The Justices’ SALNs: Secret!

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SIX MONTHS AGO, the PCIJ filed a 19-page pleading with the Supreme Court requesting copies of the statement of assets, liabilities, and net worth (SALN) and personal data sheets (PDS) of the 15 justices of the high tribunal.

The pleading caps four years of a testy tug-o-war for copies of the justices’ SALNs between the PCIJ and the high court, the last bulwark of democracy and the arbiter of constitutional questions in the land.

The disclosure of SALNs is a typical request journalists make of public officials. Access to the document is, after all, firmly founded in the Constitution and two laws – the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) and the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713).

Yet more superior than these laws, the duty to disclose SALNs is enshrined in Section 17 Article XI & Section 28 Article II of the 1987 Constitution that declares: “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.”

Strangely, the “gods of Padre Faura” do not seem inclined to observe these laws for now, as it applies to their own SALNs, and that of all other justices and judges in the land.

The issue remains unresolved to this day. Last February, a special committee created to study the PCIJ request – otherwise known as Administrative Matter No. 09-8-6-SC – recommended the creation of a Committee on Public Disclosure (CPD) that would receive and act on requests for SALNs. The implementing guidelines to cover the CPD’s work are still being drafted, leaving the issue of the disclosure of the justices’ SALNs in suspended animation.

In the pleading, the PCIJ was represented by three lawyers adept in freedom of information issues: Nepomuceno Malaluan of the Action for Economic Reforms, and Professors Solomon Lumba and Marvic M.V.F. Leonen, who are also the secretary and dean of the University of the Philippines College of Law, respectively.

Aside from the records of the 1986 Constitutional Commission, the pleading cited arguments from the records of the Senate, decisions of the Supreme Court itself, jurisprudence in the United States, and the practice of the US Federal Supreme Court.

The PCIJ pleading cited that in several rulings, the Supreme Court itself held that the Constitution clearly guarantees the people’s right to access information and spells out the obligation or duty of public officials to disclose information.

Too, the pleading noted that high court rulings have asserted that “when it comes to the right of the people to information on matters of public concern, the presumption is in favor of access by the public because to hold otherwise ‘will serve to dilute the constitutional right’.”

“Thus, the duty to disclose information should be differentiated from the duty to permit access to information,” the pleading said. “There is no need to demand from the government agency disclosure of information as this is mandatory under the Constitution; failing that, legal remedies are available.”

Culling Constitutional Commission records, the pleading cited this statement by the late Senator and Commissioner Blas F. Ople: “This is a mandate on the State to be accountable by following a policy of full public disclosure. For example, information concerning loans contracted by the government ought to be made available. Public officials should follow this policy by submitting their statements of assets and liabilities and making them available for public scrutiny, not merely storing them in the archives, which is what happens most of the time.”

The pleading argued that “the principle of independence of the judiciary does not bar disclosure of or access to the SALNs of the justices.

In Duplantier v United States of America, an action challenging the Ethics in Government Act of 1978, the United States Court of Appeals 5th Circuit discussed many, if not all, of the competing interests involved.

The plaintiffs contended that the requirement for judges to file personal financial reports for public disclosure under the Act intrudes upon the independent, decisional freedom of United States judges and thereby violates the constitutional principle of separation of powers.

They further argued that the Act unconstitutionally interferes with judicial independence by subjecting federal judges to familial disquiet, political pressure, and increased threats of physical or economic harm at the hands of criminals and disgruntled litigants.

Some of the Duplantier considerations were also touched upon in the Supreme Court en banc resolution dated May 2, 1989, establishing its policy for the release of SALNs of members of the judiciary.

But the Court also noted that similar requests may not be made upon the justices and judges of the Court of Appeals, Sandiganbayan, Court of Tax Appeals, Regional Trial Courts, Shari’a Courts, Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts under circumstances that may endanger, diminish or destroy their independence and objectivity in the performance of their judicial functions or expose them to revenge for adverse decisions, kidnapping, extortion, blackmail, or other untoward consequences.

As such, it resolved to lay down guidelines on requests for SALNs of justices, judges, and court personnel, citing that, “the independence of the Judiciary is constitutionally as important as the right to information which is subject to the limitations provided by law. Under specific circumstances, the need for the fair and just adjudication of litigations may require a court to be wary of deceptive requests for information which shall otherwise be freely available.”

The Constitution, however, clearly enrolls the Supreme Court justices among the officials who must, upon assumption of office, and as often as may be required by law, “submit a declaration under oath of his assets, liabilities, and net worth.”

The Charter also stipulates: “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.”

But the PCIJ pleading lamented that “the manner in which the Supreme Court has historically dealt with requests for SALNs of members of the judiciary has not always been consistent with this presumption” of the people’s right to access information.

An en banc resolution dated May 2, 1989 requires the requester to state the purpose of the request and outlined the conditions under which requests would be denied.

In Administrative Matter No.92-9-851–RTC, the high court turned more restrictive. It authorized the Court Administrator “to act on requests for copies of the assets and liabilities, as well as other papers and documents on file with the 201 Personnel Records of lower court judges and personnel, only upon a court subpoena duly signed by the Presiding Judge in a pending criminal case against a judge or personnel, and in the case of the Ombudsman, upon the appropriate request personally signed by the Ombudsman.”

Previous PCIJ requests for SALNs had met with denials from the high court.  On June 6, 2006, the PCIJ wrote Clerk of Court Ma. Luisa Villarama to get copies of the justices’ SALNs, stating that “the data will be used for the PCIJ’s website on Philippine politics and governance.”

On the same day, Ismael Khan Jr., then Assistant Court Administrator and Chief of the Public Information Office, responded and enclosed a “Media Backgrounder” embodying guidelines governing the procedures for the release of the SALNs.

On August 2, 2006, the PCIJ sent Khan another letter seeking clarification on whether the request has been denied, and if so, to state the reason for the denial. If it had not been denied, the PCIJ wrote, would Khan’s office then kindly inform it of what is lacking in the request?

Five days later, Khan responded, stating that PCIJ had to “fully comply with the guidelines”; and that the Court found that the reason stated was “insufficient and hence would like to be apprised of the specific purpose or purposes for which the SALs of the SC Justices will be used.”

On August 9, the PCIJ supplied a more detailed explanation about its information website, but received no response to this.

The PCIJ pleading before the high court averred that the wording of the tribunal’s two resolutions and the manner in which these have been interpreted and applied indicate that “whenever there is a request for SALNs of members of the judiciary, it is the burden of the requester to establish the legitimacy of the purpose of his request.”

Even worse, it said, this burden on the requester has been imposed despite “the wide latitude of discretion of the Court or its functionaries to pass upon the legitimacy of said purpose, as can be seen in PCIJ’s experience.”

“The effect is to nullify the presumption in favor of disclosure to or access by the public,” the pleading added.

To this day, 23 years after the 1987 Constitution was ratified with firm guarantees of the people’s right to know, “no one has, as of yet, successfully requested from the Court the SALNs of Justices of the Supreme Court…the presumption is actually against disclosure or access.”