Lawyer Nepomuceno Malaluan is co-director of the Institute for Freedom of Information, a partnership program of the Action for Economic Reforms and the Philippine Center for Investigative Journalism. This piece was published in the May 2, 2011 edition of the BusinessWorld, pages S1/4 to S1/5.
After a tenacious and defiant stand against the House impeachment proceedings, Ombudsman Merceditas Gutierrez surprised many when she took the path of least resistance and resigned her post.
One view about her decision is that by doing so, she pre-empted not just her own public trial, but also that of former President Gloria Arroyo. After all, the acts for which Ombudsman Gutierrez was impeached by Congress are intimately connected with acts relating to the former presidency. The betrayal of public trust was a conspiracy; the conspirators must have assessed it to be too damaging for them to go to a public trial, even if no punishment is involved in impeachment.
Another view is that defending her case before the Senate would be too much of an uphill climb for the Ombudsman. The political tide and the evidence point to a likely conviction, making incommensurate the personal ordeal that she would have had to bear throughout the trial. Contrary to protecting the President, she actually hastens the opening of the gates for the filing of cases against the former president in court.
Whatever it is, we must not lose sight of the opportunity for the country to recover what has been a lost institution for accountability and good governance.
By design, the Office of the Ombudsman was intended to play a central role in securing the rule of law in government. The Constitution and the Ombudsman Act gave the office institutional independence as well as roving powers to make public officials accountable for their actions. It has the power to investigate and prosecute erring officials, and to mete administrative penalties. It can compel the performance of legal duties. It can also recommend policies for the elimination of government inefficiency and corruption. So vast are the powers of the office, and so critical are its public responsibilities, that the constitution deems the Ombudsman and his or her deputies “the protectors of the people.”
Truth to tell, since its creation by the 1987 Constitution the Office of the Ombudsman has at no point reached its potential as an effective institution for good governance.
But the office hit its lowest during the incumbency of Ombudsman Gutierrez, her credibility greatly undermined by inaction or mishandling of high-profile cases. Worse, such inaction or mishandling was perceived to have been with the motive of protecting officials at the highest levels. History caught up with Ombudsman Gutierrez when she was impeached by the House of Representatives. Perhaps seeing the writing on the wall, she resigned.
For the country, we cannot let this opportunity for a new beginning slip by. Our quest for the fulfillment of the Constitution’s promise of an effective Ombudsman is only half-won with the departure from office by Ombudsman Gutierrez. It even turns out to be the easier part.
The bigger challenge for the country will be in securing the crucial next steps. We cannot leave these next steps to our current government leaders; we must collectively stake our claim if we want the Office of the Ombudsman to truly be “the protector of the people” and not of the few.
Our first concern is the choice of the next Ombudsman. This will be most critical in regaining the independence and effectiveness of this powerful Office.
We must actively intervene in the appointment process, from the nomination by the Judicial and Bar Council (JBC), to the appointment by the President. We will have to assist in letting sunshine into these processes, by bringing out in the open the background, qualification, and proposed program of each candidate to the office. This will enable greater public participation in the scrutiny and evaluation by the JBC and the President.
Once a new Ombudsman is appointed, we must monitor and actively engage the performance of its functions and responsibilities. For example, one problem that has hampered the effectiveness of the Office of the Ombudsman is its largely complaints-based approach to its work. This has relegated to the background the more pro-active powers of the office, including its broad investigatory and policy-recommending powers.
In sum, we all have a major role to play in ensuring that the people’s trust is not betrayed again.