Monday, July 07, 2008 CA junks kin's bid to use phone records as evidence
THE Court of Appeals (CA) denied the motion filed by the family of two missing University of the Philippines (UP) students to compel any officer of a telecommunications company to bring to the court the record of messages sent from a cellular phone numbers that would prove the military was behind the abduction.
The CA's Special Former 11th Division is hearing the petitions for the issuance of the writ of amparo and habeas data against President Gloria Macapagal-Arroyo, former Armed Forces Chief Hermogenes Esperon Jr., Army commander Romeo Tolentino and retired General Jovito Palparan for the disappearance of UP students Sherlyn Cadapan and Karen Empeno on June 16, 2006.
In a resolution penned by Associate Justice Joe Catral Mendoza, the CA's Special Former 11th Division denied the bid of Cadapan and Empeno's family to subpoena any officer of Smart Communications to bring records of the messages sent from cellular phone numbers 09103057609 (Talk N Text) and 09207197482 (Smart) and to testify on it.
But except for the bare allegations in the motion, the court said petitioners failed to substantiate their allegations that would entitle them to the subpoena requested.
"Unless there is proof that a particular person is the owner of said numbers, the court has no reason to grant the motion. The probability that it belongs to another person who is entitled to his own privacy cannot be discounted," the court ruled.
Petitioners alleged that Cadapan had two cellular phone numbers prior to her abduction. She was said to be using these numbers in her communication with her mother, petitioner Linda Cadapan, and that these two numbers was believed to be still active since they are still able to call and exchange text messages through both numbers.
The petitioners argued that there is a need for the records to determine the location from where these messages were being sent.
But the CA said petitioners failed to show that indeed those numbers were those of Sherlyn since there was no averment if the numbers were postpaid or prepaid. If the numbers are prepaid, it cannot be determined with certainty who the owner is.
"The government regulatory body does not require telecommunication companies like Smart to first secure the names or prepaid buyers before selling them the SIM card. As no telecom company has a record of a purchaser or even beneficial owner of a SIM card, all it could provide is the telephone number, nothing more," the CA said.
On the other hand, if postpaid and the lines are still active, the appellate court said that it means they are still being paid for. Hence there are receipts or billing statements, which petitioners have failed to provide the court.
It added that there should have been a disclosure of the text messages supposedly coming from the said numbers.
"From them, the general substances of the text messages could give an inkling as to the owner or user," the CA said.
The court also agreed with government lawyers' arguments that the evidence sought by petitioners through the issuance of a subpoena is irrelevant being speculative.
The Office of the Solicitor General said that under the Rules of Court on Evidence, "evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. To properly apply this test, it is crucial to determine what is the fact in issue, which a plaintiff must prove in order to establish his case and which the other party does not admit."
Cadapan and Empeno were abducted allegedly by army personnel in Hagonoy, Bulacan on July 2006 while they were conducting field research for their thesis and integrating with farmers. (ECV/Sunnex)
