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Feb 07

An expert witness and postponement of a decision

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Political cartoon by William Hone, August, 1820, as reproduced in the blog Yesterday’s Papers.

So yesterday’s proceedings began with what should have happened long ago –a bonus for the prosecution, courtesy of the defense! BIR Commissioner Kim Henares was called back to the witness stand, and upon a line of questioning introduced by defense counsel Justice Cuevas, opened up the qualification of the BIR Commissioner as an expert witness. This is what happened:

JUSTICE CUEVAS: Witness examining the documents shown to him by the private prosecutor, Your Honor.

MS. HENARES: Yes, Sir. It seems to be the same document, Sir.

JUSTICE CUEVAS: It seems to be.

THE PRESIDING OFFICER: The same document to what?

MS. HENARES: To the SALN that was given to me by the media person that was marked supposedly as exhibits.

THE PRESIDING OFFICER: Given to you by …

MS. HENARES: One of the media person, when they tried to interview me.

THE PRESIDING OFFICER: Why the Bureau of Internal Revenue does not have any—a copy of the SALN?

MS. HENARES: Sir, the National Internal Revenue will only have—the Bureau of Internal Revenue will only have a copy of SALN when we request from the custodian of the SALN.

THE PRESIDING OFFICER: So, you did not have the SALN before it was given to you by the media?

MS. HENARES: Yes, Sir. No, Sir.

THE PRESIDING OFFICER: So, proceed.

ATTY. LIM: Thank you, Your Honor.

THE PRESIDING OFFICER: What SALN—these SALNs are for what year?

ATTY. LIM: From 2002 up to 2010, when he was already a member of the high court, Your Honor.

THE PRESIDING OFFICER: 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010.

ATTY. LIM: Thank you, Your Honor. Yes, Your Honor.

JUSTICE CUEVAS: Of the Chief Justice?

ATTY. LIM: Of the Chief Justice Renato Corona.

JUSTICE CUEVAS: Thank you, because he is being blamed for allegedly—he is being faulted for allegedly not filing his SALN. It now appears that the 2000 …

THE PRESIDING OFFICER: So the Chief Justice filed for those years?

JUSTICE CUEVAS: Yes, for those years …

ATTY. LIM: As exhibits …

THE PRESIDING OFFICER: No, no, the court would like to know …

ATTY. LIM: Yes, Your Honor.

THE PRESIDING OFFICER: Those are SALN of the Chief Justice for those years mentioned.

ATTY. LIM: But tainted by …

THE PRESIDING OFFICER: No, for this, just answer the question.

ATTY. LIM: Yes, Your Honor.

THE PRESIDING OFFICER: So, what is your comment?

ATTY. LIM: Tainted by violations, as to accuracy, truthfulness, untimeliness.

THE PRESIDING OFFICER: That is your opinion.

ATTY. LIM: Well, Your Honor, I was just …

THE PRESIDING OFFICER: You have not shown yet they are inaccurate. So, I am just asking a factual statement from you. Those are SALN for the Chief Justice for the years mentioned.

ATTY. LIM: Yes, …

THE PRESIDING OFFICER: Those are facts.

ATTY. LIM: Yes, Your Honor.

THE PRESIDING OFFICER: Okay.

ATTY. LIM: May I proceed, Your Honor. I invite your attention, once again, Madam Witness, to this SALN which you already identified and previously marked as exhibits A up to N-1, inclusive, what were the discrepancies you noticed or noted in this SALN?

JUSTICE CUEVAS: Objection.

THE PRESIDING OFFICER: Wait a minute. I think—is this witness competent to testify on those discrepancies?

ATTY. LIM: Yes, Your Honor, because the defense …

THE PRESIDING OFFICER: Why? Why?

ATTY. LIM: The defense, no less …

THE PRESIDING OFFICER: No, no, why?

ATTY. LIM: Because the …

THE PRESIDING OFFICER: Is she competent?

ATTY. LIM: She is filing her own SALN. The defense qualified her as an expert witness. You can therefore …

THE PRESIDING OFFICER: Counsel, you did not qualify this as an expert witness. There is a procedure to qualify a person as an expert witness. Please …

ATTY. LIM: I am fully aware of that.

THE PRESIDING OFFICER: Please do so. You are directed to qualify her as an expert witness.

ATTY. LIM: Thank you, Your Honor. Madam Witness, how long have you been in the government service?

MS. HENARES: This …

JUSTICE CUEVAS: This is no longer redirect, Your Honor. The coverage of redirect, Your Honor, are only matters taken up in the cross. We have never …

ATTY. LIM: I am complying. That is …

JUSTICE CUEVAS: We asked the witness very categorically well, whether she is testifying solely on the basis of the document.

THE PRESIDING OFFICER: Actually, actually, may I suggest, Mr. Counsel for the prosecution, produce evidence aliunde to prove the discrepancies.

ATTY. LIM: Your Honor please, just one brief manifestation…

THE PRESIDING OFFICER: No, no. I am suggesting this to you. That is the procedure.

ATTY. LIM: Yes, Your Honor, but may I also be allowed to respectfully point out, Your Honor, the conclusive presumption under Section 2, Rule 131 of the Rules of Court, which applies suppletorily and which is the applicable provision in the absence of a similar rule in the Senate impeachment rules.

THE PRESIDING OFFICER: What is the presumption?

ATTY. LIM: The conclusive presumption is, whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true and to rely upon such belief, he cannot, in any litigation, arising out of such declaration, act or omission, be permitted to falsify it. Hindi po kami ang nag-qualify sa witness po. Defense counsel ang nagtanong sa ating testigo kung ano-ano ang mga discrepancies nakita sa SALN ni Chief Justice Corona. Seryoso pong pagtatanong iyon.

JUSTICE CUEVAS: Yes.

ATTY. LIM: Hindi natin masabi na nagbibiro lang iyong si Justice Cuevas.

JUSTICE CUEVAS: Yes, that is correct.

ATTY. LIM: Ngayon po, bakit nating pigilan, and I say this with all due respect, bakit pipigilan ng defense ang katotohanan na lilitaw dito. Tinanong nila ang witness.

THE PRESIDING OFFICER: Let the witness answer.

ATTY. LIM: Thank you, Your Honor.

MS. HENARES: For year 2002, there are nine properties that were not reported in his SALN. Discrepancies … then for year 2003, the SALN did not show also the nine properties from Marikina and the property in La Vista, instead of P3 million should have appeared as P11 million; the other property TCT N-35812 which was reported at P821,080.00 should have been reported at acquisition cost of P2.508. And, therefore, his networth is understated because the networth he reported was P7 million when it should actually be P14 million, not including the Marikina property which were not reported. Now, for year 2004, again the same discrepancy, the property in Marikina; there is another property in Diliman, Quezon City, TCT No. 141891 that was not included in the SALN; the condominium certificate title for the Columns of P3.589; or a total of P27,235,000.00. Or his networth should actually be P21,065,000.00 whereas it was report at 7. something. For year 2005, again the discrepancies that I mentioned, then there is the Fort Bonifacio property that should have been reported on this year; and then the networth that he showed is P8.3 million whereas it should be P31.224, 940, that is for year 2006. For year 2007, same thing; it should have a networth of P24,735.000.00 whereas it only showed a networth of P11 million. For 2008, his networth is the same, there are discrepancies there. The networth should be around P25 million, instead it is P12 million. Then for 2009, the networth should actually be P52 million because of the property in Bellagio I and instead the reported net worth is only P14.5 and for 2010 that is where the net worth went down but this is because of the La Vista sale of P18 million. So that is based on our own analysis because we used the net worth method in assessing tax deficiency against taxpayers.

JUSTICE CUEVAS: With the indulgence of the honorable court…

THE PRESIDING OFFICER: Have you issued a tax deficiency assessment?

MS. HENARES: We have just issued a letter of authority to audit them based on this finding so we are investigating him further.

THE PRESIDING OFFICER: For year 2000…

MS. HENARES: For 1997 all the way up to…

THE PRESIDING OFFICER: Year by year.

MS. HENARES: Yes.

THE PRESIDING OFFICER: For purposes of deficiency assessment.

MS. HENARES: Yes, sir. We are auditing his taxable year 1997.

THE PRESIDING OFFICER: Now, the discrepancy that you mentioned refers to the non-inclusion of the real estate mentioned in this proceeding as belonging to the Chief Justice, the respondent, or only with respect to the values?

MS. HENARES: Sir, the amount we are mentioning does not even…

THE PRESIDING OFFICER: Only with respect to the values?

MS. HENARES: Yes, sir, not including the one that are not included.

THE PRESIDING OFFICER: Alright. But the RES, meaning R-E-S, the RES, the thing, was included in the SALN?

MS. HENARES: No, sir, there are some that were not included.

THE PRESIDING OFFICER: And there were some that were not…

MS. HENARES: Included in the SALN.

THE PRESIDING OFFICER: And there were some that were included but the values are different.

MS. HENARES: Yes, sir.

THE PRESIDING OFFICER: Alright.

JUSTICE CUEVAS: With the kind permission of the honorable court…

THE PRESIDING OFFICER: The counsel for the defense.

JUSTICE CUEVAS: We are compelled to move for the striking out of the testimony of the witness on all those points, Your Honor. Because if we have to examine the Articles of Impeachment, there is nothing mentioned in there upon which they can predicate this kind of evidence, Your Honor. He is not being impeached for filing a, what we call, forced declaration and this is not one of the grounds for impeachment, Your Honor.

THE PRESIDING OFFICER: Counsel for the defense, I am sure that, you know, you can traverse that in your evidence…

JUSTICE CUEVAS: We will but we wanted to raise a point, Your Honor, that this kind of evidence should not find…

THE PRESIDING OFFICER: Anyway, let it be a part of the testimony of the witness.

JUSTICE CUEVAS: Okay. Admitted, Your Honor.

As an expert witness –chief interpreter of our tax laws– It was later in the afternoon that the most important action of the court was announced: its ruling on the motions to subpoena bank documents. In my last entry I pointed out this could end up the “second envelope” moment of the trial. The court passed this important test with a vote in favor of issuing a subpoena to summon the production of bank documents, subject to some limitations:

THE PRESIDING OFFICER: Trial suspended. (Gavel)

It was 3:25 p.m.

The trial is resumed at 5:23 p.m.

THE PRESIDING OFFICER: Trial is resumed. Majority Floor Leader.

SEN. SOTTO: Mr. President, we have pending matters. As a matter of fact, number one on the list is the request for a subpoena by the prosecution panel.

THE PRESIDING OFFICER: That is correct and the Senate has resolved the issue and has returned a resolution of this particular issue and I am now directing the Majority Floor Leader to read the resolution of the court disposing this issue. So ordered.

SEN. SOTTO: Shall I read the entire resolution, Mr. President?

THE PRESIDING OFFICER: Yes, in total.

SEN. SOTTO: Resolution. This resolves the twin request for issuance of subpoena both dated January 31, 2012 filed by the House of Representatives. On January 31, 2012, the House of Representatives, through its prosecutors, filed a request for issuance of subpoena seeking to require the president, manager and/or other authorized officers of Philippine Savings Bank (PS Bank) to testify and produce before the court the original and certified true copies of the following documents:

a. Customer identification specimen signature card of the bank account under the name Renato Corona which won P1 million in the PS Bank monthly millions raffle promo as listed in the official list of winners as of March 13, 2008;

b. Monthly bank statements from the time of opening to January 2012 of the bank accounts under the name Renato Corona which won P1 million in the PS Bank monthly million raffle promo as listed in the official list of winners as of March 13, 2008;

c. Other bank accounts including time deposits, money market placements, peso/dollar accounts and the like that are in the name of Renato Corona and/or Christina Corona.

On the same date, the prosecution filed another request for issuance of subpoena seeking to require the manager of the Bank of the Philippine Islands (BPI) to testify and to produce before this court the original and certified true copies of the account opening form, monthly bank statements for January 2005 to December 2010 and December 2011 of Bank Account No. 1443-8030-61 in the name of Renato C. Corona which was referred to in Exhibits VVV and VVV-1 and such other accounts that are in the name of Renato Corona and/or Christina Corona.

The defense opposed both requests through its opposition to the request for issuance of subpoena, PS Bank and opposition to the request for issuance of subpoena both dated January 31, 2012 which had both filed on February 1, 2012. The prosecution filed a reply dated 2 February to the two oppositions to the request of issuance of subpoena.

On February 3, 2012, the prosecution filed its supplemental request for subpoena reply designating bearing the particular bank accounts in PS Bank which the Chief Justice allegedly has. For its part, the defense filed a consolidated opposition and rejoinder.

The court resolves to grant the issuance of the subpoena but sets specific limits to the same in determining whether the production of the documents described in a subpoena duces tecum should be enforced by the court. It is proper to consider: First, whether the subpoena calls for the production of specific proof, and secondly, whether the proof is prima facie sufficiently relevant to justify enforcing its production. A general inquisitorial examination of all books, papers and documents of an adversary conducted with a view to ascertain whether something of value may show up will not be enforced.

It is jurisprudentially accepted rule in this jurisdiction that in order to entitle a party to the issuance of a subpoena duces tecum, it must appear by clear and unequivocal proof that the book or document sought to be produced contains evidence relevant and material to the issue before the court, and that the precise book, paper or document containing such evidence has been so designated or described that it may be identified.

After an examination of the documents sought to be produced in both requests, this court is of the strong view that the production of documents pertaining to the bank accounts of Chief Justice Renato Corona should be closely related to the filing of his Statement of Assets, Liabilities and Net Worth, inasmuch as the funds in said bank accounts may be considered as his personal properties which are required to be properly and truthfully declared in the SALN.

The court takes due notice of the fact that the date of the SALNs of the Chief Justice are all dated as of the 31st day of December of the years 2002 to 2010. Thus, it is reasonable to issue the subpoena for the production of bank records as of the 31st of December for the years requested.

The court had to consider whether or not the issuance of the subpoena with violate existing laws on secrecy of bank deposits. Under Republic Act 1405, as amended, and the Anti-Money Laundering Act with disclosure of information relating to bank accounts in local currency cannot be made except in five instances, namely: 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 official, or 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.

However, it appears that for foreign currency bank accounts, the disclosure may be made only upon written permission of the depositor, pursuant to Section 8 of Republic Act No. 6426

However, the court has taken due notice of the fact that the Supreme Court, has in several decisions, relaxed the rule on the absolute confidential nature of bank deposits, even foreign currency deposit accounts. In the cases of Salvacion vs. The Central Bank of the Philippines, GR No. 94723, August 21, 1997, and China Banking Corporation vs. Court of Appeals, GR No. 140687, December 18, 2006, and Ejercito vs. Sandiganbayan, GR No. 157294-95, November 30, 2006.

The Majority is of the view that the present impeachment proceedings present a valid exception to the general rule on confidentiality of information on bank accounts, even for foreign currency bank accounts.

The court would like to emphasize that the non-disclosure of information relating to the bank accounts of individuals is still the general rule and it has no intention of going against the public policy on this matter.

However, the court is only issuing the subpoena relating to the bank accounts of Chief Justice Corona because of the pendency of the present impeachment proceedings and for no other reason.

Wherefore, in view of the foregoing, the Majority votes to grant the prosecution’s request for subpoena to the responsible officers of the Philippine Savings Bank, and the Bank of the Philippine Islands, for them to testify and bring and/or produce before the court, documents on the alleged bank accounts of Chief Justice Corona, only for the purpose of the instant impeachment proceedings as follows: A. The branch manager of the Bank of the Philippine Islands, Ayala Avenue Branch, Explore SGV Building, 6758 Ayala Avenue, Makati City, is commanded to bring before the Senate, at 2:00 p.m., on February 8, 2012, the original and certified true copies of the account opening forms, documents, for Bank Account No. 1445-8030-61, in the name of Renato C. Corona, and the bank statements showing the balances of the said account as of December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009, and December 31, 2010.

B. The branch manager and/or authorized representatives of Philippine Savings Bank, Katipunan Branch, Katipunan Avenue, Loyola Heights, Quezon City, is commanded to bring before the Senate, at 2:00 p.m. on February 8, 2008, the original and certified true copies of the account opening forms, documents, for the following bank accounts, allegedly in the name of Renato C. Corona, and the documents showing the balances of said accounts as of December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010, 089-19100037-3, 089-13100282-6, 089-121017358, 089-121019593, 089-121020122, 089-121021681, 089141-00712-9, 089141-00746-9, 08914100814-5 and 089-121-01195-7. So Ordered. 6 February 2012.” Signed Presiding Officer Juan Ponce Enrile.

This was followed by the defense making a manifestation:

THE PRESIDING OFFICER: What is the pleasure of the defense counsel?

JUSTICE CUEVAS: Thank you, Your Honor. I would like to announce on record, Your Honor, that we are seeking a reconsideration of the aforesaid ruling in the light of the jurisprudence, more recent jurisprudence on the point dealing with the issues discussed in this case, Your Honor. If the court so allows, I am prepared to argue our point, Your Honor. But if the court pleases, we may file a written motion for reconsideration Your Honor. As of this moment, I just would like to touch on one important point, Your Honor.

THE PRESIDING OFFICER: Proceed.

JUSTICE CUEVAS: And that is, the case of Ejercito vs. Sandiganbayan. Your Honor, was cited as an authority for the resolution of this honorable court, Your Honor. There were several documents required by the Sandiganbayan to be produced by Mr. Ejercito. One of the grounds is that, for refusing or motion to quash rather the subpoena was that, he is not involved in the plunder case before the honorable Sandiganbayan. But the more important thing is this, Your Honor. What is the difference of the setting, factual setting, of that case with the present case? The ERAP case, Your Honor, is a plunder case. And the main allegation in that plunder case is that the accused, President ERAP, committed acts constitutive of plunder resulting in the amassing of ill-gotten wealth, Your Honor. So, the issue of ill-gotten wealth was principally and categorically raised, Your Honor, in the proceedings, Your Honor. This case is not a criminal case, Your Honor. It is an impeachment case, Your Honor. Now, there are provisions in the Bank Secrecy Law that in cases of 1405, Your Honor, impeachment is an exception. What does that mean? That when the case involves impeachment, then the privacy of bank deposit may no longer be invoked. That is correct, Your Honor. And we agree with that a hundred percent. But it must be shown that the impeachment case has something to do with the alleged deposits, Your Honor. If the bank deposits has nothing to do with the impeachment case, Your Honor, the mere fact that it is involved in the impeachment proceedings does not justify any court of justice to rule against the privacy, Your Honor. The issue is, is it enough that the cases on impeachment is an impeachment case in order that the exemption may be claimed, Your Honor?. Our answer is no simply because the case is an impeachment case. But the subject matter thereof is not in connection with this impeachment case, Your Honor. For instance, certain documents, Your Honor, such as checks were issued and negotiated in an impeachment case. But they have nothing to do with the issue involved in the impeachment case. It is not a case of unlawful exercise of the right to issue bank checks, Your Honor, neither is it involved in the issue, principally involved in the impeachment case. In that case, the exemption holds water. The privacy of the bank deposit may not be inquired into. I just wanted to emphasize the point that the nature of the proceedings is not conclusive as to debar a bank depositor from claiming the privilege under the bank … If we will be given the opportunity, Your Honor, we will submit our motion for reconsideration. I just went that far in order to show to the honorable court our interest in the ruling made in today’s proceedings, Your Honor.

SEN. ESCUDERO: Mr. President.

THE PRESIDING OFFICER: In the view of this Chair, Mr. Defense Counsel, it is the right of any person, party to a case like this to explore all legal remedies.

JUSTICE CUEVAS: Thank you, Your Honor.

Interviewed on TV, Senator Sergio Osmeña III said that what the Senate had done was postpone an inevitable collision on the question of the bank documents. See Osmeña sees more fireworks over CJ bank records:

Sen. Sergio Osmeña III said the Senate had to decide on whether or not it would grant the House prosecutors’ request for several alleged peso and dollar accounts of the chief justice.

Osmeña said the majority decided to grant the subpoenas since the Supreme Court made exceptions to the Bank Secrecy Law in 3 different cases.

He said the court also ordered the banks to give the year-end balances of Corona’s bank accounts “since the law states that you must declare your assets and liabilities as of December 31st.”

The senator said he proposed that the banks submit a monthly report to reflect the actual movement in Corona’s accounts but he was outvoted.

Asked how he would assess the bank records, he said: “Pag nakita ko may P100 million diyan, you did not declare this in your SALN. There’s some subjectivity there because suppose it’s only P1 million e di sasabihin ng tao that’s not much. The difference between P23 million to P24 million, so what.”

“But if it’s P30 million or P40 million wala sa SALN, then you would find more serious reason to doubt whether he really deliberately liked to fudge his SALN,” he said.

The senator-judge said the Senate only granted the subpoenas for accounts named in the prosecutors’ request. These include an account that prosecutors claimed had an initial deposit of “$700K”, which it interpreted to be $700,000 (around P38 million in October 2008).

He said that while the Senate granted the subpoenas, the impeachment court had yet to decide on whether it will allow the records to be presented as evidence.

“That is when the big fight will come in. Right now, we are just identifying and marking it but it doesn’t mean that the prosecution has already offered it [as] evidence because the moment they do, of course the defense will stand up and challenge that. Dun magkakaroon ng bakbakan ulit,” he said.

So the moment of truth has been postponed, It’s well to consider, at this point, that the points being made on the uestion of bank documents is very similar to discussions that took place during the Estrada impeachment trial: see Pertinent Points from “A Nation on Fire” by Francisco S. Tatad and transcript of the Estrada Impeachment. Another case that is being discussed in legal circles, involves the impeachment of a Federal Judge in the United States. See Corona’s Impeachment: The Failure to Disclose Assets by Edsel Tupaz:

As the impeachment trial against Corona unfolds, it is increasingly apparent that the Philippine Senate, sitting as the impeachment court, has been searching for adequate standards for a conviction or acquittal. Can an impeachable offense be proven under substantial evidence, preponderance of evidence, clear or convincing evidence, or proof beyond reasonable doubt? Moreover, does a misdeclaration of one’s SALN — a mandatory requirement under Section 7 of the Philippine Anti-Graft and Corrupt Practices Act and general civil service laws — reach the level of an impeachable offense and qualify as a “betrayal of public trust” or a “culpable violation of the Constitution?” On the eleventh day of the impeachment trial a number of Senators expressed their various opinions in open court that the answer seems to be a “No.” Worse, upon the presiding officer’s questioning of one of the House prosecutors, the latter admitted that an inaccurate SALN, though such could amount to a crime of perjury, still does not rise to the level of a “high crime” within the meaning of impeachable offenses under the Philippine Constitution.

As Philippine constitutional practice, especially impeachment practice, echoes its American progenitor, one may find it useful to turn to cases of impeachment involving federal and state judges and justices. The case of Judge Harry Claiborne of the US District Court for the District of Nevada may be relevant, if not persuasive, of conviction under Article 2 of the articles of impeachment against Corona. Claiborne was convicted of falsifying his income tax returns. Four articles of impeachment were passed unanimously by the US House of Representatives on July 22, 1986, and the Senate received those articles on August 6, 1986. Claiborne was tried by the Senate and was successfully convicted on two counts of tax evasion and one count of betrayal of the public trust and bringing disrepute to the judiciary through the falsification of tax returns.

The bank officials and documents subpoenaed will make their appearance on Wednesday. Let’s see how that turns out. Meanwhile, Senator Miriam Defensor-Santiago has filed a Motion for Reconsideration, appealing the ruling of the chair on the bank accounts.

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