In the interest of fairness and balanced discussion, I am reproducing the following statement of GSIS Vice President Ella Valencerina in italics concerning the anti-wire tapping case she filed against ABS-CBN journalist and Probe anchor Chehe Lazaro:
“When the Pasay City Court issued a warrant of arrest against Ms. Cheche Lazaro, I initially opted not to issue a statement. I thought there was nothing more to say except, perhaps, to let the wheels of justice take its usual turn. My silence was a gesture of respect for the system.
“However, after hearing and reading the statements made by the camp of Ms. Lazaro in the news, I feel compelled to say something, without delving further in the case – for this is the sole responsibility of the officers of the court – but to clarify the false impressions that were peddled in the media.
“First, I want to make it clear that the Government Service Insurance System is in no way involved in the case of Violation of the Anti-Wiretapping Act which I have filed against Ms. Lazaro. I filed the case before the Pasay City Regional Trial Court on my own volition, without any instruction or direction from my superiors in the GSIS.
“It is a case arising from my feeling that my right to privacy, guaranteed by the Bill of Rights, has been violated. I am, after all, entitled to my rights, in this case, Section 3 of the Bill of Rights, which states: ‘The privacy of communications and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.’
“Contrary to what the camp of Ms. Lazaro has been quoted as saying, this is not media harassment. I have dealt with countless media persons and those I have met and those who know me can attest that I am the last person capable of harassing members of the press.
“The case, above all, raises the timely question: Are the media allowed to violate the individual rights of a person? I was asking the court if the media could simply call you up, record your conversation, and broadcast it for the entire world to hear; all these, without your knowledge, much less, your permission.
“There is no grand conspiracy. There are no devious schemes. Definitely, there is no concerted effort to stifle press freedom. I pursued my rights, taking the route of due process, without the need to engage in a publicity stunt.
“There is, however, a silver lining to the already tense predicament I am in for going after an influential broadcast journalist. Somehow, I received and continue to receive numerous encouragements from, surprisingly, members from the media.
“Apparently, there are many media persons who are as interested as I am to understand the parameters of honest and fair methods of gathering news. Unlike Ms. Lazaro, they are not A-list TV journalists. Most of them are reporters who go to their beats daily, send out summaries to desks, and file stories before deadlines. These are hard-working journalists who want to know: does the fame and status give Ms. Lazaro the immunity to break journalism ethics and break the law? Does the stature of being a ‘veteran broadcast journalist’ and journalism profession let one off the hook?
“Among journalists, this case will enable the profession to define, in tangible terms, the Philippine Journalist's Code of Ethics, which among others, require journalists to ‘not violate confidential information or material given her in the exercise of her calling" and "resort only to fair and honest methods in her effort to obtain news, photographs and/or documents and properly identify herself as a representative of the press when obtaining any personal interview intended for publication or airing."
“I am a believer of the significant role journalists play in a democratic system. They are the watchmen, protecting us from wrongdoings taking place both in government and private sectors. But even journalists are not infallible. They can have their share of wrongdoings. And when journalists do wrong, how can we – especially private individuals – protect ourselves from them?”
What is interesting in this statement is the claim of Ms. Valencerina to privacy and confidentiality of the communications she had with Chehe Lazaro. What is the private matter or confidential information that Valencerina gave to Chehe Lazaro that is entitled to privacy? The policies of the GSIS concerning the entitlement to benefits of its members who are government employees? Her defense of such policies in reaction to the criticisms or protest of affected GSIS employees? It defies logic that such information - matters of public concern or interest - should be confidential and may only be published or broadcast with permission. Maybe Valencerina forgot about the constitutional principle of transparency in government affairs and the consequent right of the people to information on matters of public concern.
It would have been different if the information broadcast on the Probe concerned intimate or personal details about the life of Valencerina - matters that have no bearing at all with the functions and policies of the GSIS. If such be the case, then I would have no business discussing this matter.
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In http://philippinecommentary.blogspot.com/2005/12/long-live-anti-wiretapping-law.html
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"PRIVATE CONVERSATIONS:" In my opinion "private conversations" are considered private simply because the conversants would not want their conversation to be made public. Even if the subject of their conversation is of "public interest" (mayber they are rigging an election or conspiring in a crime) the conversation is still considered "private" under RA4200 if the conversants merely want their conversation to be kept between them. The real reason for upholding this position is that the Anti Wiretapping statute is really "content neutral" -- it doesn't care WHAT you are talking about, without a Court Order, it is forbidden to record your conversation. The entire of Section (3) defines the crimes, conditions and mechanics of securing a Lawful Court Order for the purpose of undertaking wiretapping OR USING WIRETAPPED MATERIALS AS EVIDENCE OF SPECIFIED CRIMES, x x x.
In http://www.abogadomo.com/lawprof.html
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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 statute's 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."
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Hi Arjay,
ReplyDeleteThank for the information you shared, but I still maintain that the Lazaro-Valencerina conversation does not fall within the provisions of the anti-wire tapping law because the claim of privacy is trumped by the legal duty of Valencerina to provide information to the public on matters concerning the functions of her office, and the constitutional right of the public to receive information on matters of public concern.
It is my view, not claiming to be an expert, that a communication by a public official made in the course of performance of a duty - in this case the legal duty of Valencerina to provide information pertaining to certain policies of her office in response to a request made by a member of the public - does not enjoy any claim to privacy even if it be asserted by the official making it that disclosure of such communication be not made. When a public official acts in the performance of a duty, such action becomes a matter of public concern and the constitutional right to know and requirement for transparency transcend any law that seeks to control the flow of such information.
As regards the SC ruling you quoted, the factual backdrop of the case involved is different from the Lazaro case and is, therefore, not applicable. As they say in legal parlance, it is not on point.
lex non distinguitur nos non distinguere debemus
ReplyDelete(The law does not distinguish and so we ought not distinguish)
To say that an unconsented recording of a statement by a public official about information the public has a right to know, in response to an inquiry by the public, is criminal under RA 4200 leads to absurd conclusions and destroys the essence and purpose of such law, to wit: to protect a person's privacy rights and the corollary privacy of his/her communication, and not to prevent flow of information which the public ought to know and made by public officials in the performance of their duties.
ReplyDeleteIf, for example, I were to inquire about the status of my SSS contributions from the SSS office and I secretly recorded the response of an official from this office, will I be liable for wire-tapping? or if I ask the LTO how I can obtain a driver's license and recorded the response? or if I ask the prosecutor's office or a police station how to file criminal charges against someone and recorded the response? An affirmative answer leads to absurd conclusions which the law, to my mind, does not to contemplate. The law may not distinguish, but the phrase "private communication" is certainly open to various interpretations and its meaning needs to be settled in different situations.
"Not the letter that killeth, but the spirit that giveth life."
If Ella Valencerina knew that she was talking to a reporter and that a reporters job is to publish information of public interest in a newspaper or on television. Reporters record statements by either taking notes or by recording them electronically. So why is Ms. Valencerina annoyed?
ReplyDeleteAny government official should roll their tongue in their mouths 3 times before talking to a reporter or any other person if they do not wish to be quoted.
Was Ms. Lazaro's act of recording legal? This is open to debate as everyone knows that it is also the reporters job to be able to prove the sources of his information.