Will Ombudsman accept Duterte, Roxas waivers?

SINGAPORE—Presidentiable Rodrigo Duterte wants an affidavit from Sen. Antonio Trillanes explaining how he knows there is allegedly P227 million in Duterte’s account with the Bank of the Philippine Islands, Julia Vargas branch, before he opens this account today.

This has sparked pseudolegal debates over presidentiable Mar Roxas’ bank secrecy waiver and Duterte’s previous promise to waive bank secrecy. These debates underscore how our democracy narrowly views law as a game of technicalities and consistently misses real legal issues.

Congratulations to Duterte’s celebrity lawyer Sal Panelo, my old University of the East colleague. As of April 30, over 37,000 have expressed interest in the Facebook event “Sampalan ng Passbook sa BPI Julia Vargas.”

Panelo will open the account today if he gets Trillanes’ affidavit, Duterte has announced.

From the Inquirer timeline: On March 11, Duterte signed a “pledge to open all our bank accounts” (not a waiver) and invited rivals to sign it.

On April 27, Trillanes made the P227-million accusation. Duterte denied the BPI Julia Vargas account existed and refused to sign a waiver.

On April 28, the Inquirer was able to deposit P100 in the BPI Julia Vargas account. Duterte admitted he had BPI accounts but these held only P67,000. Roxas signed his own waiver and challenged Duterte to open the BPI account.

On April 29, Duterte told Inquirer reporter Nancy Carvajal that the BPI Julia Vargas account had “a little less than 200 million.” Referring to new documents from Trillanes, Carvajal wrote: “Duterte gave flippant answers to questions about the P2.4 billion transactions reported by Trillanes, saying he could not exactly remember how much was in the accounts.”

Also on April 29, Roxas’ running mate, Leni Robredo, signed a waiver.

Presidentiable Grace Poe expressed willingness to sign a waiver. Presidentiable Jejomar Binay signed, on March 20, authorization for the Anti-Money Laundering Council to check his bank accounts (not a bank secrecy waiver).

The nitpicking over Roxas’ waiver is a learning experience. On the petty end, some denounce how it refers to “Mar Roxas,” and not his full name. Consider that one’s signature, not the stated name, makes a document binding. Further, a notary witnessed “Mar Roxas” sign and noted his address and passport number. Ask yourself whether every document with a typo in the signatory’s printed name is not binding.

On the more logical, some suggest the waiver should be more specific. However, a person is generally free to waive his or her rights, and there is usually no prescribed format.

But all this nitpicking focuses on the trees and misses the forest.

Roxas’ waiver reads: “Waive in favor of the ombudsman all my rights and privileges to bank secrecy under the Bank Secrecy Law and it shall cover all banks.” Our idol, Ombudsman Conchita Carpio Morales, would surely take “all my rights” and “all banks” at face value.

However, she needs to actually take the waiver to a bank. Any self-respecting bank officer would remember: first, one’s duty to protect one’s depositors, one’s bank and one’s colleagues; and second, that one can be jailed for violating bank secrecy.

Thus, no matter what the waiver actually says, a self-respecting bank officer would ask Roxas to confirm it in writing and restate which accounts are covered. Again, the officer may be jailed if this is not clear.

This gives Roxas every opportunity to withdraw the waiver. If one can waive one’s rights, one can generally ask to have them back.

The late chief justice Renato Corona signed a waiver of bank secrecy during his impeachment trial. He withdrew this after the verdict. Thus, when the Bureau of Internal Revenue tried to invoke the waiver, it no longer existed.

When I asked her, Ombudsman Morales agreed. As a practical point, to cut short the process, she would prefer a waiver that is addressed to the bank and specifies the accounts. And it can always be withdrawn.

But there are far more important legal issues than looking for Roxas’ full name. First, the waiver only cites the Bank Secrecy Law and covers peso accounts. Corona’s impeachment turned on his dollar accounts, for which bank secrecy is stronger. The Supreme Court issued a restraining order that prevented the Senate from opening these.

Second, a criminal with half a brain would know by now to hide ill-gotten gains in other people’s accounts, which his or her waivers cannot cover.

Again, this is an intellectual exercise aimed at asking whether we ask the right questions each time a piece of legal mumbo jumbo is waved on TV.

The waivers are an admirable affirmation of transparency by Roxas and Robredo (and Poe, when hers comes). I take them in the spirit they are meant. I would never demand that they list all accounts on the internet. Public service has never required a complete surrender of all financial privacy.

But we must stop being fixated on pieces of paper. We must focus on how a candidate actually responds to allegations of financial impropriety. When I was a law student, former senator Rene Saguisag lectured that a civil servant must have only one answer: “Here are the receipts, here is the change, how else may I serve you today?”

Thus, when Robredo was accused of sleeping on a P700,000 bed, when Poe’s son was accused of wearing P100,000 sneakers, and the last time someone joked about Roxas’ family wealth, were you satisfied that the responses were immediate, direct and complete?

Finally, we must internalize that these public waivers are enforced by voters, not lawyers. We must make it clear that we are firmly behind our idol, Ombudsman Morales, and what she wants, she must get. Political will, not legal mumbo jumbo, will make transparency real.

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