As though chasing after the truth and reporting on the odious acts of a government weren’t difficult enough, Filipino journalists must now face a new breed of foes: legal monstrosities which clawed out of some absurd invisible cauldron.
On Wednesday evening, February 13, agents of the National Bureau of Investigation (NBI) served a warrant of arrest to Rappler CEO Maria Ressa for allegedly committing cyber libel under the Cybercrime Prevention Act. On a night when she ought to be up on a UP Fair stage to talk about press freedom, she was detained in a conference room, the first in her reputable career as veteran journalist.
The cyber libel case stems from a 2012 report that Rappler carried when it was covering the impeachment case against then Chief Justice Renato Corona. In that report, Rappler claimed that the car used by Corona during his impeachment trial belonged to Wilfredo Keng, a businessman with alleged ties to drug smuggling and human trafficking. Keng disputed the allegations.
What is bewildering here is that the Department of Justice pursued the case even if the report came four months before the anti-cybercrime law was enacted. First year law students worth their salt would know by heart that under our legal system, penal laws generally have no retroactive effect. The Constitution itself guarantees against ex post facto legislation— measures that will punish an act that is not yet a crime when committed.
Further, Keng filed the cyberlibel case four years after the article was published, which is beyond the one-year prescriptive period for libel cases under the law. The DOJ, however, propounded a novel concept to justify reviving the issue: cyber libel as a continuing crime.
The Supreme Court defines a continuing (continued or continuous) crime as a single crime, consisting of a series of acts but all arising from one criminal resolution.
The idea that cyberlibel is a continuing crime is a novel but dangerous idea. As a subject of legal study, Ressa’s arrest raised several questions that will titillate academics: Is editing/updating an online article, which has existed for several years already, equivalent to publication, for purposes of the law on libel? Can the concept of a continuing crime be applied to an online article to reckon the prescriptive period for bringing an action to court?
As a subject of press freedom, Ressa’s arrest deflates every online journalist’s heart: If cyber libel will be considered a continuing crime, there can be no prescription to bar its prosecution. Online journalists will remain liable even for articles published for more than a year if they update them with so much as a word or a punctuation mark. That such a profession could be so terrorized, is a political invention as harsh as it is rash, as callous as it is calculated.
To further buttress its specious idea, the DOJ proposes that since the Cybercrime Prevention Act is a special penal law, acts committed under it prescribe in 12 years, not one.
A simple reading of the law will show that libel committed online remains to be defined and punished by the Revised Penal Code. The anti-cybercrime law merely adds on the circumstances where libel is committed, and the added punishment for its commission. It does not redefine libel’s nature as a crime mala in se or an inherently evil act, which is the general nature of crimes punishable under the Revised Penal Code, as opposed to crimes punishable by special penal laws, which are generally crimes mala prohibita or acts that are wrong because they are prohibited.
There should be no quibbling: Ressa’s arrest is part of a series of orchestrated attempts to silence a press critical to President Duterte. It cannot be denied that while Keng–the private complainant–initiated the action, it was the DOJ that allowed the case to be prosecuted. It could have decided that there is no more cause of action because the liability has already prescribed. But by advancing the dangerous idea of continuing crime, the DOJ–the department under the direct supervision of the President, whose secretary is the alter-ego of the President, and whose actions are deemed to be actions of the President until reprobated–has clearly drawn the battle lines.
The President has openly shown his disdain of the media’s critical reporting of his policies. Rappler, believed to be a mainstreamed portal for the opposition, has come under fire repeatedly, at one point accused of foreign ownership and recently charged with tax evasion, in attempts to shut the news site down. While Duterte’s bluster may be idiosyncratic, the administration’s penchant for acting on the president’s tantrums has left behind a trail of palliative solutions too self-serving to be ignored, all of which require the media to be constantly alert and, increasingly, in uproar.
Journalists face perpetual danger in performing their duties; for them to be additionally dogged by the threat of imprisonment is a failure of the State and a violent act perpetrated by the governing power. There are those, like senatorial candidate and former media practitioner Jiggy Manicad, who deny the existence of such attacks against the press, despite frequent and overwhelming evidence of malice and hostility directed at them, as inflicted by an army of online trolls and, now, lawyers and departments hacking away in crazed fashion at the heels of those who defend our freedoms. Are there no hounds left in hell? Have they all been collared and employed, surreptitiously or not, by the Philippine government?
Democracy is the stronghold of the people’s interest. When the first breach is the fall of the free press, all manner of monster and mayhem can go through the gates.