The law firm of Dimatulac and Calaboso asked an ‘of counsel’ partner to think about the impeachment proceedings. The partner, disinclined from absenting himself from his usual golf course circuit, assigned a junior partner to do the legal legwork.
The junior partner submitted a memorandum that never saw light of day in the law firm. However, a janitor named Juanito Umbanal discovered a USB drive which contained said memorandum. Juanito gave it to a journalist, who, using the usual shield law, agreed not to identify the source of the piece.
The memorandum read as follows.
To: [X]
From: [Y]
Re: Your queries on the issue of SALNs as matters in impeachment proceedings
Under the firm’s ‘deniability’ guidelines, hereunder is my analysis of the situation. As I’m not privy as to who the law firm’s client(s) is (are), I simply present the applicable law based on the factual assumptions you gave. A change in the underlying factual background may alter our conclusions on questions of law. [PS: Congratulations on your recent hole-in-one!]
The basics
Violation of SALN rules carries a penalty of up to removal from office, ‘depending on the gravity’ of the offense. Normally, the removal is through a ‘proper administrative proceeding’ with due notice and hearing (RA 6713, Sec. 11; enacted in 1989). The leading and controlling case appears to be Rabe v. Flores, 1997.
Good faith as a defense
The respondent in an administrative proceeding is allowed a good-faith defense. Heads of offices are tasked with ensuring compliance. One of the provisions is that an official with an incomplete or improper SALN may be given an opportunity to correct his SALN. Sec. 10 of RA 6713 states:
SECTION 10. Review and Compliance Procedure. — (a) The designated Committees of both Houses of the Congress shall establish procedures for the review of statements to determine whether said statements which have been submitted on time, are complete, and are in proper form. In the event a determination is made that a statement is not so filed, the appropriate Committee shall so inform the reporting individual and direct him to take the necessary corrective action.
(b) In order to carry out their responsibilities under this Act, the designated Committees of both Houses of Congress shall have the power within their respective jurisdictions, to render any opinion interpreting this Act, in writing, to persons covered by this Act, subject in each instance to the approval by affirmative vote of the majority of the particular House concerned.
The individual to whom an opinion is rendered, and any other individual involved in a similar factual situation, and who, after issuance of the opinion acts in good faith in accordance with it shall not be subject to any sanction provided in this Act.
(c) The heads of other offices shall perform the duties stated in subsections (a) and (b) hereof insofar as their respective offices are concerned, subject to the approval of the Secretary of Justice, in the case of the Executive Department and the Chief Justice of the Supreme Court, in the case of the Judicial Department.
What happens when the official is the Chief Justice?
The question now arises. Who will ensure compliance when the Chief Justice himself appears not to be in compliance? The specific law (RA 6713) cannot be interpreted to mean that the Chief Justice can himself determine his own compliance, i.e., on his instructions to himself. That would be an absurdity. The compliance must therefore lie elsewhere, as, for example, through an impeachment process.
It is submitted that the impeachment court can opt to be lenient and decide to give the respondent an opportunity to correct his SALN. That seems to be in the spirit of RA 6713.
Alternatively, the impeachment court can hold that since the Chief Justice is himself tasked with ensuring compliance by officials in the judiciary, he cannot ask for leniency when “he ought to know better.” It is then arguable that violation of the SALN provisions, depending on ‘gravity,’ would merit the sanction of removal from office. The violation would be considered a betrayal of public trust, a ground for impeachment.
Other circumstances and notes on RA 6713
The reality is that the SALN provisions appear not to have been uniformly or properly enforced since the law was enacted in 1989. For example, said law recognizes the public’s “right to know,” (Sec. 8), and yet until today, according to news reports, it is not an easy undertaking for an ordinary citizen to obtain the SALN of a high public official.
Enforcement is supposed to be aided by a provision (also in Sec. 8) under which all public officials are obliged to authorize the Ombudsman to obtain the necessary information from government agencies in order to investigate discrepancies between SALNs and other information held by government, including those held by the Bureau of Internal Revenue.
Sec. 8 states, in part:
All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government.
To counter abuse with respect to information from the SALNs, there is a penalty under RA 6713, Secs. 8(d) and 11 (c), for abuse of disclosure of matters contained in the SALNs.
It is submitted that a public official who does not give the required authority to the Ombudsman violates RA 6713, and is subject to penalties given in Sec. 11. Acceptance and performance of public office is voluntary, and a person who does not wish to give the required authority to the Ombudsman is free to decline or resign from public office.
FOX SPORTS late-breaking news update:
When the legal memorandum was published in the rogue online paper, The Philippine Onion, reporters converged on the law firm’s offices. Atty. Dimatulac was apoplectic about the leak, demanding that the janitor be cited for contempt of law office. Atty. Calaboso kept talking about the ‘fruit of the poisonous tree,’ while eating a banana. Reporters including TV camera crews had a good laugh.
FOO Law and Economics 