NO LEGAL BASIS TO RESTRAIN SENATE
FROM PURSUING PROBE ON GARCI TAPES

Senate Minority Leader Aquilino "Nene" Q. Pimentel, Jr. (PDP-Laban) has urged that the current investigation on the so-called Garci tapes cannot be legally prohibited or stopped even as he pointed out that the statutory prohibition against the disclosure or wiretapped materials is not absolute.

Pimentel said the inquiry, which began September 7 does not violate the letter or the spirit of the Anti-Wiretapping Law (Republic Act 4200) which prohibits the wiretapping of telephone conversations, as well as the possession and use of wiretapped materials.

This was the response of Pimentel, on behalf of the Senate, to the petition of former Court of Appeals Justices Oswaldo Agcaoili and Santiago Javier Ranada to restrain the Upper Chamber from playing the Garci tapes and from reinvestigating the wiretapping scandal which was heard by the Supreme Court during the presentation of oral arguments Tuesday.

Pimentel said the Senate cannot be stopped from playing the tapes and from pursuing the inquiry on the basis of section 4 of RA 4200.

Section 4 provides that: "Any communications 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 shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation."

>From the looks of it, Pimentel said section 4 appears to be an unfortunate attempt to emasculate or weaken the legislative power of oversight that the Constitution, itself invests upon Congress.

"Section 4 purports to prevent Congress from using in evidence any illegally-tapped material even in legislative hearings or investigations. And if it does, the necessary implications is that legislators may be questioned or held liable in other places than in Congress itself," the minority leader said.

That, Pimentel said, runs counter to the constitutional mandate that "no member (of Congress) shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof."

He said RA 4200 unmistakably provides that the prohibition against disclosure of wiretapped materials is not absolute but subject to exception.

Pimentel pointed out that President Gloria Macapagal-Arroyo had already admitted, albeit belatedly, that it was her voice at one end of the line following the expos on her wiretapped conversations during the 2004 election period with then Commission on Elections Commissioner Virgilio Garcillano.

Since the 2004 elections were and are a matter of national interest, he said it follows that the conversations or series of conversations of the two public officials dealing with aspects of such elections under the circumstances in which these were tapped "cannot enjoy the privacy that the Constitution endows upon the conversations of private persons concerning private topics."

This is one egregious example where the privacy of communications must give way to the right of the people to know what their public officials do," Pimentel said.

"Necessarily, in this instance, the accountability of public personalities to the people must be given full play over and above the former's right to privacy."

Pimentel also agued that petitioners Agcaoili and Ranada do not have the legal standing to question the Senate inquiry since they are not the persons whose conversations are the subject of the legislative investigation.

Under RA 4200, he said "Ma-am" and "Garci" may legitimize the tapping, use or possession by other persons of their communication by authorizing such acts. But they may also withhold the legitimization and consequently, criminalize the acts of the violators of their rights under RA 4200 by suing the latter or taking such moves as are necessary to prevent the use of the illegally tapped materials.

"But Ma'am and Garci have not made any such move. Therefore it is safe to conclude that they have waived whatever rights they have under RA 4200."

"Since it is their privacy rights that are claimed to have been violated, nobody can sue for the vindication of those rights on their behalf. Unless, perhaps if 'Ma'am' and 'Garci' are minors or are incapacitated to do so in other ways.

Furthermore, Pimentel said the petitioners had not questioned the constitutionality issue at the "earliest opportunity," meaning as early as June 6, 2005 when Press Secretary Ignacio Bunye, played the tapes before the Malacañang Press Corps.