Friday, February 15, 2008

Supreme Court Decision on Garci Tapes and Press Freedom

The Supreme Court decision on the Garci Tapes has been posted on Padre Faura's Website. G.R.No. 168338 Chavez v. Gonzalez.

CAVEAT 1: The Supreme Court proclaims the swiftness of its decision with a straight face, so don't be giggling in the gallery or you may be cited for contempt. So what if "swift" means TWO YEARS LATER!--
The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.
Well if the Court had struck any sooner perhaps freedom would've come with the Second Coming. It is not of course the indignity of King Solomon thus seen to be wearing no clothes, but seeing him so hurriedly, yet way, way belatedly, donning the disguises of Swift Alacrity and Deep Concern for almighty and sacrosanct Press Freedom. Ah but wait, here is the gist of the Decision..."The clear and present danger rule applies to content-based regulation of print and broadcast media" ... WHOA! But I thought the Antiwiretapping Law was content-neutral...

CAVEAT 2: Petitioner Frank Chavez prays for certiorari and prohibition against Respondent Justice Sec. Raul Gonzalez and the NTC so as to allow the free airing of the recordings. The following passage in the disposative portion of Chief Justice Puno's ponencia is undoubtedly the gist and the heart of the Decision.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.
I am frankly amazed at the above reasoning, which amounts to a risible, obsequious and idolatrous position towards Press Freedom that it simply does not deserve. Organized journalism is the commercial right to buy and sell information. We must revere it as we do Free Enterprise Capitalism itself. But should we be willing to IGNORE clear violations of the Antiwiretapping law because the High Court thinks we would end up suppressing Press Freedom by taking full cognizance of those violations? There is however no detailed discussion in the main decision of which violations the Court has chosen to ignore.

I concur entirely with the result that the airing of the Garci Tapes cannot be restrained or prevented by government. They became ineradicably and irreversibly a part of PUBLIC KNOWLEDGE once they had fallen into the vast digital public domain of the Internet. Once that happened, all attempts at suppressing them amounted to crying over spilt milk and trying to get the toothpaste back into the tube by legal fiat.

Since the ability to suppress them had been made MOOT and ACADEMIC within hours after Ignacio Bunye allowed the Palace Press Corps to make copies of the CDs containing the Garci recordings, the Supreme Court decision itself is futile, or should I say, SUPERFLUOUS.

Press Freedom was already guaranteed by the World Wide Web and hundreds of backroom CDRom replicators who made thousands of copies of the Garci recordings. All this decision serves to do is to juridically DENY that there WAS a violation of National Security by whoever did the wiretapping, such denial being done under the sanctimonious guise of defending Press Freedom!

CAVEAT 3: The Court noted the fact that the Broadcasters of the Philippines (KBP) had actually agreed to comply with the respondent NTC's call for "responsible broadcasting" and decided NOT to side with Petitioner Frank Chavez in his suit. But the Court would force Press Freedom even upon those more concerned with jealously guarding their lucrative and job-sustaining Franchises on the electromagnetic spectrum!

The following statement reveals a disturbing lack of appreciation for the plain and simple meaning of NATIONAL SECURITY:
"There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State."
If the illegal wiretapping of the cellphone conversations of the President and Commander in chief (and apparently of anybody else with accounts at Globe or Smart!) does not constitute clear and present dangers to national security, I don't know what does! That such an obvious violation of the national security laws occurred in the wiretapping activities that produced the Garci tapes is what the Supreme Court is tiptoeing around and trying to ignore by bombastic obeisances to Press Freedom.

CAVEAT 5 The Court argues, correctly of course, that respondents have not passed the "clear and present danger rule" which would justify even the takeover of broadcast networks as stated explicitly in their Franchises. Why the Court undertook no discussion of these laws can only be explained by the cavalier attitude that they can pick and choose when to recognize violations of the law. Har har. In fine, by waiting those two long years in which their passionate devotion to liberty of speech must have had to remain stifled, they had indeed made amply sure there is no longer any "clear and present danger" from the recordings. JUSTICE DELAYED was PRESS FREEDOM DENIED, if not for the Internet! But I am sure they've got the adulatory HEADLINES tomorrow from a grateful if pusillanimous Press.

CAVEAT 6: Is there anything in the Decision that restrains radio, tv or print from now freely airing the Garci Tapes? Obviously not. What about any other wiretapped material? Press Freedom right? And supreme casuistry.

CAVEAT 7: Now we really get to the meat of the matter. The Court asserts that for all "content based regulation" the test of Constitutionality is the clear and present danger rule, which means, the challenged acts must be justified by the existence of a clear and present danger. I would agree there was nonesuch, and the Court said respondents failed to give evidence of it. But isn't the Antiwiretapping Law a "content-neutral law"?? In other words, what makes a wiretapped conversation illegal is not the subject matter of the conversation, but the mere act of unauthorized wiretapping itself. It does not matter WHAT the conversants are discussing, the FACT of surreptitious recording is what makes it illegal. Therefore, the attempt by the NTC to suppress the airing of these wiretaps did not rely on what they contained but on how they were obtained. This attempt at suppression was spectacularly futile anyway, for reasons I've already pointed out, so there could not have been any diminution in the public's right to know about them even if the broadcasters were prevented from doing so. Thus, the Court is unconvincing on its main point of "content-based regulation" applying to this material.

CAVEAT 8: Ironically, this decision will be hailed as another brave defense of human rights by the Puno Court, this time as a defense of Press Freedom. Yet has the Supreme Court not been a part of the wiretapping coverup all along? After all the greatest power of Court is in what it decides NOT to decide. But okay the Supreme Court upholds press freedom in this case, even if the main beneficiaries of the decision -- the enfranchised media outfits of radio and tv -- neither wanted nor needed their protection in this case. They left poor Frank Chavez all alone to fight for their rights. But the Court was not to be denied its brownie point, no matter how superfluous the decision now is. The message, ominously, is that Press Freedom allows Mass Media, including broadcasters, to freely air even allegedly wiretapped material, all for the sake of the Public's Right of Information of course. Habeamus data!

The Supreme Court's two year delay is inexplicable except as part of the wider coverup. Else, why did they put to sleep for two years what they call a PATENT VIOLATION of the Constitution involving PRIOR RESTRAINT in the challenged acts of respondents Justice Secretary and National Telecommunications Commission? By delaying, the Court has denied the Garci Tapes any substantive role in the investigations of Congress, in particular into matters of National Security at the Senate, and no less than three impeachment attempts in the House. During the time the Supreme Court was cogitating on the matter, the physical evidence in despicable crimes against the Antiwiretapping Law, the election codes, and illegal use of the Military for partisan political purposes, has been in an official LEGAL LIMBO.

That is the service the Supreme Court performed for the Palace throughout this whole sorry affair. An Act of OMISSION that deprived the Constitution and the people of Accountability from its public officers. Do they now expect laurels for ruling so belatedly on this issue. Their upholding of Press Freedom in this decision is SUPERFLUOUS and TARDY to the point of being DEVIOUS. Hours after Bunye allowed media to make digital copies the material had fallen into the public domain, the well of PUBLIC KNOWLEDGE from which neither law nor decision can rescue it. If the Constitutional violation of the challenged acts were PATENT, then why did they wait until after three impeachment attempts had been frustrated for lack of juridical guidance on the probative value of the recordings. The Court takes ZERO judicial notice of the processes that occurred in the House and Senate. Nothing speaks more of their disdain for the coordinate Branch of the Congress, a lethal habit learned from Hilario Davide.


MBW said...

But you yourself say, "I concur entirely with the result that the airing of the Garci Tapes cannot be restrained or prevented by government. They became ineradicably and irreversibly a part of PUBLIC KNOWLEDGE once they had fallen into the vast digital public domain of the Internet.", so where is the problem?

DJB Rizalist said...

the problem?
Justice delayed is justice denied.
What we have here is consuelo de bobo. they should've said the issue was moot and academic, not prop themselves up as heroes.

the other problem is, it looks like the Press is now allowed to air wiretaps all it wants! oh good. can you imagine the vast potential for BLACKMAIL with media outlets now sanctioned by no less than the Supreme Court to be the outlets that blackmailers could threaten anybody with?

Anonymous said...

so, what do you think the SC should have done, DJB?

Anonymous said...

It was a hilaw or baklang decision. They should have ruled on whether the stations can play it or not.
Very pathetic.

DJB Rizalist said...

timing is everything with the SC. They should've ruled on this 23 months ago, not 23 ago. that's when it would've made a difference. instead it went to sleep, together with Garci's own petitions,neither of which the SC has ruled upon!

they were part of the cover up on garci.

now why are they releasing this now. perhaps because they stunk to high heavens on garci and still do. but they are trying hard to get back in the people's good graces. Erap will continue to remind them of why THEY are mainly at fault for the destruction of checks and balances and separation of powers. '

That is why nothing works!

Anonymous said...

"That is why nothing works!"

Very well put.

Lester Cavestany said...

It's really outrageous how Pres Arroyo was able to get herself out of the election fraud mess simply by saying sorry to the public. I mean, what were we thinking back then? Why was it so easy for us to forgive someone who clearly cheated to become our leader. Maybe because, EDSA 2 was still fresh in the people's minds and we were not yet ready to have another mass protest action.

I just hope we won't have the same forgiving (and idiotic) attitude as more and more Arroyo administration corruption issues are brought out to the public.

I personally believe it's time to bring out our People Power boots once again and start walking "into the light"!

Salamat po.