OMBUDSMAN’S BRIEFING PAPER ON ITS ANTI-CORRUPTION PROGRAM

1. Combating Corruption Conference OMBUDSMAN’S BRIEFING PAPER ON ITS ANTI-CORRUPTION PROGRAM By: HON. SIMEON V. MARCELO Tanodbayan

2. The Constitution calls the Office of the Ombudsman as the “PROTECTOR OF THE PEOPLE”, while the Supreme Court described it as the “CHAMPION OF THE CITIZENS” and the “WATCHDOG OF THE PEOPLE”. It has been described as the most powerful office, next to the Office of the President. However, in reality, it is only powerful in paper considering its disabling lack of resources to fulfill its mandate.

3. In reality, considering the severe lack of resources of the Office of the Ombudsman, THE OMBUDSMAN IS LIKE A 5-STAR GENERAL WITH ONLY 5 SOLDIERS, HUNTING CROCODILES ARMED ONLY WITH FLYSWATTERS.

4. CHALLENGES (when the current Tanodbayan assumed Office in October 2002): • OMB had only 32 full-time prosecutorshandling approximately 2,000 cases at the Sandiganbayan and only 37 fieldinvestigators to cover the entire Philippines • No training program for its prosecutors and investigators • No investigation or surveillance equipment • No supervisory/monitoring system of cases and prosecutors’ performance

5. CHALLENGES • No docketing/routing/case management system at the Office of the Special Prosecutor (OMB’s prosecution arm) • OMB prosecutors are underpaid • OMB senior prosecutors (with 10 years or more law practice) earn only PhP500,000.00 a year - the same compensation for first year lawyers in major Makati law firms

6. Hong Kong’s Independent Commission Against Corruption (HK-ICAC) is one of the most successful anti-corruption agencies in the world. Comparative data with ICAC would show the gross inadequacy of OMB’s resources

7. COMPARATIVE FIGURES BETWEEN ICAC - HK and OMB • TOTAL PERSONNEL • ICAC • 1,326 for a bureaucracy of 174,175 officials and employees and a population of 6.8 Million • OMB • 1,141 for a bureaucracy of approximately 1,500,000 officials and employees and a population of 82 Million, more or less

8. NO. OF FIELD INVESTIGATORS • (the personnel responsible for securing evidence against corrupt government officials) • ICAC • 837 for a bureaucracy of 174,175: the ratio is 1:208 • OMB • 37 plus 50: (87) (to befully filled up by September 2004) for a bureaucracy of approximately 1,500,000 officials and employees: the ratio is 1:17,241

9. 3. BUDGET • ICAC • $90 Million or PhP4.94 Billion for 1,326 personnel watching 174,175 public sector officials and employees • OMB • PhP480 Million for 1,141 personnel, watching a bureaucracy of approximately 1,500,000 officials and employees

10. Compensation • ICAC • No figures on exact salaries but based on information, one of the highest paid among government officials and employees in Hong Kong • OMB • Congress has already passed the law granting substantial increases in allowances to members of the judiciary and the prosecutors of the DOJ. However, no such law was approved by the last Congress with respect to the OMB prosecutors.

11. RESPONSES • I. AUGMENTED NO. OF PERSONNEL • Creation and funding for 35 new positions for prosecutors in June 2003. (thru the DBM) • Creation and funding for 56 new positions for field investigators in November 2003. (thru the DBM) • The Office of the Ombudsman formed the Field Investigation Office, patterned after the Operations Department (Field Investigation Department) of Hong Kong’s ICAC, from the new field investigator positions created.

12. RESPONSES • The Office of the President, upon OMB’s request, recommended to Congress the approval of funding for 48 additional prosecutors and 111 additionalfield investigators by 2005. • Owing to the complexity and volume of the cases, the OMB needs at least 150 prosecutors. The Field Investigation Office should have, at the very least, 500 field investigators as soon as possible.

13. RESPONSES • II. STRENGTHENED INDIVIDUAL AND INSTITUTIONAL COMPETENCE AND EFFECTIVENESS • Institutionalised a training program via a series of trial advocacy skills training seminars. • enlisted noted private litigators and justices to serve as lecturers and magistrates in our practice court trials • With the assistance of USAID, 6 trial advocacy skills training seminars for prosecutors have already been conducted. • next series of training seminars for OMB prosecutors is scheduled in October 2004

14. RESPONSES • 3. Video - taped last three seminars and lectures: edited tapes will be used as teaching aids for newly - recruited prosecutors • Crafted model “questions and answers” forms on common graft offenses to serve as guides for our prosecutors • 5. Sponsored a computer literacy program for OMB lawyers and employees

15. RESPONSES • 6. Introduced case management system to ensure accountability and supervision, with each case being handled by a team of at least 2 prosecutors (supervising director + prosecutor actively handling the case) • Placed and operationalized docket and records management system at the Office of the Special Prosecutor (OSP) • 8. Created OSP’s own administrative office to enhance its administrative and operational efficiency and independence

16. RESPONSES • Conducted skills enhancement and training seminars for the Graft Investigation and Prosecution Officers of the OMB (in charge of conducting preliminary investigation and administrative adjudication) to improve productivity and efficiency • Two (2) seminars-workshops have thus far been conducted on: • review of procedures • case studies • resolution-writing

17. RESPONSES • Training For Field Investigators • (December 2003): training seminar on Financial Investigation and Forensic Accounting sponsored by the American Bar Association • 11. (March 2004): one - week seminar on field investigation and corruption detection conducted by Messrs. Tony Kwok and Paul Dickenson, both former senior officials of ICAC thru the help of USAID

18. RESPONSES • 12. The 25 new field investigators have been undergoing a series of intensive trainings and seminars since the second week of July 2004: • FBI lecture on surveillance • forensic accounting lecture by personnel from the US Customs • workshops conducted by the Philippine Drug Enforcement Agencyon setting-up entrapment operations

19. RESPONSES • 13. Said new investigators shall, thereafter, undergo a 3-week training seminar under the Intelligence Service of the Armed Forces of the Philippineson intelligence-gathering and the conduct of surveillance. • 14. GMA 7 – Imbestigador training seminar to be scheduled and conducted next month

20. RESPONSES • 15. Enhanced and rationalized the administrative adjudication proceedings of the OMB: • administrative proceedings are shorter since formal hearing has been dispensed with: administrative proceedings are now summary in nature • double docketing of cases as both criminal and administrative:apart from a criminal indictment being filed in court upon finding of probable cause, or in cases where substantial evidence is found, the guilty respondent will be either suspended or dismissed immediately • decisions of the OMB are now immediately executory even pending appeal

21. RESPONSES • 16. The OMB underwent and promotes the Integrity Development Review Project, also known as PRIDE (Pursuing Reforms through Integrity Development). • aims to provide diagnostic tools that will assist government agencies in assessing their systems integrity and in mapping out their corruption vulnerabilities • constitutes a crucial step towards benchmarking and monitoring efforts in corruption prevention

22. RESPONSES • Obtained fund grants from the European Community in the amount of €3.1Millionover 3 years for the strengthening of the OMB’s cooperation with civil society organizations by funding training programs for: • volunteer-observers in bids and awards committees • volunteer-monitors in the implementation of awarded contracts • volunteers who will secure detailed data needed for lifestyle checks

23. RESPONSES • Obtained fund grants from the World Bank-ASEM (Asia Europe Meeting) Trust Fund worth US$716,258.00to be spent for: • the development of a computerized case-trackingsystem for our prosecutors; • the establishment of a data bank of all Statement of Assets, Liabilities, and Net Worthsubmitted by government officials and employees; and • training seminarsfor field investigators.

24. All told, the inadequacy of resources is not a reason for institutions to stagnate or be less ambitious in their strategies and plans against graft and corruption. However, said efforts, unfortunately, can stretch our Office’s resources only up to a certain extent; thus, there is an urgent critical need for private sector support and assistance in fighting graft and corruption.

25. WHAT URGENT ASSISTANCE THE OFFICE OF THE OMBUDSMAN NEEDS FROM THE PRIVATE SECTOR Volunteers from the private sector who will serve as: (a) observers in government bidding committees;and (b) monitors of the implementation of the awarded contracts/projects. RA No. 9184, the Government Procurement Reform Act, requires 2 representatives from the non-public sector to sit in the bids and awards committees of government agencies.

26. In this connection, the OMB has an existing partnership with the Procurement Watch, Inc. (PWI): • PWI will train volunteer observers for the bids and awards committees (BAC) • PWI has already given training seminars on the Procurement Law in Metro Manila, Cebu City, Davao City, General Santos City and Cagayan de Oro City • The Asia Foundation granted funding for the operationalization of the Complaints Handling Mechanismfor handling the reportsof BAC observers

27. For monitoring the implementation of awarded contracts, and training monitors therefor, the OMB is in the process of collaborating with G-Watch. • G–Watch is an independent monitoring, research and advocacy project that addresses governance and public management concerns. • It specializes in the monitoring of the contract implementation side of procurement. • It monitors DepEd, DPWH, DOH and DSWD. Its proponent and implementer is the Ateneo School of Government.

28. As will be discussed this afternoon, there is an on-going partnership among the BSP, the GSP and the G-Watch for monitoring text book deliveries of the Department of Education. • Monitors-scouts await the delivery of books at their schools • Using a monitoring report form, they witness and record the date and time of delivery of the textbooks • They help in the counting and quality inspection of books • They accomplish the section provided for in the Inspection and Acceptance Receipt for third party monitors and report their observations

29. WHAT URGENT ASSISTANCE THE OFFICE OF THE OMBUDSMAN NEEDS FROM THE PRIVATE SECTOR Zealous gathering of data on ill-gotten wealth(addresses of expensive houses, plate number of luxury vehicles, heavy betting in gambling, etc.) of officials / employees of the Bureau of Internal Revenue (BIR), the Bureau of Customs (BOC), and the Department of Public Works and Highways (DPWH). As the number of the OMB field investigators is increased, the probe will gradually expand to other government department and agencies.

30. Lifestyle Check. Considering that we have only 17 field investigators at our office here in Metro Manila, the Office has decided to engage in strategic agency targeting, i.e., we have focused our limited resources on the 3 most corrupt (or perceived to be most corrupt agencies of the government), i.e. • the revenue – generating agencies: • the BIR • the Bureau of Customs • the DPWH By focusing our limited investigative resources, we were able to effectively and frequently uncover illegally acquired wealth of numerous government officials from the three (3) pre-identified agencies.

31. Data indicate the following dispositions on the lifestyle check cases: • a. Dismissed From Service/Forfeiture Of • Retirement Benefits And Perpetual • Disqualification From Public Office: • One (1) case against an Undersecretary of the Department of Public Works and Highways • One (1) case against a Deputy Commissioner of the Bureau of Customs • One (1) case against a BIR Asst. Regional Director • One (1) Legal Officer of the BIR

32. b. Criminal Cases Filed With Lower Courts • One (1) case for Falsification/Perjury filed with the Regional Trial Court of Quezon City against a BIR Assistant Regional Revenue Officer

33. Resolutions Issued Finding Probable Cause And Directing The Filing Of Criminal And Forfeiture Cases With The Sandiganbayan • One (1) case against a DPWH Undersecretary for Perjury, violation of Section 7 of RA No. 3019 and forfeiture of ill-gotten wealth • One (1) case against a Deputy Commissioner of the Bureau of Customs for violation of the Anti-Graft and Corrupt Practices Act and for violation of the Tariff and Customs Code • One (1) case against a DPWH Regional Director for Perjury, violation of Section 7 of RA No. 3019 and forfeiture of ill-gotten wealth

34. d. Orders Of Preventive Suspension Issued • DPWH Undersecretary • Bureau of Customs Deputy Commissioner • BIR Assistant Commissioner • DPWH Regional Director • 2 BIR Directors • the Bureau of Customs Chief of Customs Operations Office • The Office of the Ombudsman has yet to attain the critical number of successfully investigated and prosecuted cases. However, the other pending “lifestyle” cases are expected to be resolved within the next few months.

35. WHAT URGENT ASSISTANCE THE OFFICE OF THE OMBUDSMAN NEEDS FROM THE PRIVATE SECTOR Volunteer Competent Private Lawyerswho will assist the Ombudsman prosecutors in handling the top 50 “big fish” cases at the Sandiganbayan

36. The ERAP Plunder Case Model. Despite the avalanche of pleadings filed and the demands of continuously presenting 76 witnesses in this Plunder case over a period of almost one and a half (1½) years from October 2001 to April 2003, the prosecution never asked for a single postponement. This unprecedented feat in case-handling in the Sandiganbayan would not have been possible were it not for the presence of private prosecutors who devoted pro bono their precious time and expertise in finding and gathering evidence, in researching on the difficult legal issues involved and in interviewing witnesses.

37. PROJECT CASE ASSIST/ • OPERATION BIG FISH Despite its 15 years of existence, the criticism has been that the OMB has failed to indict and successfully prosecute the proverbial “big fish”. • Main Reason: as of now, less than 60 prosecutors handling more than 2,000 cases. The Office has identified about 50 of the most prominent and high impact cases pending with the Sandiganbayan. These are cases which involve high ranking government officials who are represented by the best lawyers that money can buy.

38. The volunteer private lawyers will assist in the prosecution of said cases to catch the proverbial “big fish”. • 15 June 2004: the OMB and the Philippine Bar Association (PBA) entered into a Memorandum of Agreement with respect to the prosecution of some of these “big fish” cases • 14 lawyers from the PBA volunteered • at 2 lawyers per major case, the OMB would need at least 100 volunteer lawyers for its 50 “big fish” cases

39. With the help of volunteer lawyers from the private sector, the OMB hopes to be able to aggressively prosecute the most powerful and influential public officials involved in said 50 most significant graft cases. Among the “big fish” cases are: 1. Diosdado Macapagal Boulevard Case 2. The RSBS Pension Fund Case 3. The PEA – AMARI Scam 4. The Tax Credit Scam Cases 5. DPWH Vehicle Repair Scam Case 6. PCGG Cases We intend to ask the Sandiganbayan to have continuous trials in these cases the moment we have sufficient legal support from volunteer lawyers .

40. THANK YOU.