Privilege Speech of Senator Richard J. Gordon

On the Wiretapping Allegedly Perpetrated by Elements of the Military Under ISAFP

 

I claim the opportunity to raise a matter of personal and collective privilege this afternoon principally because of the events that occurred yesterday afternoon.

 

Yesterday, we decided to listen to a presentation by the distinguished gentleman from Cavite on a wiretapping that occurred, that was perpetrated by the elements of the military under the ISAFP.  And we agreed to pass it on to the Committee, the Senate acting as a Committee of the Whole, Mr. President. 

 

Having been disturbed by that, I asked my fellow senators and some of my staff to take a look at the provisions of the Anti-Wiretapping Law, Mr. President.  Because of that, we came out with a problem that will put the Senate into an embarrassing position, if not even abolish the Senate. 

 

Having said that, Mr. President, I would like to cite the provision of laws that are relevant to this issue: “AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATIONS AND FOR OTHER PURPOSES.”

 

Under Section 1 thereof, Mr. President, it says:

 

            It shall be unlawful for any person, not being authorized at all by the parties to any private communication or spoken word, to 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:

 

            It shall also 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 words 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  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. 

 

Section 2 thereof, Mr. President, says:

 

            Any person who willfully or knowingly does or who shall aid, permit, or cause to be any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty or perpetual absolute disqualification from public office at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.

 

Now, Section 4, Mr. President, of the same Act provides:

 

            Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. 

 

Mr. President, yesterday, we were made to see a presentation of a certain Mr. Doble, and we were made party to an act which transmitted to us or which replayed to us or which passed on to us an unauthorized wiretap which puts us into a very precarious situation as propounded for and as allowed by the law.

 

By allowing ourselves to hear this and to pass on to a committee this presentation or this tape-recording based on a wiretap, we would now be putting the Senate into an embarrassing situation.  We would be violating a law that was created by the Senate and we would be violating our own law. This will even be transgressing into the powers of the court, which should be the proper venue upon which this matter should be brought in, and this would be transgressing the separation of powers clause of the Constitution.

 

We have heard that the Human Security Act has been criticized because of the fact that there are violations or could be violations of human rights or individual rights because of the wiretapping that is allowed. 

 

Mr. President, we are going to be shown wiretaps here that were secured illegally.  Not allowed by the courts, not by permission or written order of the courts, but was taken illegally.  When we do that, we will now become a party – if those wiretaps are transmitted to us – we would now become a party to such a crime, and it says so very clearly:

 

“It shall also 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” – and we will be provided copies, I am sure – “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.”  This strikes at the very heart of individual liberties. 

 

Mr. President, the rights of certain persons have been violated admittedly on both sides of the political fence.  However, we cannot perpetrate another illegality by making the Senate violate its own law – a law that it created.  That is why it is so important for us to tarry a little because one cannot do so even in a legislative inquiry. 

 

Again, I repeat section 4 thereof:

 

            Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. 

 

And I underscore “legislative”, Mr. President. 

 

If we do so, Mr. President, we would be subjecting ourselves under the coverage of the penal provisions of this Act.  This means that we could be charged in court for a crime that has imposed a punishment of imprisonment of not less than six months or more than six years with the accessory penalty of perpetual absolute disqualification from public office. 

 

This means if we are subjected to this, there will be no more Senate because all of us would be guilty of this if we are shown this copy, if we participate in it, if we transmit it, if we replay it. It means that we will be covered by this, which means that the Senate will be practically abolishing itself. 

 

Mr. President, there are those who will say, we will nonetheless do so. In other words, we cannot seasonal in our approach of the law.  When we criticized the Human Security Act and said that it could be transgressing the rights of individuals, we should also be consistent.  Because here, a transgression of the individual rights of certain people have already been violated.  Now are we going to allow ourselves to perpetuate that violation by being exposed to the transmission we are playing, passing on or copying this so-called illicit evidence which was taken illegally, and subject us to a charge that will punish us to an imprisonment of not less than six months or not more than six years.

 

I submit that the accessory itself is rather threatening. The fact that we can all be perpetually disqualified from public office behooves us to be very careful and tarry a little before we proceed any further in this matter. 

 

Now we are supposed to be the more senior House.  There are 24 senators supposedly elected, Mr. President.  The 24 senators are supposed to be circumspect, supposed to be more intelligent, not just intelligent looking but intelligent.  We should be able to make sure that we are able to understand the law that has been written in this very, very hallowed Hall.   Now are we going to be the first to investigate, and in that investigation violate our own laws and violate the prerogatives of a court, which can now pass judgment on this violation?

 

Mr. President, again I cite Sir Thomas Moore when he was talking to Roper, and he was saying, “Well, I will cut off all the laws of England to get to the devil.”

 

Now, we are being made to be patient to a situation. We would have to cut off all the laws of the Philippines, the laws particularly against wiretapping on the use of illegally acquired evidence.  And we are now going to say, “Hey, we can do so, nonetheless.”

 

Mr. President, this Senate is the mature House.  We have been very strong on the constitutional grounds when we protected the prerogative of the Senate from intrusions by the Executive insofar as trying to limit the rights of people when they demonstrate or insofar as the rights of the Senate to be able to investigate Cabinet officials for transgressions of the law. 

 

Now it is equally the same when the Senate tries to do so.  We have seen what happened to us in the Trillanes case.  Four of us stood here on the Trillanes case, not because we did not like Senator Trillanes, in fact, we sympathize with him. I even said, that he took a lot of courage to be able to mount a coup and therefore it takes a strong dose of courage to take the consequences of his act.  But then I said, we could be embarrassed by the court and told that we cannot  interfere in a coequal branch of government by doing so.  In fact, that is exactly what happened. The court said that Mr. Trillanes could not appear here, and what does it make us look? How does it make the Senate look?

 

So today, Mr. President, my point is simply this: We cannot just refer this to any committee, especially the committee acting as a whole.  I would not even hazard Senator Biazon, because I like Senator Biazon.  If we were to investigate this, he could be disqualified from office.  Any member of the committee who receives this evidence could be disqualified.  So I am in a dilemma right now. In the case of a dilemma, then I look to the law.  When the law says that, then I go to the dictum of dura lex sed lex. It is exceedingly hard, but so the law is written.  And for so long as that law has not been amended, the majesty of the law must prevail.

 

Today, Mr. President, I rise to this important provision because we do not want to be seen as not knowing the law or as in violation of the law and also we want to make sure that the rights of all parties are respected in any investigation.  The wisdom of the previous Senate that enacted this provision was to see to it that people are protected in their homes, in their possession, including their reputation, et cetera. 

 

Now, I would like to say that I think at this point I, would like to caution the Senate as far as the investigation right now is concerned until we have settled this particular issue at hand. 

 

Thank you, Mr. President.