REPUBLIC ACT No.

4200
AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER
RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND
FOR OTHER PURPOSES.

4 Fraud techniques

5 Effects on popular culture

6 Issues
o

6.1 Accountability and legitimacy

6.2 Electoral system

=============================================
=================

7 Media coverage

Hello Garci scandal

8 Attempts for an impeachment trial

From Wikipedia, the free encyclopedia

9 Aftermath

10 Injunction

11 See also

12 References

13 Footnotes

14 External links

The Hello Garci scandal (or just Hello Garci) was a political scandal and
electoral crisis in the Philippines.
The scandal involved former president Gloria Macapagal-Arroyo, who
allegedly rigged the 2004 national election in her favor. The official results
of that election gave Gloria Macapagal-Arroyo and Noli de Castro the
presidency and vice-presidency, respectively. Hundreds of national and
local positions were also contested during this election. The scandal and
crisis began in June 2005 when audio recordings of a phone call
conversation between President Arroyo and then Election Commissioner
Virgilio Garcillano allegedly talking about the rigging of the 2004 national
election results, were released to the public. This escalated, when the
minority of the lower house of Congress attempted to impeach Arroyo. This
was blocked by Arroyo's coalition in September 2005. [1] No trial has taken
place thus far.
Allegations against Arroyo and her accomplices in government are many,
including electoral fraud and a subsequent cover-up. The administration
has denied some of the allegations and challenged others in court. The
House of Representatives, which is dominated by Arroyo's coalition allies,
blocked attempts for an impeachment trial. Arroyo's most well-known
alleged accomplice from the electoral commission, Virgilio Garcillano, was
missing for a few months, but has returned to the capital in late 2005.
Allegations persist regarding possible conspirators from the government
who helped in his escape, and another alleged cover-up. Garcillano denied
any wrongdoing, before his disappearance, and after his return. In
December 2006, Garcillano was cleared of perjury charges by the
Department of Justice. A Senate investigation is ongoing.
Contents

1 Events history

2 Public opinion

3 Evidence
o

3.1 Ong recordings

3.2 Other evidence

Events history
Main article: Timeline of Hello Garci scandal
Samuel Ong, a former deputy director of the country's National Bureau of
Investigation (NBI), declared in a June 10, 2005, press conference [2] that he
possessed original recordings of a wiretapped conversation between
Arroyo and an official of the Commission on Elections, who was alleged to
be Virgilio Garcillano. In the following weeks, the media analyzed contents
of the tapes. The Ong recordings allegedly proved that Arroyo rigged the
2004 national election to maintain her presidency and the political success
of her allies. Arroyo denied the accusations of election rigging in a
television broadcast on June 27, but acknowledged that it was her voice on
the tape.[3] Protests occurred frequently during the crisis either in favor or
against Arroyo and her administration. Attempts to impeach Arroyo failed
on September 6.
Public opinion
During the scandal, various polls and surveys conducted by Social Weather
Stations, CNN/Time, and Pulse Asia measured public opinion regarding the
allegations and other related issues.
According to a CNN/Time poll, 57.5 percent of the people surveyed said
that Philippine President Gloria Macapagal-Arroyo should not finish her
term.[4] A Pulse Asia survey released on Philippine news on July 12 showed
that 57% of the people wanted incumbent president Gloria MacapagalArroyo to resign from office.

The Social Weather Stations or SWS June 2830, 2005 Metro Manila poll
results yielded that 59% say GMA told the Comelec official to cheat and
84% support full airing of tapes. In the same survey, President Arroyo
received a rather poor net trust rating of -31 while the COMELEC's net trust
rating was -27.[5]
According to the SWS July 1214, 2005 Metro Manila Poll: GMA should
resign, say 62%; or else she should be impeached, say 85%. President
Arroyo's net trust rating was still poor at -33.[6] Incidentally, President
Arroyo's net trust rating has stayed low (negative) since then. [7]
On January 25, 2008, Pulse Asia survey (commissioned by Genuine
Opposition (GO) per former Senator Sergio Osmea III) stated that 58%
percent of Filipinos in Mindanao believed that President Gloria MacapagalArroyo cheated in the Philippine general election, 2004. 70% also "believed
that because of recurring allegations of election fraud, the credibility of the
balloting process in Mindanao was at a record low."[8]
Evidence
Ong recordings
Two recordings were presented to the public: the Ong recordings and the
government endorsed version of the recordings. Uncut copies of the Ong
recordings managed to become widespread. The first recordings to be
released to the press were used in the Congressional inquiry on the crisis.
The second set of recordings, described by the government as the original
(SET1A, SET1B, SET1C, SET1D) and spliced (SET2A, SET2B, SET2C, SET2D,
SET2E) recordings, was more easily accessible in the Philippines as the
government did not restrict the media from airing it. However, the media
aired both sets, focusing on the Ong recordings.
One 17-second snippet of the recorded phone conversation that is widely
alleged to be between Gloria Arroyo and election official Virgilio Garcillano
("Garci") features a woman discussing the election returns; the woman
says (translated from Tagalog) "Hello? Hello? Hello Garci? So, will I still lead
by more than 1M (million)?"[9]
Shortly after the scandal broke, Randy David, a nonpartisan columnist of
the Philippine Daily Inquirer, cited two excerpts from the Ong recording in
an article. Sheila Coronel, of the Philippine Center of Investigative
Journalism, was able to decipher some of the garbled parts of the tape,
which allegedly implicated Arroyo in the scandal. David analyzed the tapes
using ethnomethodology and came to the same conclusions as did
Coronel. His analysis described one of the speakers as a female coming
across as a person speaking to her subordinate. Later, Arroyo
acknowledged that it was her voice on the recording (Arroyo's "I'm Sorry"
speech, 3.96MB MP3). However, no trial took place regarding Arroyo's
intentions with her conversations in the recordings. According to Philippine
law, both recordings are part of the public domain and are freely
distributable.
In his editorial on June 12, 2005 for the Philippine Daily Inquirer,[10] Randy
David said,

"On the surface it does look like an innocent exchange. The key
word here is "nagco-correspond" a gloss that refers to the
practice of fixing canvass results at, say, the provincial level so
that they are not at variance with precinct election returns or
statement of votes for municipalities. The other gloss is the
question "Kumpleto?" This is not a harmless inquiry. Given the kind
of response it elicits, it is an urgent demand to make sure the
doctoring is done with care".
David described Arroyo's subordinate as a "man...not in the business of
counting votes; he produces them."
Sheila Coronel, described not only electoral fraud, but also the involvement
of the independent watchdog group Namfrel. In her analysis, Coronel
alleged that corruption was clearly evident.[11] She also commented on the
garbled portions of the tape, which were digitally enhanced for clarity. [12]
Allegedly, Arroyo whispered "Yung dagdag, yung dagdag" ("The addition,
the addition"), implying fraud and mentioned Namfrel's sympathy for her.
In her blog, she said,
"The conversations, after all, provide damning proof that Garcillano
was, in the words of a Comelec official, the plotter for electoral
fraud, the overall supervisor and commander in chief of the
manipulation of the count in favor of the administration. The
recording points to systemic and institutional fraud perpetrated by
the Comelec. Does this mean that the President, by confirming her
phone calls to the commissioner, also provided, albeit indirectly, a
virtual confirmation of the fraud?"
Other evidence
After the Ong allegations surfaced, many others also claimed to have
evidence of cheating by the Arroyo administration; however some of those
facing the additional allegations have not been given opportunity to
provide solid evidence.[citation needed] Rashma Hali, an electoral official from
Basilan claims that Arroyo is related to a kidnapping operation. Michael
Zuce claimed that he was present in an incident where Arroyo allegedly
bribed officials from the Commission on Elections. Retired general
Francisco Gudani claimed that he can prove military involvement in
Arroyo's alleged acts of electoral fraud. Roberto Verzola, leader of the
Philippine Greens and an IT expert, also claimed that Gloria MacapagalArroyo cheated and the citizens' election watchdog, National Citizens'
Movement for Free Elections (Namfrel) was also involved. Jay Carizo, from
the Institute for Popular Democracy, developed the election cheating
indicators. Other sources claimed fraud in several other government
positions, as well as the murder of political opponents by incumbents.
There were also eyewitness claims as well. Loren Legarda also claimed that
she had evidence of being cheated by Noli de Castro, who won the vice
presidency in 2004.
Fraud techniques
Electoral fraud in the country was usually done by manipulating the
ballots.[citation needed] However, a new technique has arisen which just involves
the manipulating the election return or ER, which is a summary of the

votes in precincts. Evidence exist showing that the 32,000 sets of

overprinted ERs of the Commission of Elections could manipulate an
election by as much as three million votes. Such number of votes could
change a result.[13]
Effects on popular culture
Lines from the Ong tapes became popular cellphone ringtones after they
were made public, especially among the youth during the beginning of
their school year in June. A ringtone of the Hello Garci greeting quickly
became one of the most downloaded ring tones in the world. [14]
The scandal would also be referenced by television personality Joey de
Leon during a publicized feud with fellow television personality Willie
Revillame surrounding allegations of rigging on ABS-CBN's program
WowoweeJoey jokingly called upon the Department of Trade and Industry
to stop probing the Hello Garci scandal, and begin probing "Hello Pappy"
instead, in reference to Willie's nickname.[15]
Issues
Accountability and legitimacy
The evidence carried with it great consequences. The Ong tape were
neutrally authenticated by foreign companies Uniquest (Australia) and
Voice Identification (United States). Also, Arroyo's spokesman, Ignacio
Bunye, as well as the president herself, acknowledged that it was indeed
Arroyo's voice. The protesting public insisted that the tapes and CDs
proved electoral fraud, and that Arroyo cheated and rigged the 2004
elections. A sizable number of people wanted the results of the 2004
elections to be made invalid. The Supreme Court withheld judgment on the
matter, refraining from actions toward invalidating the election. The
administration said the Ong recordings were inadmissible in court, since
the audio was taped without consent.
Initially, there were two possible outcomes for the government; Arroyo
could have either resigned or be ousted through a constitutionally
accepted process. These actions could only take place after addressing the
current state of the faulty electoral system. The other outcome was for
Arroyo to be cleared of any wrongdoing. Neither outcome occurred, and
hence no final course of action was taken to resolve Arroyo's legitimacy or
to prevent electoral fraud. Those unrealized possible outcomes could have
resolved definitely the legitimacy issue, and could have made Arroyo
accountable for any wrongdoing. However, Philippine law and the country's
flawed electoral rules complicate the legitimacy and accountability
problem. The law only mentions impeachment followed with a conviction
as a possible way of removing certain serving legitimate government
officials. The law however is unclear on how to prosecute and convict the
sitting official if illegitimacy is the problem, due to allegations of vote
rigging. Conrado de Quiros, a strong advocate of electoral reforms, argues
that a special presidential election must be done in coinciding with
midterm elections to resolve legitimacy.[16]
"It is not enough that the elections next year [2007 midterm
elections] be turned into a referendum on Arroyo, it is imperative

that the elections next year be turned into an occasion to vote for
a real president."
"At the very least, a loud and universal call for special presidential
elections next year will let it be known that we are serious about
doing something about screwing the voters. No, more than that,
about the deceitfulness and lying that are spreading everywhere in
this country faster than karaoke. In the end, none of the
safeguards against cheating will matter if there is no public
vigilance against the threat and no outrage against the
commission."
Whether the special presidential elections occurs or not, a significant
number of incumbent politicians who are allied with administration and
who were elected during the tainted 2004 elections may be deposed by
voter backlash in the upcoming 2007 midterm elections, assuming the
election to be free and fair. The electorate would use the upcoming
election as a referendum on accountability and legitimacy for Arroyo and
her political supporters. All of the seats of Arroyo's supporters in the House
of Representatives, half of the Senate, and all local government positions
are to be contested. De Quiros also describes this contest as a contest of
"democracy vs. the cheaters".[17]
Electoral system
The Philippines, according to experts, has a reputation for having political
issues based on patronage politics and personality politics. To some
experts, what is unique about the crisis is that it addresses the greater
issue of electoral fraud and an allegedly faulty election system that allows
cheaters to win and get away with it. This is manifested in a humorous
local saying that, "There are two types of people in elections. Those who
win and those who get cheated out of office." Politically outspoken student
groups mention that this is rather new for Philippine politics, and shows a
gradual development of the voting public, the electorate.
According to pundits, the past 60 years of the Philippine history already
has a reputation of electoral fraud, proven or otherwise. It is just that no
one ever gets caught or punished. Analysts assert that the people have
always been desensitized to their politicians cheating during elections.
Accordingly, people generally doubt their leaders' mandates. The people
are often suspicious of the winners, especially in close poll results, but do
nothing. Constituents generally allow their leaders, assuming proven acts
of cheating, to get away with it until the scandal erupted. Roberto Verzola
supports punishing candidates guilty of fraud as the first step for electoral
reforms. He said that, "the system can be slow or fast but there will still be
cheating unless you punish the cheats."[18] The reforms sought for the
electoral system are still clouded with uncertainty.
Media coverage
Critics alleged that some media groups in broadcast and print were
partisan in reporting the crisis. Alternative media, mostly in radio, made
similar accusations, though some may be partisan themselves. These
accusations though between them are not new, and are common during
propaganda wars, as politically motivated groups use connections in media

to promote their side. During the latter part of the crisis, this has changed
as the media became generally more critical in delivery, which was
beneficial for properly informing viewers about the many sides of the
issues. The position of the press was thus kept in commentary.
The National Telecommunications Commission (NTC) initially warned the
country's radio and TV networks of a possible forced closure on any
network that airs the contents of the Ong tapes. In response, the
International Federation of Journalists (IFJ) condemned the Arroyo
administration for attempting to restrict the airing of the Ong recordings. [19]
Eventually, the media were allowed to present the evidence to the public.
It should be noted that three out of seven VHF TV channels are controlled
by the government.
Attempts for an impeachment trial
On June 27, human rights lawyer Oliver Lozano filed an impeachment case
against Arroyo on the grounds of "betrayal of public trust". Ten minutes
later, Jose Rizaldo P. Lopez, a private citizen, filed a similar impeachment
complaint. The mainstream pro-impeachment bloc in Congress advocated
an amended version of the Lozano complaint.
On August 23, the justice committee delayed a vote on the impeachment
complaints, instead focusing on a vote on procedures.[20] The committee
eventually sent Report 1012 to the rest of the House of Representatives.
The report suggested that impeachment proceedings should cease
altogether. Both chambers of Congress and the justice committee are
dominated by Arroyo's coalition allies.
On September 6, the minority could not garner the 79 signatures to send
the amended impeachment complaint to the Senate. A vote of Report 1012
commenced in favor of the report. Impeachment proceedings ceased,
preventing a trial for Arroyo for at least one year.[citation needed]
The following year on January 16, Lozano re-filed the amended
impeachment complaint. However, this came with stiff opposition from
opposition members in the House, most notably House Minority Leader
Francis Escudero, who threatened him with a complaint with the Integrated
Bar of the Philippines.[citation needed] This was after the opposition claims they
plan to file a stronger complaint, calling Lozano's tactics "illegal and
unethical", especially because the opposition did not consent to the filing
of the complaint. In June, one whole year after the beginning of the
scandal, several impeachment complaints were also filed by different
groups.[citation needed]
Aftermath
After the failure of impeachment, a broad coalition of protesters engaged
the government in peaceful protest for several days, which was
reminiscent of the People Power Revolution of 1986. Some of those
protesters included former president Corazon Aquino and former vice
president Teofisto Guingona, Jr.. Due to the lack of protesters that took part
in common venues, the government's hard line approach in regulating
traditional protesting venues in Mendiola and EDSA, and other factors, the
protests did not affect the outcome in Congress. Thus, its power soon

diminished. Lingering protests remain, accompanied by a campaign to

present evidence directly to the electorate, since such evidence were
restricted from use in trial. Arroyo eventually pressed on with certain
reforms, albeit unrelated to the crisis, that included new taxes that will
shrink government's fiscal deficit.[21] The economy has been described as
resilient, especially since its recovery was not affected by the scandal.
Despite Arroyo's preservation of her hold onto authority, and a resilient
economy, most analysts agree that the scandal has failed to address its
root causes - pervasive electoral fraud conducted by candidates during
elections, the faulty electoral system, and the Commission on Elections
that encourages fraud. Accordingly, confidence in Arroyo has declined as
explained by Amando Doronila of the Philippine Daily Inquirer who said.[22]
"The quashing of the complaints is an empty victory for the
administration. It merely demonstrated that the administration has
the capacity to deploy the advantages of incumbency to save the
president from being unseated. Until the president stands trial
where she can defend herself and where it can be shown that the
accusations are false and do not constitute impeachable offenses,
it would be hard for her to regain public confidence and reestablish
the legitimacy of her government."
The crisis has arguably ended with the failure of both the impeachment
process and the people power movement to have Arroyo face a public trial.
However the scandal persists, with the electoral fraud issue still
unresolved. This is a factor that led to the use of emergency powers by
Arroyo in early 2006.
Injunction
On September 6, 2007, retired Philippine Court of Appeals Justices
Santiago Ranada and Oswaldo Agcaoili filed (a 15-page petition for
prohibition with temporary restraining order or preliminary injunction) with
the Supreme Court of the Philippines to enjoin the September 7, 2007
Senate of the Philippines (committee on national defense) wiretap probe
(on the alleged wiretapping of telephone conversations of President Gloria
Macapagal-Arroyo and former election commissioner Virgilio Garcillano
inter alia).[23] On February 12, 2008, the Supreme Court, in a preliminary
voting, favored the airing of the Garci tapes, thus nullifying the National
Telecommunications Commission (NTC) order. But the final voting was
scheduled on Friday.[24]
http://en.wikipedia.org/wiki/Hello_Garci_scandal
=============================================
========================
SC upholds press freedom in 'Garci' tape
February 16, 2008 01:29:00
Jerome Aning
Philippine Daily Inquirer
MANILA, Philippines -- The Supreme Court on Friday upheld the primacy of
the freedom of the press by striking down as unconstitutional the warnings

issued by the Department of Justice and the National Telecommunications

Commission against media entities that would air the controversial "Hello
Garci" tapes.
The high court, voting 10 to 5, said the warnings from Justice Secretary
Raul Gonzalez and the NTC constituted "prior restraint" on the exercise of
the freedom of speech and of the press.
It said the government failed to prove that the feared violations of the AntiWiretapping Law, which the warnings aimed at preventing, clearly
endangered the security of the state.
In a 38-page decision written by Chief Justice Reynato Puno, the high
tribunal said there was enough evidence of the "chilling effect" of the DOJ
and NTC orders.
Prior restraint
The warnings "are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and [the]
press," it said.
Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or
dissemination.
While it noted that the petition raised other issues like the extent of the
public's right to information, the high court addressed only the most
decisive one--whether the acts of Gonzalez and the NTC abridged freedom
of speech and of the press.
The high court said "not every violation of a law will justify strait-jacketing
the exercise of freedom of speech and of the press."
It said that the ruling should not be construed that the court was devaluing
violations of the law.
But the need to prevent violations of the law "cannot per se trump the
exercise of free speech and free press, a preferred right whose breach can
lead to greater evils," it said.
Supreme Court spokesperson Jose Midas Marquez said the decision did not
explicitly allow media outfits to air the tapes.
The decision only stated that the DOJ and NTC statements were a form of
prior restraint and not mere "fair warnings," he said.
"Everyone should be on their respective lookouts. You should know your
law and you should be aware of our laws," Marquez told reporters.
Petitioner Frank Chavez
The petitioner, lawyer Frank Chavez, hailed the decision, saying it
strengthened the exercise of free speech and the right of the people to
have access to information.
He said that with the ruling, the Supreme Court has "opened the door for
the playing of the questioned tapes."

He said media outfits airing the tapes could use the Supreme Court
decision as a defense if anyone should file a case against them.
But he said only the people quoted as speaking or mentioned in the tapes,
not the DOJ or the NTC, may file a case.
Chavez claimed that television and radio stations were actually free to play
the tapes as the Anti-Wiretapping Law, or Republic Act 4200, does not
cover mobile phones and other wireless transmissions, the medium by
which the "Hello Garci" tapes were made.
"RA 4200 is not applicable because that law talks about wiretapping [of
land lines]. It's antiquated and can't be applied because it does not cover
wireless communications and penal laws can't be expanded," Chavez said.
The "Hello Garci" tapes refer to illegally wiretapped conversations,
allegedly between President Macapagal-Arroyo and Elections Commissioner
Virgilio "Garci" Garcillano, in which the two allegedly talked about fixing the
results of the 2004 presidential polls.
The surfacing of the tapes in June 2005 caused a serious political crisis that
almost led to the President's impeachment and spawned a number of
attempts to oust her, through people power or military plots.
About a year after the 2004 presidential elections, Press Secretary Ignacio
Bunye told reporters on June 5, 2005, that the opposition was planning to
destabilize the administration by releasing an audiotape of an alleged
mobile phone conversation between the President and a high-ranking
election official. The audiotape was allegedly obtained by wiretapping.
Gov't warning
On June 9, 2005, Gonzalez warned that the government would go after
media organizations found to have caused the spread, the playing and the
printing of the contents of the tape. He said he would start with INQ7.net,
the joint website of the Inquirer and the GMA 7 television network, which
posted excerpts of the tape on the Internet.
Two days later, the NTC came out with a press statement warning all radio
and TV stations that airing the tapes shall be considered just cause for the
suspension, revocation and cancellation of their franchises and licenses to
operate.
Chavez filed a petition asking the court to nullify the orders, alleging that
the actions of Gonzalez and the NTC violated the freedom of expression
and of the press and the right of people to information on matters of public
concern.
The majority justices said that a governmental action that restricts
freedom of speech or of the press based on content should be given the
strictest scrutiny, with the government having the burden of overcoming
the presumed unconstitutionality by the "clear and present danger" rule.
The court ruled that the respondents failed to hurdle the clear and present
danger test.

"It appears that the great evil which government wants to prevent is the
airing of a tape recording in alleged violation of the Anti-Wiretapping Law,"
it said.

committed impropriety when she talked with some government officials in

relation to the result of the 2004 presidential elections.

With the failure of the respondents to offer proof to satisfy the clear and
present danger test, the court said it had no option but to uphold the
exercise of free speech and the free press.

The DOJ said that the airing of the "Hello Garci" tape is violative of Republic
Act 4200, otherwise known as the "Anti-Wire Tapping Law", which is
punishable by six years' imprisonment. (PNA) V3/PTR

The court said the evidence presented fell short of satisfying the clear and
present danger test because Bunye's statement "obfuscate[d] the identity
of the voices in the tape recording."
Copyright 2012 INQUIRER.net and content partners. All rights
reserved. This material may not be published, broadcast,
rewritten or redistributed.
http://www.inquirer.net/specialreports/hellogarci/view.php?
db=1&article=20080216-119229
=============================================
===============
Case closed on 'Hello Garci' issue
February 16, 2010 12:18 pm
By Perfecto T. Raymundo Jr.
MANILA, Feb. 16 Election lawyer Romulo Macalintal on Tuesday asserted
that the issue on the so-called "Hello Garci" tape had its closure a long
time ago.
This was the reaction of Macalintal on the statements made by some
presidentiables that once they get elected, they would call for the opening
of the investigation into the "Hello Garci" tape so that a closure will be
made once and for all.
"This issue ('Hello Garci' tape) had a closure a long time ago. I don't know
why it is being revived when there are many problems that we have to
face," Macalintal stressed.
The so-called "Hello Garci" tape allegedly contained the conversations
between an official of the Commission on Elections (Comelec), some
military officials and President Gloria Macapagal-Arroyo in connection with
the conduct of the 2004 presidential elections.
The controversy generated by the "Hello Garci" tape led to the resignation
of the so-called "Hyatt 10" who claimed that President Arroyo had

=============================================
=========================
SC Rules on Hello Garci Case
Posted: December 23, 2008
By Jay B. Rempillo
Voting 8-6, the Supreme Court today declared invalid for lack of
compliance with the publication requirement the previous Senate inquiry in
aid of legislation on the Hello Garci tapes which allegedly contained
President Gloria Macapagal Arroyos instructions to former Commission on
Elections (Comelec) Commissioner Virgilio Garcillano to manipulate in her
favor results of the 2004 presidential elections. However, the Senate may
now call for a new inquiry on the same following the publication of the
Senate Rules of Procedure in two major dailies last October.
In a 19-page decision penned by Justice Antonio Eduardo B. Nachura, the
Court, while granting the petition of retired Court of Appeals (CA) Justices
Santiago Raada and Oswaldo Agcaoili to prohibit and stop the Senate
inquiry, dismissed for being moot and academic Garcillanos petition which
had sought to prevent the playing of the tapes in the House and their
subsequent inclusion in the committee reports. The Court noted that the
recordings had been played in the House and heard by its members, and
the committee reports on the Hello Garci tapes had already been
completed.
Joining Justice Nachura were Senior Justice Leonardo A. Quisumbing and
Justices Antonio T. Carpio, Dante O. Tinga, Minita V. Chico-Nazario,
Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, and Arturo D. Brion.
Chief Justice Reynato S. Puno, who wrote a dissenting opinion, voted to
dismiss both petitions. He was joined by Justices Consuelo YnaresSantiago, Ma. Alicia Austria-Martinez, Conchita Carpio Morales, and Adolfo
S. Azcuna. Justice Renato C. Corona was on leave. Justice Ruben T. Reyes
also voted to dismiss both petitions and wrote a separate opinion.
In granting the petition, the Court held that the Senate cannot be allowed
to continue with the conduct of the questioned legislative inquiry without
duly published rules of procedure, in clear derogation of the constitutional
requirement.
The Court cited sec. 21, Art. VI of the 1987 Constitution which mandates
the publication of the rules of procedure of either the Senate or the House
of Representatives, or any of its respective committees before it may

conduct inquiries in aid of legislation. It noted that the respondent Senate

had admitted in its pleadings and even during on oral arguments that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had
been published in newspapers of general circulation only in 1995 and
2006. With respect to the present Senate of the 14th Congress, however,
no effort was undertaken for the publication of these rules when they first
opened their session.
The Court said that it had earlier ruled on a similar case citing Neri v.
Senate Committee on Accountability of Public Officers and Investigations
wherein it held that the 14th Senates failure to publish its Rules of
Procedure prior to the subject hearings, in aid of legislation in connection
with the National Broadband Network deal with China, made the said
hearings procedurally infirm.
The Court said that the respondents cannot justify their non-observance of
the constitutionally mandated publication requirement by arguing that the
rules have never been amended since 1995 and that they are published in
booklet form available to anyone for free, and accessible to the public at
the Senates internet web page. The absence of any amendment to the
rules cannot justify the Senates defiance of the clear and unambiguous
language of Section 21, Article VI of the ConstitutionThe constitutional
mandate to publish the said rules prevails over any custom, practice or
tradition followed by the Senate, it said. It added that the respondents
invocation of the provisions of RA 8792, Electronic Commerce Act of 2000,
to support their claim of valid publication through the internet was
incorrect, stressing that the law merely recognizes the admissibility in
evidence of electronic data messages and/or electronic documents but
such does not make the internet a medium for publishing laws, rules and
regulations.
In his dissent, Chief Justice Puno opined that while the ponencia cites the
Neri ruling to support its conclusion that the subject investigation cannot
be conducted without published rules, he said that the ponencia fails to
adhere to the Neri ruling. A faithful adherence of the case at bar to the
Neri ruling would yield the conclusion that the Garci tapes investigation
may be conducted even without the published Rules of Precedure
Governing Inquiries, and that only those orders and proceedings that result
in the violation of the rights of the witnesses may be considered null and
void. The ponencia, did not, however, show which orders or proceedings
resulted in this violation and, instead, made a blanket prohibition of the
conduct of the Garci tapes investigation for want of published Rules of
Prcedure Governing Inquiries, wrote Chief Justice Puno.
Chief Justice Puno said that the Court, in its decision and resolution in Neri,
did not invalidate the entire Senate investigation proceedings conducted
with the Rules of Procedure Governing Inquiries, which were not published
in the 14th Congress. It stressed that Court ruled on the issue of executive
privilege raised in said proceedings, adding that it struck down only the
Senates contempt order against former National Economic and
Development Authority (NEDA) Director General Romulo L. Neri for its
failure to comply with sec. 18 of the Rules of Procedure Governing
Inquiries, while at the same time holding these rules as constitutional

infirm for want of publication. (GR No. 170338, Garcillano v. House of

Representatives; GR No. 179275, Raada v. Senate, December 23, 2008)
=============================================
=================
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 143797

May 4, 2006

CARLITO L. MONTES, Petitioner,

vs.
COURT OF APPEALS, Sixth Division, Office of the Ombudsman,
Department of Science and Technology, Respondents.
RESOLUTION
TINGA, J.
In this Petition for Prohibition with Prayer for Temporary Restraining Order 1
under Rule 65 of the 1997 Rules of Civil Procedure, petitioner Carlito L.
Montes (Montes) seeks to prohibit the Honorable Secretary of the
Department of Science and Technology (DOST) from implementing the
suspension order2 dated 28 June 2000. The suspension order was issued in
relation to the Decision3 dated 17 January 2000 and Order4 dated 2 March
2000, both of the Office of the Ombudsman, in "Imelda D. Rodriguez and
Elizabeth Fontanilla v. Carlito L. Montes," docketed as OMB-ADM-0-980556. The assailed suspension order reads as follows:
TO: CARLITO L. MONTES
Chief, Legal Division, DOST
In compliance with the 2nd Indorsement dated 29 March 2000 from the
Office of the Ombudsman directing this Office the implementation of the
OMB Order dated 02 March 2000, in relation to OMB Decision dated 17
January 2000, wherein you were found guilty of violation of RA 4200 (THE
ANTI-WIRE TAPPING LAW) amounting to GROSS MISCONDUCT in OMB-ADM0-98-0556 entitled "Imelda D. Rodriguez and Elizabeth Fontanilla -versusCarlito L. Montes," your (sic) are hereby SUSPENDED FROM THE SERVICE
FOR ONE YEAR WITHOUT PAY EFFECTIVE JULY 16, 2000.

You are hereby directed to make the necessary turn-over/clearance of

property and monetary accountabilities and submit all pending legal work
to the Office of the Assistant Secretary for Administrative and Legal Affairs.
AS ORDERED.
Taguig, Metro Manila, June 28, 2000.
(sgd)
DR. FILEMON A. URIARTE, JR.
Secretary5
OMB-ADM-0-98-0556 is the administrative complaint filed by complainants
therein Imelda D. Rodriguez and Elizabeth Fontanilla against Carlito L.
Montes, Chief of the Legal Division of DOST, for grave misconduct and
conduct prejudicial to the best interest of service. Rodriguez and Fontanilla
alleged that on 15 July 1999, while Montes was in the process of adducing
evidence against Rodriguez and the DOST Secretary in the complaint for
misconduct he had filed against them before the Presidential Commission
Against Graft and Corruption (PCAGC), Montes produced a tape recording
of a private conversation he had had with the DOST Secretary. Montes
admitted that he had taped the conversation at the DOST Secretarys
Office without the DOST Secretarys knowledge and consent a few days
after 28 November 1993. Montes publicly played the illegal tape recording
during the hearing and subsequently marked it as Exhibit "VV." 6
During cross-examination, Montes likewise admitted that he had also
recorded a private conversation he had with Fontanilla at the DOST Office
in Taguig sometime in November 1997. This was without the knowledge
and consent of Fontanilla.7
Moreover, in two (2) missives8 Montes sent Pedro A. del Rosario, Jr., the
former mentioned the existence of the tape recordings he had made of his
conversations with other people. Sometime in June 1998, Montes even replayed for Eduardo Langara the taped conversations he had with Secretary
William G. Padolina and Fontanilla. In addition, PCAGC Prosecutor Mariano
C. Quintos, Jr., stated in his affidavit dated 30 April 1998 that Montes
submitted to him the tape recordings of Montes had made of his
conversations with Fontanilla.9
The Ombudsman found Montes guilty of grave misconduct and suspended
him for one (1) year without pay. The Ombudsman held that Montes taping
of his conversations with Fontanilla was prohibited by R.A. 4200, the Anti-

Wiretapping Law. Montes did not deny that he made the recording without
the Fontanillas consent.10
In an Order11 dated 2 March 2000, the Ombudsman denied Montes motion
for reconsideration and affirmed the Decision dated 17 January 2000.
Hence, Montes filed a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure with prayer for temporary restraining order before
the Court of Appeals, docketed as C.A.-G.R. SP No. 58267.1avvphil.net
The Court of Appeals dismissed outright Montes petition in a Resolution 12
dated 4 May 2000 for being procedurally infirm. Specifically, the appellate
court noted that Montes failed: a) to state the specific date when he
received a copy of the Ombudsmans Decision; b) to attach duplicate
originals or certified true copies of the challenged Decision and Order; and
c) to provide an explanation why the copy of his petition was not served
personally upon therein respondent DOST Secretary.
On motion for reconsideration, however, the appellate court issued a
Resolution13 dated 22 June 2000 requiring the Ombudsman to file his
comment. Notably, the appellate court considered Montes motion for
reconsideration abandoned in a Resolution dated 8 August 2000, in view of
the commencement of the instant petition.14
Meanwhile, on 28 June 2000, the DOST Secretary issued the assailed
suspension order.
Montes now argues in his petition before the Court that the implementation
of the suspension order is premature considering the pendency of his
petition before the appellate court. Citing Lapid v. Court of Appeals,15 he
further states that there is no law or provision in R.A. 6770, 16 the
Ombudsman Law, or in Administrative Order No. 717 mandating the
immediate execution of the Ombudsmans decision in an administrative
case where the penalty imposed is suspension for one (1) year. Moreover,
he asserts that the administrative complaint, which is for a violation of R.A.
4200, is cognizable by the regular courts considering the imposable
penalty. Finally, he complains that he was convicted of the alleged wiretapping by mere substantial evidence which is short of the quantum of
evidence required for conviction of a criminal offense.18
In their Comment19 dated 18 October 2000, the Ombudsman and the
DOST, through the Solicitor General, assert that the filing of the instant
petition is a violation of the proscription against forum-shopping. Further,
they argue that the execution of the suspension order despite the

pendency of an appeal is allowed under Section 7 of Administrative Order

No. 14-A-00.20
In his Memorandum21 dated 16 January 2001, Montes reiterates his
previous submission that the Ombudsman should not have proceeded to
hear the administrative complaint considering that an Information 22 had
already been filed against him before the Regional Trial Court of Pasig City,
Branch 168.
The Ombudsman and the DOST, on the other hand, restate in their
Memorandum23 dated 19 January 2001 that the filing of the instant petition
constitutes forum-shopping. Moreover, Montes failed to raise any valid
reason which would warrant the issuance of a temporary restraining order
or a writ of prohibition. Finally, they contend that a prohibitory injunction is
not proper as the act sought to be restrained is already fait accompli.
The pivotal issue here is whether Montes is entitled to the issuance of a
writ of prohibition enjoining the DOST Secretary from enforcing the
suspension order.
At the outset, we find that Montes transgressed the proscription against
forum shopping.
There is forum shopping when a party seeks to obtain remedies in an
action in one court, which had already been solicited, and in other courts
and other proceedings in other tribunals. Forum shopping is also the act of
one party against another when an adverse judgment has been rendered
in one forum, of seeking another and possibly favorable opinion in another
forum other than by appeal or the special civil action of certiorari; or the
institution of two or more acts or proceedings grounded on the same cause
on the supposition that one or the other court would make a favorable
disposition.24
Forumshopping is an act of malpractice, as the litigants trifle with the
courts and abuse their processes. It is improper conduct and degrades the
administration of justice. If the act of the party or its counsel clearly
constitutes willful and deliberate forum-shopping, the same shall constitute
direct contempt, and a cause for administrative sanctions, as well as a
ground for the summary dismissal of the case with prejudice. 25
In the case at bar, when Montes filed the petition for prohibition
against the suspension order on 19 July 2000, his motion for
reconsideration of the dismissal of his petition for certiorari was

still pending before the appellate court. In fact, in a Resolution26

dated 22 June 2000, the Court of Appeals directed the Ombudsman to file
his comment indicating that Montes motion for reconsideration has not
been fully resolved.
Montes petition for certiorari prayed, among others, that the appellate
court issue an order "restraining the Honorable Secretary, Department of
Science and Technology from implementing the Order dated 02 March
2000."27 Montes motion for reconsideration likewise prayed that "(t)he
implementation of the suspension for one year from the service without
pay of the herein petitioner be restrained (subject of the assailed OMB
Decision and Order). . ."28 In the present petition, Montes prays that "(a)n
order be issued to restrain the Honorable Secretary, DOST from
implementing the Suspension Order on the herein petitioner."29
Clearly, the relief sought from the appellate court is the same as the relief
prayed for in the present petitionthat is, that an order be issued
restraining the DOST Secretary from implementing the Ombudsmans
Order. In filing the instant petition without awaiting the resolution of his
pending motion before the appellate court, Montes asked for simultaneous
remedies in two different fora. This act is censurable and serves as a
ground for the dismissal of the instant case with prejudice.
Moreover, we find that Montes failed to adequately show that there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary
course of law to warrant the issuance of a writ of prohibition.
For a party to be entitled to a writ of prohibition, he must establish the
following requisites: (a) it must be directed against a tribunal, corporation,
board or person exercising functions, judicial or ministerial; (b) the tribunal,
corporation, board or person has acted without or in excess of its
jurisdiction, or with grave abuse of discretion; and (c) there is no appeal or
any other plain, speedy, and adequate remedy in the ordinary course of
law.30
A remedy is considered plain, speedy and adequate if it will promptly
relieve the petitioner from the injurious effects of the judgment or rule,
order or resolution of the lower court or agency. 31
When the DOST issued the assailed suspension order on 28 June 2000,
Montes motion for reconsideration was still pending before the appellate
court. Montes thus had the remedy of filing a petition for prohibition before
the appellate court as an incident of the petition for certiorari and motion

for reconsideration he had previously filed therewith. Had Montes brought

the instant petition before the Court of Appeals, the same could, and
would, have been consolidated with his petition for certiorari, thereby
bringing under the competence of the said court all matters relative to the
action, including the incidents thereof.
Evidently too, Montes disregarded the doctrine of judicial hierarchy which
we enjoin litigants and lawyers to strictly observe as a judicial policy. For
this reason, the instant petition should be dismissed. As we ruled in
Vergara, Sr. v. Suelto,32to wit:
The Supreme Court is a court of last resort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental
charter and immemorial tradition. It cannot and should not be burdened
with the task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs should be exercised
only where absolutely necessary or where serious and important reasons
exist therefor. Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some
reason or another, are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of the
Court of Appeals or a Regional Trial Court, it is in either of these courts that
the specific action for the writs procurement must be presented. This is
and should continue to be the policy in this regard, a policy that courts and
lawyers must strictly observe.33

In this regard, the Court notes that Montes implicitly confirmed that he
committed forum shopping by stating that he had to file the instant
petition before this Court in view of the denial of his motion for
reconsideration before the appellate court. Montes failed to consider that
the same implementation of the suspension order which impelled him to
abandon his motion for reconsideration also rendered the instant petition
academic.
As the present petition is one for prohibition which is a preventive remedy,
worthy of note is the fact, as manifested by the petitioner himself, that the
suspension order has already been implemented on 17 July 2000. 35 The act
sought to be enjoined having taken place already, there is nothing more to
restrain. Thus, the instant petition has been unmade as a mere subject
matter of purely theoretical interest. Prohibition, as a rule, does not lie to
restrain an act that is already fait accompli.36
WHEREFORE, in view of the foregoing, the instant Petition for Prohibition is
DISMISSED.
SO ORDERED.
=============================================
=============
About Me
Name: Edwin Lacierda

The Courts original jurisdiction to issue writs of certiorari, prohibition,

mandamus, quo warranto, habeas corpus and injunction is not exclusive. It
is shared by this Court with the Regional Trial Courts and the Court of
Appeals. This concurrence of jurisdiction however should not be taken to
mean that the parties have an absolute, unrestrained freedom of choice of
the court to which they will file their application or petition. There is an
ordained sequence of recourse to courts vested with concurrent
jurisdiction, beginning from the lowest, on to the next highest, and
ultimately to the highest. This hierarchy is determinative of the venue of
appeals, and is likewise determinative of the proper forum for petitions for
extraordinary writs. A direct invocation of the Supreme Courts original
jurisdiction to issue these writs should be allowed only when there are
special and important reasons therefore, clearly and specifically set out in
the petition. This is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Courts time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to
prevent the further clogging of the Courts docket.34

Location: San Juan, Metro Manila, Philippines

Tuesday, December 13, 2005
Garci Tapes - In Aid Of Legislation
Are They Covered By R. A. No. 4200?
(This extended research was submitted to my Palace friends and
the Opposition prior to the Remulla hearings of the Garci tapes)
INTRODUCTION
From the moment intercepted and recorded cellular phone conversations
between Commissioner Garcillano and other political personalities were
publicly aired over TV and radio, most everybody concluded that the Garci
Tapes (for brevity) were in violation of Republic Act No. 4200, otherwise
known as the Anti-Wiretapping Act which was passed on 19 June 1965. But
are they really in violation?
The conclusion reached herein is that the Garci tapes which contained

recorded cellular phone conversations between Commissioner Garcillano

and other personalities are not covered by Section 1 of R. A. No. 4200. The
conclusion finds legal bases under Philippine jurisprudence as well as
American laws and decisions of the Supreme Court of the United States.

c.3 Communicates the contents thereof, either verbally or in writing, or to

furnish transcriptions thereof, whether complete or partial, to any other
person;
ISSUE

This study is in aid of legislation and hopes to enrich the discussion on

Republic Act No. 4200 in order to keep it abreast of technological
developments and for that reason, to amend the law as may be necessary
to cope with advances of modern telecommunications and to put
necessary constitutional safeguards.
R. A. No. 4200
Under R. A. No. 4200, Section 1 provides the punishable offenses, to wit:
"Section 1. 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 walkietalkie or tape recorder, or however otherwise described;
It shall be unlawful for any person, be he a participant or not in the act or
acts penalized in the next preceding sentence, to knowingly possess any
tape record, wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either before or
after the effective date of this Act in the manner prohibited by this law; or
to replay the same for any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any other person: Provided, that
the use of such record or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses mentioned in Section 3 hereof,
shall not be covered by this prohibition."
In Section 1, the following are the instances where the crime of wiretapping
is committed:
a. A person, not authorized by the parties, taps, by wire or cable their
private communication or spoken word;
b. A person, not authorized by the parties, uses any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word;
c. A person, whether a party to the private communication or spoken word
or not, who:
c.1 knowingly possesses any tape record, wire record, disc record, or any
other such record, or copies thereof;
c.2 Replays the same for any other person or persons;

Whether or not the Garci tapes constitute a violation of Republic Act No.
4200?
CONCLUSION
It is submitted that the Garci tapes which are a recording of cellular phone
conversations of Commissioner Garcillano with other personalities are not
in violation of Republic Act No. 4200.
RATIO
As provided in Sec. 1 of R. A. No. 4200, the first instance of the crime of
wiretapping is committed when a person illegally taps a wire or cable. In
other words, one who illegally taps a telephone line is guilty of the crime.
But conventional wisdom overlooks the fact that cellular phones are
neither wire nor cable-based. Cellular phones do not operate by wires or
cables. Moreover, Republic Act No. 4200 was passed on 19 June 1965 or
long before the invention of cellular phones. Even the Senate
Congressional Records of the debates where the late great Senator Lorenzo
Taada defending the proposed bill and jousting with fellow learned solons
Senators Jose Diokno and Ambrosio Padilla showed no allusion to cellular
phones since they were obviously not in existence at the time. Since
cellular phones are wireless or cable-less, they do not fall under the first
instance. Therefore, a person who "taps" a cellular phone conversation is
not guilty of the first instance.
However, some may say that recorded cellular phone conversations are
still covered by the second instance since a "device or arrangement" was
employed to secretly overhear and record private communications. Our
Supreme Court does not agree and in fact, spelled out the meaning of
"device or arrangement".
In the case of Edgardo Gaanan v. Intermediate Appellate Court, et
al. (G. R. No. L-69809, 16 October 1986), the Supreme Court, when
deciding whether a telephone extension is a device covered by R. A. No.
4200, had occasion to define "device or arrangement" in this manner:
An extension telephone cannot be placed in the same category as
a dictaphone, dictagraph or the other devices enumerated in
Section 1 of RA No. 4200 as the use thereof cannot be considered
as "tapping" the wire or cable of a telephone line. The telephone
extension in this case was not installed for that purpose. It just happened
to be there for ordinary office use. It is a rule in statutory construction that
in order to determine the true intent of the legislature, the particular

clauses and phrases of the statute should not be taken as detached and
isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts. (see Commissioner of
Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113, 120).
In the case of Empire Insurance Company v. Rufino (90 SCRA 437, 443444), we ruled:
"Likewise, Article 1372 of the Civil Code stipulates that `however general
the terms of a contract may be, they shall not be understood to
comprehend things that are distinct and cases that are different from those
upon which the parties intended to agree.' Similarly, Article 1374 of the
same Code provides that 'the various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones that sense which may
result from all of them taken jointly.'
xxx xxx xxx
"Consequently, the phrase `all liabilities or obligations of the decedent'
used in paragraph 5(c) and 7(d) should be then restricted only to those
listed in the Inventory and should not be construed as to comprehend all
other obligations of the decedent. The rule that `particularization
followed by a general expression will ordinarily be restricted to
the former' is based on the fact in human experience that usually
the minds of parties are addressed specially to the
particularization, and that the generalities, though broad enough to
comprehend other fields if they stood alone, are used in contemplation of
that upon which the minds of the parties are centered. (Hoffman v. Eastern
Wisconsin R., etc., Co., 134 Wis. 603, 607; 115 NW 383, cited in Francisco,
Revised Rules of Court (Evidence), 1973 ed., pp. 180-181."
Hence, the phrase "device or arrangement" in Section 1 of RA No.
4200, although not exclusive to that enumerated therein, should be
construed to comprehend instruments of the same or similar
nature, that is, instruments the use of which would be tantamount
to tapping the main line of a telephone. It refers to instruments whose
installation or presence cannot be presumed by the party or parties being
overheard because, by their very nature, they are not of common usage
and their purpose is precisely for tapping, intercepting or recording a
telephone conversation." (emphasis supplied)
Applying the principle of ejusdem generis which provides that "where
general words follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not to be
construed in their widest extent, but are to be held as applying only to
persons or things of the same kind or class as those specifically
mentioned" (RP v. Migrio, G. R. No. 89483, 30 August 1990), the
Supreme Court narrowed the definition of "device or arrangement" to
instruments which could tap a telephone line. Therefore, conversely under
the Gaanan definition, a device or arrangement which seeks to overhear
cellular phone (which are neither wire nor cable-based) conversations are
clearly not covered by R. A. No. 4200.

The Gaanan decision is the logical consequence of zeitgeist. It must be

noted the Supreme Court took judicial notice that when Senate Bill No. 9,
which later became R. A. No. 4200, was being debated in 1964, telephone
extensions were already in wide use. In fact, debates on the floor ensued
on whether overhearing through a telephone party line was punishable.
And yet, the final bill did not include telephone party lines. If a telephone
party line which was already in vogue was excluded from the enumeration
of "device or arrangement", how can we justify the inclusion of cellular
phones as covered by the law when they were not even invented in the
first place? And how can we justify the inclusion of any device to record or
overhear cellular phones when the great senators of our Republic never
even dreamt of telecommunications equipment which will not require the
appendage of wire or cable?
R. A. No. 4200 did not and could not have anticipated the rise of cellular
phones. To be quite technical, wire-tapping a cellular phone is an oxymoron
because at the risk of being redundant, there is no wire or cable to tap on a
cellular phone. The proper term applicable to tapping cellular phone
conversations is intercepts.
It is axiomatic in substantive criminal law that penal statutes must be
construed strictly in favor of the accused. Thus, if any doubt exists as to
the applicability of R. A No. 4200 on cellular phone recording as a forbidden
act, the doubt must be resolved in favor of the accused.
We can further appreciate the non-applicability of R. A. No. 4200 in the
light of American experience on wire-tapping.
Brief U.S. History on Wiretapping
The first case of wiretapping in the United States was the celebrated case
of United States v. Olmstead (277 U.S. 438 [1928])) where Federal
prohibition agents wiretap a telephone conversation between Olmstead
and his lawyer. The Supreme Court ruled that the evidence obtained
through wiretap was admissible because there was no physical intrusion
into either the home or office of the defendant but however suggested that
Congress can protect the protect the secrecy of the telephone
conversations by making them inadmissible under certain circumstances.
As a result, the US Congress passed the Communications Act of 1934 and
in one of its sections, prohibited the intercept of communications and
disclosing the communication unless authorized by the sender.
In 1968, responding to several Federal Supreme Court decisions on the
admissibility of evidence of wiretapped communications, the US Congress
passed the Federal Wiretap Act that prohibited the willful intercept of wire
(primarily telephone) or oral communications. However, with new
technology, the definition of oral or wire communication under the Federal
Wiretap Act led the courts to struggle whether portable telephones and
mobile telephones (cellular phone predecessor) were covered under the
Federal Wiretap Act. To solve the seeming vacuum, Congress passed the

Electronic Communication Privacy Act of 1986 which amended the Federal

Wiretap Act and specifically included cellular phone conversations within
the prohibition. And in 1994, the Communications Assistance for Law
Enforcement Act further amended the Federal Wiretap Act and prohibited
the unauthorized intercept of the broadcast portion of portable or cordless
telephone conversations.
As a result of these amendments, the US Supreme Court, in the case of
Bartnicki v. Vopper (532 U. S. 514 [2001]), ruled that respondents were
guilty of disclosing the unauthorized intercepts of cellular phone
conversations although the Court ruled that the statutes violated the First
Amendment clause or the free speech clause of the US Constitution
because the matters discussed in the cellular phone conversations were
matters of public interest.

As a necessary consequence thereof, one may be argue that since the

intercepts of cellular phone conversations are not covered by the
prohibition in the law, the tapes may be received in evidence subject to the
procedural rules on admissibility of evidence.
This study is merely limited to the applicability of R. A. No. 4200 to cellular
phone conversations. In the light of wireless technology and advances in
telecommunications, the law, as presently worded, is woefully outmoded
and is in dire need of revision. Otherwise, we will be in the same situation a
few years back when the NBI could not prosecute the creator of the Love
Bug virus that wreak havoc all over the Internet because there was no law
covering property destruction on the Internet.
Proposed Legislative Measures

Presently, the US Congress has tried to keep abreast with developments in

modern communications such electronic email, voice mail etc. More so
with a post 9/11 atmosphere and the passing of the US Patriot Act,
wiretapping and surveillance have become necessary tools in the fight
against crime and terrorism.
Our Experience
Contrasted with the U.S. evolution of wiretapping laws as well as the
expansion of subjects that were covered by subsequent amendments, the
Philippines has largely left R. A. No. 4200 untouched. And if one considers
the dilemma of US Congress over the definition of wire or oral
communication and the subsequent inclusion of cellular phones as a
prohibited medium in 1986, one can leave with a conclusion that cellular
phones and intercepts of their conversations were clearly not covered or
anticipated by R. A. No. 4200.

It is recommended that in the light of rapid advances in wireless

technology, telecommunications equipment and the like, R. A. No. 4200
must be revisited and re-examined to update itself with present
technology, their definitions, and the scope of the laws prohibited
coverage. Moreover, it is further recommended that taking into
consideration the American experience and a wealth of jurisprudence on
wiretapping and surveillance, safeguards be put in place to prevent any
abridgment of any constitutional rights of the persons sought to be
investigated. In that way, we can ensure that wiretapping and electronic
surveillance will not be abused and that acts that ought to be covered by
the law can be proscribed without fear or doubt by enforcement officials or
by the courts of law.
http://lacierda.blogspot.com/2005/12/garci-tapes-in-aid-of-legislation.html