Memorandum Bank Deposits Feb20 A942

8/3/2019 Memorandum Bank Deposits Feb20 A942

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Republic of the PhilippinesCongress of the PhilippinesSenate ~ ' : 1 . : d 2'. "


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1. The Bill of Rights is applicable to investigations as to all founs ofgovernmental action. Witnesses cannot be compelled to give evidence againstthemeselves. The witness cannot be subjected to unreasonable search and seizure.1

2. Section 1 3) of the Bill of Rights of the 1935 Constitution provides:(3) The right of the people to be secure in their persons, houses, papers,and effects against unreasonable searches and seizures shall not be violated,and no warrants shall issue but upon probable cause, to be detennined by thejudge after the examination under oath or affirmation of the complainant andthe witnesses he may produce particularly describing the place to be searchedand the persons or things to be seized.

3. Article III, Section 2 of the 1987 Constitution is the restatement of theabove provision of the 1935 Constitution, expanding the scope and applicability ofthe Rule to include other founs of searches and seizures, through certain and definite

language in an additional clause, viz::

The right of the people to be secure in their persons, houses, papers, andeffects against unteasonable seatches and seizutes ofwhatever nature and lo t anypurpose shall be inviolable, and no search warrant or warrant of arrest shall issueexcept upon probable cause to be detennined personally by the judge afterexamination undet oath ot affirmatiOli of the cotnplainant and the witnesses he mayproduce, and particularly describing the place to be searched and the persons orthings to be seized.2 (Emphasis supplied)

4. Discussing the distinction between the 1935 and the 1987 provision, Fr.Joaquin G. Bernas, S. J. explains that, * * "It is submitted, although the present writerhas not found anything explicit in the convention discussions in support of theposition, that the new phrase has effectively extended the search and seizure clause to

1354 US 178, 188.2PHIL.'CONST. art. III, 2 (emphasis supplied).

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at least 2 penumbral phrases. The first is the area of constructive search contained in asubpoena duces tecum or an order for the production of books and papers.,,3 * *

5. As a practical matter, evidence obtained in violation of the rights againstunreasonable searches and seizures is inadmissible. This is known as the 'exclusionaryrule.' Because of the expanded language in the 1987 Constitution, this rule applies aswell to the Impeachment Court. "Generally, the exclusionary rule is applied to bar theuse of illegally obtained evidence in quasi-criminal cases where the government isseeking to impose some kind of penalty on the defendant."4

6. The constitutional right under Article III, Section 2 of the Constitutionagainst search and seizures applies to subpoenae. To be sure, it cannot be denied thata court order granting a motion for production of documents under Rule 27 of theRules of Court is in the same nature as a subpoena dUCBS wCtlm.

7. In Federal Trade Commission v. American Tobacco Cotnpa1!Y,5 the United StatesSupreme Court disallowed an order to produce documents and information with an

unlimited right of access, viZ.:

Anyone who respects the spirit as well as the letter of the FourthAmendment would be loath to believe that Congress intended to authorize one oEitssubordinate agencies to sweep all our traditions into the ire (Interstate CommerceCommission v. Brimson, 154 U.S. 447, 479, 14 S. Sup. Ct. 1125), and to directfishing expeditions into private papers on the possibility that they may discloseevidence of crime.6

3 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 ed., p. 86.4 Hall, Searches and Seizures, 3d ed. Vol. 1, p. 348. .5 Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924).'ld. at 305-306.

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8. Concededly, there are certaiti differences between searches and subpoenaduces tecum. First, only courts can issue search warrants. In contrast, subpoenae duces tecummay be issued by Congress, courts and other administrative officers seekinginformation in connection with a case. Second, search warrants can be issued onlyupon probable cause. In the case of subpoenae duces tecum, the things, documents andarticles demanded must appear to be prima facie relevant. That is to say, on its veryface, the information requested must bear a direct connection to the matter of the

inquiry. Third, a search warrant must particularly describe the place to be searchedand the thing to be seized. A subpoena duces fectlm must contain a reasonable descriptionof the book, documents and the thing demanded.

9. In the case of bank accounts, however, the accounts must be clearlyidentified and must be the subject matter of:a pending case. In other words, the casemust be centered around the bank account, its ownerhsip, origin and contents, andnot an inquiry into a bank account which is merely incidental to the charge.

10. The following are the limitations in the case of search warrants: first,there must be a probable cause for its issuance; second, it may only be issued by ajudge; third, the judge must first examine under oath or affirmation the witnesses whogive information that justify the issuance of the warrant; and fourth, the warrant mustparticularly describe the place to be searched and the thing to be seized.

11. In the case of subpoena duces tecum, the limitations are as follows: first, itcannot be based on an illegal search and seizure; second, there must be a pending

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case; third, it must be relevant to the issues involved in a case; and fourth, it mustreasonably describe the books, documents or things demanded.

The exclusionary rule regardingillegally obtained evidence applies toprivate persons who conducted t h c ~ illegal search, and to those whosecure documents through asubpoena duces tecum, if it involvesa matter protected by the right toprivacy.

12. In Ople v. Torres/ the Supreme Court described the scope of the right toprivacy in part: "Zones of privacy are likewise recognized and protected in our laws. ** * Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, theSecrery rifBank DepositsAct and the Intellectual Property Code."

. 13. In the case of Zulueta v. C A.,s 1he Supreme Court ruled as inadmissiblethe selZure of cancelled cheques, letters from alleged paramours, greeting cards,diaries, p ~ s s p o r t and photographs. There is no question that the documents andpapers in question belonged to private respondent, Dr. Alfredo Martin, and that theywere taken by his wife, the herein petitioner, without his knowledge and consent. Thelanguage of the Supreme Court is specific, viZ':

The intimacies between husband and wife do not justify anyone of them inbreaking the drawers and cabinets of the other and in ransacking them for any telltaleevidence of marital infidelity. A person, by contracting marriage, does not shedIusIher integrity or his right to privacy as an individual and the constitutionalprotection is ever available to him or to her.7 G.R. No. 127685,23 July 1998.8 GR. No. 107383,20 February 1996.

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14. The decision in the earlier case of Peo. v. Marti does not apply to theimpeachment case because, in Marti, defendant asked a freight forwarder to shipcertain parcels which he misrepresented to contain cigars and books. In accordancewith their procedure, the freight forwarder inspected the parcels and discovered thatthey contained marijuana, a prohibited substance. The forwarder then opened all theparcels and confirmed the contents to be marijuana. The forwarder then turned overthe parcels and marijuana to the National Bureau of Investigation.

15. Marti involved a peculiar set of facts because the aricles subject of thesearch were per se illegal and prohibitted. In fact, even a private citizen can effect awarrantless arrest, including a warrantless search and seizure, if a crime is beingcommitted in his presence. On the other hand, what is involved in this impeachmenttrial are bank accounts, which are lawful objects, protected by law and the right topnvacy.

16. In fact, private persons are covered by the prohibition against thedisclosure of foreign currency deposits. The language of the law itself leaves no roomfor doubt as to the scope of the secrecy of foreign currency deposits, viZ.:

Section 8. Secrecy of foreign currency deposits . - All foreign currency depositsauthorized under this Act, as amended by PD No. 1035, as well as foreign currencydeposits authorized under PD No. 1034, are hereby declared as and considered of anabsolutely confidential nature and, except upon the written permission of thedepositor, government in no instance shall foreign currency deposits beexamined, inquired or looked into by 3


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1035, and further amended by PD No. 1246, prom. Nov. 21, 1977.)' (Emphasissupplied)

17. In this impeadunent trial, the bank documents and information thatthe Prosecution seeks to introduce are protected by law. Whether the documents weregiven to, found or stolen by the Prosecution, the information itself may not bedisclosed under any circumstances. The sole exception is the written waiver of thedepositor. Therefore, even assuming that the acquisition of the bank information wasvoluntarily given by the bank personnel to the Prosecution, the disclosure of theinformation is still illegal and precludes this Honorable Impeachment Court fromadmitting or allowing the same to remain on record. I t stands to reason that theapplicability of the poisonous tree doctrine may have little or no bearing, because theinformation sought to be introduced by the Prosecution is prohibited by R. A. 6426.

The inadmissibility of evidenceunder the doctrine of the fruit ofthe poisonous tree applies tosubpoenae duces tecum.

18. The fruit of the poisonous tree IS a fundamental doctrine of theexclusionary rule. Although American in origin, the doctrine has long since beenrecognized and applied by our Supreme Court through express language in People v.Alicando,1O viZ':

We have also adopted the libertarian exclusionary rule known as the Ji'uit i fthe poisonous tree,' a phrase minted by Mr. Justice Felix Frankfurter in the celebratedcase of Nardone v. United States. According to this rule, once the primary SOutce (the'tree') is shown to have been unlawfully obtained, any secondary or derivative evidence (the'fruit') derived from it is also inadmissible. Stated otherwise, illegally seized evidenceis obtained as a direct result of the illegal act, whereas the Ji'uit 0/' the poisonous tree' isthe indirect ",suIt of the same illegal act. The Ji'uit i f he poisonous t",e'is at least once

9 Republic Act No. 6426, AN ACT INSTITUTING A FOREIGN CURRENCY DEPOSITSYSTEM IN THE PHILIPPINES, AND FOR OTHER PURPOSES.10 G.R. No. 117487, Dec. 12, 1995.

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removed from the illegally seized evidence, but it is equally inadmissible. The rule isbased on the principle that evidence illegally obtained by the State should not beused to gain other evidence because the originally illegally obtained evidence taints allevidence subsequendy obtained."

19. "It has been held * * that subpoenas duces tecum and IRS summonsespredicated on illegal searches are subject to being quashed to deter constitutionalviolations. Otherwise, the government could legally obtain what it just illegallyobtained."12

20. In UlIited States v. McSurefy/3 certain books and documents were illegallyseized from a couple being charged with seditious activities. On the basis of thesedocuments, the Permanent Sub-committee on Investigations of the United StatesSenate Committee on Government Operation issued subpoenas requiring the coupleto produce certain records and to testifY before it. The United States Circuit Court of

Appeals held that the exclusionary rule applied to the subpoenas -

We have taken the language of Watkins to mean that the consequences of thedeinal of these rights are no less severe merely because their denial is broughtabout by a congressional subcommittee. For example, an unreasonablesearch is no less illegal if c o n d u c t ~ . d to a subpoena of a congressionalsubcommittee than if conducted by a law enforcement official.

21. In other words, because the articles involved in this impeachment ttialrefer to bank accounts of CJ Corona and his family, which are lawful property and notsubject to immediate seizure like prohibitted drugs, the bank accounts are protectedby the right to privllCY and the secrecy and confidientaility of certain laws, and maynot be intruded upon by a subpoena, issued upon fake or false documents presented

"Id.12 Hall, Searches and Seizures, 3d ed., vol. 2, p. 555.13 473 F 2d 1178

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to the Impeachment Court. Without any reliable basis to stand on, the subpoenaissued by the Impeachment Court is invalid al1d void.

The fake documents cannot bethe basis for the issuance of asubpoena to the banks.

22. Mr. Pascual Garcia and Ms. Annabelle Tiongson, the president and thebranch manager of the Philippine Savings Bank both testified that the bankdocuments attached to the Supplemental Request for Subpoena Duces Tecum arefake documents and do not correspond to documents of PS Bank. In the light of this,the Prosecutors cannot use insist on using them as basis for the issuance ofsubpoeanae in this case.

23. Article 172 of the Revised Penal Code, 1n its last paragraph, statesspecifically that -

Any person who shall knowingly introduce in evidence in any judicialproceeding or to the damage of another or who, with the intent to cause suchdamage, shall use any of the false documents embraced in the next precedingarticle, or in any of the foregoing subdivisions of this article, shall be punished bythe penalty next lower in degree. (Empbasis supplied)

24. In their Compliance dated 14 February 2012, the Prosecution quoted thefollowing portions of the decision of the Supreme Court in Ejercito v. Sandiganbqyan, toargue that the information regarding the bank accounts should be admitted even ifthey it was illegally acquired, viZ':

Petitioner's attempt to make the exclusionary rule applicable to the instantcase fails. R.A. 1405, it bears noting, nowherco provides that an unlawful examinationof bank accounts shall render the evidence obtained therefrom inadmissible in

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evidence. Section 5 of R.A. 1405 on1y states that "[a]ny violation of this law willsubject the offender upon conviction, to an imprisonment of not more than fiveyears or a fine of no t more than twenty thousand pesos or both, in the discretion ofthe court."

***The same principle was reiterated in U.S. v. Thompson:

x x x When Congress specifically designates a remedy for oneof its acts, courts generally presume that it engaged in the necessarybalancing of interests in determining what the appropriate penaltyshou1d be. See Michaelian, 803 F.2d at 1049 (citing cases); Frazin, 780F.2d at 1466. Absent a specific reference to an exclusionary rule, it isno t appropriate for the courts to read such a provision into the act.

25. The quotation is not applicabl


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Moncado doctrine was expressly reversed in Stonehill v. Diokno,15 "Upon maturedeliberation, however, we are unanimously of the opinion that the position taken inthe Moncado case must be abandoned." The Supreme Court in Stonehil! quoted thedecision of the U. S. Supreme Court in Mapp Ii. Ohio, vi!\;:

* * In short, the admission of the new constitutional Right by Wolf could nottoletate denial of its most important constitutional privilege, namely, the exclusion ofthe evidence which an accused had been forced to give by reason of the unlawfulseizure. To hold otherwise is to grant the right but in reality to withhold its privilegeand enjoyment. Only last year the Court itself recognized that the purpose of theexclusionary rule to "is to deter - to compel respect for the constitutional guarantyin the only effectively available way - by removing the incentive to disregard it"Still in Stonehil4 the Supreme Court brushed aside the suggestion that the remedy is tome a criminal case by stating that -

Moreover, the theory that the criminal prosecution of those who secure anillegal search warrant and/or make unreasonable searches or seizures would sufficeto protect the constitutional guarantee under consideration, overlooks the fact thatviolations thereof are, in general, committed By agents of the party in power, for,certainly, those belonging to the minority could not possibly abuse a power they donot have. Regardless of the handicap undf:r which the minority usually - but,undetstandably - finds itself in prosecuting agents of the majority, one must notlose sight of the fact that the psychological and moral effect of the possibility 21 ofsecuring their conviction, is watered down by the pardoning power of the party forwhose benefit the illegality had been committed.

This doctrine has been incorporated in Section 3(2) of the Bill of Rights of the 1987Constitution, which provides:

(2) Any evidence obtained in violation of this or the preceding section shall beinadmissible for any purpose in any proceeding.

No less than the Constitution declares. the illegally acquired information on the CJCorona bank accounts inadmissible. The suggestion that the remedy is to file acriminal case for violation of the right to privacy of CJ Corona is illusory for thefollowing reasons: (1) the source of the documents is some unknown small woman;(2) since Secretary ofJustice Leila De Lima is testifying for the Prosecution, it cannot15 G. R. No. 19550, 19 June 1967.

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be expected that she will prosecute the involved Congressmen and all those who arehelping in the prosecution of CJ Corona; (3) even if it were to be assumed for the sakeof argument that somebody can be prosecuted and convicted, it is likely that PresidentBenigno Aquino will pardon anybody convicted as such.

The testimonies and bankdocuments produced as a result ofthe subpoenae are inadmissiblefor being the fruits of thepoisonous tree.

27. Since the testimonies ofMr. Pascual Garcia and Ms. Annabelle Tiongsonand the documents they testified on could not have been discovered had it not beenfor the false documents submitted to procure a subpoena, they are also inadmissibleas fruits of a poisonous tree.

* * "Illustrative is Peo. v. Martin, where the names of all the witnesses at anabortionist's trial were discovered in an illegal search of the defendant'srecords. In holding that their testimony should not have been received, thecourt stressed that '[n]o showing is made of any kind that the name of anyoneof the witnesses was obtained in any other manner than by an examination ofthe papers of the defendant. Similarly, in Pea. v. Albea, suppressing thetestimony of a witness discovered in the course of an illegal search ofdefendant's apartment, the coUrt reasoned that the dimensions of theexclusionary rule were not different 'merely because the evidence has changedfrom inanimate to animate form,' as 'the ends of justic esought to bemaintained are the same.'16

28. In State v. Rogers, it was held that a witness discovered an illegal search ofan auto in which he and defendant were riding could not testify as to defendan'ts

16 LaFave, Search and Seizure, 4th ed., VoL VI, pp. 364-365.Memorandum on CoJifitientia/ity ofBankAccounts

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possession of a gun found in that search, for the questioning of the witness about thegun was quite clearly based upon its illegal discovery.17

29. As in this case, there was no information available to the Prosecutionregarding the accounts of CJ Corona and family in PS Bank. Upon a carefulexamination of events, it is easily established that it was only upon the mysteriousappearance of the fake and spurious documents that led to the issuance of the

subpoena ad testificandum et duces tecum. Despite confirmation by the bankrepresentatives, however, that the documents were fake, testimony and other bankdocuments have been introduced to the proceedings to the great prejudice of CJCorona and in gross violation of his constitutional rights. To repeat, it is illegal todisclose the information pertaining to the bank accounts of CJ Corona, regardless ofwhether or not the fake documents of the Pwsecution were given, borrowed, stolen,fabricated or magically produced.

RELIEF

WHEREFORE, Chief Justice Renato C. Corona respectfully prays that, forbeing illegal and inadmissible, and violative of his constitutional rights to due processand against unreasonable searches and seizures, this Honorable Court:

17 Jd, p. 373.Memomndum on COIifid


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(a) expunge or exclude from the record the evidence presented pursuant tothe prosecution's Supplemental Request for Subpoena dated 3 February2012;

(b) expunge or exclude from the record the evidence presented pertainingCJ Corona's alleged bank records;

(c) prohibit the presentation of further evidence on CJ Corona's allegedbank records in this case; and

(d) quash all subpoenae ad testificandum et duces tecum issued pertaining to the PSBank accounts of CJ Corona.

Chief Justice Renato C. Corona 'further prays for such other relief as may bejust and equitable under the premises.

Makati for Pasay City, 20 February 2012.

Respectfully Submitted byCounsel for Chief Justice Renato C. Corona.

JOSE M. R Y IIIPTR No. 2643183; 1/04/11; Makati CityIBPLRN 02570 August 20,2001 (Lifetime)Roll of Attorneys No. 37065MCLE Exemption No. I-000176

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Copies furnished:

JACINTO D. JI ENEZPIR NO. 3174410, 2 January 2012, Makati CityIBP LRN No. 01668 (Lifetime)

Roll of Attorneys No. 22495MCLE Exemption No. II1-00832-March 8, 2010

House of RepresentativesBatasan ComplexBatasan Hills, Quezon City;Senators of the Republic of the PhilippinesGSIS BuildingMacapagal HighwayPasayCity

Memorandum on Co1ifidentiali!J tfBank Accounts

Memorandum Bank Deposits Feb20 A942

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