Harry Roque and the Need to Chill

CLASS ACTION AGAINST MIKE ARROYO: Lawyer Harry Roque cites the following provisions of the Civil Code of the Philippines to justify the filing of an "historic first" class action lawsuit against First Gentleman Mike Arroyo --

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Also cited as basis is Article 32, which is very long:

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(10) The liberty of abode and of changing the same;

(11) The privacy of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not contrary to law;

(13) The right to take part in a peaceable assembly to petition the government for redress of grievances;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

To help understand the theory and logic of Harry Roque's class action case, I have two quotes, one each from Ellen Tordesillas and Vergel O. Santos, both litigants in the case.

Ellen Tordesillas describes the position of "pushback group" with the help of Harry Roque --

"We maintain that the suit, the first of its kind in the world, is meant to defend press freedom and democracy against Mr. Arroyo’s efforts to undermine both." Roque said, “It is correct that the 12.5 million is not sufficient money to compensate the journalists for the damage the Arroyo libel suits have caused them, free expression, and the country’s democracy in general. However, because they were able to raise only enough funds to pay for docket fees only for damage claims amounting to 12.5 million pesos, the journalists settled for that symbolic amount,” Roque said. “It is the view in fact of my clients that the amount of damage caused by Mr. Arroyo is unquantifiable, given the normative value of freedom of the press as indispensable for arriving at the truth, and in shaping the informed public opinion necessary to check an abusive government,” Roque continued.

Center for Media Freedom and Responsibility has a post on its website RECRUITING "additional plaintiffs" for the class action --

Wanted: Journalists! As presented by Atty. Harry Roque during a media briefing last Nov. 22 at the University of the Philippines Law Center, a class civil suit is set to be filed against Presidential spouse Juan Miguel Arroyo for the latter’s apparent of abuse of his rights and violation of freedom of expression. Arroyo has used libel to harass and stifle the journalists, thus creating “a chilling effect” on the Philippine media. For the class civil suit to be effective and successful, all journalists and media organizations are invited to join as additional plaintiffs in the case.

As best I can make out, the logic and theory of the class action case goes like this...

By filing ten separate criminal libel lawsuits against some forty three individual members of the Press, the First Gentleman, Mike Arroyo (FGMA) is not exercising his rights "in good faith" as required by Article 19. FGMA is allegedly using the libel laws to harass and intimidate these same journalists and critics, which has a chilling effect on them and the entire profession, thus intentionally depriving them of their full freedom of expression, negligently damaging thereby the exercise of their journalistic profession under Articles 20. Finally, the complainants figure Mike Arroyo must compensate them collectively 12.5 million pesos in "symbolic damages" under Article 21. This fine yarn is all rolled up into a neat ball by Article 32 -- which is as big as the Pacific Ocean is for fishing expeditions too -- but I sure hope they've got more than just this bald demand for 12.5 million pesos in "moral and exemplary damages".

PDI STAYS OUT OF CLASS ACTION: Reading from a prepared statement so as not to misquote himself, Isagani Yambot -- Publisher of the Philippine Daily Inquirer, said that the newspaper would NOT be joining the class action law suit against First Gentleman Mike Arroyo. Speaking on Cheche Lazaro's Media in Focus TV program on ABSCBN News ANC last Thursday night, Mr. Yambot said that individual PDI reporters and columnists were free to join the class action suit (adding that columnist Mon Tulfo, "PDI's record-holder in libel law suits," had indeed, done so), but that the newspaper would not be joining as a corporate entity. He called the lawsuit "laudable and just" but believed it might damage the newspaper's own reputation for "objectivity and neutrality" in its future coverage if it joined in a case that "pits the print media against the First Gentleman." Mr. Yambot said that in meetings with editors and business managers the newspaper recalled the traumatic struggle with then President Joseph Estrada, from which they had emerged "bloodied but unbowed." But apparently more prudent and wiser now as Mr. Yambot stated that the paper wants to protect its reputation for truthful, accurate reporting and fair comment." (Watching in the penumbra of next-up in the television studio, Rep. Teddy Boy Locsin and I exchanged ironic but delighted looks at this declaration from Isagani Yambot. Later in the show, Teddy Boy would predict an early demise to the class action suit.)

Marites Vitug of Newsbreak was clearly disappointed that the broadsheet would not be lending its considerable weight to the class action suit, though I think Newsbreak can successfully defend itself against the FG's criminal libel law suit on the strenght of its own professional merits. But PDI seems to be listening to different legal advice than Newsbreak regarding such class action suits, their prospects of success, and the ultimate consequences for participants and the entire journalism business. Philippine Daily Inquirer clearly wants to be a more or less respectable newspaper institution, not a partisan mass organization only masquerading as such, in someone's less charitable if piquant description. Besides, no other newspaper knows libel like PDI knows libel, given literally thousands of libel cases filed against it over a long and illustrious career as the country's dominant broadsheet. It might surprise some people precisely how many of those cases of libel filed against PDI and/or its employees have ever prospered to conviction and punishment.

Rep. Teddy Boy Locsin pointed out that they cannot seek a Court injunction to prevent the First Gentleman from filing libel lawsuits against individual parties because he cannot possibly be in abuse of rights that he seeks to legally exercise through the Courts, which is why the suit is actually limited to seeking damages. He also notes the fatal flaw in the FGMA libel suits, in which Mike Arroyo accuses individual writers of libel, but never the owners and publications themselves. He also had the best advice: Win the libel cases against Mike Arroyo on their own merits and prove the charges against him!

On the show of Cheche Lazaro, I expressed the basic position that the class action is an unwise tactic that might only backfire. I am convinced that the case is weak because its premises are flawed. The claim that the ten or eleven legal cases filed by Mike Arroyo has caused a "chill" in Philippine Media is a factual claim that could be challenged and which I do not personally believe is true at all. We are not so weak or cowardly a society today, that the mere husband of the President can cow or intimidate or "chill" our journalistic professions, mass media conglomerates or even the bloggers.

With his usual prescience about public affairs, Teddy Boy Locsin predicted during Cheche Lazaro's TV show, an early and merciful demise to the class action suit herein described. But I hope that is all that happens, because in reading over the Articles 19-21 and 32 of the Civil Code, one gets the ineluctable feeling that what applies to one, or some, surely applies to ALL or none at all, in the famous phrase of a different sage.

The Press, like the Judiciary, has a position to defend within our democratic society. As do we all in equal and just measure!