A challenge to the Ombudsman

In most legal complaints filed in the courts, we may encounter the phrase “contrary to law” at the end of a summation of the facts. We can imagine these three words peppering the plunder charges that the Ombudsman has filed against the three senators and their chiefs of staff, the heads of the implementing agencies of the Priority Development Assistance Fund (PDAF), and Janet Lim Napoles. The phrase cogently captures the legal point of view. It expresses the code that lawyers, prosecutors, and judges use when they observe the world and communicate what they find in it.

The law, however, is not everything. What might be contrary to law could also be politically expedient, economically profitable, technically efficient, or morally justifiable. And, vice versa: Something could be legal, yet politically dysfunctional, economically worthless, inefficient, and immoral. In short, the law, in its normal course, does not offer a complete vision of things. Its truths, like those of the other systems of society, are necessarily partial—limited to what it looks for. Judges may sometimes spice their decisions with moral and philosophical musings, but their primary duty is to determine what is legal or illegal.

All this may be commonsensical. But, our everyday language directs us to look for “the whole truth and nothing but the truth,” as though there was one Archimedean point from which we could view Truth in its splendid totality. There is none.

Why is it important to be conscious of the limited nature of institutional perspectives? Because, as we follow the unfolding of the trial of the plunder cases in the Sandiganbayan, we might, at some point, find that some matters we deem crucial to the truth are stricken out as immaterial or irrelevant. When judges allow this, we should not thereby conclude there is a conspiracy to hide the truth. The priorities of the legal system are set by the structure of its operations. The courts would exhaust themselves, and perhaps see less, if they aspired to inquire into every possible facet of a given case. Indeed, they can only inquire into the facts and the laws pertaining to the cases brought to them. The Sandiganbayan’s function is to determine the guilt or innocence of those charged before it. It cannot judge all those involved in the PDAF scam, or, even less, arrive at an analytical view of the extent of the scam, explain its mechanisms and its roots, and propose solutions.

This brings us to the role of the Ombudsman, as this is defined by our Constitution and the law that established the office. In my brief response to the recent lecture of Ombudsman Conchita Carpio Morales on the occasion of the office’s 25th anniversary, I had this to say: “The law creating the Ombudsman is quite ambitious. It assigns to the Ombudsman a myriad of other functions on top of the main one it is mandated to discharge—which is to investigate and prosecute the corrupt. A paragraph in Section 15 of RA 6770, for example, charges the Ombudsman with the task of ‘Determin[ing] the causes of inefficiency, red tape, mismanagement, fraud, and corruption in Government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency.’  I don’t know how realistic this is, but I imagine it would require a full-blown research office dedicated to the study and analysis of corruption to do justice to this function.”

On second thought, I now realize how lucky we may be that we have a superbody that seems to straddle law, government, politics, and science. No other agency of government has this kind of authority. Armed with its plenary powers, the Ombudsman can launch a comprehensive inquiry into the causes, mechanisms, and consequences of the racket involving the diversion and misuse of the PDAF. Unlike a special truth commission that has to be created by legislation, the Ombudsman does not require a special law to compel all offices of government to surrender every document or piece of paper that has anything to do with the disbursement of public funds. It can beef up its research capability by enlisting the help of experts and analysts who can shed light and offer long-term remedies to corruption and incompetence in the public service.

One interesting function of the Ombudsman is to promote the ethics of good governance and engage ordinary citizens in combating corruption. In line with this role, I would propose this to the Ombudsman: Create a special group that will collate, sift through, organize, and interpret the information to be extracted from available PDAF-related documents at the Department of Budget and Management, the Department of Justice, the Commission on Audit, the two chambers of Congress, and all the implementing agencies of government that have served as channels for the PDAF. Publish a full list of all PDAF-funded projects at least from 2001 to 2013, and invite the communities, sectors, and supposed beneficiaries to verify the claimed outcomes of these projects. And, finally, publish a full account and clear analysis of this entire scam—how it started, what made it possible, who was involved, and how we may strengthen control systems and instill among our public servants a greater sense of accountability.

We don’t know where the PDAF controversy will take us. We have not even begun to inquire into the disbursement of even larger lump sums lodged in different offices of government. But, of this I am certain: the insights to be gained from an inquiry that is not restricted to observing what is or is not “contrary to law” would be immensely valuable to the diagnosis and treatment of the maladies of governance in our time.

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