Whither the Ombudsman?

If there is a set of provisions in the 1987 Constitution which has largely proven inutile in this present political crisis, it is the provisions dealing with the Ombudsman.

Under the soon-to-be-mangled 1987 Constitution, one of the powers of the Ombudsman is to investigate any act or omission by any government official or employee which appears to be illegal, unjust, improper or inefficient.

If there is a time that the Ombudsman should be doing its job, that time has come to pass to investigate all these jueteng induced electoral fraud, jueteng infected public officials, the so-called jueteng Witness Academy and the so-called jueteng Witness Prevention Program.

But in all these hullabaloo, where is the Office of the Ombudsman and where is its head, Simeon Marcelo? As members of the peanut gallery during the Erap impeachment trial, we first witnessed Simeon Marcelo, a former partner of the Carpio Villaraza and Cruz Law Firm, GMA's private legal counsel which is derisively called the Firm, handle the direct examination of Gov. Chavit Singson. When the Office of the Ombudsman became vacant, GMA appointed Simeon Marcelo to head the office.

Nobody hollered when he was appointed and nobody sensed the appointment was improper. Under the 1987 Constitution, one qualification the Ombudsman must have is "proven probity and independence". But how could one possibly infer that Mr. Marcelo has proven his independence when as a partner in the Firm, their longstanding client is the First Couple and which relationship is shrouded or rather clouded by the attorney-client privilege.

Upon his appointment, Mr. Marcelo promised to remain independent from Malacañang. That promise is honored more in the breach than in the observance. If he was truly independent, Mr. Marcelo should have tackled the alleged anomalies committed by the President and brooked no running interference from any minion of Malacañang. The fact is the opposition can not trust the Ombudsman owing to his past association with the First Couple. The fact is his inaction is quite obvious that it renders itself a useless appendage of the 1987 Charter. The fact is his muted silence begs me to scream for the scrapping of the Ombudsman in the next Charter.

What we must have in lieu of an Ombudsman is an independent counsel who is not appointed by the president, who has fiscal autonomy and the mandate to investigate the president or other high officials without fear or favor and to call crime a crime.

In the impeachment trial of President Bill Clinton, the case against him was built up by the tenacious investigation of Team Kenneth Starr. At the time of his appointment, Kenneth Starr was a known Republican and a former solicitor general in the first Bush administration. In the Iran-Contra scandal during the Reagan years, the independent counsel was Lawrence Walsh, a judge who incidentally was a staunch Republican.

In both instances, the independent counsels that were tasked to investigate the alleged anomalies were not appointed by the president. That ensured impartiality and certainly, nobody accused them of being lapdogs of the president.

It is time to revisit the provisions on the Ombudsman. His probity and proven independence must exist prior to his appointment and must subsist beyond the four walls of the written charter. If the Ombudsman is to be an effective channel for cleansing and to make straight the paths for government officialdom, he must not hesitate to act even against his own masters especially when the highest law of the land bids him.

But if he cannot do so, Mr. Marcelo must do the noble act of relinquishing his post. Otherwise, what use is the Latin legal maxim "fiat justitia, ruat caelum” - Let justice be done though the heavens fall - when the price of justice can be bought by the sound of silence.