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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

Location: San Juan, Metro Manila, Philippines

Monday, November 28, 2005

Garci Tapes Reloaded: Damnum Absque Injuria

This article was posted last 18 July 2005 at the height of the Congressional investigations on the Garci tapes. It is being reposted with some corrections. This article assumes renewed significance in the light of Garci’s resurfacing and his seemingly “non-repudiation” repudiation and “non-denial” denial of the tapes..

My point: The Garci tapes are not a violation of the Anti-Wiretapping Act in the light of our jurisprudence and U. S. jurisprudence on right to public information vis-à-vis rights to privacy, and therefore can be used in evidence subject to the evidentiary rules on Electronic Evidence

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 conversations, a violation still 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 US Federal Supreme Court held that recordings of illegally intercepted cellphone conversations may be aired in public because the contents are matters of public interest but nonetheless, the defendans can be sued for damages. (Note: Bartnicki dealt with defendants who played the tapes over the airwaves, the recorders were never identified)

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 itching 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.


Blogger Karl M. Garcia said...

Thank you Sir

When you explain the law it makes knowitalls and hip shooters like me back down to earth....

I hope to say it more tactfully this time so here it goes

Thank You for your Blogs that explain the law for all to understand

God Speed

10:37 PM  
Blogger DJB said...

Ed, Question lang. I think I know what you are getting at when you say, "The Garci tapes are not a violation of the Anti-Wiretapping Act in the light of our jurisprudence and U. S. jurisprudence on right to public information vis-à-vis rights to privacy, and therefore can be used in evidence subject to the evidentiary rules on Electronic Evidence"

You are referring to the resutls of Bartnicki, right? And that I agree with. But against what Law are you saying that the Garci tapes may be used in evidence for? What crime do you have in mind? Is it in a case against the wiretappers or the voteriggers or both?

I've been saying the tapes are evidence of a crime having been committed, INDEPENDENT of their contents, without even considering the INFORMATION in the conversations, but merely the existence of the recordings.

The CONTENTS of the Garci conversations by themselves, are extremely WEAK EVIDENCE of voterigging, with lots of plausible deniability, one reason why there ARE such strict rules on electronic evidence.

But do you appreciate my difficulty with your post?

10:06 PM  
Blogger DJB said...

Hope you don't mind my elaborating on my question to you a bit, the last comment didn't come out too clearly. But let me lay the predicate by asking a simple question:

Do you think there is a case of ILLEGAL WIRETAPPING under RA 4200 that could be made against whoever recorded the conversations that have come to be known as "the Garci Tapes"?
(whether by ISAFP or Lacson, or Sammy Ong or whoever physically recorded these conversations as they were taking place between Garci and many others).

10:17 PM  
Anonymous dawin said...


Sorry for not responding sooner. I was detained by studying possible crimes that can be filed against Garci.

I take a position that no liaibility can accrue even to the recorders because the law is silent on tapping of wireless conversations.

Since this is a criminal statute, liberality redounds to the accused and not to the prosecution. And since a loophole exists (as to whether 4200 applies to wireless taps), I would venture that the agents could take advantage of the loophole.

The contents of the Garci tapes are not inherently weak because it either confirms or corroborates the actual results of the places stated in the tapes, the persons referred to such as Louie Zuce.

It could also confirm the defeat of Barbers and the only reason Sen. Barbers was not called was due to his son's presence in the lower house. In fact, in the tapes themselves, Sen. Barbers introduced himself as such.

One reason for its strength is the fact that none of them have made strong denials. Ellen, Garci's secretary is still in hiding, Barbers refused to comment, only Zuce has confirm his voice.

If all these people really claim that the tapes are spliced, why are they not outraged and why are they not filing a case against those who played the tape? That is not the common experience of man.

That, I think, is the strongest argument why the evidence in the Garci tapes are strong.

Incidentally, i was listening to the tapes last night and I could not, for the life of me, understand how people can say "Move On" without realizing the extent of Garci's perfidy.

He has prostituted the electoral system and stolen our vote. No punishment would be cruel and unusual or equal to the dastardly deeds that he has foisted.

1:33 AM  

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