Mockery of the law

The late Senator Lorenzo Tañada perhaps never imagined that the Anti-Wiretapping Law he authored would be the center of controversy involving the use of tape recorded conversations containing lurid details of plots and counter-plots swirling around the very occupant of the highest office in the land. In passing the law in 1965 our lawmakers clearly intended "to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in civil, criminal, administrative and or legislative hearings or investigations or to intimidate, blackmail or gain some unwarranted advantage over the telephone users" (Gaanan vs. IAC, L-69809, October 16, 1986, 145 SCRA 112). They never realized that in a span of only 40 years, nobody seemed to bother or be concerned anymore about the punitive character of said law and the purpose for its enactment. The ongoing battle of tapes had simply made a mockery of the law. Despite threats of prosecution under the law, the "Gloria-Garci" tapes with all its variations were even followed up by the so called "X-Tapes" repeatedly aired in media as if there is no such law at all.

R.A 4200 known as the Anti Wiretapping Law prohibits in no uncertain terms the tapping of a wire or cable or the use of a device or arrangement for the purpose of secretly overhearing, intercepting or recording a communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept or record the spoken words (Gaanan, supra). As the late Senator Tañada explained, the law prohibits the recording or interception of a communication or conversation between one person and another person privately made without authorization of all the parties. Whether the persons communicating or conversing are private individuals or public officials is not material. So is the content or nature of the communication. The key here is that it is privately made (Ramirez vs. CA 248 SCRA 590). Thus if the conversation takes place in a public place like a police station in the presence of other persons (as in a shouting match) then the conversation is no longer a private one and its recording is not prohibited by the law (Navarro vs. CA, G.R.121087, 26, August 1999). In the same category is a public speech which may obviously be taped by the audience.

But there are also communications or conversations privately made which may be intercepted or recorded by law enforcement agents without violating the law. These are the clandestine or private communications made in cases of offenses against national security like treason, espionage, provoking war and disloyalty in case of war, piracy and mutiny in the high seas, rebellion sedition and kidnapping. In these cases, the law enforcers may be authorized by the proper court upon showing that: (1) there are reasonable grounds to believe that any of these crimes has been, is being or is about to be committed; (2) that in case involving rebellion or acts of sedition, there must be prior proof that they may be, have actually been or are being committed; (3) there are reasonable grounds to believe that evidence obtained will be essential to the conviction of persons involved or to the solution or prevention of such crimes; and that there are no other means readily available for obtaining such evidence (RA 4200 Section 1, 1st and 2nd pars.).

Persons who: (1) illegally tap a wire or cable or use any other device or arrangement to secretly overhear, intercept or record a private communication; (2) possess any tape, wire, disc or other record or copies of the illegally obtained recording of a private communication knowing that it is illegally obtained; (3) replay an illegally obtained recording for another person, or communicate its contents, or furnish transcripts of the communication whether complex or partial; and (4) willfully or knowingly aid, permit or cause to be done the foregoing acts, shall upon conviction, be punished by imprisonment of not less than six months nor more than six years. Law enforcement officers who did not observe the proper procedure for securing and implementing a court order authorizing the wiretapping of a private communication shall likewise be punished (Sections 1 and 2, R.A. 4200).

In the current battle of the tapes, so many acts have already been committed by personalities from both sides which are in clear violation of the law. They are enough to raise a presumption that the crime has been committed unless sufficiently rebutted. By now charges should have been filed and those involved should be required to rebut the charges and prove their innocence. Such action should be done independent of the question of whether the content of those tapes illegally obtained are true or not.

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