Ombudsman Samuel Martires’ proposed “clarifications” in the Code of Conduct of Public Officials will define what news can be, and will make some “commentaries” a crime.
This, lawyers said, would be going against the guarantee of the Bill of Rights that no law shall abridge the freedom of the press.
Defending his draft amendment to Republic Act 6713 submitted to the House of Representatives for study, where “commentaries” on public officials’ Statement of Assets, Liabilities and Net Worth (SALNs) would be punished with five-year imprisonment, Martires told GMA’s Super Radyo DZBB on Friday, October 22, that the law already has those prohibitions.
RA 6713 is the Code of Conduct for Public Officials that governs the rules on SALNs. Omissions in SALNs have been cited in the past as basis for impeaching public officials or filing complaints against them. SALNs have also been a key document in investigative reports on the Estrada, Arroyo, and Aquino presidencies.
The prohibition that Martires was referring to is Section 8 of the law, which does not allow the use of SALN “for any purpose contrary to morals or public policy” and for “any commercial purpose other than by news and communications media for dissemination to the general public.”
“Ako ay hindi nag-aral ng journalism, kapag sinabing news (I did not study journalism but when you say news), only news, what you see what you report, you do not comment, if you comment that is no longer news that is a commentary,” Martires said.
But lawyers and journalists disagreed. What some officials may consider as “commentary” could in fact be simply a news story based on what’s declared in his or her SALN.
“No jurisprudence will support Justice Martires’ argument that the public’s right to access information on matters of public concern has been declared as contrary to morals, or public policy,” said Dino De Leon, a public interest lawyer who has been seeking to obtain President Rodrigo Duterte’s SALNs.
Even just to consider if commentaries are contrary to morals or public policy would be difficult to do without infringing on the constitutional protection of free speech and free press, said John Molo, a constitutional law professor at the University of the Philippines College of Law.
“Defining what is news is a key function of the Press. It is difficult to have this function (deciding what is news) determined by a legislature without affecting the fundamental structure of what Section 4, Article III expressly protects by saying no law shall abridge the freedom of the press,” Molo told Rappler.
Martires pointed out that Section 11 of RA 6713 punishing violations with a five-year imprisonment covers violations of Section 8 – which he proposes should prohibit commentaries.
“It would also be difficult to limit (opinions or commentary) via an ordinary statute, especially if it concerns commentary about public officials. Essentially, we will be imprisoning citizens for commenting about the wealth of public officials,” said Molo.
Martires’ beef is that reporting on SALNs has caused malicious insinuations regarding officials’ wealth increase, such as his own. In his Friday interview, Martires made an example of Rappler’s report on the SALNs of the late former president Benigno “Noynoy” Aquino III that showed a 300% increase in net worth from 2009 to 2015.
“ When they said increased by 300% we created, we insinuated (malice). Kaya gusto namin isaayos para magkaliwanagan, ano ba talaga, pwede ba mag comment?” said Martires.
(That’s why we want to clarify, are commentaries allowed?)
But reporting on how much an official’s wealth has increased over the years is not commentary but factual reporting, said Jonathan de Santos, chairperson of the National Union of Journalists of the Philippines (NUJP).
“Hindi naman tayo pwede malimit sa universe ng dokumentong yun. Kung may investigative series puwede naman tingnan outside of that universe, may methodology naman, hindi naman ‘yan hinugot from nothing,” De Santos told Rappler on Friday.
(We cannot be limited to the universe of that document. If there’s an investigative series we can look outside of that universe, and we have a methodology for that. It does not come from just nothing.)
“If we are reporting on verifiable facts, backed by documents, that wouldn’t be commentary. It’s still also dangerous to have a mindset that news is limited to just these facts – who is he to say that? Who is the law to say that these are the only facts that can be news? We are allowed to self-regulate,” said De Santos in a mix of English and Filipino, following rich jurisprudence that allows media to regulate itself to preserve its freedom from government regulation.
Lawyer De Leon said, “The Ombudsman likewise has no business telling the media what news should be, as the Constitution likewise guarantees press freedom, including allowing the media to have the autonomy to determine what should be newsworthy.
‘The law is not the problem’
Martires’ proposal punishing commentary will further restrict transparency on SALNs, after the Ombudsman issued a circular in 2020 that cut off public access to the SALNs under the Office of the Ombudsman’s safekeeping, such as the President’s and the Vice President’s.
This circular has allowed Duterte to keep his SALNs since 2018 a secret by giving those who ask a runaround from Malacañang to the Ombudsman. On the other hand, Vice President Leni Robredo annually releases her SALNs to the public.
Martires said that for him, the Office of the Ombudsman should not be the repository of the SALNs of a president. He said it should be under the Office of the President.
Martires told DZBB: “Mali po ang basa ng mga taga media (the media misread it)” and challenged journalists and advocates that “instead of attacking us, help us lobby Congress.”
De Leon said there is no need to amend RA 6713, Section 8(C)(4) of which says SALNs “shall be available to the public for a period of ten (10) years.”
“The problem is not the law but the refusal of the Ombudsman to do his job and the wanton disregard of the Executive of the law,” said De Leon.