Tale of the tape and the envelope

The present political impasse must end only through constitutional political action. The existing legal order must be upheld and preserved. Those who think that PGMA must step down due to the wrongdoings she has allegedly committed should work within the legal framework. Forming a "caretaker government" or advocating a different mode of succession has all the earmarks of a revolutionary political action as it ruptures the legal order. Since the President persistently refuses to heed the clamor for her resignation because she believes that she has not committed any wrongdoing, those who believe otherwise should accept the legal reality that she can only be removed not by mass action in the streets but by impeachment in the halls of Congress; and that only the duly elected incumbent Vice President could succeed her.

The "GMA Resign" movement should shift their venue from the streets to the Impeachment Tribunal where they could show that their pre-judgments and conclusions are supported by solid and convincing evidence; where the truth behind the issues that led to the present political crisis could be established. There should be less skepticism this time as the President’s allies in Congress must have learned the lessons of the Erap impeachment where the attempt of the majority to suppress the alleged damning evidence inside a "second envelope" led to the untimely exit of Erap from Malacañang by popular mass action. They are perhaps smart enough to avoid committing the same fatal mistake lest she suffers the same fate as her predecessor. A similar attempt to fix the impending impeachment case specifically with respect to the controversial "Garci tape," may just provide a legal justification for another people power.

After the June 6, 2005 preemptive move of Press Secretary Bunye on the existence of an alleged tape recording, followed by the President’s own mea culpa on June 27, 2005 to "set the record straight on the issue of the tape recording", that tape recorded conversation with a "Comelec official" has inevitably become the centerpiece of the move to oust her. Her insistence that she merely committed a "lapse in judgment" has not apparently defused the clamor for her to step down. On the contrary the political crisis worsened because there are simply so many unconnected loose ends left hanging by that apology which the opposition used and took advantage of in shaping a formidable public opinion that her victory in the last election was fictitious. Undeniably, her credibility and ability to govern has been seriously damaged. The worst crisis confronting her is therefore a crisis of truth. And since resignation is out of the question, only a constitutionally sanctioned and credible impeachment proceeding can end this crisis. An impeachment proceeding that will answer the question of whether she committed a mere lapse in judgment, as she claims, or a graver wrong warranting removal as her opponents insist. Hence her allies in Congress should ensure that the impeachment process is fair and credible, not moro-moro. To keep the middle forces away from the streets again, the lower house should give due course to, not dismiss, an impeachment complaint sufficient in form and substance so that the Senate can try and decide all the issues against her.

Most crucial in the impeachment trial is how the Impeachment Tribunal will resolve the issue on the admissibility of the tape recording as evidence. Apparently, a wiretap or other device was actually used to secretly intercept or record the private conversation between the President and an election official without a court order. So the tape recording is obviously done in violation of RA 4200 which declares in Section 4 that illegally obtained recordings are inadmissible "in any judicial, quasi-judicial, legislative or administrative hearing or investigation". Unmentioned in this enumeration however, is "impeachment proceeding". Considering that impeachment proceeding is "sui generis" (Francisco vs. House of Rep. G.R. 160261, Nov. 10,2003) or a class of its own and therefore neither judicial, nor quasi-judicial, nor administrative or nor legislative, there appears to be no legal bar to the admissibility of wiretapped recordings in impeachment proceedings according to Atty. Jose Manuel I. Diokno, FLAG Chairman. This view appears to be sound following the canon of statutory construction of "expressio unius est exclusio alterius" (that which is not expressly prohibited by law is allowed).

In the interest of truth and fairness therefore, the voice recording may be admitted after it is identified, explained and authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof (Rule 11, Section 1 Rule on Electronic Evidence). It should not be treated and disposed of like the second envelope in the Erap case to avert another popular mass action.

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