OMBUDSMAN TO TAKE PROMPT ACTION ON A WIDE

VARIETY OF CASES INVOLVING OFFICIAL ABUSE AND CORRUPTION VIOLATES ARTICLE XI,
SECTION 12 AND ARTICLE III, SECTION 16 OF THE CONSTITUTION, WHICH MANDATE
PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.

vii.

THE REFUSAL OF THE OMBUDSMAN TO GRANT READY ACCESS TO PUBLIC RECORDS

SUCH AS THE STATEMENT OF ASSETS AND LIABILITIES AND NET WORTH (SALN)
REQUIRED OF ALL PUBLIC OFFICERS UNDER REPUBLIC ACT NO. 6713 CONSTITUTES A
CULPABLE VIOLATION OF ARTICLE XI, SECTION 13(6) AND ARTICLE III, SECTION 7 OF THE
CONSTITUTION.

DISCUSSION

I.

BETRAYAL OF PUBLIC TRUST

i. The low conviction rates of achieved

by the Office of the Ombudsman
since 2008 constitute a
dereliction of duty that amounts
to betrayal of public trust.

5) Prosecution of offenses committed by public officers is one of the principal duties of

the Office of the Ombudsman. Under Article XI, Section 7 of the Constitution, as implemented
by Section 11 of Republic Act No. 6770 (the Ombudsman Law), prosecution of cases is
conducted by the Office of the Special Prosecutor, under the supervision and control and upon
authority of the Ombudsman. Ultimately, therefore, responsibility for the performance of the
Office of the Special Prosecutor rests with the Ombudsman.

6) Since 2008, however, the performance of the Ombudsman, with specific regard to its
prosecutorial function, has degraded to an unacceptable degree. According to a 2009 report by

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the Transparency and Accountability Network (a copy of which is attached herewith as Annex
“A”), from January to June 2008, the conviction rate for Ombudsman-conducted prosecutions
went down from 55% for the previous year, to a measly 14.43%, or nearly a quarter of the rate
for 2007. The worst months were March, with a 5% conviction rate, May with 3%, and June
with zero percent. As of 31 October 2008, the rate stood at 7%, with 25 successful convictions
in 349 cases filed.

7) More recently, the Sandiganbayan released a report that indicated that for the first four
months of 2010, the Ombudsman has achieved a conviction rate of 12.9%, garnering 8
convictions in 62 cases filed before the court. This is less than half the total average conviction
rate from 1979-2008, where the government secured 8,477 convictions out of 29,531 cases
filed, for a 28.71% conviction rate.1

8) Compared to the rates in other countries a 7% conviction rate (or even the more
generous 12.9% or even 14.43% rate) is atrociously low. In Malaysia, for instance, the
Malaysian Anti Corruption Commission, its equivalent of an anti-graft agency, registered
conviction rates ranging from 64.4% in the trial courts to 86.2% in the appellate courts.
Indonesia has an even more impressive conviction rate, with its Corruption Eradication
Commission claiming a 100% conviction rate out of 86 cases filed.

9) More generalized prosecution services in other countries also have significantly higher
conviction rates than the pathetic 7% registered by the Ombudsman. India has an average
conviction rate of 40.8%, the United States rate (by state) ranges from 65 to 80%, while the
United Kingdom has a 74% conviction rate.

10) The low conviction rates achieved by the Ombudsman, roughly 1 in 10 cases actually
leads to a conviction, indicates a level of competence far below that which can be reasonably
expected by the public from an anti-graft body. Low conviction rates either indicate poor
assessment and preparation in choosing which cases to file, or subpar handling of the actual
prosecution once a case is in court. Former Special Prosecutor Dennis Villa-Ignacio has
publicly attributed this decline in performance to deliberate understaffing of the Office of the
Special Prosecutor (OSP) by Navarro-Gutierrez.2

11) This dismal performance, by any standard, a level of incompetence that amounts to
dereliction of duty, which, in turn, constitutes betrayal of the public trust.

ii. The failure of the Ombudsman to act

promptly on the complaints filed
in relation to the NBN-ZTE
scandal constitutes betrayal of
public trust.

12) On 9 October 2007, then Representative Risa Hontiveros-Baraquel filed a complaint

before the Ombudsman against former Commission on Elections Chair Benjamin Abalos in
relation with the NBN-ZTE Broadband scandal.

13) Despite the explicit provisions of the Ombudsman’s own rules, in particular its adoption
of Rule 112, Section 3 of the Rules of Court, which required that it take action within ten (10)
days from receipt of the complaint, the Ombudsman only took cognizance of the case on 18
February 2008, or over four months later, when it called for a public hearing on the issue.

14) During the actual hearings of the case, therein respondents, including the
aforementioned former Chair Abalos, were given ten (10) days, or up to 28 February 2008,
within which to file their counter-affidavits. Respondents failed to do so, yet, inexplicably, the
Ombudsman still allowed them to submit late responses during the 4 March 2008 hearing of
the same case.

15) These deviations from procedure, particularly the inexcusable and unexplained delay of
over four (4) months before any action was taken on the complaint, in violation of the

1
See Ombudsman loses 9 out of 10 cases in first trim, http://www.abs-
cbnnews.com/nation/07/07/10/ombudsman-loses-9-out-10-cases-first-trim
2
See Campaign vs. graft slips as Ombudsman rift worsens, http://www.abs-
cbnnews.com/nation/12/20/08/campaign-vs-graft

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Ombudsman’s own rules of procedure, indicate either incompetence or deliberate
accommodation that amounts to a betrayal of public trust, especially in view of the fact of the
heightened public scrutiny of the NBN-ZTE scandal, and the alleged involvement of high-
ranking government officials, up to and including President Gloria Macapagal-Arroyo and her
husband, Jose Miguel Arroyo. The Ombudsman can hardly be considered an adequate
protector of the people if she fails to take prompt action on complaints, as mandated by Article
XI, Section 12 of the Constitution, in flagrant breach of her Office’s own rules, particularly for
high-profile cases involving charges of official corruption at the highest levels.

iii. The delay in the investigation of the

wrongful death of Navy Ensign
Philip Andrew Pestaño is a clear
betrayal of public trust.

16) On 27 September 1995, Ensign Philip Andrew Pestaño died on board the naval vessel
BRP Bacolod City where he was serving as cargo officer. The “official version” of the Philippine
Navy was that Ensign Pestaño committed suicide with a firearm.

17) The parents of Ensign Pestaño doubted this conclusion, especially since he had told
them earlier that the BRP Bacolod City was “dirty” and that it carried illegal cargo in the form
of P1 Billion worth of shabu. In addition, the parents on 26 September 1995, the day before
their son’s death, received an anonymous phone call warning that their son’s life was in
danger. They thus filed a complaint with the Office of the Ombudsman.

18) In March 2000, then Ombudsman Aniano A. Desierto, dismissed the complaint,
concluding that “further investigation... [would be] a waste of time, considering that the
physical evidence has already been tampered with, not to mention the lapse of time.”

19) In October 2005, the Philippine National Police corroborated the Navy’s position that
Ensign Pestaño had committed suicide.

20) Notwithstanding these developments, the Pestaño spouses refilled the case on 27
October 2005 with the new Ombudsman, Simeon V. Marcelo, who found merit in their petition
and reopened the case. However, upon Marcelo’s resignation on 30 November 2005, and the
assumption of the office by Ma. Merceditas Navarro-Gutierrez, the case has languished
uninvestigated before the same office up to the present day.

21) In April 2007, the Pestaño spouses filed a Communication before the United Nations
Human Rights Committee (UNHRC) under the First Optional Protocol of the International
Covenant on Civil and Political Rights (ICCPR) alleging that their rights had been violated by
the actions taken by the Philippine Government, including the Office of the Ombudsman.

22) On 23 March 2010, the UNHRC issued its resolution on the matter (copy attached
herewith as Annex “B”), declaring that the Philippine Government had violated its obligations
under the ICCPR by failing to provide the parents of Ensign Pestaño “an effective remedy in the
form, inter alia, of an impartial, effective, and timely investigation into the circumstances of
their son’s death.”

23) This is a direct indictment of the failure on the part of the Office of the Ombudsman to
act promptly and investigate the matter. The case, reopened in 2005, has languished before the
office of Ombudsman Navarro-Gutierrez for nearly five years. An international body like the
UNHRC, in contrast, took only three years to come out with a conclusive finding on the same
case.

24) As stated by the UNHRC, the delay amounted to a violation of the Pestaño’s human
right to an effective remedy. This clearly amounts to a dereliction of duty on the part of the
Ombudsman, amounting to a betrayal of public trust.

iv. The declaration by the Ombudsman

that Rep. Risa Hontiveros-
Baraquel’s arrest in March 2006
was lawful is in flagrant violation
of the law and amounts to a
betrayal of public trust.

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 25) In March 2006, then Representative Risa Hontiveros-Baraquel was, against her will,
physically restrained by members of the Philippine National Police, lifted into a mobile patrol
vehicle, and taken to Camp Karingal in Quezon City. This occurred during a International
Women’s Day rally at Welcome Rotunda.

26) Consequently Rep. Hontiveros-Baraquel filed a complaint for arbitrary detention and
violation of parliamentary immunity under Article 124 and 145 of the Revised Penal Code.

27) Surprisingly, these complaints were dismissed by the deputized prosecutor of the Office
of the Ombudsman on the ground that Rep. Hontiveros-Baraquel was not “arrested” but merely
taken into protective custody. This ridiculous conclusion, which disregarded the legal definition
of arrest, and which contradicted years worth of jurisprudence on the matter was eventually
upheld by the Ombudsman.

28) This patently erroneous conclusion, constitutes a betrayal of public trust.

v. The failure of the Ombudsman to

conduct an inquiry into the Le
Cirque dinner constitutes a
betrayal of public trust.

29) On 12 August 2009, Representative Walden F. Bello wrote a letter (copy attached
herewith as Annex “C”) to the Ombudsman calling for an inquiry into the P1,000,000.00 dinner
at Le Cirque for the party of President Gloria Macapagal-Arroyo, on the ground that this raised
the possibility of “illegal, or at the very least, improper acts committed by government officials.”

30) Specifically, Rep. Bello cited possible violations of Section 4(h) of Republic Act No. 6713,
Article 211 of the Revised Penal Code, and Presidential Decree No. 46.

31) Again, despite this letter, and despite the widespread public and media clamor for an
investigation, the Ombudsman failed to act, once more betraying the public trust reposed in
her office to look into official wrongdoing and enforce accountability of public officers.

II.

CULPABLE VIOLATION OF THE CONSTITUTION

vi. The repeated delays and failures of

the Ombudsman to take action on
cases impressed with public
interest constitutes a culpable
violation of Article XI, Section 12
and Article III, Section 16.

32) The Ombudsman has in numerous instances, both in those cases discussed above, and
in other cases, either failed to act promptly, or worse, failed to act at all in cases involving
allegations of wrongdoing on the part of public officials. This is in clear breach of her general
duty to act as “protector of the people,” and more specifically, her duty to act promptly under
Article XI, Section 12 and Article III, Section 16 of the Constitution.

33) Taken together, the previous instances of delay or inaction, as discussed in the instant
complaint, and in other cases, constitute a culpable violation of the Constitution.

vii. The refusal of the Ombudsman to

grant ready public access to
public documents such as the
Statement of Assets and
Liabilities and Net Worth violates

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 Article XI, Section 13(6) and
Article III, Section 7.

34) The Office of former Representative Risa Hontiveros-Baraquel has, on several occasions,
attempted to secure public records from the Office of the Ombudsman, in particular the
Statement of Assets and Liabilities and Net Worth (SALN) of Rep. “Mikey” Arroyo, which is
required to be filed pursuant to RA 6713, and records of cases pending before the Ombudsman
against various public officials.

35) Invariably, in these cases, she has been refused ready access despite the fact that these
are public documents which under the Constitution and RA 6713 are to be made available to
the public.

36) These constitute clear and culpable violations of Article XI, Section 13(6) and Article III,
Section 7 of the Constitution.

PRAYER

WHEREFORE, in view of the foregoing, it is respectfully prayed that OMBUDSMAN MA.

MERCEDITAS NAVARRO-GUTIERREZ, after due compliance with the procedure set forth in
Article XI, Section 3 of the Constitution, be found to have committed BETRAYAL OF PUBLIC
TRUST and CULPABLE VIOLATIONS OF THE CONSTITUTION and accordingly, cause the
instant Impeachment Complaint to be adopted as the Articles of Impeachment against
Ombudsman Navarro-Gutierrez for transmission to the Senate for trial.
Other reliefs just and equitable under the premises are likewise prayed for.

Quezon City, 21 July 2010.

IBARRA M. GUTIERREZ III

PTR 3568241, 3 March 2010, Q.C.
IBP 791593, 3 March 2010, Q.C.
Roll No. 44224
MCLE No. 11-0002793/18 July 2008
c/o Akbayan National Headquarters, 36-B Madasalin Street, Sikatuna Village, Quezon City
Phone: 433-6933
Fax: 925-2936
E-mail: mithrandir@gmail.com