The Manila Times - Comelec bound to retain Smartmatic

26 August 2017

By Al S. Vitangcol III | The Manila Times 

LDB, NBI, AMLC hide under cloak of bank secrecy law
THE Commission on Elections (Comelec) defended its budget of P16.15 billion for the year 2018 before the House of Representatives on Thursday. On the other hand, the Senate committee on banks, financial institutions and urrencies conducted a hearing on Wednesday pursuant to Senate Resolution 468.

The proposed budget of Comelec for 2018 is approximately P16 billion and a little more than half of it is for the rental of vote-counting machines.

This expenditure item was confirmed by Chairman Andres Bautista himself. He said that the Department of Budget had allocated the amount of P8.2 billion for the rental of counting machines, though they can use it for other purposes too. Bautista’s statement smacks of arrogation of power. Once an item is budgeted and approved by Congress, it cannot be realigned anymore. Anyway, this refutes Bautista’s pronouncements on what option to take for the 2019 mid-term elections.

Anak Pawis party-list Rep. Ariel Casilao directly asked Bautista:
“We manifested that the participation of Smartmatic tainted its [referring to the 2016 national elections]credibility and unfortunately [in the]2016 elections iyon pa rin ang nanalo despite our protests and despite our questions. Mayroon ba posibilidad by 2019 na… Ano ba ang pupwedeng gawin para hindi na maisama itong Smartmatic? (Is there a possibility by 2010…can anything be done to exclude Smartmatic?)”

Bautista replied, “Well, ngayon po, Mr. Congressman, wala pa pong pinipili ang Comelec en banc … kung ano po ang sistema ang gagamitin para sa ating 2019 midterm election. We are looking at six options. (The Comelec en banc has not yet decided on what system to use for our 2019 midterm election.)”

The first option, according to Bautista, is the refurbishment or upgrade of some 80,000 units of PCOS machines purchased in 2012. Second, is to exercise the “option to purchase” the vote-counting machines that were used in the 2016 elections, about 94,000 units in all. The lease of entirely new machines for 2019 is the third option. The fourth option, again according to Bautista, is to use new systems like DRE or other technologies developed in the country. The fifth option is to use a hybrid or mix of all these various options. (Bautista never mentioned a sixth option. DRE means“direct recording electronic”, an example of which is the touch screen system.)

All of these options point to only one supplier – Smartmatic. More telling is the P8.2 billion appropriation, which is for the “rental of counting machines.” It cannot be used for any other purpose. Bautista is seemingly misleading the congressmen.

Anti-money laundering violations
A public hearing, in aid of legislation, was conducted this week by the Senate committee on banks, financial institutions and currencies, chaired by Sen. Chiz Escudero, to look into possible violations of Republic Act 9160 (the Anti-Money Laundering Act), presumably with respect to Bautista’s questionable bank deposits. However, the inquiry elicited nothing from the resource persons. They all had the same reason – they are prohibited by the law on the secrecy of bank deposits (Republic Act 1405) to disclose any information.

The resolution in itself premised that Bautista is a politically exposed person (PEP). When asked if Bautista is indeed a PEP, lawyer Francis Lim, as counsel of Luzon Development Bank (LDB) refused to answer, citing the prohibitions of the bank secrecy law. It seems that Lim, or LDB for that matter, does not know the law, or is feigning ignorance to dodge the questions.

Section 2 of RA 1405, as amended, provides that “All deposits of whatever nature with banks or banking institutions in the Philippines. including investments in bonds x x x 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.” However, there are exceptions to this. One of which is “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.”

When queried if the LDB had filed reports with the Anti-Money Laundering Council (AMLC), lawyer Mel George Racela refused to answer on the ground that they are prohibited by the AMLA.

On the part of the National Bureau of Investigation (NBI), Atty. Minerva Retanal of the NBI’s Anti-Fraud Division followed suit and refused to divulge the nature of their investigations citing the same law on secrecy of bank deposits. Retanal should know that this prohibition applies only to “director, officer, employee, or agent of any bank” but not to government officials.

Section 55 of the General Banking Act is specific as to what constitutes prohibited transactions – “No director, officer, employee, or agent of any bank shall — (a) x x x (b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity: Provided, That with respect to bank deposits, the provisions of existing laws shall prevail.” Expressio unius est exclusio alterius. Verily, to express one thing is to exclude another.

Nobody in the Senate inquiry wanted to mention the name of Bautista. Nobody wanted to disclose anything. Even the senators themselves are not pushing for it.

What is happening here?