Inefficient Ombudsman spurred truth body creation — SolGen

Ombudsman Ma. Merceditas Gutierrez’s alleged ineptitude in prosecuting corrupt officials in the past administration prompted President Benigno Aquino III to create the Truth Commission, the government told the Supreme Court on Tuesday. “The creation of the Truth Commission was spurred by the fact that the Ombudsman seems not effective at all, as shown by its conviction rate and many reported cases of graft and corruption," said Solicitor General Anselmo Cadiz at the resumption of the oral arguments on the petition assailing the creation of the Truth Commission. President Aquino issued Executive Order No. 1 last July 30, 2010 to create the Truth Commission, the body that will investigate the high-profile corruption allegations that hounded former President and now Pampanga Rep. Gloria Macapagal-Arroyo. Retired Chief Justice Hilario Davide Jr. will head the panel. Cadiz said the commission can help the Ombudsman improve its six-percent conviction rate regarding the cases filed at the anti-graft court Sandiganbayan. Arroyo’s allies in the House of Representatives have questioned the legitimacy of the EO, saying it usurps Congress’ power to create public offices and supplants the Ombudsman’s duties to probe public officials. House Minority Leader Edcel Lagman faced the court earlier this month. At Tuesday’s clarificatory questioning, Associate Justice Ma. Lourdes Aranal-Sereno asked Cadiz if the Truth Commission would have still been formed if the Ombudsman had been “properly functioning." Cadiz replied that “if the Ombudsman was as effective as it is mandated to do by the 1987 Constitution, then I agree there may be no need for a fact-finding commission to supplement the work and the low conviction." He also said the truth body was formed to help the Ombudsman increase its conviction rate. But when Sereno introduced the doctrine of state capture in asking Cadiz why there is a need to help the Ombudsman, the solicitor general did not give a definite answer. University of the Philippines law professor Theodore Te, in a text message to reporters, explained the doctrine of state capture as a situation where “a ruling group colludes with private or public agencies to manipulate policy formation and influence laws and regulations to their advantage." “Regulatory agencies are outwardly independent, but actually captured," Te said. Ombudsman Merceditas Gutierrez is currently facing a legal battle against the House of Representatives justice committee, which is hearing two impeachment complaints against her for allegedly protecting former President and incumbent Pampanga Rep. Gloria Macapagal-Arroyo, her family and allies. Earlier in the day, the panel decided to push through with the proceedings even if the Supreme Court has issued a status quo ante order, restoring the status quo before the House panel approved the resolutions that found the two impeachment complaints sufficient in form and substance. Encroaching on Ombudsman's authority? Associate Justice Jose Mendoza also asked Cadiz if the Truth Commission will stop its proceedings if the Ombudsman decides to asserts its authority to probe corrupt government officials. Cadiz, in response, pointed out that the Ombudsman may have the primary jurisdiction, “but it does not have exclusive jurisdiction." “I don’t think it’s within the Ombudsman’s powers to stop a fact-finding body from doing its work," he added. Associate Justice Jose Perez later said the commission’s tasks may encroach on the Ombudsman’s duties. “What I'm pointing to is there might have been a constitutional transgression on the constitutional duties of the Ombudsman [in that] the provisions in the Truth Commission are significantly the same as the powers mentioned in the Presidential Decree creating the [functions of the ] Ombudsman. In other words, there might be a constitutional encroachment on the constitutionally-vested powers of the Ombudsman," Perez said. Cadiz denied this. “There is no transgression, no encroachment," he said. “We will be allowed to do the duties as stated in the EO. But looking at the six-percent conviction rate, would we now put everything to the Ombudsman to do the [investigation]?" he added. Tough grilling by Carpio Aquino’s Executive Order No. 1 has cited the Revised Administrative Code (Executive Order No. 292) as the basis for the Truth Commission's creation. The code says the President has the authority to reorganize his office. But in the oral arguments, Cadiz said Presidential Decree 1416, as amended by PD 1772, also supports the creation of a body like the Truth Commission. The decree authorizes the incumbent president to reorganize the national government, which is composed of the executive, the legislative and the judiciary in the central government, not in the local government. But Carpio later said Cadiz was erroneous in citing the decree because it was issued by former President Ferdinand Marcos in 1978, at the time the government was about to transition from presidential to parliamentary. “PD 1416 was enacted to prepare the transition from presidential to parliamentary. Would you agree that PD 1416 should not be considered anymore upon the ratification of the 1987 Constitution? We have to point out that [in the] PD, the president does not need Congress anymore...," said Carpio. Cadiz replied in the affirmative upon Carpio’s questioning. The justice then said: “I’m now glad you have agreed not to use this [PD 1416] as basis for EO 1 because this is not needed to come up with a fact-finding body." Carpio also grilled Cadiz for saying that the Truth Commission is a public office when it is merely a fact-finding body supervised by the Office of the President. “It is not a public office. The existing members are existing public office-holders," he said. The magistrate also lectured Cadiz for confusing the president’s powers to create an office and to control one. “So now you stated that the president has control over the Office of the President, and because of that he can create. That doesn’t include the power to create public office. That is different from the power of control of the president. You are mixing it up!" Carpio said. Velasco’s questioning Associate Justice Presbitero Velasco also grilled Cadiz for citing Section 37 of the Revised Administrative Code as the basis of the Truth Commission’s power to get testimonies and invite witnesses. Velasco said Section 37 doesn’t grant a body like the Truth Commission the authority to get testimonies. “There must be a conferment of that authority to receive evidence... My view is that Section 37 alone cannot be the basis for the president to grant this power to the Truth Commission. There should be a law that confers this power to this particular body, without that you don't have the authority to take evidence," said Velasco. But Cadiz replied: “I think every office under the Office of the President will have that kind of power, as far as investigative powers are concerned." Filing of memoranda The oral arguments lasted for four and a half hours. Chief Justice Corona later ordered parties to the case to file their respective memoranda within a non-extendable period of 12 days. Toward the end of the hearing, Associate Justice Lucas Bersamin also asked Cadiz whether he was part of the lawyers who drafted EO No. 1. Eliciting laughter from the justices and audience, the solicitor general replied: “I do not have the intellectual depth [to be part of the drafters]." - KBK, GMANews.TV