The bank-secrecy law _ BusinessMirror u s anti money laundering laws

THE insurance commission is one of three members of the anti-money laundering council (AMLC); the other two are the bangko sentral ng pilipinas and the securities and exchange commission. In a recent meeting with the department of finance, they raised a concern regarding the continuing need for bank-secrecy laws in the country. Let us, then, take a look at the current state of our bank-secrecy law.

While section 2 of republic act (RA) 1405, also known as the secrecy of bank deposits act, declares bank deposits to be “absolutely confidential,” deposits of whatever nature, including investments in bonds, are expressly allowed to be “examined, inquired or looked into” by the same law, as amended, in these instances: a) during a special or general examination of a bank, as authorized by the monetary board, to investigate bank fraud or a serious irregularity; b) during a regular audit of a bank by an independent auditor; c) upon the written permission of the depositor; d) in cases of impeachment; e) upon the order of a competent court in cases of bribery or dereliction of duty of public officials; and f) in cases where the money deposited is the subject of the litigation.U s anti money laundering laws

Clearly, the confidentiality or secrecy is not “absolute.” moreover, the exceptions listed above is not exclusive, since, in addition to those expressly listed under section 2 of RA 1405, other laws have either expressly or impliedly provided other exceptions to the bank-secrecy law. These are: g) upon inquiry by the internal-revenue commissioner in the determination of the net estate of a deceased depositor; h) under section 11 of the anti-money laundering act of 2011; i) under section 2 of the unclaimed balances act; j) under section 8 of RA 3019, pertaining to unexplained wealth; and k) under section 27 to 43 of the human security act of 2007, also known as the antiterrorism law.

Some of the laws that have impliedly added exceptions to the bank-secrecy laws have been confirmed by supreme court (SC) decisions. Note that section 11 of the anti-money laundering act provided for an expressed exception to the bank-secrecy law, while section 8 of RA 3019 and 1379 provided for an implied exception to the same law, as ruled in philippine national bank v gancayco.U s anti money laundering laws all these exceptions bring to mind the historical observation that the holy roman empire of the middle ages was neither holy and roman nor an empire.

Perhaps, as the last exception to the bank secrecy law, one may add: l) upon order of a competent court in cases similar to that of bribery or dereliction of duty of public officials. For example, unexplained wealth is considered as similar to bribery and plunder under RA 7080. In ejercito v sandiganbayan, it was held that the crime of plunder is analogous to bribery and, therefore, the exception from the secrecy of bank deposits granted in cases of bribery should also be granted to cases for plunder under RA 7080, in which crime is not expressly listed as an exception in RA 1405.

It should also be pointed out that there is no secrecy for the bank deposits of dummies. In banco filipino

Savings and mortgage bank v purisima, the SC held that the spouse, dependents and other persons may not effectively invoke the bank-deposits secrecy law.U s anti money laundering laws the high court also cited section 1 of RA 1379 that characterized a “property unlawfully acquired by the respondent” to include properties where their “ownership is concealed by [their] being recorded in the name of [or] held by the respondent’s spouse, ascendants, descendants, relatives or any other person.” accordingly, concealing unlawfully acquired wealth, including cash in banks, in the name of other persons does not guarantee a successful abscondment.

With respect to foreign-currency deposits, note that its confidentiality is more strictly upheld by lesser exceptions. Hence, the exceptions listed in RA 1405 do not apply to such deposits. Inquiries into such accounts may be allowed only under section 8 of the foreign currency deposits act, that is, with the depositor’s written consent and by the AMLC under section 11 of RA 9160.

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Atty. Dennis B.U s anti money laundering laws funa is the deputy commissioner for legal services of the insurance commission.