January 17, 2012 · Posted in: General

What’s With SALN’s?

The following is an article written by Atty. Nepomuceno Malaluan of the Action for Economic Reform (AER) and co-convenor of the Right to Know, Right Know! Network.

What’s with SALN’s?

by Atty. Nepomuceno Malaluan

The impeachment of Chief Justice Renato C. Corona has called attention to the legal requirement that public officers and employees submit a declaration of their assets, liabilities and net worth, or what is commonly referred to as SALNs. Under Article II of the Impeachment Complaint, Chief Justice Corona is accused of having “failed to disclose to the public his statement of assets, liabilities, and net worth”, that some of his properties “are not included in his declaration of his assets, liabilities, and net worth”, and that he has “accumulated ill-gotten wealth”.

The legal requirement to file SALNs is found in the 1987 Constitution, in Republic Act 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), and in Republic Act 3019 (Anti Graft and Corrupt Practices Act).

The earliest of these laws, RA 3019 (Sec 7), requires that “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 with the office of the corresponding Department Head, or in the case of a Head of Department of Chief of an independent office, with the Office of the President, 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”.

While RA 3019 does not provide for an express duty to disclose SALNs to the public, this duty was subsequently made a requirement by the 1987 Constitution for the highest officials of the country, and for lower-ranking officials, by RA 6713.

Article XI, Section 17 of the 1987 Constitution, in addition to reiterating the requirement for public officers or employees to submit their SALNs, required that the declaration by 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 the general or flag rank, “shall be disclosed to the public in the manner provided by law“.

Commissioner Blas Ople of the Constitutional Commission of 1986 discussed the policy behind the need to disclose SALNs to the public and to specifically require this from the highest officials of the country. He said: “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.” Elsewhere he adds: “(O)ne of the objectives it wishes to serve is the development of a higher level of ethical practice in the government. 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.”

The requirement to disclose was extended by RA 6713 to all public officials and employees. Section 8 of RA 6713 provides that “public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen years of age living in their households.”

The manner of disclosure of SALNs is in turn provided by Section 8 (C). Subtitled “accessibility of documents”, it provides that SALNs shall be made available for inspection at reasonable hours, and for copying or reproduction after ten 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. Complementing this duty to disclose is the people’s right to information guaranteed under the Bill of Rights.

In summary, the existing laws on SALNs of public officials imposes at least three main obligations: to make a truthful declaration, to submit such declaration, and for the custodian to publicly disclose them in the manner provided by RA 6713.

The public disclosure element plays a very vital cog in the system of accountability that the Constitution wanted to achieve on SALNs. It empowers the citizens to scrutinize and verify the two other main elements of truthful declaration and submission.

But the public disclosure component leaves much to be desired in practice. 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. Any response, including acknowledgement, referral, or indication of future action, is regarded as substantive compliance.

Worst, some major custodians of SALNs 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.

Sadly, the Supreme Court has led in this regard. It first issued an en banc resolution in May 1989 requiring a requester to state the purpose of the request and outlined the conditions under which requests would be denied. In September 1992 it 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.

Two other major custodians of SALNs have followed suit. In June 2009 then Ombudsman Merceditas Gutierrez issued Memorandum Circular No. 1 that limits the legitimate reasons for requests, requires requests to be subscribed and sworn to, and introduces a wide discretion for denying requests for SALNs. More recently, the Civil Service Commission adopted Resolution No. 100356 dated March 15, 2011, which also requires that requests for SALNs be sworn to, imposes additional documentation support from requesters, and charges a fee of P200 for a copy of each SALN.

The Impeachment Complaint by the House of Representatives, and the support for it by the Executive, has raised the bar of compliance to the mandate of the Constitution regarding SALNs. In addition to putting forward the violation of the duty to truthfully declare, submit, and publicly disclose SALNs as an impeachable offense, we hope that it will also facilitate the institutionalization of compliance.

More specifically, we hope that administrative avoidance of disclosure of SALNs stops, that the Supreme Court finally reconsiders its restrictive guidelines on access to SALNs in the judiciary, and that the incumbent Ombudsman as well as the Civil Service Commission also reconsider their similarly restrictive guidelines.

Finally, and most important, we hope that the long overdue passage of the Freedom of Information bill happens at the soonest. Its definite provisions on exceptions, 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. We also note that the proposed amendments by the Executive on the FOI bill that was submitted last year to the Senate included the requirement to publish SALNs.

In respect to the passage of the FOI bill, we acknowledge the commitment made much earlier by Senate Committee on Public Information Chairman Gregorio Honasan to push the bill. We very much welcome as well the endorsement recently given by President Aquino on the FOI bill. We now keenly await a similar commitment and action on the FOI bill from the House leadership and from House Committee on Public Information Chairman Ben Evardone.

1 Trustee, Action for Economic Reforms, and Co-Director, Institute for Freedom of Information.

 

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