Category Archives: Free Expression

Media pluralism and Free Expression

This was my concluding remarks in a legal assessment of media ownership  in the Philippines  that I wrote for a project by Verafiles with the Reporters Sans Frontieres (RSF) 

Formal legal and constitutional protections on free expression abound in contemporary Philippines. But these have largely been pursued along the lines of an individualistic stress on the Bill of Rights, framed as guarantees against state encroachments into individual spheres of freedom.

But this is really to be expected from a dominant discourse of liberal political and legal theorizing on rights as inhering only to individuals; this is not to disparage individual rights, which are important as they are.

The Philippine Supreme Court has acknowledged the Bill of Rights’ debt to the Enlightenment idea of reason as a mode of discovering the truth in its different facets. But more than that, it frames the Bill of Rights, where the constitutional protections against restraints on free speech and free expression are embodied as a hedge around the state, as it were. Perhaps, one of the most eloquent and explicit declaration about the purpose of the protections it accords to the citizen has been made by constitutional scholar Joaquin Bernas, S.J. who, in explaining the intent of the provisions found in the Bill of Rights of the 1987 Charter, said:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.[1] [italic ours]

But batting for media pluralism as a good state of affairs will not be helped by such a narrow frame of argumentation. This then will require a closer and creative reading of the Constitution and other legal sources, to be able to better account for why as a matter of state policy, a plurality of media sources in contemporary Philippine society would augur well for a vibrant public life.

There is, as the political philosopher Jonathan Chaplin remarks, borrowing from the legal philosopher Mary Ann Glendon, a missing dimension of “sociality” in much of liberal theorizing on institutional rights, which has been decidedly individualistic in orientation. “Because contemporary liberalism lacks an adequate notion of sociality,” says Chaplin, “liberal legal, constitutional, and political [theories] have proved unable to generate a convincing account of the reality and character of the legal rights of institutions”.[2]

As Chaplin argues, “[t]he empirical observation that many social institutions themselves do have positive legal rights is indisputable, yet liberal individualism seems unable to offer much beyond an implausible contractualist explanation of their origin and status”[3] Liberal theorists tend to construe the phenomenon of institutional rights as merely derived from the rights of associating individuals rather than as having some independent foundation and status not finally reducible to individual rights.

In practical terms, what this means is that the state ought to recognize the proper place of a plurality of institutions – in our case – of media institutions, in a democratic deliberation. Along that line, free expression as a right best flourishes with a legal framework where such a structural or an associational plurality is also promoted and pursued.

There are ample constitutional sources for safeguarding and ensuring media pluralism:

The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. [CONST. art. XVI, sec. 11(1)]

 The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.” [CONST. art. XII, sec. 19]

 The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press[ CONST. art. XVI, Sec. 10]

 The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good [CONST. art. XIII, Sec. 2]

These constitutional provisions hammer the important point about “structural pluralism” as a corrollary to “viewpoint pluralism”, that for individual freedoms to flourish, they as well require the flourishing of various supporting institutions.

It is now a given that the right to free expression and the right to information are two sides of the same coin. One is the corollary of the other. The theory is that a better, rational, discussion of public matters is best achieved when citizens have at their disposal information pertinent to the issues at hand. The quality of such public discussion is only as good as the pertinent information made available to citizen-discussants.

An early theory of American constitutional design, expressed in an oft-quoted concurring opinion of J. Brandeis –a master of legal aphorisms – holds that:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of…. government.

They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[4]

Explicit in the necessity of providing citizens “an opportunity to discuss freely supposed grievances and proposed remedies” so as to build that “path to safety” towards a stable society is the requisite means – free speech and assembly; implicit in the process is the need to broaden the opportunity for public discussion by assuring a wide variety of avenues for it.

The legal and jurisprudential support for individual rights to free expression and right to information is robust and well developed in Philippine experience. But viewed in Glendon’s – and Chaplin’s – sense of sociality, the right to free expression and the right to information are now to be understood in a broader sense; that is, that the individual exercise of such rights must be correlated with institutional or associational support.

It is important that the news media maintain credible internal checks against the encroachment by the crass business bottom-line into the editorial room. Having said that, these internal checks guaranteed by the strict separation between the advertising room and the newsroom should be matched by external checks against a situation where a single dominant player in the media market controls both access to news and the news content.

The former is a function of how media owners understand the grand traditions that make good journalism work the way it should. The latter is a function of how the government understands the idea that a proliferation of independent news media assures the polity of a vibrant public discourse crucial to a functioning democracy. This is a question of extreme urgency, given contemporary trends in politics here and abroad about widespread distrust towards mainstream media and the rise of social media is the principal source of information for many.

Social scientists have a name for it: triangulation. The more independent media outlets reporting about the same issue or event, the more confident we are that we are getting all possible angles to the news of the day. The implications of just one or two giant business interests gatekeeping what gets to be reported as news by various media outlets should give us pause.

Media companies are a-typical in the sense that while on the one hand, they are supposed to serve the public interest in some way, the model that has so far proved sustainable, if barely for most, is that of a profit-driven, business enterprise. Therein lies a seemingly irreconciliable dialectic. In Philippine experience at least, we have not seen much of a media enterprise that is not just one of many interests across different business sectors owned by the same business empire, family-owned or otherwise.

This all the more drives home the point about the necessity of the state itself stepping in by setting up an effective system of checks and balances against media monopolization. In any case, as the discussion has already shown, it is not just a legal duty but a constitutional one for the state. While we have benefitted greatly from the earnest cultivation of individual freedoms, we have however neglected that other set of constitutional protections against media concentration that also threatens the same freedoms, if in a more insidious way.

In much of theorizing on structural pluralism in relation to civil society, the plurality of non-state actors participating in public discourse is seen as a normative goal; it presents a buffer to state overreach, and primordially, a mediating layer between individuals and the state.

In another, though, relevant context – on the question of the regulation of political advertising, that is – J. Mendoza has written about the constitutional command against political inequalities that justifies government regulation and the deep principle he refers to rings through for our concern as well:

The notion that the government may restrict the speech of some in order to enhance the relative voice of others may be foreign to the American Constitution. It is not to the Philippine Constitution, being in fact an animating principle in the document. Indeed, Art. IX-C [Sec. 4] is not the only provision in the Constitution mandating political equality. Art. XIII, [Sec. 1] requires Congress to give the `highest’ priority to the enactment of measures designed to reduce political inequalities, while Art II, [Sec. 26] declares as a fundamental principle of our government ‘equal access to opportunities for public service.’ Access to public office will be denied to poor candidates if they cannot even have access to mass media in order to reach the electorate. What fortress principle trumps or overrides these provisions for political equality?[5]

A side remark: in the latest case of GMA v. Comelec, the Supreme Court has unfortunately made a counter-intuitive ruling that defeats the purpose for which the Fair Elections Act was passed in the first place; the ruling practically gives the moneyed candidates more room to wiggle and reverses Osmena in the result, even if it upholds its original intent. But perhaps, this situation only points to the fact that we need more than regulation of political advertising if we want wide-ranging electoral reforms: we have to look at the necessity of campaign finance and party system reforms, to begin with.

Media monopolization courts the danger of speech being shaped by and directed towards a dominating commercial interest.

In the language of jurisprudence, it is in the “substantial interest” of government to regulate media monopolization precisely for that reason.

Yet, as this study has shown, we face multiple challenges to establishing media pluralism.

To begin with, there are various structural issues that require our immediate attention.

First, there is the seemingly incoherent system of rules concerning the intersection of mass media and public utilities. Such incoherence has often resulted in lax or incompetent regulation.

Second, there is the lack of a dedicated media authority that specifically deals with monopolistic arrangements. What obtains is a system of several overlapping institutions that deal separately with franchise, standards and competition. What this means is that it is difficult to develop administrative competence with a deep appreciation and respect for media pluralism and freedom where the authority to regulate is widely dispersed. The current system also requires close coordination between and among regulatory agencies but this coordination depends to a large extent on a proactive and enlightened regulators.

Third, there is the ever-present specter of regulatory capture. Constitutional and legal requirements on ownership of public utilities and media outfits have been ostensibly rendered ineffective by half-hearted regulation. This regulatory failure has a direct effect on the form and shape of the Philippine media landscape.

Fourth, related to this is the lack of legal safeguards against conflicts of interest of regulators. Very little legislation has been made to address this “revolving door” – the quick transition of individuals from working as a public officer to a private employee, and vice versa.

In this situation, public officers often have to deal with the moral hazard of exercising discretion in a manner that may unduly benefit private companies with the expectation that they may eventually exploit such benefits as a potential hire in the future. Similarly, newly elected or appointed public officers from the private sector may unduly use insider information obtained in their prior employment to create unfair advantages for their industry or company.

To date, only the PCC’s enabling law has a meaningful set of qualifications required of its commissioners designed to avoid such situations of conflict. This calls for a wide-ranging legislative reform. 

Fifth, there is the issue of media ownership transparency. This exercise in legal assessment has also shown how current rules on corporate disclosure are inadequate to address the established phenomenon of corporate lawyering. Even anti-dummy legislation appears inadequate to address the problem, precisely because corporate layering requires active investigation beyond what is available on the face of corporate papers filed with the Securities and Exchange Commission. At the same, as seen in the Gamboa ruling, regulatory agencies themselves appear to be remiss in their legal duty to enforce regulation. Transparency is important, given the strong tendency we see of interlocking ownerships of media businesses in the Philippines.

To close: the current hype given to the “convergence” of public utilities, mass media and new media promises to present a greater challenge to the cause of democratizing media, if we follow Tiglao’s pointed allegations about the vertical and horizontal reach of the Salim empire in the Philippines.

Winthrop Yu, the President of the Philippine chapter of the Internet Society, has shared with me in an online conversation a thought experiment – that is, posit a contest between two teams consisting of the existing “duopolies”, PLDT and Globe v. GMA and ABS-CBN. “If the barriers between media and telcos were lowered, which doupoly would prevail and eventually dominate the medium and the message?” he asks.

He said he would place his bet on PLDT and Globe. “Thus, the threat to democratic space.”

I think he is not in the wrong, if we consider that there are now probably more smartphones than television units in the country. If Internet penetration reaches more Filipinos in the next few years, such a “convergence” will rule the day.

[1]Sponsorship speech of Commissioner Bernas, Record of Constitutional Commission, Vol. 1, p. 674, July 17, 1987.

[2] Jonathan Chaplin, Towards a Social Pluralist Theory of Institutional Rights, (3) Ave Maria Law Review 147-149 (2005).

[3] Id. At 148.

[4] Whitney v. California 274 U.S. 357 (1927)

[5] 288 SCRA 472, 473 (1998). CONST. (1987)

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Filed under Free Expression, legal theory, Media Ownership, Principled Pluralism, Public Interest, Uncategorized

Alternative Facts of Dialectical Thought (Brandys Redux, No. 2)

0327-06-brandys-kazimierz-1982I first posted about my re-reading of the journals of the late Polish dissident Kazimierz Brandys here.

In this day and age of “alternative facts”, it’s interesting to read an entry in his journals (p. 96-97) about what passed for such in his own time. In 1948, as a young Socialist, he and other Polish writer, the poet Konstanty Galczynski, were invited to Russia to attend a commemoration of the October Revolution.

Arriving in the nick of time to the Bolshoi Theater where the ceremonies were being held, he and his compatriot were shown to their seats as the flashbulbs of cameras burst one after the other; he could very well remember that there were four rows of seats up on the stage, with 12 people on them. Stalin was absent, but for his huge portrait in the backdrop. Molotov was presiding on the podium. Brandys recognized a few Politburo men on the first row — Mikoyan, Boroshilov. On the second row, he could not miss Marshal Budeny’s distinctive black moustache. The third and fourth rows were occupied by less familiar faces, “people wearing dark suits and uniforms.”

He writes on:

I saw it all quite clearly with Molotov standing  at the podium, lit by flashbulbs. He spoke for over an hour, stuttering each time he said Stalin’s name: “St-St-Stalin.” During the entire speech, the stage, the red table, and the four rows of the presidium were before my eyes…after the meeting, we were taken back to our hotel. We ate dinner; then Galcznyski and I fell asleep on the wide double bed. I was up first in the morning, awakened by a rustling sound at the door. Still Sleepy, I jumped out of bed and noticed the edge of a paper that had been slipped under the door. It was a copy of Pravda, redolent of fresh ink.

Most of the front page was taken up by a photo showing the opening of the commemorative meeting: Molotov at the podium, the presidium table with Malenkov in the middle….I scrutinized the photograph. There were only two rows of chairs behind the table; the third and the fourth had vanished, replaced by a uniformly dark background. I was unable to grasp what the photograph was presenting. The truth? A fiction? both? Or was I seeing things?

I finally woke up Galcynzski and handed him the paper. Neither of us knew what to think.

When the two of them returned to Poland, they went to see the poet Adam Wazyk, to seek his counsel. Wazyk had spent the war in Russia; surely he knew more about the Russian mindset than both of the. And so, they handed to them the offending copy of Pravda as the poet sat in the editorial offices of the newspaper Kuznica (The Forge).

The poet’s response:

He looked at me with all the dignity of a Siamese cat and asked me just what I wanted to know and what I did find so surprising. I told him that there had been a third and fourth row, and so why weren’t they in the picture?

“That’s simple,” said Wazyk. “The people in the third and fourth rows still don’t deserve to be seen in an edition of several million copies.”

All right then, I persisted, but that means that the photograph isn’t true.

“Politically it is true,” Wazyk cut me short dryly.

That ended our conversation.

One of my first lessons in dialectical thinking.

In case you forgot, Pravda is the Russian word for truth.

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The Cebu Declaration for Free Expression in Southeast Asia

CebuDeclarationLawyers from five countries in Southeast Asia have met in an historic conference in Cebu, Philippines to form a common front against the repression of freedom of expression in the region.

One of their key proposals is to engage together and hold accountable regional institutions like the ASEAN Intergovernmental Commission on Human Rights – an organization, they say, remains unresponsive to human rights violations in member countries.

More than 30 lawyers, representing 10 civil society organizations from Thailand, Malaysia, Myanmar, Indonesia and the Philippines established Sunday the Advocates for Freedom of Expression Coalition-Southeast Asia (AFEC-SEA) and vowed to “raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.”

“A violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region,” they said in a document signed over the weekend during the four-day conference in Mactan, Cebu. “The protection of freedom of expression is an obligation of the whole region under international law.”

Most of the signatories are trial lawyers who have handled cases against freedom of expression and Internet freedom. Some – including senior lawyers from Myanmar – had been jailed for fighting against human rights violations or for advocating freedom of expression.

“Recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia,” the declaration said, signed by the Center for International Law Philippines (CenterLaw), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Institute for Criminal Justice Reform (ICJR), iLaw, The Legal Aid Center for the Press (LBH Pers), Malaysian Centre for Constitutionalism & Human Rights (MCCHR), Myanmar Lawyers’ Network (MLN), Myanmar Media Lawyers’ Network (MMLN), Philippine Internet Freedom Alliance (PIFA), and the Thai Lawyers For Human Rights (TLHR).

The conference was organized by Centerlaw with the support of the American Bar Association Rule of Law Initiative Internet Freedom program.

“(I)n establishing this freedom of expression collation, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world,” the declaration added.

“It is an opportune time for us to issue this declaration given the escalating repression of expression in the region, including restrictions on the use of the Internet,” said Romel Bagares, CenterLaw executive director.

He said the lawyers realize that for the most part, they are fighting an uphill battle in countries like Thailand, Myanmar and even Malaysia. “But it is important that cases are filed to have an historical record of wrongs brought to court.”

Among the projects coalition members will undertake is a campaign against the use of a single gateway for the Internet in Thailand, legal challenges against the use of the 1948 Sedition Act in Malaysia to repress protests against the government, and the filing of cases in the Philippines against recently-issued government regulations on the Cybercrime Act, according to Gilbert Andres, a Centerlaw senior litigator who played a key role in bringing the lawyers together to the conference.

“The lawyers have also agreed that the Asean Intergovernmental Commission on Human Rights needs to be challenged and engaged to play an active role in the promotion and protection of free expression,” said Andres.

Delegates from Myanmar also highlighted their “Yellow Ribbon campaing” for judicial independence in their country in the wake of the appointment by the government of senior military officials to their Supreme Court. “Free expression is stifled when the courts are filled with generals who repress dissent the first time they see it,” said Aung Soe, a veteran lawyer who represented the Myanmar Media Lawyers Network and the Myanmar Lawyers Network, two largest lawyers’ groups in his country .

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Cebu Declaration  on the  Right to Freedom of Expression as a Fundamental Human Right  and its importance to the Southeast Asia region

WHEREAS, we are non-governmental organizations in Southeast Asia working for the protection and promotion of human rights, especially for the right to freedom of expression;

WHEREAS, recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia;

WHEREAS, we see an urgent need in Southeast Asia to utilize remedies under domestic and international law against these threats to freedom of expression, for we want to establish an edifice for free expression that will serve not only this generation but the future generations of Southeast Asians;

THEREFORE:

WE DECLARE that the right to freedom of expression is essential in the pursuit of truth, justice, equality, and accountability; but more importantly, freedom of expression is a fundamental human right since as human beings we yearn to express our own humanity.

WE DECLARE that in order to animate our core belief in the right to freedom of expression as a fundamental human right, our individual members shall commit not to prosecute criminal cases against anyone for something he or she expresses except in accordance with international human rights norms, and shall advocate for the repeal of criminal libel laws.

WE DECLARE that the right to freedom of expression is universal, but that the methods for its advocacy and protection are contextual; hence, we shall raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.

 WE DECLARE that the economic and social integration of Southeast Asia requires the respect and protection of freedom of expression in our region consistent with international human rights norms. Freedom of expression cannot be bargained for purely economic, social or political considerations. Moreover, a violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region; the protection of freedom of expression is an obligation of the whole region under international law.

WE DECLARE that the rule of law, equality, non-discrimination, access to justice and fair trial are essential to the protection and promotion of freedom of expression.

WE DECLARE that to be more effective advocates for freedom of expression and the rule of law in Southeast Asia, we resolve to work together in unity of purpose, action, spirit and passion, and WE THEREFORE ESTABLISH the Advocates for freedom of expression Coalition-Southeast Asia to advance freedom of expression across Southeast Asia consistent with international human rights norms, through strategic litigation, education, training and advocacy.

LASTLY, WE DECLARE that in establishing this freedom of expression coalition, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world.

Signed this 27th day of September 2015, in Lapu-Lapu City, Mactan Island, Cebu, Philippines, by our duly authorized representatives

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Filipino human rights group brings case of detained Thai poet to UN body

ThailandThe Manila-based free expression advocacy group Center for International Law asked the UN Working Group on Arbitrary Detention Wednesday to press the Thai Royal Government to free a Thai poet and blogger being tried by a military tribunal for writing articles that allegedly insulted King Bhumibol Aduljadej.

The cyberactivist, the poet Sirapop Korn-A-Rut, has been detained at the Bangkok Remand prison since June 2014 and faces up to 45 years in prison under his country’s restrictive lèse majesté laws, or laws penalizing any publication deemed offensive to the Thai King.

“Sirapop has written about a wide range of issues dealing with the contemporary political and legal climate in his country, a brave act that cannot be honestly done without dealing with the institution of the Office of the King of Thailand,” said lawyers Harry Roque and Romel Regalado Bagares, chair and executive director, respectively, of CenterLaw. “In doing so, he has run afoul of the lese-majesté laws of the Kingdom of Thailand, which he has also considered to be a long-standing instrument of political repression and oppression in his country.”

The Thai cyberactivist, whose situation was brought to Centerlaw’s attention by the Thai internet freedom group Internet Law Reform Dialogue (iLaw), is accused of publishing several allegedly libelous poems online against the Thai King sometime between November 7, 2009 and June 30, 2014 under the pseudonym “Rungsira.” One poem (Shut the news, closing the eyes, buffalos are tearful, because the tiger may die) Pid-khao-bod-khloa, Kra-bu-ram-hai, Duay-wa, Pa-yak-ka-jak- ka-wai, was posted on the web board of the“Prachathai” website (www.prachataiwebboard.com).

This carried a caricature of an crowned old man with a Swastika on his military uniform sleeve accompanied by the text “…being an angel, why does one have to walk on the soil, overlook the ground surface, even if having normal food every meal, being modest, because we are faithful, with two hands we build up ourselves…”

The same caricature with the text “Prince Baworndesh the head of the rebels, Din Tarab the army leader of the rebel, Sulayut Julanon the Grandson of the rebels, the Angel the King of the rebels, Suthep Thaugsuban the Southern rebel, Sondhi Limthongkul the Chinese rebel,” also appeared on his blog (http://rungsira.blogspot.com/2014/01/blog-post-22.hlml). All of these were purportedly placed and made available online by Sirapop during Martial Law in Thailand.

The human rights group Amnesty International reports that around 511 activists, students, academicians and journalists have been arrested and arbitrarily detained, in violation of their rights to freedom of expression and peaceful assembly, since Martial Law was declared in the country last May 20, 2014.

Authorities have used security legislations and lese-majesté laws to suppress even peaceful dissenters to such extents that enforced disappearances, torture and inhumane treatment were carried out, prosecutions of criminalized political activities were hastily made, media was bullied into silence and self-censorship, and human rights safety mechanisms were set aside.

In their 16-page petition to the Working Group, the Filipino lawyers said Sirapop is clearly being arbitrary held and tried simply because he has chosen to exercise his right to free expression and to participate in public affairs in his country, which rights are protected under international law, including the International Covenant on Civil and Political Rights, of which Thailand is a party. The Thai cyberactivist is also being denied his right to a fair trial, according to the petition.

The UNWAD is a specialized UN human rights mechanism dealing with urgent cases of arbitrary detention any where in the world. While its rulings are non-binding, these are considered authoritative on the state of international law dealing with fundamental human rights. Over the years, its interventions in the situation of many human rights activists in repressive states have yielded positive results.

Centerlaw cited a view issued by the UN Human Rights Committee in the case of jailed Filipino broadcast journalist Alexander Adonis, which Centerlaw had brought before the Committee. “In its view in the Adonis case the UNHRC said that criminal libel is incompatible with the freedom of expression protected under Art 19 of the ICCPR,” it said in its Petition filed on behalf of Sirapop.

Thailand’s ruling military junta has scrapped the country’s old Constitution and replaced it with an interim charter that denied the right of appeal to citizens convicted of violating its lese-majesté laws. As in Sirapop’s case, it has increasingly used military courts to prosecute alleged offenders without a public trial. Centerlaw argues that thailand’s military tribunals are not independent of the Executive and the lack of an appeal removes any possibility of a remedy against its judgments.

*image from http://www.stopmakingsense.org

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Blasphemy, the “Christian state” and the Cross

After reading Douhat’s piece  in the New York Times on blasphemy,  I offer these further thoughts on #Charlie Hebdo in relation to blasphemy and its place in the Christian society:

1. A state inspired by Christian ideals will nevertheless allow room for blasphemy, for the right to offend, precisely as demonstration of God’s grace and Christian civility, of the conviction, to borrow from  Mouw and Griffioen, that while we await the eschaton, we live under an “open heaven” and cannot see what lies beyond the horizon. This calls then for a certain sense of humility and openness to critical dissent. This is the heart of the Cross as symbol, message, and historical reality.

2. A state founded on Christian principles will not criminally prosecute blasphemy. Such a state will have a good grasp of justice deepened by ethics; it will understand why the contemporary differentiation in society where various institutions have their respectively marked out spheres necessitates the separation of “religious offenses” from the jurisdiction of the state as a political institution.

3. This calls to mind Jim Skillen’s reworking of Bishop Newbiggin’s take on the Cross: Skillen, proceeding from Newbigin’s view of the cross, argues that Christians should be arguing that an open, non-totalitarian, religiously plural society cannot be grounded in intolerant secularism but is, in fact, grounded in God’s patience and mercy in upholding the creation.

4. What they need, according to him, is a strong and distinctive doctrine on which to anchor this robust view of political pluralism; they too, must realize that the fair treatment of all faiths –including the atheist faith – in the public arena should, as a matter of principle, be one aspect of a ”Christian society. “

5. This Protestant idea of “principled pluralism” (or also known by its older name as “sphere sovereignty”) holds that if the right thing for Christians to do in obedience to the truth of Christ’s cross and resurrection is to defend religious freedom in public, then they must not tolerate the power of political untruth that would deny religious freedom to non-Christians or to some other religious group.

6. For Skillen, this means pushing a normative political principle for a Christian society that is consistent with the gospel demand that Christians should make some room for untruth and not try to act as God at the final Judgment. “If the political principle consistent with this truth is that all citizens should be treated fairly and equitably in regard to their religious way of life, then the political principle of tolerance is a normative truth-consequence of the gospel.”

7. Of course, the truth of political fairness for all citizens excludes the untruth of political discrimination or persecution of one or another religious group. Thus, precisely in order to live and proclaim the truth of the gospel, Christians should be willing to lay down their lives even for religious enemies in order to defend the truth of equal public justice for those enemies.

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In Solidarity with #Charlie Hebdo

Excerpts from our Mideo Cruz blasphemy case pleadings:

Art calls for a democratic solidarity even in the face of an intense confrontation of values and perspectives because ultimately, if art is to exist in a society that promotes democratic principles, it must sometimes be allowed to express even those thoughts and ideas that may not sit well with what the majority believes to be within the limits of acceptability.

Solidarity expects that a majority sure of their convictions should be able to take it in the chin when their cherished beliefs are put to question by a counter-cultural dynamic; it expects that in the face of intense questioning the majority, since they are sure of their convictions and are secure in their cherished doctrines, will be able to hold up on their own and offer a counter-argument in a dialogical manner that shows both grace and civility.

Of course, this kind of democratic commitment requires a basic appreciation for the variegated function of art in society. Such an appreciation should be able to distinguish between what is shown at a rundown affair in a seedy part of town operated by criminal types, and an exhibit– albeit controversial because of the questioning it subjects society’s conventions to – set up at a government-run museum or cultural center.

It should be able to restrain itself from acting against a contrary opinion in the way the Talibans of Afghanistan did towards the cultural treasures belonging to the Buddhist minority in their country, but which their fundamentalist Islamic traditions considered to be idolatrous and blasphemous towards Allah, simply because it recognizes that societies rise and fall on their citizens’ commitment to a civility able to grant being to the Other who proffers an alternative vision of life. Indeed, it is such a deep cultural and spiritual malaise where – despite the best efforts of our schools and universities to nurture and develop in their students such an appreciation for the place of art in public life – a passionately but hopelessly underdeveloped and constricted view of art predominates in society…..

Yet, if we are to have a state and a society that respects principled pluralism – we must be prepared to heed what Justice Robert Jackson, the chief prosecutor in the Nuremberg Tribunals, said in a landmark American case on compulsory courses in both private and public schools that infringed the rights of a minority religious group, the Jehovah’s Witnesses:

“We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

The alternative to a state and a society founded on principled pluralism is a return to a Christendom where the Inquisition [insert here any other repressive system] was the order of the day for those who dared to cast a different vision of societal order: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

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Spinoza, Charlie Hebdo and the Future of Religion in France?

charlie-hebdoIn light of the shocking and tragic events in Paris in the last few hours, a short essay by Jonathan Israeli from 8 years ago came to mind, on Baruch Spinoza’s secular tolerance on the question of freedom of thought versus the freedom of religion (as opposed to Locke’s more theological/religiously inspired idea of tolerance). According to Israel, Spinoza represents the heritage of the Radical Enlightenment, one that pushed religion to the fringes and restricted if not banished religion from public discourse.  In contrast, Locke was an heir to a more Protestant idea of toleration.  I believe France has been on Spinoza’s road for a long time now. It will go deeper into Spinoza’s territory after the Charlie Hebdo massacre. Some relevant excerpts:

In his later work, the Tractatus Politicus (1677), Spinoza does more extensively deal with liberty of conscience and worship but in a way which again shows that his foundational tolerantisme toleration not grounded in theology – refuses to allow special privileges to the protection of faith and is chiefly intended to ground individual freedom of opinion, as well as of speech and writing. At the same time, Spinoza, again quite unlike Locke, always evinced a marked disinclination to encourage organised ecclesiastical structures to expand in influence, compete for followers, and assert their spiritual authority over individuals, as well as engage in politics. He begins by distinguishing carefully between toleration of worship, strictly speaking, which is one thing and empowering religious groups to organize and extend their authority just as they wish which he sees as something rather different. While readily granting that everyone must possess the freedom to express their beliefs no matter what faith they profess, or what they believe, Spinoza simultaneously urges the need for restrictions on the activities of churches. While dissenters should have the right to build as many houses of worship as they want and individuals may freely fulfil the duties of their faith as they understand it, Spinoza does not agree that this means that minority religions should have a free hand to acquire large and impressive ecclesiastical buildings or exercise sway over their members, as the Amsterdam Portuguese synagogue had once sought to dictate to him. Large and magnificent houses of worship should, he thinks, be monopolized by a publicly endorsed religion supervised by the state which in any well-ordered society needs to be a ˜very simple, universal faith , that is one which teaches ordinary folk that salvation comes through practicing ˜justice and charity. True religion in his terminology is a symbolic or concretely articulated universal philosophical religion. What is absolutely disastrous for any society, he argues, is allow religious leaders of whatever kind sufficient autonomy and prestige to be able to mobilize elements of popular opinion to play an active role in the political process and challenge the authority of the state and its institutions.

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