Fighting corruption in the Philippines is like trying to kill an elephant with a flyswatter.docx

 “Emulating the Investigative and Prosecutorial System of Indonesia’s Komisi Pemberantasan Korupsi (KPK) can Improve the Conviction ate of the Philippine !mbudsman"#

Submitted to: $tty" $tty" obert aypon

Submitted by:  %ag Iesu Inigo &" 'urillo 'arch  * +,-

TABLE OF CONTENTS

Pages

I.

Introduction

2-3

II.

The Basis for Emulating the KPK’s Investigative and Prosecutorial System

-!

III.

Investigative System of the KPK that should "e imitated "y the #m"udsman

I+.

+.

$

 %. KPK’s &o'er to conduct searches and sei(ures) free(e assets) interce&t communications and others

$-*

Prosecutorial System of the KPK that should "e emulated "y the #m"udsman

,

 %. Three-stage &anel revie' "y the KPK

,-,,

B. e-esta"lishment of relationshi& 'ith other &artner organi(ations and decentrali(ation of some &o'ers to the de&uty #m"udsmen) retaining a fe' /ey &o'ers to ensure chec/ and "alance in lieu of the three-stage &anel revie'

,,-,2

0onclusion Bi"liogra&hy and references

,2-, ,1

I.

Introduction

Fighting corruption in the Philippines is like trying to kill an elephant with a flyswatter .  4%tty. Simeon +. 5arcelo) Phili&&ine #m"udsman 22-21 Systemic and 'ides&read corru&tion has long "een a disease that has festered for a long time in the Phili&&ines and has there"y ham&ered its &rogress and develo&ment. 0orru&tion e6ists in all levels of the government) es&ecially among high-level civil servants in the Phili&&ines. , %tty. Simeon +. 5arcelo) Phili&&ine #m"udsman for the years 22-21) once said that it is 'rong to say that there is corru&tion "ecause there is &overty7 rather) it is the other 'ay around) there is &overty "ecause there is corru&tion. The framers of the ,*8$ 0onstitution envisioned the #m"udsman as an official critic 'ho studies the la's) &rocedures and &ractices in government) a mo"ili(er 'ho ensures that the steady flo' of services is accorded the citi(ens) and a 'atchdog 'ho loo/s at the general and s&ecific &erformance of all government officials and em&loyees. 9cf. :ournal ;o. ) :uly 2!) ,*8!) &. 32entleman :ose 5iguel %rroyo. In five years under >utierre() the #ffice’s "udget gre' "y an annual average of  2,.31 &ercent) or t'ice more than the usually allo'ed increase in the "udgets of  most other government agencies. #n to& of this) the #ffice has also received not less than D$.2 million or P3,! million in four different foreign grants and assistance) including funds committed to her &redecessor) Simeon +. 5arcelo) "et'een 21 and 2*. That the #m"udsman has failed to &roduce more and "etter results in its cam&aign against corru&tion des&ite such 'indfalls could "e traced to issues that money alone cannot resolve.  1 It is seen fit to consider that the KPK has a far-reaching mandate) e6ercising e6ce&tional &o'ers that range from investigation and &rosecution to &revention and the coordination of agencies authori(ed to com"at corru&tion. Its , Buman /evelopment ;et5or" “=he !1ce !f =he !mbudsman3 Is =here $n Institutional 2eaness7#" PB/ Issue ;umber +" +D0+" P" " + Ibid* F of immediately preceding page"  amon 'agsaysay $5ard Goundation !1cial 2ebsite" http344555"rmaf"org"ph4ne5rmaf4main4a5ardees4a5ardee4proHle4>D > ? $nti0corruption esource Center Issue" $ugust +,3 p" , - 'angahas* 'alou and Ilagan* Karol $nne" “!mbudsman a failure* despite Jood of funds#" Philippine Center Gor Investigative %ournalism" Gebruary * +,,"

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&o'ers are such that a civic leader remar/ed) u&on the la'’s &assage) that &oliticians 'ere inviting a tiger into their house. , This &a&er focuses the lens on the investigative and &rosecutorial &o'ers of the KPK that made it more res&onsive to its duty as an anti-corru&tion institution as com&ared to the Phili&&ine #m"udsman and suggests that the emulation of the former’s investigative and &rosecutorial system may im&rove the conviction rate of the latter.

, Ibid* +

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II. The Basis for Emulating the KPKs In!estigati!e and Prosecutorial S"stem

=hy is it good to consider the KPK and its investigative and &rosecutorial system a good model for the Phili&&ine #m"udsman to emulate? The Indonesia and the Phili&&ines share a num"er of similar im&ortant characteristics that 'ould 'arrant this &arallelism. >eogra&hically) "oth Indonesia and the Phili&&ines are Southeast %sian countries and are mem"ers of the %SE%; 9%ssociation of  Southeast %sian ;ationsutierre(

The Social Weather Stations ratings of net  sincerity are as follows: !" #very goo$# for over %&' net rate( )" #goo$# for %*! to %&'( *" #mo$erate# for %!! to %*'( +" #me$iocre# for %!' to ,!'( &" #poor# for ,!! to ,*'( -" #ba$# for ,*! to ,&'( ." #very ba$# for below ,&' .

0orollary) considering that it 'as during %tty. Simeon 5arcelo’s occu&ancy of the #ffice of the #m"udsman 9#5B< 'here the ;et Sincerity ating 'as highest) it is reasona"le to ta/e heed of his recognition of the im&ortance of the S&ecial Prosecutors and the ield Investigation #fficer. Fo'ever) the im&ortance of  im&roving the S&ecial Prosecutor and the ield Investigation #fficer does not of  itself euate entirely to the effectiveness and efficiency of "oth &rosecution and investigation of the #m"udsman. In fact) even if it 'as during %tty. 5arcelo’s tenure that the ;et Sincerity ating of the #m"udsman 'as at its "est) nonetheless) as may "e o"served) it is only 'ithin the category of Amoderate’. There is a much greater room for im&rovement. Fence) there is a need to delve not merely on the &rosecution and investigation officers) agents and em&loyees of the #m"udsman "ut more im&ortantly 'ith the system of &rosecution and investigation itself. , Buman /evelopment ;et5or" “=he !1ce !f =he !mbudsman3 Is =here $n Institutional 2eaness7#" PB/ Issue ;umber +" +D0+" P" + Buman /evelopment ;et5or" “=he !1ce !f =he !mbudsman3 Is =here $n Institutional 2eaness7#" PB/ Issue ;umber +" +D0+" P" 

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The KPK’s investigative and &rosecutorial system no' comes into the &icture as a relevant model for the #m"udsman. %&art from the aforementioned similarities in characteristics "et'een Indonesia and the Phili&&ines) the KPK has valiantly "ecome an e6ce&tion to the commonality that most anti-corru&tion agency failed in u&holding their mandate. , urthermore) the KPK has had its crises) including harassment and intimidation) interagency feuds) slashed "udgetsand it is su"@ect to the higher &o'ers of the &resident and the &arliament. But KPK has also "uilt u& a formida"le "ase of  &u"lic su&&ort. =hen it loc/ed horns 'ith the national &olice) thousands staged &u"lic demonstrations su&&orting KPK. =hen the &arliament refused to allocate money for a much-needed KPK "uilding) Indonesian citi(ens voluntarily donated money for the "uilding construction. ;o' on its tenth year) KPK has "ecome a sym"ol of reform and ho&e for Indonesians) and is hailed as one of the fe' effective anti-corru&tion agencies in the 'orld. 2 Fence) the KPK has indeed 'on the hearts of the Indonesian constituents as their anti-corru&tion institution. Thus) there is much reason for the Phili&&ine #m"udsman to emulate Indonesia’s KPK.

, ? $nti0corruption esource Center Issue" $ugust +,3 Introduction" + http344555"rmaf"org"ph4ne5rmaf4main4a5ardees4a5ardee4proHle4>D

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III. In!estigati!e S"stem of the KPK that should +e imitated +" the Om+udsman

The KPK essentially has all the investigative &o'ers of a la' enforcement agency) 'hile the #m"udsman does not. The KPK can) on its o'n accord) conduct 'ireta&s on sus&ects) e6amine their "an/ accounts and ta6 records) free(e sus&ects’ assets) issue hold orders and ma/e arrests. The #m"udsman cannot 'ireta&) it cannot e6amine "an/ accounts or free(e assets) and it cannot ma/e arrests. %t "est) the #m"udsman can conduct surveillance "ut it can only use still cameras) not video recording eui&ment. +ideo recording evidence) in so far as it has audio characteristics) is &roscri"ed under the Phili&&ines’ anti'ireta&&ing la' and thus inadmissi"le in court. , A. Po(er to conduct searches and sei,ures- free,e assets- intercet communications and others (ithout rior /udicial authorit"

Cnder the Phili&&ines’ %nti-'ireta&&ing La') it is &rohi"ited to record and interce&t &rivate communications. The la' does not &rohi"it the recording of  &u"lic s&eeches "y mem"ers of the audience) or other forms of M&u"licM communication such as &ress conferences) intervie's) and "oard meetings that are o&enly recorded.2 The said la' does not &rohi"it the recording of all &rivate communications) "ut &rovides a limited and narro'ly dra'n e6ce&tion for la' enforcers. The la' &rovides that &olice and other law enforcement agencies   may 'ireta& &rivate communications "utG 9,< la' enforcers must first secure a court order7 and 92< only in cases involving crimes against national security under the evised Penal 0ode 9treason) es&ionage) re"ellion or sedition< and /idna&&ing. 3 +erily) 'ith this statutory constraint) the investigators of the #m"udsman cannot fully gather easily the necessary evidence that 'ould carry sufficient 'eight in the &rosecution of an alleged corru&t official. urther) there has to first "e a court order "efore the #m"udsman may "e allo'ed to interce&t any &rivate communications "et'een &u"lic officials and their cronies. There is a @udicial red ta&e that the #m"udsman has to &rocure "efore &roceeding to interce&t 'hat may "e very relevant communication as &iece of evidence for the &rosecution of corru&t officials. urthermore) it may also im&air the #m"udsman’s ca&acity to investigate inde&endently as mem"ers of @udiciary are informed "eforehand of their intention and motives to 'ireta& a conversation of any &u"lic official that may "e related to corru&tion transactions.  %nother deficiency of the #m"udsman is that they cannot e6amine sus&ect’s "an/ accounts and ta6 records) and free(e sus&ects’ assets. #nly the , ? $nti0corruption esource Center Issue" $ugust +,3 p" ,> + Gree Aegal $ssistance &roup" “G$:s $nti02iretapping Aa5#" http344pciL"org4blog45p0docs4G$:s0$nti02iretapping0Aa5"pdf   Ibid

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Phili&&ines’ %nti-5oney Laundering 0ouncil can e6amine and free(e "an/ accounts as &art of a criminal investigation. The #m"udsman can reuest the 0ouncil for hel& after it has filed a case against the sus&ects in court) a &rotracted &rocess that &revents secrecy and dis&atch in investigation) 'hich are needed to &revent sus&ects from destroying evidence and hiding ill-gotten funds., There are some nota"le cases 'here the #m"udsman has failed due to their  deficiency in investigation. %mong 'ere the D2 million "ri"ery case) involving :ustice Secretary Fernando Pere() and the P2"illion &eso contract "et'een the 0#5ELE0 and 5ega&acific. The D2 million "ri"ery case involving :ustice Secretary Fernando Pere( stemmed from a com&laint filed in the #ffice of the #m"udsman "y former  5anila 0ongressman 5ar/ :imene() accusing Pere( of e6torting CS D2 million from him in e6change for the a&&roval of a controversial D$-million I5PS% &o'er &lant deal. The anomalous contract) originally signed "y former &resident :ose&h Estrada) 'as "eing revie'ed "y the ne'ly-installed %rroyo government. The anti-graft court @un/ed the falsification of &u"lic documents charge against Pere( as it ruled that the &rosecution &resented insufficient evidence to su&&ort any of its allegations. The Sandigan"ayan ruled that all testimonial and documentary evidence &resented against Pere( 'as mere hearsay. :imene( 'as not &resented in court to "e cross-e6amined) the court said. In addition) the "an/ documents "ore no 'eight "ecause "an/ e6ecutives or di&lomatic officers 'ho had firsthand /no'ledge a"out them 'ere not called to testify a"out them. 2 In a decision &enned "y :ustice Lucas P. Bersamin) the Su&reme 0ourt cited the violation "y the #m"udsman of Pere(’ constitutional right to due &rocess and s&eedy trial as grounds for dismissal. +oting unanimously) the 1 @ustices of the S0 irst ivision decided that the delay in resolving the criminal com&laint against Pere( 'as MinordinateM and Mo&&ressive.M The fact finding investigation and &reliminary investigation alone on Pere(’ case "y the #ffice of the #m"udsman lasted nearly 1 years and 1 months. 3 There is failure to &resent sufficient evidence here "ecause of the lac/ of  sufficient &o'er to conduct &ro&er investigation. 5ost evidence &resented 'as discarded as merely hearsay. The #m"udsman failed to o"tain strong evidence "ecause they had a deficient investigation system.  %nent the P2"illion &eso contract "et'een the 0#5ELE0 and 5ega&acific) on :anuary ,3) 2) no less than the Su&reme 0ourt 9S0< as/ed the #m"udsman to determine the Mcriminal lia"ility) if anyM) of the &u"lic officials involved in 0omelec esolution ;o. !$ a'arding the contract for Phase II of the %ES 9automated election system< to 5ega Pacific 0onsortium 95P0 + http344555"rappler"com4nation4-D0anti0graft0court0nani0pere@0charges  http344555"rappler"com4nation4>>+0sc0a1rms0dismissal0e60doL0secretary0 nani0pere@0robbery0charge

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9IT vs. 0omelec) >..,1*,3*  Ibid > Ibid

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#n the other hand) the #m"udsman &rosecutors &ursue 'hatever case is handed to them "y the #m"udsman. They do not &lay a role in the decision to &rosecute. This &rocess is a /ey &ro"lem &ointed out "y the &rosecutors themselvesG they are assigned cases to &rosecute 'ithout) in their vie') sufficient evidence. They argue that the dismissal and 'ithdra'al of many #m"udsman cases &rior to trial in the Sandigan"ayan is not their fault) "ut the failure of investigators 'ho did not gather the reuired evidence. , Cnli/e in the KPK) &rocedurally) #m"udsman investigations do not ta/e into account &rosecutors’ in&uts. It is the investigators) not the &rosecutors) 'hich ma/e the recommendation to &rosecute. The #m"udsman’s investigation &rocess &roceeds in t'o stagesG there is a field investigation unit that ma/es the initial res&onse to a corru&tion incident or com&laint7 if the field investigation unit sees that there is li/ely &ro"a"le cause of corru&tion) it for'ards its findings to a &reliminary investigation unit that ma/es the actual determination of a &ro"a"le case. If the &reliminary investigation unit then determines there is &ro"a"le cause) it ma/es a recommendation to the #m"udsman for &rosecution. 2 The investigators’ recommendation is &ro&osed directly to the head of the #ffice of the #m"udsman 4 the #m"udsman himself 4 'ho alone ma/es the decision to &roceed or not. If the #m"udsman decides to &rosecute) the case is then for'arded to the institution’s #ffice of the S&ecial Prosecutor. 3 0onsidering this /ind of set-u& of the #m"udsman) it 'ould "e a&&arent that miscommunications along the &rocess is looming es&ecially that the S&ecial Prosecutors are not the one 'ho conducted the actual investigation. They merely rely on 'hat evidence is &resented to them "y the investigators. urther) the decision to &rosecute is 'ith the #m"udsman alone) so the s&ecial &rosecutors may not have confidence in the &rosecution as they are &ushed to do so not'ithstanding their o'n assessment of the case. It 'ould have "een more efficient) should the #m"udsman em&loy the same &rosecutorial machinery as the KPK. To im&rove the #m"udsman’s &erformance 9as measured "y conviction rateraft 0ommission) and civil society organi(ations such as the Trans&arency and %ccounta"ility ;et'or/utierre( centrali(ed almost all decisions 4 e.g. travel orders) information dissemination) a&&rovalNdisa&&roval on com&laints filed "y the ield Investigation #ffice "efore the Preliminary Investigation %dministrative %d@udication and 5onitoring #ffice 9P%5#< 4 and entrusted a&&roval &o'ers to %ssistant #m"udsman 5ar/ :alandoni and #verall e&uty #m"udsman #rlando 0asimiro. 9ufo) 28"7 #ffice #rder 2 series of 2!< The e&uty #m"udsmen for Lu(on) +isayas and 5indanao)

, Buman /evelopment ;et5or" “=he !1ce !f =he !mbudsman3 Is =here $n Institutional 2eaness7#" PB/ Issue ;umber +" +D0+" P" + Ibid* 

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have "een ordered to transfer all &ending cases involving governors and vicegovernors to the #ffice of the #verall e&uty #m"udsman. , Even the #m"udsmanHs official s&o/esman) :ose de :esus) has to see/ clearance from the #m"udsman and her HdelegatesH "efore he can do his @o" as s&o/es&erson and liaise 'ith media. %s a result of this centrali(ed decision-ma/ing) conviction rates have dro&&ed and the staff are demorali(ed. >utierre( also strained relations 'ith the #ffice of the S&ecial Prosecutor 9#SP< headed "y ennis +illa-Ignacio.2  %ccording to %tty. Simeon 5arcelo in a tal/ at CPG 'e should al'ays encourage the institution of 5utual Legal %ssistance Treaty so that it 'ould "e easy to get evidence. Katulad ng case ni dating 5a@or >eneral 0arlos >arcia) "ecause 'e already had assistance from the Cnited States) it too/ us only a fe' months to file the caseQ. =e started in Se&tem"er) 'e 'ere a"le to file the first case on ;ovem"er) and then 'e 'ere a"le to file the &lunder case during 5arch of the follo'ing year. >anun /a"ilis. So it all de&ends on 'hether the documents are com&lete.3

&. Conclusion

The KPK has "een so effective in com&lying 'ith its mandate "ecause of a "road and efficient investigative and &rosecutorial arm. If the Phili&&ines should emulate their investigative and &rosecutorial system) there is li/elihood that the #m"udsman 'ould enhance its conviction rate. #f course) there are other factors to consider such as the leadershi& of the incum"ent #m"udsman) the su&&ort of the general &u"lic against the fight of  corru&tion) "udgetary constraints) other macro-&olitical factors and many more. ;onetheless) an effective internal system for investigating and &rosecuting corru&tion cases of &u"lic officials is one of the "ac/"one for the success of the 'ar against corru&tion. In a 'orld 'here even very &oor countries e6hi"it high levels of technology and mo"ility) an anti-corru&tion agency 'ithout the &o'ers to conduct 'ireta&s) investigate financial records) free(e assets) and a&&rehend sus&ects is a useless entity. %n anti-corru&tion agency needs to "e a"le to conduct surveillance) follo' the money trail) set u& sting o&erations) and ma/e arrests of li/ely fugitives. #nly 'ith standard investigative &o'ers and ca&acities can an anti-corru&tion agency gather the necessary evidence to ensure effective &rosecution.

, Ibid* + Ibid  'arcelo* Simeon" =al at the .P College !f Aa5" 'arch * +" https344555"youtube"com45atch7v8O'2D5B%s:" > ? $nti0corruption esource Center Issue" $ugust +,3 p" ,>

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Fence) the government must give the #m"udsman more teeth to conduct a more aggressive investigation against corru&t officials. The &ro"lem is that many of those in charge are corru&ted themselves. 5ay"e it is their real intention to leave the #m"udsman as it is "ut a toothless tiger. It is suggested that this must not "e so. The #m"udsman) for the sa/e of &u"lic trans&arency and 'elfare) should "e allo'ed as an e6ce&tion and "e free to conduct 'ireta&) free(e assets) and a&&rehend sus&ect 'ithout &rior @udicial a&&roval) of course) also 'ithin reasona"le "ounds of la'. It must "e inde&endent to do so) as it is called the &rotector of the &eo&le. It cannot "e under the leash of the @udiciary. ;onetheless) as all things are) it should still "e o&en to 0ourt revie' for grave a"use of discretion. The KPK’s @oint investigative and &rosecutorial units have demonstrated remar/a"le efficiency and effectiveness in collecting evidence and develo&ing com&elling cases. In contrast) "y letting the investigators decide 'hen to &rosecute) the #m"udsman has 'ea/ened /ey factors in &rosecutorial &o'er. 5oreover) in sharing res&onsi"ility for decisions to &rosecute) the uantum of  evidence in deciding to &rosecute should not only "e on "asis of &ro"a"le cause "ut on the &ro"a"ility of guilt "eyond reasona"le dou"t. , Fence) the #m"udsman may ma/e an order restructuring the 'hole machinery of its &rosecution "y ensuring that the investigators and the &rosecutors shall 'or/ hand-in-hand in every ste& of the 'ay from the investigation until the &rosecution of sus&ected corru&t officials and not se&arately as though the 'or/ of the &rosecutors "egins after the 'or/ of the investigator. The decision to &rosecute must also "e su"@ected to &anel revie' "y the 0ommission) the investigators and the s&ecial &rosecutors in order to secure a strong case against the official and to immensely enhance the li/elihood of conviction.  %lternatively) the #m"udsman must re-esta"lish its relationshi& 'ith other  &artner organi(ations such as the Solana 0ovenant 4 a covenant "et'een the #5B) 0#%) and 0S0 4 'hich 'as a cele"rated agreement among Hli/eminded institutionsH to'ards a more coordinated a&&roach to fighting corru&tion.2 0orollary) the #m"udsman should also decentrali(e some &o'ers to the de&uty #m"udsmen) retaining a fe' /ey &o'ers to ensure chec/ and "alance in lieu of three-stage &anel revie'. =ith this at hand) and the 'hole ;ation’s dedication to the eradication of  corru&tion in the Phili&&ines) may very 'ell ensure the victory of the 'ar  against corru&tion. This is a valiant and no"le endeavor "ecause again) as 'hat %tty. Simeon 5arcelo has said) It is not true that there is corru&tion "ecause of &overty7 "ut rather) it is the other 'ay around) there is &overty "ecause of corru&tion. Sto& corru&tion) save the ;ation from &overty.

, Ibid* p" +D + Buman /evelopment ;et5or" “=he !1ce !f =he !mbudsman3 Is =here $n Institutional 2eaness7#" PB/ Issue ;umber +" +D0+" P" 

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Bolongita) Emil P. %n E6ce&tion To The ule?. C 4 %nti-corru&tion esource 0enter Issue. %ugust 2,G &. $ Fuman evelo&ment ;et'or/. The #ffice #f The #m"udsmanG Is There %n Institutional =ea/ness?. PF Issue ;um"er 2. 28-2*. P. 3. 5angahas) 5alou and Ilagan) Karol %nne. #m"udsman ailure) es&ite loods #f unds. Phili&&ine 0enter or Investigative :ournalism. e"ruary !) 2,,. ;orimitsu #nishi) 0orru&tion ighters ouse esistance in Indonesia) ;e' Oor/ Times) :uly 21) 2*. M+ision and 5issionM. KPK 'e"site. htt&GNN'''./&/.go.idNidNmodulesNeditoNcontent.&h&?idR,1 Ilagan) Karol %nne. Sanctum Sanctorum?. Phili&&ine 0enter or Investigative :ournalism. e"ruary 8) 2,, 5arcelo) Simeon. Tal/ at the CP 0ollege #f La'. 5arch 3) 2*. htt&sGNN'''.youtu"e.comN'atch?vR5=8'*F:s. htt&GNN'''.gmanet'or/.comNne'sNstoryN,1,3Nne'sNthe-comelec-mega&acific-consortium-deal-timeline htt&GNN'''.ra&&ler.comNnationN18!-anti-graft-court-nani-&ere(-charges htt&GNN'''.ra&&ler.comNnationN$2-sc-affirms-dismissal-e6-do@-secretarynani-&ere(-ro""ery-charge Section ,3 and ,1) .%. !$$

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