Q&A

The spotlight during the past week’s impeachment trial was on two government agencies: the Office of the Ombudsman (OMB) and the Anti-Money Laundering Council (AMLC). Both were established to combat wrongdoing, particularly graft and corruption, although the latter was a direct reaction to ill gotten monies being concealed and used for criminal activities such as terrorism.

Watching the vivid testimony and presentation of Ombudsperson Conchita Carpio Morales, I was reminded of the movie “Spiderman.” Amidst the tangled web of circuitous transactions, the ominous words “With great power, comes great responsibility” came to mind.

Listening to the questions propounded by defense counsel and the Senator judges to the Ombudsperson, let me attempt to summarize what I think are the basic legal issues that will help clarify the powers and restrictions on these two agencies. For the reader’s ease of understanding, I have adopted a basic question and answer format. I have also tried to keep legal jargon at a minimum.

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Q1: What are the basic powers of the OMB?

A: OMB has the authority to: a) conduct an investigation; and b) to file and prosecute cases against erring public officials.

The OMB is given broad powers and wide latitude to investigate both by the Constitution and R.A. 6770 (the Ombudsman Law). In the words of Senator Judge Miriam Defensor-Santiago, the OMB’s power is “plenary, infinite and wide ranging.”

Q2: What are the legal bases for the Ombudsman to conduct an investigation on the bank accounts of the Chief Justice?

A: The 1987 Constitution authorizes the OMB to: “investigate on its own or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.” The Ombudsman Law also adds the power to prosecute such cases.

Moreover, Section 22 of the Ombudsman Law also specifically provides that the OMB “shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.”

Finally, in the Statement of Assets, Liabilities and Net Worth (SALN) of the Chief Justice, (or any public officer for that matter), express consent is provided by such public official using the following language:

“I hereby authorize the Ombudsman or his duly representative to obtain and secure from all appropriate government agencies including the Bureau of Internal Revenue such documents that may show my assets, liabilities, networth, business interests and financial connections to include those of my spouse and unmarried children below 18 years of age living with me in my household covering previous years to include the year I first assumed office in the government.”

Q3: Can the Ombudsman file and prosecute a case against a public officer while an impeachment proceeding is pending against him?

A: The Supreme Court in In re: Raul M. Gonzalez ruled that an impeachable officer “cannot be charged criminally before the Sandiganbayan or any other court with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office.” However, the Court also emphasized that “such officers are not immune from liability for possible criminal acts for alleged violations of the Canons of Judicial Ethics, but that a certain procedure should be observed before such liability may be determined and enforced.”

Given the Court ruling in Gonzales, the OMB cannot file and prosecute a case against an impeachable officer, if the offense carries a penalty of removal from office. But if no such penalty is being sought, then there seems to be no prohibition. So, for example, the OMB is not precluded from filing a civil forfeiture case under R.A. 1379 against illegally acquired assets even if an impeachment proceeding is ongoing.

Q4: What are the transactions that need to be reported by banks and other financial institutions to the AMLC?

A: a. Covered Transactions — Those transactions involving a total amount in excess of P500,000 (or its equivalent in foreign currency).

b. Suspicious Transactions — Those transactions regardless of the amount involved made under suspicious circumstances as provided in the AMLA.

It is interesting to note that in 2011, Philippine financial institutions reported 96 million covered transactions and 17,000 suspicious transactions to the AMLC.

Q5: Can the AMLC provide a list of covered transactions requested by the OMB?

A: Aside from the consent provided by the public officer in the SALN and the authority of the OMB to “request any government agency for assistance and information necessary in the discharge of its responsibilities and to examine, if necessary, pertinent records and documents,” there was a Memorandum of Agreement executed between the AMLC and the OMB to provide assistance to each other.

Q6: Can the AMLC or the OMB compel a bank to provide information on account balances?

A: Not without a court order.

Q7: Is the secrecy of foreign currency deposits absolute?

A: The only exception provided in R.A. 6426 (foreign Currency Deposit Act) is “upon written permission of the depositor.” It would seem that the express consent contained in the SALN constitutes written permission.

Q8: Can the OMB divulge information received from the AMLC?

A: The OMB is authorized to “publicize matters covered by its investigation when circumstances so warrant and with due prudence and that any publicity shall be balanced, fair and true.” Moreover, when the OMB was subpoenaed by the Senate impeachment court upon the request of the defense lawyers to appear as a witness and provide information on the alleged $10 million accounts of the Chief Justice, she became duty bound to provide information on her ongoing investigation regarding the accounts.

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Greetings: Birth anniversary best wishes to La Salle, Ateneo at Lahat Na co-founder Patrick D. Pantaleon and PCGG’s Marcial Flores.

“Rank does not confer privilege nor give power. It imposes responsibility.”       — Anonymous

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