Futile exercise

It is admittedly hard to be a mere impartial observer of the current "Hello Garci" affair. Taking sides is irresistible because of the many previous incidents already confirmed and accepted as true and correct. Using these incidents as factual backgrounds, the urge to form conclusions on other factual issues and to make judgments on whether or not Garcillano had lied and lies still in his latest testimony before the Lower House, simply cannot be avoided. Specifically, these "truths" are: (1) the existence of a taped conversation between the President and "an election official" in 2004 while Congress was still canvassing the votes which the President herself admitted as mere lapse of judgment because she was anxious "to protect her votes"; (2) Garcillano’s sudden disappearance thereafter and his unusual feat of successfully evaporating from the face of the earth and eluding arrest for almost six months; and (3) his equally unexpected but highly dramatic surfacing as he landed from a pump boat accompanied by hooded armed men (Are they outlaws? Why were their identities not established by police authorities in the area?)

The most significant conclusion derivable from Garcillano’s maiden appearance and performance at the lower house is that he is the Comelec Official who was at the other end of the line of the telephone conversation referred to by the President in her "lapse of judgment" message to the nation last June 27, 2005. This conclusion is most plausible in view of Garciallano’s admission last Tuesday that the President called him once, 14 days after the May 10, 2004 elections. So far, he is only the Comelec Official admitting to have received a call from the President. So he must be it. Something amiss has already happened here. The Comelec’s independence in the administration and enforcement of laws having to do with the conduct of the elections has already been impinged.

Whether calling a Comelec Commissioner is a mere lapse in judgment on the part of the President or something more serious as to constitute an impeachable offense, really depends on the contents of the conversation. Here lies the crux of the controversy. In his testimony, Garcillano denied the supposed taped conversations or the "Garci tapes" that have been repeatedly aired before. He denied that the President asked him whether she would still lead by more than a million votes and that his alleged answer was "pipilitin ho natin ma’am". For those who heard the tapes, including me, Garcillano is lying here. But this particular issue hinges on two factors, the authenticity of the tape and its admissibility.

Unless the tape is authenticated, questioning Garcillano regarding its contents or using it for purposes of impugning his testimony or exposing his lies is an exercise in futility. The authenticity of the voice recording must be established first. This can be done by a testimony of a witness (1) that he personally recorded the conversation; (2) that the tape played was the one recorded; and (3) that the voices on the tape belongs to the persons conversing (Navarro vs. Court of Appeals, 313 SCRA 153). It is doubted however whether such procedure could be undertaken in the current hearing at the lower house which are conducted obviously only in aid of legislation. It should have been done in the impeachment proceeding that was unfortunately aborted by the same lower house that is now grilling Garcillano.

On the other hand, to be admissible in any civil, criminal, administrative and legislative hearings and investigations, the tape must have been legally obtained or that it was recorded and wiretapped by virtue of a court order. Voice recordings authorized by all the parties concerned are also admissible (Ramirez vs. Court of Appeals 248 SCRA 590). A recording of communications or conversations between persons done in public or in the presence of several other persons are also admissible (Navarro vs. CA, supra). Garcillano cannot invoke the Anti-Wiretapping Law because he has denied that he is the person involved in the taped conversation. Even his petition in the Supreme Court has no leg to stand on. He has no personality to question the admissibility of a wire tapped conversation where he denies his participation. For the matter, his pending petition before the Supreme Court cannot be a ground for refusing to answer questions in the legislative hearings regarding the taped conversation in which he is not a party anyway. Besides, it is highly doubtful whether the law on wiretapping can be used to shield violations of the law. The purpose of the Anti-Wiretapping Law is to protect the right to privacy of communications. But in this case, matters of public interest are also at stake. Thus in the interest of public good, the law may deprive or restrict the exercise of a right of private individuals (Lex citius tolerare vult privatum damnum quam publicum malum). This principle also supports the view that the illegally obtained tapes may be used in an impeachment proceeding since it imbued with the highest public interest and is not one of the proceedings mentioned in the RA where the said tapes are inadmissible. So after all, it is still the impeachment proceeding that can provide satisfactory closure to this raging controversy.

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