Bent backwards

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    ‘Press freedom or not, free speech or not, shouldn’t it worry normal Filipinos and DDS alike that government is bending over backwards and ignoring established legal norms to pursue the case against journalists?’

    BY the time you read this, it will have been two days since Maria Ressa, CEO and executive editor of Rappler, and Reynaldo Santos, Jr., former Rappler researcher and writer, were both convicted of the crime of libel under R.A. 10175, more infamously known as the Cybercrime Prevention Act.

    As expected, crowd reaction has been mixed. On the one hand, people who care for democracy, judicial precedent, and rule of law have decried the court decision as anathema to the Constitutional guarantee of a free press. On the other hand, Duterte Death Squadders (DDS) are rejoicing at what they believe is the justice system working properly.

    Mostly because DDS can’t read English, let alone understand a court decision. That would be like expecting a toddler to understand quantum physics.
    But I digress.

    One consistent counter-argument I see often on social media is that the case against Ressa and Santos is not one of press freedom. The claim is that it is a libel case filed by a private citizen, for an article that contained supposedly unsupported allegations against the person.

    So, I’m going to go off tangent here, and try to discuss the decision from this viewpoint.

    That’s the game they want to play? I can play that game.

    So, let’s get the preliminaries out of the way. Yes, Wilfredo Keng is a private citizen. A businessman, really. And we will limit Keng’s personality to just that. We won’t bring up the fact that one of Keng’s companies, Century Peak Metals Holdings Corp., has a reclamation project with the province of Cavite, or that Keng’s daughter, Ms. Patricia Anne Keng, was appointed as youth sector representative in the Philippine Women’s Commission, a commission attached to the DILG.

    Next, yes, libel is not protected speech. The law and jurisprudence is crystal clear on this.

    The law is also crystal clear on the prescription period within which to file a complaint for libel, but we’ll get back to that in a bit.

    Now, having established that Keng is a private citizen and that libel is a crime, is the case against Ressa and Santos cut-and-dry?
    Of course not.

    The problems with the theory of the Department of Justice (DOJ), and by extension the court decision that practically adopted that position wholesale, are rather intertwined. So the best place to start is to start with the question: what exactly is “online libel?”
    In Disini v. Secretary of Justice (G.R. No. 203335, 11 February 2014), the Supreme Court said:

    “Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes ‘similar means’ for committing libel.”So, to be clear: not a new crime, just a “similar means” of committing a crime that already exists under the Revised Penal Code. Which means, all of the existing laws and jurisprudence dealing with libel before the Cybercrime Prevention Act was passed still apply to online libel.

    Why is this important?

    The DOJ theory hinges on two concepts: first, that the Cybercrime Prevention Act is a special penal law defining separate and distinct crimes, and second, as a necessary consequence, Republic Act No. 3326 – which prescribes a prescription period of 12 years for crimes punishable with imprisonment for 6 years or more – applies to the crimes defined in the Cybercrime Prevention Act – which includes online libel, which is punishable with imprisonment ranging from 4-8 years.

    Now that we’ve laid this out, the problem becomes clear. The DOJ has effectively ignored the Supreme Court discourse in Disini, in favor of a position that allowed them to prosecute a case that was as panis as Imelda Marcos’ birthday chicken adobo.

    This doesn’t even go into whether the content was actually libelous or not.

    Press freedom or not, free speech or not, shouldn’t it worry normal Filipinos and DDS alike that government is bending over backwards and ignoring established legal norms to pursue the case against journalists?

    After all, if government is willing to do that to journalists, what more to ordinary Filipinos?