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 --

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.

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.

CAVEAT: 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.

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 INVESTIGATION: 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.

RELATED POST:
Dilemma of the Poisoned Fruits

Senaate Is Really Digging Into the Wiretapping