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Hope springs eternal
By mlq3 Posted in Daily Dose on April 14, 2008 168 Comments 2 min read
ICT and Democracy Previous Current Senate's design flaw Next

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


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  1. cvj, totally agree with you. The best way to a man’s heart is through his stomach. My own gauge is simply this, that if she really has done something for the people’s stomach, why is she not felt by the people’s heart?

    “I hope we find out if and when she leaves office.”

    That’s why, cvj, I’m so paranoid about this cha-cha dance. Because we might not find out!

  2. Bert, i agree there is reason to be paranoid. The Filipino masa had the right instincts not to trust Arroyo. Unfortunately, the middle and upper classes are slow to catch on.

  3. o yeah, cvj. like the “right instinct” to trust (and to continue trusting) erap? what a warped, perverted sense of value that you consistently exemplify in this blog. why don’t you just speak for yourself and not pretend to be the authorized spokesman of the “masa”. who appointed you? the “batasan 5”?

  4. Bencard, don’t twist what i said. I wasn’t talking about their trust for Erap. I was referring to their mistrust of Arroyo.

  5. cvj, just giving you a little dose of your own medicine (lol). but how did you come to know what the “masa” have in mind? is it because 20 or thirty thousand of them show up at edsa?

  6. the presidential electoral tribunal disagrees with the “great” cvj, who seem to know it all. like i said, too many pinoy wise guys but hardly any wise men.

  7. Bencard, given what was revealed in the Hello Garci conversations and the Gloria Admin’s subsequent actions, it kinda lame to point to the Presidential Electoral Tribunal to disprove that Gloria cheated.

  8. lame or not, i would take the PET’s official finding over your homespun analysis of the so-called garci tape, any time, my man.

  9. There’s also this video clip that belies Hilary Clinton’s claim that she was subjected to sniper fire at Bosnia airport where everyone had to run for cover with their heads down.

    Hilary was humble enough to accept the embarassing truth about the tape (that shows she walking around unconcerned about her safety, being met by officials on the runway and greeted by young Bosian girl) before being established as “legal truth” by a court or any tribunal for that matter.

    But the Hello Garci tapes are not true because there was no “official finding” about its truth?

  10. Bencard,

    cvj does not agree to the PET’s ruling that FPJ’s electoral protest died with him, that an electoral protest is personal to the protester

  11. watchful eye,

    the only way to settle once and for all the ‘Hello Garci’ issue is to play the unadulterated original (not the adulterated version of the nagpakabayaning Alan Paguia the eager beaver)

    the Genuine Opportunists do not want the unadulterated original played because it will just reveal that they are equally guilty as sin. they insist on the adulterated Paguia version because for them its all thats needed to nail down gloria…

    and it preserves their squeaky clean image
    ****throws up****

  12. re you sure that what has been freely available and dissected on line was only the paguia version, a version that did cause problems for the opposition?

    and considering, by all accounts, the source of the recordings, why do you think the administration hasn’t gone to the bottom of the whole thing, including demanding the full an unexpurgated version which could be produced by the isafp?

  13. mlq3, in the real world, sometimes there are things that are better left classified for some period of time for the general good. i’m sure you are aware of many such bits and pieces of history that have not been revealed, in the passion of the moment, during the lifetime of all concerned and long after. one relatively recent example, the circumstances of the assassination of president kennedy, particularly the conspiracy theories and alleged personalities involved, are still the subject of conjectures, research, and factual analysis.

    in the first place, the wiretapped tape (assuming it’s genuine) has no legal utility. if it cannot be given judicial imprimatur, how can it be expected to convince at least a majority of the people? in this state of advance technology, fabricating an audio tape to create an illusion of reality, is not an impossibility, e.g. nat king cole singing a duet with his daughter natalie decades after he died is a simple example. the point is, without a judicial pronouncement, you cannot remove every vestige of reasonable doubt that the tape truly contains what it purports to.

    in the second place, assuming the tape is genuine and reliable, what can be gained from revelation of its ENTIRE contents? a political upheaval the like of which would easily surpass what spawned edsa 1 and edsa 2. maybe, just maybe, the president would be overthrown but all the
    others mentioned, i.e., senators, congressmen, governors, mayors, executive and military officials, maybe even judges and/or justices would be swept away with her.

    in the third place, what if admission by the courts of the so-called “garci tape” creates a legal precedent? do you really think isafp would not have secret wiretaps on everybody that is “somebody”, friends or foe alike, especially outspoken, incisive and articulate journalists like you? remember what i said about fabrication not being an impossibility.

    i say maybe it’s better to leave well enough along, at least for the time being. don’t you agree?

  14. anthony, i think not only that fpj died and thereby made the issue moot and academic, but also that, by analogy, a recount or revision of ballots would not affect the outcome of the 2004 elections as found by the PET in legarda vs. de castro vice presidential dispute.

  15. The President who is sworn to “faithfully and conscientiously” execute the laws of the land is constitutionally obligated to play all the “Hello, Garci” tapes, unadulterated or not, and let the ax fall upon anyone who violated the law. If the President’s right to privacy has been violated by the wiretapping, then she must waive that right if only because of such a solemn oath exacted the nation’s highest office. And if the wiretapping was not ordered by her as commander in chief, then the President is similarly constitutionally obligated to find out who caused the wiretapping and prosecute whoever committed the outrageous national security breach whether someone from ISAF or any other branch of the military or government agency or any other private party or participant conspiring with these unscrupulous government agents. The Filipinos are entitled to the fulfillment by their President of these fundamental obligations, no more no less.

  16. there’s no law that obligates the president to play any wiretapped tape. there’s no law that obligates the president to disclose investigations on matters involving national security, as determined by her as chief executive.

  17. bencard, if you review what shiella coronel wrote,

    http://www.pcij.org/blog/?p=97

    it became clear quite early on that the recordings came from military intelligence sources. see:

    http://pcij.org/blog/?p=531

    this entry, provides the various recordings that emerged, including what has been said to be the master tape:

    http://pcij.org/blog/wp-files/tapes.php

    the circumstances surrounding the ong tape and how it got into the hands of the opposition was chronicled here:

    http://www.pcij.org/blog/?p=1912

    and being the most complete version that reached the public, the three-hour tape has been transcribed and also, that of allan paguia, which would indicate what paguia thought should be excised to protect his principals or simply to cause maximum damage:

    http://pcij.org/blog/wp-files/transcripts.php

    which makes me wonder what on earth scalia keeps harping on about when the public has known for years what the estrada camp wanted released (paguia’s version) and what it originally got its hands on (ong’s version) and incidentally, what the palace thought was in its interest to release (it’s so-called “original” version as presented by bunye who started this whole ball rolling). recall how things were unfolding at the time:

    http://www.quezon.ph/474/argees-chronology/

    no culpability has been found for anyone supposedly breaking the law:

    1. not the isafp or top brass in the afp, though this article will remind you that many questions remain unanswered there:

    http://www.pcij.org/blog/?p=106

    2. not samuel ong (and he was willing to have the tapes scrutinized abroad: http://www.quezon.ph/422/mother-of-all-tapes/ )

    3. not press secretary bunye who presented a version to the press and encouraged them to reproduce and broadcast it, though quite early on he began to waffle on that:

    http://www.quezon.ph/482/teddyboy-grills-bunye/

    4. not the house of representatives that had the tapes played

    5. but we do know the supreme court declared that the ntc and doj had committed prior restraint in ordering a ban (see http://www.quezon.ph/467/on-the-ntc/ ) on the performing of the tapes once government realized it couldn’t control which version was aired.

    that was a legal decision, issued years after the fact but at least providing a basis to prevent future acts, but even at the time i’d pointed out there were good reasons for media to defy the government order: what might have been a cut and dried case of someone violating the anti wiretapping law became a public interest case:

    http://www.quezon.ph/417/media-cant-be-held-liable-for-releasing-tapes/

    but then again if you go back to june, 2005, bunye said the president’s lawyers had reviewed the tapes and found nothing indicating guilt in them:

    http://www.quezon.ph/494/president-i-was-anxious-to-protect-my-votes/

    but obviously that was a tactical announcement because instead of finding vindication in the recordings if what bunye said of the president’s lawyers was true, the president never admitted she’d been recorded (which would have given her legal ammo to demand everyone cease and desist and hale everyone, ong, paguia, media, etc. to court), no prosecutions were pursued, etc. etc. etc.

    now as for the rest, i don’t get your point: if damaging information surfaces about a government, and the information is such that it turns the tide of public opinion, then the government ought to fall.

    the legal utility part, that bridge, was crossed long ago, bencard. and again, review the indian and american cases i pointed to in 2005.

    which reminds me of machiavelli’s words:

    http://www.quezon.ph/470/a-happy-shrewdness-machiavelli-suggests/

  18. thanks for all the links and citations, mlq3. unfortunately. nothing in them abrogates the express prohibition in R.A. 4200, Sec. 4, re inadmissibility of such tapes as evidence in any judicial, quasi-judicial, legislative or administrative proceedings. this is what i mean by illegally wiretapped recordings having no legal utility or value. contary to your belief, that “bridge” has never been crossed, at least, in the philippines. again, unless such a tape is properly authenticated and admitted judicially, doubts about its truth cannot be overcome and will always remain a subject of conjectures by differing minds.

  19. bencard, and what do you call that house report on the hearings on the tapes that i sent you, including the question raised that the house in effect amended the law by playing the tapes in open session?

    this is like the palace’s asserting the recent supreme court decision made “null and void” the senate hearings on nbn-zte. aside from it giving grounds for the sc to overturn its recent decision (on the argument that the danger is obvious of officials taking the sc decision and applying it to an extent never intended by the court), there is the collision between what the lawyers will assert -“it’s null and void”- and what common sense tells us: it happened, you heard it, you saw it, you know it, it took place.

  20. mlq, sorry but i think playing and listening to the tape are a whole lot different from presenting it and being admitted in evidence in a legal forum to prove the truth of its contents, the latter being the act prohibited by RA 4200

    in the context of legality, when something is declared “null and void”, it means devoid of legal effect. for example if cvj marries his sister, no one can deny the fact of the marriage ceremony but, in the eyes of the law, the marriage is non-existent, confers no rights and imposes no marital obligation. i can give you more examples but i’m sure you got the drift.

  21. THree questions for you Bencard:

    1) When is the proper time to object to the admissibility of a wiretapped evidence?
    2) Who has the right to raise the objection?
    3) which law in the Philippnes “declares” a wiretapped evidence “null and void”?

    Pahabol, don’t you consider the Philippine Constituion a law?

  22. watchful, short answers:

    1. when it is determined as illegally wiretapped during the process of identification and authentication.

    2. any adverse party against whom it is intended to be used.

    3. none that i know of, but RA 4200 precludes it from becoming “evidence”.

    pahabol – the constitution is the fundamental law, the mother of all laws of the state. so what?

  23. btw, violation of RA 4200 (any of its provisions) carries a penalty, apart from the inadmissibility of the wiretapped material.

  24. bencard, my understanding is: if someone comes forward, says they were illegally wiretapped, and files a case in court, then if the wiretapped material is to used, it has to be proven to have been legally sourced (i.e. a legal wiretap).

    but until someone comes forward and says they were victimized, there’s no stopping the use of the material for formal or informal purposes? because there being no complainant, there’s no legal process at work to stop the material being circulated?

    and yet no one has come forward to oppose the use of the material on the basis of their having had their rights violated by means of a wiretap?

  25. mlq3, that’s why i said unless it is given judicial imprimatur, which is not possible because of RA4200, it has no legal utility or value, and therefore would not likely convince a majority of the people as to the truth of what it contains.

    i suppose you could use the material for formal or informal purposes (except as evidence in a legal forum) as you wish but, if caught, you could be prosecuted for violation of the statute. possession and replaying, among other violations, could land you in jail. if that doesn’t stop anyone, i don’t know what will.

    i don’t think an individual complainant is necessary to prosecute violations of the statute. the victim/complainant is “the people of the philippines”.

  26. mlq3,

    re you sure that what has been freely available and dissected on line was only the paguia version, a version that did cause problems for the opposition?

    it can be all versions other than the original pristine version of Sen. Tatad – the only version I’ll consider genuine.

    If what was uploaded online was different from Paguia’s adulterated version played ad nauseam at the House hearings, then thats a reflection of the state of all anti gloria people – sablay, walang coordination, kanya kanyang diskarte, nagpapakabayani, etc. it sends a wrong message to the public

    and considering, by all accounts, the source of the recordings, why do you think the administration hasn’t gone to the bottom of the whole thing, including demanding the full an unexpurgated version which could be produced by the isafp?

    i don’t know.

    which makes me wonder what on earth scalia keeps harping on about when the public has known for years what the estrada camp wanted released (paguia’s version) and what it originally got its hands on (ong’s version) and incidentally, what the palace thought was in its interest to release (it’s so-called “original” version as presented by bunye who started this whole ball rolling). recall how things were unfolding at the time

    keep on wondering manolo, because im also wondering why on earth you are avoiding the following issues:

    1. Paguia’s version being adulterated – he admitted adulterating Sen. Tatad’s pristine version!
    2. the unadulterated version from Sen. Tatad is THE authoritative ‘Hello Garci’ tapes
    3. the only way to resolve the issue is to play the unadulterated version of Sen. Tatad

  27. scalia, the three hour version *is* the version tatad got hold of. it’s the version paguia screwed around with. i asked marites vitug and alex pabico of pcij who have been investigating this story and they confirmed it.

    the three hour version *is* the source from which all other tapes were derived, by both paguia and the palace. please, review the links and you’ll see that what remains unclear is if the afp/isafp has even more tapes of even more people, but the version obtained by tatad was what was publicly released by ong.

  28. Wiretapped conversation obtained without proper court order in appropriate cases may be inadmissible in evidence but the exclusion does not mean that the contents of the conversation is merely speculative, conjectural or false. It only means that when the necessary court order is not obtained to conduct the wiretapping, courts or quasi-judicial or legislative bodies may not look at the evidence because of the exclusionary rule (assuming the objection on admissibility is timely or seasonably raised). Nevertheless, others, i.e., journalists, historians, intelligence agents, experts, ordinary citizens, or voters, including judges not hearing the case, may still listen, analyze, authenticate and believe in the truth of the contents of the conversation recorded (despite its supposed disputable “legal utility”) and act upon it in various ways (such as to make the public officials involved accountable during electoral reckoning). It is therefore inaccurate to say that the conversation in question is “null and void.”

  29. Have the “Hello, Garci” tapes lost their supposed “legal utility” because of RA 4200?

    In a hypothetical perjury case against Garci (having denied under oath before a congressional committee that his was not the voice in the “Hello, Garci” tapes) and the question being asked by the prosecution to a prosecution witness (let’s say ISAFP agent Doble) is: “ Did you know if ISAFP or your superiors at ISAFP have been given orders by President Arroyo to wiretap Garci during the relevant election period as a “precautionary” surveillance measure?”, can Garci at this point raise an objection on the ground of inadmissibility?

    Answer: Absolutely not! There’s no attempt yet at authentication of the wiretap evidence, much less offering of the same as admissible evidence.

    Now, if the prosecution makes an attempt to play the tape to show that the voice in the tape is the same voice of Garci (the accused), may Garci object on the ground of inadmissibility?

    Answer: Again, No.

    No, because there’s no privacy violation here, Garci’s defense being that the voice in the tape belongs to another person, whose privacy, not his, is the one given protection by the law.

  30. with due respect, abe, you know as well as i do that for all legal intent and purposes, unless a proposition is supported by evidence duly accepted and believed by a competent forum in a case before it, such proposition remains unsubstantiated and,therefore speculative, conjectural and baseless.

    under ra 4200, court order may only be obtained in connection with prosecution of national security crimes and kidnapping. in all other cases, it’s a blanket exclusion. i really don’t think the exclusion is waivable by any adverse party ( e.g. failure to object), nor is it discretionary with the court.

    and i don’t think no one, including journalists or historians, is excused from the prohibition regarding possession, replaying, comunicating or furnishing transcript of illegally wiretapped materials (except those falling under the exceptions, e.g., crimes against national security) under sec. 2 of the act.

    finally, abe, no one is saying that the contents of the illegal tape are “null and void”. it’s just that, with certain exceptions mentioned above, it’s not usable for evidentiary purposes. also it may subject violators of the act to prosecution and penalty after conviction.

  31. abe, if i were counsel for garci, i would do as follows in his behalf:

    re your first hypo concerning doble, first i will object to the form (leading). assuming you rephrase it to meet my objection, i will have the court inquire as to the purpose of your question. if the purpose is to prove that my client had improper conversation with the president, or that the president had given orders to do an illegal wiretap, i would object on double hearsay grounds. of course, admissibility issue under ra 4200 is premature at that point.

    i think your answer to your second hypo question betrays a lack of understanding of ra 4200. the statute is not about personal privacy issue. while, as i postulated above, there is no need for any adverse party to invoke the statute to exclude the prohibited evidence (the court is mandated not to admit it) garci may still do so if only to remind the court of the inadmissibility under sec. 4 of the act. the fact that it is somebody else’s “privacy” that was violated is of no moment. this is a special exclusionary rule we are dealing with, not a regular one under the rules of court. i believe the necessity for such an statute is primarily dictated by society’s need for public peace and good order rather than personal privacy rights.

  32. “… unless such a tape is properly authenticated and admitted judicially, doubts about its truth cannot be overcome and will always remain a subject of conjectures by differing minds”

    “… for all legal intent and purposes, unless a proposition is supported by evidence duly accepted and believed by a competent forum in a case before it, such proposition remains unsubstantiated and, therefore speculative, conjectural and baseless.”

    “I don’t think no one, including journalists or historians, is excused from the prohibition regarding possession, replaying, communicating or furnishing transcript of illegally wiretapped materials (except those falling under the exceptions, e.g., crimes against national security) under sec. 2 of the act.” – bencard

    Bencard, your theses above are certainly audacious because it’s quite obvious the court could be among the least experienced to authenticate the tapes or to authenticate the voice recorded in the tapes. In the latter case, for instance, aside from individuals more familiar with the voice of the person whose voice is being authenticated, there are experts in the scientific community better trained than the courts to do the authentication. And when there are more concurring than differing minds among those familiar with the person’s voice or among experts (just as in dental, fingerprint or DNA identification) truth is generally established regardless of how a court decision, biased or not, may hold otherwise (Would you rather believe a judge’s opposite conjecture than your son’s declaration that the voice on a tape is his mother’s especially where the mother said something in the tape only mom knows?).

    On the other hand, right to privacy, just as right to counsel, to silence or against self-incrimination are waivable either expressly or when one’s counsel is sleeping on the job.

    Your third claim is almost comical Ben because “yung dagdag, yung dagdag” is probably one of the most replayed tapes many Filipinos have ever known.

  33. abe, before a tape is offered in evidence, the proponent is required to identify and authenticate it. this is normally done through his counsel’s and the court’s questioning of the proponent or the proponent’s witness, about the source, the circumstances as to where, why, when, how and by whom it was recorded and for what purpose. the chain of custody will also have to be inquired into. the opponent can rebut by contrary evidence or by evidence of illegality. so you see, each party will have an opportunity to present “expert” testimony. the judge will determine whether or not the tape was illegally obtained from all the evidence and testimony presented to him. the judge need not rely on his own expertise, knowledge or “opposite conjecture” and he is not supposed to.

    should the judge find illegality based on the testimony or other evidence, he would have to exclude the tape, motu propio.

    as to my “comical claim”, an illegal act is not rendered legal by its non-prosecution no matter how many such violations are committed and not prosecuted. how many allege offenses do not see the light of day because the prosecutors chooses not to prosecute for one reason or another? just check the law before enjoying my ‘comedy’. you could be at the receiving end of the joke (lol).

  34. Ben,

    1) This is the title of RA 4200: “AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES”. Do you still maintain that “the statute is not about personal privacy issue.”

    2) If the exclusionary rule were substantive rather than remedial, would you also maintain that a judge who may accept a waiver or rule for admissibility is subject to criminal sanction?

    3) As a young trial attorney I used to be hot objecting to every leading questions until one client of mine noticed the transcript of the debate would look like 25 of hvrds posts on one hand and another 25 of Abe’s posts on the other. Having mellowed somehow I normally would then let leading questions go. I congratulate you for not sleeping on the job however. But you don’t expect me to start my hypothetical with “Do you remember any unusual incident that occur sometime in May 2004?”, do you? Anyway, I think one plausible objection to the question is that it is multiple or compound. Not hearsay, certainly, as the question is being asked on personal knowledge.

    4) Aren’t you basically arguing thus:

    All truths that are not “legal truths” (truths that are “given judicial imprimatur”) are false or conjectural.

    My profession of love for my wife has never been given judicial imprimatur.

    Therefore my love for my wife is false or conjectural.

    5) The recorded conversation is a “real” evidence and therefore it will have to be offered at the “offer stage” of the trial which is after both parties have presented their case. Meanwhile there is plenty of opportunity to “legally utilize” the wiretapping incidents by asking Doble as to who ordered the wiretapping, the duration of the wiretapping operations, whether Malacanang has constantly monitored the wiretapping operations, etc. Doble may even validly be asked questions about his personal knowledge of any actual conversation between President Arroyo and Commissioner Garci if he was in fact eavesdropping at that time. All these can happen before any attempt to play the tapes in court, or to authenticate or offer the same in evidence and all these will come into play if a single person is prosecuted for replaying the tapes or for “(communicating) the contents thereof, either verbally or in writing.” It would be very entertaining, to say the least.

  35. mlq3

    scalia, the three hour version *is* the version tatad got hold of. it’s the version paguia screwed around with. i asked marites vitug and alex pabico of pcij who have been investigating this story and they confirmed it.

    i expect you to say you have no reason to doubt vitug and pabico on their claim that their version *is* Tatad’s version.

    did vitug and pabico get their copy directly from Sen. Tatad? if no, then there are reasons to doubt their claim that what they have *is* what Sen. Tatad had

    the three hour version *is* the source from which all other tapes were derived, by both paguia and the palace. please, review the links and you’ll see that what remains unclear is if the afp/isafp has even more tapes of even more people, but the version obtained by tatad was what was publicly released by ong

    sorry manolo, but a neutral 3rd party publicly releasing the tapes is a lot different from Ong and PCIJ publicly releasing it. aren’t you wondering why Ong’s and PCIJ’s disclosure went pffft? surprisingly PCIJ is completely unaware of the truism ‘the medium is the message’

    Ong was just another eager beaver na nagpakabayani. same with PCIJ.

    mga feeling clarissa ocampo and chavit singson.

    hats off to Sen. Tatad for his enviable self-restraint. but he must be fuming mad at how Paguia, Ong, PCIJ et al bungled the ‘Hello Garci’ issue big time.

    the best example of snatching defeat from the jaws of victory

  36. mlq3,

    i mean a neutral 3rd party disclosing what Sen. Tatad had in his possession

  37. abe, just as you cannot judge a book by its cover, you cannot fully know what a statute provides by its title. the mere mention of the word “privacy” doesn’t necessarily make it a personal “privacy right” legislation. you have to read the whole statute and pay particular attention to sec. 2.

    how you practice law is unimportant to this discussion. when i object to a question and state my ground, i leave it up to the judge to rule on it. it’s for the record and could be crucial in the event of appeal. lest i forget, i also make a formal offer of each evidence after identifying and authenticating it, and the judge usually allow it. having said that, how can doble, without a proper foundation being laid, have personal, direct knowledge that somebody ordered somebody else to do a specific act? btw, if somehow doble is able to claim (in the course of laying the foundation) that he heard it while eavesdropping without clear authority, i will move that line of questioning be stopped and testimony be stricken from the record (fruit of poisonous tree) and order a referral to the prosecutor for indictment of doble under ra 2400.

    violation of ra 4200 is a special crime with specific penalty. but a judge cannot prosecute on his own. if the prosecutor fails or refuses to prosecute, that is his own responsibility. but the violator remains liable, regardless of whether or not the subject of wiretapping is interested. would you expect “the people of the philippines”, the real complainant, to “waive”, if it can, the effects of ra 2400? i would think not. to answer your specific question, i think a judge who would “accept” a waiver from the subject of wiretapping, and dismisses a case on that ground, is liable for ignorance of the law, among other charges.

    finally, abe, i think your problem is that you think of r.a. 2400 violations as “private crimes” like defamation, sex abuse between consenting adults or other crimes against chastity, among others. i guess it’s part of a general pinoy belief (yes, even among some lawyers) that everything can be settled by “areglo”.

    abe, don’t overreach. i said conjectural, not false. conjectural may be true or false. you know that. if your love for your wife (which i don’t doubt) becomes a litigated issue, you would have to prove it or the judge would not believe it and you’d lose your case.

  38. btw, i forgot to mention, this discussion started with my statement to mlq3 that the “garci tapes” have no legal value, or utility. i thought it was understood that my said statement applies solely in the context of trying to prove that pgma engaged in an improper conversation with garci. the whole point is that the wiretapped tape cannot be used as evidence in any forum to prove that.

  39. abe, just as you cannot judge a book by its cover, you cannot fully know what a statute provides by its title. the mere mention of the word “privacy” doesn’t necessarily make it a personal “privacy right” legislation. you have to read the whole statute and pay particular attention to sec. 2.

    Bencard, I thought you’d say that so that I purposely omitted Section 1 of RA 4200 which I believe is the substantive part of the law. It reads:

    “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: (Italics mine)

    “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.”

    how you practice law is unimportant to this discussion. when i object to a question and state my ground, i leave it up to the judge to rule on it. it’s for the record and could be crucial in the event of appeal.

    Oh, I’m sorry, I thought I was commenting on a comment in a blog not trying a case.

    lest i forget, i also make a formal offer of each evidence after identifying and authenticating it, and the judge usually allow it.

    That judge is definitely not a UST Law graduate, and if he is, he’s been a truant. Please brush up your notes from Joe Feria, Ben.

    having said that, how can doble, without a proper foundation being laid, have personal, direct knowledge that somebody ordered somebody else to do a specific act?

    Again, I’m sorry, I didn’t know that Manolo is now a judge.

    Anyway, I will know rephrase the question.

    Q: “You said Mr. Doble, that you conducted a wiretapping operations involving the cellphone conversation between President Arroyo and COMELEC Commissioner Garcillano, did you have official order to conduct the wiretapping?”

    Ans: “Yes.”

    Q: “Who order you to conduct the wiretapping?”

    Ans: “Si Ate po.”

    Q: “Do you have any proof of that order?”

    Ans: “Yes, po.”

    Q: “ What is your proof”

    Ans: “Wiretap din po. I wiretapped the order para makasiguro po, for my protection.”

    Atty B: “I move to strike, your Honor. That last testimony is inadmissible for being in violation of RA 4200.”

    JUDGE: “Stop whining, counsel. Cellphone is not within the contemplation of RA 4200. Being a criminal statute, it should be strictly construed against the state.”

    Atty B: “That is ignorance of the law, your Honor.”

    Judge: “You are in direct contempt of the court. Fine, 50,000 pesos.

    btw, if somehow doble is able to claim (in the course of laying the foundation) that he heard it while eavesdropping without clear authority, i will move [again] that line of questioning be stopped and testimony be stricken from the record (fruit of poisonous tree) and order a referral to the prosecutor for indictment of doble under ra 2400.

    Judge: “Don’t dare Atty B, or you will not see your wife tonight.”

    finally, abe, i think your problem is that you think of r.a. 2400 violations as “private crimes” like defamation, sex abuse between consenting adults or other crimes against chastity, among others. i guess it’s part of a general pinoy belief (yes, even among some lawyers) that everything can be settled by “areglo”.

    Here’s my favorite twist. If one of the captured conversations is between Ate Glue and Kuya Manny suggestive of the latter’s relationship with a woman in red but the recorded communication was really out of context because in actuality the loving couple were really just teasing each other, and if in a case against Doble this time and Ate and Kuya 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 because of the injunction in RA 4200?

    If Ate Glue and Kuya Manny played the tapes to friends, are they now violators of RA 4200?

    abe, don’t overreach. i said conjectural, not false. conjectural may be true or false. you know that. if your love for your wife (which i don’t doubt) becomes a litigated issue, you would have to prove it or the judge would not believe it and you’d lose your case.

    Take this from someone who burnt out early as a lawyer. You’d be a much better lawyer than you are now if once in a while you forget being one.

    This thread is about to die. So, your Honor, I rest myself.

  40. abe, your make-believe “trial” is amusing but not good enough to make “comedy central”.

    thanks for conceding that ra 2400 is a substantive, not “remedial” or procedural statute.

    i don’t need to be “a much better lawyer”. after making a living in law practice for over 40 years, i think i can hold my own either here in the u.s. or in my home country. but i don’t think i can “forget” being a lawyer when i’m discussing law with another lawyer, can you?

    much thanks for the good natured discussion, abe. take care.

  41. Pahirit, Ben. (And excuse me, your Honor.)

    Section 1 of RA 4200 is the substantive part.

    Section 4, quoted below, is the remedial part.

    “SECTION 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.”

    Disclosure: I used to counsel wiretappers. Now, I counsel rappers.

  42. mlq3,

    so what will satisfy you, scalia? a statement from tatad himself?

    yes, with him playing the tapes. but if he did that now, it won’t carry the same “arrive” had it been done by him in 2005 (and didnt give the tapes to eager beaver nagpakabayaning Paguia)

    its funny outside the House hearings he (Tatad) was not given much importance

    sirang plaka na ang ‘Hello Garci’. truly a once in a lifetime opportunity for the Genuine Opportunists that they bungled immensely.

    napakaswerte talaga ni gloria.

  43. “napakaswerte talaga ni gloria.”

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

  44. abe, i am not trying to put you on the spot but do you, by any chance, any actual case citation on the application of ra 2004, particularly sec. 4? i see that the provision, unlike an ordinary court rule, is clearly mandatory and leaves no room for any judge or tribunal to exercise discretion on the matter. “shall not be admissible” is emphatically unequivocal.

  45. abe, to complete the picture, here’s quoted relevant portions of sec. 2, r.a. 2400:

    “Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit or cause to be done any acts declared to be unlawful under the preceding Sec. … shall upon conviction thereof be punished by imprisonment for not less than six months or not more than six years and with the accessory penalty of perpetual absolute disqualification from public office …”

    as you can see any person (including a judge, congressman or senator) who violates sec. 1 you quoted at 6:56 am (particularly the 2nd par.)is liable for the penalty.

  46. bencard, if you recall the house report i sent you, i believe they raised the point that the law has to be deemed amended, since the house as an institution decided to ignore the law.

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