Indexes

ON CORRUPTION
Fighting corruption in the Philippines is like trying to kill

an elephant with a flyswatter.
Atty. Simeon V. Marcelo, former Ombudsman of the
Philippines
BASIS FOR COMPARISON
Indonesia and the Philippines share a number of other
important characteristics.
Politically, both countries experienced long periods of
authoritarian rule that were characterized and sustained
by rent-seeking and systemic corruption. The Marcos
dictatorship in the Philippines lasted 14 years, from
1972 to 1986, while Soehartos authoritarianism
endured for 31 years, from 1967 to 1998. Similarly, both
authoritarian governments collapsed following popular
protest movements fuelled by widespread anger
against massive corruption and its precipitating role in
economic crises. Moreover, both countries equally saw
a burst of pluralism during their respective transitions
from authoritarian rule. Numerous political parties
formed, civil society organisations mushroomed, and
media channels multiplied. Today, both countries are
characterised by strong chief executives, with relatively
weak bicameral legislatures, and a robustly
decentralised local government sector.
Economically, both Indonesia and the Philippines are
lower middle income countries. Indonesias Gross
National Income per capita in 2008 was US$1,880
while the Philippines was US$1,890 (World Bank
2009). Their political economies are likewise similar in
terms of the persistence of neo-patrimonial practices,
where the structures and systems of modern
government mask the practices and patterns of
patronage and corruption. The respective transitions to
democracy of both countries failed to dismantle the
family-focused, clan-oriented, and region-sensitive
ways that dominate politics and economics in
interlocking ways.
In terms of corruption, both Indonesia and the
Philippines are considered among the more corrupt in
Asia. Both score very low in various indices such as
Transparency Internationals Corruption Perceptions
Index and the Word Banks Control of Corruption
indicator. (Indonesias ranking, however, has improved
in recent years compared to the Philippines, in part
because of the work of the KPK.) When the KPK and
the Ombudsman were established (in 2003 and 1988
respectively), both faced similarly high levels of state
capture as well as grand and petty corruption.
Bolongita, Emil P. An Exception To The Rule?. U4
Anti-corruption Resource Center Issue. August
2010: p. 7
SUCCESS OF KPK
In just five years, the KPK has successfully prosecuted
over one hundred senior officials that before would
have been considered as untouchable by their
positions and prominence. To date, the KPK has yet to
lose a single case, either at the anti-corruption court or
at the Supreme Court where the guilty verdicts of the
TIPIKOR are appealed.
2010: p. 10
FAILURE OF OMBUDSMAN
With the notable exception of former President Joseph
Estrada who was convicted of corruption in
extraordinary circumstances (after he was already
ousted from office), the Ombudsman cannot point to
any high-ranking official that it has convicted and
imprisoned for corruption.
While an exception, the conviction by the
Sandiganbayan of former President Estrada for
corruption in September 2007 was a major
achievement of the Ombudsman during the tenure of
Simeon Marcelo and Special Prosecutor Dennis VillaIgnacio. Estrada was found guilty of plunder and
sentenced to life imprisonment. The conviction was
made possible in great part by the fact that
Ombudsman Marcelo and Prosecutor Villa-Ignacio
worked closely to marshal the strong evidence
presented during Estradas impeachment trial and
make a compelling case at the Sandiganbayan. This
evidence, it should be noted, was unearthed not by
Ombudsman
2010: p. 10
WHAT OMBUDSMAN CAN PROSECUTE
The Ombudsman can prosecute most public officials,
including the military, except for those officials that are
removable only by impeachment, as well as members
of Congress and members of the Judiciary. This means
that officials of two of three main branches of
government the legislature and the judiciary are out
of the reach of this agency.
2010: p. 13
INVESTIVATIVE POWERS: OMBUDSMAN v KPK
The KPK essentially has all the investigative powers of
a law enforcement agency, while the Ombudsman does
not. The KPK can, on its own accord, conduct wiretaps
on suspects, examine their bank accounts and tax
records, freeze suspects assets, issue hold orders and
make arrests. The Ombudsman cannot wiretap, it
cannot examine bank accounts or freeze assets, and it

cannot make arrests.
At best, the Ombudsman can conduct surveillance but it
can only use still cameras, not video recording
equipment. Video recording evidence, in so far as it has
audio characteristics, is proscribed under the
Philippines anti-wiretapping law and thus inadmissible
in court.
2010: p. 14
PROSECUTION: OMBUDSMAN v KPK
When KPK investigators and prosecutors agree that
they have a strong case to prosecute before the
TIPIKOR, their case undergoes a three-stage panel
review conducted by the KPK commissioners. The
commissioners role is to challenge the proposed case
strategies in order to ensure that each case filed is
winnable. Only when a case has successfully gone
through these panel reviews will it be approved by the
Commission for prosecution at the TIPIKOR. This level
of preparation of the KPK contributes to the efficiency of
the court as the prosecution is able to proceed
methodically without seeking postponements in the
trials.
2010: p. 14
OPERATIONAL COMMUNICATION: OMBUDSMAN v
KPK
At the Office of the Ombudsman, investigators and the
prosecutors do not even coordinate with each other
prior to the decision to prosecute or not. Unlike the
KPK, Ombudsman investigators and the prosecutors
are located in different buildings in different parts of
Quezon City. But this physical distance is only part of
the Ombudsmans incongruous arrangements in its
investigative and prosecutorial functions. Unlike in the
KPK, procedurally, Ombudsman investigations do not
take into account prosecutors inputs.
It is the investigators, not the prosecutors, which make
the recommendation to prosecute. The investigators
recommendation is proposed directly to the head of the
Office of the Ombudsman the Ombudsman himself
who alone makes the decision to proceed or not. If the
Ombudsman decides to prosecute, the case is then
forwarded to the institutions Office of the Special
Prosecutor.
2010: p. 14
The Ombudsman prosecutors pursue whatever case is

handed to them by the Ombudsman. They do not play a
role in the decision to prosecute. This process is a key
problem pointed out by the prosecutors themselves:
they are assigned cases to prosecute without, in their
view, sufficient evidence. They argue that the dismissal
and withdrawal of many Ombudsman cases prior to trial
in the Sandiganbayan is not their fault, but the failure of
investigators who did not gather the required evidence.
2010: p. 14
TO PROSECUTE OR NOT?: OMBUDSMAN v KPK
Specifically, Ombudsman prosecutors argue that the
decision of the investigators to recommend prosecution
only utilizes the criteria of probable cause (i.e.
investigators are only asking is there evidence to show
that the accused probably committed the alleged
offense?). From their perspective, the decision to
prosecute needs to apply more stringent criteria (i.e.
investigators should be asking does the evidence
prove guilt beyond reasonable doubt?). Because the
investigators provide evidence that only show probable
cause, Ombudsman prosecutors contend the
defendants can, more often than not, sow reasonable
doubt and get their cases dismissed. This disconnect
could probably be bridged if the investigators and
prosecutors would communicate with each other. More
importantly, this issue might be resolved if the
Ombudsman let the prosecutors, not the investigators,
make the determination and recommendation to
prosecute. This would entail changing an internal rule
that is within the authority of the Ombudsman to
amend. However, to date, the policies and practices
that divide the processes of investigation and
prosecution at the Ombudsman remain unchanged.
2010: p. 14
CODAL ON DUTY OF OMBUDSMAN
The Ombudsman should "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
(Section 13, R.A. 6770).
The Ombudsman should give priority to complaints
filed against high ranking government officials and/or
those occupying supervisory positions, complaints
involving grave offenses as well as complaints involving

large sums of money and/or properties.
(Section 15, R.A. 6770)
____________________________________________
HOW IS CAPACITY TO PROSECUTE MEASURED?
The Ombudsmans performance can be gauged by its
capacity to prosecute (measured by the conviction rate)
and its relations with the public.
Human Development Network. The Office Of The
Ombudsman: Is There An Institutional Weakness?.
PHDR Issue Number 2. 2008-2009. P. 3.
WHEN OKAY AND WHEN DISMAY
The Office of the Ombudsman (OMB) was most
popular during Marcelo's leadership, exhibiting
'moderate' sincerity in fighting corruption. Under
Gutierrez' leadership, however, the Ombudsman's anticorruption efforts are found to be 'mediocre'.
CASES OF APPARENT ACTION OR INACTION
The Ombudsman's dismal performance is further
pronounced by its apparent defective actions or
inaction on high profile cases.
This includes:
a) $2million bribery case involving Gutierrez' former
boss, Justice Secretary Hernando Perez,
b) P2billion peso contract between the COMELEC and
Megapacific,
c) Multi-million dollar deal on NBN-ZTE deal, and
d) fertilizer scam.
RATINGS OF NET SINCERITY
Year
Net Sincerity
Ombudsman
Rating (Very/
Somewhat
Sincere
Somewhat/
Very
Insincere)
2000
-5
Desierto
2001
+7
2002
N.A.
Marcelo
2003
+21
2004
+28
2005
+22
2006
+6
Gutierrez
2007
+9
2008
+4
The Social Weather Stations ratings of net sincerity are

as follows: 'very good' for over +50 net rate, 'good' for
+31 to +50, 'moderate' for +11 to +30, 'mediocre' for
+10 to -10, 'poor' for -11 to -30, 'bad' for -31 to -50, 'very
bad' for below -50.
PHDR Issue Number 2. 2008-2009. P. 5
WHAT MARCELO DID
Aside from the additional resources given to the
Ombudsman, Marcelo 're-engineered' the internal
procedures at the Ombudsman, drawing from lessons
learned in the practices of Ombudsmen Vasquez and
Desierto. Marcelo decentralized some powers to the
deputy Ombudsmen, retaining a few key powers to
ensure check and balance. This delegation of powers
has resulted in efficient handling of cases, without
necessarily compromising the integrity of the institution
through sufficient checks and balance in place.
IMPORTANCE OF SPECIAL PROSECUTOR AND
FIELD INVESTIGATION
Marcelo also recognized the importance of the Office of
the Special Prosecutor and the Field Investigation
Office, and thus implemented programs to strengthen
the two offices recruitment of additional prosecutors
(from 52 to 104 in 2003 and 113 in 2007) and
investigators (from 37 to 96 in 2003 and 1588 in 2007)
and trainings.
WHAT HAPPENED DURING GUTIERREZ?
With Gutierrez as new Ombudsman, most of these
institutional practices/policies have been undone.
Gutierrez centralized almost all decisions e.g. travel
orders, information dissemination, approval/disapproval
on complaints filed by the Field Investigation Office
before the Preliminary Investigation Administrative
Adjudication and Monitoring Office (PAMO) and
entrusted approval powers to Assistant Ombudsman
Mark Jalandoni and Overall Deputy Ombudsman
Orlando Casimiro. (Rufo, 2008b; Office Order 20 series
of 2006) The Deputy Ombudsmen for Luzon, Visayas
and Mindanao, have been ordered to transfer all
pending cases involving governors and vice-governors
to the Office of the Overall Deputy Ombudsman.
Even the Ombudsman's official spokesman, Jose de
Jesus, has to seek clearance from the Ombudsman
and her 'delegates' before he can do his job as
spokesperson and liaise with media. As a result of this
centralized decision-making, conviction rates have

dropped and the staff are demoralized. Gutierrez also
strained relations with the Office of the Special
Prosecutor (OSP) headed by Dennis Villa-Ignacio.
ANOTHER INSITUTIONAL STRENGTH DURING
MARCELO
Another institutional strength that Marcelo built on
during his leadership was the Ombudsman's good
relations with other partner organizations in the fight
against corruption (Commission on Audit, Civil Service
Commission, Presidential Anti-Graft Commission, and
civil society organizations such as the Transparency
and Accountability Network). The Solana Covenant a
covenant between the OMB, COA, and CSC was a
celebrated agreement among 'like-minded institutions'
towards a more coordinated approach to fighting
corruption. It outlined programs of the three agencies
that should not duplicate but rather complement and
strengthen each other's anticorruption efforts.
When Gutierrez assumed the post as new
Ombudsman, the Inter-Agency Anti-Graft Coordinating
Council, composed of the OMB, COA and CSC, was
deactivated - as chair of the IAAGCC, she simply
did not convene the council.
The Ombudsman 'wasted' resources to implementing a
program that was similarly implemented by the CSC Oplan Red Plate. The result of uncoordinated efforts is
but of course duplication of programs such as the
Oplan Red Plate, which should have been a CSC
program under the Solana agreement.
POOR LEADERSHIP
The apparent weakness of the Ombudsman as an
institution is the doing of poor leadership. The low
conviction rate is explained by a highly centralized
system, a weakened Office of the Special Prosecutor,
and a demoralized staff. This and bad relations with
other anticorruption organizations contribute to the bad
image of the Ombudsman and thus its growing
unpopularity.
OMBUDSMAN BUDGET
The Ombudsmans budget has tripled from P392.08
million in 2003 to P1.33 billion in 2009 during the
administration of President Gloria Macapagal Arroyo,
the wife of Gutierrezs law school batch mate, then First
Gentleman Jose Miguel Arroyo. In five years under
Gutierrez, the Offices budget grew by an annual
average of 21.35 percent, or twice more than the
usually allowed increase in the budgets of most other
government agencies.
On top of this, the Office has also received not less
than $7.2 million or P316 million in four different foreign
grants and assistance, including funds committed to her
predecessor, Simeon V. Marcelo, between 2005 and
2009.
Among the Offices fund infusions from abroad was a
$6.5-million grant that was its share from the $21million Philippine Threshold Program under the U.S.
Governments Millennium Challenge Corporation
(MCC).
Mangahas, Malou and Ilagan, Karol Anne.
Ombudsman Failure, Despite Floods Of Funds.
Philippine Center For Investigative Journalism.
February 6, 2011.
OTHER FUNDS
Before this, the European Union extended a $716,600
grant managed by the World Bank to help the Office set
up its Case Management System software. Until the
close of the project in March 2007, the Ombudsman
never got to use the software, prompting the donors to
cancel a third or $194,838.96 of the grant funds.
Under AusAids Philippines-Australia Human Resources
Development Facility (PAHRDF) from August 2004 to
June 2009, the Ombudsman also received funds to
build its internal capacity and competence for
administrative and service delivery functions.
Then in December 2009, the US Agency for
International Development (USAID) funded two more
projects for the Office: an Integrity Project to focus on
corruption cases in the regular courts, and the second,
in cooperation with the American Bar Association, to
provide technical assistance in identifying, formulating
and lobbying for its priority legislative agenda.
That the Ombudsman has failed to produce more and
better results in its campaign against corruption despite
such windfalls could be traced to issues that money
alone cannot resolve.

February 6, 2011.
MULTIPLE CASES ON SINGLE INDIVIDUAL
Clearly, though, Gutierrez, like her predecessors, would
often file multiple cases against a single individual. This
is why while the 1,210 cases listed by the
Sandiganbayan enroll a total of 4,066 respondents,
these actually involve only 694 persons. Some
respondents are accused of multiple counts of alleged
corruption.
Interestingly, of the 223 cases filed under Gutierrezs
watch, almost all 221 were against one official: the
mayor of Nakar, Quezon, while one each involved an
Iloilo municipal mayor and a Nueva Ecija city mayor.
February 6, 2011.
1000 FILED; 223 CONVICTIONS
In any case, the Sandiganbayans database shows that
the Ombudsman has filed more than 1,000 cases
against senior government officials (with Salary Grade
27 and higher) from the time Gutierrez became the
countrys first female Ombudsman up to December
2009. Of these cases, only 223 cases had resulted in
convictions, or less than a quarter of the total.
February 6, 2011.
CAUSE AND EFFECT OF MULTIPLE CASES
According to Nepomuceno Malaluan, lawyer and
Access to Information Network (ATIN) co-convenor, the
filing of multiple cases depends largely on the
prosecutor, and whether he sees the acts committed by
the accused as distinct or continuing. Distinct acts may
result in multiple cases even if these characterize the
same offense. A continuing act may result in just one
case.
Lawyer Jose Manuel I. Diokno, national chairman of the
Free Legal Assistance Group (FLAG), says that if, for
instance, a public official falsified 100 different
documents, 100 counts of falsification may be filed
against him. But Diokno points out that multiple cases
do not apply to all forms of crime. It depends on the
nature of the crime.
February 6, 2011.
WHATS WORSE WITH MULTIPLE CASES
Whats worrisome about the filing of multiple cases,
says Diokno, is that these may be used to increase the
rate of conviction. Malaluan, for his part, says that

cases could be counted as separate cases in the
computation of conviction rate. For media reporting on
cases, he says, a clarification may only be made such
that the actual number of persons convicted do not
automatically correspond or could be lower than the
total number of case convictions.
Diokno clarifies that multiple cases against one person
for the same offense do not necessarily entail multiple
efforts since trial of the cases is consolidated.
February 6, 2011.
WHAT ABOUT THE MILITARY?
WHEN IT comes to hailing to jail alleged crooks in the
military and police, the Ombudsman practically accords
star-rank officers a mere slap on the wrist.
Only 19 generals of the Armed Forces have actually
been prosecuted for alleged corruption in the 22-year
history of the Office of the Ombudsman.
Of the 19, one and only one, Maj. Gen. Carlos F.
Garcia, was convicted, after pleading guilty to a lesser
offense of bribery, and after securing a plea-bargain
agreement to evade prosecution for plunder.
February 6, 2011.
100% CONVICTION RATE BY KPK
Since it started operating in late 2003, the commission
has investigated, prosecuted and achieved a 100percent conviction rate in 86 cases of bribery and graft
related to government procurements and budgets.
Norimitsu Onishi, Corruption Fighters Rouse
Resistance in Indonesia, New York Times, July 25,
2009.
KPK VISION
The KPK vision is to free Indonesia from corruption. Its
duties include investigating and prosecuting corruption
cases and monitoring the governance of the state. It
has the authority to request meetings and reports in the
course of its investigations. It can also authorize
wiretaps, impose travel bans, request financial
information about suspects, freeze financial
transactions and request the assistance of other law
enforcement agencies. It also has the authority to
detain suspects, including well-known figures, and
frequently does so.
"Vision
and
Mission".
KPK
website.
http://www.kpk.go.id/id/modules/edito/content.php?
id=15
HOLIEST AMONG HOLY?

AS FORMER Ombudsman Simeon Marcelo tells it, he
had implemented the tight security system at the Office
because he had found out that some lawyers who used
to work there were involved in fixing cases. They
would even meet up at the Offices Quezon City
headquarters to do their dirty deeds, he recounts.
Ilagan, Karol Anne. Sanctum Sanctorum?.
February 8, 2011.
PERIOD FOR INVESTIGATIONS AND COMPLAINTS
He [De Jesus] also says there is no fixed period in the
investigation of cases or complaints because of the
various factors involved, such as the complexity of the
allegations, the volume of evidence required, and the
number of public officials/employees accused. He says
that simple cases may take around five to six months to
accomplish, while complex cases may take longer since
the Office observes the policy of filing cases where the
evidence is strong enough to secure conviction.
Ombudsman investigations are always aimed at
presenting a strong case so our inquiries are always indepth, says de Jesus. Although the standard of proof
in fact-finding is only probable cause, the FIO (Field
Investigation Office) investigators always aim at proof
beyond reasonable doubt, or, in an administrative case,
preponderance or substantial evidence. The reason
behind this is to increase the chances of conviction of
an offender.
February 8, 2011.
THE ILLUSION OF GUTIERREZ
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
corresponds to only 196 persons.
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.
Gutierrezs 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.
Mangahas, Malou and Ilagan, Karol Anne. 4
Ombudsman, 4 Failed Crusades. Philippine Center
For Investigative Journalism. February 6, 2011.
CANT CATCH BIG FISHES
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
suit against high-ranking officials or those with Salary
Grade 27 (receiving an annual salary of P446,076),
they all failed to snare convictions.
Mangahas, Malou and Ilagan, Karol Anne. 4
Ombudsman, 4 Failed Crusades. Philippine Center
For Investigative Journalism. February 6, 2011.
PROS AND CONS OF MARCELOS SECURITY SET
So Marcelo had closed circuit television (CCTV)
cameras installed, which he says later helped in
stopping these former employees from continuing with
their illegal deals. Some of these lawyers were even
banned from the Office unless they had a scheduled
hearing, he says.
But part of the system also entails getting a specific
security pass for each floor. This means, says lawyer
Jose Manuel Diokno, someone with transactions to
conduct in several floors has to keep going back to the
front desk to secure a new pass every time his or her
business at one level is finished.
Its simply not a system that would encourage people to
file complaints especially when security personnel are
all over the Office, the lawyer observes. He even
describes the security at the Ombudsman as tighter
than in Malacaang.
February 8, 2011.
NUMBER OF PERSONNEL: OMBUDSMAN v KPK
In terms of number of personnel, the KPK is only about
half the size of the Ombudsman yet it is far more
productive. As of 2008, the KPK had about 580
personnel, while the Ombudsman had over 1,000 staff.
A big factor in the productivity of the KPK is the
composition and capability of its personnel. In this
matter, the KPK and Ombudsman differ sharply.
2010: p. 17
It took us three years to get the evidence. Kaya hindi
masimulan yung preliminary investigation nung kaso ni
former Justice Corona kasi yung documents wala. We
only had the affidavit of the complainant, Mark Jimenez,
and one or two Xerox copy (photocopy) of the alleged
bank account kung saan yung deposit ginawa. But

raising the money and finding the document that will
incriminate the former justice, we did not have the
ability to do that. Ayaw ko namang umalis sa Office na
hindi ko natapos yung first step, which is the
investigation. Like I said, it took us three years to gather
all the evidence. So we should always encourage the
institution of Mutual Legal Assistance Treaty so that it
would be easy to get evidence. Katulad ng case ni
dating Major General Carlos Garcia, because we
already had assistance from the United States, it took
us [only a few months to file the case]. We started in

September, we were able to file the first case on
November, and then we were able to file the plunder
case during March of the following year. Ganun kabilis.
So it all depends on whether the documents are
complete.
Marcelo, Simeon. Talk at the UP College Of Law.
March 3, 2009. https://www.youtube.com/watch?
v=qMWR8w9HJsQ.

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ON CORRUPTION

Fighting corruption in the Philippines is like trying to kill

cannot examine bank accounts or freeze assets, and it

The Ombudsman prosecutors pursue whatever case is

involving grave offenses as well as complaints involving

The Social Weather Stations ratings of net sincerity are

centralized decision-making, conviction rates have

Philippine Center For Investigative Journalism.

rate of conviction. Malaluan, for his part, says that

HOLIEST AMONG HOLY?

a municipal mayor of Iloilo, and a city mayor of Nueva

bank account kung saan yung deposit ginawa. But

us [only a few months to file the case]. We started in

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