Casuistry wins over common sense in Senate

Sen. Serge Osmeña III dubbed it a clash of opinions between “two bar topnotchers”—RCBC lawyer Ma. Cecilia Estavillo and Sen. Aquilino “Koko” Pimentel III. The bone of contention: whether or not RCBC can be compelled to produce the opening documents relating to the five fictitious accounts used in facilitating the distribution of funds allegedly stolen by hackers from the Bangladesh Central Bank. The question cropped up at the Senate blue ribbon committee’s third  hearing last March 29 on the $81 million money-laundering scandal.

Pimentel moved and argued that since those accounts are  bogus, the bank secrecy laws and regulations do not apply and, therefore, RCBC can be compelled to produce the pertinent documents before the Senate.

Estavillo countered: No such distinction exists in the law, and so RCBC cannot comply with the Senate’s order without any written waiver from the depositors—regardless of whether or not they actually exist!

Sen. Juan Ponce Enrile (himself a brilliant lawyer) sided with Estavillo: The accounts should be kept sacrosanct no matter their unlawful provenance; and to table Pimentel’s motion would set a bad precedent that might open the floodgates of unwelcome inquiries into bank accounts in clear violation of their “absolutely confidential nature.”

Needless to say, casuistry won over common sense!

The legal issue was really simple. Under Republic Act No. 1405 (The Secrecy of Bank Deposits Law, enacted in 1955 and amended by RA 7653 in 1993), “all deposits of whatever nature with banks or banking institutions in the Philippines… 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 the written permission of the depositor… or upon order of a competent court…”

Estavillo and Enrile stressed that the phrase “all deposits of whatever nature” would embrace accounts even of “fictitious” depositors and violation of that confidentiality would subject RCBC officials to a criminal liability by imprisonment for five years. By their own reading, they insist that the law was meant more to protect the DEPOSIT per se and public trust and confidence in the banking system.

That was really stretching the letter and spirit of the law too far! Let’s continue reading the other part of the law—“…except upon the written permission of the depositor”! Quite evidently, the law was meant to protect mainly the DEPOSITOR, not the deposit! If it were otherwise, no account can ever be inquired into even if the depositor waives that protection! But that would be patently absurd. Thus, Estavillo and Enrile conceded that, OK, the depositor must make that waiver in writing before his account may be inquired into.

But, do tell, who is going to execute any such waiver if the account holder is “fictitious” and therefore unknown? Ah, basta?  And what criminal prosecution is RCBC talking about? Who is going to file such complaint in the absence of a known depositor? Without a complainant, what criminal prosecution can prosper? Alas, so much time was wasted on long-winded arguments over such tommyrot!

True it may be that the documents Pimentel was looking for were already submitted by RCBC to the Anti-Money Laundering Council which led him to back off, seemingly content with just securing copies from the latter. But here’s the rub:  He and the other senators interested in those accounts may yet face a blank wall as Estavillo and Enrile will surely block any further questions that may need to be asked regarding those accounts! They seemed quite adamant in their intent to take the bullet for the unknown holders of those obscenely fat accounts!

Pimentel should have stuck to his guns and pressed for a vote to procure those documents by force of a subpoena duces tecum, which carries with it the authority to propound questions relating to them. As it turned out, more senators saw the sense and logic of his proposition. There was no way he could have lost in the voting.

At the next hearing, we expect RCBC to put up a taller brick wall to stop the Senate committee from extracting no-nonsense answers from its officials about those AMLC-supplied documents: The law has to be amended first to “expressly exclude fictitious accounts” from the coverage of the law in question; otherwise, again, no way, Jose!  It makes one wonder what, if anything, RCBC is trying to hide at all costs…

—STEPHEN L. MONSANTO, Monsanto Law Office, Loyola Heights, Quezon City, [email protected]