Monday, December 12, 2005

Long Live the Anti-Wiretapping Law!

WHEN SENATOR LORENZO TANADA authored Republic Act 4200, the Anti Wiretapping Law in 1965, he wanted to safeguard the Right to Privacy of individual citizens by making it unlawful for the State to employ techniques such as the wiretapping of private conversations. But Tañada did not make ALL wiretapping or the USE of wiretapped materials unlawful. He provided for a way by which wiretapping could be undertaken legally and wiretapped material used as evidence in certain very special crimes, as long as "any peace officer" secured a written Order of the Court to do so. Look at Section 3A of RA 4200:
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.
WHAT THIS MEANS IS THAT: The Garci Tapes can be MADE ADMISSIBLE in evidence for investigating and prosecuting a category of crimes that RA 4200 specifies as crimes of treason and offenses against national security. The Garci tapes after all, are precisely the physical and logical EVIDENCE that the Military was treasonously used to conduct an unlawful wiretapping operation in the service of selfish partisan political ends. Wiretapping the President is so obviously an offense against national security. That the Palace has not turned the world upside down to discover who undertook such an operation is an indication of something very serious, enough for the Courts to grant Senator Tanada's clear intent for there to be solid exceptions to the inadmissibility of such materials.

THE SENATE AND THE LOWER HOUSE should therefore immediately file for a Lawful Court Order designating the so-called Garci Tapes as a body of evidence that crimes of treason have been commited against the Constitution and Armed Forces of the Philippines, and that there has been unlawful use of military resources and personnel in the commission of offenses against national security, if they indeed surveilled and wiretapped conversations involving the Commander-in-Chief of the AFP. It can do this with no reference whatsoever to the contents of the conversations.

THE CONGRESS OR ANY PEACE OFFICER should also immediately file for a Lawful Court Order designating the Garci Tapes as a body of potential evidence of crimes against the OMNIBUS ELECTION CODE, and thereby secure the rightful place of the Legslature to make amendments or craft wholly new election laws, based on the experience with Garci and his Mafia of election voteriggers.

I believe these would be valid legal acts EVEN IF the Garci recordings are claimed to be illegally wiretapped because they are precisely EVIDENCE of that crime against RA 4200, and Senator Tanada would surely have stood for that simple and forthright interpretation

"PRIVATE CONVERSATIONS:" In my opinion "private conversations" are considered private simply because the conversants would not want their conversation to be made public. Even if the subject of their conversation is of "public interest" (mayber they are rigging an election or conspiring in a crime) the conversation is still considered "private" under RA4200 if the conversants merely want their conversation to be kept between them. The real reason for upholding this position is that the Anti Wiretapping statute is really "content neutral" -- it doesn't care WHAT you are talking about, without a Court Order, it is forbidden to record your conversation. The entire of Section (3) defines the crimes, conditions and mechanics of securing a Lawful Court Order for the purpose of undertaking wiretapping OR USING WIRETAPPED MATERIALS AS EVIDENCE OF SPECIFIED CRIMES, such as I am suggesting can be done with the Garci tapes.

POETIC JUSTICE would indeed be done if RA 4200 is used to prosecute and convict whoever is responsible for this most devastating political crisis of recent memory. I have been intensely studying RA 4200. Now I am convinced that its author was a genius. For he crafted a law so judiciously in 1965 that today in 2005 it will serve Justice in ways that he might not have expected or envisioned when he wrote it. In my opinion RA 4200 can be used to prosecute all the Wiretappers, from MIG-21 to everyone in the Command and Control of it, as well as to secure the Garci Tapes for the purpose of making a truthful Report of the Five Committees. RA 4200 can therefore be used to prepare the COMPLETE body of evidence that will be needed for the Second Impeachment attempt at midyear 2006. What must be roundly defeated by the Congress and Senate's own definitive suits in Court is the predicted granting of Garci's Second Petition.

SUBTLE POINT: The violations of RA 4200 in the year 2004 AD are still ongoing, because according to the law mere possession of illegally acquired wiretaps constitute an unlawful condition. The 2004 Wiretapping of the President and dozens of others, is a continuing and existing crime because somewhere in the Palace or the LTA Bldg. there are copies of the original casettes sent to whoever ordered them from ISAFP. WHOEVER is in possesion of the ORIGINAL recordings -- the body of illegal wiretaps that Doble copied his P2 million peso casette tape from -- that party is liable under RA 4200 Section (1B) below. Right now, I would think the prime suspects in this continuing crime against RA 4200 would be General Generoso Senga, Chief of Staff of the AFP, and Lt. Col. Pedro Sumayo Jr., the chief of MIG-21. They should both be investigated immediately for continuing possession of the original MIG-21 trove of contraband tapes and illegally wiretapped conversations. Or at least such investigation should be done under the protection of a lawful Court Order.

Here is the entire beautiful Anti Wire Tapping Law of SENATOR LORENZO TANADA:

REPUBLIC ACT NO. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES

SECTION (1A) It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, 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 by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described:
CAVEAT: Members of MIG-21, like Sgt. Vidal Doble, engaged in some activities enumerated in Section (1A) above, since it was they who wiretapped and made the ORIGINAL RECORDINGS of the conversations that have come into the Public Domain as the Garci Tapes. It was Doble and his team of ISAFP agents who were "wiretapping" high and low government officials in the "Blue Rooms of ISAFP," that persons like Marietta Santos, a girlfriend and lover of Doble's, testified to in the Senate last week. Most likely however, these agents in MIG-21, were acting under the control of the ISAFP chain of command.
SECTION (1B) It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section (3) hereof, shall not be covered by this prohibition.
CAVEAT: Simply put, Section (1B) makes it unlawful for anyone to knowingly possess, replay, copy, communicate, transcribe in whole or in part such "contraband" as may be produced by violations of Section (1A) -- such as the original recordings of the MIG-21 operation and any copies of those recordings. But someone had to edit, copy and transmit these raw data captures to whoever ordered the taps and was receiving them for evaluation and appropriate action during the election period. These are persons in "Command and Control" of the MIG-21 and are equally liable under RA 4200 as the actuall wiretappers. All such persons are liable under Section (1B). Moreover, the Chief of Staff of the AFP, General Generoso Senga is presently responsible for the personnel and facilities employed in the Section (1A) and Section (1B) crimes. As Chief of Staff of the AFP Gen. Senga is in technical possession of any existing recordings, tapes, copies, and other records and implements of the wiretapping operation. General Senga, I believe, is liable for the CONTINUING VIOLATIONS of RA 4200 that mere possession of illegally wiretapped materials constitutes. The organization, financial resources, technical capability and command and control needed to undertake such a wiretapping operation by the ISAFP agents in MIG-21 cannot be underestimated. There are possibly still in existence, somewhere in ISAFP some "tape record, wire record, disc record, or any other such record, or copies thereof," of the intercepted conversations. There would have to be records of the resources of the Armed Forces that were utilized in undertaking the Wiretapping Operations of MIG-21. There may even still exist a large trove of all the conversations, wiretapped, though common sense would suggest these have been long ago destroyed. But maybe there is a Blue Room full of taped conversations. Or a couple of networked PCs running pirated software with sound cards and hard disks and CPUs hooked up to the Cellphone Interceptor Gizmos of MIG-21.

THE SENATE AS PEACE OFFICER: It is no less than the Senate President FRANKLIN DRILON and the National Defence Committee Chairman RODOLFO BIAZON who are charging the ISAFP with violations of Section (1A) of RA 4200. General Senga would be derelict in his duty and liable under Section (1B) if he does not act upon such accusations speedily. Gen. Senga is the highest ranking military officer next to the Commander in Chief. Moreover, he could be directly liable under Section (1B) , for not pursuing the perpetrators within MIG-21 to determine if they still have in their possession illegally recorded conversations of private and public persons. Which Gen. Senga is technically in possession of, since his command responsibility is to at all times maintain a ship shape military organization and corps.
SECTION (2) Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.

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.

SECTION (3B) 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.

SECTION (3C) 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. chan robles virtual law library
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.

SECTION (4) Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

SECTION (5) All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. chan robles virtual law library

SECTION (6) This Act shall take effect upon its approval.

Approved: June 19, 1965 -- 104th Birth Anniversary of JOSE RIZAL.

GARCI'S GOOSE IS COOKED! LORENZO TANADA WAS A GENIUS.
This line of reasoning about the Anti-Wiretapping Law was inspired by reading THE RIGHT TO PRIVACY by Samuel Warren and Louis D. Brandeis. Originally published in 4 Harvard Law Review 193 (1890).

For Philippine Commentary readers who know ZERO about Gloriagate and the Garci Tape Controversy, start here at a TIMELINE OF THE 2005 CRISIS

The weblog of the Philippine Center for Investigative Journalism (PCIJ) has the MP3s and Full Text Transcripts of the Garci Conversations.

After five months as a desaparecido VIRGILIO GARCILLANO speaks to Henry Omaga Diaz. ABSCBN News published the entire text of the Return of Garci.

Here's RA 4200 The Anti Wire Tapping Law of Lorenzo Tanada. Hat Tip to CHAN ROBLES ONLINE LAW LIBRARY. Mabuhay 'Panyeros!

OLDIE BUT GOODIE: Time Magazine's Anthony Spaeth covering the day when it all began: 20 January 2001.

UPDATES:

(1500) LOOKING FOR A CHIEF JUSTICE: Constitutionalist Joaquin Bernas, S.J., had some interesting comments today in his PDI column: lamenting the monopolization of the process by the Judicial and Bar Council (a body in orbit around the Supreme Court) --
Father Bernas: It is in this light that lawyers and others are not entirely pleased with the decision of the Judicial and Bar Council not to subject the three nominees to the position of chief justice to a public interview. The choice of a chief justice is a matter of interest not just to the Judicial and Bar Council or the President, but also to the larger public. The nation at the moment is confronted with difficult and novel issues whose resolution depend very much on the Supreme Court's thinking of what the Constitution means today. The Supreme Court's thinking is what the justices think. And of special interest is the thinking of the chief justice who can exert a strong influence on the direction of the Court.
The thinking of the Supreme Court under Hilario G. Davide, Jr. is best glimpsed in the two decisions relating to Edsa II, Estrada v. Arroyo and Estrada v. Desierto, in which history records that the members of the Court, in particular its Chief Justice evidently played more than a judicial role, or more accurately, they played a judicial role that overthrew the Presidency in a coup d'etat they participated in. Judicial activism as practiced by the Davide Court amounted to judicial putschism. To the extent that the historical task of any Supreme Court is the continuous improvement of its thinking as expressed in historic opinions, I would hope the next Chief Justice will have thinking that is in an ameliorative direction to the frightening radicalism of the Davide Court.


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5 comments:

Rizalist said...

A WARM WELCOME TRAVELER!
Iron logic is Blind Justice's Mighty Sword...

Econblogger said...

DJB,

Clearly from the law: the Garci tapes cannot be made admissible unless somebody produces a court order made prior to the wiretapping. The order covers a very precise period; it must be shown that the court took custody of the recordings within 48 hours after expiration of the mandated period. Very high obstacles to hurdle indeed.

Go after the election returns, as others have pointed out. Those are more promising sources of evidence for fraud.

Rizalist said...

ECONBLOGGER -- I disagree with your conclusion, not your observations. The procedure you are describing (from Section 3C) is what ISAFP SHOULD have done if their operation was not to be unlawful. ISAFP is the one that should've gotten a court order PRIOR to their desired act of RECORDING those conversations. But that is not the action for which I am suggesting the Senate file for a Lawful Court Order. In the suit I am urging, they are asking for a Court Order to USE ILLEGALLY WIRETAPPED MATERIAL as EVIDENCE in the prosecution of a crime against RA4700 itself -- the crime that ISAFP did NOT get a lawful court order in order to commit crimes against Section (1A). The Senate would be asking for a Court Order to USE these tapes, so that it wont be guilty of a crime under Section (1B), which is in fact the essence of Garcillano's SECOND PETITION before the Supreme Court.

I am arguing as if this is the session Davide and the Court are having right now over Garci's petition.

I am saying these are the LEGAL REASONS they must REJECT Garci's Second petition. The Tapes ARE admissible IF they are EVIDENCE in crimes like treason and offenses against national security.

Thanks for the chance at clarifying these thoughts furhter...

Bernardo F. Ronquillo said...

Thank you for your dissection of the Anti-Wiretapping Law that opens our eyes to the fact that this law itself provides that the Garci tapes is adminissible as evidence in court.
I was still in UP years ago when this law was being debated in the senate and I also use to pass by the senate to hear debates. It is therefore ironic for me when offenders like GMA and now Garci use it to escape congressional investigations. Thank you for pointing out something that has apparently escape the "intelligence" of our legal luminaries. Congratulations Dean Bocobo.

Rizalist said...

Thanks BFR! But the time for congratulations is yet a far distant shore. The tides have taken us out so far at sea, that that shore is so hard to see.