FBI harassment

In yesterday’s news, the Department of Foreign Affairs (DFA) reportedly decried the alleged harassment committed by the United States Federal Bureau of Investigation (FBI) against 30 Filipino telecommunications executives attending the Pacific Telecom Conference in Honolulu Hawaii. The butt of DFA’s "angry" reaction were the supposed subpoenas served by the FBI agents on the Filipino executives over the weekend for them to testify before the Honolulu grand jury in relation to the ongoing investigation regarding the rate dispute between the Philippine telecom companies and US carriers.

To avoid any misinterpretation of the DFA’s denunciation of the alleged harassment and brand it as an overreaction, some explanation is needed on the reported actions of the FBI. A better understanding of the meaning of "subpoena" and "summons" will readily show that DFA’s dismay over the incident is not because of the "vexing" nature of a subpoena itself but more because of the fact that the case for which the subpoenas were served has already been resolved through negotiation and dialogue between the telecommunication authorities of the two countries.

A subpoena is nothing but a formal written invitation by authority of law to cause a person to appear as witness before a court or magistrate and give testimony or evidence relative to the issue at hand. It comes from the word "sub", meaning "under" and "poena" or "penalty". Thus if it is duly received and the person to whom it is addressed inexcusably fails to attend the proceedings where he will testify and give evidence, then he may be penalized for contempt. Please note that the failure to attend must be without any valid reason at all. The person subpoenaed may give as an excuse that he has no evidence or knows nothing relative to the issue and he will not be penalized. Besides, the subpoena is only enforceable within the territorial jurisdiction of the court issuing it. If the person subpoenaed is a citizen of another country and he has to leave before the scheduled date and time specified in the subpoena, he cannot be detained and will thus be no longer within the jurisdiction of the court. A subpoena cannot be the source of incarcerating a person like a warrant of arrest in criminal cases. As explained earlier, it is more in the nature of a formal invitation which may be accepted or turned down as the case may be.

The confusion arises because the news report interchangeably uses the terms summons and subpoena. They are not of similar import. Summons is a formal written instrument or writ issued by a court directed to a sheriff or other proper officer requiring the sheriff or officer to notify and serve a copy of a civil complaint to the person against whom said complaint is filed, and directing the latter to answer the said complaint with a warning that judgment will be rendered against him if he fails to do so. It is the means by which a court or magistrate acquires jurisdiction over the defendant or person against whom an action has been commenced. A subpoena is addressed to a witness who is not a party to a case while a summons is issued against a defendant or person who is a party to a case. Summons is more binding as it renders the person summoned liable for the judgment of a court if he fails to answer the complaint against him.

In the latest incident creating an apparent friction between the Philippines and the U.S., there is enough ground to believe that subpoenas, not summons, were issued and served by the FBI on the Filipino telecom executives. The service of said subpoenas is not as embarrassing as it is pictured in the news report. It may be annoying but it is not enough to cause embarrassment as to invite a diplomatic protest. As earlier pointed out, it is the disregard of the previous negotiations and settlement arrived at by the telecom authorities of the two countries which triggered the indignant reaction from the DFA. And such reaction is diplomatically proper and just under the circumstances.