|
On Feb. 15 the Supreme Court en banc decided to grant the petition
of former solicitor-general Francisco Chavez against Justice
Secretary Raul Gonzalez and the National Telecommunications
Commission.
Petitioner Chavez had asked the High Court to
issue “writs of certiorari and prohibition, as extraordinary legal
remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the
respondents.” Chavez called Gonzalez’s and the
NTC’s acts “violations of the freedom of expression and of the
press, and the right of the people to information on matters of
public concern.”
Chavez specifically asked the SC to nullify
Gonzalez’s and the NTC’s acts, issuances, and orders since June
6, 2005, that curtail the freedom of expression and of the press,
and the public’s right to information on matters of public concern
specifically about the taped Arroyo-Garci conversation. Chavez
also petitioned the Court to prohibit the “further commission of
such acts, and the making of such issuances, and orders” by
respondents Gonzalez and NTC.
Prior restraint
With the petition granted, not only Justice and
the NTC but also all government and state agencies are now forbidden
from acting and making issuances that constitute “prior
constraint” and cause media to censor themselves.
Philippine media reported last week that the
Supreme Court had made playing the Garcia tapes legal. That is
not correct. Nothing in the SC’s Feb. 15 decision says
anything about nullifying the anti-wiretapping law which prohibits
the use of wire-tapped material. Therefore any media organization
that plays the Hello Garci tapes (which have been copied to CDs)
could be punished.
The High Court decision is a wonderful
treatise on press freedom and freedom of expression. But it
does not say media can now ignore the law and play wiretapped
conversations. It does ban the Justice secretary and the NTC
chairman from giving orders and warnings to media against playing
the Garci CDs/tapes.
Clear and present danger test The High Court’s
decision says:
“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.”
Unsettled facts
The SC decision sees a possibility that airing
the tapes may not actually constitute a violation of the
anti-wire-tapping law—if it is not determined that the Garci
CDs/tapes are authentic and the product of a wire-tapping operation.
“It appears that the great evil government
wants to prevent is the airing of a tape recording in alleged
violation of the anti-wiretapping law. The records of the case at
bar, however, are confused and confusing, and respondents’
evidence falls short of satisfying the clear and present danger
test.”
The Supremes note that “various
statements of the Press Secretary obfuscate the identity of the
voices in the tape recording” and that “the integrity of the
taped conversation is also suspect. The Press Secretary showed to
the public two versions, one supposed to be a ‘complete’ version
and the other, an ‘altered’ version.”
Then the SC sees that “the evidence of the
respondents on the who’s and the how’s of the wiretapping act is
ambivalent, especially considering the tape’s different versions.
The identity of the wiretappers, the manner of its commission and
other related and relevant proofs are some of the invisibles of this
case…. given all these unsettled facets of the tape, it is even
arguable whether its airing would violate the anti-wiretapping
law.”
|
