The (non)necessity of executing a waiver to disclose bank deposits by public officers and employees

All these hoopla and hullabaloo about the issue of requiring all government employees and officials, especially the cabinet secretaries, members of Congress and the judiciary, to execute a waiver allowing the opening up and/or disclosure of their bank accounts, must be viewed with a discerning and critical eye. Is such waiver really necessary?

Under the old or pre-2011 sworn statement of assets, liabilities and net worth (SALN) form, it was provided, that:

“I hereby authorized the Ombudsman or his duly authorized representative to obtain and secure from all appropriate government agencies, including the Bureau of Internal Revenue, such documents that may show my assets, liabilities, net worth, business interests and financial connections, to include those of my spouse and unmarried children below 18 years of age living with me in my household covering past years to include the year I first assumed office in government.”

In the revised or present SALN form, it is also stated, that:

“I/We hereby authorize the Ombudsman or his duly authorized representative to obtain and secure from all appropriate agencies, including the Bureau of Internal Revenue, such documents that may show such assets, liabilities, net worth, business interests, and financial connections, including those of my spouse and my/our children below 18 years of age living in my household, covering previous years, and if possible, including the year I/we first assumed office in Government.”

Some personages argue that such authorization does not include foreign currency deposit accounts. A high-profile and more prominent public official even went on to declare that their non-disclosure is absolute.

Just for context, both legal and factual, the Bank Secrecy Law (Republic Act No. 1405) was enacted on Sept. 9, 1955, while the Foreign Currency Deposit Act (Republic Act No. 6426) was approved on April 4, 1974.

Meanwhile, the 1987 Constitution expressly and emphatically states: “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. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. (Section 17, Article XI)

A few rules on statutory construction therefore come to mind. Firstly, that the Constitution prevails over any and all laws. Secondly, where the language of the law is clear and unequivocal, it must be given its literal application and applied without interpretation. And thirdly, where the law makes no distinctions, one does not distinguish. Where the law does not distinguish, courts should not distinguish.

Considering that RA 1405 and RA 6426 are mere statutes and were enacted prior to the passage and ratification of the 1987 Constitution, it is obvious that the latter shall prevail. In fact, the 1987 Constitution provides in its transitory provisions that, “All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.” (Section 3, Article XVIII)

The Constitution requires that a public officer or employee must declare his assets, liabilities, and net worth. There is no exception, condition, restriction, limitation, or qualification. The language is clear and unequivocal. Thus, it must be taken literally without need of further interpretation.

In a related manner, since the Constitution does not distinguish between foreign currency deposits and peso deposits, or any assets for that matter, no distinction can be made.

Finally, the implementing law for the SALN - the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713), which was enacted on February 20, 1989, cannot be bent or distorted. Consistent with the Constitution, it mentions "assets such as investments, cash on hand or in banks, stocks, bonds, and the like." (Section 8, par. A, subpar. c) It also carries a repealing clause: "All laws, decrees and orders or parts thereof inconsistent herewith, are deemed repealed or modified accordingly, unless the same provide for a heavier penalty." (Section 16)


This law is anchored on a sacred provision of the Constitution, to wit:

“Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.” (Section 1, Article XI)

China’s claims over Spratly Islands and Scarborough Shoal and its inconsistent precedents and different standards on territorial negotiations

China adopts different standards throughout territorial negotiations with its neighbours. As a result, it does not have a consistent set of policies to decide how to settle these disagreements with its neighbours, particularly when it comes to maritime disputes.

When Japan proposed a 50-50 delimitation in the 1970s to resolve the Sino-Japan disputes over the East China Sea continental shelf, China firmly rejected it. Instead, it adopted the position that the dispute should be settled on the basis of the “natural extension of the continental shelf”, meaning that all of the East China Sea continental shelf extending eastwards from its coastal lines should be Chinese. This formula, when compared with the “50-50” formula proposed by Tokyo, allows Beijing to increase the size of its claimed continental shelf by 30,000 sq km.

However, when China negotiated its territorial disputes over the Heixiazi Island with Russia in the 1990s (over which they fought a battle in 1969), it compromised on its claim over the whole island and accepted a “50-50” formula.

In the Gulf of Tonkin, China accepted the “50-50” formula again, with further compromises over the Vietnam-occupied islands in the Gulf. The eventual result of the boundary demarcation was “53-47”, with Vietnam taking a larger share of the maritime area. People later attributed this willingness to compromise with Russia and Vietnam to then-President Jiang Zemin’s eagerness to settle border disputes.

The maritime settlements with Vietnam also set an inconsistent precedent for China’s historical claims to territory in the South China Sea. Beijing asserts that South East Asian countries should accept its sovereignty over the geographic features within the nine-dashed line because historically they have been Chinese. However, China transferred control of White Dragon Tail Island 70 nm off the coast of Hainan to Vietnam in 1957, despite the fact that a Chinese fishing village had been on the island for almost 100 years. If this island, so close to the Chinese coastline and with historical evidence of Chinese occupation and administration, was not considered to be China’s “historical territory”, questions can be raised about how the numerous South China Sea islands, farther away from the mainland and with less historical evidence, can be considered as such. The other claimants are pointing to the territorial settlements with Vietnam as an “example of Chinese double standards”.

China has also set inconsistent legal precedents for its claim that the Nansha (Spratly) Islands – almost all of which are small islands, rocks, low tide elevations or underwater reefs largely incapable of sustaining long-term habitation – are entitled to an EEZ. In the case of the Japanese island of Okinitorishima, China maintained that small uninhabited islands should not be given a continental shelf or EEZ of their own, and added that similar practice should be followed in the South China Sea. If Beijing holds to this principle, it will be unable to justify its claim over a large part of the waters around the Spratly Islands and within the nine-dashed line. (Taken from http://www.crisisgroup.org/~/media/Files/asia/north-east-asia/223-stirring-up-the-south-china-sea-i.pdf)