On Aug. 1, 2001, the Rules on Electronic Evidence (REE) went into effect.
The REE applies whenever a piece of electronic data message or electronic evidence is offered or used as evidence.
“Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means.
“Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
Electronic documents include digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document.
For purposes of the REE, electronic document is the same as electronic data message.
Some examples of electronic data message or electronic evidence are files in computer hard drives and diskettes, computer printouts, text messages (SMS), Facebook chats, multimedia messages (MMS) and CCTV footage.
Coverage
When the REE first went into effect, its applicability was limited to “civil actions and proceedings, as well as quasi-judicial and administrative cases.” (Section 1, Rule 1).
Notably, criminal cases were excluded from the coverage of the REE.
However, about a year thereafter, or on Sept. 24, 2002, the Supreme Court issued a resolution expanding the coverage of the REE to criminal cases. The resolution amended Section 1, Rule 1 of the REE as follows:
“SEC. 2. Cases covered.—These Rules shall apply to all criminal and civil actions and proceedings, as well as quasi-judicial and administrative cases.”
The amendment took effect on October 14, 2002 following its publication in the Manila Bulletin, a newspaper of general circulation, on Sept. 27, 2002.
However, about 10 years after the amendment, the Supreme Court, in Ang v. Court of Appeals (G.R. No. 182835, April 20, 2010), held that the REE does not apply to criminal actions. In this case, the accused, Rustan Ang, was charged under R.A. 9262 (Violence against Women & Children Act) for sending an MMS to his ex-girlfriend (Irish Sagud) consisting of a picture of a naked woman with legs spread and with her face superimposed on the figure. After she got the obscene picture, Irish got other text messages from Rustan, boasting that it would be easy for him to create and send through the Internet similarly scandalous pictures of her.
Rustan Ang questioned the admissibility of the obscene picture which he sent as MMS to the complainant. He claimed that since the MMS was not authenticated in accordance with the REE, it was inadmissible as evidence against him.
The Supreme Court held that Rustan Ang waived the objection as he did not raise it at the time the electronic message was offered in evidence. The High Court added: “Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings and administrative proceedings.”
Significantly, the Ang case made no mention of the 2002 amendment extending the coverage of the REE to criminal cases.
The dilemma
So there’s the dilemma. Through a duly published amendment way back in 2002, the Supreme Court expressly stated that the REE applies to criminal actions. Yet, about 10 years thereafter, the court, in the Ang case, expressly held that it does not apply to criminal cases.
Some say that the quoted statement from Ang is just obiter dictum. Others disagree. Whatever it is, the seeming confusion must be clarified as early as possible. For example, there are the computer files of Benhur Luy wherein he listed public officials who are allegedly part of the PDAF scam by receiving part of the money from Janet Napoles. Will these computer files, or their printouts, be admissible in the criminal cases against the concerned public officials? Also, there are CCTV footages establishing the commission of crimes by their perpetrators. Are these footages admissible in evidence against those accused of the crimes? If we follow the 2002 amendment, they are, but not if we follow the Ang case.
These examples demonstrate the practical implication of the issue.
(The author is a senior partner of the Angara Abello Concepcion Regala & Cruz Law Offices (AccraLaw) and is a law professor in the Ateneo Law School. The views in this column are exclusively his, and should not be attributed in any way to the institutions with which he is currently affiliated.)