Wednesday, October 3, 2007

How Ignacio Bunye Violated RA 4200, the Anti Wiretapping Law

The Associated Press photograph shows Press Sec. Ignacio Bunye holding up two CDROMs on June 6, 2005 at Malacanang Palace in Manila. It captures the very moment when Secretary Bunye made known to the public the existence of wiretapped recordings of cellphone conversations with voices that sounded to everyone who listened to them to be those of President Gloria Macapagal Arroyo, Comelec Commissioner Virgilio Garcillano and several other public or private persons.

Republic Act No. 4200, the Antiwiretapping Law states that,
Section 1(a) 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 1(b) 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.
In the CDROMs he was brandishing, Bunye claimed that he had TWO sets of conversations involving the President. The first he claimed was a spurious conversation between her and a "Comelec Commissioner"; and a second recording which he claimed to be a genuine conversation between her and a Mr. Bong Ruado, identified by Bunye as a local Arroyo party leader. After Sec. Bunye had just revealed the existence of not one but two wiretapped conversations of the Commander in Chief, he also allowed the very curious reporters to listen to and make DIGITAL copies of the CDROMs he had waved for the unerring eye of posterity. Within days, what came to be known as the Garci Tapes or Garci Recordings were endlessly reproduced online and off, by enterprising investigative journalists radio commentators, tv anchor-folks and bloggers delighted with something politically intriguing yet geekable. Even the ringtone makers and car horn customizers made "Hello, Garci" the sound bite of the post-2004 political cacophony. Subsequently the recordings were investigated and even played in open session in the House of Representatives. They have been under intense scrutiny and investigation by the Philippine Senate.

Sec. Bunye had just violated several provisions of Republic Act 4200, the Antiwiretapping Law on national television. He knowingly possessed illegally wiretapped recordings of the Commander in Chief and a Comelec Commissioner; he played the same for many persons inthe Mass Media there present; he communicated the contents of both the "original" and the "spliced" recordings of the President and/or Garci and Ruado; he did not provide them transcripts but he allowed the reporters and journalists to make digital copies of the two CDROMs. The proviso that the Law makes regarding Section 3 crimes against National Security, cannot possibly be invoked by Sec. Bunye since his acts on that day, did not lead to an investigation of the Section (1a) crimes implied by the very existence of the Garci tapes. He did not accuse anyone of having made the tapes, and every indication exists that he himself was the party to the making of the spurious conversation between the President and Ruado.

But WHY did Ignacio Bunye commit such a faux pas? In hindsight it is now clear that he was trying to make it appear that the President was not talking to Garcillano but to a Bong Ruado. In concentrating on trying to prove the President wasn't talking to a Comelec Commissioner, Bunye inadvertently affirmed that the President had indeed been wiretapped!

I listened to two conversations as divulged by Bunye on that fateful day. Have a listen to GMA asking for the one million vote lead and the mention of one, Benjamin Abalos in the conversation with Virgilio Garcillano:

On his first CDROM was the alleged conversation between PGMA and Ruado:

GMA talks to Garcillano about Abalos (MP3)

On his second CDROM was the following conversation between PGMA and Garcillano which Bunye claimed was faked or spliced from unrelated recordings:

GMA talks to Bong Ruado? (MP3)

Bunye was actually reacting to a radio broadcast earlier that day of the tapes on a local AM station. Had he not reacted the Hello Garci scandal might never have happened at all since the Public would not have given the recordings a second hearing if their revelation only came from persons closely associated with Joseph Estrada. But coming from the Press Secretary, the whole story got legs. And it's been running ever since.


Senator Biazon Sums Up Garci Investigations

SENATOR RODOLFO BIAZON deserves the thanks of his countrymen for his stewardship of the Senate National Defense Committee investigating the Hello Garci wiretapping scandal. It can now be said with a high degree of certainty that the Intelligence Services of the AFP (ISAFP) was illegally engaged in wiretapping activities amounting to POLITICAL ESPIONAGE in the months before the May, 2004 Presidential elections, which was won by Gloria Macapagal Arroyo in a long-controverted election.

Here are some Selected Philippine Commentaries on the Hello Garci Case

WHERE IT GOES FROM HERE...The hapless Filipinos are once more the victim of a peculiar kind of blindness which prevents them from seeing what is right in front of their noses.

In this case, even Bunye was subject of this infirmity, for he was focussed on the apparent violation of a different set of laws, the Omnibus Election Code, that the content of the Garci recordings have always suggested.

But it is precisely that content which is "forbidden fruit" from a Constitutional viewpoint, where the Bill of Rights clearly states,

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

The various generalities in the Constitution are seamlessly addressed by the 1965 law crafted by then Senator Lorenzo Tanada, RA 4200 The Antiwiretapping Law. Although new laws like the Anti Money Laundering Act and the Human Security Act expand upon RA 4200, any legislation arising from Congressional investigations in the Hello Garci Wiretapping case and ZTE National Broadband Network, ought to fully appreciate the masterpiece of English Composition as Law that the Antiwiretapping Act represents. It was suggested by Rudy Salalima of Globe Telecommunications that RA 4200 be amended to "modernize" it and take into account certain technological developments that radically alter the civil liberties battleground.

I think Congress ought to be very circumspect about such amendments.

RA 4200, approved on Jose Rizal's birthday in 1965, is very short. The full text can be printed on two letter sized sheets of paper. Contrast that with the Human Security Act with ten times as many sections and fifty times longer!

I am afraid the BREVITY of R.A. 4200 will make it a natural target for volumetric expansion by our lawmakers. However it is the WIT of the law that must be preserved. Wit, not in the Comedy Club sense, but of Justice as fairness...RA 4200 is the closest thing to a poem or a mathematical theorem I have seen from the tribes of Leviticus in this Archipelago.

It consists of a mere six stanzas making illegal without Court Orders the act of eavesdropping and the use as evidence of the fruits of such acts such as recordings and transcripts.
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 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.

Sec. 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 Sec. or who violates the provisions of the following Sec. 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.

Sec. 3. 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 Sec.s 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.

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.

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.

The court referred to in this Sec. 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.

Sec. 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.

Sec. 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended.

Sec. 6. This Act shall take effect upon its approval.
Approved: June 19, 1965

RA 4200 is an important national security statute, because the law explicitly gives the Courts authority to allow the use of wiretapping for national security purposes. This ability has been severely attenuated and constrained now by the Human Security Act, which allows wiretapping for anti-terrorism operations only with Court of Appeals supervision. The other significant legal use of wiretapping is in anti-kidnapping cases. What happens when terrorists like the Abu Sayyaf conduct kidnap for ransom or beheading for publicity? One wonders what law applies. For example, the judge in Basilan who has 130 arrests warrants against MILF ambushmen and beheaders of Philippine Marines last July 10 -- can the RTC judge authorize wiretapping under RA 4200 to help the police serve the warrants? Since they cannot possibly decide whether their suspects are "terrorists" under RA 9372 do they actually need Court of Appeals approval of intelligence surveillance of cell phones being used by MILF and Abu Sayyaf rebels?

4 comments:

manuelbuencamino said...

you're right DJ except that one is an original fake and the other is a fake original

DJB Rizalist said...

Yes of course, MB. But do you also agree that GMA, Garci and the rest of the voices, except for the soldier annotators, were "victims" of wiretapping?

AdB said...

They are indeed victims if we go by the tenet that non-authorized wiretapping is illegal.

So what now?

Morally speaking, do we just consider them victims ad vitam eternam because the law is written that way and ignore that they have themselves committed barbaric acts against Filipino humanity.

It's like a a thief that while robbing one of the rooms in a house discovers that a murder was being committed, leaves with his loot and not report what he saw for fear he'll go to jail coz on robbery. No other witness, no lead, etc. except that which could be provided by the robber - but then cops finally get robber.

Should we make a deal with the robber to not send him to prison but in exchange he testifies against murderer to convict murderer?

I say, make a deal with robber to convict murderer.

AdB said...

Have you heard?

Inquirer reports Arroyo wants law to protect military secrets

The Inquirer reports that Mrs Arroyo has just ordered the AFP and the DND to help craft laws that will safeguare “military secrets” just as the Senate probes were getting underway into allegations that the military wiretapped Arroyo’s phone and other personalities during the 2004 election period that has come to be known as the “Hello Garci” scandal.

Perhaps, this is the reason why the AFP has repeatedly snubbed Senate summons for top military brass to appear before the “Hello Garci” hearings. They have been crafting this plan all along!

Three things come to my mind right off the bat on why Arroyo wants a law crafted that will “protect military secret” — never mind if we don’t have a law yet to that effect as in other countries where certain military secrets are covered by secret service acts approved by Parliament in the case of European countries and Congress in the US, but what is strange is that Arroyo suddenly turns around after years at the helm just when the probes into the election cheatings in 2004 are going full blast today.