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Cellphones and wiretapping

I was recently interviewed by a radio station on the applicability of the Anti-Wiretapping Law on a cellphone video showing a Metro Manila Development Authority traffic enforcer attempting to fleece money —“tongpats”—from a female driver. This is the second time I was asked for my opinion on the applicability of the law. The first was when then-Justice Secretary Gonzales threatened media outfits with criminal prosecution for violation of the said law should they air the so-called Hello Garci tape.

My answer remains the same: since criminal laws are construed strictly, the law must be applied literally. Since the 1965 law’s coverage is limited to    “dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder,” a cellular video, not being among those enumerated in the law, should be excluded from its coverage.

This is not a personal opinion but based on jurisprudence. In Gaanan vs. IAC and People of the Philippines, the issue was whether the law covered the recording of a telephone conversation through a telephone extension. The Supreme Court ruled that it was not:

“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.”

Moreover, the strict interpretation given by the court the phrase “device or arrangement” is pursuant to the rule that criminal statutes shall be construed in favor of the accused. Said the Court:  Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase “device or arrangement,” the penal statute must be construed as not including an extension telephone. In the case of  People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

  The rationale for this, according to the Court quoting from American jurisprudence, is “to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.” “The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts.”

In any case, rather than chilling the people from exercising their inherent right to freedom of expression, government should be encouraging the citizenry to use new technology to run after corrupt officials. This is now an ongoing project of the American Bar Association in encouraging the use of social media as evidence. They have in fact developed an application where cellular data, photos and videos, could be utilized as evidence in court. We should replicate this initiative given that we have the highest penetration for Facebook and among the highest penetration for Twitter.

Under our existing rules on electronic evidence, such videos may be used provided the person who took the video authenticates it. Ergo, even without the application developed by the ABA, the female driver who took the video of the MMDA traffic enforcer can already use her video as evidence for extortion.

The problem again is not the availability of rules, but the lack of political will to implement our existing laws. In fact, the problem in this particular instance is the fact that the MMDA chief, instead of investigating his men, is instead, shielding his men from investigation and prosecution. On second thought, what can we expect from the same man who treated women as sex objects and as commodities to be given by way of political patronage in Laguna? Given the resolve of this administration to control both Houses of Congress in the upcoming elections, we surely have a preview of what kind of Congress we will have soon.

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After 15 years of being a law professor at the UP College of Law, I will be delivering my final lecture as a full-time academic this coming  Monday, Oct. 12  from 9 a.m. to 12 noon at the Malcolm Theater, Malcolm Hall, UP College of Law.

The lecture will be on “Criminal Jurisdiction under the Expanded Defense Cooperation Agreement: Customary International Law or under the VFA?” My last lecture will be delivered as the holder of the Manuel and Luz Chan Professorial Chair.

I have invited all my students for the last 15 years, my colleagues in the academe and in the parliament of the streets, and the general public. It will be my last lecture as a full-time academic because the Omnibus Election Code provides that I will automatically be resigned from my post in UP when I file my nomination as first nominee of KABAYAN party-list.

My column next week will also be my last in this newspaper. It will be my final column for the time being. I will bid farewell next week.

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