And now, the end is near… | Article VIII Jester

And now, the end is near… | Article VIII Jester

"x x x.

Ombudsman Conchita Carpio-Morales has the authority to conduct an investigation on Corona’s US Dollar accounts even if he is an impeachable official, pursuant to the pertinent provisions of the Constitution and the Ombudsman Act

Section 13(1) and (5), Article XI of the Constitution enumerates the powers, functions and duties of the Ombudsman in relation to implementing the fundamental principle stated under Section 1, Article XI thereof that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives, thus:

SECTION 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) 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.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts and transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. [Emphasis supplied]

In this connection, Section 22 of the Ombudsman Act provides:

Section 22. Investigatory Power. — The Office of the Ombudsman 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.

In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. [Emphasis supplied]

Further, Section 26 of the Ombudsman Act provides:

Section 26. Inquiries. —

(1) The Office of the Ombudsman shall inquire into acts or omissions of a public officer, employee, office or agency which, from the reports or complaints it has received, the Ombudsman or his Deputies consider to be:

(a) contrary to law or regulation;

(b) unreasonable, unfair, oppressive, irregular or inconsistent with the general course of the operations and functions of a public officer, employee, office or agency;

(c) an error in the application or interpretation of law, rules or regulations, or a gross or palpable error in the appreciation of facts;

(d) based on improper motives or corrupt considerations;

(e) unclear or inadequately explained when reasons should have been revealed; or

(f) inefficient performed or otherwise objectionable.

(2) The Officer of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two (72) hours from receipt thereof. If the answer is found satisfactory, it shall dismiss the case.

As the debates of the 1986 Constitutional Commission would show, the Office of the Ombudsman was intended to be an office “which can act in a quick, inexpensive and effective manner on complaints against administrative inaction, abuse and arbitrariness of government officials and employees in dealing with the people.” [II Records of the 1986 Constitutional Commission 265] The debates further reveal the following nature of the Office of the Ombudsman:

One of the principal functions of the officer contemplated in this section is the capability to attend and act immediately on complaints not leading to prosecution but to correction or implementation of the request, either phoned in, or simply made orally or even in writing. What we wish to cure is the despair of the common people with our government officials. We have entrenched the administration with public officials who are beyond the reach of common people. It is a very common and sad spectacle to see people going from one government office to another, trying to secure redress for their common complaints of inaction, abuse arbitrariness on the part of public officials. In other places like Nassau County, the United States, Singapore and Japan, people are free to call in, to use the telephone simply. For instance, when going to an office, they are made to return day after day, either because the official concerned did not come to work or simply they are told, ‘I am very busy. Will you please come back this afternoon?’ These are common complaints of our people. [II Records of the 1986 Constitutional Commission 369 to 370]

Thus, the Office of the Ombudsman was intended “to cut through red tape in order to obtain immediate government action. [Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 1124]

As stated by the Supreme Court in People vs. Obnimaris, 574 SCRA 140 (2008), there is a presumption of official duty if there is an existing rule of law or statute authorizing the performance of the act or duty:

It needs no elucidation that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof.

In fact, Section 3(m), Rule 131 of the Rules of Court presumes that official duties have been regularly performed:

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

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(m) That official duty has been regularly performed;

This was affirmed in Lumayna vs. Commission on Audit, 601 SCRA 163 (2009) where the Supreme Court stated that the presumption stays absent a showing of bad faith and malice:

Every public official is entitled to the presumption of good faith in the discharge of official duties.Absent any showing of bad faith and malice, there is likewise a presumption of regularity in the performance of official duties. [Emphasis and underscoring supplied]

In this case, the means and method on how the Ombudsman conducted her investigation as to Corona’s alleged dollar accounts enjoys the presumption of regularity. Needless to state, the means and method on how she obtained the documents presented during the hearing, pursuant to her functions as the Ombudsman under the Constitution and applicable law likewise enjoy the presumption of regularity.

Hence, until the Defense is able to overcome by evidence showing bad faith and malice on the part of the Ombudsman in investigating Corona and seeking the assistance of the Anti-Money Laundering Council (AMLC) and the Commission on Audit (COA) in furtherance thereto, the same deserves full faith and credence from the Impeachment Court.

In view of the foregoing, even if Corona is an impeachable officer, the Ombudsman has the indisputable power to investigate serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment. [Section 22, Ombudsman Act] In fact, the Ombudsman can investigate any act or omission of any public official when such act or omission appears to be illegal, unjust, improper or inefficient. [Section 13(1), Article XI, Constitution] In furtherance thereof, the Ombudsman may request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. [Section 13(5), Article XI, Constitution]

In today’s proceedings, the Ombudsman (with the assistance of COA Commissioner Heidi Mendoza) made the following “significant” observations:

• There are more than $10 Million in transactional balances in Corona’s dollar accounts, which represent the total inflow and outflow of funds that when through the banking system.
• Corona has 82 dollar accounts in 5 banks:  34 dollar accounts at the Bank of the Philippine Islands (BPI) San Francisco Del Monte branch, 18 at the Tandang Sora branch, 8 at the BPI Acropolis branch, and 1 with BPI Management Investment Corporation; 8 dollar accounts at the Philippine Savings Bank (PSBank) Cainta branch; 6 at PSBank Katipunan branch; 2 Deutsche Bank AG accounts; and 1 Citibank account.
• There were circuitous fund movements.
• Certain deposits and withdrawals were made on the same day.
• There were significant movements on certain dates. On the day he was impeached, Corona withdrew a total of $418,193.32. Of this amount, $417,978.80 was placed in a trust fund.
• Based on the analysis of dollar inflows and outflows from the 82 Corona dollar accounts from April 2003 to December 2011, a total of $28,740,497.93 had been deposited into the accounts. On the other hand, withdrawals, credit memos, and electronic payments or the total outflow amounted to $30,758,878.51.
• The withdrawals are bigger than the deposits because the transactions are only those indicated in the AMLC report and they do not have any record of the starting balance of the accounts; the accounts may have been heavy with cash in the beginning and that it proves the theory that the withdrawals are equal or less than the deposit.
• What were analyzed were a total of 423 transactions spread over 82 account in 5 banks, which are all in Corona’s name; these accounts are the 4 main accounts, and the rest are baby accounts.
• The peso accounts of Corona was computed to have reached P242 million.

Notably, the figures presented in today’s proceedings were arrived at based on the AMLC report (and analyzed with the assistance of COA), which is the financial intelligence unit of the Philippines that is mandated, among other functions, to require and receive covered transaction reports and suspicious transaction reports, pursuant to Section 7 of Republic Act No. 9160, as amended by Republic Act No. 9194 (Anti-Money Laundering Act).

A “covered transaction” is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of P500,000.00 within one (1) banking day, as provided under Section 3(b) of the Anti-Money Laundering Act, as amended. On the other hand, a “suspicious transaction” is, among others, a transaction involving an amount not commensurate with the financial capacity of the client or, taking into account all known circumstances, may be perceived to be structured in such a way as to avoid being the subject of reporting requirements, as provided under Section 3(b-1) of the Anti-Money Laundering Act, as amended.

It should be noted that when reporting covered transactions to the AMLC, covered institutions (such as banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas) and their officers and employees shall not be deemed to have violated Republic Act No. 1405, as amended (Bank Secrecy Law), Republic Act No. 6426 (Foreign Currency Deposit Act), as amended, Republic Act No. 8791 (General Banking Act), and other similar laws, thus:

Section 9. Prevention of Money Laundering; Customer Identification Requirements and Record Keeping.–

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(c) Reporting of Covered and Suspicious Transactions. — Covered institutions shall report to the AMLC all covered transactions and suspicious transactions within five(5) working days from occurrences thereof, unless the Supervising Authority prescribes a longer period not exceeding ten (10) working days.

Should a transaction be determined to be both a covered transaction and a suspicious transaction, the covered institution shall be required to report the same as a suspicious transaction.

When reporting covered or suspicious transactions to the AMLC, covered institutions and their officers and employees shall not be deemed to have violated Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791 and other similar laws, but are prohibited from communicating, directly or indirectly, in any manner or by an means, to any person, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. In case of violation thereof, the concerned officer and employee of the covered institution shall be criminally liable. However, no administrative, criminal or civil proceedings, shall lie against any person for having made a covered or suspicious transaction report in the regular performance of his duties in good faith, whether or not such reporting results in any criminal prosecution under this Act of any other law.

When reporting covered or suspicious transactions to the AMLC, covered instituting and their officers and employees are prohibited from communicating directly or indirectly, in any manner or by any means, to any person or entity, the media, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer and employee of the covered institution and media shall be held criminally liable. [Emphasis supplied]

As previously discussed, the collaboration between the Ombudsman, AMLC and COA are warranted under Section 13(5), Article XI of the Constitution, which authorizes the Ombudsman to seeks the assistance of any government agency in the discharge of its responsibilities, among which is the conduct of investigations pursuant to Section 13(1), Article XI of the Constitution and Section 22 of the Ombudsman Act.

Moreover, since the AMLC report was an official report made in the performance of the AMLC’s duty under law, the same is a prima facie evidence of the facts therein stated, as provided for under Section 44, Rule 130 of the Rules of Court, which reads:

Section 44. Entries in official records. — Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.

Thus, in order to rebut the contents of the AMLC, it is the burden of Corona to present clear and positive evidence to the contrary.

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