Suddenly, the Ombudsman

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 forty 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 of martial law, the Pinoy 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 a modern 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 offices – among them the Ombudsman – were effectively relegated to the margins, 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 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? How will they decide whom 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 700 million pesos in public funds without an order from the president.

It is fitting that the only way 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, 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.