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REPUBLIC OF THE PHILIPPINES HOUSE OF REPRESENTATIVES House of Representatives Complex Constitution Hills, Quezon City IN THE MATTER OF THE

IMPEACHMENT OF MA. MERCEDITAS NAVARROGUTIERREZ AS OMBUDSMAN OF THE PHILIPPINES,

Dr. Carolina Araullo Chairperson of BAYAN, Mo. Mary John Mananzan of PAGBABAGO, Danilo Ramos Secretary General of Kilusang Magbubukid ng Pilipinas (KMP), Atty. Edre Olalia acting Secretary General of National Union of Peoples’ Lawyers (NUPL), Ferdinand Gaite Chairperson of COURAGE, James Terry Ridon Chairperson of League of Filipino Students (LFS) Complainants. x---------------------------------------------------x

VERIFIED IMPEACHMENT COMPLAINT

COMPLAINANTS, BAYAN, Mo. Mary

Dr.

Carolina

Araullo

Chairperson

of

John Mananzan of PAGBABAGO, Danilo

Ramos Secretary General of KMP, Atty. Edre Olalia acting Secretary General of National Union of Peoples’ Lawyers (NUPL), Ferdinand Gaite Chairperson of COURAGE, James Terry Ridon of the League of Filipino Students (LFS), most respectfully state:

PREFATORY STATEMENT

1

Public

officials

are

accountable

to

the

people,

not

“sometimes”, not “often” times, but at ALL times and must serve them with utmost “responsibility and efficiency”. Section 1 of Article XI of the Constitution declares so:
Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

The

Office

of

the

Ombudsman

was

created

by

the

Constitution precisely to ensure this. Under Article XI of the 1987 Constitution, the Office of the Ombudsman was created as an independent office duty-bound to take prompt action on complaints filed against public officials and other employees of the government. By fearlessly taking action and by promptly investigating and prosecuting complaints brought before it, the Office the Ombudsman is envisioned to be the bulwark in enforcing public accountability among public officials.
“Article XI: Accountability of Public Officers Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” 1
1.

Section 15 of the RA 6770 or the Ombudsman Law similarly provides: Sec. 15. Powers, Functions and Duties—The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions xxx
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Section 15 of the RA 6770 or the Ombudsman Act on the powers and functions of the Ombudsman, carries the same provision:
“Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.” (emphasis supplied)

The above is the reason why the Ombudsman is vested with independence, as well as vast powers and broad discretion in carrying out its mandate of enforcing public accountability within the ranks of the government service. It is expected to take a proactive role in rooting out corruption, inefficiency and impropriety in government, and not merely stand as a passive receiver of complaints and evidence from the public.

What is the remedy if the person charged, such as the Ombudsman, with prosecuting public officials for acts or omissions which appear to be illegal, unjust, improper or inefficient is herself charged with acts which are illegal, unjust or improper at the very least appear illegal, unjust, improper or at the very least inefficient ? Article XI:
“Section 2. 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. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

The recourse is impeachment under Section 2 of

Ultimate Facts
Public service is of crucial importance to effective

governance. This is the reason why the Ombudsman was given the broad powers to prosecute not only acts or omissions that are illegal, unjust or improper but even acts or omissions that merely
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APPEARS to be ILLEGAL OR IMPROPER. In fact, the Constitution mandates the Ombudsman to prosecute acts or omissions which constitutes inefficiency. The impeachment of the Ombudsman, being the only recourse left, deserves no less than the same standard from Congress acting as an impeachment body. If the Ombudsman can criminally prosecute lowly public officials for appearing corrupt, unjust, improper or inefficient, the Ombudsman must also be impeached for betrayal of public trust should she be found to have committed the same through her acts or omission. After all, impeachment is not even a criminal procedure which results in the imprisonment of the respondent. It is not even a civil case where the respondent may be found liable for damages. It is not even an administrative complaint in the sense that it results in the banishment of the respondent from office since an impeachment in the House of Representatives does not mean the respondent is guilty of the impeachable offenses charged. Impeaching a public official merely means that the Articles of Impeachment is transmitted to the Senate, who, in turn, is required to hear the complaint and decide whether the impeached official should be allowed to remain in office. A decision of the House of Representatives impeaching Merceditas Gutierrez does not mean she is guilty of the offense charged, but rather, that there is a legal and constitutional basis for the Senate to conduct a hearing on the complaints filed by concerned citizens. Presuming that ultimate facts are necessary to be alleged in the Impeachment Complaint itself, the House should not require more than the ultimate facts required in the filing of a criminal information. In a criminal case, after a finding of probable cause, the Prosecutor files an Information with the court for the criminal

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prosecution of the accused, and the ultimate facts in such Information is generally written in the following manner:
“That on or about (this date) in (this place) within the territorial jurisdiction of this Honorable Court, the above named accused did then and there wilfully, unlawfully, and criminally (e.g. stabbed the victim to death) contrary to law or in violation of (this law).”

The ultimate facts contained in the example above is sufficient in substance and form to trigger the criminal prosecution of the accused in court. An impeachment complaint, which is a stage lower than actual prosecution because it is merely akin to a probable cause hearing before a prosecutor, should not require more than the above ultimate facts. In fact, the probable cause hearing before the prosecutor is triggered by a mere affidavit complaint and any additional data or evidence may be required by the fiscal during the hearings on the preliminary investigation. An impeachment complaint, especially in the substance and form stages, only requires that an impeachment complaint names the respondent and alleges acts or omission which constitutes the offense and the law or constitutional provision violated, thus establishing the jurisdiction of the Justice committee. Inordinately stringent interpretation of the requirements on sufficiency of an impeachment complaint as to substance and form will only make it difficult if not impossible for impeachment complaints of ordinary citizens to prosper beyond the first stage of the impeachment process and will signal the death of the only accountable mechanism left in the Constitution. Despite the above arguments, Complainants in herein impeachment complaint made sure that herein Complain contains similar allegations to ensure that the complaint fulfills the requirements of the House of Representatives. particularly contains : (A) the name of the respondent (Merceditas Gutierrez); The Complaint

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(B)the act or omission committed (such as refusal or failure to prosecute the respondents in the Fertilizer Scam or “Euro General” Eliseo de la Paz); and
(C)

the violation and ground (violation of Article XI of the

Constitution, RA 6770 or the Ombudsman Act, RA 3019 (Anti Graft and Corrupt Practices Act) and RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees Act) constituting the impeachable ground of Betrayal of Public Trust and culpable violation of the Constitution). Considering that impeachment is not a criminal complaint, the Impeachment proceedings should not be more stringent than a Regional Trial Court trying an accused for a criminal complaint. It should not even be more stringent than the probable cause proceedings before the state prosecutor conducting preliminary investigation.

The reasons for the filing of herein impeachment complaint
The incumbent Ombudsman, Ma. Merceditas N. Gutierrez has miserably failed to live up to the role of Ombudsman during the five (5) years she has held the position. Far from the zealous and impartial body envisioned in the Constitution, the Office of the Ombudsman has instead become synonymous with inaction, delay, partiality and corruption in favor of high-ranking government officials. During the term of Ombudsman Gutierrez the filing of a complaint on illegal acts involving then President Gloria Arroyo, the First Family or top officials of her administration with the Office of the Ombudsman virtually carried with it a guarantee that the complaint will all be forgotten, the perpetrators unpunished, and the taxpayers’ money siphoned into their pockets will never be recovered.

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“ There is a crime but there is no criminal” seems to be the rule under Ombudsman Gutierrez. The Supreme Court found The irregularities irregularities in the Mega Pacific deal, but Ombudsman Gutierrez found no criminal that requires prosecution. were found in the congressional investigation in the NBN ZTE deal, Hello Garci scandal, the fertilizer scam, and the Euro Generals but Ombudsman Gutierrez found no criminal that requires prosecution. The Supreme Court in the case of Sec. of Defense vs. Manalo and even the Arroyo created Melo Commission identified Gen. Jovito Palparan accountable for the extra judicial killings and disappearances in the country, but Ombudsman Gutierrez did not find this sufficient to prosecute Gen. Palaparan for acts or omissions which, at the very least, appear illegal or unjust or improper. The Filipino people deserve an Ombudsman who will perform her constitutional mandate to protect them from graft and corruption – not someone who condones –and in essence protects– the very thieves and traitors that the Office was mandated to prosecute. Our people expect those who wield the immense powers of the Office of the Ombudsman to spare no effort in ensuring honesty and integrity in public service and to take positive action against graft and corruption. They deserve no less. As this Verified Gutierrez’s Impeachment acts or Complaint and will show, to

Ombudsman

omissions

failure

investigate or prosecute, taken altogether, constitute a veritable betrayal of the public trust, and a culpable violation of the constitutionally established duties of her office. For all that she has done –and all that she has failed to do – her impeachment from office is thus most respectfully sought.

NATURE OF THE ACTION

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The instant verified Impeachment Complaint is being brought under Section 2, Article XI, of the 1987 Constitution against Ombudsman Gutierrez for : (a) Betrayal of Public Trust; and (b) Culpable Violation of the Constitution

PARTIES TO THE COMPLAINT
The complainants are: in this Verified Impeachment Complaint

(1)

FERDINAND GAITE, Filipino, of legal age and Chairperson of the Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE); DR. CAROLINA ARAULLO Chairperson of BAYAN, Filipino, of legal age and

(2)

(3)

MO. MARY JOHN MANANZAN, Filipino, of legal age and Convenor of PAGBABAGO, DANILO RAMOS, Filipino, of legal age and Secretary General of Kilusang Magbubukid ng Pilipinas (KMP) ATTY. EDRE OLALIA Filipino, of legal age and acting Secretary General of National Union of Peoples’ Lawyers (NUPL) JAMES TERRY RIDON, Filipino, of legal age and Chairperson of the League of Filipino Students. For purposes of the instant Verified Impeachment Complaint,

(4)

(5)

(6)

complainants may be served with pleadings and processes of the Honorable House of Representatives at 4th Floor, Erythrina Bldg., No. 1 Maaralin St., Central District, Quezon City. No less than the 1987 Constitution allows the complainants to bring the instant Verified Impeachment Complaint in pursuance of the imperative need to maintain the inviolability of public office.

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The RESPONDENT in this Verified Impeachment Complaint is MA. MERCEDITAS N. GUTIERREZ (hereinafter referred to as “respondent” or “Respondent Ombudsman”) is the incumbent Ombudsman of the Philippines and is being sued in her official capacity. She may be served with summons and other processes of the Honorable House of Representatives Diliman, Quezon City 1101. GENERAL ALLEGATIONS 1. Ombudsman Gutierrez, who assumed office on 30 November 2005, is the fourth Ombudsman of the Republic of the Philippines. 2. Immediately prior to respondent’s appointment as at the Office of the Ombudsman, Ombudsman Building, Agham Road, North Triangle,

Ombudsman, she was appointed by former President Gloria Macapagal-Arroyo as Chief Presidential Legal Counsel in the Office of the President. 3. Ombudsman Gutierrez graduated from the Ateneo De Manila University School of Law in 1972 from the same class as erstwhile First Gentleman Jose Miguel “Mike” Arroyo. 4. Ombudsman Gutierrez’s constitutional duty as Ombudsman is to act promptly on complaints for acts filed in any form or manner thereof, against public officials or employees or of the government, or any subdivision, agency or instrumentality including government-owned controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. 5. Complainants hereby accuse Ombudsman Gutierrez of

committing the impeachable acts of gross betrayal of the public trust and culpable violations of the Constitution. The present complaint will discuss how respondent committed
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these acts warranting her impeachment from office in the following instances:
(a)

Failure and omission to act promptly, in violation of the the

Constitution and Philippine laws, on the anomalous disbursement of funds and other anomalous transactions in the case of “Fertilizer Scam” despite Senate Report 54, COA Findings and

complaints filed by KMP and other concerned citizens detailing the anomalies and graft ridden irregularities in the transactions.
(b)

Refusal to prosecute Gen. Eliseo de la Paz, in violation one of the “ Euro

of the Constitution and Philippine laws,

Generals” for his illegal act of not declaring before customs officials the more than Ten Thousand United States Dollars (US$ 10,000.00) that he brought out (“exported”) of the country despite his public admission under oath that he committed this illegal act; and (c) Repeated failure to take action on the poll automation contract awarded to the Mega Pacific Consortium which was declared anomalous and void by the Supreme Court in 2004.

GROUNDS AND ARGUMENTS IN SUPPORT OF IMPEACHMENT: BETRAYAL OF PUBLIC TRUST and CULPABLE VIOLATION OF THE CONSTITUTION

I.

BETRAYAL OF PUBLIC TRUST

(1) OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE DELAY IN INVESTIGATING AND FAILURE IN PROSECUTING ANY ONE OF THEOSE INVOLVED ON THE ANOMALOUS TRANSACTIONS ARISING FROM THE FERTILIZER FUND SCAM DESPITE THE BLATANT ANOMALOUS TRANSACTATIONS REVEALED IN THE COA FINDINGS, SENATE COMMITTEE REPORT 54 AND THE

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COMPLAINTS FILED WITH RESPONDENT ON THE “FERTILIZER SCAM”. OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST WHEN SHE DID NOT TO PROSECUTE GEN. ELISEO DE LA PAZ FOR VIOLATING BSP CIRCULAR 98 (1995), AS AMENDED BY BSP CIRCULAR 507 (2006), IN RELATION TO REPUBLIC ACT 6713, WHICH PROHIBITS THE TAKING OUT OF THE COUNTRY OF CURRENCY IN EXCESS OF US $ 10,000.00 WITHOUT DECLARING THE SAME TO THE PHILIPPINE CUSTOMS, DESPITE THE FACT THAT GEN. ELISEO DE LA PAZ PUBLICLY ADMITTED UNDER OATH BEFORE THE SENATE BLUE RIBBON COMMITTEE THAT HE TOOK OUT OF THE COUNTRY CURRENCY IN EXCESS OF US$ 10,000.00 WITHOUT DECLARING THE SAME WITH THE PHILIPPINES CUSTOMS.
(2)

OMBUDSMAN GUTIERREZ BETRAYED THE PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE DELAY OR INACTION BY ACTING IN DELIBERATE DISREGARD OF THE SUPREME COURT’S FINDINGS AND DIRECTIVE IN ITS DECISION AND RESOLUTION IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, ET AL. VS. COMMISSION ON ELECTIONS, ET AL.
(3)

II.

CULPABLE VIOLATION OF THE CONSTITUTION THROUGH HER REPEATED FAILURES AND INEXCUSABLE DELAY IN ACTING UPON THE MATTERS BROUGHT BEFORE HER OFFICE, OMBUDSMAN GUTIERREZ VIOLATED SECTION 12 AND SECTION 13, PARAGRAPHS 1, 2 AND 3, ARTICLE XI ON WHICH HER CONSTITUTIONAL DUTY IS ENSHRINED, AS WELL AS SECTION 16, ARTICLE III OF THE CONSTITUTION, WHICH MANDATES PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.

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DISCUSSION OF ARGUMENTS AND RECITAL OF FACTS

1. BETRAYAL OF THE PUBLIC TRUST

6.

Betrayal of the public trust is a ground for impeachment provided by the Constitution to cover all manner of offenses unbecoming of a public functionary which are not punishable by criminal statutes. This includes negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance, cronyism, favoritism (and) or obstruction of justice.2

7. Under

Article

XI,

Section

7

of

the

Constitution,

as

implemented by Republic Act No. 6770 (the Ombudsman Law), one of the principal duties of the Office of the Ombudsman is the prosecution of offenses committees by public officers.

(1) OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE DELAY IN INVESTIGATING AND FAILURE IN PROSECUTING ANY ONE OF THEOSE INVOLVED ON THE ANOMALOUS TRANSACTIONS ARISING FROM THE FERTILIZER FUND SCAM DESPITE THE BLATANT ANOMALOUS TRANSACTATIONS REVEALED IN THE COA FINDINGS, SENATE COMMITTEE REPORT 54 AND THE COMPLAINTS
2

Records of the Constitutional Commission, Vol,. 2, page 272.

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FILED WITH RESPONDENT ON THE “FERTILIZER SCAM”.

8.

Despite blatant anomalous transactions revealed in the COA Findings and the Philippine Senate Committee Report No. 54 (dated March 1, 2006)3, which contains its findings on the “Fertilizer scam” and the evidence supporting the same, Respondent Ombudsman has not only inexcusably delayed the investigation but also, has not filed any criminal Information in any court against any respondent for the said anomalous transactions more than four (4) years after she started her much delayed investigation.

9. Said anomalous transactions complaints filed with the

were not only found Ombudsman by

in the

COA and Senate Report but were also detailed in the Kilusang Magbubukid ng Pilipinas (KMP) and former Solicitor General Frank Chavez. 10. under This omission by Respondent Ombudsman is a clear the Article XI of the Constitution, RA 6770

violation of the following: her oath of office and her duties (Ombudsman Act), RA 3019 (Anti Graft and Corrupt Practices Act) and RA 6713 (Code of Conduct and Ethical Standards Act) constitutive of betrayal of public trust. 11. The issue of whether a crime was committed in the P

728-million Fertilizer Fund scam had been pending before the Office of the Ombudsman for more than four years since the Senate of the Philippines transmitted in 2006 its Committee Report finding anomalous transactions therein. This inordinate delay is a violation of her constitutional duty and Philippine anti graft laws and at the very least constitutes
3

Report of the Joint Hearings by the Blue Ribbon Committee and the Committee on Agriculture and Food.

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gross inexcusable negligence that constitutes Public Trust. 12.

Betrayal of

Considering that the Senate Report was even preceded

by the separate complaints filed by the farmer members of the Kilusang Magbubukid ng Pilipinas (KMP), former Solicitor General Francisco Chavez and the late journalist Marlene Esperat detailing the same anomalies, Respondent Ombudsman failure to file the necessary information before any court against any accused constitutes this impeachable ground. 13. The evidence of blatantly anomalous transactions were

contained the above Senate Report No. 54 which contained the following Findings:
14. Firstly, the funds used in the “ Fertilizer Scam” was a portion

of a large fund called the “Farm Inputs and Implements” as discussed in Page 13 of the Senate Committee Report 54:
“The Php 728 million Fund is just a Portion of a Larger Fertilizer Fund Released during the Elections of 2004 The Php 728 million fertilizer fund is just part and parcel of the huge fund releases to the Department of Agriculture totaling Php 2.806 billion intended for the purchase of farm inputs and implements in 2004, all made just before the May 10,2004 elections. Its breakdown as follows : Nature of Fund/ GMA Farm Inputs and Implements GMA Rice and Corn and Marcos Wealth for CARP SARO Number E-04-0014 E-04-00294 E-04-01 090 Date/ Amount Php 728 million February 3,2004 Php 1.102 billion February 11,2004 Php 544 million April 28,2004 Php 432 million TOTAL Php 2.806 billion

GMA Rice Program From Agency Budget And Fertilizer Procurement And Distribution Component

In a document submitted by the Department of Agriculture”, the Php 728 million fertilizer fund forms part of the Farm Inputs and Farm Implements Program in 2004 to assist LGUs in boosting their agricultural production and increasing farmers’ income.”
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15. Secondly, the role of then DA Usec. Jocelyn “Jocjoc” Bolante

and the others in the disbursement of funds as discussed in Page 19 of the Senate Committee Report 54:
“In the fertilizer fund scam, Undersecretary Bolante is the declared architect. He designed it. He was its brains. It was he who worked with the DBM for the immediate release of the fund. It was him who prepared and submitted names who would become the fertilizer fund’s proponents. It was Undersecretary Bolante who sent letters to various congressmen and local officials informing them of the availability of funds under the DA’s CMA Project. It was him who directed these officials to coordinate with his office to discuss all the requirements to facilitate the said project fund. Undersecretary Bolante in the words of his then Chief of Staff, Ibarra Poliquit, had a hand in determining how the GMA Project fund works and will be spent. X x x x In the Committee of the Whole public hearing of January 31, 2006, Undersecretary Belinda Gonzales specifically mentioned that it was the Office of Undersecretary Jocelyn Bolante who ordered the release of funds to the recipients stated in the list. “I got instructions from Usec Bolante that this ---- P 1 00 million ---- will be be transferred to the different regional offices. Secretary Luis Lorenzo and Undersecretary Belinda Gonzales served as cosignatories of Mr. Bolante in transferring the money from the Department of Agriculture to the regional field units (RFUs) and to local governments.”
16. Thirdly, that farmers did not receive the said fertilizer “farm

inputs” as testified by farmers from all over the country including the Kilusang Magbubukid sa Pilipinas as discussed in Page 21 of the Senate Committee Report 54 :

“BUT NO ONE RECEIVED THE FERTILIZERS. The Farmers’ Voices. The Peasants’ Woes. In all public hearings conducted, the farmer groups were its most active and cooperative participants. Farmers and peasant leaders from as far as the Ilocos region and Western Mindanao aired their collective grievances. Theirs are the voices of desperation. One of the largest farmer organizations in the country, the Kilusang Magbubukid ng Pilipinas (KMP) through its national leaders, Danilo Ramos said that not one among their 64 provincial chapter fanner members from the 15 regions nationwide had received assistance from the so-called fertilizer fund. Mr. Ramos lamented about their plight that for every bag of urea fertilizer they would loan, they would pay an equivalent of three (3) 50-kg bag of palay during harvest, adding that the system of usury is still widespread because farmers have not received any support whatsoever from the government.

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The KMP emphasized that the meager amount of fertilizer that they should have received during the year 2004 seemed to point to the direction of the election fund campaign of Ms. Arroyo. In the words of respected farmer leader Tatay Greg Rivera, “Ni isang butil nu abono hindi kami nakatanggap ’’ In their consultations with other farmer organizations, the KMP group of Mr. Ramos confirmed that other farmers groups which happened to be within their alliance also indicated not having received fertilizer assistance.”

17. Fourthly, the disbursement of funds and other transactions

were part of a scam as discussed in pages 26-31 of the Senate Committee Report 54: The Senate Report discussed the mysterious beginnings of the “Farm Inputs and Implementation Program” in Page 26 of the Report, to wit: “As confirmed by Secretary Panganiban himself during the budget hearing, nobody in the Department of Agriculture knew of the existence of the Farm Inputs and Implements program. In the files of the Department itself, there is no single document that would support the existence of such.” There was overpricing as Page 28 of the Senate Report stated: “Even the design and implementation of the fertilizer fund scam manifest the height of scandalous corruption. The gross overpricing as reported by the Commission on Audit is absolutely abominable, with the ordinary foliar fertilizer (which was allegedly supplied in almost all transactions) overpriced from almost 700 to 1,250 percent.” Ghost and questionable suppliers and deliveries haunt the fertilizer fund scam as contained in page 29 of the Senate Report: “AKAME Marketing is the identified supplier of a substantial number of transactions in the Php 728-million fertilizer fund. Process servers of the Senate failed to locate its business address indicated in its registration. Tacloban Star, a regional newspaper in Leyte and Samar, reported that its telephone number corresponds to a “gulayan ” stall in Kaloocan City. Another company named Castle Rock Construction was awarded multiple contracts under the same fund. COA, in its audit memoranda, noted that “no copies of the documents from the Department of Trade and Industry was available that can show that Castle Rock Construction can engage or do business relative to the trading of fertilizer. Witness Jose Barredo stated that FESHAN Philippines, Inc. one of the largest suppliers, is originally a medical supplier and started to supply fertilizer only in 2004. Its office address as submitted to the DA is a non-existing address.”

(1)

(2)

(3)

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(4)

The corruption or at least the flawed and wasteful design of the program was discussed in page 30 of the Senate Report: “Undersecretary Jocelyn Bolante cunningly, wittingly listed 105 congressmen, 53 governors and 23 mayors to justify the immediatelyrelease of the fund. It specifies uniform amounts, regardless of which congressional districts or local units the proponents represent, whether the same are rice or corn-producing LGUs or not. Bolante is not even mindful that the locality or legislative district from where the proponent came from is part of the farm-absent Metro Manila. From this list, it can be deduced that it was an intended flawed program using public funds.

18. The Senate Report in Pages 32-35 then recommended the

following, in very clear terms: (a) Criminal and Administrative Charges must be filed against Usec. Jocelyn Bolante, Sec. Lorenzo Ruiz, Usec. Ibarra Poliquit, Usec. Belinda Gonzalez, Asec. Jose Montes, and all DA Regional Directors who participated in the illegal transactions for violating Sec. 3 (e) of RA 3019.
(b)

The Ombudsman together with the Anti-Money Laundering Council scrutinize the voluminous documents and trace its flow from the Regional Field Units of the Department of Agriculture to the local officials and file charges against them, whether elected or appointed, for violation of the Anti-Graft and Corrupt Practices Act.

(c)The partners, suppliers or subordinates in the private sector who worked in cahoots with the above-mentioned officials of the Department of Agriculture who participated in overpricing, supplying substandard and diluted fertilizers should be charged as co-conspirators under the Plunder Law and Anti-Graft and Corrupt Practices Act must be filed. The Ombudsman is advised to check the various records which would indicate their names and the complete paper trail of their respective transactions. 19. As stated above, Respondent Ombudsman to date has

not found anything illegal, improper or inefficient in the above transactions or at the very least found anything that “appears” illegal, improper or inefficient in the above transactions, sufficient to merit the prosecution of any of those involved in the “Fertilizer Scam”.

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20.

The criminal inaction on the Report is compounded by

blatant disregard of Respondent Ombudsman of cases filed before her including the case by farmers groups composing the Kilusang Magbubukid ng Pilipinas.
21. On

June

11,

2004,

Kilusang by by

Magbubukid Danilo Fernando of

ng

Pilipinas ng

represented represented

Ramos, Hicap,

Pambansang Lakas ng Kilusang Mamamalakaya Pilipinas AMIHAN National ng Federation Luson Peasant by

Women represented by Carmen Buena, Alyansa ng Magbubukid Joseph Gitnang and represented Canlas DANGGAYAN DAGITI

MANNALON TI CAGAYAN VALLEY represented by Reynaldo Abrogena filed a complaint for violation of Republic Act No. 7080 or the Anti-Plunder Act, Republic Act No. 3019 or the Anti-Graft And Corrupt Practices Act, Malversation of Public Funds under Articles 217 and 220 of the Revised Penal Code, Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees and violation of Batas Pambansa Blg. 881 or the Omnibus Election T. Code against who then the then then President Secretary of of of the the the Philippines GLORIA MACAPAGAL-ARROYO, EMILIA BONCODIN was Department of Budget and Management, MARIO I. RELAMPAGOS Undersecretary Department of Budget and Management, NORA C. OLIVEROS the Director of BMB-E of the Department of Budget and Management, LUIS P. LORENZO, JR. who was the Secretary I. of the Department who was of the Agriculture, JOCELYN BOLANTE

undersecretary of the Department of Agriculture and JOHN DOEs and JANE DOEs for illegal disbursement and release of SEVEN HUNDRED TWENTY EIGHT MILLION PESOS (P 728,000,000.00) of PUBLIC FUNDS
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from the National Treasury to the Department of Agriculture and subsequently given to several named members of the House of Representatives and to provincial governors and municipal mayors, belonging to Mrs. Arroyo’s national political party and/or allied party or perceived to be her supporters. 22. In violation of her oath of office and the duties on her Law by to the Constitution and the and “promptly” investigate imposed

Ombudsman improper or

prosecute “acts which appear to be illegal, unjust, inefficient”, in the KMP respondent complaint Ombudsman and to the never issued any notice, resolution, or order to the complainants 23. respondents relative to the case. Despite the voluminous evidence in the Senate and the complaints in 2004 pending on the before illegal Ombudsman report

Respondent

disbursement of the said public funds, respondent Ombudsman Gutierrez through inaction, prejudicial to public interest, has not filed a criminal information against the respondents in the said complaint before any court. 24. These violates the following, and constitutes 24.1 Violation of her oath of Office and her duties to act promptly on complaints provided under Article XI, Section 12 and Section 13 of the Constitution which states:
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
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Betrayal of Public Trust:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

24.2 Violates RA 6770 particularly: (i) For failure to act promptly on the complaints, the Senate Report and COA findings, Section 13 which provides that:
Sec. 13. Mandate. - The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the government, or of any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people

(ii)

For failure to prosecute, Section 15 which states that:
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient

24.3 Violation of RA 3019 or the Anti Graft and Corrupt Practices Act, particularly: (i) for least manifest for partiality in favor of those involved in the fertilizer scam or at the very gross inexcusable negligence, violation of Section 3 (e) which states that it is corrupt practice to
(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

20

administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. (ii) For violating Section 3 (d) 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 x x x giving undue advantage in favor of or discriminating against any other interested party.

24.5 RA 6713 or the Code of Conduct and Ethical Standards (i) of Public Officials and Employees, particularly: Section 4 (a) for not upholding public interest:
(a) Commitment to public interest. — Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.

(ii)

Section

4

(b)

for

failing

to

perform

and

discharge her duties with the highest degree of professionalism, intelligence and skill:
(b) Professionalism. — Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage

(2) OMBUDSMAN MERCEDITAS GUTIERREZ, IN VIOLATION OF THE CONSTITUTION AND RA 6770 AND THE OMBUDSMAN ACT, COMMITTED BETRAYAL OF PUBLIC TRUST WHEN SHE WILLFULLY REFUSED TO PROSECUTE GEN. ELISEO DE LA PAZ FOR VIOLATING BSP CIRCULAR 98 (1995) AS AMENDED BY BSP

21

CIRCULAR 507 (2006) IN RELATION TO REPUBLIC ACT 6713 WHICH PROHIBITS THE TAKING OUT OF THE COUNTRY OF CURRENCY IN EXCESS OF US $ 10,000.00 WITHOUT DECLARING THE SAME WITH THE PHILIPPINE CUSTOMS, DESPITE THE FACT THAT GEN. ELISEO DE LA PAZ PUBLICLY ADMITTED UNDER OATH BEFORE THE SENATE BLUE RIBBON COMMITTEE ON NOVEMBER 15, 2008 THAT HE TOOK OUT OF THE COUNTRY CURRENCY IN EXCESS OF US $ 10,000.00 WITHOUT DECLARING THE SAME WITH THE PHILIPPINES CUSTOMS.

25. Ombudsman

Gutierrez committed gross inexcusable inaction

when she did not prosecute “Euro General” PNP Dir. Eliseo De la Paz despite his public admission under oath before the Senate Blue Ribbon Committee that he did not declare with the Philippine Customs that he was bringing out of the country or exporting currency worth more than US$ 10,000.00 in violation of BSP Circular 98 (S 1995) as amended.
26. Gen.

de la Paz, who was the Comptroller of the Philippine

National Police at the time, was arrested by customs inspectors at Moscow International Airport on 11 October 2008 after he was found carrying 105,000 Euros (P6.93M) in his carry-on baggage, which exceeded the 3,000-euro limit for departing passengers. 27. He initially declared that the amount he took out,

totaling P 9.1 Million, was cash advance for the PNP delegations trip to Moscow. He later declared it came from intelligence fund to buy equipment. His last version was that the money came from a friend who asked him to buy an expensive watch.

22

28.

He was investigated by the Philippine Senate upon his

return to the Philippines where it was established that he took out foreign currency (Euro) worth more than Ten Thousand United States dollars.
29. Gen.

De la Paz admitted under oath during the hearings of that he

the Senate Foreign Relations Committee, which issued the Senate Committee Report after the hearings, brought out of the country more than Ten Thousand United States dollars worth of Euros without declaring the same with the Philippine Customs as required by Central Bank circulars and that he was aware of that requirement.
30. The

Senate Committee Report No. 229 (dated November 13,

2008) also stated that Airport Customs Collector Teresita Roque has declared that Gen. De la Paz did not declare any excess currency when he left the country.
31. The

said Senate Committee Report No 229 contained the

laws and regulations violated by Gen. de la Paz for such failure to declare, to wit:
Dela Paz Violated Banko Sentral Regulations BSP Circular No. 308 issued 2001; MB Resolution No. 1779 issued 2001, as amended by BSP Circular No. 57 issued 2006; and MB Resolution No. 1588 issued 2005, all require “a person who is bringing into or out of the Philippines foreign currency in excess of @10,000 or its equivalent,” to furnish the Monetary Board with a statement in writing disclosing the source and purpose for carrying the subject amount of money. R.A. No. 7653, aka the New Central Bank Act, Section 36, imposes a penalty of: “A fine of not less than @50,000 nor more than @200,000, or by imprisonment of not less than two (2) years or more than ten (10) years, or both. at the discretion of the Court.”

32.
33. The

The same Senate Committee Report 229 recommended failure to declare the above amount is subject to

the filing of criminal charges against Gen. Eliseo de la Paz: prosecution as provided under BSP Circular No. 98 dated 11

23

December 1995 and BSP circular 308 as amended in relation to Section 36 of RA 7653 which provides for a fine or imprisonment of “not less than two years nor more than ten years or both” as penalties for violation of Central Bank or BSP circulars.
34. The

act or omission of Gen. de la Paz is clearly a violation of

the law and BSP circulars as it consists of the two elements constitutive of the offense, namely: (1) the taking out of the country of currency in excess of Ten Thousand United States Dollars (US$ 10,000.00); and (2) the failure to declare the same with the Philippine customs. (This is akin to a criminal case for illegal possession of firearms where the judge must convict the accused once he admits under oath that he committed the following: (1) possessing a firearm, and (2) he was not licensed to possess such firearm). 35. Despite this clear violation, that requires no lengthy

investigation as Gen. de la Paz himself admitted to both the elements, the office of the Ombudsman continued to make pronouncements that they are investigating the case months after the incident and even well into 2009.
36. To

date, Ombudsman Gutierrez has not filed any criminal

information against Eliseo de la Paz.4
37. If

it is true that Gen. de la Paz returned to the PNP the funds

confiscated from him in Moscow, that does not constitute absolution for his violation of Philippine laws and BSP circulars.

4

Ombudsman Gutierrez even refused to prosecute Gen. De la Paz despite the recommendation of the PNP itself that he be prosecuted for De la Paz for violation of PD 1445.

24

38. The

inexcusable inaction of the Respondent Ombudsman in

not prosecuting Gen. Eliseo de la Paz despite his admission of guilt constitutes a Betrayal of Trust.
(3) OMBUDSMAN GUTIERREZ BETRAYED THE PUBLIC TRUST BY ACTING IN DELIBERATE DISREGARD OF THE SUPREME COURT’S FINDINGS AND DIRECTIVE IN ITS DECISION AND RESOLUTION IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, ET AL. VS. COMMISSION ON ELECTIONS, ET AL.
39. In

Information Technology Foundation of the Philippines, et al. vs. Commission on Elections, et al. 5, the Supreme Court made the following rulings: a. Declared null and void Comelec Resolution No.

6074 dated April 15, 2003, awarding contract for the purchase of election counting machines to Mega Pacific Consortium. b. Declared null and void the Contract executed Mega Pacific eSolutions, Inc. and the

between

Commission on Election for the purchase of the said election counting machines. c. Enjoined the implementation of any other

contract relative to the Automated Election System project. 40. The controversial contract weight heavily on the public

coffers. The contract was worth One Billion Three Million (1,300,000,000.00) Pesos, and the taxpayers shouldered the cost of storage expenses for the counting machines which amounted to P329,355.26 per month or P3,979,460.24 annually. The amount involved in the contract emphasizes the seriousness of the acts committed by the officials of the
5

G.R. No. 159139, January 13, 2004

25

COMELEC. The Supreme Court pointed out the following anomalies in the transaction: a. The contract was awarded to an entity (Mega

Pacific eSolutions, Inc.) which did not participate in the bidding. b. The awardee did not pass the eligibility

requirements for the bidding. c. The bid of the awardee did not pass the technical

requirements for the bidding. d.The bid specifications were changed during the evaluation of the bid. e. The resolution awarding the contract was issued

before the Bids and Awards Committee issued its written report.
41. Due

to

these

irregularities,

the

Supreme

Court,

in

Information Technology Foundation of the Philippines, supra, made the following observations:
“Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec has not merely gravely abused its discretion in awarding the Contract for the automation of the counting and canvassing of the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily accepting electronic hardware and software that admittedly failed to pass legally mandated technical requirements. Inadequate as they are, the remedies it proffers post facto do not cure the grave abuse of discretion it already committed (1) on April 15, 2003, when it illegally made the award; and (2) ‘sometime’ in May 2003 when it executed the Contract for the purchase of defective machines and non-existent software from a non-eligible bidder.”
42. Undeniably,

the irregularities occurred not only during the

proceedings before the Bids and Awards Committee but also
26

during the approval of the award by the COMELEC en banc. In other words, the entire process was rigged. Consequently, the liability for the irregularities should rest not only on the members of the Bidding and Awards Committee, but also on the Commissioners of the COMELEC. Due to the seriousness of the irregularity and the officials involved, the Supreme Court deemed it necessary to refer the matter to the Office of the Ombudsman for investigation and to prosecute those involved.
43. It

is worthy to note that in its Report6 dated 12 December

2005, the Senate Committee on Accountability of Public Officers and Investigations (Senate Blue Ribbon) chaired by Senator Joker Arroyo also came out with a similar conclusion, finding several COMELEC officials and members of BAC liable on the illegal and nullified contract. 44. While she took initial actions in compliance with the directive the of the no Supreme concrete Court, the were

aforementioned months after

Ombudsman sat on the investigations. One year and four referral, actions undertaken. The unexplained delay in the investigation has prompted the Supreme Court to issue a Resolution dated February 14, 2006 requiring her:
“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..."

45.

In its Resolution dated May 3, 2006, the Supreme Court its directive to Ombudsman Gutierrez. The

reiterated

dispositive portion of the said Resolution provides:
“WHEREFORE, the Motion for Clarification of petitioners is NOTED. The disposition of the Court in its March 28, 2006 Resolution is hereby CLARIFIED, consistent with the above
6

A copy of which is hereto attached as Annex “A” and made an integral part hereof.

27

disquisition, as follows: The Office of the Ombudsman shall, under pain of contempt, report to this Court by June 30, 2006, its final determination of whether a probable cause exists against any of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract. If it finds that probable cause exists, it shall continue to render its reports every three months thereafter, until the matter is finally disposed of by the proper courts.”

46.

Obviously, the Ombudsman intentionally stalled the

investigation on the irregularities, thereby shielding the perpetrators, especially the commissioners and other high ranking officials of the COMELEC.
47. When

the Ombudsman finally came out with her Resolution

on the investigations, she exonerated Chairman Benjamin Abalos, and other COMELEC officials. Worse, she overturned her own Resolution7 which found Commissioner Resureccion Borra liable for the said irregularities and recommending his impeachment, thereby absolving everyone from and negating the very existence of a crime This decision is

obviously contrary to the findings of both the Supreme Court as held in Information Technology Foundation of the Philippines, supra, as well as the findings of Blue Ribbon Committee. 48. Ombudsman Gutierrez simply ignored all the facts that the Senate

clearly implicated Chairman Abalos and the other COMELEC commissioners and officials involved in the transaction. It must be reiterated, both the Supreme Court and the Senate Blue Ribbon Committee found that the entire bidding process was rigged, thereby involving not only the members of the BAC, but also the commissioners who approved the award.
49. Her

refusal to investigate, her decision to exonerate those

involved in the irregularities, notwithstanding clear evidence
7

Dated 28 June 2006. A copy of the Press Release of the Office of the Ombudsman relative to the Resolution recommending the impeachment of Commissioner Borra is hereto attached as Annex “C” and made an integral part hereof.

28

establishing their criminal liability and in stalling the investigations on the above-mentioned irregularities, and, indicate that Ombudsman Gutierrez betrayed the public trust reposed on her as the head of the agency which was created to act as the “protector of the people” which public officials or employees of the Government.”8 “shall act promptly on complaints filed in any form or manner against

2. CULPABLE VIOLATION OF THE CONSTITUTION THROUGH HER REPEATED FAILURES AND INEXCUSABLE DELAY IN ACTING UPON THE MATTERS BROUGHT BEFORE HER OFFICE, OMBUDSMAN GUTIERREZ VIOLATED SECTION 12 AND SECTION 13, PARAGRAPHS 1, 2 AND 3, ARTICLE XI ON WHICH HER CONSTITUTIONAL DUTY IS ENSHRINED, AS WELL AS SECTION 16, ARTICLE III OF THE CONSTITUTION, WHICH MANDATES PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.

50.

Under Section 12, Article XI of the Constitution,

Ombudsman Gutierrez, as the “protector of the people” has the duty to act promptly on all complaints filed against public officials or employees of the Government. Lamentably, Ombudsman Gutierrez has failed miserably to live up to this constitutional mandate. She has in numerous instances failed to act promptly, if at all, and has repeatedly invited suspicion of her protecting those charged with wrongdoing, particularly former President Macapagal-Arroyo and her associates – in blatant violation of constitutional role as an independent investigating and prosecuting body.

8

Sec. 12, Art. XI, 1987 Constitution

29

51.

It

cannot

be

denied

that

it

is

incumbent

upon

Ombudsman Gutierrez to act promptly and swiftly act upon all complaints filed before her office, as a matter of both constitutional and statutory duty. Nothing less will suffice if the constitutional mandates of maintaining honesty and integrity in public service and ensuring that public office remains a public trust are to be given life and meaning. 52. Likewise, under Section 16, Article III of the

Constitution, all persons have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. It must be stressed that whenever Ombudsman Gutierrez fails to act promptly on a case, it is not only the right of the respondent or accused that is violated, but also the right of the complainants, and more importantly, the right of the Filipino people. Needless to say, Ombudsman Gutierrez’s inaction on complaints against erring public officials robs the public of their right to see justice done and public wrongdoing punished. It further erodes the public accountability and confidence in our government officials and the offices they hold.

FORMS OF RELIEF PRAYED FOR WHEREFORE, PREMISES CONSIDERED, Complainants pray for the Impeachment of Respondent Ombudsman Merceditas Gutierrez pursuant to the procedure laid down by Section 3, Article XI of the 1987 Constitution on Accountability of Public Officers, and that the Articles of Impeachment be immediately transmitted to the Philippine Senate. Other forms of relief, just and equitable are likewise prayed for. Quezon City, Metro Manila, 3 August 2010.

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DR. CAROL ARAULLO MARY JOHN MANANZAN Chairperson, Bagong Alyansang Makabayan (BAYAN) 4th Floor, Erythrina Building No. 1, Maaralin cor. Matatag Streets, Barangay Central, Quezon City

DANILO RAMOS Secretary General, Kilusang Magbubukid ng Pilipinas (KMP) No. 20 Maaralin Street, Barangay Central, Quezon City

ATTY. EDRE OLALIA Acting Secretary General National Union of Peoples’ Lawyers (NUPL) No. 1 Maaralin cor. Matatag Streets, Barangay Central, Quezon City

FERDINAND R. GAITE JAMES TERRY RIDON Chairperson, Confederation for Chairperson, Unity, Recognition and League of Filipino Students Advancement of Government Employees (COURAGE) No. 118, Scout Rallos Extension, Barangay Sacred Heart, Quezon City

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VERIFICATION AND CERTIFICATION I/WE, COMPLAINANTS., after having been duly sworn in

accordance with law, hereby depose and state: 1. I/WE am/are the Complainants in the captioned case; I caused the preparation of the foregoing Impeachment Complaint; I have read the contents of the foregoing Impeachment Complaint and the allegations therein are true and correct of our own knowledge or based on authentic records; and 4. No other action or proceeding involving the same issues has been commenced in the Supreme Court, the Court of Appeals, or in any other tribunal or agency; to the best of my knowledge or based on authentic records, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or in any other tribunal or agency. If I should learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or in any other tribunal or agency, I shall notify or cause to be notified the Honorable Court thereof within five (5) days from such notice.

2.

3.

____________________ Affiant

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SUBSCRIBED AND SWORN to before me this ___ day of _________ 2010 in ____________, affiants exhibiting to me his/her/their Community Tax Certificates No. __________, issued on ___________ at ___________; and competent evidence of his/her their identity bearing his/her/their picture and signature, __________ No. __________, issued by the ____________.

Doc. No.______; Page No.______; Book No.______; Series of 2010.

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