Rules of Court – Page 74 – marichulambino.com

Photo by the Office of Ombudsman at

www. ombudsman. gov. ph

This is based on a reading of the documents available. I don’t go to the Office of the Ombudsman everyday, i don’t really know what’s going on there, what the atmosphere is among the lawyers and between the prosecutors and their boss, the Ombudsman, how she relates to them and how the lawyers regard her, (i will change what i wrote here if she gives an interview describing how untenable the situation in her office has become that led her to fire off these orders on her prosecutors.)

But just based on the documents, the series of internal office memos volleyed by the Ombudsman to her prosecutors gives the impression of an “invisible war” between, on one hand, her and a chosen group of prosecutors, and on the other hand the prosecutors under the Office of the Special Prosecutor and the Special Prosecutor himself, SP (former judge) Dennis Villaignacio. (The Ombudsman is having him investigated by an internal affairs board for alleged estafa, but i’m saving that for “part two” of this post.)

(In the interest of full disclosure: this blog is stating that the blog admin was in the legal team of the Special Prosecutor and some of his prosecutors in the plunder case. I am trying to be fair by saying that this article is based only on the documents available and i do not have first-hand knowledge of the professional relationships or the situation inside her office).

It is bad enough that the Ombudsman is losing cases at the rate of 8 out of 10.

The online newspaper, www.abs-cbnnews.com uploaded copies of the internal memos as pdf files (abs-cbnnews.com wins the award for recognizing the importance of primary sources and uploading them as pdf files such as decisions in cases of public interest, vital resolutions, orders, etc. Good work.), including a report from the Office of the Special Prosecutor summarizing the “batting average” of the prosecution.

According to the report prepared by the supervising administrative officer of the Office of the Special Prosecutor entitled “Sandiganbayan Decided Cases for Year 2008, covering 12 months, as of July 7, 2008:

Out of a total of 97 cases decided by the Sandiganbayan, the prosecution lost 83 cases (acquittals) and won only 14 cases (convictions).

83 losses out of 97 means roughly, out of 9.7 cases (or 10 cases), the Ombudsman is losing 8.3 cases ( or 8 cases). When you ask her what her batting average is and she answers 8 out of 10, you have to clarify: Wins? No, losses. In other words, the Ombudsman’s batting average is 1.4 wins out of 9.7 or roughly 1 out of 9; losing the 8 others.

Normally, in a private law office, if you’re losing 8 cases out of 9 or 8 out of 9.7; you will be….fired! Or transferred to the Slovenia branch of the law office. Here of course in the Philippines, nobody holds the Ombudsman accountable, Congress is not doing anything; because by protecting her, they protect themselves. Glasshouses.

Now, the figures do not even include Informations (cases or formal charges) dismissed before or after arraignment (without prejudice and with prejudice) and cases dismissed on demurrer; in other words, the record may be far worse.

One of the series of memos fired off by the Ombudsman is a gag order (i will write about the other memos in “part two” of this post) on her prosecutors in a memo of June 17, 2008 entitled “Media Interviews and Press Releases”, to all her employees, to quote:

Quote “For purposes of the orderly administration of the functions of the Office of the Ombudsman, and towards enhancing the effectiveness of the OMB in the performance of its functions, it is hereby ordered that henceforth all media interviews and press releases of the OMB, including offices within it, shall be handled by Assistant Ombudsman Jose Tereso de Jesus and Assistant Ombudsman Mark E. Jalandoni.

Quote “If there shall be a need for sectoral offices to conduct media interviews or issue press releases, to avoid making statement/s that may be haphazard, or capable of different interpretations, or of being misquoted, such conduct of interviews or issuance of press releases shall be done only upon prior clearance or approval of Assistant Ombudsman Jose Tereso de Jesus depending on the subject matter of the interview/s or press release/s, and in which event, said authorized person shall be thoroughly briefed on the details of the intended subject of interview or press release.

Quote “For immediate compliance.

“(SGD) MA. MERCEDITAS N. GUTIERREZ

“Ombudsman” closed-quote.

In other words, if any of the prosecutors is asked by a reporter about the status of his/her case, cases that are of public interest because all graft cases against public officials are matters of public interest, he/ she is now allowed to as much as make a peep without getting the permission of the assistant of the Ombudsman.

Usually, in a law office or a legal office, the handling lawyer or the legal team handling the case, or any member of it, is authorized to give public statements about the case on aspects of public interest; since it is the handling lawyer who knows all the facts of the case, studied all the legal issues involved, interviewed the witnesses, scrutinized the documentary evidence, attended the case conferences, conducted or assisted in the conduct of the direct or cross, etc. So, it is the handling lawyer (or member of the legal team handling the case) who is in the best position to know what to disclose or not disclose. You don’t usually farm out or contract out the task of giving public statements to a lawyer outside of the handling lawyers. If the supervising lawyer (or the Ombudsman) does not trust her handling lawyers enough to decide what public statements to give, she should remove them from the case; because this is what the order is all about: It is a manifestation, or an expression, of distrust of your own handling lawyers.

More important, all the cases being prosecuted by the Office of the Ombudsman are matters of public concern and utmost transparency is required. What’s with the prohibition on prosecutors giving media interviews? What’s going on in the Office of the Ombudsman?

The gag order is in writing; if any of the prosecutors gives a media interview without clearance, or if with clearance, strays off the topic, he/she is in danger of being charged with insubordination; for not obeying the memo. What is going on in the Office of the Ombudsman?

(to be continued)

Photo by Kenneth Garreth. A Satellite Dish Silhouetted against the Northern Lights. Used here for educational, non-commercial purposes, free service by blog-use of image provided by and from www.allposters.com

The Office of the President got correct legal advice in two instances in the last two weeks on the handling of Sulpicio Lines. In other words, the correct legal advice steered it away from constitutional law issues or from committing unconstitutional acts (exercise of powers it does not have, or violating constitutional provisions).

This is not to say however that its administrative agencies, or the offices under it, have been doing their job as mandated by law, all this time to prevent such tragedies.

For preventing the constitutional law troubles, the office this time got it right: She cannot unilaterally take over private business without proceedings if by eminent domain; or without legislative authorization if by emergency powers under Sec. 17 of the article on national economy and patrimony (Article 12, Constitution) or Section 23 (b) of the article on the legislature authorizing Congress to declare a state of national emergency (Article 6, Constitution). The article on the executive (or on the powers of the President), does not grant her the power to seize private property without proceedings (complaint, hearing, just compensation, if by eminent domain.); the Commander-in-chief powers provision grants her calling-out powers (to call out the armed forces), suspend the privilege of the writ with limits, declare martial law with limits; but not confiscatory powers (if by eminent domain, with proceedings.)

(at a Cabinet meeting yesterday, the option of unilaterally taking over the Sulpicio Lines ships was discarded.)

It avoids but does not prevent. Its administrative agencies did not suspend the licences of Sulpicio Lines 20 years ago when 4,000 of its passengers perished in MV Doña Paz, the mother of MV Princess of the Stars.

In another instance, too, of correct legal advice, the Office of the President mooted all constitutional law discussions on the presence of USS Ronald Reagan by arranging for off-territory temporary non-aggressive prepositioning (for a few days only and subject to monitoring, i guess). It was able to avail of the “assistance” of the USS Ronald Reagan (i just put that in quotes because i haven’t seen the photos the fighter jets took or seen any reports on their missions), and at the same time, since the planes have enough jet fuel, to avoid having to tangle with the nuke-free provision of the Constitution by having the aircraft carrier, from which the jets took off, prepositioned (very temporarily, it is hoped) outside the territorial boundaries of the Philippines, or in the high seas. Pragmatic and lawful, only for now at least. (I just don’t know how the territorial boundaries were drawn, did they follow UNCLOS, ha-ha. but that’s a whole lot of discussion. Was it really in the high seas?)

However, still fresh from the 800 or more persons missing from the MV Princess of the Stars tragedy, over the weekend, two ships collided off the coast of Cebu. You would think that with the size of the ocean (it’s a really big place duh) the odds would be nil but because of the common sea lanes, the odds are there; the ships are supposed to just greet each other, as in Longfellow’s (pass each other) but in the Philippines, they run into each other literally. Because they’re blind (the blindness, i don’t know if literal or figurative. ( and don’t ask me why they’re blind.).

Sea tragedies from failure to get enough information, such as the MV Princess of Stars tragedy, are preventable according to experts if only the Philippines had been able to operate its GMDSS (our ex-GMDSS). (Collisions such as that of last weekend are preventable even without that equipment; but, again, ships in the Philippines are blind, again, don’t ask me why. ang kulit ko)

The Department of Transportation has grossly neglected acquiring basic equipment for monitoring the movement of storms, ships, hurricanes, tidal waves. From the Office of the President, here’s a three-year old report of a ten-year saga over the acquisition of a GMDSS (Global Maritime Distress and Safety System). Why is the acquisition of basic safety equipment by administrative agencies a long-running soap opera in this country? Why is it never considered an emergency purchase? Why was it never considered an emergency purchase for ten years? This, the President has powers over: an emergency purchase for the sake of sea travel safety to cut the red tape; but the Office never exercised it, never did anything. Why? Why is the purchase of basic safety equipment a never-ending zero-rating telenovela in these parts? Up to now, it is. No one is making a move. No one. But for the photo opportunities.

Here’s a page from the fanta-serye, a status report on the GMDSS from of the Office of the President three years ago (From http://www.medco.gov.ph/medcoweb/progprojl.asp)

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Project Details

Global Maritime Distress and Safety System (GMDSS)

Description:	Project involves the establishment of shore based facilities for GMDSS through the construction of Maritime Search Communications (MASARCOM) stations in 19 sites nationwide.
Scope:	Nationwide
Status:	Completed
Sector:	Infrastructure – Seaports
Locations:	Nationwide (Davao, Zamboanga, General Santos, Surigao)
Implementing Agency:	DOTC-CITC
Donor Agency:	French Protocol
Effectivity Date:
Closing Date:	08 July 2000
Grant (In Millions):
Loan (In Millions):
Mixed Credit (In Millions):
GOP Counterpart (In Millions):
Proposed Project Cost (In Millions):
Type of Assistance:	CA
Recent Updates:	As of March 2005: – The project is suspended due to unilateral suspension of the contract by the Contractor on 15 July 2000. – Several attempts were done by DOTC to encourage the contractor to come to the negotiating table but the demands required by them are not acceptable to DOTC without violating any legal laws. Higher interventions might be necessary to resolve the empasse. – Overall physical accomplishment is 70.29%. The implementation was suspended since July 2000. Works in Aparri, Real, San Jose, Surigao, Zamboanga and Cagayan de Oro substantially completed but no Provisional Acceptance Test (PAT) conducted. – The CITC Chairman has issued a Memorandum dated 8 December 2004, directing the CPMO to reactivate the GMGSS-PMO for the conduct of inventory of facilities and equipment installed and delivered by the Contractor. -DOTC is willing to terminate the contract as long as the terms and conditions of the Termination Agrrement would be mutually acceptable to both parties and without prejudice to the claims available to the government.