THE OFFICE OF THE OMBUDSMAN:

Is there institutional weakness?

Transparency and Accountability Network

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The Office of the Ombudsman: Is there institutional weakness?
Transparency and Accountability Network
15 January 2009

The current office of the Ombudsman finds its roots in efforts by previous administrations beginning
President Elpidio Quirino's, to establish bodies that assist citizens in their complaints against
government excesses, most of which had been offices under the Office of the President. During
President Marcos' regime, the Tanodbayan (a forerunner of the current Ombudsman) and the
Sandiganbayan were constitutionally created under the 1973 Constitution.

Under Article XI of the 1987 Philippine Constitution entitled “Accountability of Public Officers,” the
Ombudsman is identified as a key government institution that enforces public accountability among
public officials. To fulfill this, the Ombudsman has five major functions: 1) to investigate anomalies
and inefficiency in government, 2) to prosecute graft and corruption cases, 3) to conduct administrative
adjudication of cases involving government excesses, 4) to provide public assistance, and 5) to
implement graft prevention programs. (www.ombudsman.gov.ph)

The powers of the Ombudsman were further expanded in the 1987 constitution with guarantees of
independence—appointment of Ombudsman and deputies do not need Congressional confirmation; the
Ombudsman and deputies have fixed terms during which their salaries cannot be diminished; the
Ombudsman and his deputies can only be removed from office by impeachment; and fiscal autonomy.
Then followed was the passage of Republic Act 6770, which provided for the functional and structural
organization of the office. Under the said law, the Ombudsman is organized in the following manner:

(www.ombudsman.gov.ph)
As of December 31, 2007, the Ombudsman has 964 personnel, the distribution of which is as follows:
49% to the central office, 16% to the Office of the Special Prosecutor, 10% to the Ombudsman-Luzon,
9% to the Military and Other Law Enforcement Office (MOLEO), 8% to the Ombudsman-Mindanao
and 8% to the Ombudsman-Visayas. (Ombudsman, 2008)

The Ombudsmen that have served thus far are Conrado Vasquez (1988 to 1995), Aniano Desierto
(1995 to 2002) and Simeon Marcelo (2002 to November 30, 2005), who resigned for personal health
reasons. Following Marcelo's resignation, Merceditas Guiterrez who served as Department of Justice
undersecretary and Chief Presidential Legal Counsel was appointed by President Gloria Macapagal
Arroyo as Ombudsman. (www.ombudsman.gov.ph)

Is the Ombudsman doing its job?

The Ombudsman is dubbed 'protector of the people' and by its mandate, it should “act promptly on
complaints filed in any form or manner against officers or employees of the Government, or of any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations, and enforce their administrative, civil and criminal liability in every case where the
evidence warrants in order to promote efficient service by the Government to the people” (Section 13,
R.A. 6770). Further, it is directed to “give priority to complaints filed against high ranking government
officials and/or those occupying supervisory positions, complaints involving grave offenses as well as
complaints involving large sums of money and/or properties.” (Section 15, R.A. 6770) In this, the
Ombudsman's performance can be gauged by its capacity to prosecute (measured by the conviction
rate) and its relations with the public.

The Social Weather Stations (SWS) through its yearly enterprise surveys tracks business groups'
perception on the sincerity of select government offices in fighting corruption. The Office of the
Ombudsman has been rated accordingly:

Year Net Sincerity Ombudsman

Rating (Very/
Somewhat
Sincere –
Somewhat/ Very
As shown, the Office of the Ombudsman (OMB) was most
Insincere) popular during Marcelo's leadership, exhibiting 'moderate'
sincerity in fighting corruption. Under Gutierrez' leadership,
2000 -5 Desierto
however, the Ombudsman's anti-corruption efforts are found
2001 +7 to be 'mediocre'1. During Marcelo's leadership, one of the
2002 n.a. key programs that the OMB undertook was to strengthen its
Marcelo prosecutorial arm through trainings and recruitment of
2003 +21
additional staff2. Gains from this effort were seen with the
2004 +28
immediate increase in the conviction rate3 of the
2005 +22 Ombudsman from a mere 6% to 14% or over a hundred per
2006 +6 cent improvement in performance. (Monsod, 2004) These
Gutierrez gains have spilled over to Gutierrez' administration. The
2007 +9
2008 +4
Ombudsman's conviction rate in 2007 is 55%. (Ombudsman,
2007)
1 The Social Weather Stations ratings of net sincerity are as follows: 'very good' for over +50 net rate, 'good' for +31 to
+50, 'moderate' for +11 to +30, 'mediocre' for +10 to -10, 'poor' for -11 to -30, 'bad' for -31 to -50, 'very bad' for below
-50.
The following year, however, this has gone down dramatically to 14.43% for the period January to
June 2008. The worst months were March (5% conviction), May (3%), and June (0%). (Visperas,
2008) As of October 31, 2008, the Sandiganbayan disposed 349 cases with only 25 resulting in
convictions, a rate of 7%. This downward trend in public perception and even in the actual performance
of the Ombudsman in its primary function of prosecuting erring public officials paints a dim picture for
the country's overall anticorruption efforts. The Millenium Challenge Corporation (MCC)4 reflects this
in their assessment of the Philippines, showing declining scores in the country's control of corruption -
76% (2007), 57% (2008), and 47% (2009). (Rufo, 2008a) The Philippines remains the number one
most corrupt country in Asia in the 2008 survey of the Political and Economic Risk Consultancy, Inc.
(Bonabente, 2007)

The Ombudsman's dismal performance is further pronounced by its apparent defective actions or
inaction on high profile cases5. The COMELEC-Megapacific case, for instance, has been inexplicably
resolved in two conflicting resolutions (one finding liability of at least one senior Comelec official and
another finding no one liable). On the other hand, the Supreme Court in a separately filed petition by
private citizens decided that the contract between Comelec and Megapacific is null and void with the
attendance of procurement irregularities relating to the purchase of automated counting machines for
the 2004 national elections. (Cerna, 2006; G.R. ) Allegedly also, the Ombudsman's handling of the
Nani Perez' bribery case was deliberately defective. The filing of the case took too long (2 years) and
the complaint is said to be fatally defective thus resulting in the dismissal of the case due to technical
lapses. (Jumilla, 2008) As for the NBN-ZTE deal and the 'Fertilizer scam', the Ombudsman has yet to
come out with its investigation findings and resolutions.

What accounts for the growing unpopularity?

In what seems to be a disappointing performance by the Ombudsman under the stewardship of

Gutierrez, we ask the question why – Is there institutional weakness? Is it a question of leadership? Is
it unlucky circumstances?

The Ombudsman's current institutional capacity is a far cry from Hong Kong's Independent
Commission Against Corruption, which is provided enough resources to ably perform its mandate. It is
only very recently that real actions have been taken to strengthen the Ombudsman through the lobby
work of Marcelo – such as the increase of manpower and financial resources. Still, the Ombudsman's
capacity cannot match the ICAC's in terms of resources.

2 When Marcelo came in, the Ombudsman just had 32 full-time prosecutors. This has increased to 113 prosecutors at
present. (Conde, 2005; Rufo, 2008)
3 Conviction rate is computed as the number of cases that resulted in convictions, including guilty pleas over the number
of decided cases by the Sandiganbayan as brought forward by the Ombudsman. This is not the same as Assistant
Ombudsman Jalandoni's definition (number of convictions over number of dismissals x 100). (Rufo, 2008a)
4 The Millennium Challenge Corporation (MCC) is a United States Government corporation that provides aid to
developing countries, following the principle that aid is most effective when it reinforces good governance, among
others. In this, before a country becomes eligible to receive assistance, MCC looks at their performance on independent
and transparent policy indicators. (http://www.mcc.gov)
5 This includes: a) $2million bribery case involving Gutierrez' former boss, Justice Secretary Hernando Perez, b) P2billion
peso contract between the COMELEC and Megapacific, c) Multi-million dollar deal on NBN-ZTE deal, and d) fertilizer
scam.
Hong Kong (ICAC) Philippines (Ombudsman)
Budget: US$10 to $90 million annually 2007: P825.5 million (from P481.4 million in 2003)
2003: US$90 million or P5 billion Size of bureaucracy (2003): 1.4 million
Size of bureaucracy: 150,000 Staff (2007): 964
Staff: 1,060 Ratio: 1:1,400 civil servants
Ratio: 1:142 civil servants
Prosecution done by another office Prosecutors: 1136 (from 52 prior to 2003)
About 3,000 cases handled annually About 10,000 cases handled annually
Ratio: 1: 88 cases
Workload as of 2008: 20,0007 cases (from 7,695 in
2003)
(www.mbc.com.ph; Ombudsman, 2008)

As earlier noted, institutional changes initiated during Marcelo's time had resulted in improved
performance for the Office of the Ombudsman– e.g. higher conviction rate and improved credibility
(higher net sincerity ratings). Aside from the additional resources given to the Ombudsman, Marcelo
're-engineered' the internal procedures at the Ombudsman, drawing from lessons learned in the
practices of Ombudsmen Vasquez and Desierto. Marcelo decentralized some powers to the deputy
Ombudsmen, retaining a few key powers to ensure check and balance. This delegation of powers has
resulted in efficient handling of cases, without necessarily compromising the integrity of the institution
through sufficient checks and balance in place. Marcelo also recognized the importance of the Office of
the Special Prosecutor and the Field Investigation Office, and thus implemented programs to strengthen
the two offices – recruitment of additional prosecutors (from 52 to 104 in 2003 and 113 in 2007) and
investigators (from 37 to 96 in 2003 and 1588 in 2007) and trainings. Further, as integrity is a key
characteristic looked for in the Ombudsman personnel, screening of applicants was very stringent –
background investigations were thoroughly conducted. (Anonymous, 2009)

With Gutierrez as new Ombudsman, most of these institutional practices/policies have been undone.
Gutierrez centralized almost all decisions – e.g. travel orders, information dissemination,
approval/disapproval on complaints filed by the Field Investigation Office before the Preliminary
Investigation Administrative Adjudication and Monitoring Office (PAMO) – and entrusted approval
powers to Assistant Ombudsman Mark Jalandoni and Overall Deputy Ombudsman Orlando Casimiro.
(Rufo, 2008b; Office Order 20 series of 2006) The Deputy Ombudsmen for Luzon, Visayas and
Mindanao, have been ordered to transfer all pending cases involving governors and vice-governors to
the Office of the Overall Deputy Ombudsman. Even the Ombudsman's official spokesman, Jose de
Jesus, has to seek clearance from the Ombudsman and her 'delegates' before he can do his job as
spokesperson and liaise with media. As a result of this centralized decision-making, conviction rates
have dropped and the staff are demoralized. Gutierrez also strained relations with the Office of the
Special Prosecutor (OSP) headed by Dennis Villa-Ignacio. Allegedly, because of strained relations with
the OSP, a no hire policy was adopted and to which the OSP stands to lose with 36% of prosecutorial
positions vacant. (Rufo, 2008a) Also, through Office Order 22 issued in January 2008, key
subordinates of Villa-Ignacio are directed to report to Gutierrez at least once a week, a rather odd
arrangement, showing clear distrust for the Special Prosecutor. All these moves by Gutierrez toward
the OSP contribute not only to the low conviction rate but also to a public perception of the
Ombudsman as a discordant office and therefore ineffective.
6 Rufo, 2008a.
7 Visperas, 2008.
8 Anonymous, 2009.
Another institutional strength that Marcelo built on during his leadership was the Ombudsman's good
relations with other partner organizations in the fight against corruption (Commission on Audit, Civil
Service Commission, Presidential Anti-Graft Commission, and civil society organizations such as the
Transparency and Accountability Network). The Solana Covenant – a covenant between the OMB,
COA, and CSC – was a celebrated agreement among 'like-minded institutions' towards a more coordi-
nated approach to fighting corruption. It outlined programs of the three agencies that should not dupli-
cate but rather complement and strengthen each other's anticorruption efforts.

When Gutierrez assumed the post as new Ombudsman, the Inter-Agency Anti-Graft Coordinating
Council, composed of the OMB, COA and CSC, was deactivated - as chair of the IAAGCC, she simply
did not convene the council. Because of this, the Ombudsman 'wasted' resources to implementing a
program that was similarly implemented by the CSC - Oplan Red Plate. The result of uncoordinated
efforts is but of course duplication of programs such as the Oplan Red Plate, which should have been a
CSC program under the Solana agreement. (Newsbreak, 2007) Gutierrez' relations with civil society or-
ganizations have also been strained contrary to claims that strategic alliances with CSOs and other
stakeholders have been formed. (Ombudsman, 2008) For instance, the Ombudsman cut ties with openly
critical CSOs such as TAN, unlike during the time of Marcelo, when criticisms from CSOs are appreci-
ated as constructive dialogues. Thus far, TAN has remained outside the Ombudsman's friendly rela-
tions circle.

From the looks of it, the apparent weakness of the Ombudsman as an institution as mentioned above is
the doing of poor leadership. The low conviction rate is explained by a highly centralized system, a
weakened Office of the Special Prosecutor, and a demoralized staff. This and bad relations with other
anticorruption organizations contribute to the bad image of the Ombudsman and thus its growing un-
popularity.

References:

Rufo, A. (2008) “Campaign vs graft slips as Ombudsman rift worsens,” retrieved January 8, 2008 from
http://www.abs-cbnnews.com/nation/12/20/08/campaign-vs-graft.

Rufo, A. (2008) “Ombudsman conviction rate dips, staff demoralized,” retrieved January 14, 2008
from http://newsbreak.com.ph/index.php?
option=com_content&task=view&id=5097&Itemid=88889051
Visperas, E. (2008) “Probes & Trials: Ombudsman looking into 20,000 cases,” retrieved January 8,
2008, from http://www.newsflash.org/2004/02/hl/hl107699.htm.

Monsod, S. (2004) “Quiet attempts at good governance,” retrieved January 14, 2008 from
http://www.truthforce.info/?q=node/view/455.

Conde, C. (2005) “A Hong Kong outsider aids a troubled Manila,” retrieved January 14, 2008 from
http://www.odiousdebts.org/odiousdebts/index.cfm?DSP=content&ContentID=13021.

Bonabente, C. (2007) “RP ‘Most Corrupt’ in Asia – PERC,” retrieved December 17,
2007, from http://services.inquirer.net/print/print.php?article_id=54661

Jumilla, L. (2008) “Impeach rap looms vs Ombudsman Gutierrez,” retrieved January 14, 2008, from
http://www.abs-cbnnews.com/nation/11/26/08/impeach-rap-looms-vs-ombudsman-gutierrez.

Cerna, T. (2007) “The Nagging Issue of the Comelec-Megapacific Case” in TAN Annual
Report 2006, Kayumanggi Press, Quezon City, Philippines

Ombudsman (2008), 2007 Annual Report, Quezon City, Philippines.

Anonymous (2009), Ombudsman insider. Interview. 01.08.09. 2009, Cerna and Dela Paz.

www.ombudsman.gov.ph

Newsbreak (2007), “Ombudsman Goes Solo,” retrieved January 14, 2009 from http://newsbreak.-
com.ph/index.php?option=com_content&task=view&id=3739&Itemid=88889375