Authority of Anti-Money Laundering Council to Deputize Another Government Agency to Examine Deposits or Investments

DOJ OPINION NO. 031, s. 2006 April 11, 2006 Atty. Vicente S. Aquino Executive Director Anti-Money Laundering Council (AMLC) Secretariat Bangko Sentral ng Pilipinas Complex Manila Sir: This refers to your request for opinion/clarification on whether or not the Anti-Money Laundering Council (AMLC) can deputize another government agency to conduct its authority to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution. You state that Section 7(10) of Republic Act No. 9160, 1 as amended by R.A. No. 9194, authorizes the AMLC "to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government, including government-owned and-controlled corporations, in undertaking any and all anti-money laundering operations, which may include the use of its personnel, facilities and resources for the more resolute prevention, detection and investigation of money laundering offenses and prosecution of offenders." On the other hand, you also state that Section 11 of the AMLA, as amended, gives the AMLC the authority to inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of the AMLA, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) of the AMLA or a money laundering offense under Section 4 thereof. However, no court order shall be required in cases involving unlawful activities defined in Sections 3(i)(1), (2) and (12) of the AMLA. aSIETH You now seek confirmation if it is correct to say that the act of deputizing another government agency to inquire into bank accounts is encompassed by the authority of the AMLC to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government, including government-owned and -controlled corporations, as provided under Section 7(10) of the AMLA. Section 7 of R.A. No. 9160, as amended, provides: SEC. 7. Creation of Anti-Money Laundering Council (AMLC) . ...The AMLC shall act unanimously in the discharge of its functions as defined hereunder: (1) to require and receive covered or suspicious transaction reports from covered institutions; (2) to issue orders addressed to the appropriate Supervising Authority or the covered institution to determine the true identity of the owner of any monetary instrument or property subject of a covered transaction or suspicious transaction report or request for assistance from a foreign State, or believed by the Council, on the basis of substantial evidence, to be, in whole or in part, wherever located, representing, involving or related to, directly or indirectly, in any manner or by any means, the proceeds of an unlawful activity; (3) institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General; (4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; (5) to investigate suspicious transactions and covered transactions deemed suspicious after an investigation by AMLC, money laundering activities, and other violations of this Act; (6) to apply before the Court of Appeals, ex parte ,for the freezing of any monetary instrument or property alleged to be the proceeds of any unlawful activity as defined in Section 3(l) hereof; TDcAaH (7) to implement such measures as may be necessary and justified under this Act to counteract money laundering; (8) to receive and take action in respect of, any request from foreign states for assistance in their own anti-money laundering operations provided in this Act; (9) to develop educational programs on the pernicious effects of money laundering, the methods and techniques used in money laundering, the viable means of preventing money laundering and the effective ways of prosecuting and punishing offenders; (10) to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government, including government-owned and-controlled corporations, in undertaking any and all anti-money laundering operations, which may include the use of its personnel, facilities and resources for the more resolute prevention, detection and investigation of money laundering offenses and prosecution of offenders; and (11) to impose administrative sanctions for the violation of laws, rules, regulations and orders and resolutions issued pursuant thereto. On the other hand, Section 11 of the AMLA reads: SEC. 11. Authority to Inquire into Bank Deposits . Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof; except that no court order shall be required in cases involving unlawful activities defined in Sections 3(i)(1), (2) and (12). DHcSIT To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit or investment with any banking institution or non-bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP. Subject to the discussion below, this Department is of the opinion that the AMLC cannot deputize another government agency to exercise the authority granted to it under Section 11 of the AMLA to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution. This Department has, in its Opinion No. 125, s. 1994, expressed the view that: R.A. No. 1405, as amended by P.D. No. 1792, declares all bank deposits of whatever nature as of an absolutely confidential nature. To make the cloak of immunity effective, the provision prohibits any person, government official, bureau or office from conducting an examination of, or inquiry into, said bank deposits except upon the instances enumerated therein. It follows that before any examination of, or inquiry into, the bank deposits may be lawfully performed, it should be clearly established that it is being done as an exception to the general prohibition imposed by R.A. No. 1405, as amended. Moreover, the Supreme Court, in the case of Marquez vs. Desierto (359 SCRA 772 [2001]),ruled: In Union Bank of the Philippines v. Court of Appeals , we held that "Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be 'absolutely confidential' except: (1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity; DHECac (2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank; (3) Upon written permission of the depositor; (4) In cases of impeachment; (5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials; or (6) In cases where the money deposited or invested is the subject matter of the litigation." 2 Section 11 of the AMLA, which gives the AMLC the authority to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution, is another exception to the general rule set forth in R.A. No. 1405, as amended, that all bank deposits of whatever nature are of an absolutely confidential nature. The said exception cannot be enlarged or extended so as to authorize the AMLC to deputize another government agency to exercise the authority granted to it under the AMLA. EHSADa It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others. Pursuant to the expressio unius est exclusio alterius rule, where a statute directs the performance of certain acts by a particular person or class or persons, it implies that it shall not be done otherwise or by a different person or class of persons. 3 The said rule is a canon of restrictive interpretation. It proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned. 4 Hence, the act of the Legislature of providing in a separate provision, the authority of the AMLC to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution, instead of including it in the enumeration of the functions of the AMLC under Section 7 of the AMLA is an indication of the Legislature's intent not to authorize the AMLC to deputize another government agency to exercise its authority to inquire into bank accounts. Please be guided accordingly. Very truly yours, (SGD.) RAUL M. GONZALEZ Secretary Footnotes 1. Anti-Money Laundering Act of 2001 (AMLA). 2. 321 SCRA 563, 564-565 (1999). 3. Statutory Construction by Ruben E. Agpalo, Fifth Edition (2003),page 224, citing cases. 4. Ibid .,pages 222-223, citing cases.