Messy situations

Since its creation under the 1987 Constitution, this is the first time that the Office of the Ombudsman has been mired into messy situations that reflect the very opposite of the purpose for which it was conceived.  

The Ombudsman is supposed to be the guardian and protector of the people, of the “little man who needs protection from being possibly trampled by the vast juggernaut of the government machine” that has become “terribly complicated and too impersonal” because of the “burgeoning of the bureaucracy”, as Con Con Delegate Rodolfo D. Robles explained. Hence, it is locally denominated as the “Tanodbayan”.

The concept of “Ombudsman” originated in Sweden in the early 19th century. Ombudsman is a Swedish word meaning “agent” or “representative”. Originally an Ombudsman was “an officer appointed by the legislature to handle the people’s grievances against the government, primarily tasked with receiving complaints from persons aggrieved by administrative action or inaction; conducting investigation thereon; and making recommendations to the appropriate government agency based on his findings. He relied mainly on the power of persuasion and the high prestige of the office to effect his recommendations”.

In the Philippines, several Ombudsman-like agencies were established by past presidents to serve as the people’s medium for airing grievances and seeking redress against abuses and misconduct in the government. They were conceived with the view of raising the standard in public service and ensuring integrity and efficiency in government. But these agencies failed to realize their objective for they did not enjoy the political independence necessary for the effective performance of their function. Furthermore their powers extended to no more than fact finding and recommending.

Thus the Delegates to the 1973 Constitutional Convention saw the need to create the Office of the Ombudsman as a constitutional office with political independence and adequate powers to enforce its recommendations. They mandated the legislature to create an Office of the Ombudsman to be known as the Tanodbayan with powers not only to receive complaints and make recommendations but also to file and prosecute criminal, civil or administrative cases before the appropriate body in case of failure of justice.

These provisions were carried over into the 1987 Constitution with the present Ombudsman as protector of the people mandated to act promptly on complaints filed in any form or manner against public official or employees of the government, or any subdivision, agency or instrumentality thereof including government owned and controlled corporations and to notify complainants of the action taken and the result thereof.

As former Chief Justice Reynato S. Puno said in his book “The Constitutional Philosophy of Philippine Jurisprudence”, where this account of the Ombudsman’s origin was culled, “the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people’s complaints against corrupt and abusive government personnel. The Philippine Ombudsman as protector of the people is now armed with powers to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and other offenses committed by such officers and employees.

Its political independence is assured not only by making it a Constitutional office but also by making the manner in which appointment to the position and removal of the appointee similar to that of the members of the Supreme Court, one of the three independent constitutional branches of government. While appointed by the President, the appointee must come only from a list submitted by the Judicial and Bar Council. And once appointed, he/she has fixed term of seven years unless removed through impeachment for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes and betrayal of public trust.

But as it is now turning out, it seems that the people themselves are the ones who need protection from their own guardian and protector. The Ombudsman herself has been impeached by the House of Representatives because she allegedly betrayed the people’s trust by protecting the interest of some government officials instead of their interest as shown by her inaction on some complaints involving anomalous deals of the past government amounting to billions of pesos. 

Then one of her deputies, Emilio Gonzales III has been found to have allegedly mishandled the case of the police officer who held hostage a busload of Hong Kong tourists and killed eight of them on August 23, 2010, before the police himself was killed in a bungled rescue operation.

These situations would not have been as messy as they are now but for the supposed political independence of the Office that makes removal of the incumbents involved in irregularities, a long and difficult process. The Ombudsman herself chose to fight out her impeachment and proceed with the tedious and time consuming Senate trial that may last until her term expires.

Deputy Ombudsman Gonzales III on the other hand invoked this political independence and still went to the SC questioning his removal by the President even if Section 8 (b) of the Ombudsman Act of 1989 (RA 6770) clearly and expressly provides that he “may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process”. Section 13 Article XI of the Constitution and Section 15 of RA 6770 which he invokes in questioning the power of the President to remove him are not applicable at all. They do not deal with removal from office but with the powers, functions and duties of the Ombudsman.

The bigger issues in the Gonzales’ SC case are therefore the reason and the manner of his removal and not whether the President has the power to remove him. Thus the SC has taken cognizance of the case in order to determine whether any of the grounds for the removal of the Ombudsman as provided in Section 2, Article XI of the Constitution is present and whether due process was observed.

These latest episodes show why graft and corruption are still rampant and cannot be eliminated here. Government officials are not afraid to commit graft and corruption believing that under our process, they can get away with them because the watchdogs seem to be not doing their job properly and with integrity.