Tuesday, August 28, 2007

RA 4200, some thoughts

First of all, Republic Act No. 4200 (otherwise known as the Anti-Wiretapping Law) is a CRIMINAL statute that penalizes violation of PRIVACY as defined by it.

Second of all, the Act also LEGALIZES wiretapping under conditions prescribed by it.

Third of all, what the statute prohibits to further discourage the acts penalized is the ADMISIBILITY IN EVIDENCE of the “communication or spoken word or the existence, contents, substance, purport, effect, or meaning of the (communication or spoken word) or any part thereof, or any information therein contained” so obtained or secured in violation its provisions.

On the first point, as a criminal statute, RA 4200 should be construed strictly against the state and liberally in favor of the accused.

On the second point, if the communication is not private, the statute is not supposed to apply. Now, is a communication between the President and a COMELEC official about the conduct of a presidential election private? (Note: I am focusing my question to this and only this portion of the recorded communication in the tape).

On the third point -

a) If the record of the communication or spoken word is used in a “judicial, quasi-judicial, legislative or administrative hearing or investigation” but not introduced in evidence, and therefore there is no occasion to consider its ADMISSIBLITY, is the statute violated? (This could essentially be the point of Senator Chiz Escudero in another dimension as further elaborated by lawyer Jaxius here.)

b) If the introduction in evidence of the so-called “poisoned fruit” is being attempted in such a trial, hearing or investigation, who is the proper party to object to its admissibility?

c) May the objection be waived or is the right to object on ground of admissibility essentially waivable since it is a PRIVATE right?

d) In the case of President Gloria Macapagal-Arroyo, if her privacy right has been violated, is she not deemed to have waived it by virtue of her public acknowledgement of the content of the recording in the “lapse in judgment” speech? Or as the country’s chief law enforcer, should she not waive her private right in the public interest?

e) Is PGMA deemed to have authorized the wiretapping by her conduct of not faithfully executing the law against probable violators and therefore barred from availing of the benefits under the law, if any?

f) Since Garci denies he is the same person whose voice is recorded on the tape in question, could he be at any time an improper party to object to its admissibility?

g) When is it seasonable to object, at any time reference is made to the tape or only at such time that the tape is being introduced in evidence, which the tape being essentially a “real” (not a testimonial) evidence should be at the “offer of evidence” stage of the trial, hearing or investigation?

FINALLY, considering the well-nigh plenary nature of policymaking by Congress, may the SC interfere via a TRO with congressional hearing in aid of legislation? On the other hand, may Congress assert its prerogative to cite anyone in contempt who is enforcing such TRO, if so issued?

10 Comments:

Blogger Jaxius said...

Abe,

my answer to your post in mlq3's blog is still awaiting moderation. So, i'll just put it here just the same.

jaxius :

Your comment is awaiting moderation.

Abe,

Let’s admit, for the sake of argument, that the “Garci tapes” fall outside the scope of RA 4200 (I have argued otherwise), a criminal statute being strictly construed against the State and liberally for the accused.

However, just for clarification, is it your position that if it falls outside the scope of RA 4200, the tapping of cellphones is a perfectly admissible evidence? I would argue that it is not. If it indeed it falls outside the scope of RA 4200, what this simply means is that such act is not punishable under the said law.

It remains inadmissible as evidence because tapping cellphones is clearly a violation of the privacy of communications and correspondence. The Constitution expressly provides so (Section 3 paras 1 and 2, Article III). Only a “tortured analysis” of this issue, as per Brenda, would yield an answer that says otherwise.

As to your third point, let’s do it one by one:

a) definitely, yes. the aim of the prohibition is not just to discourage the practice of violating the privacy of communication and correspondence. it is also to protect such privacy. even if you do not admit such tapes as evidence but you play it for all to hear, where is the inviolability there?

b) the witness is already claiming that the evidence he is presenting is obtained illegally, why would you agree to indulge him? This is not simply a rule of evidence. It is a constitutional directive that such right be inviolable, except in instances allowed and provided by law. you only need to object if the offeror claims it is admissible evidence, not when he already admits it is inadmissible.

c) no need to object. the constitution directs the courts, quasi-judicial and legislative bodies not to accept such evidence.

d) no need to waive. the evidence illegally obtained is barred absolutely. however, on the issue whether the President can waive her privacy right by virtue of her office, it can get complicated. how would wiretappers targeting the private communications of the President be able to distinguish it from her official communications protected by the “state secrets” principle and the doctrine of executive privilege? I once suggested making it admissible evidence but the wiretapper should still go to jail and should not be granted immunity.

e) impeach her. but how?

f) As with GMA, no need to object. Barred.

g) As with the foregoing, no need to object. the court, quasi-judicial or legislative body is directed to reject it.

As for the last, I think Bencard answered it already.

August 29, 2007 12:58 AM  
Blogger Abe N. Margallo said...

jaxius,

My reply is also awaitng moderation at mlq3's. So here's it is:

JAXIUS: Let’s admit, for the sake of argument, that the “Garci tapes” fall outside the scope of RA 4200 (I have argued otherwise), a criminal statute being strictly construed against the State and liberally for the accused.

However, just for clarification, is it your position that if it falls outside the scope of RA 4200, the tapping of cellphones is a perfectly admissible evidence? I would argue that it is not. If it indeed it falls outside the scope of RA 4200, what this simply means is that such act is not punishable under the said law.

It remains inadmissible as evidence because tapping cellphones is clearly a violation of the privacy of communications and correspondence. The Constitution expressly provides so (Section 3 paras 1 and 2, Article III). Only a “tortured analysis” of this issue, as per Brenda, would yield an answer that says otherwise.


ABE: First, let me say I feel like Rene Saguisag here defending a human rights violator.

In defending the devil, these things are worth pondering. If the accused is Doble it may be a good defense: that wiretapping a cellphone is not criminal. Hence, if charged in court, his first remedy is a motion to quash on the ground that “the facts charged do not constitute an offense.” If his motion is denied, and the case goes to trial, what evidence will the prosecution introduce to prove illegal wiretapping if the mere possession (not to speak of replaying, communicating the contents or furnishing transcription) of the “illegal” recording by “any person” is criminal?

Now, if the lawyers were sleeping and somehow, the recording was replayed in court, when is the seasonable time to object to its “admissibility in evidence”? Supposing the parties whose communication were wiretapped waived their rights to privacy, may the prosecution continue to object to its admissibility at the “offer of evidence”?

Supposing that the persons accused are the parties whose communications were tapped, let’s say they are coup plotters/conspirators. If the only proof of the supposed conspiracy are the illegal tapes and the introduction of those tapes were seasonably objected to (“seasonably,” meaning at the proper time) then the prosecution will fail and the plotters will go scot-free. This is a case of the state punishing itself for the malfeasance of its agents.

If the accused is a blogger at PCIJ (e.g. Alex P.) for uploading the tape in PCIJ.org, Alex may raise the issue of freedom of the press and the people’s right to information of public concern. Alex may also claim: Who says it is illegal, isn’t Isafp or its agents presumed to be in the regular performance of their duty (intelligence gathering), i.e., authorized by the chain of command including the President of the Philippines as Commander-in-Chief? In the meanwhile, brave Alex stands firm: I will allow others to have access to the contents of the communication because free speech, the people’s right to information of public concern and ultimately political sovereignty and political equality that underlie the very essence of our democracy trump any pretense to privacy (between Garci and Ate Glo).

Here’s a good twist. If the captured conversation is between Ate Gemma and Kuya Manny suggestive of the latter’s relationship with … hmmm Ms. Malu but the recorded communication was really out of context because in actuality the loving couple were really just teasing each other, and if Ate Glo and Kuya Manny are willing to waive their right to privacy in order to pin down the wiretapper, should the court still deny the replaying of the recorded communication upon a claim that it is a “constitutional directive that such right be inviolable, except in instances allowed and provided by law” (and unfortunately Ate Gemma and Kuya Manny are not the law) and on a further claim that the inviolability is not only for the Ate Gemma and Kuya Manny now but for the Ate Gemmas and Kuya Manny’s of the future?

On whether “shall not be admissible in evidence” has other meaning than what the plain language of RA 4200 says, I wish to spare at this juncture the other participants here of the technical discussion on the matter.

As to Bencard’s thesis, needless to state, his simplification is what we take for granted. I am in a way provoking a more nuanced discussion of the issue. For a starter, here’s what I have written when the SC handed down Francisco, Jr. v. House of Representatives (November 10, 2003):

The mainstream media in the Philippines has allowed only a token contest against the arrogation of “judicial supremacy” by the Supreme Court in the decision involving the several petitions filed before it to stop the impeachment of Chief Justice Hilario Davide, Jr. This to me has the effect of affirming the unfortunate state of an enduring Filipino culture still indicative of the social indoctrination that has run deep from the friar system. Hence, far from the pretense that the colonial umbilical cord has been cut, as the Supreme Court proudly asserted, the decision succeeded only in preserving the skewed cordage now interwoven into the more complex and still dominant American system except that, instead of subservience to the pulpit of the friary, obeisance is also being rendered, although imperceptibly but incrementally, towards a nimbler competing elite faction, the secular High Tribunal.

To frame the larger question in Platonic dialogues: Is the Philippines inching closer to the “alternative” rule of the philosopher-kings all in the guise of upholding procedural stability and constitutional supremacy?

August 29, 2007 12:29 PM  
Anonymous noelle said...

hi!

just wanna say that ill be adding ur page to my favorites. very informative and presents logical arguments! im sure ill learn a lot from your posts. keep it up sir!

September 02, 2007 9:04 PM  
Blogger MAV said...

Connections….Connect the dots game

Jarius exposes on ZTE deals…

Cong.Padilla names Abalos as the “comelec official” in the ZTE deal…

Joey De Venecia out in the open on the gory details of the ZTE scandal…

Neri implicates Abalos…

Abalos resigns….

Pro Bono now Pro Bonus Lawyer files “inoculation” case…

Cong.Beltran exposed bribery attempt by Kampi Deputy Sec.General

Ronnie Puno fires Ver and washes his hands…

GMA calls 190 congressman for “consultations on how to rush “inoculation” move

today’s headlines :”P500k bribery” for congressmen…

The dots keep getting connected…..All started from an expose of a brave journalist!

Do you want to guess how the dots will be further connected…?

October 12, 2007 10:34 AM  
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