VERA FILES FACT SHEET: What does the law say about fair comments? 4 things you need to know

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On June 25, a regional trial court dismissed the case against Ronnel Mas, a public school teacher from Zambales who was arrested without a warrant for his tweet offering a P50-million bounty to anyone who would kill President Rodrigo Duterte.

Mas was among several netizens summoned and detained by the National Bureau of Investigation (NBI) and the police in the past months for various offenses, such as inciting to sedition, as in Mas’ case, and cyberlibel.

The arrests, many of which were of civilians who posted critical comments on social media on the government’s response to the coronavirus disease (COVID-19) pandemic, raised fears of abuse of the powers of authorities in policing the fair comment doctrine.

In response to these cases, detained Sen. Leila De Lima, a staunch critic of President Rodrigo Duterte, filed in early June Senate Resolution No. 419, seeking to investigate the NBI for “possible misuse and abuse of subpoena powers.” This was after the agency summoned “more than a dozen” individuals for posting such comments.

Apart from Mas, another case that made the headlines was of a netizen who claimed in a Facebook post that the government could have spent for health care the P2 billion used to buy a jet for Duterte.

These also came after the enactment of the Bayanihan to Heal as One Act, which prohibits, under Sec. 6, the spreading of “false information” on the COVID-19 crisis on social media or other means. The provision, which does not define “false information,” has been questioned by human rights groups for potential “misuse” against online criticisms.

Here are four things you need to know about the fair comment doctrine:

1. What is a fair comment?

Fair comment, as enshrined in the 1987 Constitution, covers a person's expression of an opinion on "matters of public interest," human rights lawyer Jose Manuel "Chel" Diokno told VERA Files in a phone interview.

This includes opinions that run counter to policies implemented by the government, added Diokno, dean of the De La Salle University College of Law.

Aside from the provision in the Constitution that protects the right of Filipinos to freedom of speech and expression, the lawyer said the principle of fair comment is further reiterated in the country's jurisprudence.

In a 2017 ruling on a libel case filed against late newspaper columnist Ruther Batuigas, the Supreme Court (SC) said:

“To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable…”

Source: Supreme Court E-library, GR No. 170341 - MANILA BULLETIN PUBLISHING CORPORATION AND RUTHER BATUIGAS, PETITIONERS, VS. VICTOR A. DOMINGO AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS, July 5, 2017

However, the SC added that comments based on false allegations or supposition may result in legal action.

As defined by the Revised Penal Code, libel means a public and malicious imputation of a crime, vice or defect, among others, tending to “dishonor, discredit, or contempt” a person. (See VERA FILES FACT CHECK: What is malice in libel cases?)

2. When can law enforcers intervene and arrest citizens for their comments against public officials?

In instances of comments, such as on social media, of private citizens that could result in libel or cyberlibel complaints, Diokno said courts, not law enforcers, have the right to issue an arrest warrant. He said giving law enforcers the “decision” to arrest without a court-issued warrant is “dangerous” as they are not used to offenses such as libel.

The “authority” of law enforcers to make a warrantless arrest is “limited,” the lawyer added. According to the Revised Rules of Criminal Procedure, warrantless arrests are allowed only under the following circumstances:

Diokno noted that comments posted on social media by citizens do not happen in the presence of law enforcers. He added the police cannot arrest without any complainant who has filed charges.

3. What impedes fair comments or freedom of expression in the country?

Freedom of expression is not absolute, according to the Commission on Human Rights and the United Nations Office of the High Commissioner for Human Rights. Among Philippine laws that limit a person’s speech include:

But Diokno, quoting the high court, said freedom of expression is “one of the most important basic rights.” He said, “we cannot say we live in a democracy without being able to freely speak.”

In a 2008 ruling on a petition against two high-ranking officials who wanted to bar the press from disseminating the recording of the controversial “Hello, Garci” wiretapped conversation involving former President Gloria Macapagal-Arroyo and then Commission on Elections Commissioner Virgilio Garcillano, the SC cited three doctrine “tests” that can be used to determine the restraints and limitation of speech:

    1. the “dangerous tendency doctrine,” which allows limitations on speech if a “rational connection” has been established between the “speech restrained and the danger contemplated;”
    2. the “balancing of interests tests,” which courts use as a standard when balancing “conflicting social values and individual interests;” and,
    3. the “clear and present danger rule,” based on the premise that speech “may be restrained” because there is “substantial danger” that it will “likely lead to an evil [that is substantive, extremely serious, and with extremely high imminence, which] the government has a right to prevent.”

4. Can public officials, particularly the president, be held liable for offensive statements?

Public officials, except those immune from suit under the Constitution, can be held personally accountable for actions committed beyond official duties or in bad faith, according to the SC.

In at least two court rulings, two public officials were found guilty for crimes related to light oral defamation and serious slander by deed for their offensive remarks and actions toward their co-employees. The first official was convicted of defamation after he accused a fellow worker of receiving money from a lawyer. In the second case, the official was fined for choking and shouting invectives at a higher-ranking officer.

In the 1973 Constitution, the president, Supreme Court justices, commissioners of constitutional bodies such as the Commission on Elections, Commission on Audit, Civil Service Commission, and other constitutional officials who may be removed from office by impeachment, enjoy immunity from suit while in office.

The president is immune from any suits, regardless of their nature such as criminal offences like libel, during his tenure, based on established jurisprudence.

In November 2016, De Lima challenged the doctrine of presidential immunity by filing a petition before the SC, asking for a writ of habeas data, “a judicial remedy to protect a person's right to control information regarding oneself.” De Lima argued that Duterte personally attacked her with statements linking her to corruption and illegal drugs and engaging in an illicit relationship with her former driver, among others. She said Duterte’s offensive statements were “unlawful or made outside of his official conduct.”

De Lima, a known critic of Duterte, claimed the personal attacks rooted from her investigation in 2009 of the vigilante group called Davao Death Squad when she was chairperson of the Commision on Human Rights and Duterte was mayor of Davao City.

But the SC dismissed De Lima’s petition as it upheld that the immunity “does not distinguish whether or not the suit pertains to an official act of the President.”

Although presidential immunity is not explicitly stated in the 1987 Constitution, priest and lawyer Joaquin Bernas, one of the Charter’s framers, said the actual text (on presidential immunity) in the 1973 Constitution was omitted because “we consider it understood in present jurisprudence that during his tenure[,] he is immune from suit.”

Justice Marvic Leonen said in his concurring opinion to the SC decision that: “Pronouncements made in his or her official capacity may still be the subject of suit, as long as the respondent in the case is the executive secretary, not the president.” He added the president should not be able to plead immunity for any case after “incumbency.”

Duterte, even before he became president, is well known for his rants, insults and expletives, and sexist comments against critics of his policies and even to his supporters. (See A year under Duterte: Curses and insults and YEARENDER: Duterte's curses and insults - Vera Files)

Among the personalities who were at the receiving end of Duterte’s offensive remarks include Diokno, former Senator Antonio Trillanes IV, former United States President Barack Obama and Pope Francis. (See VERA FILES FACT CHECK: In his own words: Respecting women, Duterte-style, VERA FILES FACT SHEET: The LGBTQ in the eyes of President Rodrigo Duterte)

Senators and congressmen, on the other hand, enjoy the right to privilege speech under Sec. 11 or Article VI of the 1987 Constitution which states that they “cannot be questioned or held liable for any speech or debate in Congress or in any committee thereof.”


Sources

Senate of the Philippines, Press Release - De Lima seeks probe into possible abuse of subpoena powers by NBI, June 3, 2020

National Bureau of Investigation, NBI ARRESTS INDIVIDUAL WHO OFFERED P50 MILLION REWARD TO KILL PRESIDENT DUTERTE, May 12, 2020

Netizen questioning government’s purchase of private jet

Ronel Mas’ warrantless arrest

Ronel Mas’ case dismissed

Official Gazette, Republic Act No. 11469

Human Rights Watch, Human Rights Watch statement on “#Bayanihan to Heal as One Act” signed by Pres. #Duterte on March 24, March 25, 2020

Karapatan, Unbridled executive powers, anti-fake news provision in emergency powers is Duterte's ticket for Marcosian repression, March 25, 2020

Phone interview with human rights lawyer Jose Manuel “Chel” Diokno, May 21, 2020

De La Salle University, DLSU College of Law

Supreme Court E-library, GR No. 170341 - MANILA BULLETIN PUBLISHING CORPORATION AND RUTHER BATUIGAS, PETITIONERS, VS. VICTOR A. DOMINGO AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS, July 5, 2017

Senate Electoral Tribunal, 2000 Rules of Criminal Procedure

Supreme Court E-library, G.R. No. 200370, June 07, 2017

Supreme Court E-library, REPUBLIC ACT NO. 10951

Official Gazette, Implementing Rules and Regulations of Republic Act No. 10175

Official Gazette, Act No. 3815, s. 1930 or the Revised Penal Code

Commission on Human Rights, Statement of the CHR on the proposal to limit the constitutional right to free speech, Jan. 24, 2018

United Nations Office of High Commissioner for Human Rights, ARTICLE 19 Submission on how protecting and promoting human rights contribute to preventing, May 26, 2016

Official Gazette, Chavez v. Gonzales, GR No. 168338, February 15, 2008

Chan Robles Virtual Law Library, GR No. 91391, January 24, 1991

Lawphil, GR No. 91391, January 24, 1991

Supreme Court E-library, G.R. No. 227635, Accessed June 11, 2020

Lawphil.net, GR No. 74135, May 28, 1992

Chan Robles Virtual Law Library, GR No. 74135, May 28, 1992

Supreme Court E-library, G.R. No. 127694, May 31, 2000

Civil Service Commission, RESOLUTION NO. 01-1224

De Lima’s investigation of Davao Death Squad

Senate of the Philippines, Term of Office and Privileges, Accessed June 21, 2020

Rappler.com, Amid coronavirus outbreak, Duterte lashes out at Chel Diokno, April 4, 2020

Rappler.com, Don’t become a Judas like Trillanes, Duterte tells gov’t officials, Dec. 7, 2017

Business Insider, Philippine President Duterte slammed President Obama, Sept. 6, 2016

ABS-CBN News, TV Patrol: Duterte, minura pati si Pope Francis sa talumpati, Nov. 30, 2015


(Guided by the code of principles of the International Fact-Checking Network at Poynter, VERA Files tracks the false claims, flip-flops, misleading statements of public officials and figures, and debunks them with factual evidence. Find out more about this initiative and our methodology.)

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