ICI and OMB: Expectations and questions

The TRILLION PESO MARCH and other rallies during the last few days denounced the Independent Commission for Infrastructure as a mere diversion, a fall guy of sorts, and a “palabas.” I would rather give the ICI and its chair, members, and special adviser a chance to live up to the high, very high, expectations of our people. I hope it can prove equal to the gigantic task of sending to jail and recovering the billions plundered from the public treasury by the masterminds and their cohorts.

NONETHELESS, QUESTIONS LINGER around the need for its creation, given the constitutionally created Office of the Ombudsman (OMB) that is especially empowered and obligated by the Constitution to “(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.”

Questions dawdle on the power of the President to “mandate” the ICI to “investigate … all government officials and employees and any other individual involved in anomalies … [regarding] government flood control and other infrastructure projects nationwide…”

Are the senators and congressmen included in the words “… all government officials…?” New Speaker Faustino “Bogie” Dy III vowed he would “not defend the guilty and shield the corrupt … and would “fully cooperate with the ICI.” While being investigated, the “Congs” would be presumed innocent till proven guilty. Will he refuse to defend his fellows during the investigations?

Equally important, will the honorable lawmakers agree to be summoned, interrogated, or arrested and detained by the ICI? If they will not agree, can the ICI compel them to follow its orders? If the ICI cannot compel them to appear during its hearings, will it just suffer and ignore its inability to prosecute them?

Will the honorable solons dare pass laws mandating the ICI to summon, investigate, embarrass, hold them in contempt, and detain them, like what they do to resource persons who lie, disobey, or simply refuse to cooperate during their inquiries in aid of legislation?

BIRAOGO V. PHILIPPINE TRUTH COMMISSION (Dec. 7, 2010, per J Jose Catral Mendoza, en banc) declared unconstitutional Executive Order No. 1 of the late president Benigno Aquino III creating the Philippine Truth Commission—chaired no less by the illustrious retired chief justice Hilario G. Davide Jr.—for violating the equal protection right since its authority to investigate graft and corruption extended only to the officials of the almost 10-year, “previous regime” of former president Gloria Macapagal Arroyo. Would the ICI’s authority, prioritizing violations of criminal laws “within the last 10 years,” exempt it from the coverage of the equal protection clause?

Another question is whether the ICI would constitute another unnecessary layer of bureaucracy that would just delay the investigation and prosecution of the corruption cases. Will it eventually just fade away (instead of being a blockbuster) into a mere historical footnote like the Presidential Commission Against Graft and Corruption of former president Fidel V. Ramos, the Presidential Anti-Graft Commission of Arroyo and the Presidential Anti-Corruption Commission of former president Rodrigo R. Duterte?

In short, the ICI will be peppered with lawsuits once it begins its labyrinthine work (the Palace is forwarding 16,000 complaints it had received) and formally accuses the plunderous cohorts. Note that its findings are merely recommendatory and not binding.

IN CONTRAST, THE OMB IS GRANTED ENORMOUS POWERS by the Constitution and by statute to banish and punish corruption (which, with due respect, it has not fully fulfilled), and given protection to be truly independent of the other branches of the government, especially of the presidency and Congress.

Thus, the Ombudsman and his/her deputies enjoy a fixed term of seven years without reappointment. They can be removed only by impeachment, and their salary cannot be decreased during their term of office. Appointees shall be vetted by the Judicial and Bar Council and named from a JBC short list to the President, who is constitutionally required to select from the list within three months of any vacancy.

The position of Ombudsman became vacant last July 27, yet the vacancy remains to date because the JBC has yet to submit its short list to the President. The Council has set Oct. 6 as the super final date to vote on the applicants who have been screened and interviewed. This would give the Chief Executive only 20 days to make known his much-awaited choice.

Only the OMB is granted the constitutional mandate, duty, and protection to run after the one-trillionth-peso plunderers. And after the OMB has performed its mandate to investigate, charge, and prove their guilt, only judges and justices who—possessed of “proven competence, independence, probity, and integrity”—could, in the final analysis, send the plunderers to rot in prison for life and to direct the recovery of their googolplex ill-gotten wealth.

At bottom, I believe the ICI’s real role is to help and facilitate—without interfering with—the work of the independent OMB.