Department of Justice

Swarming on a target: How is DOJ anti-corruption panel different from Ombudsman?

Lian Buan
Swarming on a target: How is DOJ anti-corruption panel different from Ombudsman?
It's an issue of manpower, says former justice undersecretary Jose Justiniano. But it is also presidential deference, although Justice Secretary Menardo Guevarra said the president 'has given the DOJ a free hand'

President Rodrigo Duterte assigned the Department of Justice (DOJ) to form a panel that would investigate corruption “in the entire government,” even when that is precisely the constitutional mandate of the Office of the Ombudsman.

How is the DOJ panel different from the Ombudsman? Strike teams swarming on a focused target, said Justice Secretary Menardo Guevarra.

“I am thinking of creating several strike forces that will simultaneously attack various corruption-prone agencies,” said Guevarra.

“Maybe the president believes that a composite team swarming on a focused target will be more effective,” added the justice secretary who said that this was the “toughest assignment I have ever received from the President”

Ombudsman has fact-finding powers

Here’s the setup: the DOJ has its organic attorneys headed by undersecretaries and assistant secretaries. It can also tap prosecutors from the National Prosecution Service (NPS), a sub-agency under its wing.

But most importantly, the DOJ has the National Bureau of Investigation (NBI) which has a graft division. It was the NBI which built up the case in the pork barrel scam.

For this panel, Guevarra said the “core group” would be composed of the DOJ, NPS, NBI, Presidential Anti-Corruption Commission (PACC), Office of the Special Assistant to the President (OSAP) and the Anti-Money laundering Council (AMLC). 

The panel would act both on complaints, whether formal or tips, and on its own initiative. Guevarra said they would even look into journalists’ investigative reports.

But the Office of the Ombudsman has this function too.

Not only does the Ombudsman have motu proprio powers, or the authority to act on its own initiative, it also has the Field Investigation Office (FIO) which conducts fact-finding probes similar to what NBI agents do.

However, it may be an issue of manpower, said former justice undersecretary Jose Justiniano who was part of the DOJ-NBI team which investigated the pork barrel scam.

“Ang Ombudsman limited ang manpower nila sa imbestigasyon. Ang FIO nila, iilan lang ‘yun compared sa manpower ng NBI at ng DOJ,” Justiniano told Rappler in a phone interview on Wednesday, October 28.

(Ombudsman has limited manpower when it comes to investigations. Their FIO has fewer people compared to the manpower of NBI and DOJ.)

Presidential deference

Guevarra acknowledged that any findings of their panel would still have to be brought to the Office of the Ombudsman for prosecution. This is another mandate of the Ombudsman through its prosecutorial arm – the Office of the Special Prosecutor (OSP).

If the Ombudsman FIO uncovered anything in its investigations, it would file a complaint with only the approval of its leaders from within the office.

The Ombudsman’s independence is protected by its being a constitutional body with fiscal autonomy, meaning its budget is not entirely at the mercy of lawmakers or even the budget department.

The DOJ-NBI, however, is a political agency by virtue of its being under the executive branch.

“The president has given the DOJ a free hand in filing cases, but if presidential appointees are to be charged, official courtesy demands that the appointing authority be informed in advance,” said Guevarra.

Justiniano said NBI agents are “conscious” if their investigations will target big names.

“Based on my experience ‘nung nasa DOJ ako, that is the ideal situation (that they will not spare even big names) pero hindi ‘yan talaga ang nangyayari. Kahit sino lang? Hindi nangyayari ‘yan,” said Justiniano.

(Based on my experience when I was still with the DOJ, that you will not spare big names is the ideal situation, but that doesn’t happen. You spare no one? That doesn’t happen.)

Justiniano also pointed out that decisions on presidential appointees are appealable to the Office to the President.

“The Task Force shall also invite the Commission on Audit (COA), the Civil Service Commission (CSC), and the Office of the Ombudsman to work together with the Task Force, with due consideration for their independence as constitutional bodies,” said Guevarra. 

Can’t the Ombudsman just add manpower?

“Paano ka magdadagdag ng tao kung wala kang budget? (How do you add manpower without a budget?)” Justiniano said.

The Office of the Ombudsman’s 2021 budget was originally proposed to be P4.6 billion, a slight increase from its 2020 P4.1-billion.

The Department of Budget and Management (DBM) cut it down to only P3.36 billion, despite the Constitution saying that budgets of bodies with fiscal autonomy cannot be reduced from the previous year.

Public pressure

How do we ensure that the DOJ’s investigations remained independent and will spared no one? Public pressure, said Justiniano.

“Malaki ang tulong ng media, kasi halimbawa inembistegahan ang isang malaking opisyal ng gobyerno, kapag natututukan, malaking bagay ‘yun, kahit naman sino ka hindi mo puwedeng i-ignore (ang mga report),” said Justiniano.

(Media plays a big role, because for example if media closely follows an investigation into a high government official, the tight watch is a big thing, because that’s difficult to ignore.)

The Aquino administration’s priority on the pork barrel scam, closely covered by the media, also became a priority of the independent Office of the Ombudsman under Conchita Carpio Morales, opening investigations into a hundred or so lawmakers named in a special audit.

The independence of the Office of the Ombudsman is also reinforced by a standing Supreme Court decision that prohibits the president from imposing sanctions on Ombudsmen or Deputy Ombudsmen.

Duterte, however, blatantly ignored this rule when he fired former overall deputy ombudsman Melchor Arthur Carandang over the investigation into his wealth. – Rappler.com

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.