Philippines
March 30, 2016
From Business World on line
From Prothom
This post contends that the bank used in money laundering could be held liable for the amount allowed to be withdrawn after the stop payment request was received by the bank. RCBC legal counsel and chief enforcement officer contends that Philippine law does not allow banks to such freeze or hold order, even if the money was stolen. Even more so for dollar accounts without the consent of the depositor..
“Section 8. Secrecy of foreign currency deposits. – All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private; Provided, however, that said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever.”
Even the Senate inquiry into the 5 accounts, as dollar account, as foreign currency deposit may be considered in violation of the said law. This law needs to be amended too? It can not be frozen nor forfeited?
But Sen. Osmena said he asked other banks, and said they would unilaterally stop the payments if they knew it was stolen. (But I know that a certain financial institution did not allow, for our claim for stolen amount deposited with them)
It is not the obligation of the bank to determine the source of funds, even if the source of the said funds was CB of Bangladesh. In so far as the local bank is concerned, the owner of the funds are the 5 account holders, even if they were fictitious (thus Sen JPE was right) Only AMLC has the authority to freeze, not the bank or its enforcement officer:
SEC. 10. Authority to Freeze. – Upon determination that probable cause exists that any deposit or similar account is in any way related to an unlawful activity, the AMLC may issue a freeze order, which shall be effective immediately, on the account for a period not exceeding fifteen (15) days. Notice to the depositor that his account has been frozen shall be issued simultaneously with the issuance of the freeze order. The depositor shall have seventy-two (72) hours upon receipt of the notice to explain why the freeze order should be lifted. The AMLC has seventy-two (72) hours to dispose of the depositor’s explanation. If it fails to act within seventy-two (72) hours from receipt of the depositor’s explanation, the freeze order shall automatically be dissolved. The fifteen (15)-day freeze order of the AMLC may be extended upon order of the court, provided that the fifteen (15)-day period shall be tolled pending the court’s decision to extend the period.
No court shall issue a temporary restraining order or writ of injunction against any freeze order issued by the AMLC except the Court of Appeals or the Supreme Court.
Thus these loopholes must be plugged by the Senate according to the RCBC legal chief. Estavillo. The perpetrators of the theft really studied the laws, observed the loopholes and leveraged this to their advantage.
Anti Money Laundering Act of 2001 (RA 9160)
Estavillo is right; there is no provision for freezing of an account. only forfeiture proceedings may be enforced upon order a competent court. or freeze order from AMLC As with regards to inquiry on deposits and bank secrecy, only orders of competent court shall allow AMLC or any other body to inquire into a bank account (it does not state whether the said provision may be waived in case the count is determined as fictitious.)
JPE tama ulit, Koko may have erred.
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 involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.
But a crime has been committed. RCBC should have at least delayed or confirmed the transaction before allowing withdrawals.
Read: a breed of intelligent criminals
