MANILA, Philippines – In what could be another crossroad for Filipino journalists, Rappler is asking the Supreme Court to rule that President Rodrigo Duterte – or the executive branch for that matter – has no power over the news media.
In asking the High Court to lift the nearly 2-year coverage ban against Rappler for events of President Duterte wherever he is here and abroad, the online news organization asked justices to clarify: Can the President pick who's legitimate media and who's not? Can he restrict access to public events?
"The question posed by petitioners affects intersecting fundamental rights under the Constitution. Thus, the Honorable Court is duty-bound to demarcate clearer borderlines between the press and the executive branch," Rappler said in its response filed on Monday, January 20, to the Office of the President's comment on the original petition.
Rappler insisted that a fundamental right of the free press is self-regulation. "It is only the free press, not the executive branch, that has the power to say whether or not petitioners are legitimate journalists or not," said Rappler.
The petition was filed against the Office of the President, Office of the Executive Secretary, Presidential Communications Operations Office, Media Accreditation and Relations Office and Presidential Security Group.
The right to self-regulate
The restoration of democracy after the 1986 EDSA People Power revolution and the passing of a new Constitution guaranteed a free press.
It is the 1987 Constitution that guided the Supreme Court in deciding landmark press freedom cases.
During the Arroyo presidency, for example, the Tribunal declared as unconstitutional the 2006 raid on the Tribune newspaper offices – an act that the Arroyo administration then defended as part of its mandate to prevent lawlessness under Presidential Proclamation No. 1017 (David vs Arroyo).
In 2008, the Supreme Court also ruled as unconstitutional the press release of the National Telecommunications Commission warning against the publication of the "Hello, Garci" tapes that contained conversations between then-president Gloria Macapagal Arroyo and an elections commissioner over her votes in the 2004 presidential race. (Chavez vs Gonzales).
In Rappler's press freedom case pending with the Supreme Court, the organization asserted: "Only the press can determine who the press are. It is not a press ID that makes one a journalist... An outright ban against members of the press from covering newsworthy public events involving the presence and participation of the Chief Executive is an infringement of the right of a free press."
Malacañang said the ban did not violate the press' right to self-regulate because it is not an issue of press freedom.
"This case has nothing to do with self-regulation and freedom of the press. Candidly, it is a case between respondents and petitioner Rappler alone as a corporation whose IPC accreditation and SEC registration have been revoked," said the Office of the Solicitor General on Malacañang's behalf.
Rappler's license has not been revoked. In July 2018, the Court of Appeals remanded the Securities and Exchange Commission's (SEC) revocation order to the commission for reinvestigation. (READ: What you should know about the Court of Appeals decision on Rappler)
Malacañang initally provided varying reasons for the coverage ban, before Duterte himself said he was banning Rappler for being "liars" and "fake news."
Later, in a pleading to the Supreme Court, Malacañang said Rappler was banned because its accreditation by the International Press Center (IPC) was not renewed, following the SEC's shutdown order on Rappler.
The IPC is under the Presidential Communications Operations Office (PCOO) that typically processes accreditations for foreign journalists coming to the Philippines. It's also the office that prints IDs for the Malacañang Press Corps (MPC).
Malacañang said that IPC accreditation is needed "for special access" to presidential events. It cited Executive Orders No. 4 (2010) and 297 (1987), which were mainly orders on the reorganization of the press secretary's office in Malacañang.
"Nothing in E.O. No. 297 provides legal basis for the conclusion being proffered by respondents, that is, that members of the press can be denied access to newsworthy events involving the Chief Executive held in venues open to the public if they are not properly accredited," said Rappler.
Rappler said that using the "accreditation" argument is just a "pretextual justification" for the ban, and that the real reason is because Duterte merely said so.
"As the ban was directed by the highest administrative officer of the executive branch, respondents, who are his subordinate officers, cannot be expected to disobey, much more countermand, the directive of the Chief Executive," said Rappler.
Clear and present danger?
Rappler raised the principles of strict scrutiny and clear and present danger. Strict scrutiny and clear and present danger are tests to assess if there is a compelling reason for the government to restrict free speech, such as a grave threat to national security.
While Malacañang insisted that the ban did not restrict free speech, it also did not factor in the said principles.
But Rappler went head and explained that its journalists do not classify as clear and present dangers.
"The day that Democracy dies is the day when Government is permitted to consider dissent as a 'clear and present danger'," Rappler said.
Journalists as intervenors
The Supreme Court has allowed other journalists from various media organizations, who are not affected by the ban, to join the case as intervenors.
The intervenors joined the case in April 2019 because for them, the same ban can be imposed on them too, if Duterte is not stopped now.
"In the annals of Philippine jurisprudence, the Honorable Court has yet to answer the question of whether the executive branch has the power to determine the legitimacy of a member of the press and sentence its content as either factual or 'fake news'" said Rappler.
"Likewise, the Honorable Court is yet to enlighten the people whether the Chief Executive can prevent members of the press to cover newsworthy events involving his presence and participation regardless of venue, outside the recognized exceptions of national security and privileged communication," it added.
Those questions, Rappler said, should be answered by the Supreme Court. "Otherwise the parties are left in legal limbo to the detriment of an informed citizenry." – Rappler.com