No conflict between Public and Private Prosecutors in Ampatuan Massacre Case: It’s a conflict between Attys Nena Santos ,Prima Quinsayas and everyone else Ref. Prof. H. Harry L. Roque, Jr. 09175398096


“There’s no conflict between the public and private prosecutors in the Ampatuan massacre case. The conflict is between Attys Nena Santos and Prima Quinsayas and everyone else”, this was the reaction of Prof. H. Harry L. Roque, Jr., private prosecutor for 15 media victims in the massacre.

Roque was reacting to the statement of Atty Nena Santos, counsel for Governor Toto Mangundadatu, that a conflict exists between the public and private prosecutors.

Atty Santos has been objecting to the action of the Public Prosecutors in resting its evidence versus 28 of the accused, including Andal Ampatuan Jr aka “Unsay “. Roque added: “We cannot join her in this objection because it was upon our instance that the Supreme Court allowed the system of “First in-First Out” that allows the prosecution to rest its case against some of the 194 accused without waiting for the presentation of the evidence against all of the accused. It was pursuant to this that the prosecutors partially rested its evidence against 28 of the accused.

Roque explained that this is without prejudice to the prosecution resting their evidence against Andal Sr and Gov. Zaldy Ampatuan when all pending incidents in the appellate courts are finally decided upon.

Roque explained that they moved the Regional Trial Court to adopt the “First in First out policy” so that there can be partial promulgation of judgment against some of the accused , hopefully including the Ampatuan patriarch and his two sons, before the end of the administration of President Noynoy Aquino. Roque declared: “for all the President’s fault, we know that he does not owe any debt of gratitude to the Ampatuans. We’re not sure the next President can claim this much”.

Roque, Chair of the Center for International Law (Centerlaw) filed a motion before the Regional Trial Court to adopt the :”First in First Out Policy’. This was denied by the Trial Court but later provided by the Supreme Court in its guidelines for the Trial of Ampatuan Massacre Case.

THE KILLING OF JOURNALIST NILO BACULIO: BLOOD IN THE HANDS OF OUR COURTS


 

REF. Prof. Harry Roque 09175398096

(Prof Roque represented the deceased Nilo Baculio n procuring the first ever Writ of Amparo in favor of a journalist. The CA, however, did not issue inhis favor a writ of protection)

 

Nilo Baculio, a crusading journalist from Mindoro, was reportedly killed today at about 12 noon by two motorcycle men riding in tandem. He is the latest in the increasing number of journalists who are being killed with impunity because of the failure of he P Noy administration to investigate and punish the killers of journalists in this country.

But Nilo was not just another journalist killed. Prior to his killing, he was the first journalist for whom the Supreme Court issued a Writ of Amparo. Regrettably, when remanded to the Court of Appeals for determination of propriety of issuance of a protection order, the Court of Appeals denied his plea ruling that Nilo failed to prove the threat on his life .

His killing today is what happens when the Court errs in their appreciation of evidence.

Nilo in his application for protection order stated under oath that locally elected officials engaged in the illegal drug trade are out to kill him. The CA said this was not supported by evidence beyond the say so of Nilo. Granted that the CA’s decision was prior to the ruling of the Supreme Court in the Manado brothers case where the Court said that Amparo is proper in order to release a petitioner form the threat of fear form his life, the CA, in Baculios case, wanted evidence which oftentimes cannot be provided given the nature of threats against anyone: their verification is almost difficult if not possible.

In any case, the killing of Nilo Baculio should prompt our courts to be more circumspect in dismissing applications for protection orders. While a wrongfully issued writ will not hurt anyone, a person denied of the same could result in the death of the petitioner.

There is blood in the hands of the CA Justices who refused Nilo Baculio protection.

Lessons from Boston


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Lessons from Boston.

Copadoccia, Turkey—I was in Boston with my family just two weeks ago. I thought it was important for my two children to visit the city and appreciate its anti-colonial heritage. The US was not always its own state. It too had to struggle for its independence, much in the same way that we did against the Spaniards and ironically, against them.

Like many tourists, we did the freedom trail, so-called because it allows visitors to visit historical landmarks of the American Revolution. This includes the house of Paul Revere who warned the

American militias of the upcoming invasion of the British, as well as Faneuil Hall, which was literally a meeting place where speakers like Samuel Adams and James Otis advocated freedom from Great Britain. It also includes a recreated colonial vessel where the tea party is reenacted to remind the American youth of today of the trigger that established an independent American state.

While it was unfortunate that after triggering a liberal tradition that is today acknowledged as the non-derogable right to self-determination— a people’s right to choose their political status which includes the right to be independent —the American people would later be colonials themselves albeit over only colony, the Philippines. But this sad fact notwithstanding, Boston’s contribution

to modern-day democracy cannot be denied. It also includes a written constitution, which guarantees rights of every human being as being inalienable.

This must have been why the deranged madmen behind the bombings at the Boston marathon targeted the city. Their goal was not only to inflict panic in the mind of the general public but also to send the grim message that America’s cradle of democracy is under attack.

It is gratifying though that on my last day in the United States, the general impression was that Boston was not a city to be cowed. After the dead have been mourned and after the sick have been attended to, the city seems to be up and about eagerly picking up the pieces. The message that the brave survivors of this terroristic attack were sending the world was that while they were terrified, they will rise again. And that appears to be what they have done.

Terrorism, of course, be it in Boston, in Syria, or in Palestine should be condemned in the strongest manner possible. Even in times of war, civilians are accorded protection precisely because the civilian populations ought to be spared from the adverse consequences of all kinds of warfare. This is why any act that tends to spread fear or panic in the mind of the public is condemned, much in the same way that targeting civilians is made criminal in times of armed conflict.

Human beings possess rights that are inalienable. Parts of these are the non-derogable right to life and the right to personal security. Both war crimes and terroristic acts infringe on and violate these rights.

Be that as it may, there are important lessons to be learned from the Boston bombings. Primary among these is the importance of a police force that can actually investigate acts of terrorism and apprehend their suspected perpetrators. It did not take long for the Boston police to process forensics evidence, identity the suspects and actually apprehend them. In the Philippines, our police agents’, until very recently, are told to identify first the suspects before processing the evidence. And while in Boston, it was physical evidence that proved effective in identifying the perpetrators of the crime; in our country, the police, either because of lack of capacity or downright laziness, will rely almost wholly on testimonial evidence. The problem with this approach is that testimonial evidence is either cheap, or may be the result of police short-cuts, such as torture.

How we envy the people of Boston. In less than a week, the perpetrators of the bombings were identified and apprehended, although one of them was killed in the process. In the Philippines, a student of mine, who is now a lawyer, is still awaiting for someone to be charged for the brutal murder of her father, a UP graduate editor and publisher of a local paper in Pagadian City. Her late father and her mother, also murdered some nine years after her father, will both be unable to attend her oath-taking as a lawyer. Likewise, the family of Navy Ensign Philip Pestano is still awaiting action form the Department of Justice in connection with the murder of their son.

Likewise, the Barrameda and the Ortega families can only dream of justice for the death of their loved ones. And let’s not even talk about the victims of the Maguindanao massacre, many of whom have already sunk into despair.

So the lesson is clear: terrorism and lawlessness can strike anywhere. But in civilized societies, the pillars of the criminal justice system: the police, the prosecutors, the courts, and the community-

will ensure that lawless elements will be investigated, prosecuted and punished for their acts.

I wonder when we will finally have a civilized Philippine society.

After the ratification, what’s next?


August 30 of this year marks the first anniversary of the Philippines ratification of the Rome Statute of the International Criminal Court. The ICC is the first permanent international tribunal created by treaty to prosecute individuals for war crimes, crimes against humanity, genocide and the crime of aggression. Its objective is simple: to ensure that any individual who commits the most serious crimes against the international community is held accountable for his acts.

Our membership in the ICC became even more important when shortly after ratification, our very own Miriam Defensor-Santiago was elected to be a Judge in the Appellate Chamber of the Court. This is a rare opportunity for a Filipino to be elected to an international Tribunal. Prior to her, only Justice Cesar Bengzon, Justice Florentino Feliciano and Ambassador Lilia Bautista have had this honor.

A year later, what comes after our ratification?

Plenty. The most pressing of which is to make sure that the Philippines comply with its obligations under the Rome statute. In this regard, there are two important tasks ahead: the duty to cooperate and the duty to ensure the principle of complementarity.

The duty to cooperate involves instances when the prosecutor- or the Court itself- requests the assistance of the Philippine government in conducting an investigation or in the trial proper of a case before the Court. While idealists like me always emphasize the normative value of supporting a tribunal that seeks to put an end to impunity, we often gloss over the details of how these normative systems will actually function. For instance, should the prosecutor decide and upon authority of the court’s pre-trial chamber to conduct an investigation here, say against the AFP, the MILF or the NPA, by what legal right will he do so? Perhaps the rulings of our Supreme Court in Angara vs Tanada and in the recent case of Magallona vs Executive Secretary could shed some light. In both these cases, the Court ruled that our duty to comply with treaty obligations has the force and effect of law. Therefore, the legal basis for the prosecutor to conduct an investigation or of the Court sitting in the Philippines is by reason of the treaty itself.

But should a law or an amendment to our Constitution be required? Since the power and manner by which our own Prosecutors conduct their preliminary investigation is provided by law, shouldn’t this law be required? Evelyn Serrano of the Coalition for the International Criminal Court pointed out that different state parties have passed so-called cooperation statutes. While conceding that this is in fact the ideal solution, my apprehension though is what if the Prosecutor wants to investigate now that there is still no such law? Does that mean the absence of law will prevent him from conducting his official task? And what about the matter of the Court sitting in Philippines territory? The Constitution is clear: judicial power shall vest in the Supreme Court and on all other inferior courts that may be provided by law. Is a constitutional amendment required to enable the ICC to sit here? Probably not . But certainly, our Supreme Court may have to issue some rule that would enable the ICC to do so.

There too is the matter of having to ratify the separate Convention, the Agreement on the Privileges and Immunities of the International Criminal Court. This will accord the Judges of the court, the Prosecutor and all of its officials such immunities that are necessary to freely discharge their functions without fear of retaliation from a state that wish to accord impunity to any of its nationals. The agreement provides that all officials and employees of the ICC should be accorded functional immunities of the type enjoyed by the United Nations and its specialized agencies.

The duty to cooperate will also compel the Philippines to be world class in such matters as according protection to victims and witnesses. Already, the duty to cooperate will compel us to amend our own Witness Protection Program to provide protection not just to witnesses, but to victims as well. It will also perhaps compel us to recognize that victims of crimes have rights under human rights law, notably, the right to reparations, and are not just mere objects that enable the state to prosecute a crime. Furthermore, I am personally hopeful that our ratification of the Rome statute that recognizes that the duty to provide reparations to victims is a duty of the international community and not just the criminal offenders -will also lead to a change in our local perspective that this duty is one owed only by the accused to be paid at the end of a very long trial.

Anent the duty to enact domestic laws that would implement the principle of complementarity, RA 9851 largely provides for the legal basis for our courts to exercise primary jurisdiction for crimes cognizable by the ICC. But as Dean Merlin Magallona has said, there is still that substantial challenge of amending further our domestic law to ensure that identical crimes are punished under our domestic law and by the ICC.

A year later, it is clear that we have a distance to go before full compliance with our state obligations under the Rome Statute. This notwithstanding, we have certainly beaten the rest of Asia since at least, we have already ratified the Statute. I am confident that the rest will follow soon.

Eighty percent for the Presiden


That State of the Nation Address was SO long. Whoever wrote it must be told that messages should be understood. You write a speech for more than thirty minutes and you’re bound to send your audience to sleep. In fact, beyond difficulties in staying awake, one felt literally drained by the time the President concluded his remark. And yes, I’m sure the President himself was exhausted after reading that opus.

Content-wise, President Aquino truly deserves a high mark of at least 80%. Even his staunchest critics must acknowledge that this is a President who has regained the trust of investors in this country. Gross domestic product has grown by a better-than-expected 6.4 percent for the first quarter. The peso is one of the strongest currencies in the region and the stock market is among the best performing in the world. The conditional cash transfer program. albeit controversial, has almost certainly made the difference between dying of poverty and subsistence for at least 4 million of its beneficiaries. Our schoolchildren will soon have a textbook each, and the daunted classroom and school chair shortage will be history by next year. What a difference good governance can do! While corruption still persists, one cannot deny that the problem is being addressed when highest official of the land leads by example.

So why, despite these, am I giving the President a grade of only 80 percent? Why not a 90 or even 100?

To begin with, I have naturally high expectations of President Aquino. My conviction has always been that anyone can do better than former President Gloria Macapagal Arroyo. The truth is that we hit absolute rock bottom under Arroyo that the only way to go is up. That’s the law of physics.

I think a grade of 80 percent applies because there are areas of governance that the President completely ignored in his address and in his performance. Foremost of these is in the field of human rights and our failed criminal justice system.

What Mr. Aquino and his advisers probably do not know is that a working justice system and the protection and promotion of human rights are also accepted indicators of good governance and economic development. Contrary to the claims of many tiger economies, there is no antipathy between economic development and the promotion of human rights. In fact, the discharge of state responsibilities anent these rights is viewed as investment in human capital. This explains why many of the very developed economies of Northern America, Europe and Latin America are also bastions of democratic principles and human rights.

Furthermore, Aquino owed it the nation to address these issues in his Sona. Only last June, the Philippines was the subject of the Universal Peer Review in the United Nations Human Rights Council. There, one country after another berated the Philippines for its failure to punish the perpetrators of extralegal killings, enforced disappearances and torture. You would think that because of the tenacity of these criticisms, the President would choose the Sona to give assurance that his administration acknowledges the problem and that he will address it. But no, not a word was said about human rights. This has prompted at least two senior diplomats to remark that apparently, the PNoy administration is oblivious to their concerns expressed in the UPR.

What’s even sadder is that as a victim of human rights violations himself, the President has every reason to give priority to the promotion and protection of fundamental rights. He still rages in anger recalling how his mother and his sisters were subjected to degrading and humiliating treatment whenever they visited Ninoy in his detention. And of course, as a very young man, he himself became a victim of extralegal killing when his father was martyred in 1983.

What to do?

Well, since I’ve had first hand experience with the President when we successfully lobbied that the Philippines become a member of the International Criminal Court, I have not given up on him. My experience is that because of the many issues he has to deal with, one has to be patient and yet clear on why emphasis should be accorded this field. Already, Max De Mesa of the Philippine Alliance of Human Rights Advocates and Katarungan, an umbrella organization of HR advocates focused on putting an end to extralegal killings an enforced disappearances, have agreed to plot a master plan on how Aquino’s experience as a victim could be the trigger to his presidency’s potential legacy as a champion of both economic development and human rights. This much we should do since I have repeatedly said that we may be the next victims of impunity.

 

When talking peace and prosecuting war crimes are not mutually exclusive


Three’s something odd with the “all out justice” recently declared by P-Noy. It’s literally directed at the Abu Sayaff when no less than the MILF website claimed credit for the 19 casualties last week. Why go all out against a bandit group for deaths that they were not responsible for? Reports of collusion between elements of the two groups aside, the answer of course is the fact that by opting to talk peace, we have politicized the effort to punish the MILF criminally when they violate the laws and customs of war. The conflict between the MILF and the GPH in Mindanao is what used to be called in Cold War days as a “ low-intensity conflict” but is classified by the International Committee of the Red Cross, the keepers of international humanitarian law, as a non-international armed conflict. As such, it is governed by Additional Protocol 2 to the Geneva Conventions and Common Article III of the Geneva Conventions. Under these rules, wanton killing and the passing of sentences without prior judicial determination complying with internationally recognized standards are prohibited and punished as war crimes. These acts fall within the jurisdiction of the International Criminal Court (ICC), which we only very recently joined.

Why politicized? Well, P-Noy obviously cannot talk peace when he’s prosecuting the leadership of the MILF. Under IHL and the ICC, leaders of armed groups are oftentimes the targets of prosecution for war crimes even if committed by their subordinates, and the purpose for that is to send a clear message to military leaders that pursuant to the Yamashita principle, they have the obligation to disseminate amongst their troops what the law is and to ensure that their subordinates comply with it all the time. When they fail to prevent these crimes from happening and where they further fail to take steps to investigate, prosecute and punish their subordinates, they too acquire individual criminal liability under the principle of the “command responsibility”. Effectively though, the on-going peace talks have made prosecuting the leadership of the MILF impossible unless these talks are shoved aside completely. This is, as P Noy has stated, not to our best interest. But this is also why countries with similar problems have referred their domestic enemies to the ICC. In fact, the leaders of non-state groups such as Thomas Lubanga, Germaine Katanga, Bosco Ntanganda, John Pierre Gombo, Joseph Kony and Ali Muhammad Ali Abd-Al-Rahman are all commanders of similar groups such as the MILF: non-state armed groups. They are all standing trial for war crimes at the ICC.

This is the third option. Now that we have become the 117th member of the ICC, we could, as Congo, Central African Republic and Kenya, all state parties to the ICC have done: refer the prosecution of the MILF to the ICC, to insulate the criminal proceedings from the pitfalls of domestic politics.

Although based only on media reports, it appears that at least three soldiers were captured alive by the MILF but were killed anyway. Although there is no “combatant” in non-international armed conflicts and hence, no “prisoner of war” status, there is still the obligation of fighters in these conflicts to treat their detainees humanely. There too is the prohibition on wanton killing. As a limitation on means and methods of warfare, the law commands all fighters not to order that “no quarters be given”, or not to leave survivors behind. The logic behind this prohibition is that military necessity is defined only as the “complete subjugation of the enemy and not to kill all fighters in the battlefield”. Specifically, the law applicable to the three captured soldiers is that since they have ceased to be active fighters, they shouldn’t have been killed as otherwise; their killing would be a war crime. . The basis for prosecution under the ICC would be Article 8 of its Statute (war crimes), Section (c) “namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;” Also applicable would be Section (e) of the same Article: “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:… (ix) Killing or wounding treacherously a combatant adversary”.

Precisely, the beauty of our membership to the ICC is that the prosecutions of the MILF leadership for these kinds of crimes no longer have to be as political as when they are prosecuted before our local courts. Naturally, since our local courts are agents of the same state that is talking peace with the MILF, the later will insist that the same should not prosecute their leadership as a precondition for continued peace negotiations. Well, they cannot ask that of the ICC since such political consideration simply will not come to play in a court that was created precisely to put an end to these kinds of atrocities.

Here’s hoping thus that P-Noy will consider this option seriously. It certainly is better that making the MILF look less guilty for the slaughter of 19 of our bravest men in uniform.

THE TRUTH IS UNCONSTITUTIONAL


I expected the recent decision of the Supreme Court declaring EO 1 creating the Truth Commission unconstitutional. I did so because I have known since the appointment of its current Chief Justice, that the court is one of the many institutions that have been weakened by former president Gloria Arroyo to ensure her impunity. In a previous published commentary, I said that a constitutional crisis would not be forthcoming if P Noy honors his campaign promise never to recognize what he himself described as a “midnight Chief Justice”. This, I said, has become a political question because it is on the basis of this promise , among others, that an overwhelming majority of the electorate elected him into office. Instead, I warned that a constitutional crisis in fact be would be forthcoming if it is the Court itself that abdicates from its primary mandate to uphold the supremacy of the Constitution.

By ruling that a toothless tiger such as the Truth Commisison is unconstitutional, the Court, in the exercise of its educational function, has effectively accorded Gloria Macapagal- Arroyo with impunity. First, it was the Ombudsman that told us that the former president could not be investigated for lying, cheating and stealing. Now, it is the Supreme Court telling us the same thing. Where should ordinary citizens now go for redress of grievances against public officials suspected to have breached the constitutional precept that public office is a public trust? Where should we go now to enforce this trust ? Until this decision, we thought we can go to the court of last resort.

Truth to tell is that I myself am not a big fan of this commission. I have written that it would be a toothless tiger unless it utilizes existing powers of the Department of Justice to conduct preliminary investigations, the Office of the Solicitor –General to file civil cases for forfeiture of ill-gotten wealth, and the Anti-Money Laundering Council for forfeiture of dirty money. All these suggestions fell on deaf ears. But precisely because it is a toothless tiger, how on earth can it be unconstitutional?

Sure the commission will duplicate the functions of the Ombudsman. But since when did the enforcement of the country’s anti-graft laws become the sole monopoly of the Ombudsman? The last time I read our constitution, it is still provided that the power to enforce all laws is an executive function. Moreover, the duplication, unfortunately, is not just happening, even if we want it to happen. This is because the current Ombudsman has opted not to investigate, more so charge her appointing power with anything. Full stop.

And because the investigation of the possible commission of a crime is an inherently executive function, I find nothing unconstitutional in the fact the commission was both created and funded by the president. This is not the first fact-finding commission created. We have had the Agrava Commission, the Feliciano Commission, the Davide Commission and the Zenerosa Commission, to name a few. Al of them were created by sitting presidents and funded from lawful appropriations made by Congress to the Office of the President. None of these commissions were declared unconstitutional. It alarms me hence that one with only the power to unravel the truth is ironically, the commission declared to be unconstitutional.

Yes, there is also the objection that it violates the equal protection clause. But there can only be such a violation if among others, a rule is applied in a dissimilar manner to persons similarly situated. Where is this dissimilar treatment? Marcos was accused of widespread plunder and was dealt with by the Presidential Commission on Good Government. Gloria Macapagal-Arroyo, suspected of similar plunder, is now sought to be dealt with by the Truth Commission, minus the compulsory and sequestration power of the PCGG. Where is the dissimilar treatment? The fact that no commission was established against former presidents Ramos and Estrada is because neither could rival the avarice of either Marcos or GMA. Where then is the violation of equal protection?

In the final analysis, I myself disapproved of this Truth Commission because it could not bring Arroyo and her cohorts to justice. Even so, I was hoping that while Ombudsman Gutierrez is there to accord GMA impunity, the nation could at least ferret out the truth on such scandals such as Northrail, NBN-ZTE, Jose Pidal, the Macapagal Highway, Swine scam, and Hello Garci scandals. While the truth would not mean punishment for GMA and her cohorts, other truth commissions established in South Africa, Argentina and Australia have at least proven to contribute to the reparations of victims since to know the truth would enable them to begin the process of recovery. That was all that I expected of this Commission. And yet, with the vote of 10 men and a woman, even that is gone.

Will someone please tell me since when the quest for the truth has become unconstitutional?

Motion For Reconsideration in IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO (A.M. NO. 10-7-17- SC)


attached please find a copy of the motion for reconsideration which we filed this afternoon in the Supreme Court involving the plagiarism case of Justice Mariano Del Castillo. The blotted portions refer to confidential mattes taken up during the ethics committee hearing.

http://www.mediafire.com/?x4952qljaf4mz65

Revisiting the Ombudsman Law


That former police officer Rolando Mendoza complained about the inefficiency of Ombudsman Merceditas Gutierrez highlights the need for Congress to re-examine the Ombudsman as an institution created by the Constitution and by law. While it is the 1987 Constitution that first created the Office of the Ombudsman, it is a mere law that gave the said office a monopoly in the filing of criminal information against government officials with a salary rank of Grade 27 and up. It is also a law that gave the Ombudsman the power to hear and decide administrative charges against all government employees. This appears to be redundant given that all line agencies, in conjunction with the Civil Service Commission, already have existing mechanisms to determine the fitness of individuals to occupy a public office.
The complaint of the bemedaled slain hostage-taker was that the Ombudsman was not acting seasonably to dismiss charges against him. He apparently considered these charges to be bereft of merit. The charge was supposedly filed by a chef from Manila Hotel who claimed to have been a victim of hulidap by Mendoza et. al. It was this charge, I understand, that led to his discharge from his office which then gave rise to his demand to be “reinstated into the service”.

In a press forum yesterday at the Rotary Center in Quezon City, journalists mentioned that the same charge against Mendoza had already been dismissed by the Internal Affairs Service of the Philippine National Police. Apparently, despite this dismissal, the matter is still being heard by the Office of the Ombudsman. I can only surmise that this is so because criminal charges against Mendoza must have been filed arising from the “hulidap” incident. In turn, the filing of every criminal charge in the Ombudsman comes with it an administrative charge which will determine whether the respondent should stay or be fired from his public office.

Not being a fan of the Ombudsman, I can only hope that Mendoza’s valid complaints against her will add much needed fire to the pending impeachment complaints against her now pending in Congress. But over and above the fitness of the Ombudsman to continue occupying such a sensitive post, the Mendoza incident ought at least to prompt our lawmakers to revisit the Ombudsman law. In particular, I submit three basic submissions on why the said law should be amended: to prevent similar paralysis in the Office where it is occupied by a virulently political person; two, to put the office at par with the National Prosecution Service; and three, to rationalize its administrative jurisdiction.

The Ombudsman was envisioned to be a super body that would have the power to promote honesty, efficiency, and transparency in government. Its powers are many and may in fact be rivaled only by the President himself. It has coercive powers to compel attendance and production of evidence, order the doing or to cease the doing any act, to investigate any case of ill gotten wealth, and even the power of contempt. Moreover, it has the power to file criminal information before the Sandiganbayan against public officers with a salary grade of 27 and up. It is this particular power that is hindered where the Ombudsman is seen to be more political than a legal institution. As seen in the case of Ombudsman Merceditas Gutierrez who has admitted her personal closeness to the past dispensation, political loyalty could lead to wanton impunity owing to the Ombudsman’s avowed refusal to investigate her political benefactors. Perhaps, amendatory legislation is now necessary to address this inherent weakness. How? By vesting in the Executive, through the Department of Justice, the concurrent power to file these criminal Information with the Sandiganbayan. Had this been in place, there would have been no further need for P-Noy’s Truth Commission.

Secondly, in the conduct of preliminary investigation, the law should be amended to compel the Ombudsman to resolve all of its investigations within a non-extendible period of 90 days. In the Pestano case for murder, the Ombudsman took ten years to investigate the matter and at the end of its alleged investigation- only to dismiss the case. Why should the Ombudsman be allowed 10 years to determine the existence of probable cause where our public prosecutors will lose their entitlement to their salaries if they do not conclude with their investigations within 90 days? This was the crux of Mendoza’s gripes against the Ombudsman. The truth of the matter is that the Ombudsman is now notorious for sitting on cases for years with the result that once decent people, like Mendoza, have lost all hopes in our legal system precisely because of inordinate delays.

The final area for remedial legislation is the need to rationalize the exercise of the Ombudsman’s administrative jurisdiction. If the reports from the media are correct, Mendoza’s administrative case had already been dismissed by the Internal Affairs Service of the Philippine National Police. In other words, had it not been for the administrative investigation also being conducted by the Ombudsman, there would not have been a hindrance to his reinstatement into the service even without him resorting to the taking of hostages. It seems to me that legislation should be introduced either to vest in the Ombudsman the sole jurisdiction to determine the fitness of individuals to hold public office, or to grant this existing power to already existing agencies. In the case of the PNP, these bodies are the Internal Affairs Service or the National Police Commission. Certainly, we can understand the frustration of Mendoza when despite being cleared by the

IAS, the inaction of the Ombudsman has nonetheless prevented his reinstatement.

Nothing of course will justify what Mendoza did. Some good, though, should come out of this latest tragedy. Perhaps, the foregoing remedial legislation will be the good news resulting from the tragedy at Luneta.