Tag Archives: state

The nominalistic state: Bodin, Hobbes, Schmitt

Excerpts from a chapter of my long essay: In the modern era, the marked influence of nominalism in theorizing about sovereignty can be seen in the thought of the controversial leviathanGerman constitutional scholar Carl Schmitt, who, following Bodin, postulated that sovereignty is not a function of the general rule but of the exception; that is, that it is primarily a question of who exercises the power to make exceptions. Thus the famous first sentence in his short but illuminating treatise on political theology: “Sovereign is he who decides on the exception.”[1] For Schmitt, at the heart of the issue of who is the true sovereign is this:

the concrete application, and that means who decides in a situation of conflict what constitutes the public interest of the state, public safety and order, le salut  public, and so on. The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.[2]

Thus, when Schmitt says that the test of the existence of a state of necessity, of an emergency in fact “involves a specifically juristic element,”[3] he means exactly that – there can be no law limiting the discretion of the ruler to decide the point, or to declare who is an enemy of the state and who is not; in other words, the ruler is the law herself.

This indivisibility of the power to decide the exception from the power to decide what is lawful sets itself against the liberal constitutionalism of Schmitt’s day – one can immediately think of the doomed Weimar Republic – which sought to set in place a system of checks and balances in government designed to curtail the arbitrary exercise of power by the ruler.

Schmitt deploys the thought of Bodin and other seventeenth-century natural law scholars against that system, saying that sovereignty cannot tolerate a situation where at times it is the prince that rules and at others, the people (as when the prince must first consult the people before deciding in a situation of extreme urgency). Indeed, in his argument that only the sovereign has the “monopoly to decide,” Schmitt echoes[4] the nominalistic voluntarism of an earlier era founded on a revolutionary theological conception of the Divine Will: All law is “situational law.”

The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the           essence of the state’s sovereignty, which must be juridically defined correctly, not as the monopoly to coerce or to rule, but as a monopoly to decide. The exception reveals most clearly the essence of the state’s authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law.[5]

Thus Schmitt cites Hobbes in his formulation of sovereignty as pure and unbridled “political decisionism”: autoritas, non veritas facit legem.[6] Indeed, it was Schmitt who postulated that

[a]ll significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which       they were transferred from theology to the theory of the state, whereby, for             example, the omnipotent God became the omnipotent law-giver – but also because of their systemic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is        analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed into the last centuries.[7]

 The omnipotent God become the omnipotent law-giver. It was, in Schmitt’s terms, a turn from the theological to the secular, but one that Milbank would say, was actually occasioned by the nominalistic turn in theological thinking itself, beginning with the Middle Ages, in the voluntaristic thought systems of Scotus and Ocham.

In an insightful and important piece exploring the theological roots of the concept of sovereignty Govert Buijs revises Schmitt’s original secularization thesis, saying that while indeed, the justification used for the political order shifted from the theological to the secular, sovereignty itself was not a “secularised” theological concept or rather “there seems to be a kind of back and forth between theological and political experiences.” [8]

The over-all result may well be a secularized political order, but while this secularization is in some respects theologically grounded, in other respects it is an unintended consequence of certain theological insights, and in still other respects a result of a quite purposive process of secularization. Implicitly following Milbank’s own intellectual trajectory, Buijs outlines how as a concept sovereignty was deployed to carry out the secularization of the political sphere.Buijs’ “archeology of sovereignty” uncovers the following “layers of meaning”:

The first element concerns unifying a realm and organising it into one political entity. The second element is the presence of one subject, one representative centre of power, one agent, who has his/her place vis-à-vis this entity, for example to issue laws. The third element of the concept of sovereignty concerns its voluntaristic overtones. Sovereignty is mostly couched in terms of a will, of an almost personal character. The fourth element is the territorial limitation. Compared to older symbolisms like the Sumerian King List…the modern notion of sovereignty seems rather awkward: the highest power, but only in a limited territory. It is somewhat like calling a person “world famous” in his own village.[9]

Here, again, nominalism identified with the theological thought of Scotus and Ockham has had three important implications on the spread of secularization in Western society.[10] The first is that nominalism led to a voluntarist conception of law and government, where both, formerly regarded as a reflection of divine reason, now came to be considered as matters based solely on an essentially arbitrary decision (quia voluntas est voluntas).[11]

This voluntarist element is fully present in the systems of Bodin and Hobbes, says Buijs. The consequences of the nominalistic outlook is especially “weighty”[12] in the author of the Leviathan, whose universe seems to be characterized entirely as a clash of wills now given absolute freedom.

This freedom expressed in unfettered will, Buijs notes, was previously unthinkable, inasmuch as the universe before them was conceived of as a closed rational order.[13] Second, there is now no avenue for appeal beyond the lawgiver. In Bodin,[14] this is especially prominent. While the human lawgiver is still bound by the laws of nature and divine law, he has become the only available standard, inasmuch as God has been turned into an inscrutable higher being to whom there can be no access. While nominalism made possible the criticism of the established order, it can only do so without an available higher standard to measure the existing order.[15] Hence:

The potentia absoluta does not provide for a standard to measure the actual order. He who has the power at the same time has the ius non appelandi. Hobbes, a self-proclaimed nominalist, articulated this in the very concise formula auctoritas, non veritas facit legem. So doubt about the existing order is the only thing left without there being a basis for this doubt in the (inner) experience of a superior order.[16]

The third consequence of nominalism is the rise of contractualism. While the theological version of nominalism still held to the covenant as an all-encompassing ontological category, its appropriation by Hobbes et al., called for its radical transformation involving the contract as a substitute.[17] While in the Judeo-Christian covenant, trust is the basis, in contract, fear of the consequences is the primary motivation. “So the contract symbol is the nominalist covenant washed in late-medieval and early modern fear. It is the mutually agreed ceasefire between otherwise inscrutable wills.”[18]

Buijs quotes Hobbes thus: “Fear and I were twins.”[19]

The sovereign exercises his rule “in the name of…(something higher)…” However, the distance between the sovereign and this higher authority is virtually abandoned, for no one else has access to this higher authority in order to “check” the claims of the lawgiver. God has become inscrutable, legibus solutus; He hides in the darkness of his potentia absoluta. He cannot be appealed to – and the same applies to the sovereign.[20]

Buijs’ account provides a philosophical explanation to Koskenniemi’s “pre-history” of international law, which challenges the standard account that puts the birth of modern international law in 1870 as a mere continuation of earlier efforts by the first thinkers and practicioners of the craft, “namely, to bind European sovereigns to a universal rule of law”[21] by developing a new idea of statehood opposed to the absolutist raison d’etat.[22]

In this prehistory, read at a commemorative colloquium on the Italian thinker Alberico Gentili, Koskenniemi continues the reconstructionist historical project inaugurated by his book The Gentle Civilizer; in fact, in this essay, the Finnish scholar argues, following a detailed study of French and German writers who theorized on the limits of the power of the Sovereign Prince or King, that contrary to standard histories,

[N]o continuous tradition of international legal thought existed from early modernity – Gentili, Vitoria, Grotius, Pufendorf, Vattel, however one wants to date the moment of inception – to the 20th century. What we read in standard histories, is a myth. Nineteenth international lawyers imagined a history to what they were doing because that was the habit of a historical age. What we have, instead, is a literature on the government of modern states that occasionally deals with the external aspects of government – war, treaties and diplomacy.

`But these are not understood as a “legal system” somewhere outside statehood, with the point and purpose of limiting the negative effects of State policy. Instead, they are part of a functional notion of territorial rule the point of which varied over [time] from “conservation” of the realm to the “perfection” of its people. The “functional” notion of sovereign power implied the presence of epistemic limits to State policy that provided ample room for debates about wise policy. But it did not presuppose (but rather rejected) the existence of an international normative order from which those principles could be deduced.[23]

Hence, Koskenniemi could also write that for the great German natural lawyer of the period, Samuel Pufendorf, the sovereign is simultaneously free of the law and bound by it at the same time. For Pufendorf, writes Koskenniemi, positive law as decreed by humans are but rules of the supreme sovereignty concerning the very things that subjects are bound to observe as matters of the welfare of the state. Meanwhile, the sovereign is also answerable to natural law, to promote the good of the people by creating the social conditions that make it possible for individual pursuits to be realized – a duty that is inherent to the meaning of sovereignty.[24] Koskenniemi explains further thus:

For Pudendorf and the whole system of reason of state, positive law cannot possibly constrain the ruler in his pursuit of salus populi. It is part of the definition of positive law to be an assessment by the sovereign of what is needed to bring it about. The potential danger of princely arbitrariness is met by Pufendorf through the distinction he makes between the prince’s private and his public will, and the way he reads the latter as normative because representative of the (enlightened) will of the population. This allows the social collectivity to emerge as the State at the centre of analysis, as the manifestation of sociality in political life.[25]

As Pufendorf has written, “it seems most suitable to define the state as a composite moral person whose will, a single strand woven out of many people’s pacts, is considered the will of all, so that it can use the strength and the faculties of individuals for common peace and security.”[26] Read from the lens of Buijs’ account of nominalism, this pre-history of international law simply meant this: whatever limits early thinkers placed upon the power of the Sovereign were what natural and divine law called for; yet it appeared that it was up to the Sovereign to say what these limits were.

Hence the Finnish scholar can validly argue that the French raison d’etat thinkers, far from arguing against the legal, actually believed that the Sovereign Prince was bound by it; except that the legal was identified with the Sovereign Prince, as expressed in Bodin’s firm belief that the ruler rises above custom and the fundamental laws of the realm, which he considered to be a higher constitutional principle. [27]

The Sovereign Prince was subject to one else but to the demands of his office and above all to God (and therefore to both divine and natural law, both of which are anyway emanations of the Divine, according to the theologies of the day). True, no else was above the Sovereign except God; but since God had become inscrutable, it was up to the Sovereign to say exactly what God demanded of the ruler. In other words, justice is what the Sovereign thought it was.

With the shift to a supposedly scientific, neutral and objective (but ultimately stoic) natural law that subsequent thinkers espoused, the notion of state sovereignty would become effectively “naturalized” and yes, “secularized.”

In fact, by the time of Louis XIV, Koskenniemi argues, jurists, “reaffirmed the divine right in a way that did away with their ability to articulate limits to Royal authority. Even as they followed Bodin by limiting absolute authority by reference to its function – the sovereign’s duty was to God and to his office – they rejected any institutional oversight as incompatible with it.”[28] This line of thought would serve as the foundation to legal ideas that put up the State as a distinct political entity, and the notion of “State interest” as an “overruling political ratio – a confessionally neutral justification for governmental action, connoting the interest of the system of territorial government itself.”[29]

 

(photo inset: the original graphic to Thomas Hobbes’ famous political treatise, The Leviathan) __________________________________

[1] Carl Schmitt, Political Theology: Four Chapters on Sovereignty 5(George Schwab, ed. 2006).

[2]Id. at 6.

[3]Schmitt, supra note 299 at 13.

[4] In fact, we can say Koskenniemi’s discussion of the pre-history of international law echoes the assertion by Schmitt that “ the seventeenth –century authors of natural law understood the question of sovereignty to mean the question of the decision on the exception.” Id., at 9. See IV Koskenniemi, Prehistory, infra note 319.

[5] Schmitt, supra note 299 at 13.

[6] Id. at 33

[7] Schmitt, supra note 299 at 36. That is, what is lawful is decided by the one who has the authority (the power ) and not by the one who possesses the truth (the lawful sovereign). On this point, see the essay of the independent Islamic scholar S. Parvez Manzoor at http://www.algonet.se/~pmanzoor/CarlSchmitt.htm <last visited Aug. 27, 2008).

[8] Govert Buijs, “Que les Latin appellen maiestatem”: An Exploration into the Theological Background of the Concept of Sovereigntyin Sovereignty in Transition 235 (Neil Walker, ed. 2003) [hereinafter, I Buijs, Concept of Sovereignty]. But Derrida follows Schmitt’s formulation. He says: It was in the beginning, a religious concept, that is, God, the Almighty, is sovereign…So here you have a concept which is in principle secularized, but for which the secularization means the inheritance of theological memory. It is a theological phantasm or concept. When for instance Carl Schmitt says that all the political concepts, all the concepts of the political, in the Western society are theological concepts secularized, that is what he means: that our culture lives on secularized sacred concepts, secularized theological concepts. Jacques Derrida, A Discussion with Jacques Derrida, 5 Theory and Event 49, (2001), quoted in Peter Fitzpatrick, “Gods Would Be Needed…”: American Empire and the Rule of (International) Law, 16 LJIL 434-435, (2003)

[9] I Buijs, Concept of Sovereignty, supra note 299 at 236-237.

[10]Id. at 235.

[11] Id. at 251.

[12] Id.

[13]Id. at 248, citing Louis Dupre, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (1993).

[14] As Van Creveld says of Bodin’s intellectual project: “In a world where God is no longer capable of providing a consensual basis for political life, Bodin wanted to endow the sovereign with His qualities and put him in His place, at any rate on earth and as pertained to a certain well-defined territory.” Martin Van Creveld, The Rise and Decline of the State 177 (1999), quoted in I Buijs, Concept of Sovereignty, supra note 299at 232.

[15] I Buijs, Concept of Sovereignty, supra note 299at 252.

[16]Id.

[17]Id.

[18] Hence, the international legal order of states could then be described in nominalistic terms as the state of nature characterized by a certain agonistics – or struggle – between and among the wills of monadic individual states. This is a constant theme in realist accounts of international relations.

[19] Id.

[20] Id.

[21]IV Marti Koskenniemi, International Law and Raison D’Etat: Rethinking the Prehistory of International Law 1 (March 2008) [hereinafter, IV Koskenniemi, Prehistory].

[22] Id.

[23]IV Koskenniemi, Prehistory, supra note 319 at 2.

[24] Id. at 25

[25]IV Koskenniemi, Prehistory, supra note 319 at 2.

[26] Id, quoting Punfendorf DJN Bk VII Ch 6 § 2.

[27] Id. at 5.

[28] Id. at 8. Koskenniemi cites the period’s most prominent natural lawyer, Jean Domat (1625-1695), who held that all human beings, including the King, was bound by certain universally valid principles of divine and natural law, yet also believed that this in no way conflicted with the view that the French King was absolutely superior to any secular authority. Id. at 9.

[29] IV Koskenniemi, Prehistory, supra note 319 at 5.

3 Comments

Filed under International Law, State

Thoughts on the continuing relevance of the State

In the international legal system, the state is the primary domestic institution charged with the task of ensuring the promotion and protection of human rights.

This is so for the following reasons:

* States are the principal parties to human rights instruments as well as to international humanitarian law conventions, and are therefore the principal instituthe_state_largetions charged with implementing them in their respective jurisdictions.

* As early as 1928 in the Las Palmas case where the Philippines lost title over the island of Las Palmas (or Miangas) to Indonesia, international law has always recognized that states, in the grant by the international legal system of sovereign and territorial rights to them, have concomitant obligations to the protection of human rights. As held by the lone arbitrator Max Huber: “Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has a corollary, a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.”

* It is true that there are now various international mechanisms to hold perpetrators of international crimes responsible for their actions; for the most part, however it is the institution of the state as a public legal community that plays a lead role in ensuring that the demands of public justice and the common good are best served within its  jurisdiction.

* The state’s law enforcement and prosecutorial arm for protecting and promoting public justice and the common good in the domestic legal order sets it apart from other societal institutions; only the state is the immediate institution in the domestic sphere entrusted with the legal duty – backed up with the force of arms – to protect and promote the Rule of Law.

* For example, the International Criminal Court (ICC) – the first permanent international tribunal with jurisdiction to hear individual crimes involving cases of gross violations of human rights and humanitarian law – generally works under the principle of “complementarity,” where the state is given the primary jurisdiction to try these cases, and the ICC only steps in when the concerned state fails to prosecute an international crime.

— taken from Romel Regalado Bagares,  Contemporary  Models of Civil Society Human Rights Engagements, in The Katarungan Manual for Human Rights Victims’ Advocacy 164-213 (2014)

Further discussions on this point from a philosophical perspective are found here and here.

 

1 Comment

Filed under Human Rights

Akbayan Rep. Walden Bello on: The Janus-faced State

janus

 

A couple of weeks ago, I heard Akbayan Rep. Walden Bello speak at an event marking the International Day of the Disappeared of a Janus-faced State with “hard” and “soft” faces, by which he apparently meant that the State has a Dr. Jekyll-and-Hyde nature.  One part of the State is good but there is that part, represented by the security forces, that does evil. Which is why, according to him, we need human rights laws to rein in the apparently inherently evil part of the state.   Subsequently, an essay of his on the same question appeared on his online column for the Philippine Daily Inquirer (“Restraining Leviathan” 9/4/13 – which title, I hasten to add, echoes a leading work of a  philosopher of absolute power, the Englishman Thomas Hobbes).

Neither his talk nor his column mentioned any reference but if I may hazard to guess, he might have drawn his theory of a dual-faced State from the work of the German political theorist Ernst Fraenkel, who fled to the US in 1939 to flee Nazism. In 1941, he came out with the book  The Dual State: A Contribution to the Theory of Dictatorship, where he described  two contradictory features of Hitler’s government: a “Normative State” characterized by the existence of formal constitutional norms for civil and political rights, and a “Prerogative State”, defined as a State with a predilection for arbitrary and unchecked exercise of power (curiously, the Prerogative State echoes the definition given by the acknowledged chief architect of Nazi constitutional thought, Carl Schmitt, who defined the true sovereign as someone who has the sole prerogative to decide what is the exception).

In any case, Rep. Bello’s dualistic conception of the state raises key theoretical and practical problems. I mention here only three of several possible points. First, in both constitutional law and international law, the state is understood to be composed of a unity of people and government, regardless of its particular form (let us remember that according to the Montevideo Convention the elements of a state are government, people, territory and capacity to enter into international relations).

This gives rise to the question: so which part here answers to the soft side and which one answers to the hard part, if the state is one such unity?

Second, he seems to define evil chiefly in terms of human rights violations. What about graft and corruption, which, today seems to plague all sectors of society, and not just government? It is obvious that other branches of government are afflicted with this societal/cultural disease, and not just the security sector, not to mention that in the Napoles pork barrel scam, we have seen an entirely different type of Public-Private Partnership.

Third, he speaks of a hard face of the state as if it were something that is already a given, or inherent. This is a point in political theory with a long and distinguished history, beginning with the first anarchists, the Anabaptists (the predecessors of today’s Mennonites),  who, in the Christian tradition, rejected the state as an institution of the Devil, and all the way to contemporary Marxists and Anarchists who speak in varying ways of the “overcoming of the state.” There too are the debates between the Roman Catholic Thomists and the Protestant Augustinians: in opposition to the former, the latter believed that the power of the sword – the very thing the Anabaptists considered to be evil– was an essential part of the state’s structure from creation (now, would that make Rep. Bello some sort of a secular Augustinian?)

One wing of the Augustinian tradition identified with the Dutch Christian philosopher Herman Dooyeweerd rejects dualistic views of the state and insists that it is a unity of power and justice; in this view, power is foundational to state creation. The monopoly of the sword is necessary for the enforcement of public law. Without such power, ensuring even a modicum of public order is impossible. Public laws that lay down the rules of integration of society into a public legal community will remain laws on paper and civil law proper itself cannot be established and sustained.

Yet there is an unbreakable coherence between power and the state’s qualifying normative task expressed in norms of public justice.  In other words power, while foundational to it, may not be exercised arbitrarily by the state.  In other words,   this Christian tradition in political thought professes that there is a God-designed structure for the State,  but human acting and willing determine the direction it will take — for or against the side of justice.

Thus, while agreeing that the state’s duty is toward the whole society, Dooyeweerd restricts state power not by some supposedly external limit set by another institution – as in the case of human rights laws  -but by  the very nature of the state itself, which is a unity of power and justice.

Indeed, there is much in the Christian tradition that commends itself to contemporary debates on the origins and aims of the State but it is one often elided in what Schmitt himself would call the secularized “political theology” of the State.

For how the Christian tradition may address the question of the origins and aims of the state, see the first three chapters of my master’s thesis, downloadable here.

1 Comment

Filed under Human Rights, International Law, Public Interest, State

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.*

_________________________________________________

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

Leave a comment

Filed under Free Expression, Libel