Wednesday, 29 August 2007

"Play It Again, Garci"

Two lawyers weighed in on the issue of admissibility of the so-called "Garci tapes" as evidence on the revived Senate investigations on the wiretapping scandal.

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.


7 comments:

Karl M. Garcia said...

Can a tape recorder be considered as bugs. i have seen reruns of the 60s "mission impossible "and their methodology is not just mere tape recorders as bugs.

Going back to TV and recorde messages.

Who are the tv men fooling when they handcuff someone after exposing a recorded message?

As to their motives whether it is for aid of election,or impeachment,or what ever ; let us just see,Jaxius.

Since you are quite knowlegeable when it comes to National Interests,by your previous blog,do you think in your honest opinion that Gordon is correct,when he said that it is about public oreer and not national interest(Garci issue).(I heard that one one of his ANC interviews)

I already know about you concurrence to his impeachment opinion.

Thank You.

Jaxius said...

Karl,

Actually, I have no problem with that (Gordon comment). Being a politician involves a lot of tooting your own horn, so to speak. I just hope the opposition be more circumspect. It is a chilling thought that these personalities, one of whom might be the next president, would bulldoze constitutional rights to supposedly get at the truth. It is just so convenient that the "truth" being pursued is against his political enemies.

If they really want to continue with the electoral fraud angle, why don't they again invite Garci to shed light on the various election "miracles" in Mindanao? Some senators are probably afraid Garci might rat out on them if properly cornered.

Even Lintang Bedol is volunteering his "services" to bare how election operatives run the show. Retired military officers who have been documented to have had a hand in the handling of elections in Mindanao can also be summoned.

Karl M. Garcia said...

Thanks Jaxius,
To be honest both Gordon and Lacson are doing their campaign sorties.

Even Mar Roxas,pero kahit nasimulan na nya a few weeks ago,sa tingin ko sya ang pinaka tahimik sa mga nagjump start ng campaign nila.

I sort of agree in one of the commenters in MLQ3's that we treat politics as entertainment.But, I have to add, not only the citizens but the politicians themselves.

Karl M. Garcia said...

So, the playing of the tspes might not happen at all,the committe sent it to the defense,blur ribbon,electoral fraud,(did I forget a comittee?)They might simple rely on transcripts from the lower house,and try another angle of who dunnit.
and for practicality's sake what would they gain by impeachment with 2010 around the corner?

Anonymous said...

Re: "...and for practicality's sake what would they gain by impeachment with 2010 around the corner?"

The respect of their constituents: their honour redeemed (of course, that depends on how these people perceive the meaning of honour).

Anonymous said...

Jaxius,

I'm still in the process of reading and re-reading your posts. But lemme just ask you a few questions - I need to clarify some points before I go on and tackle the subjects in my head again.

From what I've read of your explanations with regard to DJB's propositions, my little tiny brain has more or less understood what admissible and what is not in court pertaining to illegal wiretapped tapes.

However, you also said, "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. "

I understand where you're headed but was that really the point of the Senate? Maybe that's what we have to iron out in the senate - re-define their meaning of "in aid of legislation", and ammend the meaning or add something to it.

In so doing, they would eventually have to play the tape in question to re-enforce their objective, i.e., by asking Doble to identify portions of how, where, when, why, who with,etc. that and this portion was made.

I know sounds comical but heck so are our legislators - might as well go the whole hog and be seriously comic about it, don't you think.

This country being so entrenched in legalese, lawyers being surgical when it comes to the points and commas and semi-colons in the interpretation of the text of the law, how can the senators quizzing Doble simply ask him "who he did it with, how it is done, with the help of whom, how extensive is the operation, who orders it," without first exhibiting the object of their questions and come up with some bill in aid of legislation?

Anyway, at this point, my fuzzy mind tells me that whatever info Doble reveals is bound to be nullified as evidence because if you can't properly identify the tape by first listening to the taped conversations, how can the questions pertaining to how A tape or THAT tape be pertinent at all?

Having said that, I do think that to aid in legislation, the straight questions you mentioned destined for and asked of Doble could be helpful indeed in eventually or in leading the witness to reveal more about the modus operandi involving how this govt operates or its spy service.

Sad to say, there's no way we can "kill wiretapping", not anymore.

Anonymous said...

Jaxius, sorry, can't identify myself properly - couldn't be bothered to log in my ID - "annonymous on September 15, 2007 4:19 AM" is me - Manila Bay Watch (anna)

signing as anonymous here again. thanks - anna