Emulating the Investigative and

Prosecutorial System of Indonesias Komisi

Pemberantasan Korupsi (KPK) can Improve the
Conviction Rate of the Philippine
Ombudsman.

Submitted to:
Atty. Robert Raypon

Submitted by:
Jag Iesu Inigo G. Murillo
March 30 , 2015

TABLE OF CONTENTS

Pages
I.

Introduction

2-3

II.

The Basis for Emulating the KPKs Investigative and

Prosecutorial System

4-6

III.

Investigative System of the KPK that should be

imitated by the Ombudsman

IV.

V.

A. KPKs power to conduct searches and

seizures, freeze assets, intercept
communications and others

7-9

Prosecutorial System of the KPK that should be

emulated by the Ombudsman

10

A. Three-stage panel review by the KPK

10-11

B. Re-establishment of relationship with other

partner organizations and decentralization of
some powers to the deputy Ombudsmen,
retaining a few key powers to ensure check
and balance in lieu of the three-stage panel
review

11-12

Conclusion
Bibliography and references

12-14
15

I.

Introduction
Fighting corruption in the Philippines is like trying to kill
an elephant with a flyswatter.
Atty. Simeon V. Marcelo,
Philippine Ombudsman 2002-2005
Systemic and widespread corruption has long been a disease that has
festered for a long time in the Philippines and has thereby hampered its progress
and development. Corruption exists in all levels of the government, especially
among high-level civil servants in the Philippines. 1 Atty. Simeon V. Marcelo,
Philippine Ombudsman for the years 2002-2005, once said that it is wrong to
say that there is corruption because there is poverty; rather, it is the other way
around, there is poverty because there is corruption.
The framers of the 1987 Constitution envisioned the Ombudsman as an
official critic who studies the laws, procedures and practices in government, a
mobilizer who ensures that the steady flow of services is accorded the citizens,
and a watchdog who looks at the general and specific performance of all
government officials and employees. (cf. Journal No. 40, July 26, 1986, p. 432). 2
The Ombudsman has been dubbed as the protector of the people. But it
seems that since the time it became operational on May 12, 1988, the
Ombudsman can hardly point to any case against high-ranking officials that
resulted in convictions. With the notable exception of former President Joseph
Estrada who was convicted of corruption in extraordinary circumstances (after he
was already ousted from office), the Ombudsman cannot point to any highranking official that it has convicted and imprisoned for corruption. 3 Other highranking officials that were impeached were former Chief Justice Renato Corona
and the very own former Ombudsman Mercedita Gutierrez. 4
So, we may ask, has the Ombudsman been complying with its mandate to
act promptly on complaints filed in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce
their administrative, civil and criminal liability in every case where the evidence
warrants in order to promote efficient service by the Government to the people
(Section 13, R.A. 6770). Whether it has (at least to some extent, though menial)
or it has not at all, it is indubitably clear that it has not produced the best results it
could have possibly done so.
Is there an institutional weakness? A stark contrast can be made between
the Philippine Ombudsman and the Komisi Pemberantasan Korupsi (KPK), the
anti-corruption institution of Indonesia.
1 US Department of State Investment Climate Statement 2013 - Philippines.
2 Official Website of the Office of the Ombudsman.
http://www.ombudsman.gov.ph/index.php?
home=1&navId=MQ==&subNavId=ODU=
3 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 10
4 http://www.abs-cbnnews.com/nation/03/10/11/blue-ribbon-gutierrez-resign
2 | MURILLO

The anti-corruption agencys performance can be gauged by its capacity

to prosecute (measured by the conviction rate) and its relations with the public. 1
In just five years, the KPK has successfully prosecuted over one hundred senior
officials that before would have been considered as untouchable by their
positions and prominence. To date, the KPK has yet to lose a single case, either
at the anti-corruption court or at the Supreme Court where the guilty verdicts of
the TIPIKOR (anti-corruption court) are appealed. 2 The KPKs accomplishments
have been impressive. From 2003 to 2012, the KPK has handled 332 high-profile
cases involving top government officials; of these, 169 cases have been
processed in court, and the KPK has chalked up an amazing one-hundred
percent conviction rate. From 2004 to 2010, the KPK has returned to the state
treasury recovered assets worth Rp. 805.6 billion, or more than US$80 million. 3
So what exactly makes the KPK more efficient than the Philippine
Ombudsman? Is it the composition of the KPK compared with the Ombudsman?
Perhaps it could be; but, it should be noted that in terms of number of personnel,
the KPK is only about half the size of the Ombudsman yet it is far more
productive. As of 2008, the KPK had about 580 personnel, while the Ombudsman
had over 1,000 staff.4 Atty. Simeon Marcelo, in a conference held at the
Univeristy of the Philippines on March 3, 2009, said that during his time as
Ombudsman, they had a difficulty in the investigation for the case against the
former Chief Justice Renato Corona due to the fact of insufficiency of funds to
get the required evidence to incriminate the said former Justice. However, the
Ombudsmans budget has tripled from P392.08 million in 2003 to P1.33 billion in
2009 during the administration of President Gloria Macapagal Arroyo, the wife of
Gutierrezs law school batch mate, then First Gentleman Jose Miguel Arroyo. In
five years under Gutierrez, the Offices budget grew by an annual average of
21.35 percent, or twice more than the usually allowed increase in the budgets of
most other government agencies. On top of this, the Office has also received not
less than $7.2 million or P316 million in four different foreign grants and
assistance, including funds committed to her predecessor, Simeon V. Marcelo,
between 2005 and 2009. That the Ombudsman has failed to produce more and
better results in its campaign against corruption despite such windfalls could be
traced to issues that money alone cannot resolve. 5
It is seen fit to consider that the KPK has a far-reaching mandate,
exercising exceptional powers that range from investigation and prosecution to
prevention and the coordination of agencies authorized to combat corruption. Its
1 Human Development Network. The Office Of The Ombudsman: Is There An
Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 3.
2 Ibid, #3 of immediately preceding page.
3 Ramon Magsaysay Award Foundation Official Website.
http://www.rmaf.org.ph/newrmaf/main/awardees/awardee/profile/348
4 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 17
5 Mangahas, Malou and Ilagan, Karol Anne. Ombudsman a failure, despite
flood of funds. Philippine Center For Investigative Journalism. February 6,
2011.
3 | MURILLO

powers are such that a civic leader remarked, upon the laws passage, that
politicians were inviting a tiger into their house. 1 This paper focuses the lens on
the investigative and prosecutorial powers of the KPK that made it more
responsive to its duty as an anti-corruption institution as compared to the
Philippine Ombudsman and suggests that the emulation of the formers
investigative and prosecutorial system may improve the conviction rate of the
latter.

1 Ibid, 2
4 | MURILLO

II. The Basis for Emulating the KPKs Investigative and Prosecutorial System
Why is it good to consider the KPK and its investigative and prosecutorial
system a good model for the Philippine Ombudsman to emulate? The Indonesia
and the Philippines share a number of similar important characteristics that would
warrant this parallelism. Geographically, both Indonesia and the Philippines are
Southeast Asian countries and are members of the ASEAN (Association of
Southeast Asian Nations).
Apart from the Philippines and Indonesias geographical location, there are other
important similarities politically, economically and in terms of corruption in the
country, to wit:
1.) Politically, both countries experienced long periods of authoritarian rule
that were characterized and sustained by rent-seeking and systemic
corruption. The Marcos dictatorship in the Philippines lasted 14 years,
from 1972 to 1986, while Soehartos authoritarianism endured for 31
years, from 1967 to 1998. Similarly, both authoritarian governments
collapsed following popular protest movements fuelled by widespread
anger against massive corruption and its precipitating role in economic
crises. Moreover, both countries equally saw a burst of pluralism during
their respective transitions from authoritarian rule. Numerous political
parties formed, civil society organisations mushroomed, and media
channels multiplied. Today, both countries are characterised by strong
chief executives, with relatively weak bicameral legislatures, and a
robustly decentralised local government sector.1
2.) Economically, both Indonesia and the Philippines are lower middle income
countries. Indonesias Gross National Income per capita in 2008 was
US$1,880 while the Philippines was US$1,890 (World Bank 2009). Their
political economies are likewise similar in terms of the persistence of neopatrimonial practices, where the structures and systems of modern
government mask the practices and patterns of patronage and corruption.
The respective transitions to democracy of both countries failed to
dismantle the family-focused, clan-oriented, and region-sensitive ways
that dominate politics and economics in interlocking ways. 2
3.) In terms of corruption, both Indonesia and the Philippines are considered
among the more corrupt in Asia. Both score very low in various indices
such as Transparency Internationals Corruption Perceptions Index and
the Word Banks Control of Corruption indicator. (Indonesias ranking,
however, has improved in recent years compared to the Philippines, in
part because of the work of the KPK.) When the KPK and the
Ombudsman were established (in 2003 and 1988 respectively), both faced
similarly high levels of state capture as well as grand and petty
corruption.3
It is to be noted that Atty. Simeon Marcelo has recognized the importance of the
Office of the Special Prosecutor and the Field Investigation Office, and thus
1 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 7.
2 Ibid
3 Ibid
5 | MURILLO

implemented programs to strengthen the two offices recruitment of additional

prosecutors (from 52 to 104 in 2003 and 113 in 2007) and investigators (from 37
to 96 in 2003 and 1588 in 2007) and trainings. 1 It is relevant to consider the
outlook of Atty. Simeon Marcelo because the Office of the Ombudsman (OMB)
was most popular during Marcelo's leadership, exhibiting 'moderate' sincerity in
fighting corruption. Under Gutierrez' leadership, however, the Ombudsman's anticorruption efforts are found to be 'mediocre'. 2 This is shown by the PHDR Issue
Number 5, 2008-2009, of the Philippine Human Development Network, to wit:
Year

2000
2001
2002
2003
2004
2005
2006
2007
2008

Net Sincerity Ombudsman

Rating (Very/
Somewhat
Sincere
Somewhat/
Very
Insincere)
-5
Desierto
+7
N.A.
Marcelo
+21
+28
+22
+6
Gutierrez
+9
+4

The Social Weather Stations ratings of net

sincerity are as follows:
(1) 'very good' for over +50 net rate,
(2) 'good' for +31 to +50,
(3) 'moderate' for +11 to +30,
(4) 'mediocre' for +10 to -10,
(5) 'poor' for -11 to -30,
(6) 'bad' for -31 to -50,
(7) 'very bad' for below -50.
Corollary, considering that it was during Atty. Simeon Marcelos occupancy of the
Office of the Ombudsman (OMB) where the Net Sincerity Rating was highest, it is
reasonable to take heed of his recognition of the importance of the Special
Prosecutors and the Field Investigation Officer. However, the importance of
improving the Special Prosecutor and the Field Investigation Officer does not of
itself equate entirely to the effectiveness and efficiency of both prosecution and
investigation of the Ombudsman. In fact, even if it was during Atty. Marcelos
tenure that the Net Sincerity Rating of the Ombudsman was at its best,
nonetheless, as may be observed, it is only within the category of moderate.
There is a much greater room for improvement. Hence, there is a need to delve
not merely on the prosecution and investigation officers, agents and employees
of the Ombudsman but more importantly with the system of prosecution and
investigation itself.
1 Human Development Network. The Office Of The Ombudsman: Is There An
Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 5
2 Human Development Network. The Office Of The Ombudsman: Is There An
Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 3
6 | MURILLO

The KPKs investigative and prosecutorial system now comes into the picture as
a relevant model for the Ombudsman. Apart from the aforementioned similarities
in characteristics between Indonesia and the Philippines, the KPK has valiantly
become an exception to the commonality that most anti-corruption agency failed
in upholding their mandate.1
Furthermore, the KPK has had its crises, including harassment and intimidation,
interagency feuds, slashed budgetsand it is subject to the higher powers of the
president and the parliament. But KPK has also built up a formidable base of
public support. When it locked horns with the national police, thousands staged
public demonstrations supporting KPK. When the parliament refused to allocate
money for a much-needed KPK building, Indonesian citizens voluntarily donated
money for the building construction. Now on its tenth year, KPK has become a
symbol of reform and hope for Indonesians, and is hailed as one of the few
effective anti-corruption agencies in the world. 2 Hence, the KPK has indeed won
the hearts of the Indonesian constituents as their anti-corruption institution. Thus,
there is much reason for the Philippine Ombudsman to emulate Indonesias KPK.

1 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption

Resource Center Issue. August 2010: Introduction.
2 http://www.rmaf.org.ph/newrmaf/main/awardees/awardee/profile/348
7 | MURILLO

III. Investigative System of the KPK that should be imitated by the

Ombudsman
The KPK essentially has all the investigative powers of a law enforcement
agency, while the Ombudsman does not. The KPK can, on its own accord,
conduct wiretaps on suspects, examine their bank accounts and tax records,
freeze suspects assets, issue hold orders and make arrests. The Ombudsman
cannot wiretap, it cannot examine bank accounts or freeze assets, and it cannot
make arrests. At best, the Ombudsman can conduct surveillance but it can only
use still cameras, not video recording equipment. Video recording evidence, in so
far as it has audio characteristics, is proscribed under the Philippines antiwiretapping law and thus inadmissible in court.1
A. Power to conduct searches and seizures, freeze assets, intercept
communications and others without prior judicial authority
Under the Philippines Anti-wiretapping Law, it is prohibited to record and
intercept private communications. The law does not prohibit the recording of
public speeches by members of the audience, or other forms of "public"
communication such as press conferences, interviews, and board meetings that
are openly recorded.2
The said law does not prohibit the recording of all private communications, but
provides a limited and narrowly drawn exception for law enforcers. The law
provides that police and other law enforcement agencies may wiretap private
communications but:
(1) law enforcers must first secure a court order; and
(2) only in cases involving crimes against national security under the Revised
Penal Code (treason, espionage, rebellion or sedition) and kidnapping. 3
Verily, with this statutory constraint, the investigators of the Ombudsman cannot
fully gather easily the necessary evidence that would carry sufficient weight in the
prosecution of an alleged corrupt official.
Further, there has to first be a court order before the Ombudsman may be
allowed to intercept any private communications between public officials and
their cronies. There is a judicial red tape that the Ombudsman has to procure
before proceeding to intercept what may be very relevant communication as
piece of evidence for the prosecution of corrupt officials.
Furthermore, it may also impair the Ombudsmans capacity to investigate
independently as members of judiciary are informed beforehand of their intention
and motives to wiretap a conversation of any public official that may be related to
corruption transactions.
Another deficiency of the Ombudsman is that they cannot examine suspects
bank accounts and tax records, and freeze suspects assets. Only the
1 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 14
2 Free Legal Assistance Group. FAQs Anti-Wiretapping Law.
http://pcij.org/blog/wp-docs/FAQs-Anti-Wiretapping-Law.pdf
3 Ibid
8 | MURILLO

Philippines Anti-Money Laundering Council can examine and freeze bank

accounts as part of a criminal investigation. The Ombudsman can request the
Council for help after it has filed a case against the suspects in court, a
protracted process that prevents secrecy and dispatch in investigation, which are
needed to prevent suspects from destroying evidence and hiding ill-gotten
funds.1
There are some notable cases where the Ombudsman has failed due to their
deficiency in investigation. Among were the $2 million bribery case, involving
Justice Secretary Hernando Perez, and the P2billion peso contract between the
COMELEC and Megapacific.
The $2 million bribery case involving Justice Secretary Hernando Perez
stemmed from a complaint filed in the Office of the Ombudsman by former
Manila Congressman Mark Jimenez, accusing Perez of extorting US $2 million
from him in exchange for the approval of a controversial $470-million IMPSA
power plant deal. The anomalous contract, originally signed by former president
Joseph Estrada, was being reviewed by the newly-installed Arroyo government.
The anti-graft court junked the falsification of public documents charge against
Perez as it ruled that the prosecution presented insufficient evidence to support
any of its allegations. The Sandiganbayan ruled that all testimonial and
documentary evidence presented against Perez was mere hearsay. Jimenez was
not presented in court to be cross-examined, the court said. In addition, the bank
documents bore no weight because bank executives or diplomatic officers who
had firsthand knowledge about them were not called to testify about them. 2
In a decision penned by Justice Lucas P. Bersamin, the Supreme Court cited the
violation by the Ombudsman of Perez constitutional right to due process and
speedy trial as grounds for dismissal. Voting unanimously, the 5 justices of the
SC First Division decided that the delay in resolving the criminal complaint
against Perez was "inordinate" and "oppressive." The fact finding investigation
and preliminary investigation alone on Perez case by the Office of the
Ombudsman lasted nearly 5 years and 5 months.3
There is failure to present sufficient evidence here because of the lack of
sufficient power to conduct proper investigation. Most evidence presented was
discarded as merely hearsay. The Ombudsman failed to obtain strong evidence
because they had a deficient investigation system.
Anent the P2billion peso contract between the COMELEC and Megapacific, on
January 13, 2004, no less than the Supreme Court (SC) asked the Ombudsman
to determine the "criminal liability, if any", of the public officials involved in
Comelec Resolution No. 6074 awarding the contract for Phase II of the AES
(automated election system) to Mega Pacific Consortium (MPC), as well as the
Contract between the Comelec and Mega Pacific eSolutions (MPEI) executed on
an unspecified date but notarized on June 30, 2003. The amount involved in
these deals totals P2.5 billion. The SC in its decision promulgated on said date
1 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 14
2 http://www.rappler.com/nation/58600-anti-graft-court-nani-perez-charges
3 http://www.rappler.com/nation/47402-sc-affirms-dismissal-ex-doj-secretarynani-perez-robbery-charge
9 | MURILLO

(ITF vs. Comelec, G.R.159139), found the said Resolution and Contract null and
void, as a consequence of which, "the purchase of the machines and all
appurtenances thereto including the still to be produced software as well as all
the payments made therefor (P849, 167, 697.41 by Comelec computation), have
no basis whatsoever in law. Thus the SC ordered the recovery of the funds
expended pursuant to the void Resolution and Contract from the payees and/or
"from the persons who made possible the illegal disbursements without prejudice
to possible criminal prosecutions against them".1
Today, the Ombudsman has not yet fully complied with the SC directive. While it
promptly started the investigation the day after the directive came out, it got stuck
there. The SC itself believes that this delay and inaction is already unreasonable
and inexcusable so it gave the Ombudsman until June 30, 2006 to complete its
investigation. Yet instead of meeting the deadline, news report says the
Ombudsman is asking for more time.2
Ofcourse, apart from the deficiency in the investigative capacity of the
Ombudsman, there are other factors such as inefficient leadership. According
Human Development Network, low conviction rate is explained by highly
centralized system, a weakened Office of the Special Prosecutor, and a
demoralized staff. This and bad relations with other anticorruption organizations
contribute to the bad image of the Ombudsman and thus its growing
unpopularity.
The Office of the Ombudsman said there is no fixed period in the investigation of
cases or complaints because of the various factors involved, such as the
complexity of the allegations, the volume of evidence required, and the number
of public officials/employees accused.
Ombudsman investigations are always aimed at presenting a strong case so our
inquiries are always in-depth, says de Jesus. Although the standard of proof in
fact-finding is only probable cause, the FIO (Field Investigation Office)
investigators always aim at proof beyond reasonable doubt, or, in an
administrative case, preponderance or substantial evidence. The reason behind
this is to increase the chances of conviction of an offender. 3
There is no problem with the goal of aiming at presenting a strong case through
aiming proof beyond reasonable doubt even if standard of proof in fact-finding
probable cause is only. The problem is with minimizing the least time possible to
gather such strong and credible evidence.
As previously mentioned, KPK has been so successful and one of its primary
distinctive traits is that it has very broad investigative and prosecutorial powers
that allowed it to circumvent and overrule police and prosecutors. These powers
included the right to tap phones without a court order, to impose travel bans, to
freeze bank accounts, and to access financial records.

1 http://www.gmanetwork.com/news/story/151030/news/the-comelec-megapacific-consortium-deal-timeline
2 Ibid
3 Ilagan, Karol Anne. Sanctum Sanctorum?. Philippine Center For
Investigative Journalism. February 8, 2011.
10 | M U R I L L O

Emulating the KPK by broadening these investigative powers of the Ombudsman

might enhance the Ombudsmans chances of gaining higher conviction and
faster prosecution of corrupt public official. The Ombudsman may become more
efficient and effective. The proponent agrees with Emil Bolangaita that an anticorruption agency without the powers to conduct wiretaps, investigate financial
records, freeze assets, and apprehend suspects is a useless entity. An anticorruption agency needs to be able to conduct surveillance, follow the money
trail, set up sting operations, and make arrests of likely fugitives. Only with
standard investigative powers and capacities can an anti-corruption agency
gather the necessary evidence to ensure effective prosecution.
IV. Prosecutorial System of the KPK that should be emulated by the
Ombudsman
There is a big difference in the prosecutorial system between the KPK and
the Ombudsman. Among the highlighted differences are as follows:
First, in the KPK, investigators and prosecutors work together from the start of
the investigation until the prosecution of the case. 1 Consultation is facilitated
by the fact that the investigators and prosecutors are housed in the same
building.2 However, in the Ombudsman, the prosecutors and investigators do
not work jointly. At the Office of the Ombudsman, investigators and the
prosecutors do not even coordinate with each other prior to the decision to
prosecute or not.
Second, the KPK prosecutors and investigators jointly determine if evidence
is sufficient while in the Ombudsman, it is the investigators, and not
prosecutors, determine if evidence is sufficient.
Lastly, the cases in the KPK are subject to a three-stage panel review by the
Commission whereas in the Ombudsman, the prosecutors prosecute what the
Ombudsman hands them.
A. Three-stage panel review by the KPK
When KPK investigators and prosecutors agree that they have a strong case
to prosecute before the TIPIKOR, their case undergoes a three-stage panel
review conducted by the KPK commissioners.3
The commissioners role is to challenge the proposed case strategies in order
to ensure that each case filed is winnable. Only when a case has successfully
gone through these panel reviews will it be approved by the Commission for
prosecution at the TIPIKOR. This level of preparation of the KPK contributes
to the efficiency of the court as the prosecution is able to proceed
methodically without seeking postponements in the trials. 4
1 Asian Institute of Management (AIM). A SYMPOSIUM ON THE
FUNDAMENTALS OFAN EFFECTIVE ANTI-CORRUPTION AGENCY. May 6, 2011.
2 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 14
3 Ibid
4 Ibid
11 | M U R I L L O

On the other hand, the Ombudsman prosecutors pursue whatever case is

handed to them by the Ombudsman. They do not play a role in the decision to
prosecute. This process is a key problem pointed out by the prosecutors
themselves: they are assigned cases to prosecute without, in their view,
sufficient evidence. They argue that the dismissal and withdrawal of many
Ombudsman cases prior to trial in the Sandiganbayan is not their fault, but
the failure of investigators who did not gather the required evidence. 1
Unlike in the KPK, procedurally, Ombudsman investigations do not take into
account prosecutors inputs. It is the investigators, not the prosecutors, which
make the recommendation to prosecute.
The Ombudsmans investigation process proceeds in two stages: there is a
field investigation unit that makes the initial response to a corruption incident
or complaint; if the field investigation unit sees that there is likely probable
cause of corruption, it forwards its findings to a preliminary investigation unit
that makes the actual determination of a probable case. If the preliminary
investigation unit then determines there is probable cause, it makes a
recommendation to the Ombudsman for prosecution.2
The investigators recommendation is proposed directly to the head of the
Office of the Ombudsman the Ombudsman himself who alone makes the
decision to proceed or not. If the Ombudsman decides to prosecute, the case
is then forwarded to the institutions Office of the Special Prosecutor.3
Considering this kind of set-up of the Ombudsman, it would be apparent that
miscommunications along the process is looming especially that the Special
Prosecutors are not the one who conducted the actual investigation. They
merely rely on what evidence is presented to them by the investigators.
Further, the decision to prosecute is with the Ombudsman alone, so the
special prosecutors may not have confidence in the prosecution as they are
pushed to do so notwithstanding their own assessment of the case. It would
have been more efficient, should the Ombudsman employ the same
prosecutorial machinery as the KPK.
To improve the Ombudsmans performance (as measured by conviction rate),
it may imitate the KPKs prosecutorial process in this regard.
By a department order, the Ombudsman may restructure their whole
prosecutorial process so as to make the investigators and the special
prosecutors work hand-in-hand from the start of the investigation until the
prosecution of the case. It should not be a process, as it is now, wherein the
work of the special prosecutors begins after the work of the investigators.
Their respective duties should intertwine from investigation until prosecution.
Further, not only must the investigators and the prosecutors be intertwined in
the prosecutorial process, rather, their output should be first subject to checks
and balance before with the Ombudsman. A series of screening should first
1 Ibid
2 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 14
3 Ibid
12 | M U R I L L O

be conducted in order to secure a strong case and perhaps even win all case
or substantially all of it whenever it reaches the Supreme Court.
B.

Re-establishment of relationship with other partner organizations

and decentralization of some powers to the deputy Ombudsmen,
retaining a few key powers to ensure check and balance in lieu of
three-stage panel review

Should it be difficult to restructure all over again the whole machinery of the
prosecutorial system of the Ombudsman, there is another alternative which
would ensure that the cases filed by the Ombudsman are backed with strong
and sufficient evidence to secure conviction of the corrupt official charged as
well as a mechanism of checks and balance.
This system has in fact been already established during Atty. Simeon
Marcelos occupation of the Office of the Ombudsman and was not followed
by his successor, Mercedita Gutierrez.
As mentioned previously, it was during Atty. Simeon Marcelos incumbency as
the Ombudsman where the sincerity rating was at its peak. This is precisely
because of some re-engineering in the internal process in the Ombudsman
which is similar to or having similar effects and implications with the threestage panel review of the KPK.
Marcelo 're-engineered' the internal procedures at the Ombudsman, drawing
from lessons learned in the practices of Ombudsmen Vasquez and Desierto.
Marcelo decentralized some powers to the deputy Ombudsmen, retaining a
few key powers to ensure check and balance. This delegation of powers has
resulted in efficient handling of cases, without necessarily compromising the
integrity of the institution through sufficient checks and balance in place. 1
Another institutional strength that Marcelo built on during his leadership was
the Ombudsman's good relations with other partner organizations in the fight
against corruption (Commission on Audit, Civil Service Commission,
Presidential Anti-Graft Commission, and civil society organizations such as
the Transparency and Accountability Network). The Solana Covenant a
covenant between the OMB, COA, and CSC was a celebrated agreement
among 'like-minded institutions' towards a more coordinated approach to
fighting corruption. It outlined programs of the three agencies that should not
duplicate but rather complement and strengthen each other's anticorruption
efforts.2
With Gutierrez as new Ombudsman, most of these institutional
practices/policies have been undone. Gutierrez centralized almost all
decisions e.g. travel orders, information dissemination, approval/disapproval
on complaints filed by the Field Investigation Office before the Preliminary
Investigation Administrative Adjudication and Monitoring Office (PAMO) and
entrusted approval powers to Assistant Ombudsman Mark Jalandoni and
Overall Deputy Ombudsman Orlando Casimiro. (Rufo, 2008b; Office Order 20
series of 2006) The Deputy Ombudsmen for Luzon, Visayas and Mindanao,

1 Human Development Network. The Office Of The Ombudsman: Is There An

Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 5
2 Ibid, 6
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have been ordered to transfer all pending cases involving governors and vicegovernors to the Office of the Overall Deputy Ombudsman. 1
Even the Ombudsman's official spokesman, Jose de Jesus, has to seek
clearance from the Ombudsman and her 'delegates' before he can do his job
as spokesperson and liaise with media. As a result of this centralized
decision-making, conviction rates have dropped and the staff are
demoralized. Gutierrez also strained relations with the Office of the Special
Prosecutor (OSP) headed by Dennis Villa-Ignacio.2
According to Atty. Simeon Marcelo in a talk at UP: we should always
encourage the institution of Mutual Legal Assistance Treaty so that it would be
easy to get evidence. Katulad ng case ni dating Major General Carlos Garcia,
because we already had assistance from the United States, it took us [only a
few months to file the case]. We started in September, we were able to file the
first case on November, and then we were able to file the plunder case during
March of the following year. Ganun kabilis. So it all depends on whether the
documents are complete.3

V. Conclusion
The KPK has been so effective in complying with its mandate because of a
broad and efficient investigative and prosecutorial arm. If the Philippines
should emulate their investigative and prosecutorial system, there is likelihood
that the Ombudsman would enhance its conviction rate.
Of course, there are other factors to consider such as the leadership of the
incumbent Ombudsman, the support of the general public against the fight of
corruption, budgetary constraints, other macro-political factors and many
more. Nonetheless, an effective internal system for investigating and
prosecuting corruption cases of public officials is one of the backbone for the
success of the war against corruption.
In a world where even very poor countries exhibit high levels of technology
and mobility, an anti-corruption agency without the powers to conduct
wiretaps, investigate financial records, freeze assets, and apprehend
suspects is a useless entity. An anti-corruption agency needs to be able to
conduct surveillance, follow the money trail, set up sting operations, and
make arrests of likely fugitives. Only with standard investigative powers and
capacities can an anti-corruption agency gather the necessary evidence to
ensure effective prosecution.4

1 Ibid, 5
2 Ibid
3 Marcelo, Simeon. Talk at the UP College Of Law. March 3, 2009.
https://www.youtube.com/watch?v=qMWR8w9HJsQ.
4 Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 14
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Hence, the government must give the Ombudsman more teeth to conduct a
more aggressive investigation against corrupt officials. The problem is that
many of those in charge are corrupted themselves. Maybe it is their real
intention to leave the Ombudsman as it is but a toothless tiger. It is suggested
that this must not be so.
The Ombudsman, for the sake of public transparency and welfare, should be
allowed as an exception and be free to conduct wiretap, freeze assets, and
apprehend suspect without prior judicial approval, of course, also within
reasonable bounds of law.
It must be independent to do so, as it is called the protector of the people. It
cannot be under the leash of the judiciary. Nonetheless, as all things are, it
should still be open to Court review for grave abuse of discretion.
The KPKs joint investigative and prosecutorial units have demonstrated
remarkable efficiency and effectiveness in collecting evidence and developing
compelling cases. In contrast, by letting the investigators decide when to
prosecute, the Ombudsman has weakened key factors in prosecutorial power.
Moreover, in sharing responsibility for decisions to prosecute, the quantum of
evidence in deciding to prosecute should not only be on basis of probable
cause but on the probability of guilt beyond reasonable doubt. 1
Hence, the Ombudsman may make an order restructuring the whole
machinery of its prosecution by ensuring that the investigators and the
prosecutors shall work hand-in-hand in every step of the way from the
investigation until the prosecution of suspected corrupt officials and not
separately as though the work of the prosecutors begins after the work of the
investigator. The decision to prosecute must also be subjected to panel
review by the Commission, the investigators and the special prosecutors in
order to secure a strong case against the official and to immensely enhance
the likelihood of conviction.
Alternatively, the Ombudsman must re-establish its relationship with other
partner organizations such as the Solana Covenant a covenant between the
OMB, COA, and CSC which was a celebrated agreement among 'likeminded institutions' towards a more coordinated approach to fighting
corruption.2 Corollary, the Ombudsman should also decentralize some powers
to the deputy Ombudsmen, retaining a few key powers to ensure check and
balance in lieu of three-stage panel review.
With this at hand, and the whole Nations dedication to the eradication of
corruption in the Philippines, may very well ensure the victory of the war
against corruption. This is a valiant and noble endeavor because again, as
what Atty. Simeon Marcelo has said, It is not true that there is corruption
because of poverty; but rather, it is the other way around, there is poverty
because of corruption. Stop corruption, save the Nation from poverty.

1 Ibid, p. 28
2 Human Development Network. The Office Of The Ombudsman: Is There An
Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 6
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BIBLIOGRAPHY AND REFERENCES

Bolongita, Emil P. An Exception To The Rule?. U4 Anti-corruption
Resource Center Issue. August 2010: p. 7
Human Development Network. The Office Of The Ombudsman: Is There An
Institutional Weakness?. PHDR Issue Number 2. 2008-2009. P. 3.
Mangahas, Malou and Ilagan, Karol Anne. Ombudsman Failure, Despite
Floods Of Funds. Philippine Center For Investigative Journalism. February 6,
2011.
Norimitsu Onishi, Corruption Fighters Rouse Resistance in Indonesia, New
York Times, July 25, 2009.
"Vision and Mission". KPK website.
http://www.kpk.go.id/id/modules/edito/content.php?id=15
Ilagan, Karol Anne. Sanctum Sanctorum?. Philippine Center For
Investigative Journalism. February 8, 2011
Marcelo, Simeon. Talk at the UP College Of Law. March 3, 2009.
https://www.youtube.com/watch?v=qMWR8w9HJsQ.
http://www.gmanetwork.com/news/story/151030/news/the-comelec-megapacific-consortium-deal-timeline
http://www.rappler.com/nation/58600-anti-graft-court-nani-perez-charges
http://www.rappler.com/nation/47402-sc-affirms-dismissal-ex-doj-secretarynani-perez-robbery-charge
Section 13 and 15, R.A. 6770

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