Fear of the Ombudsman

While the entire nation was outraged by the testimony of Ombudsman Conchita Carpio Morales on CJ Renato Corona’s dollar transactions, some senators were more alarmed by the discovery that the bank secrecy law did not provide adequate protection to secret dollar accounts of public officials. 

Here’s Sen. Miriam Santago:

    “Are you of the opinion that should somebody file a complaint against any senator or member of the House, you can go straight to AMLC, and ask for records without going to the court or without waiting for probable cause to be found by the counsel itself?”

Why are some senators concerned that their right to secret dollars account is in jeopardy? If you will recall, waiting for a court order is precisely what gave Gen. Carlos Garcia the time he needed to clean up  his bank accounts. Now imagine a senator being investigated by the Ombudsman for undeclared dollar accounts. If we go by Miriam’s book, the Ombudsman would have to get a court order first before she can call in the AMLA. In effect the Ombudsman warns the senator that she is looking into her secret dollar accounts. The senator in turn will have her day in court to block the opening of her dollar accounts, plus the opportunity to deliver a daily dose of privilege speeches condemning the investigation and calling the Ombudsman all sorts of names.

That’s why SALNs include a waiver on the part of the filer.  The filer authorizes the people’s agent, the Ombudsman, to scrutinize his SALN and, if warranted, to look beyond the SALN for evidence of undeclared wealth. Isn’t that how it’s supposed to be?

Don’t be fooled by the argument of the defense panel that “the waiver in foreign currency deposits, as mandated by law, should be applied stringently because you have to protect the confidentiality of the deposits. That should be in line with the purpose of the law.” The purpose of the law was not to protect hidden dollar accounts of government officials. The purpose of the law, which was enacted during the time of Marcos, was to attract dollar deposits from foreigners. Besides what kind of law is it that will offer safe haven for a plundering public official’s loot?

The jurisdiction of the Ombudsman is limited to public officials. If you are in the private sector, the Ombudsman has no jurisdiction over you unless you are involved in any shenanigans with public officials. The Office of the Ombudsman was created because there was a need for it. And it was granted vast powers so that it could accomplish its mission:  

    “As protectors of the people, we shall endeavor, in cooperation with all sectors of the Filipino society, to promote integrity and efficiency and high ethical standards in public service through proactive approaches in graft prevention and public assistance, prompt investigation of complaints and aggressive prosecution of cases filed against erring public officials and employees.” 

Senators also expressed concern that the Ombudsman and the AMLA could be used by the President to hit back at them:

    Sen. Estrada: Nguni’t paminsan-minsan ay naglalaro sa aking isipan na baka nagagamit po yung AMLC o mismong ang inyong tanggapan sa mga tao o sa mga pulitikong kritikal sa administrasyong ito.  Sana naman po, if you can give us the assurance that your office will not be used to get back at the political opponents of the administration.” 

That is a seemingly legitimate concern. But it is bogus. People who do not want to be seen naked should not live in glass houses. Who put a gun to the head of Sen. Estrada and forced him to run for public office anyway? When one runs for public office one surrenders the right to certain aspects of privacy specially the right to hidden dollar accounts. Granted that a vindictive president can pressure the Ombudsman or the AMLA to search into the bank accounts of an opposition lawmaker, would an honest lawmaker’s bank account yield anything incriminating? 

The Ombudsman is one of the things that a public official has to live with. Sobra naman ang swerte nila if the Ombudsman will have to go through hoops just to verify whether they are honest public servants or crooks. The public wants to know, it has a right to know. And the right to know trumps the public official’s right to conceal.

Someday, hopefully, we won’t need an Ombudsman anymore. But for now, let’s give it all the support and powers it needs to accomplish its mission of going after erring public officials and employees.

Manuel Buencamino

Buencamino was a weekly columnist for Today and Business Mirror. He has also written articles in other publications like Malaya, Newsbreak, "Yellow Pad" in Business World, and "Talk of the Town" in the Inquirer. He is currently with Interaksyon, the news site of TV5. MB blogged for Filipino Voices, blogs for ProPinoy and maintains a blog, Uniffors.com. Game-changers for him, as far as music goes, are Monk, Miles, Jimi, and Santana.

  • baycas

    It may appear at present that Ombudswoman Carpio-Morales is overzealous in her job against high-profile grafters and corrupt top public officials as advanced by some senators.

    However, the real score in this fight is that former Ombudswoman Gutierrez did not do anything to prosecute high-profile grafters and corrupt top public officials during her time. Most of the senators did not do anything to right the wrong then.

    I am against a “peanut butter” approach in a defense BUT I am certainly for a “peanut butter” approach in the attack by the incumbent Ombudswoman against those who perceived themselves as untouchables like the senators (and gods like the SC justices!).

    Don’t spread the blame
    to avoid penalty

    Spread the penalty
    to all blameworthy

  • baycas

    AMLC doesn’t need a court order, covered institutions (banks) reported the transactions whose amounts went beyond the allowed threshold for them to remain secret with the banks.

    AMLC only assisted the OMB upon the latter’s request. All data and documentary evidence were ONLY revealed when the defense put the Ombudsman on the witness stand.

    In short, information remained confidential until the Corona camp made Carpio-Morales a hostile witness.

    They just got what’s coming to them.

    • GabbyD

      i agree. ito rin ang basa ko sa batas. the amlc EXISTS to get account transations data that match certain characteristics.

      wala pa tayo sa “inquire into bank deposits”, which DOES require a court order, and more investigation.

      they were both right, but talking about different things. 

  • kenston

    While the author’s view that getting a court order gives the corrupt politicians more time to withdraw and do this and that… 
    I think Sen. Miriam is right… because the law says, before you can ask AMLC to release the information on somebody’s account, a court order must first be acquired. It’s like the foreign currency issue, where most people insists that we can easily compel banks to give all the details in the trial for the sake of truth and justice etc. And Sen. Miriam said, if we want it that way, then we should revise the provision in law… meaning, we should state in our constitution that politicians are excluded in the foreign deposit protection law, and AMLC can release without court order… but until then, we cannot do the shortcut.

    • Manuelbuencamino

      kenston,

      please reread the constitution and the ombudsman law. It says very clearly in those two documents that the ombudsman can ask for information from any government instrumentality without the need for a court order. 

      Miriam’s difficulty stems from the fact that she misreads the Bank secrecy law and juxtaposes it with the Ombudsman Act and the Constitution. The action of the Ombudsman with regards to her request to AMLA does not fall within the ambit of the bank secrecy law. 

      To me the only question regarding the issue Miriam raised is: “is she really ignorant or did she deliberately raise a bogus issue so that those who are not familiar with the law will be confused?

      • UPnnGrd

        hah hah hah…   ManuelB reads the Constitution and now he wants for Senator Miriam to capitulate to ManuelB’s interpretation of the Constitution.    President Noynoy sure is contagious with PresiNoynoy’s  “… I don’t need any lawyer nor judge to tell me what Pilipinas laws should be!”  and that really…. the H/L stockholders really should be paid much much supra-much more. I mean, what are they my kamag-anak’s and friends for?

        • GabbyD

          not the consti, but the ombudsman law. 

          i agree with MB, but i think they simply werent talking about the same thing. but the ombudsman cannot debate with a senator judge.

          so, do u need a lawyer to tell you what law should be? talaga? u cant read?

          • UPnnGrd

             i suppose some folks — when they disagree with items that she propounds on — would conclude that Senator Miriam  is another dumb-ass female lawmaker who can’t read.

          • GabbyD

            do u think she cant read? wow, this is a revelatory plot thread! some folks? sino? cmon, dont be shy!
            i think she can. they were talking about different things. 

          • UPnnGrd

             hah hah hah hah!!!  I’d take Senator Miriam over satirists who push lies to get their stories out….

          • GabbyD

            why are you LOLing? weird. was there a joke? 

            what lies? was the ombudsman a liar or a satirist? thats your choice right — either the ombudsman is right or sen miriam, no?

            who lied? 

      • kenston

        Hmm… My basis was Sen. Miriam’s interpretation… if it’s the case that the law does not require any court order before AMLC can action on any request, then I agree. 

        But I think Miriam was referring to the provision/rules for AMLC which is distinct from Ombudsman Act.

        • Manuelbuencamino

          Kenston,

          The rules for the AMLC apply to the AMLC not to the Ombudsman. Thus if it was the AMLC initiating the investigation then it would have to go by the procedure cited by Miriam. However what we have here is an investigation initiated by the Ombudsman so both the AMLC and the Pmbudsman are governed by the constitutional provision on the Ombudsman and the Ombudsman Law.

          • GabbyD

            even by the rules of AMLC, i think they were on the right.

            recall that all ombudsman presented were transactions data, and the account names. thats all.

            that is exactly what the amlc is tasked to get from banks. 

            i think defense is pissed that they HAD to call in the ombudsman. i’m not sure why they HAD to, but its obvious that they wouldnt if they could help it.

            actually, i have a theory, and i have kenston to thank. the defense it thinking that the media is so powerful here, that even a news story of alleged dollar deposits and a prelim investigation by the ombudsman, even if NOT INTRODUCED in trial, would influence senator judges.

            so they had no choice to call in the ombudsman. its better they call her in UNDER THEIR TERMS, instead of the media having a field day. 

            if i were them, i would have been much more conservative. simply repeat to the senator judges that they ought to consider ONLY the evidence introduced by the prosec. nothing more.

          • kenston

            I’m not a lawyer… but I think AMLC operates under the law and its rules. So if it requires a court order, then in all of its actions, are bound under that requirement. The Ombudsman can, without any court order, ask for assistance from other agencies, but it is the task of AMLC to ensure that the procedure is still being followed. Otherwise, we don’t need the provision that requires a court order, when we can easily circumvent it by using the Ombudsman. That was Sen. Santiago’s observation, that the Ombudsman possesses an elevated authority that it can bypass even the law guiding the AMLC.

          • Manuelbuencamino

            Obviously in this case the AMLC first ensured that the procedure was being followed. As JPE says, regularity is presumed.

            Miriam’s opinion is her opinion.

          • kenston

            But that’s the issue… Miriam’s observation was AMLC bypass the law requiring a court order… so to Miriam, they were following “special procedure”. The presumption of regularity is for the report, and that’s even a presumption. However, the procedure was not “regular” as there was no court order (a pre-requisite), and this is a fact.

          • GabbyD

            all the ombudsman/amlc had were transactions data and account names. “inquiry into bank accounts” means to get more info, beyond that.

          • kenston

            But if AMLC accessing “transactions data and account names” require a court order under the law, that still has to be followed. We cannot use the Ombudsman to do a shortcut.

          • Manuelbuencamino

            Kenston,

            Okay, You go with Miriam, I’ll stay with the Ombudsman.

          • UPnnGrd

            The current OMBUDSMAN knew that the tactic she employed was fail-safe.  Meaning she knew that the penalty she faced – IMPEACHMENT — is a low-probability event given that she has PersiNoynoy’s backing  plus PersiNoynoy has already shown ability to corral enough congressmen to support him to protect her.

            BRILLIANT MOVE!!!   guLLOO is probably tearing her hair out in disgust as to what she could have accomplished in her days had she known she can use Merceditas and “dollar accounts sniffing” against Panfilo and others? .

            PersiNoynoy is probably savoring when he gets his own select-ee into Chief Justice position. ( I hope he doesn’t tear his hair out when CJ Corona decision is NO/he stays!)

          • GabbyD

            why would she be impeached?

            what law did she break?

          • GabbyD

            ito nga ang pinapaliwanag ko: if u read the law, the part where there is a requirement for a court order is DIFFERENT from what the ombudsman got from the amlc.

            accessing transactions data DOES NOT REQUIRE court orders. 

            banks are required to submit these to amlc regularly. 

          • GabbyD

            transactions that meet certain criteria, that is.

  • GabbyD

    why is sen. miriam correct when she says there should be a court order? i read the law, and i dont quite understand what it means when it says “inquire into accounts” when, as i understand it, accnt info is regularly reported to amlc — which is the main task of the amlc.

    so if all amlc did is share the report, whats the problem? in fact, when the ombudsman asked the CJ to explain, this is still purely investigatory. wala pang conclusion.

    so whats the big deal?

    i also dont understand why sen pres. enrile was mad about giving the info to his office. if its fake, then disregard it. whats the issue? if its too late to consider new evidence, say its too late.

    whats the problem?

    • kenston

      It’s an insult to Sen. Enrile because he is a judge… probably it won’t be an issue if an impeachment trial is not ongoing… but since the trial is ongoing, he cannot just receive any evidences, as they have to be admitted to the court… it’s like trying to manipulate Enrile by giving him such evidences… what if that person publish in the newspaper with the headline “Enrile ignored this and that evidence handed to him”… readers may be inclined to think Enrile is hiding something… there’s a process to be followed… it’s an insult to a lawyer who goes by the procedure… hindi sila dapat iniipit sa ganung situation

      • Manuelbuencamino

        good point kenston. a judge should only receive evidence presented in court.

      • GabbyD

        sure, he’s the judge. but my question is, why was he mad? and insulted? why the DRAMA?. if he cant see coz hes a judge, why cant he just send it back OR give it to the prosec? or even just discard it?

        • kenston

           It’s an insult to a judge, because he’s trying to condition the judge’s mind without even allowing the accused the right to be heard (which is being granted in a just hearing)… ano po ba ang gusto ni Mr. Keh, si Enrile pa ang magbring up sa court like a prosecutor? That’s why Enrile did not even read it (according to him). Iniipit kasi si Enrile by Keh’s action. If Enrile silently ignored it, pwedeng idyario na “Enrile ignored crucial evidences” or worse “Enrile sided with Corona” etc. Kung tinanggap naman niya, pwede ring iheadline as “Enrile accepted evidence outside the court” then that’s going to be unjust to the accused, dahil he can’t defend it to the judge…

      • kenston, it’s not the fault of Harvey Keh that Enrile received/accepted the evidence given to him by Keh, is it?

        So, what is it that Enrile complaining about?

        • kenston

          It’s Harvey Keh’s fault, because he should have given that to the prosecution to be admitted to the court.. instead, he gave it to the presiding officer. It’s an insult to a judge, because it’s trying to condition the judge’s mind without even being able to hear the side of the accused (which is being granted in a just hearing)… ano po ba ang gusto ni Mr. Keh, si Enrile pa ang magbring up sa court like a prosecutor? That’s why Enrile did not even read it (according to him).

          • Ah, kenston, what you’re saying is that when Enrile accepted/received the evidence from Keh, Enrile at that time does not know what he was doing? Or, maybe he’s asleep, or unconscious, that when Enrile woke up during the actual impeachment trial where Keh was testifying as the defense witness he berated Keh for giving the evidence to him, is that it?

            Do you think it’s right for Enrile to say to Keh something like this, “Keh, I accepted the evidence you gave me, therefore it’s your fault that I accepted it, do you want me to cite you in contempt?”

            Is that what you wanted us to believe, kenston?

          • kenston

            Enrile did not accept that package. In fact, he did not even read it, because he knew that he is a judge in an impeachment trial.

            Since Keh is testifying in the trial, he used that opportunity to cite him for contempt for what he has done.

            Again, Enrile did not accept the evidence because it was not submitted in court in the presence of the defense panel. So your assumptions and conclusions are actually invalid.

          • Of what I understand it, Enrile accepted the package of evidence though I agree with you that he said he did not read it.

            You admitted in your above statements that if Enrile accepted the evidence from Keh you said that it’s Keh’s fault. Read your statements again specially your first response to my comment. In fact this phrase, “…instead he gave it to the presiding officer.” is part of your statement.

            Deny it if you want, you have the right to deny what you said.

            The last word is yours.

          • kenston

            Enrile did not accept the package in a legal sense, received a copy, yes… but ‘acceptance’ as in approving of what he did? No. He did not open it but leave it there, I don’t think that’s ‘accepting’ it. We don’t know if it was his secretary who received the package or he himself.

            It is Keh’s fault because he gave it to the presiding officer outside the court. It has nothing to do with whether Enrile accepted it or not, the mere act of bringing evidence outside the court is already wrong. That’s what I’m pointing at.

            Having the package (upon receiving it, without reading it), Enrile can now use that as evidence to cite him for contempt; otherwise, Keh would easily deny his actions assuming Enrile did not possess the package. 

            In summary, you can’t do that in any court (presenting an evidence against the accused outside the court)… Nothing to deny sir.

  • MB, you said, “The purpose of the law was not to protect hidden dollar accounts of government officials. The purpose of the law, which was enacted during the time of Marcos, was to attract dollar deposits from foreigners.” 

    It’s an excellent point! When the nation was a net borrower of dollars, it was important to keep foreign currency from leaving the country by providing absolute security from prying eyes. Now that we are a net lender, the need to protect dollar accounts from scrutiny is no longer apparent, especially since the strong peso is hurting both our exports and OFW families.

    We need to repeal that presidential decree and modify the rules governing foreign currency deposit units to remove any ambiguity in the law. This is where good governance and sound economic management intersect.

    • Manuelbuencamino

      I agree. The thing to do now is for  proponents of the amendment to get the banking sector behind the initiative.  

      • Proposed amendments by the BSP to the AML Law pending in Congress for four years are due by end of this month which would expand the AMLC’s powers. Failure to pass them would result in sanctions by the Financial Action Task Force that would affect investors and overseas remittances.

        I think it would be timely to include in there a clause that would allow public agencies to examine suspect accounts through a court order or a request by the Ombudsman in the case of public officials suspect of committing corrupt practices. Banks would have no choice but to accept changes or face sanctions from the international community.

        • Manuelbuencamino

          Doy,

          About a month ago I read that some of GMA’s allies in the House and Joker in the Senate were resisting efforts to liberalize the AML law. If I remember correctly they were on the side of less transparency. Let’s hope the trial results in the complete elimination of bank secrecy, local and foreign accts, as far as government officials are concerned.

          • UPnnGrd

             why bother to make changes to the existing law when PersiNoynoy has approval to disregard them?

            Why not PersiNoynoy focuses on, say, creating more jobs… or  hiring an anti-crime CZAR?  PersiNoynoy (despite what JP Enrile says)  has authorization from Malakanyang to disregard laws because he does things FOR THE GREATER GOOD. 

          • GabbyD

            are there any changed laws that pnoy disregarded? wala.

    • UPnnGrd

      In the meanwhile, for the sake of DAANG MATUWID and so that PersiNoynoy can get his own select-ee into the Chief Justice position, the proper step is to disregard the law.  Laws are legal only when they are endorsed by the EXECUTIVE branch.

      Oh, wait… I thought the Constitution says it is the Congress which enacts laws. 

      But of course, it is Malakanyang which implements the laws,  and as long as the army is quiet,  then disregarding the laws is proper for Malakanyang  especially when the independent OMBUDSMAN affirms the actions.

  • J_ag

    Those who believe they are entitled believe that they are free from being accountable. 

    Hence the line in the sand being drawn by the CJ and his probable allies is that he is being persecuted instead of being prosecuted.  

    This culture of entitlement is being threatened by this impeachment case. Cutting of the heads symbolically of those that feel their entitlements are at risk is the best cure for destroying this backward culture. 

    • baycas

      Agree.

      But others would have liked Robespierre’s guillotine during his heyday better.

  • UPnnGrd

    GuLLOOO  is probably tearing her hair out!!!

    “What???  Merci and I can make pompyang our enemies???  So I can ask my hairdresser to file a complaint against that Panfilo BUWISIT   and Merci can start  manufacturing unsigned this or allegation-that  to make Panfilo feel  my friendship?

    BUWISIT talaga si Corona, bakit hindi niya sinabi sa akin na puwede pala iyon???? Akala ko palaging may check-and-balance, eh wala palang “balance” sa Ombudsman. Super-agency pala ang Ombudsman, walang nagsabi sa akin, mga HUDAS!!!!!

    At iyang si de Quiros at si Kastilaloy Cuisia….  eh di kinurakot ko din ang kanilang dollar account….  buwisit talaga,  buwisit buwisit!!!”

  • UPnnGrd

    hah  hah hah hah       Maybe it is supposed to be the case in guLLOO’s years or FVR’s years,  but NO!!!!   Senator Santiago thought that procedural rules specified by those old dudes in the 1987 constitution  should be followed in year 2012  when a citizen has filed a complaint  with the Ombudsman’s office!!!   

    • Manuelbuencamino

      UP, 
      well you and gulo and miriam should have read the law. corona and his lawyers should have read it too. Well I guess none of you ever thought there would be an ombudsman who really hates crooks and with the knowledge and brains to do it. Too bad.

      Live with it yoopee. three more years. some of your idols might have time on their side.

  • Exactly. And this notion of the Chief Justice decrying the lack of “independence” of the judiciary represented in the impeachment charge, then turning right around and sullying the independence and reputation of the Ombudsman by declaring her “hostile” is the ultimate of hypocrisy. The case has moved past testing the legitimacy and honor of the Chief Justice, I think, to testing the legitimacy and honor of the Senate.

    • Manuelbuencamino

      Yep Joe. At this point, it is now the senate on trial

      • UPnnGrd

        the senate is now on trial….

        Conrado deQuiros  should get the trucks and the crowds to spontaneously appear  to let the trial  get on-going!!!!

        IT IS TIME!!!!

        • Manuelbuencamino

          No trucks youpee, just buses. Read http://thesocietyofhonor.blogspot.com/2012/05/blowing-whistles-and-getting-flayed.html