Duterte’s secret SALN: The lie of his FOI

By: Malou Mangahas

Philippine Center for Investigative Journalism

 

ACCORDING to President Rodrigo R. Duterte, a public official’s solemn oath would be to uphold three principles: “serve and protect the people, practice transparency and accountability, and shun corruption.”

This was his marching order to dozens of legislators and local officials who were elected in May 2019, at their oath-taking ceremony in Malacañang last June 30.

“As you assume office, it becomes your highest duty to practice and uphold accountability and transparency in government, and to ensure that graft and corruption will not have a place in this administration,” Duterte had said. “Let me just shorten our oath of office in two sentences — actually it’s just — we swear to preserve the Republic of the Philippines and to defend the people. That’s the long and short of it.”

But Duterte, a most secretive President when it comes to the details of his wealth, does not always do what he says.

Indeed, by all indications, Duterte sticks out as the lie of his own Freedom of Information (FOI) edict.

To this day, eight months after the April 30 deadline for the filing of his Statement of Assets, Liabilities, and Net Worth (SALN), Duterte has not released a copy of his SALN for 2018.

This would be the first time in the last 30 years that a President has not released his or her SALN. Since the SALN Law was enacted on Feb. 20, 1989, all five presidents before Duterte had publicly disclosed their annual SALNs without fail, year on year, via either the Office of the Ombudsman or the Office of the President.

Required in FOI EO

The spirit and letter of Duterte’s own Executive Order No. 2 that operationalized Freedom of Information in the entire executive branch also requires the full public disclosure of, among other public documents, the SALN of all executive officials — himself included.

Section 5 of E.O. No. 2 that Duterte issued on July 23, 2016, states: “Availability of SALN. Subject to the provisions contained in Sections 3 and 4 of this Order, all public officials are reminded of their obligation to file and make available for scrutiny their (SALN) in accordance with existing laws, rules and regulations, and the spirit and letter of this Order.”

In Section 6 on “Application and Interpretation”, E.O. No. 2 is explicit: “There shall be a legal presumption in favor of access to information, public records and official records. No request for information shall be denied unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions circularized by the Office of the President provided in the preceding section.”

For all these, multiple separate requests of PCIJ and the Right to Know, Right Now! Coalition of civil society groups for a copy of the President’s 2018 SALN have been tossed back and forth between the Office of the Executive Secretary and the Office of the Ombudsman.

Invariably, all such requests filed in a series from June to November 2019 were denied because of an identical reason: The Ombudsman has yet to finalize its new guidelines on the release of the SALNs of the President and other senior officials.

Not one of the offices involved has bothered explaining why there has been a sudden need for new guidelines.

Nevertheless, the new Ombudsman guidelines that had been promised since June 2019 have yet to see the light of day, six months hence.

Palace should release

Interviewed by PCIJ on Monday about when the supposed new guidelines would be finished, Ombudsman Samuel R. Martires instead said that PCIJ should just get Duterte’s SALN from the Office of the President (OP) and the Office of the Executive Secretary (OES).

“Well, you can go to the Office of the Executive Secretary,” Martires said.

At another turn, he said, “Hindi kayo binibigyan ng Office of the President? Titingnan ko. (The Office of the President does not want to give you a copy? I will look into that.)”

“Alam mo, Malou, masyadong masalimuot ’yang SALN. Siguro minsan pag-usapan natin iyan (You know, Malou, the SALN is a complicated matter. Maybe someday we should talk about it),” the Ombudsman said.

 

Told that the absence of new guidelines said to come from the Ombudsman has been cited as an excuse for not releasing the President’s SALN, Martires replied, “Kasi ang hinahanap ko rin, ano ang… authority namin mag-release ng SALN (You see, I am also trying to look for… what authority do we have to release SALNs.)”

 

PCIJ then pointed out that there are existing guidelines crafted by previous Ombudsmen that should be the reference for SALN releases, pending the finalization of any new guidelines. This prompted Martires to offer laughter and an unusual reply: “No, I do not, I do not, there is such a thing as a dissenting opinion.”

Ruled for SALN law

This was coming from someone who had consistently argued for full compliance with The SALN Law in rulings he had concurred in as Supreme Court associate justice, and in cases that he had prosecuted for the anti-graft court as a Sandiganbayan associate justice.

One such ruling issued in December 2006 by the high court’s third division that included Martires ordered the dismissal for dishonesty and grave misconduct of a Bureau of Customs assistant district director, “based on anomalies found in her 2000 to 2002 Statements of Assets, Liabilities, and Net Worth.”

On May 11, 2018, Martires also penned a separate 53-page concurring opinion for the dismissal of then Chief Justice Ma. Lourdes Sereno via quo warranto proceedings for her failure to submit all her SALNs with the Judicial and Bar Council.

“It is well to state, at the outset,” Martires wrote, “that we are NOT REMOVING A CHIEF JUSTICE because respondent Maria Lourdes P. A. Sereno, who has no valid appointment, is not the legitimate Chief Justice that the Filipino people perceive her to be.”

This was because, Martires argued, Sereno had “failed to comply with the requirement of submission of Statements of Assets, Liabilities, and Net Worth (SALNs) imposed by the Judicial and Bar Council (JBC) for applicants to the position of Chief Justice, and such noncompliance necessarily renders her appointment invalid, making her a mere ‘de facto’ Chief Justice who can be removed from office through an action for quo warranto.”

Guardian of SALNs?

Three months after he issued this separate opinion, Martires was appointed top boss at the Office of the Ombudsman, where he now seems to serve as keeper and guardian of the SALNs of the President and senior-rank officials.

Under Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) or The SALN Law, the Ombudsman’s national office is the custodian of the SALNs of the President, Vice President, senior officials, and star-rank military and police officers.

Post-1989 Ombudsmen who had served before Martires – Simeon A. Marcelo, Ma. Merceditas N. Gutierrez, and Conchita Carpio-Morales – had actually issued circulars and guidelines that spelled out the procedures for securing copies of SALNs, and also affirmed a “public disclosure” policy for citizens to access copies.

But under Martires, the sixth Ombudsman who Duterte appointed in August 2018 (or six months before Martires’s retirement as associate justice of the Supreme Court), the SALNs of senior officials are now kept under lock and key.

All requests for SALNs filed with the national office, as well as with the offices of the Deputy Ombudsmen for Luzon, Visayas, and Mindanao, and for the Military and Law Enforcement Officer (MOLEO) are now being submitted for approval only by Martires.

Secrecy spreads

The situation has posed a serious challenge to The SALN Law from all fronts, and seems to have triggered an epidemic of secrecy in the Congress, the judiciary, and other executive agencies.

For one, the Supreme Court has stopped releasing this year even a summary of the data enrolled in the 2018 SALNs of the justices. After the impeachment of then Chief Justice Renato C. Corona in December 2011, the high court finally adopted guidelines on the release of the SALNs of justices, and started disclosing summary data on the assets, liabilities, and net worth since 2012.

For another, the Senate this year stopped releasing copies of the actual SALNs that the senators had filed. New rules on SALN disclosure has been imposed by Senate Policy Order 2019-001 that the Office of the Senate President (OSP) Vicente Sotto issued on Feb. 27, 2019.

The Senate used to be the most open agency in terms of public disclosure of SALNs. Its new policy makes it a poor copycat of the House of Representatives that since 2010 has been disclosing only the summary numbers for the assets, liabilities, and net worth that district and party-list congressmen had declared in their SALNs.

In February 2019, then House Speaker Gloria Macapagal-Arroyo passed House Resolution No. 2467 that prescribed “Rules of Procedure in the Filing, Review, and Disclosure of, and Access to, the Statements of Assets, Liabilities and Net Worth (SALNs) of Members, Officers and Employees of the House of Representatives.” The resolution now requires all requests to access the congressmen’s SALNs to pass majority vote by the House members in plenary session.

Even the Office of the Ombudsman responded similarly to PCIJ’s request for the SALNs of its senior officials; it released only summary numbers.

An additional request PCIJ filed with the Ombudsman for copies of the SALNs of the officials of the Commission on Audit, Civil Service Commission, and Commission on Elections was referred back to the commissions.

Bad optics

Accessing SALNs has never been as arduous a task, especially with a President who is less than an exemplary model of transparency.

Cabinet officials interviewed by PCIJ say that it would have been best if the President had agreed to release his 2018 SALN.

“The optics are really bad,” says one official. “The negative perception would be there, that perhaps he is hiding something.”

“The problem is, napikon ‘ata (he got peeved),” the official adds, and indicates the cause of the chief executive’s ire to be an April 2019 three-part PCIJ report on the wealth of the President and two of his children.

Another official agrees that the President’s refusal to release his SALN could indeed be misconstrued as giving the lie to his own FOI edict. Comments the official: “Yes, that is true, that is fair. We have been reminding the lawyers that the SALN is a document that must be disclosed under EO No. 2.”

Notwithstanding such advice given to government officials, persistent pursuit in the last seven months of the President’s 2018 SALN by PCIJ, various media agencies, and CSOs of the Right to Know, Right Now! Coalition failed to yield any results.

This November, the Coalition asked for copies the President’s SALNs for 2016 to 2018 via requests submitted on the e-FOI portal and letters sent by email, fax, and snail mail. Its FOI Youth Initiative members, meanwhile, filed requests for the SALNs of all the members of the House of Representatives. In both instances, the requests yielded no SALNs.

Back-and-forth process

PCIJ had filed requests with the Office of the Ombudsman in June and August 2019 for the President’s SALN.

On June 18, 2019, Assistant Ombudsman Pilarita T. Lapitan wrote PCIJ: “Please note that the processing of your request has been held in abeyance pending the review and revision of the policies and rules of the Office of the Ombudsman regarding the release of SALNs.”

“In the meantime, may we advise that you direct your requests to the Office of the President,” she added.

PCIJ did as advised and sent two letters to the Malacañang Records Office (MRO) and a third to the Office of the Executive Secretary (OES) between June and September 2019.

The MRO replied on July 2, 2019 through Atty. Concepcion Zeny Ferrolino-Enad via email.

Ferrolino-Enad wrote: “The requested information is not among the documents available on file nor in the possession of this Office.” Duterte’s own office, according to Ferrolino-Enad, also does not have a copy of the President’s SALN.

Ferrolino-Enad’s letter referred PCIJ’s request back to the Office of the Ombudsman, citing it as the official repository of the President’s SALN. “Kindly note,” she added, “that the Office of the Ombudsman is the official repository of the President’s SALN, pursuant to Memorandum Circular No. 3, series of 2012, Sec. 3 (a).”

Still no guidelines

The MRO reply sent PCIJ back to the Ombudsman the next month, but a reply from the Ombudsman dated Sept. 16, 2019 stated: “Please note that the processing of said requests have been held in abeyance pending the review and revision of the rules and guidelines of the Office of the Ombudsman regarding the release of SALNs. In the meantime, may we advise that you course these requests directly to the offices of the officials concerned.”

In August, PCIJ sent another letter to the Palace, but this time addressed to Executive Secretary Salvador Medialdea, administrative head of the Malacañang Records Office.

In it, PCIJ cited the Section 1 (c), Rule VII of R.A. No. 6713, and the Civil Service Commission’s Memorandum Circular No. 20, s. 1994, provides that if the requested SALN copy is not in the custody of the Office of the Ombudsman, “it is the processor’s duty to promptly inform the requester that it is in the custody of another office/agency.”

In this instance, PCIJ noted that the President’s SALN should readily be available at the office of Medialdea, who has administrative supervision over the personnel and agencies of the Office of the President.

In addition, PCIJ said a provision in the Implementing Rules and Regulations (IRR) of The SALN Law that states that a copy of SALNs of all filers “shall also be filed with their respective departments, offices or agencies.”

On Sept. 5, 2019,  Medialdea’s office replied yet again with a flat denial of PCIJ’s request for Duterte’s SALN. Its excuse: the Office of the Executive Secretary and the Malacañang Records Office are not required in law to keep copies of the President’s SALN “under either R.A. No. 5713 or it amended IRR.”

The Palace’s reply-letter advised PCIJ to wait a while longer for the Ombudsman to release the document: “Considering that the OMB, in its letter-reply dated 18 June 2019, neither granted nor denied your request for a copy of the President’s SALN but merely held processing thereof in abeyance, the PCIJ may wait for the OMB’s final action on the matter.”

That would have been good counsel except that on Monday, Ombudsman Martires tossed the ball back in the Palace’s court. Martires said that the Office of the Executive Secretary should release the President’s SALN.

Most senior, most secretive

By all accounts, Duterte is now leading the resistance against the public disclosure of SALNs, from the most senior officials of the land.

In September 2017, PCIJ had exposed how Duterte’s Cabinet members hid and black-penciled data on the exact location, acquisition costs, and values of their real and personal properties; their liabilities and creditors; and their sources of income, among other information, in a frivolous but irregular frenzy of redactions.

At the time, on PCIJ’s request, Privacy Commissioner Raymund E. Liboro issued an opinion on the issue of alleged tension between The SALN Law and the Data Privacy Act, and the public’s right to access SALNs.

In his Sept. 26, 2017 opinion, Liboro wrote: “The SALN is mandated to be publicly available and the public’s right to know is guaranteed under this law. Information required by RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) pertaining to assets, liabilities, and net worth, and financial and business interests of the spouse and unmarried children under 18, cannot be redacted. Other personal information should be disclosed only when necessary for a legitimate purpose.”

In April 2019, PCIJ tracked the steady rise from 1998 to 2017 in Duterte’s wealth, and a parallel uptick from 2007 to 2017 in the wealth of his children and fellow elective officials, Sara and Paolo, based on SALNs that they had all dutifully filed and disclosed in those years.

In a related development, though, PCIJ filed on June 10, 2019 a request for of the 2018 SALN of Vice President Maria Leonor G. Robredo, first with the Ombudsman and was told that the document can be secured from the Office of the Vice President.

PCIJ did as advised. The Office of the Vice President, in a letter, acknowledged receipt of PCIJ’s FOI Request Form on July 1, and an earlier PCIJ request letter. On July 5, PCIJ got a copy of Robredo’s 2018 SALN.– With research and reporting by Vino Lucero, PCIJ, December 2019