BY EVANGELINE DE VERA

VOTING 10-5, the Supreme Court yesterday struck down a warning issued by the Department of Justice and of the National Telecommunications Commission to radio and television stations against airing the alleged wiretapped conversations between President Arroyo and former elections commissioner Virgilio Garcillano.

The high tribunal said the warning, which carried the threat of cancellation of the license of the violator, constitutes prior restraint which infringes on the constitutionally protected freedom of the press.

The warning was questioned before the SC by former solicitor general Francisco Chavez.

The 38-page decision penned by Chief Justice Reynato Puno, however, was silent on whether the controversial taped conversations between Arroyo and Garcillano were a product of illegal wiretapping, an issue not raised in the Chavez petition.

The recordings allegedly show Arroyo telling Garcillano to make sure she would have a lead of one million votes over Fernando Poe Jr. during the 2004 elections.

Arroyo, on national TV, had admitted that she talked to an election official but denied that she ordered the rigging of the poll results. She apologized to the nation for her "lapse in judgment."

"In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it," the court said.

Prior restraint on speech based on content cannot be justified by hypothetical fears, the SC said.

"We rule that not every violation of a law will justify straitjacketing the exercise of 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," the court said.

While noting the lack of legal standing of Chavez in filing the suit, the court held that it must set aside the technicalities of procedure to give way to the resolution of the case which has "transcendental importance to the public."

Puno was joined in his ponencia by Associate Justices Leonardo Quisumbing, Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Antonio Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio-Morales, Adolfo Azcuna, and Ruben Reyes.

The dissent was written by Associate Justice Antonio Eduardo Nachura. Concurring were Justices Renato Corona, Minita Chico-Nazario, and Teresita Leonardo-de Castro.

Associate Justice Presbiterio Velasco concurred with the majority in so far as voiding the DOTC warning but voted to uphold the NTC warning.

Justice Dante Tiñga also agreed that the DOJ warning constitutes prior restraint but found nothing wrong with the NTC position, mainly because no media practitioner came forward to support Chavez' petition.

In her concurring opinion, Gutierrez said the issuance made by the NTC and DOJ is a form of censorship. She said the interest of the public to know the truth about the last national election and to be fully informed should take precedence over the government's interest in maintaining public order.

Gutierrez likened the restrictions on the media to the burning by the Nazis of books written by Jewish authors, saying what was first a severe form of book censorship ended up in genocide.

In Nachura's dissenting opinion, he said it was not improper for the NTC to warn the media that the airing of taped materials, "if subsequently shown to be false, would be a violation of law and of the terms of their certificate of authority, and could lead, after appropriate investigation, to the cancellation or revocation of their license."

Nachura said from the time the assailed NTC statement was issued, the feared criminal prosecution and license revocation never materialized and they remained "imagined concerns, even after the contents of the tapes had been much talked about and publicized."

Chavez, in a phone interview, said the decision strengthened the exercise of free speech and the right of the people to have access to information.

"It is heart-warming to know that the SC has decided that respondents not only committed prior restraint but also of (issuing) the threat of subsequent punishment. By declaring that, the SC has opened the door for the playing of the questioned tapes," said Chavez.