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The Civil Code provides that" [e]very person shall respect the dignity, personality, privacy and

peace of mind of his neighbors and other persons" and punishes as actionable torts several acts
for meddling and prying into the privacy of another

A primer on the secrecy of bank


deposits
Updated January 4, 2001 - 12:00am
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With recent events putting in issue the confidentiality of bank deposits and the identification process by the banks for their depositors, the Bangko
Sentral ng Pilipinas, in coordination with the Bankers Association of the Philippines, deemed it advisable to come out with the following primer on
frequently asked questions.

This primer seeks to clarify any misunderstanding or misapprehension that may have arisen on the subject and, more importantly, emphasizes that the
secrecy of bank deposits remains sacrosanct and that their disclosure remains subject to strict safeguards and compliance with legal requirements.
Trust accounts and other investments are partly included in the discussion.

A. Secrecy of bank deposits

Q. What guarantees on confidentiality do depositors enjoy under the law?

A. For peso deposits, Republic Act No. 1405 (Bank Deposits Secrecy Law) declares all deposits of whatever nature with banks in the
Philippines, including investments in government bonds, as of an absolutely confidential nature and prohibits the examination or inquiry into such
deposits or investments by any person, government official, bureau or office, as well as the disclosure by any official or employee of a bank of any
information concerning said deposits.

There are only four (4) instances under the law where bank deposits or
investment in government bonds may be disclosed or looked into, namely:
(1) upon written permission of the depositor; or (2) in cases of
impeachment; or (3) upon order of a competent court in cases of
bribery or dereliction of duty; or (4) in cases where the money
deposited or invested is the subject matter of the litigation.
It may be noted that RA 1405 covers not only bank deposits but also investments in government bonds.

For foreign currency deposits, Republic Act No. 6426 (The Foreign Currency Deposit Act) similarly declares that these deposits are of an absolutely
confidential nature and cannot 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. There is only one instance for disclosure under said law and, that is, upon the
written permission of the depositor. RA 6426 also exempts foreign currency deposits from attachment, garnishment, or any other order or process of
any court, legislative body, government agency or any administrative body whatsoever.

For investments in trust accounts or in deposit substitutes, if these are in the form of investments in government bonds or deposits, the protection

under RA 1405 and RA 6426 extends thereto accordingly. If these are in other forms of investments, the disclosure of information related thereto is
covered by Section 55 of the General Banking Law of 2000 (Republic Act No. 8791) which prohibits, unless there is an order of a court of competent
jurisdiction, the disclosure by any director, official, employee or agent of any bank any information relative to the funds or properties in the custody of
the bank belonging to private individuals, corporations or any other entity.

Q. How do banks respond to an order of a competent court?

A. For peso deposits, banks comply with orders for disclosure in court cases subject to these requirements: (a) there must be a court order; (b) the
order must be issued by a competent court specifically directing the bank concerned to disclose the required information; and (c) the bank should
check and satisfy itself that the deposits or investment in government bonds being inquired into are either the subject of a case of bribery or dereliction
of duty of public officials, or of a case where the deposit or investment itself is the subject matter of the litigation. If these requirements are not met,
there would be basis for the bank to request the court to excuse compliance with the court order.

In impeachment cases, it is necessary that there be an order issued by the impeachment court or by its authorized officer. For foreign currency
deposits, the law does not provide an instance for disclosure upon a court order. As mentioned above, there is only a single instance for disclosure
under RA 6426 and, that is, upon written permission of the depositor. Thus, for foreign currency deposit accounts subject of a court order, the bank can
invoke RA 6426 to excuse compliance.

Q. What is the liability of the banks and/or its officers and employees for violating the laws against disclosure?

A. Violations of the prohibitions against disclosures under RA 1405, RA 6426 and under the General Banking Law of 2000 are subject to stiff criminal
penalties.

Under RA 1405, the offender is subject to imprisonment of not more than five years or a fine of not more than P20,000, or both, in the discretion of the
court. Under RA 6426, the penalty is imprisonment of not less than one year not more than five years or a fine of not less than P5,000 nor more than
P25,000, or both, in the discretion of the court. The violation of Sec. 55 of the General Banking Law of 2000, the penalty is imprisonment of not less
than two years nor more than 10 years or a fine of not less than P50,000 nor more than P200,000, or both, in the discretion of the court; and in
addition, if the offender is a director or officer of a bank, he is subject to suspension or removal by the Monetary Board.

B. Use of alias or number in opening deposit accounts

Q. Are banks allowed to open accounts using an alias or a number?

A. There is no specific banking law up to the present prohibiting banks from opening deposit accounts using an alias or a number. Prior to July 7, 2000,
there is also no banking regulation providing for such prohibition. On July 7, 2000 and in seeking the adoption of anti-money laundering measures, the
Bangko Sentral ng Pilipinas (BSP) issued a regulation, Circular No. 251, providing that, unless otherwise prescribed under existing laws, anonymous
accounts or accounts under fictitious names are prohibited.

The exception referred to under Circular No. 251 was RA 6426 (The Foreign Currency Deposit Act) which explicitly allows the keeping of numbered
accounts for the recording and servicing of deposits.

For peso accounts, when banks allow the opening of deposit accounts under pseudonyms, it is assumed that: (1) they have exercised due diligence to
ascertain the identity of their clients; and (2) they are aware of the legal provisions and requirements on the use of pseudonyms.

The above notwithstanding, it may be pointed out that in the Manual of Regulations issued by BSP, or even before the issuance of Circular 251, there
were already regulations requiring the banks to: (a) adopt systems to establish the identity of their depositors; and (b) require to set a minimum of three
(3) specimen signatures from each of their depositors subject to regular updating. Even for numbered accounts as authorized under RA 6426, BSP has
required banks, under Circular 258, to take necessary measures to establish and record the true identity of their clients, which identification may be
based on official or other reliable documents and records.

Q. Are there other laws governing the use of pseudonyms or aliases?

A. Art. 178 of the Revised Penal Code penalizes the: (a) publicly using of a fictitious name for the purpose of concealing a crime, evading the execution
of a judgment, or causing damage; and (b) concealment by any person of his true name and other personal circumstances.

On the other hand, there is also Commonwealth Act No. 142, as amended by Republic Act No. 6085 (Regulating the Use of Aliases) which provides
that, except only as a pseudonym for literary purposes and athletic events, it is unlawful for any person to use an alias, unless the same is duly
recorded in the proper local civil registry. Related thereto, Articles 379 and 380 of the Civil Code provide that no person shall use different names and
surnames except the employment of pen and stage names provided it is done in good faith and there is no injury to third persons.

What can be noted is that the above provisions allow the use of aliases under certain circumstances. Conversely stated, the use of aliases is not
absolutely disallowed. Moreover, the sanctions for any violation of the above provisions on aliases are mainly directed to the one using the
unauthorized alias.

Q. How does Circular No. 251 apply to existing numbered accounts?

A. For peso accounts, the banks should have their respective programs of compliance with the Circular. For foreign currency deposit accounts, they
are allowed to continue maintaining numbered accounts opened in accordance with RA 6426 subject to the requirement that the banks shall take
necessary measures to establish and record the true identity of their clients.

Q. What penalties/sanctions are applicable for violating the laws/regulations?

A. Article 178 of the Revised Penal Code is directed to the person concealing his identity publicly or using a fictitious name and the penalty would
range from one day up to six months imprisonment and/or a fine up to P500,000. For violation of Commonwealth Act 142, which is likewise directed to
the person using an unauthorized alias, the penalty is imprisonment from one year to five years and a fine of P5,000 to P10,000. For the violation of
Circular 251, it is subject to the administrative sanction on the bank and/or responsible directors/officers of fine up to P30,000 per transaction.

C. Continued confidentiality/secrecy of deposit transactions

Q. Is confidentiality/secrecy of deposit accounts compromised with the issuance of Circular 251?

A. No. Circular 251 merely disallowed the opening of fictitious and anonymous accounts and has not in any way modified nor lessened the safeguards
and protection to depositors under RA 1405. This means that, notwithstanding Circular 251, deposit accounts cannot be examined or looked into
except under the limited circumstances provided for in RA 1405.

Q. Why are the BSP and the BAP advocating the amendment to bank secrecy laws?

A. The proposal of BSP and BAP is for access to deposit accounts only under exceptional circumstances, such as deposits only above the P50-million
level and in relation to the commission of serious offenses like racketeering and illicit drug trade. Except for these instances, depositors and those with
legitimate transactions remain protected under RA 1405. The objective of the proposal is to institute this measure as an anti-money laundering
campaign so as to delete the Philippines as a non-cooperative country in the list of the Financial Action Task Force against money laundering.

REPUBLIC ACT No. 1405


AN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITH ANY BANKING INSTITUTION AND PROVIDING
PENALTY THEREFOR.

Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking
institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the
economic development of the country.
Section 2. 1 All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person, government official, bureau or office,

except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent
court in cases of bribery or dereliction of duty of public officials , or in cases where the money deposited or invested is the
subject matter of the litigation.
Section 3. It shall be unlawful for any official or employee of a banking institution to disclose to any person other than those mentioned in
Section two hereof any information concerning said deposits.
Section 4. All Acts or parts of Acts, Special Charters, Executive Orders, Rules and Regulations which are inconsistent with the provisions of
this Act are hereby repealed.
Section 5. Any violation of this law will subject 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.
Section 6. This Act shall take effect upon its approval.
Approved: September 9, 1955

Footnote
This Section and Section 3 were both amended by PD No. 1792 issued January 16, 1981, PD 1792 was expressly repealed by
Sec 135 of R.A. No. 7653, approved June 14, 1993. The original sections 2 and 3 of R.A. No.1405 are hereby reproduced for
reference, as follows; "Sec 2 All deposits of whatever nature with banks or banking institutions in the Philippines including
investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby
considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government
official, bureau or office, except upon written per-mission of the depositor, or in cases of impeachment, or upon order of a
competent court in cases of bribery or dereliction of duty of public officials. or in cases where the money deposited or invested is
the subject matter of the litigation," "Sec. 3. It shall be unlawful for any official or employee of a banking institution to disclose to
any person other than those mentioned in Section two hereof any information concerning said deposits."
1

MALACAANG
Manila

PRESIDENTIAL DECREE No. 1792


AMENDING REPUBLIC ACT NO. 1405
WHEREAS, under existing legal framework, the Central Bank has the authority to examine all records of banks in the discharge of its
responsibilities under the Central Bank Charter;
WHEREAS, the prohibition against inquiry into bank deposits adversely delimits the examining authority of the Central Bank.
WHEREAS, limited examination powers operate against effective supervision of banks and endangers the safety of deposits which may
affect the public's faith in the banking system.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do
hereby decree and make the following part of the law of the land;
Section 1. Section 2 of Republic Act No. 1405 is hereby amended to read as follows:
Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except when the examination
is made in the course of a special or general examination of a bank and 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, or when the examination is 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, or upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or
dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.
Section 2. Section 3 of the same Act is hereby amended to read as follows:
Section 3. It shall be unlawful for any official or employee of a bank to disclose to any person other than those mentioned in Section Two
hereof, or for an independent auditor hired by a bank to conduct its regular audit to disclose to any person other than a bank director, official
or employee authorized by the bank, any information concerning said deposits.
Section 3. This Decree shall take effect immediately.
Done in the City of Manila, this 16th day of January, in the year of Our Lord, nineteen hundred and eighty-one.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 135882

June 27, 2001

LOURDES T. MARQUEZ, in her capacity as Branch Manager, UNION BANK OF THE PHILIPPINES, petitioner,
vs.
HONORABLE ANIANO A. DESIERTO, in his capacity as OMBUDSMAN, ANGEL C. MAYOR-ALGO, JR., MARY ANN CORPUZMANALAC AND JOSE T. DE JESUS, JR., in their capacity as Chairman and Members of the Panel, respectively, respondents.
PARDO, J.:
In the petition at bar, petitioner seeks to -a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack of jurisdiction, respondents' order dated September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes T. Marquez for
indirect contempt, received by counsel of September 9,1998, and their order dated October 14,1998, denying Marquez's motion
for reconsideration dated September 10, 1998, received by counsel on October 20, 1998.
b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing of the motion to cite
Marquez for indirect contempt, through the issuance by this Court of a temporary restraining order and/or preliminary injunction. 1
The antecedent facts are as follows:
Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated April 29, 1998, to produce
several bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of the Philippines, Julia
Vargas Branch, where petitioner is the branch manager. The accounts to be inspected are Account Nos. 011-37270, 240-020718, 24530317-3 and 245-30318-1, involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. Amado
Lagdameo, et al. The order further states:
"It is worth mentioning that the power of the Ombudsman to investigate and to require the production and inspection of records
and documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known as Ombudsman Act of
1989 and under existing jurisprudence on the matter. It must be noted that R.A. 6770 especially Section 15 thereof provides,
among others, the following powers, functions and duties of the Ombudsman, to wit:
xxx
(8) Administer oaths, issue subpoena duces tecum and take testimony in any investigation or inquiry, including the power to
examine and have access to banks accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties
provided therein.
Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A.1405) and
places the office of the Ombudsman in the same footing as the courts of law in this regard." 2
The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail managers checks purchased by one George
Trivinio, a respondent in OMB-097-0411, pending with the office of the Ombudsman.
It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount of P272.1 Million at Traders
Royal Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs in the amount of P70.6 million, were
deposited and credited to an account maintained at the Union Bank, Julia Vargas Branch. 3
On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B. Macalino at the bank's main office,
Ayala Avenue, Makati City. The meeting was for the purpose of allowing petitioner and Atty. Macalino to view the checks furnished by Traders
Royal Bank. After convincing themselves of the veracity of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the
Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.4
However, on June 4,1998, petitioner wrote the Ombudsman explaining to him that the accounts in question cannot readily be identified and
asked for time to respond to the order. The reason forwarded by the petitioner was that "despite diligent efforts and from the accounts
numbers presented, we can not identify these accounts since the checks are issued in cash or bearer. We surmised that these accounts
have long been dormant, hence are not covered by the new account number generated by the Union Bank system. We therefore have to
verify from the Interbank records archives for the whereabouts of these accounts. 5
The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: "firstly, it must be emphasized that
Union Bank, Julia Vargas Branch was depositary bank of the subject Traders Royal Bank Manager's Check (MCs), as shown at its dorsal
portion and as cleared by the Philippines Clearing House, not the International Corporate Bank.

Notwithstanding the facts that the checks were payable to cash or bearer, nonetheless, the name of the depositor(s) could easily be
identified since the account numbers x x x where said checks were deposited are identified in the order.
Even assuming that the accounts xxx were already classified as "dormant accounts," the bank is still required to preserve the records
pertaining to the accounts within a certain period of time as required by existing banking rules and regulations.
And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3,1998 thereby giving the bank enough time
within which to sufficiently comply with the order." 6
Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents relative to accounts in issue.
The order states:
Viewed from the foregoing, your persistent refusal to comply with Ombudsman's order in unjustified, and is merely intended to
delay the investigation of the case. Your act constitutes disobedience of or resistance to a lawful order issued by this office and is
punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also constitute obstruction in the lawful exercise
of the functions of the Ombudsman which is punishable under Section 36 of R.A. 6770. 7
On July 10,1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief, prohibition and injunctions 8 with
the Regional Trial Court, Makati City, against the Ombudsman.
The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of her rights from the court due to
the clear conflict between RA No.6770, Section 15 and R.A. No. 1405, Sections 2 and 3.
Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and the other persons acting under his authority were
continuously harassing her to produce the bank documents relatives to the accounts in question. Moreover, on June 16, 1998, the
Ombudsman issued another order stating that unless petitioner appeared before the FFIB with the documents requested, petitioner manager
would be charged with indirect contempt and obstruction of justice.
In the meantime,9 on July 14, 1998, the lower court denied petitioner's prayer for a temporary restraining order and stated us:
"After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to be without merit.
"Since the application prays for restraint of the respondent, in the exercise of his contempt powers under Section 15(9) in relation
to paragraph (8) of RA. 6770, known as " The Ombudsman Act of 1989", there is no great or irreparable injury from which
petitioners may suffer, if respondent is not so restrained. Respondent should he decide to exercise his contempt powers would still
have to apply with the court. x x x Anyone who, without lawful excuse x x x refuses to produce documents for inspection, when
thereunto lawfully required shall be subject to discipline as in case of contempt of Court and upon application of the individual or
body exercising the power in question shall be dealt with by the Judge of the First Instance (now RTC) having jurisdiction of the
case in a manner provided by the law (section 580 of the Revised Administrative Code). Under the present Constitution only
judges may issue warrants, hence, respondent should apply with the Court for the issuance of the warrant needed for the
enforcement of his contempt orders. It is in these proceedings where petitioner may question the propriety of respondent's
exercise of his contempt powers. Petitioners are not therefore left without any adequate remedy.
"The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau vs. Amado
Lagdameo, et. al., OMB-0-97-0411, for violation of RA. 3019. Since petitioner failed to show prima facie evidence that the subject
matter of the investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of injunction may be issued by this
Court to delay this investigation pursuant to section 14 of Ombudsman Act of 1989." 10
On July 20,1998, petitioner filed a motion for reconsideration based on the following grounds:
a. Petitioners' application for filed Temporary Restraining Order is not only to restrain the Ombudsman from exercising his
contempt powers, but to stop him from implementing his Orders dated April 29, 1998 and June 16, 1998: and
b. The subject matter of the investigation being conducted by the Ombudsman at petitioners' premises is outside his jurisdiction. 11
On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief 12 on the ground that the Regional Trial Court
has no jurisdiction to hear a petition for relief from the findings and orders of the Ombudsman, citing R.A. No. 6770, Sections 14 and 27. On
August 7, 1998, the Ombudsman filed an opposition to petitioner's motion for reconsideration dated July 20, 1998. 13
On August 19,1998, the lower court denied petitioner's motion for reconsideration, 14 and also the Ombudsman's motion to dismiss.

15

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the Ombudsman by Agapito B.
Rosales, Director, Fact Finding and Intelligence Bureau (FFIB). 16

On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground that the filing
thereof was premature due to the petition pending in the lower court. 17 Petitioner likewise reiterated that she had no intention to disobey the
orders of the Ombudsman. However, she wanted to be clarified as to how she would comply with the orders without her breaking any law,
particularly RA. No. 1405.18
Respondent Ombudsman panel set the incident for hearing on September 7, 1998. 19 After hearing, the panel issued an order dated
September 7, 1998, ordering petitioner and counsel to appear for a continuation of the hearing of the contempt charges against her. 20
On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above order. 21 Her motion was premised on
the fact that there was a pending case with the Regional Trial Court, Makati City,22 which would determine whether obeying the orders of the
Ombudsman to produce bank documents would not violate any law.
The FFIB opposed the motion,23 and on October 14, 1998, the Ombudsman denied the motion by order the dispositive portion of which
reads:
"Wherefore, respondent Lourdes T. Marquez's motion for reconsideration is hereby DENIED, for lack of merit. Let the hearing of
the motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt to be intransferrably set to 29 October
1998 at 2:00 o'clock p.m. at which date and time she should appear personally to submit her additional evidence. Failure to do so
shall be deemed a waiver thereof."24
Hence, the present petition.25
The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman.
And whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law
on secrecy of bank deposits (R.A. No.1405).
An examination of the secrecy of bank deposits law (R.A. No.1405) would reveal the following exceptions:
1. Where the depositor consents in writing;
2. Impeachment case;
3. By court order in bribery or dereliction of duty cases against public officials;
4. Deposit is subject of litigation;
5. Sec. 8, R.A. No.3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco. 26
The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas
Branch, is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of R.A. No. 3019,
Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI.
We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further,
the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent
jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover
only the account identified in the pending case.
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,
(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". 27
In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the Office
of the Ombudsman. In short, what the office of the ombudsman would wish to do is to fish for additional evidence to formally charge Amado
Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank
account for inspection.

Zone of privacy are recognized and protected in our laws. The Civil Code provides that" [e]very
person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other
persons" and punishes as actionable torts several acts for meddling and prying into the privacy
of another. It also holds public officer or employee or any private individual liable for damages for
any violation of the rights and liberties of another person, and recognizes the privacy of letters
and other private communications. The Revised Penal Code makes a crime of the violation of secrets by an officer, revelation
of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law , the
Secrecy of Bank Deposits Act, and the Intellectual Property Code.
28

IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist from requiring Union Bank Manager Lourdes T.
Marquez, or anyone in her place to comply with the order dated October 14,1998, and similar orders. No costs.
SO ORDERED .

1wphi1.nt

Davide, Jr:, C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, De
Leon. Jr., and Sandoval-Gutierrez, JJ., concur.

Admissibility of Evidence
Details
Category: Evidence
inShare

Section 3 Rules of Court. Admissibility of evidenceEvidence is admissible when it is relevant to the issue
and is not excluded by law or these rules.
I. Introduction.

A. Admissibility- the character or quality which any material


must necessarily possess for it to be accepted and allowed
to be presented or introduced as evidence in court. It answers
the question: should the court allow the material to be used as
evidence by the party?
B. Weight- the value given or significance or impact, or
importance given to the material after it has been admitted; its
tendency to convince or persuade. Hence a particular evidence
may be admissible but it has no weight. Conversely, an evidence
may be of great weight or importance but it is not admissible.
II. Conditions for admissibility (Axioms of admissibility per
Wigmore)
A. RELEVANCY (None but facts having rational probative value are admissible). Per
section 4, Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence.
1. The material presented as evidence must affect the issue or question. It must have a bearing on the outcome
of the case. It requires both:
a). rational or logical relevancy in that it has a connection to the issue and therefore it has a tendency to
establish the fact which it is offered to prove. The evidence must therefore have probative value
b). legal relevancy in that the evidence is offered to prove a matter which has been properly put in issue as
determined by the pleadings in civil cases, or as fixed by the pre-trial order, or as determined by
substantive law. If so the matter has materiality.

Illustration: (i). Criminal case: the fact that the crime was committed at nighttime is rationally or
logically relevant to a killing at 12 midnight but evidence thereon would be not be legally relevant if
nighttime was not alleged in the Information. It would be immaterial. (ii) Civil Case: In an action for sum of
money based on a promissory note, evidence that the defendant was misled into signing the note would be
rationally relevant but if fraud was never alleged as a defense, then evidence thereof would be legally
irrelevant or immaterial.

The components of relevancy are therefore probative value and materiality.

2. Rule as to collateral matters: Evidence on collateral matters shall not be allowed, except when it tends
in any reasonable degree to establish the probability or improbability of the facts in issue

a). collateral matters-facts or matters which are not in issue. They are not generally allowed to be proven
except when relevant.
b) In criminal cases, the collateral matters allowed to be proven, being relevant include:

(i). Antecedent Circumstances, or those in existing even prior to the commission of the crime. They include
such matters as habit, custom, bad moral character when self defense is invoked; or plan design, conspiracy,
or premeditation, agreement to a price, promise or reward
(ii) Concomitant circumstances or those which accompany the commission of the crime such as opportunity to do
the act or incompatibility
(iii).Subsequent circumstances or those which occur after the commission of the crime, such as flight, escape,
concealment, offer of compromise

c). Example: Motive is generally irrelevant and proof thereof is not allowed except: when the evidence is
purely circumstantial, when there is doubt as to the identity of the accused, or when it is an element of the
crime.

B. COMPETENCY ( All facts having rational probative value are admissible unless
some specific law or rule forbids). In short the evidence is not excluded by law
or rules.

III.

Principles which exclude relevant or material evidence:

A. The Exclusionary Rule Principle - the principle which mandates that evidence
obtained from an illegal arrest, unreasonable search or coercive investigation,
or in violation of a particular law, must be excluded from the trial and will not
be admitted as evidence.
1. The principle judges the admissibility of evidence based on HOW the evidence is obtained or acquired and
not WHAT the evidence proves.
2. The principle is to be applied only if it is so expressly provided for by the constitution or by a
particular law. Even if the manner of obtaining the evidence is in violation of a certain law but the law does
not declare that the evidence is inadmissible, then such evidence will be admissible.

Example: The accused claimed that information about his bank accounts i.e. trust funds, was obtained in
violation of the Secrecy of Bank Deposits Law ( R.A. 1405) and moved to have them be excluded as evidence.
HELD: R.A. 1405 nowhere provides that an unlawful examination of bank accounts shall render the evidence there
from inadmissible in evidence. If Congress has both established a right and provided exclusive remedies for
its violation, the court would encroaching upon the prerogatives of congress if it authorizes a remedy not
provided for by statute. Absent a specific reference to an exclusionary rule, it is not appropriate for the
courts to read such a provision into the act. ( Ejercito vs. Sandiganbayan, 509 SCRA 190, Nov. 30, 2006).

3. The phrase is attributed to Justice Felix Frankfurter of the U.S. Supreme and has its biblical reference to
Mathew 7: 17-20.

B. The Doctrine of the Fruit of the Poisonous Tree


1. Evidence will be excluded if it was gained through evidence uncovered in an illegal arrest, unreasonable
search or coercive interrogation, or violation of a particular exclusionary law.
2. It is an offshoot of the Exclusionary Rule which applies to primary evidence. The doctrine applies only to
secondary or derivative evidence. There must first be a primary evidence which is determined to have been
illegally obtained then secondary evidence is obtained because of the primary evidence. Since the primary
evidence is inadmissible, any secondary evidence discovered or obtained because of it may not also be used.
a. The poisonous tree is the evidence seized in an illegal arrest, search or interrogation. The fruit of this
poisonous tree is evidence discovered because of knowledge gained from the first illegal search, arrest, or
interrogation or violation of a law.
b. It is based on the principle that evidence illegally obtained by the state should not be used to gain other
evidence because the original illegally obtained evidence taints all those subsequently obtained.

C Illustrations:

A suspect as forced to make a confession where he revealed he took shabu from the room of X. Based on this
knowledge the police went to the house of X and with the consent of X, searched his room and found the shabu.
The confession is inadmissible because of the exclusionary. It is the poisoned tree. The shabu is inadmissible
because knowledge of its existence was based on the confession. It is the fruit.

D. Exceptions to the two principles- when evidence is still admissible despite the commission of an illegal
arrest, search or interrogation, or violation of a particular exclusionary law.

1. Under the Doctrine of Inevitable Discovery- Evidence is admissible even if obtained through an unlawful
arrest, search, interrogation, or violation of an exclusionary law, if it can be established, to a very high
degree of probability, that normal police investigation would have inevitably led to the discovery of the
evidence

2. Independent Source Doctrine- evidence is admissible if knowledge of the evidence is gained from a separate
or independent source that is completely unrelated to the illegal act of the law enforcers.

3. Attentuation Doctrine: evidence maybe suppressed only if there is a clear causal connection between the
illegal police action and the evidence. Or, that the chain of causation between the illegal action and the
tainted evidence is too attenuated i.e too thin, weak, decreased or fragile. This takes into consideration the
following factors:

a). The time period between the illegal arrest and the ensuing confession or consented search
b). The presence of intervening factors or events
c). The purpose and flagrancy of the official misconduct

E. Remedy : By filing a Motion to Suppress the Evidence

III. Evidence Excluded by the Constitution


A. Under Article III of the Constitution the following evidence are inadmissible
1. evidence obtained in violation of the right against unreasonable search and seizure
2. evidence obtained in violation of the privacy of communication and correspondence, except upon lawful order
of the court or when public safety or order requires otherwise
3. evidence consisting of extra-judicial confessions which are uncounselled, or when the confessant was not
properly informed of his constitutional rights, or when the confession was coerced
4. evidence obtained in violation of

the right against self-incrimination

B. Principles:

1. The exclusionary rule in all the foregoing provisions is TOTAL in that the inadmissibility or incompetency
applies to all cases, whether civil criminal or administrative, and for all purposes.
2. The incompetency applies only if the evidence was obtained by law enforcers or other authorized agencies of
the government. It does not apply if the evidence was obtained by private persons such as private security
personnel or private detectives even if they perform functions similar to the police whenever a crime was
committed.

a). Thus evidence obtained by the following are not covered by the constitutional provisions: (i) the
security personnel or house detectives of hotels or commercial establishments or schools (ii) private security
agencies even if they are guarding public or government buildings/offices (iii) employers and their agents.

It will be some other appropriate principle on the admissibility of evidence which will govern.

b). However, by way of exception, the rule of incompetency applies if what are involved are the private
correspondence of an individual. In Zulueta vs. CA ( Feb. 1986) it was held that pictures and love letters
proving the infidelity of the husband, kept by him in his private clinic, taken by the wife without the
knowledge of the husband, are inadmissible as evidence for being obtained in violation of the husbands
privacy of communication and correspondence.
The intimacies between husband and wife do not justify anyone of them breaking the drawers and cabinet of
the other and ransacking them for any telltale evidence of marital infidelity. A person, by contracting
marriage, does not shed his or her integrity or his right to privacy as an individual and the constitutional
protection is available to him or her

3. Secondary evidence resulting from a violation of the foregoing provisions is inadmissible under the Fruit
of the Poisonous Tree Doctrine.

IV. R.A. 4200 ( The Anti Wire Tapping Law) Exclusion as to


evidence obtained through mechanical, electronic or other
surveillance or intercepting devises. (Intercepted
communications)
A.

Coverage: R.A 4200 declares that evidence is inadmissible if obtained through any of the following ways:

1. By using any device to secretly eavesdrop, overhear, intercept or record any communication or spoken word

a. The person who obtained the evidence may be a third person or a participant in the conversation or
communication.

FACTS: Ramirez and Garcia had a confrontation in the office of Garcia. Ramirez secretly taped their verbal
confrontation and used it as evidence in her action for damages against Garcia who in turn filed a criminal
case against Ramirez for violation of R.A. 4200. Ramirez held that the taping by a participant to a
conversation is not covered by the law.

HELD: 1. The law does not make a distinction as to whether the party sought to be penalized is a party or not
to the private conversation. 2. The nature of the conversation is immaterial What is penalized is the act of
secretly overhearing, intercepting, or recording private communications by the devices enumerate under Section
1. (Ramirez vs. C.A., September 28, 1995)

b. To be admissible the consent of the person speaking or of all the parties to the conversation. However
consent is not necessary if the words which were taped or recorded were not intended to be confidential as
when the were intended to be heard by an audience or when uttered under circumstances of time, place, occasion
and similar circumstances whereby it may reasonably be inferred that the conversation was without regard to
the presence of third persons.

c. Questions:
i). Does this apply if the recording of the words was unintentional or inadvertent, such as conversations
captured by a moving video camera?
ii). Are conversations in a police entrapment included?
iii). Is lip-reading included?

iv). Are conversations captured in surveillance cameras included?


v). Does this apply to secret taping through spy cameras purposely made to be aired in television programs,
such as Bitag, XXX and Cheaters?
vi). Are the gestures, snores, laughs, weeping, included as communication or spoken words?
vii). What about satellite discs and similar facilities? Google earth?

2. By the unauthorized tapping of any wire or cable as to communications used via telephone/cable, as opposed
to verbal communications.

a). There must be a physical interruption through a wiretap or the deliberate installation of a device or
arrangement in order to over hear, intercept, or record the spoken words.
i). hence over hearing through an extension telephone wire is not included even if intentional because each
party to a telephone conversation takes the risk that the other party may have an extension telephone and may
allow another to overhear the conversation ( Ganaan vs. IAC, 1986)
ii). Does the Ganaan ruling apply to overhearing by telephone operators of hotels, schools, hospitals and
similar establishments?

B. Exceptions: when evidence through secret recording or tapping is admissible

1. When Judicial Authorization was granted upon a written petition filed pursuant to the provisions of R.A.
4200 if the crimes involve (a). treason (b) espionage (c) provoking war and disloyalty ( d). piracy and mutiny
in the high seas (e) sedition, inciting to sedition (g)kidnapping (h) other offenses against national
security.

The list is exclusive and does not include offenses which are equally or more serious as those enumerated,
such as drug trafficking, kidnapping, Trafficking in Persons, Rape, Murder.

2.When Judicial Authorization is granted upon a written petition under R.A. 9372 ( The Human Security Act of
2007) in connection with the crimes of terrorism or conspiracy to commit terrorism. If granted the authority
covers written communications.

VI. Exclusion by Certain Rules of Evidence


1. The rule excluding secondary evidence when the primary or best evidence is available
2. The rule excluding hearsay evidence
3. The rule excluding privilege communications

VII. Kinds of Admissibility


A. Multiple Admissibility: when a material is asked by a party to be admitted as
evidence, the party presenting must inform the court of the purpose which the
material is intended to serve and the court then admits the material as evidence.
Multiple admissibility may mean either (i) the evidence is admissible for several
purposes or (ii) an evidence is not admissible for one purpose but may be
admitted for a different purpose if it satisfies all the requirements of the
other purpose
1. Examples of the first concept: (a) a knife may be admitted to prove the accused was armed with a deadly
weapon; to prove the weapon is far deadlier than the weapon of the victim; to prove it was the weapon of the
accused which cause the wounds and not some other instrument; to corroborate the statement of a witness who
claims he saw the accused holding a bladed instrument.

2. Example of the second concept: (a). the extra judicial confession of one of several accused may not be
admitted to prove there was conspiracy among them or to prove the guilt of the other co-accused but it maybe
admitted to prove the guilt of the confessant (b) the statement of the victim may not be admitted as a dying
declaration but as part of the res gestae.

B. Curative admissibility or fighting fire with fire or Opening the Door


1. This applies to a situation when improper evidence was allowed to be presented by one party, then the other
party may be allowed to introduce or present similar improper evidence but only to cure or to counter the
prejudicial effect of the opponents inadmissible evidence.
2. The party presenting must have raised an objection to the improper evidence, for if he did not, then it is
discretionary for the court to allow him to present curative evidence
3. The evidence sought to be countered should not refer to those which are incompetent due to an exclusionary
rule
4. Example: P vs. D for sum of money. P was allowed to introduce evidence that D did not pay his debt as shown
by his refusal to pay his indebtedness to X, Y and Z. Defendant may introduce evidence that he paid his debts
to A, B and C.

C. Conditional Admissibility: An evidence is allowed to be presented for the time


being or temporarily, subject to the condition that its relevancy or connection
to other facts will later be proven, or that the party later submit evidence that
it meets certain requirements of the law or rules. If the conditions are not
later met, the evidence will be stricken from the record.
1. Example: A Xerox copy of a document may be allowed to presented subject to the condition that the original
be later presented
2. Example: P vs. D to recover a parcel of land. P presents a document that the land belonged to X. If D
objects to it as being irrelevant, P can state that he will alter show that X sold the land to Y who in turn
sold it to Z and then to P. The Court may admit the document conditionally.

VIII. Policy on the Admissibility of Evidence


A. Policy of Liberality: In case a question arises as to whether or not a particular material should be
admitted as evidence, Courts are given wide discretion what to admit and to be liberal in admitting materials
offered as evidence, unless the material is clearly incompetent. The reasons are: (i) so that it may have a
substantial range of facts as basis for deciding the case and (ii) in case of appeal the appellate court may
have before it all the evidence to determine whether the decision appealed from is in accordance with the
evidence, (iii) to minimize any adverse effect of the non-admission upon the party affected.

B. Limitations:

1. Evidence may be excluded even if relevant if its probative value is outweighed by the risk that its
admission will cause:
a). undue or unfair prejudice
b). confusion of the issues
c). misleads the court
d). undue delay or waste of time

2. The court has the power to limit the presentation of additional evidence which are but cumulative, or to
prove points which a party has already well presented