Just Right
By Cyril Regalado

The flip side of the “Hello Garci” tapes
(Part 1)

If this were an ordinary criminal prosecution, it is quite certain, that, even with the admission by President Arroyo that she was the person talking to a “Comelec Official” in the famous audio recordings, the evidence cannot support a guilty verdict. While the President went so far only as to admit that she made the call to protect her votes and not to cheat, opposition quarters claim that the context of the conversation reveals a conspiracy to commit electoral fraud.

So let us assume that there indeed was a concerted effort between GMA and Garcillano to manipulate the outcome of the elections. Is this enough evidence of an election offense (assuming that we ignore the President's immunity from suit)? Committing a crime and conspiring to commit a crime are two different things. One is punishable by law but the other is, generally, not. Article 8 of the Revised Penal Code provides that “Conspiracy and proposal to commit felony are punishable only in cases in which the law specially provides a penalty therefor.” The Revised Penal Code only punishes conspiracies to commit, Treason, rebellion, Sedition, Combinations in restraint of Trade and Brigandage. As far as I know, there is no crime of conspiracy to commit an electoral fraud or offense, except a conspiracy to bribe voters or to coerce election officials or employees.

If what has been established in the tapes is that President Arroyo conspired with Garcillano to cheat, it doesn't prove that they performed acts to implement their plan. In short, there is no corpus delicti or body of the crime.

“an extrajudicial confession made by an accused shall not be sufficient ground for conviction unless corroborated by evidence of corpus delicti". Corpus delicti is proved when the evidence on record shows that the crime prosecuted had been committed (People of the Philippines, vs.Bardaje [G.R. No. L-29271. August 29, 1980.])

Prosecutors will readily realize that aside from the taped conversation, (the admissibility of which is already in doubt because it was obtained under dubious circumstances), or, at least the confession of President Arroyo, there must be extraneous proof that overt acts of cheating was committed and that it was done in furtherance of the conspiracy that was captured in the “Hello Garci” tapes. Presently, aside from allegations of “ dagdag bawas ”, there is no hard and concrete evidence of such.

But then again, as observed by Senator Pimentel, this is not just a legal issue, this is a political issue. Of course it is noteworthy to look at the ramifications of culpability because it is now apparent that the only option left for the opposition is impeachment. Resignation appears improbable and an EDSA type movement could not seem to take off the ground. (To be continued)