Mercy’s magical numbers vs crooks

Ombudsman a failure,
despite flood of funds

First of Four Parts

ALLEGATIONS OF millions of pesos given and received as send-off money to a string of Armed Forces chiefs of staff have been traded on the floor of Congress. The charges have been triggered by the trial for plunder and bribery of former military comptroller Maj. Gen. Carlos F. Garcia that has been whittled down to a much-maligned plea bargain deal.

Smarting from the accusations, ex-AFP chief and defense secretary Angelo Reyes has jumped the gun on his accusers by filing a complaint against them before the country’s premier anti-graft body. But few seem optimistic that any case related to the alleged payoffs to military officials would be resolved satisfactorily by the Office of the Ombudsman.

After all, Ombudsman Ma. Merceditas N. Gutierrez herself has repeatedly cited a lack of funds, lawyers, and even time in the face of her Office’s progressively increasing caseload. She also points to these impediments whenever she rails against what she refers to as “recycled criticisms” that have painted her and the agency she heads as prone to bias and inefficiency, among other things.

By all indications, though, Gutierrez has indeed posted the most ineffectual performance yet by an Ombudsman in the anti-graft agency’s 22-year history. But more than just the supposed lack of funds, donor assessment reports show that the stunningly effete record of the Ombudsman’s Office under Gutierrez is the result largely of her own failure as leader and manager.

In fact, far from a pittance, lots of money from foreign donor and the national budget have been the exceptional privilege of the Office of the Ombudsman since Gutierrez assumed her position on December 1, 2005. In the last five years thus, Gutierrez has not been lacking in funds, and has enjoyed access to more money than any of her three predecessors combined, and could afford to hire more than double the number of personnel they had been allowed to get.

Wasted windfalls

The Ombudsman’s 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 Gutierrez’s law school batch mate, then First Gentleman Jose Miguel Arroyo. In five years under Gutierrez, the Office’s 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.

Among the Office’s fund infusions from abroad was a $6.5-million grant that was its share from the $21-million Philippine Threshold Program under the U.S. Government’s Millennium Challenge Corporation (MCC).

Before this, the European Union extended a $716,600 grant managed by the World Bank to help the Office set up its Case Management System software. Until the close of the project in March 2007, the Ombudsman never got to use the software, prompting the donors to cancel a third or $194,838.96 of the grant funds.

Under AusAid’s Philippines-Australia Human Resources Development Facility (PAHRDF) from August 2004 to June 2009, the Ombudsman also received funds to build its internal capacity and competence for administrative and service delivery functions.

Then in December 2009, the US Agency for International Development (USAID) funded two more projects for the Office: an “Integrity Project” to focus on corruption cases in the regular courts, and the second, in cooperation with the American Bar Association, to   provide technical assistance in identifying, formulating and lobbying for its priority legislative agenda.

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.

Turf wars, tensions

This much is apparent in the 158-page final program report of the Philippine Threshold Program that the PCIJ obtained from the MCC office in Washington, D.C. In it, the fund administrators from the Management Systems International and the Philippine government cited various issues behind the failing, listless record of the Ombudsman that seem rooted in the agency’s internal weaknesses, starting with Gutierrez’s own performance as leader and manager.

These included the poor exchange of information within the agency, poor evidence security, “severe internal tensions” between individuals, “turf tensions,” and “leadership (that) is highly personalized.”

For sure, the report acknowledged “a dramatic increase in the reported conviction rate of the Ombudsman,” according to the project’s indicator. Yet, it said, “(The) attainment of the defined target for this indicator did not necessarily relate to work on the fundamental reforms and institutionalization of sound practices that is needed in order to really improve the performance of the Office of the Ombudsman.”

The report also observed, “(The) perception of impunity from serious acts of graft and corruption remains an issue in the overall campaign against corruption. The continued perception of impunity was largely brought by unresolved high-profile cases of corruption such as the Fertilizer scam, NBN-ZTE deal, plunder case against Major General Garcia, etc.”

Using the indicator formula approved for the project, the Ombudsman has claimed stellar “conviction rate” figures, even as these have, in fact, also risen and fallen drastically over the years in roller-coaster fashion.

The formula nets out other numbers that are better barometers of the efficiency, competence, and diligence of the Ombudsman – cases dismissed, withdrawn and archived, as well as those that had resulted in the acquittal of the respondents or remain pending for years.

In its own reports and its replies to PCIJ’s queries, the Ombudsman has cited a record performance in 2008 – the end period of the Threshold Program – when it says it achieved a 73.42-percent conviction rate.

This figure would slide drastically to 33.6 percent in 2009, and further down to 12 percent (according to the Sandiganbayan) in 2010. Still, from 33 percent annual “conviction rate” for January-December 2005, the Threshold Program’s records show that the Ombudsman achieved a cumulative conviction rate of 55 percent from January 2005 to March 2009.

Fudging numbers?

And yet a senior finance department official points out that the Ombudsman did not qualify for further funding under the $484-million Philippine Compact Program, the subsequent grant that the MCC and President Benigno Simeon Aquino III signed in New York last September.

“If they’re (Ombudsman) such a success story, why did it not get any money again?” asks the official familiar with negotiations for donor funds. “Nagkalokohan, kaya ‘di sila binigyan ng pondo (They were fudging, that’s why they weren’t given funds)…They’re just beating the system, that’s why they did not get anything.”

In truth, it was largely in compliance with the project’s indicator targets that the Ombudsman “performed” in the last five years. The skewed formula for computing its “conviction rate” that the project adopted has also been the basis for the Ombudsman’s claim that it has achieved higher and higher rates of conviction from 2006.

The project set the Ombudsman’s target at 40-percent “conviction rate” from a baseline of 30 percent. By the project’s formula, the “conviction rate” is derived thus: number of cases that went to trial resulting in convictions, including guilty pleas, divided by the number of “decided cases” in the Sandiganbayan for the year.  In other words, the formula looks only at the cases decided by the Sandiganbayan (including guilty pleas) that resulted in convictions.

The formula uses this “very small denominator” because the project wanted only to focus on “a subset” of data, according to Leandro Trinidad of the Department of Finance who joined the Project team as monitoring and evaluation officer.

But the formula is an apparent statistical anomaly. It nets out other bigger numbers that should have been included to reflect the quality, diligence, and actual performance of the Ombudsman, such as the number of cases withdrawn by the Ombudsman for lack of evidence or poor investigation, cases that resulted in the acquittal of the accused, and cases dismissed or pending over long periods of time before the Sandiganbayan.

The “conviction rate” indicator for the Philippine Threshold project was originally prescribed as an annual target, or which the Ombudsman must achieve in the year. On motion of the Ombudsman, it was later amended into a “cumulative” target for the 30-month life of the project, allowing the agency to catch up with compliance.

No independent matching

In her reply to some of PCIJ’s queries, Assistant Ombudsman Evelyn A. Baliton says that the formula had been “approved and accepted” by the MCC. And yet in the Threshold Program’s final report, qualified judgment is rendered on how the Ombudsman actually performed despite its having surpassed the project’s set target.

While the agency may have met its indicator target, as defined in the project, the report noted that the databases and formula differ between the Ombudsman and the Sandiganbayan, even as independent matching of data by agencies like the Justice department has yet to be institutionalized.

Institutionalizing such data-matching is necessary, said the report, “for transparency purposes and to prevent the kind of confusion which occurred where there were, for example, differences in the conviction rate reported by the Ombudsman compared with the records and calculations of the Sandiganbayan.”

It acknowledged that while “the matter” – the use and interpretation of different formulas – was supposedly resolved in the project, “the controversy could have been avoided if uniformity of data standards and definitions were established between the Office of the Special Prosecutor and the records office of the Sandiganbayan.”

The report said that absent institutionalized data-matching and “without a very clear understanding of what is being ‘counted’ when one counts ‘cases,’ the data presented can be very misleading.”

Even tallies from the Ombudsman and the Sandiganbayan on just the number of cases filed per year differ. In her written reply to PCIJ’s queries, Baliton herself says in what seems to be a reference to conviction rates, “The Sandiganbayan uses a formula different from ours. For example, the Sandiganbayan includes in its computation cases (that) did not go into trial, like those archived or dismissed for lack of jurisdiction.”

Both the Sandiganbayan and the Ombudsman’s Office generate official summaries of selected statistics. Unlike the Ombudsman, however, the Sandiganbayan’s regular tallies do not include the conviction rate, although it has a count of cases filed, pending, and disposed of.

Withdrawn, refiled

In any case, the Sandiganbayan’s database shows that the Ombudsman has filed more than 1,000 cases against senior government officials (with Salary Grade 27 and higher) from the time Gutierrez became the country’s first female Ombudsman up to December 2009. Of these cases, only 223 cases had resulted in convictions, or less than a quarter of the total.

The Ombudsman, meanwhile, says that from 2006 to 2009, its record of convictions based on the number of cases decided is 910. Its tally is higher than that derived from Sandiganbayan data because it includes cases filed before Gutierrez’s term.

Among these is the plunder case against former President Joseph Estrada that was filed in April 2001. At the time, Aniano A. Desierto was still the Ombudsman. Estrada was convicted in September 2007, the second year of Gutierrez’s term. He would later be pardoned by then President Gloria Macapagal Arroyo.

Clearly, though, Gutierrez, like her predecessors, would often file multiple cases against a single individual. This is why while the 1,210 cases listed by the Sandiganbayan enroll a total of 4,066 respondents, these actually involve only 694 persons. Some respondents are accused of multiple counts of alleged corruption.

Interestingly, of the 223 cases filed under Gutierrez’s watch, almost all – 221 – were against one official: the mayor of Nakar, Quezon, while one each involved an Iloilo municipal mayor and a Nueva Ecija city mayor.

The 221 cases of “usurpation” against then Nakar Mayor Leovegildo R. Ruzol and municipal administrator Guillermo Sabiduria were all filed on March 31, 2006. The Sandiganbayan’s Third Division dismissed all the cases on June 7, 2006.

But on March 31, 2008, the Ombudsman filed nearly the same number of cases again for “usurpation” against Ruzol and Sabiduria. This time, on Dec. 19, 2008, the Sandiganbayan’s First Division convicted Ruzol but acquitted Sabiduria in all the cases.

Worrisome practice

According to Nepomuceno Malaluan, lawyer and Access to Information Network (ATIN) co-convenor, the filing of multiple cases depends largely on the prosecutor, and whether he sees the acts committed by the accused as distinct or continuing. Distinct acts may result in multiple cases even if these characterize the same offense. A continuing act may result in just one case.

Lawyer Jose Manuel I. Diokno, national chairman of the Free Legal Assistance Group (FLAG), says that if, for instance, a public official falsified 100 different documents, 100 counts of falsification may be filed against him. But Diokno points out that multiple cases do not apply to all forms of crime. It depends on the nature of the crime.

What’s worrisome about the filing of multiple cases, says Diokno, is that these may be used to increase the rate of conviction. Malaluan, for his part, says that cases could be counted as separate cases in the computation of conviction rate. For media reporting on cases, he says, a clarification may only be made such that the actual number of persons convicted do not automatically correspond or could be lower than the total number of case convictions.

Diokno clarifies that multiple cases against one person for the same offense do not necessarily entail multiple efforts since trial of the cases is consolidated.

Malaluan adds that it would be up to the defense to file a motion to quash the multiple cases if it sees a possible case of double jeopardy to protect the defendant from being tried again on the same or similar charge.

Bounty of blessings

Fortunately for the Ombudman’s Office, the Threshold Program did not make actual strong performance a requisite for the grant. And so thanks to the program, the Ombudsman has been blessed with all of the following:

  • Physical infrastructure for secured wireless connectivity with 12 servers, 253 computers, and related peripherals, all networked together into a series of local area networks (LANs) and a wide area network (WAN) which joins the enforcement offices of the Quezon City Office of the Ombudsman and the regional offices in Cebu and Davao.
  • Renovated server rooms and management information systems (MIS) rooms.
  • An integrated training program for about 400 prosecutors, investigators, and lawyers (nearly all) that covered 33 seminars with workshops, dialogues and other technical assistance in the Philippines and abroad, or with foreign experts as consultants.
  • A secured and shared information system is now being used by the following Ombudsman offices for official inter-office communications and case research: central Field Investigation Office; central Preliminary Investigation Office; the OSP; the Ombudsman field offices in Luzon, Visayas and Mindanao; and the sectoral office for the military. The Ombudsman uses the system to mine the centralized case inventory database, built on the case inventory system developed through the Ombudsman-DOJ corruption case study. The program also supported a diagnosis of the current records management policies, document and workflows and record-keeping practices of Ombudsman offices. The study pointed out the gaps and weaknesses in tracking records and information on Ombudsman cases and the urgency of having a uniform set of policies and a centralized flow of records. These IT tools are expected to significantly improve coordination and case build-up work of Ombudsman offices, which are geographically separated.
  • Ten kits of surveillance equipment to all investigation units of the Ombudsman including digital still and video cameras, portable printers, laptops, portable scanners, digital audio recorders, and both covert and overt surveillance equipment.
  • A set of counter-surveillance equipment including long-range day and night camera, tactical audio surveillance equipment, and a covert handheld mobile phone jammer for the field investigation unit of the Ombudsman’s central office.

Failed program

And yet up until the close of the Threshold Program, Gutierrez continued to lament over how her Office had to make do with supposedly negligible funds and equipment. This was even though the Office had to forfeit donor money in 2007 because it failed to complete a project on time.

In 2005, the Ombudsman secured an ASEM (Asian Financial Crisis Trust Fund 2) Grant titled ‘Strengthening the Institution of the Office of the Ombudsman” amounting to $716,600 or about P32 million at the time. The program was funded by the European Union and managed by the World Bank office in Manila supposedly for field investigation training and the development of a Case Management System (CMS) for the Office of the Special Prosecutor of the Ombudsman. The grant agreement was dated Sept. 24, 2004 and was closed on March 16, 2007.

Fujitsu Philippines was contracted to develop the system software and in February 2007, at a short demonstration and turnover ceremony, the Ombudsman announced that it was to be nearly completed.

The Philippine Threshold Program had initially been designed to just provide the hardware to complement this software project. But, the program report said, “as later

turned out, the Case Management System was never made effectively operational and significant defects prevented its use.”

“This did not become known and could not have become known until the Project was allowed to do an assessment study mid-2007 in anticipation of providing training and support to implementation of this CMS,” the report continued.

“Given its serious inadequacies,” it said, “including deficiencies in significant functional requirements, the Project was not able to provide additional support to it or to train OSP prosecutors on its use. It was agreed… that as a substitute performance the Project would provide training on MS Outlook, which has numerous features the OSP could beneficially use.”

By then, $521,761.04 had already been disbursed. The donors eventually decided to cancel the program, and the Ombudsman was unable to get the remaining balance of the grant. – PCIJ, February 2011