Why I voted for TRO – Justice Brion

Rappler.com
The TRO simply maintains the status quo, and doesn't encourage officials to evade SALNs

CONCURRING OPINION. Associate Justice Arturo Brion (Photo courtesy of Supreme Court)

(Below is the concurring opinion of Supreme Court Associate Justice Arturo Brion in the Feb 9, 2012 SC TRO on the subpoena issued by the impeachment court to the Philippine Savings Bank, which keeps Chief Justice Renato Corona’s dollar accounts.)

I concur with the majority’s ruling to issue a temporary restraining order (TRO) in favor of petitioner Philippine Savings Bank against the Senate Impeachment Court.
 
The Rules of Court declare that a preliminary injunction may be issued when the following grounds are established:
 
SECTION 3. Grounds for issuance of preliminary injunction.
 
(a)    That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
(b)   That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
(c)    That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
 
The Rules further require that a hearing be conducted to allow an applicant the opportunity to establish any of the above grounds, and the party sought to be enjoined (after due notice) to contest the same.[1]  No preliminary injunction may issue until a hearing is conducted. 

Prior to the hearing, however, prevailing circumstances may require intervention by the Court to at least preserve the status quo until the merits of the prayer for a preliminary injunction is heard.  Thus, the Rules authorize the court to issue a temporary restraining order when there is extreme urgency and the applicant will suffer grave injustice and irreparable injury. 

In other words, the purpose of the temporary restraining order goes no further than to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte.  However, the issuance of the TRO should be justified by the existence of extreme urgency and a grave violation of the applicant’s right that will cause him irreparable injury if the other party is not enjoined.  A review of the facts and the applicable law convinces me that these standards prevail in the present case.
 
RA No. 6426 provides for the absolute confidentiality of foreign currency deposits.
 
The subject matter of the subpoenas issued by the Senate sitting as an Impeachment Court are five foreign deposit accounts with petitioner, all allegedly in the name of Renato C. Corona.  Republic Act (RA) No. 6426, as amended, is the law applicable to foreign currency deposits. The law provides for the absolute confidentiality of foreign currency deposits, as stated in Section 8:
 
Section 8. Secrecy of foreign currency deposits. – 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 as and considered 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; Provided, however, That said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. (As amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977.)
         
Clear right

RA No. 6426 guarantees a clear right to the depositors and demands an exacting obligation from banks to maintain the absolute confidentiality of the foreign currency deposits.  The failure of a bank to fulfill its obligation under the law subjects the bank and its officials to criminal liability under Section 10 of RA No. 6426, and its authority to accept new foreign currency deposits may be revoked or suspended by the Bangko Sentral ng Pilipinas under Section 87 of the Manual of Regulations on Foreign Exchange Transactions.

More than this, the bank’s failure in its obligation – given media coverage and the non-legal slant it can give – gives rise to a real danger that the bank’s reputation may suffer.  In a very bad situation, the effect goes beyond the bank’s reputation and can adversely affect the economy.
 
The only exception provided by the law is when there is a written permission by the depositor.  Jurisprudence declares that “[t]here is only a single exception to the secrecy of foreign currency deposits, that is, disclosure is allowed only upon the written permission of the depositor.” This single excepting circumstance, however, does not obtain in the present case; hence, the bank’s petition.
 
Given that a subpoena was already issued requiring the petitioner Bank to testify and to produce before the Senate sitting as an Impeachment Court documents pertaining to the foreign currency deposits in the name of Renato C. Corona (indeed, the on-going impeachment proceedings center on this matter as petitioner’s president has been put on the witness stand), there is extreme urgency for the Court to address the petitioner’s prayer for TRO.  The possibility of the prejudice that may result is too real and too far-ranging for this Court to disregard.
 
Refutation of the dissents

In the Court’s discussion, objections have been raised as to the absolute terms of the confidentiality that RA No. 6426 guarantees by claims that the Court in several cases has relaxed or liberalized the application of the rule.  These cases in particular are Salvacion v. Central Bank of the Philippines, China Banking Corporation v. Court of Appeals, and Ejercito v. Sandiganbayan.

The cited cases, however, are off-tangent and in fact, did not “relax” or liberalize the rule on absolute confidentiality of foreign deposit accounts.
 
The impact of the principle of stare decisis that is cited as basis is limited; specific judicial decisions are binding only on the parties to the case and on future parties with similar or identical factual situations. As will be explained below, the cited cases do not share the same factual antecedents as the present case.
 
First, the Court in Salvacion made it abundantly clear that because of the “peculiar circumstances” obtaining in the case, the rule that exempts dollar deposits (of a transient) from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body, cannot serve as an instrument of injustice and deprive a Philippine national who is the victim of a heinous crime of the damages awarded to her by the court. 

The “peculiar circumstances” in Salvacion hardly obtains in the present case, so that the ruling cannot be applied to Chief Justice Corona’s impeachment trial.   
 
Second, in China Bank, the Court ruled that the respondent, as owner of the funds (dollar deposit checks) unlawfully taken and which were deposited in China Bank, had the right to inquire into the said deposits because his consent was deemed given.  From this perspective, China Bank is an example of the waiver done by the rightful owner of the absolute confidentiality of foreign currency deposits. 

This situation does not obtain in the present case.  At any rate, the Court also admitted that due to the distinctive circumstances attendant to the case, its ruling was on a limited pro hac vice. This express limitation negates any application of the ruling to the present case, save only if the facts of this ruling are similar or identical to Chief Justice Corona’s case, which they are not.
 
Third, Ejercito does not involve foreign currency deposits and, therefore, should be rejected outright as a ruling applicable to the present case.  In Ejercito, the Court held that the petitioner’s accounts are no longer protected by RA No. 1405 (Secrecy of Bank Deposits Law) because of the presence of two exceptions, namely: (1) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials (plunder case against the petitioner is analogous to bribery or dereliction of duty) and (2) the money deposited or invested is the subject matter of litigation.  Aside from the involvement of local currency deposits and the inapplicability of RA No. 1405 to a foreign currency deposit situation, the two exceptions are not present in the Chief Justice’s present impeachment case.
 
A further objection to the application of the absolute confidentiality rule of RA No. 6426 posits that it is intended only to benefit foreign investors.  The “whereas” clauses in Presidential Decree No. 1246 (1977), the amendatory law of RA No. 6426, is cited, and these clauses state:
 
“WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines;
 
“WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country;”
 
Reference to the “whereas” clause to justify the non-application of the absolute confidentiality rule, however, is unnecessary and inappropriate in light of the clear language of RA No. 6426. 

“Preambles, or ‘whereas clauses’ x x x are not part of the act x x x and consequently ‘cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous.’” Stated otherwise, as a tool for statutory construction, preambles and “whereas” clauses may be utilized only if an ambiguity exists in the statute.  In Echegaray v. Secretary of Justice, this Court had occasion to declare:
 
“a preamble is not really an integral part of a law. It is merely an introduction to show its intent or purposes.  It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations.  Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation, much less prevail over its text.”
 
RA No. 6426, by its plain terms, is clear that all foreign currency deposits are considered to be absolutely confidential. 

The law expressly refers to deposits not to the identity, nationality, or residence of the depositors.  Thus, to claim that the depositors must be considered is misplaced.  Also, to so claim is to read into the clear words of the law exemptions that its literal wording does not support.  To so claim may even amount to judicial legislation.

Issue of secrecy
 
In light of the express and clear terms of the law, the basic rule of statutory construction should therefore apply: “legislative intent is to be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction.”

In the absence of ambiguity, the Court may not construe a law’s provisions by taking into account questions of expediency, good faith, practical utility and other similar reasons so as to relax non-compliance therewith.
 
Yet another objection cites the statutory developments, which according to proponents, indicate that the secrecy guaranteed by the law has steadily declined: “while the general rule facially appears to be secrecy, the voluminous exceptions have, in substance, created a rule of exceptions.”

This thesis is supported by Tajan’s Article Emerging from Secrecy Space: From Bank Secrecy to Financial Transparency, which discusses the recent trend in the international arena pertaining the international tax standard on exchange of information (requiring banking information to be made available upon request of foreign tax authorities) and the enactment of RA No. 10021 or the Exchange of Information on Tax Matters Act of 2009. 

The article “surveys Philippine bank secrecy law as it has evolved and how it relates to the present global movement towards financial transparency.”  From this survey, the Article argues that despite pronouncements by the Courts, “the actuations by both the Court and the Legislature indicate that the secrecy guaranteed by the law has steadily declined.”

It notes that “while the general rule appears to be secrecy, the voluminous exceptions have, in substance, created a rule of exceptions.”

Despite this position, the article significantly recognizes that jurisprudence of the Court points to the other direction.  In short, the article at the same time admits that “bank secrecy remains the general rule.” Indeed, the Court essentially debunked the Article’s premises by stating, in the 2008 case of Republic of the Philippines v. Eugenio, that:

Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the Philippines. Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies as the general rule. It falls within the zones of privacy recognized by our laws. The framers of the 1987 Constitution likewise recognized that bank accounts are not covered by either the right to information under Section 7, Article III or under the requirement of full public disclosure under Section 28, Article II. Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged to conserve the absolutely confidential nature of Philippine bank deposits.
 
Notably, the Court declared that bank accounts laws are not covered by the right to information under Article III, Section 7 and the requirement of full public disclosure under Article II, Section 28 of the Constitution, which is statutorily implemented through RA No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). 

The Constitution in fact declares that the public’s right to information is “subject to such limitations as may be provided by law.” The implied repeal of inconsistent laws that RA No. 6713 mandates cannot be interpreted as a repeal of the express substantive right granted to confidentiality under Section 8 of RA No. 6426, even if the latter was enacted earlier. Implied repeals are not favored; the presumption is against inconsistency or repugnance and, accordingly, against implied repeals.
 
The ruling in Republic v. Eugenio, to my mind, reflects the prevailing view under our jurisprudence pointing towards the retention and dominance of the absolute confidential nature of bank deposits.  In the recent case of BSB Group, Inc. v. Go (a 2010 case), the Court reiterated the importance of “financial privacy.” 

As observed by Tajan, despite the multiplication of the exceptions to bank secrecy, the Court declared that bank secrecy, which falls within the legally-recognized zones of privacy, remains the general rule and that the “present legal order is obliged to conserve the absolutely confidential nature of bank deposits.”  The Court found disfavor in construing the exceptions in a manner that authorizes unwarranted and unbridled inquiry into bank accounts.

Not a mockery

A final note. In any given jurisdiction where the right of privacy extends its scope to include an individual’s financial privacy rights and personal financial matters, there is an intermediate or heightened scrutiny given by courts and legislators to laws infringing such rights.

Should there be doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the former. This attitude persists unless congress lifts its finger to reverse the general state policy respecting the absolutely confidential nature of bank deposits.
 
The view expressed that the majority’s TRO is “a mockery of all existing laws designed to insure transparency and good governance in public service” is likewise not well taken. This view declares that “the majority ruling advises all government officials and employees that they can legally evade reporting their actual assets in their Statement of Assets, Liabilities, and Net Worth x x x by simply opening foreign currency deposit accounts with local banks.”
 
The majority makes no such ruling in granting the TRO.  The question the Court has resolved for now is whether the facts and the law justify the issuance of a TRO.  The object of a TRO, as earlier mentioned, is to simply maintain the status quo.  The TRO, to be sure, is not a ruling encouraging public officials to use foreign deposits to legally evade the correct SALN report.  To so claim is to extend the import of TRO beyond its clear objective to maintain the status quo.
 
In light of these considerations, I reiterate my vote for the grant of the petitioner’s prayer for the issuance of the TRO. – Rappler.com

(Source: http://sc.judiciary.gov.ph/)


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