IN THE EYE OF THE STORM

Dr. Hayden Kho, cosmetic surgeon and boyfriend of beauty magnate Vicky Bello, must be turning topsy-turvy in the middle of a raging storm of public condemnation after a video recording of his sexual escapade with actress Katrina Halili has circulated on the internet.

Meanwhile, legislators are scurrying to enact laws that will directly penalize the unauthorized taping and circulation of sexual conduct. This scandalous event may yet be the contribution of Katrina Halili, albeit under the most unlikely and humiliating circumstance, in the shaping of laws to protect women against sexually depraved men. A review of existing laws reveals that there is no law directly penalizing such deplorable conduct.

According to DOJ Secretary Raul Gonzalez and Sen. Bong Revilla, Dr. Kho may only be criminally charged for violation of Republic Act No. 9262 or the law on Violance Against Women and their Children. Let's examine under what particular provision Dr. Kho may be indicted.

Section 5 of RA 9262 enumerates the different acts of violence against women and their children that may be penalized under the law. In penalizing violence against women and children, the law does not limit its definition to physical violence or the infliction of bodily injuries; it includes sexual, psychological and economic abuse. Psychological abuse comes closest to defining the type of violence suffered by Halili. This is defined under section 5(i) as the "causing of mental or emotional anguish, public ridicule or humiliation of the woman . . ."

There can be no doubt that with the public exhibition of the sexual conduct between Kho and Halili, the latter suffered serious mental and emotional distress, public ridicule and humiliation. Needless to say, in a predominantly Christian country like ours with a largely conservative culture where a woman's chastity and the Filipina virtue of modesty are still valued despite growing western influences, the public showing of such unconventional and intimate congress is highly scandalous and offends sensibilities. It will put Halili in disrepute and forever stigmatize her. Even in the glitzy world of Hollywood, the public does not look favorably upon those who have suffered the same fate, like Paris Hilton, Kim Kardashan and Pamela Anderson, to name only a few.

If found guilty, Kho may spend more than six years in the can, more than what Secretary Gonzales said. Section 6(f) of the law penalizes the relevant act by prision mayor or imprisonment ranging from six years and one day to 12 years. This will disqualify Kho from availing of the benefits of probation. And by express provision of RA 9262 Halili may claim appropriate damages, meaning monetary compensation for her suffering.

Aside from RA 9262, Kho may find himself liable for grave scandal and obscene exhibition under articles 200 and 201, respectively, of the Revised Penal Code. There is grave scandal when a person offends against decency and good customs by any highly scandalous conduct. It could be theorized that the act of Kho in recording his sexual activities with Halili and subsequently giving away a copy of such recording to another by themselves constitute grave scandal. Although Kho may deny responsibility for the exhibition, the showing of the recording constitutes strong evidence of its transmission to another, for how else can such recording with a highly confidential content find its way in the hands of another? Article 201, on the other hand, penalizes the public exhibition of indecent or immoral scenes or acts, as well as the transmission of such to another.

It is interesting to note that the authors of the Revised Penal Code showed prescience by including the phrase "or any other place" in enumerating the situations where such objectionable scene or act may be shown. The phrase may very well cover the internet, even though at the time the law was adopted even televisions were not yet in vogue.

As will be expected, Kho may deny responsibility for the giving away of the recording, let alone its exhibition. Our lawmakers should see to it that whatever laws they craft to address this disturbing practice, the possible defenses that wrongdoers may put up to avoid liability should be anticipated and guarded against. A provision may be made, for example, to make the mere existence and authorship of the recording as prima facie evidence of guilt in criminalizing the unauthorized public exhibition of recorded sexual conduct between two persons.

JUDICIAL IMPROPRIETY

Judge Jorge Emmanuel Lorredo of the Metropolitan Trial Court, Branch 26, of Manila is teetering on the brink of a disciplinary action by the Supreme Court and, possibly, being stripped of his robe for his continuing flagrant violation of the code of judicial conduct.

It all started with his issuance of a controversial May 4, 2009 order in connection with the perjury case filed against ZTE-NBN whistleblower Rodolfo "Jun" Lozada, Jr. by former Malacañang chief of staff Mike Defensor. Then on Wednesday, Judge Lorredo gave a one-on-one interview with TV Patrol's Willard Cheng where he once again made statements that could only be characterized other than as improper for a man who should be more circumspect and responsible in his words and conduct, given the dignity of his position as a judge and dispenser of justice.

In Judge Lorredo's May 4 order, which has already been the subject of several criticisms by bloggers, newspaper opinion writers and legal observers, he strongly expressed his desire for Defensor to settle the case against Lozada and even alluded to the possibility of Defensor being stricken with illness as a punishment from God and suffering the same fate as First Gentleman Mike Arroyo, who has a heart ailment, should he not settle. Then he went on to warn Defensor of the disaster that awaits his political career in pursuing the case and the possibility of dragging the president and Mike Arroyo into the case, including the issuance of a warrant of arrest against no less than the president of the country and a possible constitutional crisis. More on this later.

While it is true that, to a certain extent, the Supreme Court encourages the settlement of cases, the unusual and extraordinary interest of Judge Lorredo in having Defensor rethink about pursuing the case against Lozada borders on bias and partiality. It shows propensity on his part to favor Lozada. Thus, in one administrative case involving a judge, the Supreme Court held that the active efforts of a judge to have a case before him settled even if one of the parties is not receptive - as in the case of Defensor - is improper and makes the judge susceptible to suspicions of partiality. Judge Lorredo may say he is unbiased, but he is certainly showing appearances of favoritism by his inappropriate statements. The code of judicial conduct requires every judge to not only be impartial, but to also avoid the mere appearance of partiality.

By including off the mark and totally irrelevant matters, not to mention the use of intemperate language in resolving a simple motion filed in his court, and by generating unnecessary publicity Judge Lorredo showed himself unworthy of the title of a judge. What has Mike Arroyo and his ailment got to do with the setting of Lozada's arraignment and the issue on his custody? or of Mike Defensor getting ill and suffering a political setback by pursuing charges against a man who is supported by the people and religious groups? Nothing at all, and yet Judge Lorredo harped on these matters like they were pivotal legal issues. Judge Lorredo is obviously catering to the public outcry against the ZTE-NBN controversy - which involves allegations of kickbacks running in millions of dollars by high government officials, possibly including the president and her husband, in the award of a national broadband network project to a Chinese company -and wants to draw attention to himself. There is a clear stricture against judges engaging in sensational and spectacular conduct in their courts.

As a judge bound by a strict ethical code, Judge Lorredo should know better that in resolving cases before him he should not be swayed by public opinion or be free from any extraneous influence or pressure. By suggesting public opinion is strong against the ZTE-NBN scandal and the filing of charges against Lozada, and that Defensor has the opportunity to cleanse himself and regain public sympathy by settling the case against Lozada, Judge Lorredo is clearly allowing extraneous matters and what he perceives to be a strong public sentiment to influence the disposition of the case before him.

Judge Lorredo shows his clear bias in favor of Lozada when he states in his controversial order that if Defensor pursues the case against Lozada, he will have no reason not to grant a motion by Lozada to subpoena the first couple. I find it difficult to see how he could be impartial in already making up his mind about ruling in a particular way on a motion that has not even been made yet. He is like a woman saying she will give her hand the moment a suitor asks for it. He does not even know yet under what circumstances and for what purpose will such a motion be sought, if at all. Will a possible subpoena of the first couple at the behest of Lozada likely produce relevant and competent evidence? Will there be constitutional impediments in issuing compulsory process to a sitting president? But Judge Lorredo seems to know the answers to these questions already even before hearing the arguments pro and con from the parties involved, as obviously he has already made up his mind to grant such a putative subpoena.

Not only has Judge Lorredo shown bias, but is even fomenting a constitutional crisis or even a bloody confrontation by hinting that should a subpoena to the president be ignored and not implemented by the police he would deputize senators or even Oakwood coup plotter, now Senator Antonio Trillanes with the help of his comrades (meaning fellow coup plotters), who mind you is presently in jail for coup and rebellion charges, to forcefully bring the president in court notwithstanding any opposition by her security detail, the Presidential Security Group. Unbelievable! Now, I am not exactly a fan of the president or her husband nor do I agree with the indictment and incarceration of Lozada, but such mindless rantings coming from a judge who is supposed to uphold the integrity of the institutions of government and respect for the rule of law is simply outrageous that should not be allowed to pass without sanctions by the Supreme Court.

Good thing the Supreme Court has already shut this magistrate's wild mouth and prevented him from doing further damage to the integrity of the judicial system. It is hoped though that the High Court's action should go beyond mere silencing him, and instead should extend to purging him from the ranks of honest, dedicated and respectable judges, who toil everyday in their courtrooms to dispense justice to the deserving, who are now in danger of being tainted by his gross impropriety and unbecoming conduct.

STATEMENT OF GSIS VP ELLA E. VALENCERINA

In the interest of fairness and balanced discussion, I am reproducing the following statement of GSIS Vice President Ella Valencerina in italics concerning the anti-wire tapping case she filed against ABS-CBN journalist and Probe anchor Chehe Lazaro:

“When the Pasay City Court issued a warrant of arrest against Ms. Cheche Lazaro, I initially opted not to issue a statement. I thought there was nothing more to say except, perhaps, to let the wheels of justice take its usual turn. My silence was a gesture of respect for the system.

“However, after hearing and reading the statements made by the camp of Ms. Lazaro in the news, I feel compelled to say something, without delving further in the case – for this is the sole responsibility of the officers of the court – but to clarify the false impressions that were peddled in the media.

“First, I want to make it clear that the Government Service Insurance System is in no way involved in the case of Violation of the Anti-Wiretapping Act which I have filed against Ms. Lazaro. I filed the case before the Pasay City Regional Trial Court on my own volition, without any instruction or direction from my superiors in the GSIS.

“It is a case arising from my feeling that my right to privacy, guaranteed by the Bill of Rights, has been violated. I am, after all, entitled to my rights, in this case, Section 3 of the Bill of Rights, which states: ‘The privacy of communications and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.’

“Contrary to what the camp of Ms. Lazaro has been quoted as saying, this is not media harassment. I have dealt with countless media persons and those I have met and those who know me can attest that I am the last person capable of harassing members of the press.

“The case, above all, raises the timely question: Are the media allowed to violate the individual rights of a person? I was asking the court if the media could simply call you up, record your conversation, and broadcast it for the entire world to hear; all these, without your knowledge, much less, your permission.

“There is no grand conspiracy. There are no devious schemes. Definitely, there is no concerted effort to stifle press freedom. I pursued my rights, taking the route of due process, without the need to engage in a publicity stunt.

“There is, however, a silver lining to the already tense predicament I am in for going after an influential broadcast journalist. Somehow, I received and continue to receive numerous encouragements from, surprisingly, members from the media.

“Apparently, there are many media persons who are as interested as I am to understand the parameters of honest and fair methods of gathering news. Unlike Ms. Lazaro, they are not A-list TV journalists. Most of them are reporters who go to their beats daily, send out summaries to desks, and file stories before deadlines. These are hard-working journalists who want to know: does the fame and status give Ms. Lazaro the immunity to break journalism ethics and break the law? Does the stature of being a ‘veteran broadcast journalist’ and journalism profession let one off the hook?

“Among journalists, this case will enable the profession to define, in tangible terms, the Philippine Journalist's Code of Ethics, which among others, require journalists to ‘not violate confidential information or material given her in the exercise of her calling" and "resort only to fair and honest methods in her effort to obtain news, photographs and/or documents and properly identify herself as a representative of the press when obtaining any personal interview intended for publication or airing."

“I am a believer of the significant role journalists play in a democratic system. They are the watchmen, protecting us from wrongdoings taking place both in government and private sectors. But even journalists are not infallible. They can have their share of wrongdoings. And when journalists do wrong, how can we – especially private individuals – protect ourselves from them?”

What is interesting in this statement is the claim of Ms. Valencerina to privacy and confidentiality of the communications she had with Chehe Lazaro. What is the private matter or confidential information that Valencerina gave to Chehe Lazaro that is entitled to privacy? The policies of the GSIS concerning the entitlement to benefits of its members who are government employees? Her defense of such policies in reaction to the criticisms or protest of affected GSIS employees? It defies logic that such information - matters of public concern or interest - should be confidential and may only be published or broadcast with permission. Maybe Valencerina forgot about the constitutional principle of transparency in government affairs and the consequent right of the people to information on matters of public concern.

It would have been different if the information broadcast on the Probe concerned intimate or personal details about the life of Valencerina - matters that have no bearing at all with the functions and policies of the GSIS. If such be the case, then I would have no business discussing this matter.

A MATTER OF PUBLIC CONCERN

It is appalling to see the extent to which a public official would go in preventing, or penalizing, the release of information relating to the policies and functions of her office - information that should be open to public disclosure and scrutiny in the first place. Government Service and Insurance System (GSIS) Vice President Ella E. Valencerina did just that when she charged broadcast journalist Cecilia "Cheche" Lazaro and other ABC-CBN people for violation of Republic Act No. 4200, or the Anti-wire Tapping Act, after Lazaro's phone interview of Valencerina was allegedly aired without the latter's consent on the TV program "Probe" in November of last year.

The phone conversation between Lazaro and Valencerina is about the entitlement policy of the GSIS, which became part of a Probe episode entitled, "Perwisyong Benepisyo." The episode was obviously prompted by complaints against the policy from GSIS members, particularly public school teachers. Under the GSIS's entitlement policy, members can avail of their benefits based only on the amount of premiums paid by them, instead of their length of service in the government. Affected public school teachers are protesting this scheme because, according to them, they have been unfairly deprived of their benefits since the Department of Education, through which their premium payments were being coursed through, has not been regularly remitting payments for them.

Although Lazaro's claim that she sought Valencerina's permission to air the conversation prior to the interview would be her word against that of Valencerina, there apparently being no documented evidence to support it, that should be the least of Lazaro's concerns. What is essential here is that the information given by Valencerina is a matter of public concern and, therefore, is covered by the constitutional right to information. Valencerina was the vice president of GSIS - a government entity that is being sustained by public funds and taxpayers' money - at the time the phone conversation was made. The subject of the discussion concerns the entitlement policy of the GSIS that affects hundreds, if not thousands, of government employees who are members of the program.

The idea that the recording and broadcasting of the Lazaro-Valencerina telephone conversation, without Valencerina's consent, is a violation of the Anti-wire Tapping Act (AWTA) is downright preposterous and shows yet another attempt by a government functionary to curtail free speech. The AWTA only protects against unwanted recording and disclosure of private communications. Let me repeat that, private communications. Any communication made by an incumbent government official concerning the policies and functions of his or her office in response to an inquiry by the public, be they in the media or not, is public and not private communication. There is no expectation of privacy here, especially so in relation to the phone conversation at issue; Valencerina is expected to know that her conversation on a matter of public concern with a known journalist like Chehe Lazaro will be published. This is even more accentuated by the fact that Velencerino is also the head of GSIS's Public Relations and Communications Office.

It is also worth mentioning here that under Section 4 (e) of Republic Act No. 6713, or the Code of Conduct for Public Officials and Employees, public officials are required to "provide information of their policies and procedures in clear and understandable language" and "ensure openness of information." Thus, when Valencerina responded to Lazaro's telephone interview she was clearly acting in the performance of her duties as vice president and communications officer of GSIS. Again, to disabuse the minds of those who will try to seek refuge on the limitations for the disclosure of official information, the information she gave concerns a policy of her agency that affects the entitlement to benefits of several government employees, and not matters of security or personal information of individuals.

Unmasked of its pretentions, the clear purpose of this suit against Chehe Lazaro and company is retribution and attack against press freedom. If Valencerina did not like the exposure of her agency's questionable policy and the airing of grievances against it, the solution is not to attack free speech but to sit down with the stakeholders - whom she is duty-bound to serve - and either defend the soundness of the policy or come up with a mutually acceptable solution. Her action only exacerbated the situation and exposed her pettiness.

PENALTY FOR SINGING

Philippine concert king Martin Nievera may soon be facing criminal charges for a modified rendition of the Philippine national anthem "Lupang Hinirang" during the opening ceremonies of the Pacquiao-Hatton bout in Last Vegas last Saturday. At first, the National Historical Institute (NHI) criticized Nievera for singing the national anthem with a different cadence, and now it is actually contemplating on filing charges against him for violation of the Flag and Heraldic Code of thePhilippines (R.A. 8491) - which provides among others that the national anthem shall be played or sung in accordance with the musical arrangement and composition of Juan Felipe.

While I am in complete agreement with the NHI that the national anthem is not meant to be interpreted in any way other than its official version, filing criminal charges against Nievera may be a bit too much, if not legally questionable. Artists and singers should rightly be criticized for playing with the tune and melody of the national anthem like it is an ordinary musical piece. To me such practice is an attempt to flourish the song and inject the singer's personality, which is not really necessary and appropriate because a national anthem is a collective representation of a country's people and their aspirations. But to actually criminally charge those who do it is going beyond the bounds of constitutionally protected speech and expression.

It is true that RA 8491 imposes fines up to P5,000.00 or imprisonment of up to one year upon anyone who violates it, such as singing the national anthem differently from Juan Felipe's musical arrangement and composition, but I doubt very much if this could pass muster under the Constitution, particularly the free speech clause. Singing the national anthem with a different tune, cadence or even lyrics may be distasteful, if not disprespectful, but I find it difficult to see how this could present a clear and present danger to the safety and security of the state that the government will have a right to stifle such form of expression. There is simply no overriding governmental interest to protect.

Also, the NHI may have to hurdle obstacles of jurisdiction should it proceed with the filing of criminal charges against Nievera. As we all know, Nievera was in Las Vegas when he allgedly violated RA 8491. Rules on criminal jurisdiction forbid charging a person outside of the court's territorial jurisdiction, unless the rules on extra-territorial application of our criminal statutes apply. I don't think singing the national anthem wrongly outside the country is an instance for the application of such rules.

Instead of threatening artists and singers with the threat of prosecution, the NHI should focus its attention more in educating the public about the value of expressing patriotism through our national symbols and understanding our heritage. This should of course include artists and singers.

OUTLAWING TORTURE

Just as when torture is becoming a hot-button issue in the United States today with the debate on whether to prosecute Bush officials for their alleged involvement in the torture of terrorist suspects, the House of Representatives recently passed a bill penalizing torture.

The bill entitled "Anti-Torture, Anti-Enforced Disappearance and Internal Displacement of Persons" was introduced by Representative Lorenzo "Erin" Tañada III, grandson of the revered nationalist Sen. Lorenzo Tañada, not only to comply with our treaty obligations under the UN Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), but to strengthen our laws against the cruel and abusive practices of government authorities in dealing with prisoners or detainees.

Commission on Human Rights (CHR) Chairperson Leila De Lima and Representative Tañada have just attended the 42nd session of the UN Committee Against Torture in Geneva to report on the Philippine's compliance with the terms of the CAT. In a clear blow to the government, De Lima revealed during her speech at the session that there are numerous cases of torture being investigated and prosecuted in the Philippines which apparently establish a systematic practice in the country. She also mentioned the CHR's experience in being denied access or visitation to military detention facilities.

The Philippines became a signatory to the CAT in 1987, which under its terms the government should pass enabling legislation to carry out the provisions of the CAT. It is only now, however, that a substantial step is taken to realize our treaty obligation. But again, we are not even talking here yet of a law, since the Senate will still have to act on the matter. At any rate, the bill passed by the Lower House is a positive sign and Atty. De Lima appears to be up to the task of giving meaning to the protection of human rights.

Given the persistent cases to this day of forced disappearances or desaparecidos, extra-judicial killings of media practitioners, torture and other human rights violations, which alarmed even the Supreme Court causing it to institutionalize the writ of amparo (a court remedy to protect a person's personal safety, liberty and security chiefly against acts of government authorities), we need in addition to an anti-torture law an independent government agency like the CHR to be given more powers to address human rights violations with efficiency and dispatch. As it now stands, the CHR is merely an investigative body with no prosecutorial powers and is thus subject to the whims and caprices of the Department of Justice, which we know of course to always toe Malacañang's line.