B y Malou Mangahas
Philippine Center for Investigative Journalism
Last of Two Parts
THREE MONTHS after Renato C. Corona was impeached as chief justice for his failure to declare and disclose the full and true details of his wealth, the justices of the Supreme Court remain unrepentant over their opaque ways of old.
Indeed, they have yet to show proof that transparency in regard to their Statement of Assets, Liabilities, and Net Worth (SALNs) has now become both principle and practice of the highest tribunal of the land.
Until last week, the personnel in charge of receiving requests for SALNs in the Office of the Clerk of Court say the Court has not yet released even a single SALN to any one of the 64 parties – media agencies (including PCIJ) and law students – who have filed requests for SALNs as of Aug. 17, 2012.
The court en banc has granted provisional approval of only two requests by reporters from two television networks, and a third from a San Beda law student for “academic purposes” only. The approval was conditioned, however, on their completion of documentary requirements imposed in the “Guidelines for the Release of SALNs/Personal Data Sheets/Curriculum Vitae” that the high court issued on June 13, 2012.
The court also released its final SALN Request Form just last June 27, a full month after Corona was ousted on May 29, 2012 by a 20-3 vote of the Senate impeachment tribunal.
Even legal experts say the Guidelines only codify the 23-year practice of the high court to routinely rebuff or restrain the release of SALNs, according to a series of en banc administrative orders issued since 1989. A high court insider admits as much: “It’s the same thing. The Guidelines merely put down the usual practice to deny or make SALN disclosure very difficult.”
According to the high court’s Guidelines, citizens and journalists who want SALN copies must fill out a multi-question form, submit multiple supporting documents, and have the request subscribed and sworn to before a notary public.
These requirements contravene the spirit and letter of “The SALN Law,” or Republic Act No. 6713, which simply states that SALN custodians must make available copies of the document within 10 working days from the date these were filed, and at reasonable costs.
In the case of the high court’s guidelines, the authority of the Clerk of Court as SALN custodian to disclose the documents at will has been proscribed by provisions that all requests will still have to be referred to the en banc, and that only the en banc may authorize the actual release of the SALNs.
By all indications, transparency in the high court is an issue stuck in a draw situation, despite all proclamations of then Acting Chief Justice Antonio T. Carpio that the court had begun to mend its secretive ways.
To Senator Rene A.V. Saguisag, a professor in the law schools of San Beda College and Arellano University, only one person has both power and opportunity to settle the issue now: The nation’s first woman chief justice, Maria Lourdes ‘Meilou’ P.A. Sereno.
Saguisag has required all his law students to secure the SALNs of the high court justices. Of the 64 requests on file with the court as of last week, 95 percent had actually come from Saguisag’s students and just a handful from media agencies.
Saguisag and then Senate President Jovito R. Salonga are the chief authors of “The SALN Law” or R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).
It’s been 23 years since the law passed in 1989, and it’s high time, Saguisag says, that the high court follows the law. “The new CJ should do the right thing,” he says, “and an immediate publicity boost is an incidental benefit, in starting reform with transparency and accountability.”
Too, he says it’s time for the sun to now shine on the court on two other matters: “Accounting for the JDF (Judiciary Development Fund) since 1984 (and) stopping secret rulings.”
SC = ScoffLaw?
In Saguisag’s mind, the high court’s concerns that by disclosing their SALNs justices and judges could fall victim to harassment or kidnapping by certain litigants or malefactors are without sufficient basis. “No Senator or Cabinet member has complained of harassment. Who would think of harassing a Justice who files a truthful SALN?”
“Kidnapping? Kidnappers know how to kidnap without looking at SALNs,” he adds. “The SC should not stand for ScoffLaw.”
Saguisag notes that of Sereno’s “publicized promises” to reform the judiciary, nothing has yet been said about the disclosure of SALNs and public finance records of the high court. He also says, “In CJ Meilou’s publicized promises, nothing is mentioned about following Justice Martin Villarama’s example: the release of one’s SALN, not only an elliptical summary.”
In a letter dated Jan. 19, 2012, Villarama had defied all his colleagues in the high court by directing the tribunal’s Clerk of Court to release his SALN as of December 31, 2011, to a civil society group and three independent media agency, including the PCIJ. Villarama authorized the disclosure of his SALN “in view of recent developments and on a personal privilege.”
By contrast, days earlier, Sereno and Carpio had separately released to the media summary numbers enrolled in their SALNs for the years 2009 and 2010. To this day, neither had disclosed their actual SALNs.
Saguisag points out that Sereno and Carpio “only released summaries (of their SALNs), which do not help the public in detecting possible conflicts of interest and movements in fortunes.”
He then throws a challenge at the new chief magistrate: “Will the Sereno Supreme Court finally follow what the SC did only for one year, publish its members’ SALN, as the Cabinet and the Senate have been doing?”
As things stand, two particular provisions of the high court’s Guidelines on the Release of SALNs/PDS/CV have attracted Saguisag’s ire: One on release of SALNs without the names of the justices if these will be used “for academic purposes,” and another barring the release of SALNs to citizens who want the documents out of “pure or mere curiosity.”
Says Saguisag: “My many students in San Beda (College) Mendiola and Alabang, and Arellano (University) could not move forward because they are required to produce a letter from me that the material would be used solely for academic purposes, which is an amendment of the law I cannot recognize.”
“A citizen as a particle of popular sovereignty (Laurel) should not have to be compelled to lie or commit a terminological inexactitude (Churchill),” he says, “We passed the law to implement the Constitution’s provision on transparency, Article VI, Section 17, which only the Senate and the Cabinet honor. Some of the filings may even be true, accurate and complete.”
Nada, rien, zilch
Saguisag rues that, “many citizens have nothing to do with academic life and cannot produce the required certification.”
He laments that the high court has been so stingy even with copies of the last SALNs that Corona should have filed before leaving the court. “I told my students in San Beda and Arellano, if anyone can produce copies of Rene Corona’s 2011 SALN due last April 30, and his exit SALN due late last June, I guarantee the stude a grade of at least 74.99999999.” The result: “So far, nada, rien, zilch, wala, angapo.”
Like Saguisag’s law students, PCIJ has been through a long, sad saga of securing SALNs from the judiciary. Every year since 2006, PCIJ has been filing requests for the justices’ SALNs, and every year, the high court has rebuffed the requests.
These days, it has found that the new Guidelines have made disclosure practices even in the Judicial and Bar Council (JBC) more opaque.
Before the Guidelines, the JBC had actually released to the media and citizens’ groups copies of the Personal Data Sheets (PDS) – not the SALNs starting in the mid-‘90s – of all applicants to the position of justice or judge.
After the Guidelines, a PCIJ request dated July 27, 2012 for copies of the SALNs/PDS/CVs of the 20 candidates for chief justice, including six incumbent magistrates of the high court, met with an unusual reply from the JBC.
The SALNs are “for the eyes only of the JBC members,” and as for the PDS, the JBC said the PCIJ may get copies only of the candidates from outside the bench, or “excluding those of the incumbent justices.”
JBC executive officer Annaliza S. Ty-Capacite tells the PCIJ: “The decision of the JBC was, sige, release the PDS, sans personal information, except for the six incumbents.”
Ty-Capacite says she had herself seen a possible case of double standards might result from the distinction made between the PDS of candidates who are outsiders, and those who are insiders or members of the court. “So,” she says, “I even asked for a clarification, dalawang standards? Sabi, oo daw, just explain that for the justices, we are bound by the decision of the Supreme Court and its Guidelines.”
She acknowledges that before the Guidelines, the JBC had readily released the PDS of candidates to vacated positions in the judiciary. Now, however, “because of the decision of the Supreme Court, that is the supervening event, so the policy of the JBC was in a way amended,” Ty-Capacite says.
“Mahirap, mahirap naman na magkaiba kami (It’s hard, it’s hard if we were to be different (in policies),” she remarks.
The implication is clear and grave: Because of the Guidelines, the PDS of incumbent judges and justices who will undergo the JBC’s selection process will remain secret, while those from outside the bench will be exposed to one and all.
The Constitution says it is an agency “under supervision of the Supreme Court” but the JBC has dedicated itself to a lofty vision statement: “A JBC that is independent, efficient and a proactive sentinel of judicial service, guided only by the principles of integrity, excellence and competence; unfettered by the shackles of friendship, relationship, or other considerations, thus vesting the cloak of Magistracy on those who will best dispense justice for all.”
Maria Milagros N. Fernan-Cayosa, a JBC regular member representing the Integrated Bar of the Philippines, tells PCIJ that the clause “under supervision of the Supreme Court” in practice pertains largely to the JBC’s budget and personnel welfare matters.
“’Yung supervision, it’s really more of the admin matters, for example, if I take a leave, I have to go through the processes of SC,” Fernan-Cayosa says. “But to be fair, except for the time when a colleague is nominated, they can take a vote but it’s not imposed on us, just for our guidance because they realize we have our mandate, to do our work as independently as we can.”
“For the record,” she adds, “there has been no attempt whatsoever to influence us, to even indicate, or even any pressure from the court.”
But the high court’s Guidelines on the Release of SALNs/PDS/CVs have certainly made the JBC’s selection process murkier.
A series of PCIJ letters to the JBC requesting copies of the SALNs of the 20 candidates had all been rebuffed because of the Guidelines.
On July 24, 2010, PCIJ wrote the Supreme Court en banc – and filed a copy with the JBC – to request revisions of the Guidelines on four major grounds:
- The guidelines should include the presumption in favor of the right to information of requesting parties.
- The guidelines should include reasonable time periods for the grant or denial of a request. Absent such, the right to information could easily and effectively be frustrated through mere administrative inaction.
- The guidelines should include an orderly and speedy procedure for appeal or review of a denial of a request.
- The guidelines should dispense with the unwarranted distinction between the latest SALN/PDS/CV and those filed in prior years.
PCIJ’s letter cited the deliberations of the Constitutional Commission showing that the 1987 Constitution sought to institutionalize a new form of accountability in government through the SALN, in order to “deter conflicts of interest, prevent graft and corruption, and allow the public to determine whether the highest officials of the land are living within their means.”
JBC defers to SC
To this day, a month after this letter was filed, the high court en banc has yet to respond to the PCIJ’s proposed revisions of its Guidelines.
PCIJ filed a second letter with the JBC on July 27, 2012, with a specific request for copies of the SALNs/PDS/CV of the 20 candidates for the position of chief justice.
In this letter, PCIJ recalled that years back, the selection process was more open, the JBC actually disclosed to the media and citizens groups copies of the asset records of the candidates. “These public records secured from previous JBC selection processes are, in fact, publicly available online on the PCIJ database on governance and politics, www.i-site.ph, and had informed numerous investigative reports we have posted online on the PCIJ portal, www.pcij.org,” PCIJ wrote the JBC.
“We would like to keep faith that with the refreshing and widely acclaimed openness that marks the conduct of the JBC during this selection process, a new regime of true transparency and accountability may soon unfold and flourish, too, in the judiciary,” PCIJ also said.
On Aug. 9, 2012, PCIJ wrote the JBC again, this time to submit “an urgent appeal” for approval of its request for the SALNs of the incumbent justices. PCIJ noted that the Constitution’s policy of transparency, which the JBC had declared it would uphold, “may be fully harnessed even in regard to the PCIJ’s request for the SALNs of the incumbent justices who are candidates to the position of chief justice.”
“To do otherwise,” the PCIJ said, “would be to discount the policy of full transparency that the JBC has adopted for this selection process.”
On Aug. 10, 2012, JBC’s Ty-Capacite replied: “Please be informed that the Judicial and Bar Council, during its en banc meeting on 6 August 2012, granted your request for copies of the PDSs (but sans personal information) of candidates for the post of Chief Justice, except those of the six incumbent justices of the Supreme Court, the release of which is subject to the guidelines set forth in the decision promulgated on 13 June 2012 (by the Supreme Court).”
In addition, the JBC letter stated: “As to the SALNs, we regret to inform you that the JBC agreed not to release them as they are required of the candidates only for the purpose of the JBC’s evaluation.”
The PCIJ filed a second appeal, also on Aug, 10, 2012, this time stating two specific purposes of its request for SALNs:
- The PCIJ would like to get the SALNs of the candidates for chief justice for research and reporting on their asset records, and to validate the new transparency commitment of the judiciary; and
- The PCIJ is working on a story about SALNs and the public disclosure practices of the Judiciary and the House of Representatives, after the impeachment trial of former Chief Justice Renato Corona.
On Aug. 13, 2012, the JBC replied again through Ty-Capacite: “Please be informed that the Council en banc during its meeting on 10 August 2012 agreed to refer to the Supreme Court your request…Attached is our letter to the Clerk of Court.”
Finally, if also grudgingly, PCIJ on Aug. 14, 2012, filed by fax and email two requests for the SALNs of the justices of the Supreme Court and of the Sandiganbayan. The PCIJ delivered the request letters, complete with all the documents required in the Guidelines, to the Office of the Clerk of Court the next day.
For its request for SALNs, PCIJ filled out the three-page SALN request form and submitted the following documents to Clerk of Court Enriquetta Esguerra-Vidal:
- Attachment A: Documents Requested by the PCIJ, notably all the SALNs filed by the justices from their respective years of appointment into the courts, and up to the latest-year’s SALNs.
- Attachment B: Purpose of Request and Interest Sought to Be Served
- Attachment C: Justification for Requests for Previous SALN, PDS or CV
- Certification of Media Affiliation of Requester (this reporter)
- Certification of Accreditation of Media Organization (PCIJ) as a Legitimate Media Practitioner for Requester
- Certificate of Registration with the Securities and Exchange Commission of the PCIJ dated March 2, 1989
- Business Permit of the PCIJ from the Office of the Mayor of Quezon City, issued on March 8, 2012
- Government-issued identification card of the Requester (passport)
- Community Tax Certificate of the Requester
- Completed Request Form subscribed and sworn to before a notary public.
In response to the “Purposes of Request” question in the SALN form, PCIJ said it wants to use the SALNs as “resource materials for journalistic research, stories, and reports on
- “The accuracy and/or truthfulness of the declaration of assets and liabilities, to be done by comparing with data entries publicly available from other government agencies such as the SEC (Securities and Exchange Commission), LRA (Land Registration Authority), and DTI (Department of Trade and Industry);
- “Tracking the levels and growth or decline in the wealth of members of the Judiciary over their period of incumbency;
- “The potential conflict of interests that may arise based on the business interest and financial connections disclosed;
- “The judiciary’s actual implementation of the new SALN guidelines, contrasting it with the experience on previous guidelines and against other government agencies; and
- “To upload the SALNs or data entries/sets in the PCIJ online facilities.
In response to the question about “Interests Sought to be Served,” PCIJ stated: “To contribute to the promotion of the Constitutional and statutory objectives of transparency, accountability of public officers to the people, the eradication of graft and corruption in government, and upholding the integrity, probity and independence of members of the judiciary, and the exercise of constitutional rights to information and press freedom.”
In response to the question about “How Interests will be served” by the request for SALNs, PCIJ wrote:
“As stated by the Supreme Court in Oca v Usman (A.M. No. SCC-08-12), the making and submission of a complete disclosure of assets, liabilities and net worth “serves as the basis of the government and the people in monitoring the income and lifestyle of public officials and employees in compliance with the constitutional policy to eradicate corruption, to promote transparency in government, and to ensure that all government employees and officials lead just and modest lives, with the end in view of curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service.
“In Carabeo v CA (G.R. Nos. 178000 and 178003. December 4,2009), the Supreme Court stated: “By the SALN, the public are able to monitor movement in the fortune of a public official; it is a valid check and balance mechanism to verify undisclosed properties and wealth.
“With respect to posting SALNs/data entries in online facilities, it is clear that the there is Constitutional and statutory intent to facilitate broad access by the public to SALNs, the prohibition only being that it is done for “any commercial purpose other than by news and communications media for dissemination to the general public”. (Sec 8 (0) (b) of RA 6713).”
In response to the last question about “Justification for Requests for Previous SALN, PDS or CV,” PCIJ wrote:
“Access to previous SALNs is necessary since the full significance of the information contained in each can only be appreciated when analyzed in relation to the whole. RA 6713 requires public officials to submit their SALNs after assumption of office, every year thereafter, and after separation from service.
“Thus, the PCIJ requests covered, among others, the SALNs of selected members of the judiciary from the time of their assumption to public office…
“The deliberations of the Constitutional Commission show that the 1987 Constitution sought to institutionalize a new form of accountability in government in order to: (1) deter conflicts of interest; (2) prevent graft and corruption; and (3) allow the public to determine whether the highest officials of the land are living within their means.
“The request letters of the PCIJ from years ago have been absolutely clear about the values, purposes, and relevance of the SALN, PDS, and CV as baseline and reference public documents, from the entry into service and on to exit from service of the members of the judiciary and all public officials and employees.”
Request Nos. 63 & 64
The Clerk of Court’s personnel in charge of receiving requests for SALNs, says that the PCIJ requests will be tagged as Requests No. 63 and 64.
The requests would then be sent to the high court en banc, enrolled in its agenda for discussion and hopefully, decision. “It’s a meticulous process but we welcome it as part of our job,” says a senior court employee.
Two things are not clear though: Whether the en banc will approve or deny the requests, and when it would.
Thus far, earlier requests filed in June 2012 were discussed at the en banc meeting only on July 3, 2012. That was when the court issued provisional approval of two requests for SALNs filed by reporters of two television networks. A third filed by a second-year law student of San Beda College also got conditional go, pending submission of some documents, and only “for academic purposes.”
Until last week, according to personnel of the Clerk of Court, all three have yet to see the actual release of the SALNs they requested.
A senior high court official solicits understanding for “the demigods, not gods, of Padre Faura” who are supposedly still taking “just baby steps in transparency.”
The Supreme Court was born on June 11, 1901 and “baby steps” are not exactly what one would ascribe, within reasonable logic or humor, to a 111-year-old institution led by magistrates mostly in their senior years. – PCIJ, August 2012
Photos via facebook.com/presidentnoy and inquirer.net