Victory against corruption, of sort: Ousted president Joseph Estrada was found guilty of plunder in 2007. But it didn't take long before he was pardoned, allowed to run again for president and almost regained the highest seat from which he allegedly wasted peoples' money for booze and mansions. JES AZNAR

Philippine constitutional bodies responsible for prosecuting officials charged with corruption appear to be failing in their mission and fairly or not, are helping sow the seeds of public distrust and anger.

Currently battling against impeachment proceedings in the 15^th Congress, the Ombudsman has long been criticized by many observers for its failure to clamp down on cases of corruption.

ABS-CBN in an article in 2009ⁱ decried the Ombudsman’s “dreadful conviction rate” in the first half of the year. According to the article, during the period from January to June 2009, figures obtained from the Sandiganbayan showed that the Office of the Ombudsman secured 22 convictions and one guilty plea against a total of 194 accused.

This translates to a conviction rate of only 11.86 percent for the first half of 2009. Acquittals over the same period were at 94 while dismissals at 44 with 13 cases dismissed after trial, 11 withdrawn by the Office of the Special Prosecutor, and nine sent to the archives for lack of progress.

Of course, people are innocent until and unless judged guilty – but then again the Ombudsman only pursues cases where it strongly believes there is a case to answer and a good chance of successful prosecution.

Edgardo Labella, former official of the Ombudsman and now Cebu City councilor, laments the performance of the government prosecutors last year and notes that it lost most its cases filed at the Sandiganbayan – the court set up to judge on the behavior of public officials. Of the 357 cases that were determined, 188 were either dismissed or resulted in the acquittal of the defendantsⁱⁱ.

The year 2009 was not a good year in the fight against graft and corruption in the Philippines, as statistics showed, nor the previous years. In fact there has never been a good year to speak of since the Sandiganbayan was established: The table below shows the disposal rate from 1979, when the court was established through until 2009ⁱⁱⁱ :

The tables below meanwhile illustrate how these cases have been decided and provide a breakdown of convictions, acquittals, and dismissals the Office of the Ombudsman has had over the last 13 years in the Sandiganbayan. The summary does not include cases that have been transferred to other courts, withdrawn, or archived.  

A look into the figures for the years 1996 to 2009^iv show that the rate of convictions has been consistently below 20 percent. The percentage pales in comparison to the acquittals and dismissals obtained over the same years. Acquittals range from a low of 21.2 percent in 1996 to a high of 36.9 percent in 2009 while case dismissals range from a low of 24.9 percent in 1996 to a high of 48.46 percent in 2001.

According to an article in the Malaya newspaper^v in January 2009 which drew on some of these figures, the government has been losing the fight against corruption over the past 30 years with less than three out of every 10 criminal cases filed against erring public officials resulting in conviction. The article claimed that out of 29,531 criminal cases ruled on by the Sandiganbayan since 1979, only 8,477 or 28.71 percent resulted in a conviction.

Cases won by government prosecutors consist of 4,135 convictions after trial, and 4,342 cases where one or more defendants pleaded guilty. A total of 9,190 cases were archived; 3,213 were acquittals; 4,192 cases were dismissed with or without trial; 2,842 cases were transferred or remanded to other courts; 1,580 cases were withdrawn by the Ombudsman; and 37 indictments returned for review by prosecutors.

Graft cases

These figures obtained however, do not reflect all graft cases involving government officials since some cases do not even reach the Sandiganbayan and are dismissed outright by the Ombudsman.

One such case was the so-called Centennial Expo scam during former president Fidel V. Ramos’ term. The Senate Blue Ribbon Committee of the 11^_th Congress found evidence against the former president who was alleged to have authorized the illegal transfer and disbursement of funds for the PhP 1.6 Billion (USD36 million) Freedom Ring, a 35,000-seat amphitheater in Clark, Pampanga.^vi

The said Committee even recommended the prosecution of Ramos and eight others for technical malversation or misapplication of public funds. However, then Ombudsman Aniano Desierto - a Ramos appointee who refused to inhibit himself from hearing the high-profile case - cleared the former president of any wrongdoing and only filed charges against former vice president Salvador Laurel.

Ramos appointed Laurel to chair the National Centennial Commission, the body which took charge of the preparations of the country’s 100^th independence anniversary in 1998. Ultimately nothing came out of Laurel’s case at the Sandiganbayan since shortly after being arraigned, he succumbed to cancer.

Another case where there was a finding of a commission of a crime by no less than the highest court of the land but no one was held accountable was with the awarding by the Commission of Elections (COMELEC) of the 2004 presidential elections’ automation contract to Mega Pacific Consortium. The Supreme Court smelled something was afoul from the beginning when it declared the award null and void and found grave abuse of discretion on the part of the COMELEC. The Court held that:  

“There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to "Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that joined the bidding but had not met the eligibility requirements.”^vii

Notwithstanding the finding of “violations of law and the glaring grave abuse of discretion committed by COMELEC,” the Office of the Ombudsman headed by Merceditas Gutierrez, a close ally of former President Gloria Macapagal-Arroyo, dismissed the charges against all those involved in the contract, including former COMELEC chairman Benjamin Abalos, Jr.

While the statistics are clearly reflective of the state of the government’s prosecuting capacity against public corruption cases, there have at least been some victories of sort. The guilty verdict handed down by the Sandiganbayan against former president Joseph Estrada on plunder charges is one of them.^viii And yet many argue, justice was not properly served by the fact that then President Arroyo subsequently granted him presidential pardon. The former actor was moreover allowed to run at the 2010 presidential elections. The idiosyncrasies of the Philippine legal system and its efforts to combat corruption could therefore have resulted in the election of a head of state who had already been found guilty of plunder.

While Estrada failed, other senior politicians who stand accused of very serious charges of corruption have had no such problems in being elected: The 5th Division of the Sandiganbayan recently ordered Imelda Marcos former first lady and incumbent congressman of the 2^nd district of Ilocos Norte to return PhP 10 million (USD 227,272) in government funds plus 27 years’ worth of interest that her late husband secretly took from the National Food Authority on July 27, 1993^ix - a wholly separate case from attempts to recover other assets plundered from the state.

In the same month that Mrs. Marcos was pleading personal poverty to the Philippine media, she appeared in a BBC documentary showing off her private multi-million dollar fine art collection which included paintings by Gauguin, Degas and Picasso.

Dismissals of corruption cases at the Sandiganbayan are not uncommon. Former justice secretary Hernando Perez, who was accused of graft and extortion by former Manila congressman Mark Jimenez, scored a victory when the 1st and 2nd Divisions of the Sandiganbayan junked graft and robbery with extortion charges against him, his wife Rosario, brother-in-law Ramon Arceo and businessman Ernest Escaler.^x Both resolutions cited procedural violations committed by the Office of the Ombudsman such as the defendants’ right to a speedy resolution of their case.

The 1^st Division granted defendants’ motion to quash the case as it found merit in defendants’ argument that the Ombudsman illegally “chopped” the Jimenez complaint to come up with four separate cases based on the same facts and circumstances which made the case defective.

With the dismissal of the aforesaid charges, there are two remaining cases for graft and falsification of a public document against Perez which are pending before the anti-graft court.

Another widely-followed case is that of Major General Carlos Garcia, a former comptroller of the Armed Forces of the Philippines who was charged with plunder and perjury with the Sandiganbayan for allegedly amassing PhP 300 million (USD 7 million) in ill-gotten wealth while in active duty.^xi

While the plunder charge against Garcia remains pending with the Sandiganbayan, he has been cleared in the perjury case by anti-graft court’s 1^st, 2^nd, and 3^rd Divisions. Only the 4^th Division convicted Garcia for perjury and sentenced him to two years imprisonment. In his 2009 acquittal, the decision of the 1st Division of the Sandiganbayan was based on the failure of the prosecution to prove beyond reasonable doubt that Garcia stated a deliberate falsehood when he failed to declare ownership of three vehicles in his Statement of Assets, Liabilities, and Net Worth. The Sandiganbayan also held that two of the vehicles “were sufficiently linked” to Garcia’s wife, Clarita.

Aside from the perjury charge against Garcia, the Office of the Ombudsman also had several prominent losses in 2009.^xii The graft charges against Cebu lamppost contractor Isabelo Braza was dismissed last March 18, 2009 as well as the case against the public works officials involved in the said procurement.

In its ruling, the Sandiganbayan adopted the prosecution’s own admission made in open court that it did not have enough evidence to support its allegations against the defendants. The Sandiganbayan also dismissed the graft case against Bataan Governor Enrique Garcia and his 10 co-accused over their alleged unlawful transfer of provincial assets worth millions of pesos to private corporations for lack of evidence.

Defects

It would appear that the foregoing dismissals in the Sandiganbayan are a result of the failure of the prosecution to gather sufficient evidence or to come up with a proper charge against the accused. Although this supposition cannot be said to represent the general population of cases pending with the court that have been dismissed, Justice Francisco Villaruz of the Sandiganbayan, in an interview with the Philippine Public Transparency Reporting Project, acknowledged that the low prosecution rate of corruption cases may be partly due to defects in the information filed or offense charged.^xiii

He claimed that this may be because the Ombudsman group investigating the alleged offense is usually different from the group that prosecutes the case. He also said that the Office of the Ombudsman is usually inclined to file numerous cases involving just one offense. He suggested the key problem was the quality of information that is filed.

Villaruz likewise disclosed that the high rate of dismissals at the Sandiganbayan could be due to the rule that allows the filing of an information with the Sandiganbayan while a motion for reconsideration or reinvestigation remains pending with the Office of the Ombudsman. He said that if the Ombudsman grants the motion, the Sandiganbayan does not have any choice but to dismiss the case.

In a separate interview with PPTRP, former Special Prosecutor Dennis Villa-Ignacio^xiv attributed the low conviction rate of government in graft cases to the incumbent Ombudsman. He said that during Ombudsman Simeon Marcelo’s time, the conviction rate of government was already improving since a new system has been set in place. For one, it hired new investigators and prosecutors to beef up its undersized staff and increased the number of prosecutors to about 90 from its original 28 prosecutors.

The Ombudsman under Marcelo also used the same strategy with field investigators. By that time, monthly meetings were already held to closely monitor status of the cases – a system which the present Ombudsman totally scrapped. To date, prosecutors and field investigators whom Marcelo hired because of their credentials, have already left.

Concerns over the low prosecution rate have pervaded every sector of government and society. Representatives Joel Villanueva of party list Citizens Battle against Corruption (CIBAC) and Paul Daza of Northern Samar have expressed concern over the Sandiganbayan figures and called for greater efforts in the private sector to fight corruption in government.^xv

Daza has said government should look into the capabilities of its prosecuting agencies in terms of case build-up and prosecution of cases against erring public servants. Villanueva meanwhile has noted that the Sandiganbayan, like any other court, has only a passive role in the trial of cases against public officials. He added that the anti-graft court is not to be totally blamed since the fight against corruption requires a concerted effort from everyone.

Considering the prevailing public perception and the government’s own admission that one of the country’s biggest problems is graft and corruption, the low conviction rate against government officials accused of graft indicates that the problem is not being solved. Based on the statistics cited above, an accused in graft cases usually has an 80 percent chance of being acquitted or having the charges dismissed against him. This gives Abalos, Social Security System president Romulo Neri (who was linked to the infamous NBN-ZTE scandal), Perez, former agriculture undersecretary Joj-joc Bolante of the fertilizer fund scam, General Garcia, and a host of other indicted government officials only a 20 percent probability that they will be convicted despite strong evidence to hold them accountable for their acts while in office.

While there is a need to revisit the rules of procedure of the Office of the Ombudsman in the investigation, filing of charges, and prosecution of graft cases, what also appears to hamper the prosecution of these cases according to some observers is the alleged partiality of the Ombudsman in favor of high-ranking government officials.

The Ombudsman herself disputes such allegations and denies any and all wrong doing. Despite that, many observers hope that when her term expires in 2012, a new Ombudsman will be appointed and will oversee an office where the government’s conviction rate in graft and corruption cases will start to go up. Philippine Public Transparency Reporting Project

(The author works as the university legal counsel at the University of the Philippines Office of Legal Assistance, handling procurement, intellectual property, corporate and taxation matters of the university.)

i (2009, September 1). Ombudsman has dreadful conviction rate in 1st half of ‘09. abs-cbnNews.com. Retrieved from http://www.abs-cbnnews.com/nation/08/31/09/ombudsman-has-dreadful-conviction-rate-1st-half-09

ii Mayol, Ador Vincent. (2010, March 1). Calls made after Sandigan report showed Ombudsman lost more cases in 2009. Cebu Daily News. Retrieved from http://globalnation.inquirer.net/cebudailynews/news/view/20100301-255998/Call-made-after-Sandigan-report-showed-Ombudsman--lost-more-cases-in-2009

iii Annual Report of the Sandiganbayan for 2009

iv Annual Reports of the Sandiganbayan for the years 1996-2009. The Annual Reports for 1999 and 1998 were not available during the several times the author went to the library of the Sandiganbayan.

v Tabingo, Peter J.G. (2009, January 19). Ombudsman conviction rate:3 out of 10 cases. Malaya. Retrieved from http://www.malaya.com.ph/jan19/metro1.htm

vi http://www.nenepimentel.org/news/20000228ExpoScam.shtml

vii Information Technology Foundation of the Philippines, et al vs. COMELEC, et al. G.R. No. 159139. (2004, January 13).

viii People of the Philippines vs. Joseph Ejercito Estrada. Criminal case No. 26558. (2007, September 12).

ix Ramos-Araneta, Macon. (2010, September 14). Mrs. Marcos loses case, ordered to return P10 million plus interest. Manila Standard Today. Retrieved from http://www.manilastandardtoday.com/insideNews.htm?f=2010/september/14/news2.isx&d=2010/september/14

x (2008, November 24.) Robbery, graft charges vs. Nani Perez junked. abs-cbnNews.com. Retrieved from http://www.abs-cbnnews.com/nation/11/24/08/robbery-graft-charges-vs-nani-perez-junked

xi Tabingo, Peter, (2009, June 19). Garcia walks on perjury rap, but plunder charge remains. Malaya. Retrieved from http://www.malaya.com.ph/jun19/news7.htm

xii (2009, September 1). Ombudsman has dreadful conviction rate in 1st half of ‘09. abs-cbnNews.com. Retrieved from http://www.abs-cbnnews.com/nation/08/31/09/ombudsman-has-dreadful-conviction-rate-1st-half-09

xiii Philippine Public Transparency Reporting Project Interview with Sandiganbayan Justice Francisco Villaruz, Sandiganbayan, September 20, 2010.

xiv Philippine Public Transparency Reporting Project Interview with former Special Prosecutor Dennis Villa-Ignacio on September 27, 2010, Ateneo Law School, Rockwell.

xv Tabingo, Peter J.G. (2009, January 19). Ombudsman conviction rate: 3 out of 10 cases. Malaya. Retrieved from http://www.malaya.com.ph/jan19/metro1.htm.