GOVERNMENT CONTRACTS AND/OR TRANSACTIONS SHOULD BE UPLOADED ON GOVERNMENT WEBSITES TO ASSURE TRANSPARENCY AND ENSURE ACCOUNTABILITY
INTRODUCTION
Section 7, Article III of the 1987 Philippine Constitution provides:
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
From the tenor of the aforesaid provision, it is undoubtedly clear that the general public shall be informed of any matter relative to any government contract and/or transaction, subject only to clearly-defined and reasonable exceptions, as may be provided by existing laws, rules and regulations.
Undeniably so, the primordial purposes of the same are to assure transparency on the part of the government and to ensure accountability of its agents. Yet, notwithstanding this express constitutional provision, it is most often than not, wantonly ignored in utter disrespect to its intent.
This paper will focus and zero-in on the importance and relevance of technology to achieve full transparency in all government contracts and/or transactions and to serve as an effective tool for accurately pinpointing its agents responsible therefor, without prejudice to exceptions as may be legally provided. After all, the supreme law of the land, no more, no less, expressly provides for the States obligation, subject to reasonable conditions prescribed by law, to adopt and implement a policy of full public disclosure of all its transactions involving public interest ( Section 28, Article II, 1987 Philippine Constitution ).
To some, the subject matter at hand seems all-familiar already. However, the writer believes that an in-depth analysis of related laws, as well as other logical bases, will provide the informed of a better perspective and will be enlightening to the uninformed.
REPUBLIC ACT NO. 8792
ELECTRONIC COMMERCE ACT OF 2000
Pursuant to Section 24, Article II of the 1987 Philippine Constitution which provides that “The State recognizes the vital role of communication and information in nation building”, this act aims to facilitate domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information through the utilization of electronic, optical and similar medium, mode, instrumentality and technology to recognize the authenticity and reliability of electronic documents related to such activities and to promote the universal use of electronic transaction in the government and general public ( Section 3, RA 8792 ).
RPWEB To Promote The Use Of Electronic Documents And Electronic Data Messages In Government And To The General Public
This is pursuant to Section 28, RA 8792 which mandated the installation of an electronic online network in accordance with Administrative Order 332 and House of Representatives Resolution 890, otherwise known as RPWEB, to implement electronic transaction in government to facilitate the open, speedy and efficient electronic online transmission, conveyance and use of electronic data messages or electronic documents amongst all government departments, agencies, bureaus, offices down to the division level and to the regional and provincial offices as practicable as possible, government owned and controlled corporations, local
government units, other public instrumentalities, universities, colleges and other schools, and universal access to the general public.
For the purposes of this Act, the following terms are defined, as follows:
“Electronic Data Message” refers to information generated, sent, received or stored by electronic, optical or similar means ( Section 5 (c), RA 8792 ).
“Electronic Document” refers to information or the representation of information, data, figures, symbols or other modes of written expression described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is receiced, recorded, transmitted, stored, processed, retrieved or produced electronically. ( Section 5 (f), RA 8792 ).
The aforecited relevant provisions of RA No. 8792 refer to government electronic online network serving as a catalyst to transactions in/with the government. Indubitably, the same addressed the problem of snail-paced transactions in/with the government with the legal recognition of electronic data messages or electronic documents. However, this law does not require that government contracts and/or transactions with another person, natural or juridical, private or public, local or foreign, specifically involving the utilization or acquisition of public funds or procurement of programs or projects, be posted in appropriate government websites.
REPUBLIC ACT NO. 3019
ANTI-GRAFT AND CORRUPT PRACTICES ACT
It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto ( Section 1, RA 3019 ).
The most common corrupt practices of public officers under this law relative to any contract and/or transaction entered into by them, in behalf of the government, are found in Section 3 (b), (g) and (h).
In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful ( Section 3, RA 3019 ):
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
(h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.
The writer strongly believes that uploading government contracts and/or transactions on appropriate government websites, regardless of the substantiality of the pecuniary or material interests involve, is an effective deterrent to the above-mentioned transgressions of the law. This is pursuant to the State’s constitutional mandate to maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption ( Section 27, Article II, 1987 Philippine Constitution ).
REPUBLIC ACT NO. 6713
CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES
It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest ( Section 2, RA 6713 ).
Section 4 (h), Section 7 (a), (d) and Sections 8 & 9 find relevance in the topic of this paper as they reinforce the necessity of transparent government contracts and/or transactions to determine and establish the accountability of a public officer.
Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties ( Section 4, RA 6713 ):
(h) Simple living. Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.
In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful ( Section 7, RA 6713 ):
(a) Financial and material interest. Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office.
(d) Solicitation or acceptance of gifts. Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.
Public officials and employees have an obligation 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 ( Section 8, RA 6713 ).
A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and/or divest himself of his shareholdings or interest within sixty (60) days from such assumption ( Section 9, RA 6713).
As used in this Act, the term:
“Conflict of interest” arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty ( Section 3 (i), RA 6713 ).
“Divestment” is the transfer of title or disposal of interest in property by voluntarily, completely and actually depriving or dispossessing oneself of his right or title to it in favor of a person or persons other than his spouse and relatives as defined in this Act ( Section 3 (j), RA 6713 ).
REPUBLIC ACT NO. 9184
GOVERNMENT PROCUREMENT REFORM ACT
All procurement of the national government, its departments, bureaus, offices and agencies, including state universities and colleges, government -owned and/or-controlled corporations, government financial institutions and local government units, shall, in all cases, be governed by these principles ( Section 3, RA 9184 ):
(a) Transparency in the procurement process and in the implementation of procurement contracts.
(b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.
(c) Streamlined procurement process that will uniformly apply to all government procurement. The procurement process shall simple and made adaptable to advances in modern technology in order to ensure an effective and efficient method.
(d) System of accountability where both the public officials directly or indirectly involved in the procurement process as well as in the implementation of procurement contracts and the private parties that deal with government are, when warranted by circumstances, investigated and held liable for their actions relative thereto.
(e) Public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of this Act and its implementing rules and regulations, and that all these contracts are performed strictly according to specifications.
To promote transparency and efficiency, information and communications technology shall be utilized in the conduct of procurement procedures. Accordingly, there shall be single portal that shall serve as the primary source of information on all government procurement. The G-EPS (Government Electronic Procurement System) shall serve as the primary and definitive source of information on government procurement. Further, the GPPB (Government Procurement Policy Board) is authorized to approve changes in the procurement process to adapt to improvements in modern technology, provided that such modifications are consistent with provisions of Section 3 of this Act ( Section 8, 1st paragraph, RA 9184).
This is the law that should be strictly enforced to the letter since the writer is of firm belief that most violations of the relevant provisions of RA 3019 and RA 6713 really jumpstart from government procurement, whether of infrastructure projects, goods or consulting services.
FREEDOM OF INFORMATION BILL
This bill has already been approved by the Bicameral Conference Committee of the Congress but to this day, has not yet been transmitted to the President for signing into a law because of its pending ratification with the House of Representatives.
The bill, if signed into a law, will implement the right of the people to information on matters of public concern guaranteed under Section 7, Article III of the 1987 Philippine Constitution and the State policy of full public disclosure of all its transactions involving public interest under Section 28, Article II of the 1987 Philippine Constitution.
It mandates all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned and controlled corporations to upload all government contracts and/or transactions on the web subject to exceptions enumerated therein as follows:
- When the information has been deemed confidental under the guidelines established by an executive order;
- When information’s confidentiality is crucial to defense and law enforcement; legitimate military or police operations; prevention, detection or suppression of a criminal activity; protection of confidential or protected sources or witnesses, law enforcement and military personnel or their immediate families.
- When information pertains to the personal information of a person;
- When information requested pertains to trade, industrial, financial or commercial secrets of a natural or juridical person other than the requesting party.
- When information is obtained in legal proceedings, which are privileged;
- When information is obtained by Congress in executive sessions;
- When the release of information to public would impair the impartiality of verdicts or obstruct the administration of justice.
Nevertheless, what is really of paramount importance is that the bill’s subsequent ratification by the house and signing into a law by the President (hopefully!) will finally provide an enabling law to the right of the people to information on matters of public concern and/or public interest as enunciated by the Constitution.
CONCLUSION
Graft and corruption is already considered an endemic in the Philippine bureaucracy. As a matter of fact, our country is embarrassingly one of the leading countries in terms of the same. Public officers and their families guilty thereof malevolently indulge in extravagant or ostentatious display of wealth insensitive of the fact that these are patently and manifestly ill-gotten or unexplained. Notwithstanding the various laws already in place relative thereto, these condemnable public officers escape prosecution primarily because of difficulty in obtaining a paper trail that will serve as an evidence to support a complaint or conviction.
The mandatory uploading of government contracts and/or transactions including the Statement of Assets, Liabilities and Net Worth (SALN) of public officers on appropriate government websites will definitely set the aforesaid obstacle aside and will finally put into reality the oft-cited phrase “government transparency and accountability.”
AUSL Tech & Law 