The Anti-Wiretapping Law

The Anti-Wiretapping Law

Republic Act 4200 is probably the most quoted law nowadays. Thus, it is worthy to examine the said law and discuss its pertinent provisions. Section 1 of R.A. 4200 entitled, An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes, provides that it shall be unlawfull 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. In Ramirez vs. Court of Appeals, [G.R. No. 93833 (Sept. 28, 1995)], petitioner Ramirez vigorously argues, that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. Finally, petitioner agues that R.A. 4200 penalizes the taping of a private communication, not a private conversation and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. The Supreme Court disagreed with the petitioner. It stated that Section 1 of R.A. 4200 clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statutes intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier any. Consequently, .even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator under this provision of R.A. 4200. The Supreme Court held further that the nature of the conversations is immaterial to a violation of the statute. It held that: The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to

constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed. Curiously, in Gaanan vs. Intermediate Appellate Court, [145 SCRA 112 (1986)], a case which dealt with the issue of telephone wiretapping, the Supreme Court held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those device(s) or arrangement(s) enumerated therein, following the principle that penal statutes must be construed strictly in favor of the accused. WHEN IS WIRETAPPING ALLOWED? Under Section 3 of R.A. 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security. Such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. INADMISSIBILITY OF WIRETAPPED EVIDENCE Section 4 of R.A. 4200 declares that 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.

Warantless Arrest
With the unfolding of events last week, many legal questions have cropped up and among these is the issue of warrantless arrests. Under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, a peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. The rationale for warrantless arrests was enunciated in the case of Valmonte vs.De Villa (1990) where the Supreme Court held that: To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances. Under Section 5(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in is presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). This is where the terms in flagrante delicto and caught in the act find application. In arrests without a warrant under Section 5(b) of Rule 113, however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the case of People v. Burgos.

In People vs. Mengote (G.R. No. 87059, June 22, 1992), the Supreme Court held that the accused acts of merely looking from side to side and holding his abdomen, do not constitute enough basis to implement a warrantless arrest. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by the accused in the presence of the arresting officers.In this case, the Solicitor General argued that the actual existence of an offense was not necessary as long as Mengotes acts created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it. The Court shot down this argument stating that no offense could possibly have been suggested by a person looking from side to side and holding his abdomen and in a place not exactly forsaken. In the same case, the Court added this caveat: It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer-could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. The case of People vs. Alvarez (1991), illustrates a warrantless arrest in accordance with Section 5(b) of Rule 113: In the instant case, it was the elder Alvarez who initiated the arrest a day after the crime was committed. Having been once a policeman, he may be said to have been equipped with knowledge of crime detection. And having had the opportunity to observe the conduct of the three Appellants, who were at his house the whole day following the commission, it is logical to infer that his act of going to the police, informing them that Appellants were the perpetrators of the crime and even fetching them to make the arrest sprang from a well-grounded belief that a crime had been committed and that Appellants had committed it. In this regard, the arrests without a warrant were validly effected. As for cases of rebellion, the case of Umil vs. Ramos (187 SCRA 311), clearly states that since rebellion is a continuing offense, a rebel may be arrested at any time, with or without a warrant, as he is deemed to be in the act of committing the offense at any time of the day or night.

Rights of a Person under Custodial Investigation

If ever youre arrested, here are a couple of things to keep in mind: Enshrined under Section 12, Article III of the 1987 Constitution are the following rights:

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. In the case of Morales, Jr. vs. Enrile, et al., the Supreme Court laid down the procedure to be followed in custodial investigations, to wit: At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means _ by telephone if possible _ or by letter or messenger. It shall be the duty of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. In addition, in the case of People vs Marra, et.al., the Supreme Court defined the meaning of custodial investigation, It held that: Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.

Also, in People vs Camat, et.al., the Court held further that: As interpreted in the jurisdiction of their origin, these rights begin to be available where the investigation is no longer a general inquiry into an unsolved crime but has began to focus on a particular suspect, the suspect has been taken into police custody, and the police carry out a process of interrogation that lends itself to eliciting incriminating statements.

Self-Defense
Our criminal laws provide for instances where a person may defend himself and not be prosecuted for what would normally be a criminal action. Under Section 1, Article 11 of the Revised Penal Code of the Philippines, the following do not incur any criminal liability: Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. The justifying circumstance of self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. (People v. Nacuspag, 115 SCRA 172 [1982]) Where the accused has admitted that he is the author of the death of the deceased, it is incumbent upon the appellant, in order to avoid criminal liability, to prove this justifying circumstance (self-defense) claimed by him, to the satisfaction of the court. To do so, he must rely on the strength of his own evidence, and not on the weakness of the prosecution for even if it were weak, it could not be disbelieved after the accused admitted the killing. It is basic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself. We shal now discuss the following requisites in detail: A. Unlawful Aggression: Unlawful aggression presupposes an actual or imminent danger on the life or limb of a person. Mere shouting, intimidating or threatening attitude of the victim, assuming that to be true, does not constitute unlawful aggression. Real aggression presupposes an act positively strong, showing the wrongful intent of the aggressor, which is not merely a threatening or intimidating attitude,

but a material attack. Examples are the pointing of a gun or the brandishing of a knife or other deadly weapon. B. Reasonable necessity of the means employed: Whether the means employed is reasonable or not, will depend upon the kind of weapon of the aggressor, his physical condition, character, size, and other circumstances as well as those of the person attacked and the time and place of the attack. Although a knife is more dangerous than a club, its use is reasonable if there is no other available means of defense at the disposal of the accused. C. Lack of sufficient provocation on the part of the person defending himself: Sufficient means proportionate to the damage caused by the act, and adequate to stir one to its commission. Imputing to a person the utterance of vulgar language is sufficient provocation. This element refers to the person defending himself and is essentially inseparable and co-existent with the idea of self-defense. Share on facebookShare on twitterShare on emailShare on printMore Sharing Services