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`Consuelo de bobo’

(Article published in the August 15, 2007 issue of Manila Standard Today)  
          Come the third quarter of next year, when the country submits itself to the mutual evaluation to be conducted by its co-members of the Asia Pacific Group on Money Laundering, R.A. No. 9372, or the Human Security Act, which took effect last month, will most certainly be presented to show Philippine compliance with the Financial Action Task Force’s 40 recommendations on money laundering plus 9 special recommendations on terrorist financing. 

 There will be an attempt, I am almost sure, to show that at least in the Philippines, Zachary Abuza’s observation in his work, Funding Terrorism in Southeast Asia: The financial network of Al Quaeda and Jemaah Islamiyah, published in December 2003 by the National Bureau of Asian Research, that “the mechanism for funding terrorism remain largely untouched in Southeast Asia,” needs revisiting. 

 Sections 27 to 43 of the law, which were the foci of the round-table discussion organized by the Romulo law office yesterday, undoubtedly constitute incontrovertible evidence of our attempts as attempts go, to implement Special Recommendation III.  Specifically, Sections 27 to 29 are our “measures to freeze without delay funds or other assets of terrorists, those who finance terrorism and terrorist organizations.”  And Sections 39 to 41 “enable the competent authorities to seize and confiscate property that is the proceeds of, or used in, or intended or allocated for use in, the financing of terrorism, terrorist acts or terrorist organizations.” 

The authority granted in these sections is so broad that the text itself is enough to cause terror in the hearts of bank account holders.  In fact, Senator Aquilino Pimentel, Jr., to whom the law owes its hypocritical short title of “human security act”, thinks that at least three constitutional rights are violated.  According to his press release dated July 10, 2007, the law violates “the right not to be deprived of property without due process of law, the right to equal protection of the law and the right to be presumed innocent until the contrary is proven.”
 










     

This is not to say, however, that the law does not contain its share of palliatives and placebos.  Under Section 27, the specially designated division of the Court of Appeals must be satisfied that there is “probable cause” before it authorizes the inspection of bank accounts and the gathering of information about it.  But then, the proceeding to determine “probable cause” is ex parte. In order words, behind the bank account holder’s back.

True, Section 29 provides that “the person whose bank deposits…have been examined, frozen, …by law enforcement has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference.”  But, please note, the notice is of the “acts done” when the account was “examined, frozen…” Hence, the right to be informed arises only after the “interference” has occurred.  That post factum right is thus as comforting as the right of the rape victim to complain to the police after she has been violated.

It is implied from Sections 31 to 33 that the law enforcement officers gathering information, data, excerpts, summaries, notes, memoranda, working sheets, reports and other documents may cart them away from the premises of the bank.  But the law does not impose an obligation to issue to the bank, at the time of the taking, any receipt for the items to be taken away.  Instead, Section 31 imposes on the law enforcers the obligation to deposit the same with the authorizing division of the Court of Appeals with an accompanying joint affidavit, itemizing what were taken.

However, the obligation to deposit arises only “within forty eight (48) hours after the expiration” of the period (or its extension or renewal) to examine.  Thus, if the period authorized was 30 days, and the gathering was done in Day 1, the law enforcers would have in their possession the items gathered for 29 days plus 48 hours before they are required to deliver to court the gathered items in a sealed envelop or package with a joint affidavit containing the details required by Section 32. In the meantime, the bank and the account holder are kept in the dark as to what were taken from the bank premises.

During the period that the gathered items are in the possession of the law enforcers, the latter, are, of course, prohibited from copying, removing, deleting, expunging, incinerating, shredding, or destroying the items taken and penalties are to be meted out for doing so under Section 32.  Nevertheless, under Section 33, the sealed envelope or package and the contents thereof are “deemed and are hereby declared classified information”. So how is the account holder to know? Section 36 allows the account holder access to use them as “evidence for the prosecution of any police or law enforcement personnel who maliciously procured said authorization”.  How about to prosecute for copying, etc.?

Tampering with the bank records by the law enforcers is sought to be prevented by the deposit of the sealed envelope or package with the Court of Appeals.  That notwithstanding, one cannot but feel nervous remembering the frequent occurrences of recent fires in government offices.  In this year alone, fire hit the Supreme Court’s session hall in January; the COMELEC’s headquarters in March; the Court of Appeals’ main building in July; and the Muntinlupa City Hall this month.  How safe will the bank records be at the Court of Appeals?

Finally, Section 41 guarantees a bank account holder that, in the event he is acquitted or the charges against him are dismissed, he will be paid in the concept of liquidated damages the sum of Php 500,000.00 a day for the period that his assets or funds were seized.  The law goes further and identifies the funding source, namely, the appropriations of the police or law enforcement agency that caused the filing of the charges against him.  Surely I believe that the agency will have the amount available when so ordered to pay; I was born yesterday.

No wonder Senator Pimentel says, “It is my humble submission that the law could be misused or abused by unscrupulous wielders of powers not to attain its primary objective to protect the nation from the scourge of terrorism but to terrorize the people in the guise of extirpating the crime.”

Note, though, that Senator Pimentel nevertheless voted in favor of the law.

 

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