Protecting Dr. Badoy’s civil liberties

It infringes on her freedom of expression and freedom of the press. Dr. Badoy’s language cannot be considered incitement that breaches the clear and present danger rule.

As a litigator of 32 years, I have represented people whose freedom of expression and opinion have been trampled. I have argued for press or media freedom in domestic and international courts. The Center for International Law, an organization I founded in 2005, continues to defend journalists against libel charges.

After a decade-long battle, I secured convictions for the murderers of 19 journalists in the Maguindanao massacre case. In the Ninez Cacho-Olivarez et al. vs Juan Miguel Arroyo, I represented the class-action suit filed by journalists against the First Gentleman’s indiscriminate filing of libel cases. The Supreme Court also granted the first-ever petition of writ of Amparo given to a journalist in the Nilo Baculo Sr. case that I handled.

In the Adonis vs Republic of the Philippines case, I challenged the constitutionality of the Philippine libel law before the United Nations Human Rights Committee. The Committee issued the view that the law infringed Article 19 (Freedom of Expression) under the International Convention on Civil and Political Rights.

Fair comment doctrine

The case of Dr. Lorraine Marie Badoy, a former National Task Force to End Local Communist Armed Conflict spokesperson and current SMNI News Network’s “Laban Kasama ang Bayan” host, has again invoked free speech and media freedom. Last 17 November, we filed Badoy’s comments to the Supreme Court’s show cause order. It concerns her critical social media post on Judge Marlo Magdoza-Malagar’s decision that “the government should treat the CPP-NPA with leniency given the latter’s noble political goals.”

We have asked the High Court to declare the TV commentator not guilty of indirect contempt based on the following grounds. The use of the Supreme Court’s contempt powers against the broadcaster’s fair criticism of an erroneous Lower Court decision would constitute punishment. It infringes on her freedom of expression and freedom of the press. Dr. Badoy’s language cannot be considered incitement that breaches the clear and present danger rule. The Honorable Court has tilted the balance in favor of freedom of expression and shown leniency to the criticisms of lawyers and laymen of lower court judges’ decisions and conduct.

Dr. Badoy’s statements fall under the fair comment doctrine, which the High Court enshrined in Philippine jurisprudence through the Borjal vs. Court of Appeals case. The Court ruled that fair commentaries on public interest matters are privileged and constitute a valid defense against libel or slander. “If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts,” the Supreme Court stated.

‘Public interest’ refers to the nature of CPP-NPA, which Malagar proscribed as a non-terrorist group. Badoy assailed the Judge’s ruling despite the group’s avowed means of employing violence to overthrow the Republic. The group shoots down and kills fellow Filipinos, particularly soldiers that mostly come from poor families. Must they use illegal force to attain their supposed “noble goals” for the motherland?

The CPP-NPA also resorts to kangaroo court trials of individuals who have opted to break away, which violates Common Article 3 of the Geneva Conventions. They force the conscription of minors and indigenous peoples, a war crime penalized by domestic and international laws.

Moreover, the Judge erred in resolving the case under the old Human Security Act. The law was superseded by the Anti-Terror Act of 2020. It is also in stark contrast to the designations made by other countries that the CPP-NPA is a terrorist organization.

Clear and present danger rule

Not only were Badoy’s criticisms covered by freedom of expression. It is also within her rights as a media practitioner. The broadcaster explained she used a ‘hypothetical syllogism’ to point out that Malagar’s refusal to label the CPP-NPA as terrorists is ‘absurd and dangerous.’ Her wording is an example of hyperbole, or a reductio ad absurdum (a reduction to absurdity) to stress a point.

It does not incite anyone to commit violence against the Judge, her family, or any member of the judiciary. The intention to provoke imminent harm is absent in Badoy’s “if-then” social media post. Thus, her statements cannot constitute a clear and present danger unless there is substantial proof that the public would heed her call to commit violence.

What is also crystal clear from jurisprudence is that the Supreme Court has observed leniency vis-à-vis the criticisms of lawyers and laymen against lower court judges. Let me be clear that all lower court judges deserve the utmost respect.
Still, they are human prone to errors in judgment. Their decisions are appealable before a higher court. The Supreme Court and Court of Appeals can overturn an incorrect judgment of the lower court. The High Court has consistently favored freedom of expression over the administration of justice, where the offending remarks were against lower court judges.

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