Much ado about nothing

Posted on June 23, 2014

By ElCid Benedicto

Such would likely be the case, in the end, of the Senate blue ribbon committee in taking great pains in securing a copy of the widely-publicized alleged digital files of pork barrel scam principal whistleblower Benhur Luy.

The committee headed by Sen. Teofisto “TG” Guingona III is facing the difficult task of hurdling some legal obstacles in proceedings with its halted investigation into the pork scam, a matter which probably explains why he has been conspicuously silent until now as to when the panel could schedule a hearing to tackle the “digital files.”

There now exists some provisions in the law, under the Cybercrime Prevention Act of 2012, which could probably prove to be a stumbling block in taking up anew the issue, add to the fact that the case has been formally turned into the hands of the anti-graft court by the Office of the Ombudsman.

Senators, in various interviews, appear to be now in conflicting positions as to whether they should still continue investigating the P10-billion pork barrel scam as there are those who admitted that it’s eating too much of their time, while others, came off to have some personal agenda – that of exonerating themselves from the mess after their names have been included by no less than Janet Lim Napoles in her so-called “list.”

More than the issue of the Senate probe practically opening a can of worms, was a possible legal consequence that could prove to be damaging to the institution.

Remember the time when the Senate’s Committee of the Whole was barred by the Supreme Court from proceeding with the call of some senators to replay the “Hello, Garci” takes in their hearings then?

Even before the SC handed down its decision, two senator-lawyers – Miriam Defensor-Santiago and Richard Gordon – issued a stern warning to their colleagues, coupled with a threat of bringing the issue to the High Court, if the tapes will be made public, as they were of the position that replaying an illegally-recorded conversation between two individuals would be tantamount to an invasion of privacy.

The Senate could stand to violate the Anti-Wiretapping Act as well, Gordon pointed out.
Santiago held the position that the right to privacy communications prevails over parliamentary immunity, which includes Senate proceedings.

At that time, the parallel investigation in the House of Representatives already saw the playing of the tapes but Santiago insisted that a duplication of such act would not justify the use of the wiretapped tapes in the Senate proceedings.

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

Ironically though, the SC stopped the Senate from the playing of the tapes not because of the issues raised by the two senators but it has yet then to publish its rules of procedure governing inquiries in aid of legislation, “in clear derogation of the constitutional requirement.”

The SC even noted that the Senate had admitted in its pleadings and even during oral arguments that the Rules of Procedure had been published in newspapers of general circulation only in 1995 and 1996 and at that time of the said controversy, no similar effort had been made when they first opened their session in June 2007.

In the present case, however, regardless of whether the Senate had already published its Rules of Procedure Governing Inquiries, they have to deal with the provisions of R.A. 10175 also known as the Cybercrime Prevention Act of 2012.

No less than Sen. Vicente Sotto III pointed it out in one of their plenary sessions recently, hours before the blue ribbon committee received from the National Bureau of Investigation (NBI) Luy’s digital files the matter of legal consequences concerning the two-year-old law, particularly Section 4 on covered offenses.

It says that among those that could constitute an offense under the said law, include “access to the whole or any part of a computer system without right,” “intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document or electronic data message, without right including the introduction or transmission of viruses”, “the use, production, sale, procurement, importation, distribution or otherwise making available, without right of,” “acquired without right or with intellectual property interests in it” and so on and so forth.

It should be worthy to note that the so-called Luy’s files were taken from the “files” of the company of Napoles and thus, were not his “property” or owned by him in the first place.

Luy apparently kept the files given his designation as Napoles’ “bookkeeper”, thus, even the laptop that he used to in safekeeping the information is said to be owned by the company he used to be connected with.

By this time, Guingona could very well be aware of these legal impediments which probably explains his “silence” on the issue of whether to continue or not with the halted investigation.

As if these were not enough, his legal team could also be looking at the issue of the legalities surrounding the probe on the documents coming from Napoles – her twin sworn affidavits and so-called “Napolist” – after the Ombudsman junked her plea to be considered as state witness in the case.

Any lawyer would say that such affidavits coming from Napoles, were not a tell-all but rather executed under some conditions imposed by her, that she was offering the information in exchange for some quid pro quo – that of becoming an immune witness or sparing her children from being made co-accused in the case.

It means that her statements cannot be taken against her and with her plea being junked after failing to meet the qualifications of those applying to become an immune witness, what will become now of the Senate probe?