JUSTICE SECTOR PEER-ASSISTED LEARNING NETWORK
(JUSTPAL) COMMUNITY OF PRACTICE (COP)
FOR PUBLIC PROSECUTORS
October 1-2, 2012 ∞ Brijuni National Park, Croatia
CONCHITA CARPIO MORALES
Ombudsman
Republic of the Philippines
Greetings
______________ VIPs, other distinguished guests, ladies and gentlemen, a
pleasant morning.
I would like to thank the World Bank, the Ministry of Justice of Croatia,
and The Hague Institute for Global Justice for cordially inviting me to this
gathering of guardians of justice. The Justice Sector Peer-Assisted Learning
Network (JUSTPAL) Community of Practice (COP) provides a fitting venue for
public prosecution offices like the Philippines’ Office of the Ombudsman to share
professional experiences that may provide either a springboard in replicating the
attained gains or a tip-off in deflecting the encountered pitfalls.
2
The Philippine Ombudsman
In a nutshell, the Office of the Ombudsman is the lead anti-graft agency of
the Philippines.
In deterring and detecting corruption, the Office has been
adopting a three-pronged approach: (A) enforcement or punitive (through the
stages of investigation, administrative adjudication, criminal prosecution); (B)
corruption prevention (with the aid of graftwatch units, public finance
monitoring, and corruption vulnerability assessments); and (C) anti-corruption
promotion (through educational initiatives, media campaign and legislative
advocacies).
The Philippine ombudsman structure is unique in the sense that the Office
discharges prosecutorial functions. It has the authority to prosecute criminal
cases before courts and initiate proper action for the forfeiture or recovery of
unexplained
wealth.
Congress
can
neither
abolish
the
office
nor
decrease/withhold its budget, since the office was created by the Constitution1
with express grant of fiscal autonomy. For almost 25 years of its existence
following the restoration of democracy after the 1986 People Power Revolution,
the Office of the Ombudsman has endeavored to fulfill its constitutional mandate
1
Philippine Constitution (1987), Art. XI, Secs. 5-14.
3
to investigate and prosecute incidents of corruption committed by public
officers/employees and conspiring private individuals.
Prosecuting Corruption Cases
As of end of 2011, the Office of the Ombudsman is actively prosecuting
more than 5,000 criminal cases in court.2
The Ombudsman ‘s Office of the Special Prosecutor (OSP) has been
handling around 2,443 criminal cases involving high-ranking officials filed with
the anti-graft court called Sandiganbayan which is entirely independent from the
Ombudsman.
Meanwhile, the Ombudsman’s other prosecution arm called the
Prosecution and Monitoring Bureau (PAMB) has been handling around 2,626
criminal cases involving low-ranking officials filed with the regular courts in
Metro Manila. The figure excludes the number of cases being handled by the
prosecution units of the Ombudsman’s area offices in Visayas and Mindanao.
2
2011 Annual Report of the Office of the Ombudsman.
4
In prosecuting corruption cases, the Office adheres to the inter-related
thrusts of: (i) improved “survival” rate of fact-finding; and the twin goals of (ii)
prioritized disposition of grand corruption cases towards zero backlog. Allow me
to share some initiatives that the Office has adopted:
A.
Importance of Case Build-Up
Survival rate of fact-finding efforts recognizes the fact that a successful
prosecution starts with complete evidence gathering or case build-up. The need
for an enhanced quality of the initial stage of fact-finding investigation or
evidence-gathering is therefore very important.
All completed fact-finding
investigations which recommend the filing of criminal charges must ensure that
the resulting criminal cases shall not be dismissed on demurrer, at the very least.
As a specific measure, the Office adopted an improved assessment of
evidence through the gradual tie-up or integration of investigative and
prosecutorial functions, where Ombudsman trial prosecutors are to be involved in
case build-up as members of special fact-finding panels.
In this way,
investigating teams can better anticipate and assess whether the available
evidence could measure up to the required quanta of evidence of “probable
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cause” in preliminary investigation and “proof beyond reasonable doubt” in
criminal trial.
Collaboration with allied agencies and partnerships with international
bodies are vital.
In April this year, the Office forged a Memorandum of
Agreement (MOA) with the Commission on Audit (COA), the Philippines’
supreme audit office, in initiating the conduct of joint investigations. COA’s
technical expertise in analyzing financial instruments and reports can
Also in
existence is a MOA between the Office and the Philippines’ Anti-Money
Laundering Council (AMLC), which has been in place since July 2005, and
which mechanism had aided in the unveiling of significant data concerning the
questioned assets of the erstwhile Chief Justice of the Supreme Court of the
Philippines. In the international plane, the Office entered into a Memorandum of
Understanding in June 2012 with the Integrity Vice Presidency of the World Bank
to undertake collaborative activities in fraud detection and prevention, among
others. Likewise in the spirit of knowledge-sharing and capacity-building is the
forging of a Memorandum of Understanding on Cooperation between the Office
and South Korea’s Anti-Corruption and Civil Rights Commission.
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Ombudsman
lawyers
and
specialists
are
also
harnessing
their
investigative and prosecutorial techniques in order to adopt the world’s best
practices in the field of anti-corruption. An ambitious project is taking off in
order to enhance specialized investigative capabilities in the areas of fraud audit,
forensic accounting, forensic engineering and environmental assessment tools, to
better handle complex cases involving infrastructure projects, complicity in
environmental degradation, financial transactions and money laundering.
Specifically, the Office, with the help of development partners, has started
training a number of its staff to pass international certification exams. Early this
year, the Office welcomed its first batch of Certified Fraud Examiners or CFEs.
Further, almost 100% of its junior trial prosecutors have undergone the required
Trial Advocacy Program which was developed in partnership with the US
Department of Justice and patterned after the latter’s program at the National
Advocacy Center in South Carolina, USA.
B.
Zero Backlog
Zero backlog seeks to end a culture of delay that erodes public trust. Given
the enormity of the workload passed onto by the previous leadership, the Office
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has implemented certain measures to address this challenge and gain ground in
speedily and judiciously resolving cases.
Pursuant to its charter,3 the Ombudsman gives the highest priority to the
disposition of grand corruption cases or complaints filed against high-ranking
government officials and those occupying supervisory positions, or involving
large sums of money and properties.
Considering its limited resources, the Office cannot achieve this objective
without effectively reducing the volume of non-priority cases (i.e., noncorruption cases, trivial or frivolous cases, and cases which may be referred to
other agencies). That is why the Office entered into operational agreements with
government agencies that discharge parallel functions, for proper referral of
identified non-graft cases or offenses committed not in relation to public office.
For instance, in March this year, the Office forged a MOA with the Department
of Justice (DOJ) to address the allocation of their concurrent jurisdiction4 over
certain criminal cases.
3
4
Republic Act No. 6770 or The Ombudsman Act of 1989.
This is distinct from the concurrent jurisdiction the administrative cases being shared by the Office with, inter
alia, (i) the heads of government departments or agencies, as provided by law; (ii) the National Police
Commission/Philippine National Police, as clarified in the latest MOA; and (iii) the Civil Service Commission,
the MOA with which is pending discussion.
8
Likewise in place is a new set of guidelines on case evaluation and
records management, wherein lawyer evaluators screen and assess incoming
complaints at the initial stage, which may be referred to the DOJ or other
appropriate
agencies
and
which
could
eventually
lessen
the docket.
Parenthetically, the Office is working towards the full operation of a uniform
Complaint and Case Monitoring System (CCMS) which is a computer program
that could monitor and track the case flow.
Parenthetically, the Office is in the process of amending its rules of
procedure and codifying internal regulations, in order to improve or fill in the
gaps, if any, in the systems and processes.
These issuances shall guide
Ombudsman officials, investigators, prosecutors in discharging their functions, as
well the parties and the external public in availing legal remedies.
In terms of prosecution proper, the Offices wishes to share what transpired
in two actual cases.
Case No. 1: The Trial of a Former President
9
Former President Joseph Ejercito Estrada who served from 1998 to 2001
suffered the fate of having to face criminal charges, with the jueteng (a local
numbers game) payoff scandal and the BW Resources stock price manipulation
stories, which series of anomalies eventually led to his impeachment – the first
Philippine President to be impeached by the House of Representatives.
His impeachment trial by the Senate was cut short by the infamous walkout of a number of senators, which impelled what historians call as “People
Power II” in 2001 that eventually led to his acts evincing “resignation” as was
described and stamped with judicial imprimatur by a landmark Supreme Court
ruling.5
Consequently, Estrada was charged before the Sandiganbayan for (i)
receiving gifts and kickbacks from illegal gambling; (ii) converting and misusing
a portion of tobacco excise tax share allocated for one province; (iii) compelling
the country’s public and private pension fund institutions6 to purchase more than
680 million shares of stock in one corporation and deriving sales commission
therefrom; and (iv) accumulating unexplained wealth under a fictitious account
5
6
Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, 353 SCRA 452.
Government Service Insurance System (GSIS) and Social Security System (SSS).
10
name7 in one major bank, with an involved aggregate sum of almost P4.1 billion
or around $95 million.
The Office of the Ombudsman prosecuted the criminal case8 which ended
on September 12, 2007 with a decision finding him guilty of plunder 9 or what is
equally known as “kleptocracy” or “economic treason,” as elucidated in the
court’s decision.
His successor, President Gloria Macapagal Arroyo, eventually pardoned
him, however. The additional irony is that Estrada even vied for the presidency
in the 2010 national elections and still managed to place second. Irony of ironies,
indeed.
Case No. 2: The Plea-Bargaining Issue in a Retired General’s Case
In December 2003, the two sons (Ian Carl and Juan Paulo) of retired Major
General Carlos Garcia, former comptroller of the Armed Forces of the Philippines
(AFP), were detained for failing to declare the $100,000 in their possession at the
San Francisco International Airport.
7
“Jose Velarde” in the erstwhile Equitable PCI Bank.
Sandiganbayan Criminal Case No. 26558, People v. Joseph Ejercito Estrada, et al”
9
Punishable under Republic Act No. 7080 (1991), as amended.
8
11
This prompted a series of investigations that eventually led to the filing in
March 2005 of a plunder case in involving an amount of more than P285 million
against Gen. Garcia, his wife and three sons.
The Philippine Department of Justice and Office of the Ombudsman have
closely coordinated with the US Department of Homeland Security, Immigration
and Customs Enforcement, and the US Department of Justice which granted the
Philippine government’s request for assistance in connection with the prosecution
of Gen. Garcia.
The confiscated amount was turned over to the Philippine
government last year through the combined efforts of the Unites States and the
Philippines pursuant to a treaty between the two countries on Mutual Legal
Assistance in Criminal Matters.
Meanwhile, at the height of the plunder trial on February 25, 2010, a
Compromise Agreement was entered into between the prosecution and the
accused which was submitted to the court for approval. Observations were made
that the concessions in the plea bargain were arguably unfavorable to the state.
Media stirred insinuations of political pressure. Public opinion fueled the debate
over the question of “injured party,” whose consent, under the rules, must be
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secured in plea bargaining. Moreover, the issue on the weight of evidence thus
far presented is betrayed the court’s denial of the accused’s petition for bail.
Upon assumption into office and with prior leave of court, I submitted to
the Sandiganbayan a Position Paper arguing that it is the State that is the injured
party, and that it was premature for the prosecution to concede defeat and
conclude that the evidence against the accused was weak, since the prosecution
has not yet rested its case. The incident on the reconsideration of the court’s
approval of the plea bargaining is still pending with the Sandiganbayan.
From all these upheavals in trial, the prosecution plays a key role in
discharging the enormous responsibility of ensuring that justice is served.
The reality remains, however, that political pressure is always lurking
around every bend and luring people in every turn of events. It will always be
there where opportunity or opportunism calls. Politics will come into play IF one
will allow it. A prosecutorial body can only be as good as the persons who
compose it. Institutional integrity starts with personal integrity.
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In Closing
Author Randall Young writes that fraud is a perpetration of a complex lie.
It is, therefore, the duty of the public prosecutor to untangle this complexity and
forthwith hale the perpetrators to the bar of accountability. In short, the public
prosecutor must defeat the counterfeit.
In this battle against all forms of fraud, we must contend with the reality
that the perpetrators are keeping up with the times and employing the most
sophisticated means of, bluntly speaking, fooling the public. Consequently, it
behooves public prosecutors to arm themselves with upgraded weapons and
superior counter-tactics to crush the enemy.
The toughest weapon to combat a complex lie, however, is truth itself.
With truth you can never go wrong. If you go against the grain of truth by
wittingly ignoring it or willfully suppressing it, your theory of the case will
ultimately crumble.
Public prosecutors armed with competence, courage and integrity can make
a difference in unraveling the truth before the court.
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I am positive that, for its part, the Philippines can chart a unified and
comprehensive reform agenda that can hit the mark in ridding it of the corrosive
elements of corruption and all other crimes and rebuilding the foundations of
good governance and social justice.
All stakeholders are joining hands and
extending that needed push in sustaining the momentum in the campaign to
maintain peace and respect the rule of law.
Eminent judge and author Tom Bingham postulates that “it is in the
observance of the rule of law that the quality of government depends.”10 If we are
indeed serious in good governance, we should similarly be serious in firmly
adhering to the rule of law.
Maraming salamat po. Mabuhay.
10
Tom Bingham, The Rule of Law (2010), p 173.