Renato Corona’s SALN - Three Grounds for Dismissal of Article 2
of the Articles of Impeachment
of the Articles of Impeachment
The failure to provide information in the SALN is alleged to
be an impeachable offense; removal is sought on the basis of three grounds:
- That it is a violation of the anti-graft and corrupt practices act;
- That it is a culpable violation of the Constitution; and
- That it is a betrayal of the public trust.
Graft and corruption
On the first issue, the complaint states that:
“2.3. It is also reported that
some of the properties of Respondent are not included in his declaration of his
assets, liabilities, and net worth, in violation of the anti-graft and
corrupt practices act.”
As basis for impeachment, the
Constitution provides as follows:
The President, the
Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on
impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. ( Art XI
Section 2)
Note that the Constitution states
“graft and corruption”, while the complaint alleges “violation of the
anti-graft and corrupt practices act”. Is there a difference? Or is this mere
sophistic quibbling?
There is no sophistry if the law
itself declares the difference.
The Anti-Graft and Corrupt
Practices Act states that:
Section 3. Corrupt
practices of public officers. 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: (Italics supplied in the law)
An enumeration of acts declared
to be corrupt practices follows in subsections 3 (a) to 3 (k). They are acts
that range from receiving a
commission in any government contract (3 b), requesting a gift from an
applicant for a government permit or license (3 c), and giving a party an
unwarranted advantage or preference in the discharge of the public official’s
duty.
The mandatory requirement to submit SALNs, however, is found in
Section 7.
It is clear from the foregoing,
that the mandate to submit SALNs is not part of Section 3, which declares what
are “corrupt practices”. Any failure to comply with Section 7, therefore,
cannot be considered an act of corruption to provide basis for impeachment
under the phrase “graft and corruption” found in Section 2 of Article XI.
There is no guile, therefore, if
the respondent submits that the Constitutional provision referring to “graft
and corruption” does not apply to him. There is, in fact, craftiness in the
complaint, in alleging “violation of the anti-graft and corrupt practices act”,
to yield a basis for impeachment which is easy to prove.
Aside from the textual basis for
non-inclusion of Section 7 in the coverage of “graft and corruption” under
Section 2 Art XI of the Constitution, exclusion is also warranted based on
conceptual grounds. The crimes (treason, bribery, high crimes) enumerated in
the provision of the Constitution refer to crimes which are mala in se.
It might be pertinent at this
point to hark back to the concept of mala in se as opposed to mala
prohibita, for that is what
distinguishes Section 3 (mala in se) from Section 7 (mala prohibita).
Any freshman law student will
proudly recite that an act that is mala in se is an act that is
inherently evil - one that is universally characterized as immoral or depraved.
Majority of the crimes defined by law are of such nature – murder, rape,
robbery.
An act that is mala prohibita,
on the other hand, is punishable, only because the Congress declares so. The
declaration is made, as a matter of public policy, to effect a behavioral
change in society. The resultant behavior is, in the judgment of Congress, a
good that must be pursued. Congress, however, pursues the good through the
stick, and not the carrot. Penalties are imposed, in the hope of effecting
behavioral change.
An example is the prohibition on
overspending during the elections. There is nothing inherently wrong in a rich
man spending all his money to chase a public office. But Congress saw it fit to
level the playing field, for which reason, it has made it an election offense
to spend beyond some limit.
Another is the ban on smoking in
certain areas.
The offenses enumerated in
Section 3, being mala in se require the element of mens rea
(intent), aside from the prohibited act.
The element of intent … is described as the state of mind accompanying
an act, especially a forbidden act. It refers to the purpose of the mind and
the resolve with which a person proceeds. It does not refer to mere will, for
the latter pertains to the act, while intent concerns the result of the act. [1]
The result of the acts which
characterize most offenses involving graft and corruption, is the pecuniary
gain to the offender. Commissions, gifts, etc., all produce material gain to
the offender. There is no material gain, however, in the refusal to disclose
financial information. In fact, refusal may be motivated, not by a desire to
conceal corruption, but by a desire to shield one’s privacy, from intrusions by
the state. The latter is exemplified in the case of Morfe v. Mutuc.
In that case, Judge Jesus P.
Morfe, in the words of the Supreme Court, “a judge of repute of a court of
first instance” [2], refused to
submit his SALN after his first submission. He questioned Section 7 of RA 3019
in a declaratory relief action before the court of first instance (presided by
another judge). The lower court sustained Judge Morfe, which prompted the
government to elevate the matter before the Supreme Court.
On the basis of textual and
conceptual evaluation, therefore, a removal is not warranted on the ground of
“graft and corruption”.
Culpable violation
Another potential basis for
removal is the alleged “culpable violation” of the Constitution. The
prosecution asserts that submission of the SALN is required under the
Constitution.
Section 17. A public officer or employee shall, upon
assumption of office and as often thereafter as may be required by law, submit
a declaration under oath of his assets, liabilities, and net worth. (Article
XI)
The mandate of the Constitution
only requires a submission, which was complied with when the respondent
submitted his SALN to the Clerk of Court of the Supreme Court. Even if the
respondent refused to submit his SALN as Judge Morfe did, it is doubtful that
this can serve as the basis for removal.
It bears noting that the
Constitutional provision only refers to the filing of the SALN upon assumption
of office. Subsequent filings are provided by law, and their non-compliance is
dealt with in accordance with said statute. Any violation after a first filing,
therefore, is covered by law, not the
Constitution. This, clearly, is not a basis for removal.
In fact, not every failure to
comply with a Constitutional mandate can serve as a basis for removal. The
violation, it is submitted, must be one that is mala in se (inherently
evil), like the other bases for removal, because the phrase “culpable
violation” of the Constitution appears in the same enumeration as treason,
bribery, and graft and corruption. Under the principle of ejusdem generis,
when an enumeration is made, the enumerated items are deemed to be of the same
nature or characteristic.
But is there a violation of a
Constitutional mandate that cannot be considered inherently evil? It is
submitted that such a violation is possible.
The Constitution provides that:
“The President shall submit to
the Congress, within thirty days from the opening of every regular session as
the basis of the general appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing and proposed revenue
measures.” (Section 22, Article VII).
If a President decides that he
needs more time to arrive at a workable budget, and submits it sixty days after
the opening of session, it certainly will not furnish a basis for removal. And
the reason for that is the fact that no evil intent can be ascribed to the
President, nor can a resultant evil occur (Congress still has months to
deliberate).
Similarly, the Constitution
provides that: “The President shall address the Congress at the opening of its
regular session. He may also appear before it at any other time.” (Section 23,
Article VII).
A President, like Thomas
Jefferson and all subsequent presidents before Woodrow Wilson, may believe that
the address is too monarchical (similar to the Speech from the Throne) [3].
If said President sends a report, instead of addressing Congress, it is
doubtful that the refusal to address Congress would form the basis for a
removal. The reason for that is the fact that the refusal is not an act that is
mala in se, like treason and bribery; there being no resultant evil, nor
evil intent in the refusal.
The second ground, therefore,
cannot be invoked for a removal.
Betrayal of Public Trust
A third potential basis for
removal is the alleged betrayal of public trust. In submitting a less than
complete SALN, it is argued that the respondent betrayed the public trust. The
prosecution seems to imply that the
term “trust” in the phrase “public trust” refers to the candor demanded of a
public official, as in “The public can
no longer trust the respondent because he lied when he filled up his
SALN.” The phrase “betrayal of public
trust”, however, is not a term of Philippine coinage. As used in the United
States, the phrase refers to a breach of fiduciary obligation, not want of
candor or dishonesty.
In the case of US v. Addonizio [442
U.S. 178 (1979)], the City Mayor of Newark, New Jersey was charged with
extortion, in conspiracy with 14 others. Said crime of extortion was
characterized by the District Court as “a serious breach of public trust”.
In the case of US v. Clarence E.
Braasch [502 F.2d 139], the Court of Appeals for the Seventh Circuit commenced its decision by
stating that: This prosecution, brought under the extortion statute, depicts a
betrayal of public trust of the most alarming type to a free society: the
corruption of the entire vice squad of the 18th Police District of Chicago over
a period of many years.
And in the case of United States
Postal Service v. National Association of Letter Carriers (847 F.2d 775), a
case involving theft of mail by a post office employee, the Court of Appeals
for the Eleventh Circuit the defendant’s “conduct violated his fiduciary
responsibilities and amounted to a betrayal of public trust.”
The above cases illustrate that
the phrase “public trust”, in the American context, signifies fiduciary obligation;
a breach of that fiduciary obligation is what constitutes a betrayal of public
trust.
Although not expressly stated in
the American Constitution, betrayal of public trust is a basis for removal,
understood to be included in the phrase “high crimes and misdemeanors”. Such
understanding was culled from English law, the origin of the American concept
of impeachment.
As early as 1701, Lord Halifax was impeached for corrupt
practices and betrayal of trust. “Thus,
under English precedent, “high crimes and misdemeanors” denoted a category of
political crimes against the state that was “beyond the reach of ordinary
criminal redress,” which included: “misapplication of funds… abuse of official
power… neglect of duty…encroachment on or contempt of Parliament’s
prerogatives,” and corrupt practices and betrayal of public trust.” [4]
“Blackstone
defines the “first and principal” high misdemeanor as “maladministration of
such high officers as are in public trust and employment,” usually punished by
Parliamentary impeachment.” [5]
Similarly, Alexander Hamilton described
impeachment as follows:
“[It is appropriate for]
those offences which proceed from the misconduct of public men, or, in other
words, from the abuse or violation of some public trust. They are
of a nature which may with peculiar propriety be denominated political, as they
relate chiefly to injuries done immediately to the society itself.” [6]
Pursuant to the understanding
that “high crimes” includes betrayal of public trust, “Judge George W. English was
charged with favoritism and breach of public trust and confidence” in 1926. [7] The charges stemmed from an investigation
which found that Judge English manipulated bankruptcy funds (held in trust),
and usurped powers over state officers. [8]
The four articles of impeachment
presented against Richard M. Nixon, all employed the phrase “Richard M. Nixon
has acted in a manner contrary to his trust as President and
subversive of constitutional government.” [9]
Clearly, all the articles alleged that Nixon betrayed the trust reposed in him
as a President.
Again, by that term “trust”, is meant
fiduciary obligation, not candor. In legal parlance, the term trust always is
employed to mean fiduciary obligation, not candor. When one creates a (private)
trust, for instance, one appoints an agent, called a trustee, who is given
property to be held in trust, and managed for a beneficiary.
At the common law, one encounters
the doctrine of “public trust”. “The origins of the public trust doctrine are
traceable to Roman law concepts of common property. Under Roman law, the air,
the rivers, the sea and the seashore were incapable of private ownership; they
were dedicated to the use of the public. This concept that tide and submerged
lands are unique and that the state holds them in trust for the people has
endured throughout the ages..” [10]
The State as trustee, is
entrusted with common property; concomitant to its control of the common
property, is the fiduciary duty to maintain the property for the public good.
Similarly, when it is stated that
public office is a public trust, that signifies that something is given to the
public official, which he holds, or uses in trust, for the common good. That
something is a portion of sovereign power; the executive power, in the case of
the President, and the power to decide cases, in the case of the judiciary.
Said sovereign power is to be wielded for the common good, not for personal
gain. So when the sovereign power is exercised for personal gain, as when
bribes are received for a favorable judgment, it is at such a time that there
is a betrayal of public trust – a derogation of the fiduciary obligation to
exercise the power for the benefit of the public.
So only when the exercise of
judicial power is tainted with the motive of personal gain, would there be a
betrayal of public trust by a judicial officer.
A similar intention is manifested in the deliberations of the Constitutional Commission, quoted in the concurring opinion of Justice Carpio in the case of Merceditas Gutierrez v House of Representatives G.R. 193459:
A similar intention is manifested in the deliberations of the Constitutional Commission, quoted in the concurring opinion of Justice Carpio in the case of Merceditas Gutierrez v House of Representatives G.R. 193459:
MR. REGALADO. XXX XXXXJust for the record, what would the Committee envision as a betrayal of public trust which is not otherwise covered by by other terms antecedent thereto?
MR. ROMULO. I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed the trust.MR. REGALADO. Thank you.
MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.THE PRESIDENT. Commissioner de los Reyes is recognized.MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President.(Emphasis in the concurring opinion).
Viewed
in its proper context, then, betrayal of public trust cannot be the basis for
removal of the respondent, on the allegation that he lied when he filled up his
SALN. The accomplishment of the SALN, and its submission, is not an exercise of
judicial power, the abuse or misuse of which is a breach of the judge’s
fiduciary obligation. Submission of the SALN is a burden on all public officials
that has no relation at all to the powers conferred on the officials.
Commentators
favoring the prosecution seek to persuade by alluding to the case of Federal
District Judge Harry Claiborne, who was removed for tax evasion and
falsification of tax returns. Commentators claim that the falsification of tax
returns by Harry Claiborne is akin to the alleged falsification by the
respondent of his SALN. The Philippine Senate should, therefore, convict as the US Senate did.
What
commentators fail to disclose is that Harry Claiborne had been convicted of tax
evasion by a jury, prior to impeachment. The convicted and imprisoned Judge
Claiborne refused to resign and continued to collect his full salary, while in
prison. It is for that reason that impeachment as a sword, was once again
unsheathed by the legislature after a fifty-year hiatus. [11]
The
foregoing discussion shows that the facts proven, clearly do not allege a
Constitutional violation. A dismissal of Article 2, therefore, is in order.
[1] Antonio Villareal et al v. People of the Philippines (the Lenny
Villa case penned by Sereno).
[2] Judge Jesus P. Morfe worked
with the luminaries of old:
1.
He
first appeared before the Supreme Court in
August 1935, with Claro M. Recto, in case of Matias Sales v. Director of Lands (G.R. No. L-41901).
2.
He
next appeared in the case of Sebastiana Rodriguez v. Irinea Caoibes (G.R. No.
34147),
along with Claro M Recto, and the Sumulong, Lavides and Sumulong law firm; they
faced Ramon Diokno (later appointed Supreme Court justice).
3.
In
December 1949, Morfe appeared with Claro M. Recto (justice), Manuel C. Briones
(justice), Jesus P. Barrera (justice) , and Antonio Araneta, in the case of
Nacionalista Party v. Comelec (G.R. No. L-3521)
[4] The Law of Presidential Impeachment (Edwin Brown Firmage) page 3,
3rd paragraph, quoting Raoul Berger (Utah
Law Review Volume 1973 (Winter) No. 4, 681-704.)
[5] Firmage, supra, page 3, second to last paragraph.
[8] http://news.google.com/newspapers?nid=1787&dat=19260310&id=Dt8cAAAAIBAJ&sjid=GmQEAAAAIBAJ&pg=5122,2805054
[10] The Public Trust Doctrine – California State Lands Commission.
[11]
Warren S. Grimes, Preserving Impeachment As The Exclusive Removal Mechanism For
Federal Judges. UCLA Law Review June 1991, found at
http://members.tripod.com/the_solipsist/id50.htm
