Arroyo redux?

IN 2010 the election to the Presidency of Benigno S. Aquino III  seemed to herald, if not the coming of a free expression regime, at least the promise of one. It wasn’t only because Aquino had sworn during his campaign for the Presidency to support a freedom of information (FOI) bill and to protect human rights. It was also because, the state of press freedom and free expression being so bad during the final years in which Gloria Macapagal Arroyo was in power, with a change of administration it could only have been better.

Two years into the Aquino administration, however, those expectations are being dashed to pieces on the rock of recent court and other government agencies’ decisions and initiatives. The demise of the FOI bill in the 15th Congress and the enactment into law last September of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) are similarly distressing.

The expiration of the Supreme Court temporary restraining order stopping the implementation of RA 10175 came on the heels of a Court of Appeals decision affirming a lower court decision to proceed with the filing of a libel case against, and to cause the arrest of, a minor and several other individuals for supposedly posting defamatory comments over the online social networking site “Multiply”.

The complaint against the girl and her cohort was filed on March 13, 2012, or six months before RA 10175 was signed by Aquino into law. Despite the claim that RA 10175 is necessary because libel online is not covered by the libel law, apparently neither Branch 192 of the Marikina  Regional Trial Court nor the Court of Appeals thought that libel supposedly committed online isn’t covered by the 82-year-old libel law that’s part of the Revised Penal Code, thus opening the way for the trial of the girl and her chat room friends who had posted allegedly libelous comments online.

RA 10175 not yet being law when the complaint was filed, the Court of Appeals based its decision on the usual standards applied to the determination of whether libel has been committed in print, among them whether a comment is defamatory and malicious, and whether the subject of the libelous remark is identifiable.

The merits of the case aside, the CA decision in effect ruled that libel online is the same as libel in print. Should the case against the accused individuals prosper, under the provisions of the old libel law she and her friends could be sentenced to prison terms ranging from six months to four years. Should the Supreme Court uphold the Constitutionality of RA 10175, however, and the alleged offenders tried for online libel and convicted, their sentence could be as much as ten years.

As is evident in this developing case, while the old libel law was already restrictive of free expression, the enactment of RA 10175 was more so. What is even more important is that it was also indicative of the dominance in government of a mindset focused on the restriction of free expression. Similarly ominous for free expression is the failure of the 15th Congress to pass the FOI bill despite the 20 year campaign for an FOI.

Meanwhile, almost at the same time that the FOI bill was being written off as impossible to pass before the 15th Congress goes into recess for the national and local elections, the Commission on Elections (Comelec) issued a resolution requiring television and radio stations to “seek approval” of any intention to interview a candidate.

When media organizations protested what earlier seemed to be an attempt to control the content of radio and TV news, the Commission in effect revised its own resolution by clarifying that only prior notice of planned interviews with candidates is what it requires of media organizations. But it has insisted on the implementation of another provision of its Resolution 9615 requiring the media to provide candidates the “right to reply” (sic) to their rivals.

Although the 1987 Constitution mandates Comelec “to ensure equal opportunity, time and space, and the right to reply” among candidates for the sake of “free, orderly, honest, peaceful and credible elections,” from the statements of Commission Chair Sixto Brillantes Jr. and the wording of that provision, the Commission apparently need not expressly require media organizations to open their pages and news programs to demands for rights of reply, only to ensure equal access—which the Commission can convince, rather than compel, media organizations to provide.

In any event, what seems to have developed is a situation in which a focus on restrictions to free expression has remained dominant in the mindsets of those government agencies that are either pivotal to the defense and enhancement of free expression such as the Courts, or the tasks of which have some bearing on free expression, such as the Comelec.

Laws can by themselves be either restrictive or expansive of free expression. What is most crucial is the implementing agencies’ predisposition—whether towards a preferential option for enhancing citizen rights, or towards restricting them. Even the best laws can be interpreted badly, and Filipinos have been seeing much of that lately. Could it be, for free expression, the Arroyo regime all over again?