No TRO on ‘Hello Garci’ probe

Thanks God, there are still decent souls in the Supreme Court

By Leila Salaverria

Supreme Court justices Tuesday invoked public interest in the reform of the electoral process as they grilled the lawyers of two retired justices who had sought to stop the renewed Senate inquiry into the “Hello Garci” wiretapping scandal.

After seven hours of oral arguments, the high court merely required the contending parties to submit their respective memoranda containing their positions within 15 days.

Earlier in the session, Justice Angelina Sandoval-Gutierrez said the retired Court of Appeals justices –Santiago Ranada and Oswaldo Agcaoili — would do more for the country if they pushed for the Senate inquiry.

“I think your petitioners will be heroes of the day if, instead of asking the court to prohibit the Senate investigation, they insist that the Senate play the tapes because the contents involve the integrity of the electoral process,” Gutierrez told lawyers Mario Ongkiko and Manuel Lazaro.

The justices also questioned the standing of Ranada and Agcaoili to file the petition, saying the two would suffer no direct injury if the “Hello Garci” tapes were played and the hearings continued.

Gutierrez said the petitioners filed the suit as taxpayers, citizens and members of the Integrated Bar of the Philippines, but presented no claim that there was an illegal disbursement of funds for the inquiry, or how much was spent for it.

Agcaoili said they were invoking judicial supremacy, including the power of the court to allocate constitutional boundaries.

Gutierrez also said the petitioners did not talk to any of the parties whose conversations were recorded, and wondered why the retired justices were taking up the cudgels for them.

Petitioners not parties in tapes

The petitioners are not even parties in the recorded conversations, Justice Antonio Carpio pointed out.

But according to Ongkiko, the issue will affect the general public, whose right to privacy may be set aside when the Senate invokes its power to conduct inquiries in aid of legislation.

“In a personal sense, the petitioners would not suffer. But in the general sense, everybody would be affected who may be tapped in their private conversations,” he said.

Gutierrez also asked Ongkiko whether cleaning up the electoral process was more important than the right to privacy that would supposedly be violated if the tapes of the purported phone conversations between President Gloria Macapagal-Arroyo and then Election Commissioner Virgilio Garcillano during the 2004 presidential election were played during the Senate hearings.

“Should not compelling state interest … override the right of a person to privacy? What’s more important, the cleansing of the election process to avoid fraud or the right to privacy?” she said.

Ongkiko said the issue was whether the Senate could violate a law to achieve a certain purpose.

“It all boils down to whether the end would justify the means,” he said.

Violation of privacy

Ranada and Agcaoili had asked the high court to stop the Senate inquiry into the “Hello Garci” tapes on the grounds that the use of the recordings would violate a person’s right to privacy.

They had also said the rules of procedure necessary for the conduct of inquiries in aid of legislation had not yet been published.

Ongkiko told the high court that another issue was whether a person’s right to privacy could be invaded by Congress’ power to conduct investigations.

He said a person’s right to privacy could not be sacrificed, and that the use of the tapped conversations would violate both the Constitution and the Anti-Wiretapping Law.

Lazaro said that in filing the petition, the retired justices did not want the lawmakers “to become lawbreakers.”

Concern for the law

Justice Ruben Reyes also asked whether playing the “Hello Garci” tapes at the Senate hearings would better serve the public interest.

Agcaoili said he and Ranada were not so much concerned about personalities as about the law. He said the mere playing of the tapes of recorded conversations was already a crime.

Justice Adolf Azcuna also asked whether the Senate could invoke public interest to play the tapes, and whether the senators could just turn state witnesses if they were charged with violating the Anti-Wiretapping Law.

Ongkiko said he thought that was possible.

Justice Consuelo Ynares Santiago said the playing of the recordings in the media could mean that the contents had become public knowledge.

Ongkiko said it had to be established that it was the original tape that was played. He added: “I’m not prepared to admit that the enforcement of constitutional rights will be moot and academic just because the media overplayed its hand. And anybody who played the tape is liable for prosecution.”

But Sen. Aquilino Pimentel Jr. pointed out that the petitioners did not raise the constitutionality of the issue “at the earliest possible time,” or in June 2005, when Press Secretary Ignacio Bunye first played the tapes before the media.

Rules on Senate probes

On the question of whether the rules governing Senate inquiries in aid of legislation needed to be published, Chief Justice Reynato Puno said it was the Senate’s inherent power to conduct investigations, even without the publication of the rules.

Puno said the constitutional provision requiring the Senate to publish the rules did not limit its inherent power to conduct inquiries.

“It merely says if there are rules, it must be complied with. It does not say if there are no rules, there is no investigation,” he said.

But Lazaro said the Senate inquiry was “tainted with some doubts as to its validity” because of the non-publication of the rules.

He said publication of the rules was necessary so that those invited to the hearings could ensure that their rights would not be violated.

He added that without the rules, the conduct of the hearings was premature.

But Puno said the rules were intended to ensure orderliness, and that the rights of persons invited to hearings could be protected by the Constitution and the law.

On the other hand, Pimentel told the court that contrary to Ranada and Agcaoili’s claim, the Senate had actually caused the publication of the rules in major newspapers in 1992, 1995 and 2006.

He said no changes in the rules had been made since then.

Wireless communication

Carpio said the Anti-Wiretapping Law, which had not been amended since the 1960s, did not cover wireless communication involving cellular phones.

In wireless communication, the voice is transmitted through the airwaves, which are considered public, he said.

But Ongkiko said the phone conversations in the “Hello Garci” tapes could have been captured using a recorder, the use of which is prohibited under the law.

Justice Leonardo Quisumbing said the Senate inquiry might not be in aid of legislation, but might be for political destabilization.

In that case, he said, the proceedings would be political and the court could then not interfere.

Detective work

Justice Renato Corona commented that policemen and prosecutors at the Department of Justice could do a better job of uncovering the truth behind the “Hello Garci” scandal than the senators.

“Isn’t that detective work?” Corona asked of Pimentel, who argued that the Senate had aimed to find out the identity of the persons in the tapped conversations.

“Has that not yet been ferreted out by the House? Is that your job as senators?” Corona said. “There are people who can do better jobs at that, like the police and the DoJ prosecutors.”

Pimentel said there was no political agenda involved in the Senate inquiry into the issue.

“The hearings could resolve the implications of the Anti-Wiretapping Law on the elections and the conduct of military officers with regard to this law,” he said.

No legal standing

In a 15-minute speech interrupted by a power outage that lasted throughout the session, Pimentel said Ranada and Agcaoili did not have the legal standing to question the Senate hearings.

“Clearly, the petitioners are not the subjects [of the wiretapping],” he said.

He pointed out that only the subjects involved in the phone conversations — “Ma’am” and Garcillano — could cause the prosecution of those who had violated the Anti-Wiretapping Law.

“They have not complained, and it is safe to say that they have waived their right to privacy,” Pimentel said. With a report from Margaux C. Ortiz