WITHOUT evidence to pinpoint which government official amassed unlawful gains of P50 million or more in relation to the P4.165-billion COVID test kit procurement deal, Ombudsman Samuel Martires yesterday said there can be no indictment for plunder.
Speaking to reports in an online briefing, Martires explained that evidence gathered by a panel of investigators only showed that respondent officials of the Procurement Service of the Department of Budget and Management (PS-DBM) gave unlawful preference to Pharmally Pharmaceutical Corp (Pharmally) over other suppliers.
While the sum involved was far bigger than the threshold amount of P50 million set under RA 7080 or the Plunder Law, the Ombudsman said the evidence must likewise pinpoint who profited from the transaction.
“Natanim sa isip ng tao na kapag P50 million, plunder na yan (In people’s minds, if the amount involved is P50 million, it’s already plunder). But the problem is sa (in the) decision ng (of) Supreme Court in the Macapagal Arroyo case vs People …the particular public officer must be identified as the one who amassed, acquired or accumulate ill-gotten wealth,” Martires said.
In the investigation into the procurement of reverse transcription-polymerase chain reaction (RT-PCR) test kits from Pharmally, only the names of former PS-DBM executive director Lloyd Christopher Lao, former director Warren Rex Liong, and procurement management officer Paul Jasper de Guzman surfaced but nothing on record indicated that any of them ended up with commissions or kickbacks totaling P50 million or more.
In the 87-page resolution released to the media last August 24, the Ombudsman ordered the filing of three counts of violation of the Anti-Graft and Corrupt Practices Act (RA 3019) against Lao, Liong, and de Guzman.
Also indicted on all three counts of graft were Pharmally president Twinkle Dargani, treasurer and secretary Mohit Dargani, directors Linconn Ong and Justine Garado, and board member Huan Tzu Yen.
Facing one graft charge each are PS-DBM Christine Marie Suntay, procurement management officer Webster Laureñana, PS-DBM officers August Ylagan and Jasonmer Uayan, and Pharmally employee Krizle Grace Mago.
While there was no proof of unlawful gains by PS-DBM executives approximating the threshold amount of P50 million, the Ombudsman said the graft charge was strong.
“What is clear in the records is that some officials of PS-DBM favored Pharmally in the contract on the test kits. So the decision was to charge them for awarding the contract to Pharmally through manifest partiality or evident bad faith,” he said in mixed Filipino and English.
UPGRADE TO PLUNDER
Martires said the prosecution may amend the information and upgrade the case to plunder after a reinvestigation if one or more of the respondents should turn state witness and provide the evidence to prove ill-gotten wealth.
“If one of the accused would turn state witness and say they gave to either Lao, Liong or any DBM official amounting to P50M or more, then we might reconsider conducting another preliminary investigation and amending the information. Yes, why not?” he said.
The Ombudsman said the graft charges and the dismissal of PS-DBM executives only involved the RT-PCR test kit procurement.
“As to the face masks, face shields — we call it as the personal protective equipment or PPE — it is not yet finished but might be completed soon. There is still an ongoing investigation on Pharmally,” he said.
DUTERTE, YANG NOT IMPLICATED
Martires also said from the volumes of transcripts and other pieces of evidence turned over to the Ombudsman from the Senate Blue Ribbon inquiry, the panel of prosecutors found no direct evidence that former President Rodrigo Duterte or his erstwhile adviser Chinese businessman Michael Yang had involvements in the procurement deal with Pharmally.
“Nobody really pointed directly to Michael Yang as having participated in the supply of test kits. His name was only dragged but there is no evidence on record that he was involved. It stopped with Lao at Liong,” the Ombudsman said.
Although there were accusations that Yang had provided financial backing to Pharmally, the Senate panel had no witness who testified that he acted as a financier.
In the case of former President Duterte, the evidence was even scantier.
Martires explained that mere allegation not backed by evidence would only weaken the government’s case.
“The `he said, she said’ thing is hard to prove in court. There really should be concrete evidence. If our purpose is to harass an individual, we can do that, why not?” he said.
Martires said the next move is to file the corresponding criminal information with the Sandiganbayan.
I will discuss this again with my staff … also with the special prosecutor and the deputy ombudsman. We might file even in the absence of an MR (motion for reconsideration) and then we will just ask for the suspension of the proceedings. We fear we could be accused of inordinate delay,” he said.
