Tuesday, February 12, 2013

CRIMINAL LIBEL IS AGAINST FREEDOM OF EXPRESSION (The United Nations Human Rights Committee expresses itself to the Philippines)

By Siesta-friendly

We should have de-criminalized decades ago after we ratified the International Covenant on Civil and Political Rights (ICCPR)[1] on October 23, 1986.[2]  Yet, we continue to imprison people guilty of libel pursuant to Article 355 of the Revised Penal Code which imposes the penalty of “prision correccional in its minimum and medium periods [i.e., from 6 months and 1 day to 4 years and 2 months] or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.”

This unwarranted inconsistency between our treaty obligation and our local law was made glaring by the decision of the United Nations Human Rights Committee (UNHRC) in Adonis vs. The Philippines (aka the Views adopted by the UNHRC at its 103rd session, 17 October–4 November 2011).[3]

Background of Adonis vs. The Philippines

Alexander Adonis is a “broadcast journalist based in General Santos City in Mindanao and commentator for the program Radyo Alerto”[4] who made commentaries back in July 2001 –

“In those commentaries, he criticized the alleged illicit relationship between then Congressman Prospero Nograles and Davao City television personality Jeanette Leuterio …

He called Nograles “Burlesque King” after Leuterio’s husband allegedly caught the two in bed in a Makati Hotel. In his commentaries, Adonis said Nograles ran naked from the room to escape the husband’s wrath.

Nograles filed two libel cases against Adonis.  In April 2007, Adonis was convicted on the second libel case, and was sentenced to four years and six months in prison.  He served time for two years.

The Department of Justice Board of Pardon and Paroles granted his parole in December 2007 but he wasn’t released until a year later because Leuterio filed another libel case against Adonis based on the same “Burlesque King” report…

While he was in prison, he sent a Communication through the help of Center for International Law before the United Nations Human Rights Committee (UNHRC) questioning his imprisonment, saying that it violated his right to free expression.”[5]

Adonis vs The Philippines: Imprisonment for Libel is Incompatible with the Right to Freedom of Expression

In his complaint before the UNHRC, Adonis alleged “that his conviction for defamation under the Philippine Penal Code constitutes an illegitimate restriction of his right to freedom of expression because it does not conform to the standards set by article 19, paragraph 3, of the [ICCPR].”[6]

Although Adonis specifically cites Article 19 paragraph 3 of the ICCPR, it is helpful to know the entire Article 19 which refers to freedom of expression -

1.      Everyone shall have the right to hold opinions without interference.
2.      Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3.      The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a)    For respect of the rights or reputations of others;
(b)   For the protection of national security or of public order (ordre public), or of public health or morals.

In holding that Adonis’ imprisonment was incompatible with Article 19, paragraph 3 of the ICCR., the UNHRC cited its General Comment No. 34[7] which states that:

“defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expressions that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. … States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”.

In other words, the UNHRC said that defamation laws: (1) should allow the accused to put up defenses of truthful statement/s, statements made in error but without malice, and/or public interest in the subject matter, (2) should not provide “excessively punitive measures and penalties” and, (3) should not impose imprisonment in any case.  Also, pursuant to Article 19, paragraph 3, the UNHRC urged that our defamation laws be decriminalized and that criminal law should only be allowed “in the most serious of cases”.  None of these are true as regards our laws on defamation/libel.

Further, the UNHRC held that –

“the [Philippines] is under an obligation to provide [Adonis] with an effective remedy, including adequate compensation for the time served in prison. The [Philippines] is also under an obligation to take steps to prevent similar violations occurring in the future, including by reviewing the relevant libel legislation.”

In ending, the UNHRC reminded the Philippines of Article 2 of the ICCPR which we deem important to detail below:

1.      Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2.      Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3.      Each State Party to the present Covenant undertakes:
(a)    To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b)   To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c)    To ensure that the competent authorities shall enforce such remedies when granted.

Therefore, the UNHRC held that, since the Philippines under Article 2 has “undertaken to [1] ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the [ICCPR] and [2] to provide an effective remedy when it has been determined that a violation has occurred”, the [UNHRC] requested from the Philippines, “information about the measures taken to give effect to the [UNHRC’s] Views”, within 180 days.[8]

It is sad, frustrating and shameful that Filipinos have to go to an international body to find redress from the application of our local laws.  There is no good reason why we have not amended our libel laws after ratifying the ICCPR and after nearly 3 decades to boot.

Before we end, we note that the ICCPR encompasses other civil and political rights that more Filipinos may have to go the UNCHR for redress in case these rights are violated or otherwise disrespected by the state, like say, the right to freedom of information.

[1]  999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967)
[3]  Communication No. 1815/2008 : Human Rights Committee : Views Adopted By The Committee At Its 103rd Session, 17 October-4 November 2011.  CCPR/C/103/D/1815/2008/Rev.1. (2012, April 26).  Retrieved from http://ccprcentre.org/doc/OP1/Decisions/103/1815%202008%20Adonis%20v.%20the%20Philippine_en.pdf  
[4]  Ordenes, L. (2012, October 1). Jailed for libel, broadcaster asks sc to protect free speech. Retrieved from http://verafiles.org/jailed-for-libel-broadcaster-asks-sc-to-protect-free-speech/
[5]  Ibid.
[6]  See supra note 3.
[7]  General Comment No. 34, Article 19, Freedoms Of Opinion And Expression. CCPR/C/GC/34. (September 12, 2011). Retrieved from  http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf
[8]  See supra note 3.


1 comment:

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