What’s missing in Judge Montesa’s summary

In the week since Judge Rainelda Estacio Montesa convicted Maria Ressa and Reynaldo Santos Jr. of cyberlibel — in a decision we in the Consortium on Democracy and Disinformation described as “uncomprehending, unconstitutional, unjust” — immediate outrage was followed by a multi-pronged defense of both the decision and the judge, and then a more muted, more measured response focused on the serious consequences of the decision’s unusual legal reasoning.

What these last two categories of response have mainly in common is a willing acceptance of the summary of the facts as detailed by the judge. A lawyer who used to work in the Supreme Court told me as much: “Never mind the summary of evidence. But the interpretation of the law? I don’t know.”

It is true that the real problem — for both Ressa and Santos and for ordinary citizens — lies with the way the law was misinterpreted. The judge enabled a law to extend backward in time, in violation of the Constitution’s clear prohibition on ex post facto laws; and she extended the prescription period from one year to 12 years, again by going back in time, misusing a 1926 law to treat cyberlibel as a new crime.

But I would also like to contest the fairness of Judge Montesa’s summary of the facts.

I will not dwell on the grammatical mistakes (“he have read,” for example) or the glaring errors of fact (writing “In the recent case of Tulfo v. People,” for instance, instead of Guy v. Tulfo), except to point to the obvious: This ruling, in this important case, could have been thoroughly reviewed before its release.

The real problem with the factual basis laid out in the decision lies in what is NOT included in the summary. Three points.

First. By the complainant’s own testimony, narrated without comment but with apparent approval by the judge, he is “low-key” and a very private person. But his self-description is telling: “in his line of work, he has been recognized as a diligent and self-made entrepreneur in his business circles and with his employees.” The judge herself notes that Forbes has listed him among the 40 richest individuals in the Philippines, he has been the subject of a story in the Daily Tribune, he has donated about P2 million every year for several years, including to the University of the Philippines, to fund scholarships and sports programs. For this, “he has also been commended for his contributions to the community.”

In other words, the complainant, through his own testimony, has made the case that he is in fact a “public figure.” Two landmark cases that Judge Montesa for some reason did NOT reference define a public figure very broadly indeed. In Ayers Production v. Capulong, the Supreme Court declared that it did not only mean public officials or celebrities, but includes anyone (“even ordinary soldiers”) “who has arrived at a position where the public attention is focused upon him as a person.” One can argue that the judge’s description of the complainant’s status paints the portrait of a public figure.

But, as the Supreme Court also ruled in Borjal v. CA, even if the private respondent did not qualify as a public figure, “it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue.”

There’s the rub. The summary of facts that Judge Montesa wrote was eerily silent on the public issue at stake. In fact, the Rappler story was not about the complainant himself, but rather about the Supreme Court chief justice facing impeachment in the Senate in May 2012. The summary of facts as remembered by Judge Montesa, however, or her own discussion of the legal issues, did not refer to the public interest at stake in the story. That context is a material fact, and was a public issue in which the complainant was involved.

Second. The summary of facts did not only give the complainant the proverbial benefit of the doubt; it simply assumed that his testimony was accurate. This was a mistake, because the complainant sometimes gaslighted the court. For instance:

“In fact, his eldest daughter, Patricia, who ran as a nominee of the Wow Pilipinas Partylist in this year’s elections [sic], lost the contest by a narrow margin. Since they were previously confident that she would win, due to the massive support of her followers, he believes her loss was due to the statements the accused published against him in the article.”

This is plain BS, and it is unfortunate that the judge not only fell for it but even highlighted it in her summary. In the first place, Wow Pilipinas did not lose by a narrow margin. It garnered 170,937 votes — some 24,000 votes short of the winning total. Second, five other party list groups came in ahead of it. And third, the elections were in 2019; the mere fact that Wow Pilipinas was “previously confident” Patricia would win when she was named first nominee in MARCH 2019 proves that her “massive support” was a fact AFTER the story came out in 2012 and corrected in 2014. The judge could have asked for proof that the story had become an issue during the campaign, but sadly just took the complainant at his low-key word.

Third. Both in the summary and in the discussion, Judge Montesa made special mention of the fact that the complainant waited until 2016 to pursue legal action. “It is noteworthy,” she wrote, as though it were a virtue. This is surreal. Instead of testing the claim of the complainant that his “complete shock” in 2012 and his sense of being attacked in 2014 were still material in 2016, she gave him a free pass in 2020. What she did not include in her summary was the most important context of all: The complainant waited to act on his reputational damage, past the usual prescription period, until a new presidency was in place.

On Twitter: @jnery_newsstand, email: [email protected]