February 16, 2012
SENATE MINORITY LEADER ALAN PETER S. CAYETANO (ASC)
SUMMARY OF MAIN POINTS:
ASC addressed the three parties (witness, Prosecution and Defense) in order to clarify and be able to distinguish between the requirement of the law and the actual circumstances involved in opening the bank accounts of the Chief Justice.
1. To the PS Bank President ASC expressed his sympathy and empathy for the Bank and its officials in the sense that they are being placed in a dilemma wherein following the law (opening of bank records by virtue of an impeachment case) might bring anxiety or fear to some depositors, but at the same time, not following the law might also result to liability.
On this note, he clarified that RA 1405 does not require an order of the Court in order for bank records to be disclosed. The law said that one of the exceptions is "in cases of impeachment." Since the law did not mention of a prior order from the Court, then it follows that it is not a "precondition/ pre requisite" to the opening of a bank account.
He cited the case of Clarissa Ocampo wherein she voluntarily appeared and testified in the impeachment case of Former Pres Estrada without a prior written order from the Court (subpoena) because the case involves an impeachment which allows the disclosure of bank records. He added that Clarissa Ocampo was not also charged of anything for disclosing the bank records.
To the Prosecution 2. He asked the Prosecution whether in their interpretation, there is a need to secure an order from the Impeachment Court before a bank record could be opened or disclosed by the Bank. The prosecutor responded by agreeing with ASC that there is no need to secure an order.
To the Defense 3. In the same vein, he also asked the Defense' interpretation of the law. And he stated that it would not really matter where and from whom the bank record came from as the law, and if we will use Clarissa Ocampo as a precedent, ALLOWS the disclosure of bank records in cases of impeachment.
Simply stated, there is a PERMISSIBLE DICLOSURE in cases of impeachment, hence the source of disclosure would be irrelevant and at the same no liability will attach to any bank official and to any person who will disclose.
ASC (addressing PSBank President):
We sympathize and emphatize with you and the banking industry which is (to some extent) in the center of the economy. Hindi naman kayo ang on trial dito kung hindi ang Chief Justice. Siguro naiintindihan niyo naman kung gaano kaimportante itong impormasyon na ito. We know there is conflict between theory and the law and reality.
Ibig sabihin po kahit required kayo by law na ibigay halimbawa yung peso accounts, you have to be very careful when it comes to the sensitivities of your depositors. We understand that. Pwede kaming magsalita ng magsalita but you know that better than us.
I'd just like to ask you, ano bang pagkakaintindi ninyo sa RA1405 o doon sa exception na kung impeachment court (ang gustong tumingin sa account)? In your belief or your opinion of the law, do you think kailangan niyo pa ng subpoena o ng court order bago kayo maglabas ng impormasyon tungkol sa peso accounts?
Garcia responds yes.
ASC: Okay. Because I'd like to bring to your attention this: in the journal of January 2, 2000 and December 22, 2000, Clarissa Ocampo came here to the Senate and gave her testimony and she did not have a subpoena. And when she was asked, she said she asked their external counsel who said na pwede dahil impeachment case kaya ibinigay nalang ito.
I'm saying that because this all started with the "little lady" and "the big congressman", Congressman Umali. Kasi kung pwede namang ibigay sa kanya dahil impeachment case naman ito at wala namang bawal eh di wala na dapat allegations of a fairytale o kung totoo ito o hindi.
Pero alam natin na kahit ganoon yung batas masama sa bangko yun. Because any bank alleged that they will freely give the information will result toreactions from depositors even if it is allowed by law. Tama ba?
Garcia responds yes.
ASC: You're in a position that you want to follow the law and you want to be very cooperative here but you also have to be very careful of the sensitivities of your depositors.
Garcia agrees but clarifies that he believes that the disclosure of the account information will lead them to violate the Bank Secrecy Law unless they are directed to do so by a subpoena or a court order.
ASC: I'm trying to help you explain to your depositors because your understanding of the law is an interpretation already. You said you need an order of the impeachment court. But that's not what the law says. The law says "except upon written permission of the depositor or in cases of impeachment".
It doesn't say that you need an order of the impeachment court. That's why in the case of Clarissa Ocampo she came here without an order. At tinanong siya, "Bakit mo binibigay yung impormasyon?" Ang sagot niya, "Tinanong ko sa external counsel namin. Sabi ng counsel pwede."
My only interpretation of that is that they interpreted "in case of impeachment" as anything that has to do with the impeachment proceedings. If one of your bank officials go to the prosecution and says "Ito yung bank account niya", they will not be liable under the law because of that precedent.
I will not argue that point now. I was just simply trying to ask you your opinion and I'll ask the defense and prosecution counsel the same thing. But I was just trying to help you explain to your depositors because we are being monitored here by our kababayans and maybe almost all the banks.
I'd like to show you that while I ask you tough questions, we are not insensitive to the situation of your bank and the banking industry.
Garcia thanks ASC and explains how Clarissa Ocampo's actions resulted in a bank run.
ASC: That's what I was trying to point out. That's the practice. Pero hindi siya nakasuhan at wala pong penalty ang Banko Sentral sa kanila at conditionally tinanggap yung ebidensiya dahil ito yung kaibahan ng batas sa aktwal. Ang batas, payagan man kayo magbigay ng impormasyon, it causes jitters to the depositors.
So I'll not debate on the law. But I will agree with you. That's why to the depositors who are watching, I wanted to send them the message that you don't have a choice pagka impeachment proceedings ito.
May I ask the prosecution counsel the same question? Anong interpretation niyo sa 1405? Kailangan orderan pa yung bangko na dalhin dito or the mere fact na may pumunta sa inyo na kahit anong opisyal ng bangko at sinabing impeachment case ito at ito yung dokumento?
Prosecution agrees with ASC's interpretation.
ASC: I'll give the Defense a chance to give their opinion but let me ask one follow up question: It wouldn't matter kung anonymous or may nagbigay sa inyo from the bank. There are many possibilities as the bank officials have been saying. In fact, it could have been the client's copy.
I mentioned the Udong Mahusay case here where the client, allegedly the First Gentleman, nasa alalay niya yung mga papeles at tinakbo yung mga papeles kaya ito ang ibinigay. The bank manager said they also went through some audits. So not to point fingers here, but there are a thousand and one possibilities.
Pero kahit saan man nanggaling, if the Clarissa Ocampo precedent is correct and if the interpretation of 1405 is correct, it doesn't really matter (who gave the information) because this is an impeachment case.
Can I ask the defense counsel, sa inyo po ba kailangan may order pa yung korte o pwedeng ibigay ng bangko?
Defense answers that an order is needed and explains that the Clarissa Ocampo case cannot be used as a precedent because the Erap case has different grounds than the Corona case.
ASC: Sir your explanation is very very clear. The presiding officer, the Senate President, already ruled several times that 2.2 and 2.3 in Article 2 includes allowing the prosecution to show that if there are bank accounts that exceed whatever is declared in the SALN as cash .
In this case, although you will have your turn to dispute that and say whether or not it is a valid allegation, ang tinanatong ko po ay kung halimbawa, may lumapit ngayon na banko without a subpoena or the order of the impeachment court at sabihin na 1405 ay may exception na kapag impeachment... so this is the account, whether ang laman ng account ay napaka-laki or napaka-kaunti, will this be a violation?
Defense answers yes and cites the possible bank run as explanation.
ASC: Precisely my point counsel. Sinasabi ko na iba po yung issue ng bank run at hindi natin pwedeng hindi tingnan yun at iba po yung point na legal.
But I'll stop there Mr. Presiding Officer because I just wanted to hear both sides. Because I think this will be relevant later on when we compare the documents and when we decide the admissibility of these documents.
Tuesday, September 27
Monday, September 26