A Forum on the Constitutional and Legal Issues Surrounding the “GloriaGate” Tapes

The UP Law Center’s Institute on Human Rights will hold a forum on the Constitutional and Legal Issues Surrounding the “GloriaGate” Tapes.  Portions of the tape will be played and subjected to legal analysis.  The forum is scheduled on Wednesday, June 29, 2005 from 9 a.m. to 12 p.m, at Malcolm Hall, UP College of Law, UP Diliman Campus.

The Politics of Apology

I said I wouldn’t do this but I can’t help it.  By apologizing to the nation, PGMA is adopting the strategy of her fellow Georgetown Alum, Bill Clinton, who has, on more than one occasion, saved himself politically by making profuse apologies.

The first time was when he lost his first re-election bid as Arkansas Governor.  His apology allowed him to regain the Governorship with media calling him “the Comeback Kid.”  Several apologies later, he’s  now referred to as “Slick Willie.” 

But for the apology to work, PGMA must, like Clinton, make an unqualified apology — not the guarded one she made last night.  She must admit what she did and then say sorry.  No further excuses, no calls for unity, no lists of her accomplishments.  Just “sorry” will do, thank you.

More importantly, she must say sorry to everybody and in every opportunity for the next two (2) weeks or so.  In every public appearance from here on, she will begin by repeating the apology.  She should say it in every dialect — complete with all the
lambing she can muster.
There’s also something to be said for appearing contrite and humbled by the mistake.  After all, she’s asking for forgiveness.  She should tone down the cockiness a few notches and hang her head a little lower. 

Some tears would be nice once in a while but not too much.  Maybe the Presidential Adviser on Entertainment can bring in a film director to make sure it’s just right.  A few drops of Eye-Mo and you’re all set.

I’m dead serious.  People will want to forgive her if she appears truly sorry for what she’s done.  If she appears humbled by the experience, people will see that she’s just as frail as the rest of us.  And we all need forgiveness once in a while, right?

Pagpasensiyahan niyo na. ‘Di po sinasadya.  Nagkamali ako.  Sana pagbigyan niyo ako. Sorry. Sori. Sori.

PGMA’s Statement: No Legal Implication

GMA has issued a statement on the GloriaGate tapes admitting that she was the person whose conversation with Comelec Commissioner Garcillano was illegally wiretapped.  I will leave our countless politicians and columnists (and occasional bloggers) to the task of unraveling the political impact of her admission.  That’s far too complicated for me and I would think that this time, her move is deliberate and mindful of the political risks involved. 

I’m more interested in the more boring aspects of the legal implications of her admission which, I’m surprised to find, are none. (more…)

H2G2: Is it worth the trip?

I can’t remember the last time I went to a movie theater to watch something I wanted to watch.  When you become a parent, you surrender your movie choices to your children — period. It’s the same with the TV remote  control although that war was fought more subtly and with far more skirmishes.  Since we haven’t had our cable TV subscription activated for the past three (3) weeks, my daughter’s ad-free mind has not demanded to watch any new movies. 

It was my chance and I took it.  The movie in question is the Hicthhiker’s Guide to the Galaxy, which was based on Douglas Adams’ book, one of the few I read in High School and thorougly enjoyed.  I think it was Dean who recommended it.  For some reason which I can’t recall, he had discovered a great library at the Union Church in Makati, filled with paperback novels donated, I suppose, by foreign parishoners who had relocated elsewhere.  There was a 10 book limit on loans and Dean invariably reached his limit.  (more…)

What can 70 Law Students do for Free Speech and at what cost?

Although they will never show it to people outside their inner circle, law students are a highly oppressed group of students.  If it’s not the 200 or so pages they have to trudge through on a daily basis, it’s their professors’ unreasonable expectation that they’ve memorized it all and are ready for a serious round of cross-examination-type questions on the reading material.  It’s little wonder that perhaps a law student’s most prized asset is study time — deprive him of that and you’ll regret it.  People have learned this the hard way. Law students will deprive themselves of sleep, nourishment, TV time, and just about anything just to get their work done.  I’ve known people who’ve ended relationships because they were too “time-intensive”  or that he/she is not “strategically located” (i.e., lives/works/studies too far away) . . . from the library. 

Of course this was all lost to me when I asked about 70 of my students to help out on a small project relating to the so-called GloriaGate Tapes.  It seems to me that noone had attempted to de-construct the tapes into the individual conversations recorded.  I believe this is necessary if we’re to have a reasonably intelligent conversation about them.  So, together with another law professor (whom I’ll not name for RA 4200 purposes), we devised a plan to have law students scour through the PCIJ transcript (perhaps improve on it), separate the conversations and extract data from the tapes.  A work plan was devised that would make it easy to split the work into as many students who wanted to help out. (more…)

DTI Secretary is the New E-Commerce Czar

DigitalFilipino reports that DTI Secretary Juan Santos has announced a renewed interest in taking an active role in the e-Commerce policy space.   This raises two (2) interesting legal issues that will no doubt be settled politically. 

E.O. 269 creating the Commission on ICT seems to relegate the DTI’s role in  ICT to trade promotion (see Sec. 4[o], EO 269).  This, of course, is inconsistent with the provisions of R.A. 8792 (the ECommerce Act) which empowers the DTI to implement the law.  Also, the Implementing Rules of R.A. 8792 further vested the DTI with rulemaking powers in the area of electronic commerce (see Sec. 56, ECA IRR).

In the area of e-government, the CICT-creating E.O. also seems to vest wide powers to the agency including oversight functions for all e-government projects and the management of the e-government fund (see Secs. 4[d] & 4[e], EO 269).  However, this seems to ignore the E-Commerce Act’s IRR which requires all agencies complying with the law’s e-government provision to coordinate with the DTI (see Sec. 43[a], ECA IRR) which implies a central role for DTI in e-government projects.

So, will DTI Secretary Santos’ announcement bring these issues to the fore?  Who knows?  There seems to be turf issue that needs to be addressed.  Anyway, it’s a small pond and it’s probably easier for CICT to relinquish authority given the fact that the DTI’s mandate comes from Congress itself.  Or maybe CICT’s specialized knowledge in this space may weigh in their favor.

Let’s wait and see.

It’s an Honor to be Misunderstood by the Sassy One

Sassy Lawyer has what seems to be a rebuttal of my earlier post on the Constitutionality of distributing the Gloriagate tapes.  She says:

What JJ Disini wants is for there to be a prior admission by Gloria Arroyo that it was her on the tape, that the conversation took place over the phone and, therefore, the only way that there can be a recording of the conversation is via wire taps. Darn, an admission is necessary to establish that the recording was done via wire taps? Common sense… if there were two people conversing, and each conversation was initiated with “hello”, and the voices of both parties were recorded, what can we deduce? That there were two parties recording the conversation from both ends and any tape combining what each said must have been doctored? Oh, come on.

I think she missed my point. First off I never said that and this “prior admission” business has no bearing on what I wrote.  I wonder how she extrapolates that from my post. (more…)

Using Humor as Protest

The folks at TXTPower demostrate the Internet’s ability to get a discussion going on an issue.  Granted, ring tones and jokes won’t lead to this Administration’s downfall but they add a distinctly Pinoy flavor to this brewing political crisis.  Humor has always played its part in our political life.  Now, it’s being used to goad a sitting President into giving a formal reaction to the alleged illegal wire-taps.  If she doesn’t respond, everyone else will continue to have a laugh at her expense.

I guess our problems are so hard, we must laugh to make it through.  Erap raised it to greater heights by publishing the Erap-tion series of jokes. (Q:”What does Erap call his Zebra?”  A:”Spot!”).  And the one bright spot in Gloriagate is the surge of good GMA jokes.   Here’s one:  “Iggy Arroyo is laying low because he’s busy practicing how to sound like GMA.”

In the absence of any formal response from Malacanang, humor will have to play a bigger role in what should be a serious discussion on the state of Philippine democracy.

So, jump in.  Be a citizen.  Exercise your rights.  Download a ringtone.  Pass a GMA joke.

Unbelievably Great Service from the GSIS

For about half of my working life, I’ve been a government employee. That means many things none of which have to do with efficient service.  So, when my wife said June 15 was the deadline to get a GSIS eCard, I did not look forward to wasting a whole day getting a piece of plastic that will probably languish in my wallet until the day I die.  I grudgingly accompanied her to the GSIS office nearest our home. 

It was incredible.

We were out of there in 30 minutes with our eCards in hand.  Not only was it our GSIS Membership Card, it’s a Union Bank ATM card and a debit card to boot.  Plus, I can get a P5,000 loan instantly over the GSIS website. 

This is a great eGovernment project and I commend the GSIS in pulling it off.  Galing niyo! 

How to Admit the Inadmissible Tapes

Atty. Marichu Lambino, part-time Erap private prosecutor and my wife’s friend sends this  SMS:

The tapes themselves are inadmissible but what about the testimony of the person who made the tape?

She’s obviously trying to see if there are ways of getting the tape or its contents admitted in a court of law or perhaps, an impeachment proceeding.   After all, it’s an uphill battle.  Both the Constitution and Anti Wiretapping Law  are clear — the illegally taped conversations are inadmissible for any purpose in any proceeding.  That’s broad enough to cover all government processes.  But thankfully not the court of public opinion.

Her question got me thinking as to how one could do what the law seems to prohibit.  I think I’ve found a way.
  (more…)

Selected Case Law on the Anti-Wire Tapping Law

With all this discussion on the Anti-Wire Tapping Law, I decided to get some of the Supreme Court cases involving the statute. 

Gaanan v. IAC
G.R. No. L-69809, October 16, 1986

Gaanan listens on an extension phone to a conversation and the latter’s affidavit forms part of a charge for extortion.  The accused claims that the affidavit is inadmissible because Gaanan violated RA 4200. 

The Supreme Court ruled that RA4200 could have applied since the conversation was private “in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public.”  But since an extension phone is not one of the wire tapping devices contemplated by the law, its use in this case does not violate RA 4200.

Ramirez v. Court of Appeals
G.R. No. 93833, September 28, 1995

Ramirez files a civil suit for damages against Garcia in relation to a confrontation which occured in the latter’s office.  Ramirez produced verbatim transcript of the conversation as part of her evidence.   The transcript was made based on a tape recording of the conversation made by Ramirez.  Ramirez is charged with violating RA 4200. 

She defends by saying that RA4200 only applies to persons other than the participants to the conversation.  The court disagrees, holding that the law equally applies to all persons who make secret recordings of private conversations. (more…)

Exercise your Constitutional Rights and Distribute the Tape

I’m still amazed that the local Internet community has not seen it fit to distribute Atty. Sammy Ong’s infamous tape at all.  So far, only the PCIJ bloggers have risen to the occasion by posting it here. It must be a resource issue. At more than 160 megabytes, hosting the tapes on-line means using up one’s monthly bandwidth in a day. 

I understand traditional media outlets have succumbed to pressure from the government and have resigned themselves to discussing the existence of the tape without giving the public the benefit of hearing its contents first-hand.

In this case, the government pressure has taken the form of a threat of prosecution emanating from the Justice Secretary himself. The charge? A violation of the Anti Wire Tapping Law (R.A. 4200) which prohibits not only the unauthorized taping of private conversations, but also: (a) the possession of such tapes with the knowledge of their nature as illegal wiretaps; (b) the replaying of the tapes to any person; and (c) to communicate the contents thereof either verbally or in writing, such as the provision of transcripts.  The potential jail term, if convicted, ranges from six months to six years.

Additional pressure has come to bear from no less than the National Telecommunications Commission which has threatened to cancel TV and radio network licenses if they “use their facilities to broadcast or telecast false information or willful false representation.”The NTC reasons that the unauthenticated tape constitutes false information.

Under the circumstances of this case and given the issues involved, I believe the proposed prosecution by the Justice Department and the threatened action by the NTC against media outlets and all other persons engaged in the distribution of the tape would be unconstitutional.  These acts of the government are, in my view, violations of our basic freedoms as citizens of this Republic. (more…)

Some Good News for a Change

CICT Commissioner Dondi Mapa reports that representatives of various sectors came together over the weekend to create a vision for the Philippine software industry.  I hope good things come from this.  I’ve always believed that this industry has the ability to be successful in the world market.  With government support coming from the CICT, they might just do that and more. 

Who’s Guilty of Wiretapping?

Maybe I’m completely off the mark here but if media reports are true, then Sec. Bunye produced 2 CD’s — one containing the original conversation while the other had the “spliced” version.  He then claims that someone is guilty of wiretapping - a criminal offense.  I just have one question:  how come the President has a copy of the “unaltered” conversation? 

If my calls were bugged by unknown third parties and the resulting tapes were spliced, I wouldn’t be able to refute the tapes.  But here, the President offers her own version which means that she or someone else makes recordings of all her telephone conversations.  It should be pointed out that the President or whoever recorded those “unaltered” conversations might be equally guilty of wiretapping unless it can be shown that all the participants to the call had given their consent to the recording. 

But for me, I don’t think it’s likely that the President recorded all her calls.  Therefore, I doubt the authenticity of her “unaltered” versions.  There’s no logical reason why she would have them.

Perhaps  Malacanang is fighting fire with fire.  If the opposition will falsify a recording, then it’s okay for the administration to do the same.  Or maybe the “altered” tapes are in fact, authentic.  Whichever is true should be played out in the following days. (more…)

Graft and VoIP?

IT Matters reports that PLDT will file a case for graft against the NTC commissioners should they insist on issuing the draft VoIP regulations that will open up the industry to other players.  I need to review the law but there’s something strange about suing a government official for graft when all they’re doing is introducing competition.  Of course, it’s a direct threat intended to make the commissioners think twice. I hope they won’t be fazed. 

NTC’s Interesting (but Useless) Legal Interpretation

INQ7 reports that the NTC has adopted a legal interpretation of the term “valued added services” (VAS) as it is defined in the Public Telecommuncations Policy Act (RA 7925).  This is important to VoIP advocates because the NTC’s position would characterize VoIP services as VAS thereby dispensing with the expensive and time-consuming licensing process telcos had to go through to offer voice services.  At the center of the controversy is the phrase in the law which requres VAS to be an “enhanced service not ordinarily offered” by the telcos.  The Telcos claim that they already offer VoIP today and therefore, since they are “ordinarily offering” it to the public, then it cannot be VAS.

Well, the NTC through Dep. Comm. Jorge Sarmiento has put forward the proposition that services “ordinarily offered” by the telcos should be determined as of the time RA 7925 was passed in the mid-90’s.  The NTC reasoning goes like this: “Since none of the telcos were offering VoIP at that time, then it’s VAS today.” (more…)

Collaborative Art or Collective Release?

Only in the blogosphere could PostSecret be done.  People are invited to write out a secret in a postcard and send them over to the blogger.  One of the postcards show the burning twin towers with the message “He should have been at work that day” and then  “I wish he had been.” 

It’s one of life’s guilty pleasures — learning things about other people, even if you don’t know who they are and this blog delivers it in vast amounts.  I dare you not to read most of the entries.

I wonder if I’ll ever send in something.  BTW, I found out about this from a report in the New York Times.