Republic of the Philippines DEPARTMENT OF JUSTICE National Prosecution Service Manila

Rep. RAFAEL V. MARIANO for and in his behalf and as representative of ANAKPAWIS PARTYLIST, DANILO RAMOS for and in his behalf and as representative of KILUSANG MAGBUBUKID NG PILIPINAS, ZENAIDA SORIANO for and in her behalf and as representative of NATIONAL FEDERATION OF PEASANT WOMEN, FERNANDO HICAP for and in his behalf and as representative of PAMBANSANG LAKAS NG MGA MAMALAKAYA NG PILIPINAS, RODEL MESA for and in his behalf and as representative of UNYON NG MGA MANGGAGAWA SA AGRIKULTURA, ALEXANDER PINPIN for and in his behalf and as representative of KALIPUNAN NG MGA SAMAHANG MAGBUBUKID SA TIMOG-KATAGALUGAN, JOSE CANLAS for and in his behalf and as representative of ALYANSA NG MGA MAGBUBUKID SA GITNANG LUZON, and Atty. EDRE OLALIA for and in his behalf and as representative of NATIONAL UNION OF PEOPLES LAWYERS, Complainants,

- versus -

MA. MERCEDITAS NAVARROGUTIERREZ, Respondent. x-------------------------------x

JOINT COMPLAINT-AFFIDAVIT
WE, REP. RAFAEL V. MARIANO, DANILO RAMOS, ZENAIDA SORIANO, FERNANDO HICAP, RODEL MESA, ALEXANDER PINPIN, JOSE CANLAS, and ATTY. EDRE OLALIA, all of legal age, Filipino, and with address at C/O Kilusang Magbubukid ng Pilipinas, 25-B Matiyaga St., Central District, Diliman Quezon City, after having been duly sworn to in accordance with law, hereby depose and state that: 1. We are filing this complaint for and in our behalf and in representation of the various organizations of which we are officers. Specifically, I, Rafael V. Mariano, am the Representative of Anakpawis Partylist in the 15th Congress; I, Danilo Ramos, am
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the Secretary General of Kilusang Magbubukid ng Pilpinas; I, Zenaida Soriano, am the Secretary General of National Federation of Peasant Women; I, Fernando Hicap, am the Chairperson of Pambansang Lakas ng mga Mamalakaya ng Pilipinas; I, Rodel Mesa, am the Secretary General of Unyon ng mga Mangagawa sa Agrikultura; I, Alexander Pinpin, am the Secretary General of Kalipunan ng mga Samahang Magbubukid sa TimogKatagalugan; I, Jose Canlas, am the Chairperson of Alyansa ng mga Magsasaka ng Gitnang Luzon; and I, Atty. Edre Olalia, am the Secretary General of National Union of Peoples Lawyers; 2. This complaint is against Ma. Merceditas Gutierrez, Filipino, of legal age, married and with residence and postal address at ______________________________ for violation of section 3 (e)1 and (f)2 of Republic Act 3019 or the Anti-graft and Corrupt Practices Act; for violation of Article 2083 of the Revised Penal Code or negligence or tolerance in the prosecution of offenses; for violation of Article 1834 of the Revised Penal Code or perjury in solemn affirmation; and violation of Presidential Decree No. 1829 or Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders; 3. On 26 May 2004, former Solicitor General Francisco Chavez filed an Amended Complaint-Affidavit for plunder with the Office of the Ombudsman against former President Macapagal-Arroyo, Jocelyn Jocjoc Bolante, et al. regarding the misuse or malversation of the seven hundred twenty eight million peso (P728,000,000.00) fertilizer and farm input fund. The said fund was allotted to the Ginintuang Masaganang Ani (GMA) project of President Arroyo supposedly intended for the purchase of fertilizers and farm inputs to be distributed to the farmers. This was later on infamously known as the P728 Fertilizer Fund Scam. The case was docketed as CPLC- 04-0962. Copy of the Amended Complaint-Affidavit filed by Atty. Chavez minus the annexes is hereto and marked as ANNEX A; 4. On 3 June 2004, Kilusang Magbubukid ng Pilipinas (hereinafter referred to as KMP), Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (hereinafter referred to as PAMALAKAYA), National Federation of Peasant Women, Alyansa ng Magbubukid ng Gitnang Luson (hereinafter referred to as AMGL), and Danggayan Dagiti Mananalon Ti Cagayan Valley (herein referred to as Danggayan-CV) filed a similar complaint with the Office of the Ombudsman against President MacapagalArroyo et al. regarding the misuse or malversation of the seven hundred twenty eight
1

Section 3. Corrupt practices of public officers In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (e)Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
2

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.
3

Art. 208. Prosecution of offenses; negligence and tolerance. The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses.
4

Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person, who knowingly makes untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein.

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million peso (P728,000,000.00) fertilizer fund. These peoples organization filed the complaint for and in behalf of their members who were directly and adversely affected by the misuse, malversation and/or plunder of the said public fund. The case was docketed as CPL-C-04-1021. Copy of the Complaint-Affidavit filed by KMP et al minus the annexes is hereto attached and marked as ANNEX B; 5. On 8 July 2004, then Ombudsman Simeon V. Marcelo referred the two complaints to the Office of the Deputy Ombudsman for Luzon for the conduct of investigation. The referral was made in view of the motion and letter of former Atty. Chavez to Ombudsman Marcelo to inhibit from the investigation thereof; 6. On 30 November 2005, Ombudsman Marcelo resigned from office allegedly due to health reasons; 7. On 1 December 2005, Ma. Merceditas Navarro-Gutierrez assumed office as the new Ombudsman; 8. Meanwhile, the Senate of the Republic of the Philippines, through its Committee on Agriculture and Food jointly with the Committee on Accountability of Public Officer and Investigation (Blue Ribbon) conducted series of investigations on the so-called fertilizer fund scam. These Senate Committees conducted six (6) public hearings on the fertilizer fund scam on 06 and 26 of October 2005; 17 and 24 of November 2005; 12 December 2005; and 02 February 2006. Eventually, these two (2) Senate Committees came up with Committee Report No. 54 dated 01 March 2006. Copy of Senate Report 54 is hereto attached and marked as ANNEX C; 9. In January 2006, the Deputy Ombudsman for Luzon referred back the complaints to the Ombudsman Central Office for appropriate action. And on 06 February 2006, Assistant Ombudsman Carandang issued a Field Investigation Office Order - FIO Order No. 06-003 - creating a panel of investigators known as the Task Force Abono to conduct a fact-finding investigation on the complaints. It was composed of two (2) CoChairmen and about twenty (20) FIO field investigators. 10. On 17 February 2006, Senator Ramon Magsaysay Jr. submitted to Atty. Melchor Arthur Carandang, Assistant Ombudsman of the Field Investigation Office (FIO), the papers and documents relative to the P728M Fertilizer Fund Scam. Copy of the picture showing Senator Magsaysay handing over the documents to Atty. Carandang is hereto attached and marked as ANNEX D; 11. On 27 February 2006, the Ombudsman Central Office referred the complaints to the FIO for appropriate action; 12. In March 2006, Ombudsman Gutierrez issued a memorandum directing that all fact-findings investigation reports, orders, resolutions, and decisions shall be approved by the ombudsman herself. This memorandum order centralizes all the approval of all reports, orders, and resolutions. Prior to the issuance thereof, the assistant ombudsman (FIO) is authorized to approve fact-finding investigation reports provided the recommendation is for the filing of complaints for purposes of preliminary investigation and/or administrative adjudication; if the recommendation is for the dismissal of a complaint/closure of fact-finding investigation, it shall be approved by the ombudsman; 13. Meanwhile, on 1 March 2006, the Committee on Agriculture and Food and the Blue Ribbon Committee submitted to the Senate, Committee Report No. 54 for approval. The committee report was eventually approved by the Senate. In the said committee report, the Senate recommended the filing of criminal and administrative charges against Jocelyn Jocjoc Bolante and several other government officials and employees and private individuals involved in the Fertilizer Fund Scam;
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14. On 07 March 2006, the Office of the respondent received a copy of the Senate Committee Report No. 54 as per transmittal letter dated 6 March 2006 by then Senate Secretary Oscar Yabes to Ombudsman Gutierrez. Copy of the transmittal letter is hereto attached and marked as ANNEX E; 15. On 29 March 2006, the Commission on Audit (COA) issued its Audit Report containing its findings and recommendations regarding the anomalous use of the P728M fertilizer and farm input fund and submitted the same to the Office of the respondent. As contained in the report, the COA found out so many irregularities in the disbursement of the P728 Farm Input Fund such as the overpricing by as much as 682% of the fertilizers; the failure to liquidate millions of pesos already disbursed; that the farmers did not receive any fertilizers or farm input; that the recipient NonGovernment Organization (NGOs) are with dubious legitimacy; and a host of violation of COA rules. It also recommended the filing of criminal and administrative cases against Mr. Bolante and several government officials and employees and private individuals involved in the Fertilizer Fund Scam. Copy of COA Report is hereto attached and marked as ANNEX F; 16. On 11 April 2006, after an inexplicable inaction and delay of almost two (2) years from date of filing to act on the complaints, Atty. Chavez filed before the Office of the Ombudsman a Motion to Require Respondents to Submit Counter-Affidavits. A similar motion was filed by complainants KMP et al before the Office of the Ombudsman. The latter, however, failed to act on the motions. Copy of the motion filed by Atty. Chavez is hereto attached and marked as ANNEX G. Corollary to these motions and the inaction of the Office of the Ombudsman, Atty. Chavez filed on 8 October 2007 a petition for mandamus before the Supreme Court which was docketed as G.R. No. 179752, to compel the Ombudsman to discharge her duties and functions, and to order her, inter alia, to require the submission of counter affidavits of respondents; 17. In the meantime, on 20 June 2006, the Task Force Abono submitted its 1st Fact-Finding Investigation Report of even date to Ombudsman Gutierrez for approval. Copy of the report is hereto attached and marked as ANNEX H; 18. The 1st Fact-Finding Investigating Report recommended the following:

a. The filing of a criminal complaint for preliminary investigation for violation of Article 220 (RPC) against the following public officials: Jocelyn Joc-Joc Bolante, Ibarra Poliquit, Cong. Nanette C. Daza, Cong. Federico S. Sandoval II, Cong. Oscar L. Gozos, Gov. Carmencita O. Reyes, Dir. Dennis B. Araullo, Belinda Gonzales, Emma S. Gonzales, Balagtas J. Torres, Juvylee C. Obice, Rodolfo M. Guieb, Marie Paz Jasmine M. Cabucol, Raymundo E. Braganza, Abelardo Bragas, Felix Ramos, Ofelia Montilla, and Gregorio Sangalang; b. The filing of a criminal complaint for preliminary investigation for violation of Section 3 (e) and (g) of RA 3019 against the following public officials and private individuals: Jocelyn Joc-Joc Bolante, Ibarra Poliquit, Cong. Nanette C. Daza, Cong. Federico S. Sandoval II, Cong. Oscar L. Gozos, Gov. Carmencita O. Reyes, Dir. Dennis B. Araullo, Belinda Gonzales, Emma S. Gonzales, Balagtas J. Torres, Juvylee C. Obice, Rodolfo M. Guieb, Marie Paz Jasmine M. Cabucol, Raymundo E. Braganza, Abelardo Bragas, Felix Ramos, Ofelia Montilla, Gregorio Sangalang, Linus C. Villanueva, Remus C. Villanueva, Phydias B. Baez, Fernando F. Gallarte, and Frederico P. Quevedo; c. The filing of an administrative complaint for preliminary investigation against the above-mentioned public officials, except Jocelyn I. Bolante, who was no longer in government service, and the three members of the
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House of Representatives: Cong. Nanette C. Daza, Cong. Federico S. Sandoval II and Cong. Oscar L. Gozos, for violation of Section 52(A) paragraphs (1) Dishonesty, (3) Grave Misconduct, and (20) Conduct Prejudicial to the Best Interest of the Service under the Civil Service Law; d. The above-mentioned public officials, except Jocelyn I. Bolante, who was no longer in government service, and the three members of the House of Representatives: Cong. Nanette C. Daza, Cong. Federico S. Sandoval II and Cong. Oscar L. Gozos, be placed under preventive suspension pursuant to Section 24 of RA 6770 (Ombudsman Act of 1989); e. The administrative action against the three members of the House of Representatives: Cong. Nanette C. Daza, Cong. Federico S. Sandoval II and Cong. Oscar L. Gozos, be referred to the House Ethics Committee of the House of Representatives; and f. The non-remittance of tax withheld as noted in par. 6.24 of the fact-finding investigating report be referred to the bureau of internal revenue for appropriate action. 19. On 20 July 2006, the Task Force Abono submitted its 2nd Fact-Finding Investigation Report dated July 20, 2006 to Ombudsman Gutierrez for approval. Copy of the report is hereto attached and marked as ANNEX I; 20. The 2nd Fact-Finding Investigating Report recommended the following:

a. The filing of a criminal complaint for preliminary investigation for violation of Section 3 (e) and (g) of RA 3019 against the following public officials of Butuan City and private individuals: Mayor Leonides Theresa B. Plaza; Vice Mayor Angelo S. Calo; Salvador L. Satorre, City Agriculturist; Arthur Castro; Adulfo A. Llagas, City Treasurer; Rodolfo B. Evanoso, Local General Services Officer; Bebiano B. Calo, Local Accountant; Danilo C. Furia, City Budget Officer; Melita Loida T. Galbo, Supply Officer III; Incorporators of Feshan Phils., Inc.: Deonilla and/or Julie M. Gregorio, Derek G. Glass, Heap Chee Kin, Andrew S. Sarinas, and Reginald M. Gregorio; and Lucio Lapidez, representative of Feshan Phils., Inc.; b. The filing of a criminal complaint for preliminary investigation for violation of Section 65 (b) subparagraph 4 of RA 9184 against the abovementioned private individuals connected with Feshan Phils., Inc.; c. The filing of an administrative complaint for preliminary investigation against the public officials above-mentioned, except Mayor Leonides Theresa B. Plaza who was no longer in government service, for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service under the Civil Service Law; and d. The public official above-mentioned, except Mayor Leonides Theresa B. Plaza who was no longer in government service, be placed under preventive suspension for six (6) months without pay, pursuant to the provisions of Section 24 of RA 6770 (Ombudsman Act of 1989). 21. In February to March 2007, the Task Force Abono issued subpoena duces tecum to the Branch Manager, Land Bank Department of Agriculture Extension Branch, Elliptical Road, Quezon City to provide records of a particular BANK ACCOUNT where the money disbursed through checks in the Fertilizer Fund Scam was deposited;

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22. However, in March 2007, Ombudsman Gutierrez issued a Memorandum Order directing that that all requests or referrals to the Anti-Money Laundering Council (AMLC) for documents, information, or conduct of bank account examination of the subjects of investigation must be approved by Ombudsman herself; 23. In March/April 2007, the Task Force Abono requested for the issuance of travel authority for four (4) FIO field investigators - two investigators to travel to Cebu and two investigators to travel to Davao - to secure records, documents and reports from the offices of Commission on Audit in Cebu and Davao, and to secure sworn statements of witnesses in the Fertilizer Fund Scam. This request was not granted by the designated officer in the Ombudsman Central Office. (Prior to March 2007, all requests for the issuance of travel authority relative to the investigation of the Fertilizer Fund Scam were granted by the Office of the Overall Deputy Ombudsman); 24. As of 31 July 2007, Task Force Abono submitted to Ombudsman Gutierrez for approval not less than forty (40) Fact-Finding Investigation Reports regarding the Fertilizer Fund Scam. All recommendations thereof are for the filing of criminal and administrative complaints for preliminary investigation against the concerned public officials and private persons found to have been involved therein; 25. Noteworthy, however, that with all these reports and recommendations of the Task Force Abono, it was only on 14 April 2011 when the Office of the Ombudsman approved a Joint-Resolution dated 11 March 2011 for the filing of Plunder and other criminal cases against Mr. Bolante and several government officials and employees and private individuals involved in the Fertilizer Fund Scam. It was also only on 14 April 2011 that the Office of the Ombudsman resolved the administrative cases against the public officials and employees implicated in the Fertilizer Fund Scam and recommended, among others, their dismissal from service; 26. On 9 August 2007, one of the two Co-Chairmen of Task Force Abono was transferred immediately from the FIO to the Preliminary, Administrative and Monitoring Office (PAMO); 27 On 16 August 2007, the other Co-Chairman of Task Force Abono was relieved from his position as OIC-Director of the Asset Investigation Bureau (AIB) and was directed to report to his subordinate, who was designated as his replacement as AIB OIC-Director. The transfer and subsequent relieved of the two Co-Chairmen of Task Force Abono effectively disbanded the task force; 28. In July 2010, Miss Riza Hontiveros-Baraquiel and others filed an Impeachment Complaint against Ombudsman Gutierrez before the House of Representatives; 29. In August 2010, Mr. Renato Reyes et al filed another Impeachment Complaint (hereafter referred to as the Reyes Complaint) before the House of Representatives. The Reyes Complaint alleged, among others as ground for the impeachment of the respondent as Ombudsman, her deliberate inaction or delay in the resolution of the complaint regarding the Fertilizer Fund Scam; 30. These two (2) impeachment complaints were referred to the Committee of Justice at the same time. After several months, the Committee of Justice conducted hearings for the impeachment of the respondent and required her to file her Answers to the two (2) Complaints; 31. On 4 March 2011, respondent filed her Answer to the Reyes Complaint. Copy of here Answer is hereto attached and marked as ANNEX J.
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32. culled:

Based on her Answer to the Reyes Complaint, the following facts can be

32.1. That on 27 October 2008, or more than two years after the first two Fact-Finding Investigation Reports were already submitted to her office, Ombudsman Gutierrez allegedly created a Special Panel to conduct the preliminary investigation on the matter5. 32.2. That after the fact-finding investigation was conducted, the Task Force Abono lodged its formal complaint with the Office of the Ombudsman against several named respondents6. 32.3. That supposedly numerous motions and pleadings (i.e. Motions for Clarificatory Hearing, Motions to Adopt Counter-Affidavit, Motions Requesting for Copies of Counter-Affidavit filed by co-respondents, Motions for Extension of Time to File Position Papers, Position Papers, Memorandum, Motions for Reconsideration, etc.) were filed by the parties which had to be considered and acted upon before the case could be submitted for resolution.7 32.4. That in January 2009, the result of the preliminary investigation was already submitted for resolution. The matter was thereafter allegedly held in abeyance due to the Senate submission of its Senate Committee Report No. 254 dated February 26, 2009 to the Ombudsman8. 32.5. That due to these, the FIO filed a Supplemental Complaint charging criminally and administratively twenty three (23) additional respondents which includes secretary Luis Lorenzo and other officials and employees of the Department of Agriculture (DA) as well as other private individuals9. 32.6. That on 12 July 2010, orders were allegedly issued for the twenty three (23) respondents to file their respective counter-affidavits and/or supplement affidavits10. 33. On 26 February 2011, KMP requested a certification from the Sandiganbayan to determine whether or not the Ombudsman has already filed a case against the respondents. The Sandiganbayan then issued a Certification that as of the said date, no case was filed against the respondents in relation to the GMA funds controversy. Copy of the Certification is hereto attached and marked as ANNEX K; 34. On March 21, 2011, the House of Representatives by a vote of 212 Yes and 46 No impeached the respondent from the Office of the Ombudsman and transmitted the Articles of Impeachment to the Senate of the Philippines. Article 1 of the Article of Impeachment pertains to her inaction on the Fertilizer Fund Scam; 35. In March 2011, Overall Deputy Ombudsman Orlando C. Casimiro, as respondent inhibited from the case, approved Graft Investigation and Prosecution Officer Judy Anne Doctor-Escalonas recommendation for the filing of criminal informations against Governor Raul Lee of Sorsogon et al. Governor Lee was charged in connection with the GMA Fertilizer Fund Scam for allegedly causing undue injury to the government along with provincial accountant Raul G. Hernandez and provincial treasurer
5 6

Paragraph 8, Answer to Reyes Complaint Paragraph 9, ibid 7 Paragraph 10, ibid 8 Paragraph 11, ibid 9 Paragraph 12, ibid 10 Paragraph 13, ibid

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Ofelia D. Velasco for the purchase of 2,133 liters of overpriced fertilizer from supplier Feshan Philippines Inc. in 2004; 36. On 14 April 2011, in OMB-C-C-08-04481, the Overall Deputy Ombudsman, as the respondent in a memorandum issued on 12 April 2011 also inhibited herself from the case, approved the Joint Resolution of the Special Panel of the Office of the Ombudsman dated 11 March 2011. The said resolution found probable cause for Plunder against Jocelyn Jocjoc Bolante, Luis Cito Lorenzo and other respondents and recommended the filing of the Informations against them before the Sandiganbayan. The Special Panel also found probable cause for various crimes against several public and private respondents in the Fertilizer Fund Scam. Copy of the resolution of hereto attached and marked as ANNEX L: 37. Also on 14 April 2011, in the administrative complaint filed against Ibara Poliquit et al, Overall Deputy Ombudsman approved the resolution of the Special Panel of the Office of the Ombudsman finding them guilty of the administrative charges, ordered their dismissal from government service, and forfeiture of benefits. The resolution was approved by the Overall Deputy Ombudsman as the respondent on 12 April 2011 inhibited herself from the case; 38. On 29 April 2011, respondent announced that she will resign from the Office of the Ombudsman and that her resignation will be effective on 6 May 2011. Thus, to date, she has resigned from the Office of the Ombudsman; 39. While it may be true that in the criminal complaints filed before the Office of the Ombudsman for the GMA Fertilizer Fund Scam, there were already resolutions finding probable cause for Plunder and other offenses against Mr. Bolante and other respondents, and in the administrative cases, the dismissal from service of the government officials implicated in the scam, these resolutions will not bail the respondent out; 40. It must be said that the criminal and administrative complaints were filed as early as 2004, yet, the cases were resolved only in March 2011 and approved by the Office of the Ombudsman in April 2011. These resolutions were issued more than five (5) years since Ombudsman Gutierrez assumed office in 1 December 2005. These resolutions, moreover, were issued almost five (5) years already Task Force Abono submitted its first two Fact-Finding Investigation Reports on June 20, 2006 and July 20, 2006; and they were issued almost four (4) years already since Task Force Abono submitted the rest of its Fact-Finding Investigation Reports as of July 31, 2007; 41. As can be clearly seen from the preceding narrations of facts, the respondent failed to act promptly on the complaints pertaining to the P728 GMA Fertilizer Fund Scam because it took her more than (5) years since she assumed office to resolve the complaints; 42. The failure of Ombudsman Gutierrez to act promptly on the complaints is inexcusable because (1) a period of more than five (5) years already constitutes inordinate delay in the administration of justice; (2) the reports and evidence gathered by the Task Force Abono, the Senate, and the Commission on Audit finding culpability on high-ranking government officials and private individuals have long been submitted and known to Ombudsman Gutierrez as early as during the first quarter of 2006; and (3) the said failure is contrary to the Ombudsmans duty to give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions and to complaints involving grave offenses and large sums of money; 43. The said inexcusable failure to act promptly and to resolve the complaints constitutes violation of section 3 (e) of Republic Act 3019 or the Anti-graft and Corrupt Practices Act which provides:
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Section 3. Corrupt practices of public officers In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

44.

It also constitutes violation of section 3 (f) of RA 3019 which provides:

Section 3. Corrupt practices of public officers In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

45. Moreover, respondents inaction to resolve the complaints in due time constitutes violation of Article 208 of the Revised Penal Code which provides:
Art. 208. Prosecution of offenses; negligence and tolerance. The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses.

46. Furthermore, it also constitutes violation of Presidential Decree No. 1829 entitled Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders. Clearly, the respondent used the power and mandate of the Office of the Ombudsman to protect the respondents in these cases and to frustrate the ends justice by not making them accountable for the well-documented and highly publicized fertilizer funds scam. Her failure to resolve the cases, whether deliberate or by negligence, may be invoked by the respondents in the GMA Fertilizer Fund Scam for the dismissal of the cases filed against them; 47. And true enough, Governor Lee in an eight-page motion filed on 4 May 2011 invoked the inordinate delay of more than 5 years by the Office of the Ombudsman in resolving the criminal complaints against the him and his co-respondents for the dismissal of the case. He argued that the inordinate delay in resolving the case is violative of his constitutionally guaranteed right to due process and to a speedy disposition of the cases filed against him; 48. But even assuming that the cases will not be dismissed and the motion of Governor Lee will be denied, still, the respondent has committed dereliction of duty by maliciously refrain from instituting prosecution for the punishment of violators of the law in relation to the GMA Fertilizer Fund Scam; 49. Furthermore, respondent should be held liable for violation of Article 183 of the Revised Penal Code by making untruthful statement of facts in her Answer to the Reyes Complaint;
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50. In her verified Answer to the Reyes Complaint, Ombudsman Gutierrez stated that that numerous motions and pleadings (i.e. Motions for Clarificatory Hearing, Motions to Adopt Counter-Affidavit, Motions Requesting for Copies of CounterAffidavit filed by co-respondents, Motions for Extension of Time to File Position Papers, Position Papers, Memorandum, Motions for Reconsideration, etc.) that were filed by the parties contributed to the delay in resolving the case; 51. This is a material allegation to controvert the accusation against her that she committed inexcusable delay or deliberate failure to act on the complaints filed by Atty. Chavez and KMP et al. This is not true, however; 52. Atty. Chavez and KMP et al have not filed position papers or memorandums in the cases they have filed before the Ombudsman precisely because they were not ordered to do so by the respondent. They have not also received any motion or pleadings from any of the respondents in the said cases. As a matter of fact, they were not notified of the issuance of subpoena requiring the respondents to answer or file their counter-affidavits. Atty. Chavez even filed a motion to the Office of the Ombudsman to require the respondents to submit their counter-affidavits and petitioned the Supreme Court to require herein respondent to order respondents in the criminal and administrative cases pending before her office to submit their Counter-Affidavits; 53. Thus, contrary to her claim in her Answer to the Reyes Complaint, there was no order requiring the respondents to submit their counter-affidavits. There were also no motions, pleadings, position papers and memorandum that were filed that supposedly contributed to the delay in resolving the case; 54. For making this untruthful allegation in the narration of facts as to a material matter in her verified Answer to the Reyes Complaint, respondent should be held liable for perjury or false testimony in solemn affirmations. 55. Respondent may also be held criminally liable as an accomplice for the crime of Plunder charged against Mr. Bolante et al. An accessory under Article 19 of the Revised Penal Code is one who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. 56. By failing to act on the complaints against Mr. Bolante et al thereby failing to make them return the proceeds of the crime of plunder and failing to make them accountable for the restitution, reparation, or indemnification thereof under Article 104 of the Revised Penal Code in relation to Articles 105, 106, and 107 thereof, respondent has assisted the offender, Mr. Bolante, et al, to profit by the effects of the crime of plunder;

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57. Respondent also may be held liable for violation of article 19 (3) of the Revised Penal Code by assisting in the escape of principal in the case for plunder. By refusing to resolve the case thereby abusing her function as an Ombudsman, Mr. Bolante was able to fly to the USA on 11 December 2005 and was therefore not able to attend the investigations conducted by the Senate Blue Ribbon Committee and Committee of Agriculture in the year 2005 and 2006. In the same vein, by refusing to perform her duties and delaying the resolution of the cases, she abused her function as the primary investigator of public officers, which resulted to claims of violation of the rights of the accused (like the claim of Governor Lee who invoked the delay in resolving the case for the dismissal of the case) and therefore can be used to dismiss the cases against the principals, allowing them to escape conviction. 59. We are executing this affidavit to attest to the truth of the foregoing and for whatever legal purpose this may serve. IN WITNESS WHEREOF, we have hereunto affixed our signature this 9th day of May 2011 at City of Manila.

Rep. RAFAEL V. MARIANO DANILO RAMOS (for and in his behalf and as representative (for and in his behalf and as representative of ANAKPAWIS PARTYLIST) of KILUSANG MAGBUBUKID NG PILIPINAS)

ZENAIDA SORIANO for and in his behalf and as representative of NATIONAL FEDERATION OF PEASANT WOMEN

FERNANDO HICAP for and in his behalf and as representative of PAMBANSANG LAKAS NG MGA MAMALAKAYA NG PILIPINAS

RODEL MESA for and in his behalf and as representative of UNYON NG MGA MANGGAGAWA SA AGRIKULTURA

ALEXANDER PINPIN for and in his behalf and as representative of KALIPUNAN NG MGA SAMAHANG MAGBUBUKID SA TIMOGKATAGALUGAN

JOSE CANLAS for and in his behalf and as representative of ALYANSA NG MGA MAGBUBUKID SA GITNANG LUZON

ATTY. EDRE OLALIA for and in his behalf and as representative of NATIONAL UNION OF PEOPLES LAWYERS

SUBSCRIBED AND SWORN TO before me this 9th of May 2011 at City of Manila. I CERTIFY that I have personally examined the affiants and that I am satisfied that they voluntarily executed and understood the contents of their Joint ComplaintAffidavit.

State Prosecutor/Prosecuting Attorney

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