The Straight Path Needs to Turn a Corner

Enter through the narrow gate. For wide is the gate and broad is the road that leads to destruction, and many enter through it. But small is the gate and narrow the road that leads to life, and only a few find it.

-Matthew 7:13-14

I am well aware that any discussion about Daang Matuwid (the righteous path aka The Path) the anti-corruption slogan of the administration ends up becoming a theological debate. That is why I am prepared to tread on this ground quite carefully. The term itself is a reference to the Sermon on the Mount performed by Jesus in the gospel of Matthew which is quoted above.

Those who approve of this analogy will say that it is a secular version of that moral principle. Those who disapprove will counter with another idiom, the one that states the road to hell is paved with good intentions. They will point to the underspending of the government (which persists to this day) which was motivated by a desire to rid public works of corruption that led to the rapid slowdown in the rate of economic growth (which will persist as well over the next two years).

Adherents to The Path will rebut this with another slogan, kung walang corrupt, walang mahirap (if there is no corruption, there will be no poverty). For them, it is not just a moral imperative to fight corruption, it is an economic one. The Path sceptics will quote a genuine Filipino proverb, kung walang tiyaga, walang nilaga (if you don’t persevere, expect no reward). The attention they say of the government has been distracted by chasing its enemies that it has lost track of the people’s real priorities.

Latest polling has been quite illuminating. While the public still assigns a net positive approval rating to the president, a majority or a plurality of them do not think he has done a good job of creating jobs, improving wages and preventing the rising cost of living. The salience of these bread and butter issues exceeds that of his anti-corruption campaign. In explaining why his performance rating is still good, one polling executive surmised that this was probably because compared to his predecessor the president still manages to come off smelling sweeter.

This brings me to my central point, that while the current dispensation may be perceived as being qualitatively different from its precedents, its implementation of daang matuwid still fails the test of sustainability. This becomes apparent when we make use of external comparisons (looking at cases from other countries) instead of internal ones (looking at cases from within our country).

Forget about comparing us to the advanced countries in Scandinavia and the North Atlantic. These nations have built up systems of good governance over several centuries, during which time they grew economically and became wealthy (some would say at the expense of their former colonies).

Forget about comparing us to East Asia (Japan, South Korea, Taiwan) and other Confucian-states (Singapore, Hong Kong, Mainland China, Thailand, Vietnam). These nations have had centuries’ worth of tradition involving bureaucracies infused with a meritocratic ethos.

Instead, let us look to Indonesia, a country with whom we share common ethnic origins and similar colonial and contemporary history.

Different Paths

Emil Bolongaita is an authority on Indonesia’s experience having advised donors to the Yudhoyono government on providing assistance to its Corruption Eradication Commission or KPK. He also provided support to the Philippine Ombudsman under Simeon Marcelo during the early days of the Arroyo government. He literally wrote the book for the World Bank on anti-corruption policy in Asia.

(Just in the interests of full disclosure: I met Emil back in high school when we were both student leaders in Jesuit institutions, he at the collegiate level, and I at the secondary level. Our paths crossed again when he took up a teaching position at Carnegie Mellon University, where I had completed a Master’s degree. He then went on to take up a role at the ADB in Manila.)

In a paper, entitled Exception to the Rule? Why Indonesia’s Anti-Corruption Commission succeeds while others don’t – a comparison with the Philippines, published in August 2010 shortly after the Aquino government was inaugurated into office, Emil traces the similarities and differences between the two countries’ experience in fighting corruption. The following similarities are worth noting in the outset:

  • Firstly, both countries experienced major economic upheaval and the collapse of long-standing dictatorial regimes that were characterized by widespread corruption and crony capitalism (in the rankings of the most corrupt rulers of all time, Presidents Soeharto and Marcos are placed first and second respectively). This was followed by the formation of pluralistic democracies. Transition to democracy however has not eliminated the system of patronage and clientelism in both countries.
  • Secondly, following democratic restoration, agencies were (re)created to deal with corruption—the KPK in Indonesia and the Ombudsman in the Philippines. These two institutions have the broadest mandate in both countries to receive complaints, investigate and prosecute suspects before special anti-corruption courts (the TIPOKOR in Indonesia and Sandiganbayan in the Philippines). They both are tasked with studying governance systems, identifying vulnerabilities and providing advice on corruption prevention and mitigation strategies. The KPK has the added task of monitoring the implementation of such strategies. In this sense, their scope of work is broader than the Independent Commission Against Corruption (ICAC) of Hong Kong and New South Wales (Australia) and that of the Corrupt Practices Investigation Bureau (CPIB) of Singapore whose mandates are confined to investigation.
  • Thirdly, both nations have similar levels of economic development as measured by per capita income and consequently also suffer from similar levels of perceived corruption as measured by normalised qualitative scores on corruption performed by Transparency International and the World Bank.

That is as far as the similarities go. According to Emil, the two systems diverge in terms of their performance, both qualitatively and quantitatively. He states that

In just five years, the KPK has successfully prosecuted over one hundred senior officials that before would have been considered as ‘untouchable’ by their positions and prominence. To date, the KPK has yet to lose a single case, either at the anti-corruption court or at the Supreme Court where the guilty verdicts of the TIPIKOR are appealed. In a country long perceived to be endemically corrupt, with a history of ‘untraceable’ anti-corruption performance, this accomplishment of the KPK is nothing short of extraordinary.

Emil notes further that

By comparison, the Ombudsman’s record is strikingly poor. With the notable exception of former President Joseph Estrada who was convicted of corruption in extraordinary circumstances … the highest ranking official convicted of corruption is at the level of governor; only two governors have been convicted but neither ultimately served time in prison (CENPEG 2006). Examining the records of the Sandiganbayan from 2001 to 2006, the same survey found that the conviction rate (including guilty plea) in the court was only 0.7%.

What accounts for such disparate results? Emil highlights seven factors involving the following:

  1. Jurisdiction (KPK covers the executive and legislature, but not the military, while the Ombudsman covers all offices except impeachable ones although the present office holder contends that this is not the case).
  2. Powers and capacities (KPK has the investigative powers of law enforcement agencies and can conduct wiretaps, examine bank accounts and tax records, freeze assets, issue hold orders and make arrests. The “toothless” Ombudsman has none of these powers).
  3. Operational differences (cooperation in the KPK between investigative and prosecutorial arms is not observed in the Ombudsman and the weight of evidence considered before filing a case is proof beyond reasonable doubt for the KPK, while it is only probable cause for the Ombudsman).
  4. Human resources (recruitment, selection and composition is more stringent under the KPK than the Ombudsman; consequently, they are able to achieve more with less staff).
  5. Performance measurement (objective measures for tracking and monitoring performance are more rigorous and widespread in the KPK).
  6. Accountable management (governance of KPK is handled by five commissioners acting in a collegial manner, while the Ombudsman is headed by one person).
  7. Anti-corruption courts (the adjudication process in the TIPOKOR takes about eight months on average, which includes the appeal process to the Supreme Court, while the process takes about 9.8 years in the Sandiganbayan including appeals to the Supreme Court; and, the effectivity of the sentence is immediate, even if under appeal in the case of the former, not in the case of the latter).

Beyond these specific design features, I would also suggest that what makes the Indonesian case of fighting corruption stronger than the Philippines is the underlying coherence of the state in the former, a point that I made in a previous post entitled Indonesia Rising, Philippines Waning. It should be noted however that despite its successes, recent events have cast doubt on whether the KPK will be able to perform its functions well into the future. Emil calls its history a “cautionary tale” in that within its successes lie the seeds of its own destruction.

Where to from here?

A number of obvious policy recommendations stand out from this comparative case analysis. For me the most salient ones have to do with expanding the investigative powers and prosecutorial capacities of the Ombudsman. Some of the ones Emil highlights which involve exempting select agencies within the bureaucracy from civil service compensation structures I have also discussed here.

The importance of winning cases based on the weight and integrity of the evidence has been highlighted by the impeachment trial of Chief Justice Corona and the “Hello Garci” incident involving former president Arroyo. In both cases, evidence involving bank accounts and wiretapped conversations cannot be admitted due to the illegal nature of obtaining them.

Similarly in the cases involving the prosecution of tax cheats and smugglers, the likelihood of conviction is quite low considering that the Department of Justice was not given sufficient funding to hire lawyers to dispose of its backlog. One wonders what sort of deterrent effect this will have.

For Emil, the litmus test for whether such reforms can succeed is the political support from the executive and legislature. He casts “serious doubts” on whether such structural transformations can occur by saying

(M)any executive officials and legislators are unlikely to welcome the idea of strengthening an agency that could pursue them for corruption.

Any reform he says needs “to be crafted to reflect the constraints and opportunities within the institutions and incentive structures that drive the Philippine political economy”. Mind you what constitutes self interest in this case is really in the eye of the beholder and defined by leaders who are in a position to shape such interests.

Gauging progress

The fact that the corruption perception index of the Indonesia or Philippines has improved recently is not an adequate benchmark for determining the success or failure of their respective reforms. Such qualitative measures merely reflect the overall perception of the panels peering into our world from the outside. While the government is to be congratulated for recent gains in tax and revenue collection, these are not the proper means for determining whether a structural shift has taken place or not.

To use a sports analogy, although the country has acquired a few star players in its team which has lifted its game somewhat, the way to ensure that such performance continues into the future when the star players have left is by playing the “long-game” by having a regimented player development program. Barcelona FC which is rated by many as the top football club in the world (recent events in La Primera Liga and UEFA Champions League notwithstanding) got to be where it is by instituting their way of playing “the beautiful game” decades ago.

The same thing has to occur in fighting graft and corruption in the Philippines. For this reason, the Righteous Path needs to turn a corner. Many of the structural and systemic proposals required have not even appeared on the policy agenda because good governance is not seen as a question of passing new laws, but of simply implementing existing ones.

Even assuming they did bubble up to the surface the enactment of such measures would be hindered for quite some time because the legislature is currently tied up ironically in the impeachment trial (or trails, if we are to believe recent pronouncements from the Palace). This makes the situation diabolically difficult for reformers to reach their destination for without the proper powers, tools and resources, how can they stick to The Righteous Path?

UPDATE: I forgot to disclose as well that it was my father, Noli who, as a delegate to the constitutional convention of 1971-73, sponsored a provision for the creation of an Ombudsman. The Tanodbayan was subsequently created by presidential decree by President Marcos. Its role was taken over by  the Office of the Special Prosecutor under the 1987 Constitution, and the Office of the Ombudsman was given the lead role to investigate complaints of corruption as the new Tanodbayan. My father tells me that the way the present Ombudsman is set-up and operates is not the way he originally intended it to be.

UPDATE 2: Despite these reservations, the third complaint filed with the Ombudsman against the Chief Justice was made by him.

Doy Santos aka The Cusp

Doy Santos is an international development consultant who shuttles between Australia and the Philippines. He maintains a blog called The Cusp: A discussion of new thinking, new schools of thought and fresh ideas on public policy (www.thecusponline.org) and tweets as @thecusponline. He holds a Master in Development Economics from the University of the Philippines and an MS in Public Policy from Carnegie Mellon University.

  • GabbyD

    Let me say tho that i agree with the thrust of this article: more power to the graft buster.  better investigation, more power to investigate. 

  • Manuelbuencamino

    Doy,
    Corona and cohorts thought they had it all covered, that they could prevent the opening of Corona’s FCDU accounts with a TRO on the impeachment court. They did not see your father’s and those two other complaints coming. They did not see that the Ombudsman’s office had a door leading to those secret accounts.We have your father and the other complainants to thank for finding a way around the Supreme Court’s TRO on Corona’s FCDU accounts. I hope it leads to full disclosure of those accounts so we put Corona’s case to rest and move on.

    I never heard of your father until now but I like him a lot already. 

    Daan Matuwid is not about noble intentions only. It is also based on the practical, that the only way we can move forward is if we run government the way it should be run: honestly, efficiently, and for the benefit of the people.

  • GabbyD

    is the ombudsman right? –Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

    hence, this –> “(KPK covers the executive and legislature, but not the military, while the Ombudsman covers all offices except impeachable ones”

    is wrong.

    • Not quite. The section you quote is taken from the Ombudsman Act of 1989 which talks about the power to investigate impeachable officials for the purpose of filing an impeachment complaint in Congress. The role of prosecuting an impeachable official lies with Congress. If we talk about the weighing of evidence and verifying a complaint of impeachment, that lies solely within the jurisdiction of Congress. The ombudsman can aid in that process, but then so can any concerned citizen.

      • GabbyD

        yes, prosecuting an impeachable official lies with the body(ies) involved in the impeachment. 

        thats why its an “impeachment”, not a criminal or civil trial. this is true by definition — an impeachable official must be impeached. impeachment isnt entirely a legal procedure [this should be obvious by now, given all the discussion on impeachment we’ve had RE corona]

        but the ombudsman can investigate these officials too. when you say the ombudsman doesn’t “COVER” impeachable officials, they do.

        • I was using that word in the context of jurisdiction, which implies exclusivity. At any rate whether it is or isn’t covered is debatable, a point I made clear in the piece by saying it is under contention.

  • There is something very wrong with Mr. Eric Bolongaita’s comparison between the track records of our Ombudsman and Indonesia’s KPK. Foremost because Mr. Eric cited the results of KPK’s performance the last five years of its existence comparing it against the records of the Ombudsmen under the very corrupt president GMA.

    If Doy wants to make a fair comparison related to any anti-corruption drive between the two governments, what could be more fair than to compare KPK’s 5-year record with that of a 5-year records under our present Ombudsman appointed by Noynoy, instead of with the five years records of former GMA Ombudsman Merceditas Guttierez.

    That is if Doy is not too much in a hurry to make a credible comparison, :).

    • Thanks. You saved me the need to type something similar. I agree.

    • The period in question for the Philippine Ombudsman/Sandiganbayan was 2001-2006. Merceditas only assumed the office in December of 2005. The period in question was mostly covered by Simeon Marcelo, appointed in October 2002, who as Solicitor General, the post he occupied before becoming Ombudsman, during the first Arroyo presidency was responsible along with the PCGG for recovering $624 million worth of ill-gotten wealth from the Marcoses. This is the single biggest recovery of assets from a corrupt government on record worldwide. Before blurting out such statements, might I suggest you check your facts first to prevent such confusion.

      • If like Albert Einstein we should define insanity as doing the same thing over and over and expect different results, then perhaps our doubts as to whether The Path will produce different results, without some structural changes, has some basis.

        With all due respect to the current Ombudsman, what can we expect to change if her agency remains a toothless tiger?

        • Why is it toothless? Because of the Ombudsman’s actions? Or the charter? Or the lack of support? Or the social values that are a big push of power against anyone who would do much digging?

          • As Emil hints (and so do I, please read update above), the present Ombudsman inherited powers from the Tanodbayan, which was created by Marcos. You would expect a corrupt leader to create a toothless anti-corruption tiger for show.

            The thing is, the present 1987 constitution didn’t really beef up the Ombudsman’s powers. Add to that our anti-wiretapping law RA 4200, which prevents conducting either audio or video surveillance (only still photos are admissible in court). 

            Add to that our bank secrecy law, which allows the requesting of bank details through the anti-money laundering council only after a case has been filed. Add to that the fact that the ombudsman doesn’t have boots on the ground to investigate cases. Add to that its inability to make arrests.

          • Manuelbuencamino

            All government officials sign a waiver of confidentiality when they file their SALNs. Thus the Ombudsman, even before a case is filed, can ask the AMLC to check transactions of local and FCDU accounts.

            The reason why those people filed a case with the Ombudsman is because the SC, citing the FCDU secrecy law, tro’ed the impeachment court’s subpoena for Corona’s FCDU accounts. The Senate and the banks were tro’d but the Ombudsman who is acting based on the waiver was not. 

            She does not have to ask Corona for permission to look at his bank transactions. All she has to do is ask the AMLC for records of any and all transactions reported by the banks. 

            It will be interesting to see how the SC will block the Ombudsman from making her findings public, if she did get hold of Corona’s FCDU accounts. 

            Note that the Ombudsman’s letter to Corona did not ask if he had deposits. The letter asked Corona to explain those deposits. So the presumption is the Ombudsman has in her possession Corona’s FCDU accounts.

            However we are still in the realm of guess because the full text of the Ombudsman’s letter to Corona has not been published. All we have are excerpts that seem to indicate that the Ombudsman has something substantial. But we must await the full text of the letter before we can make an intelligent opinion. 

          • Therein lies the problem. The KPK doesn’t depend on other bodies like the AMLC to gain access to bank records whether foreign or domestic in denomination. They can go directly to the source: the banks.

            Didn’t the complainant’s allegations stem from the leaks either from the AMLC or the BSP? Aren’t such leaks illegal? In other words, had this leak not occurred, there would be no basis for the complaint. No basis for the Ombudsman’s inquiry. The fact that the Ombudsman has to issue a “please explain” request means its powers are limited. Otherwise, it would have issued a search warrant or subpoena.

            The fact that it took the impeachment trial to bring this all out in the open means that evidence gathering can only take place after cases are filed, not before. This is the root of the problem.

            By the way, my father is one of “those people” who filed one of the complaints. See update 2 above.

          • “The fact that it took the impeachment trial to bring this all out in the open means that evidence gathering can only take place after cases are filed, not before. This is the root of the problem”
            Bingo. Yes, that is indeed toothless. Trials become witch hunts instead of purposeful presentations of well-researched information. Thanks. Joe

          • Manuelbuencamino

            The AMLC is dedicated to monitoring all bank transactions, private and government, above a certain threshold. The Ombudsman’s scope of work is not specialized, meaning that it has to look into other things involving corruption as well. 

            The anti-money laundering law has several built-in weaknesses that I hope Congress will address.

            As to the leaks – do not discount that it could have also come from the banks themselves

            As to the Ombudsman’s letter. I’m not sure but I think it is part of the due process thing, much like the letter that BIR wrote to Pacquiao. The person being investigated is given a chance to explain and if he refuses then he is issued a subpoena and then cited for contempt if he does not comply. 

            By the way, the Ombudsman is allowed under the law to act motu propio. He does not need to wait for complaints. However, I think it was wise of the Ombudsman to wait for a case to be filed before acting on Corona’s accounts considering that there is an impeachment going on.

          • MB, to answer your question regarding whether the Ombudsman has gathered hard evidence from the AMLC, today’s report from one news outlet reads:

            “When asked if there’s already an investigation on Corona’s alleged dollar deposits, she (the Ombudsman) said: ‘None…We just walked through all the reports gathered from the media and we thought the impeachment is already going on, it was the best time to initiate investigation when we received the complaints.'”

            I guess this is why Corona is so confident that he can rebut their claims. It appears that they are all based on news reports at the moment, and he wants to nip it in the bud.

        • Doy, correction please. This time it’s not doing the same thing over and over again. That’s why we the Filipino people expect a different result this time.

          Unless you equate Gloria with Noynoy in terms of their kind of governance. We think Gloria and Noynoy are not the same thing, no?

          Now, of course, I agree with you that some structural changes is needed.

          • If you believe that the source of the problem is not structural , then yes having good, honest leadership is sufficient to change things. That would be our initial hypothesis.

            On the other hand, supposing it is systemic and structural, now would be a good time to address those issues while we have good, honest leadership.

            Should we wait till 2016 before making another five year assessment to test our hypothesis? By then the short window of opportunity for reform would have closed. 

            So why gamble on this crucial point? Use the present system to fight corruption now, while at the same time make necessary changes to give the reform movement a fighting chance of outlasting the present phase.

        • UPnnGrd

           the current Ombudsman/Ombuds-lady is  NOT toothless.   She has the teeth of Malkanyang backing her up.   Now this is especially important because PersiNoynoy has uttered quite a few times he does not need lawyers to tell him what Pillpinas law and justice should be.  And a bully (ahemmmm…. China is not the only bully….  there are others)  and a bully with soldiers and police and BIR investigators can be quite potent.