UNITED NATIONS HUMAN RIGHTS COMMITTEE: PHILIPPINE CRIMINAL LIBEL LAW VIOLATES FREEDOM OF EXPRESSION


The Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights”, or freedom of expression. This was the View expressed by the Human Rights Committee in a View adopted last 26 October 2011 during the 103rd session of the UN Body. The Committee is a treaty monitoring body created by the Optional Protocol of the International Covenant on Civil and Political Rights. It has power to declare that a State party to the Convention is in breach of its obligations as provided in the Covenant.

The View was expressed in a complaint filed by Davao based broadcaster Alex Adonis who was jailed for more than two years pursuant to a conviction for libel in a complaint filed by former Speaker Prospero Nograles. In his radio broadcast, Adonis read and dramatized a newspaper report that then Congressman Nograles was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night with. Residents of Davao have since referred to the Nograles incident as the “burlesque king” incident. In a decision rendered by the Regional Trial Court of Davao, Adonis was sentenced to imprisonment from 5 months and one day to four years, six days and one day imprisonment. In the said decision, the local court concluded: “ the evidence was sufficient to prove the authors guilt beyond a reasonable doubt for a “malicious, arbitrary, abusive, irresponsible act of maligning the honor, reputation and good name of Congressman Nograles”.

After having served two years in prison, Adonis questioned the compatibility of libel with freedom of expression under Art 19 of the ICCPR. He argued, “the sanction of imprisonment for libel  fails to meet the standard of necessity and reasonableness. Imprisonment is unnecessary since there are other effective means available for protection for the rights of others. He also argued that it was not a reasonable restriction because it does not admit proof of truth as a complete defense but only allows it under very restricted conditions.” He also questioned his conviction becasue he was tried  absentia when his counsel of record at the RTC withdrew from the case without informing him accordingly.

In ruling in favor of Adonis, the UN Body ruled that Adonis rights were violated when one; he was tried in absentia without proof that the court of his lawyer’s withdrawal notified him. Said the Committee: … the State party does not provide evidence showing that the Court sought to notify the author of the withdrawal of his lawyer, and the decision is unclear whether another counsel was appointed to represent the author”. Moreover, in ruling that Philippine criminal libel law was inconsistent with freedom of expression, the Committee recalled its General Comment No. 34 which reads: “Defamations laws should not   x x x stifle freedom of expression. … Penal defamation laws should include defense of truth.  x x” comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without ,malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. State parties should consider the decriminalization of libel”

“This a very big win for freedom of expression”, remarked Prof. Harry Roque of the UP College of Law and the Center of international law who acted as counsel for Adonis in the UN. “We expect the Philippine government under PNOY to comply with the Committee’s view and proceed to decriminalize libel and to provide reparations to Adonis for time he spent in prison. No one should be imprisoned for expressing his or her views, full stop”.

The Committee ordered the Philippine government to “provide the author with an effective remedy, including adequate compensation for time served in prison, The State is also under obligation to take steps to prevent similar violations occurring in the future”.

Two Committee members dissented only insofar as the Committee did not expressly order the Philippine government to decriminalize libel. Fabian Omar Salvioli argued that pursuant to Art 2.2 of the Covenant, the “State party undertakes to take all necessary steps, in accordance with constitutional processes, to give effect to right recognized in the Convention”. Hence, by not ordering the repeal of Philippine libel laws, “ the Committee has missed a clear opportunity expressly and unambiguously to indicate to the State party that it must change its criminal law.

The Adonis View is the first view of the UN Committee on H

Alex Adonis (in blue) in court

uman Rights that criminal liable infringes on freedom of expression

The Senate is higher than the Supreme Court


Thank goodness Senator Miriam Defensor-Santiago is back, albeit temporarily. Fault her for everything else but the senator certainly knows her law. Since the impeachment of Chief Justice Renato Corona started, speculations have abounded on whether the Supreme Court will intervene and order its halt since there are at least seven petitions pending before it to enjoin the impeachment trial. Also, debates abound in connection with Article 1 of the impeachment complaint on whether the Senate may review decisions of the Supreme Court, notably, that of De Castro v. Judicial and Bar Council that legitimized Corona’s midnight appointment.In one take at the podium, Santiago educated the bar, the bench and the public: “The Senate, as an impeachment court, is higher than the Supreme Court   x x x  (it) should be called the Presidential High Court of Impeachment, It is “not subordinate to the Supreme Court, given the constitutional phrase, “exclusive power to try and decide” on the impeachment of the chief justice.     x x x You might be supreme but we are high.”I myself was a party in case that sought to restrain an earlier attempt to impeach a Chief Justice of the Supreme Court, Hilario Davide. While the case does not bear our name in its title, having been beaten in its filing by someone else who filed a six-page petition literally hours before we filed our 50-page opus, we were convinced then, as we still are today, that the expanded certiorari power of the Court, or the power to declare any act of any other branch or instrumentality of government as null and void when contrary to the Constitution and existing laws, vests in all citizens a standing to enforce a public right. We were sustained. Not only did the Court say that we had standing to question the impeachment of then CJ Davide as a matter of enforcement of a public right; we were also sustained on the merits of the case. That is, that initiation of an impeachment complaint for reckoning of the one year prohibition on the filing of more than one impeachment complaint was reckoned from date of filing and referral to the House Committee of Justice. The congressmen then insisted that it was from the date when the Justice Committee came up with its recommendation to the Plenary either to dismiss or proceed with the articles of impeachment.

During oral argumentation, my first time then, I argued simply that if we were to go by the House construction, what happens when the plenary rejects the findings of the Committee and refers the matter back to them? Even if the act of the plenary took more than one year, the impeachable officer may be liable to defend himself more than once in a year. I also argued that the rationale behind the bar was to discourage nuisance complaints as otherwise, our impeachable officers may end up just defending themselves from impeachment all the time.

But what the Supreme Court has not resolved until today is whether initiation is by mere filing alone of a complaint — such that a frivolous complaint ala Oliver Lozano’s against GMA- could preempt a more substantial impeachment complaint. Unfortunately, the Supreme Court dismissed two pending petitions in this regard, including one filed by then-Rep Noynoy Aquino. We would now have to wait for the opportune case for a resolution of this issue.

Meanwhile, despite the fact that the Supreme Court has not acted on any of the pending petitions to restrain the on-going trial, it could still do so. It would not look good and neither would it be constitutional. The difference between our petition then in the Davide impeachment and the petitions today is that the Senate now has already assumed jurisdiction over the impeachment complaint. In our case, we restrained the transmittal of the complaint to the Senate and succeeded. Hence, Senator Santiago was again correct — the Senate now is the sole and only judge of whether CJ Corona stays or goes.

She was also correct in arguing that the Senate as an impeachment court is higher than the Supreme Court. My law partner, Joel Butuyan, very early on argued: if it is true that the impeachment court cannot inquire into the constitutionality of decisions penned by impeachable officers, why did the Constitution vest it with the power to try officials for ”culpable violations of the Constitution?” This has prompted Deputy Speaker  Raul Daza, the lead pubic prosecutor for Article 1, to argue as Senator Santiago has, that the Senate sitting as an impeachment court is akin to a Constitutional Court and is hence, above the Supreme Court on the issue of a public officer’s fitness tor remain in office.

Thank goodness for Senator Miriam Defensor-Santiago. She will be missed when she goes to The Hague. Despots, mass murderers, criminals against humanity and genociders – beware. She’s coming for you.

SALN


All public officers are required to file their Statement of Assets, Liabilities and Net Worth on or before 30 April of every year. This is provided by RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. The rationale for the filing of the same is to enable the public to find out if there has been an appreciable increase in the net worth of a public officer on a year-to-year basis. In turn, under the provisions of the Unexplained Wealth Act, any property that appears to be disproportionate to the annual salary of a public officer is prima facie presumed to be ill gotten and is subject to forfeiture in favor of the state. This is one very rare instance where the law presumes property of a public officer as ill-gotten. Cleary, the requirement to file the SALN is complimentary to the intent of the law to deprive pubic officers of the fruits of graft and other corrupt practices. It is a tool to determine if the net worth of a public officer is within his means as a public officer.I am sure that this is why the prosecution panel in the impeachment of Chief Justice Renato Corona decided to begin introduction of their evidence on Article 2 instead of Article 1 of the impeachment complaint. Stated differently, since the public prosecutors have told the nation that the Chief Justice has very valuable real estate registered in his name, property whose value appears to be beyond his annual income as an Associate Justice and later, as Chief Justice of the Supreme Court, these may be deemed ill-gotten. One of the grounds for the Chief Justice’s impeachment, in turn, is graft and corruption.Moreover, the filing of the same is mandatory and required to be under oath. Any failure to file the same, or a failure to declare all assets owned by the public officer in the same, will amount to a violation of a public officer’s duty to uphold the laws of the land.  This is also betrayal of the public trust. This is because a public office is a public trust and a public officer’s breach of an existing law is also a breach of the trust reposed in the public officer.

The Constitution further requires that the SALN “shall be disclosed to the public in the manner provided by law.” RA 6713 provides for the manner of public disclosure of a public officer’s SALN.  Section 8(C) of said law provides: “(C) Accessibility of documents. — (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours. x x x“(2) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law. x x x (4) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement.”

The crux of the controversy is while the Chief Justice maintains that he has filed his SALN according to law, no one, except for the Court Clerk of Court, has seen them. This is because in an attempt to guard against harassment, the Court, by an en banc resolution, has ruled that these SALN should not be made public and will only be released on “good grounds.”

A legal issue to be resolved by the Impeachment Court is whether the Chief Justice, relying on a court resolution, can claim immunity from Section 8C of the law as quoted above. The House prosecutors obviously believe that he cannot and the refusal to make such SALN public is already a violation of the law — hence, an impeachable offense, that of betrayal of public trust. Corona maintains otherwise.

But a startling event happened yesterday when the Clerk of Court of the Supreme Court refused to turn over Corona’s SALN to the Senate despite a subpoena issued for them. Obviously, much of Article 2 of the impeachment complaint may be proven by the production of Corona’s SALN’s in the custody of the Clerk of Court. But the Clerk, alleging that the Supreme Court as a co-equal branch of government with its own internal rules, initially refused, pleading that the Court en banc must give her authority to surrender them to the Senate.

A constitutional crisis was averted when Senate President Juan Ponce Enrile rightfully ordered the Clerk of Court to surrender the SALN to the Senate. If this is a portent of things to come, we’re bound to have many more potential constitutional crises in the course of this impeachment.

The lesson is clear: let us elect a President who will make responsible appointments particularly to the Judiciary. Never again should we allow a person with no mandate to govern. And by God, let’s make our elections clean and safe especially from high-tech cheats!

Revival of Pestano case made possible by Gutierrez ouster from Ombudsman – Roque


Philip PestanoThe re-opening of the Pestaño murder case  by the Ombudsman could not have happened had Merceditas Gutierrez remained at its helm, according to a lawyer for the parents of the slain Navy officer.
“We have information that Merceditas Gutierrez already had a prepared draft  dismissing with finality the complaint filed by our clients against the suspects thus denying  the  motion for reconsideration we filed on their behalf ,” said lawyer Harry Roque. “It’s a good thing Gutierrez resigned from office after she was impeached.”
Roque added: “When former justice Conchita Carpio-Morales took over at the Ombudsman, she immediately made a review of all the big cases Gutierrez had placed on the back burner. This case shows that sometimes it only takes the appointment of the right person  to the right position to turn things around.”
He challenged the Philippine Navy to take the opportunity to correct the egregious harm it has perpetuated for many years against the family of the slain Navy officer by cooperating with prosecutors in bringing its officers charged by Ombudsman Conchita Carpio-Morales before the Sandiganbayan for murder to the bars of justice.
The  Pestanos have accused the Philippine Navy of white-washing the case and making it appear that their beloved son committed a suicide just before his blood-soaked body was found in his stateroom at the cargo ship BRP Bacolod City on September 27, 1995. A suicide letter was also found near the body of Phillip Andrew Pestaño, then a Navy Ensign.
His family however rejected the suicide theory, pointing to many forensic evidence that told a different story. The Navy Ensign’s father Pepe also revealed that earlier, his son had confided to him about the illegal activities that has been happening on his ship and his plan to blew the whistle on his superiors responsible for these.
He praised the slain Navy officer’s family for having kept their faith through the long years of struggle for justice.
Roque noted that the Philippine Senate opened an investigation on the case after an investigate report  written by two reporters – Romel Bagares and Jerry Botial – was published by the Philippine Star. The report  revealed that the BRP Bacolod City was being used by Navy superiors for illegal logging and drug trafficking. The Senate would later on issue a joint committee report that blasted the suicide theory to smithereens.
“One of the two reporters , Romel Bagares, later on became a lawyer. In fact, he works as a senior  associate in my office and it was he who was approached by the Pestaños to help in the case  before the Ombudsman.”
Charged for murder were;
·         Navy Capt. Ricardo Ordoñez
·         Commander Reynaldo Lopez
·         Commander Alfrederick Alba
·         Lt. Commander Luidegar Casis
·         Lt. Commander Joselito Colico
·         Lt. Commander Ruben Roque
·         Machinery Repairman 2nd Class Sandy Miranda
·         Hospital Corpsman 2nd Class Welmenio Aquino
·         Petty Officer 1st Class Carlito Amoroso
·         and Petty Officer 2nd Class Mil Leonor Y. Igacasan.
·
Roque said some of the accused in the 16-year old murder case  are still in active service.
He said: “We have information that Commander Reynaldo Lopez  is now serving as Executive Officer of the Philippine Navy’s newest fighting ship, a decommissioned US Coastguard cutter renamed  BRP Gregorio Del Pilar.
Ordonez has since retired from the Navy; Alba and Casis are still on active duty but we do not know where they are currently assigned.  Ruben Roque has left the Navy – we suspect, at the behest of its top-brass – and is now living somewhere in the United States.  Colico has gone AWOL and hasn’t been heard from.  Amoroso, whom the family suspected to be the triggerman in the case, has also allegedly died  a few years ago under suspicious circumstances. As for the others we have no information about them.”

Can the Senate ever be a court?


The Bellagio where CJ Corona has a unitSome of our senators have to be reminded that while the Constitution refers to the Senate as an “impeachment court” for purposes of impeachment, this does not change the fact that: one, it is still the Senate, one of two houses of the legislative branch of government; and two, its members remain to be members of the Upper House, elected at large as representatives of the people. The phrase “impeachment court” should hence not be construed to mean that senators are fulfilling a judicial role, as in fact they are not part of the judiciary. It should only be construed to mean that after an impeachable officer has been impeached, it is the Senators who will decide the fate of the said officer; that is, whether said officer should be removed from office.

Hence, it is wrong for our senators to be donning judicial robes which—in all jurisdictions worldwide—are worn only by judges from the judicial branch of government. The practice in the United States, from which we patterned our rules on impeachment, does not include the donning of such robes. On the contrary, senators treat such impeachment proceedings as part of the daily chores of the Senate. And typical of jurisdictions with strong party systems, American senators almost always vote along party lines.

When the Senate thus decides the fate of these impeachable officers, its decision would not be judicial in nature. It will be a policy decision. Senator Antonio Trillanes hit the nail on the head when he declared that the Senate will decide the fate of Chief Justice Renato Corona on the basis of what is best for the country. Certainly, evidence presented by the parties cannot be ignored. But in the appreciation of this evidence, the rules of court, precisely because it is the Senate and not a court, is applicable only on a suppletory basis. It is still the interest of the country that should be the primordial consideration of the senators.

This is why I am alarmed that this early, the Senate leadership appears bent on conducting the impeachment proceeding as if it were a real court. For instance, it has said that it will gag the parties to the proceedings from commenting on the proceedings pursuant to the sub judice rule. This is glaring error. To begin with, the sub judice rule was developed as a tool to protect the objectivity of jurors in court proceedings. In jurisdiction where the guilt of the accused is adjudged by a jury of his peers consisting of ordinary individuals with no training on the rules of evidence, it was originally thought important to protect them from any and all information that may affect their appreciation of facts. Its application to jurisdictions with no jury systems such as ours, have been tempered. Judges after all, unlike ordinary individuals, are trained in both law and evidence. Judges hence are less likely to be affected by extraneous information. As held by a UK Court in Ref v. Duffy: “…A judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case. This, indeed, happens daily to judges on assize.”

But even in jurisdictions that still rely on the jury system, the constitutional dedication to freedom of expression as a human right has drastically affected the application of the sub judice rule. One decision of the European Court of Human Rights held: ‘Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them. This is all the more so where a public figure is involved, such as, in the present case, a former member of the Government. Such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large. “

Moreover, our own Supreme Court has ruled that contempt for violating the sub judice rule is now subject to the clear and present danger test: In Chavez v. Gonzalez, the Court ruled: “Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed  in  adjudging  whether  to restrain  freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing  violations  of law.  By all means, violations  of  law  should  be  vigorously  prosecuted  by  the State  for  they  breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free  speech  and  free  press,  a preferred right whose breach can lead  to  greater evils”(emphasis supplied).

In Corona’s motion to cite the public prosecutors in contempt, the question is: what clear and danger arose from the disclosure of the Chief Justice’s condominium units? Absolutely none.

Top

ANWAR IBRAHIM ACQUITTED


Courtroom with Anwar

ANWAR IBRAHIM ACQUITTED

Ref: Prof. Harry Roque +639175398096
Kuala Lampur, Malaysia.  In a surprise decision, the Kuala Lampur High Court acquitted Anwar Ibrahim from charges of sodomy. The verdict read by the Judge was promulgated at 9:21 AM and was greeted with jubilee by a crowd of at least 20,000 that gathered at the vicinity of the courthouse. At the Court room itself, Anwar appeared jubilant and took time out to thank his supporters gathered in room, including his defense legal team that includes a former UN Special Rapporteur on Independence of the Judges and Lawyers, Param Cumaraswamy, who himself earned the ire of Malaysian authorities when he referred to the Malay bench as being “corrupt”.
Anwar left his residence at  Segambut, a suburb of Kuala Lampur, at 8:00AM but arrived in the courtroom itself after 9. It took him around 30 minutes to get to the courtroom as a throng of admirers mobbed him as he made his way from his car to the courthouse, and then to the courtroom. The shower of adulation showed by Anwar’s supporters appeared to have overwhelmed his security details. Anwar and his family had to be surrounded by close friends and party mates in a make shift human chain to avoid being crashed by the throng of humanity that repeatedly chanted “reformasi”!
“Let us hope that the rule of law will prevail”, were the last words uttered by Ibrahim as he entered the court premises. Earlier, he told Filipino observer Fernando Pena of PDP-Laban that since he was expecting a conviction, he already had with him his toothbrush and medicines. Prior to today’s promulgation, Anwar spent six years in jail allegedly for misuse of power. A n ex-aide, Saiful Bukhari, with known strong ties with the incumbent Prime Miniser, Najib Razak, filed the latest charge for sodomy in 1998. Part of the prosecution evidence against him was DNA evidence that his supporters claimed were collected from him when he was then in detention.
In rendering an acquittal, the judge ruled that the DNA evidence offered by the Prosecution was not completely reliable. “Hence, the evidence against him is solely the uncorroborated testimony of the complainant alone”. This, the Judge found to be insufficient
At his home after the acquittal, Anwar declared: “What we witnessed today is the true spirit of people of people power that that we learned from the Filipino people”.
Anwar Ibrahim leads the PKR (People’s Justice Party), the largest opposition group challenging the administration party, UMNO. The latter has dominated Malaysian politics since 1957.
Ilham Marzuki of Selangor Foundation declared: “It’s the beginning of change and the beginning of the end for UMNO. They have overstayed their welcome”.#30#