Not only is there a dispute in the use of the Code of Conduct as legal basis for restricting public access to Statements of Assets, Liabilities, and Net Worth (SALNs), there are also questions whether the circular of Ombudsman Samuel Martires violated the same law.
There are two salient provisions in the Code of Conduct of Public Officials or RA 6713 that clearly allow public access.
One is Section 8(D)(b) which says: “It shall be unlawful for any person to obtain or use any statement filed under this Act for any commercial purpose other than by news and communications media for dissemination to the general public.”
And the more forceful provision: Section 8(C)(4) which says “any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement.”
This rule is reiterated in the Implementing Rules and Regulations (IRR), under Rule VII, Section 3 which says SALNs “shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law,” and that SALNs “shall be available to the public, subject to the foregoing limitations, for a period of ten (10) years after receipt of the statement.”
“(The circular) goes against the constitutional principle that public office is a public trust, there’s this law which mandates the filing of the SALNs, and also mandates that the public shall even photocopy and reproduce these SALNs of public officials and employees,” former ombudsman Conchita Carpio Morales said in ANC’s Headstart, referring to RA 6713.
Asked on ANC whether the circular violated this mandate under the law, Morales said “yes.”
Rappler has reached out to Martires for a response. The Office of the Ombudsman later sent a statement reiterating that Martires’ circular only covers the SALNs of the officials under its custody.
RA 6713 tasks the Office of the Ombudsman to keep and release the SALNs of presidents, vice presidents, and heads and officials of constitutional bodies.
Martires’ Memorandum Circular makes it impossible for the public to access the SALNs of the officials under its jurisdiction unless the official himself or herself consents to the release.
Because of this, President Rodrigo Duterte has been able to keep his 2018 and 2019 SALNs secret.
Morales said nothing in RA 6713 requires the same conditions that Martires’ circular requires, which are authority from the subject official, a court order, or that you have to be an Ombudsman investigator needing the SALN for an official proceeding.
Martires made this point: the responsibility of releasing one’s SALN lies with the official himself, not the Office of the Ombudsman, which is a mere custodian.
But for Morales, Martires’ conditions in his memorandum circular are not found in RA 6713.
“The code of conduct does not require those requirements in the memorandum of the current Ombudsman,” said Morales on ANC.
Saying that the SALNs had been weaponized by political foes, Martires said he’s restricting public access because of Section 8(D)(a) of the law which says: “It shall be unlawful for any person to obtain or use any statement filed under this Act for any purpose contrary to morals or public policy.”
This was not cited in the Memorandum Circular, but only mentioned by Martires in a congressional hearing.
“If he believes that this is being weaponized by enemies, then that is the concern of the politician, but no one can refuse the request of anyone to use a SALN or copy the SALN for as long as it is not against morals or public policy,” said Morales.
Law professor Tony La Viña said public access to SALNs “is always subject to regulation” but not complete restriction as there is Section 8(C)(4) which allows SALNs to be available to the public.
“If Ombudsman completely disallows it, it violates this provision but putting conditions to access will likely be upheld. For me, it’s barring media that is most problematic,” La Viña told Rappler.
Authority to make the rules
Does Martires even have the authority to make rules governing SALNs?
Section 12 of the law says that it’s the Civil Service Commission (CSC) which is “authorized to promulgate rules and regulations necessary to carry out the provisions of this Act.”
Asked for her opinion, CSC Commissioner Aileen Lizada simply said that “treat the Circular as applicable to the Office of the Ombudsman only.”
“The same does not bind CSC at all insofar as our power under the law is concerned,” Lizada told Rappler.
Morales told Rappler that Section 12 covers the SALNs in CSC’s custody only, which are basically all other employees not under the jurisdiction of the Office of the Ombudsman, Office of the President, Congress, and Judiciary.
“My reading of that provision is since the law enumerates the functionaries to whom specific government officials shall file their SALN, whereas all others shall file theirs with the CSC, I think it is only with respect to such other officials that the CSC can issue the rules to apply to them,” said Morales.
Even then, Morales said Martires’ circular “does not carry out the spirit of the law which means that public office is a public trust and therefore you are supposed to be transparent.” – Rappler.com