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

Published in: on January 27, 2012 at 4:34 am  Comments (6)  
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Almost Censored!

Censored?
PROVO, UTAH- I’m here as a delegate to the 18th Annual Conference on Religion and Law sponsored by the Brigham Young University. The thesis of my paper here is that while the non-establishment clause of our Constitution mandates government to adopt a policy of neutrality to all religions, in reality, this American principle has been applied in the Philippines strictly insofar as minority religions are concerned. With regard to the dominant Catholic Church, there has been hesitancy.
Two cases, in my mind, clearly manifest this state partiality towards Catholic Church. The first, Aglipay v. Ruiz, ruled that the issuance of a commemorative stamp for the 33rd Eucharistic Congress did not violate the non-establishment clause. According to the Court: “ It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any received by the Roman Catholic Church, was not the main purpose of the government. We are of the opinion that Government should not be embarrassed in its activities simply because of the incidental results, more or less religious in character, if the purposes had in view is one which could legitimately be undertaken by appropriate legislation.”

My problem with this decision is this: Why else would a predominantly Catholic state issue a commemorative stamp to mark a religious activity other than for religious reasons? Of course the Court may have intimated that the real event being commemorated was the arrival of tourists for the Congress. But come on, if that was the real reason, then the post office should have issued a commemorative stamp celebrating tourism instead!

Yet another case that proves my thesis is that of Garcis v. Estenzo. This involved a controversy on whether an image, purchased with barangay funds and used for a fiesta, should be returned by a then-parish priest in Ormoc, Leyte to the barangay after the celebration. Here, the Court said: “Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.” It was the reasoning of the court that while images placed in the altar were centerpiece artifacts in the celebration of fiestas; still, the fiestas themselves have already acquired a secular rather than a religious meaning. Again, how could a feast honoring a town’s local patron saint pursuant to the Catholic faith cease to be a religious activity? The problem with the Garcis doctrine is that despite the Court’s insistence that the case was not one involving religious freedom; it ignored the reality that the purchase of religious artifacts utilized for religious occasions is an issue of religious freedom.

But the thrust of my presentation is how today, the inapplicability of the non-establishment clause to the majority religion in the country has brought back to life the days of the inquisition. Here, I focus on two burning controversies: the reproductive health bill and the Mideo Cruz controversy.

The controversy on the Church and the RH bill as a form of inquisition was explained by Fr. Joaquin Bernas : “Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. Hence, the state should not prevent people from practicing responsible parenthood according to their religious belief. x x x —Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

The case of Cruz is not only theoretically more controversial. It has also proven to be literally controversial as well. My submission is that Poleteismo is both an issue of freedom of expression and religion. It is protected under freedom of expression since government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable (Texas v. Johnson). And assuming that the work is blasphemous, as its critics claim it is, our Court in Iglesia ni Kristo v. CA has ruled nonetheless that: “The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”

I was thus surprised when the organizers of the conference asked to see my slide presentation on Poleteisimo to ensure it does not contain materials appealing to “prurient” interests of the other participants. I flatly refused, invoking academic freedom since even if Brigham Young University is a Mormon institution, it is still an academic institution and the conference is still an academic activity. Besides, had I consented, it would be recognizing that the Mormons are the best judge of what appeals to “prurient” interest. This I doubt. I was eventually allowed to present my paper, even though for a long while I seriously wondered if I would be censored, as well.

NB: I was eventually allowed to do my presentation and I did show slides of the Mideo Cruz’s poleteismo, including allegedly blasphemous ones #30#

Published in: on October 5, 2011 at 7:19 pm  Leave a Comment  
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PinoyLeaks

Thanks to Julian Assange, we have today the benefits of WikiLeaks. This is an anti-secrecy campaign that has enabled the public to read confidential cables on various topics sent by American diplomats to their home office in Washington, DC. While the American position is not to comment on the substance of these cables, the fact that they have branded Assange as a terrorist of sorts for releasing them indicates that we’re looking at a genuine breach of diplomatic inviolability albeit facilitated apparently by American nationals. This is why we should take these “leaks” rather seriously. They are reflective of American policies and as records of facts duly reported by American diplomatic personnel to their home office.
Of these many cables, three recently released ones caught my attention. The most recent is about how then-President Gloria Macapagal-Arroyo, upon the prodding of her National Security Adviser Norberto Gonzales, considered the declaration of martial law as a result of the “Hello Garci” controversy. This confirms what we, in the anti-Arroyo movement (which unfortunately have become rare in the Aquino administration) have thought all along: that Mrs. Arroyo will do anything and everything in order to stay in power. The report indicated that Arroyo gave an American diplomatic personnel a “defiant stare” when told that the US will not support such a declaration. This also confirms that as part of her “stay-in-office-at-all-costs” policy, she ceased courting the support of the United States to bolster her legitimacy. The fact that she would later enter into very strong relationship with rival China to the point of sacrificing our national territory is evidence of a clear intent to play the China card as a means of counter-balancing the critical views of Uncle Sam.

And yes, “Hello Garci” will simply not go away. The more we are reminded of it, the more we realize what a farce the Arroyo administration truly was. Imagine, nine years of the presidency without a popular and a legal mandate! Worse is that apparently, we have not learned from it. The same individuals who sang, “they will stand together” with Arroyo continue to be in power, wreaking havoc on various aspects of our national life from the disbursement of huge taxpayers money in aid of 2013 elections to disrupting peace and order. At least some of them have already had the decency to resign when confronted with the fact of obvious incompetence. But most of them remain in positions of power and influence, as if their support for a fake president is a commendation in their résumés rather than a condemnation.

The second release that caught my attention was the one detailing a dinner conversation with Michael Mastura, Steven Rood, and Michael Pignatelo, among others. There, the MILF warned that they could “Balkanize” Mindanao, as if it hasn’t happened yet. Actually, in the words of Dr JP Baraybar, a respected forensics expert, Mindanao was more like “Rwanda” than the Balkans. Mastura was also quoted as saying that P-Noy does not “understand the complexities of the situation”, a fact which they apparently exploited when they successfully met with him in Tokyo only recently. And while our own peace negotiators boasted, soon after the Tokyo meeting, that the “MILF has given up on secession,” it is still clear from the cable that the MILF was firm in its demand for a “sub-state or a federated state” which Rood said would require a constitutional amendment.

Hence, it was very clear at the onset that the MILF knew that what it wanted was precisely something that required tinkering with the 1987 Constitution. This was why the Supreme Court declared the previous memorandum of agreement on ancestral domain as being unconstitutional in the first place. Another dinner participant was further quoted as pleading to the Americans: “Listen to how we feel x x x The Filipinos are the rulers, and we (Moros) are slaves. It is a lopsided relationship.” The cable ended with assurances of continuing US involvement in the peace process pursuant to a US Institute of Peace program. What exactly this program is will be the subject of my research within the week.

Finally, there is of course the infamous assessment made by the former US Ambassador Kristie Kenney that former President Corazon Aquino was somehow “tarnished”. Much has already been said about this particular cable. I will no longer contribute to the very long list of condemnations. But perhaps, we should learn our lesson: that is, never trust an American diplomat engaged in a charm campaign. They could be saying very nasty things about our national heroes behind our backs.

Meanwhile, on Assange himself, I was told that while he has been successful at delaying his extradition to Sweden to face trial for so-called “unconsented unprotected sex” which to the Swedes is a form of rape, the inevitable deportation will still happen. Let’s hope that when this happens, the Swedes will not ship him out across the Atlantic to the US where he will certainly be sent to Guantanamo and be treated as a world-class terrorist. If you ask me, given the quality of the cables being released, the world does owe him a heap of gratitude.

Published in: on September 8, 2011 at 10:45 pm  Leave a Comment  
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Joel Butuyan of SEA Media Legal Defense Network on art and of Freedom of Expression

We only have to look at a few examples in our past to realize how the free expression of very offensive ideas became defining moments of human civilization.

Ideas that were so offensive at the time they were expressed but because the tellers of these ideas braved the lynch mob majority to freely express them, these once offensive ideas went on to change the course of human civilization.

Imagine ourselves living in the time of Jesus. Ingrained in us from birth and in our daily lives are the teachings, rituals, and beliefs of the Pharisees. Then we hear this man proclaiming himself to be God. Not only offensive but extremely blasphemous at that time. Chances are, we would be part of the majority egging Pontius Pilate to “Crucify him! Crucify him!”

Transport ourselves to the time of Galileo. All our lives we have held sacred the belief that God holds the earth special by making it the center of the universe. Then comes this nut-of-a-guy named Galileo proclaiming that the Pope is cuckoo because the earth is just a tiny ball revolving around the giant sun. Chances are, we would be part of the lynch mob majority cheering the Pope as he condemns Galileo to a life of physical and eternal damnation.

Envision ourselves living in British India during the time of Mahatma Gandhi. Faced with horrendous human rights abuses by the British, we would have held the belief that an armed revolution is the sole solution. Then comes this emaciated guy Mahatma declaring instead, that we join the line of the unarmed and offer our heads to be beaten and cracked by the British. We would have been part of the majority sneering at insane Mahatma.

These three giants in human history expressed ideas that were a hundred times more offensive — during their time — compared to the penis-condom-religious images collage artwork of Mideo Cruz. Mideo’s work appears puny in comparison, offensive-wise.

Let us learn from our past, the future ideas that will further change the course of our civilizations will be a hundred times more offensive than the artworks of Mideo Cruz.

If we adopt a policy of curtailing the free expression of offensive ideas, then we will potentially miss out on civilization-changing ideas that appear offensive when viewed in the myopic context of present times.

By opening the gates to offensive ideas, of course the marketplace of ideas will potentially be flooded with ideas that are purely intended to offend. And the majority have the right and the reason to see Mideo’s artwork as belonging to this category. But to destroy these offensive ideas, we merely have to engage their purveyors in debate and expose the silliness and foolishness of their offensive ideas. History teaches us that all purely offensive ideas die a natural death merely through the antidote of debate.

So let us engage Mideo, debate with him on his artwork, and let us his detractors do our best to argue that his offensive ideas rightly belong to the dustbin of history like many other purely offensive ideas of the past. But let us not muzzle the right of all human beings to freely come to the marketplace of ideas and offer his unique view on the issue of what the world has become and what the world should be.

The spectre of violence is also raised as an argument against giving Mideo’s offensive artwork its own place under the sun. Let us not forget that offensive ideas are expressed as a challenge to engage in a debate of ideas, an invitation to engage in a battle of ideas. We are not being challenged to engage in a battle of violence. If we respond to the battle of ideas challenge by instead initiating a battle of violence, then we identify ourselves as living relics of the mobs that crucified Christ, taunted Galileo, and pilloried Gandhi.

Our rightful contribution to the advancement of our civilization should be in preventing the muzzling of the mouths of the purveyors of offensive ideas and in helping redirect the energies and attention of their detractors to the arena where the battle of ideas should take place.

The argument of “let Mideo blaspheme our Muslim brothers and he’ll see what will happen to him” is also raised. While it may be true that most of our brothers in Islamic countries are trailing behind in the advancement of freedom of expression, we can see from recent and unfolding events in the Arab world, that they are marching in the direction of advancing freedom of expression in their societies. In our own effort to transform our society, should we step back and march in cadence with our Muslim brothers or should we not trail-blaze for them on the issue of freedom of expression?

Now, on the artwork of Mideo consisting of a hodge-podge collage of pictures of past and present celebrities, and religious icons laden with a penis and condoms. Let us look inside a typical Filipino house. We see one corner brimming with religious icons. In another corner there is that Baguio barrel man with a penis longer than the entire length of his body. Inside one room are copies of Playboy magazine. We lead our wife and children in prayer before meals and bedtime, and then we make love to our wife by imagining that we are making love to our neighbor’s wife. We go to mass officiated by a priest who maintains a mistress and who drives a Lexus SUV gift-given by that @#$%&?&!!! former President.

In artistically documenting this collage of hypocritical life that many of us live, should a Filipino artist be limited to creating an Amorsolo-like realistic painting of the interiors of a house laden with the religious icons, Baguio barrel penis man, and Playboy magazines located exactly as they are placed inside a specific real house?

There would have been no Monet, Van Gogh, and Picasso if artists were shackled or pandered only to the tastes, beliefs, and ideas of the comfortable majority.

And from our shores there would be no Onib, Dalena, Bencab, Liongoren, Delotavo, Garibay, Borlongan, Justiniani, Ventura, Barredo, Leano, Bolipata, Bitancor, Palomo, Montemayor, Ruiz, Javier, Santos, Barrioquinto, Caasi, Alonday, Aguinaldo, Antonio, Orencio, Tapaya, Cruz, Paras, Jumalon, Solon, Samson, Habulan, Quirante, Coquilla, Jamoralin, Constantino, Alex Tan, and our many more talented artists.

For all these reasons, I will act as counsel to Mideo Cruz and Karen Ocampo Flores when they face the Senate investigation and the Ombudsman criminal proceedings.

Published in: on August 16, 2011 at 2:26 am  Comments (7)  
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Anger as Philippines says will skip Nobel ceremony -AFP

Anger as Philippines says will skip Nobel ceremony
AFP – Thursday, December 9SendIM StoryPrint
MANILA (AFP) – – The Philippines confirmed on Thursday it would skip the Nobel peace prize ceremony for Chinese dissident Liu Xiaobo following pressure from China, triggering anger from human rights advocates.

The decision by one of Asia’s most vibrant democracies to stay away from Friday’s event in Norway comes as it seeks to build stronger military and economic ties with communist China.

“It is confirmed that there will be no Philippine official at the ceremony,” Department of Foreign Affairs spokesman Eduardo Malaya told AFP.

He said Manila’s envoy to Oslo, Elizabeth Buencuceso, was out of Norway on an official consular mission.

“Our ambassador to Norway has a scheduling conflict,” he said.

However two senior government officials who did not want to be named said the move was meant to appease China, which had repeatedly warned governments around the world that ties would be harmed if they attended the ceremony.

China reacted furiously to the decision by the Nobel Committee to award this year’s peace prize to Liu, who was jailed for 11 years last December on subversion charges after calling for reform of one-party communist rule. Related article: US pressured China to release dissident: cables

“We do not want to further annoy China,” said a senior diplomat at the Philippines’ foreign affairs department who asked not to be named.

President Benigno Aquino’s spokesman, Herminiano Coloma, declined to comment when contacted by AFP about the decision, referring all queries to the foreign affairs department.

But another presidential palace official said Aquino “did not want another irritant” in his government’s ties with China.

The Philippines has been working hard to repair diplomatic ties with China following the botched ending of a bus hijacking incident in Manila that left eight Hong Kong tourists dead in August. Related article: Rights groups push for Nobel laureate’s release

The Philippines is also seeking to buy military hardware from China — the nation’s armed forces chief, General Ricardo David, is in Beijing this week on a procurement mission.

Trade between the countries has been expanding since the 1990s, with China now the Philippines’ third largest trading partner next to the United States and Japan.

Human Rights Watch said it was “shocked and disappointed” at the Philippine decision, especially as the country had always been a leading supporter of Myanmar’s democracy heroine Aung San Suu Kyi, herself a Nobel laureate.

“The Philippines prides itself on its democratic values, which is why it is shocking to see this government turning its back on Liu Xiaobo’s non-violent struggle for free expression in China,” said Elaine Pearson, the group’s deputy Asia director.

“By declining the invitation to attend the Nobel Peace Prize ceremony, the Philippines is failing to live up to its promises to promote human rights in Asia.”

Lawyer Harry Roque, chair of the Manila-based Center for International Law, also expressed outrage.

“We should not have allowed China into bullying us not to attend the ceremony. This is an abdication of our moral duty to the world as the source of people power, of liberal democracy,” Roque told AFP.

“That was a regrettable decision, because in effect what we did was to support an affront on freedom of expression.”

Calls to the Chinese embassy spokesman in Manila went unanswered on Thursday.

Vietnam and Afghanistan are other Asian nations to have declined to attend Friday’s ceremony in Oslo. Related article: Pressure mounts on Serbia to reconsider Nobel boycott

Published in: on December 9, 2010 at 2:08 pm  Comments (1)  
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Philippine government decision to boycott Nobel Prize a blow to free expression

The Center for International Law (CenterLaw) urged the Philippine government yesterday not to bow to Chinese pressure to withdraw its participation in the Nobel Peace Prize awarding ceremonies for jailed Chinese pro-democracy dissident Liu Xiabo, saying a withdrawal “is a blow to the cause of free expression.”

“More than ever, we are called to uphold free expression is a cornerstone of democracy,” said Prof. Harry Roque, Centerlaw chair. “The last thing the Philippines should be known for is as a supporter to the repressive policies of the Chinese government.”

The Philippines has declined an official invitation from the Norwegian Nobel Committee to the awarding ceremonies for Liu, a renowned Chinese writer and human rights activist, who is serving an 11-year prison term in a Chinese jail for campaigning for reforms and an end to one-party rule in the People’s Republic of China.

News reports say Department of Foreign Affairs officials have publicly declined to offer an explanation for not attending the ceremony but a senior Filipino diplomat was quoted as saying on condition of anonymity that the Philippines did not want a further strain to its relations with China, already frayed as it is by President Aquino’s botched handling in August this year of a bus hostage incident where eight Hongkong tourists perished.

But the Centerlaw chair said the Aquino administration’s decision to decline the Norwegians’ invitation is “a blow to the cause of free expression.”

Centerlaw, which Roque heads, is a non-profit organization dedicated to the promotion of free expression in the Philippines and in the Asian region.

Following the announcement by the Nobel Committee of its decision to recognize Liu for his unstinting advocacy, the Chinese government has embarked on a campaign to boycott the awarding ceremonies.

Roque said Liu is a prisoner of conscience who only wanted greater freedoms for his fellow Chinese. “And yet the Chinese government is calling him a criminal for simply saying what many others cannot say in public.”

Published in: on December 8, 2010 at 9:10 am  Comments (6)  
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Dr. Christian Tams Calls on the Supreme Court to Withdraw its Show Cause Order to the UP Faculty of Law

Dr. Christian Tams, a professor of international law at the University of Glasgow and one of the three scholars whose work was plagiarized by Supreme Court Justice Mariano del Castillo, has written the following commentary at the European Journal of International Law.

Here is the link:

http://www.ejiltalk.org/philippine-supreme-court-silencing-dissent/#more-2767%22

Philippine Supreme Court Silencing Dissent?
Author: Christian Tams Filed under: EJIL Analysis
Tuesday, Nov 9,2010
Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?

What it’s about

The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.

On the basis of this alleged “judicial plagiarism” and “misrepresentation,” the plaintiffs filed a motion for reconsideration. Members of the University of the Philippines College of Law (none of them acting as counsel in Isabelita Vinuya et al.) submitted a rather strongly-worded statement, which noted the complaints of plagiarism of the authors, requested the Court to provide guidance to the bench and bar, and called on the reporting judge to resign his office – “the UP Statement”].

On 15 October, the Supreme Court – against the dissent of two members – denied the plagiarism charge, finding that there either had been no unauthorised lifting of passages (in my case) or that unauthorised lifting had been by mistake (in the case of Ellis and Fox-Decent/Criddle) [see here for the majority opinion, and here for the dissent).

Four days later, on 19 October, this was followed by a seven-page order, in which a majority of the Court declared the signatories of the “UP statement” to be in contempt, until they could show sufficient cause for their conduct (“the disciplinary order”). This exposes them to disciplinary action including loss of rights to practise. It is this last aspect, rather than the strange dispute about plagiarism or the Supreme Court’s curious handling of it, that should make us think.

Why should we care?

Up until 18 October, this seemed a strange story, but not really worth our time. So, to give but one example, while I thought the Supreme Court “plagiarism whitewash” to be rather unconvincing, I did not for a moment consider wasting any more energy on it. Also, without being an expert on Philippine constitutional law, I should say that from the perspective of international law, I have sympathy for judgments cautiously interpreting the concept of diplomatic protection, and refusing to read it to impose upon governments specific instructions on how to pursue foreign policy.

But the disciplinary order of 19 October changes matters decisively. This, it seems to me, is really a dangerous step. Of course, courts must be able to impose disciplinary standards. And it may even be that in this case, the statement calling on the judge to resign went a step too far. However, this transgression (if any) pales in comparison to the disciplinary order threatening sanctions against the UP academics. Not only are the sanctions potentially far-reaching. The order also seems to be more than a usual “show cause order” that could be easily rebutted: it contains specific findings of fact and enumerates particular violations of the Code of Professional Responsibility, which, it seems, the majority of the Court considers to be violated. No wonder, then, that the dissenting judges criticised it as having prejudged the eventual outcome.

And this, of course, raises fundamental issues concerning the respective roles of courts and their critics. Evan Criddle and Evan Fox-Decent have made the point very clearly on Opinio Juris, and I fully agree with them that:

“it is not the place of a court to sanction individuals or institutions that have been critical of it. This principle is especially important in the case of a law school, where discussion of cases is an integral part of legal pedagogy”.

However, there is more to it than what courts should do, and whether they should be able to live with criticism. The role of lawyers is also protected by international human rights obligations incumbent on the Philippines, notably international fair trial guarantees. Art 14 CCPR eg might come into play, especially if read in the light of the UN’s Basic Principles on the Role of Lawyers, which recognise the right of lawyers to express their opinions on matters of law and the administration of justice. While none of these rights is absolute, they are important and should be taken seriously, especially by courts – after all, their status is equally dependent on guarantees of the judicial process. So it is right that commentators from within the Philippines and abroad – have voiced their concern.

***

Looked at from a distance, the whole episode seems to have spiralled quite out of control. The ingredients were of course there from the beginning: an emotionally-charged case; accusations involving matters of professional honour; and all this within a deeply-divided society whose divisions are mirrored in the make-up of bar & bench. Having received, over the last months, dozens of letters, interview requests, official statements and petitions, I would think that neither side in this whole escalation has excelled in moderation or pulled punches. However, even in on-going processes of conflict escalation, some steps are more dangerous than others, and it seems to me that the disciplinary order of 19 October marks such a dangerous step. So far, it has prompted the usual (and to be expected) responses: petitions; further incriminations; angry debates in online fora. All this is unlikely to allow protagonists the breathing space which they will need to come to their senses and realize that this whole escalation, in the long run, will leave all sides tarnished: the UP academics just as the country’s highest court. One can only hope that Philippine lawyers – coming, after all, from a country with a great legal tradition – will be able to show the self-restraint and, perhaps, wisdom required to refrain from the pouring further oil into the flames. What is needed is some de-escalation, some conflict management. The Supreme Court might pave the way for such de-escalation by recalling the disciplinary order of 19 October.

Published in: on November 10, 2010 at 12:16 am  Leave a Comment  
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Plagiarism and Kidnapping

The Supreme Court last week promulgated a decision that Justice Maria Lourdes Sereno described in her dissent as one that would create “unimaginable problems for the academia” on how they would hence discipline students and researchers for plagiarism. Justice Sereno was particularly concerned with the majority’s decisions that plagiarism requires intent, which according to her, “stand against overwhelming convention on what plagiarism is.”
The lady Justice’s dissent was a directed at a per curiam (meaning the writer does not wish to be identified) majority opinion of the Supreme Court which dismissed our complaint against Justice Mariano Del Castillo for plagiarizing at least three works of foreign authors published by two leading international law journals and a book published by Cambridge University Press.

The majority dismissed the complaint after it accepted the explanation of Justice Del Castillo’s researcher that the failure to attribute was not intentional. In the words of the court: x x x “Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision.. x x x

She electronically “cut” relevant materials from books and journals in the Westlaw Web site and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. x x x as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions. x x x Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.”

In the absence of an intent to plagiarize, the court could not rule that there was in fact plagiarism: “plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.”

Justice Sereno was, however, not convinced: “What is black can be called ‘white’ but it cannot turn white by the mere calling. The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision and the determination of the liability that results from a finding of plagiarism. Specifically, it made ‘malicious intent’, which heretofore had not been relevant to a finding of plagiarism, an essential element.”

The dissenting opinion then adopted the matrix that was included in our supplemental motion as evidence of plagiarism in the text of the decision itself. She then painstakingly enumerated what were instances of plagiarism.

Anent the defense that the “limited operational properties” of MS Word was somehow contributory to the omission of the court researcher, the lady justice had this to say:

“First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the ‘keying-in’ of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.

Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.

Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale.

Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.

Fifth, the mention of Tams in ‘See Tams, Enforcing Obligations Erga omnes in International Law (2005)’ in footnote 69 of the Vinuya decision was not a mere insufficiency in ‘clarity of writing,’ but a case of plagiarism under the rule prohibiting the use of misleading citations.

Sixth, the analogy that was chosen —that of a carpenter who discards materials that do not fit into his carpentry work—is completely inappropriate. In the scheme of ‘cutting and pasting’ that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution.

Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, if they took their legal research courses in law school and their undergraduate research courses seriously. This knowledge can be easily picked up and

updated by browsing many free online sources on the subject of writing standards. In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.”

I have not received a copy of either the majority nor the dissenting opinion. Chances are we will file a motion for reconsideration, precluding me hence from commenting on either opinion. This much I will say: plagiarism comes from the same root word as kidnapping. It is not just morally wrong, it is in fact criminal. It cannot and should not be treated lightly, nor casually. As an educator, I can only concur in the fears expressed by Justice Sereno that the decision will have disastrous effects for the academe. Unless challenged, the majority opinion and the “MS Word” defense may hence be invoked by dishonest students in justifying plagiarism.

In any event, while the Supreme Court’s decision is final on purely legal issues, its decisions on a charge of plagiarism, unprecedented in our jurisdiction, is subject to challenge particularly by those who have the most interest in preventing it: the academe. Surely, the decision cannot remove the perception by at least three respected international scholars that their works were in fact plagiarized and twisted. And yes, lest we forget, Vinuya is not just about plagiarism. Its primarily about at least 60 women who were repeatedly raped during World War II and who, according to the majority opinion of the Court, have no further remedies under our laws.

Published in: on October 21, 2010 at 10:45 pm  Comments (7)  
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MARTIN’S LUPANG HINIRANG: MAY BE IN BAD TASTE, BUT CONSTITUTIONAL

In the ongoing debate about whether Martin Nievera’s rendition of Lupang Hinirang during the Pacquiao-Hatton fight should be the subject of criminal prosecution for allegedly violating the Flag law, reliance has been had on the literal provision of the law which prohibits the ‘rendering of the song’ in a manner that departs from the original score of the national anthem. Little thought has been devoted on whether even assuming there is a breach of the law, the matter could be acted upon by our courts and whether the flag law itself could stand the scrutiny of constitutionality.

First, the said rendition cannot be made the subject matter of any criminal proceeding because it was sang outside Philippine jurisdiction, in Las Vegas, Nevada. It therefore cannot fall within the jurisdiction of Philippine courts.. It is axiomatic that criminal jurisdiction is anchored principally on territorial jurisdiction, that is, courts can only hear and decide cases over incidents that took place within its territorial jurisdiction. While this rule is subject to exceptions, such as in cases involving piracy, counterfeiting of currency, and prosecution of war crimes and torture, the singing of the national anthem in an altered manner does not fall within the exceptions.

Second, and more importantly, the Flag law itself is subject to attack on the ground that it is unconstitutional for violating freedom of expression . In the recent case of David vs. Arroyo, our Supreme Court said that any act, including a law, that curtails a protected right, such as freedom of expression, is presumed to be unconstitutional. The burden of proving that the singing of an anthem in an altered manner falls within the state’s police power lies with the State. Nothing short of a clear and present danger arising from the altered rendition could sustain the infringement of the freedom particularly here where Mr. Martin Nievera can rightfully invoke artistic license.

The situation is analogous to statutes declaring flag burning as criminal offense in the United States. In these cases, the US Supreme Court has consistently ruled that these statutes are unconstitutional for violating freedom of expression. As held in the case of Texas vs. Johnson: “If there is a bedrock principle underlying the First Amendment, it is clear that Government may not prohibit the expression of an idea simply because society itself finds the idea itself offensive or disagreeable.”

Martin’s singing of our beloved Lupang Hinirang in Las Vegas may have been in bad taste but it certainly does not constitute criminal conduct. Call it artistic license exercised in bad judgment but it is still constitutionally-protected free expression and therefore not subject to criminal prosecution.

Published in: on May 10, 2009 at 11:05 am  Leave a Comment  
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