Tony La Viña of the AdMU School of Government said that the long-awaited, oft postponed E.O. on Mining would be a disappointment for everyone. He was incorrect. The miners are applauding.
The E.O. is a mixed bag. It doesn’t please everyone. It didn’t try to. But I wish I were less disappointed than I am. And that environmentalists I know were less disillusioned.
Of course, there are items in the E.O. that should make me happy. And I would be lying were I to say I am not happy for them. Already the title provides hope: “Institutionalizing and Implementing Reforms in the Philippine Mining Sector, Providing Policies and Guidelines to Ensure Environmental Protection and Responsible Mining in the Utilization of Mineral Resources.” The intention was right. So much promise: to ensure environmental protection, to ensure responsible mining, even in the use of mineral resources.
In this context, the E.O reiterates…
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SALN: Great filers, big barriers
Last of Two Parts
AMID the rampant misdeclaration or underdeclaration of their Statements of Assets, Liabilities, and Net Worth (SALN) by senior public officials lies a prettier, often overlooked, picture: the few good men and women in high and low positions who follow the law most diligently and truthfully.
To this minority of good SALN filers belong a number of Cabinet members and officials of constitutional commissions. The ties that bind them are a few things. Most came from the private sector or the professions where they founded their wealth. They are political appointees, but until they became part of government nearly all had no history of engaging in party politics or running in elections. Of fairly senior age, most are self-made names with fairly good credentials or work portfolio, even before public office beckoned.
This exceptional few replicate the good example of rank-and-file civil servants who consider filing their SALNs as a most solemn duty. Various media reports on patterns of compliance with the SALN law have celebrated public school teachers, career service personnel, and low-level bureaucrats who submit fully accomplished SALNS every year without fail.
Their compliance with the law has been encouraged in part by employees associations, periodic reminders and review of their SALNs by agency human resource officers, and in the case of public school teachers, risk avoidance. Some public schools have set a firm policy: file no SALN by the April 30 annual deadline, collect no salary for the summer school break.
But trying to assess who filed what kind of SALN can be tricky, in part because those seeking access to SALNs find themselves being forced to go through hoops and red tape.
Faulty SALN filing can actually be a violation of several laws, among them the 1987 Constitution, the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act No. 6713 (R.A. No. 6713), and the Anti-Graft and Corrupt Practices Act or Republic Act No. 3019 (R.A. No. 3019).
According to the R.A. No. 3019, “every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file… a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year.”
In addition, the Constitution says that public officials must disclose to the public copies of their SALNs.
The fundamental law of the land, in fact, prescribes disclosure of SALNs by senior-rank officials. It states: “In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”
Entry, exit SALNs
Transparency, under the Constitution, is a state policy. In Section 8, Article II, the Charter says: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”
Indeed, apart from filing SALNs every year, the Constitution and R.A. No. 6713 require elective and appointive officials to also submit what might be called their entry and exit SALNs – the first refers to asset records they must file within 30 days from assumption into office, and the second, to asset records their must file within 30 days after resignation or separation from service.
SALN filers and custodians have just three simple tasks under the law, according to lawyer Nepomuceno Malaluan, co-convenor of the Right to Know, Right Now! Coalition. First, make a truthful declaration. Second, submit such declaration within deadline. Third, file and publicly disclose asset records.
The third is a shared task of both the filer and the SALN custodian, who receives, keeps, and is supposed to share SALN copies to the public, in the manner provided by law. Nonetheless, nothing stops all filers who have copies of their SALNs to share and disclose these outright, on request of the public or the media.
The law spells out the manner of disclosure of SALNs under its section titled “accessibility of documents,” says Malaluan. It provides that SALNs shall be made available for inspection at reasonable hours, and for copying or reproduction after 10 working days from the time they are filed, subject to the payment of a reasonable fee to cover the cost of reproduction and mailing of such statement, as well as the cost of certification.
Right to know
Complementing this duty to disclose is the people’s right to access information in the custody of public agencies that the Constitution also guarantees.
Disclosure is required precisely because SALNs are supposed to serve as instruments of such valued principles as transparency and the people’s right to know on one hand, and accountability and good governance on the other.
SALNs are a tracker document: they fix and plot the wealth of public officials, by type of assets and liabilities and time of acquisition, and from their dates of entry to and exit from public office.
SALNs are a reference document as well: they spell out, or should, the context and links of the wealth of public officials, their business interests and financial connections, and where exactly they might get into real, potential, or perceived conflicts of interest when they decide public policy or award public contracts and funds.
Malaluan says the members of the 1986 Constitutional Commission had set high hopes and standards for the potential of SALNs to affirm all these hallmarks of good governance.
The late Sen. Blas F. Ople, a ConCom member, did not see SALNs as documents that should just be archived or left to rot in the filing cabinets of public agencies. Disclosure of their SALNs, Ople had stressed, should be a bigger and more reasonable expectation of the most senior public officials.
Citing ConCom records, Malaluan quotes Ople as saying, “In a society, it is understood that we have to lead by example and those who have this burden more than the others are the holders of the greatest power.”
“(O)ne of the objectives it wishes to serve is the development of a higher level of ethical practice in the government,” Ople had also said, “so that it is addressed to the public’s right to know, but at the same time it would put all public officers within the compass of a duty to disclose their own conflict of interest when this arises or to make available information, such as statements of assets and liabilities and net worth, as a matter of obligation under this provision.”
Half and half
Far too few have heeded Ople’s words, however. Indeed, President Benigno Simeon C. Aquino III and about half of his two dozen Cabinet-rank appointees filed 2010 SALNs that are largely lacking in substantive facts about when and how they acquired their real assets, as well as the details of their investments and liabilities.
Fortunately, the other half filed fairly to absolutely complete SALNs for 2010, in point of both form and substance.
The good filers include Agrarian Reform Secretary Virgilio de los Reyes, Foreign Affairs Secretary Albert del Rosario, Energy Secretary Jose Rene Almendras, Defense Secretary Voltaire Gazmin, Trade and Industry Secretary Gregory Domingo, Finance Secretary Cesar V. Purisima, Public Works and Highways Secretary Rogelio Singson, Tourism Secretary Ramon Jimenez, Presidential Legal Counsel Eduardo de Mesa, National Anti-Poverty Commission Chairman Jose ‘Joel’ Rocamora, Metro Manila Development Authority Chairman Francis Tolentino, Transportation and Communication Secretary Manuel ‘Mar’ Roxas and his predecessor, Jose ‘Ping’ de Jesus. All of them, except for Roxas, had not sought or assumed elective positions.
De los Reyes even attached his income tax return (Form 1700 of the Bureau of Internal Revenue) and his certificate of compensation tax withheld (BIR Form 2316) for the honorarium he received as professor at De La Salle University’s College of Law for the year 2010.
Civil Service Commission (CSC) Chairman Francisco T. Duque is exemplary for the depth of details of his SALN although it is under his watch that the CSC imposed an exorbitant fee of P200 on requesters for each SALN copy, which is typically all of two to five pages long.
Duque’s SALN for 2010 came with four annexed documents. Annex A listed10 real properties he owns, including the exact unit number of the condominium units and addresses of the houses, the exact months and years when he purchased each, and the amount he paid to the last peso, to acquire each one.
Annex B listed six motor vehicles and the exact years and amounts he paid for each one. Annex C listed five investment instruments he has in three country clubs and accounts in two banks, and the exact months and years when he acquired and opened these.
Annex D listed to the last all his jewelry – including two diamond rings with exact stone setting, paintings by Filipino masters that he identified by name, and when and at what cost he acquired these.
In the Cabinet, Foreign Secretary del Rosario comes closest to the completeness of the details that Duque enrolled in his SALN. For instance, del Rosario submitted a three-page list of his business interests and financial connections from1965 to 2010, as well as the executive and board positions he assumed in each one.
Commission on Elections Chairman Sixto Brillantes Jr. and former Commission on Audit Chairman Reynaldo A. Villar filed fairly complete SALNs as well.
Gaps in access
Filing SALNs is advisedly just the first step in complying with the law. The second step, filing truthful and complete SALNs, is the foremost compliance problem. But even worse, publicly disclosing SALNs promptly and at reasonable cost, the third step, seems the most sticky issue for now, a full 23 years after R.A. No. 6713 came into force.
“The public disclosure element plays a very vital cog in the system of accountability that the Constitution wanted to achieve on SALN,” wrote Malaluan in a recent commentary on SALNs. “But the public disclosure component leaves much to be desired in practice.”
He added that in some agencies, notably the Supreme Court and the House of Representatives, “one mechanism to frustrate compliance is through administrative avoidance.”
“Rather than facilitating the orderly implementation of Section 8 (C) of RA 6713, some government agencies apply instead the general duty, also under RA 6713, to act promptly on letters and request within 15 days from request,” Malaluan wrote. “Any response, including acknowledgement, referral, or indication of future action, is regarded as substantive compliance.”
High court huge barrier
Yet worst of all, Malaluan rued that some major custodians of SALNs, notably the Supreme Court again, the Civil Service Commission, and the Office of the Ombudsman, “have promulgated guidelines that go beyond reasonable regulation of the manner of access, and which appear intended more to subvert the plain, mandatory directive of the Constitution for disclosure of SALNs to the public.”
In May 1989, the high court issued an en banc resolution requiring requesters to state the purpose of the request and outlined the conditions under which requests would be denied. Three years later, in September 1992, the tribunal “issued an even more restrictive guideline authorizing the Court Administrator to act on requests only upon a court subpoena signed by a presiding judge in a pending criminal case against a judge or court personnel, or upon an appropriate request personally signed by the Ombudsman,” Malaluan wrote.
In June 2009 as Ombudsman, Ma. Merceditas N.Gutierrez issued Memorandum Circular No. 1 that, Malaluan said, “limits the legitimate reasons for requests, requires requests to be subscribed and sworn to, and introduces a wide discretion for denying requests for SALNs.” Gutierrez’s circular remains in force under the watch of Aquino appointee, Ombudsman Conchita Carpio-Morales.
And finally, on March 11, 2011, the CSC adopted Resolution No. 100356 requiring SALN requests to be sworn to, and imposing a P200 fee for each SALN copy.
And even as it continues to refuse requests for the SALNs of the members of the House of Representatives that PCIJ filed 20 months ago, the lower chamber is also reportedly planning to adopt the CSC’s guidelines on the disclosure of SALNs.
Should this happen, and the House follows even the CSC’s imposition of a P200 fee per SALN copy, the asset records of nearly 300 district and party-list representatives is sure to cost journalists and researchers a fortune – about P60,000 for all the SALNs of the House members.
Already, the Commission on Elections has copied the CSC’s rules. The poll body now also collects a P200 fee for each SALN copy.
The following agencies are the custodians of SALNs:
- The national office of the Ombudsman, for the SALNs of the President, Vice President, and officials of the constitutional commissions (CSC, Comelec, COA).
- The secretary/secretary-general of the Senate and the House of Representatives, SALNs of the senators and congressmen.
- The clerk of court of the Supreme Court, SALNs of the justices.
- The court administrator, SALNs of the judges.
- The Office of the President, SALNs of the Cabinet secretaries, undersecretaries, assistant secretaries, and the heads of the foreign service missions, government-owned and –controlled corporations (GOCCs), and state colleges and universities (SUCs).
- The offices of the Deputy Ombudsman (for Luzon, Visayas, Mindanao), SALNs of regional and local officials and employees, both appointive and elective, including other officials and employees of GOCCs and SUCs.
- The Office of the President, SALNs of the officers of the Armed Forces from the rank of Colonel or Naval Captain, while those of lower rank, below with the Deputy Ombudsman in their respective regions.
- The Civil Service Commission, SALNs of all other public officials and employees.
As a rule, though, copies must also be filed with the respective departments, agencies, and offices of the SALN filers.
FOI boon or bane?
But better compliance with the SALN law may soon happen – that is the guarded optimism that Malaluan holds in light of the long-awaited passage of the Freedom of Information Act. Last February, President Aquino finally transmitted to the Senate and the House his administration’s version of the FOI, which enrolls a provision on the mandatory disclosure and upload online via government websites of the SALNs of all public officials and employees.
Still, Malaluan reckons that good or bad things may happen. The good, he says, is that the FOI may enhance “proactive disclosure, procedure for access, and administrative and criminal penalties for violation of the right to information, plug loopholes not only with respect to access to SALNs but to all other government-held information.”
But the other possibility smells of trouble. Given the controversy that the SALN has generated in light of the impeachment trial of Supreme Court Chief Justice Renato Corona, Malaluan says that the provision on mandatory disclosure online of SALNs in the President’s FOI version could precisely draw heat and flak from the legislators, and challenge the passage of the FOI Act. –PCIJ, March 2012