THE ARIAS DOCTRINE

The landmark case of Amado C. Arias vs. Sandiganbayan, G. R. No. 81563, has provided a
precedent that has inevitably caused the acquittal of almost all high-ranking government officials
charged before the Sandiganbayan for Violation of Republic Act Numbered 3019, Section 3,
paragraph (e). According to the Supreme Court in Arias:

"All heads of offices have to rely to a reasonable extent on their subordinates and on the good
faith of those who prepare bids, purchase supplies, or enter into negotiations. If a department
secretary entertains important visitors, the auditor is not ordinarily expected to call the
restaurant about the amount of the bill, question each guest whether he was present at the
luncheon, inquire whether the correct amount of food was served, and otherwise personally
look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be
some added reason why he should examine each voucher in such detail. Any executive head of
even small government agencies or commissions can attest to the volume of papers that must
be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting
papers that routinely pass through his hands. The number in bigger offices or departments is
even more appalling.

There should be other grounds than the mere signature or approval appearing on
a voucher to sustain a conspiracy charge and conviction" (Arias vs. Sandiganbayan, G. R.
No. 81563, December 19, 1989).

Section 3, paragraph (e) of R. A. 3019 provides as follows:

"SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:

XXX XXX XXX XXX

(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions."

[R. A. 3019, Sec. 3, par. (e)].

Ever since the Arias case, the Supreme Court has reiterated and upheld what has come to be
known as the Arias doctrine in subsequent jurisprudence up to the present time. As a result,
almost all accused indicted for Violation of R. A. 3019, Section 3 (e) have consistently set the
defense of the Arias doctrine. They all consistently claim that their administrative reliance on the
recommendations and actions of their subordinates have prompted them to approve the same.
In other words, they argue that they would not have manifested their approval of the transaction
involved by affixing their signature on the pertinent documents thereof were it not for the
favorable recommendation of their subordinate officials. This reliance on the actions of their
subordinates have come to be equated with good faith, and good faith is a defense in an
indictment for the crime of Violation of R. A. 3019, Section 3 (e), considering that it is committed
either by manifest partiality, evident bad faith, or gross inexcusable negligence.

In the case of Heremenegildo M. Magsuci v. Sandiganbayan, G.R. No. 101545, January

3, 1995, the Supreme Court, in reversing the Sandiganbayan's decision of conviction for the
crime of Estafa through Falsification of Public Documents, ruled thus: "(F)airly evident, however,
is the fact that the actions taken by Magsuci involved the very functions he had to discharge in
the performance of his official duties. There has been no intimation at all that he had
foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla.
Petitioner might have indeed been lax and administratively remiss in placing too much reliance
on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to
exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is
not the product of negligence but of intentionality on the part of cohorts.

Also, the Supreme Court went on to state, thus: We are not unaware of an
observation made by this Court in People vs. Rodis to the effect that a person may be so
held liable as a co-principal if he, by an act of reckless imprudence, has brought about
the commission of estafa through falsification, or malversation through falsification,
without which (reckless negligence) the crime could not have been accomplished, When,
however, that infraction consists in the reliance in good faith, albeit misplaced, by a head
of office on a subordinate upon whom the primary responsibility rests, absent a clear
case of conspiracy, the Arias doctrine must be held to prevail.

In another offshoot of the Arias case, Miguel M. Medija, Jr. v Sandiganbayan

G.R. No. 102685, January 29, 1993, the Supreme Court also reversed the finding of guilt
by the Sandiganbayan. The information in this case charged that Medija, conspiring and
confederating with his co-accused Rolando Manalo, caused undue injury to the
government through evident bad faith by certifying that a 2-piece set of chain assembly
for Fiat Allis Dozer No. 497232 supplied and delivered by his co-accused "okay as to
quantity and specification"; when in truth and in fact said set was only a rebuilt one, thus
making the government pay the amount of P136,800.00 which is the cost of a brand new
set of chain assembly. While the information charged "evident bad faith", the
Sandiganbayan found Medija guilty of "gross inexcusable negligence". Thus, respondent
court discussed Medija's liability as follows:

"Accused Medija is a licensed Mechanical Engineer and, as such, he is expected

to be in the position to know that strict specifications are required for the equipment to
suit their intended purpose, and that the checking of whether such specifications are met
is part of the overall inspection process which he was particularly tasked to do in
connection with the acceptance of the chain assembly. In addition, the fact was that the
spare part he was to examine was of a very high cost (P136,800.00), as indicated in the
Inspection Report which he saw during, and which he signed after, his inspection.
Equally significant was the fact that the bulldozer, for which the chain assembly was
intended to be used, cost even more, and this should have, therefore, caused the
accused to assume a much more critical posture in inspecting the chain assembly set in
question. The combination of all these facts required the accused Medija to be very
careful and very thorough in the inspection of the chain assembly. However, he not only
failed to exert extra effort to this end; he dispensed with even the simple procedural
requirements given for ordinary inspection. The accused was, therefore, beyond doubt
grossly negligent in his inspection of the chain assembly. "In the case of public officials,
there is negligence when there is a breach of duty, or failure to perform an obligation,
and there is gross negligence when a breach of duty is flagrant and palpable." (Juan v.
Arias, 72 SCRA 404, p. 410). The negligence of the accused in the case is
unquestionably palpable." said respondent Sandiganbayan.

Also, the information charged conspiracy. But, significantly, the decision of respondent
court is silent on this point. The Supreme Court went on to state that, in Gomez v.
Intermediate Appellate Court (135 SCRA 620 [1985]) it stated:

“... that conspiracy must be established by positive and conclusive evidence. It cannot
be based on mere conjectures but must be established as a fact. The same degree of
proof required to establish the crime is necessary to support a finding of the presence of
conspiracy that is, it must be shown to exist as clearly and convincingly as the
commission of the offense itself."

To establish conspiracy, there must be evidence of intentional participation in the

transaction with a view to the furtherance of the common design or purpose. (People v.
Agda, 111 SCRA 330 [1982]). His knowledge of the conspiracy and his active and
knowing participation therein must be proved by positive evidence.

In the case at bar, no evidence was presented by the prosecution to prove that
Medija was indeed a part of a conspiracy to defraud the government. Apparently, the
Supreme Court stated, the main and only reason for the judgment of conviction is the
"certification" of Medija. On the basis of this "certification", respondent court concluded
that the government paid the amount of P136,800.00 to the supplier. In other words, it
was the finding of respondent court that without the "certification" of Medija, the
government would not have paid this amount or should not have paid the supplier at all.

We are constrained to reverse respondent court's finding and to rule that this kind
of evidence is too conjectural and presumptive to establish personal culpability. On the
contrary, the evidence on record shows that the "certification" was not the reason for the
payment. It was established that on March 25, 1985 Medija actually saw and inspected
the subject chain assembly, but it was Orlando Villanueva, the Supply Officer, who
prepared the report and accepted the delivery of the parts. Under the heading
"Findings/Recommendations", Medija wrote the words "O.K. as to quantity and
specification" which meant, according to him, that the spare parts were intended for a
Fiat-Allis bulldozer as far as the specifications were concerned, and that they were of the
correct number of pieces. Aside from his signature on the inspection report, there was no
other paper upon which accused had affixed his signature.
 The Supreme Court made the foregoing observations when it also made a positive
finding that on March 26, 1985, OIC Severino Labio of NIA, Zamboanga City requested
Civil Engineer Charles Bulac, of the COA, Zamboanga City, Region 9 to conduct a post-
audit examination of the subject chain assembly. As the instruction was written and
required Engr. Bulac to make a report and recommendation thereon, Engr. Bulac
complied and in his written report dated March 26, 1985, he found that the delivered
chain assembly is not brand new and not yet complete. OIC Labio communicated with
the supplier, accused Rolando Manalo who promised to replace the chain assembly.
Despite the findings of Engr. Bulac and the failure of Rolando Manalo to replace the
chain assembly, the check for its payment was prepared on March 29, 1985 and the
rebuilt chain assembly was delivered to Molave, Zamboanga del Sur on March 30, 1985.

Sadly, the Supreme Court merely found premium in its surmise that there is
nothing in the record to show that Medija had any participation in the preparation of the
check and in the delivery of the chain assembly. Respondent court, it said, without any
clear factual basis for doing so, has assumed that Medija was part of an illegal scheme.
It could not also be said, in the light of the evidence on record, that had Medija not made
the "certification" the government would not have been defrauded. In the first place, why
did NIA pay the supplier, when it already knew beforehand that the chain assembly
delivered was not brand new? True, in making the inspection, Medija should have been
more careful. His lack of care, however may be a ground for administrative action, but it
does not give rise to criminal culpability absent more evidence against him. There should
be other grounds than the mere "certification" to sustain a conspiracy charge and
conviction thereunder. All this reasoning of the Supreme Court was made despite its
clear finding above-mentioned that the chain assembly purchased was not brand new,
contrary to the certification of Medija. Instead, the Supreme Court advances the
questions: Was Medija part of the planning, preparation and perpetration of the alleged
conspiracy to defraud the government? Did Medija profit from this illegal scheme? The
evidence on record is certainly very much wanting on these points.

The transactions subject of the case where the Arias doctrine was applied range
from scenarios wherein approval of anomalous contracts involving millions of pesos with
private contractors and suppliers where there was rigged bidding resulting in overpricing
of the contract price, to occasions wherein approval of purchases involving "ghost
deliveries" of supplies. Of course, it cannot be refuted that undue injury was incurred by
the Government, but those who get convicted are the low-ranking government officials
who signed the disbursement vouchers and their supporting documents med as the bids
documents, the award to a particular private contes such or supplier, the purchase
request, purchase order, and the delivery receipt.

The heads of offices in cahoots with their subordinates and the private
contractors and suppliers from the inception of the transaction go scot-free. What's
more, it is, most often than not, the heads themselves who actively push for the
consummation of shadowy deals. Alas, their acquittal is premised on the Arias doctrine.
 The Arias doctrine has become a constant nemesis of prosecutors of the Office
of the Special Prosecutor (OSP) of the Office of the Ombudsman in cases involving
Violation of R. A. 3019, Sec. 3 (e) before the Sandiganbayan, the special anti-graft court,
and cases involving the aforesaid crime comprise a considerable number of cases in the
dockets of the Sandiganbayan.

Does this mean that high government officials should be exonerated just
because they have to contend with a lot of papers that pass through them everyday?
This is tantamount to condoning graft and corruption. The high-ranking officials all but
have to do is to invoke the Arias doctrine.

On this score, the Arias doctrine should very well be revisited.

Presently, there is a pending case before the Sandiganbayan involving the

President Diosdado Macapagal Boulevard scam wherein more than P800 Million was
paid for a mere 2.3 kilometer stretch of road Almost all the accused invoke the Arias
doctrine, contending that they relied on the recommendations of the low-ranking
engineers of the Public Estates Authority and the Commission on Audit. The
Sandiganbayan aptly ruled in resolving numerous motions to quash that mere reliance
on the ruled recommendations of subordinate officials cannot be countenanced if the
amount involved constitutes a sizable amount which requires more circumspection on
the part of the accused high-ranking officials Hereunder quoted is the portion of the
Resolution of the Sandiganbayan adverted to, viz:

"The case of Arias v: Sandiganbayan (180 SCRA 309) cited by accused-movant

(Villanueva) is not applicable to this case. The significance of the project, the huge
amount of money involved in the transaction in question, and the alleged patent
irregularities on the face of the PDMB Project, brings this case outside the warranted
reliance by heads of offices 'to a reasonable extent on their subordinates and the good
faith of those who prepare bids, purchase supplies or enter into negotiations' enunciated
in the Arias case."

This matter has been brought up to the Supreme Court which rightfully affirmed
the stand of the Sandiganbayan. The Supreme Court, however, did not rule squarely on
the Arias doctrine, rather it merely found that the Sandiganbayan did not act with grave
abuse of discretion amounting to lack or excess of discretion in the numerous petitions
for certiorari filed by numerous accused whose motions to quash were denied by the
Sandiganbayan grounded on, among others, the Arias doctrine.

At any rate, as mentioned above, the provisions of R. A. 3019, as amended,

particularly Section 3, paragraph (e.) should also be revisited. The terms "manifest" in
manifest partiality, "evident" in evident bad faith, and "gross and inexcusable" in gross
and inexcusable negligence serve as all-encompassing defenses for high-ranking
officials in washing their hands from shenanigans in government transactions with the
pretext that their mere signatures appearing on government transaction documents do
not exhibit "manifest partiality, evident bad faith, and gross and inexcusable negligence".
 Corruption is a crime that is not committed before the open and scrutinizing eyes of the
public but is done in secret.

LACK OF RESOURCES

The prosecutors in the OSP are undermanned. The situation becomes even more mind-
boggling when we consider that OSP prosecutors prosecute cases involving government
officials and employees from all over the country.

This lack of personnel is shared by the Fact-Finding and Intelligence Bureau (FFIB) of
the Office of the Ombudsman which was equipped with barely about 30 investigators to gather
evidence and build cases covering the entire country. They used to have only 1 camera for
surveillance purposes, worse, it was the kind used at family picnics. They lacked official vehicles
so they would just have to use their personal vehicles shelling out their own money for gasoline.

The lack of manpower is also a burden to contend with as regards the investigators
(GIPOs) in the other offices of the Office of the Ombudsman conducting investigations and
administrative adjudications. Generally, there has been a high PIAB investigator workload
averaging at 90% annually in the Central Office from 1993 to 2002.

INVESTIGATOR WORKLOAD CAPACITY (Central Office)

(Based on statistical extrapolations made on the annual workload and the actual outputs
of the 68 existing PIAB Investigators with clearance rate at 34% for criminal and 40% for
administrative cases, respectively)
 Average disposition rate is high, registering 107% annually, but average clearance rate
is very low at an average of 25% annually.

OMB receives grievances and requests for assistance, in any form or manner, and
assists complaints in formulating their grievance or complaints. An annual average of 12,267
client requests were received from 1999-2003. OMB disposed/ attended to an annual average
of 9,520 requests (78%) for the same period.

There is a lack of meaningful independence of the Office Determination of the annual

budget ceiling and detailed breakdown is still subject to negotiation both in the executive and
legislative branches. Budget release is not automatic and regular as provided in the
Constitution. Internal administration of the Office of the Ombudsman is assumed by the
Department of Budget and Management. There is a lack of protection and security mechanisms
for investigators and prosecutors. Low and uncompetitive salaries of investigators and
prosecutors make them vulnerable to economic temptations.

Severe deficiencies exist in case management, performance management systems,

and technology. There is poor monitoring status of cases with deputized DOJ prosecutors, poor
monitoring status of cases in lower courts, poor case management system within the Office of
the Ombudsman, and there is a need for considerable investments in information technology.

There is a need to integrate and harmonize the processes among the following systems
public assistance, b) field investigation, c) preliminary investigation, and d) prosecution by
process re-engineering and adoption of an integrated and computer-aided case management
and information system.

There exist serious accessibility issues in the Office of the Ombudsman. There is an
absence of geographical accessibility. The public is not informed of the services of the Office of
the Ombudsman, nor is there information accessibility for the public on matters relating to the
Office of the Ombudsman.

The foregoing problem can be addressed by a well-designed combination of responses:

face to face geographical access (structural), information technology interface, use of media,
and a network of partner non-governmental organizations.

The ratio of technical positions to administrative support is 1:1.4, which may indicate
inefficiencies and implications on human capacities to perform mission-critical functions. Ratio
of support to technical positions to technical is 1:3.
 Low clearance and high dismissal rates in investigation and prosecution functions of the
Office of the Ombudsman may also be indicative of the need to enhance the competency of the
OMB staff.

There is a need for a more comprehensive institutional re- engineering of the Office of
the Ombudsman. There is also the need for a more comprehensive and sustained human
resource development program. Further, there is a need for a more sophisticated information
system and investigation tools and technology.

In more legally progressive countries, the prosecutor gets involved right from the very
inception of fact-finding and case build-up. The police, the FBI, or other law enforcement
agencies of the government work in close coordination with and under the constant supervision
of the prosecutors (in the U.S., they are termed as District Attorneys). This is for the purpose of
ensuring that proof beyond reasonable doubt will have been gathered and secured by the time
the case is filed with the courts, not just probable cause which is the case in the Philippine
jurisdiction. Hence, in countries like the United States, once a criminal case is filed in court, the
accused is as good as convicted, while, in our jurisdiction, there still exists a great possibility
that the accused will be acquitted.

Another variable in this sorry situation is the continuous flooding of cases from the Office
of the Ombudsman with the Sandiganbayan. There exists a quota system in the Evaluation and
Preliminary Investigation Bureau (EPIB) (now called Preliminary Investigation and Adjudication
Bureau or PIAB) and the area/sectoral offices of the Office of the Deputy Ombudsman for
Luzon, Visayas, Mindanao, and the Military (the latter renamed as Military and Other Law
Enforcement Offices or MOLEO). Performance ratings of Graft Investigation Officers (GIOS)
(now called Graft Investigation and Prosecution Officers (GIPOs) are based on this quota
system. As a result, GIOs resolve most of their cases in favor of the filing of criminal cases
before the Sandiganbayan to garner high ratings. The number of cases filed before the
Sandiganbayan are show- cased at the end of the year as satisfactory performance of the Office
of the Ombudsman. It gives the general impression to the media and the public that the Office of
the Ombudsman is doing its job very well. This is further highlighted in the annual reports of the
Office to Congress during the budget hearings to justify proposed increases in budgetary
allocations for the Office of the Ombudsman. This so-called "window- dressing", although it has
resulted in temporary benefit to the Office in terms of enhanced public perception, has inevitably
caused the dismissal of cases by the Office of the Special Prosecutor on motions for
reinvestigation filed by the accused or dismissal or acquittal of cases by the Sandiganbayan.
The dismissal of cases by the OSP is due, in large part, to the insufficiency or lack of evidence
to prove the guilt of the accused beyond reasonable doubt. The foregoing brings us to a vital
matter in the preliminary investigation of cases. During preliminary investigation, all the GIPO
has to look for is probable cause or reasonable ground for a prudent man to believe that a crime
has been committed and that the accused is probably guilty thereof. It is submitted that probable
cause should be for purposes of judicial consideration only, as well for the perception of those
outside the Office of the Ombudsman. Internally, however, it should be the primordial goal of the
GIPO to see to it that the evidence he gathers to form part of the records of the case and which
would eventually be presented by the prosecutor before the Sandiganbayan is proof beyond
reasonable doubt. The preliminary investigation should seek to build a case that can stand trial
and eventually cause the conviction of the accused. As it is at present, owing to the above-
mentioned quota system and the myopic consideration of the GIPO of probable cause, most
cases filed before the Sandiganbayan end up dismissed or acquitted. If dismissed or acquitted
by the Sandiganbayan, it is the Assistant Special Prosecutor concerned whose individual
performance is put to serious doubt and thereby suffers a negative assessment and criticism,
while the GIPO who conducted the preliminary investigation is no longer considered. This is
because of the mistaken notion that, once the case is filed with Sandiganbayan, the GIPO has
already completed his job as far as he is concerned. In the end, the performance of the Office of
the Ombudsman as a whole, including the GIPOs and the ASPs of the Office of the Special
Prosecutor shall be judged, not by the number of cases filed before the Sandiganbayan, but by
the number of cases subject of conviction by the Sandiganbayan. In short, it is the quality of
cases. and not their quantity, that should be of significant consideration. As of last count, the
conviction rate in the Sandiganbayan is only 40%.

Against all these odds, the Office of the Ombudsman doggedly continues combating
graft and corruption in the country. The question is: are we winning the war against graft and
corruption?

According to a recent report by the Philippine Information Agency (PIA), we are winning
the war against corruption. According to the PIA, in 2005, 33% of cases in the Sandiganbayan
were won by the Office of the Ombudsman. Only 16% were won in 2001. This reflects gains in
the war against corruption.

BANK SECRECY LAW

` A major stumbling block in the covert investigation of corruption cases is the prohibition
by the Bank Secrecy Law to open the accounts of a public official or employee suspected of
corruption and ill-gotten wealth Republic Act 1405 provides that deposits in banks, including
government banks can not be inquired into by any person, except in the following cases:

1. Where the depositor consents in writing;

2. Impeachment cases;

3 By court order in bribery or dereliction of duty cases against public officials, and

4. Deposit is subject of litigation.

The Supreme Court, in PNB v. Gancayco (16 SCRA 92), added, by analogy, the
exception of anti-graft cases and therefore, in effect, amended P.D. 1405. It is to be noted,
however, that such disclosure of bank deposits is only upon order of the court wherein an anti-
graft case is pending similar to the exception regarding bribery and dereliction of duty, and not
during the investigation stage prior to a charge filed before the court. (P.D. 1792 added two
more exceptions: (1) a general or of special examination of a bank authorized by the Monetary
Board after t being satisfied that a bank fraud or serious irregularity has been or is being
committed and it is necessary to look into the deposit to establish of such fraud or irregularity,
and (2) when re-examination is made by an independent auditor hired by the bank to conduct its
regular audit).

In Marquez v. Desierto, (359 SCRA 772), the Fact-finding and on Intelligence Bureau
(FFIB) of the Office of the Ombudsman was conducting an investigation on Amadeo Lagdameo,
et. al. for violation of R.A. 3019, Section 3 (e.) and (g.) relative to the Joint Venture the
Agreement between the Public Estates Authority and AMARI. In the course of such
investigation, the Office of the Ombudsman ordered petitioner Lourdes T. Marquez, a branch
manager of Union Bank of the Philippines, to produce several bank documents for purposes of
inspection in camera relative to various accounts maintained at Union Bank, Julia Vargas
Branch. The Office of the Ombudsman was in the process of following a trail of manager's
checks purchased by one George Trivinio. It would appear that Mr. George Trivinio purchased
51 Manager's Checks (MC's) for a total amount of P272.1 Million at Traders Royal Bank, United
Nations Avenue branch on May 2 and 3, 1995. Out of the 51 MC's, 11 MC's in the amount of
P70.6 Million were deposited and credited to an account maintained at the Union Bank, Julio
Vargas branch. The Supreme Court ruled that "before an in camera inspection may be allowed,
there must be a pending case before a court of competent jurisdiction. Further, the account
must be clearly identified, the inspection limited to the subject matter of the pending case before
the court of competent jurisdiction" (Marquez v. Desierto, 359 SCRA 781). "In short, what the
Office of the Ombudsman would wish to do is to fish for additional evidence to formally charge
Amadeo Lagdameo, et. al. with the Sandiganbayan" (Ibid., 782). But how could the Office of the
Ombudsman build its case if they merely file it before the court on mere speculation as to a trail
of checks without having thoroughly inspected the same. To negate such authority would be
leaving the Office of the Ombudsman with absolutely little or no powers as far as investigation of
ill-gotten wealth or tracing the source of illegally acquired millions of pesos. How can we solve
cases of corruption if we were to wait until an Information is filed before the Sandiganbayan and
only then apply for on order for the inspection of bank documents. It is virtually putting the cart
ahead of the horse. By this time, the suspect subject of the investigation would have already
made the necessary steps to conceal the proceeds of corrupt acts and when the time comes for
the prosecution to present its evidence, they would only have peripheral evidence to prove the
amounts received from shady deals, eventually leading to the dismissal of the case on demurrer
to evidence, or to prolong the agony of the prosecution, the eventual judgment of acquittal
based on insufficiency of evidence.

It is quite clear as asserted by the respondents in the foregoing case that R.A. 6770,
otherwise known as the Ombudsman Act of 1989, particularly Section 15 thereof provides,
among others, the following powers, functions, and duties of the Ombudsman, to wit:

XXX XXX XXX

 (8) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in
any investigation or inquiry, including the power to examine and have access to bank
accounts and records;

(9) Punish for contempt in accordance with Rules of Court and under the same
procedure and with the same penalties provided therein.

Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the
Secrecy of Bank Deposits (R.A. 1405) and places the Office of the Ombudsman in the same
footing as the courts of law in this regard.

As will be shown below, the Independent Commission Against Corruption (ICAC) of

Hong Kong, the Ministry of Justice of Japan, and the Independent Commission Against
Corruption (ICAC) of Australia all have the authority to demand the disclosure of bank accounts
of persons under investigation. This is equally true for the Federal Bureau of Investigation (FBI)
of the United States. In fact, Jeff Cole, representative of the United States Department of Justice
in the U.S. Embassy in the Philippines, while speaking as visiting resource person during the
Trial Advocacy Skills Development Course of the Office of the Ombudsman conducted by
USAID in December 2003, said the investigation situation in our country was unbelievable.
"How can you expect to crack a corruption case when you can't even open the bank accounts
of suspects?!" he said.

Sen. Mar Roxas said he intends to file a bill shortly that would allow the Ombudsman to
look into the bank accounts of public officials without having to apply for a court order. The
neophyte senator's bill would empower the graft hunters in government to go after corrupt
officials hiding behind the Bank Secrecy Law, which requires court approval before questionable
bank deposits could be opened to scrutiny. As if the bill was not enough to trigger an uproar
among its target officials and bureaucrats, Roxas has a parallel measure to go with it: He said
elected or appointed officials should be required by law to "waive their right le the confidentiality
of their bank accounts." Roxas bared the planned legislation following Pres. Macapagal-Arroyo's
State of the Nation Address in which she called for arming the Ombudsman with powers similar
to the Hong Kong’s Independent Commission Against Corruption. The Hong Kong agency was
able to eradicate the corruption that had been widespread in the Chinese territory (Nocum,
2004).

An additional exception to the Bank Secrecy Law has been created Under Section 11 of
the Anti-Money Laundering Act (AMLA) or Republic Act No. 9160, as amended by Republic Act
No. 9194, bank deposits may now be examined even in the absence of a court action involving
the money contained in the said account (Tirol, 2004).

For the Anti-Money Laundering Council (AMLC) to inquire into bank deposits, it must
satisfy the two requisites laid down in the AMLA: (1) it must prove that probable cause exists
that the funds are related to any of the predicate crimes enumerated in section 3(i) or to a
money laundering offense under Section 4 of the law, and (2) it must secure the appropriate
court order permitting it to conduct the necessary investigation. To accomplish these
requirements, Section 2, Article III of the Constitution relating to searches and seizures must be
complied with, because the information may be utilized for criminal investigation and
prosecutions (Ibid.).

Thus, the application for authority to inquire into a bank deposit authorized by the first
paragraph of Section 11 of the AMLA must be in the nature of a search warrant, which under
Section 2, Article III of the Constitution, cannot be issued except "upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized" (Ibid.).

Under Section 11 of the AMLA, the AMLC can dispense with the requirement of a court
order to enable it to examine a suspect bank account by alleging that the target bank deposit is
related to the unlawful activity of kidnapping for ransom, violations of the Comprehensive
Dangerous Drugs Act of 2002, hijacking, destructive arson, or murder. This is because the
AMLC may, without need of a court order, examine bank accounts suspected of containing
funds from these predicate offenses (Ibid.).

To examine these accounts, the AMLC will only need to issue a Resolution authorizing
the inquiry into or examination of any deposit or investment with such banking, or non-banking
financial institution and their subsidiaries, and affiliates concerned. Upon receipt of the AMLC
Resolution, the financial institution in question is required to give the AMLC and/or its authorized
representative(s) full access to all records pertaining to the deposit or investment account
(Ibid.).

The examination of accounts suspected of containing the proceeds of kidnapping for

ransom, dangerous drugs, hijacking, destructive arson, or murder through the authority of a
AMLC Resolution and not upon court order constitutes an exception to the requirement of a
search warrant. But while these examinations are exceptions to the general rule, these must still
be based on probable cause (Ibid.).

Viewed from a law enforcement perspective, the Anti-Money Laundering Act provides
government investigators with new tools to trace, identify, and confiscate laundered funds and
their hiding places. By specifically requiring banks and other financial activities and transactions
undertaken by their depositors and/or clients, these institutions, especially the banks, have been
transformed from being passive actors into active, legally mandated participants, and hence the
state's deputies, in the campaign to investigate and prosecute money laundering (Ibid.).

Whether or not these covered institutions are enthusiastic participants in this exercise
remains to be seen. Nevertheless, the AMLA has established a new method of inquiring into the
financial privacy of the clients of these financial institutions (Ibid.).

While the AMLA has complied with the standards of the FATF, it is important to
determine whether or not the information that covered institutions are legally obligated to
disclose to the law enforcement agencies of the right to privacy enshrined in the Bill of Rights.
Questions concerning the harmony of the AMLA with the constitutional right to privacy and the
related rights against self-incrimination and unreasonable searches and seizures must be
addressed. Because corporate or bank record keeping of individuals' transactions may reveal a
substantial amount of information about individuals' activities and associations, there is a need
to examine how the AMLA affects the right to privacy of individuals (Ibid.).

In the Philippines, the right to privacy is guaranteed by and enshrined in Article III,
Section 3 [1] of the Philippine Constitution, which provides that:

"The privacy of communication and correspondence shall be inviolable except upon

lawful order of the court, or when public safety or order requires otherwise as prescribed by
law."

Through this constitutional provision, according to Tañada and Fernando, "there is a

recognition that persons may communicate and correspond with each other without the state
having a right to pry into such communication and correspondence, limited only by the lawful
order of the court and the requirements of public safety and order (Ibid.).

The right to privacy is a basic human right. It is found in Article 12 of the Universal
Declaration of Human Rights, Article 17 of the United Nations Covenant on Civil and Political
Rights, and Article 8 of the European Convention for the Protection of Human Rights and
Individual Freedoms. The International Convention of Jurists, in their meeting in 1967 in
Stockholm, recommended that "all countries take appropriate measures to protect by legislation
or other means the right to privacy in all its different aspects and to prescribe civil remedies and
criminal sanctions required for its protection" by defining privacy as "the right to be let alone to
live one's own life with minimum degree of interference" (Ibid.)

In 1978, the U.S. Congress passed the Right to Financial Privacy Act essentially in
reaction to the U.S. Supreme Court's 1976 ruling in United States v. Miller. The RFPA requires
that federal government agencies provide individuals with notice and opportunity to object
before a bank or other specified institution can disclose personal financial information to a
federal government agency, often for law enforcement purposes (Ibid.).

The RFPA states that "no Government authority may have access to or obtain copies of,
or the information contained in the financial records of any customer from a financial institution
unless the financial records are reasonable described" and

1. the customer authorizes access;

2. there is an appropriate administrative subpoena or summons;

3. there is a qualified search warrant;

4. there is an appropriate judicial subpoena; or

5. there is an appropriate written request from an authorized government authority.

However, there are classes of exceptions in which certain financial records are not
protected by the Act. In these situations, disclosure by a financial institution is always permitted,
and no authorization, subpoena, or warrant is required, to wit:

1. Class 1: Disclosure that do not identify a particular customer.

 2. Class 2: Disclosures in the financial institutions interest, including perfection of
security interests, government loans, loan guaranties and loan insurance, as well as disclosures
that are relevant to possible violations of law.

3. Class 3: Disclosures in connection with supervisory investigations and proceedings.

When a supervisor agency investigates a financial institution, the rights of customers are not at
stake, and therefore such disclosures are permissible under the Act.

4. Class 4: Disclosures under the tax privacy provisions.

5. Class 5: Disclosures pursuant to other federal statutes or rules, administrative or

judicial proceedings, and legitimate functions of supervisory agencies.

6. Class 6: Emergency disclosures and disclosures to federal agencies charged with

foreign intelligence or counterintelligence or other national security protective functions.

U.S. federal officials boast of a growing partnership between the banking industry and
law enforcement. But this partnership may not be entirely voluntary, because uncooperative
banks risk being fined or having their charters revoked. Furthermore, the USA Patriot Act
effectively requires the employees of financial institutions to become detectives and law
enforcement officers, on pain of criminal prosecution and with a fine of up to $1 million per
transaction if they fail to uncover terrorists (Ibid.).

Like the AMLA, current U.S. anti-money laundering statutes merely require that a search
be conducted on a "legitimate law enforcement inquiry" - a standard that is more relaxed and
less stringent when compared to the probable cause standard. Information gathered in the
United States based on such standard may be used to obtain sufficient facts from which to
establish probable cause, enabling a full-scale search and seizure of an individual's financial
records (Ibid.).

Privacy can be a good cloak to be treasured and defended, a cloak for evildoing, a
necessary condition for otherwise unacceptable actions and many other things besides (Ibid.).

ANTI-WIRE TAPPING LAW

Applying the same reasoning in the previous sub-topic, the Anti- Wire Tapping Law
prevents the application of modern and effective investigation of suspicious government
transactions and government officials and employees. Unlike its above-mentioned counterparts
in the United States, Hong Kong, Japan, and Australia, the Office of the Ombudsman's hands
are tied during the covert investigation of suspected public officials and employees due to its
inability to secretly intercept telephone conversations in the conduct of clandestine
investigations.

Telephone interception has been conducted by the U.S. and a host of other countries for
about three decades now. This has greatly aided their covert investigations of various crimes,
bribery and corruption included. Although one may argue that telephone intercept may seem to
be a violation of the right to privacy, no less than the U.S. government, a staunch defender and
supporter of human rights and liberal democracy, has not only allowed but spearheaded and
initiated the use of telephone intercept as an indispensable tool for crime detection. In fact, it
has improved the required technology over the years along with the use of recording devices,
both audio and video, on undercover policemen and deep penetration agents. The ICAC of
Australia now even has the technology to intercept SMS text messages and has been able to
build strong cases for prosecution of erring government officials.

Meanwhile, our poor country has been left behind in criminal detection breakthroughs.
While the right to privacy may have been supposedly protected by the Anti-Wire Tapping Law,
all the big-time crime syndicates, corrupt government officials included, continue their nefarious
activities in defiance of the rule of law leading to eventual economic and fiscal crisis and moral
degeneration. It is humbly submitted that our nation's survival and the economic uplift of those
who have less in life resulting from the eradication of corruption should take center stage viz-a-
viz the right to privacy. After all, police power, one of the inherent powers of the State is to be
exercised for the greater welfare of the people. Salus populi est suprema lex. By this power, the
State may regulate the rights of its citizens for the purpose of achieving public order and
welfare. It is textbook truth that police power, as against the other two inherent powers of
eminent domain and taxation, prevails over the Constitution precisely because, as stated in
Latin above, the welfare of the people is the supreme law. The Anti-Wire Tapping Law should be
applied only to the malicious abuse of wire- tapping technology for purposes not in the
furtherance of the public interest.

In the United States, the Omnibus Crime Control and Safe Streets Act of 1968 (United
States Code, Title 18, Part 1, Chapter 119) allows law enforcement agencies to conduct
telephone interception upon grant of an application therefor before the court with requirements
similar to those for the issuance of a warrant of arrest. The crimes for which telephone intercept
may be applied for include extortion, bribery of public officials and witnesses, violations with
respect to racketeer influence and corrupt organizations, and any conspiracy to commit any of
the foregoing offenses.

As originally proposed in the constitutional convention in 1934, the inviolability of the

privacy of communication and correspondence could only be infringed upon lawful order of the
court. There was some concern expressed in the debates over the slowness of the judicial
process in dealing with subversive literature in the mails. But delegate Jose P. Laurel staunchly
maintained that even in dealing with communist propaganda, resort to the court would still be
necessary to justify infringement of the right. But the Committee on Style introduced an
alternative clause. The provision as finally approved reads:

"(5) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court or when public safety and order require otherwise."

The words introduced after "court" attenuates the guarantee and withdraws much of the
significance of the protection originally intended. Since the provision does not indicate how the
requirement of public safety and order shall be determined and used the disjunctive "or", it must
be concluded that the original requirement of a lawful order of the court has been relaxed and
authorities other than a court may exercise the power to decide if public safety and order require
interference with communication and correspondence. Under the Constitution, the
Commissioner of Posts may open letters, the NBI or other police authorities could tap
telephones and use other electronic devices for surveillance when they think the public safety
and order require it. This can be restricted by legislation, like the Anti-Wire Tapping Act, but what
Congress has enacted it can amend or repeal (Cortes, 1970).

By the inclusion in the constitution of the provision making has al inviolate

communication and correspondence our framers forestalled the problems caused by its
omission in the United States Constitution being and the tortuous path the court decisions had
to take for almost three may i decades (Cortes, 1970).

Invasions of privacy by wire tapping are far more insidious and extensive then actual
physical intrusion. When a telephone is tapped, along with other conversations privileged
communications between husband and wife, attorney and client, doctor and patient can be
overheard and recorded. The intrusion can be widespread unless restricted. Thus, when the
Anti-Wire Tapping Bill was discussed in the House of Representatives in 1962, one of its
sponsors informed the members of the House that all their telephones had been tapped; the
acting chief of the NBI admitted in a committee hearing that wire-tapping was 'practiced as a
conventional crime detection method" (Cortes, 1970)

The Anti-Wire Tapping Law approved in 1965 makes unlawful the tapping of any wire or
cable or the use of any device or arrangement to secretly overhear, intercept, or record any
private communication or politic spoken word, unless all parties to the conversation give their
permission or a court gives a written order permitting it. The crimes for which the court may
permit wire-tapping are enumerated. Except for kidnapping, these involve crimes against
national security (Cortes, 1970).

Under section 4 of the Wire Tapping Act, evidence obtained in violation of the law is
inadmissible in evidence in all proceedings whether judicial, quasi-judicial, legislative or
administrative. But while this excludes from evidence the fruit of any illegal wiretap or recording,
it does not prevent police and other intelligence authorities from employing the leads an illegal
wiretap may yield, to obtain other evidence against the person or groups under surveillance.
Against this the Anti-Wire Tapping Act affords no remedy.

When a complaint against a high-ranking official is made or there is suspicion regarding

shenanigans in government against a powerful official, what the Office of the Ombudsman
presently does is to either send an investigator to ask around or it issues an order for the public
official concerned to explain his actions. By this time, the corrupt official has already been
alerted by such official actions of the Office and is in the position to cover his tracks. With the
Office of the Ombudsman being exempted from the provisions of the Anti-Wire Tapping Law, it
may investigate the official concerned without him being aware of it. He may even be caught
red-handed in the process. As in the countries mentioned above, the only practical recourse of
the suspect is to admit to his wrongdoing.

HIGHLY POLITICIZED JUDICIAL APPOINTMENTS

 The hilarious term "snow-paking" is peculiar only to the Philippine judicial system (just as
the term "salvaging" is only used and understood in the Philippines to mean "to kill"). Almost
every lawyer in this country knows that it means the literal "snow-paking" of names in the list of
nominees (also popularly dubbed as the "short list") forwarded to the President from the Judicial
and Bar Council for appointment to the position of justice or judge in Malacanang. Such practice
was done way back during the Marcos dictatorship when there were yet no computers and only
typewriters were used, and the names of unfortunate nominees were "snow-paked" from the list
of nominees. Only persons with strong political backing can make it to the desk of the President.
All the President's men, so to speak, flock and huddle around the President, each taking the
cudgels for a favorite nominee. In finally arriving at the ultimate choice for the vacant position,
the President weighs the pros and cons of political horse-trading and possible concessions.

This hurdle for judicial posts is joined in by practically everyone within the inner circle
and political party of the President, from Cabinet Secretaries to Senators and Congressmen to
Governors and Mayors to relatives and classmates to partners in the law firm closest to the
heart of the powers that be. Nothing would actually be wrong it the purpose of this practice is to
ensure the competence and integrity of the magistrate to be appointed but when it goes further
to ensure the faithful compliance by the lucky appointees to the wishes of Malacanang or the
patron (padrino in Spanish) in cases, current and future, or even past, this would be tantamount
to surrendering the independence of the Judiciary - the enshrined doctrine of separation of
powers - one of the main pillars in a liberal democracy.

It should not be forgotten that corruption is the abuse of power for private gain. The
practice of the Padrino system, as the old name of highly politicized appointments was called, is
actually taking advantage of power connections for the personal benefit of the person eventually
appointed due to such power. In other words, appointments of this sort, it is submitted, are
within the scope of the aforesaid textbook definition of corruption.

In the Philippine setting, it is not uncommon for an accused to make the necessary
liaisons with a friend of a friend of a friend of a magistrate to get what he desires. As will be
shown below, in Japan, the justices and judges are appointed by the Cabinet from a list of
persons nominated by the Supreme Court after a rigid training comprising 18 months. Only the
Chief Justice is appointed by the Emperor as designated by the Cabinet. Japan has a
parliamentary system of government.

To illustrate the effect of the Judiciary on the fight against corruption, Ombudsman
Simeon V. Marcelo ordered the suspension of a BIR lawyer who allegedly amassed
P20,992,216.95 in ill-gotten wealth in 22 years of service at the agency. Unfortunately, the Court
of Appeals issued a temporary restraining order stopping the Office of the Ombudsman from
implementing the suspension. In a resolution dated July 21, 2004, the CA's 4th Division recalled
its July 2 order and gave BIR Regional Director Nestor Valeroso another chance to contest the
order. The CA division, chaired by Associate Justice Godardo Jacinto, said it wanted to keep the
rule that every litigant be given the amplest opportunity in the determination of their cases based
on the merits.

Ombudsman Marcelo suspended Valeroso for six months without that the aged
unexplained wealth. months without pay on June 10, 2004 for alleged unexplained wealth. In
January, the Ombudsman found that the BIR collector failed to disclose several of his properties
and his wife's business interests in his SAL for 1995 to 2002 as required by law. Subsequently,
administrative charges were filed against Valeroso for dishonesty, falsification of public
documents conduct prejudicial to the best interest of the service. Valeroso failed to declare in
his SAL ownership of at least 3 pieces of property in Davao City, Butuan City, and Surigao del
Sur, which were registered under his and his wife's name. He also failed to disclose the
business interest of his wife as a lessor of a piece of real estate in Davao City. There were also
inconsistencies in Valeroso's income tax returns and his net worth for 1998 and 1999 which rose
by 119 and 150%, respectively (Aning, 2004).

According to the United States Agency for International Development (USAID), the
Philippine judiciary is widely seen as not functioning in a manner that promotes rapid and
transparent settlement of market disputes, and its level of training and professionalism in
dealing with both commercial and civil cases is poor. Arbitrary decision-making is rampant and
often impinges on the proper exercise of the executive branch's administrative authority.
Moreover, there is nothing resembling an effective judicial oversight system in place. Both cases
of tracking and judicial reviews are inadequate, and systematic training, both on principles of
sound judicial administration and on proper application of the rapidly evolving civil and
commercial law system is deficient. USAID is currently joining UNDP and World Bank efforts at
raising these issues with the government. Absent a serious commitment to reform, the Mission
does not anticipate major efforts in this sector. The Mission will continue to work outside the
formal government system to raise issues, support advocacy by business and other groups, and
provide limited training and technical assistance in specific human rights areas such as child
abuse (USAID/Philippines Anti-Corruption Plan, 1999)

Accountability requires not just establishing sanctions but enforcing them on an impartial
basis. Without enforcement, tough laws have no impact on reducing corruption, and may foster
general cynicism about reform efforts. Yet to hold public officials accountable to anti-corruption
laws, judiciaries need independence from the executive branch as well as institutional capacity.
Strengthening judicial independence involves revising procedures for appointing, assigning
remunerating, and removing judges and prosecutors to insulate them from political influence.
Strengthening the institutional capacity of the judiciary, meanwhile, involves modernizing court
systems to facilitate swift and fair procedures. This can be done by augmenting and upgrading
staffs, improving legal training, establishing codes of conduct for judges, attorneys, clerks, and
litigants, and strengthening investigatory capabilities (Dininio, Phyllis with Kpundeh, Sahr John
and Leiken, Robert, 1998).

According to a survey conducted in August 2005, 440 lawyers in four key urban areas -
Metro Manila and Baguio, Cebu, and Davao cities - 49 percent said they were aware of judges
in their localities who were on the take. Only 8 percent of these lawyers had the courage to
report the bribery, with 56 percent saying they could not prove anything anyway and 29 percent
saying they feared reprisal (Nocum, 2005).

It goes without saying that not all judges and justices succumb to the dragnet controlled
by the powers that be in order to occupy their status as members of the bench. Sadly, however,
only a very small percentage of magistrates became such without having to make any liaisons
with the appointing power. So little are the likes of Justice Cecilia Munoz-Palma, the first Filipino
lady Justice who, in her book "Mirror of My Soul", emphasized "My oath of office is an oath of
loyalty to the Constitution, to justice, and the people, and is not an oath of fealty to the
appointing power". If only our members of the Judiciary look upon their bounden duty through
the same light, injustice and corruption in this country would easily be stamped out.

During the three-day International Conference and Showcase on Judicial Reforms

which opened at the Shangri-la Hotel in Makati City on November 28, 2005 and participated in
by delegates from 45 countries, former Chief Justice Hilario Davide, Jr. aptly stated: "A good
government depends on a good judiciary. We are here to be architects of an idyllic system of
justice. When he started his reform initiatives, Davide said his goal was to create a "judiciary
that is independent, effective, and efficient and worthy of public trust and confidence, and a
legal profession that provides quality, ethical, accessible and cost-effective legal service." Since
starting the program to weed out unscrupulous You sent members of the court for "impropriety,
immorality, and other improper conduct", Davide said they had disciplined "a number of justices"
and "dismissed 47 judges and one justice in a period of five years (Ibid.).

In the same event, then Associate Justice (now Chief Justice) Artemio Panganiban said:
"Somehow, we're a poor country, we're a developing country, but our judiciary has made an
impact in the world that we are now the role model on how to conceive, plan, develop, and
implement a judicial reform program" (Ibid.).

The fiasco that goes on in the selection of members of the Judiciary as well as the
corruption in government is caused, in large part, by two interacting and combined factors. First
is the Padrino system which, just like corruption, we Filipinos inherited and learned from the
Spanish tyrants. As we all know, the Padrino system goes by its literal name which means
"patron", "sponsor" or "benefactor". A position in government can very well be had if one had a
Padrino who has the needed political ties. In this modern age, the nomenclature has changed to
"Cronyism", thus the term Marcos cronies. However, cronyism did not leave with Marcos. It still
exists to this very day. Some call their cronies "bata". In almost every government organization,
the "bata" system is alive and well. If one were a government official or employee, one needs to
ask who his "bata" are and, although embarrassing, whose "bata" one is. Whose "bata" are
you? Secondly, this judicial rigmarole is due to the presidential form of government inherited
from the United States which possesses the characteristic of a strong President, in contrast to
its counterpart in the Parliamentary form of government.

MARRIAGE OF SPANISH CORRUPTION AND AMERICAN PRESIDENTIALISM

The Philippines is a democratic and republican state. Such is the clear pronouncement
in no less than its Constitution (Article II, Section 1). Democracy in the Philippines was inherited
from the United States of America which, for a period of over forty years, honed the Filipinos to
run a democratic state. Principles of democracy flowed profusely from the U.S. in the spirit of
so-called "benevolent assimilation", a term coined by President Theodore Roosevelt which
meant that the U.S. was actually doing the Philippines a favor by "benevolently" helping it to
"assimilate" the tenets of democracy.
 Thus, we were introduced to the presidential form of government Features of a strong
President with a Cabinet comprising the Executive Branch, the separate bicameral legislature,
Congress, composed of the Senate and the House of Representatives comprising the
Legislative Branch, and the courts comprising the Judiciary, three independent and co-equal
main branches of government, were slowly ingrained into the Filipino political psyche.

Contrary to the case in the parliamentary systems, the U.S. cabinet has no legal
standing, and presidents frequently use it only at a symbolic level. The president is also free to
extend membership to other senior appointed officials, so the number of cabinet members
fluctuates from administration to administration. The senior officers of the executive branch
agencies manage a workforce of approximately 1.7 million civil servants (the bureaucracy).

Significantly, in relation to the Presidential form of liberal democracy in the United States,
the separation of powers complicates the quest for accountability. The president is charged with
the faithful execution of the laws, but congressional involvement is necessary to create, fund,
staff, and empower administrative agencies. Without coordination between the president and
Congress, accountability is difficult to obtain. But because both branches of government have
different constituencies, roles, incentives, and interests, coordination is not a simple matter.
There are times when one branch impedes the efforts of the other to hold public administration
accountable.

The United States political process does not provide comprehensive direction to public
administrators. Political parties are fragmented, and elections do not convey clear mandates.
Undoubtedly, most public administrators would follow clear mandates if they existed, but in their
absence, political direction of public agencies is uncertain.

Presidentialism, as a form of liberal democracy, came to be the political system of the

Philippines. With it came the advent of national elections for the President, the Vice-President,
the Senators, and the local elections for Congressmen and the various local government
executive and legislative officials. Filipinos embraced the presidential government as their own.

Unfortunately, however, barely had the Philippines been granted its independence on 4
July 1946 that corruption quickly existed in government. The administration of the first president,
Manuel Roxas, was tasked with the gargantuan task of rebuilding a war-torn state immediately
after the ravages caused by the Second World War. American war aid was provided the
government but most of which eventually ended up in the pockets of unscrupulous government
officials. This is widely attributed to the culture of corruption that was inherited from 333 years of
corrupt and inefficient Spanish rule.

In retrospect, the Spanish regime saw the influx of incompetent, inefficient, and corrupt
officials from the Madrid government. Those Spanish government officials who were considered
rejects in the Spanish Crown eventually found their way into being assigned as high-ranking
government officials in the insular government of the Spanish colony in the Philippine Islands.
Owing to the apparent distance between the insular government in the Far East and the
Spanish central government in the Madrid, little, if not, no direct supervision existed from Madrid
over Manila.
 The innocent Filipinos were witness to the rampant corruption in the Spanish
government but had no way of validating the same. In the end, the poor Filipinos grew to accept
corruption as a part of life - a reality that had to be accepted. In short, the Filipinos eventually
grew to emulate their Spanish superiors for the corrupt acts that they were incessantly
committing. It was no surprise, therefore, that, as soon as the Filipinos were given the right to
govern themselves by the Americans, the culture of corruption easily seeped into governance.

A sort of bastardized concept of democracy was implanted in the Filipinos' concept of

government combination -a of 333 years of corruption and tyranny, on the one hand, and 45
years of democratic processes, on the other hand.

This is the reason why corruption existed in Philippine government from Day 1, that is,
from the You sent time of the granting if its independence in 1946.

Parties structure competition through their platforms, policy positions, and legislative
behavior. If party positions during campaigns and in the legislature are indistinguishable and
unstable over time, voters will not enjoy genuine choice. They may have the opportunity to
throw the rascals out, but they may well end up inadvertently replacing them with another set of
rascals. If, on the other hand, parties stake out distinct and reasonably stable policy positions,
then the lines of vertical accountability between voters and their representatives are
strengthened. If parties develop meaningful labels associating them with certain policy positions,
much like brand names for commercial products, voters obtain real choice and clearer
standards by which to judge politicians in future elections. Once parties establish identities
among the electorate, an element of horizontal accountability within parties becomes possible,
as party members, and especially leaders, begin monitoring one another's behavior to ensure
that their party's reputation is not sullied, for example, by an individual member's corruption or
erratic behavior. In other words, in a system with clear and stable party identities, politicians
have a personal political interest in the "good" behavior of their party mates. Major political
parties in the Philippines have never come close to fulfilling these conditions. Throughout the
country's democratic history, parties' policies and legislative behavior have been virtually
indistinguishable and highly unstable over time (Montinola, 1999).

The injurious effects on parties of these electoral practices were aggravated by the
president's control over the budget. The constitution stipulated that the president submit a
budget to the legislature and that this document serve as the basis for the general annual
appropriations bill. The president's control over the budget therefore gave him enormous
leverage over members of Congress and explains why so many members of Congress switched
to the president's party after presidential elections. This system provided overwhelming
disincentives to party loyalty (the crucial prerequisite to cohesive party organizations),
meaningful electoral choice, and democratic accountability (Ibid.).

The House of Commons is such a powerful entity in the United Kingdom. It is such a
potent force to contend with that it can even proceed to the extent of instituting inquiries by the
Public Accounts Committee composed of a member of the House, the Comptroller, and the
Office of the Auditor-General, as well as the Select Committee on Estimates. These inquiries
may concern any office of the government. What is impressive is the fact that the Cabinet is
also composed of members of the House of Commons. This unity in the face of diversity is a
significant environment conducive for keeping a close eye at each other's affairs with the end in
view of attaining quality government service.

Besides, the political culture in the United Kingdom is quite strict when it comes to
accountability and ethics in the delivery of government services to the citizenry. Political parties
are more critical of each other, not only during election campaigns and the election itself, which
is what characterizes American party politics, but all throughout the very existence of
government itself. Political parties in the UK. do not have any qualms as regards conducting
stark queries at opposition time, Question Time, its supplementary questions, and the period for
adjournment debates. As members of Parliament in the U.K. are quite sincere in their quest for
good government, not only may the opposition members of Parliament question ministry
officials, ministers of the Cabinet, and even the Prime Minister, who is their peer in the House,
but even members of the ruling party may also, on the same basis of strength, do the same.

Truly remarkable is the threat of a vote of no-confidence on the Prime Minister by

Parliament. Like the sword of Damocles, it steadily hangs over the head of the Prime Minister,
as well the heads of the Ministers of the Cabinet. Such a vote would ultimately catapult the
opposition as the ruling party which shall then take the reins of government. This is the reason
why government transactions are considerably above-board with no place for shenanigans. In
short, public service is totally infused with political commitment to the betterment of the lives of
the citizenry.

This is not entirely the case in the United States. For the most part, public
administrators do their jobs on a full-time basis. Congress, which would hold them accountable
typically, is engaged in other activities and cannot devote sufficient time to watching the public
administrators.

Public personnel systems in the United States tend to afford public administrators a
great deal of job security. Discipline and dismissal are possible but are cumbersome and difficult
to accomplish. Consequently, petty infractions, such as using public resources of limited value
for private purposes, are likely to go unpunished (Rosenbloom and Kravchuk).

Importantly, the spoils system inherited from the eighteenth and nineteenth century
methods of acquiring civil service has transformed the American bureaucracy into a haven of
complacency. The merit system continues to be applied only to agencies of specific expertise of
training. Appointments to positions of government remain products of political liaisons.

The practice of sponsoring pet projects for particular constituents or beneficiaries more
popularly coined as "pork barrel" has its origin from the Presidential government of the United
States. The two-party system itself, which was originally intended to present alternative means
of running the government through the party ideologies of the Republican and Democrat parties,
has become the source and reason behind the celebrated Watergate scandal of 1972, which
would not have been unearthed if not for the steadfast investigative journalism of Bob
Woodward and Carl Bernstein of the Washington Post. Covert operations to bug Democrat
offices, produce fake letters, and revelations of personal secrets of members of the Democrat
party, to name a few, involved the FBI, the CIA, the Justice Department, in fact, the entire
intelligence community of the government, as well as, of course, the White House, leading to no
less than newly re-elected President Richard Nixon.

Just recently, on November 28, 2005, Representative Randy Cunning, a Republican

from San Diego, resigned from Congress, hours after pleading guilty to taking at least $42.4
Million in bribes to help friends and campaign contributors win defense contracts. Cunningham,
a highly decorated navy fighter pilot in Vietnam, tearfully acknowledged his guilt in a statement
read outside the federal courthouse in San Diego (New York Times, 2005).

Still more recently, on May 21, 2006, the Federal Bureau of Investigation (FBI) charged
that Representative William J. Jefferson, a Louisiana Democrat, was paid hundreds of
thousands of dollars in bribes by a Kentucky businessman and stashed $90,000 of that money
in his home freezer in Washington. The allegations appeared in court documents that were
made public only hours after a team of 15 FBI agents completed an unusual all-night search of
Jefferson's congressional offices. FBI officials said the raid was the first the agency had ever
conducted of a lawmaker's office on Capitol Hill (New York Times News Service).

There may have been incidents of corruption in the British parliamentary form of
government, but these may very well be considered as minimal. Moreover, as mentioned above,
the House of Considered is always there any other conduct inquiries regarding commons
expenditure or any other anomalous government transaction for that matter.

Interestingly, the afore-stated elements of American Presidentialism have direct

similarities with the Philippine version of liberal democracy, which is, as extensively elucidated,
fraught with corruption. We also have the indefatigable "pork barrel" with its numerous names
which is absent in the parliamentary form of government.

HELLO GARCI

This treatise on fighting corruption would not be truly complete without mention of the
recent accusations of alleged election fraud against President Gloria Macapagal-Arroyo spurned
by the "Hello Garci" tapes, so-called for the first line heard on the controversial taped
conversation that purports to be that of the President herself.

This incident sends messages throughout the country that the fight against corruption
cannot truly be won since the highest government official, no less than the President, is tainted
by corruption. Any Filipino, be he a simpleton in the streets or a scholar would indubitably arrive
at the conclusion that corruption, if committed in high places, may go unpunished. This brings
the efforts of the anti-corruption campaign to naught.

In June 2005, the biggest political crisis, so far, in the administration of President Gloria
Macapagal-Arroyo, exploded. The "Hello Garci tapes were uncovered and revealed to the
people. The contents of these tapes (or CD's) were the alleged wire-tapped telephone
conversations between President Gloria Macapagal-Arroyo and Commission on Elections
Commissioner Virgilio Garcillano as well by the latter and other persons. These conversations
centered on the votes garnered by Pres. Macapagal-Arroyo during the election of 2004. It
appears from conversations that Pres. Macapagal-Arroyo was worried about the outcome of the
votes cast in her favor in the Mindanao area. The conversation revealed that Commissioner
Garcillano was assuring her of her victory despite the leading votes of candidate Fernando Poe,
Jr., popular movie icon and best friend of deposed President Joseph Estrada himself a political
opponent of Pres. Macapagal-Arroyo who was removed by a popular rising due to failure of
impeachment proceedings against him for corruption. (Estrada is presently facing plunder and
perjury charges before the Special Division of the Sandiganbayan wherein this writer is a
member of the prosecution panel.) This sparked wide speculations that the election of 2004 was
rigged to favor Pres. Macapagal-Arroyo.

Four generals were mentioned in the phone conversations allegedly between Pres.
Macapagal-Arroyo and Commissioner Garcillano that were taped while the votes were being
canvassed, namely, Philippine Army Chief Lt. Gen. Hermogenes Esperon, Army 1st Infantry
Division Chief Maj. Gen. Gabriel Habacon, Lt. Gen. Roy Kyamko (ret.), and newly retired Brig.
Gen. Francisco Gudani.

The alleged source of this wire-tap was Samuel Ong, then Deputy Director of the
National Bureau of Investigation who allegedly acquired the same for P2 Million from T/Sgt.
Vidal Doble, who was part of a 14-man team from the Intelligence Service of the Armed Forces
of the Philippines (ISAFP) taskedtowiretapthetelephoneconversationbetween Pres. Macapagal-
Arroyo and Commissioner Garcillano. Alan Paguia, a lawyer indefinitely suspended by the
Supreme Court to practice law due to his attacks on the High Court in connection with the
illegitimacy of the takeover by Pres. Macapagal-Arroyo from Pres. Estrada, on the other hand,
also claimed before the House of Representatives in a hearing called for the matter that he had
in his possession the source of the wired tapes but refused, however, to identify the source of
his tapes. He confessed that he could not determine whether they were originals because he
was not an expert but he was certain that the voices on the tape were original. Later, former
Senator Francisco Tatad also alleged that he had the original tapes of the wire-tapped
conversations as he also testified before the House of Representatives. He also, however, did
not know their source as the same were found in a package sent to his residence.

Ironically, Press Secretary Ignacio Bunye earlier claimed the he had received from so-
called anonymous sources an original and a tampered audio compact disc (CD's) thereby
insinuating that the conversation referring to vote-rigging was a fake. Sec. Bunye even showed
these two s CD's, one in his left hand and the other in his right hand, and even allowed s media
to listen to the tapes to prove his point.

Quite unfortunately for Sec. Bunye, no less than her boss, Pres. Macapagal-Arroyo, on
June 27, 2005, admitted on national television that it was her voice in the tapped conversation
between her and Commissioner $. Garcillano discussing her votes with the latter, referring to it
as a "lapse in judgment on her part for which she made an emphatic "I'M SORRY".

On the evening of July 7, 2005, Pres. Macapagal-Arroyo called on the at members of

her Cabinet to submit their resignations. The day after, July ne 8, 2005, ten members of the
Cabinet rallied to Hyatt Hotel in Manila to on jointly resign and asked that the President step
down. They have since nd earned the monicker "Hyatt 10". Later, on the same day, former Pres.
Corazon Aquino, famous for her popularity at the height of the first EDSA People Power
revolution against deposed dictator Pres. Ferdinand ty Marcos, called on Pres. Macapagal-
Arroyo to make the ultimate sacrifice ed for the sake of the nation and to step down. Still on the
same day, Senate fa President Franklin Drilon, Senator Majority Leader Francis Pangilinan,
Senator Rodolfo Biazon, and other members of the Liberal Party went on national television and
called on Pres. Macapagal-Arroyo to resign.

Of course, the opposition had a field day denouncing Mrs. Arroyo for election fraud
committed against the people. Her presidency was faced with three options: resignation,
impeachment, or another people on power movement that would either forcibly and bodily
remove her from ma Malacanang or give reason for the military to withdraw support from her of
administration, precipitating its collapse. To all these, Pres. Macapagal- Arroyo emphatically
answered "I will NOT resign".

Soon after, hearings after hearings were conducted in both the Senate the and the
House of Representatives of Congress in relation to the fiasco. In the Senate, hearings were
conducted on jueteng, an illegal numbers he game Bishop Oscar Cruz of Dagupan City,
Pangasinan, made his expose did regarding the jueteng scandal. Some of the witnesses he
presented touched his of jueteng proceeds used to pay off election officials to ensure the victory
of Pres. Macapagal-Arroyo, Captain Marlon Mendoza, Chief Security You sent Officer of
Commissioner Garcillano, testified that his superior told him that money from jueteng operations
was coming from First Gentleman, Atty. Mike Arroyo, to compensate for the victory of Pres.
Macapagal Arroyo. Witness Michelangelo Zuce, a former Palace staff and confessed nephew of
Commissioner Garcillano, testified that he and Commissioner Garcillano were present during a
dinner tendered by Pres. Macapagal Arroyo at her residence at La Vista, Quezon City for
officials of the Commission on Elections stationed at the Mindanao area a month before the
2004 elections. According to him, the President thanked the Comelec officials for their support
and, after she left for another engagement, envelopes containing cash were distributed among
the Comelec officials. The cash were allegedly sourced from proceeds from jueteng operations.
Zuce testified that he himself was present in Mindanao during the 2004 elections. He admitted
that he helped not only the President to win the election but other candidates, administration
and opposition alike.

The foregoing admission jibes with the claim of Commissioner Garcillano himself that he
spoke with Pres. Macapagal-Arroyo, as well as other candidates, both administration and
opposition. His affidavit executed in July 2005 included Akbayan party-list Rep. Etta Rosales
and former Sen. John Osmena. In an interview, he said he talked to House Minority Leader
Francis Escudero, vice-presidential candidate Loren Legarda and Senators Mar Roxas, Jamby
Madrigal, and Robert Barbers. Garcillano stressed they did not seek favors from him but simply
expressed concern about possible fraud. He rejected opposition contentions that the recording
showed he assured Ms. Arroyo a one-million vote margin. He said this particular portion of the
conversation was "doctored".

Later, Garcillano went into hiding. He claimed that he was here in the Philippines all
along, but no less than the Singapore government earlier issued a statement that he actually
arrived in their country. Reports have also been made that he proceeded to London and then to
Brazil. Anyway, whatever, Garcillano finally surfaced in December 2005 and testified before the
House of Representatives and produced a list of 37 senators, congressmen, and politicos with
whom he talked by telephone or in private meetings during the 2004 election. Indeed, Garcillano
finally spoke but said nothing.

Going back to the alleged wired conversations between Pres. Macapagal-Arroyo and
Garcillano, the following are pertinent portions:

FEMALE: So will I still lead by more than 1 Million overall?

MALE: Pipilitin ho natin 'yan, pero as of the other day your lead is 892,000.

FEMALE: Kaya nga e.

MALE: Pero, if we can get more in Lanao.

The following was the exchange that transpired from what sounded like former Senator
Robert Barbers and Garcilano:

MALE 1: Padre, maraming lumalapit sa amin na mga tao daw niyo diyan sa Comelec
humihingi, ibinibenta ang boto. Ano bang gagawin natin diyan?

MALE 2: Magkano?... kung humingi sila?

In another telephone conversation, Garcillano allegedly said, "Pipilitin ko."

In yet another telephone conversation between what sounded like the voices of Pres.
Macapagal and Garcillano, the following ensued:

FEMALE: Si ano, si Biazon, nagbabanta. Kung madadaya raw siya, papabuksan niya
daw yung ano at saka Tawi-Tawi, e baka raw ako ang matalo doon Hindi kaya puwedeng ma-
delay yung ano, yung... and in Tawi-Tawi, it is said that I might lose there We cannot allow a
delay of senatorial canvassing until after the voting and the rolls tonight? Biazon is warning.

MALE: And the rolls? O sige po.

Still, another telephone conversation had the following reparte':

FEMALE: Sa Lanao del Sur saka sa Basilan, hindi raw nagma- match yung SOV
(Statements of Votes) sa COC (Certificates of Canvass).

MALE: Nagma-match. May posibilidad na hindi magma-match kung hindi nila sinunod
yung individual SOV ng mga munisipyo. Pero ewan ko lang ho kung sa atin pabor o hindi. Kasi
dun naman sa Basilan saka Lanao del Sur, itong ginawa nila na yung pagpataas sa inyo, hindi
naman ho kuwan, maayos naman ang paggawa e.

Pres. Macapagal-Arroyo earlier welcomed any impeachment attempt against her. An

impeachment complaint was lodged before the Lower House in June 2005 by Atty. Oliver
Lozano who charged Ms. Arroyo for breach of public trust. It was immediately endorsed by
Alagad party-list Rep. Rodante Marcoleta, an administration lawmaker. Atty. Rizalino Lazaro
filed a second impeachment complaint against the President for breach of public trust which
was endorsed on the same day by Palawan Rep. Antonio Alvarez, a member of Kampi, the
President's own party. Rep. Alvarez said Lazaro's complaint could still be filed though the
complaint of Lozano had already been endorsed Opposition lawmakers later also filed a third
complaint, an amended impeachment complaint which was more comprehensive in scope the
signatories of which, however, did not reach the required number of one-third of the entire
house necessary to constitute the impeachment complaint as the Articles of Impeachment in
accordance with paragraph 4) of Section 3 of Article XI of the Constitution.

The Justice Committee has a majority of Ms. Arroyo's allies. During deliberations on the
impeachment complaints, a majority voted that the Lozano complaint was insufficient in form
and substance. The committee further ruled that the second impeachment complaint can no
longer be considered. Under the Constitution, no other impeachment complaint can be filed
against a president for a year once a complaint had been endorsed by a member of the House.
On plenary, on September 6, 2005, after almost two days of intense arguments in continuous
session even through the wee hours of the morning, way more than the required vote of one-
third of the entire House was arrived at to affirm the findings of the Committee on Justice while
the required yote one-third of the entire house to override the resolution of the Justice
Committee was necessarily not reached in accordance with paragraph (3) of Section 3 of Article
XI of the Constitution. The amended impeachment complaint filed by opposition lawmakers was
quashed by Pres. Macapagal-Arroyo's allies by a vote of 158-51. Thus, the impeachment of
Pres. Macapagal- Arroyo was effectively killed.

As a result, street mass protests which were already transpiring as the "Hello Garci"
tapes controversy erupted came to great proportions. In reaction to this, Calibrated Preemptive
Response (CPR) wherein police forces had the authority to disperse any peaceful rally if they
perceived that the assembly would result in violence. At one memorable instance, even former
Vice-President Teofisto Guingona, opposition lawmakers, and, worse, high-ranking members of
the clergy were blasted by water cannons at Mendiola Street during a prayer rally they were
attending. Issues on human rights violations were the talk of the day.

Relentless, the Senate and the House of Representatives continued conducting

hearings still delving on the wire-tapped conversations and election fraud which, according to
the Constitution, were in aid of legislation. Malacanang branded these hearings as in aid of
destabilization. Enter the controversial Executive Order 464 issued by Pres. Macapagal-Arroyo
banning all government officials from testifying before Congress without her express authority.
This EO was perceived as a gag order to prevent any more embarrassment to befall the
presidency.

Despite this EO, Brigadier General Francisco Gudani and Lt. Col. Alexander Balutan,
both Marine officers, testified before the Senate on September 28, 2005. The two told the
Senate Committee on Defense and National Security chaired by Sen. Rodolfo Biazon that there
was an apparent conspiracy to cheat in the President's behalf in the May 2004 elections in
Lanao del Sur where they were assigned at the time. Gudani, who was then Commander of the
1st Marine Brigade and Head of Task Force Ranao, said he was suddenly recalled to Manila at
the height of the vote canvass. Balutan, who was then Batallion Commander, said the Army
colonel who temporarily replaced Gudani told him to "slacken" security during the canvassing.
AFP Chief of Staff Gen. Generoso Senga promptly sacked Gudani and Balutan as Philippine
Military Academy Assistant Superintendent and Deputy Commandant of the cadet corps,
respectively, and ordered their court martial. Gudani, a member of PMA Class '73, retired on
October 4, 2005 when he reached the mandatory retirement age of 56. The AFP has withheld
his retirement benefits until final resolution of the case filed against him.

Meanwhile, a five-member military fact-finding board was formed on July 26, 2005,
almost two months after the "Hello Garci" tapes surfaced, to investigate the alleged involvement
of its personnel in election fraud in 2004. In October 2005, almost three months from its
creation, the board came up with its report which however did not recommend the prosecution
of any of the generals mentioned in the "Hello Garci" tapes. Only Brig. Gen Gudani faces court-
martial for testifying at a Senate investigation despite a ban on doing so by Pres. Macapagal-
Arroyo.

House solons who worked for the impeachment of Pres. Macapagal- Arroyo have been
purged from their Committee chairmanships. Rep. Roilo Golez, who called for the resignation of
the President was replaced by Rep. Jose Solis who voted in favor of junking the impeachment
complaints against the President as chair of the Committee on Defense and National Security.
The defense committee was one of the five House committees that investigated the so-called
"Hello Garci" tapes. Rep. Gilbert Remulla, chair of the Committee on Public Information which
led the inquiry is also set to be replaced by Rep. Rodolfo Antonino.

A "People's Court" to hear the charges in the impeachment complaint that President
Macapagal-Arroyo's allies in the House of Representatives threw out in September 2005 was
created. Known to be the Citizens' Congress for Truth and Accountability, it heard accusations
that Ms. Arroyo stole the vote in the May 2004 presidential election and committed corruption
and human rights violations. Former Vice- President Teofisto Guingona will lead the Citizens'
Congress which, he said, would give Ms. Arroyo a chance to defend herself. The Citizens'
Congress was initiated by Bukluran Para sa Katotohanan, a multi-sectoral alliance of
organizations questioning the legitimacy of the Arroyo presidency. Maria Serena Diokno, history
professor at the University of the Philippines and one of the convenors of the Citizens' Congress
said "(T)his is an alternative to Congress, which junked the impeachment complaint. According
to human rights lawyer, Romeo Capulong, the Citizens' Congress was a constitutional basis:
Article XIII, Section 15, which recognizes "the role of independent people's organizations to
pursue and protect within the democratic framework their legitimate and collective interests and
aspirations through peaceful and lawful means". You sent "It is an alternative forum which has
become necessary because of the impotence and failure of the traditional institutions and
processes of constitutional democracy to address and redress the serious charges which, if
shown to be true, would make Gloria Macapagal-Arroyo unfit, disqualified and illegitimate",
Capulong says. Up unto this writing, no closure has as yet been arrived at in the "Hello Garci"
controversy, leaving a nation intensely divided and a questionable government riddled with
charges of corruption.
HONGKONG

The Hong Kong Independent Commission Against Corruption (ICAC) is popularly

regarded as a successful model in fighting corruption, turning a very corrupt city under colonial
government into one of the relatively corruption free places in the world. One of the success
factors is its three-pronged strategy fighting corruption through deterrence, prevention, and
education. All three are important but deterrence is the most important. That is the reason why
the ICAC devoted over 70% of its resources into its Operations Departinent, which is re
sponsible for investigating corruption. Nearly all of the major corruption cases were committed
by people in high authority. For them, they have certainly been educated about the evil of
corruption and they may also be subject to certain degree of corruption prevention control. But
what inspired them to commit corruption? The answer is simply greed, as they would weigh the
fortune they could get from corruption with the chance of them being discovered. So how can
we deter them from being corrupt? The only way is to make them realize that there is a high risk
of them being caught, which is therefore the Mission of the ICAC Operations Department - to
make corruption a high risk crime. To do that, you need a professional and dedicated
investigative force (Kwok 2004).

Short History and the achievement of the ICAC

The Hong Kong ICAC has a particularly interesting history and story to tell. It was
established in 1974 at the time when corruption was widespread, and Hong Kong, as a British
Colony, was probably one of the most corrupt cities in the world. Corruption was a way of life
and existed "from womb to tomb. There was, at that time, a particularly close "business"
association between law enforcement agencies and organized crime syndicates. Nearly all
types of organized crimes, vice, gambling and drugs, were protected. As a taxi-driver, you could
even buy a monthly label stuck on your taxi and it would guarantee you from any traffic
prosecution. Such was the scale of open corruption in Hong Kong (Kwok, 2004).

When ICAC was set up in 1974, very few people in Hong Kong be- lieved that it would
be successful. They called it "Mission Impossible. Within three years, the ICAC smashed all
corruption syndicates in the Government and prosecuted 247 government officials, including
143 police officers. In its thirty years of history, ICAC has achieved the fol- lowing successes:

 . Eradicated all the overt types of corruption in the Government. Corruption now exists
as a high secretive crime, and often in- volves only satisfied parties.
 Among the first in the world to effectively enforce private sector corruption
 Ensure that Hong Kong has a clean election
 Change the public's attitude to no longer tolerating corruption as a way of life; and
support the fight against corruption in not only being willing to report corruption, but
being prepared to identify themselves in the reports
 As an active partner in the international arena in promoting international co-operation.
ICAC is the co-founder of the In ternational Anti Corruption Conference (LACC)
No doubt the fight against corruption in Hong Kong is a success sto- ry and has a wide
ramification to the change of culture in Hong Kong In the Year 2000 Millennium public opinion
survey in Hong Kong, the establishment of ICAC was voted as the 6th most important event in
the 150 years of history in Hong Kong In promoting Hong Kong as an ideal place for foreign
investment, we use this slogan "The competitive advantage of Hong Kong is the ICAC" (Kwok,
2004).

Difficulties of investigating corruption

Corruption is regarded as one of the most difficult crimes to inves estigate. There is often
no scene of crime, no fingerprint, no eyewitness to follow up. It is by nature a very secret crime
and can involve just two satisfied parties, so there is no incentive to divulge the truth. Even if
there are witnesses, they are often parties to the corruption themselves, hence tainted with
doubtful credibility when they become prosecution witnesses in court. The offenders can be
equally as professional as the investigators and know how to cover up their trails of corruption.
The he offenders can also be very powerful and ruthless in enforcing a code 43 of silence
among related persons through intimidation and violence to abort any investigation, In this
modern age, the sophisticated corrupt offenders will make full advantage of the loopholes in
cross jurisdictions and acquire the assistance of other professionals, such as lawyers, at
accountants and computer experts in their clandestine operations and to help them launder their
corrupt proceeds (Kwok. 2004)

Corruption and Organized Crime

Corruption rarely exists alone. It is often a tool to facilitate organized crimes. Over the
years, ICAC has investigated a wide range of organized crimes facilitated by corruption Law
enforcement officers have been arrested and convicted for corruptly assisting drug traffickers
and smugglers of various kinds; bank managers for covering up money laundering for the
organized crime syndicates; hotel and retail staff for perpetuating credit card fraud. In these
cases, we need to not only corruption, but some very sophisticated organized crime syndicates
(Kwok, 2004). investigate

Prerequisites for an effective investigation

Hence, there is an essential need for professionalism in corruption investigation. There are
several prerequisites to an effective corruption investigation:

a. Independent - corruption investigation can be politically sensitive and embarrassing to the

Government. The investigation can only be effective if it is truly independent and free from
undue interference. This depends very much on whether there is a top political will to fight
corruption in the country, and whether the head of the anti-corruption agency has the moral
courage to stand against any interference.

b. Adequate investigative power - Because corruption is so difficult to inves- tigate, you need
adequate investigative power. The HK ICAC enjoys wide investigative power. Apart from the
normal police power of search, arrest and detention, it has possessed power to check bank
accounts, require suspects to declare their assets, require witnesses to answer questions on
oath, restrain properties suspected to be derived from corruption, and hold the suspects' travel
documents to prevent them from fleeing the jurisdiction. Not only is the ICAC empowered to
investigate corruption offences, both in the Government and private sectors, they can
investigate all crimes which are connected with corruption. There is an elaborate check and
balance system to prevent abuse of such wide power.

c. Adequate resources - investigating corruption can be very time-consuming and resource

intensive, particularly if the cases involve cross jurisdiction. In 2002, the HK ICAC's annual
budget amounted to US$90M, about US$15 per capita. One may wish to multiply this figure with
one's own country's population and work out the anti-corruption budget that needs to be given to
the equivalent of Hong Kong. However, looking at the budget of Hong Kong from another angle
- it represents only 0.3% of our entire Government budget or 0.05% of our Gross Domestic
Product (GDP). Such a small "premium" is a most worthwhile investment for a clean society.

d. Confidentiality it is crucial that all corruption investigation should be conducted covertly and
confidentially, at least before arrest action is ready, so as to reduce the opportunities for
compromise or interference On the other hand, many targets under investigation may prove to
be innocent and it is only fair to preserve their reputation before there is clear evidence of their
corrupt deeds. Hence Hong Kong has a law prohibiting any one, including the media, from
disclosing any details of ICAC investigation until overt action such as arrests and searches have
been taken The media once described this as a "press gag law" but they now come to accept it
as a right balance between press freedom and effective law enforcement.

e. International mutual assistance many corruption cases are now cross jurisdictional and it is
important to obtain international assistance in the areas such as locating witnesses and
suspects, money trails, surveillance, exchange of intelligence, arrest, search and extradition,
and even joint investigation and operation

f. Professionalism all the investigators must be properly trained and professional in their
investigation. The HK ICAC strives to be one of the most professional law enforcement
agencies in the world. ICAC is one of the first agencies in the world to introduce including the
suspects and should never abuse their power. As corruption is so difficult to investigate,
investigators need to be vigilant, innovative and be prepared to spend long hours to complete
their investigation. The ICAC officers are often proud of their sense of mission and this is the
single most important ingredient of success of the ICAC

g. An effective complaint system No anti-corruption agency is in a position to discover all corrupt

dealings in the society by itself. They rely heavily on an effective complaint system. The system
must be able to encourage quality complaints from members of the public or institutions, and the
same time, deter frivolous or malicious complaints. It should provide assurance to the
complainants on the confidentiality of their reports and if necessary, offer them protection. Since
the strategy is to welcome complaints, customer service should be offered, making it convenient
to report corruption. A 24-hour reporting hotline should be established and there should be a
quick response system to deal with any complaint that requires prompt action. All complaints, as
long as there is substance in them, should be investigated, irrespective of how minor is the
corruption allegation. What appears to be minor in the eyes of the authority may be very serious
in the eyes of the general public (Kwok, 2004).

Methods to Investigate Corruption

Investigating corruption can broadly be divided into two categories:

a. Investigating past corruption offenses

b. Investigating current corruption offenses

Investigating Past Offences

The investigation normally commences with a report of corruption and the normal
criminal investigation technique should apply. Much will depend on the information provided by
the informant and from there, the case should be developed to obtain direct, corroborative and
circumstantial evidence. The success of such investigation relies on the meticulous approach
taken by the investigators to ensure that "no stone is left unturned". Areas of investigation can
include detailed checking of the related bank accounts and company ledgers, obtaining
information from various witnesses and sources to corroborate any meetings or corrupt
transaction etc. At this stage, the investigation should be covert and kept confidential. If there is
no evidence discovered in this stage, the investigation should normally be curtailed and the
suspects should not be interviewed. This would protect the suspects, who are often public
servants, from undue harassment. When there is a reasonable suspicion or evidence
discovered in the covert stage, the investigation can enter its overt stage. Action can then be
taken to interview the suspects to seek their explanation and if appropriate, the suspects' home
and office can be searched for further evidence. Normally further follow-up investigation is
necessary to check the suspects explanation or to go through the money trails as a result of
evidence found during searches. The investigation is usually time-consuming (Kwok, 2004).

Investigating Current Corruption Offences

Such investigation will enable greater scope for ingenuity. Apart from the conventional
methods mentioned above, a proactive strategy should always be preferred, with a view to
catch the corrupt red-handed. In appropriate cases, with proper authorities obtained,
surveillance and telephone intercept can be mounted on the suspects and suspicious meetings
monitored. A cooperative party can be deployed to set up meeting with a view to entrap the
suspects. Undercover operation can also be considered to infiltrate into a corruption syndicate.
The pre- requisite to all these proactive investigation methods are professional training,
adequate operational support and a comprehensive supervisory system to ensure that they are
effective and in compliance with the rule of evidence (Kwok, 2004).

One unique feature of corruption investigation is that the investigators must not be
contented with obtaining evidence against one single offender. Corruption is always linked and
can be syndicated. Every effort should be explored to ascertain if the individual offender is
prepared to implicate other accomplices or the mastermind behind. In Hong Kong, there is a
judicial directive to allow a reduction of 2/3 of the sentence of those corrupt offenders who are
prepared to provide full information to ICAC and to give evidence against the accomplices in
court. The ICAC provides special facilities to enable such "resident informants" to be de- tained
in ICAC premises for the purpose of de-briefing and protection. This "resident informant" system
has proved to be very effective in dealing with syndicated or high-level corruption (Kwok, 2004).

Interview technique

As corruption is a secret crime involving parties who are often sworn to the code of
secrecy and silence, a successful corruption investigator should always be a good interviewer,
so as to break the code of silence. Interview technique always forms a very important part of the
professional training of corruption investigators. Interview techniques should include the
following elements:

 Proper preparation and planning before the interview - the in- terviewer must study the
case thoroughly- the background of the interviewee, the available evidence against him,
the list of question areas etc. He should then formulate the structure of the interview.
 Ability to deal with reluctant witness - it is fully understandable that the interviewees in
corruption cases are reluctant to come forward in the interview. The interviewer must
have the ability to identify the reasons behind the interviewee's reluctance, whether it is
due to his dislike of the agency, fear of intimidation, fear of going to court, his relations
with the corrupt of fenders etc.
 Ability to build rapport - by putting the interviewee at ease in a hospitable environment,
giving him reassurance, and handling him with patience and sympathy
 Need for active listening and be flexible in the line of question- ing, depending on what
the interviewee has said
 Maintain eye-contact and watch the body language, which of- ten give you a clue as to
the truthfulness of what the interviewee is saying. Always attempt to test the truth and to
identify the motive of the statements made by the interviewee.
 If the interviewee is prepared to relate the full version, ensure that maximum details are
obtained - when, where, who, what and how, in chronological sequence, and most
important of all, who else are also involved in the corruption.
 . Always retain control in the interview

Investigative Support
 Apart from the core investigation units, there should be strong op- erational support
units, and the following are essential for the reasons given:

 Intelligence Section
as a central point to collect, collate, analyze and disseminate all intelligence and
investigation data, otherwise there may be ma- jor breakdown in communication and
operations

 Surveillance Section
a very important source of evidence and intelligence. The Hong Kong ICAC has a
dedicated surveillance unit of over 120 surveillance agents and they have made
significant contribution to the success of a number of major cases

 Technical Services Section

provide essential technical support to surveillance and operations

 Information Technology Section

it is important that all investigation data should be managed by computers for easy
retrieval and proper analysis. In this regard, computers can be extremely useful aid to
investigation. On the other hand, computers are also a threat. In this modern age, most
personal and company data are stored in computers. The anti-corruption agency must
possess the ability to break into these computers seized during searches to examine
their stored data. Computer forensics is regarded as vital for all law enforcement
agencies worldwide these days

Financial Investigation Section

The corruption investigations these days often involve sophisticated money trail of
proceeds of corruption, which can go through a web of off-shore companies and bank accounts,
funds etc. It is necessary to employ professionally qualified investigative accountants to assist in
such investigation and in presenting such evidence in an acceptable for- mat in court.

 Witness Protection Section

ICAC has experienced cases where crucial witnesses were com- promised, with one
even murdered, before giving evidence. There should be a comprehensive system to
protect crucial wit- nesses, including 24-hour arms protection, safe housing, new identity
and overseas relocation. Some of these measures re- quire legislative backing (Kwok,
2004).
Conclusion and Observation

In conclusion, the success factors for an effective corruption investigation include:

 An effective complaint system to attract quality corruption reports

 An intelligence system to supplement the complaint system and to provide intelligence
support to investigations

 Professional & dedicated investigators who need to be particularly effective in

interviewing techniques and financial investigation
 More use of proactive investigation methods, such as entrapment and undercover
operations
 A good system of protection of whistleblower and key witness- es
 International co-operation

It is obvious that corruption is getting more and more difficult to investigate. The offenders have
taken full advantage of the high technology and cross jurisdiction loopholes. The conventional
investigation method and the current legal system may not be adequate to win the battle against
the corrupt. We should adopt a more proactive approach in investigations such as the wider use
of undercover operations and the use of telephone intercept. In addition, there is also a need to
strength the legislation to provide a better balance between human rights and effective law
enforcement. There are two proposals:

Right of Silence

Corruption is a secret crime and there is a need to break the secrecy if we want to find
out the truth. Many countries follow the old British system to allow the suspect to exercise their
right of silence when questioned by the investigators. If they have a lawyer, the first thing the
lawyer will advise them is to maintain his right to silence. However, when the case comes to
court, the offender will have ample time to concoct a story which does not allow the prosecution
sufficient time to verify its truthfulness. In the end, it defeats the objective of the criminal justice
system in enabling full facts to be presented to the court so as to arrive at fair verdict. Under the
new British cautioning system, the suspects are now warned that any delayed response to
questions may prejudice their defense in subsequent legal proceedings. The new caution reads
like this, "You do not have to say anything. But it may harm your defense if you do not mention
when questioned something which you later rely on in court. Anything you do say may be given
in evidence." This new caution strikes a better balance between the human rights of suspects
and the public interest to investigate crime. Alternatively, the Continental system may be
adopted where the suspect can be interviewed by examining magistrate where he cannot
exercise any right of silence.
Telephone Intercept

It is no longer a secret to the criminal world that most law enforcement agencies have
access to telephone intercept in their investigation. There appears to be two broad ways in
dealing with telephone intercept in different countries. In the United States, Canada and
Australia, telephone intercept requires judicial approval authority and its products can be used
as evidence in court. In Britain and some other countries, telephone intercept is approved by the
Executive and cannot be used as evidence in any courts. Experience over the world proved that
telephone intercept is an extremely useful tool in investigating high level organized crime and
corruption and its production in court often form the crucial evidence against the mastermind
offenders. To deprive the use of telephone intercept evidence in court shall hamper the effective
investigation and prosecution of major corrupt offenders. So long as there is a proper check and
balance system built into the use of telephone intercept, there is no valid reason why the
evidence obtained from it should not be used as evidence in the criminal trial (Kwok, 2004).

In addition, consideration should also be given to introducing new legislation to protect

the whistle blower, witness protection, allowing greater degree in entrapment to facilitate
successful undercover opera- tions, and the intentionen total assistance in corruption investiga-
tion and money laundering (Kwok, 2004).

Finally, the key to successful enforcement against corruption can be summarized in the
new Mission Statement of the Operations Depart ment of the Hong Kong ICAC:

"By enforcing the law vigilantly and professionally, we are deter- mined to seek out and
eradicate corruption wherever it exists" (Kwok, 2004).

JAPAN

In Japan there are several investigative organizations. One is the police and the other
judicial police officers. Judicial police officers include the special investigative sections or
departments which belong to administrative organizations e.g. prison officers investigate
offences in prisons. The other is public prosecutors office. The public prosecutors in Japan
investigate by themselves (Tachi, 2004).

In Japan, private attorneys, judges, and public prosecutors have the same qualifications,
therefore, the status of public prosecutors is equivalent to that of judges and they receive equal
salaries depending on the length of time they have held their positions. Their independence and
impartiality are also protected by law. Aside from disciplinary proceedings, they cannot be
dismissed from office, suspended from the performance of their duties, or be forced to accept a
reduced salary (Tachi, 2004).
 The duties of public prosecutors include carrying out investigations, instituting
prosecutions, ensuring that the courts apply the law correctly, and ensuring that judgments have
been carried out. In addition, many public prosecutors are assigned to key positions in the
Ministry of Justice, for example, as vice-minister of justice and director-general of the Criminal
Affairs Bureau (Tachi, 2004).

The police are primarily responsible for criminal investigations and carry out the initial
investigations of more than 99 percent of criminal cases. Following their investigation, they must
refer cases to a public prosecutor together with relevant documents and evidence, even when
the police believe that the evidence gathered is insufficient. The po- lice have no power to
finalize cases, except for minor offenses (Tachi, 2004). In 2002, 192 public officials were sent to
the public prosecutors offices and 154 were prosecuted for receiving bribes all over the nation.
On the other hand, 244 suspects who gave bribes were sent to the same offices and 189 were
prosecuted for giving bribes (Tachi, 2004).

The relationship between the police and public prosecutors in Japan is based on
cooperation in general. But the police and public prosecutors belong to different organizations
independent of each other. They maintain a competitive relationship especially with regard to
the detection of corrupt cases. However, public prosecutors have their own power to investigate
and monopolize the decision to prosecute upon all the criminal cases, public prosecutors have
important functions or rather duties to check on police investigations (Tachi, 2004).

Public prosecutors may also investigate cases themselves and often carry out
supplementary investigations, that is, they interview victims and the main witnesses directly, and
instruct the police to collect further evidence, if necessary. Moreover, public prosecutors may
initiate and complete investigations without police assistance, and may do so in complicated
cases, such as bribery or large-scale financial crimes in- volving politicians, senior government
officials, or executives of large corporations (Tachi, 2004).

THE SPECIAL INVESTIGATION DEPARTMENT OF THE PUBLIC PROSECUTORS OFFICE

In three major cities-Tokyo, Osaka, and Nagoya- the public prosecutors offices have
special investigation departments where a considerable number of well-trained and highly
qualified public prosecutors and assistant officers are assigned to initiate investigations. The
special investigation departments in the Tokyo and Osaka offices have a long history and have
investigated many cases involving bribery, breach of trust, tax evasion, securities exchange
violations, and the circumvention of laws such as those governing the prohibition of private
monopolies and the maintenance of fair trade (Tachi, 2004).

When the public prosecutors decide to start their investigation against corruption cases,
they sometimes investigate not only corruption cases but also other related crimes, such as a
violation against the Law for Oath, Testimony, etc. of Witnesses at the Diet, a violation against
 the Political Funds Control Law, an obstruction of an auction, fraud, breach of trust and
so on which are stipulated in the Peal Code. An investigation against corruption is probably the
most difficult among other crimes due to the fact that it is by nature a secretive crime, often
involving only two satisfied parties. Therefore, they investigate other related crimes which are
easier to prove and prosecute. During the investigation, they try to find evidence of corruption
e.g. confession of bribery or material evidence found in the suspect's dwelling and so on (Tachi,
2004).

The public prosecutors, especially in the Special Investigation Department of the Tokyo
District Public Prosecutors Office, have been investigating corruption cases for a long time now.
This Department was established in May 1949 for the purpose of investigation for the theft or
concealment of property was possessed by the Government. Soon after that, the purpose of the
Department was changed to the investigation against corruption, related crimes of corruption
and white-collar crimes. The public prosecutors in the Department have been challenged to
investigate a lot of corruption cases. As the result of the investigations, new laws were enacted
and some laws were revised to prevent corruption (Tachi, 2004).

In December 1988, a Cabinet Decision Regarding the Enforcement of Official Discipline

was made. It states that the government officials should refrain from acts, which could invite
public suspicion, such as contacting businesspeople who have an interest in official duties. A
Notice of the Chief Cabinet Secretary to each Ministry and Agency was issued in this regard.
Further, in April 1989, the Administrative Vice- Ministers' Council decided on an Agreement
Concerning Official Disciplinary Inspections. Based on this agreement, an inspection of the state
of the enforcement of official discipline was implemented in each Ministry and Agency in
addition to establishing an official discipline inspection committee (Tachi, 2004).

In December 1992, the Law concerning Disclosure of Assets of the Members of the Diet
for the Purpose of Ensuring Ethics in Politics was enacted to maintain transparency of the
income and property of Members of Diet. Consequently, all members of the Diet have to make
public their real estate, money deposited at financial institutions, valuables, loans and debts etc
(Tachi, 2004).

The Wining-and-Dining Scandal by the elite bureaucracy in the Ministry of Finance

(hereinafter "MOF") was uncovered in 1997-98. The investigation revealed hundreds of MOF
officials engaged in illegal unseemly acts and one official on the elite career track was charged
with corruption, acceptance of bribes. Internally, MOF itself disciplined at least 12 officials who
accepted entertainment from financial institutions and insurance companies (Tachi, 2004)
Evidently, even after every Ministry and Agency established an internal structure to ensure
discipline by government officials, inappropriate incidents involving central government officials
(e.g. Wining and-Dining Scandal) was uncovered one after another including some bribery
cases. It seemed that self-disciplinary measures by each Ministry and Agency itself had their
limit. Therefore, a different approach was adopted. With a view to stamping out unethical
behavior, a stud committee on the ethics of government officials was established in February
1998 in accordance with the instruction of the Prime Minister. This committee mainly consisted
of the members of Administrative Vice-Ministers' Council. It pursued a study on the legislation of
ethic standards of government officials in close association with ruling pa ties. As a
consequence, the members of the Diet compiled a bill on the ethics of central government
officials and the ruling parties submitted the bill to the Diet in 1998. Finally, the National Public
Service Ethic Law was enacted in August 1999 (Tachi, 2004).

The Political Funds Control Law was enacted in view of promoting a democratic society
with the aim of keeping the flow of political money open and fair by registering the political
groups including political parties, disclosing their income and expenditure, and regulating the
amount of donations to politicians, public office candidates, and political groups. It includes
criminal provisions in order to bring violators to justice. It has been revised from time to time
when its effectiveness was questioned. Resultantly, individual politicians are prohibited to
receive political donations (Tachi, 2004).

Recent revision of the law on December 20, 1999 at the Diet and was enforced on
January 1, 2000 banning corporations from donating directly to the fund-management groups
managed by individual politicians. Such corporations are allowed, however, to donate political
funds depending upon their size, to political parties to which the politician belong. Some political
analysts claim that the revision cannot eliminate the scandal-tainted political circle because of
the loopholes of the law Most of the prominent politicians manipulate the local chapters of the
political party, which can receive political donations. Violation of the law, especially acceptance
of banned political donations does not me receiving a bribe in the legal sense, but in the
common sense (Tach 2004).

The Law concerning Punishment of the Receipt of Profit for Exertion of Influence by Persons in
Public Offices enacted in November 2000 was passed by the Diet as a response to the public
distrust against politics caused by corruption cases involving members of the Diet. This new law
has been in force since March 2001. The penal provisions are directed to members of the Diet,
members of the local assemblies, heads of local governments and secretaries of the members
of the Diet who receive financial gain in response to an entreaty for exerting influences or
having exerted influences based on their official positions upon public officials in connection with
awarding of contracts or administrative dispositions. Persons who offer financial gains are also
punished. This law was revised in July 2002 to cover private secretaries of members of the Diet
(Tachi, 2004).
 In 1991, Nisshiren, a lobbying group for the Japan Dental Association, gave 100 million
yen by check to former Prime Minister, Ryutaro Hashimoto. He handed the check to the
Secretary of his political group. The secretary failed to inform the election administration
committee of this check which was a violation of the Political Funds Control Law. The secretary
was arrested by the public prosecutors of the Special Investigation Department of the Tokyo
Public Prosecutors Office. Moreover, they could not arrest the former Prime Minister because
they could not get enough evidence to prove his conspiracy. Nevertheless, during their
investigation they were able to get a confession from the Secretary that another executive
member of the political group, who had been a Diet member, ordered the Secretary not to reveal
the check to that commit- tee. As a result of this corruption, the public prosecutor prosecuted the
executive member in the Tokyo District Court in August 2004 (Tachi, 2004).

SELF-INVESTIGATION BY SPECIAL INVESTIGATION DEPARTMENTS

The special investigation departments in the public prosecutor's offices have special
units for self-investigation where well-trained assistant officers keep an eye on department
officials, in particular, by analyzing their bank account activity. When the department has reason
to suspect an official of corruption, members of the special unit start trace the official's bank
accounts. Once investigators have identified the accounts they track transactions to check for
suspicious activity (Tachi, 2004).

In some cases, a corrupt official will receive bribe money in the form of a check, for
example, the vice-governor of Aichi prefecture received a bribe by check in the amount of some
-20 million yen. In most cases, however, bribes are given in the form of cash, because cash is
easier to conceal. Nevertheless, persistent and painstaking investigative work can also uncover
cash bribes (Tachi, 2004).

Let us consider the successful investigation of a bribery case by the special unit of the
Osaka Public Prosecutors Office. The unit was investigating an official suspected of receiving
bribes every month. The per- son giving the bribes paid them by using a false name at cash
dispensers. Eventually the investigators managed to match up receipts from the cash
dispensers from which the person suspected of giving the bribes was withdrawing the funds and
the other automated teller machine where he was remitting the funds. This eventually allowed
them to find the bank account of the person suspected of paying the bribes, as once they had
the account number they could check the application form he had filled out to open the account
to ascertain what name he had used (Tachi, 2004).

The general conviction rate in Japan is 99.62 %. Of this very high percentage, 8.68 %
have a determinate sentence of imprisonment with labor, 0.38 % have a determinate sentence
without labor, and 90.56% arising to fine.

Majority of cases before the Summary Courts and the District Courts in 2002 were
disposed of in one to two months, as can be seen in the graph below.

In 2002, the average length for the disposition of a criminal case in the District Courts
was 3.2 months. The disposition of 92.4 % of criminal cases was reached within six months
from the initiation of the prosecution evidence. In each criminal case, hearings were only held
2.7 times (Sakata, 2004).

INDEPENDENCE OF THE JUDICIARY

The Constitution of Japan has various provisions to ensure judicial independence, one of
the most important principles of the government These include: the vesting of all judicial power
in the Supreme Court and inferior courts [Const. Art. 76(1)]; no final judicial power in any organ
of the executive branch of the government [Const. Art. 76(2)); and vesting rule-making power in
the Supreme Court (Const. Art. 77] (Sakata, 2004).

Appointment of Judges

According to the Constitution, all lower court judges are appointed by the Cabinet, from a
list of persons nominated by the Supreme Court. The Justices of the Supreme Court are
appointed by the Cabinet, except for the Chief Justice, who is appointed by the Emperor as
designated by the Cabinet. The appointment of the Justices is reviewed by the people at the
first general election of members of the House of Representatives following their appointment
(Sakata, 2004).

Once appointed, judges basically can serve until retirement, which is 65 years of age for
lower court judges, and 70 years of age for the Justices of the Supreme Court and Summary
Court judges. Judges are continuously reappointed every ten years, unless judicially declared
mentally or physically incompetent to perform their official duties or unless publicly impeached
(Sakata, 2004).

Qualifications and Categories of Judges

There are three main categories of judges in terms of court assignments: Supreme Court
Justices, lower court judges, and summary court judges. Lower court judges are divided into
full-fledged judges and assistant judges. The term "judge of the inferior courts" in the
Constitution includes both full-fledged judges and assistant judges. It is used in the Court
Organization Law to categorize judges from the viewpoint of court organization and limitations of
power. Therefore, an assistant judge can be called a judge in the context of the Constitution in
relation to the protection of status, judicial proceedings and other broader areas (Sakata, 2004).

The assistant judge system aims to provide professional experience through on-the-job
training as an assistant judge before qualifying as a full-fledged judge. Assistant judges are
appointed from among those who have passed the National Bar Examination, have completed
18 months of training in the Legal Training and Research Institute of the Supreme Court, and
passed the final qualifying examination (Sakata 2004).

For the first five years, the judicial authority of an assistant judge i restricted. He can be
an associate judge of a three-judge court, but as a single judge, can decide only limited matters
such as detention at the investigation stage. After five years experience, an assistant judge is
qualified as a senior assistant judge (special assistant judge) to preside over a trial in the single-
judge court. To be a full-fledged judge, it is necessary to have practical experience of not less
than ten years as an assistant judge, a public prosecutor, a practicing lawyer, a professor of law
at a designated university, or equivalent related experience as prescribed by statute (Sakata,
2004).

Judges assigned to the High Court must be full-fledged judges and qualified senior
assistant judges; whereas judges assigned to the District and Family Courts may include full-
fledged judges and both junior and senior assistant judges. Lower court judges are also
assigned to the Family Courts, as well as administrative positions in the General Secretariat of
the Supreme Court, Judicial Research Officials of the Supreme Court, and Professors of the
Training Institutes (Sakata, 2004).

In contrast, Summary Court judges can be appointed from among individuals unqualified
as jurists. In practice, they are appointed primarily from among learned and experienced court
clerks who are selected by a special Supreme Court committee. Assistant judges, after three
years experience, can be appointed as Summary Court judges (Sakata, 2004).

AUSTRALIA

The New South Wales (NSW) Independent Commission Against Corruption is a statutory
body established by the Independent Commission Against Corruption Act 1988 ("the Act" or "the
ICAC Act") by the NSW (state) Parliament. It is not a national body and its jurisdiction is limited
to the state of New South Wales, the largest state in the Commonwealth of Australia. In NSW,
there is also a Crime Commission an Ombudsman, and a Police Integrity Commission, all of
which have separate jurisdictions over varying aspects of misconduct, criminal conduct, and
corruption (Pritchard, 2004).Fifteen years of operation of the ICAC

Since commencement, the Commission has received over 25,000 complaints or reports.
It is relevant here to note that in its first year of operation the Commission reported receiving
1,091 complaints while in the last financial year (2003-2004) the Commission received 1,884
complaints or reports relating to corruption. It is clear that there continues to be a demand for
the investigative, corruption prevention and education functions of the Commission (Pritchard,
2004),

To date the Commission has:

 published over 90 formal investigation reports

 made over 800 corruption prevention recommendations in Commission publications, the
majority of which have been implemented/held over 2,000 days of hearings
 published over 60 corruption prevention reports and resources
 published over 25 research reports
 provided formal corruption prevention advice in response to over 3,000 requests
  delivered over 1,000 training sessions and public presentations (Pritchard).

In addition to the above, Commission investigations which have exposed corrupt conduct by
an individual have been followed by their resignation - in terms of outcomes, removal of a
corrupt public official from public office is an important outcome regardless of whether it is
achieved through a disciplinary process or resignation (Pritchard).

Since the inception of the Commission, public administration in New South Wales has
undergone significant cultural change and improvement - this has been due in no small part to
the efforts and successes of the Commission (Pritchard).

ICAC research has also shown that wide ranges of public sector organizations have
adopted corruption prevention strategies and the implementation of these types of strategies
across organizations continues to increase. Similarly the broader community sees a continuing
role for the Commission (Pritchard).

The ICAC today

The Commission currently has a budget of $16.45 million and em- ploys approximately
118 staff. The organizational structure is based on the principal functions of the Act and is
comprised of five sections:

 Strategic Operations Division

 Corruption Prevention, Education and Research Division
 Legal Division
 Corporate Services Division
 Assessments (Pritchard)

The operational areas comprise staff from a wide range of professions and disciplines
including criminal investigators, intelligence and financial analysts, research and policy officers,
forensic accountants and lawyers (Pritchard).

The jurisdiction of the Commission extends to over 130 public sec- tor organizations,
employing over 300,000 people across the State. This is approximately 12 per cent of the entire
NSW labor force. In addition, the Commission has jurisdiction over some 159 NSW Councils,
comprising approximately 1,800 Councillors and more than 40,000 employees, as well as NSW-
based universities and NSW Boards and Commit- tees (Pritchard).

Major investigations conducted by the Commission have revealed extensive and systemic
corrupt conduct resulting in corrupt conduct findings against a number of different individuals,
recommendations for consideration of prosecution action arising from those findings and
recommendations for changes to legislation and improvements to corruption prevention and risk
management systems, policies and procedures (Pritchard).
 The functions of investigation and public reporting play an important role in corruption
prevention and education. While these functions are often referred to in the context of the
Commission "exposing" corrupt conduct, this term is not used in the ICAC Act. The focus of the
Commission's investigative and reporting work is broader than simply the exposure of corrupt
conduct and corrupt individuals (Pritchard).

The duality of functions to "expose" corruption continues today to be an important element

as problems of corruption and serious systemic issues continually emerge. Most recently, the
Commission has heard in public hearings evidence to suggest systemic and possible
widespread problems in the area of building licensing. Another soon to be released report will
highlight the systemic issues in the production of false trade and vocational qualifications and
fraudulent documents. In both cases the Commission will have a significant corruption
prevention response (Pritchard).

As an integral part of investigating and reporting on specific in- stances of corrupt conduct,
the Commission investigates and reports on any systems deficiencies that may have provided
opportunities for the corrupt conduct to occur. The Commission makes detailed
recommendations to the relevant public sector organizations to help them redress these
deficiencies. The Commission also seeks to analyze and emphasize the impact of corrupt
conduct upon public sector systems (Pritchard).

A clear example is the Commission's recent (June 2004) report on investigation into the
fraudulent issue of competency and safety certification in the NSW construction industry. In
investigating and re- porting on the corrupt conduct of a number of accredited assessors, the
Commission also analyzed and emphasized the systems weaknesses that related to the actual
conduct, and analyzed the potential impact of the conduct on public safety, including the
potential for holders of fraudulent safety and competency certification to work interstate under
national accreditation arrangements (Pritchard).

Functions of the ICAC

The principal functions of the Commission are set out under section 13 of the Act and
can be summarized as follows:

 To investigate allegations of corrupt conduct and where appropriate report the results of
those investigations.
 To provide advice and assistance to the public sector on pre- venting and eliminating
corrupt conduct and to do so in cooperation with public authorities and public officials.
 To advise and educate the public sector and the community at large on strategies to
eliminate and prevent corrupt conduct and to generally enlist and foster public support in
the task of doing so.
 The "other functions" set out in section 14 of the Act include assembling evidence that may
be admissible in subsequent criminal proceedings, furnishing this evidence to the Director of
Public Prosecutions and providing other evidence or information as appropriate to other
authorities (Pritchard).

Measuring the ICAC's effectiveness

For agencies like the ICAC, it is sometimes suggested that the success of its activities
may be measured by the success of prosecutions arising from its investigations.

Advocating the use of conviction rates to measure the overall effectiveness of the
Commission in achieving its objectives or functions demonstrates a failure to understand that
the Commission is first and foremost a fact-finding and investigative body. This fails to
understand the synergy between the functions of investigation, prevention, and education in
respect to corrupt conduct and that these functions are inextricably linked (Pritchard).

In late 2001, the Commission commenced a major research project to develop a

snapshot of corruption-related issues facing the diverse NSW public sector. The subsequent
report published in January 2003 showed a generally healthy picture of the NSW public sector's
current identification and management of corruption risks - among the positive findings, it was
particularly significant that a wide range of public sector organizations had, or were in the
process of, implementing a range of corruption resistance strategies that have been promoted
by the Commission (Pritchard).

In 2004 the Commission commenced further research to follow up on its findings in the
January 2003 report. Preliminary unpublished results indicate that since publication of the
report:

 implementation of a Code of Conduct had increased from 82% to 93%, with an

additional 1% of organizations in the process of implementation
 implementation of a Risk Management Strategy had increased from 56% to 66%, with
an additional 12% of organizations in the process of implementation
 implementation of an Internal Audit Plan had increased from 78% to 88% implementation
of an Internal Auditor had increased from 72% to 86%, with an additional 1% of
organizations in the process of implementation
 implementation of a Gifts and Benefits Policy had increased from 69% to 83%, with an
additional 3% of organizations in the process of implementation
 implementation of an internal investigation system had increased from 82% to 93%, with
an additional 4% of organizations in the process of implementation (Pritchard).

The Commission has also sought to follow up on the corruption prevention recommendations
made in ICAC investigation reports. A review of the information available indicates the majority
of recommendations have been implemented in some form by the public sector organizations
concerned (Pritchard).
Section 13 of the Act sets out the principal functions of the Commission:

Principal functions

(1) The principal functions of the Commission are as follows:

(a) to investigate any allegation or complaint that, or any circumstances which in the
Commission's opinion imply that:

(i) corrupt conduct, or

(ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct
connected with corrupt conduct, may have occurred, may be occurring or may be about to
occur,

(b) to investigate any matter referred to the Commission by both Houses of Parliament,

(c) to communicate to appropriate authorities the results of its investigations,

(d) to examine the laws governing, and the practices and proce dures of, public authorities and
public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of
methods of work or procedures which, in the opinion of the Commission, may be conducive to
corrupt conduct,

(e) to instruct, advise and assist any public authority, public official or other person (on the
request of the authority, official or per son) on ways in which corrupt conduct may be eliminated,

(f) to advise public authorities or public officials of changes in practices or procedures

compatible with the effective exercise of their functions which the Commission thinks necessary
to reduce the likelihood of the occurrence of corrupt conduct,

(g) to co-operate with public authorities and public officials in re- viewing laws, practices and
procedures with a view to reducing the likelihood of the occurrence of corrupt conduct,

(h) to educate and advise public authorities, public officials and the community on strategies to
combat corrupt conduct,

(i) to educate and disseminate information to the public on the detrimental effects of corrupt
conduct and on the importance of maintaining the integrity of public administration,

(j) to enlist and foster public support in combating corrupt cof duct,
(k) to develop, arrange, supervise, participate in or conduct such educational or advisory
programs as may be described in reference made to the Commission by both Houses of
Parliament.

(2) The Commission is to conduct its investigations with a view to determining:

(a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has
occurred, is occurring or is about to occur, and

(b) whether any laws governing any public authority or public official need to be changed for the
purpose of reducing the likelihood of the occurrence of corrupt conduct, and (c) whether any
methods of work, practices or procedures of any public authority or public official did or could
allow, encourage or cause the occurrence of corrupt conduct.

(3) The principal functions of the Commission also include:

(a) the power to make findings and form opinions, on the basis of the results of its
investigations, in respect of any conduct, circumstances or events with which its investigations
are con- cerned, whether or not the findings or opinions relate to corrupt conduct, and

(b) the power to formulate recommendations for the taking of action that the Commission
considers should be taken in relation to its findings or opinions or the results of its
investigations.

(4) The Commission is not to make a finding, form an opinion or formulate a recommendation
which section 74B (Report not to include findings etc of guilt or recommending prosecution)
prevents the Commission from including in a report, but this section is the only restriction
imposed by this Act on the Commission's powers under subsection (3).

(5) The following are examples of the findings and opinions permissible under subsection (3) but
do not limit the Commission's power to make findings and form opinions:

(a) findings that particular persons have engaged, are engaged or are about to engage in
corrupt conduct, (b) opinions as to whether consideration should or should not be given to the
prosecution or the taking of other action against particular persons,

(c) findings of fact (Pritchard).

The efforts of the Commission in dealing with specific allegations of corruption through a
dual process of investigation and corruption prevention, however, has been balanced against
the other principal functions of providing advice and assistance more generally on corruption
prevention and education/community awareness outside of investigations. In this respect, as the
PJC has recently noted, the Commission is widely respected for its role and activity in corruption
prevention by building corruption resistance in the New South Wales public sector (Pritchard).

The Commission's proactive corruption prevention and education functions, that is, those
which are not initiated as part of the Commission's response to specific corruption allegations
are based on information and intelligence drawn from a range of sources. These sources
include complaints and reporting data, information acquired during investigations and enquiries,
research activity, and other intelligence information (Pritchard).

The effective discharge of all the Commission's principal functions relies on the fact that
relevant information and activities are housed together in the one organization - this ensures the
resources that are available for proactive prevention and education work are strategical- ly
directed toward the most significant and current corruption issues (Pritchard).

Other functions of Commission - Section 14 ICAC Act

Section 14 sets out the "other" or secondary functions of the Com- mission.

Other functions of Commission

(1) Other functions of the Commission are as follows:

(a) to assemble evidence that may be admissible in the prosecution of a person for a criminal
offence against a law of the State in connection with corrupt conduct and to furnish any such
evidence to the Director of Public Prosecutions,

(b) to furnish other evidence obtained in the course of its investigations (being evidence that
may be admissible in the prosecution of a person for a criminal offence against a law of another
State, the Commonwealth or a Territory) to the Attorney General or to the appropriate authority
of the jurisdiction concerned.

(IA) Evidence of the kind referred to in subsection (1) (b) may be accompanied by any
observations that the Commission considers appropriate and (in the case of evidence furnished
to the Attorney General) recommendations as to what action the Commission considers should
be taken in relation to the evidence.

(IB) A copy or detailed description of any evidence furnished to the appropriate authority of
another jurisdiction, together with a copy of any accompanying observations, is to be furnished
to the Attorney General.

(2) If the Commission obtains any information in the course of its investigations relating to the
exercise of the functions of a public authority, the Commission may, if it considers it desirable to
do so:

(a) furnish the information or a report on the information to the authority or to the Minister for the
authority, and

(b) make to the authority or the Minister for the authority such recommendations (if any) relating
to the exercise of the functions of the authority as the Commission considers appropriate.
(2A) A copy of any information or report furnished to a public authority under subsection (2),
together with a copy of any such recommendation, is to be furnished to the Minister for the
authority.

(3) If the Commission furnishes any evidence or information to a person under this section on
the understanding that the information is confidential, the person is subject to the secrecy
provisions of section 111 in relation to the information (Pritchard).

These "other" functions of the Commission are secondary to the principal functions set
out in section 13 of the Act. These functions permit the Commission to provide information to
other bodies or agencies that is appropriate to the broader landscape of law enforcement, public
sector accountability, and criminal prosecution (Pritchard).

The Commission has the power to compel witnesses to answer questions when
summoned to appear before the Commission, regard less of whether the answers will tend to
incriminate the witness, on the basis that in doing so, their answers are not admissible against
them in any later civil or criminal proceedings - this reflects the primacy of the Commission's
fact-finding function compared to other functions, as set out in the Act (Pritchard).

The Commission's ability to assemble admissible evidence in support of prosecution

action would be greater if evidence it received un- der compulsion such as answers to questions
or documents produced during hearings was admissible in subsequent criminal proceedings
However, long-established and fundamental principles of the criminal justice system, particularly
the privilege against self-incrimination and the requirement that admissions and confessions be
made voluntarily. would have to be set aside in order to allow the admissibility of such evidence
(Pritchard).

Section 17 of the Act also provides that the Commission is not bound by the rules or
practice of evidence and can inform itself on any matter in such manner as it considers
appropriate. This section also reflects the role of the Commission as a fact-finding body and
assists in avoiding unnecessary formalism in the manner it goes about this task especially
during the conduct of its hearings (Pritchard).

The Commission is like any other investigative agency that collects information or
evidence with a view to supporting prosecution action The Commission also has available to it
other extensive means for collecting admissible evidence in later prosecution proceedings such
as powers under the Listening Devices Act 1984 (NSW), the Telecommunications (Interception)
Act 1979 (Cth) and search warrant powers under the ICAC Act (Pritchard).

It is often argued that the use of a two-track system may avoid criticism that the "stigma"
of corrupt conduct may be attached to individuals whose actions are relatively minor. What
constitutes "minor" conduct, in the context of corruption, is largely subjective. As demonstrated
be low the process adopted by the Commission in considering whether a finding of corrupt
conduct is available is unlikely to produce unjust results or to be based on "minor" conduct. In
any event it is not clear that labelling a person's conduct as "official misconduct" etcetera would
ultimately produce any less of a "stigma" (Pritchard).

Findings of fact are only made after taking into account the totality of evidence before
the Commission, and those affected by that evidence have been afforded an opportunity to
respond to that evidence. Those responses are part of the material considered in drawing
conclusions as to the factual matters. In reaching such conclusions, the civil standard of proof is
applied however, the degree of persuasion necessary to establish findings on the balance of
probabilities will vary according to seriousness of the issues involved (Pritchard).

Section 9(3) of the Act provides that a substantial breach of the applicable code of
conduct shall bring Members of Parliament under the jurisdiction of the Commission for the
purposes of section 9(1)(b). Sections 9(4) and (5) apply only to Members of Parliament
(Pritchard).

Powers of the ICAC

Among other things, the Commission is empowered to:

 compel public officials to produce a statement of information (section 21)

 compel any person or agency to produce documents and other material (section 22)
 enter the premises occupied by a public authority and inspect and copy documents
(section 23)
 conduct private and public hearings (section 30)
 summon witnesses to appear before its hearings (section 35) and
 apply for and obtain search warrants (section 40).

The Commission may also apply for listening devices under the Lis- lening Devices Act 1984
and for telephone intercepts under the Tele- communications (Interception) Act 1979 (Pritchard).

AMENDMENT.OF R. A. 3019

The difficulty in convicting superior officers for the crime of Violation of Republic Act No.
3019, Section 3, paragraph (e.) can be readily removed by the amendment of the law itself- R.
A. 3019. This amendment shall be made by the deletion of the words "manifest", "evident", and
"gross inexcusable" as modifiers of the words "partiality". "bad faith", and "negligence". Thus,
Section 3, (e.) shall read as follows:
 "SEC. 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:

XXX XXX XXX XXX

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through [manifest] partiality, [evident] bad
faith or [gross inexcusable] negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions."

A cursory reading of paragraph (e.) will show that partiality, bad faith, and negligence are
the means to cause undue injury to any party, including the Government or giving unwarranted
benefits, advantage, or preference to any private party. The Arias doctrine however requires that
there should be some other overt act other than the mere signature of the accused superior
officer to hold the latter liable for Sec. 3 (e.). The doctrine, as explained above, posits that the
superior officer relies to a considerable extent on the prior recommendations of his
subordinates, such that his reliance thereon constitutes good faith. The Arias doctrine, in
interpreting Section 3, (e.), thus requires that the act of the superior officer in conspiracy with
the latter's subordinates should be manifest, evident, or grossly inexcusable.

It is quite clear at this point that the Arias doctrine shields from criminal liability all
superior officers committing corruption in public office by causing undue injury or giving
unwarranted benefits, advantage, or preference to a private party in conspiracy with their
subordinates. Worse, there are several occasions wherein it is the superior officer himself who
initiates the corrupt act of causing undue injury or the giving of unwarranted benefits and, by his
power and authority in office, his subordinates would just have to comply with his wishes. With
the amendment, the mere signature of the accused superior officer shall constitute an overt act
comprising sufficient evidence to prove conspiracy on his part.

With the deletion of the words "manifest", "evident", and "gross inexcusable", such shield
afforded by the Arias doctrine shall disintegrate. In fact, the Arias doctrine itself shall crumble
and melt down into oblivion. No longer shall high-ranking officers go scot-free on the simple
defense of good faith or reliance on the imprimatur of their subordinates. More significantly, the
big fish shall be punished, not just the small fry. True justice shall thereby be meted out. The
notion that corrupt high-ranking officials enjoy the privilege of being untouchable shall be
shattered

INCREASE THE BUDGET OF THE OFFICE OF THE OMBUDSMAN

 The budget allocation of the Office of the Ombudsman should rightfully be increased to
solve the problem of overworked and underpaid prosecutors and investigators in the Office of
the Ombudsman as well as provide the Office with modern and state-of-the-art equipment for
surveillance and evidence-gathering.

As illustrated above, an investigator handles an average of 90 cases a year from 1993 to

2002. An investigator has an annual case disposal of 25.1 cases and a monthly disposal of 2.1
cases for criminal cases and an annual disposal of 7 cases and a monthly disposal of 0.6 cases
for administrative cases also as shown in the chart above. The prosecutors of the Office of the
Special Prosecutor are suffering a more serious plight handling a total annual average of 3,953
cases as their total workload. At present, there are only 58 prosecutors in the OSP. As of late
2003, the number was only 44. This writer entered the OSP in October 10, 1994 when it had
barely 30 prosecutors. Add to this the fact that investigators and prosecutors of the Office of the
Ombudsman investigate and prosecute cases regarding accused government officials and
employees from all over the entire country.

Of paramount importance is the need for enhancement of the skills of investigators and
prosecutors. Their capabilities should be improved to be globally competitive. As can be seen in
the discussion of the anti- corruption measures adopted by Hong Kong, Japan, and Australia,
their respective anti-corruption agencies possess competent expertise in investigating and
prosecuting corruption cases so much so that they are now global benchmarks for other
countries to follow. Skills development and training would also require added financial
resources.

Prosecutor have so far been beneficiaries to three phases of Trial Advocacy Presently,
the Assistant Special Prosecutors Skills Development Courses wherein expert and experienced
trial advocates in the person of Justices and seasoned trial lawyers give lectures on trial
technique after which the prosecutors are made to undergo moot of the Office of the Special
court workshops subject to critiquing by the resource persons Alas, these Programs are not
funded by the Office of the Ombudsman but by foreign aid provided by United States Agency for
International Development Admittedly, one cannot continuously rely on dole-outs for there will
(USAID) and the Economic Governance Technical Assistance (EGTA) training program. These
training programs should be periodically held come a time when this free assistance would
cease leaving a half-cooked ensure the constant development of the OSP prosecutors.

Unfortunately, however, for the investigators in the Central Office a well as those in the
area/sectoral offices, they have not benefited from any such training program.
 Further, in cases to be filed with the Sandiganbayan, the Office of the Special Prosecutor
should be in close coordination with the fact- finding and case-build up so as to ensure that
proof beyond reasonable doubt shall have been gathered and secured by the time the case is
filed with the Sandiganbayan. The conduct of preliminary investigation of these cases may also
be assumed by the Office of the Special Prosecutor. If this was the case, increase of the
prosecutors is duly warranted.

Combating corruption is extremely politically difficult. Strategies that will attack many
fronts will be required. The program will be implemented at a time when credibility is at its
lowest. Program execution will be in the context of severe resource constraints. Needless to
say, a powerful and independent Office of the Ombudsman is a pre- condition for program
success. The Office of the Ombudsman must take the lead in synchronizing and sustaining the
efforts of the various stakeholders.

The goal of the Office of the Ombudsman is to facilitate the Philippines' transformation to
a high integrity society, where there is convergence between the perception and the reality of
governance with integrity.

The reform objectives are to strengthen the country's societal and governmental integrity
infrastructures and to match the capacity of the Office of the Ombudsman with the requirements
of being the key institution of the people to guard against graft and corruption.

The outcome targets are 20% annual increase în conviction rate in the Sandiganbayan
starting year 1: 20% average annual improvement in speed of investigation starting year 2:
100% of meritorious administrative cases with sanctions imposed starting year 4; and 2
systems/agencies accredited as information systems compliant annually starting year 3.

ADMINISTRATIVE ADJUDICATION FOR LOW-PROFILE CASES

To remedy the problem of small cases flooding the dockets of the Sandiganbayan and
occupying the time and draining the energy of the prosecutors of the Office of the Special
Prosecutor, low-profile cases should no longer be filed with the Sandiganbayan but instead
should be subject of administrative adjudication.
 Low-profile cases are cases involving amounts not exceeding Pl Million and/or accused
who occupied positions of mayor and below, for elective officials, and bureau and office heads
with salary grade 28 and below, for appointive officials.

Administrative liability arrived at after administrative adjudication by the Office of the

Ombudsman requires only substantial evidence as quantum of evidence. Administrative
adjudication has GIPO investigator from the Fact-Finding Bureau of the Office of the
Ombudsman as the prosecutor and the lawyer of the respondent as defense counsel. It is
presided over by the hearing officer of the Preliminary Investigation and Adjudication Bureau of
the Office of the Ombudsman. The present practice is such that a resolution adjudging
administrative liability in the administrative adjudication proceedings brings with it a finding of
probable cause as regards the preliminary investigation of the same case. Hence, conviction in
administrative adjudication and the filing of Information with the Sandiganbayan are
simultaneous.

The penalties prescribed for a finding of guilt in administrative adjudication are

reprimand, fine, suspension, and removal from office with bar from re-entry and forfeiture of
benefits. The penalties of removal from office with bar from re-entry and forfeiture of benefits as
well as suspension are harsh enough punishment for mayors or bureau or office heads.

Moreover, the proceedings for administrative adjudication do not take as long as a

criminal case before the Sandiganbayan which takes at least five years at the minimum. The
celebrated Estrada cases before the Special Division of the Sandiganbayan has been pending
for five years now but the defense has yet to terminate the presentation of evidence. To think
that the Supreme Court especially created the Special Division to expedite the Estrada cases,
one can have an idea of how long it is for an ordinary case involving ordinary public officials or
concerning a measly sum of money. employees

AMENDMENT OF THE BANK SECRECY LAW

To give teeth to the anti-corruption drive of the Office of the Ombudsman, the Bank
Secrecy Law, R.A. 1405, should be amended. It should add the disclosure of bank deposits
upon the order of the Office of the Ombudsman as an exception to the rule of bank secrecy
thereby making it mandatory on the part of banks and banking institutions to disclose any
account subject of inquiry by the Office of the Ombudsman.

Of course, safeguards should be provided to prevent the abuse of this power. It is

recommended that the same probable cause required for the issuance of a search warrant or
warrant of arrest by a judge shall be determined by the Ombudsman to warrant the issuance of
an order for a bank to disclose the deposit of an official.

Section 2 of R.A. 1405 should be amended to read thus:

 Section 2. All deposits of whatever nature with banks or banking institutions in the
Philippines including investments in bonds issued by the Government of the Philippines, its
political subdivisions and its instrumentalities, are hereby considered as of an absolutely
confidential nature and may not be examined, inquired or looked into by any person.
government official, bureau or office, except upon written permission of the depositor, or in
cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of
duty of public officials, or in cases where the money deposited or invested is the subject matter
of the litigation, or upon order of the Office of the Ombudsman in relation to an investigation it is
conducting.

AMENDMENT OF THE ANTI-WIRE TAPPING LAW

Again, to arm the Office of the Ombudsman with the essential tools to detect corruption,
upon suspicion or complaint, the Office must be authorized to perform telephone interception.
Similarly, the Ombudsman must first determine the existence of probable cause as in the
issuance by a judge of a search warrant or a warrant of arrest for the order for a certain
telephone to be tapped. Hence, R. A. 4200, otherwise known as the Anti-Wire Tapping Law,
must be amended to this effect.

A new Section 4 shall be inserted after Section 3 and before Section 4 of R. A. 4200
should read thus:

Section 4. Nothing in this Act shall render it unlawful or punishable for any investigator or
prosecutor of the Office of the Ombudsman to execute any of the acts declared to be unlawful in
Sections 1 and 2 in the conduct of fact-finding, intelligence, preliminary investigation, and
gathering of evidence for trial upon written authorization of the Ombudsman upon a showing: (1)
that there are reasonable grounds to believe that a crime committed by a public official or
employee in relation to public office has been committed or is being committed or is about to be
committed (2) that there are reasonable grounds to believe that evidence will be obtained
essential to the conviction of any person for, or to the solution of, or to the prevention of, any of
such crimes; and (3) that there are no other means readily available for obtaining such
evidence.

AMENDMENT OF THE CONSTITUTION

A. SHIFT TO PARLIAMENTARY FORM OF GOVERNMENT

To remedy the situation of an overly strong president and consequently, the highly politicized
appointment of members the Judiciary, it is further recommended that the Constitution be
amended to replace the existing presidential form of government to the parliamentary form of
government.
 After a pensive analysis of both systems of British and America liberal democracy, the
conclusion is that the British system is less pr to corruption. It is submitted that the British
parliamentary system government exhibits more safeguards for the prevention of corruption It
also possesses sharper tools to combat this social scourge.

Hence, it is humbly recommended that the Constitution the Philippines be amended to

transform the government into t parliamentary system. With this system, the executive and
legislative branches of government are shared by the ruling party which, in turn, he its elected
Prime Minister, who, again, in turn, appoints the Ministers the Cabinet. It is suggested that there
no longer be a titular head as the would be a waste of public money. The recommendation thus
envision not parliamentary monarchy as the United Kingdom has, but rathe more similar to the
French model. The system of checks and balances is rich: we have the House of Commons as
mentioned above, on the on hand, and the Cabinet, on the other, when it comes to
implementation of policy and legislation. In the event of a stand-off between the House and the
Cabinet, either the Prime Minister abolishes the Parliament or the House of Commons takes a
vote of no-confidence on the Prime Minister.

As to how such a charter change can be effected - questions on whether it be through a

constitutional convention or through a constituent assembly, is however for an altogether
different treatise on the matter to answer.

The culture of corruption in the Philippines spurned by the Spanish regime of 333 years
may yet be washed away by a tsunami of social and political reforms, not only in terms of
government policy, but more importantly, from within the human psyche of each and every
Filipino individual. For no system of government can repair, much less, rebuild, a corrupt
society. One can only compare, as this book endeavors to do, the prevalent and leading political
systems of liberal democracies in the world today as to which has the minimal probabilities of
producing corruption and as to which has the effective tools of investigating and prosecuting
corruption.

B. MEMBERS OF THE JUDICIARY TO BE APPOINTED BY THE CABINET AS

RECOMMENDED BY THE SUPREME COURT

As mentioned above, the presidential form of government is characterized by an overly

strong president. This excess power is further seen in his sole prerogative of appointing the
members if the Judiciary. This undermines the independence of the Judiciary which should be
alive and well in a truly liberal democracy. As discussed above, it is quite apparent that the
independence of the Judiciary in the Philippines is a myth - a fairy tale designed to give lip
service to the constitutional tenet of separation of powers and the system of checks and
balances.
 On this score, the Japan model is highly recommended which, as mentioned above, has
all the members of the Judiciary appointed by the Cabinet from a list of nominees prepared by
the Supreme Court. These nominees come up from the rigid 18-month Legal Training and
Research Institute of the Supreme Court capped by competitive examinations. The members of
the Supreme Court, in turn, are appointed by the Cabinet. Note that the Prime Minister is not the
appointing power. Consequently, Section 9 of Article VIII should read, as follows:

Section 9. The Members of the Supreme Court and judges of the lower court shall be appointed
by the Cabinet (President) from a list of at least three nominees prepared by the Judicial and
Bar Council for every vacancy. Such appointment needs no confirmation.

For the lower courts, the Cabinet (President) shall issue the appointments within ninety
days from the submission of the list of nominees from the Supreme Court.

Of course, it is understood that the system of government under which this new
appointment system of members of the Judiciary shall be the parliamentary form of government.