Tanod ng Malacañang, not Tanodbayan

If the stench of corruption is getting stronger and more obnoxious nowadays it is not only because of the government agencies and the people involved in the shady deals and corrupt acts. It is also due to the wrong or highly irregular actions, inactions or delayed action of the Ombudsman.

The 1987 Constitution has created the Office of the Ombudsman to serve as the vanguard in combating the evils of graft and corrupt practices in the government. It is supposed to be the guardian and champion of the people and not beholden to anybody most especially to the President who placed her/him in office.

As guardian of the people, the Ombudsman is endowed with enough power to carry out its primary duty of enforcing the accountability of public officers founded on the basic tenet that public office is a public trust and that therefore, “all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency”. Thus the Ombudsman is also called the “Tanodbayan” that can investigate on its own initiative “any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper or inefficient”.

To insure his/her independence the Ombudsman has a fixed term of office and can be removed only by impeachment on the same grounds and in the same manner as the removal of the President, Vice President, members of the Supreme Court and the Constitutional Commissions. The Office of the Ombudsman also enjoys fiscal autonomy with its approved annual appropriation automatically and regularly released.

Both the Constitution and the law creating the office and defining its powers and functions task the Ombudsman with the duty to act promptly on any case of illegal, unjust, improper or inefficient acts of public officials. Its duty is merely to investigate and determine probable cause for the filing of necessary charges before the Sandiganbayan based on the evidence on hand. In the investigation it may require the respondent to answer the complaint and present his side as part of due process. But if the respondents themselves frustrate this due process by hiding or fleeing or throwing gauntlets, the Ombudsman should immediately file the case.

Its duty is merely to investigate, not to try the case. So it should only determine that respondents are probably guilty of the acts complained of, not that they are guilty beyond reasonable doubt. It should not encroach on the power of the court to determine the probative value and weight of the evidence that will constitute proof beyond reasonable doubt. This is determined only during the trial on the merits of the charges filed in court.

Sad to say however, the present Ombudsman is a far cry from that envisioned by the Constitution. She has not lived up to her name and her role as the Tanodbayan.

In the Comelec-Mega Pacific deal on the automated counting machines, no less than the Supreme Court already found probable cause to charge the Comelec Commissioners particularly the Comelec Chairman Abalos with violation of the Anti Graft Law. Yet instead of promptly acting on the case, the Ombudsman took its own sweet time and resolved not to file the charges on the ground that there are not enough evidence to prove the guilt of the respondents beyond reasonable doubt which is not part of its job.

In the Bolante Fertilizer Fund scam, no less than the Senate found the existence of probable cause to indict Bolante and his cohorts and thus endorsed the case to the Ombudsman for the filing of the necessary charges in court. This was almost five years ago. But the Ombudsman has done nothing up to now initially because Bolante fled the country and the Ombudsman thought that he should still be given the chance to be heard, thereby placing the entire process dependent Bolante’s will. And when Bolante was finally forced to come back and already afforded the chance to present his side, the Ombudsman continues to sit on his case.

More than a year ago, complaints regarding the NBN-ZTE kickbacks and tongpats  have already been filed with the Ombudsman where the sworn statements of the principal witness Jun Lozada and the other transcripts of the Senate Investigation as well as other documents were already submitted to it. These evidences are enough to establish probable cause. But up to now no charges have been filed.

Recently it was likewise revealed that as early as three months ago the Ombudsman was furnished with a copy of the World Bank report on the collusion of contractors and DPWH in the rigging of bids for public road projects. Up to now however, she has not acted on the said report. And the worst part is that she has kept the report a secret when it is her duty to “publicize matters covered by its investigation when circumstances so warrant and with due prudence”.

Obviously, these wrongful acts or non-actions of the Ombudsman are largely due to the involvement of a person close to Malacanang who is quite known to the public already. It only goes to show that the present Ombudsman is not the guardian and protector of the Palace residents. It also goes to show that the Ombudsman is not independent but beholden to the President. Even if she has a fixed term, she is well aware that she can still be impeached by the minions of Malacanang in Congress if she will not kowtow to their wishes. Even if she has a fixed term and fiscal autonomy, human ties of loyalty are naturally stronger.

Hence the independence of the Ombudsman as envisioned by the Constitution really depends on the President who is appointing power. The President should not appoint somebody with known close ties to her and her relatives. This is of course but a dream under our present system of government.

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