The ‘Kill BBM’ charge is rubbish, legally and commonsensically

AT 2:29 a.m. on Nov. 23, 2024, Zuleika Lopez — Vice President Sara Duterte’s chief of staff and close personal friend of over two decades — was found vomiting and shaking in a House of Representatives detention room, in the throes of what her doctors would later diagnose as acute stress disorder.

Hours earlier, the Marcos-controlled House Committee on Good Government and Public Accountability had ordered Lopez detained for contempt for not “fully cooperating with the committee,” and later directed that she be transferred not to an ordinary congressional holding room, but to the Correctional Institution for Women in Mandaluyong, the prison where convicted female criminals serve out their sentences.

In desperation, Sara Duterte physically blocked the transfer, introduced herself not as the vice president but as Lopez’s lawyer, and refused to leave the premises. She called it, bluntly, attempted homicide. It was the House committee’s attempt to get Lopez to implicate her in some imagined crime. It was also a message that they could do what they wanted even if she was the second most powerful official in the land.

Hours later, in an anguished late-night press conference, Sara said she told an assassin: “Kapag pinatay ako, patayin mo si BBM, si Liza Araneta at si Martin Romualdez (If I am killed, kill BBM, Liza Araneta and Martin Romualdez).”

That is the full picture. And once you see the full picture, the fourth article of impeachment against Sara — that this was a serious, criminal threat against the life of the president — collapses under its own weight.

Let us be clear about what actually happened, and what the law actually requires. This was conditional, not an instruction to kill anyone.

The statement was not “go kill BBM.” It was “if I am killed, go kill BBM.” That single word — “if” — is the entire case, and the prosecution has never grappled with it. A conditional statement contingent on the speaker’s own death is not a plan. It is not an order. It is what lawyers call a contingent declaration — a warning meant to deter one’s own assassination, not to bring one about. The fact is, Sara was not saying she intended to have Marcos killed. She was saying that if someone killed her, retaliation would follow — a statement of fear and defiance, even desperation in the belief that her life and even that of her chief-of-staff, was in danger, not a criminal design against the president.

Those of us who’ve witnessed passionate quarrels would be familiar with the genre of Sara’s “threats”: “If you kill me, my family will hunt you down.”

Jurisprudence

Article 282 of the Revised Penal Code punishes a person who threatens another with the infliction of a wrong amounting to a crime. But Philippine jurisprudence has long held that grave threats require that the threat be made seriously and deliberately, and not words uttered in a fit of passion, distress and/or emotional outburst. The Supreme Court has repeatedly distinguished between criminal intent and the excited utterances of a person under extreme emotional strain.

Sara’s statement was made minutes after watching her closest aide being dragged to a facility for convicted felons, and after she herself had physically tried — and failed — to stop it. This is not the calm, calculated environment in which criminal intent is presumed. It is the definition of a person in extremis.

There is a famous American jurisprudence on this issue, which Philippine courts routinely draw upon for free-expression analysis, that is instructive here. In Watts v. United States, 394 US 705 (1969), an 18-year-old anti-war protester at a political rally declared: “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” The US government prosecuted him for threatening the president.

The US Supreme Court reversed, holding that the statement was “political hyperbole” and not a “true threat,” precisely because of its conditional structure and the charged, emotional context of a political demonstration. The court warned that criminal law must give “breathing space” to overheated rhetoric in moments of political passion.

Sara’s statement, like Watts’, was explicitly conditional. It was made not at a rally but under conditions of far greater personal duress — watching her closest friend hauled to a women’s penitentiary in the middle of the night. If a conditional statement made at a political rally about a sitting president was ruled protected hyperbole, on what legal basis does a Philippine court now treat a similar conditional statement, made by a person who had just witnessed what she believed was an attempt on her close friend’s life and had credible reason to fear a plot against her own — as a deliberate, punishable threat? The prosecution has never answered this question because it cannot.

Enrile

In fact, Marcos’ own chief presidential legal counsel, the late Juan Ponce Enrile, was the first lawyer to raise this point. On the same day (Feb, 13, 2025) that the National Bureau of Investigation (NBI) filed its complaints on this charge (“for grave threats and inciting to sedition”), Enrile told reporters as well as stated in a post on his Facebook page: “Although no criminal charge could be made at this time against Sara for her aforesaid statement because it is conditional, care must be taken by both sides to prevent evil third parties from taking advantage of it for their personal benefits, whatever these are.” By third parties, Enrile was obviously referring to Marcos fanatics who thought this could be an impeachment charge. More than a year after the NBI filed its complaint, which the Justice department prosecutes or dismisses, has not acted on it.

Virginia v. Black, 538 US 343 (2003) reinforces the same principle: The Constitution protects even offensive, alarming political expression and only unprotected “true threats” — statements where the speaker means to communicate a serious intent to commit unlawful violence against a particular target — fall outside that protection. Context, intent and the reasonable listener’s understanding are the decisive factors, not the isolated words themselves. Under both American and Philippine legal traditions, the decisive issue is never simply the words spoken — it is the context, the intent and how a reasonable person would have understood them at that moment. And the context here is inescapable: a grieving, frightened woman, hours after witnessing what she called an attempt on her closest friend’s life, and amid what she has publicly and repeatedly said was credible intelligence of a campaign to remove her “by any means.”

Here is what should end this charge entirely: The NBI’s own senior agent, John Mark Calilung — the prosecution’s star witness — admitted under cross-examination that he had no personal knowledge of any alleged assassin, because he was tasked only with authenticating the video. No hitman has ever been identified, he testified. No contract has ever been produced. And most tellingly of all, President Marcos, his wife, ex-speaker Martin Romualdez, the supposed intended victims, have never filed any complaints.

If they truly believed their lives were in danger from a serious, deliberate threat, why have they never sworn to that fact before any prosecutor? Indeed, Marcos and Romualdez instead used their powerful platforms — the former in a televised statement, the latter at the start of a session of the House of Representatives — to make epideictic, emotional speeches that people should be outraged over Sara for her threats.

Convinced

An indication that even Duterte-haters among the senators were being convinced that Sara’s threat was mere hyperbole driven by an emotional outburst, Sen. Risa Hontiveros asked the lead prosecutor at the hearing: “Counsel, none of these statements are proof that the vice president actually contracted an assassin or hired one. Why are these acts impeachable?”

The prosecution lawyer Virgil Ligutan replied in a way that weakened the charges. He said Sara’s statements “may not actually 100 percent prove that she, in fact, contracted an assassin to kill the president.” He said the videos were presented not to prove that a crime was committed, but merely to establish “intent and state of mind.”

That is a mind-boggling admission. The prosecution is telling the Senate: We cannot prove that a crime occurred; we can only show you a state of mind. But Sara’s state of mind could only be rationally explained as one anguished upon seeing her chief-of-staff hauled to a women’s prison, and her own helplessness to prevent it, even if she was the vice president of the Republic. Her state of mind could also contain the fear that her chief-of-staff’s detention was a step in her own assassination by Marcos’ killers.

The truth is simple: Sara’s Nov. 23 outburst was the anguished, conditional cry of a woman who believed — with reason — that her friend’s life and her own were in danger. Should she have just dismissed the PNP chief Rommel Marbil’s order withdrawing, without informing her, the 75 policemen from her security detail? It was not a serious, deliberate threat under Philippine law. How the hell could this charge be “betrayal of public trust” or “a high crime” — the Constitution’s requirements for removing the highest officials of the land.

The senator-judges, except for the Marcos senators who have never gone through a period of being severely oppressed, most likely sympathized with Sara’s plight, during which her emotional outburst against the Marcoses was merely psychological escape valves for her. There is no crime there. It is certainly not grounds for removing a vice president. Going by her continued high trust and approval ratings, Filipinos have not taken those “threats” as diminishing not by an iota of her stature as their probable and worthy next leader. In fact, the oppressed masses even admired her for openly challenging the powers-that-be.

And of course, the reality is so obvious, if we just stick to common sense: If it was a real threat, why would Sara announce it publicly, for the targets to prepare against?

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The ‘Kill BBM’ charge is rubbish, legally and commonsensically
Source: Breaking News PH