Elected instead of appointed Ombudsman

Aside from being unnecessary, the call for the resignation of the Ombudsman is really futile if she is bent on clinging to her office. Resignation is an exercise of the will, done without outside compulsion. The only “compulsion” consistent with the exercise of free will is the inner voice telling her that she should already resign. This voice becomes audible only if the Ombudsman is sensitive enough to realize that her performance is below par based on the standards set by the Constitution and the law; and is perceptive enough to discern that she has not measured up to the qualifications of the position as the guardian and champion of the people against any illegal, unjust, improper or inefficient acts or omissions of public officials or government employees.

To be sure, the Constitution itself mandates that the Ombudsman must be of “recognized probity and independence” (Article XI Section 8). Probity or integrity is a term that connotes honesty, uprightness, morality and honor. Independence means that she is beholden to no one and does her job unselfishly, without fear or favor. The framers of the Charter purposely specified these two qualifications obviously to distinguish the Office as really extraordinary and extra-special as it takes up the cudgels for private citizens who are clueless and helpless in redressing their grievances against erring public officials and government bureaucrats.

Of the two qualifications, independence is apparently more important but more difficult to cope with. Public officials can be honest and upright only if they are not beholden to another or if they can still discharge their functions unselfishly and fearlessly. In the scheme of things where the Ombudsman is appointed by the President, independence is readily undermined by two factors: the inherent and natural tendency of the appointing power to appoint a close and dependable personal acquaintance who will protect him/her; and the utang na loob or sense of gratitude on the part of the appointee. The incumbent Ombudsman, for example cannot deny that before she was appointed, she came straight from Malacañang as the Presidential Legal Counsel. No amount of disclaimer on her part can therefore erase the stigma that she is a Malacañang protégé.

In the short history of the Office, only ex-Justice Conrado Vasquez Sr. so far stood out as approximating this quality of “independence” obviously because he was merely plucked out of retirement and not beholden to Cory whose God fearing traits somehow helped in her choices of comparatively more independent appointees with integrity and probity. Another Ombudsman who might be considered to possess the qualifications of integrity and independence was Simeon Marcelo Jr. who came from the private sector and gained public admiration because of his adept handling of the impeachment of a plundering president. Unfortunately, his term was cut short by his abrupt resignation supposedly for reasons of health although it was actually for a deeper, nobler reason of preserving his independence.

There are indeed more compelling reasons for the present Ombudsman to resign. If she is perceptive enough she could easily discern that almost nobody believes her independence from Malacañang. If she is sensitive enough she could easily realized that a great number of Filipinos are not convinced that she is up to par in the performance of her job.

In the latest World Bank Report on the bid rigging and collusion regarding road projects, it has been shown that as early as three years ago she was already furnished a copy of the initial report regarding said anomaly. But she did not act on it on the flimsy excuse that it was classified as confidential despite the fact that the Constitution itself require her to act promptly on any complaint filed in any form or manner (Section 12, Article XI).

In the fertilizer fund scam, she has not yet filed up to now any case against Bolante and the other officials involved despite two Senate Committee reports finding probable cause to charge these officials and ex-officials. The fact that the investigation requires lots of time because the scam covers the entire country is not a valid excuse for the anomalously long delay because even without such nationwide investigation probable cause on the culpability of Bolante and the other Agriculture officials can and in fact has already been established by the Senate.

In the Mega Pacific deal, the Supreme Court has already found several irregularities in the bidding of the automated counting machines prompting it to refer the case to the Ombudsman for determination of criminal liability, if any, of those involved. But instead of merely determining said liability, the Ombudsman went further and looked for proof of guilt beyond reasonable doubt and found it lacking.

In the NBN-ZTE broadband overpricing, a formal complaint has already been filed before the Ombudsman based on transcript of testimonies and documents of the Senate hearings forwarded and submitted to her Office more than a year ago but up to now, no action has been done about it. Promptly means to act immediately and without delay, a quick action as the occasion demands. This is meaning of the term as understood by the general public. Hence public perception that the Ombudsman is sitting on the case can not now be avoided.

All these scandalous government deals and corruption happening would have caused the Ombudsman to hear that inner voice telling her that she has not done her job well enough and that she should resign. Unfortunately the voice is still not audible enough.

So the people will just have to accept this sad fact until the end of her term. In the meantime, studies should now start on how to choose an Ombudsman of recognized probity and independence and who knows when it is time to resign. One way perhaps of assuring the Ombudsman’s independence is for the President to appoint a total stranger, an outsider who has not held and has never been appointed by him/her to any government position prior to becoming Ombudsman. But this may not be viable under the present political realities. The most feasible perhaps is to let the people choose their Ombudsman through the electoral process thus making the position elective rather than appointive. 

People believe they do not deserve the Ombudsman they have now. But if they are given the choice, they certainly deserve and has to accept and tolerate their choice even if they realize it is a mistake.   

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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