August 14, 2014
Reference: ACT Teachers Rep. Antonio Tinio (0920-9220817)
ACT Teachers Rep. Antonio Tinio on President Aquino’s move to amend the Constitution
Saan siya kumukuha ng kapal ng mukha para humingi ng second term? Ngayon pang napatunayan nang nagagawa niyang magsinungaling sa publiko, lumabag sa Konstitusyon at batas at sumuway sa mga desisyon ng Korte Suprema?
President Aquino has proven that he is truly a chronic liar. After lying to the public about the supposed abolition of Congressional pork while secretly perpetuating it, he has now belied his own statements by announcing that he is open to amending the Constitution in order to clip the powers of the Judiciary and allow himself to run for a prohibited second term.
This is the President lighting the signal fire. The announcement, made exclusively to handpicked interviewer, is obviously part of an orchestrated public relations effort that had been building up for weeks. We can now expect his minions in government as well as civil society to stage a manufactured “clamor” to extend his stay in office beyond 2016.
This is Aquino’s Arroyo moment. His complete reversal on his declared stand against charter change in order to seek another term echoes former President Arroyo reneging on her Rizal Day promise not to run again. This is Aquino breaking his oath to preserve and defend the Constitution.
Aquino proves how grand delusions of righteousness can foster dictatorial tendencies. After usurping Congressional power of the purse through his Disbursement Acceleration Program, he now wants to clip the powers of the Supreme Court that called him out for doing so. Who knew that Daang Matuwid could turn out to be a shortcut to tyranny? He may be an Aquino but he’s nothing more than a Marcos wannabe.
If only he learned the right lessons from his mother. Cory Aquino famously led a million-people march to oppose charter change. PNoy will learn for himself that Presidents who seek to extend their stay in office will be relegated by the people to the trash bin of history. ###
Listen to admissions from two of Aquino’s cabinet secretaries that PDAF-like pork is still being cooked and served to congressmen and congresswomen, despite the Supreme Court decision declaring them unconstitutional.
LEGAL MEMORANDUM ON THE ISSUE OF WHETHER REP. ANTONIO TINIO VIOLATED THE ANTI-WIRETAPPING LAW
By Bayan Muna Rep. Neri Colmenares
ACT Teachers Party-List Rep. Antonio Tinio filed an impeachment complaint against Pres. Benigno S. Aquino using as evidence the recorded proceedings of the hearing of the House Committee on Appropriations regarding the problems of members of the House of Representatives in accessing the scholarship slots allotted for them through the CHED budget in the 2014 General Appropriations Act.
In this hearing, CHED Sec. Patricia Licuanan, a member of the Aquino Cabinet, discussed how each congressman can access the P14 Million allotted for his or her “PDAF” for the scholars he or she selected.
Another set of evidence consisted of the recorded “briefing” where DOH Usec. Janet Garin discussed how members of Congress can access funds allotted for each congressman for “medical assistance” of their constituents under the DOH Budget in the 2014 GAA.
It must be noted that the Supreme Court declared unconstitutional PDAF or any similar funds which grant legislators the power to wield any form of post-enactment authority in the budget implementation including the selection of projects or selection of beneficiaries. “Beneficiaries” mean recipients of medical assistance or scholarships selected by members of Congress. PDAF or similar types of pork barrel funds have not only been used for patronage politics but also as a source of graft and corruption through fake projects or beneficiaries.
Rep. Tinio was recently threatened with an ethics complaint for violation of Anti-Wiretapping Law. It must also be noted that former Pres. Gloria Arroyo used the same tactic to threaten the opposition during the “Hello Garci” scandal—by using the wiretapping law against the whistleblowers and the people in general.
Issue: Whether or not Rep. Tinio violated RA 4200 or the Anti-Wiretapping Law for recording and publishing the contents of the abovementioned hearings.
ANSWER : NO, there was no violation of RA 4200.
Rep. Tinio or anyone using or possessing the recorded hearing did not commit any violation of RA 4200 because the said hearings or briefings are excluded from the ambit of the law and were not the private conversations the wiretapping of which is prohibited under the wiretapping law.
Section 1 of RA 4200 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.”
The same section also prohibits a person from “knowingly” possessing or using said recording.
The Usec. Garin Briefing
The briefing by DOH Usec. Garin ostensibly on the implementation of the DOH budget for 2014 could not by any stretch of imagination be considered a “private conversation”. It was attended by members of Congress, and even legislative staff of the various offices as notices were given to all the offices before the said “briefing” was held. In fact, no one is raising the issue of “executive session” in this hearing because this is practically a public hearing.
The Sec. Licuanan Hearing
Similarly, the Licuanan hearing on “CHED scholarships” could not by any stretch of imagination be considered a private conversation. The hearing conducted by the Committee on Appropriations with members of Congress and an Aquino cabinet member was not a private conversation secretly held in a private place discussing a private matter. It was a discussion between public officials, on the allocation of public funds, in a public place and no court of law will declare this otherwise. The congressional deliberations on RA 4200 proves this point:
“Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly.
“Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person [that is protected by the law] — not between a speaker and a public.” (Congressional Record on the deliberations of RA 4200, Vol. III, No. 33, p. 626, March 12, 1964)
Pres. Arroyo used the same threats of prosecution under the wiretapping law against those who exposed the “Hello Garci” tapes. This was resolved against Pres. Arroyo by the Supreme Court in the case of Chavez vs. Raul Gonzales, GR 168338, 15 February 2008)
Citing a “possible violation” of the anti-wire tapping law, the NTC issued a “fair warning” PR to prevent media outfits from airing the Garci tapes. The SC waved the argument aside, saying, “The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the people’s right to information on matters of public concern.”
The claim that it was an “executive session” is also without legal and factual basis especially since under the Rules of the House, sessions or hearings should be public in nature.
Firstly, why should a discussion on “scholarships” be considered an executive session? Unless those who attended intend to commit an illegal act, those who claim the defense of “executive session” cannot explain or justify why the said Licuanan Hearing should be an executive session in the first place. In fact, Sec. Licuanan in her August 12, 2014 statement publicly declared that “There was nothing clandestine about the subject” which means there was no basis for an executive session. It must be added that, if an illegal act did take place in the hearing, any motion to declare this as an executive session is void since this privilege cannot be used to hide or cover up a crime or an illegal act.
Secondly, the issue in the Licuanan hearing cannot be deemed an executive session because there is no rule that allows for the same. Nowhere in the House Rules is a rule that allows for transforming a public hearing into an executive hearing because it will discuss issues related to CHED scholarships.
Even if we allow those who attack Cong. Tinio’s integrity to use Rule 7 of the Rules on Inquiries in Aid of Legislation, the same cannot pass muster because the hearing does not involve the only ground under that rule: national security. Rule 7 provides that “If the committee or subcommittee deems that the examination of a witness in a public hearing may endanger national security, it shall conduct the examination in an executive session, and shall make a determination of the necessity or propriety of conducting further examination of such witness in a public hearing”.
Clearly, there was nothing on the issue of “scholarships” that will threaten the security of the State. Furthermore, Sec. Licuanan was not a “witness” who will be discussing state security issues but a cabinet member discussing the allocation of presidential pork barrel given to congressmen in her agency’s budget. Unless Pres. Aquino admits to committing an illegal act and the publication of such endangers the security of his administration, no amount of assertion from the Aquino allies in Congress will justify the proceedings to be of the nature of an executive session.
Similarly, House Rule 81 on executive privilege is not applicable especially since the hearing was not a plenary session nor does it involve “national security” or “dignity of the House or its members.” House Rule 81 on executive sessions provides that “Sessions shall be open to the public. However, when the security of the State or the dignity of the House or any of its members are affected by any motion or petition being considered, the House may hold an executive session.”
The Licuanan hearing was discussing pork barrel, not any motion or petition that affects national security or the dignity of the House in a plenary session. Unless House members admit that the hearing involves an illegal act on their part and therefore taints their “dignity”, the hearing will never qualify as an executive session.
There is the problem, therefore, for those who claim that Rep. Tinio violated the wiretapping law. They can only claim that it is an “executive” session if they admit to an illegal act. But even then, the said session will not be considered by the court as an executive session because the privilege cannot be used to commit or cover up a crime or an illegal act.
Parliamentary privilege does not attach to non-parliamentary activity. Liberty, Privacy and Dignity interests are the values protected by the search and seizure right – the plain meaning and purpose and scheme of RA 4200 will not support a criminal prosecution that does not impinge on these interests.
There is, therefore, no way that Rep. Tinio can be liable for a violation of a House Rule or any law for that matter. In fact, his act is a great service to the public because it exposes the continuing existence of PDAF and the presidential pork barrel which has drained billions of public funds and deprived the poor of the basic social services they need. It also brings to the fore the culpability and accountability of Pres. Benigno Aquino in maintaining the pork barrel system that was declared illegal and unconstitutional in his attempt to exercise control over Congress.
The member of the so called Party-List Coalition who threatened Rep. Tinio with an ethics case has practically exposed himself as the voice of Malacanang and not the voice of the marginalized and underrepresented who they claim to represent. Instead of supporting the revelation of the pork barrel that has been the subject of corruption and resulted in depriving the poor of funds for basic social services, he stood in support of pork barrel. He continues to insist that public funds should not go directly to the people but should pass through him and other members of Congress. This is a betrayal of the people that must be condemned by the public and the-anti pork barrel groups. In fact, the people should be outraged on the fact that a selfless act of exposing a major source of graft and corruption by Rep. Tinio is being silenced by a threat of sanctions.
Pres. Aquino is the accountable public official here because he persisted in implementing the PDAF and the pork barrel system which was not only declared unconstitutional by the Supreme Court but has been a major source of corruption and patronage politics with the aim of violating the separation of powers by imposing his will on Congress.
Use of the Recordings as Evidence
The recorded hearings can be used as evidence in the proceedings against Pres. Aquino whether in an impeachment complaint, an ombudsman case or a petition before the Supreme Court. These evidence can drive home the culpability and accountability of Pres. Aquino in perpetuating a system declared illegal by the Supreme Court.
Additionally, these same evidence may be used by the people or the “abolish pork” groups in filing a case before the Ombudsman against any member of Congress or a member of the Party-List Coalition who is proven to have persisted in the use of pork barrel funds and committed illegal acts. ###
Other Party-List Representatives have supported our demand for salary increases for teachers and non-teaching personnel, as embodied in our House Bill 245 or An Act Increasing the Minimum Monthly Salaries of Public School Teachers to Twenty Five Thousand Pesos (P25,000) and Non-Teaching Personnel to Fifteen Thousand Pesos (P15,000) filed by ACT Teachers Party-List Representative Antonio L. Tinio.
*Members of the Makabayan bloc of progressive party-lists
+ per the records of the House of Representatives Journal Service, as of 26 June 2014