CENSORSHIP OR prior restraint. This is the nature of the gag order
imposed by the Comelec, the DOJ, and justified by Malacanang, on
ABC Channel 5 to stop the network from conducting and airing its
quick count.
This was the legal opinion issued by the Public Interest Law Center.
“The Supreme Court has held in a long line of cases that, and
we quote, `Any form of prior restraint comes to this Court bearing
a heavy presumption against its constitutionality’. Prior restraint
means that the publication or broadcast is stopped even before it
sees the light of day. Nobody gets to see it. A small group of people
in government decide what is fit or not fit for the public to read
or see. It is also called censorship, and the Supreme Court had
said many times over that it is presumed unconstitutional or illegal
or invalid, in New York Times and Washington Post vs. United States,
Near vs. Minnesota, Eastern Broadcasting (DYRE) vs. Dans, Gonzales
vs. Kalaw-Katigbak, etc. ” explained PILC board member lawyer
and professor Marichu Lambino, who also teaches the subject Law
on Mass Media at the University of the Philippines College of Mass
Communication.
“The statement of Gloria Macapagal Arroyo’s spokesperson,
Ignacio Bunye, who is a lawyer, that other groups can conduct their
private quick counts as long as these would not be used for public
circulation, shows the true nature of the gag order. It is the airing
or publication of the quick count that Gloria Macapagal-Arroyo is
afraid of. For Gloria, all headlines should be the same, that ‘GMA
is leading in the official and unofficial tally’. Well, she
is not, not in all. Not in the ABC Channel 5 tally. The Emperor
or Empress has no clothes. And for that, the small, brave network
was silenced,” stressed PILC managing counsel Marie Yuvienco.
“The Comelec and the DOJ had failed to cite the law that authorizes
them to censor a TV network for airing a quick count, except to
say publication of false news. We presume the DOJ is referring to
Article 154 of the Revised Penal Code which penalizes publication
as news any false news that may endanger the public order. This
is not a source of authority or legal basis to exercise censorship.
The DOJ should first file a case in the courts against Channel 5,
if it so desires, for violation of said law, but it cannot stop
the airing of a particular news segment,” pointed out PILC
lawyer Jayson Lamchek, who also teaches Public International Law
at the University of the Philippines Manila.
PILC criminal litigator Rommel Quizon said that “when the
Comelec used the law that authorizes only Namfrel to conduct a quick
count, it does not mean that the quick count of media outfits is
criminalized. There is no criminal provision or punishment in said
law. It only means that quick counts other than Namfrel’s are
unofficial, but not criminal and certainly not illegal. Besides,
neither does said law confer censorship powers on Comelec.”
“Gloria Macapagal-Arroyo is not the State. It is not the State
that is endangered here but her claim to a mandate. The Supreme
Court has tirelessly explained in leading cases that the only time
censorship or prior restraint is legal or authorized (in Near vs.
Minnesota reiterated in New York Times vs. U.S.) is in time of war
when the sailing dates and location of troops is not allowed to
be disclosed and the State is authorized to censor those.
"Or analogously, in the Philippines, when there is actual
street fighting between the government and rebels, and radio or
live TV is airing the location of troops, or time of assault, or
battle plans, government is authorized to cut off the air such broadcast.
But not here. There is no such situation in this case. The gag orders
are illegal,” explained Professor Lambino.
“We advise Channel 5, and all newspapers and networks, to
defy the Comelec and the DOJ on this since government is violating
Section 4, Article 3 or the free-speech clause of the Constitution,
and Section 7, Article 3 also of the Bill of Rights or the right
to information on matters of public concern. Any court in the land
will uphold the free-speech clause against an act of censorship,”
urged Atty. Yuvienco.
