Right to free expression

The broader view - Harry Roque - The Philippine Star

Of late, it seems that hell has no fury for politicos scorned – or questioned – in the country. Some of our elected officials conveniently forget that intense public scrutiny and fair commentary come with the territory. Since the American occupation, the Supreme Court has repeatedly admonished public servants to rise above any hostile and unjust accusation in the name of the common good. After all, a clear conscience is always the best salve to a wounded pride or ego. 

Likewise, our right to free expression is constitutionally-protected from prior restraint and subsequent punishment. Thus, government intervention through censorship, intimidation or prosecution constitutes a chilling effect to the public and Philippine media.

“The interest of society and the maintenance of good government demand a full disclosure of public affairs…Rising superior to any official or set of officials, to the Chief Executive, to the Legislature, to the Judiciary – to any or all agencies of Government – public opinion should be the constant source of liberty and democracy (United States vs. Bustos).

Libel cases

I took the words of the High Court to heart when I left the academe and private law practice for government service in 2016. While serving as a legislator and later presidential spokesman, anti-government forces and pro-terrorist sympathizers constantly savaged, if not slandered, me. 

Critics and haters of former president Rodrigo Duterte subjected me to the vilest forms of ad hominems and low blows, especially on social media. Former friends and allies even treated me like a punching bag. 

I took on the most unenviable task of deflecting every public attack against FPRRD. Never mind if I got all the hate and none of the love that most Filipinos gave Mayor Digong. I signed up for this job in the first place. And I would gladly do it for a leader whom I respect and admire. 

To this day, I still get ‘trash-talked’ and ‘bashed’ for my political beliefs. However, I never entertained the idea of filing a case against any of my critics. Defending the freedom of the press and speech has been my advocacy. My legal team and I were able to send the murderers of 19 (out of the 32) journalists in the infamous Maguindanao Massacre to jail. Sadly, the families of the victims have yet to receive indemnification because the perpetrators have appealed their conviction.  

I have consistently pushed for the repealing of the Philippine libel law. Since 2005, I have defended Filipino and foreign journalists and individuals facing cases here and abroad. In Adonis vs. the Philippines, I questioned the legality of our criminal libel law before the United Nations Human Rights Committee. The Geneva-based body issued the View that our law infringed the Freedom of Expression provision under the International Covenant on Civil and Political Rights. In the case of the late radio broadcaster and publisher Nilo Baculo Sr., I obtained the first-ever Writ of Amparo given by the Supreme Court to a journalist. Moreover, I represented journalists who filed a class action suit against former first gentleman Jose Miguel Arroyo in the Niñez Cacho-Olivarez vs. Arroyo case.

Fake news

Again, our Bill of Rights give preeminence to free speech and a free press. In Chavez vs. Gonzales, the High Court says, “…A governmental action that restricts freedom of speech or the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This applies equally to all kinds of media, including broadcast media.”

Therefore, I am concerned about the overreaction of the House of Representatives to a Sonshine Media Network International (SMNI) program which questioned the foreign travel expenses of Speaker Martin Romualdez. The legislative franchises committee is investigating the broadcast company for allegedly peddling false information. Based on a tip from a source, program host Ka Eric Celiz asked whether it is true that Martin has already incurred P1.8 billion in overseas travel expenses between January and October of this year.

The House Secretary-General belied the ‘fake news’ and clarified that Romualdez and other congressmen have only spent a combined travel expense of P39.6 million in the said period. I understand that Ka Eric and Dr. Lorraine Badoy (whom I represent in another case) have already apologized during the committee hearing. Still, the Lower House will continue its probe on the possible franchise violations of SMNI in aid of legislation.

But a more important issue is at stake here: freedom of expression. The High Court states, “We rule that not every violation of a law will justify straitjacketing the exercise of freedom of the press and speech…The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press (Chavez vs. Gonzales).”

In a democracy, no individual or institution can monopolize the truth, ideas or concepts. To quote Justice Oliver Wendell Holmes, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” Under a free market of ideas, the general public and the media have the right to weigh in on national issues. Thus, our leaders should continue providing us an enabling environment for an unfettered exchange of ideas and information. They should encourage us to ask questions and express our views on issues that affect our daily lives.

I believe that Filipinos are intelligent enough to discern the truth from the lies; the right from wrong. Moreover, an informed citizenry can help check and counter potential abuses and possible acts of tyranny in the government sector.

In the DYRE vs. Dans, the Court says the test for limitations on freedom of expression is incumbent on words that can create a clear and present danger or substantive evils to the public, which the legislature has the right to prevent. I hope the Speaker and his allies revisit Philippine jurisprudence on freedom of expression.

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