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Apr 14

Hope springs eternal

My column for today is The 2010 Movement . It’s in response to Jesuitic placebo by Manuel Buencamino and Filomeno Sta. Ana III, which appeared in yesterday’s Talk of the Town. See also Communal action must target Gloria by Leloy Claudio. While my personal position is for the President’s resignation, I support both proposals criticized by Buencamino and Sta. Ana: impeachment and an independent counsel. Impeachment, because I have been convinced for some time that it is the preferred option for most people (or a large chunk of the public, anyway), and a special prosecutor, as I’ve outlined in the past, because it will, indeed, strengthen institutions and accountability.

Whether those advocating impeachment in October are doing so out of sneakiness -it will just postpone things until the crisis solves itself on June 30, 2010- or out of a genuine belief that we shouldn’t burn down the barn to get rid of a rat, is, of course, another question altogether.

Of course, if the Supreme Court weighs in, we could have an impeachment, sooner than in October. Hope springs eternal.

In the column I also refer to trench warfare, wars of attrition, etc. So you might want to visit First World War.com.

Yesterday, Teodoro, Esperon ask Arroyo to pardon 9 junior officers although the Inquirer editorial said, it’s time to Pay the piper. It will be interesting to see how the President’s boosters justify a pardon without bringing up uncomfortable (for them) reminders of the President’s pardon for former President Estrada. With regards to the professional officers’ dilemma concerning dissent, Dissent and Strategic Leadership of the Military Professions by Don M. Snider makes for relevant reading. See pub849.pdf

168 comments

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  1. Bencard

    mlq3, try as i might, i found nothing in the report (which you kindly furnished me) about any suggestion of an implied amendment to r.a. 2400. what i did find is a reaffirmation of the prohibition against admissibility as evidence of wiretapped materials, and the state of the law as it is.

    the only way to resolve all the conflicting opinions (of eminent legal scholars some of whom may have political bias for or against the president) is for an actual case brought all the way to the supreme court touching on all the issues presented.

    i personally think a statute is not automatically amended, just as it is not rendered ineffectual, by a deliberate violation of its provision by any one individual or group, including members of a congressional committee or the media. i maintain that, in a government of laws and not of men, no one is above the law.

  2. Abe N. Margallo

    Bencard, why look for a case citation when you have a statutory citation?

    Section 4 clearly states it is only inadmissible when the information was obtained or secured “in violation … of this Act.” So a ruling by a judge for admissibility of the “Hello, Garci” tapes -because he may be legally convinced to a point of moral certainty, as many Filipinos are, that RA 4200 does not cover cellphone conversations – stands unless overturned.

    In the same manner, Congress, in acting as an institution as pointed out by Manolo, (or by way of its oversight function, as I see it), to interpret its own policy as contained in RA 4200 in a manner different from the executive branch’s interpretation, and in pursuance thereof, playing the tape in its proceeding despite Section 4, has deemed the information “admissible” for its purposes. Unless successfully challenged, the congressional action, like the judge’s ruling for admissibility, according “legal utility” to the tapes, has legal and binding effects.

    Now, let me be the one to put you on the spot. Would you have a better chance of prosecuting the judge who rules for admissibility of the “Hello, Garci” tapes and the members of Congress for actually playing the tapes than Secretary Bunye for being among the first ones to have been seen publicly in possession of those tapes?

    Please let me clarify this point again one last time. It is basic in Constitutional Law (and certainly by plain common sense) that acts of Congress for example, whether in the form of statues or other legislative undertakings such as the discipline of its members, are certainly not merely “conjectural” simply because of a supposed absence of “judicial imprimatur.” Legislative acts are valid and final and binding upon all covered by them including the members of the Supreme Court, with or without the imprimatur of the same Court. It is so because while judicial review may be considered “awesome” it is very, very narrow. The Court can only act when they are ask to act in appropriate cases. Hence, the Court is essentially toothless and powerless when not so asked. Meanwhile those congressional acts, which run into thousands of volumes by now, notwithstanding the lack of “judicial imprimatur,” confer real rights, impose real duties and afford real protections. I hope I will not belabor this issue again.

  3. Bencard

    abe, without a binding judicial pronouncement, your propositions are just that, propositions. just another lawyer’s opinion that doesn’t settle the issues with finality. you can use all the esoteric legal jargon you can muster but it would not change the present state of the law on the subject we are discussing.

    too bad, you cannot cite any jurisprudence because there is none. the statute is not the be all and end all of the law. it is subject to judicial interpretation; until then people with opposite views can wrangle over it’s application and interpretation, as we are now engaged in.

    you have added topics alien to the discussion. it seems to me, and manolo can bear me out on this one, that we were discussing the utility of the alleged garci tapes as evidence that gma cheated, or had improper conversation with garci. i say no, because it cannot be admissible under existing law. and there can be no “judicial imprimatur” on those tapes because they will never be before the court for adjudication of its contents; ergo, if the tape is the only “evidence” being relied on to prove election cheating, or improper conversation by the president, tough luck.

    your theories and hypothesis are interesting, though.

  4. watchful eye

    How do like to wrangle over this one, guys?

    Without a binding judicial pronouncement, a proposition is just a proposition and a conjecture.

    ‘That Bencard is man’ is a proposition without a binding judicial pronouncement.

    Ergo, the proposition ‘That Bencard is a man’ is just a proposition and a conjecture.

    Sori Bencard. But don’t you worry, it’s just an interesting hypothesis. But, but if you can cite any jurisprudence to the contrary, I will gladly withdraw the proposition.

  5. mlq3

    scalia, what we have until the miracle you demand takes place, is tatad’s sworn testimony as published in the joint report of the house committees:

    5. Mr. Francisco “Kit” Tatad – (7 and 13 July 2005)

    a. He confirms Paguia’s statement on July 6 that he is the source of the two audiocassette tapes that Paguia submitted to the Joint Committee. He was interviewed by Time Magazine. There he admitted that he was the source of the Paguia tapes. He does not know the source of the two tapes.145

    b. The tapes, which were ordinary transparent plastic cassette tapes, “landed” on his desk on or about 1 or 2 April, in a Manila envelope, sealed and addressed to him as Chairman of the Citizens Against Corruption Task Force. There was no letter accompanying the tapes. There was no indication of the contents of the tape. It is not unusual for him to receive documents from anonymous persons providing potential evidence for alleged scams and corrupt activities. 146

    c. A few days along in May 2005, he saw a note among his unread mail that stated: “have you listened to/heard the tapes?” He then played the tapes and decided that they should be authenticated.147 (italics supplied)

    d. He asked a lawyer friend, Atty. Carao to help contact some correspondents in the United States of America. He made a copy of the tapes and gave them to Carao. Carao informed him that he had contacted a lawyer friend in the USA who facilitated contact with the Voice Identification, Incorporated (VII) in New Jersey. The VII analyzed and authenticated the tapes and came back with reports on 3 June and 9 June 2005.148

    e. He gave the tapes to Paguia and requested him to make a legal study on the contents of the tape. He had not authorized Paguia to release the tapes to the public. He asked Paguia to highlight the more significant portions of the tape for his (Tatad) use.149 He needed Paguia’s counsel on what crimes were committed and how to handle the release of the tapes without running into legal tangles.150

    f. He does not have any copies of the tapes as he gave Paguia the ones he received.151

    g. When Paguia released the tapes, the authentication reports had not yet arrived. He thought about requesting an academic or a person from the church to release the tapes so that it

    143

    3 Aug 2005 TSN, pp. 159-160, AMC/XXVI-3-4

    144

    Ibid, p. 160, AMC/XXVI-4; p. 198, GCC/XXXI-2

    145

    7 July 2005 TSN, p. 154-155 GCC/XLV-2-3; p. 156, ADJO/XLVI-1; and 13 July 2005, p. 35, ADJO/IX-2

    146

    7 July 2005 TSN, pp. 159-161, ALAVT/XLVII-1-3; p. 162, EPT/XLVIII-1

    147

    Ibid, p. 162, APT/XLVIII-1

    148

    Ibid, pp162-164, EPT/XLVIII-1-3; p. 170, JMB/L-1

    149

    Ibid, p. 38, ALAVT/X-1

    150

    Ibid, pp. 164-165, EPT/XLVIII-3-4, pp. 166, EBGV/XLIX-1

    151

    Ibid, p. 167, EBGV/XLIX-2

    25 would not be political. He instructed Paguia to hold the release but Paguia came out with his (32-minute) CD after Bunye released the two (one original and one altered) CDs. He and Paguia were not able to talk after the latter’s release of the CD.152 h. The VII reported that they had studied the tapes through critical listening and spectrographic prints. The tapes were authentic, and that the conversations appear to be contiguous, unaltered and legitimate reproductions of original telephone calls.153

    i. The technical report of the VII stated that: “a voice print analysis is comprised of an aural or listening portion and a spectrographic portion. The spectrographic portion involves the visual comparison of the patterns produced by the speech sounds from the known and the questioned speaker. These patterns are produced on paper by an instrument called the sounds spectrograph and represent a three-dimensional display of speech sounds present in the examined voice. The pattern matching is done by two certified voice analysts working independently. Words chosen for comparison must be common to both the questioned and known recording spoken in a similar manner, contain a sufficient frequency response and have a sufficient enough signal to know its ratio that the patterns are not obscured. An aural comparison involves critical listening by the examiners who seek to determine whether the sounds of the voices are similar or different. Characteristics such as pitch, pronunciation, accent, rate of speech, breathing patterns and speech impediments are use by the examiner in arriving at a decision on the aural comparison.154” (italics supplied)

    j. He thought to have the tapes authenticated because of his experience in the last elections where he believed he was cheated.155

    k. He did not change anything in the tapes. If the tapes were altered, the alteration would show in the analysis/authentication. Paguia’s CD is a condensed version of a group of conversations (in the tapes).156

    l. He is sure that anyone who has managed to get hold of the tapes would give it to the opposition. If not, the tape would have been sold to the administration. He speculates that citizens who desire change for our country are the source of the tapes. It is the primary duty, not only of the opposition, but also of any citizen to reveal information about violation of laws and morality.157

    m. Mrs. Arroyo has never had a confirmed legitimate position to be president and this is also reflected in Justice Artemio Panganiban’s book.158

    n. He has not heard the Samuel Ong tapes. He does not know when Carao became the lawyer of Ong.159

    o. He has no present plans of running for an elective office but he wants to help in putting in a system that will work because our political system is no longer working. He did not win all elections he ran in; he lost three times.160

    152

    13 July 2005 TSN, pp. 40-41, ALAVT/X-3-4; p. 42, EPT/XI-1

    153

    7 July 2005 TSN, p. 170, JMB/L-1

    154

    Ibid, p. 171, JMB/L-2; See also Annexes F6 and F7

    155

    Ibid, pp. 177-178, TMR/LII-2-3; p. 179, BGB/LIII-3

    156

    Ibid, p. 179, BGB/LII-3; p. 202, TJAS/LX-2; and 13 July 2005, p. 52, NAB/XIV-3

    157

    Ibid, p. 180-181, BGB/LIII-2-3

    158

    Ibid; p. 182, ETB/LIV-1; p. 184, ETB/LIV-3; p. 208, RCN/LXII-1

    159

    Ibid, pp. 187-188, WBC/LV-2-3

    160

    Ibid, pp. 195-`96, MLMF/LVIII-2-2, p. 197, NCS/LIX-1

    26

    p. We should use terms other than “destabilization.” Dissent is a more popular term and legitimate dissent has very wide latitude. The term “destabilization” has been used by government propagandists, officials and the media but is something that he has never understood. Rallies or expose’ of major crimes committed by a high government official are already called destabilization.161

    q. It was clear (to him) that it was PGMA talking in the tapes; he did not ask anybody else to listen and validate his observation.162

    r. Wiretapping of a president is a serious offense and should not happen. He believes it was Garcillano who was the center of the conversations. He perceived that the crimes committed in the conversations were committed against the Filipino people. There should be a hierarchy of crimes as there should be a hierarchy of virtues, and a crime against the people is far more serious than any possible offense against any officer of government. A president wiretapped having a private affair would be different from a president being wiretapped while committing a very serious high crime against the people he/she is supposed to serve.163

    s. Elections are won honestly, without kidnapping, bribery, obstruction of justice, and massive cheating. Laws should be followed, first of all, by the officers and enforcers of the law. 164

    t. The relationship between the President and Garcillano, as reflected in the tape shows one of very close coordination, which is prohibited by law. All problems that the President has encountered during the elections were thrown to Garcillano for resolution and he agreed to do so. There are also specific cases of threatened kidnappings; Garcillano uses the word “kidnapping” a number of times.165

    u. Under the Constitution the military cannot meddle in elections but names of military men were mentioned in the conversations.166

    v. One of the conversations in the tapes was about “itatago ang Election Officer” of Pangutaran so that he will not be able to testify; another conversation was of adding 70,000 votes and “one five to two” referring to 1.5 to 2 million pesos which was to be delivered to a Mrs. Ellen Peralta, the secretary of Garcillano;167 and another conversation was about the planned kidnapping of a family.168 (italics supplied)

    w. He and Paguia have the same view that the rule of law in the country was destroyed in 2001. He published Paguia’s book – “Rule of Law, Rule of Force.”169

    x. The tapes serve as an additional impetus for the anti-corruption organization to work for the prevention of corruption.170

    161

    Ibid, p. 197, NCSLIX-1, p. 200, NCS/LIX-4, p. 201, TJAS/LX-1

    162

    13 July 2005 TSN, p. 36, ADJO/IX-3

    163

    7 July 2005 TSN, pp. 206-207, BBR/LXI-2-3

    164

    Ibid, p. 208, RCN/LXII-1

    165

    Ibid, pp. 219-220, DMTD/LXV-2-3; p. 221, EHM/LXVI-1

    166

    Ibid, p. 218, DMTD/LXV-1

    167

    Ibid, pp. 219-220, DMTD/LXV-2-3; p. 221, EHM/LXVI-1

    168

    13 July TSN, p. 33, GCC/VIII-3; p. 34, ADJO/IX-1

    169

    Ibid, p. 43, EPT/XI-2

    170

    Ibid, p. 67, LBL/XIX-1

    27 y. He did not recognize the voices of COMELEC Commissioners Javier, Sadain, Borra, Tuason or Chairman Abalos in the tapes.171

    z. Nobody said that all that was mentioned in the tape happened; however, there was a request by PGMA. And between PGMA and Garcillano, all requests were granted.172

    And also, Paguia’s:

    3. Atty. Alan Paguia (29 & 30 June and 5 & 6 July 2005)

    a. His action regarding the tapes/CDs is his recognition of his duty as a good citizen to inform the citizenry about the cheating in the last elections.87

    75

    See also, Annex F9

    76

    Ibid, pp. 65-66, EPT/XIX-4-5

    77

    Ibid, pp. 72-72, JMB/XXI-3-4; p. 120, MSSSA/XXXV-1

    78

    Ibid, pp. 68-69, EBGV/XX-2-3

    79

    Ibid, pp. 75-76, NAB/XXII-2-3

    80

    Ibid, p. 69, EBGV/XX-3; p. 70, JMB/XXI-1; pp. 87-88, WBC/XXVI-2-2

    81

    Ibid, p. 144-145, CAB/XLII-3-4; p. 146, EMA/XLII-1

    82

    Ibid, pp. 85-86, ETB/XXV-3-4; p. 87, WBC, XXVI-1

    83

    Ibid, p. 85, ETB/XXV-3; p. 117, EBV/XXXIV-2

    84

    Ibid, p. 89, WBC/XXVI-3

    85

    Ibid, p. 90, WBC/XXVI-4; p. 91, LBL/XXVII-1; p. 107, TJAS, XXXI-4; p. 114, RCN/XXXIII-2; p. 121, MSSSA/XXXV-2

    86

    Ibid, pp. 91-92, LBL/XXVII-1-2

    87

    29 June 2005 TSN, p. 48, MTGA/XV-1; 30 June 2005, pp. 179-180, ACV/LVI-1-2; 5 July 2005, p. 115MLMF/XXXIII1

    16

    b. A client, he promised not to name gave him the two audiocassette tapes for legal study on 15 May 2005. He cannot reveal where he hid the audiocassette tapes. He does not know where the person got the tapes.88

    c. He did not edit the tapes as he did not change anything; he only selected conversations that he thought should be heard by the public. He had no other motives. He produced a 32minute CD out of chosen conversations in the cassette tapes. He believed that the Filipino people ought to hear the contents of the tape. He chose the digital form to facilitate the playing and put in a 4 and 1/2-minute introduction so that there would not be any doubt where the tape came from. He recorded the CD in a commercial studio. He made five copies of the CD and asked some of his lawyer friends to listen to the tape so that he could have a validation that the voices in the tape were of PGMA and Garcillano.89

    d. He had some people listen to the tape and was advised to have it broadcast for the information of the general public. He only released the CD after Bunye’s press conference because he had no resources. He knows that Bunye doctored the CDs because they did not match the tapes in his possession. He does not know why the tapes were given to him only on 15 May 2005 and not when the late Fernando Poe Jr. was still alive.90

    e. He was thankful Bunye came out with his two (2) CDs because it gave him the opportunity to publicly contradict Bunye’s version of the CDs. He believes that the Bunye CDs were doctored – Gary’s voice was superimposed on Garcillano’s voice.91

    f. He is turning over (to the Joint Committee) what to his mind are authentic tapes because these were the ones he received. He cannot say whether the tapes are the master tapes since he has no expertise on the matter but that the conversations in the tape are original.92

    g. He did not know or have anything to do about a reported press conference by the opposition to air some tapes, which would implicate PGMA. His links with former Estrada has no bearing (in this issue) and he denies that he is part of the opposition. He is not making a crusade or fight for the opposition.93 He only wants the public to know the truth. He cannot forgive himself if, when he had a chance to show the truth to the Filipino public, he did not avail of that chance.94

    h. He cannot say that his 32-minute CD is designed only to create suspicion in the minds of the public because the public would not be able to hear the complete tapes. He chose the portions with PGMA as she holds the highest position among those (persons conversing) in the tapes. If the CD is spliced, tampered or altered, the conversations would have been changed. His CD is shortened in the sense that he chose conversations to include but did not change them. All conversations included in the CD are complete and the 3-hour tapes will validate that there are no alterations.95

    88

    29 June 2005 TSN, pp. 70-71, ESB/XXI-3; pp. 78-79, ADJO/XXIII-2-3; p. 81, AMC/XXIV-2; and 5 July 2005, p. 96, NAB/XXVII-3; p. 135, EBV/XXXIX-2

    89

    29 June 2005 TSN, pp. 80-83, AMC/XXIV-1-4; pp. 84-85, ALAVT/XXV—1-2

    90

    Ibid, p. 87, EBTM/XXVI-1; p. 144, MTGA/XLII-2

    91

    5 July 2005 TSN, pp. 173-174, ADJO/L-2-3

    92

    Ibid, p. 78, GCC/XXII-3

    93

    Ibid, pp. 99-100, TMR/XXVIII-2-3

    94

    Ibid, p. 83, EPT/XXIV-1; p. 115, MLMF/XXXIII-1

    95

    Ibid, p. 82, ADJO/XXXIII-3; pp. 83-85, EPT/XXIV-1-3; p. 86, EBGV/XXV-1; p. 99, TMR/XXVIII-2; p. 134, EBV/XXXIX1; p. 137, DMTD/XL-1

    17 i. The CD may not be original but the recordings are. The fact in issue in this inquiry is not something in writing, or the CD itself, but the sounds that make up the conversation. The tape is only a part of the act of recording. Recording includes the tape or CD, the taping machine and the sounds that are played.96

    j. In his legal study, he concluded that there were criminal acts committed such as the betrayal of public trust because election results should be counted and not manufactured; and that Mrs. Arroyo, based on one conversation, agreed with Garcillano to use the military in Basilan to increase her vote count.97

    k. Lapse in judgment can be criminal. The laws involved in the Gloria-Garci conversations are the Omnibus Election Code and Anti-Graft and Corrupt Practices Act, which are both special laws. In the case of special laws, the intention is not important because these are “malum prohibitum.”98

    l. He does not know Barbers personally but can identify his voice since he was a well-known senator. He knows that Barbers lost in the last elections; he does not know the reason why. He does not know that Barbers was a victim of “dagdag-bawas.” He knows that Barbers was a member of the Lower House before he became senator. He did not know that in the 1992 elections, Barbers ran against a veteran politician in Surigao del Norte and that in 1995 he ran unopposed. He knows that Barbers was chosen by then Speaker De Venecia and President Ramos as DILG Secretary; he did not know that he was for five times named the most popular and the most effective Secretary or that this was the basis for his running for the Senate, or that he was number five in the total count of votes. He does not know a lot of things about Barbers including his character as a person.99

    m. Mrs. Arroyo violated the Omnibus Election Code and the Anti-Graft and Corrupt Practices Act when she allowed the military to be used to increase her vote count in Mindanao. Barbers also violated laws as shown during his conversations with Garcillano that “he was able to use the mayor and governor in Ligao and that Mike Arroyo will take care of Garcillano after the proclamation.”100

    n. He said that in the conversation between Garcillano and Mrs. Arroyo where she agreed to Garcillano’s statement that “medyo mahina iyung military. Di pa masyadong marunong gumawa,” he interprets the agreement of Mrs. Arroyo as tacit admission.101 (Italics supplied)

    o. The conversation between Garcillano and one man believed to be Mike Arroyo where they had an agreement that the latter shall bring 1.5 million pesos to the office of Garcillano and give it to his secretary Ellen Peralta, is a violation of Article 210 (Revised Penal Code) on direct bribery.102

    96

    Ibid, pp. 127-128, RCN/XXXVII-1

    97

    Ibid, p. 87, EBGV/XXV-2; p.90, JMB/XXVI-1; pp. 100-101, TMR/XXVIII-3-4; p. 138, DMTD/XL-2

    98

    “Bad because prohibited by law”; 5 July 2005 TSN, p. 90, JMB/XXVI-1; p. 140, EHM/XLI-1; p.181, EBGV/LII-3

    99

    5 July 2005 TSN, pp. 91-93, JMB/XXVI-2-4; pp. 94-95, NAB/XXVII-1-2

    100

    Ibid, p. 100, TMR/XXVIII-3, pp.101-103, BGB/XXIX-1-3, p. 104, ETB/XXX-1; pp. 115-116, MLMF/XXXIII-1-2

    101

    Ibid, p. 116, MLMF/XXXIII-2

    102

    Ibid, p. 116, MLMF/XXXIII-2; p. 138 DMTD/XL-2 Art. 210. Direct bribery. – Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor it its medium and minimum periods and a fine of not the than three times the value of the gift, in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said

    18

    p. The conversation between Garcillano and Mrs. Arroyo when he said that “itatago muna niya iyong isang election officer para hindi makatestigo at iyong ipadadampot iyong mga testigo laban sa mga kandidato upang maging bargaining chip laban sa pagsasalita ng mga testigo,” is a violation of the rights of persons.103 (Italics supplied)

    q. In the last elections, he left the portion (in the ballot) for the presidential candidate blank because his position is that the last presidential elections was unconstitutional because the term of the last elected President (Estrada) has not yet validly expired. He was suspended from his law practice on 25 November 2003 because he is insisting that Chief Justice Davide’s administration of the oath to Mrs. Arroyo during EDSA 2 had no basis in law. He does not believe that the Arroyo administration is legitimate. It is possible that he was given the tape because of his feelings about the administration.104

    r. There are three (3) kinds of evidence under the rules (of evidence): 1) testimonial, which refers to the viva voce testimony of a witness who should be the victim, culprit or eyewitness. 2) documentary, which is anything in writing and the best evidence rule applies to this; and 3) object, which is an object addressed to the senses of the Court. The original of object evidence is the object itself. The best evidence rule does not apply to object evidence and in the case of the tapes, does not apply. Even if the CD is a copy of a copy as long as there is no alteration or splicing, the evidence as object evidence is acceptable. This is specified in the Rules on Electronic Evidence (Sections 1 and 2, Rule 11).105 Under the Rules, there are “two conditions in order that a recording of a telephone conversation may be admissible: 1) it must be presented for examination of the court or the hearing body; and 2) it must be identified by the person who made the recording.”106

    s. He is aware of the provisions of RA 4200. The conversations might have been illegally tapped. He knows that the Supreme Court has declared that once the primary source (The Tree) is shown to have been illegally obtained, any secondary or derivative evidence is derived from an illegal source.107

    act shall not have been accomplished, the officer shall suffer the penalties of prision correccional in its medium period and a fine of not less than twice the value of the gift. If the object for which the gift was receives or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period to prision mayor in its minimum period and a fine of not less than three times the value of the gift. In addition to the penalties provided in the preceding paragraph, the culprit shall suffer the penalty of special temporary disqualification. The provisions contained in these paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties.

    103

    Ibid, p. 118, NCS/XXXIV-1

    104

    Ibid, p. 84, EPT/XXIV-2; p. 123, TJAS/XXXV-3

    105

    Rule 11 AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE Section 1. Audio, video and similar evidence – Audio photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. Sec. 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by a testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

    106

    5 July 2005 TSN p. 126-127, RCN/XXXVII-1-2

    107

    Ibid, pp. 128-129, RCN/XXXVII-2-3; p. 130, MSSSA/XXXVIII-1

    19 t. COMELEC Chairman Abalos mentioned in one TV program that the male voice was Garcillano’s but he (Abalos) had some reservations because the dates did not match. Former COMELEC Chairman Monsod also confirmed Garcillano’s voice. His (Paguia’s) relative who knows and is a friend of Garcillano also confirmed the voice.108

    u. The wiretapping act has no definition for “private communication.” If communication is public, this does not necessarily immediately constitute a violation of the law because the law protects the citizen against the powers of the government. (Even) If the conversations are made by public officials, the law cannot be immediately invoked; however, there is no definition in the law itself on what shall be the basis for determining a “public” or “private” conversation. In this case Mrs. Arroyo and Garcillano participated in a conversation in their capacity as public officials and the subject matter was a public matter because it concerns election matters, thus their conversations cannot be considered private.109

    v. Under our constitution, there are four bases wherein the Chief Justice may swear in Mrs. Arroyo and remove Estrada: 1) death, but Estrada did not die; 2) removal after conviction in an impeachment case, but Estrada’s case was presented to the Sandiganbayan which is a clear violation of the process; 3) permanent disability, which can only be invoked if the person is disabled or by the majority of his Cabinet declaring in writing his permanent disability; the declaration should also be transmitted to the Legislature – none of which was made or done — but Mrs. Arroyo was sworn in on the ground of permanent disability; and 4) constructive resignation, which should exist at the time of swearing in, but did not.110

    w. Under the Constitution once a President is removed legally, the successor serves the remainder of his unexpired term. If the removal is not constitutional, the constitutional clock for his 6-year term stops. The successor serves not the remainder of the constitutional term but merely usurps mechanical time. If the usurper steps down, there is still a balance in the constitutional clock that the rule of law requires us to observe, and that clock has to run again in order that we will go back to the rule of law. The Vice-President, in case the President steps down, would not be authorized to succeed to the presidency because there is no vacancy. It is not vacant because the president who was duly elected and who has presidential authority is still in Tanay (Rizal). Mrs. Arroyo has presidential power but has no presidential authority because she was never elected by the Filipino people.111

    x. The best evidence of cheating in the last elections is the admission of Mrs. Arroyo that it was her voice in the tapes. He also listened to the tapes with a friend from Iligan who knows and can identify Garcillano’s voice but will not name him because the friend is afraid.112

    y. Even if the system (of governance) is rotten, it is the only system we have and we have to make it work. Between the three branches of government, it is in the legislative where the greatest hope lies that changes can be made. The majority in Congress is only exercising its rights in invoking legal grounds under the rules (of the House) to express its opinions regarding how this inquiry should proceed. If there is any intention to delay, it is the people who will judge us.113

    108

    Ibid, p. 139, DMTD/XL-3

    109

    Ibid, pp. 140-141, EHM/XLI-1-2; p. 144, MTGA/XLII-2

    110

    Ibid, p. 145, MTGA/XLII-2; pp. 146-147, RGR/XLIII-1-2

    111

    Ibid, pp. 172-173, ADJO/L-1-2; pp. 184-185, JMB/LIII-2-3; p. 152, LCLV/XLIV-3

    112

    Ibid, p. 113, LBL/XXXII-3

    113

    Ibid, pp. 163-164, EMA/XLVIII-2-3; p. 165, ESB/XLVIII-1

    20 z. He agrees that there may be a possible violation of Section 231 of the Omnibus Election Code114 based on the conversation which says: “Hello, hindi kaya puwedeng ma-delay iyong senatorial canvassing until after the voting on the rules tonight?” and reply of “On the rules, o sige po.” He also agrees that there may be a violation of Section 3 of the Anti-Graft and Corrupt Practices Act115 because Mrs. Arroyo influenced Garcillano to violate the Election Code. (Italics supplied)

    aa. He has no personal knowledge on the recording device used in the source tapes, or whether the one who wiretapped is competent, or whether additions, changes or deletions have been made on the 3-hour tapes; or how evidence was preserved from the time it was taken. He

    114

    Batas Pambansa 881. – Omnibus Election Code. Sec. 231 – Canvass by the board. – The board of canvassers shall meet not later than six o’clock in the afternoon of election day at the place designated by the Commission to receive the election returns and to immediately canvass those that may have already been received. It shall meet continuously from day to day until the canvass is completed, and may adjourn but only for the purpose of awaiting the other election returns from other polling places within its jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far for each candidate for each office, furnishing the Commission in Manila by the fastest means of communication a certified copy thereof, and making available the data contained therein to the mass media and other interested parties. As soon as the other election returns are delivered, the board shall immediately resume canvassing until all the returns have been canvassed. The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay. Failure to comply with this requirement shall constitute an election offense. Subject to reasonable exceptions, the board of canvassers must complete their canvass within thirty-six hours in municipalities, forty-eight hours in cities and seventy-two hours in provinces. Violation hereof shall be an election offense punishable under Section 264 hereof. With respect to the election for President and Vice-President, the provincial and city boards of canvassers shall prepare in quintuplicate a certificate of canvass supported by a statement of votes received by each candidate in each polling place and transmit the first copy thereof to the Speaker of the Batasang Pambansa. The second copy shall be transmitted to the Commission, the third copy shall be kept by the provincial election supervisor or city election registrar; the fourth and the fifth copies to each of the two accredited political parties.

    115

    RA 3019. Anti-Graft And Corrupt Practices Act. – Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) x x x (e) x x x. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) x x x. (h) x x x (i) x x x (j) x x x. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government.

    21 does not know all the voices in the tapes or that testimonies elicited from the tapes were voluntary or made without any kind of inducement.116

    bb. The transcripts (of the conversations) he holds are those that were downloaded from the internet site of PCIJ.

    cc. He believes that the military has the capability to wiretap.117

    dd. He did not give a tape/CD to DZMM.118

  6. mlq3

    bencard, this was the portion i was referring to:

    In any case, the Joint Committee ultimately voted to play the tapes on the insistence of the majority of its members for tactical political reasons. And it did so with the repeated caveat that the Joint Committee was not treating them as authentic, or that their content was true or admissible as evidence for any purpose. It was listening to the tapes merely as part of the narrative of the witnesses who presented the same or as “reference materials.” It must be noted that the Joint Committee made no disclaimer to the witnesses about their criminal liability for introducing the tapes or admitting to handling them so that they testified at their

    302

    Excerpts from submission of Dean Pacifico Agabin; For whole text, see Annex D2

    303

    Excerpts from submission of Fr. Joaquin Bernas, SJ, see Annex D3

    68 peril. Yet, curiously, the government has shown no interest in prosecuting these clear violations of law.

    The so called Garci tapes were played in open session. But to what effect this has on the authority of the law has yet to be determined. Fr. Bernas had suggested that it would be more prudent for the tapes to be played in executive session to minimize the legal fallout. Did the playing of the tapes in public by the law-making branch of government effectively create an exception to the blanket prohibition in R.A. 4200 to the use of the products of illegal wiretaps? Do we have here an implicit congressional repeal? Might it be said that the production and playing of the Garci tapes in Congress and by Congress decriminalized the same, so that it can now be authenticated by the admission of those who conducted the wiretap without peril of prosecution? Can the contents of the tapes as captured in the House of Representatives transcripts of stenographic notes be now received in evidence for purposes of congressional proceedings, such as impeachments, or a prosecution for election fraud? Is there a need to reenact the anti-wiretapping law because of what transpired in the joint hearings? Perhaps these questions will get definitive answers when a comprehensive review of the law is finally undertaken in more sober circumstances. But to be consistent, the Congress that played admittedly illegal wiretaps should proceed to legislate a legal exception for itself.

    The hearings also showed the deficiencies of RA 4200 as a potentially powerful legal tool in the prevention, detection and prosecution of serious crimes.304 Enacted on 19 June 1965 and never amended since, the concerns raised during the discussions show that the law needs to be updated to accommodate unanticipated improvements in communications technology, as well as unprecedented political situations, particularly on the following provisions and salient concerns:

    1. In Section 1 of RA 4200, the modes of communication that can be open to legitimate wiretapping appear to be limited by the prevailing technology at the time of its enactment – “…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 dectaphone or walkie-talkie or tape recorder,…”305 It could be construed as having failed fatally to anticipate novel technologies and services such as digital or wireless communication. In the strict construction required of penal laws, this shortcoming could favor the accused and prove fatal to a criminal prosecution based even on authorized wiretaps.

    Novel and unanticipated wiretapping technology at the time of the law’s enactment might be deemed excluded from the penal law’s strictly circumscribed coverage. Still, we are satisfied that, in the present case of the so-called “Garci tapes,” the phrases “any other device or arrangement, to secretly overhear intercept or record” adequately covers even the new technology by which the Garci tapes may have been made. We can conclude, therefore, that the recording of the same is fully covered by the existing language of the law. Nonetheless, a clearer language covering to both existing and future possible technologies via an amendment or new law may be called for; (italics supplied)

    2. Section 3 of the same law only specifies a limited range of crimes for which legitimate wiretapping can be sought, to wit,“… crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy, …”306 This covers mostly national security offenses. The emergence of organized crime groups

    304

    Recommendations herein from the Committee on Public Order and Security

    305

    First paragraph, Section 1, RA 4200

    306

    First paragraph, Section 3, RA 4200

    69 that are able to exploit modern digital telecommunications has put law enforcement at a distinct and severe disadvantage. For example, it is virtually impossible to conduct a drug buy-bust operation with cellular phones able to alert the suspects to pull out of a “deal” before police agents can swoop in. The new and eminently portable communications technology has greatly enhanced the ease and impunity with which other serious crimes can be committed.

    An amended law should now include drug trafficking, bank robbery, kidnap-for-ransom, human trafficking, white slavery, child pornography, illegal recruitment, including acts constituting impeachable offenses as some of the crimes which could be covered by a court order authorizing wiretapping.

    3. The NBI has denied possessing even the capability to conduct interception and other wiretapping activities. While the ISAFP has admitted that it can tap landlines or land based cable/wire phones, it has likewise denied any capability to wiretap cellular telephones. Both the major telecommunications companies, Globe and Smart, have also denied possessing equipment capable of conducting electronic intercepts or of having allowed at any time in the past the use of their equipment by law enforcement agencies authorized to conduct the same for the prevention or detection of crimes, such as kidnapping.

    It would be frightening to believe the ISAFP’s and the NBI’s firm assertions of technical impotence in the field of modern surveillance. It would put the country on the watchlist of countries abetting, deliberately or by neglect, organized crime such as drug trafficking and terrorism.

  7. Bencard

    thanks, mlq3, i saw that the first time but i gave it just a passing interest because i thought it (the idea of an implied amendment) was just one of the many “what ifs” of the entire controversial proceedings. the joint committees finally concluded a need for congress “to legislate a legal exception for itself”.

    they then concluded (in the dispositive portion of the report) that r.a. 2400 remains unchanged in its entirety.

    watchful eye, that’s cute but “bencard is a man” is not the subject of any legal dispute (well, so far). if it becomes one, assertions that it is true or false will have to be proven or else they will remain just assertions for purposes of the controversy.

  8. watchful eye

    “That Bencard is a man” is just an assertion since it is not the subject of a legal dispute? Really?

    “That Manila is in the Philippines” is just an assertion for the same reason? Wow!

    Do you really have to be ludicrous to win an argument?

  9. Bencard

    watchful eye, you can do better than that in terms of comprehending a simple statement. what did i say? can you read my lips? that “bencard is a man” becomes a mere assertion once its truth or falsity becomes a subject of legal dispute between two contending parties. each party will have to prove his /her side of the issue. that may sound strange, even “ludicrous” to an unsophisticated mind.

  10. watchful eye

    Can you not find truth without thinking in legal terms? Truth is simple, Bencard. It doesn’t have to be the subject of a legal dispute or sophisticated all the time.

    I will say it again for your own sake: Get out of your legal straightjacket. It may not be healthful to you. Take care buddy.

  11. Bencard

    watchful, i heard that one before (recently, from abe), buddy. you were the one who raised the question, high-fiving yourself rather prematurely, and thinking you got me. sometime even simple “truth” gets disputed in court like “a slave is a human being”.

  12. watchful eye

    Ben, my “other” (this other) has been known to you, cvj, Upn (who also post as “anonie”) and others for quite some time. I have intentionally revealed it here in my exchange with Upn and with you several posts ago, if you recall. So, what’s news? The exercise is actually about the idea of the “self,” or “self-consciousness” which I believe is what’s driving the philosophy of “blogging” anonymously. It is a very interesting notion in terms, for instance, of the conception of “selfhood” and “statehood” and maybe “anarchy” (the original meaning). Do you remember when I asked you before if you could find the State inside your pocket? It’s about that buddy. I’m right now organizing my thoughts on the way to it, with a view to attempting to create a new “public” for our country. It’s an ambitious project but I’ll try to give it a shot soon.

    Meanwhile . . . “sometime even simple ‘truth’ gets disputed in court”, TRUE. But most of the time you find truth outside of a court of law. So, try sometimes separating yourself from the Ben the lawyer, from Bencard (or was it Titanium?) the great commenter, once in a while. It’s an interesting experience as many of the commenters here will probably bear out (sometimes unconsciously, I guess). All the best! I got to go for now.

    btw, in Dred Scott, a judicial pronouncement by the US SC, it was held that a black slave is a property. Today, US may potentially have a “property” for a president.

  13. anthony scalia

    mlq3,

    i wonder whose fault is it that the ‘miracle’ did not take place when it should have taken place, back in 2005.

    too bad Sen. Tatad’s later testimony could not recover the potential ‘KO punch’ the tapes could have given gloria had the tapes been played on time by a neutral 3rd party, as Sen. Tatad had originally intended.

    kaso, sorry na lang kay Sen. Tatad, he entrusted (wrongly) the tapes to an eager beaver gustong magpakabayaning si Alan Paguia.

    kaya ang naging resulta – nakaupo pa rin si gloria

  14. anthony scalia

    Bert,

    Tuwa ni Bencard, tsaka nina…..HU-HU-HU-HU…hikbi…

    ang tatalino kasi ng mga oposisyon. tapos gusto nyo pang sila ang mamuno ng movement against gloria. susmaryosep!

    talagang HU-HU-HU-HU…hikbi. sino ba naman ang di maiiyak sa katalinuhan ng mga oposisyon, as personified by Trillanic and Guingonic, and by their supporters tulad nina……

  15. mlq3

    scalia, you’ll recall at the time i quoted teodoro locsin jr’s observation that the opposition did two things: 1. it was overconfident and so went along with the majority’s proposed rules, which were subversive of the proper way to investigate an impeachment complaint and 2. it kept trying to force the pace of events, as he put it, “to manufacture a people power moment.” i’d add that the hyatt 10 bucked cultural norms and attacked the president whose cabinet they belonged to -without, however, taking the risk of incriminating themselves or their post-government careers (particularly the case with the economic managers, the others like dinky said all they had to say but it wasn’t a smoking gun).

    add to that the oversight that proved fatal: not involving fvr in the ongoing discussions; not wanting to be frozen out, he gambled on supporting the president (only to lose out later on, along with jdv). add to that, the inability of civil society (or the parts thereof that left the president) to reach an accomodation with the veep, and then the reluctance of the catholic church to weigh in, forcefuly. this gave the president time to rally the political old guard and convince them her survival was linked to theirs.

  16. Bert

    “talagang HU-HU-HU-HU…hikbi. sino ba naman ang di maiiyak sa katalinuhan ng mga oposisyon, as personified by Trillanic and Guingonic, and by their supporters tulad nina……”

    kawawa naman kami, anthony, kaming 80%+ ng taong-bayan (ayon sa survey) na nato-‘throw-up’ na sa inyong mahal na presidente. kayo lang ‘ata ang anak ng diyos, galit kaya ang diyos sa 80%+ na bobo?

    ay, oo nga pala, mali yata survey, survey nga uli.

  17. Bencard

    mlq3, in addition to the opposition’s miserable failure to make a case against gma, i think you overlooked the internecine rivalries within the anti-gma forces, i.e., the natural incompatibility of the erap fanatics and the b& w movement; the ideological differences between the far left (batasan 5 & their respective groups) and the ultra right (magdalo group, trillianes, et al.; and, of course, the political rivalries among the opposition, e.g., lacson vs. fpj supporters. i also think the one biggest factor that caused unbridgeable divide was the confusion and fear as to who would receive the mantle of power in a post-gma scenario. every group has its own idea and every one mistrusts each other, and in turn, the rest of the nation doesn’t trust them. ergo, no “tipping point”, no edsa-style “people power.

  18. anthony scalia

    Bert,

    …kaming 80% ng taong bayan…

    ****falls from seat****

    ano?! kayo, representing 80% ng taong bayan?!?!?
    ****makes the sign of the cross****

    kilabutan ka naman!

    oo nga, talagang kawawa naman kayo! pinagpipilitan pa rin ang people power! pareho din naman ang resulta – pfffffffttttttt!

    magtanim na lang kayo ng kamote! makakatulong pa kayo sa ‘food crisis’!

    ay, oo nga pala, mali yata survey, survey nga uli

    kuwarta na naman for you-know-who! kakainggit talaga sila!

    biruin mo – ang isusurvey lang 1,200, tapos representing buong nation na! masaya na sa resulta ang sponsor ng survey from the Genuine Opportunists, pero mas masaya pa ang mga may-ari ng survey firms kasi………..

    kuwarta na naman!!!!!!

    talagang engot ang mga Genuine Opportunists. Di nila alam kinakwartahan lang sila nina you-know-who!!!!!!!

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