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Amla Report Paper
Amla Report Paper
Amla Report Paper
COMMERCIAL LAWS I
ATTY. WILLIAM CARPENTERO
MAY 2023
What is RA 9160?
An Act defining the crime of Money Laundering, providing penalties therefore and for other purposes.
What is RA 9194?
It introduced the following amendments to the covered transactions, added suspicious transactions, and
reporting of covered and suspicious transactions.
What is RA 10167?
On petition for Freeze Order, the amendment provides that a person whose account has been frozen
may file a motion to lift the freeze order and that no court shall issue a temporary restraining order or
writ of injunction against any freeze order.
On the Application for Bank inquiry, the amendment provides the Court of Appeals has jurisdiction on
applications for bank inquiry and, that the AMLC may inquire into any deposits with any banking or non-
banking institutions upon an ex parte motion.
What is RA 10365?
On Covered Institutions, the amendment provides that it includes persons - both natural and juridical.
The following were added to the enumeration of covered persons:
Jewelry Dealers in precious metals and stones, Company service providers and persons who manages
client's money and bank accounts.
It amended the definition of Money Laudering and included additional unlawful activities.
Furthermore, it amended the powers of the Anti-Money Laundering Council (AMLC) requiring it to apply
before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged
to be laundered, proceeds from or instrumentalities used in or intended for use in any unlawful activity.
What is RA 10927?
The amendment designates casinos as a covered person and adds more definitions into the original
AMLA.
It also amended the freezing of monetary property section of the original AMLA act.
Salient Features
RA 9160 as amended by RA 9194, 10167, 10365, 10927
1. Criminalizes Money Laundering
2. Creates a Financial Intelligence Unit
3. Imposes requirements on customer identification, record keeping and reporting of covered and
suspicious transactions
4. Relaxes strict bank deposits secrecy laws
5. Provides for Bank inquiry and Freeze ex parte petition/ seizure/ forfeiture/ recovery of dirty
money and property
6. Provides for international cooperation
"(2) insurance companies, pre-need companies and all other persons supervised or
regulated by the Insurance Commission (IC);
"(3) (i) securities dealers, brokers, salesmen, investment houses and other similar
persons managing securities or rendering services as investment agent, advisor, or
consultant,
(ii) mutual funds, close-end investment companies, common trust funds, and
other similar persons, and
(iii) other entities administering or otherwise dealing in currency, commodities or
financial derivatives based thereon, valuable objects, cash substitutes and other
similar monetary instruments or property supervised or regulated by the
Securities and Exchange Commission (SEC);
"(4) jewelry dealers in precious metals, who, as a business, trade in precious metals, for
transactions in excess of One million pesos (P1,000,000.00); "
“(5) jewelry dealers in precious stones, who, as a business, trade in precious stones, for
transactions in excess of One million pesos (P1,000,000.00);
"(6) company service providers which, as a business, provide any of the following
services to third parties:
(i) acting as a formation agent of juridical persons;
(ii) acting as (or arranging for another person to act as) a director or corporate
secretary of a company, a partner of a partnership, or a similar position in
relation to other juridical persons;
(iii) providing a registered office, business address or accommodation,
correspondence or administrative address for a company, a partnership or any
other legal person or arrangement; and
(iv) acting as (or arranging for another person to act as) a nominee shareholder
for another person; and
"Notwithstanding the foregoing, the term ‘covered persons’ shall exclude lawyers and
accountants acting as independent legal professionals in relation to information concerning their
clients or where disclosure of information would compromise client confidences or the attorney-
client relationship: Provided, That these lawyers and accountants are authorized to practice in the
Philippines and shall continue to be subject to the provisions of their respective codes of conduct
and/or professional responsibility or any of its amendments.”
(c ) “Monetary instrument”
(1) coins or currency of legal tender of the Philippines, or of any other country;
(2) drafts, checks and notes;
(3) securities or negotiable instruments, bonds, commercial papers, deposit certificates,
trust certificates, custodial receipts or deposit substitute instruments, trading orders,
transaction tickets and confirmations of sale or investments and money-marked
instruments; and
(4) other similar instruments where title thereto passes to another by endorsement,
assignment or delivery.
(d) “Offender”
● any person who commits money laundering offense
(e) “Person”
● any natural or juridical person
(f) “Proceeds”
● an amount derived or realized from an unlawful activity
(h) “ Transaction”
refers to any act establishing a right or obligation or giving rise to any contractual or legal
relationship between parties thereto
He must be a member of the Philippine Bar, at least thirty-five (35) years of age and of good
moral character, unquestionable integrity and known probity. All members of the Secretariat
must have served for at least five (5) years either in the Insurance Commission, the Securities
and Exchange Commission or the Bangko Sentral ng Pilipinas (BSP) and shall hold full-time
permanent positions within the BSP.
(c) Reporting of Covered Transactions. — Covered institutions shall report to the AMLC
all covered transactions within five (5) working days from occurrence thereof, unless the
Supervising Authority concerned prescribes a longer period not exceeding ten (10)
working days. RA 9160
When reporting covered transactions to the AMLC, covered institutions and their
officers, employees, representatives, agents, advisors, consultants or associates shall
not be deemed to have violated Republic Act No. 1405, as amended; Republic Act No.
6426, as amended; Republic Act No. 8791 and other similar laws, but are prohibited
from communicating, directly or indirectly, in any manner or by any means, to any
person the fact that a covered transaction report was made, the contents thereof, or
any other information in relation thereto. In case of violation thereof, the concerned
officer, employee, representative, agent, advisor, consultant or associate of the covered
institution, shall be criminally liable. However, no administrative, criminal or civil
proceedings, shall lie against any person for having made a covered transaction report in
the regular performance of his duties and in good faith, whether or not such reporting
results in any criminal prosecution under this Act or any other Philippine law.
When reporting covered transactions to the AMLC, covered institutions and their
officers, employees, representatives, agents, advisors, consultants or associates are
prohibited from communicating, directly or indirectly, in any manner or by any means,
to any person, entity, the media, the fact that a covered transaction report was made,
the contents thereof, or any other information in relation thereto.
Neither may such reporting be published or aired in any manner or form by the mass
media, electronic mail, or other similar devices. In case of violation thereof, the
concerned officer, employee, representative, agent, advisor, consultant or associate of
the covered institution, or media shall be held criminally liable.
(c) Reporting of Covered and Suspicious Transactions. – Covered persons shall report to
the AMLC all covered transactions and suspicious transactions within five (5) working
days from occurrence thereof, unless the AMLC prescribes a different period not
exceeding fifteen (15) working days. RA 10365
Lawyers and accountants acting as independent legal professionals are not required to
report covered and suspicious transactions if the relevant information was obtained in
circumstances where they are subject to professional secrecy or legal professional
privilege.
When reporting covered or suspicious transactions to the AMLC, covered persons and
their officers and employees are prohibited from communicating, directly or indirectly,
in any manner or by any means, to any person or entity, the media, the fact that a
covered or suspicious transaction has been reported or is about to be reported, the
contents of the report, or any other information in relation thereto. Neither may such
reporting be published or aired in any manner or form by the mass media", electronic
mail, or other similar devices. In case of violation thereof, the concerned officer and
employee of the covered person and media shall be held criminally liable.
No court shall issue a temporary restraining order or writ of injunction against any freeze order
issued by the AMLC except the Court of Appeals or the Supreme Court. RA 9160
SEC. 10. Freezing of Monetary Instrument or Property. – Upon a verified ex parte petition by
the AMLC and after determination that probable cause exists that any monetary instrument or
property is in any way related to an unlawful activity as defined in Section 3(i) hereof, the Court
of Appeals may issue a freeze order which shall be effective immediately, and which shall not
exceed six (6) months depending upon the circumstances of the case: Provided, That if there is
no case filed against a person whose account has been frozen within the period determined by
the court, the freeze order shall be deemed ipso facto lifted: Provided, further, That this new
rule shall not apply to pending cases in the courts. In any case, the court should act on the
petition to freeze within twenty-four (24) hours from filing of the petition. If the application is
filed a day before a nonworking day, the computation of the twenty-four (24)-hour period shall
exclude the nonworking days.
"A person whose account has been frozen may file a motion to lift the freeze order and the
court must resolve this motion before the expiration of the freeze order.
"No court shall issue a temporary restraining order or a writ of injunction against any freeze
order, except the Supreme Court." RA 10167
When it has been established that there is probable cause that the deposits or investments,
including related accounts involved, are related to an unlawful activity as defined in Section 3(i)
hereof or a money laundering offense under Section 4.
Related accounts
accounts, the funds and sources of which originated from and/or are materially linked to
the monetary instrument(s) or property(ies) subject of the freeze order(s)
Conditions
1) A court order ex parte must first be obtained before the AMLC can inquire into these
related Accounts
2) The Court of Appeals shall act on the application within twenty-four (24) hours from
filing of the application."
3) To ensure compliance with this Act, the Bangko Sentral ng Pilipinas may, in the course
of a periodic or special examination, check the compliance of a Covered institution with
the requirements of the AMLA and its implementing rules and regulations."
Forfeiture Provisions
SEC. 12. Forfeiture Provisions.
(a) Civil Forfeiture. — – Upon determination by the AMLC that probable cause exists
that any monetary instrument or property is in any way related to an unlawful activity
as defined in Section 3(i) or a money laundering offense under Section 4 hereof, the
AMLC shall file with the appropriate court through the Office of the Solicitor General, a
verified ex parte petition for forfeiture, and the Rules of Court on Civil Forfeiture shall
apply.
"The forfeiture shall include those other monetary instrument or property having an
equivalent value to that of the monetary instrument or property found to be related in
any way to an unlawful activity or a money laundering offense, when with due diligence,
the former cannot be located, or it has been substantially altered, destroyed, diminished
in value or otherwise rendered worthless by any act or omission, or it has been
concealed, removed, converted, or otherwise transferred, or it is located outside the
Philippines or has been placed or brought outside the jurisdiction of the court, or it has
been commingled with other monetary instrument or property belonging to either the
offender himself or a third person or entity, thereby rendering the same difficult to
identify or be segregated for purposes of forfeiture.
(b) Claim on Forfeited Assets. – Where the court has issued an order of forfeiture of the
monetary instrument or property in a criminal prosecution for any money laundering
offense defined under Section 4 of this Act, the offender or any other person claiming an
interest therein may apply, by verified petition, for a declaration that the same
legitimately belongs to him and for segregation or exclusion of the monetary instrument
or property corresponding thereto.
(c) Payment in Lieu of Forfeiture. – Where the court has issued an order of forfeiture of
the monetary instrument or property subject of a money laundering offense defined
under Section 4, and said order cannot be enforced because any particular monetary
instrument or property cannot be located, or it has been substantially altered,
destroyed, diminished in value or otherwise rendered worthless by any act or omission,
directly or indirectly, attributable to the offender, or it has been concealed, removed,
converted, or otherwise transferred to prevent the same from being found or to avoid
forfeiture thereof, or it is located outside the Philippines or has been placed or brought
outside the jurisdiction of the court, or it has been commingled with other monetary
instruments or property belonging to either the offender himself or a third person or
entity, thereby rendering the same difficult to identify or be segregated for purposes of
forfeiture, the court may accordingly order the convicted offender to pay an amount
equal to the value of said monetary instrument or property. This provision shall apply in
both civil and criminal forfeiture."
(b) knowingly performing or failing to perform an 4 to 7 years imprisonment and a fine of not less
act in relation to any monetary instrument or than P1.5 Million but not more than P3 Million;
property involving the proceeds of any unlawful RA 9160
activity as a result of which he facilitated the
offense of money laundering; RA 9160
SEC. 14. Penal Provisions. – (c) 6 months to 4 years imprisonment and a fine
(c) reporting or filing with malice, or in bad faith, of not less than P100,000 but not more than
a completely unwarranted or false information P500,000; provided that the offender is not
relative to money laundering transaction against entitled to the benefits of the Probation Law; RA
any person; RA 9194 9194
Political Harassment
SEC. 16 - Prohibitions Against Political Harassment
This Act shall not be used for political prosecution or harassment or as an instrument to
hamper competition in trade and commerce.
No case for money laundering may be filed against and no assets shall be frozen,
attached or forfeited to the prejudice of a candidate for an electoral office during an
election period.
Restitution
SEC. 17 – Restitution – Restitution for any aggrieved party shall be governed by the
provisions of the New Civil Code.
Programs
• Banks usually have an Anti-Money Laundering Unit, which serves as watch dogs to determine
the identity of their customers
• Customer Due Diligence or CDD
• Know Your Customer or KYC
• BSP’s Money Laundering and Terrorist Financing Prevention Program
Facts
Challenged in this petition for certiorari and prohibition under Rule 65 of the Rules of Court is the
constitutionality of Section 11 of R.A No. 9160, the Anti-Money Laundering Act, as amended, specifically
the Anti-Money Laundering Council's authority to file with the Court of Appeals (CA) in this case, an ex-
parte application for inquiry into certain bank deposits and investments, including related accounts based
on probable cause.
In 2015, a year before the 2016 presidential elections, reports abounded on the supposed
disproportionate wealth of then Vice President Jejomar Binay and the rest of his family, some of whom
were likewise elected public officers. The Office of the Ombudsman and the Senate conducted
investigations and inquiries thereon.
From various news reports announcing the inquiry into then Vice President Binay's bank accounts,
including accounts of members of his family, petitioner Subido Pagente Certeza Mendoza & Binay Law
Firm (SPCMB) was most concerned with the article published in the Manila Times on 25 February 2015
entitled "Inspect Binay Bank Accounts" which read, in pertinent part:
xxx The Anti-Money Laundering Council (AMLC) asked the Court of Appeals (CA) to allow the [C]ouncil to
peek into the bank accounts of the Binays, their corporations, and a law office where a family member
was once a partner.
xx xx
Also the bank accounts of the law office linked to the family, the Subido Pagente Certeza Mendoza &
Binay Law Firm, where the Vice President's daughter Abigail was a former partner.
By 8 March 2015, the Manila Times published another article entitled, "CA orders probe of Binay 's
assets" reporting that the appellate court had issued a Resolution granting the ex-parte application of the
AMLC to examine the bank accounts of SPCMB. Forestalled in the CA thus alleging that it had no
ordinary, plain, speedy, and adequate remedy to protect its rights and interests in the purported ongoing
unconstitutional examination of its bank accounts by public respondent Anti-Money Laundering Council
(AMLC), SPCMB undertook direct resort to this Court via this petition for certiorari and prohibition on the
following grounds that the he Anti-Money Laundering Act is unconstitutional insofar as it allows the
examination of a bank account without any notice to the affected party: (1) It violates the person's right to
due process; and (2) It violates the person's right to privacy.
Issues:
On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical
seizure of property of the account holder. What the bank inquiry order authorizes is the examination of the
particular deposits or investments in banking institutions or non-bank financial institutions. The monetary
instruments or property deposited with such banks or financial institutions are not seized in a physical
sense, but are examined on particular details such as the account holder's record of deposits and
transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank
inquiry order cannot be physically seized or hidden by the account holder. Said records are in the
possession of the bank and therefore cannot be destroyed at the instance of the account holder alone as
that would require the extraordinary cooperation and devotion of the bank.
At the stage in which the petition was filed before us, the inquiry into certain bank deposits and
investments by the AMLC still does not contemplate any form of physical seizure of the targeted corporeal
property.
2. No. The AMLC functions solely as an investigative body in the instances mentioned in Rule 5.b.26
Thereafter, the next step is for the AMLC to file a Complaint with either the DOJ or the Ombudsman
pursuant to Rule 6b. Even in the case of Estrada v. Office of the Ombudsman, where the conflict arose at
the preliminary investigation stage by the Ombudsman, we ruled that the Ombudsman's denial of Senator
Estrada's Request to be furnished copies of the counter-affidavits of his co-respondents did not violate
Estrada's constitutional right to due process where the sole issue is the existence of probable cause for
the purpose of determining whether an information should be filed and does not prevent Estrada from
requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even during trial.
Plainly, the AMLC's investigation of money laundering offenses and its determination of possible money
laundering offenses, specifically its inquiry into certain bank accounts allowed by court order, does not
transform it into an investigative body exercising quasi-judicial powers. Hence, Section 11 of the AMLA,
authorizing a bank inquiry court order, cannot be said to violate SPCMB's constitutional right to due
process.
3. No. We now come to a determination of whether Section 11 is violative of the constitutional right to
privacy enshrined in Section 2, Article III of the Constitution. SPCMB is adamant that the CA's denial of its
request to be furnished copies of AMLC's ex-parte application for a bank inquiry order and all subsequent
pleadings, documents and orders filed and issued in relation thereto, constitutes grave abuse of discretion
where the purported blanket authority under Section 11: ( 1) partakes of a general warrant intended to aid
a mere fishing expedition; (2) violates the attorney-client privilege; (3) is not preceded by predicate crime
charging SPCMB of a money laundering offense; and ( 4) is a form of political harassment [of SPCMB' s]
clientele.
We thus subjected Section 11 of the AMLA to heightened scrutiny and found nothing arbitrary in the
allowance and authorization to AMLC to undertake an inquiry into certain bank accounts or deposits.
Instead, we found that it provides safeguards before a bank inquiry order is issued, ensuring adherence to
the general state policy of preserving the absolutely confidential nature of Philippine bank accounts:
1. The AMLC is required to establish probable cause as basis for its ex-parte application for bank
inquiry order;
2. The CA, independent of the AMLC's demonstration of probable cause, itself makes a finding of
probable cause that the deposits or investments are related to an unlawful activity under Section
3(i) or a money laundering offense under Section 4 of the AMLA;
3. A bank inquiry court order ex-parte for related accounts is preceded by a bank inquiry court order
ex-parte for the principal account which court order ex-parte for related accounts is separately
based on probable cause that such related account is materially linked to the principal account
inquired into; and
4. The authority to inquire into or examine the main or principal account and the related accounts
shall comply with the requirements of Article III, Sections 2 and 3 of the Constitution. The
foregoing demonstrates that the inquiry and examination into the bank account are not
undertaken whimsically and solely based on the investigative discretion of the AMLC. In
particular, the requirement of demonstration by the AMLC, and determination by the CA, of
probable cause emphasizes the limits of such governmental action. We will revert to these
safeguards under Section 11 as we specifically discuss the CA' s denial of SPCMB' s letter
request for information concerning the purported issuance of a bank inquiry order involving its
accounts.
All told, we affirm the constitutionality of Section 11 of the AMLA allowing the ex-parte application by the
AMLC for authority to inquire into, and examine, certain bank deposits and investments.