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.