After 22 years, who’s afraid of the Ombudsman?

Last of Four Parts FOUR anti-graft czars and 22 years since its birth on Nov. 17, 1989, the Office of the Ombudsman of the Philippines has failed to strike fear in the hearts of crooks, or summon full respect from the people it is supposed to protect against crooks. All four chiefs of the Office – the late Conrado M. Vasquez, who served from May 1988 to September 1995; Aniano A. Desierto, October 1995 to September 2002; Simeon V. Marcelo, October 2002 to November 2005; and the incumbent Ma. Merceditas N. Gutierrez, December 2005 to November 2012 – had launched their stints as the nation’s top graft-busters with firm, elaborate, hopeful reforms to fight corruption. When the criticisms trickled in – invariably over low conviction rates, perceived partiality toward the presidents who appointed them, and sheer failure to cope with tremendous case loads and send crooks to jail – all four trudged on. What they ended serving up, though, were not better results, but more excuses (Desierto and Gutierrez doing so more than the other two). Criticisms and public censure, in fact, seem to have become par for the course for the Office and its head. But perception is one thing, reality is another. To try to gauge if all the brickbats the Office of the Ombudsman has endured so far is justified, the PCIJ did a careful reading of the database of the Sandiganbayan. Being the record of cases filed and prosecuted by the four Ombudsmen during their terms, the database offers a fair reference of their respective real performances. What it shows is this: all four had rendered largely poor to modestly good performance, against the Ombudsman’s mandate set out in law. Republic Act No. 6770, The Ombudsman’s Act of 1989, spells out this mandate: “The Ombudsman and his Deputies, as protectors of the people, shall 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." To assess the four Ombudsmen’s individual performance in office, the PCIJ mined the Sandiganbayan database to derive their respective “case survival record" or the tally of the total cases each filed during his/her term of office, as well as which of these ended up in the archives, were withdrawn by the prosecutor, dismissed for lack of evidence or with trial, triggered pleas of guilt, and resulted in the acquittal or conviction of the accused. In total, the Sandiganbayan database that covers the period from May 1988 to December 2009 shows that more than 16,500 cases have been filed before the anti-graft court since the Office of the Ombudsman came into existence. To be sure, there is more than one way of looking at the data at hand. Care had to inform the appreciation of the names, the numbers, and case status information enrolled in the database. The cases also often involved more than one accused. Decisions may thus vary for each accused in the same case. As well, the same accused may be involved in a number of cases and receive different decisions for each. In the database, Gutierrez emerges as having the biggest case convictions by number of respondents. From December 2005 to December 2009, under her watch, the Office secured the conviction of 644 respondents. Because several of the same respondents are named in several cases, however, the 644 actually correspond to only 196 persons. In her first four years in office, therefore, it could be said that Gutierrez secured the conviction of 49 persons per year on average, a figure higher than what the database yields for Marcelo, Desierto, and Vasquez, according to the years they served – 40, 32, and 30 persons convicted per year on average, respectively. If the database were mined for only the cases that each Ombudsman filed during his/her term, Gutierrez would still be ahead with 223 case convictions. This accounts for 5.48 percent of the cases filed against 4,066 respondents from December 2005 to December 2009. Her predecessors scored lower: 3.96 percent for Marcelo, 3.19 percent for Desierto, and 4.38 percent for Vasquez. Assuredly, though, speed has never been a strong suit of the Sandiganbayan. On average, the court takes 6.6 years to decide on cases. Thus, six out of 10 cases being handled by the Ombudsman under Gutierrez had actually been initiated and filed by her predecessors. Good, bad results Under Gutierrez, the Ombudsman has filed at least 1,210 cases with the Sandiganbayan. In addition, it inherited a backlog of 1,916 cases that were left pending from the time of Marcelo, Desierto, and even Vasquez. This backlog included the plunder case against former President Joseph Estrada that was filed in April 2001 under Desierto. Estrada was convicted of plunder in September 2007, in Year 2 of Gutierrez’s term, but was eventually pardoned by then President Gloria Macapagal-Arroyo, who inherited power from Estrada after his impeachment trial at the Senate triggered a second people-power revolt. Gutierrez’s number is an illusory picture of good results, however. A closer review of the 223 cases she steered to conviction shows that almost all – 221 cases to be exact – were filed against just one official, the mayor of Nakar, Quezon province. The two other cases involved a municipal mayor of Iloilo, and a city mayor of Nueva Ecija. This is where her score turns most sour: by number of actual persons convicted of corruption, the Sandiganbayan database shows that Gutierrez, in four years, has managed to secure the conviction of less than one senior official per year. In contrast, her three predecessors scored much better in terms of the number of cases they filed during their terms, and the actual number of persons meted out convictions under their watch – 16, 36, and 62 officials per year on average, respectively, for Marcelo, Desierto, and Vasquez. Snaring big fish But when it comes to catching the big fish, the record of all four Ombudsmen is similarly dismal. In this division, all four are cellar dwellers. While they all rushed to file suits against high-ranking officials or those with Salary Grade 27 (receiving an annual salary of P446,076), they all failed to snare convictions. Aside from Estrada and former Armed Forces comptroller Maj. Gen. Carlos F. Garcia – who pleaded guilty of bribery to evade prosecution for plunder – just a handful of officials have been convicted of corruption in the Ombudsman’s more than two decades of existence. During his term, Vasquez filed cases against a congressman, 25 governors, and three vice-governors. Only two governors were convicted in only four of these cases. Under Vasquez’s watch, the rest of the respondents were either acquitted, or their cases dismissed, archived or dropped from information, transferred to other courts, or withdrawn by the Ombudsman’s Office of the Special Prosecutor (OSP). Desierto, meanwhile, had to file suit against Estrada as a logical result of the latter’s aborted impeachment trial in the Senate and Arroyo’s rise to power on the crest of a military-backed civilian uprising against corruption. Aside from the Estrada cases, the Office under Desierto sued six congressmen and 34 governors. Only five of these cases resulted in the conviction of five governors. In recent days, Marcelo and Gutierrez have exchanged dagger looks and criticisms on the Senate floor. But the Sandiganbayan database shows that when it comes to snaring big crooks, they have more commonalities than differences. Both were allies and appointees of Arroyo, and their common record of prosecuting big fish is zero. Marcelo was unable to secure a single conviction in cases the OSP filed against congressmen, governors and vice-governors during his abbreviated term. So far, neither has Gutierrez. Marcelo filed cases against one congressman, seven governors and one vice-governor. All cases are either pending or had been archived or dismissed. Gutierrez, for her part, has filed cases against one congressman, nine governors, and four vice-governors. All cases are either pending or had been dismissed or withdrawn by the OSP. Unique patterns Convictions aside, other unique patterns of performance by the four Ombudsmen emerge from the PCIJ’s analysis of the Sandiganbayan’s database. For instance, the data show that the OSP under Gutierrez has withdrawn from the Sandiganbayan dockets an unusually high number of cases against 881 individuals between December 2005 and December 2009. These cases make up about 22 percent of the total cases that Gutierrez’s Ombudsman has filed against 4,066 respondents in four years. This means that over two in 10 cases that Gutierrez has filed with the Sandiganbayan never even went to trial, indicating a waste of public funds spent in building cases. Of the four Ombudsmen, Gutierrez’s sterling achievement is scoring the highest in terms of withdrawing cases. This, legal experts say, could be a sad commentary on the quality of case investigation, evidence build-up, and prosecution strategies employed by her team. Meantime, of the four Ombudsmen, Marcelo scored the highest rate of case acquittals, by number of respondents: 12.16 percent. This means more than one in 10 respondents that Marcelo sued had been acquitted. Vasquez followed Marcelo in this category with 11.28 percent case acquittals, then Desierto with 10.91 percent, and finally Gutierrez, six percent. If Gutierrez’s dubious accolade is scoring highest in withdrawn cases, and Marcelo in case acquittals, Desierto takes the lead in another category – he beat his fellow graftbusters in terms of the number of cases dismissed by the Sandiganbayan. Under Desierto, the anti-graft court dismissed (or alternately, the Ombudsman lost) cases against a total of 6,749 respondents, the highest number posted by any Ombudsman. This number accounts for 35.17 percent of the total cases that the Office under Desierto filed against 19,189 respondents in seven years. In short, the Office lost in over three of 10 cases it filed during Desierto’s term. The late Vasquez, the first Ombudsman who served from May 1988 to September 1995, is distinctive as well, going by the Sandiganbayan database. Under him, the Office posted the highest rate of archived cases. More than 6,000 cases were archived, or 32.88 percent of the cases the Office filed against 18,354 respondents in Vasquez’s seven years as Ombudsman. Vasquez died on September 19, 2006, 16 days after his 93rd birthday. At the time of his death, he was the oldest surviving former Justice of the Supreme Court. Sonny & The Firm By their political and career records, too, it seems that not one of the four Ombudsmen was (and is) fully and freely unencumbered by a prior history of closeness to the president who had appointed him or her. For instance, Marcelo – like Gutierrez – was initially a close associate of Arroyo, from 2000 to his resignation for supposed health reasons in September 2005. Marcelo was a private prosecutor who handled the star witnesses, bank executive Clarissa Ocampo among them, against Estrada during the latter's impeachment trial before the Senate. Marcelo was a senior partner of what used to be called the CVC (Carpio Villaraza Cruz) law firm or "The Firm." On its website, The Firm boasts of being “the counsel to the Presidents." More accurately, its senior partners had served and helped install two: Fidel V. Ramos and Arroyo. Soon after Arroyo took power from Estrada in January 2001, she named Marcelo her first solicitor-general and blessed other members of The Firm with plum postings. Among them were Avelino Cruz, who served as presidential legal counsel and later defense secretary, and Antonio Carpio, Arroyo’s first appointee to the Supreme Court. The Firm, after all, had spent handsome sums to get Arroyo elected to a full six-year term as president in 2004, the balloting marred by the “Hello, Garci" wiretapping scandal. In the Statement of Election Contributions and Expenditures that Arroyo filed with the Commission on Elections for her campaign in 2004, she named The Firm’s lawyers among her top donors. She said Villaraza shelled out P30 million in cash, while another senior partner, Raoul R. Angangco, put in another P8 million to keep her in Malacañang. The P38 million from Villaraza and Angangco accounted for a fourth of the P152.61 million that Arroyo said she raised and spent on her own. Her party coalition, the 4K or the Koalisyon ng Katapatan at Karanasan para sa Kaunlaran, reported spending another P180.75 million to get its national candidates elected. Ani and FVR Like Marcelo and Gutierrez, personal and political ties could be said to have propelled Desierto to the Office of the Ombudsman. After passing the bar in 1968, Desierto engaged in private practice of the law in Manila and his home province of Cebu until 1974. That year, he was appointed Judge Advocate of the Armed Forces, rising to the rank of deputy Judge Advocate General in 1988. He worked as a special prosecutor of the Ombudsman from 1991 and was installed head of agency by President Fidel V. Ramos in August 1995. Vasquez earned his law degree in 1937 from the University of the Philippines and after a brief period of private practice, joined the Department of Justice, became a trial court judge in 1954 in Manila and Batangas, and a justice of the Court of Appeals in 1973. Vasquez had turned 68 in 1982 when the late strongman Ferdinand Marcos named him Supreme Court associate justice; he had to retire soon after turning 70 in September 1983. By the time President Corazon C. Aquino plucked him out of retirement to head the country’s newly born Office of the Ombudsman, Vasquez was already 75. His daughter Leonora ‘Leny’ Vasquez de Jesus later emerged as the more politically connected family member, serving as chief of the Presidential Management Staff under Ramos, and then as administrator of the National Housing Authority under Estrada. Promises, promises By all accounts, Gutierrez, Marcelo, and Desierto launched their careers as anti-graft czars on elaborate, hopeful promises of reforms and results. Desierto launched his stint as Ombudsman with what he called his “Eight-Point Comprehensive National Anti-Corruption Strategy," that among other things, promised “punitive and retributive method of combating corruption and aggressive imposition of administrative sanctions through “an uncompromising, aggressive and efficient graft detection, evidence build up, investigation and administrative action," and the “speedy and uncompromising Investigation and prosecution of graft cases." In the end, Desierto dismissed charges against President Ramos, who had appointed him as Ombudsman, for his alleged role in what the political opposition called “The Grandmother of All Scams" or the controversial PEA-Amari deal, and in the alleged overpricing of contracts for the Centennial Expo. Like his immediate predecessor, Marcelo as Ombudsman took to starting what he said was a fully comprehensive anti-corruption drive that defined parallel tasks, focus, and activities for other government agencies, civil society, the academe, the bar and the bench, and donor agencies. In March 2005, or just two years in office, Marcelo declared in a conference speech that the Ombudsman had identified “about 50 of the most prominent and high-impact cases at the Sandiganbayan, which involve high ranking government officials who are represented by the best lawyers that money can buy." These “big-fish" cases, he said, included the President Diosdado Macapagal Boulevard case; RSBS Pension Fund Case; PEA–AMARI Scam; Tax Credit Scam Cases; DPWH Vehicle Repair Scam Case; PCGG Cases; and the Maj. Gen. Carlos F. Garcia cases." He vowed to zero in on these cases, with the help of lawyers from the Philippine Bar Association that signed an agreement to volunteer with the Ombudsman. But he would quit his post six months later, invoking health reasons. In a two-paragraph notice to Arroyo, he said he was “physically and mentally exhausted" from working seven days a week. It was under his watch that the cases for bribery and plunder against General Garcia were started but because he had resigned, work on the cases passed on to Gutierrez’s team. Mercy & Gloria As for Gutierrez, her closeness to the Arroyos goes beyond her being a batch mate at the Ateneo de Manila School of Law Class ‘72 of former First Gentleman Jose Miguel Arroyo. A career service executive in the Department of Justice, she was promoted to the post of justice undersecretary by Hernando B. Perez, Gloria Arroyo's long-time political ally. Before becoming Ombudsman, Gutierrez had twice served short terms as justice secretary, as well as presidential legal counsel, and even briefly as acting executive secretary, under Arroyo. Indeed, days to her appointment as Ombudsman, Gutierrez even signed and issued as acting executive secretary, "By Authority of the President," some of Arroyo’s executive orders. Two of the more interesting: Executive Order No. 473, which directed the Department of Energy “to pursue the immediate exploration, development and production of crude oil from the Camago-Malampaya Reservoir" that Gutierrez signed on Nov. 29, 2005, and Executive Order No.471, which directed “the merger of the Board of Liquidators and the Privatization Management Office," on Nov. 17, 2005. Days after signing as Arroyo’s acting executive secretary, Gutierrez was appointed Ombudsman on Dec. 1, 2005 and took her oath the next day. In a speech that day she declared, with a play on her nickname: “I will give mercy to people who should not be charged. But there will be no mercy for people who should be charged." It was a promise that probably rang full of hope for many of her listeners, but which may have jarred the ears of some of her former colleagues in the Arroyo Cabinet. Six months earlier, the “Hello, Garci" wiretapping scandal had broken. At a meeting on June 28, 2005, 12 Cabinet members had prodded Arroyo to break her silence and apologize, or they would quit their posts. Gutierrez was not among these so-called Cabinet “doves". She had opted to side with the so-called “hawks," whose advice to Arroyo was to just stonewall and not admit to anything. – Philippine Center for Investigative Journalism The PCIJ's four-part series of reports on the Ombudsman begins here. The full text of the Office of the Ombudsman's response to the PCIJ's questions here.