[ANALYSIS | Deep Dive] The problems with the list
The President loves his list, which is presumably a list of names of those supposedly involved in the illegal drug trade.
“Presumably,” because no one, other than the President and a small cohort has seen it, and “supposedly,” because until cases are filed in court and judgments secured against those on the list, it is way too early to say that those on the list are “involved” in the illegal drug trade. These and other sticking points, such as the presumption of innocence, the right to due process, and defamation, have not prevented the President from referencing the list from the earliest days of his presidency.
Now, the list is about to be made public, but not as the basis for criminal charges arising from their supposed involvement in the illegal drug trade but as a partisan campaign designed to favor the administration’s candidates. There are problems – a lot of them – with the President’s list and with the disclosure of the names on the list within the background of the elections.
This week’s Deep Dive is into the President’s list and the problems that come with the list and the threatened disclosure of the names on the list.
That the President has a list is old news. What's new is the admission of the President’s acting spokesperson, who is also the Chief Presidential Legal Counsel, that the list came from wiretaps conducted by an undisclosed foreign government.
This violates Republic Act No. 4200, more commonly known as the Anti Wire-Tapping Law. (See box below)
REPUBLIC ACT NO. 4200 | SEC. 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 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 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.
SEC. 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done 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 of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.
The law punishes any person who aids, permits, or allows the prohibited wiretaps. This would include foreign agents as well as Filipinos, whether public officials or private entities, who aid, permit, or allow the wiretaps without authorization and/or consent. Even if the wiretaps were made abroad, those who assisted would still be liable.
The admission of foreign intervention makes it incumbent on the Philippine government to disclose fully the participation of these foreign agents, even if it were not for the purpose of charging them criminally.
If the wiretapping is done electronically and through the use of a computer system, then Republic Act No. 10175 or the Cybercrime Protection Act of 2012 is breached. RA 10175 defines as “interception” in section 3(m) the act of “listening to, recording, monitoring, or surveillance of the content of communications ….through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.” In section 4(a)(2) of RA 10175, “(t)he interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data” is a cybercrime.
Fruit of the poisonous tree
The 1987 Constitution guarantees in Article III, Section 3 the inviolability of “privacy of communication and correspondence” save upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law, i.e., RA 4200.
The consequence of an unauthorized intrusion into the privacy of communication is that “any evidence obtained...(is) inadmissible for any purpose in any proceeding.”
Therefore, the contents of the list that arose out of unauthorized foreign or domestic surveillance, wiretapping, or electronic eavesdropping in violation of Article III, section 3, RA 4200 and RA 10175 are inadmissible. They cannot be used even to form the basis of a charge.
This would explain why there is no mad rush on the part of the government to charge people whose names are supposedly on the list. Filing cases would make the list and the sources thereof fair game to compulsory process and compel a validation of the sources.
Apparently feeling the heat, Mr. Panelo is now walking back his statement that the source of the names on the list were foreign agents; this, after the Secretary of Justice himself took cognizance of the supposed source by opining that any evidence obtained from foreign spying would be inadmissible.
Simply another order of battle
Whatever the sources of the intelligence that led to the inclusion of the names on the list, it cannot be denied that the list is simply another “Order of Battle.”
An “Order of Battle”, which is defined in RA 10353 or the Anti-Enforced or Involuntary Disappearance Act of 2012, is “a document made by the military, police or any law enforcement agency of the government, listing the names of persons and organizations that it perceives to be enemies of the State and which it considers as legitimate targets as combatants that it could deal with, through the use of means allowed by domestic and international law.” (Section 3(c), RA 10353).
Under section 5, an “order of battle or any order of similar nature, official or otherwise, from a superior officer or a public authority [when used in relation to enforced disappearances] is unlawful and cannot be invoked as a justifying or exempting circumstance. Any person receiving such an order shall have the right to disobey it.”
It is defined in a similar manner in RA 9745 or the Anti-Torture Act of 2009. There, it is also characterized as unlawful and not justifying any act of obedience to the “Order of Battle.”
There is no specific law declaring all “orders of battle” unlawful but these two laws (RA 10353 and RA 9745), with their uniform treatment of “Orders of Battle” as unlawful and unjustifiable, provide a clear idea of how “Orders of Battle” are treated in law.
At the very least, they should put on notice anyone who might be compelled to uncritically accept the supposed narco-list and act on it. – Rapppler.com
Theodore Te, Ted to many, is a human rights lawyer and advocate, law educator, font geek and comic book fan, occasional movie and music reviewer, a life-long Boston Celtics fan and a loud opponent of the death penalty, violations of human rights, government abuse, and social injustice. Deep Dive is his attempt at probing into issues of law and rights, politics and governance (and occasionally entertainment and sports) beyond the headlines, the sound bites, the spin, and the buzz.