Over the weekend, Thea Alberto’s report (Makati court junks media case on Manila Pen arrests ) sent shock waves rippling through newsrooms. And so, the editorials were unleashed: it’s now A crime to cover protests the Inquirer editorial.
And from Business World, the editorial I’d like to quote in full:
A coup against press freedom
ON FRIDAY EVENING, as we in the media prepared the news-record of the nation’s last workday and looked forward to easing ourselves into the weekend, a coup was sprung on us: a court ruling going against us and kept secret since its promulgation seven days earlier was released that evening – released not by the court itself but by the chief of the metropolitan police, Gen. Gerry Barias, himself a beneficiary of the ruling, being one of the defendants.
Evidently Barias had been favored with a first, and perhaps only, copy of the ruling and the opportunity to do what he could with it; we the complainants and our lawyers had been ourselves kept in the dark. Thus, Barias made his revelation at his chosen moment and to his chosen audience, an audience of one, as it happened – a newspaper reporter who, quickly recognizing the critical implications of the ruling on her very profession, sounded the alarm.
But the trick, as familiar as it is, especially to the police, always works. It’s not unlike getting a warrant of arrest just before court business closes for the weekend so that any prompt legal counteraction may be precluded, which in itself constitutes justice delayed at the first instance.
If Barias and the judge, Reynaldo M. Laigo, of the Makati Regional Trial Court, had not been in it together, it would be a huge surprise. The ruling itself was a surprise since the case had not yet been tried on its merits.
At any rate, all this is largely technicality, only the surface of the abomination. The abomination proper is the ruling itself, whose mere five pages are no indication at all of leanness or any other virtue in expression, but, rather, a betrayal of poverty of any sense of democratic principles.
The first four pages are little more than a recitation of arguments presented to make a case for or against the legality of the arrest, cuffing, and detention of journalists who ignored Barias’s order for them get out of the Peninsula hotel on November 29, 2007, as his men prepared to mount an assault against allegedly mutinous soldiers holding out there.
The ruling itself is rendered in two paragraphs and justified sweepingly under the article in the Revised Penal Code penalizing “resistance and disobedience to a person in authority.” No attempt whatever has been made to validate it against superior legal principles, such as laid down in the constitution, in particular freedom of the press. It declares that Barias’s order “was but lawful and appeared to have been disobeyed by plaintiffs” - the journalists, that is - and that in fact “they were so lucky” to not have been indicted.
It goes on to justify the way the police treated the journalists as “being in accord with police procedure.”
Effectively, the ruling puts journalists under the police, nay, at their mercy. It signals to the police that next time any journalist disobeys them they can arrest him, cuff him, haul him to jail, and detain him. It is frightening to imagine what, with such police and judicial mindset, can happen to practitioners in the provinces, where they are particularly vulnerable, as evidenced by the highest number of disappearances and killings among their ranks.
Indeed, Judge Laigo’s ruling sends the biggest chill yet across the media profession, because it kills a journalist’s last chance at keeping his freedom - freedom that he exercises not for himself, by the way, but, as constitutional watchdog on the powers that be, for all of society.
I think the editorial above thoroughly debunks the view (see Philippine Commentary) that the decision is some sort of deserved comeuppance for the press. And yet, as the Center for Media Freedom and Responsibility points out,
This incident was the worst of its kind in the history of the struggle for press freedom since 1946. It was worse than any attempt by government to restrain the press during the several coup attempts against the Aquino government. The system for control of the press was clear during the Martial Law period, and there was little of this kind of manhandling of journalists at work. There is no such clarity for the protection of the press during this administration.
The license appropriated by this regime, its stretching the meaning of the law to include putting the “right” of the government to arrest those it claims to be obstructing justice above the constitutionally protected freedom of the press had to be stopped, together with its presumption that there’s a right way and a wrong way for the media to respond to crisis.
Deciding whether to stay and to continue to cover a developing story, or to withdraw from the scene is the editorial prerogative of a constitutionally protected press. No regime has the right to dictate that a decision to stay and cover is wrong and can be penalized. These issues, all vital to the capacity of the press to do its mandated duty of providing the public the information it needs, are among those that the class suit sought to resolve in favor of press freedom.
All writers really have to fight with are words; for that reason, fighting with words, a torrent of them, peppery, angry, indignant, is the appropriate thing to do. It is the first thing to do, but not the only thing to be done. The pen isn’t really mightier than the sword, at least, not usually. But more often than not, what the pen’s produced has a greater chance of outlasting whatever it is sword-wielders have accomplished.
That being said, the feeble regard the public has for its own freedoms and its own liberties (and with that disregard comes a sweeping disregard for that of others, and society as a whole), a disregard born not out of spite, but ignorance and the breakdown in the transmittal of culture from one generation to the next, means that it may be that Philippine Commentary’s plaudits for the judge reflects the majority view. Being on the periphery, and no longer at the heart, of the values society holds dear, is something the press can barely comprehend because it’s so unthinkable.
But there it is.
This leaves the writer -including the journalist- no recourse but to repeat the words of Martin Luther (not one of my favorite historical figures but one definitely marked by the courage of his convictions):
I cannot and I will not recant anything, for to go against conscience is neither right nor safe. Here I stand, I cannot do otherwise…
Which is not to say writers instinctively seek martyrdom, though they may, indeed, glory in their suffering from a kind of persecution complex, the self-adulation of the suffering artist whose trials and tribulations may indeed be as much his own doing as they are the impositions of a cruel and ignorant world. You cannot, after all, argue with the kind of small-minded people who view all occupations as mere trades, and who cannot grant -because they cannot conceive, cannot imagine, thus, cannot comprehend- that some occupations, some professions, are as much a matter of having a vocation as they are a means to earn a living (honestly or otherwise). I Am a Bootlicker, I once wrote, as a manifesto of sorts, and it is very much true, in large part because it is the only truth made possible by circumstances that have changed very little since the Middle Ages.
Still, in the face of such myopia, there are times when the writer has no choice but to defy the law. The cleverer may be able to do it, right under the noses of the enforcers of the law, affecting a kind of bonhomie with those who adore the Revised Penal Code in the manner fetishists are aroused by hob-nailed boots. The lucky ones, too. It is human, too, to fraternize with one’s jailers. But all writers, sooner or later, must run the risk of running afoul of readers, fellow writers, publishers, advertisers, the authorities, the public, the state, its soldiers and policemen, the judges in their pockets and the financiers who have everyone else in theirs.
In the case of the court’s decision, there remains an appeal. And until that appeal’s played out, there remains hope. But even if hope of a rectification of the inferior court’s wrongs by a superior court proves fruitless, so what?
You keep buggering on: as long as you can. Until you have no other choice but to give it all up, hopefully temporarily, and write advertising copy or fluff for the lifestyle section when the hob-nailed boots finally kick in the doors of the newsrooms and enforce unity, rule of law, and national security at the expense of all else.
So the judge has given the cops carte blanche? Yet when did the cops ever really need that carte blanche? They always enjoyed it; nothing’s changed; it’s just been formalized but since when did the rituals of those always intent on your destruction ever really matter to you? What, they should have a conscience? And in its absence, you feel hurt?
They are as they have always been; you were luckier than most, and far longer than you should have reasonably expected. They have a point, after all. Whoever said you were special? Pearls before swine! But it was Jesus who said that, and he wasn’t one to quibble with Pilate’s citing the Roman equivalent of the Revised Penal Code, chapter and verse. Or even with the Pharisees, citing the Law of Moses: but then if one’s mission is to preach a New Testament, then run-ins with the proponents of the Old Testament are necessary.
Which, I guess, is my main quibble with the shrieks that have greeted the judge’s pronouncements. They ignore the point and more importantly, ignore the weakness of the judge. He quotes Revised Penal Code, chapter and verse. That set of rules was crafted precisely with keeping writers and anyone else with uppity notions firmly in check. Change the rules, you deprive judge of bully pulpit, and the cops of their legal billy club.
But until that can be done, you take your risks and you can only hope you calculated the odds correctly.
Even in the West the question of governments and the liberties of their citizens -and whether governments are encroaching on those liberties or have already done so, perhaps past the point of no return- is being earnestly discussed (in the media, of course).
The charge sheet against the government is long and damning. Besides its 42-day detention proposals (and earlier, failed plans to imprison suspects for 90 days), it is accused of colluding with America to transport terrorist suspects to secret prisons abroad. It has created new crimes, such as glorifying terrorism or inciting religious hatred, that, say critics, dampen freedom of speech. Those who breach one of its Anti-Social Behaviour Orders, introduced in 1998, can be jailed for things that are not illegal in themselves (such as visiting a forbidden part of town or talking to certain people). In 2005 the prohibition on double jeopardy – trying a person twice for the same offence – was removed for serious offences. The government has tried to cut back the scope of trial by jury…
…Despite Benjamin Franklin’s famous advice, the public seems happy to trade a little liberty for a little security. Surveys before the 42-days vote consistently showed public opinion in favour. More recent polling for The Economist shows broad public support for many liberal bugbears (see chart). Women tend to be more authoritarian than men, Labour supporters more relaxed about infringing civil liberties than Tories and Liberal Democrats, and richer folk more worried than the poor (full details can be found here). Half of the respondents were consistent in their answers to most questions; this, says YouGov’s boss, Peter Kellner, is rather high.
The poll suggests that people are vehement in defence of civil liberty and privacy when considered in the abstract. Confronted with specific situations, their resolve wilts, especially when specific security gains are promised (although administrative benefits can overcome libertarian instincts too).
And in the United States, blighted by the Grand Delusion of the Neoconservatives (see Book Review: Crisis in Central Asia), David Kaiser in his blog, History Unfolding, writes of the Manichean struggle “to preserve,” as he puts it, “the Anglo-American heritage of civil liberties.” He points to the case of Boumedienne vs. Bush , in which the US Supreme Court dealt with the taking away of the habeas corpus rights of prisoners in Guantanamo:
As Kennedy pointed out, the government is arguing that because of Guantanamo’s anomalous status, American governmental authorities can govern extra-constitutionally within it. He and his colleagues rightly rejected the idea that our government can simultaneously be a democracy at home and a dictatorship in a foreign possession. “These concerns,” Kennedy wrote, ” have particular bearing upon the Suspension Clause question in the cases now before us, for thewrit of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”
(One might hope, parenthetically, that what Justice Kennedy pointed out in the majority decision, our judges here at home will eventually read) But anyway, Kaiser continues by taking the dissenters in the high court to task:
Chief Justice Roberts’s dissent is noteworthy because of the way that he stands the whole question on his head. Kennedy focuses on the right of the government to detain aliens under its jurisdiction and insists, properly in my view, that the Framers rightfully placed explicit restrictions on the government’s ability to detain anyone by denying the right to suspend habeas corpus except in time of invasion or rebellion. Roberts instead argues in effect that the detainees do not enjoy the rights of citizens and that the law Congress passed is adequate to protect any rights they may have. The majority, he says, “fails to show what rights the detainees have that cannot be vindicated by the DTA system.” By casting the issue in terms of the prisoners’ rights instead of the government’s, in my opinion, Roberts is standing the Framers’ intent on its head. Merely his attempt to specify a class of people whose rights cannot be precisely defined is, to me, chilling. Scalia’s dissent has received much attention because of his prediction that the decision will result in the deaths of more Americans, and he cites several news accounts claiming that detainees already released (not, to be sure, thanks to American federal courts) have perpetrated violent attacks abroad. (The possibility that their detention turned them into terrorists he does not of course mention.) But it is equally noteworthy that he spends pages and pages arguing that the writ of habeas corpus was never supposed to apply to places where the US was not sovereign–ignoring that no other country has exercised any authority in Guantanamo for a century, and ignoring the implications of allowing the government to rule territory in which it is not bound by the Constitution.
In another entry, Postscript to Habeas Corpus, Kaiser points out how one Justice who is the darling of the Right simply got it wrong:
Justice Scalia’s dissent in Boumedienne vs. Bush, which I mentioned last week, argued not only that more Americans would be killed as a result of the majority opinion, but that 30 detainees released from Guantanamo had already “returned to the battlefield” and had been responsible for a number of deaths. I do not know how often Supreme Court Justices have been caught putting false information into their opinions, but that is what has happened here. Some Seton Hall law professors, bless their hearts, have published a report exploding this data as an urban legend–one which the Pentagon had already had to repudiate.