A (temporary) victory for free speech


 

In the 1936 case of Tañada versus Electoral Commission, the Supreme Court held that when the Court strikes down an act of any other branch of government for being contrary to law and the Constitution, it is not exercising judicial supremacy but upholding the supremacy of the Constitution. This was exactly what the Court did last Tuesday when protesters joining the “second black Tuesday” protest were given by the Court an unexpected treat: a temporary restraining order on the enforcement of the controversial Cybercrime Prevention Act of 2012.

Of course the victory, from the Order itself, a TRO—merely temporary and not yet an adjudication on the merits of the 15 petitions questioning the validity of the law. Still, it is a victory. It is a clear decision by the Court that unless restrained, the enforcement of the law will result in an injustice and irreparable injury to all the petitioners, And because a common allegation of the petitions is that the law violates freedom of expression, the TRO in effect, may be read as the Court’s judgment that unless restrained, the enforcement of the law may result in a violation of this constitutional freedom. Moreover, because a TRO may be issued only upon showing of an imminent injustice and an irreparable injury, the Court has implied that unlike other statutes that are presumed constitutional, the questioned law does not enjoy this presumption. Otherwise, why would the court conclude that its enforcement might result in both injustice and irreparable injury?

Senator Miriam Defensor-Santiago, a former jurist, is right (again) when she opined that the TRO shows the Court’s leanings on the issue. It is now up to the administration to justify and show how the law’s offensive provisions —including the criminalization of electronic libel, the increased penalty for it, and the absence of clear language on what is covered by it and who may be liable thereof, plus its most controversial provision, sec. 19 which grants the Secretary of Justice draconian powers to close down web pages unilaterally– are compatible with the Bill of Rights. Certainly, the TRO has turned the tables as far as presumptions are concerned.

The fight is far from over. Oral arguments were scheduled on January 15 next year where the Office of the Solicitor General is expected to argue that the legislation is valid since it was enacted pursuant to the inherent police power of the state to uphold the public good. I wish my friend, Solicitor-General Francis Jardeleza the very best in this regard as the TRO has shown that it would be an uphill battle for the government. In any case, this is why a career in the OSG is most appealing to those who love the law. Counsels in this case are expected to put forth their best arguments in the best manner that they could, considering the transcendental importance of the issues to be resolved in the case. Regardless of the final outcome, we cannot deny that with the issuance of the TRO, the Court has once again proven that it will not shirk in its responsibility to defend particularly the Bill of Rights- even if the administration that may violate it enjoys unprecedented popularity. Hail to the Court!

In any case, while the petitions against the Cybercrime Prevention Act has taken center stage in the market place of idea, a companion case, that which prays for the restraining of the public showing of the notorious film, “The Innocence of Muslims”, has all been forgotten. The Court also issued a TRO against the MTRCB from allowing the public showing of the film. This appears to be tantamount to public restraint since jurisprudence is clear: offensive speech is protected because as Mike Godwin said, “ nobody ever tries to ban the other kind”. The American Civil Liberty Union succinctly argued in a case involving hate and offensive speech: “The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.”

In other words, while the public has rightfully protested against the infringement of freedom of expression by RA 10175, the public should also be equally indignant over the suppression of a bad film if only because without such bad films, we cannot appreciate the truly good ones.

TRO signals that enforcement of Cyberprevention law will cause injustice and irreparable injury


The Center for International Law and the Media Defense SouthEast Asia, counsels for journalists/petitioners  in Alexander Adonis et al vs. Executive Secretary- hail today’s temporary restraining order issued by the Supreme Court  as a big victory for freedom of expression. While not yet a declaration that the law is unconstitutional, the TRO nonetheless is judgement by the Court that the enforcement of the law is a matter of extreme urgency and that the applicant/petitioners will suffer grave injustice and irreparable injury as a result of its  enforcement. It hence validates petitioners argument that prima facie, the law, which limits freedom of expression on the internet, does not enjoy the presumption of constitutionality.

We ask the citizenry to remain vigilant as the challenge today is to make the TRO permanent by convincing the Court to declare it unconstitutional. We hope the DOJ and the authors of the law will take heed and forthwith repeal the law even before the Court issues a final verdict on the merits.

We hail the Court likewise for being steadfast in upholding the supremacy of our Constitution.

The Black and White Movement as urban poor?


 

Harry20RoqueCommission on Elections Chairman Sixto Brilliantes Jr. knows what he was saying when he described our party list system as a big joke. It is sad that a novelty of the 1987 Constitution intended to increase the representation of the marginalized groups in our society has been bastardized by trapos.

And no, it is not just the trapos affiliated with former President Gloria Macapagal Arroyo, led by ex- presidential son Mikey masquerading as a representative of security guards, that has done it injustice. It now also includes the party of presidential mouthpiece Edwin Lacierda, the Black and White movement composed of five persons, who but for one (who was removed), are already in government.

Almost all of the party-list representatives, with the exception of the Bayan Group and Akbayan, are 24- karat multi-millionaires. Worse, the so-called marginalized groups represented in Congress include regional parties already represented in Congress, and sectors which in no way can be described as marginalized, including but not limited to electric cooperatives, LPG suppliers etc.

Worse, the trapos have also resorted to the party-list system as a more economical way to firm up dynasties: the Velascos allegedly of Marinduque but our neighbors in Pasay, the Banals of Quezon City, the Ruiz clan of Cebu, to name only a few.

I am hoping that finally, the length of the Smartmatic ballot will be dramatically shortened with the Comelec denying accreditation to an overwhelming majority of these party list groups.

Brillantes should be more vigilant against allies of the President attempting to be accredited under the party-list system, as their very existence is a disservice to the “mastoid an dean” mantra of the President. For Lacierda’s party to be accredited as representing a marginalized group would be a black eye to President Aquino given the moral majority’s outcry when Mikey Arroyo successfully duped the constitutional body that he was representing security guards.

Let’s not allow the Black and White Movement—unless it purports to represent bygone singers from an equally bygone era—dupe the nation into believing that it can represent other marginalized sectors of our society.

Moreover, the Comelec should not construe the Constitution in a manner contrary to human experience. If the party-list system is to help the marginalized sectors have a bigger voice in governance, all their representatives should also be from the marginalized sector that they are purportedly representing. We should not allow again the farce of a presidential son purportedly representing security guards, in the same way now that Leah Navarro, a long time Forbes Park resident and Kabataang Barangay officer of the said village- is now purportedly representing the urban poor sector. The point being that perhaps with the President having set very high moral standards in governance, it is high time that everyone, even those parading as his loyalists but whose actions betray his moral high ground, should no longer be allowed to make a mockery out of this very noble intentioned party-list system.

***

The furor over the Cybercrime Prevention Act of 2012 continues.

I joined Alexander Adonis, the Davao-based journalist who spent two years in jail for libel, and veteran journalist and blogger Ellen Tordesillas et al in asking the Supreme Court to declare specific provisions of the law as being unconstitutional.

These include the law’s provisions making electronic libel criminal, imposing a higher penalty for it of up to 12 years imprisonment compared to libel under the Revised Penal Code which is punishable only with up to six years of imprisonment, the possibility of being subject to double jeopardy as the law sanctions conviction under the RPC and under the law, and the draconian powers granted to the Department of Justice to act as investigator, prosecutor, judge, and executioner.

As a result of the ongoing “cyber-revolt”, it is heartening to know that politicians may still be swayed by public opinion. Almost all of them, with the exception of Senator Tito Sotto, have expressed the intent to revisit the law. Even Justice Secretary Leila De Lima swore that her department expressed reservations with the provisions that we have claimed are unconstitutional.

What is disheartening is that despite all these, Malacanang, at least according to Undersecretary Abigail Valte, claims that it thoroughly studied the bill before the President signed it as law. That’s not exactly what we the people expected of a President who still enjoys unprecedented public support. We expect to see a veto, and not a signature, when a protected right such as that of freedom of expression, is infringed upon by legislation.