Culpa, dolus? JPE gives hint of vote

by Ira Pedrasa,

Posted at May 28 2012 08:16 PM | Updated as of May 29 2012 03:08 PM

MANILA, Philippines - Senate President Juan Ponce Enrile may have shown a glimpse of his vote when he pressed lead defense counsel Serafin Cuevas for the meanings of the words, "culpa" and "dolus."

Before the close of the last impeachment hearing on Monday, Enrile asked Cuevas if there was a law that would impose a penalty on a government official if he or she opts to disclose his foreign-denominated assets in his or her Statement of Assets, Liabilities and Net worth (SALN).

Cuevas was not able to completely answer when Enrile interjected and said that the Foreign Currency Deposit Act (FCDA) only prohibits third parties, and not the depositor himself or herself, from revealing a depositor's foreign-denominated assets.

Enrile, whose vote and those of his allies are seen by some analysts to be the swing votes, then proceeded to quote a Constitutional provision that says “a public officer or employee shall, upon assumption of office, and as often thereafter as may be provided by law, submit a declaration under oath his assets, liabilities and net worth.”

He then asked Cuevas, “Do you consider this a command or something that can be disregarded?”

Cuevas said it is not something that should be disregarded, but “if there are rights that can arise from a different law, I don’t see a reason why it can’t be availed of.”

The defense has insisted that the FCDA provides absolute confidentiality of a person's dollar deposits.

Early in his extemporaneous speech, Cuevas said: “As of date, I am not aware of any law or any case that even merely challenges the constitutionality of RA [Repulic Act] 6426 [Foreign Currency Deposit Act]. What does that imply? It is certainly valid, effective and subsisting. Therefore, any and all repositories of foreign currency may avail thereof with no fear that they have lost the confidentiality enshrined in the said law.”

Culpa, dolus

Enrile then asked Cuevas whether disobeying the command to declare all assets constitutes “culpable” violation of the Constitution.

Cuevas said circumstances would be different for each case, adding it would thus be hard to give an answer.

Enrile then asked Cuevas for the meanings of the Latin terms “culpa” and “dolus”.

Cuevas, who wasn't sure about the answers, joked he could not recall what the terms mean, “maybe because I was absent when it was discussed.”

Enrile then said, “That’s your bad luck…It’s material in the consideration of the provision in the Constitution.”

Culpa, according to University of Sto. Tomas Civil Law Dean Nilo Divina, means “mere fault.” Dolus, on the other hand, means there is “intention.”

Asked what he thought of Enrile's queries, Divina told ANC the presiding judge's line of questioning is not good for Corona's case.

“I’m afraid for CJ, the presiding judge basically wants the defense to say that failure to disclose dollar assets need not be intentional,” Divina said.

The Constitution provides that a person can be removed from office if there is “culpable” violation or "mere fault" of its [constitution] provisions.

Cuevas’ extemporaneous speech

Cuevas, in his closing speech, said the FCDA has never been interpreted as violative of the Constitution.

“I do not know of any case whatsoever nor any proceedings before the Supreme Court questioning the legality and the constitutionality of that law and simply because a senator or a justice says that the law is unconstitutional is no dictum to the effect that it is really unconstitutional unless there is a pronouncement on the unconstitutionality of the law, it remains valid, it is effective and it is enforceable against everybody within the Philippines,” he said.

Defense lawyer Dennis Manalo also said the Senate would contradict itself if it says that the secrecy provision in the FCDA is unconstitutional since it was the the legislative department which approved it.

Hiding loot via dollar deposits?

Addressing the argument that absolute confidentiality would prompt corrupt officials to hide their loot via dollar deposits, Cuevas said: “That may be true although I do not subscribe entirely to the correctness of such a view.”

He said the remedy to such a problem is not judicial, but legislative. “Let us amend the law, let us remove all these exceptions.”

In the meantime, the law exists, he said.

He reminded the senators: “The legislature or Congress never envisioned a situation where, in the process of allowing foreign currency deposits and its depositors to claim confidentiality, it would result in violation of the law, for instance, smuggling, kidnapping with ransom and so on down the line.”

Questionable verified complaint

Cuevas also took a jab at the “blitzkrieg” fashion congressmen took in approving the impeachment complaint against Corona last December.

“My point is this: the number of the complainants, whether they may be more than 200 congressmen affixing their signatures, assuming their signatures were voluntary and personal, that does not nullify the provision on due process because it is a time-honored principle of our Constitution that no person shall be deprived of life, liberty or property without due process of law,” he said.

Cuevas earlier said Corona can run to the Supreme Court if there is grave abuse on the part of the Senate.

Cuevas commends Corona

He commended Corona for facing the Senate last week, even if there was no need for him to do so.

“I would like to commend CJ Corona because notwithstanding the several advices during the conferences that we had, that it is his right not to testify because he cannot be compelled to testify in this proceedings being akin to a criminal case.”

He ended his arguments with a plea for senator-judges's enlightenment and a just decision.

“Hinihiling po namin na kung maaari ay tanglawan po ninyo ang pag-iisip, ang puso at damdamin ng mga senador na huwes na hahatol sa kasong ito,” he prayed.

“Sana po umiral ang buong katarungan sa ikaliligaya hindi lamang ng impeachment court, hindi lamang ng nasasakdal, kundi ng buong republika ng Pilipinas at sana po ito'y maging mitsa na para magkasundo-sundo ang buong nagkakaalit at lumigaya na ang buong Pilipinas.”