Weaponization of SALN Amplifies Gaps in Transparency, Renews Call to Pass FOI

Editor’s note: This article is republished in whole with permission from The Philippine Collegian. Original piece appeared here.

So long as the publication of SALNs continues to be discretionary, the document’s possible weaponization against political opponents remains a possibility, a transparency group warned.

Supreme Court Associate Justice Marvic Leonen may have survived the latest attempt to oust him from office, but the touchy issue on the transparency of the Statement of Assets, Liabilities, and Net Worth (SALN) is here to stay unless Congress addresses the gaps in the present law.

Although President Rodrigo Duterte’s executive order on Freedom of Information (FOI) is one step forward, the order is still far from truly fulfilling the people’s constitutional right to information.

“If there are gaps in the implementation, Congress may conduct a review of existing laws and implementing rules in aid of legislation,” lawyer Josalee Deinla explained, adding that a balancing act must be done between transparency and accountability, and real threats to security or harassment of public officials, especially in the judiciary.

In the past, agencies have tried to make it difficult to access SALNs. In September last year, Ombudsman Samuel Martires, a retired Supreme Court justice, ruled that SALNs could only be released by virtue of a court order, for the purpose of investigation by the Ombudsman, or if the government officials themselves were requesting a copy.

The House of Representatives, too, adopted stricter rules in 2019. The House Plenary’s consent is now needed to obtain a member’s SALN, and a sworn statement containing a pledge not to use the document in any other way as indicated in the request. The house also charges a P300 processing fee for every SALN request.

And along such moves, bills seeking to operationalize the people’s right to information through an FOI law remain languishing in Congress despite the current and past administrations’ backing of such measures.

SC Restrictions on SALNs

The Supreme Court, in September last year, had rejected the Office of the Solicitor General and controversial lawyer Larry Gadon’s request for Leonen’s SALN. Although the high court has not yet released the full text of their decision, court observers believe that such a step was taken to, ultimately, put an end to all quo warranto plots versus sitting members of the bench.

“While public officers in the custody or control of public records have the discretion to regulate the manner in which records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying of the records,” the court wrote while setting conditions and restrictions in the release of their SALNs.

This sentiment was first institutionalized when the Supreme Court finally issued the rules on requesting the SALN of the members of the judiciary in 2012.

Under said rules, the requesting party shall state the purpose of the requested documents, and is required to “commit” that the documents will only be used for the specified purpose in the request.

Undermining Right to Know

But with such qualification, the people’s right to know, as embodied in the constitution and the code of conduct of public officials, could be placed in jeopardy as it places a huge discretion on the government whether to release certain documents.

“It (SALNs) should be accessible to anyone, just as much [as] the SALN of the president–should he have filed–should also be accessible. It all belongs to the class of information that’s not beyond the public scrutiny,” lawyer Eirene Jhone Aguila, co-convenor of the Right to Know Right Now (R2KRN) Coalition, told the Collegian.

Such a largely discretionary and, sometimes, discriminatory release of public documents gives rise to the weaponization of the SALN.

“When we start coloring the people’s right to info because it hurts people we like, people we respect, then we undermine the people’s right to know,” she added.

Independence

For the judiciary, the main sticking point on the SALN issue is to protect the independence of judges. Similarly, this makes a full disclosure of the SALNs of judges and justices less likely in a court where two chief justices have been ousted due to the supposed deficiencies in the filing of their SALNs.

“This is necessary to insulate members of the judiciary from political pressures and harassment. It is only the Supreme Court that can oversee the compliance by judges and court personnel with all laws, and take the proper administrative action against them if they commit any violation thereof,” Deinla said who was a part of former Chief Justice Maria Lourdes Sereno’s legal team in the quo warranto proceedings against her.

For her, the court’s qualification in their SALN regulation was essential in keeping requests, like that of the solicitor general’s, from prospering and possibly damaging the court’s independence and integrity.

“They (SALNs) were not meant to satisfy personal curiosity or enable disgruntled litigants or persons with ill motives to inflict harm on the concerned members of the judiciary,” she added.

Bypassing the Rules?

Yet despite the Supreme Court’s guidelines, the solicitor general tried to circumvent this by going after Leonen’s previous employer—UP.

Last week, the Collegian reported on the OSG’s efforts to obtain Leonen’s SALN, which even went as far as lodging the request to the UP Board of Regents, which deferred acting on the OSG’s request.

In the case of sitting justices, the UP Diliman (UPD) data protection officer (DPO) has provided advice on how to treat such requests.

Indeed, UPD may provide the OSG the copies of SALN and certification of the years of employment of former university employees since such request is within the solicitor general’s mandate, a 2018 memorandum from DPO Elson Manahan read.

It is, however, unclear as to what grounds did the UPD Human Resource Development Office use in denying the OSG’s request of Leonen’s SALN. But in the past, UP has usually deferred to the Supreme Court whenever they receive requests for disclosure.

Pending Measures

In the case of SALNs, passage of an FOI law may no longer be needed for full disclosure, Aguila said. After all, the constitution and the code of conduct for government officials mandate disclosure of the said documents for the public’s consumption.

As of writing, 20 FOI bills have been filed in the House of Representatives, while there are seven in the Senate. All 27 bills filed during the 18th Congress are currently pending on the committee level. One of these, House Bill (HB) 226, was filed by the Makabayan bloc in July 2019.

The proposed measure makes certain information and documents automatically disclosed even without an FOI request to promote transparency and keep people informed about government decisions.

HB 226 also prescribes administrative or criminal sanctions for government officials who deliberately deny or conceal requested data that are not under the exceptions stipulated.

Ideally, an FOI law should ensure that it promotes transparency across layers of the government bureaucracy while making sure that these requests are accessible. Simply, FOI requests should not require fees and have a streamlined access procedure, R2KRN Coalition wrote in a position paper for the House Committee on Public Information.

‘Balancing Act’

For Aguila, she sees no reason why the judiciary should be exempt from this.

“What if I have a pending case? If I know that their (judge’s) business interests are aligned with one of the parties in the case, then at least I’m more aware and maybe I can ask for inhibition,” she said, stressing that transparency strengthens government institutions like the courts.

But for Deinla, it simply requires a delicate balance between transparency and insulation of the judiciary from external, partisan pressures. In the case of failure to file the SALN, there are administrative sanctions which may be imposed before a justice.

This, however, should not rise to an impeachable offense.

“I think there are already laws that sufficiently address issues of accountability for non-filing or dishonesty in filing of SALNs. As far as I know, mechanisms have already been put in place to ensure that compliance with the duty to disclose wealth will be monitored,” she said.

“This requires a balancing act on the part of the Supreme Court,” Deinla added.

About the Author

Daniel Sebastianne Daiz is a staff writer at the Philippine Collegian, where he writes mostly about justice, human rights, and the economy. He is a theoretical physics student who joined the publication in 2019.

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