Ex-DoJ chief brings case to SC

$1.7M payment for aborted firm sale deal—Nani

By Benjamin B. Pulta

04/19/2008

Embattled Malacañang ally, Hernando “Nani” Perez, former Justice secretary of President Arroyo, yesterday took his case to the Supreme Court and petitioned the SC to stop the Ombudsman from proceeding with its investigation against him.

His petition, effected through his law partner, Marcial Balgos, was 65 pages long, which contained Perez’ version of how he had obtained the $1.7 million that landed in a Swiss bank account in his name, with him naming his wife, Rosario, as his attorney in-fact.

Perez, a former dean in a law school in Batangas, was part of the private prosecutors team that assisted the House prosecutors during the Senate impeachment trial of then sitting President Joseph Estrada.

It was also the same law school, or a member of its faculty, that was linked to a bar exam leakage scandal.

Perez also decided to make public his version of a $1.7-million transaction between him and businessman and private banker Ernest Escaler which transaction Perez claimed was in connection with the purchase by Escaler of a company the former Justice chief put up for the cultivation of orchids.

Perez said he put up Malvarosa Ventures Inc. which acquired a tract of land in Malvar, Batangas and engaged in various agricultural activities including cultivation,

propagation and cross-breeding and improvement of orchids,anthuriums and other flower bearing plants, to finance his campaign.

The accused Perez said he decided to have his shares in Malvarosa Ventures Inc. sold. He claimed that among those who had expressed interest in the acquisition of the shares was Ernest Escaler who shared his interest in orchids.

On Dec. 10, 2000 Perez said he and Escaler executed a memorandum of understanding under the terms by which Perez and Escaler agreed to have all of the shareholdings in Malvarosa sold to the businessman and private banker for US$1.8 million which was to be “payable off shore to be deposited in escrow” in the meantime that certain conditions relative to the sale had not yet been fully satisfied.

Escaler thereafter informed Perez that he already had the papers necessary for the opening of the account in a bank in Singapore where he was an agent.

Perez insists that since the conditions upon which the execution of the final deed of sale not having been effected they agreed with each other to cancel the Memorandum Of Understanding on Aug. 20,2001.

Perez however failed to explain how Jimenez got into the picture, since the check of $2 million came from a Cayman Islands bank where a Jimenez bank account was identified, and how it got to Escaler’s account in Coutts Bank in Hong Kong, apart from which the $1.8 million landed in a Swiss account.

The paper trail also showed that a check was made out to Perez’ brother in law, Ramon Arceo.

In asking the SC to stop the Ombudsman from proceeding with the case, originally initiated by controversial political figure, former Manila Rep. (6th Dist.) Mark Jimenez (MJ) a.ka.a Mario B. Crespo.

Jimenez, in a privileged speech delivered at the House of Representatives, followed by an affidavit submitted to the Ombudsman accusing Perez of soliciting $2 million in exchange for approving the multi-billion peso Caliraya Botocan Kalayaan (CBK) power plant rehabilitation project in favor of Argentine firm IMPSA (Industrias Metalurgicas Pescarmona S.A).

He also accused Perez of having exorted $2 million for him (MJ) in connection with his refusal to submit an affidavit against Estrada for his plunder case.

Neither Perez nor Balgos were personally present during the filing before the SC yesterday.

In his suit,, Perez denounced Ombudsman Merceditas Gutierrez, his former subordinate in the Justice department when he was still Justice Secretary and the latter, his undersecretary.

It was Gutierrez who was named acting Justice Secretary by Mrs. Arroyo when Perez took a leave of absence.

The accused Perez pointed out in his petition that Gutierrez herself has said that “the case has been dropped after Jimenez filed an affidavit of desistance,” but that later Gutierrez was quoted as saying that she had to return the records and resolution of the case to the (Ombudsman) panel. They would evaluate on the basis of the affidavit of desistance that was filed.”

“This kind of flip-flopping approach to a case before her does violence to what is expected of the Ombudsman.” Perez claimed.

In 2001, it took Perez only two days to come out with a legal opinion endorsing a $470-million hydroelectric power contract that was awarded to Impsa. From that deal, Perez was accused of extorting $2million from Jimenez who brokered the multimillion-dollar contract for a project to rehabilitate and operate the 750-megawatt Caliraya-Botocan-Kalayaan power complex in Laguna.

The United Opposition (UNO) yesterday maintained that the graft charge poised against Perez was just another cheap charade designed to create a public illusion that the Office of the Ombudsman was capable of prosecuting graft cases against friends and relatives of President Arroyo.

UNO spokesperson lawyer Adel Tamano said the opposition expected the “legally infirm” graft case against Perez to be dismissed by the Sandiganbayan.”

“This reminds us of Oliver Lozano filing impeachment proceedings against President Arroyo before the House of Representatives,” Tamano said.

Earlier, incumbent Justice Secretary Raul Gonzalez said the Ombudsman would have a difficult time prosecuting the graft case against Perez since the original complainant, Mark Jimenez, had withdrawn the charges by executing an affidavit of desistance.

Makati Mayor and UNO President Jejomar Binay said the case filed against Perez was weak and that Ombudsman Gutierrez, said to be a law school-classmate of First Gentleman Miguel Arroyo, suffered from “poor credibility in the eyes of the Filipino people.”

“The Ombudsman has a long way to go to prove its independence from Malacañang,” said Binay. “The reality is that under the Arroyo administration, the Ombudsman is engaged in selective prosecution.”

“It is common knowledge that graft complaints against political opponents are expedited even if these are bereft of factual or legal merit,” Binay added. “On the other hand, complaints against administration allies gather dust, and in case they do get filed with the Sandiganbayan, the cases are built on faulty foundations that the courts have no other option but to dismiss them.”

With Mark Jimenez having executed an affidavit of desistance, Binay said the Ombudsman knew that their case against Perez case is weak, but decided to go through with it anyway.

“From the start, it would appear the Ombudsman is not serious in convicting Perez, but merely to show that it is an impartial and independent entity,” he said.

Tamano said the Perez case only underscored that the Ombudsman was practicing a double of standard of justice in prosecuting graft cases.

“The Nani Perez case is a blatant example of unequal administration of justice,” Tamano said. “President Estrada was charged, convicted and pardoned within a period of six years while Perez’s case has not even been filed before the Sandiganbayan up to now.”

“Erap’s and Nani’s cases, it will be recalled were filed in the same year before the Ombudsman,” Tamano said.

The former President said Perez should face plunder charges instead of graft because of the amount of money involved in the bribery case. He pointed out that the amount involved in Perez’s case was $2 million and that the Ombudsman’s decision to elevate Perez’s case to the Sandiganbayan was long overdue.

Yesterday, the Ombudsman formally filed the graft and falsification charges against Perez.

Jimenez had claimed that in 2001, then Justice Secretary Perez, tried to extort $2 million from him in exchange for not being compelled to submit damaging affidavits against Estrada, whom Jimenez had served as a financial adviser. According to Jimenez, Perez threatened to clap him and his family behind bars if he did not comply.

For its part, Malacañang yesterday appealed to critics to give the Office of the Ombudsman a chance to prove its worth after the government’s watchdog filed the charges against Perez.

In a chance interview, Executive Secretary Eduardo Ermita said Ombudsman Gutierrez could have basis on her decision not to slap Perez with plunder, despite the fact that the money involved was P100 million, above the P50 million threshold for anybody to be slapped with plunder.

“This is a matter for the Ombudsman to address, I am hardly qualified to say why or otherwise because there is already that position taken by the Ombudsman,” he said.

Ermita said it would be better if the critics will just respect Gutierrez’s decision and allow the wheels of justice to roll on. With Sherwin C. Olaes and Niccolo Javier

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