What is the single biggest reform that our country needs to make our government work for all, and not only for the few mighty and wealthy? 

We need to ask this question in view of the active and persistent push for constitutional amendments by Rep. Rufus Rodriguez and Speaker Martin Romualdez in the House of Representatives and by Senator Robinhood Padilla in the Senate. 

A Constituent Assembly or ConAss may just surprise us all, especially if the leaders of both chambers of Congress agree to limit the change to the charter’s economic provisions.

But will amending the economic provisions in the Constitution to allow full or increased foreign ownership in certain key areas of our economy really bring in more foreign investments to the country? Is full or higher ownership the most important consideration for foreign investors to come in?

After years of study on the radical reforms we need, I have come to a strong belief that the biggest and most urgent reform we need is the removal of the power of the President in the appointment of the Ombudsman and the members of the Judiciary, COA, and Comelec, and transferring such power to an independent commission.

This presidential power of appointment is the mother root of corruption in the government – in the executive, legislature, judiciary, and in our society. 

It is the biggest factor that corrupts our justice system, our audit system, and our electoral system. 

It is the root cause of our country’s worsening corruption problem, where we’ve lost at least P1 trillion in public funds every year for the last few years, according to a Deputy Ombudsman.

It is the root cause of why many corrupt national and local officials are not prosecuted and jailed, and enjoy a culture of impunity where they feel untouchable and invisible, for as long as they are allied with the incumbent president.

It is the root cause of why our elections often have highly questionable results. 

It is the root cause of why many foreign investors do not invest in our country, because they do not trust our government system.

In my analysis, this presidential power of appointment is one of the biggest, if not the biggest, stumbling block to our country’s economic development and progress.

Let me discuss each one.

The Ombudsman

The Ombudsman is the country’s chief prosecutor of any and all corruption cases in the government. The Ombudsman is mandated by the Constitution to investigate and prosecute all corruption issues against government officials – from the lowest to the highest.

Under the law, it is the President who appoints the Ombudsman, from a list of nominees prepared by the JBC (Judicial and Bar Council). Confirmation by the Commission on Appointments is not required.

In theory, it looks good that it is the JBC which prepares the list of nominees. However, in reality, the President is always able to appoint the person he wants to appoint as Ombudsman. This is the sad truth in realpolitik. The theory does not work.

Unfortunately, the sense of utang na loob (indebtedness) runs deep among us Filipinos. It often blinds us, sad to say, and blinds even the Ombudsman, and many if not most justices, auditors, and election officials. On most occasions, this sense of utang na loob is stronger than our sense of integrity, meritocracy, fairness, and justice. 

So what happens? When the politicians or government officials with corruption issues are kaalyado, kapartido, kumpare, o kaibigan ng Presidente, nagpipikit-mata o nagbubulagbulagan na ang Ombudsman (allied with the President, the Ombudsman turns a blind eye). I am not referring to any particular Ombudsman, as it has happened in many past administrations.

Our sense of utang na loob is good in private matters. But it is a big curse for our country in government matters.

The judiciary

Under the Constitution, it is also the President who appoints the justices of the Supreme Court, Court of Appeals, and Sandiganbayan, and the judges of all lower courts, from a list of nominees prepared by the JBC. Confirmation by the Commission on Appointments is also not required.

Again, in theory it looks good that the JBC prepares the list of nominees. Unfortunately, as with the Ombudsman, the President always gets to appoint whoever he wants appointed as justices of the Supreme Court, Court of Appeals, and Sandiganbayan. Many congressmen, governors, and mayors who are loyal supporters of the President are also able to get their own people appointed as judges in the courts under their political jurisdictions.

Again, this is the reality on the ground. The theory does not work.

As we have seen in many past administrations, the President may appoint his fraternity brods, lawyers, kumpares, kaibigans, kababayans, o kaprobinsiya (friends, townsmen, or province-mates) to the Supreme Court, Court of Appeals, Sandiganbayan, and Ombudsman, and other courts. 

This presidential power of appointment of the members of judiciary is the biggest reason why our judiciary is widely perceived as so corrupted.

This is the biggest reason why it is publicly perceived that there are two sets of justice in our country – one for the poor and another for the powerful, or one for the connected and another one for the unconnected.

Pag ang may corruption cases ay kaalyado, kapartido, kumpare, o kaibigan ng Presidente, marami sa kanila nagpipikit-mata o nagbubulagbulagan na (When the President’s allies have corruption cases, these justices turn a blind eye). Their sense of utang na loob blinds them, or becomes stronger than their sense of integrity, fairness, and justice.

This is the reason why many corrupt officials in government have become so brazen in their corrupt activities. For as long as they are supporters of the President, they feel protected, untouchable, invisible.

The Philippine Constitution mandates that the judiciary should be independent, a co-equal branch of the executive and legislature, and free from the influence of any government official. But this presidential power of appointment makes it almost impossible to free them from pervasive influence from politicians.

In reality, the judiciary is not truly an independent nor a co-equal branch of the executive and legislature. It is heavily influenced by the incumbent president. The lower judges are heavily influenced by local political leaders. 

The Commission on Audit

The COA is mandated by the Constitution to audit every government unit, office, and agency. It is tasked to audit how public funds and resources are being used by the offices of the president, vice-president, senators, cabinet secretaries, congressmen, governors, mayors, and even barangay officials. 

But the same thing happens here. The presidential appointive power inevitably affects the way COA conducts its constitutional mandate. The deep, distorted sense of utang na loob often clouds the Commission’s members and officials’ sense of integrity, fairness, and justice.

The Comelec

Under the present Constitution, it is also the President who appoints the chairman and members of the Comelec, subject to confirmation by the Commission on Appointments.

As we have seen in the past, a president may fill the Comelec with his fraternity brods, lawyers, kumpares, kaibigans, kababayans o kaprobinsiya (friends, townsmen, province-mates).

This is the root cause why our national and local elections are often highly questionable, perceived by many sectors as not fair, honest, and fraud-free.

Independent Commission

The idea of an Independent Commission to appoint members of the judiciary and other public institutions that guard public interests is not new. In fact, it is practiced in Israel, Denmark, and Germany.

In Israel, all appointments to the judiciary are made by the Judicial Selection Committee established by law in 1953. The law fixed the nine (9) members of Judicial Selection Committee as follows: Justice Minister (chairman); a Cabinet Minister appointed by the Cabinet; two members of the parliament (one from the ruling coalition, and one from the opposition); two members of the Bar Association; the Chief Justice; and two most senior justices.

In Denmark, appointments to the judiciary are made upon the recommendation of the independent Judicial Appointments Council which is composed of a Supreme Court justice, a high court judge, a district court judge, a lawyer, and two representatives of the public.

In Germany, they have six (6) separate federal Supreme Courts (Constitution, justice, labor, social, administrative, and fiscal). The judges of five of the federal Supreme Courts are appointed by an independent body called the Committee for the Election of Judges whose 32 members are fixed by law – 16 are selected by states of Germany, while 16 are selected by the Bundestag (parliament). Half of the 16 judges of the federal Constitutional court are selected by the Bundestag (parliament) and the other half by the Bundesrat (regional states).

The experiences of Israel, Denmark, and Germany show that it is possible to have a truly independent judiciary, free from the control and pervasive influence of the executive and politicians.

In the case of the Philippines, what if the power of appointment over the Ombudsman, members of the judiciary, COA, and Comelec is transferred to an Independent Commission composed of 15 members, each of whom is elected by its respective national organization?

What if the 15 members of said Independent Commission are the following – president of the Association of Retired Justices of the Philippines; president of the Integrated Bar of the Philippines; president of the Philippine Institute of Certified Public Accountants (PICPA); President of the Management Association of the Philippines (MAP); president of the Personnel Management Association of the Philippines (PMAP); president of the Association of Law School Deans of the Philippines; president of the Deans of Accounting Schools in the Philippines; president of the Association of Schools of Government in the Philippines; president of the Association of College/University Student Councils of the Philippines, president of the Governors League of the Philippines; president of the Mayors League of the Philippines; president of the Association of Barangays in the Philippines; and the presidents of the three (3) biggest sectoral organizations in the country.

Let all the mentioned national organizations elect their respective presidents who will sit as members of the Independent Commission. 

This will empower the organizations, and eventually the people. 

Benefits of this reform

This will make the Ombudsman, the judiciary, COA, and Comelec truly independent. They will not be beholden to any sitting president. They will not be vulnerable to the influence of politicians. 

The Ombudsman could investigate and prosecute all corruption activities, including the loyal allies, supporters, relatives, and friends of the President, without pressure from the latter.

The justices and judges would have no pressure from the President in deciding any and all corruption cases, including those affiliated with the President or his/her family and allies. 

The COA could audit and investigate all government offices and agencies, regardless of who are involved. 

The Comelec could conduct elections with more honesty and fairness and ensure that the people’s votes are counted.

If we can implement this reform, there will be so much less corruption in government – not only in the judiciary but also executive and legislative branches. Such reform will stop the culture of impunity and invincibility among corrupt leaders in government. In addition, we will have more fair and honest elections each time. 

As we all know, the corrupt activities of the corrupt government officials spill over to our respective communities, and to our society in general. Many people follow their corrupt ways. Many youth look up to them as models of success. The corrupt government leaders are among the biggest corruptors of our youth in society.

Thus, this reform has the potential of cleansing our society with corruption.

This reform could make our justice system, audit system, and electoral system in the country, work.

This is the most urgent reform our country needs today.

Not the shift to parliamentary-federal form of government, as this does not ensure that the worsening corruption will be solved. Nor amending the economic provisions to allow foreign investments in certain key areas, as it also does not address the corruption problem, nor does it ensure that our government system will work. Banning or regulating political dynasties does not guarantee also that corruption at the local level will go away.

According to Deputy Ombudsman Cyril Ramos in 2019, the nation loses to corruption at least 20% of our country’s national budget every year. In the 2023 national budget, this 20% is P1.07 trillion. But 20% is merely the minimum, according to the Deputy Ombudsman. If the amount goes up to 30%, it is P1.6 trillion. If it goes up to 40%, that’s P2.14 trillion in the 2023 national budget. Some World Bank studies show that corruption in the country sometimes goes up to 35%, even 40%.

The biggest foreign investments that the country ever generated in a year was in 2017, for a total of $10.26 billion (P510 billion). This is much lower than the P1.07T or P2.14T that we can save from corruption this year.

Truly, corruption is the biggest problem we need to address.

A correct diagnosis of the problem is crucial. Otherwise, we could be working on the wrong solution.

I pray that the lawyers’ organizations, like the IBP and the PBA (Philippine Bar Association), as well as the law schools, deans, and law student councils would champion this legal reform. This is the reform that would make the judiciary truly independent from the politicians. This is the reform that could make our justice system fair and just, and respected by our people.

I pray that the business sector, the accountants and auditors’ groups like the PICPA, the good governance champions and advocates, the various churches advocacy groups, and other sectors, would push for this essential, radical reform. 

This essential reform could usher in an era of good governance. 

I strongly believe it is this reform that, if accompanied with stability in economic laws and policies, could bring in the foreign investments we all desire.

I believe it would make our government work even under the present republican and presidential form of government. – Rappler.com

Attorney Alex Lacson is an author of books for the country, and an advocate of good governance and essential radical reforms.