Republic of the Philippines

National Capital Judicial Region

METROPOLITAN TRIAL COURT
Branch 47, Pasay City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- CRIM. CASE NO. M-PSY-09-09532-CR

For: RA No. 4200
(The Anti-Wiretapping Act)

CECILIA LAZARO,
Accused.
x------------------------------------------x

RESOLUTION

Before this Court is a Demurrer to Evidence filed by accused Cecilia Lazaro

through her defense counsels Atty. Emmanuel Lombos and Atty. Jonas Emanuel
Santos on July 23, 2010 for its resolution.

DEMURRER TO EVIDENCE

According to the defense as to why the accused Cecilia Lazaro should be

acquitted, the two (2) specific acts under RA No. 4200 (The Anti-Wiretapping Act)
which are alleged in the Information, namely: (1) secretly recording her November 10,
2008 phone conversation with the private complainant ; and (2) communicating the
contents of the secretly recorded phone conversation to other persons by broadcasting
the same as sound bites in a Probe segment aired on November 12 and 16, 2008 were
not established by the prosecution during the course of the trial. On October 7, 2009,
during the direct examination of the private complainant Ella Valencerina by the
prosecution, she identified the unedited recording of her November 10, 2008 phone
conversation with the accused Cecilia Lazaro, and to quote their conversation:

Ella Valencerina (EV): And most of these teachers know why we are doing this,
because we are not wanting naman in all of the materials that, you know, weve been
sending out, press releases that ... In fact, even up to now po ... I hope this is not being
recorded maam ha.

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Cecilia Lim Lazaro (CLL): No, no.

EV: This is not an interview po.

CLL: No, this is not an interview, but Im telling you that we are recording this
because we want this on record that we are calling you, thats the only
purpose.

Thus, if the original and unedited recording showed that the conversation was
recorded, then there can be no secret recording to complain of. Without this, there was
no secret recording that could have been broadcasted.

Also, defense pointed out that private complainant Ella Valencerina lied repeatedly.
She criminally perjured herself when she swore that her conversation with the accused
Cecilia Lazaro was secretly recorded without her knowledge. Contrary to the allegations
of the said private complainant who reiterated her May 14, 2009 Press Statement that
the GSIS is in no way involved in the filing of this case, meaning there was absolutely
zero involvement on the part of the GSIS and further asserted that no GSIS resources
or personnel were used by her in preparing, studying for and actually filing this case or
any of her submissions and pleadings in this case nonetheless during her cross-
examination, 1 she admitted that there were five (5) lawyers from the GSIS Legal
Department who assisted her in the filing of the case including the legal consultation,
drafting of the complaint and appearance before the Pasay City Prosecutors Office. She
has no receipt to prove that it was her not the GSIS who paid for her litigation expenses
such as, among others, costs for the paper, encoding and reproduction of her pleadings,
stamps for mailing, messengerial services, gas and transportation of the GSIS lawyers.
All these are in cavalier and brazen violation of the clear prohibition against government
lawyers accepting private engagement during their public tenure. Private complainant
Ella Valencerina claimed that she did not sue the accused Cecilia Lazaro to engage in
media harassment or to punish her for proceeding with her story on GSISs premium
based policy since she was the last person capable of harassing members of the press.
She claimed that she filed this case solely to redress a violation of her right to privacy
guaranteed by the Bill of Rights committed by the herein accused. However, it was
established by the defense during her cross-examination that: (1) She took the call from
the accused Cecilia Lazaro and spoke to her in her official capacity as Vice President for
Public Relations and Communications of the GSIS; (2) She spoke to the accused Cecilia
Lazaro when she was at her GSIS office and during GSIS working hours; (3) She spoke

1
See TSN dated October 7, 2009, pp. 57 and 58.

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to the accused Cecilia Lazaro as GSISs official spokesperson for the reasons why the
GSIS was unwilling to be interviewed about its Premium Based Policy; (4) Her
conversation with the accused Cecilia Lazaro dealt with those official reasons which her
earlier November 7 and 1, 2008 letters had previously relayed to Probe which she and
the GSIS had specifically requested Probe and accused Cecilia Lazaro to publicize; and
(5) She did not disclose or their conversation never dealt with any private matter
pertaining to her personal life during the entirety of that conversation with the accused
Cecilia Lazaro. There was nothing remotely personal or private conversation to accused
Cecilia Lazaro like her family, non-GSIS or non-work interests or activities, her financial
affairs or her physical or medical condition. The conversation dealt exclusively with an
official GSIS position that private complainant as a publicly accountable government or
GSIS official had the duty to publicize and which she was explaining.

The prosecutions evidence demonstrated that the said private complainant and
various Government Service Insurance System (GSIS) officials brazenly and shamefully
conspired against the accused Cecilia Lazaro, who is innocent, and engaged in the
misuse of the judiciary as a tool to punish the latter for covering and broadcasting what
they viewed as unfavourable story about an official GSIS policy adopted during the
tenure of the GSIS Chairman Winston Garcia. In the process, they meant to warn the
media practitioners, in no uncertain terms, that those who cover official GSIS affairs in a
manner the GSIS considers unfavourable will suffer the serious consequences of the
GSISs wrath. In short, they abused the judicial system to stymie press freedom and
prevent inquiry into their acts as accountable public officers performed on behalf of a
constitutionally accountable government agency.

The defense prayed that this case be dismissed and that the accused Cecilia Lazaro
be acquitted immediately , unconditionally and absolutely with prejudice of the crime
charged in the Information.

OPPOSITION

The prosecution averred that on trial here is the powerful media personality
Cecilia L. Lazaro, and the capacity of the judicial system to enforce laws of the land
against the high and mighty. Where the law criminalizes unauthorized recording
conversation. She got in quick succession the assurances of the accused, and just as

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soon suffered her deceit. It was VP Valencerina who was privately offended; it was her
privacy that was transgressed.

For the prosecution, the evidence clearly established beyond reasonable doubt all
the elements constituting the offense charged in the Information.

The following elements were fully established in evidence by the prosecution:

1. There was a private communication or spoken word between the accused and VP
Valencerina;
2. This communication or spoken word was secretly recorded by the accused in a
recording device;
3. VP Valencerina did not authorize the recording of the same communication or
spoken word; and
4. The accused communicated the contents of this recording to the public through
television.

The acts alleged in the Information vis-a-vis the elements prescribed by the
quoted law were fully and emphatically established through the various evidence of the
prosecution. In particular, VP Valencerina in her testimony recalled to the Honorable
Court the relevant facts that took place, constituting the offense, on November 10,
2008, with attendant events happening before and after that date, including as follows:
in letters to the probe television production of the accused, GSIS expressed refusal to be
interviewed by the Probe team for valid reasons; the accused persisted by calling up by
telephone VP Valencerina; the accused never asked authority to record the telephone
conversation; VP Valencerina expressed warnings against any attempt to record the
conversation, to which the accused acceded; deep into the conversation, the accused
finally admitted that she in fact was recording the conversation using her cellphone,
qualifying that it was to serve merely as evidence that the call was made; VP
Valencerina added that the same should not be aired; nonetheless, on November 12,
2008, with a replay thereof a few days later, the accused and her team used as sound
bites a portion of the secretly recorded conversation; VP Valencerina was saddened and
angered by the deception employed against her; and respondent forthwith sent a letter
protesting the acts done by the accused. None of these basic facts was disturbed even in
the course of the long and repetitious cross-examination by the counsel for the accused.

The prosecution opined that the telephone conversation was private in nature. It
cited Gaanan vs. IAC 145 SCRA 112 (1996), where our Supreme Court held that the
phone conversation was private because the words uttered were made between one
person and another as distinguished from words between a speaker and a public. Thus:
There is no question that the telephone conversation between complainant Atty. Pintor

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and accused Atty. Laconico was private in the sense that the words uttered were made
between one person and another as distinguished from the words between a speaker
and a public. The private character of the conversation between VP Valencerina and
the accused is far more indubitable here from the fact that VP Valencerina and the GSIS
had in two letters, refused repeatedly to be interviewed by accused Probe team. IF VP
Valencerina adamantly refused to be interviewed, it logically followed that she did not
want the said telephone conversation in question to become the public interview she
steadfastly repulsed. She clearly desired the private attribute of the same conversation
preserved. If the foregoing were not enough, during the telephone conversation itself,
VP Valencerina admonished against the recording and airing of the conversation ,and
the fact that the same telephone conversation does not partake of an interview. The two
party set up of a telephone conversation in question that made the same indubitably
private. In Navarro vs. CA 313 SCRA 153 (1999), the conversation was a confrontation
between two members of the press on one hand and a policeman on the other that
transpired in a police station, with the parties being aware of the presence of several
other persons not participant or privy to the conversation. The venue of conversation
was very much peopled, and there was no effort to keep the conversation from being
overheard by several persons not privy to the exchange , present in the venue. The
prosecution believed that the topic of conversation is immaterial to determine whether
the conversation is private or not. As held in Ramirez vs. CA 248 SCRA 590 (1995), The
nature of the conversation is immaterial to a violation of the statute. The substance of
the same need not be specifically alleged in the information. This confirms what reality
and logic more than suggests, i.e., that issues of public interest are as much as possible
topics for private communication as are personal matters, more light is provided by the
eminent Senator Lorenzo Tanada, in his Explanatory Note on the bill: It has been said
that innocent people have nothing to fear from their conversations being overheard. But
this statement ignores the usual nature of conversations as well as the undeniable fact
that most , if not all, civilized people have some aspect of their lives they do not wish to
expose. Free conversations are often characterized by exaggerations , obscenity,
agreeable falsehoods, and these expression of anti-social desires of views not intended
to be taken seriously. The right to privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state here, the framers of our
Constitution must have recognized the nature of conversations between individuals and
the significance of mans spiritual nature, of his feelings and of his intellect. They must
have known that part of the pleasures and satisfactions of life are to be found in the
unaudited, and free exchange of communication between individuals free from every
unjustifiable intrusion by whatever means. It cannot be disputed that RA No. 4200
makes no distinction as to the substance of conversation when considering the same as
either private or public. In the transcripts, the accused already secretly recorded a total
of 50 lines before she admitted , upon the determined questioning by VP Valencerina,

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her act of recording. From line number 1 up to line number 50, the accused never asked
for authority to record. The accused was actually forbidden by VP Valencerina from
making any recording. The disclosure of the recording was in fact a forced admission,
not made freely and voluntarily. The late disclosure by the accused was a further act of
deceit, meant to distract VP Valencerina. The sound bites aired from were very much
taken from the portion that was recorded secretly by the accused. The importance of
the foregoing facts is accentuated by the senate deliberations on the bill that became RA
No. 4200:

Senator Tanada: That is right. This is a complete ban on tape recorded conversations
taken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, Your Honor?

Senator Tanada: I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him. It is not fair, it
is not sportsmanlike. If the purpose, Your Honor, is to record the intention of the
parties. I believe that all the parties should know that the observations are being
recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tanada: I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him. It is not fair, it
is not sportsmanlike. If the purpose, Your Honor, is to record the intention of the
parties. I believe that all the parties should know that the observations are being
recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tanada: well, no. For example, I was to say that in meetings of the board of
directors where a tape recording is taken, there is no objection to this if all the parties
know. It is but fair that the people whose remarks and observations are being made
should know that these are being recorded.

Senator Padilla: Now, I can understand.

Senator Tanada: That is why when we take statements of persons, we say: please be
informed that whatever you say here may be used against you. That is fairness and that
what we demand. Now, in spite of that warning, he makes damaging statements against

6
his own interest, well, he cannot complain any more. But if you are going to take a
recording of the observations and remarks of a person without him knowing it that it
being taped or recorded, without him knowing that what is being recorded may be
recorded , that is unfair.

What is clear from the foregoing exchange is that the authority to record must be
sought, or at least the disclosure of intent to record be done at the outset.

There was no authority or consent of VP Valencerina before the recording was

made. Thus, at the time of the accused admission of the act of secret recording deep into
her telephone conversation with VP Valencerina, the crime was already consummated.
The admission of secret recording came after the fact. It did not cure the crime already
committed and consummated before that juncture. Record now, inform later is an
obviously wrong rule that cannot be allowed to seep into jurisprudence. It mocks a
serious law and the right to privacy of communication that all civilized societies hold
sacred and inviolable.

In conclusion, that prosecution declared that accused and her counsel have
predictable played the press freedom card, and cast the long and intimidating shadow of
the powerful press establishment upon the Honorable Court and these proceedings. The
prosecution, however, reposes full trust in the probity of the Honourable Court to
resist the misplaced gambit of press freedom and simply stay in the course of
straightforward task of reading the law, applying it on the undisputed facts, and letting
the axe fall where it should.

THE CHARGE

Accused Cecilia Lazaro stands charged with violation of Republic Act No. 4200
(The Anti-Wiretapping Act), the accusatory portion of the Information reads as
follows:

That on or about the 10th day of November 2008, in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused Cecilia L. Lazaro not being authorized by Ella E. Valencerina to record the
latters conversation with the said accused, did then and there wilfully, unlawfully and
feloniously , with the use of cellular phone secretly record the said conversation and
thereafter communicate the contents of the said recorded phone conversation to other
person by broadcasting the same as sound bites in the Probe episode aired over ABS-

7
CBN channel on 12 November 2008 at around 11:30 p.m. and for replaying the said
Probe episode on 16 November 2008 at around 1:30 p.m.

CONTRARY TO LAW.

STATEMENT OF THE CASE

During her arraignment, accused Cecilia Lazaro entered a plea of not guilty.2
On September 17, 2009, the Pre-trial was terminated. Trial on the merits ensued. On
June 15, 2010, the prosecution formally offered its evidence. Thereafter, it rested its
case. The motion for leave to file attached demurrer to evidence was granted.3

EVIDENCE FOR THE PROSECUTION

Testimonial Evidence

The prosecution presented as its lone witness the private complainant:

ELLA VALENCERINA testified that she knew the accused Cecilia Lazaro as a TV host
and that she had an occasion to speak to her when she called her on November 10, 2008
by phone.4 She was at her office in GSIS, Financial Center, Roxas Bld. ,Pasay City when
the accused called her up using her cellular phone.5 She watched the Probe Program on
the night of November 12, 2008. Among the other things they talked about is that she
told her, I hope that the conversation is not being recorded and the answer to her by
the accused Cecilia Lazaro is Yes.6 The particular subject matter of their phone
conversation is the request for reconsideration on the decision of the GSIS to be
interviewed in that program which they denied by sending Probe a letter to that effect.
She did not consent nor authorize the accused Cecilia Lazaro to record their
conversation.7 After watching the Probe episode on November 12, 2008, she got
angry.8 She consulted her lawyer friends on how she can bring a case against the
producers, the host and everyone else who are part of the Probe production. She decided
to file a case.9

2 See Order dated July 22, 2009.

3 See Order dated July 26, 2010.
4 See TSN dated October 7, 2009, p. 11.
5
See TSN dated October 7, 2009, p. 12.
6 See TSN dated October 7, 2009, p. 13.
7 See TSN dated October 7, 2009, p. 17.
8 See TSN dated October 7, 2009, p. 31.
9 See TSN dated October 7, 2009, p. 32.

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 During the cross-examination, she answered that she has no interior motive to file
this case.10 GSIS has no involvement in filing this case.11 No GSIS resources were used.12
She was assisted by her GSIS lawyers friends about her complaint-affidavit.13 Her
motion to produce dated 05 February 2009 was filed by the GSIS legal department
because the unlawful recording was done in the performance of her job as a Vice
President for Public Relation on November 10, 2008. 14 While her privacy was violated ,
she was performing her job as a public officer.15 She admitted that the Complainants
Memorandum dated 8 April 2009 filed at the Pasay City Prosecutors Office, it was
signed by the GSIS Law Office.16 Also, she admitted that the GSIS Law Office signed
her Motion for Additional Time to File Complainants Memorandum dated 20 April,
2008 and Motion for Additional Time to File Complainants Memorandum dated 27
April, 2008.17 She did not know if GSIS Law Office filed the Memorandum for her.18
The communication she has with the accused Cecilia Lazaro is private because it was
only between them.19 It was private in nature because the call was only to request to
speak with her about asking for a reconsideration of the decision she made as Vice
President of the GSIS.20 It was the first time that her voice was aired on the television
without her permission by the Probe show.21 She suffered injury as a result such as
anxiety, sleepless nights, weeping in the confines of my bedroom because she did not
want to see her children see her suffering (at this juncture the witness is crying).22 She
knew that it was her official act as a GSIS spokesperson that the call was made by the
accused Cecilia Lazaro which was made on government time and dealt on government
matters which the public has the right to know.23 She filed another case against the
accused Cecilia Lazaro at MTRCB.24

Documentary Evidence

The prosecution offered the following exhibits which were admitted by the
Court: (1) Complaint-affidavit of private complainant Ella Valencerina marked as
Exhibit A with sub-makings; (2) Counter-affidavit of accused Cecilia Lazaro marked
as Exhibit B with sub-markings; (3) Full transcript of the Probe Episode on
10 See TSN dated October 7, 2009, p. 37.
11 See TSN dated October 7, 2009, p. 57.
12 See TSN dated October 7, 2009, p. 58.
13
See TSN dated October 7, 2009, p. 62.
14
See TSN dated October 7, 2009, p. 64.
15 Ibid.
16
See TSN dated October 7, 2009, p. 68.
17
See TSN dated October 7, 2009, p. 69.
18 See TSN dated October 8, 2009, p. 5.
19 See TSN dated November 25, 2009, p.18.
20 Ibid.
21 See TSN dated November 26, 2009, p.22.
22 See TSN dated November 26, 2009, p.23.
23 See TSN dated November 26, 2009, p.31.
24 See TSN dated November 26, 2009, p.57.

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November 12, 2008 marked as Exhibit C with sub-markings; (4) Letter dated
November 7, 2008 addressed to Darlene Manese of Probe Productions from Ella
Valencerina marked as Exhibit D with sub-markings ; (5) Letter dated November 12,
2008 addressed to Darlene Menese of Probe Productions from Ella Valencerina marked
as Exhibit E with sub-markings; (6) Compact Disk (DVD Format) of the Probe
Episode on November 12, 2008 marked as Exhibit F with sub-markings; (7)
Transcript of the entire and unedited telephone conversation between Ella Valencerina
and Cecilia Lazaro on November 10, 2008 marked as Exhibit G with sub-markings;
and (8) Letter dated November 14, 2008 addressed to Cecilia Lazaro marked as Exhibit
H with sub-markings.

ISSUES

(1) Whether or not accused Cecilia Lazaro is guilty as charged;

(2) Whether or not there was a violation of the right to privacy;
(3) Whether or not accused Cecilia Lazaro is liable for damages; and
(4) Whether or not this Court is vested with territorial jurisdiction.

APPLICABLE LAW

Republic Act No. 4200 (An Act to Prohibit and Penalize Wiretapping and Other
Related Violations of the Privacy of Communication, and For Other Purposes) that took
effect on June 19, 1965 provides:

Section 1. 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,

10
criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be
covered by this prohibition.

Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause
to be done any of the acts declared to be unlawful in the preceding Section or who
violates the provisions of the following Section or of any order issued thereunder, or
aids, permits, or causes such violation shall, upon conviction thereof, be punished by
imprisonment for not less than six months or more than six years and with the
accessory penalty of perpetual absolute disqualification from public office if the offender
be a public official at the time of the commission of the offense, and, if the offender is an
alien he shall be subject to deportation proceedings.

Section 3. Nothing contained in this Act, however, shall render it unlawful or

punishable for any peace officer, who is authorized by a written order of the Court, to
execute any of the acts declared to be unlawful in the two preceding Sections in cases
involving the crimes of treason, espionage, provoking war and disloyalty in case of war,
piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act
No. 616, punishing espionage and other offenses against national security: Provided,
That such written order shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may
produce and a showing: (1) that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed or is being committed or is about
to be committed: Provided, however, That in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy
to commit sedition, and inciting to sedition, such authority shall be granted only upon
prior proof that a rebellion or acts of sedition, as the case may be, have actually been or
are being committed; (2) that there are reasonable grounds to believe that evidence will
be obtained essential to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means readily available
for obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose
communications, conversations, discussions, or spoken words are to be overheard,
intercepted, or recorded and, in the case of telegraphic or telephonic communications,
the telegraph line or the telephone number involved and its location; (2) the identity of
the peace officer authorized to overhear, intercept, or record the communications,
conversations, discussions, or spoken words; (3) the offense or offenses committed or
sought to be prevented; and (4) the period of the authorization. The authorization shall
be effective for the period specified in the order which shall not exceed sixty (60) days

11
from the date of issuance of the order, unless extended or renewed by the court upon
being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the
expiration of the period fixed in the order, be deposited with the court in a sealed
envelope or sealed package, and shall be accompanied by an affidavit of the peace officer
granted such authority stating the number of recordings made, the dates and times
covered by each recording, the number of tapes, discs, or records included in the
deposit, and certifying that no duplicates or copies of the whole or any part thereof have
been made, or if made, that all such duplicates or copies are included in the envelope or
package deposited with the court. The envelope or package so deposited shall not be
opened, or the recordings replayed, or used in evidence, or their contents revealed,
except upon order of the court, which shall not be granted except upon motion, with due
notice and opportunity to be heard to the person or persons whose conversation or
communications have been recorded.

The court referred to in this Sec. shall be understood to mean the Court of First Instance
within whose territorial jurisdiction the acts for which authority is applied for are to be
executed.

Section 4. Any communication or spoken word, or the existence, contents, substance,

purport, effect, or meaning of the same or any part thereof, or any information therein
contained obtained or secured by any person in violation of the preceding Sections of
this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.

Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or
accordingly amended.

Section 6. This Act shall take effect upon its approval.

RULING

Accused Cecilia Lazaro is not guilty as charged.

For accused Cecilia Lazaro to be convicted for violation of RA No. 4200 (The
Anti-Wiretapping Act), the following elements must be present:

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(1) There must be a person not being authorized by all the parties to any private
communication or spoken word;

(2) That person tap any wire or cable or use any other device or arrangement during the
private communication or spoken word between the parties; and

(3) The purpose of tapping any wire or cable or using other device or arrangement is to
secretly overhear, intercept, or record such communication or spoken word by using a
device commonly known as a dictaphone dictagraph or detectaphone or walkie-talkie or
tape recorder, or however otherwise described.

If the unauthorized person is one of the parties in the private communication or

spoken word, the elements to sustain a guilty verdict are:

(1) 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 effectivity of the Anti-Wiretapping Act in the manner prohibited by this law; or

(2) 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 Section 3 of RA No. 4200, shall not be covered by this prohibition.

The prosecution failed to discharge its burden in proving the guilt of the said
accused beyond reasonable doubt because all the foregoing elements of the offense were
not established.

First, there was no third person who wiretapped the phone conversation between
the private complainant Ella Valencerina and the accused Cecilia Lazaro.

Under our Anti-Wiretapping Act as to the first mode of committing the offense,
the person making the connection to a telephone wire is not a party to the private
communication. There is no such person in this case.

Wiretapping is to make a connection to a telegraph or telephone wire in order to

obtain information secretly.25 This making of a connection requires understanding of
the rudiments of a telephone to enable one to install a listening device to the circuit
carrying information between the phones. Does the accused Cecilia Lazaro has this
expertise in wiretapping such as tapping the outside telephone lines, installing bugs in

25 Collins English Dictionary Complete and Unabridged , HarperCollins Publisher, 2003 edition.

13
socket, attaching simple recording device in a telephone, hooking a recorder to a
telephone line, or using an equipment, bug and wireless communication to monitor
secretly a private conversation from a distance? The prosecution did not present any
evidence that herein accused knew a basic wiretapping technique. It must show before
this Court how did said accused wiretap the phone conversation on November 10,
2008. It must present to this Court what was used by the accused in wiretapping.
This is because the quantum of proof required to convict an accused must be proof
beyond reasonable doubt and the conviction must be based on the strength of the
prosecutions evidence and cannot rely on the weakness of the evidence of the defense.
Any circumstance which casts doubt on ones guilt should be resolved in favor of
acquittal of the case. 26 Because the accused Cecilia Lazaro admitted her recording of the
phone conversation but not to the wiretapping, the prosecution must prove each and
every element of the offense with absolute certainty. For every doubt created by the
prosecution in this case favors the accused Cecilia Lazaro, who enjoys the constitutional
presumption of innocence.

There is doubt that accused Cecilia Lazaro installed any device to bug, tap or
eavesdrop her own conversation with private complainant Ella Valencerina. The herein
private complainant did not know what device was used in the alleged wiretapping as
stated in the Information. Such device must be presented in Court to prove the
culpability of the accused without any shadow of doubt. Thus:

Court: You mean to say that you do not know what was the device used by the accused
Cheche Lazaro in the course of your conversation?

Ella Valencerina: She was calling me

Court: Just answer yes or no.

Ella Valencerina: I dont know of what device, your Honor.

Court: You are not sure if it was a celphone or tape recorder?

Ella Valencerina: No your Honor, because the line that was used was not my celphone
where I can see the number. The line that was used was the office number, a local
line, your Honor.

Court: There was no caller ID?

Ella Valencerina: It was my assistant who picked up the phone and transferred the call
to me, your Honor.

Court: No, Im asking you, if your line has a caller ID?

Ella Valencerina: No, I dont think so, your Honor. Its an old line. Wala pong caller

26 People vs. Sanahon, GR No. 132724, November 19, 2001.

14
ID.27

It bears stressing that recording is not outright wiretapping. The recording

contemplated by a simple reading of RA no. 4200 (The Anti-Wiretapping Act) is for the
purpose of tapping any wire or cable or using any other device or arrangement during
the private communication or spoken word between the parties. The recorder was used
to tap. When the accused recorded the phone conversation she had with private
complainant Ella Valencerina who has knowledge of this recording, this act was not
meant to tap. It was a simple recording by a reporter of a conversation which is not
punishable by law. However, when a third person recorded the phone conversation
between the accused and the private complainant at that time without their knowledge
or consent, to overhear their conversation secretly, this recording is a wiretapping as to
the first manner of the commission of the offense under RA No. 4200 (The Anti-
Wiretapping Act). And when the herein accused knowingly possess such tape record,
wire record, disc record, or any other such record, or copies about their wiretapped
phone conversation, or replay, communicate or transcribe it to others, this is
wiretapping as to the second manner of the commission of the offense under RA No.
4200 (The Anti-Wiretapping Act). The import of the law is clear. To apply the facts
adduced by the prosecution revealed that there was no wiretapping here by the accused
Cecilia Lazaro as to the first and second ways of committing RA No. 4200 (The Anti-
Wiretapping Act).

Second, from an assiduous analysis of the records of the case including the
testimonial and documentary evidence of the prosecution, there was no secret
overhearing, intercepting, or recording of such phone conversation between the private
complainant Ella Valencerina and the accused Cecilia Lazaro by either of them or by a
third person. Private complainant was aware of the recording of their phone
conversation to quote:

Court: You answered that you told the accused Cheche Lazaro that I hope that this is
not being recorded?

Ella Valencerina: Yes your Honor. I told her, Maam I hope youre not recording
this

Court: My question is, what was your reaction when the said accused told you, We
are recording this because we want this on record that were calling you?

Ella Valencerina: A lot of things were already going in my mind, your Honor, but she
already told me that she was recording it. It was already a statement, it was
already a fact that she was recording it even after so many after the exchange of
pleasantries in the middle of the conversation, it was after I told her that I hope she
was not recording it and it was not an interview. It was only then that she told me
that she was recording it for that purpose, only to show that she called me and then I

27
TSN dated May 24, 2010, p. 44.

15
told her, she should not air it or broadcast. Those were the three lines in the middle of
the conversation, your Honor.

Court: So, you admit before this Court that you have knowledge of the recording of the
said celphone conversation but you have no knowledge as to the airing?

Ella Valencerina: I wasnt even aware if it was a celphone conversation because she
called back my local line, your Honor. It was a conversation between the two of us
and in the middle of the conversation, it was then that I told her that I hope she wasnt
recording it and then she said no, no and I said Was that an interview? and she
said no, no but Im telling you Im recording this only to show that I
called you for that purpose only and so, I said Hwag nyo po ipapalabas, Im not
the spokesperson for this.28

The accused will not inform the private complainant at all of the recording if her
intention is to wiretap their conversation. The purpose of wiretapping is to secretly
overhear, intercept, or record such conversation. The secrecy here is to prevent
detection by the wiretapper, spy or eavesdropper. The recording is unknown to the
persons engaged in the private conversation. They are engaging in a private
communication yet both of them did not know that they are being recorded and heard
by another. This is not what happened in this case.

Third, the possession of the recorded phone conversation between the private
complainant Ella Valencerina and the accused Cecilia Lazaro or to replay such
conversation to the public is not prohibited by RA No. 4200 (The Anti-Wiretapping
Act) because the elements of the offense were not established. In Navarro vs. CA, G.R.
No. 121087, August 26, 1999, our Supreme Court ruled, The law prohibits the
overhearing, intercepting, or recording of private communications (Ramirez vs. Court of
Appeals, 248 SCRA 590 [1995]). Since the exchange between petitioner Navarro and
Lingan was not private, its tape recording is not prohibited. The subject matter of the
phone conversation between private complainant Ella Valencerina and accused Cecilia
Lazaro was not a private communication. In the first place, they are not friends for them
to talk about private matters. The phone conversation was a request for a
reconsideration of denial of interview by Probe to the GSIS Spokesperson about the
Premium Based Policy. While the phone conversation involves only the two of them to
make it look like private, the subject matter of their conversation is not private because
any person can actually interrupt them or join them at that time, either another Probe
reporter or another GSIS spokesperson to discuss, if not argue of their respective
position whether to grant or not the GSIS interview to Probe, since the subject matter
involved is of public importance, especially to the teachers numbering more or less Five
Hundred Thousand (500,000) affected nationwide, who deserve to know the GSIS
Premium Based Policy. If their conversation is private in nature, for example, they

28 TSN dated May 24, 2010, pp. 42 to 43.

16
are talking about family problems, no person can interrupt or join them without that
person appearing stupid or ridiculous. They can say to the person meddling in their
phone conversation about their family problems, it is none of your business to ask or
comment. However, they cannot say the same to any person who is interested to know
the GSIS Premium Based Policy which involves public interest. It is for this reason
that private complainant Ella Valencerina cannot actually decline a public interview on
GSIS Premium Based Policy because it involves public interest without running afoul
to some constitutional precepts of the Bill of Rights of the 1987 Constitution. The public
is entitled to know about this matter from her, including the reason why she is not
granting a public interview over this GSIS Premium Based Policy. She cannot just say
to accused Cecilia Lazaro or to any interested teacher who wanted to get an information
about it from her, It is none of your business. This is one way to distinguish whether
or not the phone conversation is private. Indubitably, such conversation is public.
Accused Cecilia Lazaro will not waste her time calling private complainant Ella
Valencerina if her purpose is to talk about personal matter with her. She will not record
personal matter about private complainant Ella Valencerina , much more broadcast it
on air because it is irrelevant and immaterial to the Probe segment Perwisyong
Benepisyo. The choosy public viewers , particularly the angry teachers, are definitely
not interested to watch personal matter about private complainant Ella Valencerina
and about a private communication with her by the accused Cecilia Lazaro as the host
of Probe which are both unrelated to the GSIS Premium Based Policy on television.

Indeed, a conviction must be based only on strong evidence without any iota of
doubt.29 It is preferable for the guilty one to remain unpunished and to go scot free than
for an innocent one to go to jail and suffer imprisonment there unjustly.30 To be sure,
it is the primordial duty of the prosecution to present its side with clarity and
persuasion, so that conviction becomes the only logical and inevitable conclusion. What
is required of it is to justify the conviction of the accused with moral certainty. 31 Where
there is no moral certainty as to their guilt, the accused must be acquitted even though
their innocence may be questionable. The constitutional right to be presumed innocent
until proven guilty can be overthrown only by proof beyond reasonable doubt.32 It must
be emphasized that in our criminal justice system, the overriding consideration is not
whether the court doubts the innocence of the accused, but whether or not it entertains
doubt as to their guilt.33

29 See People vs. Paguntalan, GR No. 116272, march 27, 1995.

30 See People vs. Mancao, GR No. 97495, October 30, 1992.
31 People vs. Fernandez GR Nos. 139341-45, July 25, 2002.
32 People vs. Baulite, GR no. 137599, October 8, 2001.
33
People vs. Wulliams, GR no. 125985. April 20, 2001..

17
 There was no violation of the right to privacy.

Article III, Section 3 of the 1987 Philippine Constitution provides:

(1) 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.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

The afore-cited provision of the Bill of Rights is meant to be invoked against the
State. It is not meant to be invoked against acts of private individuals like the herein
accused. The reasoning for this can be found in the deliberations of the Constitutional
Commission. Commissioner Joaquin Bernas in his sponsorship speech in the Bill of
Rights answers the query which he himself posed, as follows: First, the general
reflections. The protection of fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against the state. The Bill of Rights
governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What
the Bill of Rights does is to declare some forbidden zones in the private sphere
inaccessible to any power holder.34 For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not govern
relationships between Individuals.35 Our Supreme Court concluded that in the absence
of governmental interference, the liberties guaranteed by the Constitution cannot be
invoked against the State36 with more reason against private persons.37

In KMU vs. Director General, G.R. No. 167798 , April 19, 2006, our Supreme
Court ruled that: The right to privacy is the inalienable right of an individual to be let
alone. As a legal precept, the privacy of an individual takes its bearing from common
law which recognized a mans house as his castle, impregnable, often, even to its own
officers engaged in the execution of its commands. Although the great preponderance of
American judicial authority have recognized the existence of the right of privacy, it was
the publication in 1890 of Harvard Law Review38 article entitled The Right to Privacy
by Warren and Brandeis (later Justice Brandeis) which crystallized the right as an

34 Sponsorship Speech of Commissioner Bernas, Record of the Constitutional Commission, Vol. 1, p. 674; July 17,

1986.
35 People vs. Andre Marti, G.R. No. 81561, January 18, 1991.
36 Ibid.
37 The Writ of Amparo as the Sword of Excalibur Drawn from the Great Stone of Judicial Rule Making Power (Part

I), The Lawyers Review, Vol. XXIII, No. 8, August 31, 2009, p. 25.
38 4 Harvard Law Review 193 (1890).

18
independent legal right and opened the doors for a more systematic formulation of the
distinctive principles upon which it is based. That article synthesized at one stroke a
whole new category of legal rights and initiated a new field of jurisprudence.39 The U.S.
Constitution does not explicitly express the right to privacy, yet the U.S. Supreme Court
has repeatedly recognized, albeit implicitly, such a right in its efforts to preserve
the individuals control over his personal image. The U.S. Supreme Court, in
1965, recognized that privacy is within the legal penumbra of the Bill of Rights,
particularly in the First, Third, Fourth, Fifth and Ninth Amendments.40 In Griswold v.
Connecticut,41 the U.S. Supreme Court laid down the constitutional foundations of the
right to privacy. The Court recognized the need to protect basic constitutional rights and
applied the same against the states under the Due Process Clause, mandating a stricter
scrutiny for laws that interfere with fundamental personal rights than for those
regulating economic relations. One such fundamental personal right, the right to
privacy, was deemed to have penumbras, formed by emanations from those guarantees
that help give life and substance reasoning that the First, Third, Fourth, Fifth and Ninth
Amendments of the American Constitution imply zones of privacy that form the basis
for the general privacy right affirmed in Griswold vs. Connecticut. Philippine
jurisprudence on the right to privacy, not to mention informational privacy, is at its
infancy. There are very few occasions that Philippine courts are given the opportunity to
resolve and expound on issues relating to the right to privacy as a constitutional
guarantee. The basic attribute of an effective right to informational privacy is the
individuals ability to control the flow of information concerning or describing him,
which however must be overbalanced by legitimate public concerns. To deprive an
individual of his power to control or determine whom to share information
of his personal details would deny him of his right to his own personhood.
For the essence of the constitutional right to informational privacy goes to
the very heart of a persons individuality, a sphere as exclusive and as
personal to an individual which the state has no right to intrude without
any legitimate public concern. In Ople vs. Torres,42 the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle scientific
and technological advancements that enhance public service and the common good. It
merely requires that the law be narrowly focused and a compelling interest justifies such
intrusions. Intrusions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions. We reiterate that any law
or order that invades individual privacy will be subjected by this Court to strict
scrutiny.

39 62A Am Jur 2d, 635 3.

40 Griswold vs. Connecticut, 381 U.S. 479, 14 L Ed. 2d 510 (1965).
41 Ibid.
42 G.R. No. 93833, September 28, 1995, 248 SCRA 590.

19
 In the case at bar, there was no intrusion by the State to the right of privacy of
private complainant Ella Valencerina. To discuss further, there was nothing private
about the communication between private complainant Ella Valencerina and the
accused Cecilia Lazaro that was violated by the State. The airing of the recoded phone
conversation did not encroach into the private life of the private complainant by the
State. No private matter appertaining to the private complainant was recorded by
State. No personal life of the private complainant Ella Valencerina was destroyed as a
result of recording the phone conversation or broadcasting it live by the State. Accused
Cecilia Lazaros act of informing the public about the phone conversation she had with
the private complainant, a GSIS spokesperson, to obtain from her the reason why the
GSIS was unwilling to be interviewed about its Premium Based Policy is a part of the
legitimate exercise of a right of free speech which is constitutionally guaranteed and
protected. Our country cherishes freedom of speech as one of the fundamental rights of
every Filipino citizen. Thus, it is enshrined in our constitution that no law shall be
passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.43
This qualitative significance arises from the fact that it is a matrix of nearly other
freedom.44 It ranks higher than property in the hierarchy of constitutional rights.45 It is
believed that if our freedom of speech is abridged or muffled by our government
authorities, like GSIS in this case, it will rob our people of other liberties, more
importantly prevent them from complaining and voicing grievances which are
antagonistic to every democratic society. The transgression of the freedom to speech by
our government authorities, like GSIS in this case, poses constitutional issue and
actionable wrong. It is provided under Article 32 of the New Civil Code that, Any public
officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs the following rights and liberties
of another person shall be liable to the latter for damages: xxx (2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication xxx.46 The
Filipino citizens have the right to know about the GSIS Premium-Based Policy. This
right is enshrined in Article III, Section 7 of the 1987 Philippine Constitution stating:
The right of the people to information on matters of public concern shall be
recognized.

Accused Cecilia Lazaro is not liable for damages.

There is no justification for the award of actual, moral, exemplary damages,

attorneys fees and cost of suit in this case.

43 Article III, Section 4, 1987 Philippine Constitution.

44 See Palko vs. Connecticut 302 US 319 (1937).
45 Salonga vs. Pano 134 SCRA 438.
46 See Libel as Unprotected Speech, The Lawyers Review, Vol. XXIII, No. 4, April 30, 2009, p. 1.

20
 Actual damages refer to those recoverable because of pecuniary loss, which
include the value of the loss suffered and unrealized profits.47 Actual damages must be
proved and the amount of damages must possess at least some degree of certainty.48
Evaluating the private complainants documentary evidence, there was no evidence
whatsoever adduced by her to prove the actual loss suffered by her. There is no basis to
award actual damages.

There was no evidence introduced that the phone conversation between the
private complainant and the accused was deliberately intended to harm or prejudice
the former. At the most, what the accused did is a legitimate and genuine desire to
inform the public, particularly the more or less Five Hundred Thousand (500,000)
teachers nationwide, of the refusal of the GSIS to be interviewed about the Probe
segment Perwisyong Benepisyo that tackled problems in the GSIS Premium-Based
Policy. There was no intent to injure the private complainant in airing the Probe
episode by the accused Cecilia Lazaro. In order that moral damages may be awarded to
the private complainant, there must be a pleading and proof of moral suffering, mental
anguish, fright and the like.49 It is insufficient to merely allege the same in court, and it
is implausible for private complainant Ella Valencerina to cry when a question about
damages was propounded by the private prosecutor Atty. Alquin Manguerra because
she is not a victim of a crime against a person as defined in the Revised Penal Code or
Special Laws like crime of Rape or Frustrated Murder. Neither is she a relative of a
victim of such similar crimes that she must cry to share the sufferings of the victim. To
quote the prosecution witness:

Court: Madam Witness, awhile ago, the private prosecutor Atty. Alquin
Manguerra asked you about damages as reflected in TSN dated November 26, 2009,
page 23 and I quote your answer anxiety, sleepless nights, weeping in the confines of
my bedroom because I didnt want my children to see my suffering (At this juncture the
witness is crying) Would you tell the Honorable Court, what portion of the program
Probe that made you cried?

Ella Valencerina: It was the airing of a statement that was part of a conversation
between me and Ms. Cheche Lazaro and there was anxiety and there was anger
because that was not requested from me nor was any approval or consent to record or
broadcast or air, your Honor.

Court: You mean to say that GSIS will not punish you legally if you made those
statements in a phone conversation be aired publicly?

Ella Valencerina: Anxiety was part of that, your Honor, because during that you
will see from the stenographic notes that after I have warned her, I also told her that I
was not the spokesperson for this because in the GSIS, your Honor, we have a subject
matter expert and I was not the one that should have been pointed or any. So

47 8 Manresa 100.
48 Tomassi vs. Villa-Abrillee, L-7047, August 21, 1958.
49 San Miguel Brewery, Inc. vs. Magno, 21 SCRA 292.

21
Court: Did you violate any internal rules and regulations of GSIS by coming up with
those statements which were broadcasted by the Probe Team?

Ella Valencerina: As I said, your Honor, I am not the spokesperson. At that time

Court: Just answer the question of the Court. Im not asking about you not being a
spokesperson, Im asking if there was a violation of the internal rules and regulations
of the GSIS that prohibits you from saying statements that Probe Team broadcasted
on air?

Ella Valencerina: If there was consent, there is no problem but there was no consent,
your Honor.

Court: Consent of the GSIS or your consent?

Ella Valencerina: My consent, your Honor, when she broadcasted or aired a statement
of a conversation between the two of us. She was already dealing a topic that I am not
the expert. That is really why I told her that I hope its not being recorded nor should
not be aired because I am not the spokesperson for the topic, your Honor.50

Private complainant Ella Valencerina did not allege in her complaint-affidavit

about the damages due to her. She did not attach any proof of such damages in her
affidavit. It was held that mere allegations do not suffice; they must be substantiated
by clear and convincing proof.51

"While no proof of pecuniary loss is necessary in order that moral damages may
be awarded, the amount of indemnity being left to the discretion of the court, it is
nevertheless essential that the claimant should satisfactorily show the existence of the
factual basis of damages and its causal connection to defendants acts. This is so because
moral damages, though incapable of pecuniary estimation, are in the category of an
award designed to compensate the claimant for actual injury suffered and not to impose
a penalty on the wrongdoer.52

Neither is private complainant Ella Valencerina entitled to exemplary damages.

"If the court has no proof or evidence upon which the claim for moral damages could be
based, such indemnity could not be awarded outright. The same holds true with respect
to the award of exemplary damages where it must be shown that the party acted in a
wanton, oppressive or malevolent manner."53 Furthermore, this specie of damages is
allowed only in addition to moral damages such that no exemplary damages can be
awarded unless the claimant first establishes his clear right to moral damages. The same
principle holds true with attorneys fees and ligation expenses.

50 TSN dated May 24, 2010, p. 40.

51 Philippine National Bank vs. Court of Appeals, 266 SCRA 136.
52 Keirulf vs. Court of Appeals 269 SCRA 433
53 Philippine Airlines, Inc. vs. National Labor Relations Commission, 259 SCRA 459.

22
 This issue on damages was already settled in open court during the May 24, 2010
hearing. To quote:

Atty. Manguerra to the Witness (Ella Valencerina):

Q: Madam witness, on cross-examination, you mentioned that you suffered anxiety,

sleepness night, weeping in the confines of your bedroom because you did not want
your children to see your suffering as it appears in the TSN on November 26, 2009
page 23 (Counsel confronted the witness with the TSN).

A. That is correct, sir.

Q: So, my question is, if you have to quantify the amount of such suffering by way of
damages, how much do you want this Honorable Court grant you?

Atty. Lombos interrupted: We will object, Your Honor. There is no allegation given
regarding any such level or amount of damages and there was no offer to that effect at
the beginning of this witness testimony?

Court: The objection is sustained. You ask another question.

Atty. Manguerra: Your Honor, please, that was covered by the cross examination.
We just asked the quantity and the quantification regarding this.

Atty. Lombos: The amount of damages was never questioned, your Honor, for the
subject of the cross examination. She made a claim that she suffered
because of the events complaint of but neither the information or the offer of evidence
alleges any amount in that respect, your Honor. And we were careful to stay away
from questioning on any magnitude or amount.

Atty. Manguerra: Yes your Honor, but she mentioned that suffering during the cross
examination, it is a redirect examination and we want to clarify that.

Atty. Lombos: It is proper for redirect only if we dealt with the subject of amount and
then they wanted to correct wrong amount or a misstated or an out of context amount
that cross examination dealt with. But cross examination dealt only with her direct
examination which claimed only, she alleged some nebulous unspecified suffering and
that was consistent with their affidavit, the information as well as the offer of
evidence. Thats why we didnt object during direct and then on cross when we asked
her other things, she chose to segway into mentioning so called suffering also again.
But she never indicated any amount consistent with her affidavit, the information and
her offer of evidence. And so we did not of course, give any amount. There is nothing
therefore, on cross examination that they in seek to correct or rebut or contextualize by
a redirect examination on the question of any amount.

Atty. Manguerra: Your Honor, please, it is certain civil action is impliedly instituted.
Apparently, all information sometimes actual and other damages were not stated but
the Court allowed the presentation of such evidence based on the basic theory that
damages are impliedly instituted or civil action is impliedly instituted with a criminal
action, your Honor.

Atty. Lombos: Your Honor, there was never even any offer during the beginning of the
presentation of this witness that her testimony would go into an area that she never
claimed, never alleged and never wanted to be with per the offer of the testimony given
to the Court, your Honor. It is a complete surprise to us that they now want to claim

23
damages for a matter that they figured or they thought was never any incidence
enough to mention either in their complaint affidavit or in the information or in their
offer

Court: The Court maintains the objection to be proper; first, with respect to the
procedural matters and there was no formal offer of testimony as to the damages
sustained by this private complainant. You go over the TSN on October 7, 2009, there
are only two formal offer of testimony. First, to prove the material allegation in the
information and second, that on November 10, 2008, accused called the witness by
phone, engaged a conversation, recorded their conversation and aired said phone
conversation on TV, both without authority, permission and consent of the said
witness; Second, with respect to substantive matters, you raised about Article 100 of
the Revised Penal Code that every person criminally liable is civilly liable and those
would include the restitution, reparation and indemnification of consequential
damages which should be awarded with respect to crimes against persons and
crimes against properties, and this case is not one of them. Also, in this case, there is no
separate action instituted with respect to civil damages and what are those separate
actions, those are under Article 30 to 32 of the New Civil Code. What are those crimes,
Malicious Mischief, Fraud, Libel and Swindling and this case does not fall among
those charges. By the way, also, in our Revised Rules of Court, section 7, Rules 132, it
is provided that the matters of redirect examination should be confined on matters
taken up during cross examination. This witness has to supplement or clarify those
answers given during cross examination. And it is noticeable that there was no
mention of the damages as to the

Atty. Lombos interrupted: Supposed suffering, your Honor.

Atty. Manguerra: There was, your Honor, there was mention that there was
suffering. So, Im just asking the quantification, your Honor, and this representation
only entered during the cross examination of this witness, your Honor.

Atty. Lombos: Your Honor, for all the reasons that the Presiding Judge mentioned, the
area of questioning is not allowed, now, even if those reasons have not existed but they
do, the fact that she mentioned some nebulous suffering during her cross
examination in the course of answering my question about other items does not mean
that becomes the proper subject for redirect because I never dealt with any amount or
questioned her on that point.

Court: Alright, the Court already made a ruling. The objection of defense counsel
Atty. Emmanuel Lombos is sustained. Go to another point.

Atty. Manguerra: Yes your Honor. By virtue of that denial, your Honor, we make it a
proof that if the witness would be allowed to testify, she will answer and testify that
shes just relying to the discretion of the Honorable Court as to the amount of quantity
of the moral damages.

Court: The manifestation of private prosecutor Atty. Alquin Manguerra is noted.

You may proceed.54

This Court is not vested with territorial jurisdiction.

Territorial jurisdiction refers to the place of the commission of the crime where a
criminal action should be filed subject to the exceptions provided under Article 2 of

54 TSN dated May 24, 2010, pp. 13 to 17.

24
the Revised Penal Code. Unlike in civil cases, it is well- settled that venue in criminal
cases is a vital ingredient of jurisdiction. It shall be where the crime or offense was
committed or any one of the essential ingredients thereof took place.55 Unlike in civil
cases where venue may be waived, this could not be done in a criminal case because it is
an element of jurisdiction. It is basic that one cannot be held to answer for any crime
committed by him except in the jurisdiction where it was committed.56 Lack of
territorial jurisdiction can be raised at any stage of the proceedings. It is a fundamental
rule that for jurisdiction to be acquired by courts in criminal cases the offense should
have been committed or any one of its essential ingredients took place within the
territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the
territory where the court has jurisdiction to take cognizance or to try the offense
allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a
person charged with an offense allegedly committed outside of that limited territory.57
Furthermore, the jurisdiction of a court over the criminal case is determined by the
allegations in the complaint or information.58 And once it is so shown, the court may
validly take cognizance of the case. However, if the evidence adduced during the trial
show that the offense was committed somewhere else, the court should dismiss the
action for want of jurisdiction.59

The Information for violation of RA No. 4200 was filed in Pasay City because the
offense was allegedly committed in Pasay City but the complaint-affidavit of the private
complainant Ella Valencerina did not allege with particularly where was the alleged
offense took place. She affirmed her lack of knowledge as to the place of the
commission of the alleged offense when she testified in open court, thus:

Court: So, at the same time, you do not know also where was the accused Cheche
Lazaro calling you at that time?

Ella Valencerina: No your Honor.60

From the afore-quoted testimony of prosecution witness Ella Valencerina, it can

be concluded correctly that this Court is bereft of territorial jurisdiction to try this case.
The phone conversation was recorded at Pasig City not at Pasay City as alleged in the
counter-affidavit of the herein accused. This was uncontroverted by the prosecution.

55 Lim vs. CA 251 SCRA 408; Lopez vs. City Judge, 18 SCRA 616, 619 (1966).
56 Hernandez vs. Albano, 19 SCRA 95, 100 (1967).
57 U.S. vs. Cunanan, 26 Phil. 376 (1913).
58 Colmenares vs. Villar, No. L-27124, May 29, 1970.
59 People vs. Galano, No. L-42925, January 31, 1977.
60 TSN dated May 24, 2010, p. 44.

25
Therefore, Pasay City has no jurisdiction over the criminal complaint for violation of
The Anti-Wiretapping Act. Indubitably, this Court holds that it has no territorial
jurisdiction over the case thus the dismissal of this case is imperative and proper
before and after the arraignment of the accused Cecilia Lazaro on this ground alone.
During the May 24, 2010 hearing, this Court wants to resolve the issue of lack of
jurisdiction:

Court: This Court wants to inform both counsels with respect to issue of lack of
jurisdiction. You know the issue of lack of jurisdiction can be raised at any stage of the
proceedings. And once and for all, this Court wants to settle this issue. If there is a
proper motion from the defense counsel, then the Court will consider that motion for
resolution.

Atty. Lombos: Thank you, your Honor. We will be duly guided by that.

Court: But with respect to the motion that you will if ever you will file, you
have to attach the evidence necessary to bolster your position.

Atty. Lombos: Yes your Honor.

Court: In the same manner that the private prosecutor is likewise given a time to make
a comment or opposition to that motion to present the evidence in support thereto.

Atty. Lombos: Yes your Honor, I was just wondering given the amount of paper work
perhaps, it might be more appropriate to schedule the next hearing on the 23rd of
August, your Honor, because we do intend to file certain motions in the meantime.

Court: You intend to file certain motion?

Atty. Lombos: Yes your Honor.61

Only, despite the opportunity given by this Court to the defense counsel Atty.
Emmanuel Lombos during the said hearing to file an appropriate motion for this Court
to settle this issue on lack of jurisdiction, he failed to do so, which in effect, he waived
this objection of lack of territorial jurisdiction. Now, the defense is estopped from
raising this objection in this Court until the appeal of this case. And this Court, not
ousted of its jurisdiction, shall pass upon this case and shall dispose it on the merits.
Finally, it did.

61 TSN dated May 24, 2010, p. 52.

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 DISPOSITIVE PORTION

WHEREFORE, premises considered, the DEMURRER TO EVIDENCE is

GRANTED. This case is DISMISSED. The accused Cecilia Lazaro is ACQUITTED
of the charge of violation of RA No. 4200 (The Anti-Wiretapping Act).

SO ORDERED.

Pasay City, August 12, 2010.

ELIZA B. YU
Judge

Copy furnished:
Hon. John Giselher Imperial
Assistant City Prosecutor
Pasay City Hall of Justice

Atty. Alquin Manguera

Private Prosecutor
Suite 528 Downtown Center Bldg.,
516 Quintin Paredes St., Binondo, Manila City

Atty. Emmanuel Lombos

Atty. Jonas Emanuel Santos
Defense Counsels
SYCIP SALAZAR HERNANDEZ & GATMAITAN
7th Floor, SSHG Law Centre
105 Paseo De Roxas, Makati City

Ella Valencerina
Private Complainant
c/0 GSIS Headquarters, Financial Center
Reclamation Area, Pasay City

Cecilia Lazaro
Accused
c/0 No. 13 Matipid St.,
Sikatuna Village, Quezon City

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