Driving the point home is different from threatening

YESTERDAY, lawyer Harry Roque formally petitioned the Supreme Court to set aside the show cause order against former National Task Force to End Local Communist Armed Conflict (NTF-Elcac) spokeswoman Dr. Lorraine Marie Badoy, claiming it infringes on her constitutional right to free speech.

The case against Badoy, who is now a broadcaster, stemmed from her social media post assailing a court decision of Manila Judge Marlo Magdoza-Malagar wherein the latter denied the petition of the Department of Justice (DoJ) seeking to legally declare the Communist Party of the Philippines and its armed wing, the New People’s Army, as terror groups.

In her ruling, Magdoza-Malagar dismissed the DoJ petition after looking into the CPP’s Ten Point Program, saying that “a perusal of the foregoing program consisting of lofty ideals readily shows that the CPP-NPA is organized or exists, not for the purpose of engaging in terrorism,” or simply put, the underground leftist organization is simply fighting for a cause and that the killings and other atrocities against the government, the people and the state, it has committed were simply in furtherance of its cause.

Being the former spokesperson of the NTF-Elcac, Badoy reacted and used basically the same premise the judge employed in criticizing her decision.

“So if I kill this judge and I do so out of my political belief that all allies of the CPP-NPANDF (National Democratic Front) must be killed because there is no difference in my mind between a member of the CPP-NPA-NDF and their friends, then please be lenient with me,” read a part of Badoy’s now-deleted Facebook post.

Leftist organizations and media outlets critical of the government’s campaign against the communist insurgency raised a howl, saying Badoy’s post was a threat, prompting the high court to step in. But was it really a threat? Roque doesn’t think so. In his 47-page pleading, Roque averred that “the use of contempt powers of the Supreme Court against a fair criticism by Dr. Badoy in her exercise of journalistic comment of an erroneous decision of a lower court judge constitutes punishment and thus infringes on her freedom of expression and freedom of the press.”

Further, Roque said Badoy’s social media comment did not contain incendiary language that breaches the clear and present danger rule.

“If at all, Dr. Badoy’s words are a clear example of hyperbole, or reductio ad absurdum (reducing to an absurdity) to stress a point,” he stressed.

So do I. In a casual conversation with the former undersecretary Joel Egco who used to head the Presidential Task Force on Media Security, I raised the issue of how we were trained to drive home a point in explaining ourselves.

In driving a point home, we often used the first person or a second and third person, or the person closely identifiable to the issue being discussed, as an example, like — “if I push you to the wall; “if you kick this person”; “if this person rapes you” etc. But none of those constitute a threat.

We even joke around, sometimes telling our friends, “Pag nasuntok kita sabihin mo tsamba,” but the other party doesn’t take offense to that nor view that as a threat.

And Badoy, in her post, was simply driving home a point. Since the judge technically said the CPPNPA are simply fighting for a cause, and that they are not liable for any terroristic act, let’s put ourselves in the shoes of the members of the League of Filipino Parents and the Hands-Off Our Children.

Clearly, the members of this group are also fighting for their own cause even if it doesn’t suit the beliefs of some sectors, in the same manner, the cause the underground organizations are fighting for doesn’t suit our beliefs.

Now, since the LFP and HOOC are also fighting for a cause, is it justified for them to resort to killing any member of the underground organization or anyone whom they believe to be also adherents to their cause?

And that, I believe, is exactly what Badoy is trying to drive at, thus it should not be considered a threat.

Badoy simply criticized Magdoza-Malagar’s ruling and used the judge’s own premise to emphasize her point.

In fact, Roque said the Supreme Court has consistently shown leniency toward criticisms made by lawyers and laymen on the decisions and conduct of lower court judges, adding that based on existing jurisprudence, “the Supreme Court has tilted in favor of freedom of expression over the administration of justice where offending remarks were leveled against the lower court judges.”

Roque explained that Badoy’s criticisms fall under the doctrine of fair comment on matters of public interest that is enshrined in Philippine jurisprudence.

In Borjal v. Court of Appeals, the Supreme Court ruled that “fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.”

Roque said Badoy’s social media post criticizing Magdoza-Malagar’s refusal to proscribe the CPP-NPA as a terrorist group constitutes fair comment. It is consistent with the High Court pronouncement in Borjal v. Court Appeals.

He argued that Judge MagdozaMalagar erred in resolving the case for proscription under the old Human Security Act (HAS) despite its being superseded by the Anti-Terror Act of 2020.

The lower court’s decision also contradicts the designations made by the European Union, United States, United Kingdom, Australia and New Zealand that the CPPNPA is a terrorist organization.

More importantly, Roque said that for speech, or a social media post as in the case of Badoy, “to be considered incitement, must reach a high threshold, which in Philippine jurisprudence is speech that threatens to provoke imminent lawless action.”

The key word in Badoy’s post, Roque said, as the use of the Badoy’s “if-then” statement, which in itself, shows there was no intention to incite violence nor provoke imminent harm to Magdoza-Malagar, her family, or members of the judiciary, adding that the judge and the rest have not been harmed as a result of Badoy’s social media posts.

Again, Badoy was simply driving home a point and it is different from threatening someone.