[OPINION] Beyond legalities and technicalities: How the court decision challenges us to keep press freedom alive

The verdict passed down last Monday, finding Ms Maria Ressa and Mr Reynaldo Santos, Jr of Rappler guilty of cyber libel has been very worrying, to say the least.

On top of the passage of the Anti-Terror Bill by Congress, and the thousand different ways that the law has been weaponized against critics of the government, including members of the media that report on the acts and omissions of public officials, I fear the chilling effect that such guilty verdict will have across all sectors that serve as key pillars of democracy, and in keeping our society safe and free. (READ: [OPINION] Martial rule without martial law: An anti-terror bill subtext)

From members of the media, to public servants who still place “service to the Filipino people” above partisan politics, to members of civil society organizations, and to even individual citizens who wish to speak about what they see, hear, feel and think, without fear of reprisal – I fear that they will feel less secure doing so because of the guilty verdict. And I fear that our democracy is in greater peril because of it.

But fear is not what we need at this time, of all times. Especially if fear tricks us into seeing enemies where there are only fellow Filipinos and fellow human beings, and tempts us to claw and scratch at each other.

Fear is the weapon of those who wish to divide us; of those who want us to rip our nation apart from the inside; of those who want us to tear away our own civility if only to prove that we have not “earned” the right to be free because we are incapable of exercising our freedoms responsibly. All the easier to conquer and subjugate us.  

Fear will destroy what we are fighting for quicker than any enemy could.  

What we need is cool sobriety. And fiery courage.

Because if we look closely, there is a challenge here that we can easily win. We just have to see what it is.

I want to focus on what Judge Rainelda H. Estacio-Montesa herself said in her Decision:

“The right of every person to freedom of speech is a right guaranteed by our Constitution. It is a right to speak freely without fear of retribution or retaliation. The right of the press to freely report news and opinion without undue restraint is guaranteed no less. These rights are imbued with vast powers to advance the COMMON GOOD, TO EFFECT change and influence the minds of others IN THE HOPE OF BUILDING A SOCIETY where every person can be free….

xxx     xxx    xxx

“THERE IS NO CURTAILMENT OF THE RIGHT TO FREEDOM OF SPEECH AND OF THE PRESS. Each person, journalist or not, has that constitutionally guaranteed right to freely express, write, and make known his opinion. But with the highest ideals in mind what society expects is a RESPONSIBLE FREE PRESS. It is in ACTING RESPONSIBILY that freedom is given its true meaning.”

As someone who herself has been the subject of false accusations, of fake news, of trial by publicity, and of rampant, systematic, unyielding, and merciless political and character assassination: I agree with Judge Estacio-Montesa’s eloquent words about freedoms and the duty of the court towards every person. And in that sense, this is an important Decision. (READ: DOCUMENT: Decision on cyber libel conviction of Maria Ressa et al)

I wish I had read those very same, well-written words in the Decision of the Supreme Court resolving my Petition for a Writ of Habeas Data. For that is all I have ever asked the courts to do: to stand as protector against false, malicious, and defamatory imputations, acts of persecution, and threats to my security and well-being.

So at least insofar as those particular portions of the Decision are concerned, I believe we can all find something there we can all agree with: these freedoms are guaranteed by the Constitution. They are needed to build and maintain a society where everyone can be free. The government, including the courts, are bound to uphold and defend them.

I think the challenge here has been delivered: it calls on us to prove that we can exercise our freedoms responsibly “in a way that respects and enhances the freedom of others.”

So this is not the time to be afraid to speak out. In fact, this is exactly the time to prove that we can and do exercise our freedoms responsibly; that we choose to do so precisely because we want to protect and enhance the freedom of others.

As more and more people get to read closely the fairly exhaustive Decision of Judge Estacio-Montesa, debates on the merits and demerits thereof are inevitable, particularly on the key legal issues, namely, on the applicable prescriptive period, republication, and whether or not the complainant is a private person within the definition of the crime of cyber libel. These contentious issues cry out for definitive rulings from the appellate courts.  

What I clearly see is that the judge resolved doubtful and novel questions of law against the accused, which is contrary to the hornbook rule of lenity, which requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. This glaring failure on the part of the judge is made even more dubious, given her choice to impose imprisonment, rather than just a fine as sanctioned in a Supreme Court Circular, which discourages jail term in libel cases.

Yet, over and above these important legal intricacies – made more important because liberty of persons are on the line – what most people see is the pattern of oppression that belies the denial by the Duterte Administration that the libel case against Maria Ressa is not an attack against the freedom of the press.

As early as 2016, the assault against Rappler was initiated by this administration when the Office of the Solicitor General sought the investigation of the Philippine Depositary Receipts (PDRs) issued by Rappler. This would be followed by a plethora of cases against Rappler’s officers, including tax evasion, cyberlibel, and violations of the Anti-Dummy Law. In 2018, Malacanang barred Rappler’s reporters from attending the press briefings and the events attended by Mr. Duterte. 

Rappler is not the only media entity so-oppressed by this administration. After a series of tirades against ABS-CBN for allegedly publishing unfair news articles against him, Mr Duterte, in December 2019, threatened ABS-CBN and said that he will see to it that they are out. The franchise of ABS-CBN has expired with his allies still doing the best they can to delay the renewal.

Indeed, the bigger picture here is press freedom.

For more than a decade now, I have been a vocal advocate for press freedom. I have never wavered in my belief that self-regulation and responsible reporting are the key, not only to keeping the media free but, more importantly, in ensuring that it consistently serves as a productive pillar of our society. Back in 2009, as CHR Chairperson, I joined the position of members of the press that opposed any attempt to censor or impose prior restraint on the freedom of the press, and the freedom of speech and information, as I had faith that the media industry – especially in the field of journalism – has in place mechanisms such as ethical codes, media ombudsmen, or correction boxes that enable them to self-regulate.  

So I have great faith in members of the media that they can respond to this challenge.

I have great faith that Ms Ressa and Mr Santos will be able to adequately address all the issues they are facing as they move forward with their appeals and other legal remedies. Knowing Rappler, I have faith that they, as an organization, will vindicate themselves, proving themselves equal to their own high standards of journalistic core values of accuracy, truth telling and balance, over and beyond arguing the technical legal issues.

I have great faith that responsible and professional media organizations in general, and especially those beleaguered by threats, will rise to the occasion and prove that they can, and they will wield their freedom and their duty with the high degree of diligence demanded by their profession and calling.  

Make no mistake, there is an implicit threat here: if we don’t exercise our freedoms, they, too, in a way, may prescribe. We cannot sleep on our freedoms, anymore than we can sleep on our rights. For if we cower in fear now, we may never have the chance to fight for them again.

So this is not the time to fear. Nor is it the time to stop fighting.

This is the time to continue speaking up.  

Just as Ms Ressa’s and Mr Santos’s fight continues as they move their case to the appellate courts, so does our fight as a collective and as individual defenders of freedom and democracy from all sectors – in public service, in civil society, in media and as individuals.

I know from first-hand experience that it won’t be easy.

I, myself, am committed to fighting an uphill battle defending myself against these cases filed against me. I will never, ever, tire of defending my complete and unconditional innocence, and I will exhaust all avenues available to me.  

As I have always believed, nothing worth doing is ever easy.  

Defending innocence is worth it. Defending human rights is worth it. Defending press freedom is worth it. Defending democracy is worth it.  

And just as Judge Estacio-Montesa laid down this challenge for media to exercise its freedom responsibly (“in the hope of building a society where every person can be free”), I also lay down a challenge of equal (if not even greater) importance to all the members of the judiciary: Prove that justice is for all, and not just for some. Prove that your courage to stand as protectors of the Constitution and the Rule of Law goes all the way, and not only as far as it does not offend powerful people. Prove that no legal or mental acrobatics will be resorted to in order to weaponize the law against those who are legitimately and responsibly exercising their civil, political, and constitutionally protected rights. 

Because Justice that is reserved only for (or against) some is no justice at all. It is tyranny dressed in black robes. – Rappler.com

Senator Leila de Lima, a fierce Duterte critic, has been detained in a facility at the Philippine National Police headquarters over what she calls trumped-up drug charges.