Contexts: The Rappler case

Maria Ressa
Standard

Asked if he caused the February 13 arrest of Rappler CEO and editor Maria Ressa, President Rodrigo Duterte said he had nothing to do with it, and that he did not “relish picking on her.”  He also said he did not know Wilfredo Keng, whose complaint that he had been libeled by the online news site led to the Ressa arrest.

Duterte spokesperson Salvador Panelo took a more belligerent tack. He accused Ressa of abusing her power by supposedly mobilizing media organizations in her defense. Ressa had described her arrest as an abuse of government power.

Panelo’s attempt to turn the tables on one of his principal’s perceived enemies was as clumsy as it was typical.  Journalists do have powers, among them that of convincing others of the truth or falsehood of certain claims, and contributing to the shaping of public opinion. But these powers are not in the same league as those of governments to arrest individuals and detain them, to the legal use of force, and, as the entire world has witnessed in the last two and a half years, to torture, maim and kill with impunity. Power is not surprisingly often defined as a State monopoly, in comparison with which the power to inform pales into insignificance.

But journalists are nevertheless charged with the responsibility of monitoring the powerful and holding them to account. The obsession of governments with controlling journalists and their media organizations is based on the fear that while the threat and use of force  can compel obedience,  information can be liberating. It explains why governments often look at independent journalists with suspicion and as enemies to be vanquished.

Regime hostility to Rappler became apparent two years ago in Mr. Duterte’s 2017 State of the Nation Address. He claimed then that it is foreign-owned, and threatened to have it investigated. Its Malacanang reporter was subsequently barred from the presidential presence. The cancellation of Rappler’s registration by the Securities and Exchange Commission (SEC) in early 2018 was also widely interpreted as  part of Mr. Duterte’s making good on his threat, as was the filing of five tax evasion charges against it late last year.

In the context of that troubling history, the arrest of Ressa on cyber libel charges could not have been otherwise interpreted than as part of a government campaign against Rappler in which all the powers of government are being mobilized.

Both the Presidential Communications Operations Office and the National Press Club  dismissed that interpretation, with the head of the first lecturing Rappler to confront the charges, and the second arguing that libel is part of the risks journalists must accept as part of the territory, although it did say that it was “in bad taste” for the government to arrest Ressa at the end of office hours so she could not immediately post bail.

To describe the timing of Ressa’s arrest as merely “in bad taste” is to ignore that practice’s capacity to intimidate practitioners and frighten them into silence at the prospect of spending even a single night in one of the disease-infested, overcrowded and hellish prisons for which this country is noted. Ressa was detained at NBI headquarters, but could have been held in a municipal jail, as others similarly accused have been.

From the US colonial period to the present, the 87-year old criminal libel law has been among the means the powerful have used against journalists for either being critical or merely reporting the truth. In 2018 dozens of libel suits were filed all over the Philippines by mostly government officials  against a number of journalists. During the problematic presidency of Gloria Macapagal-Arroyo, her husband filed 11 libel suits against 43 reporters, editors and publishers.

Libel is indeed a common enough accusation against journalists. But just because it has become a weapon of choice of those in government and outside it who have secrets to keep doesn’t make it acceptable. Hence the decades-old campaign to decriminalize it, which assumes that while media abuse should be checked, imprisonment should not be the means to do it.

Because it is a criminal offense, anyone convicted of libel can be imprisoned for six months to four years per count. But that’s only for libel in print, as mandated by the Revised Penal Code of 1932.  In 2011 the United Nations Human Rights Council described the Philippine libel law as “excessive.” But instead of reviewing and decriminalizing libel, Congress passed the Cyber Crime Prevention Act (Republic Act 10175)  in September, 2012, in which the penalty for libel via any computer-based medium (the Internet, cell phones) was increased to four to eight years per count.

In his previous life as a human rights and press freedom defender, former Duterte spokesperson Harry Roque opposed the Cyber Crime Prevention Act for being unconstitutional, pointing out at one point that it is so repressive that under its provisions, one could go to prison for cyber libel for as long as 12 years.

The date of the passage of RA 10175 — September, 2012 — is crucial to Ressa’s case. The complaint for cyber libel against Rappler was filed in May, 2012, which means that by filing it the National Bureau of Investigation (NBI)  is making the application of the law retroactive, in defiance of Article III, Section 22 of the Constitution which bans the passing of any ex post facto (after the fact) law. But  the NBI cyber  crime unit says that the crime Ressa is being charged with is a continuing offense. The Department of Justice also claims that the prescriptive limit of one year after the offense of libel is committed does not apply to cyber libel, and that the prescriptive period for it is 12 years.

Both claims if upheld will endanger not only press freedom, but also everyone else’s liberty and right to free expression. Not only does this interpretation make the Cyber Crime Prevention Act applicable retroactively. It would also establish a precedent. If a law were passed prohibiting, say, the posting of anything critical of government online, anyone who did so in the past can be retroactively prosecuted for it, and even  12 years after. This would apply to anything conveyed via computers — Facebook, email, and even text messages.

The inevitable conclusion is that not only Rappler is likely to be targeted. Mr. Duterte has indeed threatened to block the renewal of ABS-CBN broadcast network’s franchise. He has accused the owners of the Inquirer of tax delinquencies and threatened to “expose” them.  But several online media sites (Bulatlat, Kodao, AlterMidya, Pinoy Weekly), as well as the website of the National Union of Journalists of Philippines (NUJP), are already being systematically taken down in a series of unrelenting and well-funded cyber attacks.

There is no smoking gun to prove that the latter is the government’s doing. But the fact that all the news sites that have been and are still being attacked are critical of government, and that NUJP has borne the brunt of an obviously government-orchestrated campaign of vilification, lead to no other conclusion.

What’s next in the regime agenda of quelling dissent and criticism? The passage of an openly ex post facto law? A bill of attainder? (Such a bill would punish without trial.). Both are expressly prohibited by the 1987 Constitution. But the entire country should know by now that the Duterte regime wants to replace that Charter with one not as protective of those rights that despite Constitutional protection are almost daily being violated in this country today. The attack on Rappler is not just an attack on press freedom. It is also an attack on free expression, and therefore on every one.

First published in BusinessWorld.

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