Press Release
August 28, 2007

MIRIAM, ALLIES TO BRING GARCI TAPE CASE TO SC

Sen. Miriam Defensor Santiago said that if the Senate votes to use the Garci tape in a public hearing, she and her administration allies will seek a temporary restraining order from the Supreme Court.

But Santiago said this should be the "last option," and appealed to her colleagues to simply exclude the Garci tape, and instead focus their probe on the alleged illegal wiretap operations of the ISAFP, or PNP, against public officials.

Santiago, a constitutional law expert, delivered a privilege speech titled "Charter Places Absolute Ban on Use of Illegal Wiretap" yesterday, (Tuesday August 28), and concluded: "It is a crime to wiretap, and it is a crime to use a wiretap, by talking about its contents."

Unlike her allies who last week merely cited the Anti-Wiretapping Law, Santiago cited the Constitution itself, particularly the Bill of Rights provision on privacy of communication.

The Constitution Article 2 para. (2) 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, " the senator said.

Santiago said that if the Senate committee admits the Garci tape in evidence, "the Senate would be an unwitting accessory to a crime."

The senator, a former UP constitutional law professor, twitted some Congress members for arguing that public interest should override the constitutional prohibition, saying that they "exhibit doctrinal confusion and jurisprudential colonial mentality in constitutional law."

Santiago said that the 2001 U.S. case of Bartnicki v 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 a wiretap "inadmissible for any purpose in any proceeding."

Instead, Santiago cited Philippine cases, notably the 1998 case of People v Olivares and the 1994 case of Salcedo-Ortanez v Court of Appeals.

She said that in Olivares, the Supreme Court ruled that: "The constitutional provision on the inadmissibility of evidence, known as the exclusionary rule, extends to any other form of proceedings. "

Santiago further said that in Salcedo-Ortanez, the Court ruled that "the inadmissibility of the subject tapes is mandatory under R.A. No. 4200."

Commenting on the use of the Garci tape in the aborted impeachment proceedings against President Arroyo in the House of Representatives, Santiago said that use of the tape was unlawful, and that "it is the duty of the Senate to educate the House on pressing points of constitutional law."

The senator said that parliamentary immunity must yield to privacy of communication, because the former is a general provision, while the latter is a particular provision.

"The right to privacy of communication, being particular, prevails over parliamentary immunity, which is general," she said, citing rules of statutory construction.

Santiago also pointed out that although it was unlawful to use the illegal wiretap in the aborted House impeachment proceedings last year, its contents were already widely known among the public.

"It is the duty of the Senate to educate the House on pressing points of constitutional law," she said.

Santiago said that contrary to misimpression, a wire tap does not need the facilities of a service provider, but merely needs a scanner which can be easily bought.

She added that in 1977, US congressional hearings uncovered illegal wiretaps on Congress members, which were done by the use of scanners.

Santiago said that in 2001, the U.S. Supreme Court said that in the US, over 20 million scanners capable of wiretaps were operating, and that there were some 49.1 million cellular phones in operation at that time.

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