'Bad journalism, bad lawyering': Roque on cyberlibel conviction of Maria Ressa, staff


Posted at Jun 17 2020 02:58 PM

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MANILA - Reiterating President Rodrigo Duterte's position against libel amid concerns raised on the freedom of expression and a free press in the country following the conviction of Rappler chief Maria Ressa and her former staff for cyberlibel, presidential spokesperson Harry Roque said Wednesday the Manila court's verdict stemmed from "bad journalism and bad lawyering."

In an interview on ANC’s Headstart, Roque said it was unfair for Ressa to condemn the judicial system based on the decision of Judge Maria Rainelda Estacio-Montesa, of Manila Regional Trial Court Branch 46.

“The poor judge cannot defend her decision. The decision speaks for itself. That is her defense," Roque, a lawyer, said.

"There is no suppression of freedom of the press. It was a case of bad journalism. It was a case of bad lawyering.”
On Monday, Montesa handed down the verdict against Ressa and former Rappler researcher Reynaldo Santos Jr., based on the complaint of businessman Wilfredo Keng.

Keng was mentioned in a May 2012 article of Rappler as among personalities that purportedly allowed their luxury vehicles to be used by the country's chief justice at the time. The article described him as having a "shady past," citing an intelligence report and a prior article published on the Philippine Star.

Keng denied the allegation and claimed his side was not published.

"We all know how libel laws operate in the Philippines. If the complaint is a private individual, there is malice in law. There is a legal presumption that the malicious imputation is in fact malicious," Roque said.

"And by way of defense, you have to show that there is no malice. How? By showing either steps taken to verify the truth." Ressa's camp did not do this, said Roque.

Roque said he is surprised that American personalities have attacked libel laws in the Philippines.

Former US secretaries of state Hillary Clinton and Madeleine Albright on Tuesday expressed solidarity with Ressa.

The US State Department also voiced concern over the verdict and called "for resolution of the case in a way that reinforces the US and Philippines’ long shared commitment to freedom of expression, including for members of the press."

For the European Union, the guilty verdict casts doubts "over the respect for freedom of expression as well as for the rule of law in the Philippines."

"Freedom of opinion and expression, online and offline, are essential parts of any democracy worldwide. The European Union will always stand up for these fundamental rights," it said in a statement.

Roque said the Philippines and United States have similar laws on libel. "The only difference is that they (US) have a federal system and not all states continue to impose criminal libel in the jurisdictions. But the same defense for malice--New York Times versus Sullivan--is applied here in the Philippines."

“In the New York Times doctrine, malice is where there is in fact a failure to verify the truth or talagang it was a clear instance of falsehood. For as long as you can show your reasonable efforts to ensure the accuracy of what you are reporting, then there would be no malice," Roque explained.

But Ressa "did not do it," said Roque. "She did not even offer any evidence that they actually resorted to fact-checking. She did not show that they even got any public documents to support their conclusion that Mr. Keng is a criminal.”

Ressa has maintained that Rappler was fair in treating Keng in the story and that it passed the standards.

"Like every credible news group, there are multiple people on this and multiple eyes," she said of the article in an interview on the same show Tuesday.

"Intelligence varies in terms of its quality. Obviously, we think that the intelligence here, coming from a different agency by the way than PDEA, this intelligence is unlike the matrix that's been presented by the Duterte administration. There was track record. Even in the original article itself, you can see that Mr. Keng was interviewed."

"You can also see by the way that that is a public interest article, that it wasn't about Mr. Keng. It was about a chief justice on trial being impeached at that point in time, and his ties to business and the kinds of influence-peddling that could be happening," she added.

Ressa has said the Manila court's ruling will have a huge impact on every Filipino.

"Imagine, to do this, to actually have to face this verdict in court, to bring this to court, they had to change the statute of limitations. The period of prescription of libel is 1 year; it’s now been changed to 12 years. And then this very - we obviously say it's a wrong idea - this novel concept put forward that the judge accepted is that, this changing (of) one letter in one word is republication or continuous publication," she said.

Keng's camp used the “republication” as legal basis to claim the story was covered by the Cybercrime Prevention Act. In October 2017, the case against Rappler was filed.

- Position against libel -

In 2012, Roque raised the alarm that cyber libel could be abused. He admitted going to the United Nations Committee on Human Rights and successfully got a view that criminal libel in the Philippines is contrary to freedom of expression.

He recounted that Duterte even "provided material support for us to go the UN Committee on Human Rights to get that decision that criminal libel is contrary to freedom of expression."

"The President has never filed any libel case in his almost 40 years of career as a politician, which means he does not believe in the use of libel in suppressing freedom of expression," Roque said.

For his part, Roque maintained that just as he "was really against libel, I still am against libel."

But "what do I do? The court said it's constitutional. Do I commit harakiri? No," he said, noting that even with the UN Human Rights committee's position, the "advocacy to declare libel and cyber libel as unconstitutional did not succeed" in the country because the Supreme Court viewed that as "recommendatory to Congress."

"It was Congress that should decriminalize it. And (the Supreme Court) upheld that libel is not protected speech," Roque said.

Referring to the Rappler case, Roque said, "You need to defend your client pursuant to available defenses - and that's New York Times vs. Sullivan. And what I'm saying is, they did not even exert any effort to use the New York-Sullivan defense that there was no actual malice."

"Natural, the court will convict them."

Rappler's case, he said, is not one about possible grave abuse of the cyber crime law.

“We won already in the UN Committee on Human Rights that libel is contrary to freedom of expression. We won in the Philippine Supreme Court that the indiscriminate filing of libel cases is an abuse of rights. But we lost in the case of Adonis vs Executive Secretary when we sought to declare the cybercrime laws, specifically cyber libel, as being unconstitutional.”

“I believe until now in what I said in 2012. Unfortunately, the Supreme Court did not agree. And I really maintain that in the case of Ressa, it was bad journalism, bad legal defense, not abuse,” he said.

- Indeterminate Sentence Law -

Ressa and Santos have been given 15 days to appeal the court’s decision. They face between 6 months to 6 years jail term.
But Roque said there is an option not to go to jail if Ressa accepts the decision. If she appeals the decision though, she loses that benefit.

“It’s in our existing laws and probation and parole. That’s why we have the indeterminate sentence law too. Anything that is punishable not in excess of 6 years and 1 day may be subject to probation," Roque explained.

"So, all you have to do, if you don’t want to be incarcerated is to accept the decision, apply for probation and as a matter of course, you will be entitled to probation, unless you have prior convictions. I don’t think she has any prior convictions,” he said.