The wealth of the ‘Gods of Faura’

Transparency on ice: Judicial
independence or impunity?

Last of Four Parts

PARANG humihila ng bayawak sa lungga. (It’s like pulling a monitor lizard out of a pit.)

This, according to former Senator Rene A.V. Saguisag, is how the Supreme Court has behaved in the last 23 years toward the law that he had chiefly authored, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees. In three words: The SALN Law.

The highest magistrates of the land are, by shape, color, or size, not one bit a spitting image of lizards. And the massive edifice, no matter how ancient, that is home to the highest court of the land on Padre Faura in Manila, is not a sliver close to being a pit.

They have been dubbed “The Gods of Padre Faura,” but if their behavior toward Saguisag’s law is any measure, the justices are, in truth, gods with feet of clay, given to human frailties, such as protecting themselves from the inconvenience of having to comply with the law.

Saguisag is now at patience’s end. The law he authored requires all public officials and employees to declare the true and full details of their wealth in their Statement of Assets, Liabilities, and Net Worth (SALN).

But he says that 23 years after the law was enacted on Feb. 20, 1989, the high tribunal has been the most consistent of all the branches of government in one thing: issuing self-serving rulings that have kept the asset records of members of the judiciary under lock and key for as long.

Yet it was his willful failure to do so that caused then Chief Justice Renato C. Corona an impeachment suit on Dec. 12, 2011, and eventual perpetual dismissal from public service on May 29, 2012.

Era of transparency’

Corona’s exit landed the most senior associate justice, Antonio T. Carpio, the job of acting chief justice. Within a week after taking over, Carpio announced what was supposedly “a new era of transparency” in the Court.

By June 10, he had ordered the disclosure on the high court’s website of financial reports on the special funds of the judiciary and the Court’s audit for 2010. In June, too, the Court released an en banc resolution on the disclosure of the SALN of the justices and judges, and the following month, guidelines to be followed by requesters.

Carpio’s “transparency” drive earned him a word of praise from the president’s spokesman, but soon it was revealed to be falling short of its claims.

What the Court has published online under Carpio’s watch are just a few “accountability” documents, such as 10 pieces of documents (“Monthly Report of Disbursement,” “Physical Report of Operations,” “Financial Report of Operations,” “Consolidated Report of Income,” Monthly Report of Disbursement,” “Statement of Allotment and Obligations”) of the Presidential Electoral Tribunal (PET) and the judiciary.

The documents offer a broad peek into financial operations, by general expense categories, of the judiciary and the PET, which is chaired by the chief justice and with all the 14 associate justices as members. But because the documents are all portable document format (pdf) files, they do not lend themselves to scrutiny or analysis as well as files in open data format (Excel, comma-separated values formats) could.

Besides, all the documents that Carpio had ordered to be uploaded are all for the period ending March 31, 2012, or covering the first quarter of the year alone. It is December and the year is coming to a close but no additional files have been uploaded since on the high court’s website.

Even the agency audit of the Supreme Court that is posted on the website is circa 2010, or two years old. (Then again, the Commission on Audit has also yet to upload on its own website the 2011 audit of the Court.)

New guidelines

On June 27, 2012, during Carpio’s short stint as acting chief justice, the court issued its Guidelines on the Release of SALNs/Curriculum Vitae/Personal Data Sheets of the justices and judges.

The Guidelines capped a four-year tug-of-war between the court and the media, including PCIJ, for the justices to disclose their SALNs. In truth, the Guidelines merely codified the extended, restrictive practice of the justices to impose barriers to disclosure of asset records.

A series of administrative issuances of the en banc beginning 1992 (under then Chief Justice Andres Narvasa) barred the disclosure of the SALNs of all the personnel of the judiciary, avowedly to protect judges and justices form harassment by litigants, and even from kidnapping by malefactors.

In a letter to the en banc in July, PCIJ had asked the en banc to consider amending the Guidelines on four grounds:

  • The Guidelines should include the presumption of disclosure in favor of the people’s right to information, and that all requests for SALNs “should be granted and in case of doubt, the burden of proving the validity of a denial rests on the judiciary.”
    In Legaspi vs. Civil Service Commission, the PCIJ letter cited that, “In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee.” To hold otherwise, as the Guidelines suggest, the high court may only serve “to dilute the constitutional right,” PCIJ said.
  • 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 disclosure of the latest SALN, PDS, and CV of the justices and judges, and those filed in prior years.

By the time President Benigno Simeon C. Aquino III appointed a new chief justice, Ma. Lourdes P.A. Sereno, the restrictive nature of the Guidelines had been revealed. Not a single SALN had been released on account of the Guidelines by then — three months after Corona got his pink slip from the Senate impeachment court.

Deluge of requests

In two days’ time, the court en banc promptly took to action. That was when it allowed the nation, for the first time in 23 years, to see the actual SALN for 2011 of the justices: It released the SALNs on a request it had approved earlier.

The request had been filed a month before by Solar Network News reporter Anjo Almario. His request was one of 70 requests for the justices’ SALNs that had been filed by then, including one from the PCIJ submitted on Aug. 15, 2012.

About 90 percent of those requests had come from Saguisag’s law school students at San Beda College and Arellano University. He had required them to secure SALNs, with a warning that only those who could get any may look forward to a grade of “74.999999.” Only a handful had so far secured conditional approval – pending completion of documentary requirements – while the great majority had been thrashed by the en banc.

The few other requests had come from media agencies. After Solar Network News’s request, the court has approved only two more filed by two other television networks. But the SALN copies have yet to be actually released.

Slip of logic

On Oct. 16, 2012, the en banc in session again discussed the matter of pending requests. The PCIJ request for the SALN of the 14 incumbent justices, from their first year of appointment into the bench was tabled, as well as a request of the Bureau of Internal Revenue for copies of Corona’s SALNs. The justices noted that the original copies of the former chief justice’s SALN have yet to be retrieved from the Senate impeachment court.

But by some incredible slip of logic, wittingly or not, the justices decided to defer action on PCIJ’s request, supposedly because they have yet to get back Corona’s SALN.

Those SALNs were not even covered in the PCIJ request. Worse, it was only on Tuesday, Dec. 11, on its eighth follow-up phone call to the Office of the Clerk of Court that PCIJ learned about the en banc decision made on Oct. 16, or nearly two months ago. Lawyers at the office offered profuse apologies for the error, and asked that PCIJ write the justices again to clarify the matter.

In the last four years, PCIJ had sent over a dozen letters and several requests to the en banc, and writing another one seemed futile because this was a case of the justices failing in their reading of the literal purposes of requests.

House of secrets

Aside from the high court justices, the leaders of the House of Representatives have refused to disclose the SALN of all its 285 members through its SALN custodian, the secretary-general of the chamber.

Ironically, it was these two parties that had figured prominently in the impeachment trial of then Chief Justice Corona. The lawmakers filed suit, Corona and counsels mounted a vigorous defense, but the Senate impeachment court eventually dismissed him.

Saguisag, in truth, wants to cast a wider net — and cast it further back in time — when it comes to scrutinizing the wealth of public officials.

“The precursor of The SALN Law, Republic Act No. 3019, or The Anti-Graft and Corrupt Practices Act of 1960, in its Section 7 requires every public officer to file annually 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,” he notes.

“I have promised to pass any (law) student of mine who is able to show proof of compliance with the (Sen. Arturo) Tolentino law,” says Saguisag. “So far, zero.”

President Aquino, Vice President Jejomar Binay, Senate President Juan Ponce Enrile, Speaker Feliciano Belmonte Jr., Chief Justice Ma. Lourdes P.A. Sereno, Ombudsman Conchita Carpio-Morales, and the chairpersons of the Constitutional Commissions, are Saguisag’s top line of officials who he says must lead by example in complying with R.A. No. 3019.

“How may they have the gall to prosecute anybody? They keep on passing laws that no one follows,” Saguisag says.

“There is no room in Munti (New Bilibid Prisons) for everyone so I have proposed an

amnesty,” he continues. “Let everyone comply with said Sec. 7 for 2012, in their next filing due April 30, 2013, and thereafter let the chips fall where they may.” Otherwise, Saguisag says, “why don't we just repeal Sec. 7? All talk of matuwid na daan (straight path) would sound empty and hollow.”

No one complies

But not any one of the high court justices, or even any other senior public officials, seems to have taken asset disclosure laws to heart. “I bet no one in government complies with it, beginning with P-Noy (President Aquino),” says Saguisag. “So, what else is new in this ‘scofflaw’ society?”

In Saguisag’s mind, the situation turns hopeless if the honorable justices of the Supreme Court themselves flout the law in part or in whole. At day’s end, all questions about non-compliance with The SALN Law will have to be brought before the high court — and there likely just meet a dead end. Asks Saguisag: “Where else can we take the SC?”

To the new chief justice perhaps? But then she seems exactly averse to opening up the doors of the Supreme Court to inquiries about her own SALN, and that of her colleagues.

To inform this report, PCIJ had sent clarificatory letters to the justices about apparent disparities in their SALN. Seven justices obliged, seven others, including Sereno, refused to deal with the questions.

She went a step further as well, saying she speaks for “the majority” of the justices who attended that en banc session when the PCIJ letters were discussed. Only five justices, in fact, attended that session. Among them were Bienvenido L. Reyes and Estela Perlas-Bernabe who, like the chief justice, are appointees of President Aquino to the Court.

In her letter to PCIJ dated Oct. 30, 2012, Sereno said: “Thank you for your letters and your interest in the Court. I reply for a majority of the Members of the Court, namely, Associate Justices Arturo D. Brion, Jose Catral Mendoza, Bienvenido L. Reyes, Estela Perlas-Bernabe, and myself, who were present in the En Banc session on October 23, 2012, as well as for Senior Associate Justice Antonio T. Carpio and Associate Justice Jose Portugal Perez who were on leave when that session was held.”

“I also write,” she added, “for Associate Justices Teresita Leonardo-de Castro, Lucas P. Bersamin, Mariano C. del Castillo, Roberto A. Abad and Martin S. Villarama, Jr., who have indicated that they fully support this letter without prejudice to their submission of individual responses.”

Only for Ombudsman

Sereno’s reason for not replying to the PCIJ’s queries: “After individual consideration of the separate letters you sent to each Member of this Court, we have collectively come to the conclusion that by law, our statements of assets, liabilities, and net worth are subject to examination and inquiry regarding their accuracy and regularity only by the Ombudsman or by the legally-designated government agencies under the prescribed processes and proceedings.”

However, she added, “rest assured that everyone in this Court will be open to examination by the proper authorities and will comply with their validly-issued orders.”

Yet while she said the justices “appreciate your interest as members of the media in the submissions we made,” Sereno harkened back to the old theorem that by disclosing details of their wealth, the justices open themselves up to being victims of harassment.

“We hope you will understand,” she wrote, that “our collective stance to reserve our responses regarding these submissions only for the appropriate authorities. This is dictated, among others, by our desire to discharge our constitutional functions freely; independently, and unhindered by any threat of harassment from any quarter.”

Planting sweet potatoes

Comments Saguisag: “They issued their own self serving resolution making it very difficult for the public to access because they say they’re afraid of being kidnapped? To me, if you’re scared of being kidnapped, just go home and plant camote.”

The Supreme Court is setting a bad example that all other officials may follow or invoke to justify their own non-compliance with The SALN Law, asserts Saguisag. “That’s the problem, because they are becoming the obstacle,” he says. “Because it’s the SC, it’s bound to become the model. It’s really a stonewall, these unwarranted amendments.”

“Public service,” adds Saguisag, “has many demands including the assumption of risks. And I am not aware… (of) any case that they (justices) were ever kidnapped or threatened.”

The SALN Law was built on the bedrock of good government, and not exactly on the justices’ fear, real or imagined, that kidnap gangs will run after them. Saguisag explains: “Our purposes in 1989 were, No. 1, to detect the movement of fortunes; and No. 2, to determine whether there is conflict of interest.”

Honoring the public’s right to know, he says, is “the spirit of transparency” behind it all. “By the mere fact you are a citizen, you have a right to know, and it should not be circumscribed by all these incredible circulars and resolution,” he says.

In fact, he says, “I don’t know why we are even talking about it today. It’s not only the SC, even the House, after 23 years, they are still discussing how to comply.”

Comic pages

To be sure, Saguisag says one chamber of Congress cannot on its own repeal what the other chamber will not. Instead, he says the high court and the House should just follow the lead of the Senate and the Executive branch, which disclose the asset records of their officials every year, with no quibbling at all.

“Of course,” he says, “some of the filings may belong more to the comic pages, but at least there is compliance.”

His advice to those invoking privacy, while serving in public office: Once you become a public servant, you are public property… immediately you lose your right to privacy, your right to be let and left alone.” And should one scorn public scrutiny or “if you don’t want these matters exposed or known, then stay in private life.”

Paying public officials better might also be part of the incentives to comply with The SALN Law. “To attract and keep good people, you have to pay them above the level of corruption. You have to provide economic foundation of honesty,” Saguisag says.

Like Saguisag, Dean Jose Manuel ‘Chel’ Diokno of De La Salle University’s College of Law takes issue with the justices’ resort to claiming judicial independence and integrity as an excuse to spurn requests for their SALN.

Shield vs. accountability

In his Artemio V. Panganiban 2nd Public Lecture at the DLSU last Nov. 5, Diokno noted that a year after Corona’s impeachment, in the Supreme Court, “the room is still dark, and there is very little light entering.”

He traced this to several rulings of the high court in the last two decades that had effectively shielded court officials from the reach of transparency and accountability laws.

Apart from the series of administrative issuances issued since 1992 that imposed restrictions on the disclosure of SALNs, Diokno said two other high court circulars also shielded justices and judges from the scrutiny and discipline of the Office of the Ombudsman.

  • In 1992, he said, a high court issuance barred the Ombudsman from investigating justices and judges, unless the SC itself has started its own administrative investigation against the same persons.
  • “The Ombudsman was directed to dismiss the complaints and refer the same to the Court for appropriate action,” Diokno said. “This explains why, despite reports of complaints, very few judges are ever investigated by the Ombudsman. Their hands are tied behind their backs and they cannot investigate unless the Supreme Court finishes its adjudication.”

Clearances not needed

  • Then in 2006, a high court circular directed that justices of the Supreme Court, Court of Appeals, and Sandiganbayan are not required to secure clearances from the Ombudsman prior to their retirement, Diokno said.
  • By 2012, noted Diokno, the high court issued its Guidelines on the release of SALNs that effectively consolidated all the restrictions that it had previously promulgated.

The multiple documentary requirements, and the obligation imposed on requesters to justify their need for the SALNs are matters not prescribed in the SALN Law, he added. “Yet the Supreme Court issued guidelines that imposed additional requirements not found in the law, and rebuffed attempts by citizens, lawyers, and journalists to obtain their SALNs.”

“All these requirements are not found in the law, they were simply added on by the court in its own set of guidelines,” said Diokno. “The members of the court should recognize that they cannot use the court’s rulemaking power to convert a ministerial act into a discretionary decision.”

He then posed this question: “Is it judicial independence at issue here, or judicial impunity? Unless we can hold judges accountable administratively and criminally, we will continue to have judicial impunity.” – PCIJ, December 2012

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