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The GloriaGate Tapes are Admissible (Sometimes)

July 6, 2005

The following is based on the notes I took when Prof. Hilbay gave his talk on this topic at last week’s forum on the GloriaGate Tapes.  All errors are mine. 

Prof. Florin Hilbay shared his views on the admissibility of the Gloriagate Tapes and concludes that the tapes would be admissible, notwithstanding RA4200, only in an impeachment proceeding when the Senate is sitting as an impeachment court.

He first examined the Constitutional provision on the privacy of communications and concludes that the right is not absolute.  The Constitution says that “upon the lawful order of the court” the privacy of an individual may be breached and the resulting evidence admissible.  He argues for a liberal interpretation of the word “court” that includes the Senate sitting as an impeachment court.   Others have just assumed that the Constitution refers only to the regular courts but he says there is no take such a limited view.

He then says:

“I’ll give you a textual argument.”  Although RA4200 only allows the court to authorize wiretaps before the taps are made, the same limitation is not found in the text of the Constitution.  The Constitution does not prohibit the “court” to admit a wiretap that has been made without prior authority.

“I’ll give you a functional argument.”  Courts are always open and continually operating which gives law enforcement officers a full opportunity to secure a wiretap warrant before the fact.  In contrast, the Impeachment Court is an ad-hoc body that is in no position to give the same authority to collect evidence.  An Impeachment Court has to contend with the evidence already collected and available.  This justifies the Impeachment Court’s wide discretion in allowing the presentation of evidence — even those illegally obtained.

“I’ll give you an historical argument.” The 1987 Constitution is replete with several provisions that underscore the primary importance of transparency in government.  Admitting the tapes during an impeachment proceeding would give life to those provisions.

“I’ll give you a structural argument.” The Constitution provides  no standard of evidence nor any definition of what constitutes impeachable offenses. Under these conditions, applying the Rules of Evidence would be improper.  The Impeachment Court should be given a free hand in making determinations respecting these issues.  It should not be constrained by the law or the Rules of Court.

Posted by JJ Disini at 6:20 pm | permalink | comments[3]

Prof. Avena’s Take on the GloriaGate Tapes

I attended part of last week’s forum on the Legal and Constitutional Issues surrounding the Gloriagate Tapes and here are my notes of Prof. Victoria Avena’s talk  (as usual, all errors are mine):

Relevant PGMA Admissions in the Apology Statement.  Prof. Avena recognizes that the statement was the work of “lawyerly wisdom” and contained little that could pin the President down. 

  • First, GMA did not make any admission relating to the tapes. She merely made mention of the “issue of the tapes.”  This is the only reference to the tapes in the statement. She therefore makes no categorical link between her statement and the GloriaGate Tapes.
  • Second, when GMA said that “the election results were already in and the votes had been counted”, she was telling a half-truth.  Although the teachers had completed the counting of the ballots, the count that matters is that done by Congress sitting as a National Board of Canvassers. That count had not yet been done nor completed.
  • Third, GMA admits that  she “had conversations with many people, including a Comelec official” but does not say she talked to Commr. Garcillano.  She uses the word “official” which could be understood to mean a number of people other than the Commissioners themselves.

Prof. Avena concludes that there is no admission that can be taken against her since all her statements are exculpatory.

Posted by JJ Disini at 6:05 pm | permalink | Add comment