Prof. Harry Roque and Atty. Edwin Lacierda argue that the Senate can accept the tapes as evidence, both heavily relying on the Supreme Court pronouncement in the case of Gaanan vs IAC.
Prof. Roque wrote:
Gaanan vs. Intermediate Appellate Court, [145 SCRA 112 (1986)]: the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, following the principle that "penal statutes must be construed strictly.”
The “Hello Garci” tape is a taped conversation conducted through cellular phones. The wording of the prohibition is relative to tapping “any wire or cable”, and cellular technology does away with both wires and cables. Thus, RA 4200 is inapplicable.
On the other hand, Atty. Lacierda averred that:
It must be remembered that at the time of its enactment, there were no wireless cellular or cordless phones in existence. Since no such equipment existed, R. A. No. 4200 could not be stretched to include "wiretapping" of cell phone conversations. In addition to this, in 1986, the Supreme Court, in the case of GAANAN v. INTERMEDIATE APPELLATE COURT, defined "device" to secretly overhear or record conversations as an instrument that taps the main line of a telephone. In other words, R. A. No. 4200 was envisioned to apply only to telephone lines or what we call now in this wireless age as "landlines". The law is silent on cordless and cellular phones.
With all due respect, I submit that their reliance on the abovementioned case is misplaced.
First and foremost, Gaanan vs IAC was not about admissibility of evidence. As the Supreme Court stated at the very outset of the decision:
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.
Second, the gravamen of the offense/s defined by RA 4200 is the "act of using a device to secretly overhear, intercept, or record private communication or spoken word". While its short title says "Anti-Wiretapping Law", its title is actually "An Act to Prohibit Wiretapping and Other Violations of the Privacy of Communication, And for Other Purposes".
Parsing Section 1 of RA 4200, there are two type of acts that are made punishable under it:
- to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word
- to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described
The first is your conventional telephone wiretap. The second, on the other hand, involves the use of covert listening devices more commonly known as "bugs". They are absolutely correct that when Congress passed RA 4200, the legislators could not have envisioned the use of cellphones which have no wires or cables which in effect negates "wiretapping".
However, the wisdom of the authors of the law is on the second way of committing a violation of Section 1, RA 4200, i.e., the use of covert listening devices "however otherwise described". By overhearing, intercepting or recording the private communication or spoken word, the cellphone acts as the covert listening device. It is technically a "bug". Thus, while a cellphone may not be "wiretapped", tapping into it makes it a covert listening device (as a side note, the geeks at the FBI have reportedly been able to develop the capability to convert a cellphone into a conventional "bug" by remotely activating the phone's microphones and transmitting audio within the vicinity of the phone).
Third, even admitting for the sake of argument that RA 4200 does not cover tapping cellphones, it does not make it automatically legal. It merely says that the act is not punishable under such law. For the tapes to be validly admitted as evidence before the Senate, it must pass the muster of the constitutional provision that says:
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
Clearly, a violation of the privacy of communication and correspondence can only be admitted as evidence if it was acquired as prescribed by law. Since no law authorizes the act of overhearing, intercepting and recording of private communication over cellphones, any evidence acquired through such acts, though they may not be criminal (admitting for the sake of argument that they are not covered by RA 4200), are still inadmissible. Not all matters that are considered of public interest justify the setting aside of constitutional rights. There must be a law!
I can only imagine of one scenario where such tapes will be accepted as evidence, i.e., in a criminal proceeding against the wiretapper as object evidence where the content shall be irrelevant.
In contrast to the paeans of praise The Philippine Commentary is heaping on Sen. Chiz Escudero, I think he got swatted like a pesky fly by Brenda. Chiz was basically arguing that the tapes be conditionally admitted as evidence subject to a declaration of inadmissibility in case it is subsequently proven to be wiretapped material. What? In effect, he suggests that the Senate accept the tapes, play it, analyze it, turn it upside down, and when they are sure that it is wiretapped, declare that it is inadmissible as evidence. Doble comes to the Senate presenting alleged wiretapped material and the Senate says, "Ows, baka naman spliced lang sa studio yan? Hane, tingnan natin." Such sophistry, Chiz! No wonder DJB is beginning to worship at your feet.
Frankly, I cannot understand why the opposition senators insist on playing the tapes. Everybody who cared to hear it has already done so. An inquiry in aid of legislation that intends to prevent or discourage "wiretapping" need not go into the contents of the tape. They need to ask Doble who he did it with, how it is done, with the help of whom, how extensive is the operation, who orders it, etc. They will not find the answers to such questions listening to Gloria telling Garci, "Yung dagdag, yung dagdag."
If they want to go back to the electoral fraud issue, they better convince their counterparts at the Lower House to impeach her.