Monday, February 24, 2014

We still speak not with bated breath

When the Supreme Court decided to uphold the anti-cybercrime law, netizens were fast to decry the decision as an erosion of our fundamental right to free speech and paving the way for online martial rule.  This issue assumes much relevance at a time when we celebrate the 28th year anniversary of the EDSA People Power Revolution that toppled the Marcos dictatorship.

Those who lived through the Martial Law years know that they could only criticize Marcos and the government in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search and Seizure Order) by the state’s security forces.  This could mean being incarcerated without charges or worse, joining the ranks of the desaparecidos or those who disappeared and never to be heard from again.

The 1986 People Power revolution ended this garrison state and with it came the restoration of our cherished freedoms, particularly our freedom of speech and expression which is now enshrined in Article 3, Section 4 of the Constitution.  It prohibits Congress from making any law abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 

The advent of modern technology even expanded the exercise of this freedom by providing us the medium of the cyberspace where we can vent our frustrations with the government and its officials or cast our criticisms and disgusts.  Imagine if tweeter or facebook were already existing during the time of Marcos. The authorities would probably be spending countless hours tracking emails, tweets and status updates adverse to Marcos and his cohorts.

One only needs to read the papers, listen to the radio, watch the TV, surf the internet, browse facebook or read tweets to see that our freedom of speech is still very much intact – and we no longer have to criticize the government in bated breath.  28 years later we can still speak freely against the government and our public officials without fear of punishment.

And what about the anti-cybercrime law that punishes online libel?  Did it not remove or downgrade our free speech right with the connivance of the Supreme Court?  There is so much misinformation circulating the web about this.  Freedom of speech is not absolute.  The state can legitimately prohibit speech that is libelous, obscene, incites lawlessness, or is in the nature of fighting words (those that by their very utterance inflict injury, incite lawlessness, hatred or violence).  These are unprotected speeches that the state may validly regulate.

Libel, which is the utterance of defamatory words that destroy or injure another’s character or reputation, has always been punished even before the enactment of the anti-cybercrime law.  What the anti-cybercrime law merely did is recognize the internet as a means by which libel may be committed or as a medium where defamatory words can be published.  If a statement is libelous when made on a newspaper, radio or television or when uttered orally, it does not become less libelous when made on the internet.

The anti-cybercrime law does not punish protected speech.  By importing the definition of libel under the Revised Penal Code, the jurisprudence outlining the acts punishable when the defamatory remarks are made against a private individual and when made against a public official or figure are also imported.  Thus, speech critical of a public official or figure, even if defamatory, remains protected if made without malice and, therefore, cannot be punished as libel.

Those who say that the anti-cybercrime law will stifle free speech are clearly making false and misleading statements.  The criticism of official conduct, condemnation of malfeasance in public office or denunciation of any wrongdoing by our public officials  remain part of our protected speech and nowhere under the anti-cybercrime law, or in the Supreme Court’s decision, has this been made a punishable act.   

Monday, December 23, 2013

The Magic that is Christmas

The Star of Bethlehem .
In a recent Pew Survey in the U.S., it found that only about half of those who celebrate Christmas see it as a religious celebration while the rest see it as a cultural non-religious event.  But whatever belief one has about Christmas, the fact of the matter is that Christmas is a celebration that is based and rooted on the birth of Jesus Christ; in fact, the name with which this globally celebrated event is known is derived from the name of Christ himself. 

Every time Christmas comes, I am in awe of the far-reaching influence and legacy that this humble carpenter from Nazareth has left in this world.  His ministry is brief (a little over three years) and confined in and around the area of his birthplace (biblical accounts show that he never traveled more than 200 miles from Bethlehem), and yet Jesus left an enduring and worldwide teaching of love, peace, generosity and humility that no being who has set foot on the face of the earth has ever done.  He is truly the savior of the world!

Commercialism aside, what with all the merchandise being pedaled to us by merchants, there is no other season of the year where gift-giving is so pervasive and the air is filled with the ambience of kindness and forgiveness.  It is this time of the year where people are more tolerant and forgiving, letting go of offenses against them with the usual remark, “forget about it, it’s Christmas anyway”;  it is this time of the year where goodwill among men pervades and you see people with happy countenance everywhere.

There is no other event where even fighting men dropped their rifles and muted their canons and crossed enemy lines to engage in Christmas greetings and songs and even exchanged gifts, as was done by German and British soldiers around Christmas time during World War I. 

Whether you are a believer or not, the song is right. Christmas is “the most wonderful time of the year.”

Merry Christmas to you all and let us keep the spirit of kindness and giving alive!    



Sunday, May 19, 2013

The Thin-Skinned Brillantes

Comelec Chair Sixto Brillantes, Jr.
“The interest of society and the maintenance of good government demand a full discussion of public affairs . . . a public officer must not be too thin-skinned with reference to comment upon his official acts,” so goes Justice Malcolm in the landmark case of US v. Bustos, in his disquisition on freedom of speech.

But Comelec Chairman Sixto Brillantes, Jr., a former San Beda College of Law professor and practicing lawyer,  must have already forgotten this mandatory case law reading in law school when he threatened to sue critics of the just concluded midterm elections in the Philippines.  Reacting to allegations of massive glitches in the implementation of the 2013 computerized elections and criticisms that it was worse than the 2010 elections, Brillantes said “[t]hose people who keep on blabbering but know nothing, they are the ones I’m going to charge.  All of them.”     

While it is completely understandable that planning and handling the elections in 1,630 municipalities and cities around the country is a daunting task and must be draining, physically and mentally, Brillantes should not lose sight of the fact that he took the job of election chief voluntarily and as a public office, it is open to public criticisms, whether justified or not.

Threatening to sue critics – aside from being stupid, because criticism of official conduct, unless proven to be malicious, is not libelous – has a chilling effect on free speech, for it deters others from commenting on what they perceive to be inefficiencies in the government and calling on public officials for any wrongdoing.  In a democratic society like the Philippines, freedom to comment on the workings of the government and conduct of public officials is one of the strongest checks against the excesses, abuses, and other misconduct of officialdom. 



Thursday, October 25, 2012

Duterte's Chilling Proposition

The offer of a five-million-peso reward money by Davao City Vice Mayor Rodrigo Duterte to anyone who can literally bring to his office the head of notorious carnapping (motor vehicle theft) suspect Ryan Yu – made on national TV, no less – sends a chill to the spine and speaks badly of the country’s state of law enforcement.

While this is nothing new for a man who has been dubbed by Time magazine as the “Punisher,” for his reputation for alleged extrajudicial killing of suspected criminals during his tenure as mayor of Davao City, Duterte’s offer sends the message that law enforcement in the Philippines is inept, hence the need for vigilantes to carry out the job that the police have failed to do.

Every law abiding citizen should come out and condemn this reprehensible incitement to lawlessness by no less than a public official. Duterte was actually telling the public to kill and mutilate by decapitation a man who has yet to be pronounced guilty by a court of law. Although Yu is the suspected – take note, “suspected” – mastermind of several cases of carnapping, he is no less entitled to his day in court and could only be meted with criminal punishment after he is found guilty of the crimes attributed to him. Also, Duterte was not only prescribing a penalty that has been abolished in the Philippines, but is prescribing a punishment so savage and shocking to our senses that it should have no place in civilized society.

Vigilantism, which is what Duterte was encouraging, degrades law enforcement and incites lawlessness.  While the reward system to capture suspected criminals is meant to help law enforcement, this is not exactly how it is supposed to work. For safety reasons and observance of the rule of law, private citizens should only be required to report to the authorities the whereabouts of suspected criminals and not put the law into their own hands by carrying out the arrest themselves, let alone kill the suspect!

Vice Mayor Duterte should be brought to task for his reckless and dangerous conduct. As a public official, he is duty-bound to observe his oath of fidelity to the Constitution and the rule of law. The Code of Conduct and Ethical Standards for Public Officials and Employees require him to refrain from doing any acts contrary to law and public order.

Wednesday, March 30, 2011

Lacson is not - and should not be - above the law

Two words describe the actions of Sen. Panfilo Lacson who went into hiding before the warrant for his arrest in the Dacer-Corbito double murder case could be served, and later on surfaced after the charges against him were thrown out by the court: mockery and impunity. As defined by the dictionary, mockery is ridicule, contempt or derision, while impunity is immunity from detrimental effects, such as punishment, for one's actions.

It is true the court nullified Lacson's indictment for the murder of publicist Bubby Dacer and his driver Emmanuel Corbito in 2000, but before this a warrant for Lacson's arrest was issued upon initial finding that there was probable cause to detain him. Under the criminal justice system, when there is a finding of probable cause - although erroneous at times - a warrant of arrest is generally issued to detain the accused person pending trial.

In serious offenses like murder, bail is not a matter of right and the accused person has to prove that the evidence of guilt against him is not strong to obtain temporary liberty. Failure to do so would mean the accused will have to stay in jail while the case against him is being tried. Panfilo Lacson, a senator no less and a former PNP Chief and head of the Presidential Anti-Crime Commission under former Pres. Erap Estrada, flouted such established criminal procedure by going into hiding or, more to the point, disregarding the actions of those invested with the authority to run the criminal justice system while at the same time seeking remedies from them by asking the nullification of the charges against him. It is a classic case of eating one's cake and having it at the same time.

For a person who holds one of the highest public offices of the land and who was once chief enforcer of one of the pillars of the criminal justice system, Lacson's actions prove to be most egregious and reprehensible. Like most people who find themselves on the other side of the law, he should have been man enough to submit to the jurisdiction of the authorities, face and contest the charges against him within the system, instead of becoming a fugitive.

But no, Lacson would rather live in the comfort of his hiding than suffer jail time. His lame excuse for running away is that injustice was being perpetrated against him. You don't run away from injustice, but fight it. People who had not the benefit of military training like he did, such as Ninoy Aquino, Jose Diokno and Jovito Salonga, among others, did not hide when they were being persecuted during martial law. They bravely faced the trumped up charges against them and became symbols of the struggle against oppression while in jail.

With Lacson, there is even more reason for him not to hide. As a high profile personality, how can the government possibly fool around with his rights, let alone ignore them. It is true our justice system still leaves much to be desired, but gone are the dark days of martial law when an accused person's rights mean nothing. There is a cornucopia of rights now available to an accused person, guaranteed by no less than the Constitution, which a shrewd criminal lawyer can exploit at every angle to his client's advantage. Is it a surprise that Lacson got off the hook?

Now, never mind that Lacson has been cleared by the court. Rightly or wrongly, our human fallibility being an unfortunate part of any system we create, the court has spoken and either we accept such decision or legally challenge it if still feasible. But as far as what Lacson did in trifling with the processes of the law, something should be done about it and not let is slip as yet another bad example of some bigwig acting above the law.

As a senator, Lacson should be expelled for disorderly behavior. What could be more disorderly than violating one's oath to uphold and defend the rule of law and running away from and not performing one's duties as an elected senator? Not to punish Lacson for what he did would reinforce - yet again - that those in power can easly break the law with impunity.

But then again, the value for the rule of law in our country is deplorably low, if not lacking, since we have elected into high office people who helped perpetrate a dictatorship, conspired in the imposition of martial law, convicted of rape, launched coup d’etats, etc.

Thursday, March 24, 2011

Libel and free speech

In a free society like ours, there is a constant clash between the right to free speech and the right to protect one’s reputation. And when this clash lands on the doorsteps of our courts, judges sometimes find themselves constrained to draw a fine line between the two. The most complicated of all is when the opposing rights involve a matter of public interest.

The 20-million peso libel suit of Pampanga Chamber of Commerce (Pan-Cham) President Rene Romero against veteran Pampanga journalist Bong Lacson is one such case, wherein the trier of facts and law will have to carefully distinguish between what is constitutionally protected speech and plain and simple defamation.

Libel, which is the publication of defamatory statements that damages a person’s reputation, could either be on a private or public matter. If it is on a private matter, as when it involves a private person or purely private concern, the law presumes every defamatory imputation to be malicious and, therefore, actionable.

But when the defamatory statements involve a public official or a matter of public interest, the complainant must prove malice to become successful. This is in consonance with the freedom of speech guarantee under the Constitution, which protects speech on matters of public interest.

Malice has been defined in the US case of New York Times v. Sullivan as knowledge of the falsity of one’s statements or reckless disregard as to whether or not they are true. In other words, one knows that his statements are false or entertains serious doubts as to their truthfulness, but nevertheless makes the statements.

In the landmark 1999 case of Borjal v. Court of Appeals, our own Supreme Court further defined malice as the presence of spite or ill will; when a person acts not out of response to duty, but for some unjustifiable motives or bad intentions. In that case, the Court exonerated Philippine Star columnist Art Borjal of libel upon finding that he acted out of a sense of civic duty and in the performance of his job as a newspaperman in exposing alleged anomalies in the government.

The Romero libel suit appears to involve a matter of public interest: the Most Outstanding Kapampangan Award (MOKA) – a highly publicized and much anticipated yearly event in Pampanga, wherein awards of recognition are conferred to Pampangueños who have made significant achievements in various fields of endeavor or contributions to the community. If the court finds Lacson’s article as one involving a matter of public interest, it would have to determine the presence of malice to make him liable for libel.

It should be noted that under the doctrine of constitutional defamation, the fact that the defamatory statements are false or erroneous will not necessarily give rise to liability for libel. In the words of Borjal, “[e]ven assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate . . . There must be some room for misstatement of fact as well as for misjudgment.”

It is clear then that when matters of public interest are involved, the Constitution allows greater leeway for speech. As Justice Brennan eloquently said in New York Times, "debate on public issues should be UNINHIBITED, ROBUST and WIDE OPEN, and that it may well include VEHEMENT, CAUSTIC and sometimes UNPLEASANTLY SHARP ATTACKS on the government and public officials.” (Emphasis added).

This, of course, does not mean conferment of an unbridled license to defame. If the offending words are made with malice, the speaker or writer could still be held liable. For in such case, the objective is no longer to create or invite discussion on issues of public interest, but to attack the character of another under the guise of free speech or press freedom.