prosecution's compliance explanation re: "fake" or "forged" documents

8/3/2019 Prosecution's Compliance Explanation Re: "Fake" or "Forged" Documents

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REPUBLIC OF THE PHILIPPINES

CONGRESS OF THE PHILIPPINES

SENATE

SITTING AS THE IMPEACHMENT COURT

IN THE MATTER OF THE

IMPEACHMENT OF RENATO C.

CORONA AS CHIEF JUSTICE OF THE

SUPREME COURT OF THE

PHILIPPINES,

REPRESENTATIVES NIH C. TUPAS,

JR., JOSEPH EMILIO A. ABAYA,

LORENZO R. TANADA, III,

REYNALDO V. UMALI, ARLENE J.

BAG-AO, et al.,

Complainants.

'17 FEB14 P7:11

CASE NO. 002-2011

x -------------------------------------------------------------------------------------------------------- x

COMPLIANCE

(Re: Annexes A to A-4 of the

Supplemental Request fo r Subpoenae/ReplyDated 3 February 2012)

The HOUSE OF REPRESENTATIVES, through its PROSECUTORS, respectfully

states:

1. At the 13 February 2012 hearing, the prosecution was ordered by the

Honorable Presiding Officer to submit an explanation within twenty-four (24)

hours regarding Annexes A to A-4 of the prosecution's Supplemental Request for

Subpoenae/Reply dated 3 February 2012, in light of the statements made by



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witness Annabelle Tiongson (PSBank Branch Manager) that said documents

appear to be "fake" or "forged."

2. First off, after the order to explain had been given, Ms. Tiongson

clarified that she cannot confirm or deny the existence/authenticity of Annexes A

to A-4 because these documents have information on dollar accounts which are

covered by the Temporary Restraining Order (TRO) issued by the Supreme Court.1

Similarly, during the questioning of Ms. Tiongson by the Honorable Senator-Judge

Francis Escudero, her legal counsel said that Ms. Tiongson cannot confirm or deny

whether Annexes A to A-4 are the "exact replica" of PSBank documents, because

of her belief that it would be akin to disclosing information on the dollar accounts

therein.2

3. Thus, as things now stand, it is far from clear whether Ms. Tiongson

actually meant to say that Annexes A to A-4 are "fake" or "forged" documents. It

now appears that she merely refuses to confirm or deny the authenticity of the

documents because of her belief that to do so would lead to the disclosure of

information on dollar accounts.

4. In fact, when PS Bank President Pascual Garcia testified last February

9, 2012, he never declared that Annexes A to A-4 were outright false documents

or not documents of the bank, but merely mentioned that there were

"discrepancies" or "differences" when compared to the originals (which have not

yet been brought to court).

1 These are based on the notes taken during the 13 February 2012 hearing, considering that the transcript/record

of said hearing is not yet available to the undersigned as of the time of the writing of this Compliance.

'Id.



3

5. Indeed, it would be difficult, if not impossible, to verify the

authenticity of Annexes A to A-4 unless PSBank will be ordered to produce for

inspection all the opening documents (including Customer Identification and

Specimen Signature Cards) fo r all of the respondent's accounts (peso and dollar)

with PSBank. Only then will the Honorable Impeachment Court be able to

determine whether Annexes A to A-4 correspond to the documents on record

with PSBank. Only then will the Honorable Impeachment Court be able to make a

comparison by which to determine if Annexes A to A-4 are photocopies or

reproductions of originals existing in the records of PS Bank. Fittingly, the

Honorable Senate President already ordered Ms. Tiongson last February 13, 2012

to bring the originals of Annexes A to A-4 or documents of similar nature in the

possession of the bank for the examination of this Court fo r the purpose of

comparing them with the attachments to the Supplemental Request.

6. It must be noted that ten (10) accounts identified in Annexes A to A-4

were confirmed to be existing by no less than PSBank President Pascual Garcia.

Even the defense effectively admitted the existence of the dollar accounts by

undertaking to open them "in due time." This confirmation tends to show that

Annexes A to A-4 are seemingly and reasonably authentic, with all due respect to

this Honorable Impeachment Court and the Defense Panel, we submit that to

resolve this issue once and fo r all and in order to arrive at the truth, the "due

time" to present the document at issue is now.

7. The Honorable Impeachment Court cannot just rely on statements by

PSBank officers about the authenticity of the Annexes A to A-4, without actual



4

documents to back up those statements. PSBank officers have a natural motive

to deny the authenticity of Annexes A to A-4, because they would want to avoid

potential liability fo r the possible leakage of their bank records. There has to be

an actual production of the original records of PSBank pertaining to all the peso

and dollar accounts of respondent (with proof that the integrity of such records

has been maintained), so that a proper comparison and verification can be made.

8. At any rate, the undersigned submitted Annexes A to A-4 in good

faith. The documents were provided by an anonymous source to the prosecution,

and the prosecution felt that it was its duty to submit said documents to the

Honorable Impeachment Court fo r consideration in relation to the (then) pending

request for subpoenae to PSBank. At that time, it appears that the documents or

information about them have already been circulating in the media. With candor,

the prosecution even stated that it could not vouch for the authenticity of said

documents. As stated in the prosecution's Supplemental Request for

Subpoenae/Reply:

"10. Recently, an anonymous source provided theprosecution with photocopies of what appears to be PSBank

documents. These documents (copies attached as Annexes A to A-4)

contain the following details:

xxx xxx xxx

"11. Moreover, it seems that the media itself also has

information, if not documents, pertaining to these PSBank accounts.

See, for instance, the newspaper articles of Mr. Jake Macasaet inAbante (Annex B) and of Mr. Conrado R. Banal III in the Philippine

Daily Inquirer (Annex C).

"12. While it cannot vouch for the authenticity of the said

documents, the prosecution believes that it is its duty to submit the



5

documents to this Honorable Impeachment Court, as they may have

a bearing on the Court's resolution of the pending request for

subpoena. The Honorable Presiding Senator-Judge stated during the

hearing yesterday, 2 February 2012, that the prosecution should

specify the bank accounts sought to be subpoenaed. The documentssubmitted herewith indicate specific accounts which appear to be in

the name of respondent."

9. Despite full disclosure of all the circumstances surrounding the

documents (including the fact that the documents came from an anonymous

source and the Prosecution declaring at the outset that it could not vouch for

their authenticity), the Honorable Impeachment Court, knowing full well these

circumstances, issued the subpoena after having discussed the matter at length in

a caucus. This indicates that the legality of the basis of the subpoena was

discussed and weighed by the Honorable Court itself and all of its Senator-Judges,

and it was determined that there was no violation of any law or any rule of

procedure in both the request and issuance of the subpoena. Notably, and to

reiterate, ten (10) bank accounts indicated in Annexes A to A-4 have been

confirmed to be existing by the PSBank President Pascual Garcia. This indicates

that the documents, or at least the information contained therein, were not

baseless, and it cannot be denied that they have heretofore assisted in

uncovering the truth.

10. As to the possibility of violation of the confidentiality of bank

depOSits, the Honorable Impeachment Court has ruled (Resolution dated 6

February 2012) that such confidentiality does not apply to the instant

impeachment proceedings and has granted the prosecution's request for issuance

of subpoenae. According to the Resolution dated 6 February 2012, "the majority



6

is of the view that the present impeachment proceedings present a valid

exception to the general rule on confidentiality of information on bank accounts

evenfor

foreign currency bank accounts" (page 5). This ruling hasnot

been

reversed or modified. Even though the Honorable Impeachment Court ruled

yesterday to abide by the TRO issued by the Supreme Court (insofar as the dollar

accounts are concerned), the Honorable Impeachment Court did not reverse or

modify its Resolution dated 6 February 2012, and even said it will vigorously

defend such ruling in the Supreme Court proceedings. Moreover, if the

documents are later on found not to be authentic bank records, then there can be

no liability for violation of confidentiality, because no official bank record could

then be said to have been disclosed.

11. Under the law, bank accounts may be inquired into in impeachment

proceedings (as confirmed and sustained in this Honorable Impeachment Court's

6 February 2012 Resolution). But to inquire into respondent's bank accounts, the

prosecution was directed during the February 2, 2012 hearing to specify the said

bank accounts. Faced with this predicament, the prosecution felt the need to

submit the subject documents (Annexes A to A-4) because they contain

information about the specific bank accounts of respondent. The information was

later on confirmed, when PSBank President Pascual Garcia admitted the existence

of the said bank accounts. Even the defense effectively admitted the existence of

the bank accounts with their undertaking to open them "in due time."

12. In any event, even assuming fo r the sake of argument that there was

a possible violation of the confidentiality of bank accounts, it would not warrant



7

the exclusion or non-admission of evidence in relation to the bank accounts.

Neither R.A. 1405 nor RA 6426 provides fo r any exclusionary rule. In the case of

Ejercitov.

Sandiganbayan (G.R. Nos. 157294-95, November 30, 2006), the

Supreme Court rejected the contention of the petitioner therein "that the

information about his bank accounts were acquired illegally, hence, it may not be

lawfully used to facilitate a subsequent inquiry into the same bank accounts."

Said the Supreme Court:

"Petitioner's attempt to make the exclusionary rule applicable

to the instant case fails. R.A. 1405. it bears noting. nowhere

provides that an unlawful examination of bank accounts shall

render the evidence obtained therefrom inadmissible in evidence.

Section 5 of R.A. 1405 only states that '[a]ny violation of this law will

subject the offender upon conviction, to an imprisonment of not

more than five years or a fine of not more than twenty thousand

pesos or both, in the discretion of the court:

xxx xxx xxx

The same principle was reiterated in U.S. v. Thompson:

. . . When Congress specifically designates a

remedy for one of its acts, courts generally presume that

it engaged in the necessary balancing of interests in

determining what the appropriate penalty should be.See Michaelian, 803 F.2d at 1049 (citing cases); Frazin,

780 F.2d at 1466. Absent a specific reference to an

exclusionary rule, it is not appropriate for the courts to

read such a provision into the act." [Emphasis and

underscoring supplied]

13. Besides, the Honorable Presiding Officer has already explained that

questions of admissibility are premature at this point because the prosecution has

not yet made a formal offer of documentary evidence. As stated in pages 35 to



8

36 of the February 6, 2012 Record of the Senate Sitting As An Impeachment Court

liThe Presiding Officer. We leave it at that.

"I would like to explain that the Resolution of this Court was

simply to authorize the issuance of a subpoena, and whether those

evidence subpoenaed are admissible evidence given the fact that

they apparently appeared in vio lation of existing laws is a question

that must be resolved in due course. I hope that is understood. We

are not prejudging the admissibility or non-admissibility of this

evidence. And this issue will come up at that point when thesubpoenaed material and testimonies are offered in evidence. And

all of these incidental issues will be opened for scrutiny at the proper

time.

"Your know, Republic Act 6426 is a very strict law, far stricter

that Republic Act 1405. It imposes a penalty for its violation and

nobody is immune from that penalty whether you are a member of

the Court, whether you are a member of the Legislature, whether

you are a member of the Executive Department, whether you arepublic or private person. That is the mandate of Section 10 of

Republic Act 6426. Whether the appearance of this document in

violation of Republic Act 6426 will impair its admissibility as an

evidence is something that - to be resolved at a later date. This Court

cannot at the moment resolve that issue." [Emphasis supplied]

14. As to the provenance of the subject documents, it has been

explained by undersigned prosecutor Rep. Niel Tupas, Jr. that they were given to

him by prosecutor Rep. Reynaldo Umali on February 2, 2012 (Thursday). Rep.

Umali also explained the circumstances by which he received the documents from

an anonymous source. Notably, Rep. Umali admitted that he could not distinctly

recall exactly who gave him the documents, or when the documents were given

to him, or where the documents were given to him. As reflected in pages 34 to 36

of the February 6, 2012 Record of the Senate Sitting As An Impeachment Court -



9

"Senator Escudero. Sir, may we ask the circumstances as to

how this was obtained? Sino po'yung Prosecutor na nagbigay sa iyo?

At alangan namang multo - 0 iniwan ho ba sa opisina niya yung

dokumento? Mineyl (mail) baso

kanya?

"Because I fear, Mr. President, Your Honor, that we might be

violating indirectly the Secrecy of Bank Deposits Law with the

possession of these types of document, that the Impeachment Court

issued the subpoena only in relation to that today.

"Representative Tupas. It was given to me Thursday night

around 7:30 in the evening in one of the hotels along Roxas

Boulevard. And the Prosecutor is here inside the Session Hall. So, oneof the Prosecutors, Congressman Reynaldo Umali.

"Senator Escudero. And was given by who to him?

"Representative Tupas. We can ask him, Your Honor, if you

wish.

"Senator Escudero. May we request-

"Representative Tupas. May I give the floor now to

Congressman Umali, Your Honor?

"The Presiding Officer. The gentleman from Mindoro is

recognized.

"Representative Umali. Thank you, Your Honors.

"You Honor please, last Thursday, I left the Senate halls duringthe hearing. I went to do my job as a congressman of the 2

ndDistrict

of Oriental Mindoro. I went to the Department of Public Works and

Highways to follow up my projects in said department. And, on the

way out, I could not really actually recall what particular instance

that I was - that this document was given me, I think I was handed

this envelope and immediately I gave it to my aide and went directly

to the Department of Public Works and Highways. And then on the

way back from Department of Public Works and Highways, I went to

the hotel mentioned by Honorable - of Prosecutor Tupas in RoxasBoulevard and we had a meeting there but I had to leave shortly

after I handed this document to him, after seeing the document that

I felt it was so important for the Prosecution to know and to discuss

on how to go about it. But I was no longer present in the meeting

because I had to attend a TV show, Duelo, with one of the



10

spokespersons of the Defense in that particular program. So I could

not actually recall - I could recall a small lady but the lady was - I

could not remember at all who this person was because it was just

handed to me and I was on the way out already.

"Senator Escudero. Mr. President, I thank the good gentleman

for his explanation and also Congressman Tupas.

"Mr. President, I raised this issue actually if only to place on

record and manifest that in granting the subpoena, the Senate is not

in any way - and that is my understanding - tolerating any violations

of the law in order to obtain evidence or details of evidence to be

subpoenaed. That in so issuing the subpoena, as specified by the

Order of the Court, that the Senate does not in any way allow nordoes it give its consent for such practices in violation of the law to be

done by either side, either by the Prosecution or by the Defense. I

submit, Mr. President.

"Thank you, Your Honor.

"Representative Umali. If I may just manifest, Your Honor. If

Your Honors please.

"There was no intent to violate. I guess this was an action

taken by concerned citizen who wanted this thing out and it was

handed to this representation, Your Honor. And precisely, I gave it to

the Prosecution Team for them to study on -

"The Presiding Officer. Where was the envelope given to the

Congressman?

"Representative Umali. I could not exactly recall.

"The Presiding Officer. Was it in the Department of Public

Works?

"Representative Umali. Not at all, Your Honor. I was here in

the Senate and then I left at about, more or less 2:30 and then I went

to - I could not exactly recall where because there were just so

many documents that were handed to me on that particular

instance.

"The Presiding Officer. But you mentioned about a lady, a

short lady.

"Representative Umali. Yes, Your Honor.



11

"The Presiding Officer. Where did you see that short lady?

"Representative Umali. It could have been. Your Honor. in the

Secretariat or on the way out before I rode my vehicle going to theDepartment of Public Works and Highways, Your Honor.

"The Presiding Officer. And you saw that the lady handed the

envelope to you?

"Representative Umali. He just passed on and I thought-

"The Presiding Officer. To whom? To whom?

"Representative Umali. To me, Your Honor.

"The Presiding Officer. To you?

"Representative Umali. Yes, Your Honor.

"The Presiding Officer. And you do not know the lady at all.

"Representative Umali. Not at all, Your Honor.

"The Presiding Officer. We leave it at that. x x x" [Emphasis

and underscoring supplied]

15. With respect to the report of the Senate Sergeant-at-Arms regarding

the CCTV footage supposedly showing that there was no "small lady" seen with

Rep. Umali on February 2, 2012, it must be noted that Rep. Umali has not been

furnished a copy of the said report and he has not been shown the CCTV footage

that was supposedly the basis for the report. It is thus very difficult fo r him to

directly comment on the said report or CCTV footage, as he has no idea what the

CCTV footage contains (e.g., what was the duration of the footage, what areas

were covered, from what angle, etc.). The dictum of fairness and equity

necessitate that Representative Umali should be given opportunity to examine,



12

review and rebut the findings of this Impeachment Court which was the result of

an ex parte investigation.

16.At any rate, while Rep. Umali stands by the explanation he gave last

February 6, 2012, it should be borne in mind that he never claimed to have

perfect recollection of the circumstances in which the documents were given to

him. As previously noted, in his explanation given last February 6, 2012, he

admitted that he could not distinctly recall exactly who gave him the documents,

or when the documents were given to him, or where the documents were given

to him.

17. On the other hand, with all due respect, it would be unwarranted for

any conclusion to be made that the subject documents are "fake" based merely

on the statement made by the witness, despite the fact that there is an admission

that no examination was conducted on the original documents. Hence, in the

interest of fair play, it is imperative that the assailed documents be compared

with the original bank records to settle once and for all the authenticity or falsity

of the subject document. The said inspection and scrutiny would not violate the

rule on confidentiality because it would not inquire into the contents of the

accounts but merely as to the authenticity of the subject documents.

18. Finally, even assuming for the sake of argument that there was a

violation of the confidentiality of bank deposits, the issues arising therefrom or

relating thereto, and/or the liability therefor (i f any) should be threshed out in

another proceeding before another forum. (Even then, presuming that the

subject documents are indeed authentic bank records, the persons liable therefor



13

would be the official custodians of the documents and not the parties to these

proceedings.) It is respectfully submitted that the task at hand is to try the instant

impeachment case and receive the evidence that are being presented by the

parties.

RESPECTFULLY SUBMITTED.

Pasay City, Manila. 14 February 2012.

By:

THE HOUSE OF REPRESENTATIVES

Republic of the Philippines

HOUSE OF REPRESENTATIVES

PANEL OF PROSECUTORS

Copy furnished (By Personal Service):

JUSTICE SERAFIN R. CUEVAS (RET), ET AL.

Counsel for Respondent Chief Justice Renato Corona

Suite 1902 Security Bank Centre

6776 Ayala Avenue

Makati City, Philippines 1226