Denying a dénouement

Since the age of glorious Greece, the high art of drama has undergone several (r)evolutions. Today, the theory is that modern drama can be divided into five parts: the exposition, rising action, climax, falling action, and dénouement. The ongoing impeachment proceedings may be more telenovela than high drama (including a “little” girl surreptitiously handing bank documents to one of the public prosecutors), yet the elements are applicable just the same and, taking this a step further, query as to whether we have reached the climax?

The secrecy of bank deposits occupied the minds of most people this week. If the hoot and howl were the measure, one could conclude that these “concerns” concerned the entire banking industry. The fussing over these accounts, however, is more an offshoot of people being secretive than it is about the laws on secrecy.

In the recent case of GSIS v. Court of Appeals, promulgated on June 8, 2011, the Supreme Court compared R.A. 1405 (enacted in 1955) and R.A. 6426 (enacted in 1974), as follows:

R.A. No. 1405 provides for four (4) exceptions (note however that five are provided in the decisions) when records of deposits may be disclosed. These are under any of the following instances: a) upon written permission of the depositor, (b) in cases of impeachment, (c) upon order of a competent court in the case of bribery or dereliction of duty of public officials or, (d) when the money deposited or invested is the subject matter of the litigation, and e) in cases of violation of the Anti-Money Laundering Act (AMLA), the Anti-Money Laundering Council (AMLC) may inquire into a bank account upon order of any competent court. On the other hand, the lone exception to the non-disclosure of foreign currency deposits, under R.A. No. 6426, is disclosure upon the written permission of the depositor.

These two laws both support the confidentiality of bank deposits. There is no conflict between them. R.A. No. 1405 was enacted for the purpose of giving encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. It covers all bank deposits in the Philippines and no distinction was made between domestic and foreign deposits. Thus, R.A. No. 1405 is considered a law of general application. On the other hand, R.A. No. 6426 was intended to encourage deposits from foreign lenders and investors. It is a special law designed especially for foreign currency deposits in the Philippines. A general law does not nullify a specific or special law. xxx

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Ostensibly, the logic of this Decision is sound. Yet 40 years since the enactment of R.A. 6426, the wisdom of its policy prescription appears to raise some legitimate questions. Note that the law was enacted to “encourage deposits from foreign investors and lenders.” Hence, if the depositor is local, should he enjoy the same protection?

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For Constitutional law junkies, the 2004 case of Central Bank Employees Association v. BSP, raised an interesting legal conundrum: Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that its continued operation would violate the equal protection of the law? In that Decision penned by then Associate Justice Reynato Puno, the Court noted that the subsequent enactment of laws relating to or concerning similarly situated employees “constitute[d] significant changes in circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of R.A. No. 7653”. [Emphasis supplied.]

Forty years later, with a different Constitution and in pursuit of a process provided under it, perhaps we need to start asking ourselves: does the law on secrecy of foreign currency deposits continue to serve our purposes or does it serve only to provide legal force to the secretiveness of some?

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Secrets and bank accounts aside, the “grander” issue here is the conflict between two strong and unequivocal Constitutional provisions: Art. 11, §3(6) provides that “the Senate shall have the sole power to try and decide all cases of impeachment” whereas Art. 8, §1 states that “Judicial power includes the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

Last Thursday, the Supreme Court, voting 8-5, TRO’d the opening of the US dollar accounts. How will the Senate Impeachment Court react? And hanging as a Damocles sword over the latter is the petition to altogether stop the impeachment proceedings. If the Senate gives in at this time, will it also capitulate to another TRO?

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My favorite Constitutionalist, Fr. Joaquin Bernas, was reported to have said that neither the Supreme Court nor the Senate Impeachment Court is supreme as both are subservient to the Constitution. I agree. But that still begs the questions as to whose interpretation should ultimately prevail? In the end, it will boil down to institutional credibility. If we all subscribe to the view that sovereignty ultimately resides in the people, then perhaps the prudent course of action is for the Supreme Court to punt the issue to the Senate and let the latter either reap the glory or face the people’s wrath in the 2013 elections.  

The impeachment trial is the people’s declaration that they want answers. Unlike Lady Justice who weighs her scale with a blindfold, this is a process that we venture into with eyes wide open. Shielding the facts with a put-on blindfold, where it need not be, is to impose a condition of darkness upon ourselves. And as we venture into that darkness, feigning blindness, does it not offend against reason for us to fumble further?

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Greetings: Happy birth anniversary to CIIF Oil Mills Director Ermil Napa and PCGG’s Malou Navarro.

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“Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things.”

                                           — Winston Churchill

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