Privacy of communication and the plight of the Indigenous Peoples

THE recent conflict between Justice Secretary Vitaliano Aguirre and Senator Risa Hontiveros highlights the need to re-examine the provision on RA 4222, the Anti-Wiretapping Law, which is intended to protect privacy of communication.

Earlier, lawyer Frank Lobrigo, in a commentary published in the Inquirer, noted that Sen. Hontiveros had taken possession of a copy of Justice Secretary Aguirre’s private communication in the form of text messages , and had used it to demand the secretary’s resignation. Lobrigo described as “unlawful secretly overhearing, intercepting, or recording a communication or spoken word… that it is unlawful for any person to knowingly possess any record of such communication, or to replay, communicate the contents, or further furnish transcriptions to any person.” The author further cites the Bill of Rights in the Constitution of 1987, as did the previous constitutions, 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.

But what lawyer Lobrigo failed to bring up is the nature of the exceptions under the privacy doctrine. And this is what some of us, as well as lawyer Oscar Franklin Tan, in his column last Monday are trying to do.

The Anti-Wiretapping Law falls under provisions on freedoms and rights to information. Some of us may remember our discussions on laws affecting the media that public interest or private safety or freedom of speech outweigh any right to privacy. Columnist Tan cites several cases – the 2013 Sigfrid Fortun case, where a confidential disbarment against an Ampatuan massacre lawyer was leaked to and reported by the press. Here, Supreme Court Associate Justice Antonio Carpio absolved media, ruling free speech trumps privacy in matters of public interest such as the Ampatuan trial’s conduct.

The same is true about persons of national stature or high government officials who cannot invoke privacy of information on matters that affect national interest.

Another is the US Supreme Court’s 2001 Bartinicki ruling where the court cited that the First Amendment (free speech) outweighs wiretapping law rights of journalists against personal right to privacy in publishing matters of public importance. One of the costs associated with participation in public affairs is an attendant loss of privacy, the court ruled.

FLAG, the association of human rights lawyers, further contends that three elements must be shown to prove a violation and they are (1) an illegal wiretap actually took place; (2) that the recording in the possession of the accused emanates from that illegal wiretap; and (3) that the accused knew, i.e., had personal knowledge that the recording was obtained illegally.

These issues should be taken into consideration in resolving this recent case on the privacy of communication.

*** About the same time that the Lower House slashed the Commission on Human Rights 2018 budget to P1,000, the National Commission for Indigenous Peoples (NCIP) received a similar treatment in its request for P1.188 billion for 2018. But there were varying reactions to the budgetary slash. Bayan Muna Rep. Carlos Zarate had earlier recommended the slash to P1,000 because of the agency’s failure to protect its ethnic leaders. This would send a strong message to the Lumads at a time when they are in Manila for their annual “Lakbayan.” Zarate noted that during the administration of President Benigno Aquino, 60 Lumad leaders were killed and during the Duterte administration, 30 leaders had already been killed.

On the other hand, Lakas at Alyansa ng Nagkakaisang Ayta ng Sanlakas (Lakas) said the slash would cripple the titling of ancestral lands to which indigenous peoples are entitled. The budget will be needed for activities such as research and documentation in the titling. Bishop Modesto Villasanta of the United Church of Christ in the Philippines noted that what will be needed is a review of the law that created the NCIP.

But Bro. Karl M. Gaspar, CSsR, Ph.D., anthropologist, theologian, and missionary who had spent years in committed participation in the lives and struggles Lumad communities of Mindanao, still finds hope. In his 243-page book Panagkutay 2017, he mobilizes anthropology, history, and theology in trying to understand the “disturbing tensions and accounts of the depths of desperation facing a swath of humanity in our midst that demand immediate collective action.”

He quotes the Lumad’s statement in one of the essays:

“The true state of the indigenous peoples is a state of conscious struggle for land, life, dignity, livelihood, culture, peace, and development. The life of indigenous communities is beset with problems inflicted by the State…The continuous suffering and our collective struggle against the same, characterizes the state of IPs. Whereas we used to maintain, develop, and govern our lands – we now are being subjugated, burdened, and relegated to the margins…We commit no less than ourselves to strengthen our ranks and advocate for our rights. We shall further assert our right to selfdetermination over matters that affect our lives and our children’s future. We commit to strengthen and develop our culture, traditions, practices, and beliefs… against the infringement of and oppressive foreign investors. We shall remain vigilant against historical injustices and discrimination, and we shall not hesitate to make this known to those willing to listen, and we shall consolidate our voices to force those who refuse to listen.”

But Dr. Gaspar asks: “How far are we willing to listen to their voices?”

This is a “must read” according to the book endorsers, and especially for those who want to further understand the struggle that the Lumads are experiencing to preserve their homeland.