Revive blog and Constitutional law

The time has come to revive my moribund blog. I stopped writing and posting as the well had run dry, so to speak, and I found myself at loose ends as to whether I wanted to continue blogging or not.
But the most gripping legal drama of the decade began to unfold over the past two months and I felt the urge not to let the event go unremarked.

My views are, to borrow Thomas Merton’s phrase, that of a “guilty bystander”. I am guilty of many things, not least of which is a recurring apathy and indifference towards events swirling around me, and an unhealthy tendency to focus on my own peculiar miseries. What Merton called “a spurious self-isolation in a special world”. This is an attempt to break out of my shell and once again engage with the world at large. If only through the blogosphere.

For starters I wanted to write about something arid yet compelling, oftentimes insufficiently understood but nowadays a subject of much heated debate — constitutional law. I am far from being an expert, or even an assiduous student, of the Constitution. Yet it is my conceit that I have something worthwhile to say on the subject, if only from the point of view a curious observer.

The members of the Senate impeachment tribunal, in investigating the possible source of the leaked bank documents which the prosecution wants to use against Chief Justice Renato Corona, has zeroed in on Banko Sentral ng Pilipinas examiner Jerry Leal. Mr. Leal has admitted that he took part in a 2010 BSP audit of the Philippine Savings Bank (PSBANK) branch where C.J. Corona held several accounts and that he particularly asked to be provided with Corona’s records. This has led Senate President Juan Ponce-Enrile to remark that he can think of no other source of the leak but Leal.

Intriguingly, Senator Enrile also said that the leaked bank documents may be allowed in evidence, despite the fact that it may have been acquired unlawfully or in violation of the Bank Secrecy Law (R.A. 1405). Thus , although it may be what is known as the “ fruit of the poisonous tree” and therefore inadmissible in evidence under ordinary circumstances, the Senate apparently believes that the impeachment trial is an exception to the rule.

Why so ? Although the Bank Secrecy Law itself provides that the confidentiality of bank deposits may be set aside “in cases of impeachment” , the evidence in question was not the subject of a judicial order or subpoena but appears to have been unlawfully obtained by a bank regulator in the performance of his official duties. Strictly speaking, this is illegally obtained evidence. Hence, coming from a debased source, it’s now seen as “poisonous” .

What exactly does the phrase “fruit of the poisonous tree” mean ? Chief Justice Reynato Puno gives a precise definition in People vs. Alicando (G.R. No. 117487, December 12, 1995):

“ We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the “fruit of the poisonous tree,” a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States (308 U.S. 338 [1939]). According to this rule, once the primary source (the “tree”) is shown to have been unlawfully obtained, any secondary or derivative evidence (the ” fruit ” ) derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the “fruit of the poisonous tree” is the indirect result of the same illegal act. The “fruit of the poisonous tree” is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained.”

Looking at the bank documents leaked by Leal, we see that it is not only the fruit of the poisonous tree but the poisoned tree itself. How can these therefore be ruled admissible in evidence ?

There are several possible legal justifications for admitting what are admittedly illegally obtained evidence, tree, fruits and all.

One is the long-standing ruling of Supreme Court to the effect that violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019), or cases involving unexplained wealth of public officials or dereliction of public duty are to be considered exceptions to the law on bank deposit secrecy (PNB vs. Gancayco, G.R. No. L-18343, September 30, 1965 and subsequent similar decisions). The 2nd article of impeachment against C.J. Corona focuses on the alleged large and unexplained discrepancies between the sums in his bank accounts and that reported in his Statement of Assets, Liabilities and Net Worth and is thus analogous to an anti-graft case.

The Senate may also take cognizance of the doctrine laid down in U.S. vs. Calandra (414 U.S. 338 [1974]) which provides for an exception to the Nordone decision, the latter being the basis for our adoption of the exclusionary rule known as the “fruit of the poisonous tree”.

Under the Calandra ruling, illegally seized evidence may be admitted in grand jury investigations if the invocation of the exclusionary rule (poisonous tree) would unduly impede the grand jury’s investigative and accusatorial functions. It may reasonably be argued that the Senate impeachment proceeding is more akin to that of a grand jury investigation than a criminal prosecution. The role of a grand jury is to ferret out the truth by a thorough and extensive investigation, unhindered by the challenge that it may have acted on the basis of incompetent or inadequate evidence. This is precisely how the prosecution in the Senate impeachment trial wants to paint the proceedings.

There are therefore sufficient legal grounds to allow the Leal leaks as evidence, if only because, to paraphrase Calandra, the potential damage to our political institutions and processes by the imposition of “fruit of the poisonous tree” rule outweighs any possible abridgement of personal privacy rights on C.J. Corona’s part.

Of course, the defense will have equally persuasive evidence to counter the admission of the leaked documents. Expect legal fireworks at the resumption of the Senate hearing on March 12.

A scholarly but very accessible and lucid article on the Bank Secrecy Law has been written by Franz David Ong Lim and published in the Philippine Law Journal of the U.P. College of Law (vol. 77 [2002]). It’s available below and worth your while.

Bank and Secrecy Law in the Philippines

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