Wednesday, May 23, 2012

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)

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