The Press vs. Mike Arroyo: Journalists fight back

Journalists fight back
The Press vs. Mike Arroyo
By Nathan Lee

Can’t we do anything more?” bewailed journalists charged with libel by the First Gentleman, Jose Miguel Arroyo. For some of them who have had to go through the motions of defense more than once, the prospect of yet another court proceeding fired the need for another option, another response.

Faced with the chilling effect of libel, the Philippine media have decided to fight back.

In an unprecedented move, a group of journalists and media organizations will file a class action suit against presidential spouse Jose Miguel “Mike” Arroyo for “abuse of his right” to litigate and for violation of the constitutional provision on the freedom of the press, among other things. The idea did not come from the defense lawyers. Quite simply, these journalists felt it was time to take the initiative with a court action that had not yet been filed in Philippine judicial history.

Harry Roque, international law professor of the University of the Philippines, drafted the complaint on behalf of the Philippine press, including the more than 40 media practitioners who have been sued for libel by the litigious Mr. Arroyo.

“We are sending a very strong message, not only to the First Gentleman but to any public officer, that media will not take it sitting down when individuals file libel cases with abuse of rights,” said Roque.

The civil case will be filed before the Makati Regional Trial Court.

Describing the class suit as “a social experiment,” Roque said a unified media class-action lawsuit has never been filed before, even in international courts.

Not only the journalists who were sued by Arroyo, but other media practitioners as well, will be petitioners in the case. The support from media outfits is necessary because Arroyo is not just intimidating those who are already charged with libel but the entire press community, said Roque.

The filing of the case was announced in a Nov. 22 briefing attended by more than 40 journalists from the print, broadcast, and online media at the University of the Philippines Law Center in Diliman, Quezon City.

‘Inspiring, groundbreaking’
A network of media organizations across Southeast Asia has expressed support for the civil suit.

“The countersuit against Mr. Arroyo…is inspiring, ground-breaking, and potentially standard-setting not just for the Philippine media, but for free expression in the whole of Southeast Asia, if not the world,” said a statement signed by Southeast Asian Press Alliance (SEAPA), the Center for Media Freedom and Responsibility (CMFR), the Philippine Center for Investigative Journalism, Indonesia’s Alliance of Independent Journalists and Institute for the Study on Free Flow of Information, Malaysia’s Center for Independent Journalism and Aliran, Myanmar’s Mizzima News, Timor-Leste Journalists Asso-ciation, and Cambodia’s Alliance for Freedom of Expression.

Toby Mendel, head of the law program of the international human rights organization Article 19, confirmed that the media have never resorted to a unified class suit to defend themselves. He said there have been instances where public officials have abused defamation laws in their respective countries.

“It is now time to do something more than protesting Arroyo’s libel suits,” said UP journalism Professor Luis V. Teodoro, a board member of CMFR.

The libel law has been used as “a potent weapon” against the press, Teodoro said. CMFR, the National Union of Journalists of the Philippines (NUJP), and other media groups think that media should do something more than just issuing statements against the libel suits, he added.

Since 2003, the presidential spouse has filed libel cases against 43 journalists and columnists, claiming a total of P141 million in damages.  According to Roque, the journalists were sued for fair comment on matters of public interest.

If the libel suits are trying to teach journalists a lesson, then a civil suit with journalists as petitioners “should teach somebody else,” Teodoro said.

Ruy Rondain, Arroyo’s legal counsel, called the class suit a “garbage case,” saying that he is excited to see if the case will prosper. He said the Arroyo camp would file a counter-claim once the class suit is filed.

Rondain reiterated that his client did not violate the civil rights of any journalist because  he merely exercised his right to file a libel suit.

The class suit
The idea of a class-action suit came up on Sept. 20 during a briefing with several respondents in the libel cases filed by Arroyo.

The concerned journalists noted the pattern of using libel to stifle press freedom in the country. Further, Arroyo, as a lawyer, is presumed to be knowledgeable about Philippine jurisprudence and therefore, is aware that he is open to fair comment and reporting on his public life. If journalists do not fight back, other officials can follow suit and engage in this destructive action against a free press.

Should the case be decided upon unfavorably by the local court, the journalists plan to elevate the case to international human rights agencies or courts, where Roque expects a more favorable reception.

Mendel, who is also a lawyer, shares Roque’s optimism. “I strongly expect it would have a good chance internationally should domestic remedies fail,” he said.

So far, aside from the journalists Arroyo has sued for libel, among those who have joined as class suit plaintiffs are Melinda Quintos de Jesus, CMFR executive director; Vergel Santos, CMFR board chair; Luis Teodoro, CMFR board member; Chit Estella, PJR Reports editor; Rachel Khan, CMFR consultant; Jose Pavia, Philippine Press Institute executive director; Rowena Paraan, NUJP secretary-general; CMFR, PCIJ, and the NUJP.

Some of the media organiza-tions whose journalists were sued by Arroyo, however, have not yet joined the class suit. As PJR Reports went to press, the Philippine Daily Inquirer and Malaya publisher Amado Macasaet had not yet signed the petition.

Defamation or fair comment?
In suing the journalists, Arroyo argued that the published stories—on his unexplained wealth abroad, his alleged involvement in operations to cheat in the last presidential elections, and his alleged profiteering from government projects—have all maligned his reputation.

Roque, however, said the articles in question could not be considered libelous because these constitute fair comment on matters of public interest.

Under the Doctrine of Fair Comment, fair commentaries on matters of public interest are considered privileged communi-cation and are not necessarily actionable by libel. (Borjal vs. Court of Appeals, G.R. No. 126466, January 14, 1999)

Given the number of libel cases filed by Arroyo, Roque said, “He is not out to defend his honor; he is out to chill the media in their exercise of the freedom of the press.”

“It is clear that his pattern of cases is designed to intimidate, rather than protect, his reputation,” observed Mendel. “If a senior public official like (Arroyo) really wants to clear his good name, he should primarily do it by publicly rebutting the allegations, not by suing for defamation.”

In pressing the libel charges, the lawyers of Arroyo maintained that their client is not a public official. Roque, however, argues that there is an Office of the First Gentleman which is run by a government undersecretary who also acts as spokesperson for the presidential spouse.

Mendel stressed that the issue is not just about Arroyo’s being a public figure. He said it is “more important to focus on the nature of the story, and assess whether or not it relates to a matter of public interest.”

On this issue, De Jesus, speaking at the Asian Forum for Human Rights and Development in Bangkok pointed out that the model for presidential spouse in many developing countries is not the quiet, unassuming Mr. Thatcher, but the flamboyant Mrs. Marcos, whose public profile and influence on public policy were unquestioned.

Assessing the damage
In filing the libel suits, Arroyo violated Articles 19, 20, 21 and 32 of the Civil Code, which pertain to the abuse of one’s rights to impair another person’s civil rights, among other things.

Roque said Arroyo’s flurry of libel cases has had several damaging effects: the harassment of those charged; the undue and illegal restraint of media and information; the chilling effect on media in general; violation of civil rights; the abuse of rights affecting media personalities and media as an institution; and other pecuniary or irreparable damages.

In a recent meeting of those sued for libel, a prominent journalist suggested “suing the pants off [Mike Arroyo] in return.” He proposed that the group seek damages amounting to P87 million or P1 for every Filipino.

“The Filipino public is represented here because it is the public which suffers most when there is no press freedom,” said Roque in explaining the pro-posed damages the suit would demand.

But the journalists by them-selves cannot file for such damages.

“The problem is that the amount of filing fees is dependent on the amount of damages being sought, and P87 million means putting up a P1.7 million  filing fee. That was prior to the increase in filing fees which was implemented only this week,” Roque said during the press briefing.

The complainants have decided to scale down the damages to the more realistic amount of P15 to P20 million, which would require a filing fee of between P350,000 to P500,000.

The different defendants will most likely contribute what they can to the total filing fee. Press freedom advocate groups have already pledged their share. The journalists promised that in case of victory, the damages won would be put in a trust fund to support press freedom cases in the country.

One region, one problem
The civil class suit, and the call to decriminalize libel as initiated by the CMFR as early as 1990 and by NUJP lately, is supported by more than 600 journalists and 30 organizations.

Earlier this year, at least 50 journalists and nine media organizations (including CMFR) filed a petition questioning the government’s attempt to seize control of or influence media through the president’s emer-gency powers and the restrictive guidelines for broadcast news released by the National Tele-communications Commission.

Philippine media practitio-ners are not alone in the fight for press freedom.  Government officials suppress free expression in many countries through legal or indirect means.

Journalists and editors in Thailand, for example, have told Human Rights Watch that they are routinely pressured by the government to alter news coverage and rein in critical reports.

Over the past three years, the Thai Journalists Association and the Thai Broadcasters Association have documented more than 20 cases in which news editors, as well as print and broadcast journalists, have been dismissed or transferred, or their work tampered with, to appease the government.

Thai politicians and their affiliated business interests have also filed an increasing number of defamation suits against jour-nalists and news publications. Seeking  huge damages, the court cases have had a chilling effect on the country’s print media.

In 2005, Thaksin filed six different criminal and civil defamation suits against media firebrand Sondhi Limthongkul. The then prime minister asked for two billion baht (US$50 million) in damages. He dropped the charges after King Bhumibol Adulyadej indirectly criticized the lawsuits during a nationally televised birthday address.

Some victories
The high-profile libel case of Supinya Klangnarong was dismissed by the Bangkok Criminal Court last March 14.  The move was widely hailed as a victory for press freedom.

Shin Corp, the telecoms firm owned by Thaksin, was the complainant in the libel suit. The case stemmed from a story that quoted Supinya as saying that the corporation was a major beneficiary of Thaksin’s policies, judging from the sharp rise in Shin Corp.’s profits since he became prime minister in February 2001.

The Bangkok court said public companies, like public figures, should be open to criticism because this is in the public interest. The judges cited Article 40 of the Thai constitution which requires the use of national telecommunication frequencies for the public interest.

In Cambodia, the Cambodian Supreme Court and the Minister of Justice issued a joint statement last March 14 instructing all Cambodian courts to consider defamation as a serious crime that targets individuals or public figures and upsets public order or national security.

Even then, across Southeast Asia, governments and national courts have recently heeded local and international protests calling for restraint in the use of defamation laws.

In East Timor, President Xanana Gusmao has sent a draft bill on penalties for defamation back to the Ministry of Justice for reconsideration because of concerns over the criminal aspect of the provisions.

The bill seeks to amend the penal code to allow jail terms of up to three years and unlimited fines for defaming public officials. Passed by East Timor’s parliament and signed by Prime Minister Mari Alkatiri in December 2005, the proposed law must be signed by Gusmao before it can be implemented.

No longer a crime
In Cambodia, Prime Minister Hun Sen has supported the move to decriminalize defamation laws, saying such offenses should be tried in civil courts. He said compensation is the proper way to give justice to victims of defamation.

But the prime minister has also called for public education to help the people understand that freedom of expression is limited and should not be used to harm others. Hun Sen had earlier filed defamation suits against at least three journalists for criticizing his government’s treaty with Vietnam.

Under Cambodian laws, individuals guilty of libel are subject to jail terms of up to one year and fines of up to 10 million riel (US$2,600).

Last Feb. 9, the Indonesian Supreme Court quashed a lower court ruling against editor Bambang Harymurti, who was convicted of criminal defamation and sentenced to one year in prison in September 2004.

Harymurti’s publication, Tempo, had published in its March 3, 2003 issue an article alleging that businessman Tomy Winata stood to benefit from a suspicious fire in Tanah Abang textile market.

A Supreme Court spokesperson said the decision was made in recognition of media’s important role in keeping society informed.

Contempt for the people
Against the backdrop of continued efforts to muzzle the press everywhere and the victories achieved by the press in some countries, the Philippine media situation has been getting more, if not the most, attention. The government has earned the notorious tag as one of the worst violators of freedom of expression in the world.

Based on the 2006 World Press Freedom Index of the Paris-based Reporters Sans Frontières, the Philippines ranked 142nd among 168 nations. The ranking was three notches down from last year because of the increasing cases of harassment and the continuing murder of journalists.

“Backdropped by the alarming rate of murder of journalists in the Philippines, particularly under the Arroyo administration, the antics of the President’s husband underscore the overall decline of official respect for press freedom in the country,” a SEAPA Network statement says.

The alarm bells for the press tolled in late February when President Arroyo issued Proclamation 1017 which placed the country under a state of national emergency and put media under strict government monitoring. By mid-year, the killings had continued with six work-related cases. But the barrage of libel suits against the press began even earlier, in 2003.

“Contempt for press freedom is contempt for the people,” lamented SEAPA, which stressed the importance of participation by both the press and the citizenry in the fight to defend press freedom.

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