Joaquin G. Bernas, S.J.
During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the validity of the how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice. Specifically, Santiago focused on how the AMLC obtained the evidence for the Ombudsman.
This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.” The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.” Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution. Was it legal or was it not?
To answer this question the Senate will have to consider mainly three questions. (1) Who may investigate the Chief Justice? (2) What investigation power does the Ombudsman have? (3) What is the extent of the power of the AMLC to look into bank accounts?
The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts. Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”
However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process. Jurisdiction over such investigation lies elsewhere.
Who then can investigate the Chief Justice in matters involving money and bank deposits? This brings us to the question of the scope of the powers of investigation of the Ombudsman.
The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” By Section 13(5), the Ombudsman may request any government agency for assistance. These are reproduced in Section 15 of the Ombudsman Act of 1989.
Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).
The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”
The later Foreign Currency Law, however, is more strict. It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.” Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.”
Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted.
But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it?
For its part, the Anti Money Laundering Council is empowered to enquire into bank deposits. Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”
Note that it creates an exception to secrecy of foreign deposits found in earlier laws. But it is not an outright grant of authority. The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.” Thus, there must be an order of a court and demonstrated probable cause of money laundering.
To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA. Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?
21 May 2012