PHILIPPINE NEWS SERVICE — SENATORS Miriam Defensor Santiago and Richard Gordon yesterday vowed to go to the Supreme Court if their colleagues in the Senate vote to replay the “Hello, Garci” tapes in a public hearing.
Replaying the “Hello Garci” tapes, which illegally recorded conversations between two individuals, would be an invasion of the right to privacy even if it would be done in a public hearing such as the Senate inquiry proposed by Senator Panfilo Lacson, according to the senators.
Gordon, in a separate interview, said the Upper Chamber would violate the Anti-Wiretapping Act and the constitutional right to privacy by playing the controversial tapes.
“It is a crime to wiretap, and it is a crime to use a wiretap by talking about its contents,” said Santiago in a privilege speech.
But Santiago said going to the high court would be a “last option,” and appealed to her colleagues to simply exclude the Garci tapes and instead focus their probe on the alleged illegal wiretapping activities of the Intelligence Service of the Armed Forces or the National Police.
Yesterday, the Senate committee on rules tossed back to the Committee of the Whole the task of deciding, among others, on whether or not to push through with the investigation. Gordon, for his part, said that he might agree to the conduct of the probe as long as the Senate would not use the wiretapped materials. “I think there is a ground for us to raise this issue before the Supreme Court because there is a clash between what is provided for in the Constitution [and the right of the Senate to investigate] ,” Gordon said.
“As an elementary rule of law you cannot use wiretapped evidence without the permission of the court. If you do this that already constitutes a violation of the law as well as the Constitution,” he added.
Santiago, considered as an expert on constitutional law, noted that Article 2, paragraph 2 of the Constitution provides that an illegal wiretap is “inadmissible for any purpose in any proceeding.”
This absolute constitutional language creates an invincible legal fortress against spies and eavesdroppers, Santiago said.
According to Santiago, the Senate would be an “unwitting accessory to a crime” if any of its committee would admit the “Hello Garci” tapes in evidence.
Santiago likewise rejected the argument of some of her colleagues who insisted that public interest should override the constitutional prohibition, saying they “exhibit doctrinal jurisprudential colonial mentality in constitutional law.”
She said the 2001 United States case of Bartnicki vs Vopper, which upheld the “public interest” argument, does not apply to the Philippines because the US Constitution does not contain a provision similar to the Philippine constitutional provision which makes wiretapped materials inadmissible for any purpose in any proceedings.
Instead, Santiago noted that in the 1998 case of People vs Olivares and in the 1994 case of Salcedo-Ortanez vs Court of Appeals, the SC ruled that: “The constitutional provision on the inadmissibility of evidence, known as the exclusionary rule, extends to any other form of proceedings.” The prohibition also applies to the Senate, according to Santiago.
Santiago said the right to privacy of communication, being a particular provision of the Constitution, prevails over parliamentary immunity.
And even if the House of Representatives had already used the tapes last year and its contents were already known, Santiago said it would not justify the use of the wiretapped tapes in the Senate investigation.
“It is the duty of the Senate to educate the House on pressing points of constitutional law.”