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.
