Program of incoming Ombudsman

The next Ombudsman will be chosen from the short list that the Judicial and Bar Council (JBC) submitted to President Aquino last week. The list has been narrowed down to four from the original 27 nominees.

To get a sense of how they would reform the anticorruption agency, Talk of the Town, through Marielle Medina and Kate Pedroso of Inquirer Research, requested all the nominees to submit a written program. Twenty-one obliged and four declined, including Conchita Carpio-Morales, who then had yet to retire from the Supreme Court. Two backed out of the selection process that included interviews by a panel of JBC members.

Leah Armamento, Gerard Mosquera and Artemio Tuquero sent a written program to Talk of the Town a few weeks before the JBC announced the short list. Carpio-Morales’ plans for the Office of the Ombudsman featured here were based on excerpts from her answers before the JBC on June 23 as reconstructed by Inquirer reporter Nikko Dizon, who covered the panel interview.

‘Reorientation seminar for special prosecutors …’

CONCHITA CARPIO-MORALES

Retired Supreme Court Associate Justice

I was in government service for almost 40 years, 25  of which was with the judiciary. I have always dreamed of  retiring and reconnecting with friends and relatives whom I have not seen for ages. But my sense of duty has remained. When those who nominated me asked me in earnest if I would consider myself going to the Office of the Ombudsman I considered their request a command. I decided to heed their request.

Since cases in the Ombudsman have to do mostly with criminal cases, my 12-year stint at the Department of Justice (DOJ), where I was tasked with reviewing petitions arising from resolutions of the city fiscal’s office and the provincial fiscal’s office, has prepared me for the position of the Ombudsman.

Marshalling facts is the most difficult part of crafting a decision. I believe that I was trained to do that in the DOJ. The moment you marshal facts you apply the law, right or wrong.

There have been a lot of criticisms about the flow of cases in the Office of the Ombudsman although lately there has been publicity about the acting Ombudsman having filed more than 3,000 cases and leaving only 15 cases unresolved or unfiled. I do not have that magician-genius qualification to file 3,000 cases in a matter of one-and-a-half months.

Reforms

What I intend to do is to institute reforms by doing an inventory of all the cases. It is a challenge to go over the cases which are pending, whether pending determination of probable cause or pending litigation before the Sandiganbayan. Then (I would) get the names of the officers who are tasked with handling these particular cases and direct them to submit the statement of cases, including the nature of the cases. I would also ask them to submit recommendations on what actions to take.

Then (I would) get a list of employees and officers. With their job descriptions, perhaps I would embark on a reorientation seminar for special prosecutors (on) among other things, the technique of determining the elements of the crime and of probable cause. (They will be asked) to prepare trial or pretrial briefs and to speed up the disposition of cases. I use the word disposition because it has a bearing on cases before, during and after trial.

Independence

I am not the right person to comment on my independence. My decisions speak for themselves … The fact remains that in a survey undertaken in 2008 my voting for or against the (Arroyo) administration was apparently equal.

I never met (President Aquino) before. Newspapers reported for weeks that I would be asked to administer his oath of office. I kept silent because I always said that was hearsay. When he finally wrote me, that was the first time he communicated with me in writing and I never communicated with him verbally. So, I don’t think that association will be material to (the) opposition to me (as Ombudsman).

(My age) is something that is belied by the result of my wellness examination taken in mid-May. I don’t know what being 70 has to do with my coping with the work of the Ombudsman. The work of a Supreme Court justice is more difficult than the work of an Ombudsman. Being a Supreme Court justice, you have to be well-versed in all kinds of laws like criminal, corporate and commercial. Whereas, with the Ombudsman, your only field of expertise should be criminal, not to mention administrative.

The famous line “You cannot choose your relatives” bears stating. (Justice Antonio Carpio) is my relative but I do not ape him. Neither does he ape me. That there are cases of the Carpio Villaraza offices pending before the Ombudsman does not have a bearing on my independence, on my capacity to decide in accordance with the merits of the case and in accordance with the evidence presented before us.

‘Go back to basics’

LEAH ARMAMENTO

Justice Undersecretary

First, we go back to the basics. We must faithfully perform the mandate of the Office of the Ombudsman.

Second, we must strengthen the structures of the office and maximize the potential of personnel. All structures and mechanisms in the office that make the delivery of services efficient and effective must be strengthened. The hierarchy of powers must be respected. The exercise of authority must be decentralized.

Under the Ombudsman law, the Overall Deputy Ombudsman is responsible for the operations of the office. This power must be fully exercised by him with minimum supervision from the Ombudsman. The same is true with the deputies. They must be given full authority in their respective areas of jurisdiction to speed up disposition of cases and delivery of services.

Third, there must be an effective reporting and monitoring of cases and performance of personnel.

Reward system

With these mechanisms, the reward system such as promotions will not be arbitrary. At the same time, disciplinary action will be effective.

Fourth, a time line shall be provided in the disposition of cases and other assigned tasks, and shall be firmly followed. There must be a time limit for the conduct of preliminary and fact-finding investigations with their speedy disposition as our goal considering that government employees cannot be promoted without an Ombudsman clearance.

Fifth, which must be the priority of the incoming Ombudsman, is the disposition of cases pending for at least six months with the Office of the Ombudsman. I say six months because it is the minimum period allowed for a government official to get another promotion. We must make an inventory of all pending cases and take note of their duration. Then do a write shop to resolve all these overdue cases that are already submitted for decision.

‘Arrest 30 high-profile public officials in first 100 days to 6 months’

GERARD A. MOSQUERA

Commissioner, Presidential Commission on Good Government

I offer the following suggestions:

1. Quick successes.  The new Ombudsman and his or her team must hit the ground running—there will be no practice or room for trial and error. The Filipino people are already impatient. They should immediately set targets and project a singleness of purpose and aggressiveness not seen before in these parts.

I suggest that in the first 100 days to the first six months, they should promise and execute the following:

Arrest 20 to 30 high-profile public officials or personalities. This will send shock waves and project an image that government is dead serious in fighting corruption.

File 100 corruption complaints against a variety of public officials—from local and national officials to police and military officers.

Launch 10 major corruption prevention programs by extensively using information technology and fast tracking the implementation of laws such as the Red Tape Act and the Procurement Law.

Launch a massive good governance education campaign (i.e. Ehem Aha anticorruption seminars) in at least 10 provinces and 10 major cities using a proactive multimedia approach.

SWAT team

2. Anticorruption SWAT Team.  The new Ombudsman must work with the Chief Executive to form an elite Anti-Corruption SWAT team to ensure that quick successes are generated over the near-term, i.e. 100 days to six months.   I suggest that the AC SWAT team be composed of three groups, with each team having eight members with varied backgrounds (police/NBI investigators, DOJ prosecutors, private lawyers, engineers, COA or private auditors, Central Bank analysts, IT or computer forensics specialists, etc.).

The main task of the multidisciplinary and interagency teams is to generate the badly needed quick successes while the Ombudsman is organizing more long-term interventions. The quick successes are indispensable to project the seriousness of government to fight the menace and win the support of the people in the near and the immediate term.

Entrapment

3. From reactive to proactive.  There must be a switch and a shift from the current laid-back and reactive approach and mindset, i.e. waiting for complaints to be filed, waiting for complainants to produce evidence, and taking time to resolve complaints, to a proactive approach (interdicting corruption when it happens, implementing sting and entrapment operations, etc.).  Our neighboring countries such as Indonesia and Malaysia have implemented these with considerable success.

4. Prioritize. The Ombudsman must also prioritize and allocate meager resources wisely.  It is suggested that the new Ombudsman decline to take cognizance of complaints not related to corruption and allow other agencies with concurrent competence to assume jurisdiction.

Smaller cases should be referred to other agencies.  The Ombudsman should also aggressively defer to the administrative jurisdiction of the Civil Service Commission and line agencies, refer complaints to them and just focus on high-profile corruption cases committed by high-ranking officials. This approach will maximize deterrence.

5. Three-pronged strategy of deterrence, prevention and education. From Day One to his or her last day in office, the Ombudsman must pursue a strategy of deterrence, prevention and education with deterrence as the dominant prong, at least for the first two years.

But deterrence requires a lot of resources and consumes a lot of energy. It is not sustainable over the long-term. Thus, after two years, deterrence will have to stabilize and the Ombudsman must focus on prevention and education.

Corruption prevention, in my opinion, brings in more returns and dividends to a country over the medium and the long term.

6.   Partnership.  The Office of the Ombudsman cannot do it alone.   At present, it does not have sufficient powers and the resources at hand are deficient. The Ombudsman must forge partnerships and working relationships with the various organs of government.  It is indispensable for the Ombudsman to work with the President, leaders of Congress and the Chief Justice.

Alliances with civil society, nongovernment organizations, media, the youth, academe, trade unions, government associations and other sectors are crucial.

The independence guaranteed by the Constitution to the Ombudsman means independence from political interference, not independence from outside help from partners.  If the Ombudsman cannot accept help from other  agencies and private partners, this will make his or her office independent but useless.

The Ombudsman must be a convenor and bring all parties to the table, from government and the private sector, all united with a common goal to interdict and control corruption.

7. A new Ombudsman law.  The new Ombudsman team must propose a new law that will completely overhaul and refocus the way the country fights corruption. The new law must contain the following:

Amend Republic Act No. 6770 to transfer all prosecution powers to the Office of the Special Prosecutor (OSP) and make the OSP independent as originally envisioned in the 1987 Constitution.

Refocus the thrust of the Ombudsman on criminal and fact-finding investigation and transfer its adjudicative functions to the Office of the Special Prosecutor. Make the Special Prosecutor an independent agency (from the Ombudsman) performing the three tasks of prosecution, formal preliminary investigation and administrative adjudication, while the Ombudsman concentrates on deterrence (case build-up and criminal investigation), corruption prevention and education.

‘Sumbungan ng Bayan’

In other words, the Ombudsman must give up the task of prosecution so it can focus on criminal investigation, evidence-gathering, case build-up and being the people’s champion.

Make the Ombudsman a true champion of the people and a corruption fighter, Sumbungan ng Bayan, with the capacity to gather evidence for any complainant, particularly those without access to legal assistance, i.e. to draft complaint affidavits, gather evidence, etc.  The concept of a Sumbungan ng Bayan is closer to the original concept of the Scandinavian Ombudsman.

Institutionalize the Ombudsman Anti-Corruption SWAT Strike team with sufficient powers, independence and resources.

Propose coercive powers to fight corruption such as arrest, search and seizure; exemptions from the bank secrecy law; and authority to freeze assets and funds, and to issue hold departure orders.

Propose a nonconviction based forfeiture system which will allow government to seize and sell assets, funds and properties shown to be fruits of corrupt activities

Overall, we need a national anticorruption plan. We do not have one at the moment.

‘Ounce of prevention better than pound of cure’

ARTEMIO G. TUQUERO

Former Justice Secretary

If appointed as Ombudsman, my priority is to restructure the Office of the Ombudsman in accordance with the Constitution. This means divesting it of its prosecutory and disciplinary powers which properly belong to other agencies and officials of government.

I will focus on determining “the causes of any inefficiency, red tape, mismanagement, fraud and corruption in government, and make recommendations for their elimination and the observance of high standard of ethics and efficiency” (Sec. 13/7, Art. XI, Constitution).

As the saying goes, an ounce of prevention is better than a pound of cure.

Also, I will urge all heads of offices and agencies to serve as exemplars. Corruption at the top easily seeps down to the lowest level. This is what we see now in almost all agencies and offices. Leadership—good and honest leadership—will go a long way in solving the perennial problem of graft and corruption.