This story
was taken from Bulatlat, the Philippines's alternative weekly
newsmagazine (www.bulatlat.com, www.bulatlat.net, www.bulatlat.org).
Vol. V, No. 20, June 26-July 2, 2005
How and What If?
The controversy generated by
the surfacing of CDs containing taped conversations allegedly between President
Gloria Macapagal-Arroyo and former Election Commissioner Virgilio Garcillano has
provoked a debate on whether the presidency of Malacañang’s current occupant is
legitimate or not. If it is found to be indeed illegitimate, are the laws and
executive orders Macapagal-Arroyo signed since assuming office in 2004 then
void?
BY ALEXANDER MARTIN REMOLLINO The controversy generated
by the surfacing of CDs containing taped conversations allegedly between
President Gloria Macapagal-Arroyo and Commission on Elections (Comelec) official
Virgilio Garcillano has provoked a debate on whether the presidency of
Malacañang’s current occupant is indeed legitimate. 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, came 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. Justice Secretary Raul
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.” The Department of Justice (DoJ)
has been assailed for not investigating the conversation itself. Gonzales has
also been criticized for claiming that the tapes were obtained by wiretapping
without showing sufficient proof. Is there need for an
investigation to find out whether the contents of the tape were obtained in
violation of the Anti-Wiretapping Law? Which leads to another
question. If it is eventually found that Macapagal-Arroyo assumed the presidency
by fraudulent means, are all the laws and executive orders she signed rendered
void? Since her assumption of
office following a hotly-contested election last year, Maqcapagal-Arroyo has
signed a number of controversial laws and executive orders. Among these are the
law increasing the coverage of the value-added tax, as well as an executive
order pushing for a national identification system. The new VAT law has been
criticized as an added burden to ordinary people who are already weighed down by
high prices of commodities and low wages, while the national ID system has been
assailed as a violation of the right to privacy and a prelude to a surveilled
society. Bulatlat
interviewed lawyer Neri Javier Colmenares for
this article. A convenor of the Pro-People Lawyers’ Network (PLN) and the
Committee for the Defense of Lawyers (Codal), Colmenares wrote a paper on the
country’s party-list law for the book Subverting the People’s Will: The May
10, 2004 Elections published late last year by the Center for People
Empowerment in Governance (CenPEG). He has done post-graduate work in law at the
University of Melbourne. Below are excerpts from the
interview: Justice Secretary
Raul Gonzales says the contents of the taped conversation cannot be used as
evidence in court because they were obtained by wiretapping. However, lawyer
Marvic Leonen said in a previous interview that it was only Secretary Gonzales
who said they were obtained through wiretapping and it still has to be found
whether or not they were indeed obtained through wiretapping. In fact, NBI chief Reynaldo
Wycoco, in yesterday’s (June 23) hearing at the House of Representatives,
himself admitted he did not know whether the conversation was wiretapped.
Actually, they have no proof that it was wiretapped except whistleblower Samuel
Ong, who said the tape came from the ISAFP (Intelligence Service of the Armed
Forces of the Philippines). Attorney Leonen says
of Secretary Gonzales that by declaring the tapes to have been obtained by
wiretapping, he admits that there was such a conversation. Technically it’s correct.
What are the elements of RA
4200? There are three: first, there was a private conversation; second, it was
tapped; and three, there was no consent from all parties. So when Gonzales said that
the conversation was wiretapped, under RA 4200 he’s admitting to the three
elements. Gonzales is rather stupid.
You can quote me on that, Gonzales is rather stupid. Attorney Leonen also
said that by admitting to the existence of such a conversation, Secretary
Gonzales places upon himself – as justice secretary – the burden of having to
investigate the conversation itself. You know, that is what
shows the bias of the justice department and the NBI which falls under it.
Look, the tape is presented
to you as a destabilization attempt. It is said to be a conversation involving
President Macapagal-Arroyo. The first thing you’re going to do is to try to
research whether or not it’s true or not. What did the NBI do? Did it
investigate? It did not. The moment you prove that
it’s not Macapagal-Arroyo and Garcillano who were caught on tape, that’s one
question answered. But they did not do that.
What did the NBI do? Nothing. They just declared that the tapes were both
tampered. In fact the Department of
Justice can be sued for dereliction of duty. There was an open call from
government to investigate a crime of such magnitude, and you fail to
investigate? That is tantamount to dereliction of duty. Is the current
investigation in Congress a possible venue for determining whether the contents
of the tapes were obtained through wiretapping or not? There are many possible
venues. The congressional
investigation right now is – it’s really all Bunye’s fault – because he said
there are two tapes, one is real and the other is fake, and the fake one is part
of a destabilization plot by the opposition, so Congress reacted. The opposition
in Congress argued that Bunye’s accusation had to be investigated. House Minority Leader
Francis Escudero delivered a privilege speech and the matter was referred to a
number of committees and a hearing is now being conducted to find out whether
the accusation is true or not. Does Congress have the
right to do it? Of course, yes. Malacañang accused the
opposition of destabilization, so they called for a congressional hearing. They
have a right to do that. What is being heard here is
not whether the tapes are authentic, but whether it is true that the opposition
has a destabilization effort against the government. The problem is, instead of
presenting the tape as evidence, the accusers say the tapes are inadmissible as
they were obtained through wiretapping. What is that? You accuse and you should
show all the evidence you have, but you’re the one saying the evidence is
inadmissible. In the first place your accusation turns out to be baseless. There can be other venues
for determining whether the tapes were obtained through wiretapping. If it is found out
that the contents of the tapes were not at all obtained through wiretapping, and
Gloria Macapagal-Arroyo’s presidency turns out to be really illegitimate as
militant groups and other opposition forces say, do the laws and executive
orders she signed retain their validity? Yes, they’re valid. Under
the Constitution they are, unless repealed. All laws are valid unless repealed.
We have presidential decrees from Ferdinand Marcos that remain valid because
they were not repealed specifically. Is it because they
were signed under the presumption that her presidency was legitimate? Yes. So they remain valid
and Congress has to repeal these. That’s what sad about that.
She has signed so many bad laws and executive orders and it turns out she may
not have the right to sign these after all. We just hope that Congress
will repeal the VAT law and others. Bulatlat © 2004 Bulatlat
■
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On the taped conversations, the legitimacy of the GMA presidency, and the
validity of the laws signed by GMA
Bulatlat