“Emulating the Investigative and
“Emulating the Investigative and
Prosecutorial System of Indonesia’s Komisi
Prosecutorial System of Indonesia’s Komisi
Pemberantasan Korupsi (KPK) can Improve the
Pemberantasan Korupsi (KPK) can Improve the
Conviction ate of the
Conviction ate of the Philippine
Philippine
!mbudsman"#
!mbudsman"#
Submitted to:
Submitted to:
$tty
$tty"
" obert
obert aypon
aypon
Submitted by:
Submitted by:
%ag Iesu Inigo &" 'urillo
%ag Iesu Inigo &" 'urillo
'arch *
'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
$
%. KPK’s &o'er to conduct searches and sei(ures) free(e assets) interce&t
communications and others
$-*
I+. Prosecutorial System of the KPK that should "e emulated "y the #m"udsman
,
%. Three-stage &anel revie' "y the KPK ,-,,
B. e-esta"lishment of relationshi& 'ith other &artner organi(ations and decentrali(ation of some &o'ers to the de&uty #m"udsmen) retaining a fe' /ey &o'ers to ensure chec/ and "alance in lieu of the three-stage &anel revie'
,,-,2
+. 0onclusion ,2-,
I. Introduction
Fighting corruption in the Philippines is like trying to kill an elephant with a flyswatter .
4%tty. Simeon +. 5arcelo) Phili&&ine #m"udsman 22-21
Systemic and 'ides&read corru&tion has long "een a disease that has festered for a long time in the Phili&&ines and has there"y ham&ered its &rogress and develo&ment. 0orru&tion e6ists in all levels of the government) es&ecially among high-level civil servants in the Phili&&ines., %tty. Simeon +. 5arcelo) Phili&&ine #m"udsman for the years 22-21) once said that it is 'rong to say that there is corru&tion "ecause there is &overty7 rather) it is the other 'ay around) there is &overty "ecause there is corru&tion.
The framers of the ,*8$ 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!) &. 32<.2 The #m"udsman has "een du""ed as the &rotector of the &eo&le. But it seems that since the time it "ecame o&erational on 5ay ,2) ,*88) the #m"udsman can hardly &oint to any case against high-ran/ing officials that resulted in convictions. =ith the nota"le e6ce&tion of former President :ose&h Estrada 'ho 'as convicted of corru&tion in e6traordinary circumstances 9after he 'as already ousted from office<) the #m"udsman cannot &oint to any high-ran/ing official that it has convicted and im&risoned for corru&tion. 3 #ther high-ran/ing officials that 'ere im&eached 'ere former 0hief :ustice enato 0orona and the very o'n former #m"udsman 5ercedita >utierre(.
So) 'e may as/) has the #m"udsman "een com&lying 'ith its mandate to act promptly on com&laints filed in any form or manner against officers or em&loyees of the >overnment) or of any su"division) agency or instrumentality thereof) including government-o'ned or controlled cor&orations) and enforce their administrative) civil and criminal lia"ility in every case 'here the evidence 'arrants in order to promote efficient service by the Government to the people 9Section ,3) .%. !$$<. =hether it has 9at least to some e6tent) though menial< or it has not at all) it is indu"ita"ly clear that it has not &roduced the "est results it could have &ossi"ly done so.
Is there an institutional 'ea/ness? % star/ contrast can "e made "et'een the Phili&&ine #m"udsman and the Komisi Pem"erantasan Koru&si 9KPK<) the anti-corru&tion institution of Indonesia.
, .S /epartment of State Investment Climate Statement +, 0 Philippines" + !1cial 2ebsite of the !1ce of the !mbudsman"
http344555"ombudsman"gov"ph4inde6"php7 home8,9navId8':889sub;avId8!/.8
<olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 p" ,
The anti-corru&tion agency’s &erformance can "e gauged "y its ca&acity to &rosecute 9measured "y the conviction rate< and its relations 'ith the &u"lic., In @ust five years) the KPK has successfully &rosecuted over one hundred senior officials that "efore 'ould have "een considered as Auntoucha"le’ "y their &ositions and &rominence. To date) the KPK has yet to lose a single case) either at the anti-corru&tion court or at the Su&reme 0ourt 'here the guilty verdicts of the TIPIK# 9anti-corru&tion court< are a&&ealed.2 The KPK’s accom&lishments have "een im&ressive. rom 23 to 2,2) the KPK has handled 332 high-&rofile cases involving to& government officials7 of these) ,!* cases have "een &rocessed in court) and the KPK has chal/ed u& an ama(ing one-hundred &ercent conviction rate. rom 2 to 2,) the KPK has returned to the state treasury recovered assets 'orth &. 81.! "illion) or more than CSD8 million.3
So 'hat e6actly ma/es the KPK more efficient than the Phili&&ine #m"udsman? Is it the com&osition of the KPK com&ared 'ith the #m"udsman? Perha&s it could "e7 "ut) it should "e noted that in terms of num"er of &ersonnel) the KPK is only a"out half the si(e of the #m"udsman yet it is far more &roductive. %s of 28) the KPK had a"out 18 &ersonnel) 'hile the #m"udsman had over ,) staff. %tty. Simeon 5arcelo) in a conference held at the Cniveristy of the Phili&&ines on 5arch 3) 2*) said that during his time as #m"udsman) they had a difficulty in the investigation for the case against the former 0hief :ustice enato 0orona due to the fact of insufficiency of funds to get the reuired evidence to incriminate the said former :ustice. Fo'ever) the #m"udsman’s "udget has tri&led from P3*2.8 million in 23 to P,.33 "illion in 2* during the administration of President >loria 5aca&agal %rroyo) the 'ife of >utierre(’s la' school "atch mate) then irst >entleman :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 21 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 2eaness7#" PB/ Issue ;umber +" +D0+" P" "
+ Ibid* F of immediately preceding page"
amon 'agsaysay $5ard Goundation !1cial 2ebsite"
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- 'angahas* 'alou and Ilagan* Karol $nne" “!mbudsman a failure* despite Jood of funds#" Philippine Center Gor Investigative %ournalism" Gebruary * +,,"
&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.
II. The Basis for Emulating the KPKs 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 ;ations<.
%&art from the Phili&&ines and Indonesia’s geogra&hical location) there are other im&ortant similarities &olitically) economically and in terms of corru&tion in the country) to 'itG
,.< Politically ) "oth countries e6&erienced long &eriods of authoritarian rule that 'ere characteri(ed and sustained "y rent-see/ing and systemic corru&tion. The 5arcos dictatorshi& in the Phili&&ines lasted , years) from ,*$2 to ,*8!) 'hile Soeharto’s authoritarianism endured for 3, years) from ,*!$ to ,**8. Similarly) "oth authoritarian governments colla&sed follo'ing &o&ular &rotest movements fuelled "y 'ides&read anger against massive corru&tion and its &reci&itating role in economic crises. 5oreover) "oth countries eually sa' a "urst of &luralism during their res&ective transitions from authoritarian rule. ;umerous &olitical &arties formed) civil society organisations mushroomed) and media channels multi&lied. Today) "oth countries are characterised "y strong chief e6ecutives) 'ith relatively 'ea/ "icameral legislatures) and a ro"ustly decentralised local government sector.,
2.< Economically ) "oth Indonesia and the Phili&&ines are lo'er middle income countries. Indonesia’s >ross ;ational Income &er ca&ita in 28 'as CSD,)88 'hile the Phili&&ines’ 'as CSD,)8* 9=orld Ban/ 2*<. Their &olitical economies are li/e'ise similar in terms of the &ersistence of neo-&atrimonial &ractices) 'here the structures and systems of modern government mas/ the &ractices and &atterns of &atronage and corru&tion. The res&ective transitions to democracy of "oth countries failed to dismantle the family-focused) clan-oriented) and region-sensitive 'ays that dominate &olitics and economics in interloc/ing 'ays.2
3.< In terms of corruption) "oth Indonesia and the Phili&&ines are considered among the more corru&t in %sia. Both score very lo' in various indices such as Trans&arency International’s 0orru&tion Perce&tions Inde6 and the =ord Ban/’s 0ontrol of 0orru&tion indicator. 9Indonesia’s ran/ing) ho'ever) has im&roved in recent years com&ared to the Phili&&ines) in &art "ecause of the 'or/ of the KPK.< =hen the KPK and the #m"udsman 'ere esta"lished 9in 23 and ,*88 res&ectively<) "oth faced similarly high levels of state ca&ture as 'ell as grand and &etty corru&tion.3
It is to "e noted that %tty. Simeon 5arcelo has recogni(ed the im&ortance of the #ffice of the S&ecial Prosecutor and the ield Investigation #ffice) and thus
, <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 p" "
+ Ibid Ibid
im&lemented &rograms to strengthen the t'o offices 4 recruitment of additional &rosecutors 9from 12 to , in 23 and ,,3 in 2$< and investigators 9from 3$ to *! in 23 and ,188 in 2$< and trainings., It is relevant to consider the outloo/ of %tty. Simeon 5arcelo "ecause the #ffice of the #m"udsman 9#5B< 'as most &o&ular during 5arceloHs leadershi&) e6hi"iting HmoderateH sincerity in fighting corru&tion. Cnder >utierre(H leadershi&) ho'ever) the #m"udsmanHs anti-corru&tion efforts are found to "e HmediocreH.2 This is sho'n "y the PF Issue ;um"er 1) 28-2*) of the Phili&&ine Fuman evelo&ment ;et'or/) to 'itG
#ear Net Sincerit" $ating %&er"' Some(hat Sincere ) Some(hat' &er" Insincere* Om+udsman 2 -1 esierto 2, J$ 22 ;.%. 5arcelo 23 J2, 2 J28 21 J22 2! J! >utierre( 2$ J* 28 J
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 euate 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 2eaness7#" PB/ Issue ;umber +" +D0+" P"
-+ Buman /evelopment ;et5or" “=he !1ce !f =he !mbudsman3 Is =here $n Institutional 2eaness7#" PB/ Issue ;umber +" +D0+" P"
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 "udgetsand 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.
, <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 Introduction"
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 eui&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- intercet 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
, <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 p" ,>
+ Gree Aegal $ssistance &roup" “G$:s $nti02iretapping Aa5#" http344pciL"org4blog45p0docs4G$:s0$nti02iretapping0Aa5"pdf Ibid
Phili&&ines’ %nti-5oney Laundering 0ouncil can e6amine and free(e "an/ accounts as &art of a criminal investigation. The #m"udsman can reuest 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<) as 'ell as the 0ontract "et'een the 0omelec and 5ega Pacific eSolutions 95PEI< e6ecuted on an uns&ecified date "ut notari(ed on :une 3) 23. The amount involved in these deals totals P2.1 "illion. The S0 in its decision &romulgated on said date
, <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 p" ,>
+ http344555"rappler"com4nation4-D0anti0graft0court0nani0pere@0charges http344555"rappler"com4nation4>>+0sc0a1rms0dismissal0e60doL0secretary0 nani0pere@0robbery0charge
9IT vs. 0omelec) >..,1*,3*<) found the said esolution and 0ontract null and void) as a conseuence of 'hich) Mthe &urchase of the machines and all a&&urtenances thereto including the still to "e &roduced soft'are as 'ell as all the &ayments made therefor 9P8*) ,!$) !*$., "y 0omelec com&utation<) have no "asis 'hatsoever in la'. Thus the S0 ordered the recovery of the funds e6&ended &ursuant to the void esolution and 0ontract from the &ayees andNor Mfrom the &ersons 'ho made &ossi"le the illegal dis"ursements 'ithout &re@udice to &ossi"le criminal &rosecutions against themM.,
Today) the #m"udsman has not yet fully com&lied 'ith the S0 directive. =hile it &rom&tly started the investigation the day after the directive came out) it got stuc/ there. The S0 itself "elieves that this delay and inaction is already unreasona"le and ine6cusa"le so it gave the #m"udsman until :une 3) 2! to com&lete its investigation. Oet instead of meeting the deadline) ne's re&ort says the #m"udsman is as/ing for more time.2
#fcourse) a&art from the deficiency in the investigative ca&acity of the #m"udsman) there are other factors such as inefficient leadershi&. %ccording Fuman evelo&ment ;et'or/) lo' conviction rate is e6&lained "y highly centrali(ed system) a 'ea/ened #ffice of the S&ecial Prosecutor) and a demorali(ed staff. This and "ad relations 'ith other anticorru&tion organi(ations contri"ute to the "ad image of the #m"udsman and thus its gro'ing un&o&ularity.
The #ffice of the #m"udsman said there is no fi6ed &eriod in the investigation of cases or com&laints "ecause of the various factors involved) such as the com&le6ity of the allegations) the volume of evidence reuired) and the num"er of &u"lic officialsNem&loyees accused.
#m"udsman investigations are al'ays aimed at &resenting a strong case so our inuiries are al'ays in-de&th) says de :esus. %lthough the standard of &roof in fact-finding is only &ro"a"le cause) the I# 9ield Investigation #ffice< investigators al'ays aim at &roof "eyond reasona"le dou"t) or) in an administrative case) &re&onderance or su"stantial evidence. The reason "ehind this is to increase the chances of conviction of an offender.3
There is no &ro"lem 'ith the goal of aiming at &resenting a strong case through aiming &roof "eyond reasona"le dou"t even if standard of &roof in fact-finding &ro"a"le cause is only. The &ro"lem is 'ith minimi(ing the least time &ossi"le to gather such strong and credi"le evidence.
%s &reviously mentioned) KPK has "een so successful and one of its &rimary distinctive traits is that it has very "road investigative and &rosecutorial &o'ers that allo'ed it to circumvent and overrule &olice and &rosecutors. These &o'ers included the right to ta& &hones 'ithout a court order) to im&ose travel "ans) to free(e "an/ accounts) and to access financial records.
, http344555"gmanet5or"com4ne5s4story4,-,4ne5s4the0comelec0mega0 paciHc0consortium0deal0timeline
+ Ibid
Ilagan* Karol $nne" “Sanctum Sanctorum7#" Philippine Center Gor Investigative %ournalism" Gebruary D* +,,"
Emulating the KPK "y "roadening these investigative &o'ers of the #m"udsman might enhance the #m"udsman’s chances of gaining higher conviction and faster &rosecution of corru&t &u"lic official. The #m"udsman may "ecome more efficient and effective. The &ro&onent agrees 'ith Emil Bolangaita that 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.
I&. Prosecutorial S"stem of the KPK that should +e emulated +" the Om+udsman
There is a "ig difference in the &rosecutorial system "et'een the KPK and the #m"udsman. %mong the highlighted differences are as follo'sG
irst) in the KPK) investigators and &rosecutors 'or/ together from the start of the investigation until the &rosecution of the case., 0onsultation is facilitated "y the fact that the investigators and &rosecutors are housed in the same "uilding.2 Fo'ever) in the #m"udsman) the &rosecutors and investigators do not 'or/ @ointly. %t the #ffice of the #m"udsman) investigators and the &rosecutors do not even coordinate 'ith each other &rior to the decision to &rosecute or not.
Second) the KPK &rosecutors and investigators @ointly determine if evidence is sufficient 'hile in the #m"udsman) it is the investigators) and not &rosecutors) determine if evidence is sufficient.
Lastly) the cases in the KPK are su"@ect to a three-stage &anel revie' "y the 0ommission 'hereas in the #m"udsman) the &rosecutors &rosecute 'hat the #m"udsman hands them.
A. Three0stage anel re!ie( +" the KPK
=hen KPK investigators and &rosecutors agree that they have a strong case to &rosecute "efore the TIPIK#) their case undergoes a three-stage &anel revie' conducted "y the KPK commissioners.3
The commissioners’ role is to challenge the &ro&osed case strategies in order to ensure that each case filed is 'inna"le. #nly 'hen a case has successfully gone through these &anel revie's 'ill it "e a&&roved "y the 0ommission for &rosecution at the TIPIK#. This level of &re&aration of the KPK contri"utes to the efficiency of the court as the &rosecution is a"le to &roceed methodically 'ithout see/ing &ost&onements in the trials.
, $sian Institute of 'anagement ($I')" $ SM'P!SI.' !; =BE
G.;/$'E;=$AS !G$; EGGEC=INE $;=I0C!.P=I!; $&E;CM" 'ay * +,," + <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption
esource Center Issue" $ugust +,3 p" ,> Ibid
#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 reuired 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 rate<) it may imitate the KPK’s &rosecutorial &rocess in this regard.
By a de&artment order) the #m"udsman may restructure their 'hole &rosecutorial &rocess so as to ma/e the investigators and the s&ecial &rosecutors 'or/ hand-in-hand from the start of the investigation until the &rosecution of the case. It should not "e a &rocess) as it is no') 'herein the 'or/ of the s&ecial &rosecutors "egins after the 'or/ of the investigators. Their res&ective duties should intert'ine from investigation until &rosecution.
urther) not only must the investigators and the &rosecutors "e intert'ined in the &rosecutorial &rocess) rather) their out&ut should "e first su"@ect to chec/s and "alance "efore 'ith the #m"udsman. % series of screening should first
, Ibid
+ <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 p" ,>
"e conducted in order to secure a strong case and &erha&s even 'in all case or su"stantially all of it 'henever it reaches the Su&reme 0ourt.
B. $e0esta+lishment of relationshi (ith other artner organi,ations and decentrali,ation of some o(ers to the deut" Om+udsmen-retaining a fe( 1e" o(ers to ensure chec1 and +alance in lieu of three0stage anel re!ie(
Should it "e difficult to restructure all over again the 'hole machinery of the &rosecutorial system of the #m"udsman) there is another alternative 'hich 'ould ensure that the cases filed "y the #m"udsman are "ac/ed 'ith strong and sufficient evidence to secure conviction of the corru&t official charged as 'ell as a mechanism of chec/s and "alance.
This system has in fact "een already esta"lished during %tty. Simeon 5arcelo’s occu&ation of the #ffice of the #m"udsman and 'as not follo'ed "y his successor) 5ercedita >utierre(.
%s mentioned &reviously) it 'as during %tty. Simeon 5arcelo’s incum"ency as the #m"udsman 'here the sincerity rating 'as at its &ea/. This is &recisely "ecause of some Are-engineering’ in the internal &rocess in the #m"udsman 'hich is similar to or having similar effects and im&lications 'ith the three-stage &anel revie' of the KPK.
5arcelo Hre-engineeredH the internal &rocedures at the #m"udsman) dra'ing from lessons learned in the &ractices of #m"udsmen +asue( and esierto. 5arcelo decentrali(ed some &o'ers to the de&uty #m"udsmen) retaining a fe' /ey &o'ers to ensure chec/ and "alance. This delegation of &o'ers has resulted in efficient handling of cases) 'ithout necessarily com&romising the integrity of the institution through sufficient chec/s and "alance in &lace.,
%nother institutional strength that 5arcelo "uilt on during his leadershi& 'as the #m"udsmanHs good relations 'ith other &artner organi(ations in the fight against corru&tion 90ommission on %udit) 0ivil Service 0ommission) Presidential %nti->raft 0ommission) and civil society organi(ations such as the Trans&arency and %ccounta"ility ;et'or/<. The Solana 0ovenant 4 a covenant "et'een the #5B) 0#%) and 0S0 4 'as a cele"rated agreement among Hli/e-minded institutionsH to'ards a more coordinated a&&roach to fighting corru&tion. It outlined &rograms of the three agencies that should not du&licate "ut rather com&lement and strengthen each otherHs anticorru&tion efforts.2
=ith >utierre( as ne' #m"udsman) most of these institutional &racticesN&olicies have "een undone. >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. 9ufo) 28"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 2eaness7#" PB/ Issue ;umber +" +D0+" P"
have "een ordered to transfer all &ending cases involving governors and vice-governors 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'2D5B%s:"
> <olongita* Emil P" “$n E6ception =o =he ule7#" .> ? $nti0corruption esource Center Issue" $ugust +,3 p" ,>
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/e-minded 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 2eaness7#" PB/ Issue ;umber +" +D0+" P"
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;orimitsu #nishi) 0orru&tion ighters ouse esistance in Indonesia) ;e' Oor/ Times) :uly 21) 2*.
M+ision and 5issionM. KPK 'e"site.
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5arcelo) Simeon. Tal/ at the CP 0ollege #f La'. 5arch 3) 2*. htt&sGNN'''.youtu"e.comN'atch?vR5=8'*F:s. htt&GNN'''.gmanet'or/.comNne'sNstoryN,1,3Nne'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@-secretary-nani-&ere(-ro""ery-charge Section ,3 and ,1) .%. !$$
