"Why the Ombudsman is ideally the protector of the people"
"Why the Ombudsman is ideally the protector of the people"
Whenever we discuss accountability in public service, the Ombudsman as the protector of the people has to be mentioned. The Ombudsman is not unique to the Philippines. There are other countries which have their own Ombudsman – Australia, France, Greece, Russia and the Netherlands, among others.
The Ombudsman in the Philippines found its origin in Sweden. In its constitutional reform of 1809, Sweden decided to establish a high legal officer elected by the Parliament called the ‘High Ombudsman’ to supervise the legality of the activities of the Government and public administration at large (https://www.officialgazette.gov.ph/briefer-the-office-of-the-ombudsman/).
The word “ombudsman” means a person that acts as a proxy to represent another; in this case, the represented people are those who complain about the alleged wrongdoings of the public administration. (https://www.officialgazette.gov.ph/briefer-the-office-of-the-ombudsman/). The ombudsman is usually appointed by the government or by the parliament but with a significant degree of independence (https://en.wikipedia.org/wiki/Ombudsman). In our country, the Ombudsman is appointed by the President.
The forerunner of our current Office of the Ombudsman was the Tanodbayan, which was created by Presidential Decree No. 1487 as amended. The Office of the Ombudsman was later created under the 1987 Constitution which set the tone for accountability in public office.
In the sponsorship speech of Commissioner Jose C. Colayco during the 1986 Constitutional Commission, he discussed the purpose, independence and scope of the powers of the Ombudsman. According to him, the Ombudsman was conceived “as a champion of the citizens” who will call the attention of government officials to any impropriety, misconduct or injustice (https://www.officialgazette.gov.ph/briefer-the-office-of-the-ombudsman/.
Colayco explained that “[T]he Ombudsman must act on his own. And if he thinks that the other office can do it better, he has to take the steps himself to refer the case there and follow it up.” He also said that “[T]he Ombudsman is going to be the eyes and ears of the people” (https://www.officialgazette.gov.ph/briefer-the-office-of-the-ombudsman/).
With this power, he further said, the Ombudsman can “investigate, inquire into and demand the production of documents involving transactions and contracts of the government where disbursement of public funds is reported.” The Ombudsman is the guard of the guardians, another check to ensure that those in power would not abuse their positions (https://www.officialgazette.gov.ph/briefer-the-office-of-the-ombudsman/).
No less than the Philippine Constitution laid down the standard to be followed by a public officer and employee; that is, to serve with utmost responsibility, integrity, loyalty, and efficiency, to act with patriotism and justice, and to lead modest lives (Section 1, Article XI, 1987 Philippine Constitution).
What if the pubic officer or employee falls short of the exacting requirements of public service? The public officer or employee believed to have erred can be sued in the Office of the Ombudsman. The subject of the action will be rooted on malfeasance, misfeasance, and non-feasance committed during his tenure of office.
There is this notion that the Ombudsman can only hear and resolve graft cases. This is inaccurate since the Ombudsman must investigate a public officer or employee if: (a) his lifestyle is excessive and extravagant; (b) he is inefficient; (c) he abuses his authority; or (d) he engages in activities which are in conflict with his public office.
The power of the Ombudsman is broad, and it includes the power to conduct preliminary investigations, fact-finding investigations, administrative or disciplinary investigations, and prosecutions. The Ombudsman is tasked to investigate and prosecute on its own or as prompted by the complaint of another person if the act or omission of any public officer or employee, office or agency appears to be illegal, unjust, improper or inefficient (Section 13 (1), Article XI, 1987 Philippine Constitution).
The disciplinary authority of the Ombudsman extends to all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except officials who may be removed by impeachment or Members of the Congress, and the Judiciary (Section 21, Republic Act 6770).
If the complaint against a public officer or employee is criminal in nature, the Office of the Ombudsman will have to conduct a preliminary investigation to determine the existence of probable cause, and if such exists file the criminal information with the Sandiganbayan or the regular courts. The prosecutorial arm of the Ombudsman is the Office of the Special Prosecutor which is under its direction and control.
In administrative complaints, the Office of the Ombudsman, after hearing can take appropriate action against a public officer or employee who is at fault or has neglected to perform an act or discharge a duty required by law (Section 15 (3), Republic Act 6770). The erring public officer or employee can be removed, suspended, demoted, fined, or censured.
The Ombudsman may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and the charge against the officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty (Section 24, Republic Act 6770).
The public officer or employee may also be preventively suspended if the the charges against him would warrant removal from the service; or if his continued stay in office would prejudice the case filed against him. The preventive suspension shall continue until the case is terminated but for not more than six (6) months, without pay (Section 24, Republic Act 6770).
While the Ombudsman is given by the Constitution and Republic Act 6770 with vast investigative powers, it has the obligation to resolve the cases before it promptly. Otherwise, there may be claims of inordinate delay which is a violation of the right to speedy disposition of a case.
In one case, the Supreme Court declared that the delay starts to run upon the filing of a formal complaint by a private complainant, or by the Field Investigation Office of the Ombudsman based on an anonymous complaint or as a result of its motu proprio investigations (Magante v. Sandiganbayan, G.R. No. 230950, July 23, 2018).
The period devoted to the fact-finding investigations prior to the date of the filing of the formal complaint with the Ombudsman shall not be considered in determining inordinate delay. After the filing of the formal complaint, the time devoted to fact finding investigations shall always be factored in (Magante v. Sandiganbayan).
The Ombudsman can also direct any officer or employee of the Government, or of any of its subdivisions, agencies or instrumentalities, as well as any government-owned or controlled corporations with an original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties (Section 15 (2), Republic Act 6770).
The Office of the Ombudsman, based on Republic Act 6770 and the 1987 Constitution, created the Investment Ombudsman Team that was tasked to prioritize the delay in the delivery of frontline services relating to the establishment or conduct of business and issuance of licenses, permits and certificates to any person not qualified or legally entitled (https://www.ombudsman.gov.ph/docs/investmentOmbudsman/IO%20Primer_LATEST.pdf).
The Investment Ombudsman shall also address concerns on solicitations, demands or requests by government officials in exchange for the issuance of licenses, permits and certificates, the release of shipments and cargoes, as well as for the arbitrary assessment of fees for the conduct of business and any other delay or refusal to comply with the referral or directive of the Investment Ombudsman team https://www.ombudsman.gov.ph/docs/investmentOmbudsman/IO%20Primer_LATEST.pdf).
Understanding the need to protect the environment, the Office of the Ombudsman created the Environmental Ombudsman Team which was tasked to take cognizance of any act or omission committed by any public official, employee, office or agency mandated to protect the environment and conserve natural resources, that appears to be illegal, unjust, improper or inefficient (https://www.ombudsman.gov.ph/).
The power of the Environmental Ombudsman Team extends to any malfeasance, misfeasance or nonfeasance committed by any public officer or employee, including co-conspirator private individuals, if the said act or omission involves any violation of environmental laws or relates to environmental protection or conservation (https://www.ombudsman.gov.ph/).
Do not be surprised if the Office of the Ombudsman publicizes matters covered by its own investigation, since it can do so with prudence and if warranted by the circumstances. The Ombudsman under its rules and regulations may determine what cases may be made public, provided that any publicity shall be balanced, fair and true (Section 15 (6), Republic Act 6770).
While we expect the public officer or employee to be efficient, responsible, just, loyal to the service, and to lead modest lives, we should give them the respect, courtesy and appreciation they truly deserve. There are many competent, honest and committed public servants who to some cynics are corrupt. This is where objectivity and freedom from bias is necessary.