Justice Chief Should Probe Wiretapping – Law Professor

A professor of law at the University of the Philippines said that Justice Secretary Raul Gonzales should investigate the taped conversation allegedly involving President Gloria Macapagal-Arroyo and an official of the Commission on Elections (Comelec). This, said Marvic Leonen in an interview with Bulatlat, is because Gonzales himself had admitted that there is such a conversation by saying that the contents of the tape were obtained by wiretapping.

BY ALEXANDER MARTIN REMOLLINO
Bulatlat

A professor of law at the University of the Philippines said that Justice Secretary Raul Gonzales should be investigating the taped conversation allegedly involving President Gloria Macapagal-Arroyo and an official of the Commission on Elections (Comelec) –said to be Virgilio Garcillano. This, said Marvic Leonen in an interview with Bulatlat over the weekend, is because Gonzales himself had admitted that there is such a conversation by saying that the contents of the tape were obtained by wiretapping.

Press Secretary Ignacio Bunye had released June 6 two CDs containing audio files of what he said was a taped conversation between the President and a political leader of the administration Lakas-CMD in Mindanao, southern Philippines. One of them, Bunye said, was a version purportedly altered by the opposition to make it appear that Macapagal-Arroyo had cheated in the 2004 presidential election.

Both “original” and “tampered” have portions in which a woman – said to be Macapagal-Arroyo – was asking a man (“Gary” in the “original” version, “Garci” in what Bunye called the tampered version) if she would still win by a million votes. Macapagal-Arroyo won by a million votes over her closest rival, Fernando Poe, Jr.

Days later, lawyer Alan Paguia, counsel for deposed President Joseph Estrada, would come out with a longer tape, and after a few days he would be followed by National Bureau of Investigation (NBI) agent Samuel Ong who claimed to possess the “mother of all tapes.” Ong said his source was military intelligence agent T/Sgt. Vidal Doble, who denied this.

Gonzales had dismissed the content of the tapes as obtained from wiretapping.

The Anti-Wiretapping Law declares it 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 dectaphone or walkie-talkie or tape recorder, or however otherwise described.”

In the case of the Malacañang tape, the contents were allegedly obtained by tapping mobile phone conversations. In an e-mail to Bulatlat, Dr. Giovanni Tapang, a physics professor at UP, explained how cellphone tapping is done:

“Since cellphones are just radio devices, radio signals emanating from your phone can be received and recorded just like any other radio device. It is true that signals from digital GSM phones are encrypted as the phone companies say but these signals can still be decrypted off-line with a computer and enough time. Essentially these are what the expensive equipment do.

”Of course the task of the wiretapper becomes easier if they have access to the phone companies. Or to your phone.”

Admissible or not

Former Army Capt. Rene Jarque, who used to head the military’s Psychological Operations Department, declined to comment when asked whether the Intelligence Service of the Armed Forces of the Philippines (ISAFP) indeed taps telephone conversations.

But Jarque, who is also a convenor of the broad Action against Corruption and Tyranny Now! (ACT Now), chose to comment on the issue’s legal and political aspects. “Legally, the wiretapped conversations are inadmissible as evidence (as in our system, conviction can only happen if there is admissible testimony, documentary or physical evidence),” he said, “but what happens now that it is out and people are aware. You know the crime was committed but the evidence precludes conviction.”

But according to Leonen, who is also a convenor of the recently-launched Movement of Concerned Citizens for Civil Liberties (MCCCL), it has yet to be proven whether the contents of the tape were indeed obtained by wiretapping. Sorsogon Rep. Francis Escudero, House Minority Leader, expressed a similar view June 17 in an interview over GMA-7.

Beyond wiretapping

Leonen also said that the issue goes beyond the Anti-Wiretapping Law. “Gonzales says there was wiretapping,” he pointed out. “If there was no wiretapping, the conversation would be fictitious. He is putting himself into a corner. If he says there was wiretapping, it means there was communication between whoever is the woman on the tape and the man.”

“Why doesn’t he investigate the conversation?” asked Leonen, who also serves as legal counsel of the University of the Philippines.

Macapagal-Arroyo, likewise, should order Gonzales to investigate the contents of the tape and persuade both houses of Congress to do so, Leonen said. “Regardless of legality, she is obliged to explain the issues related to allegations against her because she is the president of the Republic of the Philippines,” Leonen explained.

As regards Gonzales, Leonen had this to say: “It is not right for the secretary of justice to act as the president’s lawyer. The secretary of justice is a public official, our lawyer that is supposed to take care of the interest of the state. He is not Macapagal-Arroyo’s secretary.”

Asked whether he thought there was already a betrayal of public trust with the way Macapagal-Arroyo and her allies have been handling the issue, Leonen said: “I cannot say that yet, but as far as I’m concerned, my president disappointed me. Her allies in Congress have disappointed me. There is no serious investigation to find out the contents of the tape, if they are authentic. The only group that can do that is government.”

Betrayal of public trust is an impeachable offense under the 1987 Constitution. Bulatlat 

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