Monday, April 3, 2006

The Public's Right to Know Ends at the Fifth Amendment

The Military Mutiny cum Judicial Coup d'etat that used to be called the Edsa 2 People Power Revolution spoiled many idealogues of People Power. It fooled them into thinking that it really was the marching, protesting, cyber-warrioring, the demanding that Erap resign, --which brought about a peaceful regime change. Unfortunately, they still do. To this day many still believe it was the mythic thing called People Power that made it all happen in 2001, and not Angie Reyes and Hilario Davide scheming behind the scenes with Mr. & Mrs. Arroyo and Cardinal Sin and Cory Aquino, with the rest of the future Arroyo Cabinet. And Artemio Panganiban. No one mourns the fact that impeachment -- and the Constitution -- failed, not because of the Craven Eleven, but because like them, we could not live up to the eternal principles that "The end does not justify the means." or "Two wrongs don't make a right." Today's People Power ideologues think they can do the same thing to Gloria Macapagal Arroyo. Instead they are living the karma of moral inconsistency, unable to hold Angie Reyes guilty of mutiny while dismissing the failed Faeldon, and idolizing the putschist Davide for putting away, one bright and brilliant Saturday, the blundering plunderer, Joseph Estrada. Three in a row might've proved the theories of People Power. But Gloria has broken their hearts. There is no People Power Santa Claus, child. You gotta have the Judges and the Generals in your pocket to pull off that illusion ..And she knows the noisiest among them have other options anyway. (Look even the Catholic Cardinal has a moister eye for China than Manila) ... Edsa 2 seemed too good to be true, because it was...even if some people insist they hear sleigh-bells every time a crowd gathers with red banners...or even black and white T-shirts. Freedom has to be won the hard have to EARN it...else why would you EVER guard it with eternal vigilance?

Listen to the accompanying (MP3) of Press Sec. IGNACIO BUNYE on June 6, 2005 at Malacanang Palace confirming it is the President's Voice in the Garci Recording, oh but not Garci...
Last year, on June 8, 2005, House Minority Floor Leader Francis Escudero delivered a Privileged Speech entitled “The Tale of Two Tapes” in which he demanded a Congressional investigation into the subject matter of the picture nearby. Taken two days earlier, on June 6, 2005 at a Malacanang Palace press conference, this historic photograph records for posterity the very moment of birth of the devastating political crisis called the Hello Garci Scandal or Gloriagate. Last week the Joint Congress Committee which conducted a total of 14 public hearings on the matter issued an official Conclusions and Recommendations Report (PDF). Signed by its five chairpersons: Emmylou J. Taliño Santos (Public Information); Amado T. Espino Jr. (Public Order and Safety); Simeon L. Kintanar (Information Communications Technology); Jose G. Solis (National Defense and Security); Teodoro L. Locsin (Suffrage and Electoral Reforms). Chiz Escudero and Rep. Gilbert C. Remulla (2nd District Cavite) have also produced a House Minority Dissent and Objections (PDF) in reaction to the above Majority report.

Here is the Minority's very first objection, which has to do with Republic Act 4200, the Anti Wire Tapping Law...
"As what has been seen and heard during the hearings, the application of Republic Act No. 4200 has been severely misused and abused by the supporters of the Arroyo Administration. The heart of the issue was not whether the rights of the President under RA No. 4200 may have been violated, but whether the law unintentionally prevented the president for being held accountable for her crimes and misdemeanors. Arguments on technicalities were used such that the truth was drowned in the provisions of said law. Proposed amendments to RA 4200 should thus ensure that the grandstanding and legalspeak during the hearings will not be repeated as it has done nothing but obstruct a legitimate search for the truth. Noticeably however, the recommendations in the Committee Report on the matter of revisiting RA 4200 lacked an aggressive tone as to the particular amendments that could best address the problems that we faced in this “Gloriagate” controversy. The imperative need to come up with a distinction between private conversations and conversations clothed with public interest is surprisingly missing in the Committee Report. The hearings have made it apparent that public interest is paramount over any technicality or provision of law."
It's pretty clear from the sentence above in red italics that Reps. Remulla and Escudero have bought into the Palace's own argument that as it currently stands, RA 4200 The Anti Wiretapping Law of 1965 somehow makes the Garci Recordings "poison fruits" because of their patently illegal provenance as either treasonous studio fakes or illegally wiretapped recordings that have also fallen into the public domain. They also seem to agree with ex-Comelec Commissioner Virgilio Garcillano who filed an undecided case in the Supreme Court last December. praying that the Garci recordings be legally suppressed, including, to expunge them from the Congress record. Why else would Chiz Escudero and Gilbert Remulla be trying to make a distinction between "private conversations" and "conversations clothed with public interest" if they did not think that the Garci conversations belonged to the former category? Why else would they demand a more "aggressive tone" in the recommendations of the Joint Committee for revisiting RA 4200?

I found this statement (in red italics) extremely puzzling. The distinction they demand between "private conversations and conversations clothed with public interest" is already plainly and succinctly stated in R.A. 4200 Section (3A):
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:
These are the crimes (again in red italics) on whose purported participants R.A. 4200 allows "peace officers" to carry out wiretapping and eavesdropping operations on, or any of the other acts prohibited in Sections (1) and (2), under proper Court orders and oversight. The latter point is crucial. For WHO is to decide whether or not some activity, like a conversation, contains some matter of "public interest" that falls within one of the above categories! Why, a competent Court of Law! Naturally and appropriately. But, Reps. Remulla and Escudero seems to be under the impression the "misuse and abuse" of R.A. 4200 "unintentionally prevented the president from being held accountable for her crimes and misdemeanors, " and that "public interest" was not "held paramount over a technicality or provision of the law."

But that's not what I saw actually happening during the Garci hearings of the House Joint Committee. What actually happened during the two hearings at which Virgilio Garcillano testified was that the Opposition kept trying to get him to first admit that the voices on the Garci tapes were his and the President's, and to explain the meaning and content of their apparently wiretapped conversations. By refusing repeatedly to do so, Garcillano was effectively invoking the Fifth Amendment and refusing to incriminate himself. It is here that the answer also lies to the question posed by Escudero and Remulla about the proper balance between the Rights of Privacy and the Public's Right to Know . Here is a general principle that stands with simplicity and elegance and clarity (in comparison to Esudero and Remulla's muddled Objection)-- THE RIGHT OF THE PUBLIC TO KNOW ENDS WHERE THE RIGHTS OF PRIVACY BEGIN --AT EVERY CITIZEN'S RIGHT AGAINST SELF-INCRIMINATION.In one very important sense, R.A. 4200 is a living embodiment and extension of the Right Against Self-incrimination, which Americans call "taking the Fifth Amendment." The Antiwiretapping Law makes it ILLEGAL -- without a valid Court Order -- for ANYONE to wiretap or eavesdrop on ANY conversation. But R.A. 4200 also specifies the particular crimes and cases under which "any peace officer" may seek permission from a Court of Law to undertake any or all of those same banned activities! Thus when Garcillano invoked his "Rights of Privacy" and refused to answer the most damaging questions being asked in the Joint Congress Committee hearings, he was merely invoking his right against self-incrimination. This only happened because the Opposition WAS trying to make him, in effect, CONFESS in open hearing to crimes of VOTERIGGING and all the other crimes that the Garci Conversations certainly do imply or suggest, -- but do not conclusively prove -- were committed by him and others. I think that Virgilio Garcillano was really quite the wrong person to interrogate in the House to get an explanation of the WIRETAPPING crimes themselves. For he really had nothing to do with that operation, but was in fact its target. Nevertheless, the entire investigation centered on him because of the tantalizing possibility that the Garci recordings will somehow prove the suspicions and allegations that that Gloria Macapagal Arroyo stole the 2004 national elections. But if we must characterize the "technicality or provision of the law" that was used by Garci, I would have to say that technicality was the Fifth Amendment. Garci did not use this formulation since the House hearings were "in-aid-of-Legislation" and not a trial. "Right to privacy"just sounds a lot less guilty than "I refuse to answer on the grounds that it might incriminate me."

Above Summary of Objection is followed by the following Discussion, in which Escudero and Remulla display the kind of muddle-headed thinking that truly explains more than anything else, why Only the Opposition Can Save Gloria!
Amendment to Republic Act No. 4200 The hearings conducted by the Joint Congressional Committee has now made it necessary to distinguish between private conversations and those conversations clothed with public interest when it comes to the application of the AntiWiretapping Law. No less than Fr. Joaquin G. Bernas, S.J. has opined that the right to privacy under RA 4200 must be balanced against the right of the people to information, especially information of paramount public interest. He even went further in saying that the contents of the alleged wiretapped materials under inquiry are not merely of private concern as they are matters of public interest. This being said, RA 4200 must be amended such that communications involving the President, COMELEC Commissioners and other impeachable officials committing crimes while in their official capacity are matters of public interest and should not be protected by the AntiWiretapping Law. These recorded conversations must be admissible in evidence in any and all proceedings to ensure that such matters which have a direct impact on the public are disclosed and that RA 4200 will not be used by unscrupulous people to avoid liability. In exempting “public communications,” accountability is likewise highly guaranteed considering that public officials will be more circumspect in their public dealings and communications. Public interest is something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities which may be affected by the matters in question. It is interest shared by citizens generally in affairs of local, state or national government.1 There is no iota of doubt that the whole controversy involving Mr. Garcillano is one which is of public interest to the entire nation. The content of the Garci tapes has put to serious question the legitimacy of the Arroyo presidency. Questions such as was there widespread fraud and cheating during the last presidential elections and who are the people who should be held accountable for such illegal and immoral acts have surfaced. With these questions hanging in the balance, there is need to undertake a comprehensive study of Republic Act 4200 and espouse the need to make suitable recommendations for the revision of the said law, to include the muchneeded distinction between ordinary conversations and those which are of public concern. This however, the Committee Report surprisingly failed to state in its recommendations. Instead, the report delved greatly on proposals to expand the scope of allowable wiretaps, even allowing private entities to engage in wiretapping. We aver that on the contrary, any amendment should provide for stringent safeguards against possible abuse of the government’s capability to tap into private communications and should likewise limit wiretapping capabilities to national law enforcement agencies.


I disagree wholeheartedly! If Chiz and Remulla have their way, we shall end up THROWING THE BABY OUT WITH THE BATH WATER and giving up the protections of Senator Lorenzo Tanada's superbly crafted Law. In the first place they are asking for the right against self-incrimination to somehow be suspended for government officials, that they in essence be freely subjected to surveillance, wiretapping and espionage, just in case "they are committing impeachable crimes." Well, why stop there. Why not allow the State to monitor everyone, starting of course with the left-leaning party-list congressmen, the rebellious soldiers and media, in addition to Garcillano and the President? Bah! These two guys don't understand RA 4200 and no amount of scurrying under Fr. Bernas' constitutional skirts will make up for their apparent lack of comprehension of this crucially important point. No one can be made to confess to his own crimes! Or have his voice indict him without his consent!

The figure of speech, "to take the Fifth Amendment" comes from The Fifth Amendment to the U.S. Constitution (ratified in 1789) which declares that --

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
So you see it is not only "criminals" that are protected by the Fifth Amendment, nor their rights against self-incrimination, but the whole gamut of freedoms from the State's intrusions into our private lives and liberties. The right against self-incrimination is to me, the outer boundary of the rights of privacy.

Don't worry folks...tomorrow I will dissect the Majority's Report (with Teddy Boy's fingerprints all over it and a different mental somersault is urged...)



I see your point DJB.

Garci was the wrong person to investigate at that particular moment when the Lower House was trying to establish the true identity of the people behind the voices on the tape.

After the defeat of the Minority move to make Garci "confess", how on earth do you propose to re-investigate the crime of wiretapping and punish the culprit when RA 4200 is so comprehensive?

No court order legalizing the wiretapping act on Garci will ever be produced, yet these wiretapped conversations are the real, tangible bases of a potential legal accusation against Gloria and Garci for having manipulated the elections in the former's favor.

It is like saying crime does pay!

However as you explained in your blog ("Only the opposition can save GMA"), "A key concept in RA 4200 -- which arose from the civil libertarian philosophy of its author -- is that it makes all acts of wiretapping and mere possession and use of wiretapped materials UNLAWFUL by default."

So, it is still very possible to criminally prosecute Bunye, Paguia, Doble, Ong, etc for possessing the "tapes", and in that order.

If by investigating and prosecuting them will lead to full disclosure of the truth behind the election manipulations, then so be it.

So, why isn't the Ombudsman or who ever is legally competent to file criminal charges against these people doing it?


Btw, Dean, what is there a legal time prescription for prosecuting an alleged criminal for wiretapping?

Amadeo said...


Wow, you are very prodigiously productive in your writings! I can't even keep up reading you.

It feels like your day must have more than 24 hours.

Politics and legal scholarship are in your blood.

I say, go for it! I will be behind you 110%.

LCsiao said...

Chiz et al should've gotten Dean as head of their legal team ;)

Anonymous said...

The fifth ammendment...ever since I have heard this on TV trhe people I ask about it always over simplifies this as the right against self incrimination.

Thank you Dean for your tireless research which made me realize that there is always more to things.

Rizalist said...

Folks, I guess I've come to the conclusion that it is not rally each other we must convince, but ourselves. I've been having lots of arguments with myself lately, hehe.

AmericanPainter said...

Dean, What is the Statute of Limitations on criminal prosecution in the Philippines? (if any)

ricelander said...

Dean, I understand where you come from; you are after all a disciple of libertarianism. Thus, if we go by your arguments, correct me if I'm wrong, then we should leave GMA and Garci in peace and quiet and all those possessing records of those wiretapped conversations be penalized accordingly. In fact, the nation should apologize to Gloria and Garci for the unwarranted violation to their privacy and person.

Nice picture, anyone?

I don't know, I'm no legal expert. But I sure know what's ugly when I see one.

Rizalist said...

Oh no! This only means we should not expect anyone to confess to their crimes as we wish. It means we have to do the work to PROVE guilt even as we assiduously PRESUME innocence. It is because the Opposition did not see that this is what they were doing, which is why they failed to expose the true criminals -- whoever made the Garci tapes the first time.

Rizalist said...

AP -- statute of limitations depends on the crime i think. but the principle that military mutiny is wrong has to be re-established. that can't be done without somehow reversing or repudiating the methods of Edsa 2



Re your "Oh no! This only means we should not expect anyone to confess to their crimes as we wish."

I'll be more direct.

It means one and one thing alone, we gotta force that alligator or rhinoceros skinned 2 foot nothing human waste perching on a seat in Malacanang out of the Palace and into oblivion!

bernardo F. Ronquillo said...

DJB, that is quite a mouthful you posted today. I am still chewing on it and perhaps make a comment when you keep your promise to dissect the minority report today.

By the way, I think that all the visible political players now, and I do mean ALL, are absolutely CLUELESS on what is good for the our country today. If an upheaval is to happen, it will be without them nor most important of all without their knowledge. NABIBISTO KUNG KASAMA SILA SA PLANO. In which case it is better for something to be unplanned, a spontaneous combustion borne out of desperation and "pagka-INIP sa karimlan."

Consider this, everyting that were planned failed because they were expected. GLORIA will be felled by people she does not know and not in the direction she expects.

AmericanPainter said...

DJB, military mutiny has ALWAYS been unlawful but it seemed OK to most everyone at the time, in order to achieve Edsa 2. When laws are ignored as a matter of achieving the popular goal it tends to come back to haunt.

In the instant case it appears to have brought about iron fisted rule.

As to statute of limitations, when I was in charge of fraud prosecution in the State of Kansas, we labored under a two year statute of limitations. We had two years to detect, investigate and prosecute. After that period, prosecution was forever barred. The same held true for other crimes, the only exception to the limitation was murder.

I don’t think such a short period statute however, would be feasible in the Philippines. We had the technology, resources and social system to catch the crooks within time restraints.