ADONIS PETITION VS CYBERCRIMES LAW AMENDED


PETITION VS CYBERCRIMES LAW AMENDED

The Center for International law and the Southeast Asia Media Defense, counsels for Davao based broadcaster Alexander Adonis, amended yesterday their petition to have the recent Cybercrimes Prevention Act of 2012 declared unconstitutional. In their amended Petition, Centerlaw asked the Supreme Court to expressly declare Art. 355 of the Revised Penal Code providing for the crime of libel also to be unconstitutional. Previously, the Center asked the Court to declare only the provision of the Cybercrimes Prevention Law provision on libel as being unconstitutional.

Prof. H. Harry L. Roque, Jr  of  Centerlaw and the UP College of Law explained the rationale for the amendment:

“We’ve had to clarify that pursuant to the View of the  UN Human Rights Committee in Adonis vs. Republic of the Philippines, libel under the Revised Penal Code is contrary to freedom of expression. In its annual report this year on the Philippines, the UN Human Rights Committee also decried that instead of complying with this view and repeal Art 355 of the RPC, the Philippines even expanded the coverage of libel through the  Cyberprevention Act. Hence, its important to have both libel under the RPC and under the new law be declared as illegal., Prior to the amended petition, the petition only asked the Court to indirectly declare the ordinary crime of libel as unconstitutional by implication. Since Art. 355 was reproduced by way of reference in the definition of electronic libel with the additional element that its should have been published electronically, it is incumbent for the Court to also consider the issue of whether ordinary libel is constitutional. The amended was necessary since the law does not favor implied declarations of unconstitutionality”.

Alexander Adonis was detained fro three years upon being convicted for libel in a complaint filed by former Speaker Prospero Nograles. According to the United Nations, Philippine criminal libel is contrary to Art. 19 of the International Covenant on Civil and Political Rights because it is disproportionate to the ends that it seeks, that is, the protection of privacy of private individuals; and that there are an alternative in the form of civil libel.

Roque expressed the view that those whose right to privacy may be violated by the media after criminal libel is declared unconstitutional or repealed by a law of Congress can still have recourse to a civil case for damages and recourse to the media’s self-regulating mechanisms such as the Philippine Press Institute for the print media and the Kapisanan ng Brodkasters ng Pilipinas for radio and television.

The Adonis Petition against the Cyberprevention Act is the only petition that challenges the constitutionality of libel law in the country. “We’re excited to argue this issue since we believe that there are now changed circumstances to warrant a reversal of previous Supreme Court decisions upholding the legality of libel. Some of this include our ratification of the ICCPR itself and the View of the UN Human Rights Committee”, Roque added.

 

Here’s the text of the amended petition: http://www.scribd.com/doc/118190190

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Letter of love for Christmas 2: To the Magdalos with love


imagesAngie (not her real name) was apprehended together with suspected members of the Magdalo somewhere in Filinvest, Quezon City in July of 2006. It was alleged that they intended to blow up Batasan Pambansa.

She was charged, together with the alleged Magdalos, with the crime of coup d’etat. She somehow eluded detention and lived literally the rest of her life as a fugitive. She later succumbed to an advance stage of cancer.

I knew her well as in fact, she was one of my closest friends. I did not see her though after her apprehension. I only had a glimpse of her during her wake a couple of years back.

Needless to say, she was a comrade in the struggle against President Gloria Macapagal Arroyo. She, together with my other comrade, Josie Lichauco, probably would be sad to know that even after GMA, we continue to fight for the same causes that we did: good governance, public accountability, and an end to extralegal killings and other forms of impunity. I am sure too that she and Josie would have turned from their graves, had it not been for their cremation, had they known that the “when we hold on together gang” that surrounded PGMA continue to surround P Noy.

Both she and Josie are at peace knowing that they fought the good fight. Meanwhile, we -their friends, continue with the struggle.

I miss friends like Angie and Josie. Knowing them during their lifetimes continues to be a gift that I will cherish.

In this second letter of love for Christmas, let us cherish the words of love of a patriot for her adoptive warrior sons. I am sure she was not alone in caring for the Magdalos. Sadly, many of those whom she

took under her wings probably do not even know that she has passed on.

But her love for them, through this letter, will live on. Merry Christmas and a Happy New Year to all!

7 July 2006

To my family:

Please make sure that June and Peter (her grandchildren, not their real names) is able to join their mother(who’s been abroad). At 10 and 12, I hope we have all been able to instill in them precious

Filipino values while they were “on loan” with me.

I do not know what will happen to me but I am writing to you to help me explain to my daughter what happened today. I am proud to know Jack Rabonza, Sonny Sarmiento, Rajah, Pat, Zoë, Gay, and Bumidang. I saw in them the hope of the Filipino nation. I wish for everyone to know that their parents, wives and children should be proud of these men. In my short stay with them, they were voracious readers, eager to learn and have great love for their country. They are soldiers of integrity and highly patriotic. They are the only hope of our nation.

All they desired is to save this country from the corruption and graft that pervades our system.

They have repeatedly told me that they are prepared to die for this country; that they are mentally and physically prepared to undergo any hardship to awaken the Filipino people into action. The only way to do this is to rid this country of its lying, stealing and cheating President and her cohorts.

I love them like my own sons. Please do what you can to help them as well.

You know that my heart is bad and my diabetes is not controllable. I can go anytime. It’s ok. If you can, please visit the wives, children, and parents of my adopted children and convey to them how proud I am

of them. Thank them for lending their sons to me.

Love,

Angie

Letters of love for Christmas 1


imagesLetters of love for Christmas 1
(Since Christmas is the season of love, I am sharing with our readers two letters of love appropriate for the yuletide season. Neither letter is about love between a man and a woman, but they talk about love – nonetheless. The first is a letter from a daughter to his father, Dieu Cay, a Vietnamese blogger who is currently in jail after being convicted for being an “enemy of the state”. As we read this letter, let’s remember that until today, a Filipino child may still be writing a similar letter to his or her parent.)

Dear Dad,

It has been a long time since we last talked; it has been forever since I last saw you. The past six years feel like a decade because time seems to go so slowly. Every day we are waiting for you to return. Mom, brother, sister and I are missing you very much.

I remember your pictures. You love to travel the country and take many pictures of the scenery. In my memories I only see buildings, traffic, pollution and busy days at school. In your pictures I see wild mountains, sandy beaches, fruit trees and beautiful rivers. We know you love photography, and I know it is because you love to capture the beauty of everything. You gave us so many memories to keep and to reminisce. I don’t think many of my friends my age have many photos of

them as kids to look at. But you captured all of that for your children. In your pictures we see the love that you have for your country and its people.

You have always been an honest, gentle, kind-hearted man, and you trust everybody to the point that life has become much more difficult for you. I have seen many people, including friends and neighbors, who took advantage of you. But along the way you have gained so many more friends with your kindness and your never-failing honesty.

What you have endured all this time really breaks our hearts. This is the price you have to pay for your love? This is Unfair! This is Injustice!

I was naive to think that maybe things will be okay after the first two years they took you. I thought we would have you back in our arms again. I was looking forward to the day I get to see a picture of you again. I bought you a pair of new shoes so you could wear them to travel because I know you have worn out your last. But you did not return. They kept you for so much longer. That was when I realized things are worse than I thought. Justice will never have its day in our country.

And time stretches its legs, one heavy step at a time. You don’t know how many beats our hearts have skipped when we heard news about you or the trial, many worrisome days when we didn’t know where and how you were. I had many dreams about you, and many nightmares. I am angry at

the many hardships mother, brother and sister have to go through, yet I know it is nothing compares to what you have endured, and that makes me even angrier. It doesn’t feel good to live in anger but I can’t help it when there is no justice where you are.

We were all holding our breath before the trial. There were many people who wanted to come to the trial to support you. You may have heard what has happened to them, the violence and nonsense action that they took upon everyone. Nothing compares to what they did to you. After all of the beating, arresting, terrorizing, heartache and tears, after all of the unspeakable things, the result of the “show” was as expected. The clowns of terror always get their way, one of them even

said “F*** freedom”.

Just a few days ago I saw your image for the first time after many years. You look much older and weaker. I saw how they put their hands on you when you tried to speak. I heard they didn’t give you your glasses to read or write, they didn’t give you food until it was rotten. It’s hard to live thinking about my father like that. I know you were already very weak before prison, I don’t know how you cope being in there. Sister said she got to meet you for nine minutes after five years and she was afraid she would never see you again. We are all living in fear.

I know they are trying to dehumanize us but I know you are strong. You are our hero. We miss you and love you very much. I want to see you again one day, father. A few very rare dreams of mine: you came back to us and I was so happy I just followed you everywhere you went (like when I

was little) because I didn’t want you to get taken away again.

I know you have big dreams; they are simple, really, but in this situation it seems as if they are big dreams. Your dream is to help the helpless, the powerless to have their life the way it’s supposed

to be, life of a human being, able to survive in their own country. My dream is also simple but in this situation it is a big dream. My dream is to have our family safe, in peace and I can do my duty as a child taking care of my parents. I don’t have much ambition, I only want a normal life which you worked hard to give me but I want to have you all in it.

You must stay strong. Brother has inherited bravery from you. He is a very grown up man. We are all proud of him although I feel guilty that he didn’t have his youth the way he should have. And he will keep our family strong. We pray and hope for the best. We have help from many

friends and we thank the miracle that brought them to us. We will continue to fight with you and for you.

I have learned to never take anything for granted and appreciate the beauty of life like the moment a snowflake fall on my hand. And I want so much for you and our family to have that peaceful moment one day. I am waiting for the day I get to hug you again and our last hug 6 years ago would not be the last. And you will have a camera in your hands again and the beautiful moments will be captured forever.

I love you.

Your daughter

Awed during the second national IHL summit


222276_10151375614154289_227657715_n(I delivered the keynote address entitled “In Awe” during the Second International Humanitarian Law Summit at Malacañang yesterday. I am publishing here excerpts of my address where I explained why I was “in awe”.)

I am awed because not too long ago, civil society — which I belong to, was excluded in the task of disseminating and ensuring compliance with our state obligations under IHL. We do not know exactly why the past GMA administration opted to expel civil society from the National IHL Committee. x x x Whatever the real reasons may have been, what we are certain is that the administration that banned us was the same administration that showered adulation on a war criminal, the Butcher Jovito Palparan who today, has gone on “voluntary disappearance and is now a fugitive from justice. What we also know is the same administration that banned us was the same regime that UN Special Rapporteur Philip Alston condemned for its gross breaches of human
rights law. Specifically, Alston, whom a former Secretary of Justice has referred as a “muchacho” of the UN, confirmed that extralegal killings, even if it is still unsure how many there have been, are
evidence that the Philippines is in breach of its obligation to protect and promote the right to life.xxx

I therefore stand before you today as a member of civil society- triumphant- that in an administration that has received a genuine mandate to govern, we are recognized anew as an invaluable partner of the state in the discharge of its obligations under International Law.

I am awed, too, at how a few years can indeed make the difference.

In 2009, Congress enacted RA 9851 that defined war crimes, crimes against humanity and genocide as being criminal. Furthermore, it is a law that codified the applicability of the exercise of universal
jurisdiction for these crimes, the fact that these prosecutions are not subject to prescription, and the fact that the defense of sovereign immunity, including that of a sitting President, may no longer be invoked as a defense for the prosecution of these crimes. xxx

Almost immediately after assuming office, PNoy did what we all thought would talk two lifetimes to realize: he sent the Rome Statute of the International Criminal Court for concurrence of the Senate, paving the way for our membership to the International Criminal Court. Our membership to the ICC is without a doubt a signal to one and all that the Philippines will no longer allow impunity to persist.

The Philippines further ratified and became a party to the 1977 First Additional Protocol to the Geneva Convention and the Optional Protocol to the Torture Convention. Under the additional protocol, the Philippines now ranks as amongst the countries that have undertaken to insulate civilian populations from the adverse consequences of war. Our ratification of the Optional protocol to the Torture Convention, in turn, had the effect of recognizing the jurisdiction of the Torture Committee, the treaty monitoring body for the Convention Against Torture, and will enable our nationals to file individual complaints with the said Committee when they feel that their rights, as provided in the Convention, are not being promoted and promoted by our government.

Finally, in recognition that enforced disappearance is the ultimate form of torture for its victims – who do not know if they should weep for the loss of their loved ones or still hope that they will be
found — Congress has passed its final version of the anti-enforced disappearance law…This promises to be the first law of its act in the whole of Asia. I am confident that the President will either sign it into law or will allow it to lapse into one.

I stand today before you also in awe with the tremendous challenges ahead of us …our burden to discharge our obligations under the aut dedere aut judicare principle, or that states must investigate and punish those who commit international crimes, can only be discharged if our domestic legal system is able to investigate, prosecute and punish those who will commit war crimes and crimes against humanity.

Already, our experience with the prosecutions of ordinary murders,such as the Ampatuan massacre case, the Doc Gerry Ortega case, the Binayug torture case and the unresolved enforced disappearances of Jonas Burgos, the three Islamic scholars who disappeared in the sterile premises of Terminal 3 of the Naia in January of this year, and even the disappearance of prominent lawyer, Atty. Frank “Joe” Zulueta, underscore a tremendous structural challenge now facing us. And while
we acknowledge that the destruction of our criminal justice system was the handiwork of the past dispensation, the task of governance demand that it is this administration that should now rebuild these damaged institutions.

Let us now build the capacity of the PNP to utilize forensic evidence rather than rely on testimonial evidence. The latter is oftentimes cheap or readily available through resort to torture. Let us demand from the National Prosecution Service a better conviction rate- definitely better than its current 1 percent conviction rate for cases involving extralegal killings as reported in the Pareno report commissioned by the Asia Foundation.

Let us dialogue with the Judiciary and discuss if we should instead adopt the inquisitorial system where it is the judge that gathers the evidence in the resolution of a judicial dispute rather than the current adversarial system where the judge is a passive recipient of evidence adduced by the parties.

Perhaps, the ultimate challenge is to aim for the time when IHL becomes a purely academic field of study in this country. This will only happen when we have achieved a lasting and just peace, when armed conflicts remain part of our history, but no longer a part of and not our daily lives. In sa Allah.

A feat for UMNO


imagesIt appears that it is not just my former colleague Marvic Leonen, who was rewarded with an appointment to the Supreme Court, who benefitted

from the “rushed” signing of the Framework Agreement on the Bangsamoro Political Region.

The signing of the same, while a source of hope to all Filipinos that peace would finally be realized in battle infested Mindanao, may have been intended all along to benefit foreigners: Prime Minister Najib Razak and his moribund UMNO political party.

My source in Kuala Lampur related how they were all surprised that the Agreement, which Philippine authorities, including Justice Leonen, expected to be signed only in December of this month, was signed two months earlier last October.

Initially, I thought it was Justice Leonen who wanted it signed in time for his interview with the Judicial Bar Council. But apparently, it was Prime Minister Razak who had more at stake in signing the agreement as early as possible. This is because anytime now, parliament in Malaysia will be dissolved to pave the way for the holding of general elections. In fact, the elections should be called no later than March of next year. The actual elections would take place within two months from when it was called.

How could the signing of the Agreement favor Prime Minister Razak and his UMNO party?

Immediately after the agreement was signed, Razak’s communication group spared no time in extolling the Prime Minister as the acknowledged peacemaker of the region. Apparently, and a Web scan of Malaysian newspapers confirmed this, the signing was banner story in Malaysia. Not only was Najib praised as a peace maker, he is now being promoted as a regional leader. I understand that he is now being considered to mediate a peaceful resolution of the conflict in Southern Thailand, as well. But this appears to be mere icing on the cake. The real value of the agreement for Razak and his party lies in Sabah. In the first place, the premier’s predecessor, Abdullah Ahmad Badawi, merely obtained a simple majority in the last general elections in Malaysia. I understand that UMNO lost to Anwar Ibrahim’s party in the Malay Peninsula. Their tenuous grasp to a parliamentary majority was courtesy of UMNO having clinched a majority of the 24 parliamentary
seats in Sabah. The story of how they managed to win in this crucial state of Sabah is stuff that are regular occurrences here in the Philippines: vote buying and patronage.

What made it worse, however, was that UMNO distributed residency cards to illegal Filipinos in exchange for their votes. This is now the subject of a Royal Inquiry. A Wikileaks entry summarized the role of Filipinos in Sabah in the last elections: “Mahathir also facilitated illegal immigration from Indonesia and the Philippines in order to better balance the state’s ethnic and religious equation as a measure to ward off any future
separatist sentiments in Sabah, in addition to attracting UMNO votes needed to control the state. A Royal Commission, operated properly, would likely expose the depth of UMNO x x x political corruption and vote manipulation, further inciting Sabahans.”

Razak will now go beyond vote buying in this upcoming election. My source in Kuala Lumpur told me that he rushed the signing of the
Agreement particularly to appeal to the Filipino voters in Sabah.

Worse, another source has informed me that he has even asked MILF Chairman Murad Ebrahim to intervene and campaign for UMNO in Sabah.

With the Filipino vote likely to determine who between Najib and Anwar would be the next Prime Minister of Malaysia, the Agreement was apparently signed in a rush to ensure the premier’s hold on the crucial Filipino vote in Sabah. The betting now is: would Chairman Murad do as Najib has asked him to do?

I have already expressed the view that much as we desire peace in Mindanao. this Framework Agreement, precisely because it was rushed,
may not stand the test of judicial scrutiny. I am joined in this view by noted constitutionalists Raul Pangalangan and Former Solicitor General Estelito Mendoza. Even Ateneo College of Law Dean Emeritus Fr Joaquin Bernas has expressed similar, albeit less pessimistic concerns. Even Anwar Ibraham, while hopeful that the agreement would lead to peace, expressed concern that the Agreement was not inclusive since the Mindanao politicians, among others, were excluded from the peace negotiations.

Worse, no less than the current head of Notre Dame University’s’ Institute for Autonomy and Governance fears the many mine fields that lie in Congress and in the Supreme Court: “This arena is a big minefield that scares me to no end. There are many things that can go wrong in this arena.”

But with this confirmation that the Agreement did not just benefit Leonen and was, on the contrary, intended primarily to be Razak’s electoral fete in Sabah, it would appear that the Framework Agreement, contrary to our best hopes and expectations, is indeed doomed.

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