The raging controversy today is the 12-point recommendation of the Incident Investigation and Review Committee on the August 23 Luneta debacle. There has not been any report in this country that was welcomed by everyone. The IIRC report is no exception. It was met by a mixture of relief and appreciation by those who want to move on; and scorned by those whom the Committee recommended to be the subject of criminal prosecution. I myself have mixed feelings about the recommendations of the Committee. While I generally support its recommendation to indict the men in uniform and other public officers either for their incompetence, fault or failure to exercise control over their subordinates, I nonetheless lament its recommendations to charge the media for the debacle.
I continue to be the biggest fan of Justice Secretary Leila de Lima and still think that she should be cloned so that she can serve in all graft-ridden departments and agencies of the bureaucracy at the same time. I do believe, though, that even the mere recommendation that charges be filed against the media would result in chilling the exercise of freedom of the press. If and when these indictments are actually filed, it would further result in an actual infringement of this all-important right.
Looking at my past writings, I noticed that majority of them have been on freedom of expression and freedom of the press. This is not a coincidence as the promotion of these rights has been the primary advocacy of the Center for International Law, a civil society organization that I chair. This explains our participation as private prosecutors in the Ampatuan massacre case as the killing of journalists is the ultimate form of censorship. This is also why we sued the former first gentleman, Miguel Arroyo for P12.5 million in damages for resorting to the filing of at least 45 libel cases which we described as infringement of the right to a free press and an abuse of right. This also explains why we sued the police and the military for their en masse arrests of members of the media for covering the walkout and press conference of Senator Antonio Trillanes at the Manila Peninsula. Indeed, it could be said that bulk of my professional life has been devoted to promoting freedom of expression.
This is due to good reasons. First, I have always had a big mouth and have always been opinionated. To me, without free speech and a free press, there could not be an exchange of ideas that would lead to debates and eventually, solutions to our many problems. Freedom of the press is also indispensible for the formation of public opinion that has proven to be more potent than the Ombudsman (certainly under the current one), the Sandiganbayan, and the Supreme Court combined, in dealing with despotic leaders. And to those who believe that man was created in the image of God, freedom of expression is a right bestowed by God, full stop.
It is hence indispensible that media should be allowed to perform their task except where their conduct will lead to a clear and present danger that the state has a right to prevent. Even in times of armed conflict, media is allowed to perform their job of reporting to the public the truth and events as they transpire in the battlefield. If they are allowed to perform their profession even when there is full blown shooting without fear of criminal prosecution, why should the IIRC recommend their criminal prosecution for their coverage of an isolated act of violence?
True, media’s coverage of the Luneta debacle was far from ideal. But what made the event a debacle was not because it was reported by the media, but because the police and all those identified by the IIRC as being culpable were either at fault or negligent. And yes, with the finding that the fatalities were killed by the gunman himself, where is the criminal culpability of the media?
Ultimately, any act where agents of the state seek to substitute their judgment on what and how to cover a news worthy event infringes on the right to a free press. Moreover, even conceding that some members of the media were guilty of bad journalism for their coverage of the debacle, still there is no criminal statute against bad journalism. Nullum crimen, nulla poena sine praevia lege poenali. (No crime, no punishment without a previous penal law)
One very good thing, though, illustrated by the IIRC was the speed and dispatch by which the Committee received evidence on the incident. If only our criminal courts could function in the same manner that Secretary De Lima and her committee did, I am sure we would not have the backlog that has caused a state of paralysis in our courts today.
Blame should be put on those who opted to abandon the inquisitorial system that we inherited from Spain, in favor of the current adversarial system of hearing cases in our courts. Under the European model, it is the Judge, much in the same way that Secretary De Lima did in the IIRC, who would ask questions from witnesses and order the production of evidence. I had personal experience on this system when I appeared in a case in Basel, Switzerland where the Judge asked questions for seven and a half hours and gave each counsel 15 minutes each at the end of the hearing to ask clarificatory questions or to make submissions. We junked this system in favor of our adversarial system that we borrowed from the Americans. Under this system, the Judge is a passive recipient of evidence. It is the lawyers who ask the questions and present the evidence. This ultimately is the source of delay in the administration of justice in our country. Hence, not only do we need to clone de Lima, we also need to revert to the inquisitorial system.