The Garci Tapes: Damnum Absque Injuria?

From the moment the Garci tapes were revealed by Messrs. Paguia and Bunye, everybody concluded those tapes which were surreptitious recordings of cellular phone conversations of Commissioner Garcillano ("Garci") with other people violated R. A. No. 4200 or the Anti-Wiretapping Act.

What are the undisputed facts? First, the military intelligence (despite their protestations) recorded the cellular phone conversations of Garci with the President. Second, the distinct voice of GMA is audibly heard. And, third, the recordings were not authorized either by Garci or GMA. Ergo, the tapes are in violation of R. A. No. 4200 and is inadmissible in evidence.

I do not think it is all that simple. And here lies my doubts.

R. A. No. 4200 was enacted on 19 June 1965 under the able defense of the late, great Senator Lorenzo Tañada, the lolo of Congressman Erin Tañada of the Drilon wing of the Liberal Party. Under the law, the crime of wiretapping is committed if an unauthorized person taps the wire or cable, or uses a device to secretly overhear or record oral or private conversations, or possesses, distributes the tapes or replays the recording.

It must be remembered that at the time of its enactment, there were no wireless cellular or cordless phones in existence. Since no such equipment existed, R. A. No. 4200 could not be stretched to include "wiretapping" of cell phone conversations. In addition to this, in 1986, the Supreme Court, in the case of GAANAN v. INTERMEDIATE APPELLATE COURT, defined "device" to secretly overhear or record conversations as an instrument that taps the main line of a telephone. In other words, R. A. No. 4200 was envisioned to apply only to telephone lines or what we call now in this wireless age as "landlines". The law is silent on cordless and cellular phones

Some may say this argument hew too closely to the letter of the law and that we should interpret the law broadly by invoking the spirit "that giveth life". In other words, while it is admitted that R. A. No. 4200 does not cover "wiretapping" of cellular phone coversations, a violation stil exists because the intent of the law is to prohibit wiretapping or illegal recordings of conversations. That is a misapplied invocation of the spirit of the law because R. A. No. 4200 is a substantive criminal statute. The acts and elements of the crime must be specifically stated. If not so stated, then there is no crime. Actually, the term "wiretapping" as applied to cell phones is an oxymoron because there are no wires to tap in the first place.

Moreover, the common understanding in criminal law is when there is doubt as to its application, it must be resolved in favor of the defendant. If one applies the spirit of the law in this case, one will not giveth life but killeth and "imprisoneth" the defendant. One cannot invoke the spirit to convict when the letter acquits.

But beyond statutory construction, the American experience on wiretapping laws is persuasive. The first law on wiretapping enacted by the US Congress was the Communications Act of 1934. However in response to several US Supreme Court decisions on the admissibility of evidence of wiretapped communications, Congress enacted the Federal Wiretap Act in 1968 which prohibited the willful intercept of telephone or oral conversations.

With the advent of new technology, the definition of oral or wire communication under the Federal Wiretap Act led the courts to struggle whether portable telephones and mobile telephones (cellular phone predecessor) were covered under the Federal Wiretap Act. To solve the silence governing mobile phones, Congress passed the Electronic Communication Privacy Act of 1986 which specifically included cellular phone conversations within the prohibition. And again, to solve the silence governing cordless phones, Congress passed the Communications Assistance for Law Enforcement Act in 1995 and further amended the Federal Wiretap Act. With these amendments, the law prohibited the unauthorized intercept of the broadcast portion of cordless and cell phone conversations. Based on the American experience therefore, it would appear that the intercepted cell phone conversations are not covered by R. A. No. 4200.

What then is its legal consequence? Since the tapes do not violate the Anti-Wiretapping Law, they do not fall under the doctrine of the "fruit of the poisonous tree". Simply stated, it can not be excluded as inadmissible evidence. This is crucial because in the 2001 US case of BARTNICKI v. VOPPER, the Federal Supreme Court held that recordings of illegally intercepted cellphone conversations may be aired in public because the contents are a matter of public interest but nontheless, the tapes can be excluded as evidence since they were illegally recorded. In our case, since the tapes did not violate R. A. No. 4200 and apart from possible misfeasance by the President which is a matter of public interest, the prosecutors will no longer belabor the issue of admissibility of the Garci tapes. Of course, the defense will move heaven and earth to exclude those tapes.

I believe that the Garci tapes is a situation of damnum absque injuria which literally means "loss without unlawful conduct". GMA and Garci were definitely damaged by the revelations in those tapes but since illegal cell phone intercepts are not covered by the Anti-Wiretapping Act, no unlawful conduct was committed.

But whatever position you find yourself to be in, it is undeniable that R. A. No. 4200 is still mired in the days of RETELCO and is scratching to be amended and updated. And I hope it will not take the legislators another wave of technological advances before they decide to amend the law. But wait a minute, if they do decide to amend R. A. No. 4200, would that not be an admission that cellphone conversations were not covered by the prohibition in the first place? It must be tough being an administration solon.