Daily Tribune - Sol-Gen Calida’s options in the SALN cases

5 January 2021

By Victor Avecilla |  Daily Tribune

If Calida defends MC 1, he will weaken his stand that SALN should be accessible to the public.

Last September, Ombudsman Samuel Martires issued Memorandum Circular (MC) 1, which restricts public access to the statements of assets, liabilities and net worth (SALN) of top government officials on file in his office.

MC 1 requires that requests for copies of SALN must be accompanied by a notarized authorization from the official whose SALN is sought. That’s a novelty because that requirement is not found in the Constitution and or in the Code of Conduct and Ethical Standards for Public Officials and Employees, or Republic Act (RA) 6713, the law governing public access to SALN.

Likewise, last year, Solicitor General Jose Calida sought access to the SALN of Supreme Court (SC) Associate Justice Marvic Leonen. The SC denied Calida’s request, citing its resolution in 2012 which disallows the release of the SALN of judges and justices if security reasons and other considerations warrant the restriction.

In early 2020, a group led by lawyer Lorenzo “Larry” Gadon filed a petition challenging the validity of Martires’ MC 1 in the Court of Appeals (CA). This group said that when a case involves acts or omissions of a quasi-judicial agency, the proper forum is the CA, and not the SC.

Likewise, in November 2020, public interest advocate Louis “Barok” Biraogo filed a separate petition questioning the constitutionality of MC 1, but this time in the SC.

Biraogo argued in his petition that under Section 17, Article XI of the Constitution, SALN “shall be disclosed to the public in the manner provided by law.” He said that there is nothing in RA 6713 which requires the public and the media to submit a notarized authorization from the official whose SALN is sought, before access to the same is allowed.

MC 1, Biraogo contended, amended RA 6713, and since the Ombudsman has no power to legislate, MC 1 is a usurpation by the Ombudsman of the legislative power of Congress and is, therefore, unconstitutional.

Biraogo added that since the issue regarding MC 1 is a pure question of law, a constitutional question, and a matter of transcendental importance, the proper forum is the SC.

Moreover, Biraogo asserted that the SC does not resolve issues of facts and, as a rule, only resolves questions of law. Biraogo said MC 1 was issued by the Office of the Ombudsman pursuant to its rule-making power (which concerns only questions of law), and not its quasi-judicial power (which involves questions of fact).

Filing the case in the CA, Biraogo said, will lead to a needless multiplicity of suits, because the ruling of the CA is certain to be challenged eventually in the SC, and the case reheard all over again. Rules of procedure frown on multiplicity of suits.

As Solicitor General, Calida is expected to defend the validity of MC 1.

There being two court cases challenging the constitutionality of MC 1, Calida’s likely action is to ask the CA to dismiss the Gadon petition in view of the pending Biraogo petition in the SC. In the alternative, Calida can ask the SC to order the CA to elevate the pending Gadon petition in the SC, for the same reason.

Constitutional questions, after all, are best resolved with finality by the SC, and not by the CA.

There are other concerns.

Calida is most probably upset about his unsuccessful attempt to access the SALN of Justice Leonen. It that is so, will Calida be agreeable to defending the validity of MC 1 in his capacity as the Solicitor General? If Calida defends MC 1, he will weaken his stand that SALN should be accessible to the public.

When the official action of a line agency of the government is challenged in court, the Solicitor General is tasked to defend the agency’s action.

There are, however, precedents when the Solicitor General declined the task because the action taken by the agency concerned is legally untenable. In those instances, the Solicitor General recommended that the legal department of the agency concerned assume the task.

Many of those precedents took place during the tenure of Solicitor General Francisco Chavez.