Friday, March 9, 2007

Alan Paguia and the Good Fight

Talking on ABSCBN News Mornings on ANC, lawyer and teacher Alan Paguia continues the good fight to bring to light the true nature and provenance of the Garci recordings. Against all odds he has filed a verified complaint with the Comelec to investigate the matter, inspired he says by Commissioner Resurreccion Borra's challenge that some one do so. Alan believes it is the duty of this generation of lawyers to do what is right so that the next generation will not come to the conclusion that this generation did not do its duty. He recalls as his real inspirations Andres Bonifacio and Ninoy Aquino.

He has my greatest admiration and total support!

Someday, I believe, it is persons like him that will populate the Supreme Court and the colleges of law, not traitors to the Constitution like Hilario G. Davide, Jr., his nemesis and vindictive judge that suspended his right to practice the Law.

The Garci Recordings remain like a bone in our throat. Until the person or persons unknown that produced these recordings are exposed, and the ultimate meaning of their contents are exposed and the perpetrators punished, we are not a self-respecting or sovereign nation.

Now, there are two different sets of crimes that were potentially committed in 2004 that involve PGMA and Virgilio Garcillano:

(1) Violations of the Omnibus Election Code and various elections-related offenses that gave Gloria Macapagal Arroyo an apparent victory over Fernando Poe, Jr. (cheating).

(2) Violations of various national security statutes, including the Antiwiretapping Law, which produced the audio recordings of the President, a Comelec Commissioner and numerous public and private personalities.

I think the reason progress has not been made on this issue is because we all concentrated on the first set of crimes instead of the second set. And the reason this happened is because the administration won the argument that the Garci Tapes are "Poisoned Fruits" and can't be used for any purpose without a Court Order authorizing them. This resulted from an insufficient understanding of RA 4200, the Anti wiretapping Law of Lorenzo Tanada (1965). While it is true that the principal motivation was to protect the right of privacy, its author Lorenzo Tanada also realized that there are definitely legitimate uses of wiretapping that involve both national security and law enforcement. Consider Section 3 of the Act:

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. I realized that its author was a brilliant man of the Law. He wrote a law that finely balances the rights of privacy and the need of the state for national security operations that ought not be deprived of technological tools like covert recording. A simple example is this. Suppose a foreign agent is caught with tapes AFTER he has illegally spied on the President. If the above section did not provide a way for Courts to authorize the use of the siezed tapes, Sections 1 and 2 of the Act would not allow their use as evidence against the perpetrator. In other words Tanada allows Courts to authorize the use of wiretappings BEFORE or AFTER the recordings are made, either by the authorities to collect intelligence and evidence of wrongdoing, OR as evidence of crimes in the cases of espionage and treason.

In my analysis of the act, I realized that its author was a brilliant man of the Law. He wrote a law that finely balances the rights of privacy and the need of the state for national security operations that ought not be deprived of technological tools like covert recording. A simple example is this. Suppose a foreign agent is caught with tapes AFTER he has illegally spied on the President. If the above section did not provide a way for Courts to authorize the use of the siezed tapes, Sections 1 and 2 of the Act would not allow their use as evidence against the perpetrator. In other words Tanada allows Courts to authorize the use of wiretappings BEFORE or AFTER the recordings are made, either by the authorities to collect intelligence and evidence of wrongdoing, OR as evidence of crimes in the cases of espionage and treason.

I believe this should still be the prime focus of investigating the Garci recordings:

WHOEVER MADE THE ORIGINAL RECORDINGS OF THE PRESIDENT AND A COMELEC COMMISSIONER ARE GUILTY OF VIOLATING SECTION 1 OF RA 4200:

Section 1. 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:

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 Sec. 3 hereof, shall not be covered by this prohibition.

RELATED POSTS:



The Right to Privacy and the Public's Right to Know

Dilemma of the Poisoned Fruits

Fingerprinting the Human Voice


Was the Adam and Eve of All Tapes Digital?

Long Live the Anti-Wiretapping Law!


Fourteen Soldiers Are Hostages of ISAFP


Stunning Break in Gloriagate Case

4 comments:

ricelander said...

I like the way you put it: "like a bone on our throat".

Rizalist said...

I like the way Alan put it on television: he's doing this because it is our duty to the next generation.

baycas said...

I like the way some crimes (e.g., the wiretapping and comelec mega-pacific deal) are committed here...they are without criminals.

Rogelio M. Serrano Jr. said...

unbelievable! they dont want us to have the means to find the truth! officials and politicians are scared of microphones and recording devices specially those installed by ordinary people.

Besides its a distorted story anyway. they make it look like its only a few government officials are doing the cheating. when in fact both sides have done it.

i dont trust the current generation of leaders running this country. i really feel that we should be eavesdropping on the whole lot!