A blow to freedom of the press


In an en banc resolution signed by its clerk of court, the Supreme Court reversed itself on the issue of live media coverage of the Ampatuan massacre case. In its earlier decision, the court belittled the accused’s argument that live coverage will imperil his right to be presumed innocent since it will amount to a trial by publicity and would result in a pre-judgment.

In its earlier decision penned by now Ombudsman Conchita Carpio-Morales, the high court ruled that such fear is unfounded as it is not supported by any empirical study. It then applied the constitutional commitment to freedom of the press and ordered live coverage, saying that the sheer number of victim families (58), the number of accused (196), and witnesses could not be accommodated in the courtroom. But more importantly, it recognized the neutrality of media coverage. According to the court: “Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.”

But in its decision dated October 23, 2012 with no indication of who the ponente of the decision was, the court reverted to the prior jurisprudence of in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case, which ruled:

“Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences that might affect their testimony. Also, teledesting not only increases the trial judge’s responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. x x x The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.”

Of course, as one of the private prosecutors in the case, I view this recent ruling as a setback to freedom of the press and to the cause of transparency. In jurisdictions that used to ban live coverage, the concern was the influence of publicity to lay people who sit as jurors in criminal proceedings. In contrast, in our system, the issue of guilt or innocence is made by a judge with impeccable credentials in the law and in the rules of evidence.

But more importantly, even in jurisdictions with the jury system—which include all the States in the United States except for the District of Columbia, the United Kingdom, and even international tribunals such as the International Criminal Court—now allow live television coverage borne of their experience that other than lack of empirical evidence that live media coverage is prejudicial to the accused, their respective jurisdictions also recognize the right of the people to information on matters concerning public concerns. In all these jurisdictions, criminal prosecution is vested public interest since all crimes are committed against the people of a state. In other words, all jurisdictions which now allow live media coverage of trials have engaged in a balancing of interest test and tilted the scale of justice in favor of the public’s right to press freedom and the right of the people to information.

While the court, in its second decision, ordered the showing of live feed of the proceedings in court rooms in Mindanao, such a decision contemplates that only the private complainants have an interest to witness the proceeding of the “trial of the century”.

With all due respect, this is a myopic view of who were victimized by the massacre. While the 58 families may be the only ones with standing to claim monetary damages as a result of the massacre, the fact that at least 33 of the victims, including the 15 families that we represent, are media practitioners have given the entire country a right to witness the proceedings. In the words of UN Special Rapporteur Franck La Rue, the killing of a journalist is prima facie an affront on freedom of the press. While the Court’s second order may enable the private complainants based in Mindanao to witness the prosecution, what happens to the 100 million Filipinos and the rest of the world who have the right to protect and promote freedom of the press?

Press Freedom?


Yesterday was the occasion for the world to celebrate Press Freedom Day. As if to mark it, but with no prior plans, yesterday also marked the termination of the hearings in connection with the preliminary investigation for the murder of slain Palawan broadcaster, “Doc Gerry Ortega”. I was taken back with what Dr. Patty Ortega, widow of the slain broadcaster, said to mark the occasion; “Is there press freedom when broadcasters like my husband are killed for what they say? There can only be press freedom when the killers of these broadcasters are investigated, prosecuted, and punished. There can only be press freedom if these killings cease”.

Patty Ortega is no ordinary grieving widow. She is a Doctor of Veterinary Medicine, a product of the University of the Philippines, and under normal circumstance, would have preferred the barking of canines in the sterile conditions of her operating room at her veterinary clinic. She has said so herself. She was, however, constrained to abandon the charivari of canine barks when very powerful people had her husband killed. Today, Patty, together with the loved ones of the 32 slain journalists who perished in Maguindanao, and the other families of slain journalists, specially those who were slain for as long as 11 years ago with no one charged for these murders to date, are living evidence that contrary to popular belief that Philippine media is amongst the freest in this part of the world, such freedom is deceptive until and unless the ultimate form of censorship – murder — ceases to be a weapon to infringe on this freedom.

It was also disconcerting that former Governor Joel T. Reyes, one of the named respondents in the murder case, attempted to cast doubt on the credibility of the witness Rodolfo Edrad, otherwise known as “Bumar”. According to the former Governor, Bumar has a pending warrant of arrest for the crime of murder in Lucena City. While the pendency of this warrant of arrest may be a fact, I nonetheless argued in the hearing that it is still irrelevant and immaterial since until convicted, “Bumar” and all other accused are presumed to be innocent. What was particularly alarming was not so much the existence of the warrant, but the circumstance by which it was issued. For one, while Patty Ortega has been dutifully attending the preliminary investigation for the killing of her husband this past three months, Bumar was charged even without the benefit of a preliminary investigation. This prompted one Palaweño to declare that justice in this country accords the rich like Reyes et al. with statutory rights but denies poor individuals this same right. Moreover, the timing was also suspicious. This Lucena murder case had been archived and has been pending for at least 4 years. Why is it being resurrected at a time when Bumar happens to be a crucial witness to the killing of Doc Gerry? In his sworn statements, Bumar identified both former Governor Bong Carreon of Marinduque and Joel T. Reyes as having ordered the killing of Doc Gerry. And yes, if authorities will enforce the standing warrant, this may mean that Bumar may be compelled to leave the custody of the DOJ’s Witness protection Program. If this happens, Bumar will surely be killed. And yes, the Doc Gerry murder case may yet be an addition to the hundreds of media killings gathering dust in some bureaucrat’s file. Fortunately, Bumar is represented by competent counsel, Attorneys Fidel Angelito Arias and Alex Avisado Jr. I’m confident that Attorneys Arias and Avisado will insist on the full enforcement of his rights, including his statutory right to a preliminary investigation.

Other threats exist against press freedom in this country. For instance, despite efforts to decriminalize libel, Congress has shown no signs that it will pass legislation decriminalizing it. Under Human Rights Law, criminal libel is inconsistent with freedom of expression because its aim, that of protecting the privacy of private individuals; is grossly disproportionate with the means resorted to in furtherance of this aim, imprisonment. It is also viewed as unnecessary given the existence of an alternative means by which to promote its aim, that is, civil damages. Likewise, Congress has also failed to enact a Freedom of Information law, despite the fact that this was a campaign promise of P Noy. This law is necessary not to provide for the right itself, as the right to information is a self-executory right already provided in the 1987 Constitution, but for its methodical enforcement. In other words, the law should facilitate exercise of the right by providing for procedures and penalties for violations of the same.

Furthermore, but not the least, the economic rights of the media practitioners themselves, should be addressed if we are to achieve true freedom of the press. More often than not, society itself ignores this aspect of the profession. Perhaps it is because of the mistake that since journalism is a “public trust”, journalists are hence not entitled to decent economic remuneration for their work. This view of course ignores the fact that while the exercise of a profession is not for sheer profit, professionals themselves are nonetheless, entitled to a decent standard of living. This is recognized as an economic reality and is a human right itself. Ultimately, unless newspapers, radio and television outfits provide for the economic needs of their workers, the temptation to practice journalism as a business by itself maybe too strong to resists. Ultimately, individuals who have made a “killing”financially out of the practice of journalism pose the same risk to press freedom as those who have been literally killing journalists. #30#

CENTERLAW’S STATEMENT ON WORLD PRESS FREEDOM DAY


As Filipino journalists mark World Press Freedom Day today, the Center for International Law (CenterLaw) urges President Benigno Aquino III to move decisively against the forces of impunity that have continued to imperil free expression and freedom of the press in the country.

“The killings targeting journalists have not stopped,” said CenterLaw Executive Director Romel Bagares. “And we have yet to see an effective law on freedom of information become a reality.”

Meanwhile, libel has remained a criminal offense in the Philippine statute books, the lawyer added.

He also said the Ampatuan massacre case has already cleared the 500th day-mark with the families of the victims still unsure about obtaining swift justice.

“As one of the founding institutions of a Southeast Asia-wide network of groups espousing freedom of expression, CenterLaw wishes to remind the President that he was elected into office by a groundswell of support from people who want to see real change happen in Philippine society,” Bagares said.

Centerlaw, a member of the Southeast Asia Media Legal Defense Network, has brought a slew of complaints to the United Nations Human Rights Committee (UNHRC) on the repeated failure of the Philippines to abide by its obligations under human rights law to provide effective remedies against impunity directed at journalists.

It has a pending complaint against the continued criminalization of libel in Philippine law. Early this year, it also took up the cudgels before the UN human rights body on behalf of the families of five Mindanao journalists whose murders had remained unsolved.

The Center has alleged that Mindanao-based journalists William Yap Yu, Dennis Cuesta, Maricel Vigo, Juan Pala and Fernando Lintuan were all killed in separate instances across a time span of eight years, from 2000 to 2008 but until now, none of the murderers had been brought to justice.

Meanwhile, the Center used the case of broadcaster Alexander Adonis, who was jailed for libel against former House Speaker Prospero Nograles, as a springboard to question the criminalization of libel in the Philippines before the UN human rights body.

CenterLaw utilized the ‘Individual Communication’ procedure under the First Optional Protocol to the International Covenant on Civil and Political Rights in both situations.

“We hope the President realizes that the trial of the century in the Philippines – the Maguindanao massacre case – is a cornerstone of this administration’s fight against impunity,” said the lawyer, who had worked as a journalist for eight years before shifting to law. “We would like to see him make policy directives that stress the importance of this case to his administration, including official government support for the families of the victims.”

One Year Later


One year after the world’s deadliest attack against journalists, the families of the 58 victims of the Ampatuan massacre continue to hope that their quest for justice will not be in vain.
Time, though, does not appear to be on their side. A year later, the numbers are dire: both the prosecution and defense have told the court that they will present the testimonies of at least 500 witnesses. After a year of trial, only 13 witnesses have thus been presented, many of whom may still recalled for cross-examination since almost all of those who have testified did so only in opposition to the Petition for Bail filed by a principal suspect in the case, Andal “Unsay” Ampatuan Jr.

Worse, of the 196 accused of perpetrating the massacre, one has since been absolved, and only 79 have been apprehended by the authorities. An overwhelming number of those indicted for the massacre continue to be at large, including no less than 21 members of the Ampatuan clan. Of

those already in custody, only 51 have been arraigned. The patriarch, Andal Ampatuan Sr. and former Autonomous Region for Muslim Mindanao Governor Zaldy Ampatuan, have both not been arraigned because they still have pending petitions in the Court of Appeals questioning the existence of probable cause against them. Meanwhile, at least three witnesses, including self-confessed gunman, Suwaid Upham, have been killed and silenced. Many other witnesses, including their immediate families, are on the run fearing that their testimonies may endanger their own lives and limbs, including those of their loved ones.

There are some good news. To begin with, at least five members of the Ampatuan family, including the patriarch and his two sons, are in jail while the trial drags on. “ There is at least consolation in the fact that although they have not been found guilty, the Ampatuans are already paying for their sins in jail”, said Myrna Reblando, whose husband, Alejandro or “Bong”, was the only full-time employee of a national daily newspaper, the Manila Bulletin, killed in the massacre. There too is the fact that according to witness Rainier Ebus, it was Andal “Unsay” Jr., his cousin Datu Kanor, who is still at large, and several other gunmen, majority of whom are members of the Ampatuan’s private army, who shot and killed all 58 victims at close range using high powered firearms. Ebus’ testimony corroborated to the letter the narration of Upham, the witness who was killed. “Somehow, this truth on who actually killed my son aggravates the pain”, said Cristine Nuñez, mother of Victor Nuñez, a cameraman of UNTV who was killed in the massacre.

There have also been at least two witnesses who positively identified the patriarch, the former ARRM governor and other members of the Ampatuan family as taking part in the planning of the massacre. Witness Lakmudin Saliao, a former household helper of the Ampatuans, testified that he was present in at least two meetings where the clan agreed that their own relative, Esmael “Toto” Mangundadatu should not be allowed to challenge their rein in Maguindanao. According to the witness, the decision was unanimous: kill “Toto” and whoever would be with him when he files his certificate of candidacy. At one point, the patriarch was quoted by this witness as having ordered his son “Unsay” to spare the journalists and women who were part of the convoy. But the same witness related how the old man relented after being told by his son that the survivors may give evidence to the crime if their lives would be spared.

More importantly, the witnesses presented thus far have testified on attempts to cover up this massacre beyond the earlier attempt to bury all of its victims and the vehicles that they were on. The former house help testified how immediately after the carnage, the patriarch authorized the release of P400 million (roughly $10 million) to pay off prosecutors, investigators, and witnesses whom they wanted to retract their earlier testimonies. Worse, the witness also testified how no less than a Cabinet member of the former Arroyo regime, Jesus Dureza, who ironically was a former journalist himself, was ordered to be given at least P20 million pesos ($500, 000) albeit for still unclear reasons. What is clear though that it was to the same Jesus Dureza to whom the Ampatuan clan surrendered the custody of “Unsay” Ampatuan, after allegedly agreeing that no less then former President Gloria Macapagal-Arroyo will ultimately exercise custody over the patriarch’s apparently favorite son and heir- apparent. This bolstered the fears of many of the victims that justice against the killers would have been impossible under the past regime given the Ampatuans’ close personal and political ties with the former president.

Meanwhile, the relatives of the victims continue to grapple with both the emotional pain and financial pressures brought about by the loss of their loved ones, many of whom were the sole breadwinners of their families. While the Philippine government has given each of the victims at least $6,000 by way of financial assistance, this could hardly compensate them for both the economic loss and the emotional pain created by the massacre. “I have to be strong for the sake of my child. I have to invest the little financial assistance I have received to raise my son’, declared Arlene Umpad, live-in partner of McGilbert Arriola, a camera man for UNTV who was among those killed. Arlene has invested part of the money she has received to raise cows in the province of Quezon where she and her child relocated for security reasons. Arlene, apart from tending to her cows, now also has to raise her child alone. Her son was merely three months old when the massacre happened. Her deceased partner was the youngest victim of the massacre.

Many families of the victims of the Ampatuan massacre have opted not to attend the commemoration of the tragedy at the scene of the massacre. “I will be busy tending to the grave of my husband”, said Zenaida Duhay. Another widow, Noemi Parcon, expressed apprehension about the very safety of the commemoration itself since days before, a bomb exploded in the national highway leading to the massacre site. Noemi added: “what is more important is for government to hasten the prosecution so we can obtain justice soon”.

As the Philippines and the world commemorate the worst attack on journalists in modern history, the families of the victims will light candles in the tombs of their loved ones. A candle, in the Philippines, is a symbol of remembrance. To some it also is a means of sending a message that they are not departed.