, SEPTEMBER 7, 2007 (STAR) By Mike Frialde and Perseus Echeminada - Two former justices of the Court of Appeals (CA) yesterday asked the Supreme Court to issue a temporary restraining order to stop the Senate from conducting its reinvestigation into the controversial “Hello, Garci” wiretapping incident.

In their 13-page petition, former CA justices Santiago Javier Ranada and Oswaldo Agcaoili stated that the Senate hearing into the wiretapping incident, which starts today, will be in violation of the Constitution as well as Republic Act 4200 or the Anti-Wiretapping Law.

Named respondent in the petition was the Senate represented by Senate President Manuel Villar.

Ranada and Agcaoili argued that the alleged wiretapping incident had already been thoroughly discussed in the hearings of several committees of both houses of Congress in relation to the impeachment case against President Arroyo.

“Hence the issues should not be allowed to be resurrected in the halls of the Senate without observing the requirements of the Court and RA 4200,” the petitioners said.

The petitioners said that the Senate could not start and continue with its probe into the alleged wiretapping incident that reportedly involved former Commission on Elections official Virgilio Garcillano and President Arroyo, without first establishing the rules of procedure.

“Differently stated, the Senate or any of its respective committees may not validly conduct inquiries in aid of legislation until and unless the rules of procedures are first published,” they said.

The petitioners also argued that under RA 4200, the mere possession of an unauthorized wiretapped material is already a violation of the law and that even a discussion on the contents or the transcription of an illegal wiretap is also strictly prohibited.

They added that the Constitution also states that an illegal wiretap “is also inadmissible for any purpose in any proceeding.”

“To communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to another person, is an unlawful act,” the petitioners stated.

The petitioners also argued that the Senate hearing is within the prohibition set by the Constitution and RA 4200.

According to the petitioners, unless a TRO is issued by the Court, the “dubious” Senate hearing will escalate into a “continuing violation if not a flaunting defiance of the Constitution, including the serious infringement of the constitutional rights of those involved, affected or invited as resource speakers, as well as a violation of RA 4200.”

“The Garci tape(s) is in clear violation of the individuals alleged to be parties to the recorded conversation. Notably, one of the persons whose conversations were recorded has come forward to categorically admit the authenticity of the tapes. However, in the absence of explicit consent from the parties to the recorded conversation, the unauthorized wiretap is thus considered illegal,” the petitioners said.

Unfit to attend

Citing health concerns, Garcillano begged off from attending today’s scheduled hearing on the “Hello, Garci” scandal at the Senate.

Garcillano, represented by his lawyer Eddie Tamondong, wrote Senate President Villar yesterday to inform the body that he (Garcillano) cannot attend the hearing because he was scheduled to undergo biopsy procedures.

Tamondong said his client is not physically fit “to sit long hours in the proceedings” because he is scheduled for “minor surgery” on Sept. 11.

However, Garcillano’s lawyer assured the Senate that the ex-poll official will most likely attend subsequent hearings, preferably on Sept. 21.

“Barring any supervening event that may physically prevent him, he will appear in any scheduled hearing after Sept. 14, with or without subpoena,” Tamondong said.

Sen. Rodolfo Biazon, chairman of the Senate committee on national defense, said ex-intelligence agent Vidal Doble Jr., Bishop Socrates Villegas and retired Armed Forces chief of staff Efren Abu have confirmed attendance in today’s hearing through intermediaries.

Biazon said Doble will testify that one of the voices in the so-called “Hello, Garci” tapes belongs to him.

“He will (also) identify the other voices in the tape as those belonging to ISAFP (personnel) especially the one (who) annotated (the tapes). Remember that the tape had annotations and Doble could corroborate the testimony of Mayet Santos that some of the voices there appeared to belong to members of the ISAFP,” said Biazon, referring to Santos, Doble’s girlfriend, who testified in the 13th Congress on the same issue.

Rear Admiral Tirso Danga and ex-National Bureau of Investigation (NBI) official Samuel Ong were also invited but they have not responded yet.

“Up to this morning there is no assurance Atty. Ong will be attending,” said Biazon. Ong is facing charges for inciting to sedition. Ong’s camp had expressed concern about the ex-NBI official’s security.

The Senate panel – composed of the committees on national defense and security, electoral reforms and public accountability (Blue Ribbon) – have issued summons for Garcillano to appear in the inquiry.

The Senate has dispatched a team to serve the subpoena at Garcillano’s known residences and farms in Cagayan de Oro and Bukidnon but the team failed to locate him.

“In all likelihood, he (Garcillano) will not be duly served with the subpoena that was, to my knowledge, addressed to Cagayan de Oro because he has been in Manila for about a week now for medical examination,” Tamondong said.

Tamondong added that his client is “not hiding” and “does not intend to hide to evade the service of the subpoena.”

“He has all the intention of appearing before the three select committees’ hearing for whatever input he could contribute to legislation sought to be formulated therefrom,” he added.

In the case of Danga who has invoked Executive Order 464 and the need for him to follow the chain of command, Biazon said the Senate will continue to summon him even after his retirement on Sept. 24.

According to Biazon, Danga cannot hide under the cloak of EO 464.

Biazon reiterated yesterday that the defense committee is not interested in listening to the wiretapped tapes.

“All we need to do is to establish that there is a tape and find out who were responsible for these tapes so we can establish what ISAFP was doing at that time,” Biazon said.

The committee on electoral reform and revision of laws will be interested in how cheating was conducted while the Blue Ribbon is keen on identifying the concerned public officials who may be held liable.

Executive privilege not EO 464

Meanwhile, Malacañang said yesterday that the President is prepared to invoke executive privilege when the members of her Cabinet are invited to attend the hearings on the “Hello, Garci” controversy.

Executive Secretary Eduardo Ermita said yesterday that his office has not yet received any invitation from the Senate regarding the hearing, which starts today.

Ermita said that every member of the Cabinet is aware that the Supreme Court has already defined the mechanics for invitations to attend congressional hearings.

The Senate previously revealed that it would invite Press Secretary Ignacio Bunye and National Security Adviser Norberto Gonzales to the hearing.

However, the two officials are not yet included in today’s hearing and their invitations have not yet been sent.

The Senate has already warned Malacañang against invoking Executive Order 464, parts of which have already been declared unconstitutional by the Supreme Court.

Sen. Miriam Defensor Santiago, an ally of the President, advised the Cabinet members not to use EO 464 to snub the Senate’s hearings.

Instead, she said that the President could invoke executive privilege, which she said remains valid, “provided it is expressly claimed, and relates to specific facts constituting state secrets regarding military, diplomatic, foreign relations and other sensitive national security matters.”

Ermita said that the advice of Santiago would be taken by the President since this is covered by the Supreme Court ruling on the Senate vs. Ermita case and the senator is a legal expert.

“Definitely, because that is what is in the SC ruling and you know Senator Santiago is a lawyer so she knows whereof she speaks,” Ermita said.

“What we are saying is that whatever it is that is mentioned in the Supreme Court decision, that’s what we’re going to invoke and I think Senator Santiago indeed is just quoting the Supreme Court decision,” he added.

Ermita explained that executive privilege refers to the subject matter and not the individual.

“Let’s just say that when the invitation comes they have to communicate with the Office of the President and then we will see whether the provisions in the SC decision are complied with as far as appearance (of the officials are concerned),” he said.

Among those invited by the Senate for today’s hearing is Rear Admiral Tirso Danga whom Ermita said is supposed to be on leave.

“I don’t know where Admiral Danga is right now. He’s supposed to be on leave. I have not gotten any information whether an invitation was extended,” Ermita said. – with Marvin Sy, Christina Mendez

Chief News Editor: Sol Jose Vanzi

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