LEGAL MEMORANDUM ON THE ISSUE OF

WHETHER REP. ANTONIO TINIO VIOLATED THE ANTI WIRETAPPING LAW

By Bayan Muna Rep. Neri Javier Colmenares


Introduction

ACT Teachers PartyList Rep. Antonio Tinio filed an impeachment complaint
against Pres. Benigno S. Aquino using as evidence the recorded proceedings of the
House Committee on Appropriations hearing regarding the problems of members of
the House of Representatives in accessing the scholarship slots allotted for them
through the CHED budget in the 2014 General Appropriations Act.

In this hearing, CHED Sec. Patricia Licuanan, a member of the Aquino Cabinet,
discussed how each congressman can access the P14 Million allotted for his PDAF
for the scholars he selected.

Another set of evidence consisted of the recorded briefing where DOH Usec. Janet
Garin discussed how members of Congress can access funds allotted for each
congressman for medical assistance of their constituents under the DOH Budget in
the 2014 GAA.

It must be noted that the Supreme Court declared unconstitutional PDAF or any
similar funds which grant legislators the power to wield any form of post-enactment
authority in the budget implementation including the selection of projects or selection
of beneficiaries. Beneficiaries mean recipients of medical assistance or
scholarships selected by members of Congress. PDAF or similar types of pork barrel
funds have not only been used for patronage politics but also as a source of graft and
corruption through fake projects or beneficiaries.

Rep. Tinio was recently threatened with an ethics complaint for violation of
Anti-Wiretapping Law. It must also be noted that former Pres. Gloria Arroyo used the
same tactic to threaten the opposition during the Hello Garci scandalby using the
wiretapping law against the whistleblowers and the people in general.

ISSUE: Whether or not Rep. Tinio violated RA 4200 or the Anti Wiretapping Law
for recording and publishing the contents of the above mentioned hearings.

ANSWER : NO, there was no violation of RA 4200.


Discussion

Rep. Tinio or anyone using or possessing the recorded hearing did not commit any
violation of RA 1400 because the said hearings or briefings are excluded fromthe ambit
of the law and were not the private conversations the wiretapping of which is prohibited
under the wiretapping law.

Section 1 of RA 4200 provides that 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.

The same section also prohibits a person from knowingly possessing or using said
recording.
The Usec. Garin Briefing

The briefing by DOH Usec. Garin ostensibly on the implementation of the DOH budget
for 2014 could not by any stretch of imagination be considered a private
conversation. It was attended by members of Congress, and even legislative staff of
the various offices as notices were given to all the offices before the said briefing
was held. In fact, no one is raising the issue of executive session in this hearing
because this is practically a public hearing.

The Sec. Licuanan Hearing

Similarly, the Licuanan hearing on CHED scholarships could not by any stretch
of imagination be considered a private conversation. The hearing conducted by the
Committee on Appropriations with members of Congress and an Aquino cabinet
member was not a private conversation secretly held in a private place discussing a
private matter. It was a discussion between public officials, on the allocation of public
funds, in a public place and no court of law will declare this otherwise. The
congressional deliberations on RA 4200 proves this point:

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as
now worded, if a party secretly records a public speech, he would be penalized under
Section 1? Because the speech is public, but the recording is done secretly.

Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person [that is protected by the law]
xxx. (Congressional Record on the deliberations of RA 4200, Vol. III, No. 33, p. 626,
March 12, 1964)

Pres. Arroyo used the same threats of prosecution under the wiretapping law against
those who exposed the Hello Garci tapes. This was resolved against Pres. Arroyo
by the Supreme Court in the case of Chavez vs. Raul Gonzales, GR 168338, 15
February 2008)
Citing a "possible violation" of the anti-wire tapping law, the NTC issued a "fair
warning" PR to prevent media outfits from airing the Garci tapes. The SC waved the
argument aside, saying, The airing of the Garci Tapes does not violate the right to
privacy because the content of the Garci Tapes is a matter of important public
concern. The Constitution guarantees the peoples right to information on matters of
public concern.

The claim that it was an executive session is also without legal and factual basis
especially since under the Rules of the House, sessions or hearings should be public in
nature.

Firstly, why should a discussion on scholarships be considered an executive
session? Unless those who attended intend to commit an illegal act, those who claim
the defense of executive session cannot explain or justify why the said Licuanan
Hearing should be an executive session in the first place. In fact, Sec. Licuanan in her
August 12, 2014 statement publicly declared that There was nothing clandestine
about the subject which means there was no basis for an executive session. It must
be added that, if an illegal act did take place in the hearing, any motion to declare this
as an executive session is void since this privilege cannot be used to hide or cover up a
crime or an illegal act.

Secondly, the issue in the Licuanan hearing cannot be deemed an executive session
because there is no rule that allows for the same. Nowhere in the House Rules is a rule
that allows for transforming a public hearing into an executive hearing because it will
discuss issues related to CHED scholarships.

Even if we allow those who attack Cong. Tinios integrity to use Rule 7 of the Rules on
Inquiries in Aid of Legislation, the same cannot pass muster because the hearing does
not involve the only ground under that rule: national security. Rule 7 provides that If the
committee or subcommittee deems that the examination of a witness in a public
hearing may endanger national security, it shall conduct the examination in an executive
session, and shall make a determination of the necessity or propriety of conducting
further examination of such witness in a public hearing.

Clearly, there was nothing on the issue of scholarships that will threaten the security
of the State. Furthermore, Sec. Licuanan was not a witness who will be discussing
state security issues but a cabinet member discussing the allocation of presidential
pork barrel given to congressmen in her agencys budget. Unless Pres. Aquino admits
to committing an illegal act and the publication of such endangers the security of his
administration, no amount of assertion fromthe Aquino allies in Congress will justify the
proceedings to be of the nature of an executive session.

Similarly, House Rule 81 on executive privilege is not applicable especially since the
hearing was not a plenary session nor does it involve national security or dignity of
the House or its members. House Rule 81 on executive sessions provides that
Sessions shall be open to the public. However, when the security of the State or the
dignity of the House or any of its members are affected by any motion or petition being
considered, the House may hold an executive session.

The Licuanan hearing was discussing pork barrel, not any motion or petition that
affects national security or the dignity of the House in a plenary session. Unless House
members admit that the hearing involves an illegal act on their part and therefore taints
their dignity, the hearing will never qualify as an executive session.

There is the problem, therefore, for those who claim that Rep. Tinio violated the
wiretapping law. They can only claim that it is an executive session if they admit to
an illegal act. But even then, the said session will not be considered by the court as an
executive session because the privilege cannot be used to commit or cover up a crime
or an illegal act.

Parliamentary privilege does not attach to non-parliamentary activity. Liberty, Privacy
and Dignity interests are the values protected by the search and seizure right the plain
meaning and purpose and scheme of RA 4200 will not support a criminal prosecution
that does not impinge on these interests.

There is, therefore, no way that Rep. Tinio can be liable for a violation of a House Rule
or any law for that matter. In fact, his act is a great service to the public because it
exposes the continuing existence of PDAF and the presidential pork barrel which has
drained billions of public funds and deprived the poor of the basic social services they
need. It also brings to the fore the culpability and accountability of Pres. Benigno
Aquino in maintaining the pork barrel system that was declared illegal and
unconstitutional in his attempt to exercise control over Congress.

The member of the so called Party List Coalition who threatened Rep. Tinio with an
ethics case has practically exposed himself as the voice of Malacanang and not the
voice of the marginalized and underrepresented who they claim to represent. Instead
of supporting the revelation of the pork barrel that has been the subject of corruption
and resulted in depriving the poor of funds for basic social services, he stood in
support of pork barrel. He continues to insist that public funds should not go directly to
the people but should pass through him and other members of Congress. This is a
betrayal of the people that must be condemned by the public and the-anti pork barrel
groups. In fact, the people should be outraged on the fact that a selfless act of
exposing a major source of graft and corruption by Rep. Tinio is being silenced by a
threat of sanctions.

Pres. Aquino is the accountable public official here because he persisted in
implementing the PDAF and the pork barrel system which was not only declared
unconstitutional by the Supreme Court but has been a major source of corruption and
patronage politics with the aim of violating the separation of powers by imposing his
will on Congress.

Use of Evidence

The recorded hearings can be used as evidence in the proceedings against Pres.
Aquino whether in an impeachment complaint, an ombudsman case or a petition before
the Supreme Court. These evidence can drive home the culpability and accountability
of Pres. Aquino in perpetuating a system declared illegal by the Supreme Court.

Additionally these same evidence may be used by the people or the abolish pork
groups in filing a case before the Ombudsman against any member of Congress or a
member of the Party List Coalition who is proven to have persisted in the use of pork
barrel funds and committed illegal acts.