First of Two Parts
GOOD GOVERNANCE is the solemn promise of President Benigno Simeon Aquino III. Transparency and respect for access to information could enable it; the rule of law, or the prosecution of cases built on evidence before the courts, could assure it endures.
In President Aquino’s epic effort to rid the government of corruption, the judiciary will perform the critical role of arbiter, judge, and guardian. Yet the judiciary itself is nurturing a black hole of information, which could swallow into nothingness initiatives to limit, if not stop, corruption.
For years now, the judiciary has insisted on its supposed prerogative not to disclose information and documents vested with public interest, in utter defiance of anti-graft laws and the Constitution.
For one, in several issuances since 2001, the Supreme Court has stubbornly refused to publicly disclose the statements of assets, liabilities and net worth (SALN) of its members as well as that of 2,194 justices and judges and 23,224 other court personnel. The Court’s argument: to protect members of the bench from harassment by hostile parties and litigants.
For another, the judiciary has so jealously guarded its purse and highly centralized disbursement of funds such that to this day, the Commission on Audit has not published on its website the audit report on the Supreme Court for 2008. A full three months after the April deadline, the report for 2009 has yet to be completed as well.
To be sure, Court officials say that there are several reasons for the delayed accounting of the judiciary’s budget – booked at P14.5 billion in 2010, or 24 percent more than the P11.6 billion in 2009.
(This budget for the judiciary in the General Appropriations Act is apart from the P1.75 billion target collections in 2010 from various court filing fees that the Judiciary Development Fund Act – Presidential Decree No. 1949 passed in 1984 – authorizes the high court to spend on the cost of living allowances and special allowances of its personnel, on top of their salaries.)
Whatever reasons there are, however, do not change the fact that when it comes to disclosure of information on two matters – the personal wealth of the justices and judges, and the monies it spends to run the courts – the judiciary is much less forthcoming than most agencies of the Executive branch or even the Senate.
Deny, delay behavior
Confronted with requests for access to information, the judiciary’s default behavior since 2001 has typically been to deny or delay action. It is a behavior akin to that of the House of Representatives over the last three Congresses, and some agencies vested with revenue and regulatory functions.
All efforts by the PCIJ since 2006 to obtain copies of the SALNs of the justices and judges have been rebuffed by the high court.
This is even as Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees requires them, like all civil servants must, “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 (18) years of age living in their households.”
The law stipulates that “all public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath” their SALNs and disclose the following data: Real property, its improvements, acquisition costs, assessed value and current fair market value; personal property and acquisition cost; all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like; liabilities, and; all business interests and financial connections.
RA 6713, enacted on Feb. 20, 1989, is crystal about the inclusion of justices and judges among those who should file, and publicly disclose their SALNs.
According to the law, the SALN and the Disclosure of Business Interests and Financial Connections shall be filed by:
- Constitutional and national elective officials, with the national office of the Ombudsman; Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively;
- Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator;
- All national executive officials with the Officeof the President;
- Regional and local officials and employees, with the Deputy Ombudsman in their respective regions;
- Officers of the armed forces from the rank of colonel or naval captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions;
- And all other public officials and employees, defined in Republic Act No. 3019, as amended, with the Civil Service Commission.
In addition, the law affirms that these documents should be made accessible to the public. “Any and all statements filed under this Act, shall be made available for inspection at reasonable hours… Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law.”
Apart from billing requesting parties for the cost of reproduction, mailing and certification of SALN copies, RA 6713 stipulates further that, “any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement. After such period, the statement may be destroyed unless needed in an ongoing investigation.”
The disclosure of SALNs is a typical request journalists make of public officials. Apart from RA 6713, the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) and even more important, Section 17 Article XI & Section 28 Article II of the 1987 Constitution require it.
The Constitution 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.”
Balancing perils
The SALN is “very important” as a reference and tracker document, according to Karina Constantino-David, who served as chairperson of the Civil Service Commission under former President Gloria Arroyo.
First, it serves as a benchmark of the state of affluence or penury of a person, before he or she commences work in the government service, she says. Once on board, the SALN serves as a source document of whether or not the official has enriched himself or herself beyond lawful means, and of actual and potential conflicts of interest situations he or she faces.
“The rest of the bureaucracy is dismayed by the Supreme Court’s decisions exempting the courts from the same rule as everybody else is put under,” David tells the PCIJ in an interview.
At the same time, she notes that because “information is very powerful,” the data enrolled in SALNs “can be used for good or bad purposes.”
David adds that the high court seems to be performing a difficult balancing act “between the perils of non-disclosure and the perils of disclosure.”
Even court insiders admit that the non-disclosure could be helping the less honorable members of the bench get away with their crooked ways.
To this day, the high court periodically receives complaints regarding offers of some judges to issue temporary restraining orders or injunctions for as much as P500,000 to P700,000 a pop. Entrapment efforts by the high court from years ago have yielded a modest catch – not more than five judges caught red-handed.
In the court’s internal investigation of bench officers involved in so-called crooked deals, the SALN serves as a reference in truth, court personnel themselves say. Non-disclosure also means that any suspicion about members of the court – including the so-called “gods of Padre Faura” – would only fester.
Flight to darkness
In fact, the court policy to recede in the dark, especially where SALNs are concerned, began with Andres B. Narvasa, who served as chief justice from December 8, 1991 to November 30, 1998.
The Narvasa court had been marred by reports, including a number authored by the PCIJ, alleging multiple instances of bribery and corruption involving some justices. “The best Supreme Court that money can buy,” legal circles had described the tribunal at the time.
The exposes triggered the early retirement of an associate justice even as the Narvasa court also summoned lawyers it suspected to be among the PCIJ’s unnamed sources to an inquiry board composed of justices at Padre Faura.
Those who succeeded Narvasa – Hilario G. Davide Jr. (who served from November 30, 1998 to December 20, 2005) and Reynato S. Puno (who served from December 20, 2005 to May 17, 2010) – followed the practice of secrecy in regard to the SALN.
Recently, the PCIJ learned that a pleading seeking the reversal of the policy has not moved past discourse level among the justices. The pleading was submitted to the court en banc eight months ago.
A high court personnel says, though, “It’s a case of continuing deliberations. There have been small steps forward, and the court is just ironing out some kinks.”
On agenda now
The insider says the matter has been enrolled on the agenda of the en banc since three weeks ago, prompted in part by letters to the individual justices that the PCIJ sent earlier inquiring about corporate assets still listed in their names, according to records of the Securities and Exchange Commission (SEC).
In these letters, the justices were informed that because of the high court’s policy against disclosure of SALNs, the PCIJ decided to do its own research into their business interests and financial connections of the justices by mining various public records.
The letters listed the specific companies in which the individual justices were still named as incorporators, stockholders or board members, according to SEC records. To verify the list, the PCIJ gathered the latest available general information sheets and financial reports for the entities that are still operational.
Finally, the PCIJ sought the assistance of legal researchers to verify with the Lex Libris database of court cases whether any of the companies on the list had been or remains a litigant in any judicial matter or process pending before the high court.
The good result: not one of the companies, suggesting that for now the justices are in the clear about real conflicts of interests vis-à-vis these companies.
Real, potential conflicts
In the letter to the justices, the PCIJ stated: “Our review of public records and databases has yielded findings that may present or suggest possible situations of real, apparent, and potential conflicts of interest that may involve your good self.” Pending the disclosure of the justices’s SALN, “the existence and relevance of these data in the public records remain an unsettled matter.”
Court insiders tell the PCIJ that the letter was received differently by the Supreme Court justices. Some were rather amused by the PCIJ effort, while a few were discomfited by having to deal with direct questions about the state of their personal wealth.
As proof of its earnest effort to illustrate the value of SALNs, the PCIJ waited for the justices’ replies, within the 15-day period allowed in law for public officials to act on such inquiries.
Nine justices received letters from the PCIJ. Three did not, including two who had no companies listed in their names: Associate Justices Conchita Carpio-Morales and Eduardo Nachura. The third one, Associate Justice Presbiterio J. Velasco Jr., was listed as a member only of the Katipunan Mart Stall Owners Association, Inc.
Three of the nine justices who received letters did not reply to the PCIJ: Associate Justices Arturo D. Brion, Jose C. Mendoza, and Martin S. Villarama Jr.
Two of those who replied personally called up the PCIJ offices to respond within two days after the letters were sent: Associate Justices Teresita J. Leonardo-De Castro and Antonio T. Carpio.
Justice Leonardo-De Castro called the next day she received the PCIJ letter to say, “Wala akong kinalaman dito sa mga companies na ito, I’ve not heard, ni hindi ko kilala, hindi ko alam kung ano business nito. Kapangalan ko lang siguro. (I have nothing to do with these companies, I’ve not heard (of them), I don’t know them, I don’t know what their business is. Maybe it’s just someone with the same name as I have.)”
Justice Carpio, whose name was listed as either incorporator or stockholder or board member of at least 68 companies – including more than half with registration already revoked by the SEC – called the next day to request more time to do research on the specific companies on the list. (See Sidebar for full list and justices’ responses)
Carpio told the PCIJ: “These are mostly very old companies that incorporated. Give me time to check on these. I don’t have a problem here because I know most are very old corporations.” Because of his vigorous private law practice, Carpio said, “I think I incorporated more than 80. I probably should have incorporated hundreds (of com;panies.).”
Despite reports to the contrary, Carpio added that if it were only up to him, “I’m in favor of the SALN being disclosed,” The high court had precisely awaited the passage of the Freedom of Information Act by the 14th Congress so the matter of the justices SALN could be settled as well, he said.
Debate continues
Meanwhile, court personnel say that the justices continue to debate the merits and demerits of disclosing their SALN but have not come up with a consensus.
The only consensus, they say, is that disclosure is required of all government institutions. Those opposed to disclosure supposedly argue in favor of protection for officers of the court from undue harassment by litigants and other parties, while those in favor say that the “sunshine policy” can provide that protection to all officers of the court while avoiding imputations of conflicts of interests against the justices.
One court official says the “anti’s” are wary of instances when litigants unhappy about a decision “make a project” out of the “offending” judge. “Their style,” says the official, “is to invite the judge to lunch or dinner, then offer bribe money, then threaten that they will expose the judge in the media, using his SALN as reference.”
Still, the issue of getting access to the SALNs of the justices resonates even more on account of yet another trend: the two tracks or types of appointees to the high court.
The first, those who rose from the ranks in the judiciary – who are typically the less affluent or with a lot less business interests and financial connections to disclose. The second, those pulled out from private practice – who are typically more affluent and with a lot more business interests and financial connections to disclose.
Neither type has been free of unsavory rumors. And yet, according to court officers, today those for the disclosure of SALNs include the justices with fewer assets, and those against, the justices with more.
Over the decades, the court has seen both types come and go. For instance, those who came from private law firms immediately before becoming justices include Jose Feria (Feria Lugtu & Lao), Camilo Quiazon (Quiazon Makalintal Law), Florentino Feliciano (Sycip Salazar & Feliciano), Pedro Yap (Salonga & Ordonez), Artemio Panganiban (Panganiban Bantug & Parlade), Adolfo Azcuna (Yorac Arroyo Azcuna Caedo Law), as well as Marcelo B. Fernan and Davide.
Despite its continued refusal to lift the veil of secrecy on the SALNs of court officials and personnel, the high court in June 2004 passed what it called the “Code of Conduct for Court Personnel” stating that “in performing their duties and responsibilities court personnel serve as sentinels of justice and any act of impropriety on their part immeasurably affects the honor and dignity of the Judiciary and the people’s confidence in it.”
Under “Canon 3” on “conflict of interest,” the Code said, “court personnel shall avoid conflicts of interest in performing official duties. Every court personnel is required to exercise utmost diligence in being aware of conflicts of interest, disclosing conflicts of interest to the designated authority, and terminating them as they arise.”