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Weird Provisions of the AML Law
Oct 5,2001
 

The bicameral conference committee report of the Senate and House of Representatives was finished in the wee hours of Saturday, Sept. 29, 2001 and that is probably the reason why the resulting law, Republic Act No. 9160, the Anti-Money Laundering Law, contains weird provisions. In the rush to meet the Sept. 30, 2001 deadline set by the international watchdog Financial Action Task Force (FATF) for us to come up with an anti-money laundering law, the tired legislators were vulnerable to errors, if not to unsound judgment, as well as ill-disguised attempts by some to emasculate an otherwise good piece of legislation.

Take the second paragraph of Section 6. It orders that "any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under this Act without prejudice to the freezing and other remedies provided".

Notice the sly phrase "shall be given precedence". Without using the more forthright term of art, "prejudicial question", the lawmakers managed to convey the obvious intent to defer the prosecution for money laundering until the termination of the prosecution for the unlawful event. Notice also the all-embracing scope of "any proceeding relating to the unlawful activity" and of "any offense or violation under this Act". In effect, a certain sequence is required to be followed: first, finish all the proceedings (including appeals, certiorari and other methods of legal delay) relating to the predicate offense, and then, and only then, start (remember, "any"!) proceedings for money laundering.

To illustrate, assume that money is to be laundered, after effectivity of the law, that were proceeds from the acts alleged to constitute the crime of plunder charged against the former president. The Anti-Money Laundering Council (AMLC) would have to wait for the termination of the plunder case before investigating ("any proceeding"!) the laundering of the proceeds. When that will happen is anybody’s guess, since after months of legal skirmishes between the Ombudsman and the President’s nine-lawyer defense team (which at the first trial date turned out to be a "none-lawyer team"), the only exciting development is the ex-President’s shift from shoes to slippers when attending court sessions.

Let’s jump to Section 13(c). Under that sub-section, the AMLC is given the power to request any foreign state for assistance in applying for an order of forfeiture of any monetary instrument or property in the proper court of that foreign state.. Well and good.

But the request for assistance must be "accompanied by an authenticated copy of the order of the regional trial court ordering the forfeiture of the said monetary instrument or property of a convicted offender and an affidavit of the clerk of court stating that the conviction and the order of forfeiture are final and that no further appeal lies in respect of either".

Thus, assuming the Lacson accusations against Perez and the Corpuz accusations against Lacson, regarding their alleged accounts abroad, to be true for both of them, the AMLC, in order to forfeit their money abroad must first file a forfeiture case or prosecute them for money laundering here and wait for a final judgment (read that to mean, decision of the Supreme Court, after denial of motion for reconsideration).

That assumes that a court here can correctly order the forfeiture of money or property that is not within its jurisdiction. And even if it could, that, at the very least, is time enough for either Lacson or Perez, assuming again they do have money abroad, to enjoy their funds, to their hearts’ surfeit. Smart guys, these members of Congress.

There are other weird provisions, surprisingly, contributed by the Senate. As if it could be lawfully so used, the first paragraph of Section 16 says that the law "shall not be used for political persecution or harassment or as an instrument to hamper competition in trade and commerce". This provision is sure to elicit from the FATF exactly the same reaction I get from foreign visitors when I translate, upon their request, the ubiquitous sign "Bawal ang umihi dito". That the prohibition had to be in black and white says a lot about our culture.

But more serious is the fact that the law contains no definition of what constitutes "political persecution or harassment". As is usual in these cases, this is an open invitation for a court action to enjoin the work of the AMLC on the ground that it is engaged in "political persecution or harassment".

The second paragraph of the same section lacks the subtlety of the first. It prohibits the filing of a money-laundering case, or the freezing of assets, or its attachment or forfeiture "to the prejudice of a candidate for an electoral office during an election period". It seems our politicians have really perfected the art of using the electoral process to get a reprieve from, and possibly to escape altogether, criminal prosecution for past misdeeds.

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