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Feb 17

The Strategy of Sowing Discord (updated)

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The 33rd of the Thirty-Six Strategies, is a Stratagem for Desperate Situations: The Strategy of Sowing Discord.

The situation thus far, was, as the ancients might put, not propitious. While blogger The Nutbox viewed the Senate President’s decision on the Supreme Court TRO with unease, Lawyer Ted Te says the Senate President made a master stroke:

Some may call it hairsplitting but the distinction carved out by the Senate President in relation to the TRO of the Supreme Court is a master stroke of defending the Senate’s turf, i.e., the duty to “try and decide” the impeachment of Corona, while at the same time conceding to the Supreme Court the power to rule on the only matter that is now left for it to decide, i.e., to dismiss the Corona and related petitions for being moot and academic as there is nothing left for the Court to stop…

But you may ask: “Why issue the subpoena and then obey the Court’s TRO against enforcing it?”

Perhaps the Senate President was, as was everyone else (including Cuevas apparently), curious about the Corona dollars and wanted to confirm if they were there, and if they were, how Corona would react. Having heard what he needed to hear–that there are dollars–and seen what he needed to see–the almost gut-level ferocity by which Corona dragged the institution he presides over almost into the mud just to protect the information in the dollar accounts–the Senate President was content and perhaps did not need to hear and see more.

The TRO may have stopped the Senate from enforcing its subpoena but it cannot put the genie back in the bottle–the Corona dollars are there, everyone knows it now. The information may not be admissible in a court of law (but it may be in an impeachment court) but in the minds of the public, which includes the Senator-jurors (for they are representatives of their respective publics), it certainly is. And that might already be enough.

On the other hand, bLawgger SonnyPulgar.com is not impressed by the Senate President:

Enrile is tentative in his rulings. He wants to show his cold neutrality but falls contrived. Frivolous objections are sustained whereas valid ones are overruled. He appeases the prosecution by allowing preliminary questions but grovels with the defense by blocking vital stuff. When Cuevas lectures, JPE sinks in his two cents worth. He wants to impress the gallery that he has not lost the sharp mind of a litigator in his father’s primeval law firm. The search for truth is lost in the process and the proceedings become all about the presiding officer, the judges, Justice Serafin Cuevas, and the lead prosecutor, Neil Tupas.

That does not dispose of the question of the peso accounts. Justice Cuevas has already had to backtrack from a proposal he made to visit BPI with the prosecution in tow. Yesterday, February 15, the defense filed a Reiterative Motion to Quash the Subpoena of the Court to the Manager of the PSBank Katipunan Branch:

SEN. SOTTO. The counsel for Chief Justice Corona filed a Reiterative Motion to Quash the Subpoena issued by the Court to PS Bank branch Manager Ms. Annabelle Tiongson. I move that the Presiding Officer rule on the motion.

THE PRESIDING OFFICER. Well, just like what the Chair said yesterday, since the bank account deposit number is a peso account, the Chair reiterates its ruling given yesterday that our purpose here is to find out whether the respondent has not included in his SALN and assets that sprung from the accounts, the account like the one before us, the Bank of the Philippine Island. And so, it is removed from the ambit [of the] TRO given by the Supreme Court being a peso account, so therefore, it is open for examination.

Yesterday (that is, Wednesday), too, the hopes of the defense seemed to center on the question of the authenticity of the documents attached to one of the subpoenas (for the various motions, counter-motions, and rulings, see the collected impeachment documents in The Corona impeachment trial). Here was the culmination of yesterday’s proceedings, as summarized by Rappler.com:

4:00 pm: Lacson to Tiongson: Which one is fake: The form, the entries? Tiongson says “the whole thing.” Drilon now asks, kindly bring the docs on peso accounts to compare with documents from the prosecution, and cover all the data pertaining to dollar accounts. Tiongson says she can’t since the documents are in the possession of their main office already.

Enrile orders Garcia to witness stand.

4:06 pm: Session suspended as court awaits Garcia.

4:39 pm: Session resumes. PSBank president Garcia on stand. Tupas first manifests, tells court he is not acquainted with witness Tiongson.

4:41 pm: Senator-judges now asking questions to Garcia. Drilon asks Garcia to bring original signature cards to compare with those from prosecution.

Garcia however maintains, the documents are also related to dollar accounts (covered by the TRO). Enrile then asks prosecution to identify documents related to peso accounts.

Garcia then says the Annex A attached to the subpoena is about a dollar account. Enrile asks Garcia: Do you have this kind of record? He answers: There are discrepancies, not in any of our records. Enrile quizzes Garcia on the document, but the bank official, as per the presiding officer, is “vague” in his answers.

PSBank’s Garcia, after minutes of questioning by Enrile himself, says the documents are related to dollar accounts, and the document in court is spurious. They again invoke the TRO.

Drilon says it was the previous witness who brought this controversy by saying the documents are fake. He says they are testing the credibility of the witness.

Enrile then tells Garcia, cover up details about the dollar accounts, and show the peso accounts. “Hindi namin kasalanan ito, kasalanan ng bangko. Pinag-halo-halo niyo ang peso at dollar accounts,” Enrile says.

5:18 pm: Senator-judge Joker Arroyo manifests, says that if the document is a forgery, how can the court proceed with the issue? “A forgery is a forgery. It has no value.”

Enrile explains that by establishing the authenticity of the document, it will establish the credibility of the witness.

Arroyo then asks: What happens if the docs are found to be fake? Enrile says the court will determine if falsificaiton is substantial to exclude evidence, and those who faked it will be made responsible. Prosecution will also have to explain. Enrile finally orders the original specimen cards be brought to court, with safeguards for the information related to the dollar accounts.

In the morning, the President broke his silence on the impeachment proceedings (you can read an English translation, too).

As far as the impeachment proceedings are concerned, the bomb that went off was courtesy of the PSBank President himself: so far, the bank had testified on 5 accounts, but today (that is, Thursday), two more accounts came to light. See Corona had 7 time deposits and three accounts were closed on the day the Chief Justice was impeached. Here is the portion of the transcript of the proceedings (a handy site is Unofficial Transcripts), where the bank president mentioned aside from the two, there could be more:

MR. GARCIA. Your Honor, we have today, actually, a certifications on two other accounts and we would like to apologize for the two other accounts because when we earlier prepared this based on the subpoena, there was some clarification about—discussed, Your Honor, about it not including accounts that are not in the original subpoena so we did not bring ..

THE PRESIDING OFFICER. Are these peso accounts?

MR. GARCIA. Peso account, Your Honor.

THE PRESIDING OFFICER. Since you have testified on them now, I think it is proper for you to tell us what are those peso accounts?

MR. GARCIA. Your Honor, if I may.

THE PRESIDING OFFICER. Proceed.

MR. GARCIA. We have another peso account with account no. 089121021444 under the account name Renato Coronado Corona, a peso time deposit that was opened in July 23, 2010 with an opening balance of seven million three hundred and seventy thousand four hundred thirty-eight pesos and sixty-five centavos, and this was closed in September 1, 2010.

SEN. OSMEÑA. You mean it was time deposit for only three months.

MR. GARCIA. Yes, Your Honor.

THE PRESIDING OFFICER. Is that connected with any of the five accounts previously mentioned in the subpoena and already recorded in this proceeding?

MR. GARCIA. No, Your Honor.

THE PRESIDING OFFICER. So this is totally a separate account?

MR. GARCIA. Yes, Your Honor. This is not in the original subpoena but on the basis of the subsequent subpoena because it says all…

THE PRESIDING OFFICER. No, the Presiding Officer just want to be sure that that is not included in the amounts already mentioned that were connected in the five accounts.

MR. GARCIA. It was not connected, Your Honor.

THE PRESIDING OFFICER. So this is totally separate account and separate amount of money deposited in the bank.

MR. GARCIA. Yes, Your Honor.

THE PRESIDING OFFICER. Alright.

MR. GARCIA. We also have another account under Account No. 089-121023848 under the name Renato Coronado Corona, a peso time deposit with an opening date of June 29, 2011 with an opening balance of P17 million.

THE PRESIDING OFFICER. How much?

MR. GARCIA. P17 million, Your Honor, which was closed and terminated on December 12, 2011, Your Honor.

THE PRESIDING OFFICER. Is this also an account separate from those amounts related or linked with the five peso bank deposit accounts mentioned ealier.

MR. GARCIA. Yes, Your Honor.

THE PRESIDING OFFICER. This is a new amount of money deposited with a separate bank account number.

MR. GARCIA. It was a separate account with a separate account number but the source of the funds deposited we have no idea.

THE PRESIDING OFFICER. Proceed.

MR. GARCIA. In addition, Your Honor, if I may, based on the instruction. There are two other accounts but I really have no details as of the moment. I can only remember that one is—I will probably disclose it formally later and then the other one is a current account.

Incidentally, Senator Osmeña opened up an interesting line of questioning. Are dollar-denominated bonds cash, or bank accounts? The bank president said they’re cash, but his bank doesn’t offer them, although Metrobank, the parent bank of PSBank, does, which potentially opens up an inquiry into whether the Chief Justice has foreign currency denominated bond holdings (see also Raissa Robles’ Does the bank secrecy law really protect ALL of Corona’s dollars?). Here’s the Q&A on bonds:

SEN. OSMEÑA. All right. Now, Mr. Garcia, can you explain to the court the difference between a deposit in an investment account? For example, I’ll be more specific, if I, your client, ask you, the bank, to buy some ROPs for me, these are dollar denominated bonds issued by the national government, is that classified as a deposit or as an investment?

MR. GARCIA. Well, first of all, Your Honor, we will not provide that service for our clients. We refer them to our parent bank, Metrobank. The PS Bank does not engage in that kind of activities.

SEN. OSMEÑA. But would you know? I mean, being a banker yourself.

MR. GARCIA. Normally, it will not be classified as a deposit.

SEN. OSMEÑA. It would be an investment.

MR. GARCIA. Investment, yes.

SEN. OSMEÑA. And if you were to—Would you also handle investments for you client like he would direct you to buy some corporate banks, PLDT bonds, ABS-CBN bonds, San Miguel bonds? That would also be classified as an investment?

MR. GARCIA. That I know would be classified as an investment but the bank per se does not really provide that service because we …

SEN. OSMEÑA. With PS Bank per se?

MR. GARCIA. PS Bank. We just refer …

SEN. OSMEÑA. But you will be the next president of Metrobank, so …

MR. GARCIA. No, Sir. I have written to my superiors, and I have told them that on the basis of that news report, I already specifically said that if ever it is offered I would decline it, because I do not want my people to feel they’re being abandoned during this time and secondly, I do not want the sincerity of our interest to protect our employees and depositors and the entire banking industry to be misinterpreted. So, I will not and never accept.

SEN. OSMEÑA. And your employees will stick by you more than ever now because of that kind of loyalty to them, Mr. Garcia.

Mr. Garcia, going back to my question, with an investment account, vis a vis a deposit account, be considered as covered by the foreign currency deposit unit law? That FCD law pertains to deposits, hindi ba?

MR. GARCIA. Yes, Your Honor.

SEN. OSMEÑA. You just said that any managed accounts that is invested ,say, in ROPs in Philippine bonds denominated in US dollars, or other types of foreign instruments denominated in foreign currency would then not be subject—would not be termed a deposit as covered by the FCDU, and therefore, any such accounts should be open to this court.

MR. GARCIA. I cannot, right now, categorically state, Your Honor, but if I can draw, I draw from the peso side. The investment in government bonds is classified as deposits for the peso, so perhaps, likewise, in forex to the dollars would similarly be the same.

So, I am not absolutely certain about that.

Then, the defense managed to derail the proceedings through the strategy of sowing discord. Mon Casiple has some interesting things to say about this strategy.But the Senate President got things back on track with an interesting admission by the bank president: Garcia admitted that there are “authentic details” in the prosecution’s documents but “there are differences”:

THE PRESIDING OFFICER. All right. Then how can you explain that there are now claims that some documents, almost a replica of documents in your bank are in the hands of strangers?

MR. GARCIA. We cannot explain that, Your Honor.

THE PRESIDING OFFICER. Unexplainable.

MR. GARCIA. We cannot explain that but …

THE PRESIDING OFFICER. You cannot, in anyway, conceive that it would happen?

MR. GARCIA. Based on what we—we have to verify, Your Honor, and annex documents, there are discrepancies that we can note.

THE PRESIDING OFFICER. Correct, but those discrepancies are simply, as you described them, discrepancies, but the rest, removing the discrepancies, are not discrepancies, they are authentic reproduction of the documents in your possession. Correct?

MR. GARCIA. The information is authentic, Your Honor, but within the annex A and the regional, the way some of that information is indicated is different.

THE PRESIDING OFFICER. Correct, but only to the extent that they were indicated, but those same information would be in the document in the possession of the bank.

MR. GARCIA. Yes, Your Honor.

THE PRESIDING OFFICER. How would anybody know those information, although, they were not properly indicated, according to your bank procedures in a document– in the hands of other people?

MR. GARCIA. I would have no idea, Your Honor.

THE PRESIDING OFFICER. No explanation.

MR. GARCIA. No explanation.

The Senate President seemed irked by this answer. But the conclusion: the so-called “fake” bank documents are genuine, after all. Now the Senate President, from the line of question he seems intent on resuming on Monday, wants to get to the bottom of who in the bank leaked the documents –and when, and how, and to whom. The Senate President seems to have a hunch that the eventual culprit will prove to be a bank employee. So one defense argument –that the xeroxed documents are fake– has been disproven. Their other argument, that even if genuine, they would be inadmissible, may be on shaky ground as well.

bLawgger Article VIII Jester points out, however, the bank documents in question under the name of Chief Justice Renato Corona are admissible in evidence regardless of how they were obtained by the Prosecution. Even ahead of today’d admission by the bank president, Article VIII Jester had already pointed out:

However, as we have gathered from the testimonies of said PSBank witnesses thus far, the alleged discrepancies or falsities in the bank documents in question appear to be only on minor points (e.g., underlining and highlighting) that do not in any way affect or alter the material and/or substantive contents of said documents (e.g., account name, account number, monetary values and relevant dates).

Thus, it can be reasonably inferred that the bank documents in question cannot possibly be considered fake or falsified documents considering that:

a. There was no imitation of any handwriting or signature in the documents in question;

b. It was not caused to appear that persons have participated in any act when they did not in fact so participate;

c. There was no attribution of statements to any person other than those in fact made by them;

d. No untruthful statements were made;

e. No true dates were altered; and

f. No alterations or intercalations were made that changed the meaning of the documents in question.

To prove this point, take the instance when the original bank documents are or will be photocopied after the entries and information relative to dollar accounts have been redacted pursuant to the order of the Impeachment Court. In such a situation, although the photocopy will not strictly be a faithful reproduction of the original/unredacted bank documents (since the photocopy would already bear the redactions), said photocopy cannot possibly be considered fake or falsified since the material and/or substantive contents thereof are true, unaltered and undisturbed.

As such, the photocopies of the redacted originals may be admitted in evidence for purposes of proving Corona’s peso accounts with PSBank.

And that was precisely the point of the Senate President’s rather irked-sounding interrogation of the bank president today. On Monday, there will be a caucus and more questions concerning the provenance of the bank documents.

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