Ateneo Law School

“In the manner provided by law”

After closing arguments, the fate of Chief Justice Renato C. Corona seems to hang on the meaning of this phrase and on one strategically placed piece of punctuation.

The case can be summed up in one question: did the chief justice obey the constitutional provision which commands that ” 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”?

The defence claims he did, despite omitting some millions of dollars’ worth of holdings in foreign deposits. They hold that this is consistent with the same constitutional provision which states that “In the case of…the Supreme Court … the declaration shall be disclosed to the public in the manner provided by law”.

So does the phrase “as required by law” or “in the manner provided by law” exempt dollar holdings from being declared?

Two schools of thought seem to emerge. On the one hand, Fr. Joaquin Bernas, Ateneo Law School Dean Emeritus, hints that it does. In an article entitled “The Moment of Truth“, Fr Bernas states

How do I read the limitation that the declaration shall be made “in the manner provided by law”? I take this to mean in the manner provided by law either already existing in 1987 when the Constitution was adopted, or promulgated after 1987.

He goes on to tackle the relevant laws covering the sworn statements of assets, liabilities and net worth both before and after the 1987 Constitution and The Foreign Currency Law which provides for absolute confidentiality to dollar accounts. Based on this thinking, there certainly were legal grounds for the chief justice to leave out his dollar accounts. It may violate some people’s sense of morality regarding public accountability, but that is what the law provides.

On the other hand, there is the view that the presiding officer of the Senate Impeachment Court seemed to hold. A strategically placed comma seems to be all that separate the Chief Justice from an acquittal. When Senate President Enrile read the provision out loud to defence lead counsel Serafin Cuevas, he placed an emphasis on the punctuation. The limiting phrase, “upon assumption of office and as often thereafter as may be required by law” is separated by two commas before and after it.

Had the second comma come before the phrase “as may be required by law” then the corresponding laws that Fr Bernas covered would be pertinent. However, the second comma came after it, which would mean that the fragment “as may be required by law” refers to the frequency of the filing, not the content of the SALN. The latter part of the constitutional provision that states “the declaration shall be disclosed to the public in the manner provided by law” on the other hand refers to the procedure in making the information available for public consumption, not the manner by which the declaration is made.

Can the Chief Justice claim innocence because he filed his statement of assets, liabilities and net worth “in good faith” and “without malice” or that it was not his intent to disobey the constitutional provision since it was based on his personal reading of it? In other words, can he be let off on grounds that the offence he committed did not rise to the level of an impeachable one? Again there seem to be two schools of thought.

Fr Bernas on the one hand maintains that the charge of “high crimes” already covers “culpable violation of the constitution and betrayal of public trust”. Based on the principle of eiusdem generis, a high crime must be “of the same kind” as treason and bribery, “paradigmatic impeachable offenses”. Based on the lighter penalties prescribed for violating the SALN law, the failure of the Chief Justice to file an “accurate and truthful” account of his wealth does not make him guilty of committing a high crime.

On top of that, Fr Bernas subscribes to the notion that a high crime must be “obviously wrong” citing an American constitutional law professor, Charles Lud Black, Jr. whose views on impeachment were influential during the Watergate scandal. Given uncertainty over the meaning of the phrase “in the manner provided by law”, Fr Bernas seems to think that what the Chief Justice did cannot be classed as a high crime.

Senate President Enrile on the other hand seemed to hold an opposing view. Zeroing in on the meaning of “culpable violation”, he drew upon his training in the UP College of Law which told him that for someone to be culpable or guilty of an offense, whether by commission or omission, that person’s intentions are irrelevant.

In civil cases where damages are claimed, a person entrusted with the property of someone else will be liable to provide compensation regardless of his or her motives. The standard applied to determine whether someone is culpable or not, and the extent of the liability depends on the level of care expected of that person. In this particular case, a public official was entrusted by the people with public office. Did that person exercise enough care in executing his duties under the law? That seems to be the burning question in Enrile’s mind.

On top of that Enrile appealed to John Austin’s command theory of law from the 19th century when the transition from natural or divine law based on moral views to constitutional law based on the sovereign people occurred. According to this concept, a rule is legally valid if and only if it is commanded by the sovereign and backed up by threat of sanction.

So, according to the logic of this theory, by including foreign dollars in his sworn SALN, the Chief Justice would not be violating any laws (disobeying the command of the people). The laws on foreign currency deposits do not sanction depositors from declaring their holdings, only banks. On the other hand, failure to render a “truthful and accurate” SALN does come with a penalty for public officials. Would a more judicious and careful public servant therefore err on the side of caution? Would he be negligent in not doing so?

The answer in my view seems quite obvious.

A Quarter of the Way

image courtesy of 123rf.com

That is how much of P-Noy’s term of office would have expired by the end of next month. It usually marks the end of the window of opportunity for introducing major reforms. In the case of the US presidency, the current occupant of the White House President Obama was able to introduce his stimulus program, banking reform and of course, the once in a lifetime reform of the healthcare system within his first eighteen months in office.

At the end of that period, the tea party movement rebelled against the direction he was taking the nation and voted the Democrats out of their majority in the lower house of congress. The new Republican-led house’s intransigence over the deficit has blocked any further reforms (witness the failure of the super committee over the weekend), and it will probably take another election to allow the grid-lock to be broken.

As we approach the quarter mark of P-Noy’s presidency, it is worth reflecting on his accomplishments or lack thereof and the conditions under which he has had to govern that may or may not have enabled him to achieve what he promised during his campaign. More than anything, I believe that these first eighteen months have highlighted the inconsistencies in his promises and the inevitable tensions that come about from pursuing them.

Firstly, let me tackle his social contract and the plugging of the fiscal deficit. Due to his pledge of no new taxes, the finance and budget departments have had to rely on better tax compliance and program savings in order to bridge the government’s fiscal gap while attending to social and economic infrastructure programs. This is in a country of very wealthy elites who are averse to paying their fair share of taxes.

Despite my distaste for the government’s attempts at “fiscal consolidation” a euphemism for austerity measures I dubbed the “surplus fetish”, one benefit that I now see with the way in which they have gone about things is that it has exposed the inability of tax agencies even under the best efforts of honest officials to raise enough revenue to meet the government’s social compact obligations.

This is why Secretary Purisima, in a bid to shore up enough revenues down the track has flagged a few revenue measures to congress including the rationalization of fiscal incentives, the indexation of sin taxes, and as recently as this week the raising of a minerals tax similar in vein to the Australian resource rent scheme. These three taken alongside the stricter enforcement of the tax code on self-employed entrepreneurs and professionals could yield an estimated four hundred billion pesos, enough to close the fiscal gap and then some.

Enacting these revenue measures would lift the tax collection effort to a more sustainable nineteen percent of GDP, a position last held in the late-90s when the country eked out a surplus. The reform of the tax and incentives system would allow a more progressive and equitable fiscal expenditure program. One reason why the growth of the last decade was not felt by the broad masses of people was that the growth went largely to big business in the form of profits. Benefits through the tax system could not be shared with the less fortunate as the tax collection rate continued to decline despite the growth.

The absence of a successful asset reform program to tackle landlessness in the rural sector led to continued urban migration and growth of informal labor markets. This normally would lead to greater social insurance spending by the state, but this has only been recently addressed with the conditional cash trasnfers program. By next year, the government believes it will cover two of the four million poorest households. The funding comes from the scaling down of the grains importation program, a low lying fruit. To cover the remainder would require doubling the current thirty billion pesos spent on the program. This can only be accomodated through new taxes.

Secondly, given the new-found consensus around new revenue measures, getting them adopted will entail the exertion of executive will and the full cooperation from the congressional leadership. The legislative record of the government has been rather dismal with only 3.25 of its thirty three priority measures passed this year.

These include the reform of government-owned and controlled corporations, changes to labor regulations covering night shifts for women and the synchronization of the elections in the autonomous region of Muslim Mindanao with the rest of the country. The passage of an ammendment to the Electric Power Industry Reform Act that contained one fourth of the recommended changes of the administration accounts for a quarter-measure (hence 3.25 out of 33 measures).

At this rate, it will take a little over ten years to get all of the priority bills passed, including the reproductive health bill which has been seized on by the local Occupy movement. The actual tally of bills passed was seven, three of them not flagged as urgent including one that granted Philippine citizenship to a certain Marcus Eugene Douthit. The country spends about a hundred and ten billion pesos a year for both houses of congress. This is about sixteen billion pesos per measure, which represents very low value for money.

Contrast that with the performance of the Gillard government in Australia which passed two hundred and fifty measures this year including a highly contentious carbon tax and emissions trading scheme. This is quite impressive considering that it has had to seek an alliance with the Greens and a few independents to see these bills through both the lower and upper house.

In the Philippines, the majority in the lower chamber is always loyal to the president, which makes the Senate the only real check on executive power. But the senators unlike in the past are not particularly hostile to P-Noy, which represents a window of opportunity. Unfortunately, much of the upper chamber’s attention has been devoted to controversies involving the former regime which is perhaps why it has had little time to devote to other matters.

Thirdly, the pursuit of the rule of law and anti-corruption under the rubric of Daang Matuwid (Righteous Path) and the prosecution of the former president have come into conflict with each other. It is clear that P-Noy does not want a repeat of the ongoing saga with the Marcoses. This is perhaps the reason why he sought to bring Mrs Arroyo to justice by sending her to jail before Christmas this year.

The lady he has put to the task, his justice secretary, might have skirted a few legal formalities in order to make that happen. This is the conclusion arrived at by a few dispassionate observers including legal luminary Fr Joaquin Bernas, SJ, dean emeritus of the Ateneo Law School from where a number of the president’s men have been trained.

During the campaign, it seemed that the rule of law was intertwined with bringing Mrs Arroyo to justice for misdeeds done while in office. Now, given the situation where the high court is stacked with her appointees, certain exigencies have to be dispensed with in going after her. Indeed it would be preferable from Mrs Arroyo’s point of view for these cases to be tried immediately while she still enjoys some legal cache with those on the Corona bench.

In pursuing the case against her, P-Noy runs the risk of succumbing to the “dark side” by employing extra-legal or extra-constitutional tactics as she did during her presidency. Rather than lifting the country out of the mud, what could happen is that his presidency could get dragged through it with her. The impending release of the Supreme Court’s order to distribute his family’s hacienda to its poor tenants can be seen as a form of retribution. It distorts the narrative of “light vs darkness” by laying the blame for social inequity and injustice squarely on the president.

At any rate, what economists and foreign investors mean when they refer to the rule of law has nothing to do with prosecuting former incumbents but with the securing of ownership and property rights and the efficient enforcement of contracts. And here once again, the pursuit of daang matuwid has led to the scrapping of a few contracts involving foreign donors and their suppliers for the simple reason that they were signed by the former president. This has if anything maintained the image of the Philippines as a country with a high sovereign risk attached to it.

In conclusion, it is worth reflecting on how the shadow and specter of Mrs Arroyo’s administration has haunted her successor. In the first instance, an absence of public trust in government has cemented the idea in P-Noy’s head that he could only fund his social contract by improving tax collection rather than new taxes. This has been shown to be a false economy of sorts. Secondly, investigations into anomalies committed by her have distracted congress from pursuing his legislative agenda. Thirdly, prosecuting her at all costs has compromised his pursuit of the rule of law, property rights and good governance.

At some point, P-Noy will have to pivot from correcting the errors of the past to ensuring a brighter future for all. To do that, he will have to wrestle with the internal inconsistencies of his reform agenda and exert executive will to get his measures passed as well as restraint when required to show an even hand in prosecuting Mrs Arroyo.

In the end, he would want to avoid a problem known to economists as the winner’s curse. This situation could arise if he becomes overly-invested in the hunt for personal vindication against Mrs Arroyo and her minions. In seeking to settle a few scores with her, he might eventually get side-tracked into a very personal and passionate fight. This could detract him from pursuing a much broader reform agenda for the country. In this manner, he could easily squander the remaining time he has in office and wind up with very little to show for it.

Famed writer Yuson dropped from GMA News Online

Following a thorough investigation by an ethics committee into charges of plagiarism against famed writer Alfred “Krip” Yuson, his contract as editor at large for GMA News Online, which reportedly expired mid-April, has not been renewed. In a statement, GMA Network management explained that, “The decision not to renew the services of Mr. Yuson is consistent with the policy of GMA that personnel do not plagiarize or copy other people’s work.”

The issue of plagiarism was first raised by blogger Jaemark Tordecilla of Fire Quinito, who noted strong similarities between an article by Yuson published in Rogue magazine, and an earlier piece written by GMA News Online sportswriter Rey Joble. Yuson, in a response to Tordecilla, admitted that he had lifted portions from Joble’s article, but said that he had been under deadline pressure. He also said that he thought he had co-authorial rights, given that he had edited Joble’s work before it was published by GMA News.

The controversy drew a flurry of outraged reactions from the blogosphere, including Ina Stuart Santiago, James Cordova of Asian Correspondent, and Interlineal, a content partner of ProPinoy.net. After Yuson, in his weekly column for The Philippine Star, said that “it is hardly of any consequence that the usual lynch mob that marauds through social media is having such a fun time indulging in vituperation”, Tordecilla had strong words for the multi-awarded wordsmith. The Center for Media Freedom and Responsibility (CMFR) slammed Yuson as well, saying, “An apology would have sufficed; making excuses is just too much.”

Yuson is a significant figure in Philippine letters. The author or editor of several books, he is a member of the Carlos Palanca Memorial Awards for Literature Hall of Fame, probably the most prestigious literary distinction in the country. He has also won many other prizes locally and internationally.

As of this writing, Rogue has yet to issue a statement on the matter. Ateneo de Manila University, where Yuson is listed as a member of the Department of English, has similarly made no comment.

The university has been involved in previous plagiarism disputes that erupted around business tycoon Manuel “Manny” V. Pangilinan, a former member of the Ateneo board of trustees, and Supreme Court Associate Justice Mariano del Castillo, a graduate of Ateneo Law School.

Editor’s note (May 2, 2011; 7:45 PM): This article was first published in slightly different form. It has since been revised to better comply with the editorial standards of The Pro Pinoy Project. Our apologies.

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