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THE
Court of Appeals (CA) has dismissed the petition filed
by the mother of one of the two missing students of the
University of the Philippines seeking to subpoena an
official of Smart Communications Inc. to bring to the
court the records of the messages sent through her
cellular telephone after her disappearance two years
ago.
In a
four-page decision issued by Associate Justice Jose
Catral Mendoza, the CA’s former Special Eleventh
Division dismissed the assertion of Erlinda Cadapan,
mother of UP student Sherlyn Cadapan, that the records
might lead to the whereabouts of her daughter or those
responsible for her disappearance.
“Except
for the bare allegations in the motion, the petitioners
disclose nothing more to entitle them to the subpoena
requested. The allegations simply lack substantiation,”
the CA said.
Erlinda
claimed that Sherlyn had two cellular telephone numbers,
0910-3057609 of Talk ’N Text and 0920-7197483 of Smart,
prior to her June 16, 2006, disappearance.
She
informed the court that these phone numbers are still
active since she has been able to call and exchange text
messages through both numbers.
In fact,
Erlinda said, the last message she received from the
Talk ’N Text number was on February 9, 2008, while from
the Smart number, it was in September 2007.
The
respondents, through the Solicitor General, however,
argued that the records are irrelevant to the writ of
amparo petition case filed by Erlinda, as well as the
relatives of another missing UP student, Karen Empeño.
The
respondents in the case are retired Maj. Gen. Romeo
Tolentino, former chief of the Northern Luzon Command;
retired Maj. Gen. Jovito Palparan, former commander of
the 7th Infantry Division based at Fort Magsaysay, Laur,
Nueva Ecija; Lt. Col. Rogelio Boac, former commander of
Task Force Bulacan; and a certain Lt. Samson and Arnel
Enriquez
The
respondents noted that before a subpoena can be issued
and obeyed by the party to whom it is addressed, it must
pass through the test of relevancy, which means that the
books, documents or other things requested must appear
prima facie relevant to the issue subject of the
controversy.
In
upholding the position of the respondents, the appellate
court said that Erlinda failed to show that the said
cellular-telephone numbers were indeed owned by Sherlyn
and that there was no averment if the numbers were
postpaid or prepaid.
It
stressed that if the numbers are prepaid, it cannot be
determined with certainty who the owner is.
“The
government regulatory body does not require
telecommunications companies to first secure the names
of prepaid buyers before selling them the susbcrimer
information module [SIM] cards. As no telecommunications
company has a record of a purchaser or even beneficial
user 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,
it means that they are still being paid for. Hence,
there are receipts or billing statements [sent to the
owner],” it added.
The
appellate court ruled that unless there is proof that a
particular person is the owner of said numbers, the
court has no reason to grant the motion. |
