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

The Senate is higher than the Supreme Court

Thank goodness Senator Miriam Defensor-Santiago is back, albeit temporarily. Fault her for everything else but the senator certainly knows her law. Since the impeachment of Chief Justice Renato Corona started, speculations have abounded on whether the Supreme Court will intervene and order its halt since there are at least seven petitions pending before it to enjoin the impeachment trial. Also, debates abound in connection with Article 1 of the impeachment complaint on whether the Senate may review decisions of the Supreme Court, notably, that of De Castro v. Judicial and Bar Council that legitimized Corona’s midnight appointment.In one take at the podium, Santiago educated the bar, the bench and the public: “The Senate, as an impeachment court, is higher than the Supreme Court   x x x  (it) should be called the Presidential High Court of Impeachment, It is “not subordinate to the Supreme Court, given the constitutional phrase, “exclusive power to try and decide” on the impeachment of the chief justice.     x x x You might be supreme but we are high.”I myself was a party in case that sought to restrain an earlier attempt to impeach a Chief Justice of the Supreme Court, Hilario Davide. While the case does not bear our name in its title, having been beaten in its filing by someone else who filed a six-page petition literally hours before we filed our 50-page opus, we were convinced then, as we still are today, that the expanded certiorari power of the Court, or the power to declare any act of any other branch or instrumentality of government as null and void when contrary to the Constitution and existing laws, vests in all citizens a standing to enforce a public right. We were sustained. Not only did the Court say that we had standing to question the impeachment of then CJ Davide as a matter of enforcement of a public right; we were also sustained on the merits of the case. That is, that initiation of an impeachment complaint for reckoning of the one year prohibition on the filing of more than one impeachment complaint was reckoned from date of filing and referral to the House Committee of Justice. The congressmen then insisted that it was from the date when the Justice Committee came up with its recommendation to the Plenary either to dismiss or proceed with the articles of impeachment.

During oral argumentation, my first time then, I argued simply that if we were to go by the House construction, what happens when the plenary rejects the findings of the Committee and refers the matter back to them? Even if the act of the plenary took more than one year, the impeachable officer may be liable to defend himself more than once in a year. I also argued that the rationale behind the bar was to discourage nuisance complaints as otherwise, our impeachable officers may end up just defending themselves from impeachment all the time.

But what the Supreme Court has not resolved until today is whether initiation is by mere filing alone of a complaint — such that a frivolous complaint ala Oliver Lozano’s against GMA- could preempt a more substantial impeachment complaint. Unfortunately, the Supreme Court dismissed two pending petitions in this regard, including one filed by then-Rep Noynoy Aquino. We would now have to wait for the opportune case for a resolution of this issue.

Meanwhile, despite the fact that the Supreme Court has not acted on any of the pending petitions to restrain the on-going trial, it could still do so. It would not look good and neither would it be constitutional. The difference between our petition then in the Davide impeachment and the petitions today is that the Senate now has already assumed jurisdiction over the impeachment complaint. In our case, we restrained the transmittal of the complaint to the Senate and succeeded. Hence, Senator Santiago was again correct — the Senate now is the sole and only judge of whether CJ Corona stays or goes.

She was also correct in arguing that the Senate as an impeachment court is higher than the Supreme Court. My law partner, Joel Butuyan, very early on argued: if it is true that the impeachment court cannot inquire into the constitutionality of decisions penned by impeachable officers, why did the Constitution vest it with the power to try officials for ”culpable violations of the Constitution?” This has prompted Deputy Speaker  Raul Daza, the lead pubic prosecutor for Article 1, to argue as Senator Santiago has, that the Senate sitting as an impeachment court is akin to a Constitutional Court and is hence, above the Supreme Court on the issue of a public officer’s fitness tor remain in office.

Thank goodness for Senator Miriam Defensor-Santiago. She will be missed when she goes to The Hague. Despots, mass murderers, criminals against humanity and genociders – beware. She’s coming for you.


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