28-30 SEPTEMBER 1998
FINALIST—1998 JVO INVESTIGATIVE JOURNALISM AWARDS
Ombudsman Cases 'Just Lie There and Die There'

by CECILE C.A. BALGOS

Ombudsman Aniano DesiertoOverall Deputy Ombudsman Francisco Villa

ALL IS NOT well with the Office of the Ombudsman. Two weeks ago, Ombudsman Aniano Desierto found himself in a very public tiff with his Office's second in command, Overall Deputy Ombudsman Francisco Villa, with whom he exchanged charges of incompetence and misconduct through media.

Earlier this month Desierto was also accused by newly appointed Solicitor General Ricardo Galvez of ignoring evidence when the Ombudsman dismissed a complaint against alleged Marcos crony Herminio Disini.

And while the Office of the Ombudsman has finally managed to file a case regarding the multibillion-peso Public Estates Authority-Amari land scam, the Sandiganbayan has, on motion of those accused, resolved to return the case to it for reinvestigation. The graft court apparently saw merit in the claims of the accused that the Ombudsman had disregarded their rights to procedural due process.

All these have come near the end of the Estrada administration's first 100 days in office, when accounting of the initial accomplishments of the new government—which had included a reinvestigation of the Amari deal among its early promises—is bound to be done.

But this early, indications are the Office of the Ombudsman may not be of much help in yet another new government's pledge to fight graft and corruption.

Indeed, the agency that had been especially created to do that seems to be falling short of its primary task. Far from striking fear in civil servants and bureaucrats from doing questionable deeds, the Office of the Ombudsman instead has been eliciting disappointment—if not contempt—among many of those seeking redress for the wrongdoing of public officials.

Since 1996, in fact, the volume of vitriol directed toward the Office of the Ombudsman has been growing, with charges ranging from incompetence and inefficiency to downright corruption.

Its supporters argue that this is partly because the Office has been more visible of late, and is thus more exposed to criticism. That the Ombudsman's Office found itself under the public spotlight soon after the retirement of the first post-Marcos Ombudsman Conrado Vasquez in 1995, however, was hardly because it sought the attention.

Rather, it was because the Office got caught in a scandal involving 11 dead bank robbery suspects, three generals, a colonel and over 20 of their men, plus 10 television sets supposedly bought on a 20 percent discount.

Shortly thereafter, the new Ombudsman, Aniano Desierto, was called to the Senate to answer queries on reported anomalies in his Office. An impeachment complaint against him was also lodged in the House of Representatives. Desierto snubbed the Senate, but made an appearance in the House, where he successfully fought off the move to throw him out of office. But he did not emerge from the fray unscathed, and neither did the institution in which he remains the head.

To be sure, the Office's notoriety for taking a rather long time mulling over the complaints it receives is one of the major causes of its less than sterling reputation.

The Presidential Commission on Good Government (PCGG), for instance, had filed the complaint against Disini at the Ombudsman's Office as early as 1990, charging him with violation of R.A. 3019 for "having induced then President Marcos to acquire financial and pecuniary interest" worth a total of P65.5 billion in two firms. Four years later, the case investigator required five other people to submit their counter-affidavits.

Yet it took the Ombudsman until May 1997 or another three years to rule that there was a "lack of legal and factual basis" for the charges against Disini and company.

Private complainants have resorted to holding rallies in front of the Office of the Ombudsman in attempts to make it move faster. Early last year, irate members of the Justice for the Ozone Victims Foundation, Inc (JOVFI) had such a demonstration, after waiting for months for the Office to issue a resolution. Six days later, the group got what it wanted—or so it thought, until its private counsel saw the Ombudsman's handiwork.

"The Ombudsman made sure that the case will be filed, all right," said the JOVFI lawyer Rod Domingo Jr. "But (it) also ensured the acquittal of the accused."

The JOVFI is composed of the survivors of the 1996 Ozone Dance Club fire, as well as the relatives of those who perished in the blaze. The tragedy had claimed the lives of more than 160 people, many of whom were high school or college students.

"Masakit ang pagkakamatay ng aming anak (The death of our child was painful)," said Jesus Abgao, whose 20-year-old son Noli was burned beyond recognition in the blaze. "Kung hindi sila nagpabaya, wala sanang Ozone (If they hadn't been so neglectful, there wouldn't have been an Ozone)."

"Sila," to Mang Jesus and the rest of JOVFI, are the owners of the once popular disco, as well as the Quezon City officials who had failed to monitor if Ozone was keeping up with fire safety standards.

After all, it was bad enough that the disco had been packed to six times its allowed capacity on the night of March 18, 1996. But investigation conducted after the fire—caused by an electrical overload of the disco's electrical system—also revealed other violations of the national building and fire codes, including the absence of fire safety devices such as a sprinkler system or automatic alarm, as well as properly marked or lighted fire exits.

These days, the JOVFI members believe they may yet get what is due them from the Ozone owners. But that same confidence is absent when they talk of the cases filed against Quezon City officials.

Domingo said they had submitted "very strong evidence, but the way the information was framed was incomplete. (The Ombudsman) could have mentioned other violations."

"Ako kasi sigurista (I want a sure thing)," he admitted. Then he added: "If you've been in this trade for so long, even your sense of smell will tell you, there is something rotten in Denmark."

"Kaya daw matagal kasi airtight daw (They said it took them so long because they wanted an airtight case)," Johnny Martin, whose grandchild died in the fire, said in a voice dripping with sarcasm. "Kapag nag-rally kami uli, pupukulin ko ng tae yang si Desierto (When we hold a rally again, I'm going to throw shit at Desierto)"

But insiders say Desierto may not be entirely to blame as far as the Office's snail-like pace is concerned. In large part, this flaw can be traced back to the tenure of Vasquez, who some insiders said was already set in his ways when he began his seven-year term there.

"He wasn't running it like a manager," says one Ombudsman official who had declined to work there under Vasquez, a respected former high court magistrate. "He was proceeding like he was still a Supreme Court justice—too deliberative."

In addition, Vasquez imposed a quota system on the Office's investigators instead of setting a time frame for them to finish their assigned cases. "If an investigator finished six cases a month," relates the official, "that was already considered okay, regardless of how many cases he received. He finishes 10, well, he gets a certificate."

The system encouraged inefficiency. Some insiders say investigators took advantage of the setup and finished the easier cases first to fulfill their quota; the more complex ones—as well as those that were deemed uninteresting—stayed untouched for months, or even years. Thus, by the end of 1994, Vasquez's last full year as Ombudsman, the Office had racked up a backlog of 14,652 cases, which represented 65 percent of its total workload.

Apparently, the Office's investigators had paid little heed to an admonition the Supreme Court in 1988 had given what the high court still referred to as the Tanodbayan.

Facing several suits at the Sandiganbayan, ex-Information Minister Francisco Tatad had gone to the high court, claiming he had been denied due process because of the Tanodbayan's long delay in doing the preliminary investigation on the charges against him. Three of these were on his alleged failure to file his Statement of Assets and Liabilities. Tatad was also accused of giving unwarranted benefits to a relative and indulging in bribery.

The Supreme Court ruled in favor of Tatad. It noted in its decision that by October 1982, all affidavits and counter-affidavits were already with the Tanodbayan for disposition. The Tanodbayan, however, resolved the case only in July 1985. The Court refused to excuse the three-year delay, despite the Sandiganbayan's speculation that it may have been due to the Tanodbayan's "painstaking and grueling scrutiny" of the evidence.

"Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law," said the Court. "Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of 'speedy disposition' of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights."

Yet some two years after Desierto became Ombudsman, the high court again had to prod the Ombudsman into action, this time concerning several complaints lodged against former Agusan del Norte sheriff Casiano Angchanco.

The complaints had been filed in 1991. Their administrative aspects were endorsed to the Supreme Court, which dismissed them in 1993 for lack of interest on the part of the petitioners. But the criminal complaints remained pending with the Ombudsman for Mindanao, making Angchanco unable to collect the benefits due him when he retired in 1994. To clear his record, Angchanco went to court.

The Supreme Court ordered the complaints against Angchanco dismissed, and directed the Ombudsman to issue the necessary clearance to the hapless ex-sheriff. It also said the Office of the Ombudsman had "transgressed on the constitutional right of (Angchanco) to due process and to a speedy disposition of the case against him, as well as the Ombudsman's own constitutional duty to act promptly on complaints filed before it."

Even high-ranking insiders now say that while the Ombudsman was filing charges against court prosecutors for taking too much time to prepare case resolutions, the Office itself had drawers full of old unresolved files. As late as August 1997, the Ombudsman still had pending cases dating back to 1979.

The Office, of course, does not have a monopoly on delay. But it is the one institution singled out in legal circles as "Mona Lisa's lair" because, lawyers say, the cases filed there inevitably take after a line in the 1950s ballad popularized by Nat 'King' Cole: "They just lie there, and they die there." Put another way, the problem does not involve mere sluggishness. Rather, the phrase hints of non-action or no movement at all.

Determining just how much time each case should take from the moment a complaint is filed with the Office to the submission of a resolution on it, however, has proved tricky. In theory, say some officials, the whole process should not take more than six months, including at least 30 days for the preparation of the resolution. But certain peculiarities of the Office make this rather hard to do.

Unlike the cases filed in regular courts, for instance, the complaints received by the Ombudsman often do not come with supporting documents and data that would help in their evaluation for probable cause. The task of digging for evidence then falls on the Office's own Fact-Finding and Investigation Bureau (FFIB), which in turn relies heavily on the help of other state agencies such as the National Bureau of Investigation (NBI) and the COA.

It could take months—sometimes years—before the FFIB gets a reply. In a case of fraud involving a Nueva Vizcaya town mayor, the Office had to wait seven years for the results of an NBI investigation.

The complexities and uniqueness of issues of "Ombudsman cases" also contribute to the crawl. One official who was chief prosecutor in one of Metro Manila's busiest court circuits recalled how simple it was to "build up a case" in his former job. In contrast, he said, "you cannot acquaint yourself with just one book" at the Office.

"The anti-graft law is so broad that there are so many collateral issues to consider," he added. "And then you have to study the systems and procedures of the agencies involved. In malversation cases, you'd have to acquaint yourself with the way government does its auditing and accounting." Still, he said, he expected the investigators at the Office to move at a faster clip than at present.

The Angchanco case illustrates two adverse effects of delay on the part of the accused: no retirement benefits until the Ombudsman's Office issues a clearance, and a reputation put in question for an indefinite stretch.

The hazards awaiting complainants, meanwhile, depend partly on who they are. Those who are the accused's underlings run risks like sudden job transfers or loss of assignments, courtesy of the irked superior. Townsfolk terrorized by an abusive official fear for their safety, aside from being forced to endure the bureaucrat's continued misbehavior.

Ex-Solicitor General Frank Chavez said the delay also acts as a deterrent to complainants who may well begin seeing the whole process as "some kind of persistence game" that most of them would, in all probability, lose.

"The issue," he said, "is whether there is an earnest investigation, whether there is a speedy disposition of charges and whether there is an honest-to-goodness drive to file the appropriate criminal charges in court. So even if the charges are played up in the papers, these are soon consigned to the dustbin of forgetfulness."

In truth, the only beneficiary in any delay in the processing of complaints at the Ombudsman's Office is an accused who is guilty. A veteran trial lawyer said bluntly: "Hindi na due process yan, eh (That's not due process anymore). Undue process na."

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