Risks in airing Hello Garci; a courageous jurist

MANILA, Philippines — During the past days, I have been asked questions on the Supreme Court decision nullifying the threat of the National Telecommunications Commission (NTC) to close radio and television stations that air the “Hello Garci” tapes or disc (CD). Also struck down were the warnings of Justice Secretary Raul Gonzalez that “those who had copies of this CD and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act.”

How the justices voted is not simple to figure out. Nine (Chief Justice Puno, Justices Quisumbing, Santiago, Gutierrez, Carpio, Martinez, Morales, Azcuna and Reyes) voted to invalidate both the NTC threat and Gonzalez’s warnings. Uniquely, Justice Azcuna anchored his view not so much on the freedom of the press as on Sec. 10, Art. XVI of the Constitution providing for a “balanced flow of information in our communications structures.”

One justice (Tinga) nullified only Gonzalez’s warnings but not the NTC threat. Another (Velasco) ruled in the opposite: he voided the NTC threat but not Gonzalez’s warnings. The other four (Corona, Nazario, Nachura and De Castro) upheld both the threat and the warnings for being issued within the allowable discretion of the NTC and secretary of justice.

The Court’s decision, written by Chief Justice Reynato S. Puno, simply invalidated the threat and the warnings for being prior restraints on press freedom. But the ruling did not grant the broadcasting stations legal immunity from suits of those who believe that their rights had been violated by the CD’s airing. Thus, the Puno ponencia will not automatically abate claims filed by persons whose right to privacy has allegedly been breached by the airing.

By way of analogy, the government cannot prevent a TV station from broadcasting, or a newspaper from printing, what may be a libelous material. But after the broadcast or the publishing actually takes place, an aggrieved person can sue the network or the publisher for libel. That the government is not authorized to censor the broadcast or the publication does not ipso facto grant legal immunity to the broadcaster or publisher.

On the other hand, Justice Antonio T. Carpio joined by four other majority members (Quisumbing, Gutierrez, Martinez and Morales) wrote a “Separate Concurring Opinion” declaring the NTC warning an “unconstitutional prior restraint on protected expression.” The airing of the disc is “essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a Comelec commissioner.” He argues that the airing would not violate the Anti-Wiretapping Law or the right to privacy. Ergo, after airing the CD, the broadcast stations would be liability free.

While Chief Justice Puno ruled “narrowly,” i.e., only on the main issue of whether the actions of the NTC and justice secretary constituted impermissible prior restraint, Justice Carpio banged away more extensively and gave broadcast stations advance protection against future suits arising from alleged violations of the Anti-Wiretapping Law and the right to privacy.

Another question. Many are amazed that a Supreme Court dominated by appointees of Gloria Macapagal-Arroyo could decide against her. This is not really surprising. In 2006, when most of the justices were already GMA’s choices, the Court still ruled politely but firmly against her in four successive, celebrated cases: Executive Order 464, calibrated preemptive response (CPR), Presidential Proclamation 1017, and the People’s Initiative.

As explained in my book, “Leadership by Example” (1999), “something happens when justices don the robes of the Supreme Court. All at once, they feel a new beginning. Immediately, they realize the god-like finality of their words and actions, for their decisions, whether right or wrong, are not reviewed, modified or reversed by any other agency of government. Instead, they are immortalized in books to be perused, criticized, damned or acclaimed many years after they have passed from this world.” To forge their legacies, they “become impervious to the plague of ships: kinship, relationship, friendship and fellowship.”

Intrepid jurist. Which brings me to Justice Angelina Sandoval-Gutierrez, who will retire three days from today, on Feb. 27. She personifies the constitutional virtues of “proven competence, integrity, probity and independence.” Certainly, she also exemplifies what I call the four “ins” of an ideal judge: independence, integrity, industry and intelligence. But what sets her apart is her legacy of moral courage.

In her obra maestra, “David vs Arroyo” (2006), she intrepidly nullified the acts of GMA, the most powerful person in this country. In forceful and persuasive language memorialized in books and jurisprudence, she struck down the major parts of Presidential Proclamation 1017 that declared a “state of national emergency.” Indeed, she stopped incipient authoritarianism.

When she began her term, she “inherited” 1,500 cases from her predecessor, plus about 30 more new ones raffled to her every month thereafter. Now, seven years later, she leaves only 200 cases to her lucky successor, a testament to her industry and grit.

That we have debated and voted on opposing sides in some cases has not diminished my esteem for her. She is a courageous, trustworthy and versatile jurist of deep intellectual gravitas, a brilliant star that will forever shine in the legal firmament long after she leaves this mortal world.

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