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freedom of expression

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!

Freedom of expression in ASEAN

(Posted in http://manilastandardtoday.com on November 6, 2013) I 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 […] More →

Pugad Baboy and freedom of expression

There appears to be some misunderstanding on the nature of freedom of expression lately. The trigger was a comic strip, the renowned Pugad Baboy. In the strip that invited protest from the normally nonchalant nuns of St. Scholastica’s College, a character remarked : “Galit kayo sa mga gays and lesbians pero sa mga sagrado Katolikong […] More →

Text of our Memorandum Against the Cybercrimes Prevention Act

REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA     ALEXANDER ADONIS, VERAFILES INCORPORATED, represented by its President, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, Petitioners,   -versus- G.R. No. 203378 For: Certiorari and Prohibition, with Prayer for a Preliminary Prohibitory Injunction and/ or Temporary Restraining […] More →

Offending religious feelings

  I did not want to write about Carlos Celdran. As a religious person myself, I found what he did—picketing and disturbing a religious event—offensive and in bad taste. I probably would have been incensed if I were one of those then worshipping at Manila Cathedral. But because public opinion, at least among netizens, appears […] More →

Government defends cyberlaw

It 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 […] More →

Snippets from the oral arguments

  I asked my office to transcribe the audio file of the oral arguments against the Cybercrime Prevention Act of 2012. I’m reprinting what I consider some of the more serious questions propounded, as well as my answers to them: CJ Sereno: But I am also concerned about those who commit suicide.  Those who cannot […] More →

The day we defended a freedom (pix from Vera Files)

  The much-awaited day set for oral arguments against the Cybercrime Prevention Act of 2012 last Tuesday, 15 January, started very early for me. While I was tasked  a week before to bring the wide screen and the Powerpoint projector to the Supreme Court, I was only told on the same  day to set it […] More →

THRUST AND PARRY ON THE CYBER LAW

Thrust and parry on the cybercrime law In a meeting called by Justice Roberto A. Abad and held last Friday, January 4, the 15 petitioners against the constitutionality of the Cybercrime Prevention Act of 2012, with Solicitor General Francis Jardeleza also in attendance, identified the issues to be argued by specific counsels. I was designated […] More →

Top ten issues for human rights in 2012

Here’s my choice for the top ten most important developments for Human Rights in the Philippines for 2012: 1. Passage of the Anti-Enforced Disappearance Law. Unfortunately, the passage of this law was overshadowed by the passage of the Reproductive Health Law. I say unfortunate because unlike the RH Law which in jurisprudence says is a […] More →

ADONIS PETITION VS CYBERCRIMES LAW AMENDED

PETITION VS CYBERCRIMES LAW AMENDED The Center for International law and the Southeast Asia Media Defense, counsels for Davao based broadcaster Alexander Adonis, amended yesterday their petition to have the recent Cybercrimes Prevention Act of 2012 declared unconstitutional. In their amended Petition, Centerlaw asked the Supreme Court to expressly declare Art. 355 of the Revised […] More →