Jailed for liking Binay freeze order on Facebook?

AS A Court of Appeals order froze assets of Vice President Jejomar Binay and his alleged associates last week, his lawyer Claro Certeza sent an astounding letter to the INQUIRER threatening prosecution should the paper report the freeze order and the petition of the Anti-Money Laundering Council (AMLC) for this order. Certeza invoked the “breach of confidentiality” provision in the Anti-Money Laundering Act, which bars media from reporting the contents of an initial suspicious transaction report made to the AMLC. The INQUIRER published Certeza’s letter and my fellow columnist Mon Tulfo branded him a clown.

It is painfully obvious that the INQUIRER did not violate the Anti-Money Laundering Act (Amla) since it reported on something else, namely a petition by (and not an initial report to) the AMLC before a court and the court’s resulting order. Regardless, court decisions are quintessentially public. It is unthinkable that anyone could be stopped from reporting them short of the most compelling reasons of national security or to protect a child victim.

It is worth dissecting why Certeza’s letter made us so indignant. Remember, when you share the freeze order on Facebook, you invoke the same rights as the INQUIRER.

It is valid to prohibit disclosure of initial reports to the AMLC. The right to privacy includes the right to financial privacy and it is certainly in the public interest to maintain this in our financial system. The harm done by a hasty disclosure is irreversible; the reported transaction may be inaccurate or justified, or a wrongdoer may be alerted to a possible freeze. However, once an investigation is concluded and government bodies take formal action, one cannot justify keeping the conclusions secret, especially when they deal with a high official so intertwined with the public interest.

Recall the “Hello Garci” scandal where recordings allegedly of former president Gloria Arroyo calling an election commissioner about rigging the 2004 elections circulated in public. Some argued that those who played the recordings—some made them ringtones!—were liable under the Anti-Wiretapping Law. The debate became moot when the recordings were played on the floor of Congress and gained parliamentary immunity. Recall the ill-informed #NonLi-belousTweet campaign, where Twitter users spread insincere compliments because they believed outright criticism of government would make them liable for cyberlibel. Replace the Anti-Wiretapping Law or the Cybercrime Act with the Amla and it is all the same debate.

Scholars debating “Hello Garci” cited the US Bartnicki case, where a radio station played a tape of a union president telling his chief negotiator that if their demands were not met, “we’re gonna have to go to their, their homes ... To blow off their front porches, we’ll have to do some work on some of those guys.” The recording was made without their consent but the radio station had nothing to do with making it, and received it from a union critic who claimed a copy was left in his mailbox. The US Supreme Court ruled that free speech trumped their anti-wiretapping law and media cannot be stopped from reporting truthful information of public interest, such as a possible threat of union violence, even if the information was obtained illegally by an unknown third party.

Relating Bartnicki’s logic to the freeze order, there are few things of higher public interest than a high government official’s integrity, and one of the most fundamental reasons to protect free speech in a democracy is precisely to discuss one’s leaders. That such great public interest means free speech would trump the Amla and other laws is why legal luminaries—from former University of the Philippines law dean Pacifico Agabin to Senate President Franklin Drilon—immediately opined that no one may be prosecuted as Certeza proposes, and we instinctively know this. Incidentally, if we accept Certeza’s theory, we would have to silence people commenting in favor of his client, not just critics, as prohibiting only one side of a debate is even more distasteful than prohibiting the debate altogether.

Beyond free speech, even without a freedom of information law, our Constitution already enshrines our right to all information of public concern. Any citizen may demand a copy of the AMLC petition and Court of Appeals freeze order solely on the basis of this single phrase in our Constitution, then freely circulate these public documents as part of free speech. Further, our post-Edsa Constitution prominently emphasizes that, “Public office is a public trust,” a phrase justices attributed to Certeza when he recently appeared before the Supreme Court regarding the suspension of Makati City’s mayor.

Our principles of free speech must transcend politics and some things must remain sacred. I have nothing against the Binay legal team and agree that there was no need for Certeza’s cocounsel, UP law professor Sandra Olaso-Coronel, to have had her integrity questioned for raising the “condonation doctrine,” a doctrine taught as gospel truth in law schools, at the recent high court hearing (although the team’s other propositions have many less established bases in law). I simply hope that in the future, no one even dares to consider attacking free speech in the way we just saw.

We must internalize that we are indubitably free to use the “Hello Garci” recording as a ringtone, to tweet and blog about Sen. Tito Sotto’s legislative achievements, and to upload the freeze order for all our Facebook friends to see, and that anyone who threatens prosecution over these threatens the very heart of our democracy sanctified by the blood of patriots.

***

React on Twitter (@oscarfbtan) and facebook.com/OscarFranklinTan.