AMID the rampant misdeclaration or underdeclaration of their Statements of Assets, Liabilities, and Net Worth (SALN) by senior public officials lies a prettier, often overlooked, picture: the few good men and women in high and low positions who follow the law most diligently and truthfully.

To this minority of good SALN filers belong a number of Cabinet members and officials of constitutional commissions. The ties that bind them are a few things. Most came from the private sector or the professions where they founded their wealth. They are political appointees, but until they became part of government nearly all had no history of engaging in party politics or running in elections. Of fairly senior age, most are self-made names with fairly good credentials or work portfolio, even before public office beckoned.

This exceptional few replicate the good example of rank-and-file civil servants who consider filing their SALNs as a most solemn duty. Various media reports on patterns of compliance with the SALN law have celebrated public school teachers, career service personnel, and low-level bureaucrats who submit fully accomplished SALNS every year without fail.

Their compliance with the law has been encouraged in part by employees associations, periodic reminders and review of their SALNs by agency human resource officers, and in the case of public school teachers, risk avoidance. Some public schools have set a firm policy: file no SALN by the April 30 annual deadline, collect no salary for the summer school break.

But trying to assess who filed what kind of SALN can be tricky, in part because those seeking access to SALNs find themselves being forced to go through hoops and red tape.

Faulty SALN filing can actually be a violation of several laws, among them the 1987 Constitution, the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act No. 6713 (R.A. No. 6713), and the Anti-Graft and Corrupt Practices Act or Republic Act No. 3019 (R.A. No. 3019).

According to the R.A. No. 3019, “every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file… a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year.”

In addition, the Constitution says that public officials must disclose to the public copies of their SALNs.

The fundamental law of the land, in fact, prescribes disclosure of SALNs by senior-rank officials. It states: “In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”

Entry, exit SALNs

Transparency, under the Constitution, is a state policy. In Section 8, Article II, the Charter says: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

Indeed, apart from filing SALNs every year, the Constitution and R.A. No. 6713 require elective and appointive officials to also submit what might be called their entry and exit SALNs – the first refers to asset records they must file within 30 days from assumption into office, and the second, to asset records their must file within 30 days after resignation or separation from service.

SALN filers and custodians have just three simple tasks under the law, according to lawyer Nepomuceno Malaluan, co-convenor of the Right to Know, Right Now! Coalition. First, make a truthful declaration. Second, submit such declaration within deadline. Third, file and publicly disclose asset records.

The third is a shared task of both the filer and the SALN custodian, who receives, keeps, and is supposed to share SALN copies to the public, in the manner provided by law. Nonetheless, nothing stops all filers who have copies of their SALNs to share and disclose these outright, on request of the public or the media.

The law spells out the manner of disclosure of SALNs under its section titled “accessibility of documents,” says Malaluan. It provides that SALNs shall be made available for inspection at reasonable hours, and for copying or reproduction after 10 working days from the time they are filed, subject to the payment of a reasonable fee to cover the cost of reproduction and mailing of such statement, as well as the cost of certification.

Right to know

Complementing this duty to disclose is the people’s right to access information in the custody of public agencies that the Constitution also guarantees.

Disclosure is required precisely because SALNs are supposed to serve as instruments of such valued principles as transparency and the people’s right to know on one hand, and accountability and good governance on the other.

SALNs are a tracker document: they fix and plot the wealth of public officials, by type of assets and liabilities and time of acquisition, and from their dates of entry to and exit from public office.

SALNs are a reference document as well: they spell out, or should, the context and links of the wealth of public officials, their business interests and financial connections, and where exactly they might get into real, potential, or perceived conflicts of interest when they decide public policy or award public contracts and funds.

Malaluan says the members of the 1986 Constitutional Commission had set high hopes and standards for the potential of SALNs to affirm all these hallmarks of good governance.

The late Sen. Blas F. Ople, a ConCom member, did not see SALNs as documents that should just be archived or left to rot in the filing cabinets of public agencies. Disclosure of their SALNs, Ople had stressed, should be a bigger and more reasonable expectation of the most senior public officials.

Citing ConCom records, Malaluan quotes Ople as saying, “In a society, it is understood that we have to lead by example and those who have this burden more than the others are the holders of the greatest power.”

“(O)ne of the objectives it wishes to serve is the development of a higher level of ethical practice in the government,” Ople had also said, “so that it is addressed to the public’s right to know, but at the same time it would put all public officers within the compass of a duty to disclose their own conflict of interest when this arises or to make available information, such as statements of assets and liabilities and net worth, as a matter of obligation under this provision.”

Half and half

Far too few have heeded Ople’s words, however. Indeed, President Benigno Simeon C. Aquino III and about half of his two dozen Cabinet-rank appointees filed 2010 SALNs that are largely lacking in substantive facts about when and how they acquired their real assets, as well as the details of their investments and liabilities.

Fortunately, the other half filed fairly to absolutely complete SALNs for 2010, in point of both form and substance.

The good filers include Agrarian Reform Secretary Virgilio de los Reyes, Foreign Affairs Secretary Albert del Rosario, Energy Secretary Jose Rene Almendras, Defense Secretary Voltaire Gazmin, Trade and Industry Secretary Gregory Domingo, Finance Secretary Cesar V. Purisima, Public Works and Highways Secretary Rogelio Singson, Tourism Secretary Ramon Jimenez, Presidential Legal Counsel Eduardo de Mesa, National Anti-Poverty Commission Chairman Jose ‘Joel’ Rocamora, Metro Manila Development Authority Chairman Francis Tolentino, Transportation and Communication Secretary Manuel ‘Mar’ Roxas and his predecessor, Jose ‘Ping’ de Jesus. All of them, except for Roxas, had not sought or assumed elective positions.

De los Reyes even attached his income tax return (Form 1700 of the Bureau of Internal Revenue) and his certificate of compensation tax withheld (BIR Form 2316) for the honorarium he received as professor at De La Salle University’s College of Law for the year 2010.

Civil Service Commission (CSC) Chairman Francisco T. Duque is exemplary for the depth of details of his SALN although it is under his watch that the CSC imposed an exorbitant fee of P200 on requesters for each SALN copy, which is typically all of two to five pages long.

Duque’s SALN for 2010 came with four annexed documents. Annex A listed10 real properties he owns, including the exact unit number of the condominium units and addresses of the houses, the exact months and years when he purchased each, and the amount he paid to the last peso, to acquire each one.

Annex B listed six motor vehicles and the exact years and amounts he paid for each one. Annex C listed five investment instruments he has in three country clubs and accounts in two banks, and the exact months and years when he acquired and opened these.

Annex D listed to the last all his jewelry – including two diamond rings with exact stone setting, paintings by Filipino masters that he identified by name, and when and at what cost he acquired these.

In the Cabinet, Foreign Secretary del Rosario comes closest to the completeness of the details that Duque enrolled in his SALN. For instance, del Rosario submitted a three-page list of his business interests and financial connections from1965 to 2010, as well as the executive and board positions he assumed in each one.

Commission on Elections Chairman Sixto Brillantes Jr. and former Commission on Audit Chairman Reynaldo A. Villar filed fairly complete SALNs as well.

Gaps in access

Filing SALNs is advisedly just the first step in complying with the law. The second step, filing truthful and complete SALNs, is the foremost compliance problem. But even worse, publicly disclosing SALNs promptly and at reasonable cost, the third step, seems the most sticky issue for now, a full 23 years after R.A. No. 6713 came into force.

“The public disclosure element plays a very vital cog in the system of accountability that the Constitution wanted to achieve on SALN,” wrote Malaluan in a recent commentary on SALNs. “But the public disclosure component leaves much to be desired in practice.”

He added that in some agencies, notably the Supreme Court and the House of Representatives, “one mechanism to frustrate compliance is through administrative avoidance.”

“Rather than facilitating the orderly implementation of Section 8 (C) of RA 6713, some government agencies apply instead the general duty, also under RA 6713, to act promptly on letters and request within 15 days from request,” Malaluan wrote. “Any response, including acknowledgement, referral, or indication of future action, is regarded as substantive compliance.”

High court huge barrier

Yet worst of all, Malaluan rued that some major custodians of SALNs, notably the Supreme Court again, the Civil Service Commission, and the Office of the Ombudsman, “have promulgated guidelines that go beyond reasonable regulation of the manner of access, and which appear intended more to subvert the plain, mandatory directive of the Constitution for disclosure of SALNs to the public.”

In May 1989, the high court issued an en banc resolution requiring requesters to state the purpose of the request and outlined the conditions under which requests would be denied. Three years later, in September 1992, the tribunal “issued an even more restrictive guideline authorizing the Court Administrator to act on requests only upon a court subpoena signed by a presiding judge in a pending criminal case against a judge or court personnel, or upon an appropriate request personally signed by the Ombudsman,” Malaluan wrote.

In June 2009 as Ombudsman, Ma. Merceditas N.Gutierrez issued Memorandum Circular No. 1 that, Malaluan said, “limits the legitimate reasons for requests, requires requests to be subscribed and sworn to, and introduces a wide discretion for denying requests for SALNs.” Gutierrez’s circular remains in force under the watch of Aquino appointee, Ombudsman Conchita Carpio-Morales.

And finally, on March 11, 2011, the CSC adopted Resolution No. 100356 requiring SALN requests to be sworn to, and imposing a P200 fee for each SALN copy.

And even as it continues to refuse requests for the SALNs of the members of the House of Representatives that PCIJ filed 20 months ago, the lower chamber is also reportedly planning to adopt the CSC’s guidelines on the disclosure of SALNs.

Should this happen, and the House follows even the CSC’s imposition of a P200 fee per SALN copy, the asset records of nearly 300 district and party-list representatives is sure to cost journalists and researchers a fortune – about P60,000 for all the SALNs of the House members.

Already, the Commission on Elections has copied the CSC’s rules. The poll body now also collects a P200 fee for each SALN copy.

The following agencies are the custodians of SALNs:

• The national office of the Ombudsman, for the SALNs of the President, Vice President, and officials of the constitutional commissions (CSC, Comelec, COA).
• The secretary/secretary-general of the Senate and the House of Representatives, SALNs of the senators and congressmen.
• The clerk of court of the Supreme Court, SALNs of the justices.
• The court administrator, SALNs of the judges.
• The Office of the President, SALNs of the Cabinet secretaries, undersecretaries, assistant secretaries, and the heads of the foreign service missions, government-owned and –controlled corporations (GOCCs), and state colleges and universities (SUCs).
• The offices of the Deputy Ombudsman (for Luzon, Visayas, Mindanao), SALNs of regional and local officials and employees, both appointive and elective, including other officials and employees of GOCCs and SUCs.
• The Office of the President, SALNs of the officers of the Armed Forces from the rank of Colonel or Naval Captain, while those of lower rank, below with the Deputy Ombudsman in their respective regions.
• The Civil Service Commission, SALNs of all other public officials and employees.

As a rule, though, copies must also be filed with the respective departments, agencies, and offices of the SALN filers.

FOI boon or bane?

But better compliance with the SALN law may soon happen – that is the guarded optimism that Malaluan holds in light of the long-awaited passage of the Freedom of Information Act. Last February, President Aquino finally transmitted to the Senate and the House his administration’s version of the FOI, which enrolls a provision on the mandatory disclosure and upload online via government websites of the SALNs of all public officials and employees.

Still, Malaluan reckons that good or bad things may happen. The good, he says, is that the FOI may enhance “proactive disclosure, procedure for access, and administrative and criminal penalties for violation of the right to information, plug loopholes not only with respect to access to SALNs but to all other government-held information.”

But the other possibility smells of trouble. Given the controversy that the SALN has generated in light of the impeachment trial of Supreme Court Chief Justice Renato Corona, Malaluan says that the provision on mandatory disclosure online of SALNs in the President’s FOI version could precisely draw heat and flak from the legislators, and challenge the passage of the FOI Act. – PCIJ, March 2012

WHATEVER THE outcome of the impeachment trial of Supreme Court Chief Justice Renato C. Corona, a once-ignored piece of document seems to be getting the attention it deserves at last. The question, however, is whether or not the general public’s increased familiarity with the Statement of Assets, Liabilities, and Net Worth or SALN would finally shame public servants into taking it seriously and accomplishing it beyond token compliance.

Corona is on trial at the Senate impeachment court in part for his alleged failure to disclose not just his SALN, but also the full details of his wealth. According to his prosecutors, Corona misdeclared, underdeclared, or did not declare multimillion pesos of cash and other assets.

But one inconvenient truth is that misdeclaration, underdeclaration, and non-declaration of all sorts of assets in SALNs are rampant across branches of government, political parties, and administrations. Tellingly, too, instead of providing the public greater access to SALNs, internal guidelines in the judiciary, the House of Representatives, and the Ombudsman have led to the opposite and have created more barriers to securing copies of a document that was supposed to help foster transparency in government.

In other words, both individual compliance by public officials and institutional compliance by public agencies with the SALN law are wanting and have failed to honor and do justice to its spirit.

Twenty-five years ago, a new Constitution heralded what should have been an era of transparency, accountability, and good governance in the country. Among other things, it triggered the mandatory filing and disclosure by all civil servants of their SALNs, under Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees. R.A. No. 6713 was enacted in 1989.

The SALN is aimed at helping keep public servants honest, since the information it should contain would aid the public in keeping track of any sudden increases in a government employee or official’s wealth. The assumption, of course, is that the data entered in the SALN are all accurate and up to date. For any monitoring to be done, access to that data is also presumed.  

For years now, though, the SALNs of all members of the judiciary have been inaccessible to the public, including the media. Majority of Corona’s prosecutors and members of the House of Representatives have also dug in their heels regarding the release of their SALNs, reportedly because they want to skirt inquiry and intrigue – exactly the situation the chief justice is now in.

Poor form, substance

A cursory review of the SALNs of about 1,500 senior elective and appointive officials that PCIJ has gathered since 1998 yields a possible reason for this: SALNs are mostly deficient in form and substance, with the habitual and seemingly non-disclosure pointing to flagrant sins of commission instead of mere sins of omission.

Many officials, for instance, still refuse to disclose the full details of the current/fair market and assessed values of their real properties, their exact location, and the size of their real properties. They include President Benigno Simeon C. Aquino III himself, Budget Secretary Florencio ‘Butch’ Abad, Health Secretary Enrique T. Ona, and some senators, congressmen (as of their 2009 SALN), and other Cabinet members. 

For a man who knows both his law and his money, Abad offers a puzzling SALN. He reported owning six real properties worth less than a million pesos or basement prices that could leave eBay and sulit.com bargain hunters slack-jawed in envy.

The six properties that Abad enrolled in his December 2010 SALN include a lot and a house in Quezon City (which he said bought and built in 1983 and 1990, and with assessed values of only P203,040 and P584,550), three lots in Batanes (acquired on sale in 2001, 2004, and 2008, with assessed values of P2,250, P64,000, P33,370), and a lot in Batangas (acquired in 2008 with assessed value of P105,000).

Altogether, Abad declared the assessed value of his six real properties to be only P993,070. He left blank the columns for data on current/fair market value and acquisition cost of his real properties.

Meanwhile, Health Secretary Ona, who had a long lucrative private practice as a kidney doctor before his Cabinet posting, declared a net worth of P78.24 million in his December 2010 SALN.  But he opted to be mum about the details of his wealth; regarding his real properties, Ona simply typed the word “various” under the columns for “kind,” “location,” and “year acquired,” and left blank those for the assessed value and fair market value of his properties.

Ona’s net worth was shored up, however, by unspecified “stocks and investments” declared at P75.43 million, even as he reported liabilities such as “personal loans” of P5 million, a car loan from a bank of P750,000, and income tax payable of P65,059.50.

Similarly, President Aquino himself filled out his SALNs for June 2010 and December 2010 by simply typing “various” on and on under the columns for personal and other properties, leaving out many important details like his purchase of a second-hand Porsche (that he later sold), and the firearms he owns.

Cash & investments

PCIJ’s survey of SALNs also shows that while many officials declare having piles of cash on hand and in bank, and investments, they do not disclose how and in what years they acquired their millions.

There is also a tendency by many officials to claim huge sums of investments, time deposits, stocks, and money market placements, but they would not disclose in which business entities, companies or establishments these are lodged. 

Examples of such filers are Vice President Jejomar Binay and Iloilo Rep. Niel Tupas, Jr., chair of the justice committee and lead prosecutor in the Corona impeachment trial.

Binay declared a net worth of P58.09 million in his latest SALN as of December 2010 – all of it representing assets. He had zero liability.

He declared 12 real properties (three in Makati City, three in Batangas, two in Laguna, one each in Muntinlupa, Cavite, Isabela, and Bataan). Of the 12, Binay said he purchased seven, inherited two, earned two others as legal service fees, while two remain mortgaged.

Binay placed the acquisition cost of the 12 properties at only P16.88 million. 

He reported though a constantly growing amount of personal and other properties totaling P42.7 million, or nearly three times more than his real properties. This accounts for P17.52 million “cash on hand and in bank”, P11 million in “receivables,” P7.07 million in “furnitures, antiques, clothings, etc”, and P4.05 million in “investment in business” that Binay said was the “exclusive property of the spouse.”

As for Tupas, his SALNs offer a curious case of constantly rising investments in “time deposits and money markets.”

He reported a significant steady growth in his net worth, according to his disclosed SALNs for 2007, 2008, and 2009, or the years when he served in the 14th Congress.

As of his latest available SALN – 2009 – “time deposits/money market” assets seem to be the pivot of Tupas’s wealth, even as it first appeared only in his 2008 SALN. It just kept growing, despite the fact of the global financial crisis that sent markets in Europe tumbling down in 2008 to the present.

In July 2007, Tupas said he had P8.5 million cash in bank, but zero “investments” or “time deposits/money market” assets. In December 2007, his cash in bank stood at P11.5 million, but still he had zilch for “time deposits/money market.” By December 2008, however, his cash in bank slipped to P2 million, and a new entry, “investments,” came in, which Tupas valued at P11.7 million.

In December 2009, the term “investments” disappeared in his SALN; in its place, Tupas reported he had “time deposits/money market” assets worth P22 million.

The paper trail of real properties (i.e. land, houses, buildings) is fuller and stricter, thus easier to track. In contrast investment instruments could be shrouded in corporate veil, or brokered and sealed with agents, thus easier to hide.

Conflict of interest?

But by not disclosing in which business entities they have investments, public officials open themselves up to conflict of interest situations, which anti-graft laws say could be real, perceived, or potential. Hence transparency requires that they disclose these details.

Too, while many officials admit to incurring huge loans, mortgages, and other liabilities from relatives, friends, banks, credit card agencies, and business associates, they withhold data on the names of their creditors. Yet again, by not disclosing the identities of their creditors, public officials open themselves up to real, perceived, and potential conflict of interest situations.

And even if the SALN form requires the disclosure of specific data, including the incomes of the filer and his or her spouse, many officials do not, or simply will not, file honestly and fully, often leaving the columns blank. 

There are also some senior officials who fill out their forms by hand – which would not be a bad thing in itself, except that the data enrolled usually end up illegible. 

Ex, present Ombudsman 

This is fortunately not the case with the SALN of Ombudsman Conchita . Yet what she filed may likely raise a few eyebrows anyway. 

As a retired associate justice of the Supreme Court, Carpio-Morales’s SALN had not been disclosed previously, on account of court resolutions that placed the SALNs of all justices, judges, and court personnel secret from the public.

But when she assumed office as Ombudsman in June 2011, Carpio-Morales promptly filed her SALN in July 2011. She would not voluntarily release copies of her SALN, though, until last January 2012, amid the impeachment trial of Corona for, among others, non-disclosure of his SALNs.

Carpio-Morales declared a net worth of P40.75 million, representing P14.1 million in real properties and P29.04 million in personal and other properties, but also P2.4 million in liabilities. The last amount, she reported, was “amortization of purchase price of condo unit” to her creditor, the “Eton Group of Companies.”

She said P14.10 million was the total  “acquisition cost” of the nine real properties she “purchased” or built – three residential lots in Muntinlupa, a house and lot in Lemery, Batangas, three condominium units (located at The Fort, Manila, and Albergo in Baguio City), and two memorial lots.

She purchased two of the three condominium units only recently: The Fort condo in 2008 supposedly for P4 million flat, and the Baguio City condo in 2011, for P2,508,000.

Yet while Carpio-Morales reported the “acquisition cost” of all her nine properties, she left blank all the other columns in her SALN where she should have disclosed such details as assessed value, current fair market value, and nature of property (paraphernal, conjugal or community).

She also did not disclose how much in income she is getting as Ombudsman, and what the P25 million she has in “cash/investment inclusive of retirement benefits” actually consists of, in which entities she has investments, and how much of the total was her “retirement benefits.”

In comparison, Carpio-Morales’s resigned predecessor, Ma. Merceditas N. Gutierrez, had stated in her December 2010 SALN the annual income she was getting as Ombudsman: P743,673.50.

Gutierrez also declared the “current/fair market value” of seven real properties she said were “conjugal” assets (three inherited, two “donation”, and two “sale on installment”). She tagged these to be worth P69.5 million in all.

Yet like Carpio-Morales, Gutiertrez withheld details of the P7.5 million she said she has as “investments/savings/retirement benefits,” as well as details of the P13 million of her “loans, credit cards” liabilities that she said she owed “banks/private.”  

In her 2006 SALN, Gutierrez said her P19.8-million “liabilities” then included P4.5-million “loans” with PCIB Equitable, P10.8-million “mortgages” with Allied Bank, and P4.5 million in “private loans.”

The senator-judges

Among the senator-judges, Senate President Juan Ponce Enrile and Sen. Edgardo J. Angara stand out with their fully filled-out SALNs, which show to the last detail of the registration and plate numbers of their vehicles, and dates of acquisition of how many stocks in whichever companies.

In contrast, like President Aquino, opposition Sen. Manuel B. Villar repeatedly typed “various dates” under the column for  “year of acquisition” of his real estate and other properties in his 2010 SALN. 

All that Villar revealed were “investment in shares of stocks” worth P147.8 million, and “other real and personal properties” worth P572.8 million. His net worth: P725.2 million, with zero liabilities.

The colorful Sen. Miriam Defensor Santiago meanwhile said in her 2010 SALN that her assets include nine residential and two agricultural lots (six located in La Paz, Tarlac; two in Iloilo, and one in Lipa, Batangas) worth only P4.18 million. 

The bulk of her wealth or P100.3 million consists of personal and other properties, including P51.2 million “cash on hand/in bank” and P29.06 million in “investments” in unnamed business entities. But because she declared P60 million in “personal loans” to unnamed creditors, Santiago’s net worth slipped to only P40.3 million.

Sen. Joker P. Arroyo filed possibly the most trite of all SALNs among his colleagues. He declared a net worth of P11.05 million in his 2010 SALN. He said he had P7.9 million in “investments” and offered no further details. He also said he owns a “residential” property in Makati City that he said was worth P3.15 million. 

Arroyo, a known resident of posh Dasmariñas Village in Makati, said he acquired it in 1968 for P450,000, but that its assessed value now is only P150,000; he constructed his house for P1.05 million, but that he had improvements made so its value should now be worth P3 million.  

Why bad compliance?

Lawyer Nepomuceno Malaluan, co-convenor of the Right to Know, Right Now! Coalition of the advocates of the Freedom of Information Act, sees three apparent reasons for bad compliance with the law.

The first and least worrisome: Officials who think the SALN is an invasion of their privacy. Malaluan says that “the fear of calling attention to their wealth, of being investigated” could be the most common reason why some officials do not want to expose details of their real and cash assets. 

But the lawyer says that “privacy is not an option for public officials,” and argues: “The minute they embraced public office, they have to embrace the principle of a public office is a public trust. Your personal discomfort (about lack of privacy) must be overcome because of your public mandate.”

Second and a bit worrisome: Officials with a “puwede na” attitude or who take to their duties, including filling out SALN forms, half-heartedly, or with less than best effort. 

“There are officials who think that filling out some spaces and leaving others blank is good enough.” Malaluan notes. And because the SALN custodians are not looking or auditing compliance by form and substance, these officials get away with filing defective or deficient SALNs year on year.

While the first two groups may not be readily accused of “malice” or “malicious intent to deceive” in filing bad SALNs, Malaluan takes exception to yet a third, and the most worrisome, group: officials who file defective or deficient SALNs “knowingly and willfully, with intent to deceive, to hide their unexplained wealth, to avoid compliance with the law.”

This third group includes, he says, “those who want to conceal corruption.”

According to Malaluan, any discussions on how to improve compliance with and enforcement of the SALN law must acknowledge these “multiple tendencies of non-disclosure.” 

Yet even more important, he says, the myriad problems of implementation must be the target of reforms. These include “the problems introduced by internal guidelines in some agencies, the norms and systems for disclosure of documents across government, the standards for filing and filling out SALN forms, and the lack of review by custodians of the quality of SALNs filed.”

Public demand

Through it all, Nepomuceno says the citizens have to demand better and more truthful compliance by public officials. “The reality is there should be more pressure from the people for public officials to disclose, and to disclose truthfully, their assets, their wealth.”

Jose Manuel Diokno, dean of De La Salle University’s College of Law and national chairman of the Free Legal Assistance Group (FLAG), for his part assigns the greatest role in punishing bad SALN filers to the Office of the Ombudsman.

After all, apart from simply submitting SALNs, all public officials are also obliged to grant the Ombudsman access to their tax records – yet another document that could help validate the integrity of the sources of their wealth.

Diokno cites that the law, or R.A. No. 6713, already imposes on all public officials the obligation “to execute…the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government.”

Reiterating a recent FLAG position paper on the issue, Diokno says, “It appears, however, that our public officials have never complied with this requirement; and the Ombudsman has never exercised its right of access to public officials’ BIR and other government records to determine if they are acquiring ill-gotten wealth.” – PCIJ, March 2012

The Office of the Secretary General is the repository agency of the SALNs of the members of the House of Representatives as provided in Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) and the Civil Service Commission’s Resolution No. 060231.

Sept. 6, 2010
PCIJ Research Director Karol Ilagan sent a letter to Secretary-General Marilyn B. Yap, requesting for (a) the 2008 and 2009 SALN and PDS/CV of the 14th Congress House members, and (b) 2010 SALN (upon assumption) and PDS/CV of the 15th Congress House members. PCIJ also sent an accomplished Request Form as required by the Secretary General’s office. The request was also made as a follow-up to PCIJ’s previous requests dated October 14, 2009 and May 19, 2010.

Sept. 28, 2010
Ilagan called the Secretary General’s office to follow up on the request. She was told that the letter was forwarded to Legal (office) on Sept. 6.

Jan. 18, 2011
Ilagan called the Secretary General’s office. Ilagan was asked to visit the House of Representatives and meet with Emily, a staff employee at the Office of the Secretary General.

Feb. 10, 2011
Ilagan, along with then PCIJ Senior Researcher Che de los Reyes, visited the Office of the Secretary General upon Emily’s advice that PCIJ talk to a director. Ilagan and de los Reyes spoke with Director Roberto P. Maling who said that he will check with Secretary General Yap on the status of PCIJ’s request. He promised to call the same day. He called at around 7 pm. De los Reyes talked to him. Maling asked PCIJ to send another letter stating a “more specific” reason why it needs the SALNs. He sounded very apologetic. PCIJ’s Sept. 6, 2010 letter indicated that it is requesting the said documents for “purposes of research.”

Feb. 17, 2011
PCIJ sent a revised letter upon Maling’s instruction that a “more specific” reason be cited. In the Feb. 17, 2011 letter signed by Ilagan and PCIJ’s Executive Director Malou Mangahas, PCIJ recounted the requests it had previously made to the Office of the Secretary General. It also said that as an independent media agency, it was requesting for copies of the documents “for research and reporting purposes.” As well, the request was made so PCIJ could update its library files of the SALNs and PDS of government officials and employees. An accomplished Request Form was attached to the letter.

A copy of the letter was furnished to House Speaker Feliciano Belmonte Jr., House Committee on Public Information Chair Rep. Ben Evardone, Civil Service Commission Chairman Francisco Duque, and then Ombudsman Merceditas Gutierrez.

A staff employee of the Civil Service Commission, upon receipt of PCIJ’s Feb. 17, 2011 letter, called Ilagan; the CSC staff said that she would check if CSC has filed of the House members’ SALN.

Feb. 22, 2011
Director Maling of the Office of the Secretary General called and said that PCIJ’s request was being granted. He said that PCIJ should coordinate with Atty. Ricardo Bering of the Records Management Service in order to have the SALNs and CVs photocopied. Ilagan then called Bering to arrange for a meeting the following day. Bering agreed to see Ilagan the next day in the morning.

Feb. 23, 2011
Ilagan and de los Reyes went to the office of Bering, who seemed to act as if he and Ilagan did not talk the previous day. He even had to call Director Maling of the Secretary General’s office. Eventually, Bering approved the release of the 2008 and 2009 SALNs. Ilagan asked about the 2010 SALNs, which was included in the request. Bering said that the 2010 SALNs were not yet available. Ilagan pointed out that the 2010 SALNs referred to in the request refers to the July 2010 or the SALN upon assumption of the House members. Bering said 2010 means “as of December 2010.” Bering made this assertion even if the request was dated Sept. 6, 2010.

Bering asked Ilagan to send another letter-request for the July 2010 or the upon-assumption SALN. Ilagan and de los Reyes arranged for the photocopying of the 2008 and 2009 SALNs at MAA, a photocopying service/station just outside Bering’s office.

Ilagan and de los Reyes then went to Maling’s office to clarify the 2010 SALN request. Maling said that another request should just be made. As for the CVs, he said he would follow this up with Human Resources. He also said that if the 2008 and 2009 CVs were with Records, then these should be provided. Ilagan and de los Reyes went back to Bering and told him what Maling said.

Feb. 24, 2011
PCIJ sent a new request-letter along with the Request Form to Secretary General Yap, following instructions from Bering and Maling.

Feb. 28, 2011
De los Reyes got a text from Tyrone of MAA (photocopying service), saying that the SALNs were ready for pick up. Ilagan then asked a PCIJ intern to go the following day and get the documents.

Mar. 1, 2011
The PCIJ intern went to Records but the documents were not immediately released to her; the documents would be released only to Ilagan. Ilagan phoned Bering, who asked if the intern was authorized to get the documents. He also asked Ilagan to send an authorization letter. Ilagan sent an authorization letter. The intern was then able to get the 2008 and 2009 SALNs upon payment of P4,065. Still pending are the 14th and 15th Congress members’ CV and the July 2010 SALNs and the December 2010 SALNs, which should be available after the April 30 deadline.

Mar. 3, 2011
Ilagan called the Secretary General’s office to make a follow-up. She was told that the letter was still with Legal, where it had been since Feb. 24.

Mar. 9, 2011
Ilagan called the Secretary General’s office to make another follow-up. Emily said that Ilagan should ask Bles of Legal. Ilagan phoned Bles of Legal. Bles said that the request was still being processed. “May process kasi (There is a process),” she said. She added that a response was still being prepared.

Mar. 21, 2011
Ilagan called Legal to make a follow-up. Chona of Legal told Ilagan to call again after lunch because the person concerned had stepped out. Ilagan received mail from Rep. Maximo Rodriguez of Abante Mindanao that contained his July 2010 SALN.

Mar. 24, 2011
Ilagan called Legal to make a follow-up. Bles said the request had already been transferred to the Secretary General’s office. Ilagan then called the Office of the Secretary General. Emily said that Ilagan should talk to Director Maling.

Mar. 28, 2011
Ilagan phoned Director Maling. Maling asked Ilagan to call back because he was still looking for the file.

Mar. 29, 2011
Ilagan called Maling, who said the request was “okay.” He advised Ilagan to call Atty. Bering of Records. Ilagan talked to Hans Cortez of Records. Cortez said he would call back. He did not.

Apr. 4, 2011
Ilagan called Bering of Records. Bering said that there was still “no action taken” on PCIJ’s request. He said the files of the July 2010 SALN were not complete. He insisted that PCIJ should just get the December 2010 SALNs because these should almost be the same with the July 2010 SALNs.

Ilagan then called Emily of the Secretary-General’s office who said that the reply pertaining to the approval of the request was sent to Records on Mar. 15. Ilagan called Cortez of Records. Cortez said that Records did not receive any reply, but that he would check and call back. He did not call back.

Apr. 19, 2011
House of Representatives was closed for the entire week.

Apr. 25, 2011
Ilagan called the Records Management Service. Cortez said he received the Mar. 15 letter. But he said he was told by Bering that only the December 2010 SALNs would be provided because the difference is just months from the upon assumption or July 2010 SALN. Cortez also said that he was just following orders. Ilagan called again to talk to Bering, but he was not available.

Apr. 26, 2011
Ilagan called the Secretary General’s office to clarify things. Jane said the copy of the letter with the signature and approval of Secretary General Yap was already with Records so that’s where PCIJ should coordinate. She said the Office of the Secretary-General had already approved it.

Ilagan then called the Records Management Service. Bering was in a meeting.

Ilagan called again and was able to speak to Bering. According to Bering, it was Maling of the Secretary General’s office who said that only the December 2010 SALNs should be released. Bering said he did not see the letter with Yap’s approval.

Ilagan then called Maling. Maling asked Ilagan to give him until the next Tuesday so he could check what happened; he could then give PCIJ the right response. He said PCIJ was not the only one with a request so the “baka sala-salabat na ang response.” He also said he was not sure anymore because there were many transactions at hand. Still, Maling said that the Speaker might have also given an instruction.

May 4, 2011
Ilagan called Maling who said that he would ask Bering. Maling then called Ilagan and said that the documents would not be released. He said the his office could only issue a summary of the SALNs of the House members. He said the process was “tedious” and “huhugutin bawat isa.” Ilagan told Maling that perhaps Records could keep a separate file for photocopying in order to keep the original files in tact. Maling said that RG Cruz of ABS-CBN also made a request and that he would tell him the same. Ilagan told Maling that she will send another request. Maling said that in the future, the House of Representatives will only provide a summary of the assets, liabilities, and net worth of the House members and not the actual copies of the document. When asked why the 2008 and 2009 SALNs were released, Maling said, “Ginawan lang ng paraan ‘yung dati.” He also said, “I hope you understand.”

Dec. 19, 2011
PCIJ sent a letter to Rep. Niel Tupas Jr., requesting a copy of the SALNs of the members of the prosecution panel and the rest of the members of the 15th Congress. The letter, which was signed by Ilagan and Mangahas, also recounted the previously denied requests with the Office of the Secretary General. A copy of the letter was furnished Secretary General Yap.

Director Maling called PCIJ office around 4:30 pm. Ilagan answered the phone and greeted him “Magandang hapon (Good afternoon).” Maling said (not exact words), “Mukhang ‘di maganda ang hapon, nabasa ko itong letter mo.” Ilagan told Maling that the letter was actually addressed to Tupas. He said, “So nagsend kayo kay Cong. Tupas?” Ilagan said yes.

Maling said that if PCIJ wants the SALN of the members of prosecution panel, Ilagan should fill out and send the SALN request form, like before. Ilagan said that she can do that and send the form by fax. Maling said his office needs the original copy. He also said that PCIJ would have to pay for the reproduction cost. Ilagan said this should be okay because PCIJ always carries the reproduction cost for SALN requests.

Maling then told Ilagan (not exact words): “Akala ko ba okay na tayo dati na summary na lang.” Ilagan said, “Sir, if you would remember, we did not agree to just having the summary. I’ve told you that we’ll not stop and we’ll send another request.” Then Maling said PCIJ’s reason was “manipis.” He said that if the SALNs were needed for a database, then the summary should be okay. He said that his office did not mean to hold the documents. (The reasons PCIJ stated were for “research and reporting purposes” and to “update PCIJ’s library files.”)

Maling then asked why PCIJ needs the actual documents. Ilagan told Maling that the SALN is a public document and PCIJ needs the details of the assets, for example, not just a total figure. He mentioned “manipis” again and said that in law, disclosure of the SALN is not just for “whatever” legal purpose. He said that it’s “not absolute.” Then, Ilagan explained to him again why PCIJ needs the SALNs. Maling said that PCIJ should submit again the Request Form. Ilagan then asked about SALNs of the rest of the members of the 15th Congress. Maling said that this should be included in Request Form.

Dec. 20, 2011
Ilagan sent Maling a clarificatory letter, saying that there is no need to send yet another Request Form because PCIJ has already complied with this before.

Dec. 21, 2011
Ilagan called the Secretary General’s office to make a follow-up. Lito said Maling was already on vacation/leave. Ilagan was told to call in January 2012.

Jan. 3, 2012
Ilagan called the Secretary General’s office to make a follow-up. Emily said Maling was not in the office. She said that the letter had been forwarded to Legal.

Jan. 12, 2012
Ilagan called Legal to make a follow-up. Bles of Legal told Ilagan to call again because the person concerned (Deputy Secretary) stepped out.

From September 2010 to December 2011, PCIJ made a total of 28 calls and sent four letters to the Office of the Secretary General to obtain copies of the July 2010 (upon assumption) and December 2010 SALNs of the 15th Congress members and the CVs and PDS of 14th Congress and 15th Congress members. As of this writing, these have yet to be released by the repository agency. – PCIJ, January 2012

JUST A few weeks after the Nov. 23, 2009 Maguindanao Massacre, where 58 people including 32 journalists were executed in a remote barangay in Ampatuan town, officials of the Firearms and Explosives Division (FED) of the Philippine National Police (PNP) were surprised to receive a deluge of applications for gun amnesty from one particular province in Mindanao.

Every once in a while, the national government offers a gun amnesty to the general public. These amnesty offers are a general pardon of sorts, where people with loose or unlicensed firearms are allowed to have illegal guns licensed and registered in their names.

But this batch of applications raised a red flag among officials of the PNP-FED, the agency tasked with regulating gun ownership and use in the country.

First of all, almost all the new applications originated from Maguindanao province, where the massacre occurred.

Secondly, the applicants were mostly members of the local civilian volunteer organizations, or CVOs, the local militia. Interestingly, members of Maguindanao’s CVOs who owed loyalty to the Ampatuan clan, had been implicated in the massacre.

Third, many of the firearms were the highly-priced Bushmaster M4A3, a variant of the M4 carbine used by many special forces units. Just a few years earlier, the Ampatuan clan, through the Maguindanao provincial government, had purchased 50 Bushmasters through gun trader Crisostomo Aquino, allegedly to fight the terrorist threat in the province. The end users of the Bushmasters, priced at P120,000 each, were supposed to be members of the Maguindanao PNP.

Sr. Superintendent Danilo Maligalig, then operations chief of the PNP-FED, recalls that this batch of amnesty applications, “numbering around a hundred,” immediately caught the attention of firearms regulators.

The gun amnesty, provided for through Executive Order 817 signed by then President Gloria Macapagal Arroyo in June 2009 as part of the National Firearms Control Program (NFCP), had expired on Nov. 30, 2009, or a few days before this batch of amnesty applications swamped the FED.

From cops to CVOs

“Sinubukan nilang ipahabol ang mga ito (They tried to get this past us),” Maligalig recalls.

Maligalig says investigation by the FED later showed that these firearms were the same guns issued to the Maguindanao PNP to fight the rebel Moro Islamic Liberation Front (MILF) and other armed groups in the region.

But police officials were puzzled how these firearms found their way to the CVOs, who then tried to acquire legal possession of them through the firearms amnesty program. What made the applications all the more unusual was the fact that the guns had never even been declared lost by the local PNP in the first place.

To Maligalig and other FED officials, this much was clear: firearms meant for the government arsenals had found their way to armed groups loyal to the Ampatuans.

Too, the clan appeared to be scrambling to save its arsenal and retain its armed might in the wake of the government crackdown against the firepower of the Ampatuans.

But more importantly, it was an sign of how the Ampatuan clan, like other well-armed political families, may have mastered the art of finding and taking advantage of apparent loopholes in firearms laws and amnesty programs in order to build, arm, and maintain a parallel arsenal that rivals even that of the national government’s.

At the same time, it put into question the entire firearms regulation system, including the fact that some state agencies such as the Armed Forces of the Philippines (AFP) deem themselves exempt from such rules.

Alarming findings

Maligalig says that FED officials immediately suspended that batch of firearms amnesty applications while a probe was underway.

The results of the probe were alarming.

Maligalig, who acted as vice chairman of the investigating committee formed by the FED, said they found that many of the firearms bought with government funds supposedly for the local PNP were really meant to be used by the Ampatuan militia.

Under PNP rules, local governments may purchase firearms for the use of the local police force. These purchases are, however, covered by an end-user certificate, which specifies who is the firearm’s real user. In the case of the Bushmaster carbines, the guns were supposed to go straight to police officers assigned in Maguindanao.

“The guns were meant for the local police of Maguindanao, in fact the memorandum receipts (MR) were in the name of the policemen assigned,” says Maligalig. “Pero pirma lang ‘yun (But these were just signatures on paper.) The actual distribution of the guns was made to the militia members.”

He says that a closer scrutiny of the firearms applications showed that some of the CVO members applying for gun amnesty were in fact implicated in the Maguindanao Massacre itself.

Wanted-list pics

“If you look at the pictures on the wanted list,” says Maligalig, “these were the same pictures in the amnesty applications application.”

A number of these CVO members were later arrested and have been included in the Maguindanao Massacre case now pending before the Quezon City Regional Trial Court.

Maligalig says it appeared that the clan had ordered militia members to have these high-powered firearms placed under the amnesty program, in order to spare them from confiscation by the government.

“When things got hairy, they (the Ampatuans) attempted to have their firearms placed under the amnesty program,” Maligalig tells the PCIJ. “Pinangalan lang ang mga baril sa mga militia (They just tried to have the guns registered in the name of their milita members).”

In all, some 1,200 firearms were reported by the AFP to have been unearthed, confiscated, or recovered in Maguindanao province following the Maguindanao Massacre, according to AFP spokesmen in 2010.

Most of these firearms were old and obsolete firearms usually issued to members of the Civilian Armed Forces Geographical Units (CAFGUs) and CVOs, the so-called force multipliers authorized through Executive Order 546 signed by then President Gloria Arroyo in July 2006.

High-powered metal

A number of these recovered firearms, however, are clearly high-powered and high-end. Among the firearms recovered, as listed by the Mindanao-based news cooperative Mindanews, were:

• Four 60-mm mortars with ammunition;
• Two 81mm mortars;
• A 90mm recoilless rifle (actually a misnomer. The recoilless rifle fires a shaped charge that can punch a hole through armored vehicles);
• A 57-mm recoilless rifle;
• One Barrett sniper rifle (a specialized sniper weapon that delivers a half-inch slug with an effective range of 1.8 kilometers. The model recovered was a civilian version, although Barrett sniper rifles are normally not sold to private individuals but only to governments);
• Three M60 light machine guns (the standard machine gun of the AFP and the PNP);
• One .50 caliber heavy machine gun, also capable of punching holes in armored vehicles; and
• Various high-powered rifles and hand guns

Of these firearms, some 300 guns were turned over to the PNP Region 12 crime laboratory in General Santos City on suspicion that they were directly involved in the Maguindanao Massacre. So far, four of these confiscated guns have already been matched with slugs recovered from the victims and the site, according to Task Force Maguindanao head Chief Superintendent Benito Estipona. It is not clear if any of these firearms were part of the batch that CVOs tried to have registered under the amnesty program.

One long, one short

As a general rule, the country’s laws regulating firearms ownership limits the number of firearms owned by private citizens to “one long, one short,” or one rifle and one pistol.

In addition, private citizens are only allowed to own bolt-action or semi-automatic rifles with caliber no larger than .22 of an inch. The usual exemption is for gun club members, who are allowed a maximum of 10 rifles, but only “for sporting use.”

Yet according to the findings of the lifestyle check conducted by Deputy Ombudsman Humphrey Monteroso on the Ampatuan assets and submitted by the Anti-Money Laundering Council (AMLC) to the Court of Appeals, the Ampatuan clan has at least 157 firearms of various calibers registered in the PNP-FED’s Firearms Identification Management System (FIMS) masterfile.

Of these 157 registered firearms, 23 are listed under the name of Andal Salibo Ampatuan Sr., and 26 under the name of Zaldy Uy Ampatuan. Eighteen guns are registered under the name of Andal Uy Ampatuan Jr., while another 15 are registered in the name of his brother Anwar.

(An earlier report by the PCIJ, quoting PNP-FED officials, pegged the number of firearms registered to members of the Ampatuan clan at 271, distributed among 103 persons with the surname Ampatuan.)

How then were the Ampatuans able to register so many firearms under their names?

Big cache of guns

Current officials of the PNP-FED refused repeated requests by the PCIJ for an interview. But Police Chief Superintendent Ricardo Marquez, executive officer of the Directorate for Investigation and Detective Management, says “the only way I can think of” how the clan was able to pull off such a feat is through the numerous amnesty programs offered over the years. This is because under the amnesty program, an applicant can register any number of firearms.

Marquez says even long firearms are included in the amnesty program. “The (limit) of only one-long, one-short is effectively overruled (by the amnesty),” he adds.

Since 1992, the government has offered at least 12 amnesty programs that would enable holders of loose firearms to have them registered and legalized for a fee.

But there is yet one more apparent loophole in the amnesty program that allows gun owners to collect and legally own high-powered firearms. Under the country’s gun laws, private citizens are not allowed to own high-powered rifles of 5.56 mm or 7.62 mm. These are the calibers of the standard M-16 rifle and the M1 Garand or the M14 rifle used by the police and the military.

The various amnesty programs, though, allow applicants to own high-powered rifles so long as they do not exceed 7.62mm. This means an applicant for amnesty can, once approved, legally own his own arsenal of high-powered firearms that are not available to ordinary citizens.

‘Designer guns’

A quick inspection of the list of firearms registered under the names of the Ampatuans, meantime, also reveals a proclivity, not just for high-powered firearms, but for “designer guns,” as described by one security consultant, as well.

Of the 23 firearms listed under his name, Andal Sr. owns an Israeli-made 5.56 Negev light machine gun, a belt-fed or drum-fed machine gun that is hardly for sporting use. The Israel Weapon Industries website describes the Negev as “a small, light weight advanced machine gun” that allows “accurate and fast controlled fire for close quarter battle or an automatic mode that allows maximum firepower.”

In addition, Andal Sr. owns a Heckler and Koch MP7 submachine gun, a new generation of submachine guns whose 4.6mm bullets can punch holes through bulletproof vests. Manufacturer Heckler and Koch’s official website describes the MP7’s ammunition as capable of penetrating a bulletproof vest “comprised of 1.6mm titanium plates and 20 layers of Kevlar, out to 200 meters and beyond.”

Andal Sr. also owns 18 pistols and three other high-powered rifles.

Not to be outdone, Zaldy Ampatuan owns a Negev light machinegun, two HK MP7 submachine guns, an HK UMP40 submachine gun, and two Israeli-made Tavor assault rifles, the same rifle now being issued to the Israeli Defense Forces (IDF). This is aside from the 11 pistols and one shotgun that he owns.

Andal Jr., for his part, has 18 registered firearms, according to PNP records. These range from an OAR 556 rifle to a 5.7 caliber Fabrique Nationale submachine gun.

Expensive buys

A gun expert consulted by the PCIJ calls these “designer guns” that are very expensive, and hard to come by. An MP7 can be purchased in the Philippines for P 700,000 to P900,000 each because it is so rare, the expert says. The Tavor, with its bullpup design and built-in illuminated sights, can fetch anywhere from P600,000 to P700,000. A Negev light machinegun, because of its functionality, would be worth around P 1.2M in the Philippine market, he says.

In an email reply to PCIJ’s written queries, Andal Ampatuan Sr.’s lawyer, Sigfrid Fortun, dismisses suggestions that the Ampatuans had used the amnesty programs to build up their weapons arsenal.

“Whether they used the Amnesty Program to legitimize their possession of these weapons is arguable,” Fortun writes. “One thing is certain, though, when an unlicensed firearm is brought to the fold of the law and the PNP accepts it to license it, is this not far better than having loose firearms where the government does not even know exactly how many firearms one has in his possession? Now how can this submission to the fold of the law be immoral or illegal?”

Indeed, the argument is echoed by some police officials who see no problem with the liberal application of gun amnesty proclamations.

Marquez and Maligalig, for instance, both say it is better to encourage gun owners to have their loose firearms licensed, than to have these floating around unregistered.

Maligalig says the PNP-FED purposely made the amnesty proclamations more liberal “to ferret out” the loose firearms. He notes, “It was needed so that we could account all of those unrecorded.”

“The aim is to get the firearms registered, get their ballistic characteristics, and stencil them so that when they are used in a crime, they can be traced to their owners,” Marquez points out. “What’s the better situation, more guns that aren’t registered or have an amnesty program that has loose guns registered and stenciled?”

But he says there is an aspect of gun control that does need immediate attention. Over the years, he says, only civilians have been strictly following the letter of the law on firearms purchase and ownership. The likes of the AFP, effectively the biggest armed group in the country, apparently do not believe they have to follow such rules on firearms.

For example, Marquez says that firearms acquisitions made by AFP units outside of the regular arms dealers have largely been unregistered and unlicensed. Maligalig also says that AFP arms purchases go “undeclared.”

Floating around

For this reason, there are firearms floating around in the grey area between formal military units and the local government militias that the government has no records of. As such, it is much easier for high-powered firearms supposedly destined for the AFP to disappear into a black hole of sorts.

“When firearms are bought from a dealer, they are automatically registered,” says Marquez. “But when firearms are not acquired through that process, they are not registered. Some of the firearms of the AFP were through foreign military sales, so these were given directly to the AFP.”

“Our suggestion,” he says, “is for everybody’s firearms, especially government firearms, to be registered, and their records kept by the PNP, meaning ballistics records, stencils, etc.”

But the paperwork for such a process would probably have to compete with those from local officials who seem to believe they have to have a formidable arsenal in order to govern.

They fancied guns

Lawyer Fortun, for one, describes that the Ampatuans are “public officials who, during their incumbency, fancied guns (like most Alpha males). This was public knowledge.”

Yet he also defends the large number of firearms registered under the names of the Ampatuan family members by saying that the clan “was used by and had assisted the Government to fight the MILF.”

“Unsay (Andal Jr.) was in the forefront of these armed encounters,” Fortun says in his email reply to PCIJ’s queries. “They were the ‘stay-behind units’ ater the army completed its assault on known MILF territories. They took over and held the ground after the army had returned to their secure camps, and they kept the area they held MILF-free.”

According to Fortun, though, many of exotic firearms listed under the names of the Ampatuans were actually “gifts from constituents and others.”

Curiously, a PCIJ report on the guns of the Ampatuan clan published in 2010 also mentioned the fondness of some Ampatuan family members to give guns as gifts as well. Former Maguindanao Martial Law administrator Lt. Gen. Raymundo Ferrer had told the PCIJ that he had been offered one of the Tavor assault rifles of Zaldy Ampatuan as a gift a few weeks after the Maguindanao Massacre.

“Sir, kunin mo na lang, sa iyo na lang daw ang Tavor ni RG (Sir, just get it, RG’s Tavor is yours),” Ferrer recalls the aide of Zaldy as telling him over the phone.

On another occasion before the massacre, Ferrer recalled having received a brand new M4 assault rifle as a gift after a meeting with Zaldy Ampatuan. Ferrer said the gun was thrust on him by an Ampatuan aide while he was leaving.

A basic M4 assault rifle, without accessories, costs from $2,000 to 2,800 when purchased in bulk. – PCIJ, November 2011

MAGUINDANAO:The Quest for Justice is a documentary produced by the Philippine Center for Investigative Journalism on the second anniversary of the Maguindanao Massacre. After two years, the Ampatuans have allegedly ramped up efforts to reach a settlement with the families of the victims. The families of the victims continue to hold out against the proposed settlement, even as they try to survive from day to day. In the meantime, the Ampatuan clan continues to wield clout in the region with its vast resources and continuing political influence.

This is just the teaser. The entire video will be uploaded next month.

WEEKS after the May 2010 elections, a question confounded Benigno Simeon ‘Noynoy’ C. Aquino III and his fund-raisers and allies in the Liberal Party: What to do with excess campaign donations that had then reached tens of millions of pesos?

In winner-takes-all fashion, not just votes but also funds had flooded the Aquino camp. This is even as a fund-raiser and a senior campaign staff would later say in separate interviews that Aquino had already served notice that he did not want to accept more donations. In Aquino’s mind, says the senior campaign staff, the last-minute bettors were not true believers but simply people angling to cut deals with the emerging election victor.

Aquino’s sisters had a thought to return the excess campaign funds. But the fund-raiser says that led to questions like: Which donor should get money back? How to assign amounts to return? By then, 96 donors, including about a dozen Aquino relatives, had pitched in donations of several thousand pesos to P100 million. The fund-raiser, a big and respected businessman, says he and his colleagues advised Aquino to just turn over the excess donations to a non-profit charity group such as the Ninoy and Cory Aquino Foundation.

In his Statement of Election Contributions and Expenditures (SECE) that he filed with the Commission on Elections (Comelec) within the first deadline of June 9, 2010, Aquino reported that he had raised a total of P440,050,000 in campaign contributions but incurred only P403,119,981.81 in campaign expenditures. This left Aquino P36,930,018.19 or nearly P37 million in excess campaign funds.

For sure, Aquino demonstrated in his SECE a unitary exemplary act that all other candidates for national office in the May 2010 elections failed to emulate. Unfortunately, the initial honesty showed by Aquino remained just that. Since then, he has not followed it up with a full disclosure of what he did with the money, and nothing more may have been said about it had PCIJ not popped the question to the president in a first letter last Jun. 15.

Apparently, Aquino did not donate the excess funds to charity, as his fund-raisers had advised. And while election laws are silent on what candidates should do with excess campaign funds, the Bureau of Internal Revenue (BIR), in Revenue Regulation No. 7-2011 dated Feb. 16, 2011 settles the impasse: it says that excess campaign funds should be recorded as the candidate’s income during the election year, and thus, subject to income tax.

Taxable income

In its “Policies and Guidelines” clause, the BIR’s new regulation states: “Unutilized/excess campaign funds, that is, campaign contributions net of the candidate’s campaign expenditures, shall be considered as subject to income tax, and as such, must be included in the candidate’s taxable income as stated in his/her Income Tax Return (ITR) filed for the subject taxable year.”

Citing the BIR regulation as basis, recently appointed Comelec Commissioner Christian Robert S. Lim, in response to PCIJ’s query about Aquino’s excess campaign funds, wrote in an email: “Aside from paying the correct income tax, candidates with excess campaign funds must declare the same in their ITR (income tax return).  For the 2010 May elections, candidates who fail to declare in their ITR of 2010, the deadline of which was 15 April 2011, they can be held liable for tax evasion and/or falsification of their ITR.  However, the agency primarily tasked with the prosecution of this offense is the BIR and the Department of Justice.”

Lim, who was among the lawyer-volunteers of Aquino during the 2010 elections campaign, has been designated by the Comelec En Banc as head of the poll body’s Campaign Finance Steering Committee.

Lim also wrote in his email to PCIJ: “While Section 13 of Republic Act No. 7166 (Synchronized Elections Law) exempts contributions from gift tax as long as it has been duly reported to the Commission on Elections, it has always been my position that unutilized contributions form part of the income of the candidate and must be subject to income tax.  One of the thrusts of the Ad Hoc Campaign Finance Steering Committee was to make this a reality.”

Official documents do not show Aquino as having recorded the excess funds in his ITR, and apparently did not pay taxes on these. But his Malacañang deputies say Aquino returned some of the money to donors, and used the rest of the funds to pay withholding taxes on campaign expenses to the BIR, and for the printing of sample ballots.

Used three ways

Edwin Lacierda, who was Aquino’s spokesperson during the campaign and who has kept that role in the Palace, said in a letter to the PCIJ dated Jun. 29, 2011: “(The) President is well aware that electoral contributions were to be used solely for the purpose of supporting his candidacy for President and was never intended to be for his personal benefit.”

Lacierda also said that Aquino spent the excess campaign donations three ways.

First: “Out of the Php36,930,018.19 (excess campaign donations), Php18,356,859.88 was remitted to the Bureau of Internal Revenue representing 5% creditable withholding income tax on election related purchases. Please note that under Revenue Regulations No. 8-2009, all income payments made by political parties and candidates were subjected to 5% creditable withholding tax. Hence, political parties and candidates were under obligation to deduct and withhold 5% from all income payments to their suppliers during the campaign and remit the same to the (BIR).”

Second: “The campaign also spent around Php4,000,000.00 for the printing of sample ballots that were distributed nationwide before the elections. This expenditure was not included in the (SECE) because under Section 101(k) of the Omnibus Election Code, the cost of printing sample ballots shall not be taken into account in determining the amount of expenditures which a candidate may lawfully incur in connection with his candidacy.”

And third: “The rest of the excess campaign funds were actually returned to some of the donors who made substantial contributions to the campaign.”

In short, Lacierda said that of the P36.9 million in excess campaign donations Aquino raised, net of supposed withholding tax paid to the BIR and the printing of sample ballots, what remained was P14.5 million.

Returned or not?

The presidential spokesperson then later asserted that President Aquino returned P14 million to three donors. On Jul. 1, 2011, Lacierda authorized his staff, Kristine Joanne D. Basa, to move a second email to the PCIJ.

It stated: “Further to our email regarding President Aquino’s excess campaign contributions last Wednesday, June 29, 2011, please be informed that the donors to whom we returned a portion of their contributions to are the following:

“1. Atty. Fulgencio Factoran – He donated Php 20 million; We returned Php 10 million;

“2. Mr. Gerry Esquivel – He donated Php 10 million; We returned Php 2 million; and

“3. Dr. Alex Ayco – He donated Php 5 million; We returned Php 2 million.”

Further verification by PCIJ revealed that the claimed return-to-sender acts may have not been consummated at all as of Jul. 3, 2011 or two days after Lacierda’s office sent a second email to PCIJ.

In a phone interview with the PCIJ on Jul. 3, Sunday, Factoran said: “Sinabi sa akin, baka balikan daw ako ng pera. May plano raw silang magbalik ng pera (I was told I may have money returned to me. They said they planned to return money).”

Asked when he was informed that he would be given back part of his P20-million campaign donations, Factoran replied: “Tinawagan nila staff ko, sinabihan na magbabalik daw sila ng pera (They called up my staff, saying they were going to return money).”

Factoran then begged off from answering any more questions about the matter, saying he would call up PCIJ later. He has yet to contact the Center as of press time.

Bigger donors

Yet, why Factoran, Esquivel, and Ayco were singled out as recipients of the campaign funds to be returned – out of the 96 donors who bankrolled Aquino presidential bid – remains a mystery.

After all, there were other donors who contributed more substantial amounts, including Aquino cousin Antonio ‘Tonyboy’ Cojuangco, who topped the list with his P100-million contribution; businessmen Martin Ignacio Lorenzo and Chiong Bu Hong, who gave P20 million each; Aquino’s youngest sister and entertainment celebrity Ma. Kristina Bernadette A.Yap, who gave P15 million; and current Finance Secretary Cesar Purisima, who gave P10 million.

The closeness to Aquino of the three donors handpicked to receive reimbursements is well established, however.

Factoran had served as environment and natural resources secretary of Aquino’s mother, the late President Corazon ‘Cory’ C. Aquino. 

Architect Gerardo ‘Gerry’ Esquivel is Aquino’s friend from high school at the Ateneo de Manila University. The chairman of ASEC Development and Construction Corp. that was contracted to build the Tribeca 3 and 4 Towers, Esquivel was appointed administrator of the Metropolitan Waterworks and Sewerage System (MWSS) by Aquino on Jan. 15, 2011.

Dr. Alexander ‘Alex’ Ayco is a cardiologist who assisted Cory Aquino during her treatment for colon cancer and until her death on Aug. 1, 2009. On Jan. 31, 2011, President Noynoy Aquino appointed Ayco as board member of the Philippine Health Insurance Corp. or Philhealth.

The PCIJ contacted Rafael ‘Rapa’ C. Lopa, Aquino’s cousin and executive director of the Ninoy and Cory Aquino Foundation, who was his most trusted representative to donors – apart from his four sisters – during the campaign. Lopa promised to check what had happened to the excess campaign funds with a group assigned to “post-election issues” that included Aquino’s election lawyer Eloisa De Vera Sy.

On Jun. 30, 2010, Aquino had appointed Sy as deputy presidential legal counsel. Sy passed the bar in 2004 and since then has worked with the law firm MOST (Marcos, Ochoa, Serapio & Tan) of Executive Secretary Paquito N. Ochoa, Jr.

She served as Aquino’s lawyer in the 2007 elections, at about the same time that she also counseled now Sen. Ferdinand ‘Bongbong’ Marcos, Jr. in the Marcoses’ alleged ill-gotten wealth cases before the Presidential Commission on Good Government. Marcos’s wife, Louise Araneta-Marcos, is a founding partner of MOST Law.

More questions

PCIJ sought further explanation in large part because Lacierda’s accounting of how Aquino disbursed his excess campaign donations raises more questions and doubts when assessed against election laws and revenue rules.

Reviewing Lacierda’s explanation on PCIJ’s request, Commissioner Lim himself commented in an interview: “The question is, what happened to the money? Is it there or isn’t it? Did you spend it? Aren’t you accountable?”

Lim said that if the President indeed returned part of the sum to some donors, “then there should be a receipt” of the return. If he did not, said Lim, “then he should have recorded it in his ITR” for the year 2010, when the excess donations were realized.

President Aquino’s options, he reckoned, include filing an amended ITR to recognize the amount, and perhaps donate the same to charity “or to the National Treasury, para mapakinabangan pa ng bansa (so the country can use it).”

2 BIR regulations

To verify the explanation Lacierda gave in his letters to the PCIJ, the PCIJ also interviewed BIR Commissioner Kim Jacinto Henares, who had also volunteered during Aquino’s campaign for the presidency.

Henares said that she would have to verify whether or not Aquino remitted P18.36 million in withholding tax payments for expenses incurred during the campaign. But she also said if it turns out that the BIR had records of such, they would not be able to release the information. “You have to ask the president,” she said.

According to Henares, though, there are two revenue regulations pertinent to the discussion.

The first is BIR Revenue Regulation 8-2009 issued on Nov. 12, 2009, which was issued by Henares’s predecessor, BIR Commissioner Joel Tan-Torres. It requires political parties and candidates to withhold a five-percent creditable withholding tax on their payments to their suppliers of campaign-related goods and services.

A tax on the income of suppliers, parties and candidates were directed to pay suppliers only 95 percent of the actual value of the goods and services purchased, and provide suppliers BIR Form 2307 to indicate the deduction on their payments. Come income-tax payment time, suppliers may then claim from the BIR creditable withholding tax credits.

In their election expense reports to Comelec, candidates and political parties were logically expected to already reflect the withholding tax deductions, as part of their total campaign expenditures. In Aquino’s case, the P403-million total expenditures he reported should have already accounted for the P20.15 million in withholding taxes that he should have remitted to the BIR early on.

And here’s why Lacierda’s claim that Aquino used P18.36 million of his P36.9-million excess campaign donations to remit to the BIR the “5% creditable withholding income tax” muddles more than it clarifies.

Bad implications

According to Commissioner Lim, Aquino should have already included that tax as part of the P403-million total expenditures that he reported to the Comelec. Even if one assumes Lacierda’s recollection is accurate, his computation is not: five percent of Aquino’s P403-million total expenditures comes up to P20.15 million.

The implications are bad: It’s either Aquino had under-reported his expenses in his Comelec report, or he had under-declared the withholding tax he remitted to the BIR.

Lacierda’s explanation also suggests that Aquino paid the withholding tax on his campaign expenditures after he had realized excess campaign donations.

Under BIR’s Revenue Regulation 8-2009, this is wrong, or at the very least, late filing. It states clearly that “the 5% CWT (creditable withholding tax) for a particular month shall be remitted to the BIR within ten (10) days after the end of each month, except for taxes withheld for the month of December of each year, which shall be filed on or before January 15 of the following year.”

But then Lacierda’s computation was odd in another sense: P18.36 million is about 50 percent, not five percent, of Aquino’s P36.9-million excess campaign donations. But, of course, Lacierda said the P18.36 million referred to the “5% creditable withholding tax” on Aquino’s campaign expenditures that totaled P403 million.

Not finder’s keeper

The second pertinent BIR rule, according to Henares, is Revenue Regulation 7-2011, which bears her and Finance Secretary Purisima’s signatures and is dated Feb. 16, 2011. The regulation states that it “shall take effect immediately” even as its text was published in the newspapers only in mid-June 2011.

This is where the BIR ruled that excess campaign contributions “shall be considered as subject to income tax and as such, must be included in the candidate’s taxable income as stated in his/her Income Tax Return (ITR) filed for the subject fiscal year.”

Henares told PCIJ that the ruling seeks only to clarify what should in fact be clear and self-explanatory to all candidates: that their unused excess campaign donations should be recorded as part of their income, and thus, taxed.

She said the BIR issued this regulation to cover “certain types of income that have not been classified as taxable.” In the case of politicians and candidates, these include excess campaign donations. “If you have donations and you spent it (during the campaign), okay, that’s tax-exempt,” said Henares. “But if you did not, then you must pay taxes. There’s no finder’s keeper situation here.”

Before the regulation, she said, revenue laws affirmed that a taxpayer may earn income from generally three sources: his/her earnings or compensation, donations, and inheritance. In all cases, the BIR recognizes a “tax incident” or taxable transaction. Remarked Henares, “We don’t really care, we don’t judge, where you got your money, whether legally or illegally, for as long as you pay taxes.”

Asked if the BIR had known which candidates had reported excess campaign donations when it issued the regulation, Henares replied: “No, we did not. We have heard anecdotal stories but had not seen the reports filed with the Comelec.”

Asked if she or Purisima, who donated P10 million to the Aquino campaign, had known that the President had reported excess campaign donations when the BIR issued the regulation, she said, “Is that so? No, we did not.”

“If they returned the money, okay,” said Henares. “This is not about politics. We apply the law the way it should be applied. We don’t really care who it is.”

Unresolved

Some questions hang still: Did Aquino, in fact, realize P37 million in excess campaign donations or just P18 million? And had he, in truth, returned part of the amount to some donors, even as one of these said he was told it was just a plan for now?

Commissioner Lim of Comelec said that these matters must be clarified, especially since Aquino had himself shown initial honesty when he admitted he had excess campaign donations.

“Maybe the P36.9 million is excess only on paper,” Lim told PCIJ. “Campaign donations are often reported as gross amounts, and expenditures as either gross or net of withholding taxes.”

Nonetheless, Lim said that if Aquino had returned the amount to some donors, then these same donors would have to amend the amount of tax-deductible donations they had reported in their income tax returns for the year 2010.

But Lim admitted that because the rules on excess campaign donations were not as crystal back then during the campaign, “I won’t blame the candidates if they got confused.” Perhaps, he added, the rules should be strictly enforced beginning with the next elections.

“If I were a candidate, I (would) wish there was a law that says I could just return the excess money,” Lim said. For one, he sees Aquino’s decision to return his excess donations to some and not to all of his donors, problematic in itself. Noted Lim: “What standards should we use to return the money to certain donors, and how do you select which donors should get his money back?”

Quasi-public money

Election lawyer Luie Tito F. Guia meanwhile stressed that at core, the issues come down to “a question of disclosure” on the part of the president. Said Guia: “We should be told: Had he or had he not returned the money? If he had, where is the receipt? If he had not, where is the money?”

“All of these details are important,” he said, “because their explanation was given only as a reaction to inquiries from the press.” But he said that it is well and good that “they recognize the fact that they have to account for the money.”

Unless prompt and full disclosure is made by the Palace, Guia says that Lacierda’s explanation could just be dismissed as “mga paliwanag na naghahanap lang ng palusot, at baka di-nag-su-shoot ang mga palusot (excuses that are being passed off as explanations, and maybe the excuses aren’t quite cutting it).”

At day’s end, Guia said that discussing rules on excess campaign donations could have positive outcomes. “Perhaps the Comelec could take up this matter and rule on the issues,” he said.

In Guia’s mind, campaign donations are “quasi-public funds” that citizens give to support “a public good” – the conduct of elections. The funds should not go to lining the pockets of candidates, he said.

But while lawful limits on campaign spending remain unrealistic, and election laws are silent on what candidates should do with excess donations, Guia said that the predominant picture is both candidates and election officials tend to ignore breaches of the law, or even mindless spending by some candidates.

Worst of all, Guia pointed to a situation that recurs across the nation every election period: “’Yung iba kumakandidato bilang hanapbuhay. Hindi na gumagastos ng sariling pera, kumikita pa (There are those who make running for elections as a means of livelihood. They not only don’t spend their own money, they even make money).” - With research by Karol Anne M. Ilagan, PCIJ, July 2011

THE Judicial and Bar Council (JBC) was purposely created by the 1987 Constitution to depoliticize and to open up to the citizens the screening of nominees and appointments to the judiciary.

To achieve this, Associate Professor Dante B. Gatmaytan of the University of the Philippines College of Law says the JBC should have looked with favor at full transparency – in the conduct of its processes and in the handling of all its records – as both premise and armor of its grave mandate.

Created by the 1987 Constitution, the JBC is 24 years old but still, it seems to be taking only baby steps. Its transparency and access to information practices continue to swing from close to open, then close again, regimes.

In recent years, buffeted by demand from civil society groups that have zealously monitored its work, the JBC has opened up its processes and records somehow. Yet soon after the demand has died down, and the citizens have stopped looking and asking, it reverted to just token disclosure of the details of its work.

On July 23, 2010, in a letter to the Supreme Court Appointments Watch (SCAW), a network of alternative law and transparency groups, the JBC disclosed “excerpts of the minutes” of its en banc meeting that offered data on which JBC members voted for which nominees to a vacancy in the Supreme Court then.

The letter signed by JBC executive officer Annaliza S. Ty-Capacite, said that the JBC “also agreed to your (SCAW’s) proposal to have the voting records posted (on) the JBC website, but only after the approval by the Council of the minutes containing the said record.”

Months later, the JBC would hold new rounds of screening for nominees to three vacancies in the Court of Appeals, and another in the Sandiganbayan.

By yearend, as it had assured SCAW, the JBC posted on its website (http://jbc.judiciary.gov.ph/) “result of voting” reports that disclosed only the tally of votes that the nominees got. Curiously missing were the more instructive details that SCAW had wanted and which the JBC had promised to share – which JBC members voted for which nominees.

Transparency test

UP law professor Gatmaytan sees transparency as a major test of how judicious the JBC conducts itself vis-à-vis its constitutional duty to allow the citizens front-row seat to the screening of candidates to plum posts in the judiciary.

Gatmaytan had recently co-authored with wife and Northeastern University graduate student Cielo Magno a seminal study titled “Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008)” that was published in the Asian Journal of Comparative Law.

He says: “The JBC was created in response to the politicized selection of justices. Under Martial Law, there was no check on the president’s power to appoint and it was said that most of his appointees did not satisfy the minimum requirements. They were mostly classmates of fraternity brods, and there was no intervention on the part of the public.”

Lawyer Nepomuceno A. Malaluan of the Right to Know, Right Now! Coalition of 160 groups and individuals pushing the passage of the Freedom of Information bill, could not agree more.

Transparency, he says, is the only effective check on the tenuous “balance of power” among the three branches of government that are all represented in the JBC.

“One way to remedy the imbalance is to let sunshine into the JBC to facilitate greater public scrutiny of its performance,” Malaluan says. To achieve this, the JBC “must be committed to providing the largest measure of transparency and public access to its processes and to the documents under its custody, both pertaining to the applicants and to the JBC actions.”

By its own rules, the JBC screening process starts with an open call for applications and recommendations (and submission of the nominees’ personal data sheets or PDS and other documents), publication of the list of nominees, public interviews with the nominees, executive or closed-door sessions of the JBC members, and finally, a public statement on the summary of votes that the shortlisted nominees obtained from the eight-person JBC.

As soon as the JBC has submitted its shortlisted nominees – at least three for every vacancy – the President may choose his appointees to the court within 90 days.

Not quite open

At critical points in the process, however, the JBC seems to be swinging from open to close regimes of conduct. It holds public interviews with the nominees but bans the recording and broadcast of the proceedings by the news media. It reveals some data about the nominees but routinely rebuffs requests of citizens’ groups for copies of many other documents that reveal more details about the nominees.

The JBC keeps under virtual lock and key those that reveal more than just the educational background and work history of the nominees, the details of their business, financial, and political connections.

Apart from the PDS, under the JBC’s rules the nominees and applicants must submit sundry documents – income tax return for the last two years; current year’s clearances from the National Bureau of Investigation, Ombudsman, police, place of residence, Integrated Bar of the Philippines (IBP), Office of the Bar Confidant, and employer; certificate of good standing or latest official receipt from the IBP national treasurer; affidavit that the applicant was not a candidate in the immediately preceding election; proofs of age and Filipino citizenship; results of medical examination and sworn medical certificates; and statements of assets, liabilities, and net worth (SALN) for the past two years.

“Those who fail to comply with the requirements shall not be considered for interview nor considered for nomination,” the JBC has advised.

Tricky matter

The last document in the list, the SALN, is assuredly a tricky matter for the JBC to decide, especially for those nominees coming from the judiciary. Jurists made up nearly six of every 10 applicants that the JBC had screened from 1988 to 2008, according to Gatmaytan’s study.

But since 2006, the Supreme Court has enforced a policy restricting access to the SALNs of all justices, judges, and down to the lowest ranked personnel of the judiciary. This policy, the high court had explained in a “Media Backgrounder” paper, seeks to spare and protect the members of the bench from possible harm and blackmail that could come from irate litigants.

Thus, it would seem like wishing for the JBC to disclose the SALNs of the nominees to the judiciary from the judiciary is whistling in the dark. The JBC and the Supreme Court share just one chair and presiding officer – the chief justice. In addition, two of the seven other JBC members are retired justices.

Apart from the SALNs, citizens’ groups have sought copies of the other documents that the nominees have submitted to the JBC. Invariably, their requests have been met with token action, indifference or outright denial.

Gatmaytan knows as much. For his and his wife’s study on the work of the JBC in its first 20 years of existence, he had tried but failed to unlock doors to JBC documents. “The JBC was created to depoliticize and open up the selection of justices but it is even more secretive now,” he tells PCIJ in an interview. “(As) others have explained,” he writes in his study, “the likelihood of obtaining documents from the JBC is ‘practically nil’ as requests for data are repeatedly turned down.”

More than just accessing documents, he stresses a need for the JBC to respect the public’s right to know. “It goes back to the question of how much we know about the nominees, from the beginning… and it’s clear they got in not because they are relatives or friends but because of objective standards”

The worrisome cases, he adds, are when the public is not informed “if the nominees are related to the members of the JBC,” or could face “potential conflict of interest situations,” especially for those coming from the private sector, or have been remiss in filing asset disclosure statements, especially for those coming from the public sector.

A better informed public, Gatmaytan says, may appreciate the work of the JBC more. “If the process is clear and open to the public, the selection system becomes more legitimate to the public, and the results more acceptable to the public.”

Must know more

In contrast, resorting to secrecy is a path to confusion and failure. He says: “If we keep everything secret, which is how the JBC seems to view its work from the very beginning, keep the public out of it and have nobody involved… it erodes our confidence in the selection process and creates more problems.”

In Gatmaytan’s mind, the JBC should uphold the public’s right to know more about those who would later sit as judge over their lives, rights, and welfare. “We can find out more about the nominees if we are allowed access to their background and more data other than their age, present job, or from which law school they graduated, which are already reported in the news.”

Knowing more about those who would be jurists or Ombudsman is a first step, he says, for citizens “to be more concerned about the quality and diversity” of the courts.

To be sure, Gatmaytan affirms that the JBC’s public interviews afford the citizens a chance to see and listen to the nominees. But these forums also have become no different from the sneak previews or trailers that are shown in movie theaters, with the citizens allowed only to watch in silence.

This is because during the interviews, only the eight JBC members can ask questions. And while the proceedings are documented in writing, cameras and tape recorders are banned, and live TV and radio coverage disallowed.

And although the interviews are open to the public, Gatmaytan says those who have attended the events have raised some observations: the questions are not probing enough, and the interviews seem to be rushed, especially when the JBC has to deal with so many nominees racing after the same plum positions.

Two selection proceedings have been launched of late by the JBC – for nominees to two vacancies in the Supreme Court, and for the position of Ombudsman. Already 28 persons have applied or been recommended to the high court positions, and 32 others, to the Ombudsman’s job.

Once the public interviews are done, public access to the JBC virtually ends as the members repair back to executive sessions. They are furnished the “reports of the interview” that the JBC secretary is instructed to keep secret. “The reports are hereby declared strictly confidential documents which shall be available only to the Members of the Council,” states the JBC’s rules.

Off-limits, secret

With the confidential reports on hand, the JBC members then meet behind closed doors to “draw up” their short list of nominees. They vote using numbered ballots, and the results are tallied by the JBC secretary.

This most critical phase of the JBC’s work remains sub rosa or secret and off-limits to the citizens. Afterwards, the JBC issues a public statement on the “result of voting” for the nominees, sharing only what they like to share with the public.

In July 2010, they disclosed who they voted for; in November 2010, they revealed only the tally of votes that the nominees got.

Rep. Niel Tupas, Jr. of Iloilo, who sits in the JBC as chairman of the House of Representatives’ committee on justice, says that he had been told that the JBC has been disclosing how its members voted. This was decided, he adds, on motion of the late Jay Castro, until his recent death the JBC representative of the Integrated Bar of the Philippines or IBP.

Gatmaytan says that it would do the JBC well if it observes full transparency and disclose how its members voted so the citizens may know why some nominees had been shortlisted and others not. Tupas says he agrees absolutely, adding that he will try to do what he can to open up the JBC process some more.

More reforms

To vote openly and to disclose their vote. At the very least, this is what the JBC members owe the citizens, according to lawyer Malaluan. “The process of appointing justices and judges is critical to the independence and competence of the judiciary. The same is true for the appointment of the Ombudsman.”

But Malaluan says there’s a lot more that the citizens deserve from the JBC. During the nine-year rule of Gloria Macapagal Arroyo, he cites that SCAW and the Bantay Korte Suprema – which drew law schools and media agencies as partners – have mounted vigorous scrutiny of the JBC. The result: numerous proposed reforms for the JBC to do better by the citizens.

These included, Malaluan says, stopping the practice of reappointing regular members

of the council, limiting to three the number of nominees for each vacant position (as required in the Constitution); implementing a more transparent evaluation system; adopting an open voting policy; and rejecting lists of JBC nominees returned by the President without appointment.

Apart from these reforms, however, the monitors of the JBC’s work point to even bigger concerns that are more difficult to settle as quickly. They lament the seemingly qualitative flaws, undefined standards of “the principles of integrity, excellence and competence” against which the JBC members must measure the nominees, or even the backroom wheeling-dealing that sometimes still mar the vote for or against certain nominees.

More research

Leslie Flores of the Transparency and Accountability Network (TAN) that is coordinating the SCAW initiative observes that the JBC seems to lack the people and skills to do “thorough research” into the background of the nominees. The result is a JBC that tends to go easy on job applicants to the judiciary.

In her September 2009 article titled “Lessons from US Supreme Court Appointments: A Quick Look at Justice Sotomayor’s Experience,” Flores compares that when U.S. President Barack Obama nominated Sonia Sotomayor to sit as the first Hispanic and third woman justice of the 200-year-old U.S. Federal Supreme Court, her public and private backgrounds were fully unearthed by officials from the White House, the U.S. Justice department, as well as the Federal Bureau of Investigation. This rigorous pre-screening scrutiny of the nominees does not happen in the JBC, she avers.

Instead, in the JBC’s public interviews, Flores says all the nominees are asked mostly “standard” questions such as their “reason(s) for applying as Supreme Court Justice, their concept of justice, judicial philosophy, their view on the expanded jurisdiction of the Supreme Court… (their) most important contribution to the Supreme Court… how the JBC can improve its processes.”

Indeed, specific questions have been raised, including “Charter Change, Executive Privilege, death penalty, and other current issues.” The candidates have also been asked about their “achievements, expertise… significant cases they have handled…their judicial performance.”

Apart from unraveling the hopes, the wishes, and the self-image of the nominees, however, these questions do not reveal as much background and critical data that may later trigger real or potential conflicts of interest, or offer more insight into the character of the nominees.

Opaque standards

Malaluan sees another gap in the JBC’s work: the standards or measure of why JBC members vote for or against the nominees. “One of the most crucial demands is opening up the evaluation system of the JBC… clearer and standard evaluation system for opaque qualifications such as competence.”

Then, too, he says, the “balance of power” in the JBC that draw representatives from all three branches of government bears constant monitoring. “Through the JBC, the President’s choice is restricted to the list of nominees prepared by the JBC,” Malaluan says. Yet how, indeed, could one branch be stopped from dominating the two others so the integrity and independence of the JBC may be preserved?

There is need, according to Malaluan, for all sorts of “checks” that to prevent this, even as “the balance of power over the composition of the council has tilted in favor of the President” who appoints the four regular members, as well as the Justice secretary.

By sheer tyranny of numbers, too, the pro-administration ruling party or coalition in the Senate and in the House of Representatives, get to appoint the chairs of their committees on justice – who in turn get to sit in the JBC. Too often, these committee chairs would be party allies of the president, too.

The unhappy result, Malaluan says, is some nominees have resorted to pulling strings with some politicians. “With the balance of power in the JBC tilting in favor of the President, applicants for vacant positions in the judiciary and the Ombudsman vie for the endorsement of influential politicians, with those close to the President enjoying a premium.”

Ironically, the JBC has crafted for itself a lofty vision. Its marker at the Supreme Court’s Centennial Building proclaims that it wishes to become “a JBC that is independent, efficient and a proactive sentinel of judicial service, guided only by the principles of integrity, excellence and competence; unfettered by the shackles of friendship, relationship, or other considerations, thus vesting the cloak of Magistracy on those who will best dispense justice for all.”

Additionally, in its mission statement, the JBC promises among other things, “to promote transparency and public awareness of matters involving the nomination process in the Council,” as well as “to insulate the nomination process from undue influence of any kind.”

In theory, the JBC seems certain about where it wants to go, yet also in practice, unsure how to get there. In its 24-year life, it has fluttered from a closed to a somewhat open, then back again to a closed regime of transparency and access.

The next few weeks will test the JBC’s practice. It will soon resume screening nominees to two vacancies in the Supreme Court, and to the Office of the Ombudsman, under a new regime that embraced transparency, accountability, and good governance as its battle cry. – PCIJ, May 2011

MOSTLY old, mostly male, mostly born and bred in imperious Luzon and all schooled in imperial Manila. Two in every three were jurists and bureaucrats in their previous lives, and thus, also mostly creatures of habit and routine. In the last 20 years, while 15 of the 80 nominees were female, only three women were eventually appointed.

This seemingly impregnable enclave of the elite is actually the Philippine Supreme Court, the most majestic of all the country’s courts, the final arbiter of constitutional questions, and “the last bulwark of democracy” in the land.

Yet unlike Philippine society, which is becoming more diverse with big numbers made up of the poor, the female, the young, and the rural dwellers, the high court is as homogeneous as when it was born in 1901.

And despite democracy’s rebirth in 1986, the Supreme Court remains an exclusive club, no thanks to the still largely opaque, weak, and snobby processes of two entities responsible for screening nominees and appointees to the tribunal: the Judicial and Bar Council (JBC) and the President of the Philippines.

These are among the findings of an academic paper on the work and output of the JBC from 1988 to 2008 that was published recently in the Asian Journal of Comparative Law.

Titled “Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008),” the paper was co-authored by spouses Dante B. Gatmaytan, associate professor at the University of the Philippines College of Law, and Cielo Magno, Fulbright fellow and Ph.D. candidate at Northeastern University in Boston, Massachusetts.

The paper is “an empirical study on the nominations and appointments of Supreme Court justices” in the first 20 years of existence of the JBC, or since it was created in the 1987 Constitution precisely to open up the process to the citizens.

It offers a profile of individuals nominated by the JBC based on gender, age, geographical origin, academic background, and professional experience. As well, it explores “whether the appointing Presidents display any preferences based on personal characteristics relating the effects of these preferences to the diversity on the Supreme Court.”

Same, same crop

Among other findings, the study shows that the nominees and appointees to the high tribunal in the last two decades came from the same background. This homogeneity, the study says, “is sorely unrepresentative of Philippine society,” adding that future research on the high court may hopefully help “determine how this lack of diversity on the Supreme Court can affect the resolution of legal issues.” This lack, say Gatmaytan and Magno, “could also have implications for minorities who may not view the court’s decisions as legitimate.”

The data point to issues that deserve further scrutiny, the couple says. “Supreme Court nominees tended to have the same gender and age, to come from the same region, and to be trained in Manila,” they write. “All the appointees to the Supreme Court came from the same pool of hopefuls.”

Moreover, “with few exceptions, the Presidents appointed nominees with the same gender, age, geographical origin and legal training,” say Gatmaytan and Magno.

For some reason, however, the composition of the Supreme Court, and the social and career background of its justices has generated scant scholarly interest in this country. In 1979, it took an American, C. Neal Tate, to focus his doctoral dissertation on The Social Background, Political Recruitment, and Decision-Making of the Philippine Supreme Court Justices, 1901-1968.

Gatmaytan and Magno meanwhile say that their study on the 20-year record of the JBC from 1988 to 2008 is “necessarily preliminary” because of the dearth of publicly available information on the work of the body, and on the nominees it has screened for appointment to the high court.

“(As) others have explained,” they write, “the likelihood of obtaining documents from the JBC is ‘practically nil’ as requests for data are repeatedly turned down.”

Indeed, the duo obtained the information on the list of nominees and appointees from the inception of the JBC in 1988 through February 2006 through the Philippine Center for Investigative Journalism (PCIJ), in particular via the help of the late Alecks Pabico, at the time PCIJ’s training and multimedia director.

(A list of nominees toward end-2008 was submitted by the JBC to then President Gloria Macapagal Arroyo but because she did not fill the vacancy sooner, those nominees were not included in the study of Gatmaytan and Magno.)

Diversity good

In contrast to the paucity of analytical studies focusing on the Philippine high court, a bounty of literature in the United States – in whose image, likeness, and procedures the Philippines has evolved its judiciary – has inquired into the traditional, political, and professional criteria that influence Supreme Court appointments.

Observe Gatmaytan and Magno: “The literature (in the United States) is thick with arguments that favor the constitution of diverse collegial courts… (and) that judicial diversity is a means of attaining judicial independence and accountability.” Many of these studies suggest, the authors say, “that the appointing powers should strive to create a more diverse Court by taking career experience as seriously as they do race and gender.”

Additionally, these studies say that “requiring prior judicial experience produces in the Court a homogeneity that prevents it from operating optimally.”

“The importance of these studies cannot be overemphasized,” write Gatmaytan and Magno. “Decisions are more likely to be regarded as illegitimate if the decision-making body, whether by a jury or judge, ‘is homogeneous, exclusive, and not representative of a cross-section of the community.’”

The scholars, citing various authors, also say that two arguments favor diversity in the high court – greater diversity “may increase the public trust in the court” and that “the diversity of information and views held by the justices will increase the total information provided to the Court, which will lead to more informed and better decisions.”

From 1901 to this day though, Gatmaytan and Magno note that Tate had found that the high court “constituted part of the political elite that was far less representative than most other elites.”

They quoted Tate’s study as saying that, “the under-represented regions” were “those with the highest population growth and low rates of literacy” or the very places “where social problems are considerably greater.”

The University of the Philippines, they continue, “supplied the majority of the appointees in the post-colonial period (from 1946) since they began churning out graduates in 1913,” and since 1962, “all but two of the justices graduated from the University of the Philippines.” In contrast, the colonial period was “dominated by graduates of the University of Sto. Tomas, the oldest university in the Philippines.”

Back then, as it remains so today, about two-thirds or 58 percent of the justices came from the ranks of the judiciary, notably the Court of Appeals. Then and now, too, Gatmaytan and Magno, citing Tate’s study, say that 25 justices came from the bureaucracy, “usually from the Department of Justice,” while the rest of the justices came from private practice, the academe, and politics. In Tate’s study, the mean age of Supreme Court justices was 57.1 and their mean tenure, 9.2 years.

Law vs practice

According to Gatmaytan and Magno, Tate also discovered that “there was no uniform route to a Supreme Court judgeship – recruitment to the highest court was not ‘simply the reward for long-serving, brilliant, or otherwise ‘meritorious’ judges, despite widespread public endorsement of this idea as a recruitment norm.”

At the very least, though, the 1987 Constitution had enshrined “safeguards to strengthen judicial independence,” including the creation of the JBC and having the appointment of all judges by the president  “no longer subject to confirmation” by the Congress’s Commission of Appointments.

But Gatmaytan and Magno say that there are disparities between what is written in the Constitution and the practices of the JBC.

As a constitutional body, the JBC is tasked to screen candidates for vacancies in the judiciary and then submit to the president the names of at least three nominees for each vacant position.

Created purposely “to limit the President’s discretion in the selection of judicial appointees,” the JBC is chaired by the Supreme Court chief, and should, in law, have only six other members.

Like the chief justice, the Constitution says the justice secretary and a representative of Congress will sit in the JBC as ex-officio members. The four other “regular” JBC members, according to law, are a retired justice and a representative each from the academe, the private sector, and the Integrated Bar of the Philippines.

In practice, however, two representatives from Congress sit in the JBC – the chairs of the respective committees on justice of the Senate and the House of Representatives – thus making for an eight-member JBC. In practice, too, all eight members, including the chief justice, cast one vote each for every nominee, including the three ex-officio members.

Rep. Niel C. Tupas, Jr. of Iloilo, the House’s JBC representative, tells the PCIJ that the Constitution allotted just one JBC seat for Congress apparently because the framers had thought that  the country would have a unicameral legislature.

And whether or not the ex-officio members can and should vote is a question that, he says, the JBC has settled by tradition and not by law. Explains Tupas: “Ex-officio here means ‘by virtue of’ our office, so we sit in the JBC as representatives of our chambers. Ex-officio here does not mean we don’t have voting rights. By tradition, all the eight JBC members cast a vote for the nominees.”

The Constitution, however, does not explicitly state that the JBC’s ex-officio members have voting rights.  A contrary practice exists elsewhere. In Republic Act. No. 4884 of 1966 (which created the National Police Commission or Napolcom) and Republic Act No. 8551 of 1998 (which established the Philippine National Police), two ex-officio members of the Napolcom board are explicitly stripped of voting rights. They are the secretary of Interior and Local Government, who serves as Napolcom chair, and the director-general of the PNP.

Frequent tryouts

Gatmaytan and Magno also found that in the first two decades of its existence, the JBC screened 80 individuals who have been nominated to the Supreme Court, in 35 rounds of nomination processes. But because some of them were nominated more than once – in one case nine times even – the JBC actually submitted a total of 208 nominees to the Supreme Court during the 20-year period.

“Twenty-nine were nominated only once while 51 individuals were nominated multiple times,” say Gatmaytan and Magno. “On the average, nominees were included in the list 2.5 times.”

This trend of several names reappearing as applicants and nominees for the position of justice is worrisome, say the scholars.

“Repeated nomination to the Supreme Court could indicate a shallow bench from where nominees are recruited,” they argue. “This does not augur well for diversity on the court.”

As it is, of the 80 individuals who were included in the list, 65 or 81 percent were men, and only 15 or 19 percent, women.

By background, a vast majority of the nominees came from government service: more than half or 63.8 percent from the judiciary, and another 17.5 percent from the Executive branch. The latter included commissioners of the Commission on Elections (Comelec) and the chairman of a Presidential Fact-Finding Commission on the botched coup attempt of December 1989. The other nominees came from private practice (8.8 percent).

In the first three screening processes it conducted, the JBC submitted only three names for each vacancy to the president, the minimum requirement in the Constitution. Later on, its lists enrolled an average of six names, with a ratio of five male nominees to one female nominee. On one occasion, the JBC list contained as many as 11 names. The study’s authors found no pattern of an increasing number of women nominees over time.

By island-group of origin, 75.6 percent of the nominees came from Luzon, seven percent from the Visayas, and three percent from Mindanao.

8 in 10 males

Out of the 35 screening processes and 80 nominees to the Supreme Court from the JBC, four Philippine presidents who served from 1988 to 2008 appointed 41 justices to the high tribunal.

The average age of these judicial appointees was 63 years, or just seven years shy of the mandatory retirement age of 70 years under Philippine law.

Also among Gatmaytan and Magno’s findings are that an overwhelming 78 percent of these justices were male, and only 22 percent female.

About half or 20 justices graduated from the University of the Philippines. Five justices each came from the Ateneo de Manila University and San Beda College, three each from the University of Sto. Tomas and Manuel L. Quezon University. Three others came from other law schools also located in Metro Manila.

All the 41 justices were educated in Metro Manila, but only 12 had pursued advanced degrees after obtaining law degrees.

A vast majority of 31 justices or 75 percent originated from Luzon, including 14 from Metro Manila. Only seven justices came from the Visayas, while three were from Mindanao (two from Davao City, and one from Zamboanga City).

Presidents’ quirks

In addition, the study reveals the unique preference patterns of the four presidents – the late Corazon C. Aquino (1986-1992), Fidel V. Ramos (1992-1998), Joseph Estrada (1998-January 2001), and Gloria Macapagal Arroyo (February 2001-May 2010) – who appointed the 41 justices.

Ramos and Arroyo appointed 14 justices each for a total of 28, while Cory Aquino appointed seven, and Estrada, six.

Cory Aquino in truth appointed more justices before the JBC was born under the 1987 Constitution. When she took power in February 1986 after the late strongman Ferdinand E. Marcos was ousted by four days of massive people power rallies, she installed a “revolutionary government,” abolished the Supreme Court, and replaced it with an entirely new slate of justices.

Arroyo appointed Antonio Carpio justice when he was just 52, making him the youngest ever to be appointed to the high court. In contrast, Jose C. Campos, Jr. was appointed associate justice when he was already 69 years old, or just months away from the mandatory retirement age of 70. He served in the high court only from Sept. 3, 1992 to April 8, 1993.

Good-bye boys?

Still and all, all four presidents showed a predilection for appointing mostly grey, old men to the high court, or justices in their twilight years, or on the verge of retirement.

But there are fine distinctions among the four chief executives when it came to appointing women. Of the six justices Estrada appointed, three were women. Ramos, for his part, did not appoint any woman to the court, even though the JBC included women in its lists of nominees during his term.

Interestingly, Gatmaytan and Magno note that the two women presidents, Cory Aquino and Arroyo, “did not appear to prefer women when they made their appointments to the Supreme Court, keeping them to a low 28.6 percent of their (respective) appointees.”

The elite law schools also emerge as the favored picking ground for appointees of the four presidents. “Almost three-fourths (71.4 percent) of Aquino’s appointees were from the University of the Philippines,” write the study’s authors. “Macapagal-Arroyo follows with half of her appointees coming from the same university.”

Ramos appointed six UP graduates, and Estrada only two UP graduates, to the Supreme Court.

But by last job posting, all four presidents seemed to have preferred snatching their justices from the ranks of the judiciary and other executive agencies.

Five out of the six justices Estrada installed in the high court were former judges. The sixth justice he appointed was not from the judiciary but was still an old government hand: then Comelec Chairman Bernardo Pardo.

Ramos chose 11 of his appointees from the judiciary; similarly, Cory Aquino and Arroyo snared more than half of their appointees from the ranks of judges (57.1 percent).

Ramos, Estrada, and Arroyo looked to the north too much as source of their appointees to the high court; three-fourths of their appointees were from Luzon. By comparison, Cory Aquino picked four of her seven appointees from the Visayas and Mindanao.

Senior citizens

Because of the mandatory retirement age of 70 years, naming senior citizens to the high court has triggered a fast turnover rate of justices. Cory Aquino and Arroyo performed well in this regard though – the justices they appointed had the longest average tenure (eight years).

In contrast, Estrada’s appointees served the shortest tenure (five years), while Ramos’s appointees, 6.4 years.

This is clearly a regression from the time Tate did his study on the composition of the high court from 1901 to 1968, or before Martial Law.

In Tate’s time and study, 57.1 was the mean age of Supreme Court justices, and their mean tenure, 9.2 years.

In the Gatmaytan-Magno study, from 1988 to 2008, the mean age of Supreme Court justices was 63, and their mean tenure, across all four former presidents, from 5.2 to 8.1 years.

Before Antonio Carpio, it was a Ramos appointee, Hilario Davide Jr., who had served the longest or for 14 years. Davide spent seven of those years as associate justice, and the next seven, as chief justice.

If the incumbent justices were included in the sample, Gatmaytan and Magano say the justices’ tenure would inch up to seven years on average, but still shorter than the 9.2 years average tenure of the justices until 1968.

This would explain why the Philippines had 41 appointees to the Supreme Court between 1988 and 2008 while the United States had a mere seven during the same period. All seven were still at the U.S. high court at the close of 2008.

In 2009, seven more new justices were appointed to the Philippine Supreme Court. – PCIJ, May 2011

FOUR anti-graft czars and 22 years since its birth on Nov. 17, 1989, the Office of the Ombudsman of the Philippines has failed to strike fear in the hearts of crooks, or summon full respect from the people it is supposed to protect against crooks.

All four chiefs of the Office  – the late Conrado M. Vasquez, who served from May 1988 to September 1995; Aniano A. Desierto, October 1995 to September 2002; Simeon V. Marcelo, October 2002 to November 2005; and the incumbent Ma. Merceditas N. Gutierrez, December 2005 to November 2012 – had launched their stints as the nation’s top graft-busters with firm, elaborate, hopeful reforms to fight corruption.

When the criticisms trickled in – invariably over low conviction rates, perceived partiality toward the presidents who appointed them, and sheer failure to cope with tremendous case loads and hail crooks to jail – all four trudged on. What they ended serving up, though, were not more and better results, but more excuses (Desierto and Gutierrez doing so more than the other two).

Criticisms and public censure, in fact, seem to have become par for the course for the Office and its head. But perception is one thing, reality is another. To try to gauge if all the brickbats the Office of the Ombudsman has endured so far is justified, the PCIJ did a careful reading of the database of the Sandiganbayan.

Being the record of cases filed and prosecuted by the four Ombudsmen during their terms, the database offers a fair reference of their respective real performances. What it shows is this: all four had rendered largely poor to modestly good performance, against the Ombudsman’s mandate set out in law.

Republic Act No. 6770, The Ombudsman’s Act of 1989, spells out this mandate thus: “The Ombudsman and his Deputies, as protectors of the people, shall 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.”

To assess the four Ombudsmen’s individual performance in office, the PCIJ mined the Sandiganbayan database to derive their respective “case survival record” or the tally of the total cases each filed during his/her term of office, as well as which of these ended up in the archives, were withdrawn by the prosecutor, dismissed for lack of evidence or with trial, triggered pleas of guilt, and resulted in the acquittal or conviction of the accused.

In total, the Sandiganbayan database that covers the period from May 1988 to December 2009 shows that more than 16,500 cases have been filed before the anti-graft court since the Office of the Ombudsman came into existence.

To be sure, there is more than one way of looking at the data at hand. Care had to inform the appreciation of the names, the numbers, and case status information enrolled in the database.  The cases also often involved more than one accused. Decisions may thus vary for each accused in the same case. As well, the same accused may be involved in a number of cases and receive different decisions for each.

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.

In her first four years in office, therefore, it could be said that Gutierrez secured the conviction of 49 persons per year on average, a figure higher than what the database yields for Marcelo, Desierto, and Vasquez, according to the years they served – 40, 32, and 30 persons convicted per year on average, respectively.

If the database were mined for only the cases that each Ombudsman filed during his/her term, Gutierrez would still be ahead with 223 case convictions. This accounts for 5.48 percent of the cases filed against 4,066 respondents from December 2005 to December 2009. Her predecessors scored lower: 3.96 percent for Marcelo, 3.19 percent for Desierto, and 4.38 percent for Vasquez.

Assuredly, though, speed has never been a strong suit of the Sandiganbayan. On average, the court takes 6.6 years to decide on cases. Thus, six out of 10 cases being handled by the Ombudsman under Gutierrez had actually been initiated and filed by her predecessors.

Good, bad results

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.

This backlog included the plunder case against former President Joseph Estrada that was filed in April 2001 under Desierto. Estrada was convicted of plunder in September 2007, on Year 2 of Gutierrez’s term, but was eventually pardoned by then President Gloria Macapagal Arroyo, who inherited power from Estrada after his impeachment trial at the Senate triggered a second people-power revolt.

Gutierrez’s 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.

This is where her score turns most sour: by number of actual persons convicted of corruption, the Sandiganbayan database shows that Gutierrez, in four years, has managed to secure the conviction of less than one senior official per year.

In contrast, her three predecessors scored much better in terms of the number of cases they filed during their terms, and the actual number of persons meted out convictions under their watch – 16, 36, and 62 officials per year on average, respectively, for Marcelo, Desierto, and Vasquez.

Snaring big fish

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.

Aside from Estrada and former Armed Forces comptroller Maj. Gen. Carlos F. Garcia – who pleaded guilty of bribery to evade prosecution for plunder – just a handful of officials have been convicted of corruption in the Ombudsman’s more than two decades of existence.

During his term, Vasquez filed cases against a congressman, 25 governors, and three vice-governors. Only two governors were convicted in only four of these cases. Under Vasquez’s watch, the rest of the respondents were either acquitted, or their cases dismissed, archived or dropped from information, transferred to other courts, or withdrawn by the Ombudsman’s Office of the Special Prosecutor (OSP).

Desierto, meanwhile, had to file suit against Estrada as a logical result of the latter’s aborted impeachment trial in the Senate, and Arroyo’s rise to power on the crest of a military-backed civilian uprising against corruption. Aside from the Estrada cases, the Office under Desierto sued six congressmen and 34 governors. Only five of these cases resulted in the conviction of five governors.

In recent days, Marcelo and Gutierrez have exchanged dagger looks and criticisms on the Senate floor. But the Sandiganbayan database shows that when it comes to snaring big crooks, they have more commonalities than differences. Both allied with and appointed Ombudsman by Arroyo, their record of prosecuting the big fish is zero. Marcelo was unable to secure a single conviction in cases the OSP filed against congressmen, governors and vice-governors during his abbreviated term. So far, neither has Gutierrez.

Marcelo filed cases against one congressman, seven governors and one vice-governor. All cases are either pending or had been archived or dismissed.

Gutierrez, for her part, has filed cases against one congressman, nine governors, and four vice-governors. All cases are either pending or had been dismissed or withdrawn by the OSP.

Unique patterns

Convictions aside, other unique patterns of performance by the four Ombudsmen emerge from the PCIJ’s analysis of the Sandiganbayan’s database.

For instance, the data show that the OSP under Gutierrez has withdrawn from the Sandiganbayan dockets an unusually high number of cases against 881 individuals between December 2005 and December 2009. These cases make up about 22 percent of the total cases that Gutierrez’s Ombudsman has filed against 4,066 respondents in four years.

This means that over two in 10 cases that Gutierrez has filed with the Sandiganbayan never even went to trial, indicating a waste of public funds spent in building cases.

Of the four Ombudsmen, Gutierrez’s sterling achievement is scoring the highest in terms of withdrawing cases. This, legal experts say, could be a sad commentary on the quality of case investigation, evidence build-up, and prosecution strategies employed by her team.

Meantime, of the four Ombudsmen, Marcelo scored the highest rate of case acquittals, by number of respondents: 12.16 percent. This means more than one in 10 respondents that Marcelo sued had been acquitted. Vasquez followed Marcelo in this category with 11.28 percent case acquittals, then Desierto with 10.91 percent, and finally Gutierrez, six percent.

If Gutierrez’s dubious accolade is scoring highest in withdrawn cases, and Marcelo in case acquittals, Desierto takes the lead in another category – he beat his fellow graftbusters in terms of the number of cases dismissed by the Sandiganbayan.

Under Desierto, the anti-graft court dismissed (or alternately, the Ombudsman lost) cases against a total of 6,749 respondents, the highest number posted by any Ombudsman. This number accounts for 35.17 percent of the total cases that the Office under Desierto filed against 19,189 respondents in seven years. In short, the Office lost in over three of 10 cases it filed during Desierto’s term.

The late Vasquez, the first Ombudsman who served from May 1988 to September 1995, is distinctive as well, going by the Sandiganbayan database. Under him, the Office posted the highest rate of archived cases. More than 6,000 cases were archived, or 32.88 percent of the cases the Office filed against 18,354 respondents in Vasquez’s seven years as Ombudsman.

Vasquez died on September 19, 2006, 16 days after his 93rd birthday. At the time of his death, he was the oldest surviving former Justice of the Supreme Court.

Sonny & The Firm

By their political and career records, too, it seems that not one of the four Ombudsmen was (and is) fully and freely unencumbered by a prior history of closeness to the president who had appointed him or her.

For instance, Marcelo – like Gutierrez – was initially a close associate of Arroyo, from 2000 to his resignation for supposed health reasons in September 2005.

Marcelo was a private prosecutor who handled the star witnesses, bank executive Clarissa Ocampo among them, against Estrada during the latter’s impeachment trial before the Senate.

Marcelo was a senior partner of what used to be called the CVC (Carpio Villaraza Cruz) Law or “The Firm.” On its website, The Firm boasts of being “the counsel to the Presidents.” More accurately, its senior partners had served and helped install two: Fidel V. Ramos and Arroyo.

Soon after Arroyo took power from Estrada in January 2001, she named Marcelo her first solicitor-general and blessed other members of The Firm with plum postings. Among them were Avelino Cruz, who served as presidential legal counsel and later defense secretary, and Antonio Carpio, Arroyo’s first appointee to the Supreme Court.

The Firm, after all, had spent handsome sums to get Arroyo elected  to a full six-year term as president in 2004, the balloting marred by the “Hello, Garci” wiretapping scandal.

In the Statement of Election Contributions and Expenditures that Arroyo filed with the Commission on Elections for her campaign in 2004, she named The Firm’s lawyers among her top donors. She said Villaraza shelled out P30 million in cash, while another senior partner, Raoul R. Angangco, put in another P8 million to keep her in Malacañang.

The P38 million from Villaraza and Angangco accounted for a fourth of the P152.61 million that Arroyo said she raised and spent on her own. Her party coalition, the 4K or the Koalisyon ng Katapatan at Karanasan para sa Kaunlaran, reported spending another P180.75 million to get its national candidates elected.

Ani and FVR

Like Marcelo and Gutierrez, personal and political ties could be said to have propelled Desierto to the Office of the Ombudsman.

After passing the bar in 1968, Desierto engaged in private practice of the law in Manila and his home province of Cebu until 1974. That year, he was appointed Judge Advocate of the Armed Forces, rising to the rank of deputy Judge Advocate General in 1988. He worked as a special prosecutor of the Ombudsman from 1991 and was installed head of agency by President  Fidel V. Ramos in August 1995.

Vasquez earned his law degree in 1937 from the University of the Philippines and after a brief period of private practice, joined the Department of Justice, became a trial court judge in 1954 in Manila and Batangas, and a justice of the Court of Appeals in 1973.

Vasquez had turned 68 in 1982 when the late strongman Ferdinand Marcos named him Supreme Court associate justice; he had to retire soon after turning 70 in September 1983. By the time President Corazon C. Aquino plucked him out of retirement to head the country’s newly born Office of the Ombudsman, Vasquez was already 75.

His daughter Leonora ‘Leny’ Vasquez de Jesus later emerged as the more politically connected family member, serving as chief of the Presidential Management Staff under Ramos, and then as administrator of the National Housing Authority under Estrada.

Promises, promises

By all accounts, Gutierrez, Marcelo, and Desierto launched their careers as anti-graft czars on elaborate, hopeful promises of reforms and results.

Desierto launched his stint as Ombudsman with what he called his “Eight-Point Comprehensive National Anti-Corruption Strategy,” that among other things, promised “punitive and retributive method of combating corruption and aggressive imposition of administrative sanctions through “an uncompromising, aggressive and efficient graft detection, evidence build up, investigation and administrative action,”  and the “speedy and uncompromising Investigation and prosecution of graft cases.”

In the end, Desierto dismissed charges against President Ramos, who had appointed him as Ombudsman, for his alleged role in what the political opposition called “The Grandmother of All Scams” or the controversial PEA-Amari deal, and in the alleged overpricing of contracts for the Centennial Expo.

Like his immediate predecessor, Marcelo as Ombudsman took to starting what he said was a fully comprehensive anti-corruption drive that defined parallel tasks, focus, and activities for other government agencies, civil society, the academe, the bar and the bench, and donor agencies.

In March 2005, or just two years  in office, Marcelo declared in a conference speech that the Ombudsman has identified “about 50 of the most prominent and high-impact cases at the Sandiganbayan, which involve high ranking government officials who are represented by the best lawyers that money can buy.”

These “big-fish” cases, he said, included  the President Diosdado Macapagal Boulevard case; RSBS Pension Fund Case; PEA–AMARI Scam; Tax Credit Scam Cases; DPWH Vehicle Repair Scam Case; PCGG Cases; and  the Maj. Gen. Carlos F. Garcia cases.”  He vowed to zero in on these cases, with the help of lawyers from the Philippine Bar Association that signed an agreement to volunteer with the Ombudsman.

But he would quit his post six months later, invoking health reasons. In a two-paragraph notice to Arroyo, he said he was “physically and mentally exhausted” from working seven days a week. It was under his watch that the cases for bribery and plunder against General Garcia were started but because he had resigned, work on the cases passed on to Gutierrez’s team.

Mercy & Gloria

As for Gutierrez, her closeness to the Arroyos goes beyond her being a batch mate at the Ateneo de Manila School of Law Class 72 of former First Gentleman Jose Miguel Arroyo. A career service personnel in the Department of Justice, she was promoted to the post of justice undersecretary by Hernando B. Perez, Gloria Arroyo’s long-time political ally.

Before becoming Ombudsman, Gutierrez had twice served short terms as justice secretary, as well as presidential legal counsel, and even briefly as acting executive secretary, under Arroyo. Indeed, days to her appointment as Ombudsman, Gutierrez even signed and issued as acting executive secretary, “By Authority of the President,” some of Arroyo’s executive orders.

Two of these are most interesting: Executive Order No. 473, which directed the Department of Energy “to pursue the immediate exploration, development and production of crude oil from the Camago-Malampaya Reservoir” that Gutierrez signed on Nov. 29, 2005, and Executive Order No.471, which directed “the merger of the Board of Liquidators and the Privatization Management Office,” on Nov. 17, 2005.

Days after signing as Arroyo’s acting executive secretary, Gutierrez was appointed Ombudsman on Dec. 1, 2005 and took her oath the next day. In a speech that day she declared, with a play on her nickname: “I will give mercy to people who should not be charged. But there will be no mercy for people who should be charged.”

It was a promise that probably rang full of hope for many of her listeners, but which may have jarred the ears of some of her former colleagues in the Arroyo Cabinet.

Six months earlier, the “Hello, Garci” wiretapping scandal had broken. At a meeting on June 28, 2005, 12 Cabinet members had prodded Arroyo to break her silence and apologize, or they would quit their posts. Gutierrez was not among these so-called Cabinet “doves”.

She had opted to side with the so-called “hawks,” whose advice to Arroyo was to just stonewall and not admit to anything.  – PCIJ, February 2011

WHO has been jailed for corruption in this country?

In its search for answers, the Philippine Threshold Program launched a study on “Time Served for Corruption” covering 118 cases from 2001 to 2008 of public officials who had been prosecuted by the Ombudsman, convicted by the Sandiganbayan, and sent to jail after the Supreme Court upheld their convictions.

Over three-fourths or 93 of the cases were in different stages of execution proceedings. The small balance of 25 individuals had been served court orders committing them to prison, but nearly half or 11 had been pardoned by then President Gloria Macapagal Arroyo.

In short, less than one in every 10 persons convicted of corruption since 2001 has actually been jailed.

Worse, of the 14 persons with court-issued jail sentences, only seven are actually serving time. And worst of all, of the seven in jail, only one person has completed his/her prison sentence.

As of 2009, of the seven serving time, the highest ranking officials are two barangay chairmen.

But the Office of the Ombudsman, which received $6.5 million as its share in the Philippine Threshold Program, says it is doing its best despite what is has repeatedly described as limited resources.

Bristling over the barrage of criticisms it has attracted – especially since Merceditas N. Gutierrez became its head in December 2005 – the Office says it is victim to misperceptions that in turn can be traced to malicious media reports.

In its latest annual report that covered 2009, the Office says it investigated and adjudicated a total of 8,000 cases. In addition, sanctions were imposed on at least 500 public officials and employees nationwide, the report says. Among these were the suspension and dismissal of high-ranking officials or those who occupy positions with salary grade 27 (or those receiving an annual salary of P446,076) and above, such as municipal mayors, regional directors, and university presidents.

But interviews with observers, complainants, and former and present Ombudsman insiders, as well as a closer scrutiny of official data reveal a different picture. Indeed, indications are that the Office has been failing on its duty to act promptly on complaints and in prioritizing those involving high-ranking officials, grave offenses, and large sums of money and property.

Too, while it constantly pleads poverty whenever it is asked why it cannot do more or better, it has been so generous to its own employees that they have not only enjoyed classes on such things as siomai-making and cosmetology, but also bonuses that, some former and present insiders say, have sometimes coincided with Gutierrez’s birthday or the filing of an impeachment complaint against her.

The public perhaps would overlook the latter if only the Office had proved instrumental in curbing corruption and inefficiency in government. But it apparently hasn’t, prompting people like human-rights leader Marie Hilao-Enriquez (whose group Karapatan has helped file at least six cases before the body) to complain, “Patong-patong na violations nila (Their violations are already piling up).”

Listless, scattered

The Sandiganbayan database on 1,210 cases filed by the Ombudsman from Dec. 2005 to Dec. 2009 in fact reveals unflattering evidence of what might well be the Office’s listless, scattered, and effete campaign against corruption.

The top 10 cases filed by the Ombudsman were usurpation (445); violation of the Anti-Graft and Corrupt Practices Act, 387; malversation, 87; falsification, 69; estafa, 68; violation of the Government Service Insurance System Act, 67; perjury, 14; violation of the Code of Conduct and Ethical Standards for Public Officials and Employees, 13; murder, 6; and, physical injuries, 6. Only one plunder case was filed, four bribery cases, and curiously, even one robbery case and two infidelity cases.

The 1,210 cases enrolled 4,066 respondents. Some cases involve multiple respondents, and some of the same respondents are actually named in several cases. Thus, decisions may vary for each accused such that one may be convicted and another acquitted in the same case.

More than half or 52 percent were filed against 2,109 officials and personnel of town, city, and provincial government units, while the second biggest cluster consists of cases filed against 784 private individuals (19 percent).

The 1,210 cases involved, according to the Sandiganbayan database, an aggregate amount of P6.37 billion, or a negligible sliver of the P1.645-trillion 2011 budget that bankrolls the operations of the government. Of this amount, P2.76 billion involved cases against private individuals.

This flurry of filing cases has triggered not so good results, however. Not only did just five percent end in convictions, 48 percent or 1,936 accused have cases pending before the Sandiganbayan; 14 percent or cases against 588 persons had been dismissed; and two percent or 61 accused had their cases archived. Cases against 244 individuals (6 percent) also resulted in the acquittal of the accused.

Former Special Prosecutor Dennis Villa-Ignacio, who led the prosecution team that secured ousted President Joseph Estrada’s conviction for plunder, says that there are people at the Ombudsman’s Office who are very good at “mishandling” cases to favor the accused. This, he says, partly explains the relatively high number of withdrawn and dismissed cases at the Sandiganbayan.

Before becoming Special Prosecutor in 2003, Villa-Ignacio also served briefly as assistant ombudsman under then Ombudsman Simeon V. Marcelo.

Withdrawn, dismissed

Sandiganbayan data show that the Office of the Special Prosecutor, which is under the purview of the Ombudsman, withdrew cases against 881 individuals between December 2005 and December 2009. Cases involving 588 accused were dismissed during the same period. Altogether, these account for 36 percent of the total number of case disposals by the Ombudsman under Gutierrez.

“(It’s) very simple,” Villa-Ignacio says of how the ‘mishandling’ is done. “One, the information filed is defective so that is an assurance that the case would not prosper. Or the presentation of evidence is incomplete.”

Villa-Ignacio says that he had confronted the prosecutors he believed to be responsible for what can only be described as deliberate mistakes. He also says that shortly after Gutierrez became Ombudsman, he had personally pointed out to her the people with whom she should be careful, as well as those she could trust. But she seems to have ignored his advice, he says. Instead, she and Villa-Ignacio would later have a public tiff.

Villa-Ignacio retired in February 2010 and now teaches law at the Ateneo de Manila University’s School of Law. He traces his rift with Gutierrez to the case involving the Commission on Elections’ (Comelec) purchase of automated counting machines from Mega Pacific for P1.3 billion in 2004.

The Supreme Court had declared the contract null and void because, it said, Comelec had disregarded bidding rules and procedures. Yet in 2006, the Ombudsman absolved all Comelec officials of any wrongdoing in the deal – a ruling that Villa-Ignacio thought was objectionable. He also said this out loud.

Soon after, he says, his deputies were ordered to report directly to Gutierrez, effectively stripping him of his administrative and prosecutorial powers. He says he was also not given the opportunity to read cases before these were filed with the Sandiganbayan. And toward the end of his term, Villa-Ignacio became the subject of administrative and estafa complaints over a donation of water pumps for Typhoon Milenyo victims.

‘Impeach Mercy’ plaint

While Villa-Ignacio has an obvious axe to grind against the Ombudsman, the same cannot be said about the foundation Kilosbayan and watchdog group Bantay Katarungan, which jointly filed an impeachment complaint against Gutierrez in 2009, citing as grounds her Office’s decision on the Mega Pacific case, as well as her inaction on the more than P1-billion fertilizer fund scam that was said to be key in perpetrating massive fraud in the 2004 presidential elections, and the collusion between bidders and state officials to skim off millions of pesos from World Bank-funded projects, among others.

In July 2010, petitioners led by former Akbayan party-list representative Risa Hontiveros filed another impeachment complaint against Gutierrez. Among other reasons, they said the Ombudsman had betrayed the public trust for failing to act swiftly on the cases filed against then President Arroyo and her allies in the botched National Broadband Network (NBN) deal with China’s Zhong Xing Telecommunication Equipment (ZTE) Corp.

Yet another complaint was filed the next month, August 2010, this time by civil society groups led by Bagong Alyansang Makabayan secretary-general Renato Reyes. It has brought the number of attempts to oust Gutierrez from her post to three. If those who are now wailing over the case of former military comptroller Maj. Gen. Carlos F. Garcia could have their way, that count could soon be four.

Lawyer Jose Manuel I. Diokno, chairman of the Free Legal Assistance Group (FLAG), says that the Ombudsman should actually be focusing on high-ranking officials because convicting only low-ranking ones does not stop corruption. “It even encourages it (corruption) because high-ranking officials get away with it,” he argues. “The higher your position, the easier it is for you to get corrupt because it becomes more difficult to file a case against you or have you convicted.”

Case from Samar

Procerfina Lucban, an eatery owner from Catbalogan, Samar, knows whereof Diokno speaks. As head of the Concerned Citizens Action Force Organization in her hometown, she helped another group to file a complaint with the Ombudsman against provincial officials, including the then governor and vice governor. The case stemmed from the provincial government’s apparent use of the calamity fund for three years in a row despite the absence of a disaster of any kind during that period.

In 2006, the Ombudsman found only six of the 22 respondents guilty of “grave misconduct, dishonesty and conduct prejudicial to the best interest of the service.” It dismissed the administrative charges against the former governor, vice governor, and several others because they were either re-elected or no longer in public service.

Of the respondents that the Ombudsman said were guilty, only one was eventually dismissed from his job at the capitol. As of this writing, two are even still working there as provincial officers.

At least the Ombudsman took just two years to render a decision on the case. For the higher-profile Ortigas rubout case, the Office took a year more before it could issue a resolution on a complaint filed by the family of one of the victims.

On Nov. 7, 2005, Anton Cu-unjieng, Anthony Bryan Dulay, and Francis Xavier Manzano were shot dead in Ortigas by Philippine National Police (PNP) anti-carjacking operatives. In 2006, the Commission on Human Rights submitted a report to the Ombudsman that recommended that members of the PNP’s Task Force Limbas be charged with murder.

The Ombudsman, however, dismissed all administrative charges against the 11 respondents and cleared six of them of any criminal liability.

Diokno, the complainant’s legal counsel, immediately filed a motion for reconsideration, asking that the administrative case be reinstated and that all be charged with murder. As of last July, the lawyer says, there was still no update on the preliminary investigation that started in 2006. “Preliminary investigation,” he notes, “is just step one and it has taken four years already.”

Case delays foster impunity, he adds. Naturally, says Diokno, officials would hardly be discouraged from engaging in illegal acts if it takes, say, a decade minimum for a court decision to be rendered on a case.

Not fully staffed

For sure, though, part of the difficulty that impedes the speed of the Office in handling complaints is the fact that these involve complex issues. More often than not, these result in multiple cases that require tremendous amounts of field investigation and preparation. Former Ombudsman Marcelo himself says that prosecutors and investigators are thus overloaded with cases. This, he continues, has a profound impact on the quality and speed of investigation and prosecution work.

The Office’s own 2008 annual report also cited as difficulties its much leaner personnel complement compared to other agencies, as well as what it said is its meager allocation from the national budget. Gutierrez said in the report, “(It) has always been a source of wonder how we had gotten by considering the nature and extent of our responsibilities, and, most of all, the public’s expectations of us.”

Then again, the General Appropriations Acts in the last seven years show that the allocation for the Office of the Ombudsman has been increasing significantly. In fact, the Ombudsman now enjoys triple the budget it used to receive seven years ago. From P392.08 million in 2003, its allotment jumped to P647.54 million in 2005. This figure more than doubled in 2009, reaching P1.33 billion.

Official data also show that a considerable chunk of the Office’s budget has been going to employee salaries and benefits as the agency’s staff grows in number. But this has not meant that the Office has a full complement of personnel.

According to the latest information from the Ombudsman, more than half of the 2,177 authorized positions were still vacant as of June 2010. Out of the total plantilla items of 700 for investigators and prosecutors – both of whom form the backbone of the agency – only 297 had been filled up as of July 2010, says Assistant Ombudsman Jose de Jesus Jr. in a written reply to queries submitted to the Office by the PCIJ.

The Office, says de Jesus, had stepped up its recruitment efforts. But he says that since the Ombudsman is covered by the Salary Standardization Plan, which sets a uniform compensation level for almost all government agencies, the Office’s pay scale appears to be too low to attract lawyers. He even says, “We are losing some of our lawyers whom we have trained through the years because they are lured by the tempting offers of some private and government corporations.”

Such offers could only be really generous ones. According to the Ombudsman’s human resources division, the salary of a lawyer for an entry-level position corresponds to salary grade 26, or P42,639 a month. A lawyer who has been in practice for two decades, meanwhile, says that current starting salaries for lawyers in private firms are between P30,000 to P35,000. But he hastens to add that there are extra benefits, such as a car plan, in the bigger firms.

Mercy most generous

Yet Ombudsman officials and personnel are hardly wanting in benefits themselves. The Office’s own statements of income and expenses show that its ‘additional compensation’ grew by 268 percent from just P4.73 million in 2004 to P17.40 million in 2008. Both representation and transportation allowances also rose by more than 300 percent from just P12 million in 2004 to more than P50 million in 2008. ‘Other bonus and allowances’ posted the highest increase at 383 percent from P4.62 million to P22.32 million during the same years.

“Compared to other Ombudsmen, Madame (Gutierrez) is very generous,” comments an employee of the Office who declines to be named. “She knows the needs of her employees and she takes care of them well. So she gave a lot of bonuses.”

The insider says that Gutierrez gives bonuses whenever the school year starts. She also gave P20,000 to all employees when Typhoon Ondoy struck in 2009. Moreover, the employee recalls that Ombudsman personnel have received bonuses worth a month’s salary around the time of Gutierrez’s birthday, although not always every year.

Villa-Ignacio adds that there was one instance when Gutierrez even gave a ‘bonus’ when an impeachment case was filed against her and another when the case was dismissed. Employees referred to their windfall as ‘impeachment bonus,’ he says, so much so that someone remarked, “Sana every year merong impeachment (I hope an impeachment case is filed every year).”

The Ombudsman, however, remembers that particular ‘bonus’ differently, and refers to it as “financial assistance.” In another written reply to PCIJ’s queries, it says that this “assistance” was extended “to alleviate the plight of its employees from the unstable prices of basic commodities.” The Office also says, “(It) has nothing to do with the cases filed against the Honorable Ombudsman.”

‘Bonus’ or ‘assistance,’ the Office was legally in the clear in giving it. The General Appropriations Act says that constitutional offices – among them the Ombudsman — can use savings in their respective appropriations for certain purposes. These include the hiring of contractual and casual personnel, payment of extraordinary and miscellaneous expenses, commutable representation and transportation allowances, and fringe benefits for officials and employees.

Rewards & perks

In addition, constitutional commissions and offices enjoying fiscal autonomy are also authorized to formulate and implement the organizational structure of their respective offices and to fix and determine the salaries, allowances and other benefits of their personnel in accordance with the rates and levels authorized under applicable laws.

Villa-Ignacio also says that he has nothing against the bonuses, which the employees could well need. But he says, “They should also be motivated to work… reward for work…but reward for impeachment dismissal? It doesn’t seem good.”

He is unhappy as well over Gutierrez’s decision to discontinue the merit-based award system mandated by the civil service in which the performance of lawyers and non-lawyers are evaluated for purposes of yearly award and recognition.

Instead, he says, Gutierrez subsequently offered programs such as gardening, flower arrangement, cosmetology, massage, and ice cream- and siomai-making. These programs, says Villa-Ignacio, do not send the right message to employees especially to young and idealistic lawyers who should be encouraged to do better in prosecution.

An Ombudsman employee says that there is still evaluation of employees’ performance, albeit for the purposes of productive incentive pay and civil-service requirements instead of rewards.

The Office itself says that it last conferred ‘Best Employee Awards’ to 108 of its personnel in 2007. “Presently,” it says, “it is not being implemented because the existing Program on Awards and Incentives for Service Excellence (PRAISE) has been subjected to review and a new PRAISE has been adopted. Copy of the new PRAISE was forwarded to the Civil Service Commission for approval.”

Assistant Ombudsman de Jesus meantime asserts that aside from “cross trainings,” the Office has implemented “programs for continued improvement and development of investigators and prosecutors with funding from the USAID.”

Best attire award

In July 2008, in her Business Mirror column, Gutierrez explained she had done away with the merit-based award system because it “was exposed to suffer from certain built-in weaknesses that had caused internal disagreements,” and on motion of “a great majority of the officers and staff” who apparently did not win the awards.

In its place, Gutierrez launched a new awards program on the occasion of the Ombudsman’s 21^st founding anniversary that year. She wrote, “I have begun giving rewards to our personnel who dressed up the best in Filipiniana attire during our Monday flag ceremonies. This is in line with the Civil Service Commission’s attempts to boost nationalism among us Filipinos.”

She also raved: “And yes, we do have a veggie garden now. It is located at the back of the main office. It provides a good diversion to the high-pressure job of the office, and enables our personnel to take home very fresh produce that is good for their health. It is also our humble contribution to the environment and we are very proud of it.”

But Ombudsman employees have been enjoying more than fresh vegetables and bonuses. According to the Office’s 2009 annual report, its Human Resource Management has extended scholarship to deserving Ombudsman personnel, and “spearheaded the provision of livelihood trainings to OMB employees and their dependents.”

These included, the report said, “free training programs on practical vegetable gardening, making novelty items and other fashion accessories, soap-making, candle-making, perfume-making and the like…which OMB employees may utilize to improve their economic conditions.”

The gardening project, de Jesus also explains, is a temporary activity while the lot the Office purchased for a building annex remains vacant. He says, “(It) is actually an environmental awareness program covering the processing of organic waste vis-à-vis the zero-waste program, use of the processed waste or compost as fertilizer and the planting of organic vegetables.”

“It was not intended to conflict with their job,” says de Jesus. “(All these) were just part of the Ombudsman’s continuing concerns for the lowly paid employees of her office.”

Yet aside from livelihood-enhancement activities, the Ombudsman has seen after the medical and dental needs not just of its 1,000-strong workforce but also of their dependents.

The agency reported that in 2009, it administered and funded “438 annual medical examinations; sugar, cholesterol and triglycerides examination of 1,773 employees; administration of anti-flu vaccine for 650 employees; administration of pneumococcal vaccine for 516 employees; and administration of cervical vaccine for 1,122 employees and dependents.” – PCIJ, February 2011