SINCE resurfacing last week, former poll commissioner Virgilio Garcillano has gone public twice, portraying himself a victim and convincing television viewers that there is nothing wrong with the phone conversations he had with Pres. Gloria Macapagal-Arroyo in the May 2004 elections caught on tape in what has come to be known as the "Hello Garci" recordings.

Lawyers are however not buying Garcillano’s line, arguing that he could in fact be criminally liable for his actions.

The other day, at the Black and White Movement countdown for Vice President Noli de Castro to withdraw support from the Arroyo government, lawyer-blogger Edwin Lacierda gave a sampling of Garcillano’s crimes on the basis of the affidavits executed by his nephew Michaelangelo "Louie" Zuce and his former security officer, army captain Marlon Mendoza, and the "Hello Garci" tapes. The Black and White Movement is contemplating on filing these charges:

Violations of the Revised Penal Code

  • Corruption of public officials (Article 212 of the Revised Penal Code) imposed against the person who made the offers or gave the gifts to a public officer

    Paragraph 7 of Zuce’s affidavit alleges that Garcillano, as Commission on Elections (Comelec) regional director for Region X, distributed:

    a) P20,000 to regional directors

    b) P15,000 to city election officers

    c) P5,000 to select Mindanao Comelec staff allegedly given by Pres. Arroyo in appreciation of their expression of support for her candidacy

    The offense carries a penalty of eight (8) years and one (1) day to 12 years.

  • Indirect bribery (when a public officer received a gift by reason of his office)

    Paragraph 17 of Zuce’s affidavit alleges that as Comelec commissioner, Garcillano received a cellphone as a gift from Lilia Pineda which was used as a hotline from which the President and other administration allies would contact him.

    The offense carries a penalty of two (2) years, four (4) months and one (1) day to six (6) years.

  • Direct bribery (Article 210 of the Revised Penal Code)

    Paragraph 22 of Zuce’s affidavit alleges that as Comelec commissioner, Garcillano received P12 million for himself to be used for "special operations."

    The offense carries a penalty of eight (8) years and one (1) day to 12 years, with a fine equivalent to three times the value of the gift.

Violations of the Omnibus Election Code

  • Coercion of subordinates (Article 261 [d] of the Omnibus Election Code)

    Garcillano allegedly influenced directly or indirectly his subordinates to aid Arroyo’s presidential campaign.

  • Undue influence (Article 261 [j] of the Omnibus Election Code)
  • Article 261 [z] (violation of the integrity of the ballots)

    Said offenses carry a penalty of not less than one (1) year but not more than six (6) years with no probation.

Violations of the Anti-Graft and Corrupt Practices Act (RA 3019)

  • Specific offenses pertain to Section 3 (a) — Persduading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations in connection with the official duties of the public officer.

    The offense carries a penalty of six (6) years and one (1) month to 15 years with perpetual disqualifaction from holding public office.

Canons of Judicial Ethics

Under the Omnibus Elections Code, a Comelec commissioner is subject to the Canons of Judicial Ethics. Based on testimonies, Garcillano violated Rule 3, which requires commissioners to be fee from the appearance of impropriety, and Rule 29, which forbids them to receive presnets or favors from the contending parties.

Lacierda contends that the same crimes were also evidenced in the Garci tapes, including:

  • grave threats (threatening to kidnap the relative of an election officer which Garcillano euphemistically called "soft touch"
  • Violating the integrity of the ballots with the following recorded statements as proofs:
  • a) "Ganito ang pagpataas ng iyong boto, eh malinis naman ang pagkagawa"

    b) "Will I still lead by 1 M?" followed by a reply "pipilitin natin"

    c) "Doon naman  sa Basilan at Lanao del Sur, ito ho yung ginawa nilang pagpapataas sa inyo, maayos naman ang paggawa eh"

  • Corruption of public officials (as he knew the officials to be bribed)
  • Direct bribery (accepting a bribe amounting to P1.5 to 2 million)  

Earlier, the Counsels for the Defense of Liberties (CODAL) also branded as legally and factually baseless Garcillano’s claim, backed by his political patron Rep. Prospero Pichay, that there was nothing wrong with the phone calls between him and Arroyo since many politicians, including members of the opposition, called the former poll commissioner during the elections.

The power relations between Pres. Arroyo and Garcillano, CODAL points out, is not akin to the latter’s relationship with other politicians.

As the appointing authority, Pres. Arroyo is in a very influential position over Garcillano especially since he would constantly need her reappointment every time he is bypassed by the Commission on Appointments.  A mere request from Pres. Arroyo is a command for Garcillano.

Furthermore, the fact that other politicians also called him does not absolve Pres. Arroyo and Garcillano from crimes and offenses under election laws. Pres. Arroyo and any politician, including the opposition, are all criminally liable for breaching election laws if they transacted with Garcillano to favor their candidacy.

CODAL is also demanding that Garcillano be held accountable for the following acts:

  • His flight and refusal to to address the issues against him, including his refusal to testify in Congress or appear before the NBI despite summons

A public official cannot claim ‘fear’ as an excuse for dereliction of duty.  He is liable for prision correccional under Art. 232 of the Revised Penal Code for his ‘refusal to execute the order of a superior authority’.  He and whoever hid him, may also be punished with arresto mayor to prision correccional for violating Art. 233 of the Revised Penal Code for their ‘failure to lend cooperation in the administration of justice and public service.’ Prision correccional carries the penalty of 6 years imprisonment.

CODAL likewise asserts that the crimes committed by Garcillano and Pres. Arroyo go beyond mere ‘talking’ with each other as the content of their conversations in the "Hello Garci" tapes are crimes in themselves under the Revised Penal Code, the Omnibus Election Code, the Anti-Graft and Corrupt Practices Act, RA 6713 or the "Code of Conduct and Ethical Standards for Public Officials and Employees" and the 1987 Constitution for the following acts:

  • Pres. Arroyo’s order or ‘request’ for Garcillano to ‘delay’ the canvassing of senatorial elections is in violation of various provisions of the Omnibus Election Code, particularly Section 231 which prohibits anyone from delaying an election process. Pres. Arroyo also violated Section 3 (a) of RA 3019 or the Anti-Graft Law for ‘persuading or influencing another public officer to perform an act constituting a violation of rules and regulation’  promulgated by the Comelec.
  • Pres. Arroyo’s implied request for Garcillano to deny any petition from Sen. Biazon to open election documents in Tawi-Tawi ‘at baka matalo ako dun’ is a crime. Influencing an official to decide one way or the other in a case to be filed or pending before him violates Section 261 of the Election Code.

    It also violates RA 6713 or the "Code of Conduct and Ethical Standards for Public Officials and Employees" particularly Section 4 (c) which requires public officials to refrain from "committing acts contrary to law, morals, public policy and public interest."

    It also violates Section 3 of RA 3019 or the anti-graft law for ‘persuading and influencing a public official’ to commit an offense in connection with his official duty.

    Both Garcillano and Pres. Arroyo violated Article 210 of the Revised Penal Code on Direct Bribery which punishes a public official and the person who induces him to ‘perform an act which constitutes a crime, in connection with the performance of his official duties, in consideration of an offer, promise, gift xxx. The offer or promise in this case is the reappointment of Garcillano to the Comelec if he is bypassed by the Commission on Appointments.

  • Garcillano admitted to electoral fraud when he told Pres. Arroyo: "kinausap ko na yung chairman of the Board ng Sulu, yung sa akin. Pataguin ko muna ang EO ng Paguntaran  para hindi sila makatestigo ho." A COMELEC official is not supposed to ‘hide’ an election officer or any member of the electoral board to prevent said official from testifying as this is obstruction of justice under  Sec. 1 (a) of PD 1829. If the hiding was not ‘voluntary’, Garcillano may even be liable for kidnapping.
  • From various conversations in the Garci tapes Pres. Arroyo and Garcillano may be held criminally liable for discussing the commission of electoral fraud.  Alleged statements like ‘ganito ang pagpataas ng iyong boto, eh malinis naman ang pagkagawa’; or "will I still lead by 1 M’ followed by a reply of ‘pipilitin natin’; or ‘Doon naman sa Basilan at Lanao del Sur ito ho yung ginawa nilang magpataas sa inyo, maayos naman ang paggawa eh" followed by a reply from Pres. Arroyo saying  "so nagma-match?" all point to a conspiracy to manipulate election results. 

    The fact that Garcillano and Pres. Arroyo uses the words ‘atin’ referring to themselves and ‘kanila’ or ‘kabila’ when referring to her opponents, already shows the bias of a supposedly independent constitutional official. All these makes both of them liable under Section 261 (z) (21) of the Omnibus Election Code for violating the integrity of election returns and other election documents and other electoral fraud.

  • Should Pres. Arroyo claim ignorance to electoral fraud, the fact that she failed to report Garcillano to the proper authorities or filed a complaint against him, despite his frank admission to committing election offenses and by reappointing him to the Comelec, makes her liable under Art. 208 of the  Revised Penal Code which provides for a penalty of prision correccional upon a public official who in dereliction of his duties, ‘shall maliciously refrain from instituting prosecution or the punishment of  violators of the law or shall tolerate the commission of offenses.

17 Responses to Garci criminally liable for his actions — lawyers

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julian

December 2nd, 2005 at 6:33 am

MABUHAY AND PCIJ!

I BELIEVE NA WALA NA TALAGA PAGASA PAG HINDI NAPABAGSAK
SI GLORIA ARROYO VERY SOON. SHE WILL USE ALL HER POWER TO STAY
UNTIL 2010. DAPAT WE SHOULD RISE UP IN ARMS! CONVINCE OUR
KAPIT BAHAYS TO DO CIVIL DISOBEDIENCE AND WE MUST GIVE SHELTER
TO THE PATRIOTS LIKE SAMMY ONG! DAPAT PATAYIN NA YAN SI
PGMA NG PSG! KELAN PA BA NILA I-REDEEM MGA SARILI NILA!?
YANG MIKE ARROYO NA YAN ANG KAPAL NG MUKHA! DAPAT IPA-KIDNAP NAYAN SA ABU, J.I. OR RSM! SI GARCI TINAGO
NIYA, NOW SCRIPTED NILA ILALABAS!? SOBRA NA! TAMA NA!
PABAGSAKIN SI GLORIA AT ANG KANYANG CORRUPT REGIME!

UMALSA NA TAYO!!!

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Toro

December 2nd, 2005 at 7:23 am

So many violations, I would not even say allegations, and enough witnesses to put Garci behind bars, so what are these lawyers waiting for? If only these lawyers will put their money where their mouth is instead of puro daldal at pasikat maybe we can even challenge the mettle of the new Ombudsman how far will she really go if Garci is brought to trial with Gloria as co-accused or accessory.

Why can’t the BWM do something sensible like this instead of that useless People’s Kangaroo Court that was a big flop and that ridiculous deadline they set for the VP to resign? Noli did not even show up, so what now BWM? Any more stupid ideas?

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eyesWideopen2

December 2nd, 2005 at 7:54 am

I’m pissed off. if all this lawyers believe this to be so. if this opposition senators, congressman believe they have the stuff to nail garci down… bakit pa pina pabayaan nilang diktahan sila ni garci.

kainis!

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Rizalist

December 2nd, 2005 at 8:43 am

[off topic] Philippine Daily Inquirer removed an article yesterday about the SEA Games and the First Gentleman. But shades of your own TRO woe, I found it in Google Cache. Please visit Philippine Commentary for this important issue involving the Media, self-censorship and the People’s Right to Know

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Myrna Padilla

December 2nd, 2005 at 10:37 am

Hay naku mga Inday at Ondoy, kailan pa kaya magkaroon nang pagbabago ang ating bansa. Glor…..ia,talaga naman tapang ang apog niya.

If i am in her shoes, I rather live privately and step down from her post, repent and know herself what she really want. It’s a shame for her and a shame for all Filipino citizen of what was going on in hello Garci’s converstation. Tag as Filipinos as manluluko.

People can’t live What Glor..ia believe so better for her to just step down. She must be real in order for her to get things right.

Maraming violation sila Glor..ia at Garci bakit marami pang dakdak …. hindi nalang parusahan.

Kapoy na kaayo. Lets move on.

Salamt po.

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Toro

December 2nd, 2005 at 10:51 am

I say BWM or some lawyers group who really want the truth press criminal charges against Garci now with the Ombudsman for the violations committed. Include Gloria as accessory with the conditional statement that the charges against her will be pursued once she loses her presidential immunity from suit. This puts officially on record that a pending case awaits Gloria when she finishes her term.

I was hoping Escudero or Peter Cayetano would keep their promise to bring Gloria to court at the proper time, but on second thought I’ve had enough disappointments with politicians that I find them unreliable. It’s quite likely these two guys will be kept busy chasing a seat in the Senate next election, and like common politicians they may even cozy up later with Gloria to pursue their political ambition.

I don’t believe we will ever find the truth, let alone closure, in the congressional hearings. The politicians will only muddle the issues. Bringing Garci to a court of law is a better recourse where justice may be served and give the closure we all look for.

I would not hesitate to do this if I were a lawyer. I hope those who are in a position to initiate this call will give this matter some serious thought.

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Rizalist

December 2nd, 2005 at 11:21 am

When they came for the Jews, I didn’t care. Because I am a Gentile, not a Jew.

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jester-in-exile

December 2nd, 2005 at 12:06 pm

“Lawyers are however not buying Garcillano’s line, arguing that he could in fact be criminally liable for his actions.”

let the lawyer who has balls file the first suit.

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KaBlog

December 2nd, 2005 at 2:25 pm

I thought that the election rigging by the magicians is just a domestic problem… but it’s not! Soon Filipinos will be tagged as cheater/rigger! Look at Thai PM, he easily commented that there was cheating in SEA Games.

THIS IS THE EFFECT OF GARCI, GLORIA, BIG FAT LIAR MIKE A and the puppets!

This is completely a disgrace to all Filipinos! Jailed the cheaters! Show to the whole world that we are people of principle and honor!

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ka emong

December 2nd, 2005 at 7:17 pm

garci ang kapal ng mukha mo……. ikaw pa ngayon ang may ganang mag dikta kung ano ang gusto mo…. ang kapal ng apog mo. mahiya ka sa balat mo.

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luzviminda

December 3rd, 2005 at 2:34 am

Now that the CCTA have evidences to pin down Garci & GMA, let us charge them in court. If possible, let also the people of the Philippines (by signature campaign) sign the charge sheets. Tama na ang inquiry. KASUHAN NA AGAD para walang bisa ang EO464. Binaboy ni Garci ang ating mga boto na dapat ay kanyang pangalagaan. Let GMA & Garci talk to each other by phone on separate jails.

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bukolitos

December 3rd, 2005 at 4:30 am

Can anyone clarify some issues. I’ve heard on TV that since the impeachment have been killed, GMA should have no fear in admitting whether it was her voice on that tape. Does it mean that she can no longer be impeached on that ground, because the congress killed it? How about the Fertilizer scam, the health insurance scam? Di hindi na niya kailangan suholan ang mga kongrehista uli.

Sabi nila, kaya lumabas si Garci para ayusin ang SEAGames. Inatasan naman ni GMA ang Kongreso para imbestigahan ang paratang ng Thailand Government.

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jr_lad

December 3rd, 2005 at 1:36 pm

i agree that instead of pressuring glue-ria, CCTA & other groups should pressure garci. bring all of these allegations to court. file up court cases against garci. if all these cases are proven as true. it’s like a life sentence already for garci. and maybe, he will succumb to these pressures and bargain for immunity later in lieu of revealing all that he knows about the election cheating.

you are right Kablog. the CHEATING scandal is not only confined to our domestic affair. it seems our neighbors are well informed also. it’s truly a disgrace. i think the accussation of the thai pm has more weight on politics. it seems he is associating the outcome of the games to the cheating done by our politicians, glue-ria in particular. and he has not even watched the games as reported. so unfair for our athletes and to us filipinos. i take his accussation as directed to all filipinos as cheaters. and to think that thailand is famous for hometown decisions everytime the games are held in their country.

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jr_lad

December 3rd, 2005 at 1:51 pm

i should say, “the opposition (not CCTA) and other cause-oriented groups should pressure garci”.

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naykika

December 4th, 2005 at 12:05 pm

I do not know what are the legal procedure of bringing cases to court, but i am so confused what has the politician has to do with criminal wrongdoings. I believe they are the legislative body of the governent and the justice system are the responsibilities of the Police Authorities or Justice Department.

I also believe we have the so called public attorneys(crown, federal) to do this job. Now, what are these people doing? If they believe they have sufficient evidence to bring “Garci” before the court file the proper charges, prepare the case and resolve it once and for all. If we just have this and that do this and that my gosh we can forever be blogging about this subject ’til I retire. And 5 years is very long to resolve (my retirement) a crisis that we here in Canada could have done by simply asking our RCMP (Royal Canadian Mounted Police) to take over in may be matter of months.

So, I strongly suggest everybody take a deep breath; now stick to our legal procedure and everything will be fine. If not I don’t know yet..

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kikz

December 6th, 2005 at 2:54 pm

Let’s Rise up in arms and bring dowm Glue-ria…
Ang kapal talaga in Ate Glue…

Sobra na, Tama na!!!

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tongue in, anew

December 7th, 2005 at 6:50 am

It is not difficult to understand why even the brightestand most fearless of lawyers are having second thoughts in filing cases in the courts. The hoodlums in robes are tied to the Miniscule Puppet Master GMA who pulls their strings and dictates the way they act. It is very clear to them, by way of the actions (or inactions) of their supervising agencies to which direction the puppets bow.

The Ombudsman, the people’s guardian against abusive officials, is a lame excuse for a watchdog. This office can act moto propio and investigate on the basis of an unsigned complaint, a news item, or a mere tsismis, or bulung-bulungan, or a complaint written on the back of a cigarette pack. Despite all that we have seen, has the Ombudsman even tried to investigate such things as the Gloriagate? The Road user’s tax scandal? The fertilizer scam? The Philhealth cards? NorthRail? And gazillions of other scams and scandals this government is now famous (or infamous) for worldwide? Hell no!

How about the DOJ? And all its underlings? Its inutile secretary is wasting taxpayer’s money doing everything he can do…except giving justice where it is needed. Even the NBI, which years before was the last hope of victims seeking justice when they doubt the police. Not anymore.

The Supreme Court? Nah. Not a supreme court that acts on the whims of its chief spending millions in drapes and chairs when most courts lack decent halls. Or creatively defining what “resignation” means. Or conveniently interfering in the work of congress when Malacañang wishes (especially if its chief is going to be impeached).

Even the military courts, taking cue from the Comm-in-Chief, dispenses one kind of justice for one group, and one kind for another. Unluckily for Garcia, he belongs to Class ’71 from which mistahs Honasan and Lacson come from.

Not even Congress. With EO 464 to kill all opposition-initiated investigations, not to mention the billions of our taxmoney used to bribe the congressmen to favor the midget and her seven hundred dwarfs. A congress that is more often without quorum unless ,of course, when there is word that moolah is to be provided by Malacañang, then they work overnight, di ba?

No lawyer is foolish enough to risk his name fighting the bastardized justice system, as damaged as all the other institutions in GMA’s dysfunctional government are.

Yes, Garci is criminally liable. So is Gloria. But I don’t see any Don Quixote charging against the windmill.

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