'Parking' fee? Fault lies in Ombudsman setup
MANILA, Philippines (UPDATED) – They are our anti-graft warriors, people entrusted by the Constitution to make sure that corrupt public officials are held accountable for every misused peso.
The Office of the Ombudsman, where these graft warriors work, has multiple layers to make sure there are sufficient checks and balances that can ward off bribery attempts by defendants. But is this setup backfiring instead and causing corruption?
No less than Special Prosecutor Edilberto Sandoval indicated so when he told the Judicial and Bar Council (JBC) on June 20, when he was being interviewed for the post of Ombudsman: "Some senators told me in private talks that there is a 'parking' fee which [is] being given by moneyed people." (READ: The search for the next Ombudsman)
The "parking" fee, according to Sandoval, is given to investigators to delay the resolution of cases.
Delays in cases are crucial. In the past two years, the Sandiganbayan dismissed close to a hundred cases filed by the Office of the Ombudsman because it took too long investigating, thus violating the rights of the accused to a speedy disposition of cases.
This has marred the last few years in office of Ombudsman Conchita Carpio Morales who is retiring on July 26. High-profile cases such as those on the fertilizer fund scam and the P6-billion Philippine National Construction Corporation (PNCC) controversy, for instance, were dismissed because of inordinate delay.
"We are investigating the matter very closely. It's our suspicion, we have no evidence, but we wonder why before cases are resolved, it would take two years or 3 years for them to resolve a mere motion for reconsideration. To be a good Ombudsman, you must be suspicious," Sandoval said, adding that he and Morales had discussed the problem.
While Morales acknowledges the “rumors” of a parking fee, she said that no one has actually come forward with evidence that graft investigators had extorted money from them.
“There's one instance. It involves a mayor in Luzon. They said that the Ombudsman and the investigators exacted P30 million. So I asked this complainant to come up with evidence to show-cause. Wala. Ano lang daw, narinig lang daw niya. It's hearsay. Ang yabang. (None, the complainant said they just heard it. It’s hearsay. It was so arrogant.) The way it was stated, it’s like it's a fact,” Morales told Rappler in an interview.
The "parking" fee was attested to by another Ombudsman applicant, veteran defense lawyer Edna Herrera Batacan.
Batacan worked as a prosecutor at the Ombudsman before she switched to private practice where she represented high-profile personalities like former first gentleman Mike Arroyo, Janet Lim Napoles, and even President Rodrigo Duterte.
"That office has become a graft office. I'm a victim also, I know for a fact how it operates. Inordinate delay is contrary to the speedy disposition of cases. They have such a thing as 'parking' fee in that office, when the case is filed and it's just under preliminary [investigation], they will say okay, I will just keep it on hold, for resolution, keep it on hold then you pay me 'parking' fee," Batacan said.
At one point, she even admitted to being involved in a P50,000-payoff just for a simple inquiry into the status of a case. Former justice Jose Mendoza, a member of the JBC, called her out on it.
"You have to please your client. Hindi nga po rules 'yun, but you have to give in to your clients. Sabi nila tumugtog ka nang tugtog nila. Eh di tumugtog ka, para matapos lang 'yung mga [kaso ng mga] kliyente," Batacan said.
(You have to please your client. Those are not the rules, but you have to give in to your clients. They said you have to play the same music they play. You have to do that, just to end your clients' cases.)
Mendoza told her: "Kawawa naman ang judicial system, kung gano'n (In that case, isn't our judicial system pitiful)?"
"Ay talaga pong kawawa, kaya nga po (It is really so pitiful, that is why) I am stepping in," Batacan said.
Reacting to Batacan's allegations, Morales does not mince words.
“You know, it's parang sampal sa mukha na sasabihin nila na there's a lot of corruption (It’s like a slap in the face for them to say there’s a lot of corruption). Come on, come up with evidence. You say you are corrupt, come up with evidence. If you are party to corruption, you are corrupt yourself,” Morales said.
The Office of the Ombudsman has an Internal Affairs Board that investigates its officials and personnel.
"We had meted out disciplinary action and secured convictions against several errant Ombudsman employees, both high and low. We are firm outside, but we can be even firmer inside," Morales said in a speech on May 8.
Sandoval said the payoff likely occurs during the investigation process, which is handled by two units: first, the fact-finding team, and then the Preliminary Investigation and Administrative Adjudication Bureau (PIAAB).
There may be other units who can monitor or step in during the investigation, and the process may sometimes differ with simple cases forwarded to trial courts and not the Sandiganbayan.
But to explain it simply, the case is first handled by fact-finding investigators. The fact-finding investigators file a complaint with the PIAAB and its counterparts in the Luzon, Visayas, and Mindanao bureaus. The PIAAB recommends either dismissal or indictment which is ultimately decided on by the Ombudsman.
When the case is filed in court, that's the only time the Office of the Special Prosecutor (OSP) comes in to prosecute the case.
There are two concerns at this stage:
- The investigating units may have already been exposed to corruption.
- The OSP may sometimes disagree with the findings of a case that they have to win in court.
"In my talk with the Ombudsman, it would seem that her position is still that the Ombudsman is not concerned with the defense. But as prosecutors, before prosecuting the case, we must also consider the possible defense of the issues," Sandoval said.
Several insiders told Rappler that this has been a long-standing sentiment, especially when prosecutors are scolded by justices over a case that they did not sufficiently build up. Because the investigators are not the litigators, there is a disconnect.
"Sometimes, the justices would tell my assistant special prosecutors, you did not allege one element of the crime... and I'll say, the Ombudsman is not concerned [with] the investigation of cases about possible defense," Sandoval said.
Morales does not accept this criticism.
“It's non-sequitur to say that if you don't have any experience in litigation, you are not competent in the same manner that even if you have thousands of years of experience, it's non-sequitur to think that the person is competent,” Morales said.
She added: “[Investigators] come up with an investigation report, it is passed upon by their superior. The superior recommends or disapproves and then from there, it goes to the director and then it goes to so and so. Now, why? There are judges who have no experience in litigation. Does that apply to them too? That does not follow.”
Morales defended the setup, saying that they cannot afford to involve the OSP in every investigation because of the thousands of cases that come their way.
“Lalong wala silang time for the cases that they have to prosecute in courts (All the more that they will have no time for the cases they have to prosecute in courts),” Morales said.
Plans for the future
"There must be close coordination between the Ombudsman and the OSP," Sandoval said, when asked what his priority would be if he gets the post.
Morales' 7-year roadmap put importance on ensuring the "survival" of their fact-finding cases. She said their efforts in this aspect resulted in an all-time high conviction rate of 77% in 2017, a dramatic increase from a mere 41% when she took over in 2011.
Morales admitted, however, that the success of an anti-corruption campaign is not measured by convictions, but by how far the system has deterred wrongdoing. Preventing corrupt acts in the first place is better than punishing the corrupt.
"Holistic approach means trickling it down to the local governments, which just like national agencies, are also vulnerable to corrupt acts and transactions," Morales said in her May 8 speech.
She added: "We are the preacher, all the more we are expected to observe and display a higher moral ascendancy. Approaching the final months of my 7-year term, I can say that there had been great strides in the area of prosecution, but it is not the work of a single hand, it is the product of the pillars of the justice continuum." – Rappler.com