[ANALYSIS] The right to call the government crazy

Voicing your exasperation over the government and its officials – even in impolite language – is constitutionally protected


Frustrated over the current state of affairs in the country, a Butuan City salesman turned to Facebook to express his sentiments, calling the President “crazy” and an “assh*le” in Bisaya. Then came the arrest.

On May 13, 2020, police officers went to Reynaldo Orcullo’s home and arrested him without any arrest warrant. Orcullo was charged with cyberlibel under the Cybercrime Law.

For citizens who still aspire for a democratic Philippines governed by the rule of law, the recent spate of warrantless arrests of people expressing dissenting views online should be disconcerting. Under our constitutional order, no citizen should be prevented, or worse, arrested for merely expressing personal sentiments on government matters and public officials. A citizen’s commentary on public affairs is constitutionally protected – even if the language used is discourteous. (READ: [PODCAST] Law of Duterte Land: Pandemic and the great wall of free speech)

Libel in a nutshell

The Revised Penal Code defines libel as the act of publicly and maliciously making an imputation that tends to dishonor or discredit of a person. If you make a public accusation that puts a person in a bad light, it’s presumed that the accusation was made maliciously, even if the accusation is true, and you may be held liable for libel unless you’re able to prove that the accusation was made in good faith.

Libel vis-à-vis political expressions

However, if an opinion is made on the qualities or performance of a public official in relation to official duties, the expression is examined beyond the confines of our libel laws. In other words, expressions of a political character are treated differently under our law.

The Constitution declares that the Philippines is a democratic state where sovereignty resides in the people. Hence, the people enjoy the fundamental freedoms of speech, of expression, and of the press, as well as the right to petition the government for redress of grievances. The freedom of speech belongs as well, if not more, to those who question, who do not conform, who differ. “It is freedom for the thought that we hate, no less than for the thought that agrees with us.”

The Constitution also holds that public office is a public trust; public officers are accountable to the people at all times. As a consequence of these constitutional guarantees, political speech, which includes commentaries on public matters and public officials, is afforded special protection. In the hierarchy of protected expressions, political expression occupies the highest rank. The wide latitude people enjoy in expressing themselves ensures that the debate of public issues will be dynamic and robust. It also ensures that the people will be able to hold power to account.

Political speech is a direct exercise of the people’s sovereignty. Considering the special constitutional protection afforded to political speech, the Supreme Court has repeatedly explained that a defamatory opinion against a public figure is not libelous unless there is actual malice. A remark directed against a public figure in relation to public matters is a privileged expression.

This principle was enunciated early on in our judicial history, as seen in the landmark case of US v Bustos, where the Supreme Court explained that public officers may suffer under a hostile and an unjust accusation because “a public officer must not be too thin-skinned with reference to comment upon his official acts.” Public policy and the welfare of society have demanded protection for public opinion.

A citizen who publicly accused a barangay chairman of land grabbing and illegal gambling was found innocent because “even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice.” A tabloid article that scathingly accused a DTI official of misdeeds was deemed privileged because “[t]he conduct, moral fitness, and ability of a public official to discharge his duties are undoubtedly matters of public interest[.]”

Of course, just like any other right, the right to make defamatory expressions towards public officials isn’t absolute. As previously mentioned, such expressions are not privileged if made with actual malice. Unlike in regular libel cases, when a political comment is made, there is no presumption of malice; malice must actually be proven.

Actual malice exists when a statement purporting to be a fact is made with the author’s full knowledge of its falsity or with reckless disregard of the statement’s truthfulness. Mere inaccuracy or even falsity in a statement does not constitute actual malice. There must be an ulterior, deliberate motive to damage a person’s reputation.

In the cases that adjudge defamatory expressions on public officials as libelous, the expressions involved are mostly malice-laden journalistic works that are made out to be factual reports – even if the author knew of the report’s falsity or was so reckless in determining the report’s accuracy. For example, the Supreme Court believed that there was malicious intent on the part of an author to malign the character of a certain Customs official accused of corruption because the author himself admitted that he had no real knowledge of the accusations and that no in-depth research was conducted beforehand.

However, when a citizen expresses a purely personal opinion calling a certain public official crazy as a political commentary on current events, there is absolutely no malice there because the utterance is not meant to be a matter-of-fact statement. If the comment is a mere opinion inferred by the person from factual events, it is immaterial that the opinion is mistaken. No matter how wrong or idiotic a person’s opinion is, the comment remains to be just that – simply an opinion. There can be no libel unless the author was deliberately lying or was so reckless to think that he/she was telling the truth. (READ: Police file complaint vs Makati resident for resisting arrest, cursing cops)

In criticizing a public official by calling him/her “buang,” there can be no libel because, in the first place, the person does not intend to assert a factual truth; it is merely a personal feeling or sentiment. Freedom of speech protects impolite speech as well.

It is also wrong to argue that calling a high public official “buang” is unprotected speech because of the irreverent use of language. Free speech protects “not only polite speech, but even expression in its most unsophisticated form.” Insulting words are not libelous per se, and abusive words, however ill-natured, are not libelous in the absence of malice. The privileged nature of political speech “is not defeated by the mere fact that the communication is made in intemperate terms.”

Therefore, the citizen’s political commentary may be vulgar, unpleasant, satirical, humorous, respectful, or even bland – all the same, the political expression is protected by the right to free speech.

Is this part of our “new normal?”

The increasingly trite phrase “new normal” refers to the lifestyle change brought about by the COVID-19 pandemic – the strict observance of social distancing and hygienic practices, working from home, etc. But with the recent crackdown on online dissent, in addition to other reported violations of human rights, we are now confronted with this unsettling question – will the violation of constitutional freedoms be our “new normal” as well? (READ: [ANALYSIS] Duterte crushes free expression amid pandemic)

In these perilous times, aside from looking out for each other’s health and well-being, our vigilance should extend to ensuring that our fellow citizens’ constitutional rights are respected. “The liberties of one are the liberties of all; and the liberties of one are not safe unless the liberties of all are protected.”

What we need now is mass testing and contact tracing, not the tracing of online critics. – Rappler.com

Leonardo M. Camacho is a lawyer in the public sector and teaches law at a university in Manila. The author’s views are solely his own.