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 PampangueƱos 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.

Wednesday, March 2, 2011

When hateful speech is protected

Voting 8 to 1, the nine-member US Supreme Court upheld the right of the members of the Westboro Baptist Church to picket the funerals of US soldiers killed in the line of duty and hold signs displaying hateful language, such as "Thank God for Dead Soldiers," "Fags Doom Nations," and "You're Going to Hell," among others. Fred Phelps, founder of the denomination, claims that God is punishing the United States, such as the death of soldiers, for its tolerance of homosexuals.

The case, Snyder v. Phelps (March 2, 2011), emanated from a suit by Snyder, father of Marine Lance Corporal Matthew Snyder who was killed in Iraq, claiming damages for the emotional distress and invasion of privacy inflicted upon him and his family as a result of the picketing by Phelps and his fellow parishioners during Matthew's funeral. The jury awarded millions of dollars in damages to Snyder, prompting Phelps to appeal on the ground that the decision violated his First Amendment right of free speech.

There is here an apparent clash between the rights of the bereaved to privacy and respect for their dead and the right of the picketers to free speech.

The almost unanimous decision turned on a determination of whether the picketers' speech involved a matter of public concern. A speech is said to be of public concern when it relates to a matter of social, political and other concern to the community or it relates to a matter of general interest to the public. The Court found this to be present in the picketers' case as their speech relates to the conduct of the United States and its policies as a nation, particularly in relation to homosexuals.

According to the Court, speech on a matter of public concern, no matter how distasteful or controversial, occupies the highest rung in the hierachy of First Amendment rights values. If the speech - its content, manner and context - is of public concern, then it will enjoy special protection under the First Amendment.

The Court stressed that the outrageousness or inappropriate character of the speech is irrelevant in determining whether or not speech is relating to a matter of public concern. Chief Justice John Roberts, who penned the decision, eloquently put it this way:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

In upholding the picketers' right, the Court was careful to point out that the Westboro parishioners neither interfered with the funeral nor were violent. It also empahsized that the picketers were on a public place: on the streets, which have historically been associated with the exercise of free speech.

This decision clearly demonstrates the importance the US legal system accords to free speech. While the US is known to be very protective of, and highly values, its servicemen, the Court unambiguously gave greater protection to the free speech rights of a small group of rabid churchgoers as against the plea for respect and dignity of a fallen soldier's grieving family that has been offended, if not outraged, by the picketers' insentivity and hateful language.