Colonial and repressive

By LUIS V. TEODORO
Vantage Point | BusinessWorld

The administration of Benigno Aquino III must review Philippine libel law, decriminalize libel, and compensate a Filipino journalist for the time he was imprisoned for libel. These are the recommendations of the United Nations Human Rights Committee (UNHRC), which has expressed the view that the country’s libel law is at odds with Section 2 Article XIX of the International Covenant on Civil and Political Rights (ICCPR), which the Philippines ratified in 1986.

The ICCPR is part of the International Bill of Rights. Section 2 of Article XIX states that: “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.”

The UNHRC view that the libel law is incompatible with Section 2 of Article XIX was issued in response to a complaint by Davao broadcaster Alex Adonis who was convicted and imprisoned for libel in 2007. Adonis’ conviction was not only flawed since he was unable to defend himself (he could not attend the hearings in Davao City and lost the services of his lawyer); it was also the clearest demonstration so far of the repressive and colonial character of the libel law which has been in the Revised Penal Code since 1932, or 14 years before Philippine independence was restored in 1946.

Libel has always been problematic in the Philippine setting. The law against it has primarily been used to suppress free expression rather than to address media abuse. A libel law can be a legitimate means of redress for people the media have aggrieved, and can even encourage greater media responsibility. But the present libel law, with its antecedents in both the Spanish and US colonial periods, was primarily used to prevent criticism of both colonial regimes and to curb Filipino demands for independence.

A libel law was in place during the Spanish colonial period; it punished insults and “injuries” against persons of authority and their agents. During the American occupation, a libel law (Act No. 277) passed by the US’ Philippine Commission was used to silence the critical and nationalist press starting in 1904. The justification for Act 227’s criminalization of libel was blatantly racist. It was put in place because Filipinos, said then Governor General William Howard Taft, are “a strange people unused to the freedom of the press.”

The colonial roots of the Philippine libel law are also evident in the definition of libel in Article 353 of the RPC. That definition is virtually the same as the definition of libel in Act No. 277, which defined libel as “a malicious defamation… tending to blacken the memory of one who is dead, or to impeach the honesty, virtue or reputation, or publish the alleged or natural defects of one who is alive, and thereby expose him to public hatred, contempt, or ridicule.”

Article 353 defines libel as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” Libel is also a criminal offense in both Act No. 277 and the RPC.

The landmark case during the US colonial regime was the 1908 libel suit filed by then Secretary of the Interior Dean Worcester against the nationalist, pro-independence newspaper El Renacimiento (The Rebirth) for its editorial “Aves de Rapina” (Birds of Prey).

In that editorial (written by Fidel Reyes), El Renacimiento described “the eagle” (the US) as the “most rapacious” bird of prey, and criticized certain US colonial government officials “who, besides being eagles, have the characteristics of the vulture, the owl, and the vampire.” These officials, said the newspaper, among other offenses pretended to be studying the Igorots, but in reality were looking for gold deposits in the mountains of Luzon.

Although the paper did not name him, Worcester felt alluded to and filed a libel suit which resulted in the conviction of editor Teodoro M. Kalaw and publisher Martin Ocampo for criminal libel. Kalaw and Ocampo appealed the decision before the Philippine Supreme Court and later, the US Supreme Court, but their convictions were upheld in both courts. Although pardoned by then US Governor-General Francis Burton Harrison in 1914, they had to pay the then huge amount of P60,000 in fines, which so crippled the paper it ceased publication.

With some changes, the libel laws remained in place even after 1932 when the Revised Penal Code went into effect. It has since been in the RPC despite calls for its decriminalization from journalists, free expression, and media advocacy groups. Libel as a criminal offense mandates prison terms of from six months to six years and/or a fine of P200 to P6,000. In more recent cases, those convicted of libel have been fined more than these amounts in addition to being sentenced to prison terms. Libel’s being a criminal offense has also made it specially troubling for journalists even prior to conviction, since anyone accused of libel can be arrested, and unless able to post bail, imprisoned pending the outcome of the case.

Before Gloria Macapagal-Arroyo came to power, the most prominent post-martial law libel case in the Philippines was the late President Corazon Aquino’s suit against the Manila newspaper Philippine Star’s Maximo Soliven and Luis Beltran — the first by any sitting President — for the latter’s statement in his column that Mrs. Aquino “hid under her bed” during the 1987 coup attempt against the Aquino administration. Soliven and Beltran were convicted, but their conviction was reversed after Beltran’s death. On his part, while still President, Joseph Estrada also threatened to sue The Manila Times for libel, but withdrew the suit when the paper apologized.

The nine years during which Mrs. Arroyo was in power were particularly problematic, notably for the 11 libel suits her husband filed against 46 journalists starting in 2006, and for the conviction and imprisonment of Adonis in 2007.

Adonis’ offense was that he read during one of his broadcasts a tabloid account of then House Speaker Prospero Nograles’ allegedly being seen naked in a hotel where he had supposedly spent the night with a woman whose husband had materialized in the hotel in search of his wife. Nograles sued, and Adonis was convicted despite his lack of adequate legal representation and sentenced to five months’ to four years’ imprisonment. With the Center for Media Freedom and Responsibility (CMFR) and the National Union of Journalists of the Philippines (NUJP) as cosignatories, after serving two years of his sentence Adonis filed through lawyer and UP law professor Harry Roque a complaint before the UNHRC alleging that Philippine libel law is incompatible with Article XIX of the ICCPR.

The UNHRC view, which was adopted by the UN during its 103rd session, compels the Philippine government, as a state party to the ICCPR, to submit a report to the UN within six months detailing what it has done in compliance with the Committee’s suggestions. It is by far the most significant development in the decades-long fight against a law whose repressive and colonial roots have no place in a country with such democratic pretensions as the Philippines. But it is also a major victory in the campaign to enhance the right to free expression and press freedom.

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Published in Business World
February 2, 2012