MANILA — The military should be insulated from partisan politics, Senate Minority Leader Aquilino Pimentel III said Tuesday, adding however that Davao del Norte 1st District Rep. Pantaleon Alavarez Jr. should not have to face criminal complaints for calling on troops to withdraw support for President Ferdinand Marcos Jr.

In a press release, Pimentel said that the leadership of democracies should be determined through elections and not by the armed forces or any other armed group.

"At the same time, we should not encourage the filing of criminal cases left and right for comments related to the burning issues of the day. Let the people speak out. Do not deter or scare them from speaking out their sentiments on important issues," he also said.

Alvarez's comments, made at a political rally in Tagum City on Sunday, were met Monday with a statement from the Armed Forces of the Philippines emphasizing that it would follow the chain of command.

Under the 1987 Constitution, the president is at the top of that chain as commander in chief.

READ: After Alvarez plea, AFP reiterates ‘strict adherence to Chain of Command’

Alvarez's colleagues at the House of Representatives meanwhile scored the former House speaker for his comments.

Camiguin Rep. Jurdin Jesus Romualdo urged the Department of Justice to act on the remarks, saying they "fall within the purview of sedition".

Surigao del Sur Rep. Johnny Pimentel said the call to withdraw support was "tantamount to an act of sedition or rebellion."

Alvarez on Tuesday defended his remarks, saying what he said was neither seditious nor within the definition of disorderly conduct that might warrant an ethics investigation at the House.

"'Yung nangyari sa Davao del Norte, kasama 'yan sa constitutionally protected rights to freedom of speech and assembly. Paano naging seditious at disorderly conduct ang pag-exercise ng constitutional rights? At bakit hindi ako magsasalita?"

(What happened in Davao del Norte is part of the constitutionally protected rights to freedom of speech and assembly. How can the exercise of constitutional rights be seditious or be considered disorderly conduct? And why shouldn't I speak up?)

READ: DOJ orders probe vs Alvarez over possible sedition

Sen. Pimentel on Tuesday urged against the filing of complaints against Alvarez "so as to uphold and strengthen the right to free speech and to assemble with people of similar positions in the burning issues of the day."

'CLEAR AND PRESENT DANGER'?

Philippine law defines sedition as rising "publicly and tumultuously" to, among other acts, prevent the government or a government official from performing their duties. Rebellion is "rising publicly and taking arms" against the government.

Speaking on TeleRadyo Serbisyo, lawyer Domingo Cayosa, former president of the Integrated Bar of the Philippines, said Alvarez had stressed that he was making a peaceful plea to the military.

"Yung sedition kasi, it must be tumultuous, magulo, public na pamamaraan. Eh ito, 'peacefully'," he said.

(Sedition must be tumultuous, chaotic, in a public manner. But, here, it was 'peacefully'.)

He added that the executive branch does not seem inclined to file any complaints over it, suggesting the government is confident that nothing would come of Alvarez's call.

"Anyway, kinabukasan, kaagad-agad naman sinabi naman militar 'ah hindi kami susunod diyan.'," he said.

(Anyway, the military said the next day that they will not follow the suggestion.)

RELATED: Duterte warns Marcos Jr. he might suffer same fate as father

Cayosa said, however, that if Alvarez then works to actively persuade the military to abandon Marcos, it would be a different matter.

In an online exchange, lawyer and law professor Oliver Xavier Reyes said: "If the AFP did what Alvarez called them to do, that would be either rebellion or sedition under the Penal Code." 

Inciting to rebellion and inciting to sedition are separate crimes under the Revised Penal Code.

Reyes said that the Supreme Court ruling on the Anti-Terrorism Act might be applicable to Alvarez's plea to the military.

"In the 2021 decision affirming the Anti-Terrorism Act, the Supreme Court qualified that the provision on inciting to terrorism could only be used to punish if it satisfies the 'clear and present danger' test, particularly its formulation in the US Supreme Court decision in Brandenburg v. Ohio," he said.

"Under the Brandenburg test, one can only be punished for inciting to terrorism if it is directed to incite or produce 'imminent lawless action' and is likely to incite or produce such lawless action," he said.

Given the circumstances of the remarks — made at a political rally and not in front of troops at a military camp — Reyes said that it was unlikely that Alvarez actually expected the military to imminently withdraw support from the President because of his speech.

"Sa akin, what Alvarez said, reprehensible as it may be, does not satisfy the clear-and-present danger test," he said, pointing out, however, that the SC did not specifically say the Brandenburg test should be used for inciting to sedition or rebellion.

"However, I think that should be the consequence as well of the ATA decision, as well as the Brandenburg test... Consequence talaga iyan ng freedom of expression and how it protects even the most unpopular of expressions."

SEDITION RAPS VS DISSENT

Sedition and inciting to sedition complaints were used against members of the public and of the political opposition during the Duterte administration.

ICT rights organization Foundation for Media Alternatives noted in a 2020 report on Freedom of Expression in the Philippines that "law enforcement officers are quick to prosecute individuals on these grounds even when there may be no probable cause to do so."

Among those who faced sedition and inciting to sedition complaints were a teacher who was arrested without a warrant for tweeting about a reward to kill then President Rodrigo Duterte, another teacher who posted online that people were starving during the pandemic lockdown and should steal relief goods from a local gym, as well as Vice President Leni Robredo, former Sen. Antonio Trillanes IV and civil society figures.

FMA said then that the growth of participation in social media should be "an opportunity to speak up...and to widen the space for free expression so citizens may continue to loudly demand for better governance and state accountability both offline and online."

The Supreme Court, in Chavez v. Gonzales, in putting emphasis on the "clear and present danger" test said the State must "vigorously prosecute" violations of the law but "the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils."