Je Suis Charlie!


This past week saw two very serious threats to freedom of expression.

The first was the worst terrorist attack in Paris, France in 50 years that left 10 journalists dead. All ten were then attending an editorial meeting of the publication Charlie Hebdo, a tabloid popular renown for its satire. Amongst the subject of its satirical commentary was the Islamic faith.

Some temper their condemnation of the attack in Paris on the basis that after all, the murdered journalists should not have worked for a publication that blasphemed the Islamic faith. This is gross error. Freedom of expression precisely exists to protect unpopular speech. Expression that extolls needs no protection. It is precisely thoughts that might offend some that deserve protection because these kinds of comments still form part of the free marketplace of ideas from which the people discern the truth and form their opinions.

The second was the decision of the Court of Appeals dismissing the appeal of Carlos Celdran from a conviction for the felony of offending religious feelings. Celdran’s conviction was for displaying the placard “DAMASO” in Manila Cathedral during a mass. He allegedly also said that the church should stay out of politics at the height of the debate on the RH law.

Actually, Celdran’s conviction, save for the fact that he is alive, is equally infirmed as the Paris attack. The only difference is that the infringement on unpopular speech has been in Celdran’s case, legitimized by the Courts. But make no mistake about it: in failing to declare that the crime of offending religious feelings is contrary to freedom of expression, the Court has sustained the validity of an archaic law that makes it a crime to criticize the dominant faith in the Philippines. This is no different from the intent of those who murdered 10 in Paris: to suppress information which is deemed offensive.

The marked difference is how the French and we, Filipinos, deal with the threats to freedom of expression. True, there is the fact that the death of 10 journalists should never be countenanced and should be condemned as a brutal affront on a cherished right. This was why millions expressed their condemnation in a giant rally in Paris and on the net worldwide. But here in the Philippines, even when 32 journalists were killed in Maguindanao in the single deadliest attack against journalists worldwide, there was some condemnation, but there was no rally of the size and scope that we saw on CNN a couple of days ago. This is also probably why Celdran’s conviction was barely noticed especially since the entire nation is stricken with pope fever. Why bother, after all, with one who blasphemed the majority faith at a time when the holy Pope is about to visit the country?

How I wish the Filipinos could be more like the French in this regard. True, it was France that gave us modern democracy through the mottos of liberty, freedom and equality. But we Filipinos were also the first to utter the same motto when we declared ourselves the first Republic in Asia.

In other words, we should be more conscious of the role that freedom of expression plays in the promotion of freedom, liberty and equality . Without freedom of expression, there can be no exchange of ideas. Without exchange of ideas, there can be no truth. Without the truth, there can be no opinion. Without individual opinion, there could be no pubic opinion. Without public opinion, there cannot be accountability. Without accountability, there will be no democracy.

Yes, the papal visit is a reason to celebrate. But just as this Pope stands for justice and democracy, the Filipino people should emulate him and be more expressive in condemning threats to democracy and freedom.

Je Suis Charlie!

Welcome to the Philippines, Holy Father!
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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 http://manilastandardtoday.com/2014/08/14/re-examining-freedom-of-expression/

The Cybercrime Law: What’s next?


I just read media reports that the Supreme Court had just denied all pending motions for reconsideration on its earlier ruling declaring the Cybercrime Prevention Act’s provision on libel as being constitutional.

As counsel for journalists Alexander Adonis, Ellen Tordesillas et al., I am of course deeply disappointed with this latest turn of events. In my opinion, the Supreme Court just lost a great opportunity to rectify the inconsistencies in our jurisprudence on freedom of expression. Simply put, while we have adopted the normative value of freedom of expression as the means to ascertain the truth and as the means to form informed public opinion which is indispensable in a democracy, the fact that the Court continues to sanction the imposition of imprisonment for libel contradicts our so-called constitutional commitment to freedom of expression.

Moreover, I believe that this latest decision is a blatant disregard of the view expressed by the UN Human Rights Committee declaring criminal libel in the Philippines as being contrary to freedom of expression. It is thus a breach of “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The view expressed by the UN Human Rights Committee in the case of Adonis vs. Philippines that criminal libel in the Philippines violates freedom of expression is as clear as the light of day. Whether or not the Committee actually expressed the view that the Philippines should repeal its criminal libel law is not the issue. What is clear is that with the declaration, we are in breach of our international obligation to protect and promote the right to freedom of expression, the Supreme Court should have ensured: one, that we cease and desist from the breach by declaring criminal libel as being contrary to international law; and two, it should have provided compensation to all those wrongfully sentenced for criminal libel. Certainly, to uphold a law that provides for an even more draconian libel law since it provides for a longer penalty of imprisonment doing away with the possibility of parole is a continuing breach of our international obligation.

So, what will we do now? This latest Supreme Court decision is tantamount to exhaustion of domestic remedies. When we filed our challenge versus cyber libel with Alexander Adonis as petitioner, we were aiming to implement the UN Human Rights Committee view through jurisprudence. Since the highest court of the land has instead put its stamp of approval on the draconian law, the decision is evidence that we have again exhausted all domestic remedies. This will qualify Adonis et al to return to the UN to complaint that instead of implementing its earlier view, the Republic of the Philippines has openly defied it. We will pray for a second declaration that not only does libel under the Revised Penal Code violate Art. 19, but additionally, the Cybercrime Prevention Act equally violates freedom of expression.

The difference is while the earlier view issued by the UN was against a decision of a Regional Trial Court Judge, this time around, we will ask the Committee to declare a collegial decision of our highest judicial organ as violating international law.

If we succeed — and chances are that we will — the Court will be put in an embarrassing situation where proven experts in the field of human rights will find a decision of our 15-man court as being erroneous and violates human rights law. This would be downright embarrassing for the Court. When this happens,  we can say that when we filed our motion for reconsideration, we gave our Courts the opportunity to avoid the spectacle of an experts view that its decision is wrong.  In the end,  the Court will only have   itself to blame for the ignominy of a decision, which could be condemned by the international human rights community as a violation of human rights law.

In Adonis vs. Republic of the Philippines, the UN Human Rights Committee declared that criminal libel under the Revised Penal law is contrary to Freedom of Expression under Article 19 of the ICCPR because it is not necessary, the existing alterative being civil libel. The Committee also ruled that imprisonment is not proportionate to the means sought to be enforced by the law, which is the protection of the right to privacy of private individuals.

The Philippines has also not complied with the view that journalist Alexander Adonis should be paid compensation for the one-year imprisonment he served for his conviction for libel.

While the views of the Committee are non-binding, no less than the International Court of Justice has said that since these views are the opinions of the most authoritative experts in the field of human rights tasked with monitoring states compliance with their obligations under the International Covenant on Civil and Political Rights, the views should be given much weight.

The Philippines also undertook to comply with the views expressed by the Committee because it ratified the optional Protocol to the ICCPR.

Simply put, the denial of our Motion for Reconsideration now triggers the availability of international remedies against the draconian law. Thank goodness for international law!

The high court should not abdicate its duty to protect freedom of expression


After the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

After the oral argument on the ‘Anti-Cybercrime Act of 2012’ at the Supreme Court (Jan. 15, 2013)

“The high court should not abdicate its duty to protect freedom of expression. No less than the U.N. Human Rights Committee has already declared that Philippine Criminal Libel Law is contrary to Freedom of Expression. The Court’s decision failing to declare libel as unconstitutional is therefore contrary to Human Rights Law.

“Centerlaw and our client, Alexander Adonis, welcome the other provisions of the Act such as the Take Down clause and the decision to strike down the real time gathering of information. This is indeed a major victory for privacy and the right of the people
to be secure in their communication.

“We will continue the fight to nullify criminal libel. Cyber libel is an infringement on free speech.”

Centerlaw issued this statement following today’s announcement that the Philippine Supreme Court ruled that online libel is constitutional.

Centerlaw, through Harry Roque, argued before the Supreme Court on January 15, 2013 that Republic Act 10175 or the anti-cybercrime law is against the law. Four other lawyers argued, representing 15 groups that petitioned against the law.#

The Centerlaw team after the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

The Centerlaw team after the oral argument on the ‘Anti-Cybercrime Act of 2012’ at the Supreme Court (Jan. 15, 2013)

Bloggers equally protected as journalists


 

BLOGGERS enjoy the same protection as journalists.

 

This was the recent ruling of the US Court of Appeals in  the case of Obsidian Finance Group v. Cox. In this case, Crystal Cox, a blogger, claimed that Obsidian finance company was guilty of tax fraud. The US District Court earlier found Cox guilty of defamation and awarded the finance company $ 2.5 in damages. The lower court issued its ruling anchored on the assumption that since Cox is a blogger and not a journalist, a complainant in a defamation suit is entitled to the presumption of” legal malice or a presumption that the defamatory statement is presumed malicious.

 

Further, Cox, as a mere blogger is not entitled to invoke the definition of actual malice established in the New York Times vs. Sullivan case.  The 1964 US Supreme Court ruling set the precedent for the rule that journalists can only be held liable for false information if they knew of its falsity or in utter disregard of the same. Ten years after Sullivan, the US Supreme Court ruled in Gertz v. Robert Welch that the First Amendment required only a “negligence standard for private defamation actions.”

 

First Amendment refers to an amendment to the Constitution of the United States guaranteeing the right of free expression that includes freedom of speech, freedom of the press; or the right of the people to peaceful assembly, and to petition the Government for a redress of grievances.

 

In ruling that bloggers are entitled to the same protection as journalists, the US Court of Appeals covering the jurisdiction of California ruled that the case involved an intersection between Sullivan and Gertz “an area not yet fully explored  x x x in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions”. Citing the US Supreme Court, the Appellate Court ruled:” that a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

 

The dilemma is precisely because of a lack of precision on who are in fact and in law – journalists. In fact, separate definition on who is a journalist indicates a lack of consensus even from those who profess to practice the profession. For instance, the United States Congress, in a draft of a Federal shield law, defines a journalist as “one who works for a traditional media organization for pay or gain”, a definition adopted as well by the UNESCO. This will exclude bloggers altogether from the protection of the proposed shield law. On the hand, the Human Rights Committee in its General Comment, defines  “it is a function shared by wide variety of actors, including professionals full time reporters and analysts, as well as bloggers and others who engage in forms of self-publications in print, on the internet, or elsewhere”.

 

Crystal Cox caseBut outside the definition of who a journalist is, the actual distinction between a regular media outfit and bloggers is the existence of a hierarchy of editorial controls to ensure accuracy in the news and fairness in commentary. This is why traditional journalists themselves sometimes scoff at the notion that “just about anyone can be a journalist”. In fact, Philippine jurisprudence even distinguishes between the amount of latitude given to the media in making factual errors depending on whether it is a “weekly” or a “daily”, with the latter being given wider latitude for mistakes.

 

But all these miss the point. There is protection accorded by the bill of rights not just to freedom of the press, but to freedom of expression in general. The normative values of these two freedoms are identical: to discern the truth and to facilitate “open, robust and even virulent discussion of pubic issues”. If both freedoms have the same normative content, why should the courts distinguish between an input to the market place of ideas coming from one who earns a living by it and one who does so anyway as a public duty?

 

The US Court of Appeal’s decisions, in my view, correctly refused a distinction between institutional media and bloggers because to recognize such would also violate the equal protection clause. This is another constitutional guarantee that those similarly situated will be treated alike. Had the court limited the protection of freedom of expression to professional journalists alone, it would send the message that only professional journalists can contribute to the public debate on public issues. This is contrary to the basic tenet that freedom of expression is a human right and not just a right of journalists.

 

In any case, the fact that journalists are paid and bloggers are not does not constitute a real basis for distinction. In Abrams, Holmes wrote; “the true test of truth is the power of a thought to be accepted in the market place of ideas”. Certainly, Holmes did not write that only paid journalists could contribute to this market.

 

Tagged 

– See more at: http://verafiles.org/bloggers-equally-protected-as-journalists/#sthash.btKihsIu.dpuf

Prior restraint, Tacloban and Corona


 

I am forced to rush the writing of this column because I have to proceed  to the Pasay Regional Trial Court. Apparently, Jo Imbong and  son filed an application for a temporary restraining order to stop the holding of a conference on Reproductive Health currently being attended by 1,500 delegates from all over the world. The hearing this afternoon is on the prayer for the TRO.

I do not know what Jo Imbong alleged in her petition in support of her prayer for a TRO. Media reports say that she seeks to restrain the management of the Philippine International Convention Center, Health Secretary Enrique Ona and the other organizers of the conference since the affair has three panels on safe abortion and access to medical abortion. Media have reported that Imbong and son argued that these panels violate the Revised Penal Code because it encourages the commission of a crime.

I am almost sure that the Revised Penal Code does not punish any incitement to commit abortion, even if Jo imbong’s assertions are correct, but which I very much doubt. This being the case, the mere inducement or incitement is not a crime in this jurisdiction. Accordingly, what the conference will discuss should be treated by the state as protected speech. Accordingly, the prayer for the remedy of injunction will have the effect of prior restraint on the exercise of free speech. Let’s hope that the RTC of Pasay, my home city, will be true to its mandate to uphold the suprmemacy of civil rights over religious dogmatism.

* * *

I was overwhelmed by the readership of and comments on my column on graft in Tacloban. I’d like to thank the almost unanimous expression of support for my view that public international law, the dictates of conscience and the law of humanity does not discriminate on the basis of partisan political affiliations in the delivery of humanitarian assistance to the typhoon ravaged province of Leyte. By way of follow-up, I have since discovered that Dinky “If We Hold On Together” Soliman has been distributing 25 kilos of rice per week for families in Leyte. This is good but I hope not in aid of her election bid in 2016.

Apparently, this large amount of rice was sourced from the recently seized smuggled rice from Vietnam. I suppose  that distributing the fruits of the crime of smuggling to those in need is the most appropriate means of disposing of fruits of a crime. I just hope that smuggling could be curbed once and for all because in addition to depriving our farmers fair access to the market, it also deprives rice traders and allied industries a share of the market. Let’s also hope that the vultures responsible for the anomalous bunkhouses will not profit from the distribution of smuggled rice.

While we’re at it, the anomalous bunkhouses defended by Secretary Rogelio Singson as not being “overpriced” have all been blown away anew by nature. I’d like to hear the good Secretary and Malacañang say again that these bunk houses were not anomalous. Mind you, they were not blown away by a major typhoon. It was more like mere monsoon rains. Let’s refer to these golden bunkhouses as the Yolanda-gate scandal to remind us of the vultures who will make profit from the miseries of others.

* * *

Let me end by saying kind words to Malacañang.

Senator Bong Revilla was off-tangent when he claimed impropriety when the President talked to him to vote to oust Corona from the Chief Justice post. While I am of the view that PNoy certainly has a lot to answer to us, his boss, talking to the senators to rid us of a lying Chief Justice is not one of them. PNoy had nothing to do with the fact that Corona lied through his teeth o when he withheld information about his millions of dollars in dollar deposits in his Statement of Assets, Liabilities and Net Worth.

Moreover PNoy had nothing to do with the bad acting that Corona exhibited in the Senate which sealed his fate as the first Chief Justice removed through impeachment. Corona only had himself to blame for his ouster. Let’s not pass the buck to Pnoy—not on this issue, at least.

 

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Freedom of expression in ASEAN


(Posted in http://manilastandardtoday.com on November 6, 2013)

HarryRoqueI am in Bangkok, Thailand for training on media defense for lawyers from Cambodia, Vietnam and Burma. This is sponsored by Media Defense Southeast Asia with support from the Konrad Adenaur Stiftung and the American Bar Association Rule of Law Initiative.

The prognosis is very bleak. All throughout Southeast Asia, despots continue to infringe on freedom of expression, a right guaranteed by the International Covenant on Civil and Political Rights and customary international law.

Freedom of expression has three aspects: the right to freely hold opinions which is absolute, as in fact, no government can control our thinking process; the right to expression, which may be limited in cases of national emergencies; and right to information. The latter is of course important because without information, people cannot make judgments. Without personal opinions, there will be no public opinion, which in turn, can be utilized to make governments accountable.

The consensus is that all leaders in the region are averse to freedom of expression because all of them suffer from issues of legitimacy. While the degree of repression varies drastically from the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Lest Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the  killing of journalists in the Philippines- the commonality is that leaders in the region are all averse to the truth. The fact is  even at this time and age, many of the regimes in the region lack popular mandate.  When they do enjoy the mandate, like PNoy, they are allergic to criticism.

Dean Raul Pangalangan delivered a brilliant lecture on the normative values of free speech. He summarizes these into four: the democratic rationale, the counter-majoritarian rational, the marketplace of ideas, and the “safety valve” function.

The democratic function is summarized in the leading case of American Communications vs. Douds: “but we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous”. In “Whitney vs. California, it was described as: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

The counter-majoritarian rationale is best summarized in West Virginia State Board of Education v. Barnette: “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The marketplace of ideas was expressed in Abrams vs. US: “To allow opposition by speech seems to indicate that you think the speech impotent ….. But when men have realized that time has upset many fighting faiths, they may come to believe … 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, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”

The “safety valve” function, finally,  was expressed in Whitney v. California: “The framers of the Constitution “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

The Philippines could be the leader in promoting freedom of expression had we not resorted to censorship by murder. It does not help either that our President, despite having a popular mandate, appears antithetic  to criticisms. Nonetheless, the good news is that our media lawyers—led by Centerlaw’s Romel Bagares and Media Defense Southeast Asia’s Gilbert Andres—will be at the forefront of availing of international remedies to support the cause of expression in Burma, Vietnam and Cambodia. That’s good news.