Tuesday, August 28, 2007

Chiz To Miriam: Nego Supositum!

Spicing her Ilongo-American accented Privileged Speech on the pending Garci Wiretapping investigation with bits of Latin gobbledygook, Miriam Defensor Santiago chewed her tongue to bloody shreds it seems insisting that the Senate itself would be in violation of the Anti-wiretapping law if it so much as came into possession of "illegally wiretapped materials."

But in his interpellation of the good Maid Miriam, Senator Francis Chiz Escudero made mincemeat of her ENTIRE speech with a simple and truly novel point that there is no Court of Record that has declared the Garci Recordings to BE illegally wiretapped material. In other words he simply demonstrated that Miriam's ENTIRE SUPPOSITION that the Garci recordings ARE illegally wiretapped materials has not been established because it has not even been established that they are wiretapped materials at all. In other words: NEGO SUPOSITUM!

But when Chiz asked her if the products of their own illegal wiretapping could be used as evidence to prosecute the wiretappers, Miriam peremptorily replied "NO!" insisting that RA 4200 forbids ANY use of illegally wiretapped materials.

I am surprised the following refutation of Miriam's weird reponse to that question was not mentioned. It is Section 3 of of RA 4200 The Antiwiretapping Law! --
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. 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."
Senator Rodolfo Biazon also interpellated Miriam and brought up the very important point that any investigation of the Garci recordings will focus on its NATIONAL SECURITY implications. That is the point this blog has been making almost since the first day that I read RA 4200 Anti wiretapping law.

Sen. Juan Ponce Enrile tried to make it seem that the Garci Recordings are not covered by Section 3 crimes against national security. But is it not a clear case of ESPIONAGE committed by Filipino citizens who are also active military service men to have wiretapped the president and compromised the communications of the Commander in Chief?

Well, so much for the Poison Fruits Argument of Miriam Defensor Santiago and Dick Gordon, who really know better than they are letting on, in my opinion!

I hope the Senate investigations will indeed lead to killing several birds with one stone:

(1) To cleanse the military of wrongdoers who have prostituted the Armed Forces of the Philippines to partisan political purposes, and have demoralized and debased the honor of the Philippine Military.

(2) To establish the NATIONAL SECURITY as the highest of national priorities by securing the highest offices of the land, such as the Presidency, the Senate and the Supreme Court.

(3) To develop new legislation that will promote electoral reform and forever bar the likes of Virgilio Garcillano and his patrons from desecrating the sanctity of the ballot.

LANCING THE BOIL THAT IS THE POISON FRUITS DEFENSE:

I greatly admired the legal erudition and sheer wit of Chiz Escudero in deploying his NEGO SUPOSITUM argument, and his gentlemanliness in responding to the entirely graceless statements of his colleague in refusing to take any more questions from him because she didn't like "his premises". It was this remark of Miriam's which made me realize that that was his entire rhetoric: I DENY your premises and suppositions madame! And of course he is right, for indeed where is the proof or finding or authoritative declaration that these multitude of bits and pieces of conversations, scattered in analog tapes, digital cds and internet-downloadable MP3s are in fact WIRETAPS. No one has stated categorically with proof that these recordings are indeed illegally wiretapped materials.

I think this clearly means that Chiz Escudero understands the Antiwiretapping Law just as well as Miriam does, but he intends to apply it carefully, systematically and ethically to discover who has broken that law by indeed, illegally wiretapping the President and many other private and public personalities including Virgilio Garcillano.

He makes the very persuasive point that it must first be demonstrated that these recordings are wiretapped materials before the sanctions against possessing them may be invoked as Miriam wants to do even BEFORE such demonstration. That the Garci recordings ARE wiretappings cannot just be asserted and then believed "hook line and sinker", Chiz claims, but must be tested with questions and logic when the witness Vidal Doble makes his claims and accusations. But first he must be allowed to make those claims. Putting the cart before the horse, you are, Madame. Touche!

What the law prohibits after all is the knowing possession, dissemination and reproduction of illegally wiretapped materials. Chiz basically asks a question that destroy's the premises and suppositions on which are founded Miriam's entire discourse: How do we KNOW that these are illegally wiretapped materials and not, let us say, studio spliced recordings?

Miriam had no answer to this other than to assert again "the absolute prohibition against and absolutely inadmissibility of illegally wiretapped material for use in ANY legislative hearing or other proceeding."

This self-evidently a false claim on the face of it -- as if one did not know about Section 3 of the law! Surely, the products of a real spy's illegal wiretapping activities would be the best physical evidence of those criminal activities, as explicitly allowed for in Section (3) of RA 4200, which covers wiretapping cases involving National Security and kidnapping.

She chooses to ignore the simple fact that the "Anti-Wiretapping Law" does explicitly allow any or all of the acts she claims are prohibited absolutely, such as wiretapping, possession, replay and reproduction of wiretapped materials--before, during or after any crime against national security or in cases of kidnapping.

Chiz's accomplishment is to show how a proper prosecution of a crime against RA 4200 ought to be done.

I think Miriam Defensor Santiago has met her match, both in Law and in Logic in Chiz Escudero, BUT....

THE GOOD AND RIGHT IN MIRIAM'S POSITION: In the final analysis, and despite her shrill tone, I actually agree substantially with the effective position of Miriam to investigate with vigor the Garci Tapes WITHOUT REGARD TO THEIR CONTENT (the electoral fraud angle), and instead to focus on discovering who the Masterminds of Wiretapping are in the Philippines. This is also substantially the position of Rodolfo Biazon, to prosecute the crimes against national security implied by the wiretapping itself. Never mind the content.

But listen to Sen. Miriam Defensor Santiago asking "Who are these Dark Forces?" who have the ability to order even mass wiretapping?

Here is Miriam's Marvelous Rant Against the Wiretapper Mastermind! (MP3)



I wonder which DARK FORCE she was thinking off as she delivered above impassioned denunciation of the criminal wiretappers and their overlord? Could it be her ancient nemesis...

The entire Privileged Speech of Senator Miriam Defensor Santiago on the Garci Wiretapping Scandal is here at the Internet Archive. (MP3)


Speculation: Realizing that FVR's tit could be in the ringer on this one, I think Miriam has effectively joined the Opposition on the issue. She has adopted the position that the Senate can go after the wiretappers, but with utter disregard and even suppression of the tantalizing content relative to election fraud in the conversations. I agree with her on that to the extent that it would be premature at this stage to even tackle that barrel of monkeys about the 2004 Presidential election, whose outcome we must consider a closed matter. She does not actually join with Biazon in admitting this is about national security, but I think it'll come to the same thing as the investigation gets going.

It is that aspect of national security that I believe is of paramount importance because the Isafp wiretapping opens the entire government and private citizens to blackmail, extortion and is basically ESPIONAGE. Against this we must apply Section 1 of the antiwiretapping law, armed with the letter and spirit of Section 3.

13 comments:

manuelbuencamino said...

On your three points I agree.

Additionally, what surprises me is Gloria's lack of interest finding out who tapped her. Who ordered Operation Lughthouse.

She doesn't even show any PERSONAL interest considering she was a victim and considering all her political problems because of those tapes, I am really surprised,

She was raped by a masked man, he gave her STD and she would rather leave it be.

Ano yun, because the rapist promised to marry her?

DJB Rizalist said...

Miriam is finished. Constitutional expert my foot. hehe. serves her right! Boy that chiz is sharp as a needle and stings like a small hypodermic with king cobra venom.

manuelbuencamino said...

What say you about Brenda's threat to TRO the playing of the tapes?

Jaxius said...

DJB,

this

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

refers to these

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.

An illegal wiretap will always remain illegal and the law does not authorize a judge to cure it.

john marzan said...

Hindi po si Arroyo ang mino-monitor ng authorities kundi yung rogue official na si Garci.

Why? dahil untrustworthy si Garcillano at alam nilang may masamang binabalak (criminal, election rigging), at baka magsumbong sa opposition (if the price is right). That's why they're using electronic surveillance on this crooked election official.

Nadamay lang si Arroyo dahil tinawagan niya si Garci.

Wouldn't be a huge problem for her if they were just chit-chatting. but when they talked about silencing witnesses and fixing elections, ibang usapan na yan.

DJB Rizalist said...

Jaxius,
Suppose a real spy practices espionage and tries to leave the country bearing his illegally wiretapped recordings. He is accidentally detained at the airport and is caught with the illegally wiretapped material.

The material contains scandalous conversations of govt officials, editors, publishers, private people, etc. and is prima facie evidence of the spy's violations of Section 1 of ra4200.

If the policemen decide to sell the material to the media or make lots of copies and give them away, I think they would be guilty of Section 2 violations of ra 4200 for using the illegally wiretapped materials.

But if the police submit this illegally wiretapped material to an RTC judge who authorizes them to use it as evidence in a case of espionage, this allows them to legally use the illegally wiretapped material.

Now, did the judge "CURE" (your term) the illegally wiretapped material.

No, the spy is still liable for Section 1 violations. But the police are no longer in violation of Section 2.

Capisce?

DJB Rizalist said...

Jaxius,
you gotta look really hard at the redbolded phrases in my citation of Section 3 of RA 4200.

Most people misinterpreted the meaning of Court Orders as being valid only when they are issued BEFORE a wiretapping is done. But that is for legitimate wiretapping by the authorities, such as in kidnapping cases. A judge would never give a foreign spy this type of authorization!

But Section 3 says "before, during or after" a crime against national security is committed, Court orders may be issued authorizing "any of the acts" prohibited in Sections 1 and 2, such as possessing, copying and distributing the same.

Look how else can we prosecute real spies if we can NEVER use their illegally wiretapped products because they were illegally wiretapped.

As long as a Court says we can, we can!

Jaxius said...

DJB,


* Is the wiretapped material admissible as evidence against the wiretapper?

Yes.

* Can the basis of that be found in RA 4200?


No.

When you say that it is, what you have is an erroneous reading of the law. The Court Order mentioned in Section 3 of RA 4200 only pertains to acquisition of evidence through wiretapping and similar means and excludes the possession and distribution of already existing illegal wiretapped material you are alluding to. You missed the fact that the provision qualifies the issuance of such order on the following:

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 of such crimes; and
3. that there are no other means readily available for obtaining such evidence.

How can possession and distribution of illegally wiretapped material pass the requirement No. 2 and 3? Once an illegal wiretap, always an illegal wiretap. It cannot be cured.

* So, what's the basis of the position that wiretapped material can be used against the wiretapper?

Because the prohibition of admitting wiretapped material as evidence against the wiretapper was not intended under RA 4200. It is a law intended to protect the privacy of communication and correspondence. Contrary to the letter of the law, it was not intended to protect everyone, including the person who violates it. Basic of statutory construction, "stay away from interpreting the law in a way that makes the law absurd." It is the person who was wiretapped that is afforded protection because it is his right that was violated.

You further argue:


Suppose a real spy practices espionage and tries to leave the country bearing his illegally wiretapped recordings. He is accidentally detained at the airport and is caught with the illegally wiretapped material...


Given this example, only a stupid, stupid spy would conspicuously label "wiretapped materials" as such. If the customs police or other law enforcement officer would play a CD which in normal situation looks harmless and only on mere suspicion that it is wiretapped material, it would constitute an illegal search. Thus, it would still be inadmissible as evidence.

It is also erroneous to say that law enforcement officers need to ask permission from the Court to use wiretapped materials in prosecuting the wiretapper. Such officer would be using it to prove that the anti-wiretapping law was violated, not to prove whatever is contained in the CD. The contents, in this instance, would be irrelevant. If the acquired wiretapped CDs, for example, were obtained through a valid search warrant or in those instances that justify a search without a warrant, why would the law enforcement officer need to ask from the Court permission to use them? Of course, they are admissible. The Court, on the other hand, is obligated to issue orders that would protect the rights of those who were wiretapped, to include hiding their identity from the public.

DJB Rizalist said...

Jaxius,
By default wiretapping, possession, repro and distribution of wiretaps, are all illegal because of Sections 1 and 2 of the law.

But section 3 of the law says that 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..." provided that the three provisions you mentioned are complied with.

Now you ask how "possession and distribution" can comply with Requirements 2 and 3.

Like this:

If a peace officer is seeking to solve a PAST crime like espionage and comes into possession of the illegal wiretaps that are the physical evidence of that crime, (perhaps because they contain the fingerprints of the spy, or because the contents have recognizable voices that bespeak of espionage) the default illegality of mere possession and distribution, say to other detectives or investigators can be cured if he can convince the judge that this is the only way to solve that past crime and convict the spy using the wiretaps as evidence.

If he is trying to prevent a future crime or one that is being presently committed, the default illegality of the act of wiretapping has to be cured by convincing the judge to give him permission to do so, but that would not be enough because he will come into possession of wiretaps and need to reproduce and distribute them to other investigators.

The default illegality of mere possession and distribution then needs to be cured also.

That is how precise and concise and comprehensive the mind of Lorenzo Tanada was.

Now I ask you, since you do agree that illegal wiretaps can be used as evidence, but insist that the basis is not in RA4200,

then where is the basis?

Jaxius said...

DJB,

In the first scenario you cited, the legality of possession should be given by virtue of a valid search warrant to seize such materials. It cannot be reversed. The police cannot seize it without a valid search warrant then justify possession under Section 3, RA 4200.

In the second scenario, such a position might encourage the police and the military to wiretap indiscriminately without asking for permission from the court because anyway, if they hit paydirt, they can always justify such illegal wiretapping by the "curative" measure of Section 3. I don't think that is the intention of the law.

Furthermore, read the next paragraph enumerating the contents of the Court Order in question.

"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;..."

Seems clear to me that such court order only pertains to evidence TO BE acquired by conducting an authorized wiretapping or bugging operation.

Not to denigrate the great Senator Tanada but the law suffers from some vague provisions. For one, a cursory reading of the blanket prohibition that wiretapping materials are inadmissible in any proceeding has lead some to the construction that it includes the use of such wiretapping material against the wiretapper.

Evidence to be accepted by the Court must pass two requirements, it must be relevant and competent. We have no problem with relevancy. An evidence is competent is it is not otherwise barred by the Rules of Court or by law. RA 4200 did not intend to bar wiretap materials against the wiretapper. Simple as that.

DJB Rizalist said...

Jaxius,
I respectfully suggest that you are confused over the idea that this law covers many different possibilities in which the national security crimes in question may occur, before, during or after the act of going to a Court.

Sure IF the police seize certain materials and then only go for authorization afterwards that would be an invalid use of the law.

But what if they don't seize and it just materializes under their door? Do they ignore it and say, oh no we can't even possess this because of the law. What if it is information that someone is gonna detonate a one ton bomb in Makati?

That is a case where they need to justify possession and perhaps permission to then go and wiretap the supposed source of the material to try and prevent it because all they know from the magically appearing material might be that it will happen and not when.

By the way, thanks for this very stimulating discussion. It is much appreciated and it has helped me see things even more clearly than before by being force to explain my views to someone who has also struggled with the Djinn of Understanding. More power to you Jaxius!

Jay said...

DJB,

More power to you too, DJB!

I hope you understand where i am coming from. Taking your position, in my opinion, easily leads to abuse. you seem to always give the state the benefit of the doubt. I take the position which is less forgiving, expecting the State to toe the line strictly.

the AFP has been indiscriminately conducting illegal wiretapping (and mail intercepts)against anyone whom they suspect as an enemy of the state since the 1990s when i was still in the community. I don't think anything changed since then.

DJB Rizalist said...

Jay,
Are you sure you understand where I am coming from, because so far I agree with everything you have said. If what you say is true that the AFP has been conducting illegal wiretapping since the 90s, i definitely agree that such a violation of Section 1 of ra4200 deserves investigation, prosecution and judgement.


You might want to look btw at the newest post. I've put links to all the commentaries i've written on this subject. you may wish to read some of them and feel free to comment.

Welcome back.