Drugs, libel and the President

Ian Alfredo Magno

SECTION 2 of RA 9165, otherwise known as the Dangerous Drugs Act of 2002, enunciates the State policy towards drugs, thus:

“It is the policy of the State to safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being… In view of the foregoing, the State needs to enhance further the efficacy of the law against dangerous drugs, it being one of today’s more serious social ills.

“Toward this end, the government shall pursue an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances…”

Apparently, the law considers dangerous drugs as an enemy of the State, whose territory is constantly threatened with encroachment by its harmful effects. Its target? The citizenry, particularly, the youth. Quite on a regular basis, in fact, unimaginable delinquencies have been committed in the name of drugs–to list a few: theft, robbery, senseless killings, selling one’s flesh, selling the flesh of their own daughter, rape of a three-month old infant, etc.  In this context, the law correctly identifies drugs as among the more serious ills of the society. Likened to a disease, it is a cancer many people say. And like cancer, it is tough to cure, and so far requires the strongest chemo blasts if only to suppress its progression to fatal stages.

Undoubtedly, this territorial threat is precisely grim that RA 7659 enumerates its importation, sale, delivery, distribution, transportation, maintenance of a den, manufacturing and possession as among the heinous crimes, which warrant the penalty of death.

Perhaps the President sees it no more differently, who remains unshaken by critics vis-a-vis his pronouncement to revive the capital punishment.

Fearless is one word which aptly describes, at the least, the President’s blurting out, point blank, the names of five police generals who are alleged to coddle or perpetuate drug syndicates in the country. The feat virtually celebrated the President the stature of primetime drama teleseryes. “Duterte-serye na yata ang pinakabagong teleserye sa bansa,” one fellow said, because of his candid and unshackled remarks, which the public delights to hear anyway; which on other hand, others find libelous if only the President was not immune from suit.

The Revised Penal Code classifies libel as a crime against honor, and is defined by Article 353 thereof, to wit: “A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Moreover, Article 354 further provides that: “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Obviously, the President imputed a crime upon the five generals–that is a given. To prove libel, however, such imputation must be both public and malicious. Having been broadcast on national television, no doubt the imputation meets the element of publicity. But was it malicious?

Article 354 of the RPC presumes every imputation of a crime (even if true) to be malicious.  This is what is referred to as “malice in law,” as contrasted from malice in fact or actual malice.  Article 354 of the RPC is an illustration of malice in law, where the law presumptively assigns malice in the act-egardless of the actual intent or state of mind of the actor. Nonetheless, the very provision provides for exceptions namely:

1. privileged communication or
2. a fair and true report of
3. a legislative or judicial proceeding or
4. a non-confidential official proceeding or
5. a statement or speech made in such official proceedings or
6. an act performed by public officers in the exercise of their functions

What then is the significance of these exceptions? In Co vs. Muñoz G.R. No. 181986, Dec. 4, 2013, the Supreme Court held that: “… our rulings in Borjal and Guingguing show that privileged communication has the effect of destroying the presumption of malice or malice in law.”

In the same vein, the said jurisprudence held thus: “In order to justify a conviction in libel involving privileged communication, the prosecution must establish that the libelous statements were made or published with actual malice or malice in fact…”

In simple parlance, when malice in law is destroyed by the presence of the exceptional elements, malice in fact or actual malice must be proven beyond reasonable doubt, to establish the crime of libel. Meanwhile, there is actual malice when there is knowledge that such statement is false (or reckless disregard as to whether or not it was true).

The question, as to whether or not the President’s fearless remark falls among the exceptions could be the subject of riveting discussions.  Yet, ultimately, the President cannot be held to answer criminally nor civilly due to one element not most ordinary citizens enjoy: immunity.

Strikingly though, this presidential immunity from suit is nowhere to be found in the 1987 Constitution.  Its basis could be found only in jurisprudence. In the case of In re: Bermudez, the Supreme Court expressly held that “Incumbent presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.”

In the case of Soliven, et al., vs Judge Makasiar, the Supreme Court explained the rationale of such presidential immunity from suit, which stems from the nature and scope of his powers and responsibilities, which involve the following tasks and roles:  to nominate and appoint officers in executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution (Section 17, Article VII of the 1987 Constitution); to come up with a national budget for the entire government machinery; to maintain peace and order; the representative of the country in guaranteeing foreign loans; Commander-in-chief of the Armed Forces; the premier foreign affairs policy-maker; to grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment of a criminal; to exercise general supervision over all local governments; and to report to congress every year via his State of the Nation Address.

Hence, in Estrada vs. Desierto/Estrada vs. Macapagal-Arroyo G.R. No. 146710-15 March 2, 2001 and G.R. No. 146738 March 2, 2001 the Supreme Court held: “Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz”xxx.  Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself.”

In sum, the President runs the affairs of government like no other and is, therefore, vested with the highest brand of protection from and by the State.

It seems clear that President Rodrigo Roa Duterte has no intentions to take his tasks lightly. It is probably safe to say that his revelation of the five generals was the first of its kind in the country’s long line of Presidents. Perceptibly, it shook the psyche not only of the five generals, but more so the public at large.

In the final analysis, the die is cast.  And to falter in the comfort of immunity, or to further the call of duty in battling dangerous drugs at the expense of legal fairness are a two-edged sword that this administration must wield with utmost circumspection–if genuine change is to be sustained.

(Atty. Ian Alfredo T. Magno is an associate at the Atty. Francis U. Ku & Associates, and deputy legal officer of Philhealth.)