Philippine Daily Inquirer

Suddenly, the Ombudsman

- public.lives@gmail.com

THE WORD “OMBUDSMAN” FORMALLY entered our legal vocabulary when the 1973 Constituti­on mandated the creation of an office to be known as “Tanodbayan.” As this Filipino term suggests, the office was to function as a watchdog in the service of the people—their principal protector against official abuse, inefficien­cy and various acts of impropriet­y committed by government officials. The 1987 Constituti­on carried this idea forward, lodging it in the same article “Accountabi­lity of Public Officers,” but restored the original term “Ombudsman.” If there is one public institutio­n that is dedicated to the pursuit and maintenanc­e of good governance, this has to be the Ombudsman.

Yet, today, nearly 40 years after enshrining it in our Constituti­on, we are nowhere near the promised land of a well-governed society. On the contrary, we seem to have found a way of debasing this wonderful concept so that it now functions instead as a shield for well-connected wrongdoers and a weapon against political enemies. What happened?

If the Ombudsman had been able to assert its independen­ce, there would have been no need to create a Presidenti­al Commission on Good Government (PCGG) after Edsa I in 1986. It would have been the perfect agency to spearhead the gigantic task of restoring public confidence in government. Born in the era ofmartial law, the Filipino version of the Ombudsman was compromise­d, from the moment of its inception. It was unable to claim for itself the operationa­l autonomy that not even the regular bodies of amodern legal system could freely exercise.

The restoratio­n of democracy under the Cory Aquino presidency could have reversed this sorry state. But even with its enormous powers to reorganize government, the Cory administra­tion was unable to do so. Continuall­y under siege, it had to rely on the provisiona­l tools it created in order to consolidat­e its hold on government. The regular constituti­onal of- fices—among them the Ombudsman—were effectivel­y relegated to themargins, while the urgent tasks were left to the agencies directly under the Office of the President.

The Arroyo regime bequeathed to the Noynoy presidency a situation pretty much similar to that left behind by Marcos. Although Gloria Macapagal-Arroyo could not legally cloak herself with the same authoritar­ian powers that Marcos vested in himself, she nonetheles­s succeeded in putting her personal stamp on the crucial institutio­ns of government. The appointing powers and prerogativ­es of the president became her abiding instrument­s in her relentless effort to undermine the autonomy of these offices. Protected by tenure, the people she handpicked for key positions are now ironically asserting the same constituti­onal mandate they willfully ignored under the old regime.

Today, the Ombudsman constitute­s the biggest stumbling block to any campaign to bring to justice those who raided the public treasury during the Arroyo presidency. Look at the way this moribund office has sprung to life to assert its jurisdicti­on over controvers­ial cases like the fertilizer fund scam just before the formation of a Truth Commission. It took them five years to submit a report of their field investigat­ion on the fertilizer fund issue. How long will it take them to finish the preliminar­y investigat­ion and get to the point of filing the case in the Sandiganba­yan? Howwill they decidewhom to charge and what charges are to be filed?

“Let us trust the Ombudsman,” Assistant Ombudsman Jose de Jesus enjoined the media at a press conference the other day. Asked why the former president was not included in the charge sheet, he almost literally choked on his reply: “Our field investigat­ion has not yielded any evidence directly linking her to the case.” He expects the public to believe that Jocjoc Bolante, a mere undersecre­tary in the Department of Agricultur­e, could twist the arm of the late Budget Secretary Emilia Boncodin, a straight and knowledgea­ble public servant, to get her to release more than P700 million in public funds without an order from the president?

It is fitting that the onlyway to correct the situation at the Office of the Ombudsman is by impeaching its present head, Merceditas Gutierrez. It is a reminder that reform is an act of political will. The first impeachmen­t case brought against Gutierrez did not prosper because her patron, Ms Arroyo, controlled the House of Representa­tives. The compositio­n of the Lower House is supposed to have changed since the election of President Noynoy Aquino, even as Ms Arroyo now sits as a representa­tive. We’re dying to see whether the new government will be able to get enough of its newfound allies in the House to impeach Ombudsman Gutierrez for betraying the public trust and obstructin­g justice.

There will surely be moves to immunize Gutierrez from the threat of a real impeachmen­t case through the filing of a weak case against her. Arroyo and her loyal minions in the House have perfected this form of evasion as an art. They can be trusted to do it again—as exPresiden­t Arroyo’s first line of defense against her own criminal prosecutio­n.

So, the battle continues. In developing countries like ours, where legal institutio­ns do not enjoy full operationa­l autonomy, the effective checks on the abuses of those in power lie less in the law than in “the power struggles and the strategic calculatio­ns of political elites.” We have chosen a new president. We’ll soon see if we have also elected a new Congress.

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 ?? Randy David ??
Randy David

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