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Mar 10

The Explainer: Ombudsman under fire

That was the Latvian cello group Melo-M with singer Intars Busulis and  their cover of the movie theme song, “Ghostbusters.”

Something strange, in your neighborhood? Who you gonna call? Ombudsman! That’s the idea, really.

But theory is different from reality.

Tonight, we’re going to look at why, instead of being the People’s Protector, as the Constitution demands, the Ombudsman has come to be seen as the Protector of certain Politically-powerful people.

I’m Manolo Quezon. The Explainer

 

I. Someone to run to

 

As long as we’ve had government, there’s been the perception that too often, officials are more interested in themselves than in public service. As this Philippines Free Press editorial cartoon from the 1920s shows, the citizen often views himself as weak and vulnerable in the face of the powerful.

As this  Free Press editorial cartoon from 1940 shows, even when officials try to do some good, in many cases they lack the legal powers to do anything meaningful, and crooks just laugh at them.

And so you have two pressing public needs: first, for a people’s advocate; second, for those advocates to be armed with legal powers to actually accomplish something.

Enter the Ombudsman.

http://opinion.inquirer.net/inquireropinion/columns/view/20090307-192799/The-Ombudsman

Randy David pointed out in a recent column that Sweden gave the world the institution of the Ombudsman in 1809, and that an Ombudsman’s function is to receive complaints from citizens, specially when it comes to their dealing with government.

Let’s take a brief look at Ombudspeople around the world, their job descriptions will go a long way in telling you what the traditional notion –and expectation- of an Ombudsman is.

http://www.ombudsman.europa.eu/home.faces

The European Ombudsman, for example, “investigates complaints about maladministration in the institutions and bodies of the European Union.”

When a journalist, for example, was refused documents by Europol, the Ombudsman weighed in and demanded an explanation. Europol apologized to the journalist and released the documents.

http://www.ombudsman.gov.ie/en/

The Ombudsman in Ireland’s job is to examine complaints about administrative actions in all national and local government units.

http://www.comb.gov.au/

The Commonwealth Ombudsman in Australia “resolves complaints and fosters good government administration.”

http://www.azleg.gov/ombudsman/default.asp

And even in the United States, the State of Arizona has an Ombudsman, who’s called a Citizen’s Aide, and whose job it is, to help citizens who face problems or who don’t understand the functions of state agencies, so that they get what they need.

What these Ombudsmen have in common are a couple of things.

First, Ombudsmen are supposed to help, they’re the officials people run to for help, if other officials are uncooperative, or obstruct good governance.

Second, they are meant to help not just the public, but also, to find ways to ensure public administration gets done smoothly, and efficiently.

Randy David also pointed out that one fundamental requirement for an effective Ombudsman is integrity –not just person integrity, but the kind widely-recognized so as to make the Ombudsman a person respected by the community as a whole.

In fact all the requirements for a genuine ombudsman were demonstrated by the man who first held the functions of Ombudsman in our country, even though he didn’t have that formal title.

Manuel P. Manahan, war veteran, imprisoned by the Japanese at Fort Santiago, ex-newspaper publisher, and who organized the Magsaysay-for-President movement, was all and stocky man reported to have many of the mannerisms of, and a physical resemblance, to, to the late President Magsaysay.

Manahan had been put in charge, by Magsaysay, of one of the president’s pet projects, the Complaints and Action Committee. For a nominal charge, anyone could send a telegram directly to the President, with a complaint.

The idea of a designated pinch-hitter for the public was so strong, subsequent administrations bore the Magsaysay-Manahan institution in mind.

President Macapagal wanted to be his own ombudsman, instituting Common Man’s Day in the Palace, where anyone could line up and report a problem to him, for presidential action.

But there’s more to it than that. When Manahan was appointed by Magsaysay, he was told to “start sweeping out grafters from the government and prosecuting criminal elements in the country,” in other words, besides being someone to run to for help, people like Manahan were supposed to convict grafters and crooks and throw them in jail.

Afer Manahan’s time, legislation was attempted to give legal teeth to the fight against graft and corruption. Among the most prominent in this effort was Senator Arturo Tolentino, who was the chief architect in 1960 of the Anti Graft and Corrupt Practices Act, RA 3019 for government officials.

His pioneering efforts can be said to have born fruit in later laws like the anti-plunder law.

This, then, seems to be the origin of the powerful office the Ombudsman’s come to head.

http://www.ombudsman.gov.ph/

This office was set up under the present Constitution.

More on how that office came to be, and what, exactly, the Ombudsman does, when we return.

 

II. Ombudsman as Inquisitor

 

That was the famous Spanish Inquisition scene from Monty Python.

Have been widely perceived to be disappointments, all bark and no bite like the Monty Python characters in the clip you saw.

Whether deservedly or not, the Ombudsmen, instead of being “protectors of the people,” as the Constitution puts it, have been perceived to be protectors of the presidents that appointed them.

So in the transition from Ramos to Estrada,

Or whether in the case of the current first couple,

Ombudsmen have been accused of coddling presidents and their appointees.

Some have suggested that part of the problem may be that the office itself may have bitten off more than it can logically chew.

The Ombudsman is appointed by the President of the Philippines, from a list of nominees submitted by the Judicial and Bar Council, and for a fixed term of seven years.

The Ombudsman has to be at least 40 years old, a lawyer and not recently a candidate for elected office, and of recognized probity and independence.

After appointment, the Ombudsman heads an independent Constitutional Agency, which is not under the supervision or control of the President, or of Congress.

The Constitution, in Article XI, on the Accountability of Public Officers. Sec. 12, confers a broad mandate on the Ombudsman:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or -controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

The exceptions to the disciplinary authority of the Ombudsman are, officials subject to impeachment, meaning the President, Vice-President, and Justices of the Supreme Court, and members of Congress and the judiciary in general. But the Ombudsman has the power to investigate these officials for the purposes of filing articles of impeachment. The Ombudsman, on the other hand, can only be removed from office by means of impeachment.

So far, so good. Problema mo, Isumbong mo sa Ombudsman, in layman’s terms.

http://www.ombudsman.gov.ph/

But when you look at the Ombudsman’s website, formally speaking, the Ombudsman has five major functions:

Public Assistance

Graft Prevention

Investigation

Prosecution and

Administrative Adjudication

Of these, 1 (public assistance), 3, (investigation) and 5 (administrative adjudication), are the sort of functions Ombudsmen around the world are expected to undertake.

But it’s functions 2 and 4, graft prevention and prosecution, that are, perhaps, uniquely Filipino characteristics of the Ombudsman’s functions, going all the way back to Manahan’s Complaints and Action Committee.

http://www.ombudsman.gov.ph/

If you notice, the Ombudsman’s website refers to her as the

Tanodbayan. We know from Bernas that what were originally separate investigative and prosecutorial functions, were merged because of Republic Act 6770.

The Ombudsman investigates. The Tandobayan, who happens to be the Ombudsman, prosecutes; the Sandiganbayan is the Court that handles criminal cases concerning graft and corruption of government officials with a salary grade of 23 or higher.

http://opinion.inquirer.net/inquireropinion/columns/view/20090309-193041/The-curious-case-of-the-Ombudsman

Yesterday, the Jesuit priest and lawyer Joaquin Bernas in his column gave us an insight into what he and his fellow Constitutional Commissioners were thinking, when they decided to set up the position of Ombudsman.

At the time, there already existed the position of Tanodbayan, who was investigator and prosecutor of official wrongdoing, with broad powers.

Bernas says at first the Constitutional Commission wanted to separate investigation from prosecution. In its place, they’d set up an Ombudsman, ideally a person of great personal prestige, who would be a people’s advocate, someone to run to and be a busybody on your behalf.

In the Commission, former Senator Francisco “Soc” Rodrigo argued against an Ombudsman in the traditional sense of the word, saying without prosecutorial powers, no one would pay any attention to the Ombudsman.

But the Constitutional Commission persisted and established an office more along the lines of someone to run to, and who would make a fuss on behalf of citizens.

The Ombudsman could, if necessary, file a case with the newly-created position of Special Prosecutor, who replaced the old Tanodbayan,  who could then prosecute it in the Sandiganbayan.

This, suggests Bernas, is a right royal mess.

When Raul Gonzalez was Tandobayan, he directed the filing cases before the Sandiganbayan and was challenged before the Supreme Court.

The Supreme Court in Zaldivar vs. Sandiganbayan in 1988, effectively tied the hands of the Special Prosecutor. As Bernas put it,

the Supreme Court… conclude[d] that since the power to investigate had been given by Section 13(1) to the Ombudsman, the Special Prosecutor could neither investigate nor prosecute unless authorized by the Ombudsman.

According Bernas, this led to a strange situation: what, now, was the Special Prosecutor supposed to do? All the more so, since under Republic Act 6770, passed in 1989, actual prosecutorial powers have been conferred on the Ombudsman.

in the mind of the Supreme Court there is this strange phenomenon: the Special Prosecutor created by the Constitution has no authority to prosecute unless authorized by the Ombudsman who himself, under the Constitution, was not originally meant to be a prosecutor.

Bernas points out that now, the Special Prosecutor actually alleges the Tanodbayan, or Ombudsman, is actively sideleling the Special Prosecutor.

So could the Ombudsman be suffering from a design defect in her position?

Or is  our Ombudsman is like Martin Landau, playing the role of Bela Lugosi in the film “Ed Wood.” Take a look..

[Ed Wood clip]

So, to put it simply, is she faking it?

And is the solution, as Senator Manuel Roxas II has proposed, to authorize Congress to appoint special prosecutors, as the need arises?

Now at this point, let me introduce yet another exciting innovation on this show. We’ve assembled what we like to call a Clever Panel who’ll interact with you and me to take a closer look at tonight’s panel.

Our Clever Panel will be regulars on this show, and the first one you know quite well, Dean Jorge Bocobo, blogger; there’s of, and my former colleague at Today Newspaper, and part of the Radioactive Sago Project…

When we return, Clever Panel time!

 

My view

 

Back in April 2008, I met Robert Hårdh, a Swedish lawyer from The Swedish Helsinki Committee for Human Rights.

In my conversation with Hårdh, I asked him whether other countries were having problems with their Ombudsmen the way Filipinos have had problems with ours.

His answer intrigued me.  “Sweden,” he said, “gave the world the institution of the Ombudsman -but it only works in Sweden. That is because it was an institution that developed according to a situation peculiar to Sweden, where you can expect an investigation by officials appointed by the authorities to be investigated.”

So maybe it isn’t a uniquely Filipino dilemma, to be frustrated by Ombudsmen who end up owing more to the appointing power than the public they’re supposed to serve.

That being the case, perhaps, then, we should seriously explore two possibilities. Senator Roxas’ proposal, to appoint an ad hoc prosecutor every time a scandal arises. Or, another proposal you often hear: an Ombudsman directly elected by the people.

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