How and What if? by A.M. Remollino

How and What If?
On the taped conversations, the legitimacy of the GMA presidency, and the validity of the laws signed by GMA

The controversy generated by the surfacing of CDs containing taped conversations allegedly between President Gloria Macapagal-Arroyo and former Election Commissioner Virgilio Garcillano has provoked a debate on whether the presidency of Malacañang’s current occupant is legitimate or not. If it is found to be indeed illegitimate, are the laws and executive orders Macapagal-Arroyo signed since assuming office in 2004 then void?
BY ALEXANDER MARTIN REMOLLINO

The controversy generated by the surfacing of CDs containing taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections (Comelec) official Virgilio Garcillano has provoked a debate on whether the presidency of Malacañang’s current occupant is indeed legitimate.
Press Secretary Ignacio Bunye had released June 6 two CDs containing audio files of what he said was a taped conversation between the President and a political leader of the administration Lakas-CMD in Mindanao, southern Philippines. One of them, Bunye said, was a version purportedly altered by the opposition to make it appear that Macapagal-Arroyo had cheated in the 2004 presidential election.
Both “original” and “tampered” have portions in which a woman – said to be Macapagal-Arroyo – was asking a man (“Gary” in the “original” version, “Garci” in what Bunye called the tampered version) if she would still win by a million votes. Macapagal-Arroyo won by a million votes over her closest rival, Fernando Poe, Jr.
Days later, lawyer Alan Paguia, counsel for deposed President Joseph Estrada, came out with a longer tape, and after a few days he would be followed by National Bureau of Investigation (NBI) agent Samuel Ong who claimed to possess the “mother of all tapes.” Ong said his source was military intelligence agent T/Sgt. Vidal Doble, who denied this.
Justice Secretary Raul Gonzales had dismissed the content of the tapes as obtained from wiretapping.
The Anti-Wiretapping Law declares it 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.”
The Department of Justice (DoJ) has been assailed for not investigating the conversation itself. Gonzales has also been criticized for claiming that the tapes were obtained by wiretapping without showing sufficient proof.
Is there need for an investigation to find out whether the contents of the tape were obtained in violation of the Anti-Wiretapping Law?
Which leads to another question. If it is eventually found that Macapagal-Arroyo assumed the presidency by fraudulent means, are all the laws and executive orders she signed rendered void?
Since her assumption of office following a hotly-contested election last year, Maqcapagal-Arroyo has signed a number of controversial laws and executive orders. Among these are the law increasing the coverage of the value-added tax, as well as an executive order pushing for a national identification system.
The new VAT law has been criticized as an added burden to ordinary people who are already weighed down by high prices of commodities and low wages, while the national ID system has been assailed as a violation of the right to privacy and a prelude to a surveilled society.
Bulatlat interviewed lawyer Neri Javier Colmenares for this article. A convenor of the Pro-People Lawyers’ Network (PLN) and the Committee for the Defense of Lawyers (Codal), Colmenares wrote a paper on the country’s party-list law for the book Subverting the People’s Will: The May 10, 2004 Elections published late last year by the Center for People Empowerment in Governance (CenPEG). He has done post-graduate work in law at the University of Melbourne.
Below are excerpts from the interview:
Justice Secretary Raul Gonzales says the contents of the taped conversation cannot be used as evidence in court because they were obtained by wiretapping. However, lawyer Marvic Leonen said in a previous interview that it was only Secretary Gonzales who said they were obtained through wiretapping and it still has to be found whether or not they were indeed obtained through wiretapping.
In fact, NBI chief Reynaldo Wycoco, in yesterday’s (June 23) hearing at the House of Representatives, himself admitted he did not know whether the conversation was wiretapped. Actually, they have no proof that it was wiretapped except whistleblower Samuel Ong, who said the tape came from the ISAFP (Intelligence Service of the Armed Forces of the Philippines).
Attorney Leonen says of Secretary Gonzales that by declaring the tapes to have been obtained by wiretapping, he admits that there was such a conversation.
Technically it’s correct.
What are the elements of RA 4200? There are three: first, there was a private conversation; second, it was tapped; and three, there was no consent from all parties.
So when Gonzales said that the conversation was wiretapped, under RA 4200 he’s admitting to the three elements.
Gonzales is rather stupid. You can quote me on that, Gonzales is rather stupid.
Attorney Leonen also said that by admitting to the existence of such a conversation, Secretary Gonzales places upon himself – as justice secretary – the burden of having to investigate the conversation itself.
You know, that is what shows the bias of the justice department and the NBI which falls under it.
Look, the tape is presented to you as a destabilization attempt. It is said to be a conversation involving President Macapagal-Arroyo. The first thing you’re going to do is to try to research whether or not it’s true or not.
What did the NBI do? Did it investigate? It did not.
The moment you prove that it’s not Macapagal-Arroyo and Garcillano who were caught on tape, that’s one question answered.
But they did not do that. What did the NBI do? Nothing. They just declared that the tapes were both tampered.
In fact the Department of Justice can be sued for dereliction of duty. There was an open call from government to investigate a crime of such magnitude, and you fail to investigate? That is tantamount to dereliction of duty.
Is the current investigation in Congress a possible venue for determining whether the contents of the tapes were obtained through wiretapping or not?
There are many possible venues.
The congressional investigation right now is – it’s really all Bunye’s fault – because he said there are two tapes, one is real and the other is fake, and the fake one is part of a destabilization plot by the opposition, so Congress reacted. The opposition in Congress argued that Bunye’s accusation had to be investigated.
House Minority Leader Francis Escudero delivered a privilege speech and the matter was referred to a number of committees and a hearing is now being conducted to find out whether the accusation is true or not.
Does Congress have the right to do it? Of course, yes.
Malacañang accused the opposition of destabilization, so they called for a congressional hearing. They have a right to do that.
What is being heard here is not whether the tapes are authentic, but whether it is true that the opposition has a destabilization effort against the government.
The problem is, instead of presenting the tape as evidence, the accusers say the tapes are inadmissible as they were obtained through wiretapping. What is that? You accuse and you should show all the evidence you have, but you’re the one saying the evidence is inadmissible. In the first place your accusation turns out to be baseless.
There can be other venues for determining whether the tapes were obtained through wiretapping.
If it is found out that the contents of the tapes were not at all obtained through wiretapping, and Gloria Macapagal-Arroyo’s presidency turns out to be really illegitimate as militant groups and other opposition forces say, do the laws and executive orders she signed retain their validity?
Yes, they’re valid. Under the Constitution they are, unless repealed. All laws are valid unless repealed. We have presidential decrees from Ferdinand Marcos that remain valid because they were not repealed specifically.
Is it because they were signed under the presumption that her presidency was legitimate?
Yes. So they remain valid and Congress has to repeal these.
That’s what sad about that. She has signed so many bad laws and executive orders and it turns out she may not have the right to sign these after all.
We just hope that Congress will repeal the VAT law and others.

Ano sa palagay nyo?  

From crisis to crisis by Randy David/Public Lives 06/26/05

From crisis to crisis
First posted 02:06am (Mla time) June 26, 2005
By Randy David
Inquirer News Service

SINCE June 6, when Press Secretary and concurrent Presidential Spokesman Ignacio Bunye first bared the existence of the "Garci tapes," the President has had many occasions to say something about these tapes.
Speaking through Secretary Bunye, she said she would "not dignify" them because their source is patently illegal. A few days later, she told businessmen in Hong Kong she would address the issue at the right time, when the political overheat has subsided. She has given speeches and interviews in which she argues that the tapes are part of a sustained effort to destabilize her government.
In other words, she has not been silent at all. On the contrary, she has answered nearly every question on the issue, except the most important one that is on the lips of every citizen of this country: Did she or did she not have private conversations with Commission on Elections Commissioner Virgilio Garcillano during the period of canvassing in the 2004 elections?
What is so difficult about answering this question? If those alleged conversations never took place, why would a straight denial from the President incriminate her? In fact, one would reasonably expect a person deeply protective of her honor to immediately deny she is one of the parties in those tapes.
But-if she actually had those conversations, then she is probably well-advised to keep her mouth shut. Anything she says may be used against her in a court of law. Unfortunately, Gloria Macapagal-Arroyo is not an ordinary citizen but the country's highest public official. While she is entitled to a private life like the rest of us, she cannot, as a public official and as a politician, invoke her right to privacy on a question that is of the utmost public concern without seriously damaging her credibility. The law might protect her, but she would stand defenseless in the political arena.
The content of those tapes pertains to the conduct of the last presidential elections. They suggest a conspiracy between the President, who was a candidate, and a very high election official whom she had appointed to the Comelec despite his shadowy reputation as a manipulator of election results. If, instead of flatly denying the veracity of these conversations, she continues to erect a defensive wall of words around her, how long can she expect people to believe she is not hiding something?
It is interesting how much the Palace has contributed to its own problems. The existence of these taped conversations was first publicly announced by no less than the presidential spokesman himself. June 6 was a Monday. We can reasonably assume that Malacañang's crisis team met during the weekend to determine how to handle the tapes. When Bunye presented and played two compact discs to the Palace press corps, one labeled "original" and the other "altered," it is difficult to believe the President did not authorize what he was going to do or say on that occasion. A presidential spokesman speaking on his own behalf on a vital matter pertaining to the President? That would have been the height of irresponsibility.
Bunye promptly disappeared immediately after. When he returned to his post sometime later, he had a different story to tell. He said he was no longer sure that was the President's voice on the tapes, and that he was now convinced that both tapes had been tampered with. He could no longer identify the source of these two tapes. In less than a week, Malacañang moved from pre-emption to damage control, indicating the active participation of lawyers.
For a while, voices sympathetic to the President floated the option of a benign admission of impropriety. In this scenario, GMA admits she had those conversations with Garcillano, and apologizes for talking to him. But she emphatically denies she cheated in the elections. That option has now been abandoned.
It is clear that Malacañang has shifted President Arroyo's bid for survival from the terrain of political debate, where she is losing, to the arena of legal combat, where she hopes to win or, at least, delay her downfall.
The latest Palace line is a model of studied evasiveness: The President won the elections fair and square. If there are any doubts about her victory, they must be resolved in accordance with the rule of law. The alleged wiretapped conversations, whether authentic or not, are illegal, and therefore inadmissible in evidence. The President has not committed any impeachable offense. Without saying so explicitly, the Palace is daring the President's detractors to sue her.
The President has the numbers in both houses of Congress. Her allies can ignore public opinion and throw out any impeachment case at any stage of the process. The country may go through this wrenching exercise all over again, hoping that truth and justice will prevail in the end. But in the final analysis, the case will be resolved by a vote based not on any objective appreciation of the evidence at hand but on political allegiance.
The public skepticism about the autonomy of our institutions and the capacity of our political leaders for statesmanship is what is driving the protests in the streets. Suppressing legitimate dissent will only further damage our institutions. The crisis of legitimacy of the incumbent President is ripening into a crisis of institutional confidence. When the President starts ordering the nation's armed forces to quell the critical voices of its citizens, the whole existing framework of the rule of law is put on the line. At that point, this crisis may well develop into a crisis of the entire social order.
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Interpreting Conversations by Randy David

Interpreting conversations
First posted 02:51am (Mla time) June 19, 2005
By Randy David
Inquirer News Service

PEOPLE have wondered why the public is not reacting with outrage to the scandal of the "Garci tapes." Is there "people power fatigue"? Maybe. But, how many people have listened to these tapes? How many have tried to understand them? And why should we expect the simple recognition of the voice of the President in an intercepted conversation to instantly spark moral indignation?
I've spent many hours listening to these tapes. They are the recorded phone calls of a man who sounds like Commissioner Virgilio Garcillano of the Commission on Elections. In some of these, he is speaking to someone who sounds and talks very much like President Macapagal-Arroyo. Most people have focused on the identity of the voices, or on the source of the tapes. My interest has been to establish what they are about. This is not as easy as it may seem.
All of us participate in conversations without realizing how much work they entail. In one breath, we pack a whole series of meanings into the words we utter, and in the next, we unpack another set from the words others say to us. Throughout, we are also observing shifts in the complexion of a conversation as marked by changes in tone. We are, as human beings, capable of coding and decoding complex messages in real time, faster than any existing computer can possibly manage.
We sometimes realize what an intricate process this is, and what fascinating structures conversations are, when we overhear two people talking. We strain our ears not only to catch the words but also to decipher their meanings. We may hear clearly, but not understand. Understanding means not just recognizing the words, but making sense of them. We are able to do this with the help of our background knowledge of people, things, places and events. The more remote we are from the world assumed in the conversations of people, the harder it is for us to understand their talk.
We can listen to conversations at the literal level, or at the interpretative level. A literal reading stays on the surface of words. An interpretative reading explores and fills in the spaces between, below, and above the lines formed by words. An overheard conversation may sometimes cause offense. That is why we take the trouble to explain what we "really" meant. This may be as simple as saying: "Sorry, it's not you we were talking about," or "Sorry, it's not what you think." Those who want to save the President are urging her to say something like the latter.
These conversations sound harmless on the surface, but when one reads between the lines, they take on the character of conspiratorial events. One of the longer ones of these conversations proceeds as follows:
Garci: Hello Ma'am, good evening.
Ma'am: Hello.... Dun daw sa Lanao del Sur at saka sa Basilan, di raw nagma-match ang SOV sa COC.
Garci: Kwan ho yan. Ang sinasabi nila... nawawala na naman ho?
Ma'am: Hindi nagma-match.
Garci: Hindi nagma-match? May posibilidad na hindi magma-match kung hindi nila sinunod yung individual SOV ng mga mga munisipyo. Pero aywan ko lang ho kung sa atin pabor o hindi. Kasi, dun naman sa Basilan at saka Lanao Sur, itong ginawa nila na pagpataas sa inyo. Hindi naman ho, kwan... maayos naman ang paggawa eh.
Ma'am: So nagma-match.
Garci: Oho. Sa Basilan naman, habol na naman ang mga military dun eh. Hindi masyadong marunong sila gumawa eh. Katulad ho dun sa Sulu, sa Habakon. Pero, hindi naman ho. Kinausap ko kanina ho yung Chairman ng Board sa Sulu. Ang akin pa, patataguin ko lang muna yung EO ng Panguntaran, na para hindi siya maka-testigo ho. Na-explain na ho yung kwan, sa Camarines Norte. Tomorrow we will present official communication dun ho sa Senate. Doon sa sinasabing wala hong laman yung ballot box. Na-receive ho nila lahat eh.
Ma'am: Oo.
Garci: Tumawag ho kayo kanina Ma'am?
Ma'am: Yah. About that Lanao del Sur at saka Basilan.
Garci: Ia-ano ko lang ho. Nag-usap na kami ni Abdulah dun sa kwan kanina. About this, i-aano ko ho. Na, wag ho kayong masyadong mabahala. Anyway, we will take care of all this. Kakausapin ko rin si Atty. Ma...kwan, si Atty. Macalintal.
Ma'am: Oo, tapos non, si uhm, sa Languyan, meron daw silang teacher na nasa witness protection program ng kabila.
Garci: Sino ho?
Ma'am: Yung kabila, may teacher daw silang hawak.
Garci: Wala naman ho. Baka nananakot lang ho sila. Kasi...
Ma'am: Sa Languyan, sa Tawi-Tawi.
Garci: Ano ho, yung sa Tawi-Tawi? Wala ho naman ho tayong kwan, wala naman tayong ginawa don, sa Languyan. Talo nga tayo don, talo nga si Nur dun eh.
Ma'am: Oo, oo.
Garci: Sige, aanuhin ko ho lahat ng mga yan.
Ma'am: Oo, oo. Sige. Thank you.
Ma'am is worried over the lack of fit between canvass results at the municipal level (SOVs) and results at the provincial level (COCs). Is she fretting about this in the manner of a boss concerned about ensuring the honesty and accuracy of election results? Or is she calling as an anxious candidate worried that the fixing of results done for her by her principal operator, a high official of the Comelec, is being carried out in a crude way? When Garci, the Comelec operator, assures her that the "pagpataas" (upward adjustment) done for her in Basilan and Lanao del Sur was accomplished in a "maayos" (orderly) way, could they have been referring to anything other than number of votes?
The meaning of words lies in their use, the philosopher Wittgenstein once said. To that we may add: Words do not lie. People do.

Hello Garci, Hello Ma'am by Randy David

'Hello, Garci? Hello, Ma'am'First posted 02:00am (Mla time) June 12, 2005 By Randy DavidInquirer News Service
THIS is how the conversation between the principal and her agent typically begins. She speaks in a measured and clear tone, usually to bring up a problem, or to suggest a course of action. Most of the time, he, in an exquisitely fawning way, assures her that the problem is being attended to and that he is on top of the situation. Her calls are brief, and she always goes straight to the point.
The Palace has denied that the voices in the controversial tapes belong to President Macapagal-Arroyo and Commission on Elections Commissioner Virgilio Garcillano. But previous to this, Presidential Spokesman Ignacio Bunye admitted that the female voice was indeed Ms Arroyo's, except that the person she was talking to was not Comelec Commissioner Garcillano, but a political supporter named "Gary." Bunye claimed that the original tape had been doctored to make it appear the President was having a conversation with Garcillano. Now, the official line is that Bunye made a mistake. The voice is not GMA's. There is no original tape, and all the existing tapes are fakes.
This controversy has legal and political implications. Wiretapping, no matter for what purpose and by whom it is undertaken, is a serious offense under our laws. But, curiously, if what have been wiretapped are fake conversations, as Malacañang claims, who is violating the anti-wiretapping law?
More interesting than the legal aspect is the political angle. If enough Filipinos become convinced that President Arroyo privately conferred with a Comelec commissioner during the crucial period of the recent presidential elections-even hinting in one such alleged conversation that the election results be managed so that her lead over her closest rival does not fall below one million votes-I do not think she would be able to govern or remain in office for long. Impeachment would be the least of her worries; she would be asked to resign or else face ouster.
The identity of the speakers in these conversations can, of course, be established through "voice print" analysis. My own interest is different. Out of academic curiosity, I listened repeatedly to broadcasts of these conversations, and studied the published transcripts. I wanted to know if the conversations were not contrived, or whether they exhibited rational properties. There is a sub-specialty in sociology called "ethnomethodology" that inquires into the rational characteristics of conversations. The method looks at the orderly nature of human interaction-a conversation for example-as an ongoing achievement by the participants. A lot of meanings are exchanged in the course of the conversation, beyond what may be gleaned from a merely literal interpretation of words.
Normal conversations are littered with what analysts call "glosses"-expressions that are intelligible only in the context of background understandings. A gloss is a short-cut, a device that makes elaborations unnecessary, but yields its meanings only in the light of shared background information. It is easy to fabricate one conversation, but it is not easy to invent a whole series while maintaining stable identities and a consistent tone.
A whole world has been assumed and brought out in these fascinating conversations-the world of political fraud and electoral fixing. The key figure is a male voice variously referred to as "Commissioner" or "Garci." It was obviously his phone that was bugged. By the types of situations brought to him for fixing, by the variety of people desperately seeking his help, and by the frightening ease with which he dispenses solutions-one would know that this man is an old hand in the underworld of electoral fraud.
He knows exactly where to pull additional votes and for how much, and how to deal with recalcitrant election registrars who don't cooperate. Politicians come to him for help like anxious little children. They rely on him to do all the dirty tricks they need to do to win, things they themselves would sanctimoniously decry in public.
This is the political operator that "Ma'am" repeatedly calls as she nervously awaits the results from far-flung towns in Mindanao. Listen to this cryptic exchange: "Hello Ma'am?/ Hello, meron tayong statement of votes, ERs para sa Sulu?/ Saan po Ma'am?/ Sulu, Sulu./ Oo Ma'am meron po./ Nagco-correspond?/ Oo Ma'am./ Kumpleto?/ Oo Ma'am. Lahat ho meron, hindi po namin ika-count kung.... / Ok, ok."
On the surface it does look like an innocent exchange. The key word here is "nagco-correspond"-a gloss that refers to the practice of fixing canvass results at, say, the provincial level so that they are not at variance with precinct election returns or statement of votes for municipalities. The other gloss is the question "Kumpleto?" This is not a harmless inquiry. Given the kind of response it elicits, it is an urgent demand to make sure the doctoring is done with care.
One knows this from examining other conversations: "Hello/ Hello, Ma'am, good morning. Ok Ma'am, mas mataas ho siya pero mag-compensate po sa Lanao yan./ So will I still lead by more than 1 M overall?/ More or less, but it is still an advantage, Ma'am. Parang ganun din ang lalabas./ Oo, pero it will not be less than 1M?/ Pipilitin ho natin yan. Pero, as of the other day, 982./ Kaya nga eh./ And then, if we can get more in Lanao./ Hindi pa ba tapos?/ Hindi pa ho. Meron pa hong darating na 7 municipalities./ Ah, ok, ok./ Sige po./ Ok, ok, ok..."
This man is not in the business of counting votes; he produces them.
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