G.R. No. 200238 - PHILIPPINE SAVINGS BANK and PASCUAL M.

GARCIA III, as representative of Philippine

Savings Bank and his personal capacity, Petitioners, v. SENATE IMPEACHMENT COURT, consisting of the
Senators of the Republic of the Philippines, acting as Senator Judges, namely Juan Ponce Enrile, Jinggoy Ejercito
Estrada, Vicente C. Sotto III, Alan Peter S. Cayetano, Edgardo J. Angara, Joker P. Arroyo, Pia S. Cayetano,
Franklin M. Drilon, Francis G. Escudero, Teofisto Guingona III, Gregorio B. Honasan II, Panfilo M. Lacson, Manuel
M. Lapid, Loren B. Legarda, Ferdinand R. Marcos, Jr., Sergio R. Osmea III, Kiko Pangilinan, Aquilino Pimentel III,
Ralph G. Recto, Ramon Revilla, Jr., Antonio F. Trillanes IV, Manny Villar, and the Honorable Members of the
Prosecution Panel of the House of Representatives, Respondents.

Promulgated:

February 9, 2012

X --------------------------------------------------------------------------------------------- X

CONCURRING OPINION

BRION, J.:

I concur with the majoritys ruling to issue a temporary restraining order (TRO) in favor of petitioner

Philippine Savings Bank against the Senate Impeachment Court.

The Rules of Court declare that a preliminary injunction may be issued when the following grounds are

established:

SECTION 3. Grounds for issuance of preliminary injunction. x x x

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission

or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or

perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work

injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some

act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to

render the judgment ineffectual.

The Rules further require that a hearing be conducted to allow an applicant the opportunity to establish any of the

above grounds, and the party sought to be enjoined (after due notice) to contest the same. [1] No preliminary

injunction may issue until a hearing is conducted. Prior to the hearing, however, prevailing circumstances may

require intervention by the Court to at least preserve the status quo until the merits of the prayer for a preliminary

injunction is heard. Thus, the Rules authorize the court to issue a temporary restraining order when there is extreme

urgency and the applicant will suffer grave injustice and irreparable injury. In other words, the purpose of the

temporary restraining order goes no further than to preserve the status quo until the hearing of the application for

preliminary injunction which cannot be issued ex parte. However, the issuance of the TRO should be justified by the

existence of extreme urgency and a grave violation of the applicants right that will cause him irreparable injury if the

other party is not enjoined. A review of the facts and the applicable law convinces me that these standards prevail

in the present case.

RA No. 6426 provides for the absolute confidentiality of foreign

currency deposits

The subject matter of the subpoenas issued by the Senate sitting as an Impeachment Court are five foreign

deposit accounts with petitioner, all allegedly in the name of Renato C. Corona. Republic Act (RA) No. 6426, as

amended, is the law applicable to foreign currency deposits. [2] The law provides for the absolute confidentiality of

foreign currency deposits, as stated in Section 8:

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. (As amended by PD No. 1035, and further amended by
PD No. 1246, prom. Nov. 21, 1977.)

RA No. 6426 guarantees a clear right to the depositors and demands an exacting obligation from banks to maintain

the absolute confidentiality of the foreign currency deposits. The failure of a bank to fulfill its obligation under the

law subjects the bank and its officials to criminal liability under Section 10 of RA No. 6426, [3] and its authority to

accept new foreign currency deposits may be revoked or suspended by the Bangko Sentral ng Pilipinas under

Section 87 of the Manual of Regulations on Foreign Exchange Transactions. [4] More than this, the banks failure in
its obligation given media coverage and the non-legal slant it can give gives rise to a real danger that the banks

reputation may suffer. In a very bad situation, the effect goes beyond the banks reputation and can adversely affect

the economy.

The only exception provided by the law is when there is a written permission by the depositor.Jurisprudence

declares that [t]here is only a single exception to the secrecy of foreign currency deposits, that is, disclosure is

allowed only upon the written permission of the depositor.[5] This single excepting circumstance, however, does not

obtain in the present case; hence, the banks petition.

Given that a subpoena was already issued requiring the petitioner Bank to testify and to produce before

the Senate sitting as an Impeachment Court documents pertaining to the foreign currency deposits in the name of

Renato C. Corona (indeed, the on-going impeachment proceedings center on this matter as petitioners president

has been put on the witness stand), there is extreme urgency for the Court to address the petitioners prayer for

TRO. The possibility of the prejudice that may result is too real and too far-ranging for this Court to disregard.

Refutation of the Dissents

In the Courts discussion, objections have been raised as to the absolute terms of the confidentiality that RA No. 6426

guarantees by claims that the Court in several cases has relaxed or liberalized the application of the rule. These cases

in particular are Salvacion v. Central Bank of the Philippines,[6] China Banking Corporation v. Court of

Appeals[7] and Ejercito v. Sandiganbayan.[8] The cited cases, however, are off-tangent and in fact, did not relax or

liberalize the rule on absolute confidentiality of foreign deposit accounts.

The impact of the principle of stare decisis that is cited as basis is limited; specific judicial decisions are

binding only on the parties to the case and on future parties with similar or identical factual situations.[9] As will be

explained below, the cited cases do not share the same factual antecedents as the present case.

First, the Court in Salvacion made it abundantly clear that because of the peculiar

circumstances[10]obtaining in the case, the rule that exempts dollar deposits (of a transient) from attachment,

garnishment, or any other order or process of any court, legislative body, government agency or any administrative

body, cannot serve as an instrument of injustice and deprive a Philippine national who is the victim of a heinous
crime of the damages awarded to her by the court. The peculiar circumstances in Salvacion hardly obtains in the

present case, so that the ruling cannot be applied to Chief Justice Coronas impeachment trial.

Second, in China Bank, the Court ruled that the respondent, as owner of the funds (dollar deposit checks)

unlawfully taken and which were deposited in China Bank, had the right to inquire into the said deposits because his

consent was deemed given. From this perspective, China Bank is an example of the waiver done by the rightful

owner of the absolute confidentiality of foreign currency deposits. This situation does not obtain in the present

case. At any rate, the Court also admitted that due to the distinctive circumstances attendant to the case, its ruling

was on a limited pro hac vice. This express limitation negates any application of the ruling to the present case, save

only if the facts of this ruling are similar or identical to Chief Justice Coronas case, which they are not.

Third, Ejercito does not involve foreign currency deposits and, therefore, should be rejected outright as a

ruling applicable to the present case. In Ejercito, the Court held that the petitioners accounts are no longer protected

by RA No. 1405 (Secrecy of Bank Deposits Law) because of the presence of two exceptions, namely: (1) the

examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public

officials (plunder case against the petitioner is analogous to bribery or dereliction of duty) and (2) the money

deposited or invested is the subject matter of litigation. Aside from the involvement of local currency deposits and

the inapplicability of RA No. 1405 to a foreign currency deposit situation, the two exceptions are not present in the

Chief Justices present impeachment case.

A further objection to the application of the absolute confidentiality rule of RA No. 6426 posits that it

is intended only to benefit foreign investors. The whereas clauses in Presidential Decree No. 1246 (1977), the

amendatory law of RA No. 6426, is cited, and these clauses state:

WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore
Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to
certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business
in the Philippines;

WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits
from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking
institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the
same to loans and investments in the Philippines, thus directly contributing to the economic development of the country;

Reference to the whereas clause to justify the non-application of the absolute confidentiality rule, however,

is unnecessary and inappropriate in light of the clear language of RA No. 6426. Preambles, or whereas clauses x x x
are not part of the act x x x and consequently cannot enlarge or confer powers, nor control the words of the act,

unless they are doubtful or ambiguous.[11] Stated otherwise, as a tool for statutory construction, preambles and

whereas clauses may be utilized only if an ambiguity exists in the statute. In Echegaray v. Secretary of Justice,[12] this

Court had occasion to declare:

a preamble is not really an integral part of a law. It is merely an introduction to show its intent or purposes. It is merely an introduction to
show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation, much less prevail over its text.

RA No. 6426, by its plain terms, is clear that all foreign currency deposits are considered to be absolutely

confidential. The law expressly refers to deposits not to the identity, nationality, or residence of

the depositors. Thus, to claim that the depositors must be considered is misplaced. Also, to so claim is to read into

the clear words of the law exemptions that its literal wording does not support. To so claim may even amount to

judicial legislation.

In light of the express and clear terms of the law, the basic rule of statutory construction should therefore

apply: legislative intent is to be determined from the language employed, and where there is no ambiguity in the

words, there is no room for construction.[13] In the absence of ambiguity, the Court may not construe a laws

provisions by taking into account questions of expediency, good faith, practical utility and other similar reasons so

as to relax non-compliance therewith.[14]

Yet another objection cites the statutory developments, which according to proponents, indicate that the

secrecy guaranteed by the law has steadily declined: while the general rule facially appears to be secrecy, the

voluminous exceptions have, in substance, created a rule of exceptions.[15] This thesis is supported by Tajans

Article Emerging from Secrecy Space: From Bank Secrecy to Financial Transparency, which discusses the recent trend

in the international arena pertaining the international tax standard on exchange of information (requiring banking

information to be made available upon request of foreign tax authorities) and the enactment of RA No. 10021 or the

Exchange of Information on Tax Matters Act of 2009. The article surveys Philippine bank secrecy law as it has evolved

and how it relates to the present global movement towards financial transparency. [16] From this survey, the Article

argues that despite pronouncements by the Courts, the actuations by both the Court and the Legislature indicate

that the secrecy guaranteed by the law has steadily declined.[17] It notes that while the general rule appears to be

secrecy, the voluminous exceptions have, in substance, created a rule of exceptions.[18]

 Despite this position, the article significantly recognizes that jurisprudence of the Court points to the

other direction. In short, the article at the same time admits that bank secrecy remains the general rule. [19] Indeed,

the Court essentially debunked the Articles premises by stating, in the 2008 case of Republic of the Philippines v.

Eugenio,[20] that:

Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the Philippines.
Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies as t he
general rule. It falls within the zones of privacy recognized by our laws. The framers of the 1987 Constitution likewise recognized that bank
accounts are not covered by either the right to information under Section 7, Article III or under the requirement of full public disclosure
under Section 28, Article II. Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged to conserve the absolutely
confidential nature of Philippine bank deposits. [Emphasis supplied.]

Notably, the Court declared that bank accounts laws are not covered by the right to information under Article III,

Section 7 and the requirement of full public disclosure under Article II, Section 28 of the Constitution, which is

statutorily implemented through RA No. 6713 (Code of Conduct and Ethical Standards for Public Officials and

Employees). The Constitution in fact declares that the publics right to information is subject to such limitations as

may be provided by law.[21] The implied repeal of inconsistent laws that RA No. 6713 mandates[22] cannot be

interpreted as a repeal of the express substantive right granted to confidentiality under Section 8 of RA No. 6426,

even if the latter was enacted earlier. Implied repeals are not favored; the presumption is against inconsistency or

repugnance and, accordingly, against implied repeals.[23]

The ruling in Republic v. Eugenio,[24] to my mind, reflects the prevailing view under our jurisprudence

pointing towards the retention and dominance of the absolute confidential nature of bank deposits. In the recent

case of BSB Group, Inc. v. Go (a 2010 case),[25] the Court reiterated the importance of financial privacy. As observed

by Tajan, despite the multiplication of the exceptions to bank secrecy, the Court declared that bank secrecy, which

falls within the legally-recognized zones of privacy, remains the general rule and that the present legal order is

obliged to conserve the absolutely confidential nature of bank deposits. The Court found disfavor in construing the

exceptions in a manner that authorizes unwarranted and unbridled inquiry into bank accounts: [26]

A final note. In any given jurisdiction where the right of privacy extends its scope to include an individuals financial privacy rights
and personal financial matters, there is an intermediate or heightened scrutiny given by courts and legislators to laws infringing such
rights. Should there be doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire
into such accounts, then such doubts must be resolved in favor of the former. This attitude persists unless congress lifts its finger to
reverse the general state policy respecting the absolutely confidential nature of bank deposits.
The view expressed that the majoritys TRO is a mockery of all existing laws designed to insure transparency and good

governance in public service[27] is likewise not well taken. This view declares that the majority ruling advises all

government officials and employees that they can legally evade reporting their actual assets in their Statement of

Assets, Liabilities, and Net Worth x x x by simply opening foreign currency deposit accounts with local banks.[28]

The majority makes no such ruling in granting the TRO. The question the Court has resolved for now is

whether the facts and the law justify the issuance of a TRO. The object of a TRO, as earlier mentioned, is to simply

maintain the status quo. The TRO, to be sure, is not a ruling encouraging public officials to use foreign deposits to

legally evade the correct SALN report. To so claim is to extend the import of TRO beyond its clear objective to

maintain the status quo.

In light of these considerations, I reiterate my vote for the grant of the petitioners prayer for the issuance

of the TRO.