World Press Freedom day


It was sad that the annual commemoration of the right that has enabled democracy to exist, freedom of the press, came and went without any form of commemoration in the Philippines. Not only that, instead of a fitting celebration, PNoy himself appeared to have belittled the value of a free press when he responded, on the occasion of Obama’s visit, that most of the victims of media killings are not “work related”.

Again, it was unfortunate that the killing of journalists, high up in the US State department’s list of concerns about the Philippines, took a back seat to the EDCA, which was the subject of intense pubic debate. But the President’s nonchalant way of dismissing media killings as “non- work” related, deserves equal condemnation as the one-sided and Anti-Filipino EDCA.

To begin with, the President’s remarks reflects  ignorance on how the human rights community perceives media killing. This is hardly surprising given his ignorance too of the law on state responsibility when he adamantly refused to take responsibility for the Hong Kong tourists massacre and the killing of the Taiwanese fisherman off Batanes. While ordinary mortals can, perhaps, be forgiven for their ignorance, PNoy is President and should have known better.

His view is opposite to the view expressed by the UN Special Rapporteur on Freedom of Expression, Frank La Rue, who has long said that the killing of journalists is prima facie work related. This is because it’s simply unworkable to distinguish between the official role of journalists from their personal lives. Journalists, like priests, lawyers, or any other professional, should practice in their every day life the ideals and high standards dictated by the practice of their profession. Journalists are responsible for contributing inputs in the free market place of ideas. Their inputs are then used by the public in assessing the truth and in forming their opinions. This is why their roles are crucial in a democracy Without a free market place of ideas; we do not know what the truth is. Without a market place of ideas, there will be no debates on what the truth is.

This is why journalists are targeted in the first place. The killing of journalists is the ultimate form of censorship imposed by those who fear the truth. The fact that we are the most murderous country in the world for journalists reflects the prevalence of the worse form of censorship. PNoy’s justification that they are not work-related adds ignominy to the killings because the state, which is duty bound to put an end to these killings, is instead justifying them.

Does it make it any less worrisome if these killings are in fact not work related? Certainly not. The duty of the Philippines under human rights law is to protect and promote the right to life. The killings of journalists add ignominy to the breach of the right to life. The fact that the victims may not have been killed because of their profession does not make the killings any less a breach of an international obligation.

In any case, the President’s declaration also highlights his administration’s lack of political will to address these killings. The fact that the administration’s point to the Ampatuan prosecution as proof of its  discharge of duties is a cause for alarm. Five years after the gruesome murder, no has been punished for it. The Ampatuan massacre therefore, contrary to the Palace claim, is further proof of breach of the same obligation. It is testament to his administrations failure to accord the victims an adequate remedy under domestic law, which should be just and expeditious.

Vergel Santos was right. What can  we expect from a President who prior to his assumption of office- never held a real job. The Presidency requires extensive work experience and the wisdom derived from it. This President has neither the experience nor the wisdom for the job.

Meanwhile the killings continue. Just yesterday, we had the 27th victim of media killings under PNoy. At the rate journalists are being killed, they will soon be a rarity in our society.

It is crystal clear that under this administration, Press Freedom cannot be celebrated. We can only mourn for every journalist that is killed. There’s bound to be a lot more of them with the prevailing sense of impunity.

This article first appeared in http://manilastandardtoday.com/2014/05/08/world-press-freedom-day/

P Noy: Why have thou forsaken us?


maguindanao1I wondered what P Noy would say in this year’s SONA about the Maguindanao massacre and other cases of extralegal killings in the country. Since becoming President, he has consistently said something about this malaise. This may be because when he still seeking the people’s mandate, he sought an audience with our clients and promised that the prosecution of the perpetrators of the massacre would be on top of his priorities. This was why one of our clients, Myrna Reblando, wife of slain Manila Bulletin journalist, “Bong” Reblando, the only full time journalist of a national broad sheet to perish in the massacre, agreed to publicly endorse him in a television advertisement broadcasted at the tail end of the campaign period in 2010. That endorsement earned Myrna front seat sitting in P Noy’s inauguration at Luneta.

In 2010, while not expressly mentioning the Maguindanao massacre, P Noy did promise that he would “punish” the perpetrators of extrajudicial killings. In 2011, he expressed confidence that the Department of Justice will go after those behind these extrajudicial killings. In 2012, he expressly promised that he would accord the victims of the massacre justice. Earlier this year, the Secretary of Justice declared that the prosecution of the case would be finished within the term of P Noy.

I then expected that the President would reiterate De Lima’s promise to finish the prosecution of the case before 2016. Alternatively, I was hoping that our recent expose that about 14 of the victims almost entered into a settlement with the accused would prompt the government to discharge its duty to pay compensation to the victims as a consequence of the Philippine state’s breach of its obligation to protect and promote the right to life of the victims. While Deputy Presidential mouth Valte exhibited her gross ignorance of human rights law when she said that this administration will not pay compensation to the victims since it was not responsible for the massacre; I was hoping that those with brains in the administration, such as Secretary Leila De Lima or Secretary Ronald Llamas, maybe upon the prodding’s of CHR Chair Etta Rosales, would already correct the mistake of the mouth named Valte.

So for 1 hour 45 minutes, I, with millions of other Filipinos, eagerly awaited the Presidential pronouncement on how he would protect and promote the most important right of all rights, the right to life.

My heart was hence tattered into pieces when after an hour and forty-five minutes of waiting, the President concluded his SONA without mentioning a single word on either extrajudicial killings or the Maguindanao massacre. My immediate reaction was one of panic. Oh my God, I said, the President is not even sure that the trial of the century could be concluded during his term! If it could not be done during the term of one who had not benefitted from the Ampatuans of Maguindanao, what would happen to the case should the President to be elected in 2016 be indebted anew to the family of the accused? It would certainly be hopeless for the victims.

The fact that I felt this sense of despair is actually to commend P Noy. I have always acknowledged that he is one of the few politicians who did not benefit from the Ampatuans of Maguindanao. On the contrary, he was one of those who allegedly got zero votes in the province in the 2007 elections. This is reason to be confident that there would be a level playing field in the prosecution of the massacre during his administration. But the reality is outside of P Noy, almost all of the contenders in 2016, unless the likes of Grace Poe, Chiz Escudero, or Allan Cayetano make a go for the Presidency, have had some ties with the Ampatuans of Maguindanao. This means that the possibility of a conviction, at least during my lifetime, has dimmed. This is because P Noy’s silence on the massacre is an implied admission that no one is certain when the prosecution of the country’s worse massacre will conclude.

It was also worrisome that despite the fact that there have already been 15 cases of extrajudicial killings of journalists in P Noy’s three-year-old administration, the President was equally silent on what he intends to do with the perpetrators of these killings. This prompted the Human Rights Watch to declare, “We are dismayed that President Aquino, in his State of the Nation Address today, chose not to talk about the continuing culture of impunity in the Philippines. We are disappointed that he did not take the opportunity to communicate to the military and the police that they will be held accountable for human rights violations. President Aquino’s failure to denounce abuses against outspoken activists, environmentalists, clergy and journalists sends the wrong message to abusive security forces and corrupt politicians”. The Center for International Law, for its part declared: “The President’s failure to state how he intend to finish the prosecution of the massacre case points to a lack of political will to punish those who will violate freedom of the press and the right to life”.

As for the victims, three of them, Monette Salaysay, Editha Tiamzon, and Cipriana Gatchalian tearfully asked on the occasion of the 44th month commemoration of the massacre held only a day after the SONA: “why have thou forsaken us?”

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MALAYSIA SHOULD RESPECT FREEDOM OF THE PRESS IN SABAH


Ref:  Prof. H. Harry L. Roque Jr.  is President,of  Media Defense Southeast Asia

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Malaysia should respect freedom of the press in the standoff in Sabah. This is to avoid misinformation of the type that happened ago two days ago. When shooting erupted in Sabah, Philippine authorities said that there were only 2 casualties, while the sultanate of Sulu claimed that there were 14. Malaysian officials, on the other hand,  claimed that 14 followers of the Sultanate managed to escape.

It s in times of crisis that the freedom of the press should be fully protected. Independent of the issue of who has title over Sabah, both the Malaysian and the Philippine public have a right to know what has been happening in the stand-off. Certainly, the death count, as well as the manner by which the human rights of the supporters of the Sultanate of Sulu are legitimate issues imbued with public interest.

The Philippines and Malaysian authorities have been at a standoff when 200 or so supporters of the Sultanate of Sulu went to Sabah purportedly to claim the island back on behalf of their sultanate. In 1878, the Sultanate of Sulu entered into a contract of “pajak” with Overbeck and Dent, the latter as representatives of the North Borneo Trading Company. Malaysians have construed “pajak” to mean cession. The Philippines claim it is a “lease”. Since 1878, Malaysia authorities have been paying to the sultanate the equivalent of 5000 ringgit annually.

Lord Granville, a Foreign Secretary for Great Britain maintained that the UK did not claim sovereignty over Sabah since the North Borneo Trading Company was not an instrumentality of Great Britain. Furthermore, Mr., Treacher, a British consular official who accompanied Overbeck and Dent to Sulu for the signing of the contract of “pajak” claimed that what was signed was a contract of lease.

Both the Philippines and Malaysia are signatories to the International Covenant on Civil and Political Rights. Art 19 of the same recognizes the duties of state parties thereto to protect and promote freedom of expression and of the press.

Malaysian state police recently detained an Al Jazeera team, including its Filipina producer, Jam Aindogan, for covering the standoff. Henry Omaga Diaz of Abs-Cbn news and Maki Pulido of GMA-7 were also asked to leave the area and was threatened by Malaysian authorities with arrest.

The Media Defense Southeast Asia is a regional organization of lawyers defending freedom of expression in Southeast Asia. It unequivocally condemns Malaysia’s utter disregard and violation of freedom of the press in Sabah.

Government defends cyberlaw


jardeleza-roqueIt was the government’s turn last Tuesday to defend the Cybercrime Prevention Act. Solicitor-General Francis Jardeleza single handedly defended the law. The Justices grilled him for at least three and a half hours straight. Almost all of the questions of the magistrates focused on libel and Section 12 of the law, which authorizes law enforcement agents to gather or collect real-time data.

Justice Roberto Abad fired the opening salvo. He observed that while the government has argued that libel is not being penalized for the first time under the new law, Congress must still be presumed to have a purpose for including libel as a content-related offense under the new law. Justice Abad theorized that it must be to make it clear that defamatory statements in the Internet had to be expressly declared by Congress as now capable of being punished as libel. The

Sol-Gen countered that what Congress did was merely to provide publication in the Internet as a qualifying circumstance. He argued that cyber libel was the only offense under the new law that was not subject to a higher penalty, a conclusion that was disputed not just by Justice Abad, but also by Justices Teresita De Castro and Justice Diosdado Peralta. All of them asked the government to show where in the new law this exception may be found. The Sol-Gen then, responding to a question from Justice Abad, opined that reposting a libelous post on Facebook may be subject also to a libel prosecution, but pressing the “Like” button may not be as the latter may represent only an opinion. Justice Abad though observed that while the Solicitor-General has opinions on these matters, the reality is because of the uncertainty on the legal consequences of reposting and liking, this may lead to the chilling of the rights of the citizens to express themselves on facebook.

Justice Antonio Carpio reiterated his view that the current jurisprudence on libel recognizing the actual malice rule in New York Times vs. Sullivan has rendered the libel provisions of the Revised

Penal Code as unconstitutional. Justice Marvic Leonen then asked why Congress, despite the jurisprudence, insisted on a cross-reference to Art. 355 of the Revised Penal Code despite the fact that this provision literally runs counter to jurisprudence. He then asked if the Court should not make a declaration that Sec 4(C) 4 of the cyberlaw is unconstitutional to highlight the distinction between the codal provision on libel in the RPC and jurisprudence. He asked: “may it be that the RTC Judge who convicted Adonis applied the language of the RPC and not the jurisprudence on actual malice?”

Anent the collection of real-time data, there appears to be consensus amongst the Justices that without judicial intervention, the section may lead to an invasion of privacy. Justice Antonio Carpio asked the Sol-Gen how he would feel if the government procures a record of his phone history from his phone company without his consent and whether this would be constitutional. The Sol-Gen replied: “constitutional but barely”, highlighting that these phone records would be “external” information for which there is no reasonable expectation of privacy. What the right covers would be the content of these individual calls, which he described as “internal” information. But where the Justices had great misgivings was on “due cause” as basis for the collection of the real time data. Justice Carpio elicited an admission from the government that it is uncertain who will determine that “due cause” exists. The Sol-Gen opined that it should be the law enforcement agency itself. Moreover, Justice Carpio bewailed why law enforcement agencies want to take a short cut. In his words, law enforcement agents “can always go to a Judge for a warrant”. He even said that the

Supreme Court could even designate Judges to act on these applications for warrants. Justice De Castro observed the absence of a definition of “due cause” which in turn, Justice Mariano Del Castillo said might be “subject to abuse”.

There too were important points raised on cybersex. The Sol-Gen explained that the legislative intent of the provisions against cybersex was to penalize prostitution on the Internet and trafficking

and not to punish obscenity. Justice Abad inquired why the law did not mention prostitution and trafficking in the language of the law. Justice Reyes also asked if the cyber law’s provision on “luring” is superfluous given that the same is already punished in a special statute.

Pursuant to tradition, the Chief Justice asked the last questions. She observed that almost all of the questioned provisions of the law are found in the section on “content related offenses” and that these provisions appeared to be “forced insertions”. She was comparing the “loose” language of these provisions with the very precise language of the other offenses such as cyber squatting. She then asked if there was a way of saving the legislation even if the questioned provisions were

to be declared unconstitutional. The Sol-Gen responded that under the principle of separation of powers, the clear intent of Congress is to penalize all those acts classified as content related offenses.

I received a tweet asking if the nation should now say “kudos” to the Supreme Court. Well, my reply is: too soon. My oral argument against the cyberlaw was my 10th opportunity to argue before the Court. The lesson I’ve learned is this: Never celebrate until the decision is actually handed down.

Lets continue to pray and hope that the supremacy of the Constitution will once more be upheld.

Centerlaw Press Release : For Immediate Release Expelling Jordanian journalist unconstitutional and violates freedom of the press


What  DILG Secretary Jesse Robredo wants to do with Jordanian journalist Baker Abdulla Atyani – either out of ignorance or over-enthusiasm – is unacceptable and is  unconstitutional. Roberedo’s order denies every journalist in this country, foreign and local alike, a fundamental human right protected both by the Philippine constitution and Article 19 of the International Covenant on Civil and Political Rights, freedom of the press.

Atyani and his Filipino  crew composed of audio man Ramelito Vela and cameraman Rolando Letrero went missing in Sulu last week, and were initially feared to have been abducted by the terrorist group Abu Sayyaf.  Now it turns out they are indeed inside the terror group’s lair somewhere in the jungle fastness of Sulu, but not as captives but to interview one of the group’s commanders.

Secretary Robredo wants the bureau chief for Southeast China of the Al Arabiya TV news network sent home and declared persona non granta for interviewing the Abu Sayyaf without informing the government.  He is also is quick to invoke the Human Security Art against the Jordianian journalist, which move only  confirms our worst fears about the same law: that it may be used to unduly restrict media reportage or commentaries on what should be everyone’s concern.

And given the murky history of terrorist groups in Southern Philippines, including their alleged ties with shady characters in the police and the military, the automatic invocation of the HSA against any media reportage on terrorist activities could well be deployed as a tool to repress any call for public  accountability for any official mischief.

Secretary Rebredo should know that mere press statements issued by government officials warning media about alleged or imagined infractions of the law is prior restraint that casts a chilling effect on free expression.

And since when did journalists need to ask for permission from the government to be allowed to exercise their profession?

In the case of Chavez v. Gonzales (G.R. No. 168338, Feb. 15, 2008), the High Court addressed the unconstitutionality of press statements issued by a top official of government warning media of criminal consequences, saying that these cannot stand constitutional scrutiny, for the reason that: “[a]ny act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint.”

Perhaps, he needs some reminding that this case arose from warnings issued by the then Justice Secretary Raul Gonzales and the National Telecommunications Commission against the airing of the “Helllo Garci” tapes. Gonzales threatened to prosecute any media entity that did so.

And the Supreme Court stamped its foot down on it: “in resolving this issue, we hold that it  is  not  decisive that the press statements made by [government officials] were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by [them] while in the exercise of their official functions. Undoubtedly, Defendant Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media.”

As a supposed advocate and icon of good governance, Secretary Robredo should know that free expression is good governance.

It is good governance because allowance for free expression on the public interest empowers citizens; it grants citizens information and opinion on questions that concern the commonweal, and in many circumstances, exposes official wrongdoing that otherwise would have been whitewashed by “praise releases.”            -30-