Is Ombudsman being used by dirty politicians?

I DON’T understand the Office of the Ombudsman. It was going to let off the hook Carlos Garcia, former comptroller of the Armed Forces, after his children were caught red-handed trying to sneak into the United States hundreds of millions of pesos taken from AFP funds. That was one of the reasons Merceditas Gutierrez was pressured to resign. With the new acting ombudsman, the pendulum has swung to the other side. Now the office has filed cases against innocent people.

The Ombudsman has filed graft cases against Bataan Gov. Enrique Garcia and 14 other provincial and municipal officials. Their offense? The ghost purchase of a patrol boat in 2005.

These people allegedly bought a patrol boat, to be used against illegal fishermen, for P150,000. The boat was never delivered to the provincial government, according to the Ombudsman.

The Ombudsman’s Field Investigation Office is supposed to investigate in the field. Obviously it did not. If it did, it would have seen that the boat was there, being used by the provincial government. The defendants presented photographs of the boat, deeds of sale, etc., and invited investigators to look at the boat. No dice. It relied merely on the complaint filed by political opponents of the governor. There was no formal hearing. But the Ombudsman filed criminal and administrative charges against all of the accused.

The defendants deposited the boat with the office of the Philippine National Police in Bataan. The Ombudsman can see it there anytime. The government did not lose any money in the deal. The boat was not overpriced. There were no kickbacks. But still no dice. The criminal and administrative charges stay.

Of course, the criminal case would be dismissed by the courts. The boat is there; no money was lost. The trouble is the administrative case.

In the administrative case, the Ombudsman is the prosecutor, judge and jury. It prosecutes the case, decides the guilt or innocence of the accused, and metes out the penalties. There is no court or judge in the middle to hear and weigh the evidence. The penalty could be dismissal from office. Most of the provincial officials have been in the service for 35 to 40 years. They will be dismissed because of trumped up charges and an incomplete and lazy investigation by the Ombudsman? How do you defend yourself from a raw deal like that?

The criminal case has been elevated for review to Justice Secretary Leila de Lima. If the DOJ sustains the Ombudsman, the case would surely be appealed to the Court of Appeals and later to the Supreme Court. But no such remedy is available in the administrative case. When the Ombudsman says, “You are dismissed,” the provincial and municipal officials lose their jobs.

Garcia is safe in the criminal case because the boat was purchased during his first term and the Supreme Court has rightfully ruled that an alleged offense during a previous term cannot be ascribed to the succeeding officials. And as I said earlier, the courts will surely dismiss the case because of the unfairness of it all. Imagine being prosecuted for a crime you did not commit. But the trouble is the administrative case which the Ombudsman itself alone can decide. And considering the haste and lackadaisical efforts to investigate the case earlier, it seems there is a conspiracy to condemn the accused. That is dirty politics in action.

In the first place, Garcia had no participation in the deal. The complainants could not show any signature of his on any of the documents relating to the purchase. Just the same, the Ombudsman found Garcia administratively liable allegedly because of his “failure to perform his duty as Provincial Governor under Section 465 (b) (1) of the Local Government Code, i.e., to exercise general supervision and control over all programs, projects, services and activities of the provincial government. And just the same, his participation in the transaction was also ascribed to him as allegedly ‘evidenced by the approval of all the documents as shown by the signature of his designated signatory, the Provincial Administrator.’”

That is inaccurate and misleading, countered Garcia in his motion for reconsideration. The authority he had given to De Mesa was a general authority to perform acts and to sign papers and documents which are routinely being done in the course of the operation of the provincial government. It is a delegation by the local chief executive of functions which are but consistent with the duties and responsibilities pertaining to the position of the provincial or city administrator, Garcia said.

The authority was given shortly after Garcia first assumed his post as governor of Bataan in 2004, long before the purchase of the patrol boat in 2005, so there could not have been any specific reference to the transaction when the authority was given.

And even assuming, for the sake of argument, that he had signed documents pertaining to the transaction in his capacity as governor, either personally or through his provincial administrator, that fact alone would not make him liable, Garcia added. The Supreme Court laid down the following principle in the case of Arias vs Sandiganyan:

“We would be setting a bad precedent if a head of office, plagued by all too common problems, dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from reception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority.”