Emulating the Investigative and Prosecutorial System of Indonesias Komisi Pemberantasan Korupsi (KPK) can Improve the Conviction Rate of the Philippine Ombudsman.

Emulating the Investigative and Prosecutorial System of Indonesias Komisi Pemberantasan Korupsi (KPK) can Improve the Conviction Rate of the Philippine Ombudsman.Submitted to:Atty. Robert RayponSubmitted by:Jag Iesu Inigo G. MurilloMarch 30 , 2015

TABLE OF CONTENTS

Pages

I.

Introduction

2-3

II.

The Basis for Emulating the KPKs Investigative and Prosecutorial System

4-6

III.

Investigative System of the KPK that should be imitated by the Ombudsman

7

A. KPKs power to conduct searches and seizures, freeze assets, intercept communications and others

7-9

IV.

Prosecutorial System of the KPK that should be emulated by the Ombudsman

10

A. Three-stage panel review by the KPK

10-11

B. Re-establishment of relationship with other partner organizations and decentralization of some powers to the deputy Ombudsmen, retaining a few key powers to ensure check and balance in lieu of the three-stage panel review

11-12

V.

Conclusion

12-14

Bibliography and references

15

I. Introduction

Fighting corruption in the Philippines is like trying to kill

an elephant with a flyswatter.

Atty. Simeon V. Marcelo,

Philippine Ombudsman 2002-2005

Systemic and widespread corruption has long been a disease that has festered for a long time in the Philippines and has thereby hampered its progress and development. Corruption exists in all levels of the government, especially among high-level civil servants in the Philippines.[footnoteRef:1] Atty. Simeon V. Marcelo, Philippine Ombudsman for the years 2002-2005, once said that it is wrong to say that there is corruption because there is poverty; rather, it is the other way around, there is poverty because there is corruption. [1: US Department of State Investment Climate Statement 2013 - Philippines.]

The framers of the 1987 Constitution envisioned the Ombudsman as an official critic who studies the laws, procedures and practices in government, a mobilizer who ensures that the steady flow of services is accorded the citizens, and a watchdog who looks at the general and specific performance of all government officials and employees. (cf. Journal No. 40, July 26, 1986, p. 432).[footnoteRef:2] The Ombudsman has been dubbed as the protector of the people. But it seems that since the time it became operational on May 12, 1988, the Ombudsman can hardly point to any case against high-ranking officials that resulted in convictions. With the notable exception of former President Joseph Estrada who was convicted of corruption in extraordinary circumstances (after he was already ousted from office), the Ombudsman cannot point to any high-ranking official that it has convicted and imprisoned for corruption. [footnoteRef:3] Other high-ranking officials that were impeached were former Chief Justice Renato Corona and the very own former Ombudsman Mercedita Gutierrez.[footnoteRef:4] [2: Official Website of the Office of the Ombudsman. http://www.ombudsman.gov.ph/index.php?home=1&navId=MQ==&subNavId=ODU=] [3: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 10] [4: http://www.abs-cbnnews.com/nation/03/10/11/blue-ribbon-gutierrez-resign]

So, we may ask, has the Ombudsman been complying with its mandate to act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people (Section 13, R.A. 6770). Whether it has (at least to some extent, though menial) or it has not at all, it is indubitably clear that it has not produced the best results it could have possibly done so.

Is there an institutional weakness? A stark contrast can be made between the Philippine Ombudsman and the Komisi Pemberantasan Korupsi (KPK), the anti-corruption institution of Indonesia.

The anti-corruption agencys performance can be gauged by its capacity to prosecute (measured by the conviction rate) and its relations with the public.[footnoteRef:5] In just five years, the KPK has successfully prosecuted over one hundred senior officials that before would have been considered as untouchable by their positions and prominence. To date, the KPK has yet to lose a single case, either at the anti-corruption court or at the Supreme Court where the guilty verdicts of the TIPIKOR (anti-corruption court) are appealed.[footnoteRef:6] The KPKs accomplishments have been impressive. From 2003 to 2012, the KPK has handled 332 high-profile cases involving top government officials; of these, 169 cases have been processed in court, and the KPK has chalked up an amazing one-hundred percent conviction rate. From 2004 to 2010, the KPK has returned to the state treasury recovered assets worth Rp. 805.6 billion, or more than US$80 million.[footnoteRef:7] [5: Human Development Network. The Office Of The Ombudsman: Is There An Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 3.] [6: Ibid, #3 of immediately preceding page.] [7: Ramon Magsaysay Award Foundation Official Website. http://www.rmaf.org.ph/newrmaf/main/awardees/awardee/profile/348]

So what exactly makes the KPK more efficient than the Philippine Ombudsman? Is it the composition of the KPK compared with the Ombudsman? Perhaps it could be; but, it should be noted that in terms of number of personnel, the KPK is only about half the size of the Ombudsman yet it is far more productive. As of 2008, the KPK had about 580 personnel, while the Ombudsman had over 1,000 staff.[footnoteRef:8] Atty. Simeon Marcelo, in a conference held at the Univeristy of the Philippines on March 3, 2009, said that during his time as Ombudsman, they had a difficulty in the investigation for the case against the former Chief Justice Renato Corona due to the fact of insufficiency of funds to get the required evidence to incriminate the said former Justice. However, the Ombudsmans budget has tripled from P392.08 million in 2003 to P1.33 billion in 2009 during the administration of President Gloria Macapagal Arroyo, the wife of Gutierrezs law school batch mate, then First Gentleman Jose Miguel Arroyo. In five years under Gutierrez, the Offices budget grew by an annual average of 21.35 percent, or twice more than the usually allowed increase in the budgets of most other government agencies. On top of this, the Office has also received not less than $7.2 million or P316 million in four different foreign grants and assistance, including funds committed to her predecessor, Simeon V. Marcelo, between 2005 and 2009. That the Ombudsman has failed to produce more and better results in its campaign against corruption despite such windfalls could be traced to issues that money alone cannot resolve. [footnoteRef:9] [8: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 17] [9: Mangahas, Malou and Ilagan, Karol Anne. Ombudsman a failure, despite flood of funds. Philippine Center For Investigative Journalism. February 6, 2011.]

It is seen fit to consider that the KPK has a far-reaching mandate, exercising exceptional powers that range from investigation and prosecution to prevention and the coordination of agencies authorized to combat corruption. Its powers are such that a civic leader remarked, upon the laws passage, that politicians were inviting a tiger into their house. [footnoteRef:10] This paper focuses the lens on the investigative and prosecutorial powers of the KPK that made it more responsive to its duty as an anti-corruption institution as compared to the Philippine Ombudsman and suggests that the emulation of the formers investigative and prosecutorial system may improve the conviction rate of the latter. [10: Ibid, 2]

15 | MURILLO

II. The Basis for Emulating the KPKs Investigative and Prosecutorial System

Why is it good to consider the KPK and its investigative and prosecutorial system a good model for the Philippine Ombudsman to emulate? The Indonesia and the Philippines share a number of similar important characteristics that would warrant this parallelism. Geographically, both Indonesia and the Philippines are Southeast Asian countries and are members of the ASEAN (Association of Southeast Asian Nations).

Apart from the Philippines and Indonesias geographical location, there are other important similarities politically, economically and in terms of corruption in the country, to wit:

1.) Politically, both countries experienced long periods of authoritarian rule that were characterized and sustained by rent-seeking and systemic corruption. The Marcos dictatorship in the Philippines lasted 14 years, from 1972 to 1986, while Soehartos authoritarianism endured for 31 years, from 1967 to 1998. Similarly, both authoritarian governments collapsed following popular protest movements fuelled by widespread anger against massive corruption and its precipitating role in economic crises. Moreover, both countries equally saw a burst of pluralism during their respective transitions from authoritarian rule. Numerous political parties formed, civil society organisations mushroomed, and media channels multiplied. Today, both countries are characterised by strong chief executives, with relatively weak bicameral legislatures, and a robustly decentralised local government sector.[footnoteRef:11] [11: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 7.]

2.) Economically, both Indonesia and the Philippines are lower middle income countries. Indonesias Gross National Income per capita in 2008 was US$1,880 while the Philippines was US$1,890 (World Bank 2009). Their political economies are likewise similar in terms of the persistence of neo-patrimonial practices, where the structures and systems of modern government mask the practices and patterns of patronage and corruption. The respective transitions to democracy of both countries failed to dismantle the family-focused, clan-oriented, and region-sensitive ways that dominate politics and economics in interlocking ways.[footnoteRef:12] [12: Ibid]

3.) In terms of corruption, both Indonesia and the Philippines are considered among the more corrupt in Asia. Both score very low in various indices such as Transparency Internationals Corruption Perceptions Index and the Word Banks Control of Corruption indicator. (Indonesias ranking, however, has improved in recent years compared to the Philippines, in part because of the work of the KPK.) When the KPK and the Ombudsman were established (in 2003 and 1988 respectively), both faced similarly high levels of state capture as well as grand and petty corruption.[footnoteRef:13] [13: Ibid]

It is to be noted that Atty. Simeon Marcelo has recognized the importance of the Office of the Special Prosecutor and the Field Investigation Office, and thus implemented programs to strengthen the two offices recruitment of additional prosecutors (from 52 to 104 in 2003 and 113 in 2007) and investigators (from 37 to 96 in 2003 and 1588 in 2007) and trainings.[footnoteRef:14] It is relevant to consider the outlook of Atty. Simeon Marcelo because the Office of the Ombudsman (OMB) was most popular during Marcelo's leadership, exhibiting 'moderate' sincerity in fighting corruption. Under Gutierrez' leadership, however, the Ombudsman's anti-corruption efforts are found to be 'mediocre'.[footnoteRef:15] This is shown by the PHDR Issue Number 5, 2008-2009, of the Philippine Human Development Network, to wit: [14: Human Development Network. The Office Of The Ombudsman: Is There An Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 5] [15: Human Development Network. The Office Of The Ombudsman: Is There An Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 3]

Year

Net Sincerity

Rating (Very/

Somewhat

Sincere

Somewhat/ Very

Insincere)

Ombudsman

2000

-5

Desierto

2001

+7

2002

N.A.

Marcelo

2003

+21

2004

+28

2005

+22

2006

+6

Gutierrez

2007

+9

2008

+4

The Social Weather Stations ratings of net sincerity are as follows:

(1) 'very good' for over +50 net rate,

(2) 'good' for +31 to +50,

(3) 'moderate' for +11 to +30,

(4) 'mediocre' for +10 to -10,

(5) 'poor' for -11 to -30,

(6) 'bad' for -31 to -50,

(7) 'very bad' for below -50.

Corollary, considering that it was during Atty. Simeon Marcelos occupancy of the Office of the Ombudsman (OMB) where the Net Sincerity Rating was highest, it is reasonable to take heed of his recognition of the importance of the Special Prosecutors and the Field Investigation Officer. However, the importance of improving the Special Prosecutor and the Field Investigation Officer does not of itself equate entirely to the effectiveness and efficiency of both prosecution and investigation of the Ombudsman. In fact, even if it was during Atty. Marcelos tenure that the Net Sincerity Rating of the Ombudsman was at its best, nonetheless, as may be observed, it is only within the category of moderate. There is a much greater room for improvement. Hence, there is a need to delve not merely on the prosecution and investigation officers, agents and employees of the Ombudsman but more importantly with the system of prosecution and investigation itself.

The KPKs investigative and prosecutorial system now comes into the picture as a relevant model for the Ombudsman. Apart from the aforementioned similarities in characteristics between Indonesia and the Philippines, the KPK has valiantly become an exception to the commonality that most anti-corruption agency failed in upholding their mandate.[footnoteRef:16] [16: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: Introduction.]

Furthermore, the KPK has had its crises, including harassment and intimidation, interagency feuds, slashed budgetsand it is subject to the higher powers of the president and the parliament. But KPK has also built up a formidable base of public support. When it locked horns with the national police, thousands staged public demonstrations supporting KPK. When the parliament refused to allocate money for a much-needed KPK building, Indonesian citizens voluntarily donated money for the building construction. Now on its tenth year, KPK has become a symbol of reform and hope for Indonesians, and is hailed as one of the few effective anti-corruption agencies in the world.[footnoteRef:17] Hence, the KPK has indeed won the hearts of the Indonesian constituents as their anti-corruption institution. Thus, there is much reason for the Philippine Ombudsman to emulate IndonesiasKPK. [17: http://www.rmaf.org.ph/newrmaf/main/awardees/awardee/profile/348 ]

III. Investigative System of the KPK that should be imitated by the Ombudsman

The KPK essentially has all the investigative powers of a law enforcement agency, while the Ombudsman does not. The KPK can, on its own accord, conduct wiretaps on suspects, examine their bank accounts and tax records, freeze suspects assets, issue hold orders and make arrests. The Ombudsman cannot wiretap, it cannot examine bank accounts or freeze assets, and it cannot make arrests. At best, the Ombudsman can conduct surveillance but it can only use still cameras, not video recording equipment. Video recording evidence, in so far as it has audio characteristics, is proscribed under the Philippines anti-wiretapping law and thus inadmissible in court.[footnoteRef:18] [18: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 14]

A. Power to conduct searches and seizures, freeze assets, intercept communications and others without prior judicial authority

Under the Philippines Anti-wiretapping Law, it is prohibited to record and intercept private communications. The law does not prohibit the recording of public speeches by members of the audience, or other forms of "public" communication such as press conferences, interviews, and board meetings that are openly recorded.[footnoteRef:19] [19: Free Legal Assistance Group. FAQs Anti-Wiretapping Law. http://pcij.org/blog/wp-docs/FAQs-Anti-Wiretapping-Law.pdf]

The said law does not prohibit the recording of all private communications, but provides a limited and narrowly drawn exception for law enforcers. The law provides that police and other law enforcement agencies may wiretap private communications but:

(1) law enforcers must first secure a court order; and

(2) only in cases involving crimes against national security under the Revised Penal Code (treason, espionage, rebellion or sedition) and kidnapping.[footnoteRef:20] [20: Ibid]

Verily, with this statutory constraint, the investigators of the Ombudsman cannot fully gather easily the necessary evidence that would carry sufficient weight in the prosecution of an alleged corrupt official.

Further, there has to first be a court order before the Ombudsman may be allowed to intercept any private communications between public officials and their cronies. There is a judicial red tape that the Ombudsman has to procure before proceeding to intercept what may be very relevant communication as piece of evidence for the prosecution of corrupt officials.

Furthermore, it may also impair the Ombudsmans capacity to investigate independently as members of judiciary are informed beforehand of their intention and motives to wiretap a conversation of any public official that may be related to corruption transactions.

Another deficiency of the Ombudsman is that they cannot examine suspects bank accounts and tax records, and freeze suspects assets. Only the Philippines Anti-Money Laundering Council can examine and freeze bank accounts as part of a criminal investigation. The Ombudsman can request the Council for help after it has filed a case against the suspects in court, a protracted process that prevents secrecy and dispatch in investigation, which are needed to prevent suspects from destroying evidence and hiding ill-gotten funds.[footnoteRef:21] [21: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 14]

There are some notable cases where the Ombudsman has failed due to their deficiency in investigation. Among were the $2 million bribery case, involving Justice Secretary Hernando Perez, and the P2billion peso contract between the COMELEC and Megapacific.

The $2 million bribery case involving Justice Secretary Hernando Perez stemmed from a complaint filed in the Office of the Ombudsman by former Manila Congressman Mark Jimenez, accusing Perez of extorting US $2million from him in exchange for the approval of a controversial $470-million IMPSA power plant deal. The anomalous contract, originally signed by former president Joseph Estrada, was being reviewed by the newly-installed Arroyo government.

The anti-graft court junked the falsification of public documents charge against Perez as it ruled that the prosecution presented insufficient evidence to support any of its allegations. The Sandiganbayan ruled that all testimonial and documentary evidence presented against Perez was mere hearsay. Jimenez was not presented in court to be cross-examined, the court said. In addition, the bank documents bore no weight because bank executives or diplomatic officers who had firsthand knowledge about them were not called to testify about them.[footnoteRef:22] [22: http://www.rappler.com/nation/58600-anti-graft-court-nani-perez-charges]

In a decision penned by Justice Lucas P. Bersamin, the Supreme Court cited the violation by the Ombudsman of Perez constitutional right to due process and speedy trial as grounds for dismissal. Voting unanimously, the 5 justices of the SC First Division decided that the delay in resolving the criminal complaint against Perez was "inordinate" and "oppressive." The fact finding investigation and preliminary investigation alone on Perez case by the Office of the Ombudsman lasted nearly 5 years and 5 months.[footnoteRef:23] [23: http://www.rappler.com/nation/47402-sc-affirms-dismissal-ex-doj-secretary-nani-perez-robbery-charge]

There is failure to present sufficient evidence here because of the lack of sufficient power to conduct proper investigation. Most evidence presented was discarded as merely hearsay. The Ombudsman failed to obtain strong evidence because they had a deficient investigation system.

Anent the P2billion peso contract between the COMELEC and Megapacific, on January 13, 2004, no less than the Supreme Court (SC) asked the Ombudsman to determine the "criminal liability, if any", of the public officials involved in Comelec Resolution No. 6074 awarding the contract for Phase II of the AES (automated election system) to Mega Pacific Consortium (MPC), as well as the Contract between the Comelec and Mega Pacific eSolutions (MPEI) executed on an unspecified date but notarized on June 30, 2003. The amount involved in these deals totals P2.5 billion. The SC in its decision promulgated on said date (ITF vs. Comelec, G.R.159139), found the said Resolution and Contract null and void, as a consequence of which, "the purchase of the machines and all appurtenances thereto including the still to be produced software as well as all the payments made therefor (P849, 167, 697.41 by Comelec computation), have no basis whatsoever in law. Thus the SC ordered the recovery of the funds expended pursuant to the void Resolution and Contract from the payees and/or "from the persons who made possible the illegal disbursements without prejudice to possible criminal prosecutions against them".[footnoteRef:24] [24: http://www.gmanetwork.com/news/story/151030/news/the-comelec-mega-pacific-consortium-deal-timeline]

Today, the Ombudsman has not yet fully complied with the SC directive. While it promptly started the investigation the day after the directive came out, it got stuck there. The SC itself believes that this delay and inaction is already unreasonable and inexcusable so it gave the Ombudsman until June 30, 2006 to complete its investigation. Yet instead of meeting the deadline, news report says the Ombudsman is asking for more time.[footnoteRef:25] [25: Ibid]

Ofcourse, apart from the deficiency in the investigative capacity of the Ombudsman, there are other factors such as inefficient leadership. According Human Development Network, low conviction rate is explained by highly centralized system, a weakened Office of the Special Prosecutor, and a demoralized staff. This and bad relations with other anticorruption organizations contribute to the bad image of the Ombudsman and thus its growing unpopularity.

The Office of the Ombudsman said there is no fixed period in the investigation of cases or complaints because of the various factors involved, such as the complexity of the allegations, the volume of evidence required, and the number of public officials/employees accused.

Ombudsman investigations are always aimed at presenting a strong case so our inquiries are always in-depth, says de Jesus. Although the standard of proof in fact-finding is only probable cause, the FIO (Field Investigation Office) investigators always aim at proof beyond reasonable doubt, or, in an administrative case, preponderance or substantial evidence. The reason behind this is to increase the chances of conviction of an offender.[footnoteRef:26] [26: Ilagan, Karol Anne. Sanctum Sanctorum?. Philippine Center For Investigative Journalism. February 8, 2011.]

There is no problem with the goal of aiming at presenting a strong case through aiming proof beyond reasonable doubt even if standard of proof in fact-finding probable cause is only. The problem is with minimizing the least time possible to gather such strong and credible evidence.

As previously mentioned, KPK has been so successful and one of its primary distinctive traits is that it has very broad investigative and prosecutorial powers that allowed it to circumvent and overrule police and prosecutors. These powers included the right to tap phones without a court order, to impose travel bans, to freeze bank accounts, and to access financial records.

Emulating the KPK by broadening these investigative powers of the Ombudsman might enhance the Ombudsmans chances of gaining higher conviction and faster prosecution of corrupt public official. The Ombudsman may become more efficient and effective. The proponent agrees with Emil Bolangaita that an anti-corruption agency without the powers to conduct wiretaps, investigate financial records, freeze assets, and apprehend suspects is a useless entity. An anti-corruption agency needs to be able to conduct surveillance, follow the money trail, set up sting operations, and make arrests of likely fugitives. Only with standard investigative powers and capacities can an anti-corruption agency gather the necessary evidence to ensure effective prosecution.

IV. Prosecutorial System of the KPK that should be emulated by the Ombudsman

There is a big difference in the prosecutorial system between the KPK and the Ombudsman. Among the highlighted differences are as follows:

First, in the KPK, investigators and prosecutors work together from the start of the investigation until the prosecution of the case.[footnoteRef:27] Consultation is facilitated by the fact that the investigators and prosecutors are housed in the same building.[footnoteRef:28] However, in the Ombudsman, the prosecutors and investigators do not work jointly. At the Office of the Ombudsman, investigators and the prosecutors do not even coordinate with each other prior to the decision to prosecute or not. [27: Asian Institute of Management (AIM). A SYMPOSIUM ON THE FUNDAMENTALS OFAN EFFECTIVE ANTI-CORRUPTION AGENCY. May 6, 2011.] [28: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 14]

Second, the KPK prosecutors and investigators jointly determine if evidence is sufficient while in the Ombudsman, it is the investigators, and not prosecutors, determine if evidence is sufficient.

Lastly, the cases in the KPK are subject to a three-stage panel review by the Commission whereas in the Ombudsman, the prosecutors prosecute what the Ombudsman hands them.

A. Three-stage panel review by the KPK

When KPK investigators and prosecutors agree that they have a strong case to prosecute before the TIPIKOR, their case undergoes a three-stage panel review conducted by the KPK commissioners.[footnoteRef:29] [29: Ibid]

The commissioners role is to challenge the proposed case strategies in order to ensure that each case filed is winnable. Only when a case has successfully gone through these panel reviews will it be approved by the Commission for prosecution at the TIPIKOR. This level of preparation of the KPK contributes to the efficiency of the court as the prosecution is able to proceed methodically without seeking postponements in the trials.[footnoteRef:30] [30: Ibid]

On the other hand, the Ombudsman prosecutors pursue whatever case is handed to them by the Ombudsman. They do not play a role in the decision to prosecute. This process is a key problem pointed out by the prosecutors themselves: they are assigned cases to prosecute without, in their view, sufficient evidence. They argue that the dismissal and withdrawal of many Ombudsman cases prior to trial in the Sandiganbayan is not their fault, but the failure of investigators who did not gather the required evidence.[footnoteRef:31] [31: Ibid]

Unlike in the KPK, procedurally, Ombudsman investigations do not take into account prosecutors inputs. It is the investigators, not the prosecutors, which make the recommendation to prosecute.

The Ombudsmans investigation process proceeds in two stages: there is a field investigation unit that makes the initial response to a corruption incident or complaint; if the field investigation unit sees that there is likely probable cause of corruption, it forwards its findings to a preliminary investigation unit that makes the actual determination of a probable case. If the preliminary investigation unit then determines there is probable cause, it makes a recommendation to the Ombudsman for prosecution.[footnoteRef:32] [32: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 14]

The investigators recommendation is proposed directly to the head of the Office of the Ombudsman the Ombudsman himself who alone makes the decision to proceed or not. If the Ombudsman decides to prosecute, the case is then forwarded to the institutions Office of the Special Prosecutor.[footnoteRef:33] [33: Ibid]

Considering this kind of set-up of the Ombudsman, it would be apparent that miscommunications along the process is looming especially that the Special Prosecutors are not the one who conducted the actual investigation. They merely rely on what evidence is presented to them by the investigators. Further, the decision to prosecute is with the Ombudsman alone, so the special prosecutors may not have confidence in the prosecution as they are pushed to do so notwithstanding their own assessment of the case. It would have been more efficient, should the Ombudsman employ the same prosecutorial machinery as the KPK.

To improve the Ombudsmans performance (as measured by conviction rate), it may imitate the KPKs prosecutorial process in this regard.

By a department order, the Ombudsman may restructure their whole prosecutorial process so as to make the investigators and the special prosecutors work hand-in-hand from the start of the investigation until the prosecution of the case. It should not be a process, as it is now, wherein the work of the special prosecutors begins after the work of the investigators. Their respective duties should intertwine from investigation until prosecution.

Further, not only must the investigators and the prosecutors be intertwined in the prosecutorial process, rather, their output should be first subject to checks and balance before with the Ombudsman. A series of screening should first be conducted in order to secure a strong case and perhaps even win all case or substantially all of it whenever it reaches the Supreme Court.

B. Re-establishment of relationship with other partner organizations and decentralization of some powers to the deputy Ombudsmen, retaining a few key powers to ensure check and balance in lieu of three-stage panel review

Should it be difficult to restructure all over again the whole machinery of the prosecutorial system of the Ombudsman, there is another alternative which would ensure that the cases filed by the Ombudsman are backed with strong and sufficient evidence to secure conviction of the corrupt official charged as well as a mechanism of checks and balance.

This system has in fact been already established during Atty. Simeon Marcelos occupation of the Office of the Ombudsman and was not followed by his successor, Mercedita Gutierrez.

As mentioned previously, it was during Atty. Simeon Marcelos incumbency as the Ombudsman where the sincerity rating was at its peak. This is precisely because of some re-engineering in the internal process in the Ombudsman which is similar to or having similar effects and implications with the three-stage panel review of the KPK.

Marcelo 're-engineered' the internal procedures at the Ombudsman, drawing from lessons learned in the practices of Ombudsmen Vasquez and Desierto. Marcelo decentralized some powers to the deputy Ombudsmen, retaining a few key powers to ensure check and balance. This delegation of powers has resulted in efficient handling of cases, without necessarily compromising the integrity of the institution through sufficient checks and balance in place.[footnoteRef:34] [34: Human Development Network. The Office Of The Ombudsman: Is There An Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 5]

Another institutional strength that Marcelo built on during his leadership was the Ombudsman's good relations with other partner organizations in the fight against corruption (Commission on Audit, Civil Service Commission, Presidential Anti-Graft Commission, and civil society organizations such as the Transparency and Accountability Network). The Solana Covenant a covenant between the OMB, COA, and CSC was a celebrated agreement among 'like-minded institutions' towards a more coordinated approach to fighting corruption. It outlined programs of the three agencies that should not duplicate but rather complement and strengthen each other's anticorruption efforts.[footnoteRef:35] [35: Ibid, 6]

With Gutierrez as new Ombudsman, most of these institutional practices/policies have been undone. Gutierrez centralized almost all decisions e.g. travel orders, information dissemination, approval/disapproval on complaints filed by the Field Investigation Office before the Preliminary Investigation Administrative Adjudication and Monitoring Office (PAMO) and entrusted approval powers to Assistant Ombudsman Mark Jalandoni and Overall Deputy Ombudsman Orlando Casimiro. (Rufo, 2008b; Office Order 20 series of 2006) The Deputy Ombudsmen for Luzon, Visayas and Mindanao, have been ordered to transfer all pending cases involving governors and vice-governors to the Office of the Overall Deputy Ombudsman.[footnoteRef:36] [36: Ibid, 5]

Even the Ombudsman's official spokesman, Jose de Jesus, has to seek clearance from the Ombudsman and her 'delegates' before he can do his job as spokesperson and liaise with media. As a result of this centralized decision-making, conviction rates have dropped and the staff are demoralized. Gutierrez also strained relations with the Office of the Special Prosecutor (OSP) headed by Dennis Villa-Ignacio.[footnoteRef:37] [37: Ibid]

According to Atty. Simeon Marcelo in a talk at UP: we should always encourage the institution of Mutual Legal Assistance Treaty so that it would be easy to get evidence. Katulad ng case ni dating Major General Carlos Garcia, because we already had assistance from the United States, it took us [only a few months to file the case]. We started in September, we were able to file the first case on November, and then we were able to file the plunder case during March of the following year. Ganun kabilis. So it all depends on whether the documents are complete.[footnoteRef:38] [38: Marcelo, Simeon. Talk at the UP College Of Law. March 3, 2009. https://www.youtube.com/watch?v=qMWR8w9HJsQ.]

V. Conclusion

The KPK has been so effective in complying with its mandate because of a broad and efficient investigative and prosecutorial arm. If the Philippines should emulate their investigative and prosecutorial system, there is likelihood that the Ombudsman would enhance its conviction rate.

Of course, there are other factors to consider such as the leadership of the incumbent Ombudsman, the support of the general public against the fight of corruption, budgetary constraints, other macro-political factors and many more. Nonetheless, an effective internal system for investigating and prosecuting corruption cases of public officials is one of the backbone for the success of the war against corruption.

In a world where even very poor countries exhibit high levels of technology and mobility, an anti-corruption agency without the powers to conduct wiretaps, investigate financial records, freeze assets, and apprehend suspects is a useless entity. An anti-corruption agency needs to be able to conduct surveillance, follow the money trail, set up sting operations, and make arrests of likely fugitives. Only with standard investigative powers and capacities can an anti-corruption agency gather the necessary evidence to ensure effective prosecution.[footnoteRef:39] [39: Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 14]

Hence, the government must give the Ombudsman more teeth to conduct a more aggressive investigation against corrupt officials. The problem is that many of those in charge are corrupted themselves. Maybe it is their real intention to leave the Ombudsman as it is but a toothless tiger. It is suggested that this must not be so.

The Ombudsman, for the sake of public transparency and welfare, should be allowed as an exception and be free to conduct wiretap, freeze assets, and apprehend suspect without prior judicial approval, of course, also within reasonable bounds of law.

It must be independent to do so, as it is called the protector of the people. It cannot be under the leash of the judiciary. Nonetheless, as all things are, it should still be open to Court review for grave abuse of discretion.

The KPKs joint investigative and prosecutorial units have demonstrated remarkable efficiency and effectiveness in collecting evidence and developing compelling cases. In contrast, by letting the investigators decide when to prosecute, the Ombudsman has weakened key factors in prosecutorial power. Moreover, in sharing responsibility for decisions to prosecute, the quantum of evidence in deciding to prosecute should not only be on basis of probable cause but on the probability of guilt beyond reasonable doubt.[footnoteRef:40] [40: Ibid, p. 28]

Hence, the Ombudsman may make an order restructuring the whole machinery of its prosecution by ensuring that the investigators and the prosecutors shall work hand-in-hand in every step of the way from the investigation until the prosecution of suspected corrupt officials and not separately as though the work of the prosecutors begins after the work of the investigator. The decision to prosecute must also be subjected to panel review by the Commission, the investigators and the special prosecutors in order to secure a strong case against the official and to immensely enhance the likelihood of conviction.

Alternatively, the Ombudsman must re-establish its relationship with other partner organizations such as the Solana Covenant a covenant between the OMB, COA, and CSC which was a celebrated agreement among 'like-minded institutions' towards a more coordinated approach to fighting corruption.[footnoteRef:41] Corollary, the Ombudsman should also decentralize some powers to the deputy Ombudsmen, retaining a few key powers to ensure check and balance in lieu of three-stage panel review. [41: Human Development Network. The Office Of The Ombudsman: Is There An Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 6]

With this at hand, and the whole Nations dedication to the eradication of corruption in the Philippines, may very well ensure the victory of the war against corruption. This is a valiant and noble endeavor because again, as what Atty. Simeon Marcelo has said, It is not true that there is corruption because of poverty; but rather, it is the other way around, there is poverty because of corruption. Stop corruption, save the Nation from poverty.

BIBLIOGRAPHY AND REFERENCES

Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption Resource Center Issue. August 2010: p. 7

Human Development Network. The Office Of The Ombudsman: Is There An Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 3.

Mangahas, Malou and Ilagan, Karol Anne. Ombudsman Failure, Despite Floods Of Funds. Philippine Center For Investigative Journalism. February 6, 2011.

Norimitsu Onishi, Corruption Fighters Rouse Resistance in Indonesia, New York Times, July 25, 2009.

"Vision and Mission". KPK website. http://www.kpk.go.id/id/modules/edito/content.php?id=15

Ilagan, Karol Anne. Sanctum Sanctorum?. Philippine Center For Investigative Journalism. February 8, 2011

Marcelo, Simeon. Talk at the UP College Of Law. March 3, 2009. https://www.youtube.com/watch?v=qMWR8w9HJsQ.

http://www.gmanetwork.com/news/story/151030/news/the-comelec-mega-pacific-consortium-deal-timeline

http://www.rappler.com/nation/58600-anti-graft-court-nani-perez-charges

http://www.rappler.com/nation/47402-sc-affirms-dismissal-ex-doj-secretary-nani-perez-robbery-charge

Section 13 and 15, R.A. 6770