MANILA, Philippines (UPDATED) – What are the “elements” of freedom of expression? This was the question asked by Judicial and Bar Council (JBC) member and retired judge Toribio Ilao to Supreme Court Associate Justice aspirants on Thursday, June 14.
The subject matter is usually tackled during the first year of law school, according to Ilao, yet none of the first 3 applicants answered Ilao's question accurately.
Article III section 4 of the Constitution states:
"No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
Ilao said that the elements of freedom of expression are freedom from any prior restraint or censorship and freedom from subsequent punishment.
Prior restraint means the restriction on any form of expression before it is actually published or disseminated. Meanwhile, subsequent punishment is the act of punishing the purveyor of illegal speech after it is published. The exceptions to this rule are pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security.
“That is stated in the textbooks,” Ilao said.
Court of Appeals (CA) Associate Justice Oscar Badelles took a long pause before admitting that he “cannot recall” what the elements are.
Davao Judge Carlos Espero also admitted that he is “frankly not aware" of the elements.
Meanwhile, CA Associate Justice Manuel Barrios said the elements are, “One, you are a person who is enjoying the rights under the bill of rights under our Constitution. Second, you believe in one thing and do an act or refuse to do an act that is in consonance with your belief. In other words that's how you express your personal beliefs.”
The question itself – and how it stumped the CA justices and the city court judge – has generated discussions among lawyers who asked, did Ilao phrase his question correctly?
A human rights lawyer pointed out that Ilao’s question was phrased the wrong way, as freedom of expression has never been taught to have elements.
Other lawyers expressed the same opinion. A veteran lawyer said the question is “wrong” and that Ilao should have asked about the “limits” of freedom of expression, instead of its “elements.”
Another lawyer said an element should be present before something can exist, but freedom of expression has no elements because it is a fundamental right.
During the public interview, Ilao also asked the same applicants if it was right to convict a person for burning a flag.
All 3 agreed that the act desecrates a national symbol and the freedom of expression defense does not stand in this scenario. – Rappler.com