Déjà vu

Haven't we seen this before? Aren't we following the same plot again?

© Noel Celis | AFP | Getty Images

They say history repeats itself. Recalling the Philippine’s worst nightmare forty-six years ago, Proclamation No. 1081, Letter of Instruction No. 1 ordered the takeover and control of all newspapers, magazines, and radio and television facilities. During these times, many media outlets were shut down and those who were deemed to have published or written materials subversive to the government were arrested and denied due process. These were dark times for journalists for freedom of press was so expensive that it comes at the cost of one’s life. After Marcos’ downfall, we have progressed a lot since then. The press regained its voice, even becoming the fourth estate with its primary role of being the watchdog of the three pillars of the government—calling out its slights and lapses which has always irked those who sit in power. The past administrations attempted to put these watchdogs on a leash but with its recent attack on Rappler, the current administration known for its brazen techniques took the press silencing to a whole new level by using a muzzle instead of a leash. If you pay careful attention to it, doesn’t this sound like an attempt to do something that has already happened before?

The state—upon recognizing the vital role of the press in safeguarding democracy by watching out for the common good and reporting violations of individual and collective rights—guarantees press freedom in Section 4 Article III of the Bill of Rights which states that "No law shall be passed abridging the freedom of speech, of expression, the press, or the right of the people peacefully to assemble and petition the government for redress of grievances." Because of this right protecting the freedom of press, the government has to be crafty when they plan to take that freedom away. A perfect example would be how the current administration is handling Rappler—an independent online news media site who’s a vocal critic of the Duterte administration—through the Securities and Exchange Commission (SEC)’s decision to revoke Rappler’s certificate of registration following its alleged violation of the anti-dummy law.

The Anti-Dummy law prohibits foreigners from intervening in any "nationalized activity" such as the operation of a media company, which should have 100% Filipino control. According to SEC, Rappler violated this law when Rappler Holdings Corporation (RHC) issued Philippine Depositary Receipts (PDR) to Omidyar Network—a US-based foundation and an impact investment firm—with a condition that Rappler and RHC cannot alter their Articles of Incorporation and Corporate By-Laws without discussion with the Omidyar Network PDR holders and obtaining the approval of at least two-thirds of all issued PDRs. The SEC says that this clause in Omidyar's PDR is void because it requires Rappler to seek Omidyar’s approval on corporate matters and in effect, granting and selling control. But it has to be noted that PDRs are not evidence of foreign ownership. PDRs are legal instruments or means by which foreign entities can invest in Philippine companies with nationality restrictions. They do not equate to ownership or control by the PDR holders of day-to-day operations. However, according to the lawfirm Orbe-Dizon, while “PDRs are not evidence of foreign ownership, it is the contractual provisions in the PDR that will determine foreign control and/or ownership.”

In Rappler’s defense, they maintained that Rappler is 100% Filipino owned and controlled as opposed to what President Duterte falsely claimed during his SONA that Rappler is 100% American-owned. The shareholders, directors, and officers of Rappler and its parent company, Rappler Holdings Corporation, are all Filipinos. Francis Lim, Rappler’s legal counsel, explained that the purposed of the PDR clause in question was to ensure protection for investment that allows Omidyar to pull out its PDRs and demand the withdrawal of the equivalent value of their PDRs in RHC if there are drastic changes in corporate structure or the nature of the business. Besides, in a statement released by Omidyar Network, they affirmed that they do not own any shares in the Rappler entities, nor do they have any voting rights, management responsibilities or any other form of control in either company nor any editorial input in Rappler. Moreover, as a sign of good faith, back in December 2017, Omidyar submitted a waiver of the provision, expressing its willingness to declare null and void the questioned provision but the SEC disregarded it without informing Rappler. This is because “what was submitted was just a photocopy of the waiver and not a document subscribed by a notary or a Philippine consulate," the SEC decision read. SEC chairwoman Teresita Herbosa also argued that submitting a waiver is like admitting the violation. Rappler's legal counsel, however, rejected this. According to Lim, Omidyar was saying, without admitting anything, that just to resolve the issue, they are willing to waive the clause in question. Since the SEC raised an issue of it, then the practical thing to do was to waive it. Unfortunately, the SEC did not see it that way. Additionally, Lim questioned SEC’s severe penalty in Rappler’s case when they could have given Rapper 6 months to one year to resolve the questioned provision, just like what it gave to PLDT in relation to the Gamboa v Teves case.

Seeing that the Rappler vs SEC case is, in nature, a law and corporate issue, it is also undeniably a press freedom issue. This is because while it is still up for debate whether Rappler really violated the Anti-Dummy law, it is clear that SEC’s decision was also political in nature. Seeing how SEC decided to jump to revoking Rappler’s license to operate when they could’ve just given them time to resolve the issue of a single defective clause just like what they did to PLDT reveals a lot on SEC’s motive behind the attack. If they are really dealing with this issue without any political motive, why are they paying close attention to Rappler only now when they even approved the same PDR in 2015? Why have they skipped due process and hastened the issuance of the decision? It doesn’t take a genius to realize that it is because of Rappler’s relentless and uncompromising coverage of the horrors of the present administration—especially the issue of the bloody war on drugs.

As it turns out, Rappler as a watchdog is an especially noisy one capable of biting with its piercing words and fearless journalism and the “disciplinary action” they are experiencing now is just Duterte showing Rappler who’s the boss. When a watchdog becomes too noisy or aggressive, it makes sense to muzzle it. Exposing brazen abuse of power is the sworn mission of a free press, so it isn’t surprising that authoritarians like President Duterte would go after independent media. Reviewing history reveals that authoritarians abhor those who can think critically and will do anything to silence dissenting voices—from denying ads to media companies, libel laws, threatening to deny a franchise or renewal of a franchise, using the platform of the presidency to scold and shame media critics and the crudest is to liquidate individual journalists or shut down media outfits by force. We have seen this happen forty-six years ago. This attempt to muzzle watchdogs is a prelude to the dark times. If we don’t defend fearless journalism—if we allow this oppression of free press to transgress, we’ll soon find ourselves at the precipice of reliving the nightmare the Philippines had forty-six years ago.

They say history repeats itself. Indeed, it does; but only if we let it.