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.

Of course, this assumes that the tape contains indeed illegal wiretaps.  As of this writing, none of the persons whose conversations were recorded have come forward to categorically admit the authenticity of the tape.  Press Secretary Bunye has withdrawn his initial representation that the conversation between the President and “Gary” took place but the tape was doctored.  At least Commr. Garcillano can be credited for his consistency — he has from the beginning denied that it’s his voice on the tape.  These series of denials on the part of the administration leaves the Justice Department without a complainant.  Legally, the threat of prosecution is a hollow one unless the DOJ can present someone who can assert that the tape is indeed an illegal recording.

Still, empty threats have been very successful in suppressing the distribution of the tape and like the unauthorized biography of Former First Lady Imelda Marcos a quarter century ago, the CDs will have to go from person to person in innocent-looking discs.  Eventually, enough people will hear it and draw their own conclusions.

I find it especially disturbing that the NTC has added more obstacles to the tape’s dissemination by acting effectively as a censor.Since when has the NTC been the arbiter of content on the air?I thought this was the job of the MTRCB.

In no uncertain terms, I take issue at how the government has reacted to this issue. Since it was Malacanang itself that released the tapes and played portions thereof to the media, then criminal liability should first be placed at its feet and the NTC should question the Press Secretary for disseminating “false informatin.” That aside, it should be stressed that the government’s reliance on RA 4200 or upon the NTC’s regulatory authority over broadcast companies cannot be taken solely at face value. There is more here than a violation of a penal statute or broadcast policies.

While the President, COMELEC Commissioner Garcillano, and others can invoke their Constitutional right to privacy of communications, the courts have already held that a public official’s right to privacy is diminished when the subject matter is one impressed with public interest.  There is no doubt that the tapes fall squarely within that category because they tend to assail the integrity of the 2004 national elections and impose criminal liability upon Garcillano for violating anti-graft laws.

Moreover, the privacy claim must be taken in the context of other Constitutional rights in particular, free speech and the freedom of the press. Since the tapes implicate the sanctity of the vote – a core value in a democracy – its distribution and public discussion is absolutely necessary. The distribution of the tapes forms part of political speech and should be entitled to the highest form of Constitutional protection.  Free speech was designed precisely to encourage an unfettered discussion of matters involving the State because an informed polity is vital in a functioning democracy.  The political fortunes of one administration cannot trump the people’s inherent right to discuss and debate about matters that affect them and their government. 

Our courts have upheld the rule that the State is not permitted to impose prior restraints upon the media except upon a “clear and present danger” of substantive evil lawmakers that the State has a right to prevent.  The administration has not demonstrated that a “clear and present” danger extends beyond its own survival.  The prior restraints employed by the government are the threatened prosecution under RA 4200 and the potential revocation of broadcast licenses.In both instances, the Secretary of Justice and the Chairman of the NTC are abridging free speech and press freedom.Since they are both lawyers, one can only assume that they are fully aware that their acts violate their sworn oath to uphold and defend the Constitution.

We must also remember that the right to suffrage is also involved here insofar as the results of the previous elections may have been determined by things other than the votes cast. I would think that the Constitutional right to suffrage, free speech and the freedom of the press would far outweigh the President’s, a Constitutional Commissioner’s or any person’s claim to privacy.

Constitutional values at stake here and the administration’s various efforts to restrain the distribution of the tapes trample upon Constitutionally-protected rights.When the Constitution says “(n)o law shall be passed abridging the freedom of speech, of expression, or of the press,” it means neither Congress nor the Executive can promulgate any law or executive order to limit the exercise of such rights.To the extent that RA 4200 is being used by the government to restrict the people’s freedom of speech vis-à-vis the tape, it violates the Constitution.To the extent the NTC seeks to impose penalties upon the broadcast industry if it airs the tape, this also violates the Constitution.

In addition, various government officials may also be personally liable under other laws.The Civil Code for example holds any public officer or employee liable for violating a person’s Constitutional rights and liberties.Administrative penalties may be imposed under the Code of Conduct and Ethical Standards which requires public officials to “uphold the Constitution and put loyalty to country above loyalty to persons or party.”Other potential liability may involve the breach of that official’s oath to uphold the Constitution and in the case of the President, a ground for impeachment.

In conclusion, the distribution of the tape in question is not a criminal offense simply because this is an exercise of one’s freedom of expression and any attempt by the government to prosecute a person for violating RA 4200 in this instance would be unconstitutional and invalid.The same would be true for any sanction the NTC may impose upon broadcasting companies which air or play the tape in public.

Now, can we move on and figure out other ways of distributing the tape?