Show me something to believe in

One of the strangest conversations I had when I represented a multinational client before a tax agency was one I had with a customs collector. It was a fraud case against my client who gave 100 percent of the duties and taxes to the broker for payment to the Bureau of Customs (BOC). My client made the import entry declaration with the fully declared amount of the importation. Its broker gave a Land Bank receipt for 100 percent of the amount of the duties and taxes, which my client thought as dutifully paid.

It turns out that somehow, another import entry declaration was made on my client’s behalf that under-declared the value to only 30 percent. And unknown to my client, only 30 percent of the duties and taxes was actually paid on its behalf. The correct import entry declaration made by my client was not filed at all by the broker, and the Land Bank receipt it received for 100 percent of the taxes and duties it thought it paid – was fake.

I told the customs collector that my client did not know it was defrauded and obviously was not the perpetrator. The collector said it did not matter so long as fraud happened in the importation. So I said, that was a new concept to me because that meant we jail the rape victim as if the victim is the rapist herself. The discussion even got strangers, but we held our ground and kept the discussion all aboveboard. Luckily in a second meeting, the commissioner of customs interceded and made it just.

I tell this story to dramatize that corrupt or criminal practices can be deterred or greatly minimized if there is a more robust exercise of the public’s right to information. For example, a demand for the Bureau of Customs to publish information for every import entry declaration officially made, the declared transaction value and duties paid, and the name of the key customs official involved. Imagine if the public knows how many luxury vehicles during the year were imported, and the prices at which these were declared and the duties paid for them. Then all technical smugglings would be disclosed and the BOC officials involved would be exposed. The reports can be validated by the Commission on Audit (COA), and the COA report on exceptions can be made public, too.

The right to information is not dependent on any law or executive order. It is contained in the Bill of Rights, and the Supreme Court (SC) said the constitutional provision that gives the public access to official records, documents and papers pertaining to official acts is self-executory. It is already enabled. The press has used this many times, but anyone interested can ask the government for information on matters of public concern.

The SC explained that this constitutional right of every citizen is essential to make sure government officials act within the limits of their authority. If people are “denied access to information on the inner workings of the government, the citizenry can become prey to the whims and caprice of those to whom power is entrusted”.

Using this power in the Bill of Rights, ordinary citizens can actually make lifestyle checks of government officials. For example, the access to information about the foreign trips they made during the year and expenses that were charged to government. Access to Statements of Assets, Liabilities, and Net Worth (SALNs) that disclose not only government officials’ assets, but also the assets of their spouses and their children who are below 18 years of age. If they have business interests or sources of income other than their government occupations, those will also be shown. So if their spouses are seen on Facebook on a shopping galore brandishing their new Hermeses and LVs, or jewelries, those should be declared in their SALNs. It’s not a crime per se to own expensive things, but it is perjury to have an untruthful SALN.

Senators, congressmen and mayors can be made more accountable if information about their projects, project costs and bidding processes, contractors, and liquidation reports, (or a statement of all sources and uses of funds and their details) are made available to the public. This level of transparency could deter the zeal and impunity by which some pork barrel funds were misused, or funneled to a “special purpose” foundation. The disclosure could even discipline the way government agencies spend on technology or hardware, for instance.

Even the medical records of our President and all those in line to succeed him can be accessed by the public because these matters are certainly of public concern and the public cannot be kept in the dark.

The thing is, it’s possible for access to information possessed by government to be made difficult, and you may need to file a special civil action for mandamus. The late and admirable citizen Frank Chavez once popularly filed such action and won when he accessed information on the compromise settlement between the Marcoses and the Presidential Commission on Good Government (PCGG). Note that even the recent President’s executive order on freedom of information does not cover congress and local governments, and the media people complain that access is even made more difficult now, as an unintended consequence.

There is a constitutional mandate, and legislators must rise above their individual concerns on transparency and make way for the passage of the right law. They should make access to information instant by requiring certain information be made public – to help the fight against corruption, encourage aboveboard dealings, and show that government people are doing (or not) their jobs.

“Public office is a public trust” does not mean the public must blindly trust public officials. It does mean that to earn the trust of the public, government must show that it is accountable, transparent, and worthy of trust. Then no one needs to swear to the high heavens that change has come or is still coming. Access to information is all we need for us to believe.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the Tax Committee of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.