Judge Montesa’s appalling decision

Eighty years ago, on May 28, 1940, then Justice Secretary (and former and future associate justice) Jose Abad Santos said that what is wanted in the Philippines, to give control of, or participation in, the administration of justice, is the jury system.

It seems that as secretary of justice, he was amplifying thoughts on judicial reform a day after his boss, President Manuel Quezon, addressed a convention of judges in which he criticized decisions based on “mere technicalities” and boldly stated that a good judge should find out where right and justice lay. He also criticized the practice of continuing cases and deferring decisions, and the transfer of judges after beginning hearings, and then launched a trial balloon. He advocated “collegiate” courts, saying, “I do not feel happy over fact that in Philippines one man decides questions affecting property, liberty, and life of individual.”

Abad Santos returned to the Supreme Court in July 1941, while Quezon won reelection in November. We don’t know what would have happened if World War II hadn’t intervened; their 1940 ideas might have borne fruit.

What isn’t a what if, however, is the effect one judge has had, not merely on media, but our broader culture of civil liberties. The decision of Judge Rainelda Estacio-Montesa has appalled not just journalists but also lawyers at home and abroad. The Consortium on Democracy and Disinformation has described the decision as being based on falsehood (considering an update to be republication) and ignorance (taking Rappler to task, peculiarly, for not using the title “editor in chief” and preferring “executive editor,” when many institutions do this).

As I understand it, our Constitution prohibits ex post facto laws; acts can only be punished after the law came into effect, and not before. The offending article was published online in Rappler in May 2012, four months before the cybercrime law came into effect in September 2012. On that score alone, it was obvious there was no case. Ah, but the judge decided that since a typographical error (“evation,” which should have been “evasion”) was corrected in the online article in February 2014, or after the enactment of the cybercrime law, then that act of editing resulted in the republication of the article (proof of this, per the judge, was that the earlier article can’t be found online—to which most online-literate folks have had an immediate, devastating reply, which you can Google if you don’t get it: Wayback Machine).

Now enters an obscure point of great interest but hard for non-lawyers to grasp. Basically, if you’re talking about a print article, you can only file a libel case within one year of publication. On the basis of that well-known rule, the case against Maria Ressa would have been thrown out for being filed years after the article (original or “republication,” take your pick) came out online. But the judge, using an argument put forward by the Department of Justice, argued in this manner: Since the cybercrime law did not mention a prescriptive period (a time frame beyond which a charge can’t be brought forward), then an old law of the Philippine Legislature from 1926 would apply, which states, as a general rule, a prescriptive period is 12 years when none is explicitly stated in a law providing for criminal penalties.

But it’s Republic Act No. 4661, enacted in 1966, which shortened the prescriptive period of libel to one year, that should matter here, as Dean Tony La Viña told veteran journalist Raissa Robles last year. Because that law says “the crime of libel or other similar offenses,” which obviously includes the relatively newly-minted crime of cyberlibel.

Specific technical points will be argued to death by the lawyers; what is more important is to refuse to concede ground, since none should be given. What is at stake, and what the judge failed to internalize, is a fundamental one: Are our laws, and those interpreting our laws, to be exercised with a reverence and respect for freedom, or with an attitude hostile to the exercise of freedom? Most other judges would operate from the democratic and wholesome attitude that libel should be very hard to prove, because any conviction will circumscribe the rights all of society enjoys.

Take all the legal details above, and you could interpret them through the lens of upholding press freedom as a fundamental necessity of a free, informed, society, and you could produce an argument that either would have thrown out the case, or applied it in a modern manner (refraining from imposing jail time while imposing a fine, effectively undertaking what reformers have long asked Congress to do, which is to decriminalize libel; the Supreme Court raised the fine, and upheld the decision of a lower court not to impose jail time, in a case involving Raffy Tulfo in 2019).

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