An Ombudsman with balls

Impeached Chief Justice Renato Corona’s gamble has clearly failed. Seeking to turn the tables on his accusers by attacking the premise of the alleged ten million dollar deposits in his bank accounts, he had his lawyers summon Ombudsman Conchita Carpio-Morales as hostile witness. Since the Supreme Court had already imposed a TRO on any probe on his foreign currency deposits, he probably thought that the Ombudsman has no solid evidence, and that he can bombard the public with his convoluted legalese and cry fishing expedition.

But as it turned out, this strategy was a monumental blunder. It may be too soon to say that it’s all over, but in the public’s eye, it really is. The Ombudsman’s evidence was beyond incriminating: Transaction records of the Chief Justice’s accounts, based on a 22-page report from the Anti-Money Laundering Council (AMLC), show around thirty million dollars in withdrawals alone. The movement of the money implies that the chief magistrate was involved in either money laundering or foreign exchange trading and speculation. More importantly for the impeachment court, these millions were not declared in his Statement of Assets, Liabilities, and Net Worth (SALN).

Clearly taken aback, chief defense counsel Serafim Cuevas tried to block the Ombudsman’s PowerPoint presentation. But the senators knew better; they didn’t want a second envelope redux. For Justice Cuevas, it was arguably the worst cross-examination ever in his long career as a brilliant litigant. For Chief Justice Corona’s handlers, it was a horrible PR nightmare.

But the horror, it seems, is shared by many politicians. The Ombudsman’s actions have wide-ranging implications for them.

Ombudsman Carpio-Morales obtained the supposedly confidential information by merely asking the AMLC for it. How could this be, asked Senator Allan Peter Cayetano, when the AMLC had refused to share the bank records of the unlamented Gloria Macapagal-Arroyo when the Senate Blue Ribbon Committee asked for it? The AMLC had said at that time that a court order is needed to share the said information.

The answer is obvious, and the fact that a lawyer like Senator Cayetano had to ask this question boggles the mind. Both the Constitution and the Ombudsman Law empowers the Ombudsman to seek even confidential information from any government instrumentality, sans court order, in the course of her investigation. Other officials like senators don’t have the same powers.

The famously feisty Senator Miriam Defensor-Santiago, however, expressed apprehension. She “juxtaposed” the Ombudsman’s powers with the Anti-Money Laundering Act (AMLA), which states that the AMLC would have to find probable cause first before it submits information to the Ombudsman and recommend appropriate investigation. But even this should have been a no-brainer, and I think the senator was just being KSP when she raised this.

First of all, the AMLA processes apply only to the AMLC and not to the Ombudsman. If it is the AMLC that detects something fishy, it would have to go through the AMLA-mandated steps of determining probable cause first before proceeding. But if it’s the Ombudsman who detects irregularities in bank transactions, she doesn’t need to wait for the AMLC to declare probable cause; she can obtain the information from AMLC and proceed with her own investigation. Secondly, and this is something even a sixth grader knows, the Constitution, which grants the Ombudsman motu proprio power to investigate, obviously trumps mere statutes like the AMLA and the Foreign Currency Deposits Act (FCDA).

Senator Defensor-Santiago further asked: “Are you of the opinion that should somebody file a complaint against any senator or member of the House, you can go straight to AMLC, and ask for records without going to the court or without waiting for probable cause to be found by the council itself?” Obviously, the answer is yes. And the implication is that, well, all public officials are at the mercy of a very powerful constitutionally-mandated graft-buster. No crooked official is safe.

It’s a shocker, I know. Even the senators were shocked by the precedence set by Ombudsman Carpio-Morales’ actions. Who could blame them? Previous ombudsmen had been very timid in excercising the wide-ranging powers they actually had. It’s the first time the Philippines is seeing an ombudsman who has balls.

Some cynics are pointing out that this might have human rights implications. But what rights would a zealous ombudsman violate? The right to privacy? Public officials are mandated by law to give up, to a considerable extent, their right to privacy. That’s why they are required to file their SALNs every year in the first place. The law puts greater premium on public accountability over flimsy rights of public officials, as it should. Moreover, if these public officials have nothing to hide, why be bothered by the Ombudsman’s wide-ranging powers?

Clearly, the appointment of Ombudsman Conchita Carpio-Morales is one of the best decisions President Benigno S. Aquino III has made. She has given teeth to the heretofore unassertive Office of the Ombudsman. As Ateneo School of Government Dean Tony La Vina said, this has opened a pathway to transparency and accountability never before seen in the Philippines.

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22 thoughts on “An Ombudsman with balls”

  1. Comment from a friend who just graduated from UP Law (and now preparing for the Bar examinations):

    “When I watched her take the witness stand for the first time I thought, “The Philippines can finally see what a working and efficient Ombudsman looks like.” It was very irritating to hear Senator Santiago and Alan Cayetano repeat the same question over and over again. Parang di sila makapaniwala sa nakasulat sa Constitution at sa Ombudsman Act and the fact that AMLC gave the OMB documents they couldn’t reach.”

  2. It’s sad to see another noytard who doesn’t believe in the rule of law or basic facts (oh, but you have a friend who just graduated and will soon prepare for bar exams?). The ombudsman proved nothing with her tainted and chaotic testimony except that she has joined the ranks of the noytards whose only goal is to ensure that the Hacienda is given back to the family. I’ll give you another year before you also realise that BS is going to go down as one of the worst presidents in Philippine history, no small achievement in a nation best known for electing thieves and murderers to most of its political offices.

  3. The two Senate Judges ( Santiago & Cayetano ) was blinded with the “Bulls Eye”,.. YES !.. of the Ombudsman- Carpio-Morales, from their too much inquiries, “the Solid-Wide Power of the Iron Lady” ex-Justice member and a Lawyer, and the word NOTED!..naduro sila ng harap-harapan, maaaring “worried”-kinabahan pa, baka, ang “reaction”-KARMA ng pagtatanong, ay tuma-ma sa kanila, ng 360-degree !..With the presence of the Ombudsman at the Impeachment Court, brought HOPE for a “real-nearly change in the JUSTICE SYSTEM of the country”..President Pnoy must have knew the cleanliness, honesty and transparency of the Ombudsman, why he allowed her (for him ), to take the Oath of Office, as President of the Philippines..Mabuhay ang pagtu2wid ng landas ng Bansa !

  4. Another comment from the said UP Law friend:

    “The Ombudsman was meant to have broad powers when it comes to investigation of crimes related to graft and corruption, whether on its own initiative or started by a complaint. There was a complaint. Actually, there were 3 complaints.

    “If you read the Constitution, the Ombudsman Act, the amendments to the Act, the implementing IRR of the Ombudsman Law and their other internal memorandum, you’ll see that Carpio-Morals followed the rules of procedure regarding the handling of complaints filed with their office.

    “There was due process. She wrote the Chief Justice. If she wanted to violate due process she would have gone on with the preliminary investigation (in this stage akin to an accused na ang CJ) but she didn’t. They are still in a ‘case build up’. Kaya nya inuulit-ulit yun is so she can emphasize that she is not finished gathering evidence yet -from either side. It’s just that according to the CJ, bago maging witness si Morales, wala syang bank accounts kaya siguro he never responded to the letter sent to him by the OMB.

    “The reason the OMB is given so much invasive investigatory powers, kasi nung kinopya natin yan sa ibang bansa, natuwa yung framers sa thought ng isang public official na hindi pwede ma-hinder to find out the truth, kahit pa about sa pinakamataas na official ng bansa.

    “So yes, she can knock on the door of any government agency to ask for documents in pursuance to the filing of a verified impeachment complaint against a public official. It’s her job.

    “The right to privacy of a public official regarding his assets and liabilities is minimal. He sheds off his right when he assumed a public office. If the OMB is not allowed to look behind the accuracy and veracity of the SALN, pano nya maco-confirm kung may ill-gotten wealth ang mga public officials? Buti nga thorough sya sa trabaho nya.”

  5. If only the Ombudsman would investigate all corrupt public officials, and not just political opponents of the present administration, our country might actually get somewhere. But right now, we have an Ombudsman appointed by the President, going after a particular political opponent of the President, unbridled by procedural rules (e.g., a court order to obtain confidential information). Do we really want this?

    1. Well, the thing is not one of the President’s appointees has been linked to alleged graft. The worst offense was buying pirated DVDs. The Ombudsman is going after the Chief Justice only because she received a complaint. If you think there are corrupt Cabinet members, you may file a complaint at the Office of the Ombudsman, and I bet she would initiate an inquiry.

      Please read the blog again. Procedural rules were never violated. That court order requirement doesn’t apply to the Ombudsman, since the Constitution empowers her to obtain said information sans order from courts.

      Ombudsman Conchita Carpio-Morales has a spotless forty-year record in government. She has never been unfair as Ombudsman too. If she really is trying to please the President, why did she dismiss the plunder case against Gloria Macapagal-Arroyo on the sale of Ilo-ilo airport?

      1. Also, please refer to the previous comment of my friend from UP Law. Her thesis was about the Ombudsman’s powers. She said:

        “There was due process. She wrote the Chief Justice. If she wanted to violate due process she would have gone on with the preliminary investigation (in this stage akin to an accused na ang CJ) but she didn’t. They are still in a ‘case build up’. Kaya nya inuulit-ulit yun is so she can emphasize that she is not finished gathering evidence yet -from either side. It’s just that according to the CJ, bago maging witness si Morales, wala syang bank accounts kaya siguro he never responded to the letter sent to him by the OMB.”

  6. Exec. Sec. Paquito Ochoa and his 40 milion peso mansion in White Plains. Press Sec. Ricky Carandang and the purchase of top-of-the-line Macbooks for his whole staff. DOJ Sec. de Lima and her inaction on the Panamanian accused of raping a 19-year old Filipina. Political adviser Llamas and his AK-47. Do I need to go on?

    The Ombudsman’s office can investigate on its own without need for a complaint. So why no investigations on these matters?

    Let’s not kid ourselves that the full force of the law applies equally to everyone.

    1. I give you an A for your attempt to find fault at the Cabinet officials. But I don’t think any of these qualifies as graft, and there is no probable cause for the Ombudsman to investigate. Secretary Ochoa can afford that mansion, being one of the owners of San Jose Builders, Inc. Secretary Carandang has already explained those Macbooks; they are needed for the specialized tasks of his staff at the PCDPSO. Secretary de Lima was just pointing out that that Panamian diplomat has immunity, and although I thought she should have found a way to skirt the Vienna Convention, that inaction does not constitutes graft.

      At any rate, why don’t you file a complaint against these officials?

    2. Also, if Ombudsman Carpio-Morales is really just going after the political opponents of the President, how come she dismissed the plunder complaint against Gloria Macapagal-Arroyo regarding the sale of an Iloilo airport? How come she degraded one complaint, the one that involves ZTE, from plunder to graft? I think these are impeccable proof of the Ombudsman’s independence.

  7. Good article. Thank you for the info re Cayetanos question. I didn’t realize how completely off the senator was when he confused what the AMLA and the Ombudsman can do.

  8. My inexpert guess is that since no precedent has been set by a former Ombudsman, the law on the office’s powers, its scope and depth, are alien to many an expert lawyer. Ironic because the Philippine Constitution was meticulously written to the very last detail, while USA’s merely relies on the intent and interpretation of judges. I personally believe that this is a milestone in Philippine Governance and sets a good example to all Filipinos.

    Earlier, the CJ gave his testimony about the legitimacy of his wealth and the legality of withholding his dollar accounts. He made a lengthy speech of his innocence, but in the end, excused himself from the proceeding before a cross examination was conducted.

    Erstwhile lawmaker Teddy Boy Locsin’s commented on the Justice’s testimony and said that he saw the latter’s speech as victory and that his only loss was walking out of the plenary hall. I think it’s safe to say that CJ opting out of the cross examination was done in bad taste. It may not have been ill-conceived for the Jusctice though because it seemed like he didn’t have a choice. A case of out-of-the-pan-into-the-fire, so to speak.

    I digress, but if memory serves right, my professor in Philippine Governance taught us that all kinds of investigation by both houses of Congress are in aid of legislation. Does the same hold true for an Impeachment Trial or is the Senate given special powers solely for the purpose of impeachment? Although adjudication is for decision-making, it still is, to an extent, a form of investigation. Your thoughts Mr. NutBox? Thanks.

    1. Well, basically the Congress has two functions: To legislate and to check the Executive and the Judiciary. Congressional investigations are mostly in aid of legislation, but they can also be an exercise of Congress’s check-and-balance powers. Impeachment is the highest form of these powers, the ultimate check on the other branches, so to speak.

      I’m not sure if I agree that the impeachment process is also an investigation. I believe, however, that the impeachment process is, to a certain extent, a policy-making exercise as much as it is a judicial one. This is why, in my view, the basis of the senators’ verdict doesn’t have to be strictly based merely on the articles of impeachment but also on the more general question of whether it is in the interest of the nation for the accused to remain in office. Hence, it is inherently a political process.

  9. I completely agree. I actually doubted my own statement but went ahead to make the question relevant. But thanks. How do you think the proceedings will end?

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