By Ado Paglinawan
Part 1 of 3 : Based on legalese, Duterte wins first round
In Franco Zeffirelli’s 1968 adaptation of Romeo and Juliet, the character Mercutio says, “The best intentions pave the way to Hell,” a line which does not appear in Shakespeare’s play.
This is what I just did – apply the second meaning of “corruption” in the Goggle dictionary, that is the process by which something, typically a word or expression, is changed from its original use or meaning to one that is regarded as erroneous or debased.
And no, I am not accusing the Commission on Audit, specifically its Chairman Michael Aguinaldo, of any misfeasance, malfeasance or non-feasance. Not even if you take the first meaning, which says, dishonest or fraudulent conduct by those in power.
Dishonesty or fraud is not my concern here, nor am I referring to anything close to that. I am talking about corruption not by money or duress, but corruption of power by any government agency.
So lets walk this through.
Empowerment, Carpio-Morales style
In 2017, Conchita Carpio-Morales signed a memorandum of agreement (MOA) with COA Chairman Aguinaldo crating “a joint task force that automatically investigates audits involving at least P100 million, graft and corruption cases investigated by Congress, and other “cases imbued with public interest regardless of the amount involved.”
According to her, the Office of the Ombudsman could have stepped in to investigate the audit report of the Department of Health (DOH) that showed P67 billion worth of pandemic funds that were deficiently used.
“If I were still with the Ombudsman, I would activate the MOA and constitute a new task force so that I would be updated with the development instead of just waiting for a report,” Morales said in Taglish.
“If you leave it just merely saying wait for…wait forever, walang deadline, walang mangyayari diyan (with no deadline, nothing will happen),” she added.
Well, I agree and disagree.
I agree, kung hindi kumpleto o walang compliance. In this particular audit process, DOH would have to report to the COA if they have enforced the recommendations. The DOH told the House of Representatives in a hearing last August 17, that it has resolved five recommendations, partially resolved four, and is complying with the remaining four.
So, I disagree, nagkakaroon na ng substantial compliance. At matagal pa ang deadline! So i-explain lang sa publiko.
Besides, in the event of non-compliance past deadline, the most serious action by the COA in an audit process is to issue a notice of disallowance. This is even appealable to the COA en banc for a final allowance or disallowance.
Such is the maximum, the teeth of COA can go. Why because it is just an accountancy body, with no prosecutorial powers.
The closest the Constitution hints short of any prosecutor powers for COA is found in Article IX-D, in Section 2:
The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.
There is nothing there about prosecution.
To run after any agency or individual, it needs the fangs of a prosecutor by either the route of the Ombudsman of the Department of Justice.
Hence, the Aguinaldo-Morales memorandum of agreement.
Morales said the vision of the MOA was “to bring a prosecution lens to the audit process. Members of the joint task force are from the Office of the Special Prosecutor of the Ombudsman.”
If the task force were active, it would have already “definitely” investigated the DOH audit. “You don’t have to order them, it would have been automatic, and not wait for the order of the Ombudsman, because that’s the subject of the MOA,” continued Morales.
This MOA is on top of an inherent power by the Office of the Ombudsman to kick-start an investigation on its own or motu proprio, without the need for a complaint.
What moralizing Morales did not say, however, is that even without the MOA in force, Ombudsman Martires was way ahead of her and had, in fact, ordered, motu propio, as early as June 2020, the investigation relative to the procurement of test kits, PPE’s and other emergency purchases that resulted to the preventive suspension of at least five DOH officials.
Presumption of innocence and regularity
On the other side of the fence, Ombudsman Samuel Martirez said that “observations of the Commission on Audit (COA) anent the Department of Health’s (DOH) 2020 budget utilization as contained in its Annual Audit Report (AAR), is still undergoing the completion of the auditing process.
“As of this stage of the proceedings the agency is given the opportunity to ensure full implementation of all audit recommendations to improve its financial and operational efficiency.”
“The audit process is still on-going and not yet complete, and we still operate under the Constitutional presumption of innocence and regularity.”
Short of calling the newspaper reports and public criticisms as most premature as the period of opportunity given is 60 days, and the deadline is still a month away (on the third week of next month September, I heard), Martirez clarified that “should there be non-compliance or disagreement in the implementation of the recommendations and observations of the auditors, the matter may still be elevated to the COA en banc which has the final say on the matter.”
Martirez clarified that he has “already deactivated the task force (created by the 2017 COA-OMB MOA) because I noted some legal infirmities in the MOA like usurpation of authority,”
He said he wanted to avoid another wastage of government resources and embarrassment on the part of the Ombudsman prosecutors, which happened in the anti-graft and malversation cases which Justice Carpio Morales filed against former Congressman Enrico Echeverri and several department heads of Caloocan City, based on an Audit Observation Memorandum of the COA.
The Ombudsman narrated “When the cases were filed, the audit process has not yet been completed and the accused were able to appeal the audit observations to the Commission en banc, which overturned the findings of the auditors.
“Meanwhile Carpio-Morales’ criminal cases pending with the Sandiganbayan reached the Supreme Court which, on the basis of the decision of the Commission on Audit Proper, dismissed the cases.
This forced the prosecutors of the Office of the Ombudsman to withdraw all other cases against Echiverri et al before they could retort that their rights to due process of law have been violated.
“The findings of the auditor can be likened to a decision by the Regional Trial Court which is appealable to the Court of Appeals or the Supreme Court. In this case, the audit observations can still be brought to the Commission Proper for final decision,” said Martires.
Note, however, that the foregoing discussions deal on the circumstances that would warrant prosecution, that is why Mayor Duterte, a former ace-prosecutor, wins the first round.
Stopping corruption by sheer legalese?
President Rodrigo Duterte has defended the DOH and Health Secretary Francisco Duque III and lashed out at the COA, saying audits must be stopped while “work is ongoing” and that reports should not be published.
There is no debate that 1987 Constitution grants the COA the exclusive power to audit government, using a scope decided by them solely. But this function is limited to the maximum of disallowance.
Again on its own, COA cannot prosecute.
What makes this sensitive is that Chairman Aguinaldo is an appointee of former President, the late Noynoy Aquino, who had been rather notorious for false starts.
The public is also discerning motivations here.
Carpio-Morales, post retirement from government, has been directly linked with powerful oligarchs and opposition hawks behind the Oust Duterte movement.
Aguinaldo, however, appeared unequivocal in the Congressional hearing answering partylist representative Rodante Marcoleta’s interpellation.
But as we speak, a litany of flags or should I say flashpoints are viraling social media (I will provide a list in Part 3) with inputs lifted from the COA website.
The COA chair maintained that the publication in the media of annual audit reports is beyond their control. “Our reports are published in the COA website as required by law. Hindi po kami nagpre-press release ng findings namin.”
This was in response to earlier “flogging” by the President.
“You make a report, do not flag. Do not publish it because it will condemn the agency or the person you are flagging,” Duterte said during a taped Malacanang briefing.
The COA chief rebutted the president, “We do not flag, it is only the media that uses that term,” Further he pointed out that COA has no control of what the media pick up and publish from the audit agency’s website.”
Aguinaldo missed the boat entirely. He was in the right place at the right time. But with an abbreviated message. He did not have to just defend his agency, he could have taken the opportunity of appealing to the legislature to work on an enabling act, converting his MOA with Carpio-Morales into a law, but imbued with safety nets that respects and safeguards the presumptions of innocence and regularity in order to avoid court dismissal by sheer technicality.
As a MOA, it did not suit me. In fact, that is why Martirez collapsed it. The fiat must come from Congress, and not just at the convenience of two constitutional bodies.
This would have also given Malacanang, and all of government, the signal for superiors to crack the whip over the offices under it, to do their numbers and fulfill liquidations right the first time.
I do not buy this crap that COA flags adds to the red tape. What is closer to the truth is that violators use loopholes in the law and protocols to promote their crookery and escape their crimes.
The procedure must be easy for those compliant, but harsh for offenders.
Agencies must be proactive. Inclusion and exclusions, allowances and disallowances can be negotiated by the agencies with COA as early as when their budgeting anticipates gridlocks.
Again, if the help of Congress is needed to expand rules and conditions prevailing, both COA and the affected agencies can lobby to amend present antiquated laws.
In fact, COA must be guaranteed by law, protection in publishing their required reports. That is transparency, so why is the President who shot across the bow that he will act as punisher of corruption at sheer whiff, complaining?
He should be the first one to support publications of deficiencies, unless his campaign against corruption is mere lip service.
Mapapahiya? (Shamed?) Mawawarak? (Demolished?) So, be it! So, follow the laws pertaining to spending of and accounting for public funds.
Meanwhile, let the violators hang high and dry!
In our society, shame is the best deterrent. Our culture is warped by the “palusot” mentality in the hope of avoiding full compliance. You do not want to be flagged, then comply with existing rules and regulations up front. Even if pre-audit doctrine has been removed, exercise due diligence.
Too stringent, then negotiate with COA. Non-negotiable by law, seek Congress for amendments, and where applicable remedies by lower fiats like executive or administrative orders.
Real change means no more excuses. Transparency is the best deterrent to corruption!
(Part 2 will appear on the Thursday, August 26 edition of SovereignPh.com)