Austinian command theory

“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.