No legal obstacles to Senate probe on ‘Hello, Garci’ tapes

THERE are no legal obstacles to the reopening of a Senate investigation on the “Hello, Garci” tapes.

University of the Philippines law professor Harry Roque Jr. made this assertion in response to the concerns raised by some senators about conducting an inquiry that would hear wiretapped conversations between Gloria Macapagal-Arroyo and a former elections official during the 2004 elections that they deem inadmissible as evidence.

Administration senators have cited Republic Act 4200, or the Anti Wire Tapping Act of 1965, that prohibits and penalizes “wiretapping and other related violations of the privacy of communications” after opposition Senator Panfilo Lacson delivered a privileged speech last Tuesday seeking a reopening of the investigation on the “Hello, Garci” tapes. Lacson presented a video of former Intelligence Service of the Armed Forces of the Philippines (ISAFP) agent Vidal Doble Jr. who recently admitted to having been part of an operation to wiretap certain personalities, including former poll commissioner Virgilio Garcillano and confirmed the authenticity of the recordings that have come to be known as the “Hello, Garci” tapes.

But Roque, who is also the director of the U.P. Law Center’s Institute of International Legal Studies, argues that the Senate has enough legal grounds as far as the admissibility of the tapes in the proposed inquiry into unresolved allegations of election results manipulation to catapult Arroyo to the presidency in 2004.

Roque points out that RA 4200 is inapplicable in the case of the “Hello Garci” tapes as these constitute taped conversations conducted through cellular phones. Section 1 of the law provides that “it shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.”

“The wording of the prohibition is relative to tapping ‘any wire or cable,’ and cellular technology does away with both wires and cables,” says Roque.

Roque also cites a 1986 Supreme Court ruling in Gaanan vs. Intermediate Appellate Court where the high court ruled that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension device was neither among those “device(s) or arrangement(s)” enumerated therein, following the principle that “penal statutes must be construed strictly.”

In another court decision, this time by the Court of Appeals regarding Navarro vs. Court of Appeals, Roque says the appellate court already made a distinction between public and private conversations. The court declared that a heated exchange between two persons in the presence of a third who recorded secretly the exchange was not private in nature, and therefore even if secretly recorded, was admissible in evidence.

Following the CA’s reasoning, Roque says it is clear that “a conversation between a President and an elections commissioner involving the conduct of an election is not a private conversation.”

Roque also cites jurisprudence in the United States in support of the Senate inquiry on the “Hello, Garci” tapes. In New York Times vs United States, the American newspaper won the right to publish stolen Pentagon Papers on the ground that these involved matters of public concern. With respect to the right to privacy, the U.S. court ruled that it must yield to public interest.

It will be recalled that the primacy of the people’s constitutional rights to access information of public interest and the freedom of the press over the right to privacy of the public officials involved also served as basis for the PCIJ to make the tapes available to the public in 2005.

As to the tapes’ authenticity, the PCIJ in a previous post also posited several reasons why we tended to believe then — as we still do now — that the recordings are genuine:

• We validated the voices on the tape: former Comelec Chairman Christian Monsod and several other Comelec staff and officials identified Garcillano’s voice and validated the context of conversations. We spoke to six people, including four Comelec personnel, and they identified the other voices on the tape for us. Using them as our guide, we proceeded to identify most of the voices on the tape and we list them in (i Report‘s) “Cast of Characters.” The transcript (that follows) has the names we have identified.
• In all, we identified 25 voices, but there are several other voices whose identity eludes us. Apart from the president, the First Gentleman, and Garcillano himself, the identified voices include those of six candidates who ran in 2004, 11 Comelec officials, three political party lawyers and supporters, as well as Garcillano’s wife Grace and secretary Ellen Peralta.
• In addition, intelligence sources identified for us three of the five ISAFP agents who annotated the tape — that is, these agents, who were most likely the ones also tapping Garcillano introduced each of the calls by identifying who was in them and the time and date these took place. The sheer number of voices on the tape makes us believe in its authenticity. Who would go through the trouble of faking so many voices and making those voices sound so eerily authentic and recognizable?

• The context of the conversations is so specific and name so many other individuals. We counted references to at least 49 other individuals, excluding those who actually spoke to Garcillano (these, too are listed in “Cast of Characters”). If the tape were faked, then it could only have been done by a group of people who had such intimate knowledge of what was going on day by day in Comelec and its field offices in Mindanao. Actually, the only one who could have probably faked it would be Garcillano himself.

• There were “extraneous” conversations that had nothing to do with the voting or the count, including calls from the commissioner’s wife arranging meetings with her husband. Garcillano even called his maid Lyn, and a woman friend, who asked for a mobile-phone “load” and was always late for her appointments with the commissioner. There was even a call about the delayed delivery of congee to Garcillano, who complained that he was already very hungry. If the intent was merely to show election fraud, why bother with these “irrelevant” conversations?

• Sociologist Randy David’s “ethnomethodological” approach to the conversations provide further validation. David argues that the structure of the conversations and their references to specific contexts tend to vouch for the spontaneity and authenticity of the conversations in the recording.

• Independent verification confirming the authenticity of the recording was made by two internationally reputable voice experts, who identified the voices as those of the President and Garcillano by comparing the recordings and voice samples submitted to them. These experts also say the recording had not been spliced or tampered with. The problem was that these two verifications were commissioned by two oppositionists: Lacson and former senator Francisco Tatad. We checked these two agencies, however, and found that they were reputable in their countries. Brian Lovell, whose company Uniquest Pty Limited was tapped by Lacson to examine the recording, is an associate professor at the University of Queensland, Australia and research director of the Intelligent Real-Time Imaging and Sensing Group.The Hong Kong and Australian police engage his services.
• Tatad, meanwhile, had commissioned Ernst F. S. Alexanderson, president of Voice Identification Inc., a company based in New Jersey in the United States. A certified voiceprint examiner, Alexanderson, is said to have analyzed about 250 cases involving voiceprint comparison and trained about 100 law-enforcement personnel in voice identification. He is regularly tapped as a court witness in the District of Columbia, and is listed in expertpages.com, the leading Internet directory on expert witnesses and consultants.