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Tuesday, May 29, 2012

Culpa and Dolus. Foretelling Queries from the Presiding Officer of the Impeachment Court

Foretelling queries?

After a grueling 43 hearings stretched over a period of 5 months, the Impeachment Trial of Philippine Supreme Court Chief Justice Renato Corona is now at its end.  On 29 May 2012, Tuesday, the Senate of the Philippines sitting as the Impeachment Court will render its landmark decision on the case.
The presiding officer of the Impeachment Court, Senate President Juan Ponce Enrile asked the only questions after the defense and prosecution panels made their closing arguments.
I personally recorded with my cellular phone these questions of the presiding officer and the answers of the defense lead counsel former Associate Justice Serafin Cuevas from a TV broadcast.  I embedded the recoding in this blog post so that those who have missed it can listen to it.  I find it intriguing and a bit informative.

I transcribed the recording for a better understanding of what has been discussed. The transcript can be found below the embedded record player gadget.
After hearing some Roman Law terminologies asked by the presiding officer, I immediately googled them, and found the following definitions:
  • culpa lata - intentional wrong, gross negligence
  • culpa levis - slight negligence
  • culpa levissimo - negligence arising from the slightest fault; slightest negligence
  • culpa aquiliana - negligence must be proved by the injured party
  • dolus - evil intent embracing both malice and fraud
The salient points asked by the presiding officer is connected to the disclosure of assets in relation to the Foreign Currency Deposits Acts (FCDA), and the probable culpable violation of the Constitution if the first sentence of Section 7 of Article11 of the Philippine Constitution is disobeyed.  It’s better to hear the recording.
The presiding officer said that he asked those questions to guide them in their decision.  Is this foretelling of Senate President Enrile's verdict?  We shall soon see.  Let me know what you  think.
The recording.
The transcript.
NoteSPJPE stands for Senate President Juan Ponce Enrile,  DLCSC stands for Defense Lead Counsel Serafin Cuevas, and PHRRF stands for Prosecution’s House Representative Rodolfo Farinas.
SPJPE:     What injury or prejudice may arise if the depositor who is a public officer or employee own a foreign currency deposit would include that deposit or the amount represented by that deposit in his statement of assets, liabilities and net worth?
DLCSC:     Well, I am not very sure your honor as to what the extent thereof in so far as damages is concerned.  But that is personal to the...
SPJPE:     No, but the question is what in your opinion would the injury to be prevented or prejudice to be avoided warrantying the depositor of a foreign currency deposit to be permitted not to include his foreign currency deposit in his statement of assets, liabilities and net worth if he is a public officer or a public employee?…
DLCSC:     Well, the proba… may I answer now, your honor?
SPJPE:     Yes.
DLCSC:     The probability  of kidnapping, extortion, and so on, may come into the picture your honor, because especially with the present trend of criminality in the country today there is no assurance that one is imbued from any of these offenses, your honor.  That may be one…
SPJPE:     Was that contemplated in your opinion by the framers of Republic Act 6426 as well as its predecessor presidential decrees?
DLCSC:     If we go into the declaration of policy, your honor, declaration of policy is entirely different from the disastrous consequences or unwarranted circumstances that may occur thereafter your honor, because the policy behind it is to encourage.
SPJPE:     Alright. Related to this first question of mine, I will ask you… will a public officer or a public employee who maintain a foreign currency deposit incur the punitive penalty of Republic Act 6426 if he would reflect that deposit in his statement of assets and liabilities?
DLCSC:     I do not see, your honor that probability, but it could amount to a negotiated consent your honor as contradistinguished from voluntary permission on the part of the depositor, your honor.
SPJPE:     You see I asked this question because we are forgetting that the law allows the exposure of the foreign currency deposit by expressed provision of Republic Act 6426 if the depositor himself for do it.  There's no secrecy law in this country, monetary secrecy law that prohibits, or inhibits, or proscribes the depositor from revealing his own deposit.  What is prohibited is for third parties to reveal it. And that's why they're penalized.  But the depositor is not.
My next question is this.  The first sentence of Section 17 - Article 11 of the Constitution.  Do you consider that sentence as a mandatory  provision that requires to be obeyed by a public officer or public employee of the Republic of the Philippines?
DLCSC:     The way I recall, your honor, the provision… it is a general, a general statement…
SPJPE:     I will.. I will… I will… I will state it to you.  "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 of his assets, liabilities, and net worth."  Do you consider that a command of the people or was it something that can be disregarded?
DLCSC:     I do not think it is  something that can be disregarded your honor.
SPJPE:     It must be obeyed.
DLCSC:     Correct your honor.  But when there are… when there are rights that arises from a different law your honor, I do not see any reason as to why it cannot be availed of by the… by in this particular instance the depositor your honor.  Why the law has granted that is beyond my comprehension your honor.  That is a legislative function.  The policy behind it may only be known to the legislators themselves.  I am not privileged neither can I divine or fathom the reason behind it, your honor. All I know…
SPJPE:     Alright.  That would be our function.  We are just asking if you have any notion about it.  
DLCSC:     Thank you, your honor.
SPJPE:     Alright.  Now, that my next question is… If you teach a command, a sovereign command…  [Austinian] concept of command, if it is a sovereign command, will disobedience of that command constitute a culpable violation of the Constitution?
DLCSC:     Well, I would not… I would not be in a position to do so, your honor, or to make a statement to that unless the actual true facts surrounding the circumstances are known to me.  Because that would be a matter of conjecture or a surmise on the part of my part.
SPJPE:     The Constitution speaks of culpable... culpable violation.  Now, I am sure all of us graduates of U.P. went through a study of Roman Law.
DLCSC:     Yes, your honor.
SPJPE:     Alright, what is "culpa" from where culpable was derived? 
DLCSC:     Meaning intentional, your honor.
SPJPE:     Huh?
DLCSC:     Intentional, your honor?
SPJPE:     No.
DLCSC:     No intent, your honor.
SPJPE:     Culpa.  What is culpa?  There are four types of culpa.  Culpa lata or magna, culpa levis, culpa levissima, culpa aquiliana.  Now, we go to elementary school book in Roman Law.  What is culpa?
DLCSC:     Well, I am not as of this moment, your honor I am not... I am not very well in a position to recall.  Maybe I was absent when it was discussed by my professor, your honor.
SPJPE:     Well, that's your bad luck.  And I think that this is material in the consideration of this provision of the Constitution.  What is the difference between culpa and dolus?
DLCSC:     Culpa if I recall…ah.. Dolus is intentional, [di ba?].  Dolus is intentional, your honor, if I recall correctly,   Culpa is negligence, something like that.  I am not very sure…
SPJPE:     Fault.  Reserving of fault. Reserving of blame.
DLCSC:     Yes, your honor.
SPJPE:     Now, disobedience to the provision of Section 17, first sentence, do you consider that as reserving of blame?
DLCSC:     If it is intentional, your honor, then definitely…
SPJPE:     No.  It does not call for any intent.  Where in that provision will you find intent?
DLCSC:     Well, I think this is the provision where a statement as may be required by law, your honor.
SPJPE:     Anyway, I'm asking this question for our guidance.. for our guidance as based on your opinion.  Both sides.  I would like to hear both sides about it.  What is the position of the prosecution?  Can you help us in defining what is culpa?
PHRRF:     Well, when it comes to the culpable violation of the Constitution, Mr. President, according to the records of the Constitutional Commission, "culpable violation of the Constitution is understood to mean willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or through an honest mistake of judgment and it implies deliberate intent, perhaps even a degree of perversity for it is not easy to imagine individuals in the category of these officials would go so far as  to defy knowingly what the constitution commands".  That is what the records of the Constitutional Commission defines or show what culpable violation is, Mr. President.
SPJPE:     Alright.  Thank you very much.  I have no more question.  I do not know about the other members of the court if they have other questions.

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