Journal News Online : OSG to SC: Void COMELEC – Rappler MOA

7 March 2022

By Paul M. Gutierrez | Journal News Online

NPC call to oppose biased deal gains traction; 235 ex-military officers throw support

THE initiative taken by the National Press Club of the Philippines (NPC) to oppose the onerous ‘memorandum of agreement’ (MOA) between the Commission on Elections (COMELEC) and online news site, Rappler Philippines, continues to gain traction and support after Solicitor General Jose C. Calida, the government’s top lawyer, made good with his warning that he would ask the Supreme Court (SC) to void the agreement “for being violative of the Constitution and other laws, not to mention its being onerous to the government and the Republic.”

On Monday, March 7, 2022, representatives from the OSG went to the SC to file the petition, formally asking the highest court to void the agreement the poll body and Rappler signed last February 24, 2022 and for the immediate issuance of a temporary restraining order (TRO).

The event is an unprecedented one, as the government’s chief lawyer sues one of its statutory clients ultimately in the interest of preserving the integrity of the country’s elections which is just two months away.

The day the MOA was signed, the NPC, one of the country’s oldest but biggest organization of active members of the press, sent a protest letter to the COMELEC urging it to rescind the agreement on the ground that Rappler is a foreign-funded media entity and that it has a “spotty record” when it comes to objectivity and credibility.

The NPC stressed that owing to these facts, the MOA would negate the poll body’s own claim for the country to have a “clean, credible, honest and transparent” elections this coming May 9, 2022.

“While we respect the COMELEC’s right to partner with anyone in order to ensure that the coming political exercise is ‘clean, credible, honest and transparent,’ we believe that your choice of Rappler as a ‘valuable partner’ in the dissemination of ‘truthful information’ is a contradiction that is unacceptable to most Filipinos,” the NPC told the poll body.

On the part of the OSG, Calida last February 28, 2022, urged the COMELEC to rescind the MOA within five days from receipt of its letter, or until March 4, 2022, otherwise it would be compelled to petition the court to void the deal in the OSG’s role as “tribune of the people.”

It is primarily based on this fact that the MOA violates the constitutional and statutory proscription against foreign interference in the country’s elections, the OSG argues in its Petition. Rappler’s interference pursuant to the MOA comes in various forms.

Specifically, COMELEC has essentially “co-shared” with Rappler its power to decide on all questions affecting elections pursuant to Part I, Paragraph 1 (b) of the MOA. This is in clear usurpation of its sole power to decide on such questions under Section 2 (3), Article IX-C of the Constitution. Part I, Paragraph 5 of the MOA authorized Rappler to alert COMELEC on any election-related posts in social media and with the sole discretion to determine what it deems “false, misleading and harmful information.” Such power granted by COMELEC in favor of Rappler clearly constitutes prior restraint on freedom of speech and of expression.

The MOA likewise breeds unconstitutional incursion into an individual’s right to privacy, as Rappler was granted access to key information and confidential data of registered voters absent any proper and narrowly focused safeguards on the retrieval, use, and storage of such data. Finally, Part II paragraph 3 of the MOA grants to Rappler unqualified access to “data of untransmitted votes to all the canvassing centers due to lowering of threshold, and such other technical issues in the Automated Elections System,” without any safeguards on how the COMELEC or Rappler will protect the sanctity of the untransmitted votes. The endless possibility here is that Rappler may control any election narrative that suits the agenda of Rappler’s foreign owners which will not be for the benefit of the Filipino people. The COMELEC has wittingly lent credence to Rappler’s story line about the Philippine elections due to Rappler’s unbridled rights under the MOA.

Collectively, these powers granted to Rappler constitute “taking part or influencing in any manner in any election” within the prohibition set forth in Section 81, Article X of the Omnibus Election Code.

It is the OSG’s position that the nation’s future is at risk for the COMELEC erroneously chose to partner with a foreign controlled media company whose license was duly revoked in 2018, and dangerously allowed this pseudo media company to proactively influence the 2022 election. Rappler is enmeshed in various criminal cases such as Cybercrime, violation of the Anti-Dummy Law, violation of the Securities Regulation Code, and several Tax Evasion Cases and Tax Violations. Rappler’s President and CEO Maria Ressa has been convicted of Cybercrime, a crime that involves moral turpitude. Indeed, the National Press Club of the Philippines properly called out Rappler’s authority to fact- check election-related posts by any citizen due to its “spotty record when it comes to dissemination of ‘truthful information’ considering its record of gross bias in its reportage that resulted to its current legal woes.”

In separate replies to the NPC and the OSG, the COMELEC insisted on continuing with the MOA.

In its letter to the NPC dated March 1, 2022, COMELEC spokesperson, Dir. James Jimenez, claimed that since the legal cases filed against Rappler have yet to be decided “with finality,” then “technically,” there is no legal basis preventing the poll body to enter into an agreement with Rappler.

Rappler’s corporate registration has been cancelled by the Securities and Exchange Commission (SEC) in 2018 after it was confirmed of getting funding from foreigners despite being banned by the Constitution.

On the other hand, its chief executive, Maria Ressa, was convicted for biased reporting or cyber-libel by a Manila court in June 2020. Both cases are under appeal.

The NPC, in a follow-up letter to the poll body last March 3, 2022, also called for the release of the MOA “in the spirit of transparency and public accountability,” but to no avail.

Calida, in his statement, noted that in reply to his warning, the COMELEC “feigned ignorance” of the legal reasons set forth by the OSG to rescind the MOA.

“Regrettably, up to this time, despite the OSG’s advice that the MOA is void and illegal, the COMELEC still chose to not rescind the MOA,” Calida said.

“Every Filipino deserves and aspires for a free, orderly, honest, peaceful, and credible elections.

“However, these constitutional goals cannot be attained if the COMELEC is allowed to continue its void and unconstitutional partnership with Rappler,” Calida averred.

In filing the petition, the OSG urged the Supreme Court to “exercise its constitutional mandate to stop the numerous violations of the 1987 Constitution and other laws in the execution of the Rappler-COMELEC MOA and to immediately issue a temporary restraining order.”

“It is beyond belief that COMELEC has allowed a foreign non-registered entity to interfere the conduct of the country’s elections,” the OSG added.

The Solicitor General’s petition avers that even if Rappler were treated as an existing corporation, it is a foreign mass media entity managed by an American citizen and whose operations are funded and/or controlled by foreign entities that include Omidyar Network Fund L.L.C.

“It is primarily based on this fact that the MOA violates the constitutional and statutory proscription against foreign interference in the country’s elections,” the OSG argues in its petition.

Meanwhile, in a ‘Manifesto for Unity, Peaceful and Honest Election’ released on March 7, 2022, 235 former officers of the Armed Forces (AFP), Philippine National Police (PNP) and the Philippine Coast Guard (PCG) who had served in government in various capacities also showed their support to the petitions filed by the OSG.

“We disapprove the partnership entered into by COMELEC with Rappler for fact-checking, poll-related content production, and voters awareness promotion during the election season.

“As stated by the Office of the Solicitor General (OSG), the People’s Lawyer, such arrangement is encroaching the powers and rights of COMELEC.

“Moreover, this arrangement endangers the credibility and integrity of the electoral process and puts the will of the people at risk. We call upon COMELEC to immediately rescind (the MOA),” the group said.

Among the prominent personalities who signed the manifesto include, Ambassador/VADM Ernesto de Leon; Undersecretary Abraham Puruganan; former customs commissioner Nicanor Faeldon; RADM Rodolfo R. Rabago; NBI Regional Director N. Silvino Cinches; LTGEN Raul S. Urgello; LTGEN Edgardo V. Espinosa; and, LTGEN Romeo V. Poquiz

Solicitor General Calida emphasized the urgency to restrain Rappler, as there are 63 days left before the May 9, 2022 elections. As a matter of fact, the COMELEC Presidential & Vice Presidential debates are set on March 19, 2022 where foreign funded Rappler must not be allowed to interfere or get involved

Every Filipino deserves and aspires for a free, orderly, honest, peaceful, and credible elections. However, these constitutional goals cannot be attained if the COMELEC is allowed to continue its void and unconstitutional partnership with Rappler. The Rappler-COMELEC MOA must be declared null and void.

Solicitor General Calida asserts: “Rappler cannot act as king, priest, and noble—all at the same time—forcibly feeding the Filipinos what information it thinks is fact!”