2019 Bar Notes on Anti-Money Laundering Act

Emmanuel S. Caliwan

_____________________________________________________________________

Anti-Money Laundering Act of 2001, as amended

(Republic Act 9160, 9194, 10167, 10365, 10927)
Money Laundering

➢ Money laundering is a crime whereby the proceeds of an unlawful activity are

transacted; thereby making them appear to have originated from legitimate
sources1.

Laundering

➢ The term used to describe investment or other transfer of money flowing from
racketeering, drug transactions, and other illegal sources into legitimate
channels so that its original source cannot be traced2.

A. Covered Institutions and their Obligations

Covered Institutions (Persons3) natural or juridical, refer to:

(1) banks, non-banks, quasi-banks, trust entities, foreign exchange dealers,

pawnshops, money changers, remittance and transfer companies and other similar
entities and all other persons and their subsidiaries and affiliates supervised or
regulated by the Bangko Sentral ng Pilipinas (BSP);

(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 metals4, who, as a business, trade in precious

metals, for transactions in excess of One million pesos (P1,000,000.00);

1
Sec. 4, RA 9160
2
Black’s Law Dictionary, 6th Edition
3
Sec. 1, RA 10365

1
 (5) jewelry dealers in precious stones5, 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

(7) persons who provide any of the following services:

(i) managing of client money, securities or other assets;

(ii) management of bank, savings or securities accounts;

(iii) organization of contributions for the creation, operation or management

of companies; and

(iv) creation, operation or management of juridical persons or arrangements,

and buying and selling business entities.

(8) casinos, including internet and ship-based casinos, with respect to their casino
cash transactions related to they gaming operations6.

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.

4
refers to gold, silver, platinum, palladium, rhodium, ruthenium, iridium, and osmium at a level of
purity of five hundred (500) parts per one thousand (1,000), singly or in any combination, and alloys of
precious metals, solders, and plating chemicals, such as rhodium and palladium plating solutions,
potassium gold cyanide containing at least sixty-eight and three-tenths percent (68.3%) gold, potassium
silver cyanide containing at least sixty-eight percent (68%) silver and silver cyanide in salt solution
containing at least fifty-four percent (54%) silver.
5
refers to all gems and stones used in jewelry making, such as gemstones, jewels, and those substances
that have market-recognized gem level of quality, beauty, and rarity, such as diamond, corundum
(including rubies and sapphires), beryl (including emeralds and aquamarines), chrysoberyl, spinel,
topaz, zircon, tourmaline, garnet, crystalline and cryptocrystalline quartz, olivine peridot, tanzanite,
jadeite jade, nephrite jade, spodumene, feldspar, turquoise, lapis lazuli, opal and pearl.
6
Sec. 1, RA 10927

2
Obligations of Covered Person/s

(a) Customer Identification7

Covered institutions shall establish and record the true identity of its clients
based on official documents. They shall maintain a system of verifying the true
identity of their clients and, in case of corporate clients, require a system of
verifying their legal existence and organizational structure, as well as the
authority and identification of all persons purporting to act on their behalf.

The provisions of existing laws to the contrary notwithstanding, anonymous

accounts, accounts under fictitious names, and all other similar accounts shall be
absolutely prohibited. Peso and foreign currency non-checking numbered
accounts shall be allowed. The BSP may conduct annual testing solely limited to
the determination of the existence and true identity of the owners of such
accounts.

(b) Record Keeping8

All records of all transactions of covered institutions shall be maintained and

safely stored for five (5) years from the dates of transactions. With respect to
closed accounts, the records on customer identification, account files and
business correspondence, shall be preserved and safely stored for at least five (5)
years from the dates when they were closed.

(c) Reporting of Covered and Suspicious Transactions9

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.

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.

B. Covered and Suspicious Transactions

“Covered Transaction10” refers to:

(1) A transaction in cash or other equivalent monetary instrument exceeding

Five Hundred Thousand pesos (PHP500,000.00).

7
Sec. 9, RA 9160
8
Sec. 9, RA 9160
9
Sec. 7, RA 10365 amending RA 9160 Sec. 9
10
Sec. 1, Rule 2 of the 2018 Implementing Rules and Regulations of RA 9160, as Amended (2018
IRR)

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 (2) A transaction with or involving jewelry dealers, dealers in precious
metals and dealers in precious stones in cash or other equivalent monetary
instrument exceeding One Million pesos (Php1,000,000.00).

(3) A casino cash transaction exceeding Five Million Pesos

(PHP5,000,000.00) or its equivalent in other currency.

“Covered Transaction Report11” (CTR)

➢ refers to a report on a covered transaction, as herein defined, filed by a

covered person before the AMLC.

“Suspicious Transaction12”

➢ refers to a transaction, regardless of amount, where any of the suspicious

circumstances, as herein defined, is determined, based on suspicion or, if
available, reasonable grounds, to be existing.

“Suspicious Transaction Report13” (STR)

➢ refers to a report on a suspicious transaction, as herein defined, filed by a

covered person before the AMLC.

“Suspicious Circumstance14”

➢ refers to any of the following circumstances, the existence of which makes

a transaction suspicious:

(1) There is no underlying legal or trade obligation, purpose or economic

justification;

(2) The client is not properly identified;

(3) The amount involved is not commensurate with the business or financial
capacity of the client;
(4) Taking into account all known circumstances, it may be perceived that the
client’s transaction is structured in order to avoid being the subject of
reporting requirements under the AMLA;

(5) Any circumstance relating to the transaction which is observed to deviate

from the profile of the client and/or the client’s past transactions with the
covered person;

(6) The transaction is in any way related to ML/TF or related unlawful activity
that is about to be committed, is being or has been committed; or

11
Sec. 1, Rule 2, 2018 IRR
12
Sec. 1, Rule 2, 2018 IRR
13
Sec. 1, Rule 2, 2018 IRR
14
Sec. 1, Rule 2

4
 (7) Any transaction that is similar, analogous or identical to any of the
foregoing, such as the relevant transactions in related and materially-linked
accounts, as herein defined.

Reporting of Covered and Suspicious Transactions15

➢ 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.

C. Safe Harbor Provision

No administrative, criminal or civil proceedings shall lie against any person for
having made a covered transaction (CTR) or suspicious transaction report (STR)
in the regular performance of his/her duties and in good faith, whether or not such
reporting results in any criminal prosecution under the AMLA or any other
Philippine law.16

D. How Money Laundering Committed and Predicate Crimes

How Money Laundering Committed

Money laundering is committed17 by any person who, knowing that any monetary
instrument or property represents, involves, or relates to the proceeds of any unlawful
activity18:

(a) transacts said monetary instrument or property;

(b) converts, transfers, disposes of, moves, acquires, possesses or uses said
monetary instrument or property;

(c) conceals or disguises the true nature, source, location, disposition, movement
or ownership of or rights with respect to said monetary instrument or property;

(d) attempts or conspires to commit money laundering offenses referred to in

paragraphs (a), (b) or (c);

(e) aids, abets, assists in or counsels the commission of the money laundering
offenses referred to in paragraphs (a), (b) or (c) above; and

(f) performs or fails to perform any act as a result of which he facilitates the
offense of money laundering referred to in paragraphs (a), (b) or (c) above.

15
Sec. 7, RA 10365 amending RA 9160 Sec. 9 (c)
16
Sec. 5, Rule 22, 2018 IRR
17
Sec. 4, RA 10365 amending RA 9160 Sec. 4
18
Please refer to the enumeration below of Unlawful Activity or Predicate Crimes.

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Money laundering is also committed by any covered person who, knowing that a
covered or suspicious transaction is required under this Act to be reported to the Anti-
Money Laundering Council (AMLC), fails to do so.

“Predicate Offence19/Crime”

➢ Refers to an offence/crime whose proceeds may become the subject of any

of the money-laundering offence.

➢ Under Philippine Law, Predicate crimes are synonymous with Unlawful

activity as defined below.

‘Unlawful activity2021’ refers to any act or omission or series or combination thereof

involving or having direct relation to the following:

(1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise
known as the Revised Penal Code, as amended;

(2) Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002;

(3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as

amended, otherwise known as the Anti-Graft and Corrupt Practices Act;

(4) Plunder under Republic Act No. 7080, as amended;

(5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302
of the Revised Penal Code, as amended;

(6) Jueteng and Masiao punished as illegal gambling under Presidential

Decree No. 1602;

(7) Piracy on the high seas under the Revised Penal Code, as amended and
Presidential Decree No. 532;

(8) Qualified theft under Article 310 of the Revised Penal Code, as amended;

(9) Swindling under Article 315 and Other Forms of Swindling under Article
316 of the Revised Penal Code, as amended;

(10) Smuggling under Republic Act Nos. 455 and 1937;

(11) Violations of Republic Act No. 8792, otherwise known as the Electronic
Commerce Act of 2000;

19
UNODC Legislative Framework
20
Sec. 2 RA 10365 amending RA 9160 Sec. 3 (i)
21
2007 Bar Question in Mercantile Law: Name at least five predicate crimes to money laundering.
(5%)

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(12) Hijacking and other violations under Republic Act No. 6235; destructive
arson and murder, as defined under the Revised Penal Code, as amended;

(13) Terrorism and conspiracy to commit terrorism as defined and penalized

under Sections 3 and 4 of Republic Act No. 9372;

(14) Financing of terrorism under Section 4 and offenses punishable under

Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the
Terrorism Financing Prevention and Suppression Act of 2012:

(15) Bribery under Articles 210, 211 and 211-A of the Revised Penal Code, as
amended, and Corruption of Public Officers under Article 212 of the Revised
Penal Code, as amended;

(16) Frauds and Illegal Exactions and Transactions under Articles 213, 214,
215 and 216 of the Revised Penal Code, as amended;

(17) Malversation of Public Funds and Property under Articles 217 and 222 of
the Revised Penal Code, as amended;

(18) Forgeries and Counterfeiting under Articles 163, 166, 167, 168, 169 and
176 of the Revised Penal Code, as amended;

(19) Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known

as the Anti-Trafficking in Persons Act of 2003;

(20) Violations of Sections 78 to 79 of Chapter IV, of Presidential Decree No.

705, otherwise known as the Revised Forestry Code of the Philippines, as
amended;

(21) Violations of Sections 86 to 106 of Chapter VI, of Republic Act No.

8550, otherwise known as the Philippine Fisheries Code of 1998;

(22) Violations of Sections 101 to 107, and 110 of Republic Act No. 7942,
otherwise known as the Philippine Mining Act of 1995;

(23) Violations of Section 27(c), (e), (f), (g) and (i), of Republic Act No. 9147,
otherwise known as the Wildlife Resources Conservation and Protection Act;

(24) Violation of Section 7(b) of Republic Act No. 9072, otherwise known as
the National Caves and Cave Resources Management Protection Act;

(25) Violation of Republic Act No. 6539, otherwise known as the Anti-
Carnapping Act of 2002, as amended;

(26) Violations of Sections 1, 3 and 5 of Presidential Decree No. 1866, as

amended, otherwise known as the decree Codifying the Laws on
Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or
Disposition of Firearms, Ammunition or Explosives;

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 (27) Violation of Presidential Decree No. 1612, otherwise known as the Anti-
Fencing Law;

(28) Violation of Section 6 of Republic Act No. 8042, otherwise known as the
Migrant Workers and Overseas Filipinos Act of 1995, as amended by
Republic Act No. 10022;

(29) Violation of Republic Act No. 8293, otherwise known as the Intellectual
Property Code of the Philippines;

(30) Violation of Section 4 of Republic Act No. 9995, otherwise known as the
Anti-Photo and Video Voyeurism Act of 2009;

(31) Violation of Section 4 of Republic Act No. 9775, otherwise known as the
Anti-Child Pornography Act of 2009;

(32) Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of

Republic Act No. 7610, otherwise known as the Special Protection of Children
Against Abuse, Exploitation and Discrimination;

(33) Fraudulent practices and other violations under Republic Act No. 8799,
otherwise known as the Securities Regulation Code of 2000; and

(34) Felonies or offenses of a similar nature that are punishable under the
penal laws of other countries.

How is money laundered through the financial system?22 23

• Placement – involves initial placement or introduction of the illegal funds

into the financial system. Financial institutions are usually used at this
point.

• Layering – involves a series of financial transactions during which the

dirty money is passed through a series of procedures, putting layer upon
layer of persons and financial activities into the laundering process. Ex.
wire transfers, use of shell corporations, etc.

• Integration – the money is once again made available to the criminal with
the occupational and geographic origin obscured or concealed. The
laundered funds are now integrated back into the legitimate economy
through the purchase of properties, businesses and other investments.

E. Authority to Inquire into Bank Deposits

Authority to Inquire into Bank Deposits24

22
Frequently Asked Question on Anti Money Laundering - Bangko Sentral ng Pilipinas (BSP)
23
Some author designate the same as the “Stages of Money Laundering” See: Ignacio, L. 854 SCRA
658 - Basic Queries about Money Laundering and the Anti-Money Laundering Act (AMLA)
24
Sec 2, RA 10617 amending RA 9160 Sec. 11

8
 Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic
Act No. 6426, as amended; Republic Act No. 8791; and other laws, the AMLC
may inquire into or examine any particular deposit or investment, including
related accounts, with any banking institution or non-bank financial institution
upon order of any competent court based on an ex parte application in cases of
violations of this Act, 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 hereof; except that no court order shall be required in
cases involving activities defined in Section 3(i)(1), (2), and (12) hereof, and
felonies or offenses of a nature similar to those mentioned in Section 3(i)(1), (2),
and (12), which are Punishable under the penal laws of other countries, and
terrorism and conspiracy to commit terrorism as defined and penalized under
Republic Act No. 9372.”

The Court of Appeals shall act on the application to inquire into or examine any
deposit or investment with any banking institution or non-bank financial
institution within twenty-four (24) hours from filing of the application.

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.

For purposes of this section, ‘related accounts’ shall refer to 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).

A court order ex parte must first be obtained before the AMLC can inquire into
these related Accounts: Provided that the procedure for the ex parte application of
the ex parte court order for the principal account shall be the same with that of the
related accounts.

The authority to inquire into or examine the main account and the related accounts
shall comply with the requirements of Article III, Sections 2 and 3 of the 1987
Constitution, which are hereby incorporated by reference.

May the AMLC inquire into or examine bank deposits or investments without
violating the secrecy of bank deposits law and similar laws?25

YES.

Notwithstanding the provisions of RA No. 1405 (Secrecy of Bank Deposits), RA No.

6426 (Foreign Currency Deposits Acts), RA No. 8791 (General Banking Law) and
other laws, the AMLC may inquire or examine any particular deposit or investment,
including related accounts, with any banking institution or nonbank financial

25
Ignacio, L. 854 SCRA 658

9
institutions (Sec. 11, AMLA, as amended by RA 10167). Bank inquiry may be with or
without a court order.

a) Inquiry of bank deposits WITH court order

Bank inquiry order maybe availed of ex parte premised on the existence of probable
cause for violation of an unlawful activity under Sec. 3(i) or money laundering
offense under Sec. 4.

Inquiry includes related accounts which shall refer to accounts, the funds and sources
of which originated from and/or are materially linked to the monetary instruments(s)
or property(ies) subject of the freeze order(s).
The Court of Appeals shall act on the application to inquire into or examine any
deposit or investment with any banking institution or nonbank financial institution
within twenty-four (24) hours from filing of the application. (RA 10167)

The authority to inquire into or examine the main account and the related accounts
shall comply with the requirements of Article III, Sections 2 and 3 of the 1987
Constitution (RA 10167). Likewise, the constitutional injunction against ex post facto
laws and bills of attainder shall be respected in the implementation of the AMLA (RA
10365).

b) Inquiry of bank deposits WITHOUT a court order

Bank inquiry without need of a court order is possible in the following instances:

(1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as
the Revised Penal Code, as amended;

(2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 of RA No. 9165, otherwise known
as the Comprehensive Dangerous Drugs Act of 2002;

(3) Hijacking and other violations under RA No. 6235; destructive arson and murder,
as defined under the Revised Penal Code, as amended; and

(4) Terrorism and conspiracy to commit terrorism as defined and penalized in RA

9372 (Human Security Act).

Jurisprudence

Civil Forfeiture in relation to AMLA

Since the account of Glasgow in CSBI was (1) covered by several suspicious transaction
reports and (2) placed under the control of the trial court upon the issuance of the writ of
preliminary injunction, the conditions provided in Section 12(a) of RA 9160, as amended,
were satisfied. A criminal conviction for an unlawful activity is not a prerequisite for the
institution of a civil forfeiture proceeding. A finding of guilt for an unlawful activity is
not an essential element of civil forfeiture. (Republic of the Philippines vs. Glasgow
Credit and Collection Services, Inc., G.R. No. 170281, January 18, 2008) Corona, J.

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