Category Archives: Libel

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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Filed under Burma, Free Expression, Human Rights, International Law, Internet, Libel, Malaysia, Thailand, Uncategorized

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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Filed under Art, Civility, Free Expression, Freedom of Religion, Libel, Principled Pluralism, reformational philosophy, Religion

The scandalous nature of libel

By Romel Regalado Bagares

As a former journalist, I know intimately the terror of being made to face a criminal complaint that may eventually lead to a jail sentence: libel.

I was barely a month into my new job as a newspaperman in 1995  when I was slapped with a P5-million libel complaint before the Office of the Prosecutor in Pasay City. The complainant was a former Supreme Court justice, valedictorian of the illustrious Class of 1939 of the University of the Philippines College of Law and favored classmate to its most (in)famous alumnus  the late strongman Ferdinand Edralin  Marcos.

I had earlier reported on an entirely different complaint, one dealing with sexual harassment, filed with the National Bureau of Investigation (NBI) against the good justice by a young woman who worked for him as a legal researcher. The good justice  – he was already 79 years old at that time –  denied it of course, and his denial came on strong in the form of a libel suit against me and the legal researcher.

My first reaction when I read the subpoena from the Office of the Prosecutor was panic: I was a 20-year-old cub reporter who was earning a measly sum of P5,500.00 a month as a news reporter.  All told, my assets consisted of no more than a few hundred books, most of them bought second-hand and therefore cheap,  a diploma from the state university,  and  youthful bravado that was thinning fast as I contemplated a bleak future in jail and penury.

I remember being received at his Makati City office by one of the newspaper’s lawyers, the well-known litigator Rogelio Vinluan, for an interview that lasted an hour. A young associate lawyer took down notes. “You barely look the part, “ Atty. Vinluan chuckled when he first saw me. But he quickly calmed my fears and told me not to worry.

Indeed, I was still wet behind the ears, as old hands used to say, and already, I was facing a big libel suit. To the credit of Atty. Vinluan’s  litigation prowess, the suit was eventually dismissed. A few years later, I would sit for the first time as a working student in a class on Evidence in the evening program of the UP College of Law,  with Atty. Vinluan as my professor. I don’t think he recognized me as a former client nor did I dare remind him of our former association. In any case, I passed his class.

Shortly after that, his law office would defend me in yet another libel case where I was sued for my reportage on a violent fraternity-related incident on campus that took the life of an innocent bystander – a journalism student who came from a very poor family and his family’s only hope for a better life.  The son of an influential family had been linked to the crime and I had duly reported on it. This time around, younger lawyers from Atty.  Vinluan’s firm  were assigned to defend me. Like the first one, the suit was dismissed  before it could even reach the courts.

I recall this part of my eight years working as a journalist  to bring home the point about criminal libel – how it seriously impairs a journalists’ work to ferret out the truth about a matter of public interest,  and how helpless a journalist could be if he or she is not supported by his or her media organization when sued for libel. In my case, my newspaper, The Philippine Star, did not abandon me but hired the best lawyers to defend me.

Unfortunately, for many Filipino journalists, especially those who work away from the center, a good defense lawyer for a libel case  is a luxury they cannot afford.

The Philippines, despite its democratic credentials,  has kept in its statute books criminal libel. It is a colonial legacy that time and again, powers-that-be have had no qualms deploying to stifle legitimate political dissent or any comment or reportage made in pursuit of the public interest.

As the American Bar Association‘s (ABA) Country Director Scott Ciment would say, criminal libel is an abhorrent practice that should have no place in any self-respecting democratic state “because it sends people to jail simply because of the words they say or write. ”

The Dutch Christian philosopher Herman Dooyeweerd would say that a state with a deepened understanding of justice will know better than punish an act of defamation with imprisonment,  or penalize those who speak the truth to power with a jail term.

One piece of good news is that the United Nations Human Rights Committee recently declared that the Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights,” which pertains to the freedom of expression.

Recalling  its General Comment No. 34, the UN body stressed that defamations laws should not stifle freedom of expression. “Penal defamation laws should include defense of truth,” it said. “[In] comments about public figures, consideration should be given to avoiding penalties 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 defense. State parties should consider the decriminalization of libel.”

The UNHRC’s view was expressed in connection with a complaint filed with it by Davao City broadcast journalist Alexander Adonis, who spent two years in jail after he was convicted of libeling former Speaker of the House Prospero Nograles.

Adonis’s crime was reading and dramatizing over his popular radio program a news report that then Congressman Nograles was seen running naked in the corridors of a hotel in the city after he was caught in bed by the husband of the woman who was said to the legislator’s mistress. The incident entered the collective memory of the citizens of Davao City as the “Burlesque King” scandal.

After serving two years in prison, with the legal assistance provide by the Center for International Law,  Adonis questioned, among other things,  whether criminal libel is compatible with the freedom of expression protected  under Art 19 of the ICCPR, to which the Philippines is a state party.

And the UNHRC‘s answer is a resounding no.

The UNHRC is a treaty monitoring body created under an optional protocol to the ICCPR with the power to declare that a State party to the Convention is in breach of its obligations under the covenant.

In the Association of Southeast Asian Nations (ASEAN), only the Philippines signed up to the individual complaint mechanism that allows its citizens to file directly with the UNHRC  complaints for violations of their human rights.

While it is true that a UNHRC view is legally non-binding on an erring state, it carries persuasive weight that such a state cannot readily discount, not to mention the follow-up mechanism in the UN system  that repeatedly reminds the state of its continuing breach of obligations.

In the context of Philippine experience, it is yet the most powerful condemnation by an international body of the truly scandalous nature of criminal libel: of how, all too often, those in power hold on to it by suppressing those who dare to speak truth to power,  using their most readily available tool – a libel complaint.*

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An earlier version of this  essay first appeared in my column for the Iloilo City-based The News Today.

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Filed under Free Expression, Libel