Former National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) spokesperson Lorraine Marie Badoy on Thursday appealed to the Supreme Court to set aside its show cause order against her, in connection with her social media post red-tagging a trial court judge for his decision junking the government’s petition seeking to declare the Communist Party of the Philippines and its armed wing, the New People’s Army, as terrorist organizations.
In a comment filed through lawyer Harry Roque, Badoy said the contempt order infringes on her constitutional right to free speech being a journalist and a former spokesperson for the NTF-ELCAC.
Roque stressed that Badoy was also a news commentator employed by the SMNI News Network.
“The use of contempt powers of the Supreme Court against a fair criticism by Dr. Badoy in her exercise of journalistic comment of an erroneous decision of a lower court judge constitutes punishment and thus infringes on her freedom of expression and freedom of the press,” Roque said in a 47-page comment.
In a resolution issued on October 4, the SC gave Badoy 30 days to explain why she should not be cited in contempt for red-tagging Manila Regional Trial Court Judge Marlo Magdoza-Malagar for denying the government’s petition.
Roque stressed that the social media statement of Badoy that Judge Malagar’s refusal to describe the CPP-NPA as a terrorist group is wrong, adding that involved “matters of public interest” and constitute fair comment consistent with the Court’s pronouncements in Borjal vs. Court of Appeals.
The SC also said in the same ruling that “if the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.”
In the said case, the SC held that “fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.”
Badoy’s camp maintained that her comment is fair due to obvious errors in Judge’s Malagar’s resolution.
Roque also said Badoy’s social media comment did not contain incendiary language that breaches the clear and present danger rule that would warrant her punishment for indirect contempt.
The former Cabinet official said Badoy did not threaten Judge Malagar and described her social media posts as an “honest and informed criticism” of the latter’s resolution.
“For speech to be considered incitement, it must reach a high threshold, which in Philippine jurisprudence is speech that threatens to provoke imminent lawless action,” said Roque, who also served as spokesperson of former President Rodrigo Duterte.
He argued that based on the phrasing of Badoy’s “if-then” statement, there was no intention to incite violence nor provoke imminent harm to Malagar, her family, or members of the judiciary.
Roque added that Malagar and the rest have not been harmed in connection with Badoy’s social media posts.
“If at all, Dr. Badoy’s words are a clear example of hyperbole, or reductio ad absurdum (a reduction to an absurdity) to stress a point,” he said.
Roque also emphasized that the Supreme Court has consistently shown leniency toward criticisms made by lawyers and laymen on the decisions and conduct of lower court judges.
Thus, Roque asked the Court to rule in favor of freedom of expression and of the press by declaring Badoy not guilty of indirect contempt.
“The public must be allowed to vent their opinions on judicial decisions, particularly in cases involving acts of terrorism and terrorist groups, as these matters directly affect public safety,” Roque said.
“The people cannot vote judges out of office on account of disagreement. If members of the public disagree with a judge’s decision, what recourse do individuals have if not their social media feeds,” he added.
