Ombudsman’s paltry harvest

Barangay captains top crooks
in jail; majority skirt slammer

Second of four parts

WHO has been jailed for corruption in this country?

In its search for answers, the Philippine Threshold Program launched a study on “Time Served for Corruption” covering 118 cases from 2001 to 2008 of public officials who had been prosecuted by the Ombudsman, convicted by the Sandiganbayan, and sent to jail after the Supreme Court upheld their convictions.

Over three-fourths or 93 of the cases were in different stages of execution proceedings. The small balance of 25 individuals had been served court orders committing them to prison, but nearly half or 11 had been pardoned by then President Gloria Macapagal Arroyo.

In short, less than one in every 10 persons convicted of corruption since 2001 has actually been jailed.

Worse, of the 14 persons with court-issued jail sentences, only seven are actually serving time. And worst of all, of the seven in jail, only one person has completed his/her prison sentence.

As of 2009, of the seven serving time, the highest ranking officials are two barangay chairmen.

But the Office of the Ombudsman, which received $6.5 million as its share in the Philippine Threshold Program, says it is doing its best despite what is has repeatedly described as limited resources.

Bristling over the barrage of criticisms it has attracted – especially since Merceditas N. Gutierrez became its head in December 2005 – the Office says it is victim to misperceptions that in turn can be traced to malicious media reports.

In its latest annual report that covered 2009, the Office says it investigated and adjudicated a total of 8,000 cases. In addition, sanctions were imposed on at least 500 public officials and employees nationwide, the report says. Among these were the suspension and dismissal of high-ranking officials or those who occupy positions with salary grade 27 (or those receiving an annual salary of P446,076) and above, such as municipal mayors, regional directors, and university presidents.

But interviews with observers, complainants, and former and present Ombudsman insiders, as well as a closer scrutiny of official data reveal a different picture. Indeed, indications are that the Office has been failing on its duty to act promptly on complaints and in prioritizing those involving high-ranking officials, grave offenses, and large sums of money and property.

Too, while it constantly pleads poverty whenever it is asked why it cannot do more or better, it has been so generous to its own employees that they have not only enjoyed classes on such things as siomai-making and cosmetology, but also bonuses that, some former and present insiders say, have sometimes coincided with Gutierrez’s birthday or the filing of an impeachment complaint against her.

The public perhaps would overlook the latter if only the Office had proved instrumental in curbing corruption and inefficiency in government. But it apparently hasn’t, prompting people like human-rights leader Marie Hilao-Enriquez (whose group Karapatan has helped file at least six cases before the body) to complain, “Patong-patong na violations nila (Their violations are already piling up).”

Listless, scattered

The Sandiganbayan database on 1,210 cases filed by the Ombudsman from Dec. 2005 to Dec. 2009 in fact reveals unflattering evidence of what might well be the Office’s listless, scattered, and effete campaign against corruption.

The top 10 cases filed by the Ombudsman were usurpation (445); violation of the Anti-Graft and Corrupt Practices Act, 387; malversation, 87; falsification, 69; estafa, 68; violation of the Government Service Insurance System Act, 67; perjury, 14; violation of the Code of Conduct and Ethical Standards for Public Officials and Employees, 13; murder, 6; and, physical injuries, 6. Only one plunder case was filed, four bribery cases, and curiously, even one robbery case and two infidelity cases.

The 1,210 cases enrolled 4,066 respondents. Some cases involve multiple respondents, and some of the same respondents are actually named in several cases. Thus, decisions may vary for each accused such that one may be convicted and another acquitted in the same case.

More than half or 52 percent were filed against 2,109 officials and personnel of town, city, and provincial government units, while the second biggest cluster consists of cases filed against 784 private individuals (19 percent).

The 1,210 cases involved, according to the Sandiganbayan database, an aggregate amount of P6.37 billion, or a negligible sliver of the P1.645-trillion 2011 budget that bankrolls the operations of the government. Of this amount, P2.76 billion involved cases against private individuals.

This flurry of filing cases has triggered not so good results, however. Not only did just five percent end in convictions, 48 percent or 1,936 accused have cases pending before the Sandiganbayan; 14 percent or cases against 588 persons had been dismissed; and two percent or 61 accused had their cases archived. Cases against 244 individuals (6 percent) also resulted in the acquittal of the accused.

Former Special Prosecutor Dennis Villa-Ignacio, who led the prosecution team that secured ousted President Joseph Estrada’s conviction for plunder, says that there are people at the Ombudsman’s Office who are very good at “mishandling” cases to favor the accused. This, he says, partly explains the relatively high number of withdrawn and dismissed cases at the Sandiganbayan.

Before becoming Special Prosecutor in 2003, Villa-Ignacio also served briefly as assistant ombudsman under then Ombudsman Simeon V. Marcelo.

Withdrawn, dismissed

Sandiganbayan data show that the Office of the Special Prosecutor, which is under the purview of the Ombudsman, withdrew cases against 881 individuals between December 2005 and December 2009. Cases involving 588 accused were dismissed during the same period. Altogether, these account for 36 percent of the total number of case disposals by the Ombudsman under Gutierrez.

“(It’s) very simple,” Villa-Ignacio says of how the ‘mishandling’ is done. “One, the information filed is defective so that is an assurance that the case would not prosper. Or the presentation of evidence is incomplete.”

Villa-Ignacio says that he had confronted the prosecutors he believed to be responsible for what can only be described as deliberate mistakes. He also says that shortly after Gutierrez became Ombudsman, he had personally pointed out to her the people with whom she should be careful, as well as those she could trust. But she seems to have ignored his advice, he says. Instead, she and Villa-Ignacio would later have a public tiff.

Villa-Ignacio retired in February 2010 and now teaches law at the Ateneo de Manila University’s School of Law. He traces his rift with Gutierrez to the case involving the Commission on Elections’ (Comelec) purchase of automated counting machines from Mega Pacific for P1.3 billion in 2004.

The Supreme Court had declared the contract null and void because, it said, Comelec had disregarded bidding rules and procedures. Yet in 2006, the Ombudsman absolved all Comelec officials of any wrongdoing in the deal – a ruling that Villa-Ignacio thought was objectionable. He also said this out loud.

Soon after, he says, his deputies were ordered to report directly to Gutierrez, effectively stripping him of his administrative and prosecutorial powers. He says he was also not given the opportunity to read cases before these were filed with the Sandiganbayan. And toward the end of his term, Villa-Ignacio became the subject of administrative and estafa complaints over a donation of water pumps for Typhoon Milenyo victims.

‘Impeach Mercy’ plaint

While Villa-Ignacio has an obvious axe to grind against the Ombudsman, the same cannot be said about the foundation Kilosbayan and watchdog group Bantay Katarungan, which jointly filed an impeachment complaint against Gutierrez in 2009, citing as grounds her Office’s decision on the Mega Pacific case, as well as her inaction on the more than P1-billion fertilizer fund scam that was said to be key in perpetrating massive fraud in the 2004 presidential elections, and the collusion between bidders and state officials to skim off millions of pesos from World Bank-funded projects, among others.

In July 2010, petitioners led by former Akbayan party-list representative Risa Hontiveros filed another impeachment complaint against Gutierrez. Among other reasons, they said the Ombudsman had betrayed the public trust for failing to act swiftly on the cases filed against then President Arroyo and her allies in the botched National Broadband Network (NBN) deal with China’s Zhong Xing Telecommunication Equipment (ZTE) Corp.

Yet another complaint was filed the next month, August 2010, this time by civil society groups led by Bagong Alyansang Makabayan secretary-general Renato Reyes. It has brought the number of attempts to oust Gutierrez from her post to three. If those who are now wailing over the case of former military comptroller Maj. Gen. Carlos F. Garcia could have their way, that count could soon be four.

Lawyer Jose Manuel I. Diokno, chairman of the Free Legal Assistance Group (FLAG), says that the Ombudsman should actually be focusing on high-ranking officials because convicting only low-ranking ones does not stop corruption. “It even encourages it (corruption) because high-ranking officials get away with it,” he argues. “The higher your position, the easier it is for you to get corrupt because it becomes more difficult to file a case against you or have you convicted.”

Case from Samar

Procerfina Lucban, an eatery owner from Catbalogan, Samar, knows whereof Diokno speaks. As head of the Concerned Citizens Action Force Organization in her hometown, she helped another group to file a complaint with the Ombudsman against provincial officials, including the then governor and vice governor. The case stemmed from the provincial government’s apparent use of the calamity fund for three years in a row despite the absence of a disaster of any kind during that period.

In 2006, the Ombudsman found only six of the 22 respondents guilty of “grave misconduct, dishonesty and conduct prejudicial to the best interest of the service.” It dismissed the administrative charges against the former governor, vice governor, and several others because they were either re-elected or no longer in public service.

Of the respondents that the Ombudsman said were guilty, only one was eventually dismissed from his job at the capitol. As of this writing, two are even still working there as provincial officers.

At least the Ombudsman took just two years to render a decision on the case. For the higher-profile Ortigas rubout case, the Office took a year more before it could issue a resolution on a complaint filed by the family of one of the victims.

On Nov. 7, 2005, Anton Cu-unjieng, Anthony Bryan Dulay, and Francis Xavier Manzano were shot dead in Ortigas by Philippine National Police (PNP) anti-carjacking operatives. In 2006, the Commission on Human Rights submitted a report to the Ombudsman that recommended that members of the PNP’s Task Force Limbas be charged with murder.

The Ombudsman, however, dismissed all administrative charges against the 11 respondents and cleared six of them of any criminal liability.

Diokno, the complainant’s legal counsel, immediately filed a motion for reconsideration, asking that the administrative case be reinstated and that all be charged with murder. As of last July, the lawyer says, there was still no update on the preliminary investigation that started in 2006. “Preliminary investigation,” he notes, “is just step one and it has taken four years already.”

Case delays foster impunity, he adds. Naturally, says Diokno, officials would hardly be discouraged from engaging in illegal acts if it takes, say, a decade minimum for a court decision to be rendered on a case.

Not fully staffed

For sure, though, part of the difficulty that impedes the speed of the Office in handling complaints is the fact that these involve complex issues. More often than not, these result in multiple cases that require tremendous amounts of field investigation and preparation. Former Ombudsman Marcelo himself says that prosecutors and investigators are thus overloaded with cases. This, he continues, has a profound impact on the quality and speed of investigation and prosecution work.

The Office’s own 2008 annual report also cited as difficulties its much leaner personnel complement compared to other agencies, as well as what it said is its meager allocation from the national budget. Gutierrez said in the report, “(It) has always been a source of wonder how we had gotten by considering the nature and extent of our responsibilities, and, most of all, the public’s expectations of us.”

Then again, the General Appropriations Acts in the last seven years show that the allocation for the Office of the Ombudsman has been increasing significantly. In fact, the Ombudsman now enjoys triple the budget it used to receive seven years ago. From P392.08 million in 2003, its allotment jumped to P647.54 million in 2005. This figure more than doubled in 2009, reaching P1.33 billion.

Official data also show that a considerable chunk of the Office’s budget has been going to employee salaries and benefits as the agency’s staff grows in number. But this has not meant that the Office has a full complement of personnel.

According to the latest information from the Ombudsman, more than half of the 2,177 authorized positions were still vacant as of June 2010. Out of the total plantilla items of 700 for investigators and prosecutors – both of whom form the backbone of the agency – only 297 had been filled up as of July 2010, says Assistant Ombudsman Jose de Jesus Jr. in a written reply to queries submitted to the Office by the PCIJ.

The Office, says de Jesus, had stepped up its recruitment efforts. But he says that since the Ombudsman is covered by the Salary Standardization Plan, which sets a uniform compensation level for almost all government agencies, the Office’s pay scale appears to be too low to attract lawyers. He even says, “We are losing some of our lawyers whom we have trained through the years because they are lured by the tempting offers of some private and government corporations.”

Such offers could only be really generous ones. According to the Ombudsman’s human resources division, the salary of a lawyer for an entry-level position corresponds to salary grade 26, or P42,639 a month. A lawyer who has been in practice for two decades, meanwhile, says that current starting salaries for lawyers in private firms are between P30,000 to P35,000. But he hastens to add that there are extra benefits, such as a car plan, in the bigger firms.

Mercy most generous

Yet Ombudsman officials and personnel are hardly wanting in benefits themselves. The Office’s own statements of income and expenses show that its ‘additional compensation’ grew by 268 percent from just P4.73 million in 2004 to P17.40 million in 2008. Both representation and transportation allowances also rose by more than 300 percent from just P12 million in 2004 to more than P50 million in 2008. ‘Other bonus and allowances’ posted the highest increase at 383 percent from P4.62 million to P22.32 million during the same years.

“Compared to other Ombudsmen, Madame (Gutierrez) is very generous,” comments an employee of the Office who declines to be named. “She knows the needs of her employees and she takes care of them well. So she gave a lot of bonuses.”

The insider says that Gutierrez gives bonuses whenever the school year starts. She also gave P20,000 to all employees when Typhoon Ondoy struck in 2009. Moreover, the employee recalls that Ombudsman personnel have received bonuses worth a month’s salary around the time of Gutierrez’s birthday, although not always every year.

Villa-Ignacio adds that there was one instance when Gutierrez even gave a ‘bonus’ when an impeachment case was filed against her and another when the case was dismissed. Employees referred to their windfall as ‘impeachment bonus,’ he says, so much so that someone remarked, “Sana every year merong impeachment (I hope an impeachment case is filed every year).”

The Ombudsman, however, remembers that particular ‘bonus’ differently, and refers to it as “financial assistance.” In another written reply to PCIJ’s queries, it says that this “assistance” was extended “to alleviate the plight of its employees from the unstable prices of basic commodities.” The Office also says, “(It) has nothing to do with the cases filed against the Honorable Ombudsman.”

‘Bonus’ or ‘assistance,’ the Office was legally in the clear in giving it. The General Appropriations Act says that constitutional offices – among them the Ombudsman — can use savings in their respective appropriations for certain purposes. These include the hiring of contractual and casual personnel, payment of extraordinary and miscellaneous expenses, commutable representation and transportation allowances, and fringe benefits for officials and employees.

Rewards & perks

In addition, constitutional commissions and offices enjoying fiscal autonomy are also authorized to formulate and implement the organizational structure of their respective offices and to fix and determine the salaries, allowances and other benefits of their personnel in accordance with the rates and levels authorized under applicable laws.

Villa-Ignacio also says that he has nothing against the bonuses, which the employees could well need. But he says, “They should also be motivated to work… reward for work…but reward for impeachment dismissal? It doesn’t seem good.”

He is unhappy as well over Gutierrez’s decision to discontinue the merit-based award system mandated by the civil service in which the performance of lawyers and non-lawyers are evaluated for purposes of yearly award and recognition.

Instead, he says, Gutierrez subsequently offered programs such as gardening, flower arrangement, cosmetology, massage, and ice cream- and siomai-making. These programs, says Villa-Ignacio, do not send the right message to employees especially to young and idealistic lawyers who should be encouraged to do better in prosecution.

An Ombudsman employee says that there is still evaluation of employees’ performance, albeit for the purposes of productive incentive pay and civil-service requirements instead of rewards.

The Office itself says that it last conferred ‘Best Employee Awards’ to 108 of its personnel in 2007. “Presently,” it says, “it is not being implemented because the existing Program on Awards and Incentives for Service Excellence (PRAISE) has been subjected to review and a new PRAISE has been adopted. Copy of the new PRAISE was forwarded to the Civil Service Commission for approval.”

Assistant Ombudsman de Jesus meantime asserts that aside from “cross trainings,” the Office has implemented “programs for continued improvement and development of investigators and prosecutors with funding from the USAID.”

Best attire award

In July 2008, in her Business Mirror column, Gutierrez explained she had done away with the merit-based award system because it “was exposed to suffer from certain built-in weaknesses that had caused internal disagreements,” and on motion of “a great majority of the officers and staff” who apparently did not win the awards.

In its place, Gutierrez launched a new awards program on the occasion of the Ombudsman’s 21st founding anniversary that year. She wrote, “I have begun giving rewards to our personnel who dressed up the best in Filipiniana attire during our Monday flag ceremonies. This is in line with the Civil Service Commission’s attempts to boost nationalism among us Filipinos.”

She also raved: “And yes, we do have a veggie garden now. It is located at the back of the main office. It provides a good diversion to the high-pressure job of the office, and enables our personnel to take home very fresh produce that is good for their health. It is also our humble contribution to the environment and we are very proud of it.”

But Ombudsman employees have been enjoying more than fresh vegetables and bonuses. According to the Office’s 2009 annual report, its Human Resource Management has extended scholarship to deserving Ombudsman personnel, and “spearheaded the provision of livelihood trainings to OMB employees and their dependents.”

These included, the report said, “free training programs on practical vegetable gardening, making novelty items and other fashion accessories, soap-making, candle-making, perfume-making and the like…which OMB employees may utilize to improve their economic conditions.”

The gardening project, de Jesus also explains, is a temporary activity while the lot the Office purchased for a building annex remains vacant. He says, “(It) is actually an environmental awareness program covering the processing of organic waste vis-à-vis the zero-waste program, use of the processed waste or compost as fertilizer and the planting of organic vegetables.”

“It was not intended to conflict with their job,” says de Jesus. “(All these) were just part of the Ombudsman’s continuing concerns for the lowly paid employees of her office.”

Yet aside from livelihood-enhancement activities, the Ombudsman has seen after the medical and dental needs not just of its 1,000-strong workforce but also of their dependents.

The agency reported that in 2009, it administered and funded “438 annual medical examinations; sugar, cholesterol and triglycerides examination of 1,773 employees; administration of anti-flu vaccine for 650 employees; administration of pneumococcal vaccine for 516 employees; and administration of cervical vaccine for 1,122 employees and dependents.” – PCIJ, February 2011