Wednesday, March 15, 2006

ISAFP, Bunye, PCIJ, et al Are Guilty Of Violating R.A. 4200?

AND WHO ELSE HAS VIOLATED THE ANTIWIRETAPPING LAW? ONE MIGHT ASK The essential absurdity of Secretary Raul Gonzalez's position in the matter of the Hello Garci Recordings lies in a professed disinterest in the original acts of wiretapping and eavesdropping that created these recordings of conversations between Elections Commissioner Virgilio Garcillano and many others, including, Pres. Gloria Macapagal Arroyo herself. Wiretapping the Commander in Chief is an obvious violation of Republic Act 4200 (The Anti Wiretapping Law) and a serious breach of National Security, considering that no Court Orders were granted allowing the same, as required by RA 4200. Who eavesdropped and wiretapped the President? No one knows nor cares, it seems...certainly not Secretary Gonzalez!
Yet the dapper Justice Secretary blithely blithers on about filing charges of violating RA 4200 against PCIJ for posting "contraband" recordings the existence of which it got wind of from none other than Press Secretary IGNACIO BUNYE during the historic event pictured nearby. It is reprehensible that no official effort has been exerted whatsoever, no investigation launched to expose and punish the perpetrator of such a blatant crime against national security and an obvious violation of RA 4200 as the original data acquisition of the Garci Recordings. The subsequent acts of copying, distribution and posting of the same on the Internet by outfits such as PCIJ, while technically violations of RA 4200, should hardly be the target of the Justice Secretary, who should investigate the root crime involved here: ILLEGAL WIRETAPPING. No one can blame reasonable observers of these events for coming to the conclusion that it was President Arroyo herself, or her overzealous political handlers during the 2004 elections, who indeed caused the electronic surveillance and interception of communications between her and Garci. I believe that even if those conversations were totally innocent, the act of eavesdropping and recording those conversations were in and of themselves warrantless and illegal under RA 4200. Whoever ordered them and carried them out should be unmasked.

NO ONE DENIES what is perhaps the most important thing about the "Gardi Tape Recordings" -- they exist! As such, they are undenied and undeniable physical proof that some person or persons unknown illegally eavesdropped upon and recorded the conversations of the Commander in Chief of the Republic of the Philippines, President Gloria Macapagal Arroyo and that of an Elections Commissioner in the person of Virgilio Garcillano, during the 2004 election period. Even without considering the CONTENT of those recorded conversations, a law has apparently been broken, the Antiwiretapping Law, RA 4200. The reason for this is that under RA 4200, such recordings and any reproduction or use of them, are by default ILLEGAL unless such production and use are covered by a Warrant from a competent court, or are being used as evidence in a criminal or civil case. To this date, no one, including Ignacio Bunye, who first publicly displayed and allowed illegal copies to be made of the Garci Tapes, has produced a Court Warrant legalizing their use of them.

Today I heard Justice Secretary Raul Gonzalez tell ABSCBN News that he believes the publication of the Garci Recordings as MP3s on the PCIJ website and as unverified transcripts is a violation of RA 4200. Secretary Gonzalez admits his department is looking into the possibility of filing charges against five members of the Philippine Center for Investigative Journalism for those violations. Here is my post on RA 4200 The Antiwiretapping Law of Lorenzo Tanada when it first became important in the Hello Garci case. For once, I have to agree with Secretary Raul Gonzalez: PCIJ should be investigated for possible violations of RA 4200, along with Press Secretary Ignacio Bunye and many others...It is indeed time we take our law seriously and I insist that the Secretary of Justice fulfill his duty completely in this regard. Republic Act 4200, The Antiwiretapping Law, written by the legendary Senator Lorenzo Tanada in 1965, is magnificently brief and its mandates plain and clear --

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.

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.

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.

Members of MIG-21, like Sgt. Vidal Doble, engaged in some activities enumerated in Section (1A) above are in violation of RA4200 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. Since these acts are "primary" violations of RA 4200, being violations of Section (1A), I suggest Secretary Gonzalez go after these perpetrators first. He might want to start General Danga, who was head of Mig 21 then.

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.

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.

Dilemma of the Poisoned Fruits

Senaate Is Really Digging Into the Wiretapping



(Aha! Might Nene Pimentel be Gloria's "Danton"?)

Yesterday, I had to stand up on the floor of the senate to denounce the insidious attempt of Gloria to implicate me in the plots to oust her forcibly.

I denied I had anything to do with any plot covert, overt or otherwise to topple her administration.

Gloria and her male and female political strumpets have issued a disc that has some generals describing "operation hackle", a so-called plot hatched by
military putchists, communists, professionals and united opposition personalities. It was at the point when the voice over commentator talked of the involvement of the united opposition that the disk features me laughing
with jamby madrigal at the rally on feb 24 at the ninoy Aquino monument in ayala ave., Makati.

One thing they probably missed is that I have never been to any meeting open or secret of the United Opposition. I have always publicly declared that my role as an oppositionist could best be done on the floor of the senate. But after 1017, when she prohibited even peaceful rallies, I decided to show my face at the ayala rally, the first and only time up to this point that I
have done so. And I dared them to arrest me openly at the rally.

I called the contents of the disk as far as they relate to me "a scurrilous libel" and an invitation to (my) assassination by the trigger happy hacks of Gloria in the military and police.

I don't know how this latest caper of Gloria will play out. But I do not intend to be intimidated by this ersatz marcos pretender. In the meantime, my friend, take care. And God be with you and your people.


Office of Senator Aquilino Q. Pimentel Jr.
Senate of the Philippines
Pasay City



Everyone is training his gun at ISAFP but the Senate should also train their guns at the AFP's COUNTER-INTEL SERVICE and the PSG.

These two units have access to wiretapping equipment.

A component of the PSG went on a buying spree of those equipment right after Gloria toppled Estrada.



Correction: A president acting in a capacity as the nation's Commander in Chief is NOT a military officer.

The highest military officer in the Philippines is the Chief of Staff Armed Forces of the Philippines. Unless of course, the nation's president is herself the Chief of Staff Armed Forces of the Philippines and is full-pledged military GENERAL (with 4 stars).

Military hierarchy is clear cut!

Rizalist said...

The big concern is the CANARY in the MINE SHAFT -- PCIJ, which was directly threatened by Gonzalez today.

Without Borders said...

that's why i've been advocating for the legalization of wiretapping. we might yet create an industry out of it. that way the philippines could be more transparent. literally.


Aha! Gonzales is being a total dimwit.

Hasn't he heard of Article 19 of the Universal Declaration of Human Rights which states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Gonzales cannot wiggle out of Article 19 of the Universal Declaration of Human Rights. Anybody that wiggles out of that should be brought to the Human Rights Court in Strasbourg or in Brussels and be judged accordingly… Gloria must not breach that human right with impunity.

The Universal Declaration of Human Rights is like Moses’ Ten Commandments - no ifs and no buts…

One is free to break the ten commandments but he must face the consequence and be man or woman enough to take the punishment.

As the law implicitly states: “Don’t do the crime, if you can’t do the time!”

And this legal doctrine applies too to the highest officer of the land...

manuelbuencamino said...


First time I read the law.

Sec 1 (A) refers specifically to tapping "any wire or cable". That seems to exclude non-wire and non-cable communications.

What phrase covers non-wire and non-cable communications?

I beg your indulgence. I am reading that section as a non-lawyer.

Rizalist said...


The operative phrase is the last one in Section (1A): "OR HOWEVER OTHERWISE DESCRIBED"

this makes the law TECHNOLOGY INSENSITIVE!

Rizalist said...

Without Borders,

Not so fast! You've gotta really think that one through. Can you imagine the opportunities for BLACKMAILERS alone if you mean to legalize wiretapping.

Human society and peace itself would be virtually impossible if everyone could for example, read everyone else's thoughts!


I agree with DJB without any reservation.

It's a blanket authority to violate everyone's right to privacy.

Violating that right will have enormous consequence on one's freedom or the loss of it.

Rizalist said...


i don't think they have a case for sedition against PCIJ. But they could harrass the people who work there a little bit. Libel law suits could be launched left and right against them, even by Garci himself. Also it's the sort of thing that could be sprung on them without warning.

manuelbuencamino said...


Thanks for that clarification.

One more thing.

How about the "private communication, or spoken word" part. How is private communication defined? And how does it work in the context of GMA's apology?

I recall GMA's apology. She said she spoke to a comelec official about protecting her votes.

Wasn't she, as President, calling him, a comelec official, with reference to his official duties?

I guess my question is, doesn't their communication partake of something official or public as opposed to something private like the conversation Garci had with the unnamed woman who kept him waiting because she was at her rehearsals?

Don't the Garci-Gloria conversation fall into the category of official conversation, or spoken word?

Aren't those two conversations different, at least based on GMA's apology and interpretation of events?

Rizalist said...


I'm personally very conservative on this point because i am civil libertarian by instinct. I consider ANY conversation to be protected against eavesdropping MERELY because either participant in it WANTS the communication to be private. Whether they are discussing a criminal conspiracy or a matter of public interest or not is irrelevant. To me, wiretapping is illegal without a Court Order. Lorenzo Tanada wisely made it the DEFAULT CONDITION that wiretapped material be illegal without a court order.

BTW, I don't think the Garci Recordings per se prove anything about VOTERIGGING. But they obviously prove something about WIRETAPPING


No, I guess not Dean but as you say, they could HARASS them. Defending against legal harasments costs money - this is probably the tack that Gloria and her hustlers in Cabinet are taking.

Gloria's hustlers are lucky that they are in the Philippines because they can harass their opponents to their last centavo in legal fees and they can fight on one case at a time - from what I heard, a trial will concenctrate only on one case at a time, that the court may not allow evidences to be brought in by the defence unless it has a direct bearing on the case.

In Europe, they'll find it less easy because anyone who files a case against a journalist accusing him of libel will have to prove his case, eg. if the journalist calls Gloria a thief, she will have to show proof that she ain't a thief and in doing so, she leaves herself open to further investigation and questions.

In other words, the libel suit becomes a double-edge sword because the defendant will have to come up with proof and counter-proof against the plaintiff. And in the course of the presentation of evidences, the plaintiff becomes terribly vulnerable to the prying eye of the law AND to the rest of the media.

Gloria, if she were here for instance, would leave herself wide open to a protracted legal battle where the media become the witnesses for the defence. And more dangerously to criminal charges which may be found in the course of the defendant's presentation of counter evidences which could be unearthed against the plaintiff.

I tell you DJB, the law here is as it is practised is a fair game for both plaintiff and defendant - in the sense that every single evidence is dissected and analysed, counter analysed, presented and re-presented, dug and re-dug at the risk of opening more dirt, etc....

But while the law may be deemed fair, it can be an extremely double-edged lethal weapon for the plaintiff particularly if he has something to hide ...

Example: UK Member of Parliament Jeffrey Archer - his libel suit backfired - his lawsuit against a journalist focused on only ONE item (can't remember anymore) but in the course of the trial for libel, it was discovered that he had committed another crime - the law turned around and accused him of perjury and plagiarism.

Party over!

manuelbuencamino said...

I'm with you, DJB, on protecting personal privacy no matter what.

But I am a little unsure about official communications.

For example. In the case of the watergate tapes, Nixon knew about the hidden mikes but I doubt if everyone who went into the Oval office was aware of their existence and specifically gave their consent to being taped. And even if they were aware of their existence I doubt if any of them would have wanted or consented to have their illegal conversations taped.

Even Nixon I'm sure would not have consented to his being taped while he was plotting the cover-up. Remember the infamous missing 18 minutes?

And yet, the US Supreme Court allowed the tapes to be played, except, i think, those parts that obviously endangered national security.

What if the Commander in Chief makes sure that all her illegal orders to the Chief of Staff, like, for example, to massacre demonstrators, are purposely given over the phone so that, just in case, someone was eavesdropping it can never be used against her?

Do you believe that the protection of such acts was contemplated in the anti-wiretapping law?

Wasn't the law more about the protection of the indvidual's rights against state encroachment in the same way that separation of church and state is read as a prohibition on the state rather than on churches?

Can't we draw a line between our personal right to privacy and official communications, specially criminal ones?

DJB, I am not arguing. I just want to know what you think, based on my examples above. I need someone to bounce off my thoughts on the matter.

BTW, the tapes would probably need independent corroboration in a criminal procedure but certainly not in Plaza Miranda. And in politics, it's Plaza Miranda that counts not the courts of laws where justice is blind and sharp-eyed lawyers rule.

Rizalist said...

The principles are well known in this regard: The right to privacy and the right of the public to know are separated by the right of the individual against self-incrimination. In a sense, eavesdropping on someone is like forcing them to self-incriminate.

But it doesn't mean that the right to privacy is absolute. If one is found out, even by accident, one can't hide behind the right to privacy as defense. The Antiwiretapping law only forbids the intentional eavesdropping on a person without a Court Order. Seems all other noncoercive modes of gaining information, especially about leaders is allowed.

manuelbuencamino said...


Thanks for the clarification. It's the right against self-incrimination. That's what I had forgotten to include in my thoughts.

Rizalist said...

A beautiful thing is the right against self-incrimination, a shield that protects both ways: No one can force you to speak against yourself, therefore, we are not allowed to force anyone else to speak against themselves, even if they are public officials. However, I don't believe that eo 464 for example is a legitimate exercise of the right to privacy.


Dean, MB has a point, eg, when a commander in chief gives an order to a chief of staff to "massacre" a population by phone in the hope that the someone is eavesdropping, etc...

When a commander in chief gives an order to the highest military officer of the land, traditionally, the order is made in writing. An honorable chief of staff or major service commander should not execute a command coming from that level unless it is in writing even if the political administrat belongs (DND) was bypassed for the occasion.

A major service commander should not also anticipate an order from a commander in chief.

Orders to the military at that level should be in writing and should be recorded.

It's clear cut.

If perchance we have two leaders a civilian and a military of equally murderous character, there's not much anyone can do. I will go to the extreme - if a massacre was committed by the highest military officer on orders of his commander in chief, the military officer forfeits his right to live.

Rizalist said...

Perhaps I am missing the point, but it seems to me that we must be willing to take the risk of not intercepting a murderous command to massacre a fraction of the population, because we cannot actually have the state be a self-absorbed monitor of everyone's generally innocent banter. In other words, we cannot hope to catch such cataclysmic orders unless we are prepared to deal with the harmless rest.



Actually what I was trying to say up there re MB's point is that military tradition and rules dictate that an order by a commander in chief be done in writing and without that order in writing, he should not execute any order particularly one which will have grave and serious consequences. (He should anyway refuse to obey an order to massacre EVEN IF IT'S IN WRITING because it is an ILLEGAL order under any military rule.)

Therefore, it becomes immaterial whether the military commander (eg CS of an armed forces) receives such order by phone from his commander in chief; the mere fact that he executes it becomes his ENTIRE command responsibility, commander in chief or not! The case is simple - the chief of staff can be charged under all the Articles of War; the command responsibility lies in him and in him alone...

The commander in chief's liability is entered into a separate and different charge sheet altogether.

bernardo F. Ronquillo said...

There is actually one question left for the Elite, Civil Society, Militants, Media, the Police, the Military and the Pilipino masses to answer: If a snap election is held, will they accept the one who will be elected President even if he does not come from their group? A run-off election can ensure that the President will be voted into office by the majority. But will the whole nation accept him as their own? Are we , as a people, capable of this? "If we do not learn from history, we are bound to repeat it."

Rizalist said...

Interesting you mention the idea of a SNAP ELECTION. I think it is based on the absolutely correct notion that only a credible election can save Democracy now. "Snap" because the sooner the better. But whether now or later, that is the actual challenge before the nation. It has been floated by Angara. Erap challenges GMA to a one-on-one election to save Democracy itself. Offers to get UN oversight (a la East Timor) to settle the issue of credibility. Then, whoever loses is guaranteed immunity from criminal suit!

It's all she wants anyway, IMO.