I was flustered and upset at the impeachment trial on Valentine’s day. Everybody was speaking out-of-sync and they were discussing matters totally out of legal range. The Senate was like a band playing a cacophony discordant tunes.
I can understand the concern of Senator Honasan in expressing his view that the rights of CJ Corona could be trampled upon by the request of the prosecutors to subpoena his bank records that were not verified. He was referring to the provision of the constitution against unreasonable search and seizure.
Not being a lawyer, one can excuse Senator Honasan for equating the subpoena to a search warrant. But for Senator Escudero to talk about “fruit of poisonous tree” because the bank records of CJ Corona was obtained by the prosecution was beyond me.
A subpoena is a legal process addressed to a person to bring the records in his possession to the court (duces tecum) or for the person to testify in court (ad testificandum), while a search warrant is an order from the court authorizing the police to conduct a search on the premises under the control of the person suspected of illegal activities and bring those papers or contrabands to the court. There is a big difference between the two. A subpoena can be issued ministerially by the judge or on his sole discretion while a warrant can be issued only after the judge has examined the applicant under oath and he is convinced of grounds for the issuance of the warrant.
The subpoena will not come under the scrutiny of the bill of rights on unreasonable search and seizure. This constitutional right against unreasonable search and seizure are confined to searches against one’s domicile, office or his car of which he has a reasonable expectation of some privacy. Assuming for the sake of argument that the subpoena is a search warrant, CJ Corona cannot invoke this particular right because he has no reasonable expectation of privacy over the premises of the bank or of its records. Only the bank can invoke privacy violation under unreasonable search and seizure provision of the constitution. His privacy protection is provided by the statute (secrecy deposit act) but not by the constitution hence the “fruit of poisonous tree doctrine” which is a principle under illegal search and seizure under the bill of rights does not come into operation.
Moreover, search and seizure without warrant is the rule but there are well-defined exceptions. For example: 1) the police has a reasonable ground to suspect that a crime was being committed; 2) he is in hot pursuit of the suspect; 3) presence of contraband in plain view of the police officer or 4) the person consented to the search; 4) evanescent principle (car with contrabands about to speed away will justify the search without warrant for obvious reason). Please take note that the doctrine of “fruit of poisonous tree” was invented by the court as a deterence against the police using the strong arm of the law to violate the “domicile” of the person or places for which he has some reasonable expectation of privacy.
Here, there was no police intervention in the search for CJ Corona’s bank records and he could not invoke privacy violation because he has no reasonable expectation over the bank’s premises.
It was hilarious for Senator Escudero to talk about the “fruit of poisonous tree doctrine” though he said that the bank records could be admitted because the one who leaked the bank records of CJ Corona to the prosecution was not a police officer or his agent. These documents however, are admissible because the bank produced them by virtue of a subpoena, not because the police was not involved in the search.
The “fruit of poisonous tree” is a doctrine under “illegal search and seizure” which simply means that if the evidence was secured without a warrant, the court should not admit it. But as explained earlier, a subpoena is not a warrant.
That the prosecution did not vouch for the integrity of those accounts which they wish to be subpoenaed does not in any way bring the matter under “unreasonable search and seizure” that is prohibited. If it turns out that those unverified bank accounts truly exist, the fact that the prosecution was not sure of their existence apriori, would be of no moment. These records are admissible as evidence of “ill-gotten” wealth or wealth undisclosed by CJ Corona.
The only plausible argument about the non-admissibility of the bank records of CJ Corona is, if it violates the bank secrecy act. As far as the peso accounts are concerned, the law is clear that the impeachment court is exempted from that coverage and it can issue a subpoena of those accounts.
As regards the dollar account, the majority members of the Supreme Court ruled that the secrecy is absolute while the minority thinks it is not because the law was meant to encourage foreign investors to invest their dollars in the country of which CJ Corona was not.
Furthermore, the minority said that R.A. 6426 cannot be used as a shield to conceal malfeasance and other unlawful conduct and the majority opinion has therefore created a safe haven for criminal acts and cultivated an atmosphere of impunity. Certainly, this was never the intendment of the law.