Admissible

The "Garci tape" controversy obviously casts the darkest shadow on PGMA’s moral ascendancy to govern. Ironically, the Palace people themselves fueled the fire that provided the opposition with enough steam to keep the dispute raging and to give weight to the issues surrounding it. They started it by divulging the existence of a genuine and a tampered taped conversation between the President and an unidentified person at the other end, punctuated subsequently by the President’s own apology for "lapse in judgment" in talking to an election official to protect her votes. A heavy cloud of doubt still hangs over this controversy that becomes only heavier with the continued disappearance of "Garci", the person generally believed to be that "election official". The cloud can only be removed by a credible conclusion to the controversy. So far the only credible closure in sight lies in the impeachment proceeding if it will push through. A Truth Commission is a viable alternative if properly formed but nothing has been heard about it up to now.

If the lower house initiates the impeachment case despite all the legal obstacles thrown along the way, the issue of the admissibility of the tapes as evidence in the impeachment trial will be among the focal points of another legal battle.

The rules on the admissibility or inadmissibility of taped conversations or communications are contained in a special law known as the "Anti-Wiretapping Act", R.A. 4200. The law not only penalizes wiretapping or the use of any device to intercept, record or overhear conversations or communications but also disallows the use, as evidence, of the wiretapped materials obtained. The inadmissible wiretapped materials refer only to the conversations or communications done privately or without the consent of any of the parties involved. So tape recordings of (1) public speeches or conversations made in the presence of others in a public place as well as (2) those made with the consent of all the parties involved, are not prohibited and may be admitted as evidence. Also admissible as evidence are (3) wiretapped conversations or communications obtained with the authority of the Court in some crimes involving national security and personal liberty. The admissibility of the tapes therefore depends on how it is obtained and the kind of conversation or communication obtained.

By implication and pursuant to the rules of statutory construction, the nature of the proceedings also plays a vital role in the admissibility of the illegally obtained tapes. In other words there are proceedings where even illegally obtained taped conversations are admissible as evidence.

Under RA 4200 (Section 4) wiretapped conversations or communications obtained in violation of the law are inadmissible as evidence only in any judicial, quasi-judicial, administrative or legislative hearings or investigations. An impeachment proceeding is not among those expressly and specifically named where the illegally obtained tapes are not admissible. The basic rule in statutory construction says that "when certain things are specified in a law, an intention to exclude all others from its operation may be inferred". Following this rule, the only legal conclusion is that wiretapped conversations may be admitted in an impeachment proceeding.

This view is bolstered by the Supreme Court ruling in Francisco Jr. vs. House of Representatives, 415 SCRA 44, which categorizes an impeachment proceeding as a class by itself or the only one of its kind (sui generis) making it neither judicial, quasi judicial, administrative or legislative proceeding where the illegally obtained tapes are not admissible. Indeed the impeachment process is more of a political course of action adopted by the people themselves through their representatives in Congress. All sorts of evidence should therefore be allowed in that proceeding to arrive at the truth that is absolutely essential in making the right decision.

Mike Defensor’s recent move thus makes more sense than that of PGMA’s lawyers. He is telling the people that the Garci tapes are worthless and inadmissible as evidence not because they are illegally obtained but because they are fake. Mike’s move is the right step towards a convincing and reasonable closure to the long running controversy besetting this administration. That is, if he can successfully convince the public, the body politic, and Congress, as the impeachment body, that the tapes are really mere fabrications.

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