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Guns-for-hire saloon

First posted 09:54:29 (Mla time) May 25, 2010
Juan Mercado

Cebu Daily News


Disbar the Ombudsman,” retired businessman Zeferino Arroyo Jr. e-mailed from Quezon City. Merceditas Gutierrez thumbed her nose at a Supreme Court order to prosecute those linked to the P1.4-billion Mega-Pacific computer scandal.

Disbarment adds a fourth option to three being weighed by the incoming Aquino government, the 80-year-old businessman argues. All seek to end the scandal of a constitutional public interests defender converted into a legal flak jacket for the outgoing president, her family and cronies.

The three options were: (a) impeachment; (b) forced resignation; (c) legal challenge to term of office, Rep. Erin Taņada (Quezon) told Newsbreak Online‘s Rufo Aries.

They’d address scams that Gutierrez pigeonholed: Joc-joc Bolantes’ P728-million fertilizer scam, the $329-million National Broadband Network scandal and exorbitant ASEAN Summit lampposts, among others.

The Ombudsman’s inaction on sleaze – from rigged bids for World Bank road construction loans to euro generals – embedded fraud, asserted former Senate President Jovito Salonga and 31 civil society leaders. They filed impeachment charges.

A Lower House controlled by Arroyo partisans torpedoed the charges. “Let Ms Gutierrez be,” snapped the First Gentleman. “We were not classmates, merely schoolmates,” he added. “Let her do her job.”

There is a proposal to revisit Sen. Francis Escudero’s legal question on Gutierrez’s stay. The Constitution pegs the Ombudsman’s term at seven years, Escudero argued. Marcelo served for three years. Gutierrez had only four years to act as Ombudsman. Her term, Escudero insisted, expired last October 2009.

It’s not that clear cut, cautions UP professor Harry Roque, an Ombudsman critic. RA 6770 states appointment is for a full term.

Disbarment could be anchored to the Ombudsman’s dogged refusal to implement a Supreme Court decision. Under Benjamin Abalos, the Commission on Elections rigged the purchase of P1.4-billion of Mega-Pacific computers. “Credible, orderly and peaceful elections (were) put in jeopardy by the illegal and gravely abusive acts,” the Court found.

Guiterrez a scoffed at the Court order to get back the money. No one was liable, she ruled. “Where in the world does a major crime occur without a criminal?” asked Viewpoint (PDI/ July 29, 2008) “Onli in da Pilipins.”

Disbarment of a rabid partisan will test a Supreme Court and a new chief justice criticized for partiality for the departing president. “Hit two birds with one stone,” Arroyo urged.

Unless checkmated, Gutierrez would slog for her benefactress well into the mid-term of President Benigno Aquino III. Would that be hand-in-glove with an Arroyo Supreme Court that gave it’s chief justice a “Cinderalla exemption” through a midnight appointment?

Such a scenario retains the Ombudsman as a guns-for-hire saloon, as in the “bad old days” of Aniano Desierto. Yet, it was not always so.

“There’s only one accolade President Arroyo can give Simeon Marcelo when he resigns,” Viewpoint noted on Oct 20, 2005. “That’s to appoint another Simeon Marcelo.”

“Men of talent, vision and rock hard integrity are the rarest of resources. Reforms will hinge on who the President picks to fill Marcelo’s shoes. But ‘the heart of man and the bottom of the sea, are unfathomable’ And the final decision rests with the President.”

What was in the heart of Gutierrez and her patron are now patent. The Philippine Human Development Report 2009 analyzed the track record.

Conviction rates slumped “dramatically to 14.4 percent by first semester of 2008,” PHDR noted. Rates (dipped) to as low as 5 percent in March, then 3 percent in May. It was zero by June. Three months later, only 7 percent of the 349 cases brought forward by the Ombudsman resulted in jail terms .

That slide persisted into 2009. There has been a parallel erosion in public perception of the Ombudsman’s sincerity. A 2004 survey tracked Marcelo’s rating at +24. In 2008, Gutierrez’s work – or lack of it – whittled down the Ombudsman’s rating to +4.

Two weeks before the 2010 election, Marcelo told the Cebu Business Club: Corruption now saps P434 billion yearly. In the first 100 days of office, the new President should create a task force to recover the ill-gotten wealth of the past and present administrations.

Such essential reforms will be derailed if the Ombudsman and other anti-graft bodies – Commissions on Audit and Civil Service and the Sandiganbayan – remain shackled by partisan politics. He fretted over the President’s undue influence on the Supreme Court, CEBU DAILY NEWS reported.

“The plan to file cases against the Arroyo administration with the Ombudsman will look good on TV, radio and newspapers. But unless the Ombudsman is liberated, they’ll just be dismissed.”

Marcelo said he wanted former Sen. Wigberto “Bobby” Taņada to be the next Ombudsman. “If we’re serious about cleaning up corruption, and if you want to have credibility, it’s Bobby Taņada."

“This is the most important appointment Noynoy will make, bar none,” Arroyo e-mailed from Quezon City, “If Gutierrez is ejected, and Taņada is Ombudsman, the cleansing process will start.”

Gutierrez continues to ooze with utang na loob. This is an exquisite Filipino trait. Unfortunately, it can also sell the citizens short.

“Men are often bribed more by their loyalties and ambition, than by money,” Justice Robert Jackson once said.


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Ombudsman unfairly maligned

Philippine Daily Inquirer - 5/26/2010

This refers to the Viewpoint column of Juan Mercado, entitled “Guns-for-hire saloon.” (Inquirer, 5/25/10)

The article does Ms Ma. Merceditas N. Gutierrez, the Ombudsman, wrong because it most cruelly pictured her as in the league of conscienceless individuals who, for a price, monetary or otherwise, would kill or maim or destroy another who may be innocent of any wrongdoing.

“Metaphorical language is a favored vehicle for slander,” said our honorable Supreme Court in the case of Lacsa vs. Intermediate Appellate Court, 161 SCRA 427 (1988).

But Mr. Mercado’s article is not only libelous; it is also a perversion of the journalistic ethic of not reporting as true allegations which have no basis in fact.

In his article, Mr. Mercado cited an alleged e-mail sent to him by one Quezon City businessman, Zeferino Arroyo Jr., purportedly calling for Ombudsman Gutierrez’s disbarment.

We hasten to clarify that the grounds for disbarment are laid down in Sec. 27 of Rule 138 of the Rules of Court, and Ms Gutierrez has not committed any one of them.

As to the allegations of wrongdoing in relation to big-time cases still unresolved or in which no total closure has been had, such as the Mega-Pacific case and the one involving former justice secretary Hernando Perez, incidences concerning them have been raised before the high court whose decision thereon everybody, including the Office of the Ombudsman, still awaits.

But all these allegations of wrongdoing allegedly committed by the Ombudsman, including the Joc-joc Bolante case, have been publicly discussed and publicly answered ad nauseam, and perhaps it might be better that next time around they are not answered anymore.

We would like to ask Mr. Mercado to provide us with the e-mail address of the businessman Arroyo, so that he could be invited personally to visit the Ombudsman’s office and see for himself the progress accomplished during the four years Ms Gutierrez has been in office.

Such progress includes, contrary to what Mr. Mercado’s article said, a higher conviction rate achieved under Ms Gutierrez’s watch. Briefly the conviction rates of the office before she assumed office are: 16 percent (2001), 31 percent (2002), 14 percent (2003), 24 percent (2004) and 33 percent (2005). After she assumed office: 19 percent (2006), 55 percent (2007), 73 percent (2008) and 33.6 percent (2009).

Please request your journalists not to demonize all the time any public servant because it is not doing our country any good. Journalists may come up with reports critical of the official performance of public servants, but these should be backed by facts and figures.

And more, journalists should not write articles in the mode of “etong sinabi sa akin eh, binabato ko lang!” Journalism in our country would be hopeless if journalists write that way, and if they accept inputs from sources whose motives may turn out to be driven by malevolence or bias.

spokesman, Office of the Ombudsman

The curious case of the Ombudsman

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer

THE mandate of the Ombudsman is found in Section 12 of Article XI of the Constitution: “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.”

At the time of the deliberations of the Constitutional Commission there existed a Tanodbayan endowed with broad powers. He was both investigator and prosecutor. The intention of the Commission, however, was to break up these broad powers by separating the prosecutorial function from the function of a “pure Ombudsman who will use the prestige and persuasive powers of his office” to call the attention of government officials to any impropriety in their actions.

The clear intention of the Commission was to create an office for a person of unquestioned integrity; a saint, you might say. His integrity would be such that even one phone call from him should be able to produce results.

I ask my readers how faithfully Presidents have observed this requirement in their choice of Ombudsmen.

Commissioner Jose Colayco further elaborated that what was envisioned was an office which could act in a quick, inexpensive and effective manner on complaints against administrative officials. The system would not require any formal complaint. A complaint could be even by telephone and the Ombudsman would be obliged to investigate and to demand documents from officials concerned. For that reason the Ombudsman would be given stature by elevating his office to the rank of a chairman of a constitutional commission.

How faithfully has this desire for quick and effective action been fulfilled by Ombudsmen past and present?

Furthermore, in order to emphasize the intention that the Ombudsman’s power would not flow from his authority to send people to jail but rather from his moral ascendancy, it was initially meant that he would not be a prosecutor. Commissoner Jose Bengzon described him as a “sumbongero” and Commissioner Ricardo Romulo called him a “busybody” who could initiate investigation on his own. The task of prosecutor would be given to a Special Prosecutor.

The main opponent of this “sumbongero only” proposal was Commissioner Francisco Rodrigo. Essentially, Rodrigo argued that, whereas the existing office of Tanodbayan had teeth, the proposed Ombudsman would be a toothless tiger and an expensive but useless appendage.

Rodrigo’s objection notwithstanding, the proposed office of Ombudsman distinct from a Special Prosecutor was approved. Rodrigo’s lament would later find a receptive ear in Congress and the Ombudsman Act, R.A. 6770, would give prosecutorial powers to the Ombudsman. But where would that leave the Special Prosecutor (who incidentally now claims to being sidelined by the Ombudsman)?

The first major case that reached the Supreme Court about the office of Ombudsman involved the power relation between the Ombudsman and the Special Prosecutor. The harmonization desired by the Constitution regarding powers over corruption in public office was thus: the Sandiganbayan would be the court with jurisdiction over erring public officials; the “people’s champion” function would belong to the Ombudsman; and there would be a Special Prosecutor.

But as to the Special Prosecutor’s power, Section 7 of Article XI says the Special Prosecutor shall perform the functions of the former Tanodbayan (who was both investigator and prosecutor) “except those conferred on the Office of the Ombudsman under this Constitution.”

This led the Supreme Court to conclude 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. Thus 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.

Out of this curious phenomenon has arisen the still more curious situation we have today. The Ombudsman, who by statute has been given control over prosecutorial powers, is being threatened with impeachment on the claimed basis that she has not championed the people’s cause but rather the cause of persons special to her. Meanwhile, the Special Prosecutor, who won fame when he successfully prosecuted former President Estrada, claims that he is being sidelined by the Ombudsman with the support of Assistant Prosecutors aligned with her.

If for nothing else, I do hope that the impeachment of the Ombudsman will reach trial stage so that the dynamics of the inner workings of the Office of the Ombudsman can be fully unraveled.

But then, considering the present composition of the House of Representatives, what are the chances that the impeachment will reach trial stage? Alas, how imperfect our world is!


Despite change in admin, Ombudsman to hang on

With a new administration about to take over, the office of Ombudsman Merceditas Gutierrez on Wednesday night asserted her term ends in 2012, as prescribed by the 1987 Philippine Constitution.

Gutierrez, who was appointed by President Gloria Macapagal-Arroyo in December 2005, would leave her office in December 2012 because the Charter gives her office a fixed term of seven years.

Earlier, Quezon fourth district Representative and Liberal Party spokesperson Erin Taņada told Newsbreak magazine that the looming new administration of Sen. Benigno Aquino III might have to find out ways to appoint a new Ombudsman because of Gutierrez’s perceived close ties to President Arroyo.

The camp of Aquino, who ran using an anti-corruption platform, believes the Ombudsman's office under Gutierrez would put to waste its anti-corruption efforts.

But on Wednesday night, a statement on the Office of the Ombudsman’s website quoted Assistant Ombudsman Jose de Jesus as saying that "those who insist that [Gutierrez’s] term was up already [should] raise the same before the proper forum and not to make a play out of it in the media."

De Jesus added that Gutierrez would only leave if a "competent authority should say her term has indeed ended, they can be sure she will abide and comply with the verdict. Otherwise…the Ombudsman will continue to perform her task…up to the end of her term in 2012."

Section 11, Article XI of the 1987 Constitution provides that "the Ombudsman and his deputies shall serve for a term of seven years without reappointment."

Further, Republic Act No. 6770, also known as the Ombudsman Act of 1989, says: "The Ombudsman and his deputies, including the special prosecutor, shall serve for a term of seven years without reappointment."

Gutierrez, the batchmate of First Gentleman Jose Miguel Arroyo at the Ateneo de Manila University College of Law, has been accused of sitting on controversial cases that involved the First Family. Gutierrez has since denied the allegations.

Her office allegedly tried to protect powerful people connected with the Arroyo administration, such as former Agriculture undersecretary Jocelyn “Joc-Joc" Bolante who allegedly maneuvered the diversion of P728-million in fertilizer funds to the campaign kitty of President Arroyo in 2004. [See: Ombudsman Gutierrez focusing on small fry, ignoring big fish - Marcelo]

In September last year, the House of Representatives’ justice committee, composed mostly of Arroyo allies, dismissed an impeachment complaint against Gutierrez due to insufficiency in substance.

The complaint, filed in March 2009 by Senate President Jovito Salonga and 30 other civil society leaders, charged Gutierrez with betrayal of public trust and culpable violation of the 1987 Constitution in the handling of several controversies involving the First Family and President Arroyo’s allies.

These issues include the Mega Pacific and corruption case against former Elections chair Benjamin Abalos Sr., the World Bank mess regarding the sanctioning of three Filipino construction firms over alleged collusion, and the fertilizer fund scam, among others. — with Sophia Dedace/RSJ/LBG, GMANews.TV

May 29, 2010

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