Section 1 of Republic Act No. 4200, otherwise known as the “Anti-Wire Tapping Act,” states:
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 dectaphone 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.
First, please bear in mind that this law is mala prohibita, meaning, criminal or malicious intent need not be proven by the prosecution. The mere act of wire-tapping, even with the purest of intentions is already punishable under RA 4200, as amended.
What constitutes wire-tapping? or What are its requisites?
- Any person secretly overhears, intercepts or records any private communication or spoken word (in layman’s terms “eavesdropping”),
- He does so by tapping wires or cables, by using any other device as stated in the law, and
- He does so without the consent of all the parties to such private communication or spoken word.
Also please bear in mind that Republic Act No. 4200, as amended punishes:
- The act of wire tapping itself,
- Possession of taped, wire, disc or any other form of record of such wire tapped communications
- Communication about the contents thereof either verbally or in writing,
- Funishing transcripts thereof to any other person whether such is partial or total.
At this point, I will tow the popular legal theory about this law.
This is a private crime, meaning, at least one of the private parties to this communication or conversation must file the case against the persons liable under this act.
Only if it is unauthorized by all the parties to such private communication or spoken word can the record or transcript thereof be considered wire tapped material. Hence, the Department of Justice cannot motu propio file this case in court.
Also, nobody can effect a warrantless arrest for violation thereof because there will be no instance when anybody can be caught in flagrante delicto (or “in the act”), insofar as the violations other than the actual act of eavesdropping is concerned.
This is likewise bourne out of the deliberations when this law was being passed, as quoted by the Supreme Court in Ramirez vs. Court of Appeals (GR No. 93833, 28 September 1995). During such deliberations, the late Senator Tañada stated, “This is a complete ban on tape recorded conversations taken without the authorization of all the parties.” [Emphasis supplied.]
How does this apply to “Gloriagate”?
In my opinion, insofar as the President’s conversation is concerned, nobody can be prosecuted under Republic Act No. 4200. No less than the Presidential Spokesman, suppossedly the mouthpiece and alter ego of the President, admitted and even distributed copies of the same.
This already constitutes tacit or implicit authorization by at least one the alleged parties to that private communication. At the very least, one party is estopped from saying he/she did not consent to such wire tapped record. With the other party denying he is the other voice there, there will be no complainant to initiate prosecution for violation of this law.
With this argument, I believe “reasonable doubt” already exists to acquit anyone if prosecuted for violating this act.
Assuming that it was not the President or the Comelec Commissioner, there will be difficulties again in prosecuting such violation by such private parties, since they would be, in effect, likewise admitting to even graver criminal acts that the Comelec and the Justice Department has the power to initiate motu propio (or on their own).
On a practical level therefore, there will be no complainants to this violation since nobody will admit to being any one of the voices in this record. Since there will be no complainants, there will be no successful prosecution.
Oh, and by the way, this is a probationable offense since this is not a crime against national security, as stated in the Revised Penal Code.