Inadmissible evidence?

By Fr. Joaquin G. Bernas S.J.

During one of the impeachment sessions last week, Senator-judge Miriam Defensor-Santiago raised the issue of the legality of how Ombudsman Conchita Carpio Morales obtained records of the alleged bank accounts of Chief Justice Renato Corona. Specifically, Santiago focused on how the Anti-Money Laundering Council (AMLC) obtained and released the evidence to 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 investigative power does the Ombudsman have? (3) What is the extent of the power of the AMLC to look into bank accounts and release what has been found?

The inquiry 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, no one 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 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 are involved in the Corona case are dollar accounts, we have to look into more specific laws, namely theForeign Currency Law and the Anti-Money Laundering Act (Amla).

The earlier Bank 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 and considered as 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.”