Position Paper I wrote vs libel

Position Paper I wrote vs libel

In view of the big controversy being stirred by the Internet libel law contained in Republic Act 10175, I am publishing here the Position Paper I filed for the National Press Club before the Senate committee hearing libel decriminalization early of February 2008, which committee was headed by then Senator Richard Gordon.

Please read our justifications why libel should be scrapped.

Of National Press Club
on Bills Decriminilizing of Libel or Removing Jail Term Therefrom

February 20, 2008

Senate of the Philippines

            Thru:               SENATOR RICHARD J. GORDON
                                    Committee Chair


            National Press Club of the Philippines (NPC, for brevity) expresses its profoundest gratitude to the Senate of the Philippines for being the only institution in the country that values the most freedom of expression, of speech, and of the press – after the Supreme Court of the Philippines.

            We therefore take this opportunity as a liberty to exercise NPC’s “praise” freedom, so that we now announce that the board of the biggest and the oldest-surviving group of newsmen is going to pass a resolution to install the present members of the Supreme Court to the Hall of Fame of the Liberty of the Press.  This is because it takes the Puno Court to change the face of the libel law that has lurked as a thief in the night against the journalists for 78 years now since 1930.

            The Puno Court responded quickly to the NPC letter-petition of January 3, 2008, begging for the application of the rules of preference on libel convictions and for the waiver by the State to its right to issue a warrant of arrest in libel unless the accused failed to appear in court when required.  In lodging our letter-petition, we had in mind the rule being applied on probable cause findings and convictions under the Bouncing Check Law, and Section 2 of Article III of the Philippine Constitution which does not require issuance of warrants of arrest but merely sets the minimum standard of probable cause if ever one is issued.   Moreover, there is no law that requires issuance of warrant of arrest for every finding of probable cause.

The Proposed Measures on Libel

            We now go to the proposals up for deliberation by this august committee, which proposals may be classified into two: (a) for the removal only of the fine in libel; and (b) for the total decriminalization of libel.

            In the first kind, there are two sub-classes: (a) penalty of P6,000.00 or less; and (b) penalty of P100,000.00 or less. 

Ironically, Senator Loren Legarda who once belonged to the class of journalists was the one who proposed the imposition of impoverishing penalty, despite knowledge that most if not all journalists are already living barely in poverty. 

And if a convicted newsman is insolvent, he is still bound to go to jail as a subsidiary penalty, under which the imprisonment shall be computed on the basis of one day of jail for every eight pesos (P8.00) of fine.  

Assuming the fine is P100,000.00, the convicted journalist stands to be imprisoned for 12, 500 days or an equivalent of 34.25 years in jail!

34 years in jail for the crime of libel is extremely revolting to the conscience!

These proposals are okay for the NPC and the journalists if there are no other options to be offered to them by the lawmakers.

            In the second kind, Senator Chiz Escudero is alone.  But his position is one that is closest to the heart of NPC and, of course, the whole media community.

The Position of the NPC

Of course, NPC and almost all the journalists in the country want no less than a decriminalized libel. Even if keeping it as a crime and punishing only with pushups or small fines is not acceptable. 

The fact that it is designated as a crime is disgusting.  It is not consistent with the tenets of any democracy.

The Philippines is a democratic and republican State where the rule is majority of the people and power begins from the people.  If there is a conflict of interest between the State and the majority of the people, the latter shall prevail.

In other words, any law passed by the Congress constituted by the representatives of the people should be one that benefits the majority of the people.

And if the majority of the people demands information that can be given largely by means of the exercise of the liberty of the press, there is no point then to put a hindrance to the practice of journalism.

All publications of the media benefit the people more in compliance with their declaration in Section 7, Article III of the Constitution that they ratified, which provision says:

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Since the works of journalists are for the benefit of the people, in whose hands the sovereign will as to what would be the future of the State is vested, there is a stronger argument to free the press than serve the ego and pride of few individuals who claim to have been shamed by the press.

Thus, NPC cannot accept the making of the act of publishing, regardless of nature and character, a crime.

And the fact it is now a crime, even if the imposed penalty would only be fine, still there is the collateral civil damages arising from the crime itself.  This is in consonance with the reality that for every criminal act there is a corresponding civil liability.

The Reasons for the Position

A.  Article III, Section 4 does not provide exception

First, our Constitution provides no exception to warrant intervention or infringement in the exercise of the liberty of expression, of speech, and of the press.

Let us ask: Is it not ironic that while other countries such as the United States of America see no evil in libel for it to stay a crime, the Philippines looks at it with disfavor?

This irony is incomprehensible considering that both the USA and the Philippines have almost the same provision concerning freedom of expression, of speech and of the press.

The First Amendment of the US says: “Congress shall make no law … abridging the freedom of expression…”

The Philippines’s Article III, Section 4 says: “No law shall be passed abridging the freedom of expression, of speech, and of the press…”

Given this constitutional rule, why is it that there is still libel as a crime that can be used to punish journalists, considering that it clearly abridges the freedom and keeps an ever-present “chilling effect” that creeps into the mind of every journalist?

Despite this libel, the State should be thankful.  Press in the Philippines still appears to be free. But it is because of the devil-may-care attitude and the insistence of the Filipino journalists to be free, come what may. 

However, this character of Filipino journalists should not be an excuse for the State not to act to remove the chilling effect of the lurking warrant of arrest and too prejudicial trial.

And to decide to take this off belongs to the wisdom of the lawmakers.  Thus, it is still the lawmakers, not the courts, who can have a final say whether the said constitutional dictum must indeed be given an absolute or qualified meaning.

If in the US there is no criminal law but only civil damages for libel and it has proven to be the strongest government in the world, can we now argue against their success?  

The Soviet was bigger than the US, but the government’s policy of suppression of expression proved to be telling that it crumbled overnight and the states that broke out in the process had to go back to square one.

Concededly, the Philippine Supreme Court has repeatedly pronounced that although the tenor of the constitutional provision is very clear, it says that it shall not be interpreted to mean absolute freedom.  This stand of the High Tribunal does not sit well with the NPC and the journalists.

That is, although there has been no real challenge brought before the court to attack the constitutionality of libel law.

With the current schools of thought gripping the minds of the legislators and the courts to doggedly argue for qualified liberty of the press by highlighting the necessity of subsequent punishment like libel law, the NPC can only hope and beg.

And now it begs: Please give decriminalized libel a chance.

B. “Clear and Present Danger Rule”
Clearly Favors

Concededly also, a survey of the Court decisions on libel cases shows leniency to laws that merely apply after the exercise of press freedom is done. 

Like libel, it only comes in after the publication of the subject of the action.   This attitude is detestable to the NPC and the journalists.

Before expounding on this matter, let us inform that there are four aspects of the liberty of the press:

(a) the freedom from prior restraint;
(b) the freedom from subsequent punishment;
(c) the freedom to gather information; and
(d) the freedom to circulate, publish or broadcast.

Libel, like inciting to sedition or inciting to rebellion, involves freedom of expression.  The Philippine standard to date on press freedom is that it is alright to interfere by way of a subsequent punishment.  Mere substantive government interest has been advanced to be enough to justify this act.  That is, although this does not sit well with NPC.

When it comes to the other aspects of this liberty, the Supreme Court is very strict. 

In the recent “Hello Garci” case law, the majority ruled that the strictest standard of “clear and present danger test” must be the basis to justify government intervention—even if the threat was supposed to be expressed in the form of a press release and not through a memorandum circular.

The Court said that the press release brought forth a “chilling effect” because it came under the circumstances when the focal issues of the press releases were Hello Garci tapes that allegedly contain the conversation between the President and a Comelec official, and that the officials releasing the press release were appointed by the Chief Executive such that they were expected to make good the threat just to serve the pleasure, the only material qualifications to keep their office. 

Despite the controversy brought about by the Hello Garci tapes that it even nearly sparked a regime change, the Court said there was no clear and present danger to the existence of the state and of the government to allow the NTC and the DOJ to issue such press releases.

The Court clarified that the same “clear and present danger test” applies on both the broadcast and print media when it comes to the issue of whether the interference is valid to pierce the no-prior-restraint veil.

Now, we may ask: is it possible for a “clear and present danger” to ever occur in libel per se as defined by Article 355 of the Revised Penal Code? 

Clearly it is not.

The only possibility where “clear and present danger” may occur is in the cases of libel directed against the government.  But it is not defined in our criminal statute as libel, but as seditious libel, inciting to sedition, or inciting to rebellion.  This is called in its generic name as “political libel” because they affect the very foundation of the body politic, or the government, although not necessarily of the state.

But look, there has never been a case of seditious libel, inciting to sedition or inciting to rebellion filed against a journalist.  And if ever there is one, this should set apart from the pure libel: that is a published imputation against the person and honor of a public official, a public figure and a private citizen as defined under Article 355 of the Revised Penal Code.

Since there is no “clear and present danger” to speak of in pure libel, it behooves upon the Congress to strike out Article 355 of the Revised Penal Code and the accompanying articles starting from Article 353.

Ergo, it is very clear that the application of the “clear and present danger rule” favors the decriminalization of libel.

C. “Balancing of Interest Test”
Also Clearly Favors

Let us look at the balancing of interest test.

Let us have it in our mind that the only justification why a State would make an act a crime is because it is an offense against its existence, its government, and its interest.

Talking about libel per se, it can never be an offense against the existence of the State, or against the existence of the government.  It may be an offense against an interest.

And talking about the State’s interest, there is no other in this case except for the interest to protect every citizen’s honor in order for their mind to live in peace in return for the taxes he pays. 

But contrary to this interest, there are two State interests that should stand in the way.

The State of the Philippines also has two interests: (a) to look good before the international community that it is a state that does not repress expression and press; and (b) to comply in good faith, as a state party, with the Universal Declarations of Human Rights that calls for respect to liberty of expression in all states as spelled out under Article 19 thereof.

The said article of the Universal Declaration of Human Rights signed on December 10, 1948, reads:

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

For sure, most of us if not all will agree that these two interests of the State itself are more than enough to tip the balance against its own interest to protect its citizen’s honor, which can be remedied by a civil action for punitive damages that is in place under the Civil Code.

Let us pit this interest to protect the citizens against the interests served by the publication of defamatory imputations.

In cases where the defamatory imputations published are directed against a particular or group of public officials, the interest of the press is obvious: to serve a social and moral duty to inform the public about ineptitude, moral or otherwise, under the constitutional doctrine that says, “Public Office is a Public Trust.” 

On public officials, imputations normally consist in the poor performance of official functions.  There is no problem with this, it being immediately discernable as qualifiedly privileged under subparagraph 2 of Article 354 of the Revised Penal Code.

But some attacks go into the very “private life” of a public official.

Among these “private life” acts of public officials are keeping a mistress, being a drug addict, being a gay having a macho man, being a married woman having a paramour, adultery, concubinage, bigamy, being a gambling addict as he or she is found always in the casinos, among others.  

These officials should not be allowed to invoke “private life” because more than academic and experience resume, moral fitness is the top most quality that must be the basis of appointment to public office. 

There is no need to argue that a corrupt private life affects the performance of an official function.  A government official hiding a corrupt private life will surely resort to corruption to sustain his or her vices.

Thus, the interest of the media in exposing these corrupt private lives of government official is obvious: to serve the legal, moral and social duty to the country and people.  This therefore far outweighs any State interest, if there is any, in protecting the honors of officials having corrupt private lives.

On public figures notoriously or pervasively known to the public, defamatory imputations vary within a very wide range of issues.  As a popular figure, one has the moral obligation to act decently because he or she is being idolized by a considerable part of the public, that there are even some who would duplicate whatever their idols do in a blind obedience to somebody being admired so much.

Thus, the interest of the media in exposing those corrupt acts of public figures, which happen most often among writers on movies and entertainment, is also to serve the interest of legal, moral and social duty to inform the public.  Like that of public officials, the ultimate benefit of the public is a lesson learned that the acts of the said persons must not be replicated.

Thus, it is clear that the interest of media in cases of defamatory imputations against public figures far outweighs the interest of the State in protecting the honor of these persons, who, in the first place, do not deserve protection for voluntarily doing immoral or corrupt acts.

On private persons who are taken as public figures by reason of voluntary act of stirring or joining a controversy, the interest of the media in exposing or criticizing him or her is no less noble than that in defamatory imputations against public officials or public figures. 

Examples of these kinds of persons are those who commit crimes thereby voluntarily putting themselves into a limelight; a private person who voluntarily joined an ongoing controversy like Jun Lozada cannot complain if his honor is being assaulted. 

A private person who commits murder cannot complain if the crime itself is discussed before the bar of public opinion.   A private person who engaged in illicit activities cannot complain if the defamatory imputations told the public consisted in those illicit acts.

Defamatory imputations against these types of persons are qualifiedly privileged if the ascriptions are limited or connected to the matters within the limited range of issues.  

On purely private persons, the defamatory imputations are most likely unjustified and there is virtually a zero interest for media on this matter. 

However, the interests alone of the State to implement the Universal Declaration of Human Rights and to look good before the international community are more than enough to balance the State’s interest in protecting the honor of these kinds of persons.

After all, the State interest in protecting the honor of its citizens is served by giving the people the cause of action for an action for punitive damages on top of moral damage awards, actual damages proximately caused by the defamations and attorney’s fees.

Ergo, it is very clear that even under the “Balancing of Interest Test”, which is less strict than the “clear and present danger rule”, the interest of decriminalization of libel far stands out.

D.  Libel as a Criminal Law
Fails Against Substantial Due Process Test

It is unfortunate that for more than three-fourths of a century, there has been no real challenge put up against the constitutionality of libel as stated by Justice Nachurra in his dissent in Chavez vs Gonzalez, or what is otherwise known as the “Hello Garci” case.

Given a chance, though, NPC would be willing to take one test case.

The reason that the stand of NPC that libel is unconstitutional is that it fails when applied to the substantial due process test formulated by jurisprudence to gauge whether a law, rule, policy or circular lies within the framework of due process in making laws.

The substantial due process yardstick measures whether a law, rule, policy or ordinance is constitutional under the following apparatuses:

(a)  Is the end lawful?;
(b)  Is the means reasonably connected with the ends?
(c)  Is the means not discriminatory or oppressive?

The purpose of libel law is to protect innocent individuals from reputation-damaging publications.  No doubt, this is for the common good and the subject is lawful.

The means employed to achieve the end, which is by imprisoning those who destroy honor of individuals, is no doubt reasonably connected to the purpose of the law.

Before going further, let us examine how many means or ways are available for us to achieve the purpose of libel. 

The Sate may resort to giving a cause of action for a civil damages or a cause of action to file a criminal complaint. 

And between the two available remedies, criminal libel is no doubt more oppressive and more discriminatory.

The fact that there is an available remedy that is less oppressive and less discriminatory, which is a civil action for damages, suggests that employing criminal libel as a means to achieve the end is unconstitutional.

E. Libel is More of a Private Dispute
Between the Libeled and Libeler

Libel is more of a private dispute between the libeled and the libeler.  The other persons who have read or listened to the libel do not truly care.

Hence, it is best to leave to them the resolution of their own conflict.

F.  Age-old Breach of the Peace Argument
as Justification for Criminal Libel is Obsolete

            The original justification advanced to justify criminal libel is that it tends to breach the peace, whereby the one libeled would run amuck.

            This is no longer obtaining under the present regime.

            The listener or the reader has the obligation to react within the bounds of the law or he or she will run afoul.  And to punish the libeler just because one person ran amok is giving premium to the amuck than the liberty of the press.

            Since time immemorial, there has been no report that anybody ever ran amuck just because he or she was libeled.

            The fact that breach of the peace did not happen despite the fact that many libel cases have been filed and many exposes have been recorded in newspaper and magazine files is enough proof that “breach of the peace” argument is obsolete.

G. Libel is not an Act of Moral Turpitude

            Moral turpitude means “moral depravity.” 

It is hard to imagine that defaming another’s honor is an indication of lack of regard to morality. 

Rather, a journalist’s decision to write and publish about immoral act of another is an indication that the media man has high regard for moral values.

The Conclusion

The reasons presented for the decriminalization are obviously overwhelming.

As such, it stands to reason for the Senate and the House of Representatives to GIVE DECRIMINALIZATION OF LIBEL A CHANCE.

                                                                                                Respectfully yours,

                                                                                                ROY C. MABASA
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