Biraogo vs. Truth Commission

By Michael Henry Yusingco, LL.M

It is painfully obvious now that the plunder of the public coffers will continue to happen unless the major conspirators in the pork barrel cartel get serious jail time. Lawmakers, bureaucrats, contractors, and everyone in between should suffer. The money stolen should likewise be recovered from all the conspirators. No exceptions! For this reason, we must remind each other that the plunderers are still in power and we must rally behind the only institution that can destroy them all.

That institution is the Office of the Ombudsman. As per the 1987 Constitution, “The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government”. Needless to say, not all who occupy this post take the mantle of “protector of the people” to heart. Recent history shows us that some actually preferred to be protectors of politicians. The new Ombudsman seems to be on the right track. Though admittedly, it is still early days in his 7-year term.

But one help the Ombudsman will appreciate is on illuminating the public about the intricacies of building up a prosecution case. People are understandably getting impatient, but gathering evidence to prove guilt beyond reasonable doubt is not easy. We have just witnessed a plunder case being dismissed for failing to meet this requirement. We do not want the new Ombudsman to make the same failure. It would be a great boost if media produce PSAs explaining the procedures and processes involved in prosecuting corruption cases.

Remarkably, some people are still not convinced that the Ombudsman is the only state agency which can meet the public’s demand of imprisoning all the conspirators of the pork barrel cartel and recovering ill-gotten wealth. Certain personalities still want to project the Independent Commission on Infrastructure (ICI) as an office that can exact accountability. This view is not only wrong, but it is also very unhelpful because it can inflate public expectations. People, including some lawmakers, forget that the ICI is just making allegations. It has no prosecutorial power.

Even more perplexing is the proposal to pass a law expanding the ICI into the Independent Commission Against Infrastructure Corruption (ICAIC). This office is intended to have broader authority than the ICI. In particular, the ICAIC would be empowered to file charges and issue contempt and hold departure directives. Again, this kind of thinking may be a result of being impatient with the Ombudsman. But to better understand the effort of creating new anti-corruption bodies, it would be good to recall the Supreme Court’s decision in Louis “Barok” C. Biraogo vs. The Philippine Truth Commission of 2010.

According to the Supreme Court, “The President’s power to conduct investigations to ensure that laws are faithfully executed is well recognized.  It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. As the Chief Executive, the president represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department.  He has the authority to directly assume the functions of the executive department.” Executive Order No. 94 which created the ICI is clearly sanctioned by this ruling. Note that the ICI is really just a fact-finding and recommendatory body.

However, the proposed ICAIC is a different story. As per the decision, nothing can contravene the power of the Ombudsman to investigate criminal cases under its charter. Indeed, the powers of the Ombudsman directly emanate from the 1987 Constitution and, therefore, cannot be usurped by a new office created by law. Clearly, any frustration about the ICI cannot be addressed by legislating a version of it on steroids. Presently, it would be better to just galvanize civil society support behind the new Ombudsman. It is getting pretty clear now that he will be going against powerful political clans. He will definitely need the protection of the people to do his job.

All of us have been impacted by pork barrel corruption. The very people we elect have been robbing us blind for many years. The rage in our hearts is at its bursting point. But in our state of utter fury, we must still heed these words of the Supreme Court, “it is important to remember this ethical principle: “The end does not justify the means.” No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed.”