Sec. 4 Conspiracy to Commit Terrorism.

--- Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.

There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same.

There are three versions of the definition of the conspiracy and proposal to commit terrorism from the Revised Penal Code, House Version and the Senate Version. However, in the human security act, only conspiracy is mentioned and left out proposal to commit terrorism. Art. 8 of the Revised Penal Code states: Conspiracy and proposal to commit felony.- Conspiracy and proposal to commit felony are punishable only in cases in which the law specially provides a penalty therefor. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons.

House version: Sec. 6. Conspiracy and Proposal to Commit Terrorism.--- There is a conspiracy to commit terrorism when two or more persons come to an agreement to commit any act of terrorism as defined herein and decide to commit it. There is proposal to commit terrorism when any person who has decided to commit any act of terrorism as defined herein proposes its execution to some other person or persons. There is conspiracy and proposal to commit any act of terrorism shall be punished by imprisonment of not less than six years and one day but not more than twelve years and a fine of one million pesos. Provided, that, if the offender is a government official or employee who used or abused his office in the commission of a terrorist act, the maximum penalty and the accessory penalty of perpetual absolute disqualification to hold public office shall be imposed.

Senate version: Conspiracy or Proposal to Commit Terrorism.--- There is conspiracy to commit terrorism when two or more persons come to an agreement to commit any act of terrorism as defined herein and decided to commit it. There is proposal to commit terrorism when any person who has decided , to commit any act of terrorism as defined herein proposes its execution to some other person or persons.

Any person who conspires to commit any act of terrorism shall be punished by imprisonment of not less than ten years to fifteen years and a fine of five million pesos. Any person who proposes the commission of any act of terrorism shall be punished by imprisonment of not less than six years and one day but not more than ten years and a fine of three million pesos. Provided if the offender is a government official or employee or has retired, resigned dismissed, or otherwise separated from the government service, the maximum penalty and the accessory penalty of perpetual disqualification to hold public office shall be imposed.1

All three definitions of what conspiracy and proposal to commit terrorism is, are alike and the difference from all the versions is the penalty imposable to the offenders. However, in the definitions given, proposal to commit terrorism was covered in the same article or section while in section 4 of the Human Security Act of 2007, only conspiracy to commit terrorism is punishable. Conspiracy, again, is when two or more persons come to an agreement concerning the commission of the crime of terrorism and decide to commit it. It is a common design which is the essence of conspiracy--- conspirators may act separately or together by commission on different manner but always leading to the same unlawful result. The character and effect of conspiracy are not to be adjudged by dismembering it and viewing its separate parts but only by looking at it as a whole-- acts done to give effect to conspiracy may be, in fact, wholly innocent facts. (Preferred Home Specialties, Inc. vs. CA, 478 SCRA 387) By statutory definition, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Venturing into the gray areas of the concept of conspiracy, petitioner cites the following obiter defining implied conspiracy, thus:

When by their acts, two or more persons proceed toward the accomplishment of the same felonious object, with each doing his act, so that their acts though seemingly independent were in fact connected, showing a closeness of formal association and concurrence of sentiment, conspiracy may be inferred.

Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or
1 The Human Security Act of 2007 p. 124-125

more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert is proved. That would be termed an implied conspiracy. (People vs. Jose Jinggoy Estrada, G.R. No. 158754, August 10, 2007)

Sec. 5 Accomplice.--- Any person who, not being a principal under Article 17 of the Revised Penal Code or a conspirator as defined is Section 4 hereof, cooperated in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the penalty of from seventeen years, four months one day to twenty years of imprisonment. To hold a person liable as an accomplice, two elements must concur: (a) the community of criminal design of the principal by direct participation, he concurs with the latter in his purpose; (b) the performance of previous or simultaneous acts that are not indispensable to the commission of the crime. (People vs. Pilola, 405 SCRA 134)

Article 18 of the Revised Penal Code defines accomplices as "those persons who, not being included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts." Two elements must concur before a person becomes liable as an accomplice: (1) community of design, which means that the accomplice knows of, and concurs with, the criminal design of the principal by direct participation; and (2) the performance by the accomplice of previous or simultaneous acts that are not indispensable to the commission of the crime. (People v. Cachola, G.R. Nos. 148712-15, 21 January 2004, 420 SCRA 520.) Mere commission of an act, which aids the perpetrator, is not enough. (People v. Castillo, G.R. No. 132895, 10 March 2004, 425 SCRA 136.)

Sec. 6 Accessory.--- Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the Revised Penal Code, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten years and one day to twelve years of imprisonment. Not withstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their

spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a).

Section 6 of the Human Security Act of 2007 is the same as Article 19 of the Revised Penal Code. The three manner or means of act, that makes a person liable as accessory: 1. By profiting himself or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principal of the crime of conspirator of the crime. Penalty is 10 years and 1 day to 12 years. If the person who commits the means or manner is a relative, no criminal liability can be imputed to the former. However, the exempting act does not apply to paragraph (a) which is profiting the fruits of the crime.

The rationale why the framers of the Revised Penal Code and as acquised by the framers of this Act, that a relative is exempted from any criminal liability is because of human nature. This is not based on any flimsy axiom but on the logical ground that human nature forces man to conceal/ assist from arrest and prosecution a relative suspected to have committed a crime.2

Sec. 7 Surveillance of Suspects and Interception and Recording of Communications.--The provision of Republic Act No. 4200 (Anti- Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. Provided, that surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

2 Human Security Act of 2007 p. 131

Based on section 7 of the Human Security Act of 2007, there are requirements before an interception or a recording of communications be made legal. One is that there must be a written order from the Court of Appeals and another requirement is that the subject of the surveillance is between members of a judicially declared and outlawed terrorist organization, association, or group of persons or any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. Along with the requirements before it be made legal, there are exceptions to the rule of legal wiretapping. Communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence are exempted from surveillance. Under Sec. 3 of R.A. No. 4200, otherwise known as Anti- Wire Tapping Law, the Regional Trial Court may issue an order allowing a peace officer to secretly overhear, intercept, or record a private communications by means of the devices 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 and violations of espionage law and other offenses against national security. Terrorism is not one of those crimes mentioned in Sec. 3 of R.A. No. 4200. However, under sec.7 of R.A.No. 9372, the Court of Appeals may authorize the surveillance, interception and recording of communication between members of terrorist organization or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. The prohibition on surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and business correspondence is a recognition of confidential character of such communication.3

According to the case of Ramirez vs. Court of Appeals: Petitioner vigorously argues, as her "main and principal issue" that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act.

3 Special Penal Laws Vol. II p. 208-209

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice.

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:

Sec. 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.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" under this provision of R.A. 4200. (Ramirez vs. Court of Appeals, G.R. No. 93833., September 28, 1995)

Sec. 8. Formal Application for Judicial Authorization.--- The written order of the authorizing division of the Court of Appeals to track down, tap, listen to, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing division of the Court of Appeals upon an ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any

charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence. The written order mentioned in the preceding provision is discussed in the proviso as to its application and procedure: It shall be granted only by the authorizing division of the Court of Appeals to the exclusion of all other courts. Done through an Ex- Parte Written Application by a police or law enforcement officer. That the police or law enforcement officer who prepares for the Ex-Parte Written Application must have the written authorization from the AntiTerrorism Council.4

From the forgoing, without following the proper procedure and requisites, any and all acts of recording, tapping, intercepting communication between individuals, even if it could be valuable evidence, is inadmissible if it was gotten outside the procedure given by law. The inadmissible recording is an example of a fruit from the poisonous tree doctrine. Procedural requisites in the hearing of the application:

-The applicant must be examined under oath or affirms his application or the witnesses he may produce. The examination must establish the following: a. That there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; b. That there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, of to the solution or prevention of, any such crimes, will be obtained and that there is no other effective means readily available for acquiring such evidence.5

From the procedure given by law, probable cause is an indispensible requirement before a police or law enforcer may apply for wire-tapping. Probable cause is defined as such facts and circumstances that will engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. (Baviera v. Paglinawan, G.R. Nos. 168380 and 170602, February 8, 2007, 515 SCRA 170, 184)
4 The Human Security Act of 2007 p. 150 5 The Human Security Act of 2007 p. 150-151

Probable cause has been defined in the leading case of Buchanan vs. Vda. de Esteban (32 Phil. 365) as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. (Pilapil vs. Sandiganbayan G.R. No. 101978. April 7, 1993.)

Sec. 9. Classification and Contents of the Order of the Court.--- The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the AntiTerrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations, discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued the written order. The written order of the authorizing division of the Court of Appeals shall specify the following: (a) the identity, such as name and address, if known, of the charged or suspected person whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted, and recorded and, in the case of radio, electronic, or telephonic (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations or if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance provided there is a reasonable ground to do so; (b) the identity (name, address, and the police or law enforcement organization) of the police or of the law enforcement official, including the individual identity (names, addresses, and the police or law enforcement organization) of the members of his team, judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words; (c) the offense or offenses committed, or being committed, or sought to be prevented; and, (d) the length of time within which the authorization shall be used or carried out. What are considered classified information under this act? 1. Written order granted by the authorizing division of the Court of Appeals. 2. The order extending or renewing the authorization.

3. Original application. 4. Application for extending or renewing the authorization. 5. Written authorization from the Anti Terrorism Council.6

Section 9 of this law stated that the person being surveilled has the right to be informed and has the right to challenge the legality of the interference. Also, the section enumerated the contents of the written order. The contents are as follows: 1. Identity, name and address of the person charged or suspected. 2. Identity of the applicant police officer, law enforcement officer and his team. 3. The offense or offenses committed or to be committed. 4. The length of time within which the authorization is carried out.

Sec. 10. Effective Period of Judicial Authorization.--- Any authorization granted by the authorizing division of the Court of Appeals, pursuant to Sec. 9 (d) of this Act, shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the Court of Appeals by the applicant police or law enforcement official.

The authorizing division of the Court of Appeals may extend or renew the said authorization for another non-extendible period, which shall not exceed thirty (30) days from the expiration of the original period: Provided, That the authorizing division of the Court of Appeals is satisfied that such extension or renewal is in the public interest: and Provided, further, That the ex parte application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council.

In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the Court of Appeals shall file the application for extension or renewal: Provided, That, without prejudice to the liability of the police or law enforcement personnel under Section 20 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutors Office for any violation of this Act.

If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance,
6 The Human Security Act of 2007, p. 183

interception and recording of the termination of the said surveillance, interception and recording. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify the person subject of the surveillance, monitoring, interception and recording as specified above.

Heretofore, Section 10 will be discussed into different important parts of the whole. The effectivity of the judicial authorization given by the authorizing division of the Court of Appeals shall be as specified in the written authorization but shall not exceed thirty days from receipt of the order by the applicant police or law enforcement officer. The police or law enforcement officer applicant in its motion for extension must be authorized by the Anti- Territorial Council in WRITING. The police or law enforcement officer must prove to the authorizing division of the Court of Appeals that the extension is for public interest and that the extension must be filed by the original applicant.

In case of the death of the original applicant or physical disability, substitution is allowed if the one to substitute is the one next in rank to the applicant by the team that is mentioned in the written order by the Court of Appeals. The extension shall likewise extend for another thirty days the reglementary period for the filing of the complaint against the person surveilled before the Public Prosecutors office for any violation of this Act.7

The police or law enforcement officer in the event that no case has been filed within the thirty day period shall notify the person subject of the surveillance the termination of the coirt granted surveillance. And if the officer fails to notify the penalty of ten years to twelve years shall be meted to the officer who fails to notify the person surveilled.

7 The Human Security Act of 2007, p. 190-191