Thursday, December 15, 2005

Dilemma of the Poisoned Fruits

ONCE UPON A TIME, there was a very Famous Personality who worked in the Media and was much adored. But he secretly worked for an international blackmailing syndicate, which supplied him with all sorts of fancy wiretapping equipment. For a few months, he wiretaps the cell phone and land line calls of the Presidents, Chief Executive Officers, Publishers, Editors-in-Chief, Columnists and Reporters of ABSCBN News, Philippine Daily Inquirer, GMA-7, PCIJ and the entire Punditocracy, including Rizalist with his absurd Commentaries here. He amasses a huge trove of illegally recorded conversations covering all sorts of things, from crimes against the state to crimes against marital fidelity to completely innocent chats about the weather, the news, and about each other and everybody else in Philippine society. Deciding that he has enough data he packs up his laptop, with 120 Gigabytes of really publicly interesting MP3s, full of secrets, lies, gossip, truths, opinion, conjectures, and all the flotsam and jetsam of human intercourse and communication. He goes to the airport and gets ready to board a plane to meet the Boss of the Blackmailing Syndicate. Unfortunately, something is wrong with his documents and the long and short of it is, he is discovered to be in possession of a very interesting laptop containing a directory labelled "MP3s." Not knowing what he actually has on his hands, the Airport Security Manger is forced to give in to the rampaging reporters who have gotten wind of the incident at the airport involving the Famous Media Personality. He plays one of the MP3s for them and a huge controversy gets going. More reporters hear about this and start pressuring the Airport Security Manager to give them copies of the MP3s. He locks himself in his office while he thinks things over. The Airport Manager happens to be a young law student going to night school, and their homework for that week was to study RA4200 The Anti Wiretapping Law of Sen. Lorenzo Tanada. Even though he doesn't fully comprehend the law, he just knows it would be wrong to release the MP3S to the ravenous reporters waiting impatiently outside because a lot of innocent people would be hurt. But he is also faced with a dilemma, according to the law, mere possession of such poisoned fruits is a crime. So should he maybe destroy the MP3s to protect the innocent? But how would Justice be served if he did treat the MP3s as poisoned fruits? The wiretapper-blackmailer would get away if he did that. Is RA4200 a cruel law that forces us to let the Guilty go scot free because we must spare the innocent? No! RA4200 provides for the way out of the Security Managers Dilemma as follows in Section (3A) of the law:
SECTION (3A) 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 such crimes; and (3) that there are no other means readily available for obtaining such evidence.
A most significant thing here is the point in bullet (1) that a Court Order for the purposes of RA4200 can be issued for a crime that "
has been committed or is being committed or is about to be committed" In other words, it is wrong to think that RA4200 Court Orders are only for when you want to do wiretapping yourself at some future time and want to do it lawfully. The example being discussed of the airport manager's dilemma is a case where it would be proper to seek a COURT ORDER to RECOGNIZE as ADMISSIBLE EVIDENCE the Famous Personality's hard disk of ILLEGALLY WIRETAPPED RECORDINGS. The Poisoned Fruits are the very evidence of a CRIME commited against Section (1A) by the Famous Personality, but they cannot even be possessed, copied, discussed or used without a Court Order because THOSE would all be a Section (1B) and Section (2) offenses, UNLESS -- and here is the poetic genius of Tañada's 1965 Law, "any peace officer" shall apply for a Court Order to use RA4200 as an antidote to the Poison in the fruits of his evil labor --
"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, ..."
What would you do if you were the Airport Security Manager?

ABSCBN News reports that Opposition lawyer Sixto Brillantes is drafting a new election protest against President Arroyo based on the alleged wiretapped conversations between her and Election Commissioner Virgilio Garcillano on a plot to rig the 2004 polls. Regarding which, Romulo Macalintal, the President's election affairs lawyer, is quoted in the same article as saying
"How can you ask for reopening of the election protest before the Presidential Electoral Tribunal arising from a fruit of a poisoned tree?"
Macalintal is right -- you cannot go to the PET for the Antidote. You would have to go the Supreme Court to do that. The Opposition is trying to prosecute the wrong case using the Garci tapes. But if it's the PAST and CONTINUING VIOLATIONS of RA4200 one were after, you really only have to go to the Regional Trial Court that covers the area of Camp Crame where ISAFP might be hiding a mountain of other damning evidence. In fact the Airport Security Manager is already being headed off at the Pass by something called House v. Garcillano, though that might not be the title of the Decision when it is finally rendered--it is Garci's SECOND PETITION in the Davide Court this month. Just bring along LORENZO TANADA though. He's a lot more JUDICIOUS and IMPARTIAL and a GENIUS that lives on in his handiwork, just as EVIL does in that of others.

RIZALIST has run away from home (again, but he'll be back before dark, I'm sure). He left a note saying that for those who really hate the over long Philippine Commentaries I've been producing, he wants to invite you all to the Archipelago Called Earth for Global Commentary that is short but bittersweet! (Honestly, I've nothing to do with this and I don't know what he's up to!)

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The Public Thing said...

interesting story...

Rizalist said...

glad you liked it regor.


Is that a true story, DJB?

Rizalist said...

No Hillblogger. It is but a way of explaining that there is NO DILEMMA of the poisoned fruits. The Opposition does not understand the power of RA4200 to resolve Gloriagate. But the Palace does. Garci SECOND PETITION can bury the Tapes forever. The key to understanding it is to read RA4200 AS IF the 2004 elections did not happen at all. Forget about "voterigging" for now. It's the wiretapping that must be investigated and prosecuted. The Garci Tapes are not "poisoned fruits" -- they are evidence of wrong-doing and RA4200 provides the way for Justice to be done.


Pimentel is a lawyer, do you think he's missed that?
If Garci's second petition can bury the tapes forever, why isn't anybody on it?
There are plenty of lawyers in the opposition. How about Alan Paguia - can't he raise this with his friends, i.e., Estrada, Zamora, et al, even Enrile or Golez (the guy seems to be a sensible even if he's not a lawyer), and why doesn't Drilon, etc. take it up?
If your analysis is foolproof, by golly, something has got to be done or Garci gets away with crookery of the first order and Gloria gets away with murder. I know you mentioned, that's icing on the cake but any trick in the book to do her in is alright with me.
What about the new Ombudsman, er woman? Can she not do anything?
Heavens, I think I'm right, Belgian and Filipino politicians, government officials, technocrats, bureaucrats have absolutely everything in common (and this is not a compliment)!

P.S. DJB, PLEASE, THIS P.S. PART HERE IS FOR YOUR EYES ONLY & NOT FOR PUBLICATION: The Tanadas are family friends. Jerry used to be one of my playmates when we were children. His Dad Greg was my Dad's best friend. The Tanada Law office is still my family's law firm.

Rizalist said...

HILLBLOGGER -- Lots of people are PROUDLY the Tanada Family's friends. Lots. Let's wait and see how the Law works its magic. RA4200 is not just a Law you know. It is a POEM, or no -- it is a MATHEMATICAL ALGORITHM!

AmericanPainter said...

How can you ignore the portion of law that permits the wiretap, “authorized by a written order of the Court."

ricelander said...

Interesting story DJB. But how sure are you the SC would read it the way you do? If they could be proud of a decision resting on an interesting concept called "constructive resignation", what do you think can they not do to save Gloria and their kind?

Rizalist said...

I have no faith whatsoever in the Supreme Court. If you look at the cartoon on the upper left that says it all for me. To approve Garci's prayer is the reason the suit was filed. He didn't come out to lose the Prayer. He came out to bury the tapes legally. But he Opposition must get their own Court Order to use the tapes. THAT's the point, because they CAN and they SHOULD.