‘Outrageous legalism’

The alleged failure of Rappler to comply with constitutional restrictions on foreign ownership of Philippine media entities aside, the Securities and Exchange Commission’s decision is tantamount to prior restraint, and therefore comes with the heavy presumption of unconstitutionality.

The same Constitution that prescribes restrictions on ownership of Philippine mass media is also the very Constitution that has placed free expression at the topmost rungs of constitutional freedoms.

In the landmark decisions of the Supreme Court, the right to free expression has been considered as preferred to other rights, even those involving property rights (Philippine Blooming Mills case, GR No. L-31195, June 5, 1973).

The same high court has also ruled that not every violation justifies the stifling of free speech, enjoining government to consider the totality of circumstances before penalizing the free exercise of speech and expression.

Early on, Rappler, known for its unflinching reportage of the drug war, has caught the ire of President Duterte. That this move to cancel its corporate registration is linked to the President’s public statements disparaging Rappler is proven by the fact that it was no less than the Office of the Solicitor General that so moved.

In fact, according to the Supreme Court’s ruling in Chavez vs Gonzales (GR No. 168338, Feb. 15, 2008) such statements—coming from the Chief Executive himself—as they are, already constitute prior restraint because of their chilling
effect on everyone else.

What the solicitor general did is what lawyers call a “collateral attack”—restraining a known critic of the government’s drug war, not by directly censoring it but by
canceling its corporate registration.

But as every student of constitutional law knows, what may not be done directly, by the same token, may not be achieved indirectly.

If the annals of constitutional adjudication were to give an able guide, since press freedom is a preferred constitutional value in the Philippines, what the SEC should have done was to give Rappler an opportunity to correct its ownership structure. Instead, the SEC got down to business right away with guns blazing.

And there’s the thing: for Rappler claims the SEC denied them what it had in fact allowed other similarly placed entities to do. This smacks of a lack of due process, not to mention unequal treatment, which are also unconstitutional acts.

Thus, at best, the SEC’s decision is a prime example of outrageous legalism blind to law’s greater purposes; at worst, it is one cloaked with unconstitutional motivations.

CENTER FOR INTERNATIONAL LAW, Salcedo Village, Makati City