Chasing the innocents

(Part 1)

This column was prompted by two recent events involving academics and scientists in the government service who were being unjustly prosecuted for allegedly running afoul of the law in the performance of administrative (nonacademic, non-scientific) duties.

The first was the dismissal by the Ombudsman of Dr. Ester B. Ogena. President of the Philippine Normal University (PNU) and her three senior colleagues, for grave misconduct related to an advertising contract worth US$25,000 the university entered into with an international publication intended to showcase to the world the country’s strides in higher education.

The second was the criminal information filed by the Ombudsman in the Sandiganbayan against the Board of Trustees of the Philippine Rice Research Institute (PhilRice) for “conspiring with one another, acting with manifest partiality, evident bad faith and/or gross inexcusable negligence, willfully, unlawfully and criminally gave unwarranted benefits and advantage to PhilRice’s Car Plan beneficiary-employees” (numbering 10).

Among those indicted were: 1) Arthur Yap, then Secretary of the Department of Agriculture (DA) and ex-officio Chairman of the Board of Trustees of PhilRice, and now congressman of the 3rd District of Bohol, 2) the late National Scientist Dr. Gelia T. Castillo, 3) Academician and President of the National Academy of Science and Technology (NAST), and former Secretary of the Department of Science and Technology (DOST), Dr. William G. Padolina, 4) agricultural engineer and then President of Central Luzon State University (CLSU), Dr. Rodolfo Undan, 5) rice researcher and Regional Director of the Bureau of Plant Industry (BPI), Fe Laysa, 6) private sector representative, agribusiness entrepreneur, and former Secretary of DA, Senen Bacani and 7) private sector representative and farmer, Winston Corvera.

I am deeply moved by the undeserved pain and humiliation all the respondents and their families must be suffering. My family and I went through a similar ordeal 35 years ago after I was criminally charged for technically malversing funds for the construction of two tennis courts in the science complex in Bicutan, in my capacity as science minister, only to be exonerated after nine long years of hearings (1983-1992). Fortunately in my case, then Budget Secretary Manuel Alba and his kind deputy, Dakila Fonacier, and Atty. Sofronio Bautista of the Commission on Audit came to my defense. And most propitiously a bright young law graduate from Ateneo University, Atty. Eulalio Ventura, whom I did not know before, convinced of my innocence volunteered to take my case pro-bono.

I speak for many members of the academic and scientific community. We know the respondents well and can vouch for their personal integrity and professionalism. We are appalled and dismayed at the shabby treatment meted upon them by our justice system, fully aware that their transgressions, if at all, are at worst technical and procedural lapses, for which they did not materially gain, nor caused government any demonstrable loss.

Had the Ombudsman and its public prosecutors been more thorough, competent and fair, they should have realized they have better things to do than wasting time chasing after the innocents, not real thieves.

Unjust dismissal of the PNU president The case of Dr. Ester Ogena (and her three subordinates at PNU) is particularly tragic and ironic. Ester Ogena was an outstanding alumna of PNU, graduating magna cum laude with a bachelor’s degree in education. She obtained her masters and doctoral degrees in mathematics teaching from University of the Philippines (UP) Diliman. She spent most of her public service career at the DOST where she rose through the ranks to become Director of the Science Education Institute (SEI). From SEI, she was recruited by the PNU Board of Regents to become her alma mater’s 10th president. Testaments to her outstanding and blemish-free record of public service were the Presidential Lingkod Bayan award conferred to her no less than by the Civil Service Commission (CSC) and the prestigious, The Outstanding Women of the Nation (TOWNS) award for education.

All of these for naught because of the case of grave misconduct frivolously and so unjustly brought upon her and her colleagues by the Ombudsman.

Dr. Ester Ogena and her three colleagues were found guilty of grave misconduct and were meted the penalty of dismissal from the service including all the accessory penalties of cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification for reemployment in government service. The irony of it all was they were only complying with orders from higher authority, and did not stand to gain any personal benefit from the alleged infraction.

The case stemmed from the supposed irregularity in the award without public bidding of an advertising contract worth US$25,000 PNU entered into with Universal News Ltd. in a special issue of the Foreign Policy Magazine.

No less than the Chairperson of the PNU Board of Regents, until recently CHED Chairperson Patricia Licuanan, confirmed that the advertisement was upon her instructions. Further it was not Dr. Licuanan’s individual initiative/decision, but was part of a broader Aquino cabinet effort involving the communications and economic clusters to cast the country in a favorable light by way of prestigious international publications in order to attract foreign investments.

In fact, the June 2011 issue of the Foreign Policy Magazine where PNU advertised also featured the Polytechnic University of the Philippines (PUP) and several other ASEAN universities like: 1) the Open University of Malaysia 2) The National University of Malaysia (counterpart of the University of the Philippines), Universiti Kebangsaan Malaysia, 3) DigiPen Institute of Technology Singapore, and Universitas Brawijaya, a leading university in Indonesia.

There was therefore nothing unusual, wasteful nor sinister in PNU’s expenditure of public funds for the international publication advertisement. Further proof that the respondents Dr. Ogena and colleagues did not act on their own, was the advertisement by the Philippine’s economic cluster in the December 2011 issue of the same magazine. Exceptions to competitive

public bidding The alleged misconduct actually revolves around the contention that the respondents violated the law by awarding the advertising contract without the benefit of public bidding. In their defense the PNU officers pointed out that while indeed competitive bidding is the general rule, the law allows exceptions, and permits alternative methods of compliance… “subject to prior approval of the Head of Agency, or duly authorized representative, and whenever justified by conditions, may in order to promote economy and efficiency, resort to any of the following alternative methods... (Section 48 of RA 9184, otherwise known as the Government Procurement Reform Act).

One such alternative method is “direct contracting or single source procurement” which does not require elaborate Bidding Documents because the supplier is simply asked to submit a price quotation or a pro-forma invoice, together with the conditions of sale, which offer may be accepted immediately or after some negotiation.

Moreover, specifically Section 53.6 of the Revised Implementing Rules and Regulations (IRR) of RA 9184, clearly states that “Negotiated procurement is expressly allowed when the requirement is for media documentation, advertisement, or announcement through television, radio, newspaper, internet and other communication media.”

The fact that the advertisement was upon instructions of the Chairperson of PNU Board of Regents, and subsequently approved by the full Board satisfies the first requirement of approval by the Head of Agency. Since the purpose of the project was for the country to gain international mileage by way of a special issue of the Foreign Policy magazine which is an influential and credible periodical, public bidding is therefore out of the question. Hence, the resort to “direct contracting” with the magazine publisher.

How the prosecutor(s) ignored or overlooked these facts beggar the imagination!

To be continued . . . Part 2

***** Dr. Emil Q. Javier is a Member of the National Academy of Science and Technology (NAST) and also Chair of the Coalition for Agriculture Modernization in the Philippines (CAMP). For any feedback, email eqjavier@ yahoo.com.