In Defense of Freedoms


By now, too, it should be public knowledge that because I have seen the trailer, I was able to form a judgment that the controversial film is nothing but garbage. But unless I viewed it, I would not know what is in it. Hence, I would not be able to opine, as I do now, that it is trash.

This is the foundation of freedom of expression. It is only in the market place of ideas that we can discern what the truth is. It is only here that we are able to form opinions which, taken collectively, becomes the ever powerful public opinion.

The ground invoked by the UP administration in seeking to cancel the showing of the trailer was the safety of the students. There were text messages circulating that a group of rallyist consisting of no less than a thousand people were on their way to the UP campus in Diliman to protest the showing. The text also said that the UP police force does not have the required manpower to maintain peace and order in case the demonstration should push through.

Of course anyone can resort to peaceful rallies to make their beliefs known. As held by our Court in Primicias vs. Fugoso, our streets have since time immemorial been held in trust for use of the people, among others, to make public their grievances. But should this be a basis to limit two important democratic freedoms, to wit, the freedom of expression and academic freedom? My decision to proceed with film showing was my personal conviction on the matter: Certainly not!

 I concede that freedom of expression is not absolute. It is limited primarily where there is a clear and present danger that the state has a right to prevent. The concern was that the same kind of hysteria that was shown against the film in Libya and Egypt may erupt in the Philippines were I to show the film in class. But as was borne by our experience after the film was shown, there was absolutely no untoward incident that happened.

 In the first place, the showing was in a classroom in a class on the Bill of Rights. What better way to teach the nuances of freedom of expression but allow the students to judge for themselves whether to accept the ideas expressed by a controversial film? Moreover, the fact that the UP administration sought to stop the showing of the film was a pedagogical tool on the true nature of rights: They are not given in a silver platter.

 I concede that a further exception to protected speech is hate speech. In Chaplin ski v. New Hampshire, the US Supreme Court ruled that there are “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include x x x insulting or ‘fighting’ words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The test according to the Court, is “what men of common intelligence would understand would be words likely to cause an average addressee to fight . . .”

 The problem with hate speech as a limitation to freedom of speech is that you need hate speech legislation to begin with. In the absence of such, them maxim “nullum crimen, nulla puena, sine legue” apply. There can be no crime where there is no law making conduct criminal. In the absence of Philippine legislation on hate speech, freedom of expression cannot be infringed on this basis.

Unless there be any misunderstanding, I do not endorse the message of film as in fact, I consider it to be garbage. It is however the right to see it so that I can make my own judgment that is protected by the Constitution.

 And to those who say I did it in support of election, let me be very clear: I am not standing for any elective position. Full stop.

I did it because like Justice Homes, I believe in freedom of expression: “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market…”

Showing of Film Trailer of Innocence of Muslims to push through despite Chancellor’s prohibition


I have just learned that the Chancellor of UP Diliman has issued an order forbidding the showing of the trailer of the movie “Innocence of Muslims”. That order however is in direct contravention of my academic freedom and freedom of expression. It is in the nature of prior restraint. I will hence still show the movie trailer as scheduled today at 6:30pm at rm 305 of Malcolm Hall, UP College of Law

I am showing it in my class on Constitutional Law 2 where we are discussing freedom of expression, freedom of religion and ironically, even academic freedom which we are scheduled to start with today.

My license to show the trailer is granted by the Constitution and Human Rights Law. It falls under both academic freedom and freedom of expression. Hence, the Chancellor’s prohibition is tantamount to exceeding his jurisdiction amounting to lack of jurisdiction. We are viewing the film clip in connection with our ongoing study on freedom of expression .No order from the Chancellor or from anyone else can infringe on these rights.  I am showing it because unless we see it, we will not know what is depicted in the film. Unless we see it, we cannot make a judgment on it. This is why there is a constitutional commitment to this freedom. It is only in the free marketplace of ideas that we can discern the truth and form our individual opinions.

I warn those who will try to prevent me from discharging my functions as an academic and as a lawyer that I will hold them civilly and criminally liable.

I will persist with the showing to uphold the freedom which was the first to be suppressed by the dictatorship , which we are painfully recalling today.This is irony.

The public is welcome.

Cybercrimes and Freedom of Expression


Despite the view of the United Nations Committee on Human Rights that Philippine criminal libel is contrary to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression, Congress and President Benigno Aquino III still enacted the Cybercrime Prevention Law which, among other things, added electronic libel as a new criminal offense.

Worse, this new law increased the penalty for cyber libel to prision mayor from the current prision correctional provided under the Revised Penal Code.

This means that electronic libel is now punished with imprisonment from six years and one day to up to 12 years, while those convicted for ordinary libel under the RPC are subject to imprisonment only from six months and one day to four years and two months. And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than six months and one day, anyone convicted for cyber libel will inevitably serve a prison term.

Since the Philippines leads the rest of the world in terms of Facebook and Twitter usage, this means that unlike ordinary libel complaints which are oftentimes brought against printed newspapers -given the element of publication, any user of these leading social media tools is now liable for prosecution. The fact that an allegedly libelous writing appeared on the Internet is already sufficient to prove the element of publication.

The new Cybercrime law is an outright defiance of the UN Human Rights Committee View in the case of Alexander Adonis vs. Republic of the Philippines.

In that View, the UNHRC declared that Philippine libel law under the RPC contravenes freedom of expression on two counts: one, it is a disproportionate means by which to achieve its avowed goal of protecting the privacy of private persons; and two, because there is an alternative in the form of civil libel, or the payment of damages.

The UN HCR also took the view that our libel in the Philippines, because it does not recognize truth as a defense, is additionally defective on this ground.

While the View of the UNHRC is this instance is non-binding, the Philippines nonetheless is under an obligation to heed it because of the maxim “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The UN Human Rights Committee Views, since the membership of the body consist of leading experts in human rights, are accepted as authoritative on the issue of states compliance with their obligations under the ICCPR.

Simply put, the view against our libel law is very strong evidence of breach of a state obligation under the ICCPR And instead of heeding the UN’s call to review its existing libel law, Congress and President Aquino appeared to have slammed the body by enacting an even more draconian legislation against cyber libel.

Our constitutional commitment to freedom of expression has long been recognized. Justice Holmes, for instance, wrote: “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .”

The commitment exists because it is only through freedom of expression that we are able to discern the truth and able to fiscalize despotic regimes: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.

By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas- the internet. Prior to this law, it is ironic that the Philippines was even cited by the United Nations for not interfering with the internet. The law is a testament to the reality that despite the overwhelming mandate given to this administration, coupled with its unprecedented public approval ratings, it continues to be insecure and unable to compete in the market place of ideas.

We will see the Aquino administration in court on this one. And we will prevail. For unlike other laws that enjoy the presumption of regularity, this cybercrime law, insofar as it infringes on freedom of expression, will come to court with a very heavy presumption of unconstitutionality.

There can be nothing sadder than suing the son of icons of democracy for infringement into a cherished right.

Whistleblowers


What do Jun Lozada, Sandra Cam, Vidal Doble, and Primitivo Mijares have in common? They’re all whistleblowers whose guts enabled the nation to know about illegalities happening either in their offices or in their line of business.

Jun Lozada was of course the trusted associate of former National Economic and Development Authority Secretary-General Romulo Neri who was privy to acts of corruption in projects that passed the scrutiny of the NEDA. He is remembered as the one asked by Neri to inform proponents of the botched NBN-ZTE deal to “moderate their greed”. Such moderation was required apparently because the amount of “tong-pats” or padding for the project was equivalent to 100 percent of the cost of the proposed network.

Sandra Cam was the one who called our attention to presidential son Mikey Arroyo’s benefitting from the illegal numbers game, jueteng. Through her testimony, we knew how the incumbent representative of security guards in Congress and former presidential son received proceeds from jueteng in the august hall of Congress.

Vidal Doble for his part risked life and limb when he told the nation that as an intelligence officer, he had the original of the “Hello Garci” recordings – authenticating hence what we suspected all along: that President Gloria Arroyo cheated in the 2004 presidential election.

Primitivo Mijares, on the other hand, was a close associate of the dictator Ferdinand Marcos. He wrote what has become a bestseller book, “the conjugal dictatorship”, detailing the excesses of the former dictator and his spouse. Without a doubt, the book opened the minds of many to abuses of the dictatorship. Mijares, and later, one of his sons, were later killed. Until today, no one has been charged, much more punished, for these murders.

From our experience with these individuals, we know the inherent value of whistleblowers. More often than not, shenanigans in government commit crimes that only they and their close associates know about. Unless those in the know actually surface and detail what they know, the public would not be aware of these infractions.

Whistleblowers though, unlike state witnesses, currently have no protection in this country. Under the Witness Protection Program or under the Rules of Court provision on discharge of state witnesses, witnesses whose testimonies are indispensable in proving the commission of a crime, provided they do not appear to be the guiltiest, are entitled to testimonial immunity. This means that their admission into the WPP or their discharge as state witnesses comes with an incentive in the form of the state desisting from holding them responsible for the crimes that they would be helping to prove in court.

Whistleblowers, on the other hand, because their testimonies oftentimes are not indispensible or because of the secrecy, they appear to be among the guiltiest, cannot qualify for the WPP or for discharge as state witnesses. This explains why the Ombudsman has recently charged Jun Lozada with cases for corruption involving other transactions in the government office that he once headed. And yet, quite unfairly for whistleblowers, they do the exact same thing that those accorded immunity by our existing rules: they reveal the truth in order to give effect to public accountability.

The international trend today recognizes the need to provide protection to whistleblowers distinct from protection given to witnesses or discharge accorded to state witnesses. For instance, the UN Convention on Corruption calls on countries to “provide appropriate measures to protect” whistleblowers. Similar provisions are found in the European Union’s Civil and Criminal Law Conventions on Corruption, the African Union Convention on Corruption and the Latin American Convention on Corruption.

Likewise, an increasing number of countries have now passed legislation according both immunity and protection to whistle blowers. Furthermore, Transparency International’s Recommended Principles for Whistleblowing Legislation further asks states to incentivize whistle blowing and to provide rewards to those who will be whistleblowers.

In the Philippines, Senator Miriam Defensor-Santiago has a pending bill to provide these badly needed protection and incentives to whistleblowers. According to the good senator:

“Whistleblowers automatically expect retaliation for their honesty. They are usually accused of being malcontents trying to profit from their accusations. The fear generated by retaliations creates a chilling effect on the willingness of people to come forward and expose wrongdoing,”

Let us pass this bill into law soon.

UP Law 1990 and Judicial Affidavits


You have to give it to Mark Meruenas of GMA news online. Of the ten or so reporters covering the Maguindanao massacre, only he reported that Chief Justice Maria Lourdes Sereno’s latest judicial reform, the use of judicial affidavits, has been practiced in the controversial case involving the gruesome death of 58 victims. In a meeting between counsels that was presided by Hon. Jocelyn Solis-Reyes of the Regional Trial Court of Quezon City, it was proposed and agreed upon by all that in lieu of direct examinations, the majority of 58 private complainants, whose testimony would be to further the civil action deemed filed with the 57 counts of murder, would be testifying through judicial affidavits. These are affidavits in a question-and-answer format detailing what the lawyers and the witnesses would have asked and answered on direct examination. We did not object to the resort to these affidavits. We insisted, though, that at least five witnesses from the three major groups of private complainants represented by the private prosecutors should be allowed to testify under the traditional manner of direct testimonies. We insisted on this to show the human aspect of how the witnesses coped with the loss of their loved ones under the gruesome circumstances that claimed their lives. The affidavits, because they are what they are—almost a reproduction of what the stenographic notes would have looked like if they were allowed to testify on direct— simply does not show the pain and suffering that the victims have suffered.

An obvious advantage of the use of judicial affidavits is that it has facilitated the speedier testimonies of the private complainants. In fact, of the 17 private complainants whom we represent, only one has to take the stand. Another, Myrna Reblando, who has made public her asylum bid in Hong Kong, still has to conclude with her testimony on the issue of damages. Almost all of the private complainants have already testified. Unless I am mistaken, there are now only less than 10 private complainants who still have to testify.

An obvious disadvantage though of the use of these affidavits is that it puts a lawyer who knows what questions to ask on direct examination at a disadvantage. This is because the affidavits are a Godsend to those who do not know what questions to ask. How? Since the questions are now in written form, then all the questions should begin with what, where, when and how. This will do away with objections on the basis that a question is leading.

There are other disadvantages to the use of these affidavits. For instance, it will diminish the power of the judge to assess the credibility of witnesses. Normally, a Judge will either believe or ignore the weight of a testimony depending on the demeanor of the witness primarily on direct examination. This will now be played down. Further, as was our experience in the Maguindanao massacre, these affidavits will minimize the outburst of emotion on the part of witnesses. This may impact on the amount of moral and exemplary damages that a private complainant may recover in a criminal case. Moral damages are awarded for the sorrow, fright and sleepless nights suffered by complainants; exemplary damages are those awarded to show others, by way of example, that similar conduct will not be countenanced by our Courts.

Despite these setbacks, I think the rule on the use of judicial affidavits will result in faster testimonies which will hopefully will reduce the average life of a case pending before our courts. A World Bank study concluded that each case takes around five years to be resolved by the Regional Trial Court and longer, seven years, in the Sandiganbayan.

While this was the first reform announced by the new chief justice. Credit for the innovation should also go to Senior Justice Antonio Carpio who headed the Committee on the Revision of the Rules of Court that recommended this. Credit should also go to the many individuals who worked with the American Bar Association Rule of Law initiative headed by Scott Ciment that pioneered in the use of these affidavits in a pilot program currently being conducted in the regional trial courts of Quezon City.

While the innovation itself is a reason to congratulate the Court, the manner by which it was announced -by my classmate, Deputy Court Administrator Raul Villanueva- is also reason to rejoice for those who know Raul. For while the Midas touch is gone, the light has finally arrived.

Kudos to the Supreme Court for this reform and to the new Court Communicator for judicial reforms! Go UP Law 1990!

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