Geoanne Battad and Roberto Miguel Ramiro

Special Penal LawsBatas Pambansa Bilang 22 (Bouncing Checks Law) and RA 4200 (Anti-Wiretapping Act)

BATAS PAMBANSA BILANG 22 (“BOUNCING CHECKS LAW”)

BRIEF HISTORY

The leading case of Lozano v. Martinez1 details the progression of criminal laws penalizing the issuance of worthless checks. The Revised Penal Code provision on estafa more specifically, Art 315 par. 2(d)2, constituted the culmination of the legislature’s efforts to curb such practice.

1 People v. Lozano 146 SCRA 343 (1986)

2 Art 315 par. 2(d) provides:

By means of any of the following false pretenses or fraudulent acts executed prior to or

simultaneously with the commission of the fraud: 

x x x

(d) By post-dating a check, or issuing a check in payment of an obligation when the

offender therein were not sufficient to cover the amount of the check. The failure of the

drawer of the check to deposit the amount necessary to cover his check within three (3)

days from receipt of notice from the bank and/or the payee or holder that said check has

been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit

constituting false pretense or fraudulent act.

However, the scope of this article was deemed to exclude checks issued in payment of pre-existing obligations.3 However, a large number of dishonored checks consisted of those issued in payment of pre-existing obligations.4 Thus, in 1981, the Interm Batasan enacted Batas Pambansa Bilang 22 (hereinafter referred to as BP 22), criminalizing the mere act of issuing a worthless check.5

Further, the Supreme Court has pronounced in a long line of cases that BP 22 is malum prohibitum. Therefore, criminal intent does not need to be proven as the gravamen of the offense is the issuance of a worthless check which is injurious to the public in general.

WHAT IS A CHECK?

Before discussing the provisions of BP 22, it would be wise to know the definitions of certain terms and the parties involved. This is because BP 22 is closely intertwined with the Negotiable Instruments Law.

1. Check : A check is a bill of exchange drawn on a bank payable on demand.6 There are several types of checks (e.g. cashiers

3 People v. Sabio, 86 SCRA 568 (19xx)

4 Lozano, 146 SCRA 345

5 Id.

6 Section 185, Negotiable Instruments Law

1

check, crossed check7 post-dated check, personal check, etc.)

2. Parties to a check a. Drawer: A person who draws/issues

the check and thus orders paymentb. Drawee bank: The bank that is

directed to pay c. Payee : The person named in the

instrument, to whom, or to whose order the money is by the instrument directed to be paid, 

Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid

7 The case of Bataan Cigar v. CA provides:

“A crossed check is one where two parallel lines are drawn across its face or across a

corner thereof. It may be crossed generally or specially.

A check is crossed specially when the name of a particular banker or a company is

written between the parallel lines drawn. It is crossed generally when only the words "and

company" are written or nothing is written at all between the parallel lines. It may be

issued so that the presentment can be made only by a bank.

Veritably the Negotiable Instruments Law (NIL) does not mention "crossed checks,"

although Article 541 of the Code of Commerce refers to such instruments””

reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.    The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.  Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.

Sec. 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless

2

such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.

ELEMENTS OF B.P. 22

There are two criminal acts punishable by BP 22 to wit:

1. When a person draws and issues a check to apply to account or for value, knowing he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon presentment, which check is subsequently dishonored for insufficiency of funds or credit or would have been dishonored if not stopped without valid reason

Elements:

(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with

the drawee bank for the payment of the check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.8

2. When a person, although having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason it is dishonored by the drawee bank.

THE PRIMA FACIE EVIDENCE OF KNOWLEDGE

As provided for in the 2nd element, “knowledge” is required on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment. As this is evidently difficult to prove, the law creates a prima facie presumption of such knowledge.9

Thus, Section 2 provides that the drawer can altogether avoid criminal liability if he either 1)

8 Tan v. Mendez 432 SCRA 760 (2002)

9 Lozano. 146 SCRA 347

3

pays the holder of the check the amount due on the check or 2) makes arrangements for payment in full by the drawee bank within 5 banking days after receiving a notice of dishonor.10

Further, it can be deduced from Section 2 that in order to establish the second element, the payee must present the check for payment within 90 days from its date.

However, in Nagrampa v. People, it was held that that:

“Presentment after 90 day period not an element of the offense That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise. It is not an element of the offense. Neither does it discharge petitioner from his duty to maintain sufficient funds in the account within a reasonable time thereof. The only consequence of the failure to present the check for payment within the 90-day period is that there arises no prima facie presumption of knowledge of insufficiency of funds. The prosecution may still prove such knowledge through other evidence.” (emphasis supplied)

10 Sec 89 of the NIL provides that as a general rule, when a check has been dishonored by non-payment,

notice of dishonor must be given to the drawer and to each indorser. This is necessary in order to fix the

liabilities of the parties secondarily liable on the instrument. In the case of the dishonor of a check, the drawer is

the one secondarily liable.

CASES:

1. People v. Nitafan : 11

“A memorandum check is in the form of an ordinary check with the word memo written across its face, signifying that the maker or drawer engages to pay the bona fide holder absolutely, without any condition concerning its presentment. Such check is an evidence of debt against the drawer. It is thus clear from this definition that it is still in the form of a check, still drawn on a bank and should therefore be distinguished from a promissory note which is but a mere promise to pay” Thus, it still comes within the ambit of BP 22

2. Recuerdo v. People 12

A check issued as an evidence of debt, though not intended for encashment, has the same effect like any other check. It is within the contemplation of BP 22 and thus, if all the elements are present with regard to such kind of check, it still comes within the contemplation of BP 22.

3. Cueme v. People 13

11 215 SCRA 79 (1992)12 395 SCRA 638 (2003)13 390 SCRA 294 (2000)

4

In this case, the defendant argues that the bounced checks were merely issued for purposes of showing them to various potential investors. In rebuffing their argument, the Court reiterated that the gravamen of the offense punished by BP 22 is the act of issuing a worthless check that is dishonored upon presentment for payment.

4. Ruiz v. People 14

In this case, the Supreme Court held that one who draws a check against the account of another person by way of accommodation is still liable under BP 22. It reiterated that the agreement surrounding the issuance of a check is irrelevant to the accommodation drawer’s prosecution.

LIABILITY OF CORPORATE OFFICERS

The case of Gosiaco v. Casta15 reiterates the clear provision of law that provides for the criminal liability of corporate officers who issue bad checks in the corporation’s name. It was further held that the personal liability of the corporate officer is anchored on the principle that he cannot shield himself from liability from his own acts on the ground that it was a corporate act.16

14 475 SCRA 476 (2005)15 585 SCRA 471 (2009)16 Llamado v. Court of Appeals 270 SCRA 423 (1997)

THE ISSUE OF IMPRISONMENT

Administrative Circular 12-2000, as clarified by Administrative Circular 13-2001, merely establishes a rule of preference in imposing penalties for violations of B.P. 22, not to remove imprisonment as an alternative penalty. When the circumstances of both the offense and the offender indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone -- instead of imprisonment -- is the preferred penalty. The decision to impose only a fine, according to the Circular, rests solely on the Judge. The Court stressed that should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular 12-2000 ought not be deemed a hindrance.

In the words of the Circular,

1. It does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22;

2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work

5

violence on the social order, or otherwise be contrary to the imperatives of justice;

3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment

RETROACTIVITY OF SC-AC 12-2000 17

The rule on retroactivity of criminal laws cannot be applied to Administrative Circular 12-2000, even if favourable to the accused on grounds herein provided:

1. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is not applicable. The circular applies only to those cases pending as of the date of its effectivity and not to cases already terminated by final judgment.

2. SC Admin. Circular No. 12-2000 merely lays down a rule of preference in the application of the penalties for violation of B.P. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law.

17 Go vs. Dimagiba, G.R. No. 151876, June 21, 2005

3. The Circular serves only as a guideline for the trial courts. Thus, it is addressed to the judges, who are directed to consider the factual circumstances of each case prior to imposing the appropriate penalty. In other words, the Administrative Circular does not confer any new right in favor of the accused, much less those convicted by final judgment.

PRIMA FACIE EVIDENCE OF KNOWLEDGE

Sec. 3. Duty of drawee; rules of evidence. - It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed, or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal.  In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that

6

the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check.   Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact.

Sec. 4. Credit construed. - The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank for the payment of such check.

REQUIREMENT OF WRITTEN NOTICE OF DISHONOR

It was held in the case of Ambito v. People that pursuant to the fundamental tenets of due process, for a prosecution under BP 22 to prosper, the drawer must be given a written notice of dishonor.18 This notice of dishonor must be actually sent to and received by the drawer to enable him to avert prosecution. Logically, the notice of dishonor is required in order to give the drawer a chance to make good on the check.

18 De Castro, Jose Arturo. Recent Supreme Court Cases in Philippine Criminal Law (4th Quarter of 2008 to 2nd Quarter of 2009). Central Books. (2009) citing People v. Ambito

Sec. 5. Liability under the Revised Penal Code. - Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code

B.P. 22 VERSUS ESTAFA

The law is explicit that a person can be prosecuted under the Penal Code provision estafa simultaneously with BP 22. The distinctions between the two are, however, still relevant to wit:

B.P. 22 ESTAFA Malum Prohibitum Mala in seIssuance of a check is for value or on account

The check is the means to obtain the valuable consideration from the payee (e.g. the debt is still pre-existing)

Deceit and damage are not elements of the crime

False pretenses or deceit and damage, or at least intent to cause damage, are essential to the crime

The drawer is given 5 days after receiving notice of dishonor within which to pay or to make arrangements for payment

The drawer is given 3 days to pay or make such arrangements after receipt of notice of dishonor

7

REPUBLIC ACT NO. 4200 (THE ANTI-WIRE TAPPING ACT)

BACKGROUND

Privacy is a fundamental human right recognized and protected by the 1987 Constitution of the Philippines. It is the right to be secure not only in one’s person or house against unlawful intrusion or invasion but also includes the right to secure one’s communication and correspondence, whether it be spoken, written or electronic. The basic attribute of an effective right to informational privacy is the individual’s ability to control the flow of information concerning or describing him, which however must be overbalanced by legitimate public concerns.  To deprive an individual of his power to control or determine whom to share information of his personal details would deny him of his right to his own personhood. For the essence of the constitutional right to informational privacy goes to the very heart of a person’s individuality, a sphere as exclusive and as personal to an individual which the state has no right to intrude without any legitimate public concern19.

This right to privacy of communication, as mandated by the Art III, Sec 3(1) of the 1987 Constitution, shall be inviolable subject only to a lawful order of the court or when vital for public 19 Dissenting Opinion of Justice Ynares-Santiago on Kilusang Mayo Uno vs. Director- General of NEDA

safety. The privacy of communication and correspondence is further strengthened with the enactment of Republic Act 4200 entitled “An Act to Prohibit and Penalize Wire Tapping and other related Violations of the Privacy of Communication, and for other Purposes" or simply the Ant-Wire Tapping Act which particularly prohibits and penalizes wire-tapping as defined by law.

Section 1. 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 detectaphone 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

8

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 Sec. 3 hereof, shall not be covered by this prohibition.

WHAT IS WIRE TAPPING?

Wire Tapping is a form of electronic eavesdropping or electronic surveillance performed by seizing or monitoring communications of whatever nature by means of clandestine recording or listening mechanism.

WIRETAPPING DOES NOT PROHIBIT RECORDING OF ALL COMMUNICATIONS

The law merely prohibits the recording and interception only of private communication, or those communications between persons privately made. The law does not prohibit the recording of public speeches or other forms of “public” communication such as interviews, press conferences and other similar communications.

Likewise, the law does not prohibit the recording of private communication that are authorized by ALL parties. Such consent may be express or implied depending on the circumstances.

PUNISHABLE ACTS

The law punishes the following acts:

1. To tap any wire or cable or to use another other device or arrangement to secretly overhear, intercept or record a private communication or spoken word without any court valid court order; or

2. To possess any tape, wire, disc or other copies and records of a communication illegally obtained; or

3. To replay an illegally obtained recording or communication 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

4. Acts of peace officers in violation of Sec. 3 of R.A. 4200 on the proper procedure for securing a court order authorizing the wiretapping of private communication; or

5. To willfully or knowingly aid, permit or cause to be done the acts described above

9

THE PROHIBITION AGAINST WIRE TAPPING APPLIES ALSO TO ONE OF THE PARTIES

The law 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 does not make any 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. 420020.

THE PHRASE “ ANY OTHER DEVICE OR ARRANGEMENT” IN SEC. 1 OF REPUBLIC ACT 4200 DOES NOT INCLUDE AN EXTENSION LINE

The Supreme Court ruled in the case of Gaanan vs. Intermediate Appellate Court (1986) 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 was neither among those

20 Ramirez vs. Court of Appeals, Sept. 28, 1995

“devices or arrangements” enumerated therein pursuant to the rule of statutory construction that particular clauses and phrases of the statute should as a in fixing the meaning of any of its parts. 

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose.

ELEMENTS TO SUSTAIN A CHARGE OF POSSESSION OF A TAPE, WIRE, DISC OR OTHER RECORD, OR COPIES OF AN ILLEGALLY OBTAINED RECORDING OF A PRIVATE COMMUNICATION

1. That an illegal wiretap actually took place;

2. that the recording or communication in the possession of the accused emanates from that illegal wiretap; and

10

3. That the accused knew that the recording was obtained illegally.

THERE MUST BE PERSONAL KNOWLEDGE SUSTAIN A CHARGE OF REPLAYING AN ILLEGALLY OBTAINED RECORDING FOR ANOTHER PERSON, OR COMMUNICATING ITS CONTENTS, OR FURNISHING TRANSCRIPTS OF THE COMMUNICATION

The prosecution must prove that the accused had personal knowledge that the recording was illegally obtained when he replayed or aired it partially or completely to any other person

Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding Sec. or who violates the provisions of the following Sec. or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings

PERSONS PENALIZED

The persons penalized for the violation of R.A. 4200 are not limited to those who have directly committed the acts mentioned in the preceding section but also extends to those who willfully and knowingly aid, permit or cause to be done any of the acts declared as unlawful or those violate acts included in the following section. This includes those who benefit from the use of the obtained communication as well as those who installed such devices used to gather the communication.

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. 21

PENALTY

Any person who commits any of the acts declared as unlawful by R.A. 4200 or violates any of the succeeding sections shall suffer the penalty of imprisonment for not less than six months or more than six years. In addition thereto, such person shall suffer the accessory penalty of absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and be subject to deportation proceedings if the offender is an alien.

21 Gaanan vs. Intermediate Appellate Court, October 16, 1986

11

Burden of proof to sustain a charge for violation of the act declared as unlawful under R.A. 4200

The prosecution must prove that a wiretap or other device was actually used to secretly overhear, intercept or record a private communication without a court order. Every essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. It is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegations must perforce include any negative element provided by the law to integrate that offense22.

Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding Sec.s 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

22 People vs. Macagaling, October 3, 1994

offenses against national security: Provided, That 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 such crimes; and (3) that there are no other means readily available for obtaining such evidence. 

The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number

12

involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the

court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

THE COURT REFERRED TO IN THIS SECTION SHALL BE UNDERSTOOD TO MEAN THE COURT OF FIRST INSTANCE WITHIN WHOSE TERRITORIAL JURISDICTION THE ACTS FOR WHICH AUTHORITY IS APPLIED FOR ARE TO BE EXECUTED.

WHEN WIRETAPPING IS ALLOWED

Wiretapping is allowed only in favor of any peace officer who is authorized by the Court of First instance (now the Regional Trial Court) upon a written order. Such written order shall be granted only upon written application and application and the examination under oath or affirmation of the applicant and the witnesses he may produce.

In addition thereto, Art. III, Sec. 3(1) of the 1987 Constitution provides that the privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety or order requires otherwise.

REQUISITES FOR A WRITTEN ORDER

there must be reasonable grounds to believe that any of the crimes enumerated hereinabove has

13

been committed or is being committed or is about to be committed;

there must be reasonable grounds to believe that evidence that will be obtained are essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and

that there are no other means readily available for obtaining such evidence.

CRIMES COVERED BY A WRITTEN ORDER

1. 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, which must have actually been or are being committed;

2. kidnapping as defined by the Revised Penal Code, and

3. violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security

The crimes listed is exclusive and does not include offenses which are equally or more serious as those enumerated such as drug trafficking, murder, rape or kidnapping.

Sec. 4. 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.

INADMISSIBILITY OF WIRETAPPED EVIDENCE

R.A. 4200 provides that illegally obtained recordings of private communications are inadmissible in civil, criminal, administrative and/or legislative hearings or investigations. Not even the existence of such recordings may be admitted into evidence.

VOICE RECORDINGS OBTAINED THROUGH WIRETAPPING IS NOT PROHIBITED IN IMPEACHMENT PROCEEDINGS

Section 4 of R.A. 4200 expressly declares that illegally obtained recordings are inadmissible “in any judicial, quasi-judicial, legislative or administrative hearing or investigation.” Impeachment proceedings are “sui generis” and possess both political and non-political aspects23.

Impeachment, being in a class of its own, is therefore neither a judicial, nor quasi-judicial, nor

23 Francisco vs. House of Representatives, 415 SCRA 44

14

legislative nor administrative proceeding. Hence, there appears to be no legal bar to the admissibility of wiretapped recordings in impeachment proceedings. Since the law does not prohibit the use of illegally obtained recordings in impeachment proceedings, following the canon of statutory construction that which is not expressly prohibited by law is allowed, it follows that these recordings may be used in impeachment proceedings if Congress, sitting as the impeachment court, allows it under its rules24.

AUTHENTICATION OF ADMITTED VOICE RECORDINGS AS EVIDENCE IN CIVIL, CRIMINAL AND ADMINISTRATIVE CASES

A voice recording is authenticated by the testimony of a witness that25:

1. he personally recorded the conversation;

2. the tape played in court was the one he recorded; and

3. the voices on the tape are those of the persons such are claimed to belong

This ruling is consistent with Rule 11, Section 1 of the Rules on Electronic Evidence, which provides that “audio, photographic and video evidence of events, acts or transactions shall be admissible

24 ibid25 Navarro vs. Court of Appeals, G.R. No. 121087

provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.”

15