Department of Justice Secretary Vitaliano Aguirre has no legal grounds to cause

an action in violation of the Anti-wiretapping Law against Senator Risa Hontiveros

because the conversation caught by one of the cameras present during the senate hearing
is not obtained illegally and in secret manner. Section 1 of the Anti-wiretapping Law
expressly provides that 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 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.1

The said photo of the conversation was accidentally caught on camera by a journalist at
the senate hearing on the killing of 17 year old drug suspect Kian Delos Santos. The
content of the text message is directly against Senator Hontiveros. Department of Justice
Secretary Vitaliano Aguirre II was texting certain “Cong. Jing” who said that “ Naturuan
na ni Hontiveros ang testigo, Her questions are leading to questions.” Aguirre responded

1
See R.A. No. 4200 Section 1, Anti Wire-Tapping Law, underscoring and emphasis supplied.
by saying that “yon nga sinasabi ko dito very obvious kaya expedite natin ang cases nyo
vs her”.2

Sen. Hontiveros said in one interview that "There was no intent to tap or intercept
his messages. The law is clear. What is prohibited is willfully and knowingly committing
any acts constituting wire tapping." 3

The Anti-wiretapping Law is a special law that is Malum Prohibitum which does
not require the presence of criminal intent. Mere commission of the prohibited act
constitutes corresponding violations and sanctions and good faith is not a valid defense.
And aside from that, the provisions of the law enumerate those gadgets or device to be
use to commit the crime such as dictaphone or dictagraph or detectaphone or walkie-
talkie or tape recorder. Technically, visual acquisition of conversation is not one of those
laid down by law.

2
See http://www.gmanetwork.com/news/news/nation/625384/hontiveros-presents-photo-showing-aguirre-plotting-
against-her/story/
3
http://www.philstar.com/headlines/2017/10/03/1745049/aguirre-files-wiretapping-raps-vs-hontiveros
 Justice Secterary Vitaliano Aguirre has also no legal grounds to cause an action to
invoke his right to privacy against Senator Risa Hontiveros for the reason that he is in the
public hearing and he is aware that cameras are there to cover the proceedings. The
intention of the footage which accidentally caught his cellphone is not to get the
messages inside his phone but to have coverage of the senate hearing. In a place where
the public is present, we cannot simply say that one person violate our right to privacy
because in the first place, they are aware that they are in a public gathering or place as
well and that the expected lesser confidentiality and privacy.

Article III Section 3 paragraph 1 of the Philippine Constitution expressly states

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, as prescribed
by law.4

The Right to Privacy is in fact the foundation of most if not all of the human
rights and duties that are granted to individual citizens under a Constitutional
Democracy! The Right to Privacy is the Mother of all democratic rights.5

In Gamboa vs Chan,et al., G.R. No. 193636 July 24, 2012, the Supreme Court
ruled that the right to privacy, as an inherent concept of liberty, has long been recognized
as a constitutional right. This Court, in Morfe v. Mutuc, 43 thus enunciated: The due
process question touching on an alleged deprivation of liberty as thus resolved goes a
long way in disposing of the objections raised by plaintiff that the provision on the
periodical submission of a sworn statement of assets and liabilities is violative of the
constitutional right to privacy. There is much to be said for this view of Justice Douglas:
"Liberty in the constitutional sense must mean more than freedom from unlawful

4 http://www.officialgazette.gov.ph/constitutions/the-1987-constitution-of-the-republic-of-the-philippines/the-1987-
constitution-of-the-republic-of-the-philippines-article-iii/
5
http://philippinecommentary.blogspot.com/2005/12/right-to-privacy-and-publics-right-to.html
governmental restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of
fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men." The concept of
liberty would be emasculated if it does not likewise compel respect for his personality as
a unique individual whose claim to privacy and interference demands respect.

In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five
members of the Court, stated: "Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’
in time of peace without the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the ‘right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’ The
Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of
privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." After referring to various
American Supreme Court decisions, Justice Douglas continued: "These cases bear
witness that the right of privacy which presses for recognition is a legitimate one."

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully deserving
of constitutional protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity and integrity
of the individual — has become increasingly important as modern society has developed.
All the forces of a technological age — industrialization, urbanization, and organization
— operate to narrow the area of privacy and facilitate intrusion into it. In modern terms,
the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."6

The issue between the DOJ Secretary Aguirre and Sen. Hontiveros will tell us
about the exercise of our constitutional rights as well as the scope and limitations of the
Anti- wiretapping law. The law shall be interpreted as a whole and in a manner that it
protects the interest of the nation. We have to consider all the circumstances that are
present in every scenario and should apply the law without prejudicing another person.
The law is not created in the interest of a certain or limited person.

6
http://www.lawphil.net/judjuris/juri2012/jul2012/gr_193636_2012.html
 Final Paper
in
Legal Writing

Submitted By: Liane Lalaine P. Torres