SolGen urges SC to void Comelec-Rappler fact-check MOA

Mike Navallo, ABS-CBN News

Posted at Mar 07 2022 02:30 PM | Updated as of Mar 07 2022 04:12 PM

MANILA (UPDATE)—The Office of the Solicitor General on Monday filed a petition before the Supreme Court questioning the memorandum of agreement that the Commission on Elections entered into with news website Rappler.

It wants the high court to issue a temporary restraining order and declare the MOA void supposedly for violating the Constitution and other laws, and also for allegedly being “onerous to the Government and the Republic,” based on a 2-page press release.

No copy of the full petition has yet been released to the media.

Two administrative staff filed the petition with the SC Docket on Monday morning, refusing to issue any statement.

“Wala po kaming authority na magsalita, admin lang po kami (We don’t have authority to speak, we’re just admininistrative [staff]),” they told reporters asking for a copy of the petition.

They also refused to say what kind of petition was filed and if Solicitor General Jose Calida signed the petition himself.

Among the reasons the OSG cited in its press release is Rappler’s status supposedly as a “foreign non-registered entity” because the Securities and Exchange Commission has revoked its registration.

“It is beyond belief that Comelec has allowed a foreign non-registered entity to interfere the conduct (sic) of the country’s elections!” the OSG said in its press release.

The Comelec said it is ready to defend its deal with Rappler following the OSG's move.

"We cannot do anything but face the music, answer the petition, and defend the memorandum of agreement that we signed with Rappler. Whatever decision the court will render, we will abide by it," Comelec acting chairperson Socorro Inting said. 

Asked if they are standing by the deal with Rappler, Inting said: "We entered into an agreement with Rappler freely and voluntarily, and it underwent review by the Law Department. And if the court finds the MOA to be infirm, then we cannot do anything."

The Securities and Exchange Commission in January 2018 revoked the certificate of incorporation of Rappler for supposedly violating constitutional restrictions on foreign ownership of mass media by allegedly selling control to foreigners.

The transaction in question was the sale of Philippine Depositary Receipts to foreign entity Omidyar Network Fund LLC. 

Rappler said PDRs are not evidence of ownership but are mere investment instruments.

The SEC however considered a clause in the PDR as giving foreign entities a form of control on corporate matters.

Rappler challenged the ruling before the Court of Appeals. 

The CA upheld the SEC but it remanded the case to the SEC to determine the effect of Omidyar’s subsequent donation of its PDRs to Filipinos.

In a press conference in November, Rappler’s lawyer Francis Lim said the SEC stood by its earlier ruling.

The CA has yet to act on SEC’s latest position on the matter.

Aside from alleging foreign control in Rappler’s operations, the OSG claimed that the news organization is managed by an “American citizen.”

The press release did not mention who the American citizen is, although Rappler CEO Maria Ressa is a Filipino-American dual citizen. 

There is currently no legal provision barring dual citizens from owning mass media companies in the Philippines.

In its press release, the OSG said the Comelec essentially “co-shared” with Rappler the power to decide on all questions affecting the elections, and that Rappler’s authority to flag Comelec with “false, misleading, harmful information” constitutes prior restraint of freedom of speech and freedom of expression.

It was not explained in the press release how this is so, but the OSG referred to a Feb. 28, 2022 letter by Calida himself to the Comelec where he argued that “‘fact-checking’ has become highly-contentious as it may result to a ‘monopoly of truths.’”

Calida accused Rappler of having a record of reporting “false and grossly biased” information.

In the same letter, Calida gave the poll body five days to rescind the MOA or until March 4, 2022, based on his advice that the MOA is void and illegal.

But the Comelec did not rescind the MOA, prompting the OSG to file the petition before the high court.

In its petition, the OSG, according to the press release, also claimed violations of privacy because Rappler is supposedly given access to key information and confidential data.

Aside from fact checking, Rappler is allowed under the MOA to embed the precinct finder on its website.

Rappler CEO Maria Ressa had explained in an interview with ANC’s Headstart that the precinct finder embed does not mean data access.

“The data is all with Comelec. Baka naman hindi nila alam ang ibig sabihin ng 'embed'. Anyone running a campaign should know the difference between 'access to data' and 'embed'. Pwede naman mag-Google para di naman nakakahiya ang sinasabi niyo. That statement either shows, ignorance, incompetence or intent,” she said.

WHAT DOES OSG FEAR?

“The endless possibility here is that Rappler may control any election narrative that suits the agenda of Rappler’s foreign owners which will not be for the benefit of the Filipino people,” the OSG said in its press release, accusing Comelec of giving Rappler “unbridled rights” in the MOA.

It also claimed the powers granted to Rappler under the MOA constitute “taking part or influencing in any manner in any election” and warned against allowing a “pseudo media company” to supposedly proactively influence the 2022 election.

The OSG cited cases involving Rappler and some of its executives — from alleged violations of the Anti-Dummy Law and Securities Regulation Code, to tax evasion and cybercrime, some of which the OSG itself initiated.

It was Calida who wrote to SEC to probe Rappler’s registration status.

The OSG itself, in its press release, acknowledged the peculiar nature of having the lawyer for government agencies such as Comelec, suing its own client. 

“Today’s event is an unprecedented one, as the government’s chief lawyer sues one of its statutory clients ultimately in the interest of preserving the integrity of the country’s elections which is just two months away,” it said, invoking its function as People’s Tribune. 

Comelec Chairman Socorro Inting said last Friday that the poll body is studying its options after receiving the SolGen's advisory while emphasizing that it is "a Constitutional body and an independent body."

The OSG and Calida previously sided with Ferdinand “Bongbong” Marcos, Jr. instead of the Comelec on certain incidents in the former senator’s 2016 election protest against Vice President Leni Robredo, prompting the SC at one point to chide the SolGen for interfering in a “private” election protest.

Robredo won the election protest. She and Marcos are rivals again in this year's presidential elections, along with eight other contenders.

It was also the OSG that pressed the National Telecommunications Commission, supposedly its client, to issue a cease and desist order against ABS-CBN Corporation and keep it off the airwaves in May 2020.

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