Re-examining freedom of expression

I have been the foremost advocate for freedom of expression, at least in the legal profession. I have always said that this freedom is ever important for it enables us to know the truth. It also enables us to form opinions, which taken collectively, have been proven in fiscalizing governments. For instance, we now know that the PDAF and DAP were never intended to benefit our people. They have been intended and used to further enrich our corrupt officials. If anything, the investigative work of journalists on PDAF and DAP has shown how crucial a vibrant press is in informing our people and in keeping our government in line.

But I have had to re-examine my advocacy for freedom of expression recently. This is because have had to reckon with the ugly side of the terrain: irresponsible journalism.

Note that days after my fellow private prosecutor in the Maguindanao massacre case, Nena Santos, claimed that Department of Justice officials were purportedly accepting bribes from the accused, the witness, Lakmudin Saliao, who, even if purportedly under the government’s Witness Protection Program, is actually under the custody of Governor Toto Mangudadatu; spoke to media, This was obviously arranged by Nena Santos herself. Purportedly the “smoking gun” to prove her allegations of bribery, Saliao then related that when he was still under the employ of the Ampatuans, he gave Atty Sigfrid Fortun the amount of P50 million, 20 million of which was to be paid to Undersecretary Francisco Baraan, and the balance of P30 million to be paid to the rest of the public prosecutors.

In the mind of Santos, this disclosure proved that Baraan was indeed on the take. The only problem was that Saliao, as one of the government’s star witnesses in the Ampatuan trial itself, was testifying on matters which occurred in 2009 and 2010 prior to the PNoy administration. Baraan only joined government as part of the PNoy administration. Hence, contrary to what Saliao is saying, Baraan could not have received P20 million since he was not yet in government at the time of the alleged payoff.

So when Ces Orena-Drilon came to my temporary office in the UP College of Law to show me a PDF file of an alleged diary listing personalities which she concluded were lists of individuals having received money form the Ampatuans, my remark to her was: “Ces, you’re the only one who still believes Nena Santos.” It was at that juncture that Ces then said that her informant was different from Nena Santos although she admitted that she met this informant through Nena Santos. Nena would later lie on national televisions and say that she does not know the informant.

I even explained to her that Nena was obviously on the warpath after she was found lying. But Ces was persistent. She then showed me an entry of a phone number, which corresponded to mine -next to the word “speedy”. Another entry had the notation “Speedy 10 M and a car”.

Asked for my reaction, I first explained that the since the diary was provided by an informant who did not prepare the diary, the same was not authenticated. I then said that while the number corresponds to my cell phone, my number is a very public number since it appears in all my press releases, my blog and FB entries, I do not know any “speedy” and do not know why it appears next to my number.

But lo and behold, in the newscast for that evening, it was reported that I received P10 million and a car since I was using the alias “Speedy”.

I am sure that those who know me will not believe this allegation. How do you explain the fact that unlike Nena Santos who has not presented a single witness in the Ampatuan prosecution, we have not only been active in presenting our witnesses (about 35) in the massacre case itself but have field 23 other actions against the Ampatuans? This included the plunder case against the Ampatuans, actions to freeze their assets with the Anti-Money Laundering Council, a separate civil case against former President Gloria Macapagal Arroyo for her complicity in the murder, separate criminal charges against the military officials in the area and international remedies for the victims. And unlike Nena Santos and Prima Quinsayas who are paid for their services, we have been doing our work against the Ampatuans on a pro-bono basis. It is strange that I – who have been working for free in these cases for five long years -was the one maligned as having received money from the same individuals who have in turn, sued me at least 14 times either in the form of contempt petitions or libel in their turf of Cotabato City.

Today, I am in the process of re-examining my advocacy for freedom of expression. I represent today the most number of journalists accused of libel and other families of journalists who have been killed and have not been accorded domestic remedies for their murders. We also continue our advocacy to decriminalize libel. But when a very senior journalist, a graduate of the same state university where I am a full professor, resorts to abuse of the right to a free press, one cannot wonder now if my lifelong passion in defending this freedom is indeed a noble pursuit.

I continue to dwell on it.

This post first appeared in

Corona’s contemptible performance

Like millions of others, I was glued to the television the other day watching Chief Justice Renato Corona testify in his own impeachment trial.

Everything about last Tuesday was dramatic. First, there was his refusal to take the stand. He then relented and agreed to testify after the Ombudsman had detailed Anti-Money Laundering Council documents indicating that the chief justice had at least $12 million in various accounts. Prior to last Tuesday, his counsels and talking heads assured the public that Corona would “tell all” and would expose the malice of the individuals who falsely testified against him.

On the day itself, there was a meticulous script acted out by “B” actors, who now deserve acting awards. There was the traditional mass officiated by religious leaders closely identified with former President Gloria Arroyo, the usual illegal mass action by court officials and employees, and even a hero’s send-off for the embattled Corona.

At the Senate itself, the script was literally visible: a couple of pages of a monologue read out by Corona himself, a major deviation from ordinary court proceedings where witnesses are never allowed to deliver opening statements. This was a very carefully written script. Its writers knew that the opus would be allowed by a court that has repeatedly declared that it would respect the magistrate if and when he takes the stand. More importantly, its writers knew that the people would be watching.

And boy, what a show it turned out to be!

The scripted monologue itself was pathetic. Not only was it very poorly written, it was also bereft of the truth that Corona promised the nation. Half of it was mud thrown at the President, Ronald Llamas, and even Franklin Drilon. The other half was about the dirty laundry of the Basas.  Was Corona unmindful that his own children and wife were members of the same clan? The Senate President repeatedly asked him if he was finished, but he went on with his litany on matters, which were irrelevant and immaterial. And when he finally addressed the issue leveled against him by the Ombudsman, he resorted to a negative pregnant: the Ombudsman was lying but he admits having dollar deposits which according to him, are absolutely confidential and need not be declared in his SALN.

Prior to his appearance, a little known employee of the BIR, of all agencies, which the chief justice himself quoted in his monologue, opined that dollar deposits do not have to be disclosed in the SALN.

After which, he resorted to a conditional waiver of the secrecy of his dollar and pesos deposits, which takes effect only if and when the 188 congressmen who voted to impeach him and Franklin Drilon sign similar waivers. Talk of a cheap trick!

And after an excruciating two hours of vilification and self-pontification, he states that he is the chief justice of the Republic and leaves the stand.

I still can’t decide which was more offensive: his litany of mud or his walkout. I ask this because he is not just a very high official sought to be removed from his office. He is the chief justice if the land and as such, should personify the prestige and dignity of the legal profession. By resorting to mudslinging at the stand, Corona broke all rules of evidence that were developed over time to ascertain precisely the truth of controverted matters. And by walking out, he has shown contempt not only for the Senate sitting as an impeachment court, but to the rule of law itself, which as chief justice, he should be the first to uphold. If his departure were really for medical reasons, why did he not ask for leave of court? That would have been easy and would certainly have been granted on humanitarian grounds. It does not help that he was captured on camera clearly intent on leaving the Senate on cue. Clearly, what he and his advisers did not anticipate was that the Senate President would order the lock-out of the Senate to prevent him from leaving.

As I write this, it has become apparent that the chief justice will not return to the Senate as he is reportedly in the intensive care unit. I do not question his state of health as that is now between him and his creator. What I condemn is his performance that degraded the legal profession and eroded the people’s trust in the rule of law.

At the very least, Corona has proven to all that he does not deserve to remain as chief justice!

Contemptress LOOKING ASKANCE By Joseph Gonzales (The Freeman)

The Supreme Court en banc has spoken – one of its own, recently-appointed Justice Mariano del Castillo, did not commit plagiarism, even when he failed to indicate the sources of some of the passages to be found in his decision. (The subject matter of the case was the 70 women used by the Japanese army to provide “comfort” services to soldiers during World War 2)

The culprit? An accidental deletion made by his researcher, who had to grapple with 119 source citations and so supposedly didn’t notice when a couple of them were deleted on their way to finalization.The researcher is unidentified, but boy, someone left plenty of clues, what with her being described as third in her class in law school, fourth in the bar exams, editor in chief of her school’s Law Journal, and possessor of “a master’s degree in international law and human rights from a prestigious university in the United States.”

And, knowing that Justice del Castillo is from the Ateneo law school and taught there, with his wife being former dean of the same school, it’s not too much of a stretch to conclude that this hapless researcher, who would have been regarded as a goddess in her university prior to this debacle and is now described by the highest court as merely “competent,” is also an alumna of Ateneo.(With this much detail, it was a wonder why they even bothered protecting her name.)

But as usual, I digress. My mind’s probably still reeling from the stance taken by the court, since it opens up so many avenues for exploration.Does it mean, henceforth, that lawyers can also plead “accidental deletion” when some crucial fact fails to make its way into their pleadings?(My competent intern at the firm didn’t notice it! She has a master’s degree from Harvard!)Can a law student save himself from expulsion even though his thesis doesn’t cite the proper authorities, and it seems like he’s unusually erudite?(My competent mother failed to print the right draft!She’s a partner in a major lawfirm!)

And what next?There remains the matter of the three authors in international law.Not only were they forgotten in the citations, but it is reported that were unhappy with the way their words were used to defend exactly the opposite of their thesis. Will this reported incongruity still be addressed by the court?Were they “misquoted,” which for me is even more egregious than plagiarism, or were they merely taken out of context?Or is this alleged misquoting already adequately explained by the court’s finding that this only concerned “clarity of writing”?What of the authors’ reported claims that their works should not be used to support the ideas enunciated by Justice del Castillo?

There remains also the matter of the only university (my alma mater) that demanded the resignation of Justice del Castillo, while other universities stood by the sidelines or defended the Justice.(I do recall another institution from Mindanao calling for resignation, but my memory always fails.)The latest word on the street (or rather, in the halls of prestigious lawfirms) was that the signatories to the petition asking for the Justice’s resignation are now the subject of contempt proceedings.Will the Supreme Court still exact penance from these signatories? Especially now that there is a collective finding that no plagiarism was committed?

The most intriguing, of course, is the dissent yet to be filed by newly appointed Justice Meilou Sereno, my former professor and co-alumna from the University of the Philippines and the University of Michigan.(Yes, it’s good to establish as many ties as possible between ourselves – proves we’re really tight!).What will Justice Sereno say in her dissent?How far or how close will she be to the main opinion?Exactly on what grounds will she dissent?

I will stop here and not speculate on the answers because I suddenly have this horrible fear that technically, this case (and specially, her dissent) is still sub judice, and I may be next in line towards contempt-hood.But the reported resolution of the court does raise many questions, and it will be interesting to observe, from very safely far far away, exactly what will happen next.

To SC Spokesperson Midas Marquez: Take heed of the Supreme Court’s own ruling — “Courts and Justices are not sacrosanct.” by Joel Butuyan

SC spokesperson Midas Marquez uses a parochial application of the sub judice rule when he criticized the UP Faculty on the latter’s stand on the plagiarism issue. To stop embarrassing himself, he should read the constitutional right on free speech in relation to the doctrine of “fair comment on matters of public interest” and also in relation to the In Re Almacen doctrine. Under the Midas Marquez doctrine, you can demand the resignation of the President, Senators, and Congressmen. Heck, you can even demand the resignation of the Pope. But you cannot call on an SC Justice to resign??!! The gods must be going crazy on the promotion of additional gods.

In In Re Almacen, the Supreme Court itself said that “Courts and judges are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve.”

I also plagiarized the following relevant Supreme Court pronouncements:

“Ultimate good desired is better reached by the free trade in ideas… that the best test of truth is the power of a thought to be accepted in the competition of the market, and truth is the only ground by which their wishes can be carried out.”

My personal favorite:

“Sunshine is the best anti-septic; the maligned should answer back and let the marketplace of ideas work; when an idea is exposed to the public for debate, its merits and demerits are exposed and eventually, the public will know the truth and the false;

“The interest of society and good government demands a full discussion of public affairs. Whether the law is wisely or badly enforced is a fit subject of public comment. Public policy, welfare of society and the orderly administration of government have demanded protection for public opinion.”

“freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech x x x discussion would be futile; and that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrines; the greatest menace to freedom is inert people.”