More on RA 4200 and Admissibility of Wiretap Materials

A lot has been said about RA 4200 but a thorny issue has been the admissibility of wiretapped material.

Let us try to start from the indisputable.

1. The Bill of Rights (Section 3 (1) and (2) of Article III of the 1987 Constitution) expressly provides that evidence acquired in violation of privacy of communication and correspondence shall be inadmissible except if acquired as provided by law.
2. RA 4200, otherwise known as the Anti-Wiretapping Law, authorizes the use of wiretapping and other similar methods provided the following is observed:

Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed.

Now, let us go to the questions.

• Is the wiretapped material admissible as evidence against the wiretapper?

Yes.

• Can the basis of that be found in RA 4200?

No.

DJB of Philippine Commentary argues otherwise. He argues that the basis can be found in Section 3. He says:

Most people misinterpreted the meaning of Court Orders as being valid only when they are issued BEFORE a wiretapping is done. But that is for legitimate wiretapping by the authorities, such as in kidnapping cases. A judge would never give a foreign spy this type of authorization!

But Section 3 says "before, during or after" a crime against national security is committed, Court orders may be issued authorizing "any of the acts" prohibited in Sections 1 and 2, such as possessing, copying and distributing the same.

Look how else can we prosecute real spies if we can NEVER use their illegally wiretapped products because they were illegally wiretapped.

As long as a Court says we can, we can!

That's an erroneous reading of the law. The Court Order mentioned in Section 3 of RA 4200 only pertains to acquisition of evidence through wiretapping and similar means and excludes the possession and distribution of already existing illegal wiretapped material DJB is alluding to. He missed the fact that the provision qualifies the issuance of such order on the following:

1. that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed;
2. that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and
3. that there are no other means readily available for obtaining such evidence.

How can possession and distribution of illegally wiretapped material pass the requirement No. 2 and 3? Once an illegal wiretap, always an illegal wiretap. It cannot be cured.

• So, what's the basis of the position that wiretapped material can be used against the wiretapper?

Because the prohibition of admitting wiretapped material as evidence against the wiretapper was not intended under RA 4200. It is a law intended to protect the privacy of communication and correspondence. Contrary to the letter of the law, it was not intended to protect everyone, including the person who violates it. Basic of statutory construction, "stay away from interpreting the law in a way that makes the law absurd." It is the person who was wiretapped that is afforded protection because it is his right that was violated.

DJB argues this wise:

Suppose a real spy practices espionage and tries to leave the country bearing his illegally wiretapped recordings. He is accidentally detained at the airport and is caught with the illegally wiretapped material.

The material contains scandalous conversations of govt officials, editors, publishers, private people, etc. and is prima facie evidence of the spy's violations of Section 1 of ra4200.

If the policemen decide to sell the material to the media or make lots of copies and give them away, I think they would be guilty of Section 2 violations of ra 4200 for using the illegally wiretapped materials.

But if the police submit this illegally wiretapped material to an RTC judge who authorizes them to use it as evidence in a case of espionage, this allows them to legally use the illegally wiretapped material.

Now, did the judge "CURE" (your term) the illegally wiretapped material.

Given this example, only a stupid, stupid spy would conspicuously label "wiretapped materials" as such. If the customs police or other law enforcement officer would play a CD on the suspicion that it is wiretapped material, it would constitute an illegal search. Thus, it would still be inadmissible as evidence.

It is also erroneous to say that law enforcement officers need to ask permission from the Court to use wiretapped materials in prosecuting the wiretapper. Such officer would be using it to prove that the anti-wiretapping law was violated, not to prove whatever is contained in the CD. The contents, in this instance, would be irrelevant. If the acquired wiretapped CDs, for example, were obtained through a valid search warrant or in those instances that justify a search without a warrant, why would the law enforcement officer need to ask from the Court permission to use them? Of course, they are admissible. The Court, on the other hand, is obligated to issue orders that would protect the rights of those who were wiretapped, to include hiding their identity from the public.