No violation of press freedom

A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The Philippine Star) 

Press freedom has been a hot topic for several days now. It all started with the arrest of Maria Ressa, one of the founders and the incumbent chief executive officer of Rappler, a modern and unique company that goes beyond journalism by using “all possibilities that technology now makes possible” (Rappler.com).

Ressa and another Rappler officer, Reynaldo Santos, were charged with violation of Republic Act 10175 or the Cybercrime Law by businessman Wilfredo Keng based on an article posted way back in May 2012 linking him to human trafficking and drug smuggling. In said article, Rappler also reported that he was the owner of a black Chevrolet Suburban being allegedly used by then Chief Justice Renato Corona allegedly because one of Keng’s companies had a pending case in the lower court. They were charged with a crime legally denominated as “Cyber Libel”  due to the posting of said article.

Apparently, Ressa is exploiting said case as a violation of the freedom of the press guaranteed by our Constitution more specifically Section 4, Article III which provides that: “No law shall be passed abridging the freedom of speech, of expression, or of the press xxx”.  “Speech”, “expression” and “press” consist of every form of expression whether oral, written, tape or disc recorded including movies, wearing  of an armband as a symbol of protest and peaceful picketing (Bernas, The 1987 Constitutional  Reviewer-Primer p. 62).

Pursuant to the afore-quoted vonstitutional provision, prior restraint and subsequent punishment is prohibited. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. This prohibition was due to attempts to control the press by requiring licenses and permits to publish, judicial injunction against publication, movie censorship, license taxes measured by gross receipts in advertising business of any newspaper or flat license fees for selling religious books (Idem, p.62). Subsequent punishment is also prohibited because it has the effect of unduly curtailing expression. As Fr. Bernas wrote, “if the prohibition consists only of prior restraint, freedom of expression would be a mockery and a delusion (Idem p.64)”.

As held in Salonga vs. Pano, 134 SCRA 438, freedom of expression ranks higher than property in the hierarchy of constitutional rights. So, the norms for the regulation of expression place more stringent limits on State action by setting standards for allowable subsequent punishment of expression. These standards are the dangerous tendency, clear and present danger and balancing of interest rules.

Under the dangerous tendency rule, free speech may be curtailed or punished if there is a rational connection between the speech and the evil apprehended. An example here is the remark made by a citizen in a political discussion at a town hall as follows: “And the Filipinos like myself, must use bolos for cutting off the head of US Governor General Leonard Wood because he recommended a bad thing for the Philippines.” This citizen was prosecuted and convicted for the crime of sedition because the court found in such speech a “seditious tendency” which could easily produce dissatisfaction among the people and  state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws” (People vs Perez, 45 Phil.599).

The second standard, which is the dangerous tendency rule, was explained in a US case (Schenck vs. United States, U.S.47) as follows: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Thus “an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is sufficient for Congress to prevent (Dennis vs. United States, 341 U.S. 494).
The third standard or the “balancing of interest” rule rests on the basis that free speech or expression or freedom of the press are not absolute and may be abridged to some extent to serve appropriate and important interest (Gonzales vs. Comelec, 27, SCRA, 835). An example here is Republic Act (RA) 4880 which prohibits among other things too early political nomination of political candidates and limits the period of political activity (Gonzales vs. Comelec, Idem). Thus the Comelec has the power to regulate time in broadcast media and space in the papers because it will not violate the freedom of expression under the balancing of interest test (UNIDO vs. Comelec 104 SCRA 17).

In Ressa’s case, the crime charged is libel in cyber space. Libel is defined by the Revised Penal Code as “a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead” (Article 353). Clearly such crime is not protected by the Constitution under the freedom of speech and of the press. They are not “essential part of any exposition of ideas, and are of such slight social value…such that any benefit derived from them is clearly outweighed by the social interests to preserve order and morality” (Chaplinsky vs. New Hampshire 3125 U.S. 572).

Based on the foregoing laws, rules and decision, the case of Ressa is not a violation of the freedom of the press. In fact she has been afforded the right to be heard and present her defense before the case was filed in Court because there is probable cause to prosecute her. The only problem here is the timing of the service of the warrant of arrest which she is now exploiting and blowing out of proportion. Her case would be a violation of press freedom only if, after trial, she would be convicted even there is no proof beyond reasonable doubt about her guilt.

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Email: attyjosesison@gmail.com

Grave Threat on "putang ina mo, papatayin kita"

FACTS
After the trial, petitioner was convicted of the crime charged for uttering the words: "Putang-ina mo Peejay, mag-iingat ka sa akin, papatayin kita." 

RULING
With regard to the argument of petitioner that the uttered words do not constitute the crime of Grave Threats the same cannot be sustained. As correctly pointed out by the Court of Appeals, all the elements of the crime were established by the prosecution. 

1. Petitioner threatened complainant with the infliction of a crime upon his person. 
2. The threat was made without petitioner attaining his purpose. 
3. Lastly, the threat was not subject to a condition. 

source:
ANTONIO MILITAR vs. PEOPLE OF THE PHILIPPINES.
G.R. No. 138281. July 12, 1999
First Division  

Grave Threats, 3 Counts

The Facts

As punong barangay of Mampas, Bacong, Negros Oriental, petitioner Santiago Paera (petitioner) allocated his constituents use of communal water coming from a communal tank by limiting distribution to the residents of Mampas, Bacong. The tank sits on a land located in the neighboring barangay of Mampas, Valencia and owned by complainant Vicente Darong (Vicente), father of complainant Indalecio Darong (Indalecio). Despite petitioners scheme, Indalecio continued drawing water from the tank. On 7 April 1999, petitioner reminded Indalecio of the water distribution scheme and cut Indalecios access.

The following day, petitioner inspected the tank after constituents complained of water supply interruption. Petitioner discovered a tap from the main line which he promptly disconnected. To stem the flow of water from the ensuing leak, petitioner, using a borrowed bolo, fashioned a wooden plug. It was at this point when Indalecio arrived. What happened next is contested by the parties.

According to the prosecution, petitioner, without any warning, picked-up his bolo and charged towards Indalecio, shouting Patyon tikaw! (I will kill you!). Indalecio ran for safety, passing along the way his wife, Diosetea Darong (Diosetea) who had followed him to the water tank. Upon seeing petitioner, Diosetea inquired what was the matter. Instead of replying, petitioner shouted Wala koy gipili, bisag babaye ka, patyon tikaw! (I dont spare anyone, even if you are a woman, I will kill you!). Diosetea similarly scampered and sought refuge in the nearby house of a relative. Unable to pursue Diosetea, petitioner turned his attention back to Indalecio. As petitioner chased Indalecio, he passed Vicente, and, recognizing the latter, repeatedly thrust his bolo towards him, shouting Bisag gulang ka, buk-on nako imo ulo! (Even if you are old, I will crack open your skull!).

 
RULING

 Petitioner Liable for Three Counts of Grave Threats. xxx Similarly, petitioners intent to threaten Indalecio, Diosetea, and Vicente with bodily harm arose only when he chanced upon each of his victims.

Article 282 of the RPC holds liable for Grave Threats any person who shall threaten another with the infliction upon the person x x x of the latter or his family of any wrong amounting to a crime[.] This felony is consummated as soon as the threats come to the knowledge of the person threatened.¹²

Applying these parameters, it is clear that petitioners threat to kill Indalecio and Diosetea and crack open Vicentes skull are wrongs on the person amounting to (at the very least) homicide and serious physical injuries as penalized under the RPC. These threats were consummated as soon as Indalecio, Diosetea, and Vicente heard petitioner utter his threatening remarks. Having spoken the threats at different points in time to these three individuals, albeit in rapid succession, petitioner incurred three separate criminal liabilities.

source:  

SANTIAGO PAERA vs PEOPLE OF THE PHILIPPINES,

G.R. No. 181626 (May 30, 2011 - Second Division)

Grave Threats

FACTS:
The petitioner herein, Rosauro Reyes, was a former civilian employee of the Navy Exchange, Sangley Point, Cavite City, whose services were terminated on May 6, 1961. In the afternoon of June 6, 1961, he led a group of about 20 to 30 persons in a demonstration staged in front of the main gate of the United States Naval Station at Sangley Point. They carried placards bearing statements such as, "Agustin, mamatay ka;" "To, alla boss con Nolan;" "Frank do not be a common funk;" "Agustin, mamamatay ka rin"; "Agustin, Nolan for you;" "Agustin alla bos con Nolan;" "Agustin, dillega, el dia di quida rin bo chiquiting;" and others. The base commander, Capt. McAllister, called up Col. Patricia Monzon, who as Philippine Military Liaison Officer at Sangley Point was in charge of preserving harmonious relations between personnel of the naval station and the civilian population of Cavite City. Capt. McAllister requested Col. Monzon to join him at the main gate of the base to meet the demonstrators. Col. Monzon went to the place and talked to Rosauro Reyes and one Luis Buenaventura upon learning that the demonstration was not directed against the naval station but against Agustin Hallare and a certain Frank Nolan for their having allegedly caused the dismissal of Rosauro Reyes from the Navy Exchange, Col. Monzon suggested to them to demonstrate in front of Hallare's residence, but they told him that they would like the people in the station to know how they felt about Hallare and Nolan. They assured him, however, that they did not intend to use violence, as "they just wanted to blow off steam."

  At that time Agustin Hallare was in his office inside the naval station. When he learned about the demonstration he became apprehensive about his safety, so he sought Col. Monzon's protection. The colonel thereupon escorted Hallare, his brother, and another person in going out of the station, using his (Monzon's) car for the purpose. Once outside, Col. Monzon purpose slowed down to accommodate the request of Reyes. He told Hallare to take a good look at the demonstrators and at the placards they were carrying. When the demonstrators saw Hallare they shouted, "Mabuhay si Agustin." Then they boarded their jeeps and followed the car. One jeep overtook passed the car while the other to led behind. After Hallare and his companions had alighted in front of his residence at 967 Burgos St., Cavite City, Col. Monzon sped away.

  The three jeeps carrying the demonstrators parked in front of Hallare's residence after having gone by it twice Rosauro Reyes got off his jeep and posted himself at the gate, and with his right hand inside his pocket and his left holding the gate-door, he shouted repeatedly, "Agustin, putang ina mo. Agustin, mawawala ka. Agustin lumabas ka, papatayin kita." Thereafter, he boarded his jeep and the motorcade left the premises. Meanwhile, Hallare, frightened by the demeanor of Reyes and the other demonstrators, stayed inside the house.

  On the basis of the foregoing events Rosauro Reyes was charged on July 24 and 25, 1961 with grave threats and grave oral defamation.

RULING:

  After a careful consideration of the original information, we find that all the elements of the crime of grave threats as defined in Article 282 1 of the Revised Penal Code and penalized by its paragraph 2 were alleged therein namely: (1) that the offender threatened another person with the infliction upon his person of a wrong; (2) that such wrong amounted to a crime; and (3) that the threat was not subject to a condition. Hence, petitioner could have been convicted thereunder

It is to be noted that under the aforementioned provision the particular manner in which the threat is made not a qualifying ingredient of the offense, such that the deletion of the word "orally" did not affect the nature and essence of the crime as charged originally. 

In our view the deletion of the word "orally" was effected in order to make the information conformable to the evidence to be presented during the trial. It was merely a formal amendment which in no way prejudiced petitioner's rights.

The demonstration led by petitioner Agustin Hallare in front of the main gate of the naval station; the fact that placards with threatening statements were carried by the demonstrators; their persistence in trailing Hallare in a motorcade up to his residence; and the demonstration conducted in front thereof, culminating in repeated threats flung by petitioner in a loud voice, give rise to only one conclusion: that the threats were made "with the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect." ² Indeed, Hallare became so apprehensive of his safety that he sought the protection of Col. Monzon, who had to escort him home, wherein he stayed while the demonstration was going on. It cannot be denied that the threats were made deliberately and not merely in a temporary fit of anger, motivated as they were by the dismissal of petitioner one month before the incident. We, therefore, hold that the appellate court was correct in upholding petitioner's conviction for the offense of grave threats.

Grave, Light anf Other Light Threats

Under the Revised Penal Code, there are three kinds of threats: grave threats (Article 282), light threats (Article 283) and other light threats (Article 285).

In grave threats, the wrong threatened amounts to a crime which may or may not be accompanied by a condition. In light threats, the wrong threatened does not amount to a crime but is always accompanied by a condition. In other light threats, the wrong threatened does not amount to a crime and there is no condition.

 The records show that at around 7:30 in the evening, Julia Denido left her house to go to the barangay hall to report the mauling of her husband which she witnessed earlier at around 4:00 oclock in the afternoon. On her way there, petitioner confronted her and pointed a gun to her forehead, while at the same time saying Saan ka pupunta, gusto mo ito? Considering what transpired earlier between petitioner and Julias husband, petitioners act of pointing a gun at Julias forehead clearly enounces a threat to kill or to inflict serious physical injury on her person. Actions speak louder than words. Taken in the context of the surrounding circumstances, the uttered words do not go against the threat to kill or to inflict serious injury evinced by petitioners accompanying act.

Given the surrounding circumstances, the offense committed falls under Article 282, par. 2 (grave threats) since: (1) killing or shooting someone amounts to a crime, and (2) the threat to kill was not subject to a condition.

Article 285, par. 1 (other light threats) is inapplicable although it specifically states, shall threaten another with a weapon or draw such weapon in a quarrel, since it presupposes that the threat to commit a wrong will not constitute a crime. That the threat to commit a wrong will constitute or not constitute a crime is the distinguishing factor between grave threats on one hand, and light and other light threats on the other. 

source: 

Ronnie Caluag vs People of The Philippines, GR G.R. No. 171511 (March 4, 2009 – Second Division)

Rem Notes:
Threat (with or without condition) = Crime = "Grave Threat"

Threat (with condition) = Not a Crime = "Light Threat"
Threat (as specified) = Not a Crime = "Other Light Threat"

1. drawing of weapon
2. in the heat of anger, orally threaten and did not persist

  

The Imelda Marcos conviction and judicial courage

Manila Bulletin,  
PAPER VIEW
By ATTY. MEL STA. MARIA

What are the salient points of the recent Imelda Marcos conviction by the Sandiganbayan?
First.  Imelda Marcos  was  convicted of  Section 3 (h) of the Anti-Graft and Corrupt Practices Act making it unlawful for a public official to “directly or indirectly have financial or pecuniary interest in any business, contract, or transaction in connection with which he (she) intervenes or takes part in his (her) official capacity, or in which he (she) is prohibited by the Constitution or by any law from having any interest.” To convict, proof beyond reasonable doubt was required. That means moral certainty, not  absolute certainty, that the accused feloniously committed the crime. That was achieved.

Second. Approximately US$200,000,000 were involved in the seven private foundations of the Marcoses in Switzerland despite their salary only estimated as not even reaching US$1,000,000. Imelda Marcos was, at that time, minister of human settlements and member of the Batasan Pambansa. The positions were full-time government jobs. No strong countervailing evidence was  effectively presented to debunk such proven facts despite chances for Imelda Marcos to present witnesses for such purpose.

Third. The “trier of facts” was a collegiate body of three justices of the Sandiganbayan’s fifth division. Their determination was unanimous. At this point, only a stretching of  the imagination can say that  these three magistrates  — trained in the appreciation of evidence and with lengthy experience in deciding criminal cases — can be so negligent  or, borrowing the words of the Supreme Court in abuse-of discretion-cases, acted “whimsically or arbitrarily in a manner so patent and so gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined.” Neither can they be accused of partisanship considering the patience they showed and the opportunities they gave to Imelda Marcos to present witnesses for her defense.

Fourth. It is quite revealing that, at the very end, Imelda Marcos seems to take the case nonchalantly. Neither she nor her lawyers attended the decision’s promulgation. While the accused may be excused due to very meritorious reasons, such as being ill-disposed, the lawyers must at least be present. The Sandiganbayan’s order of arrest could have been prevented had the lawyers, in open court, requested the availment of her exising bail for her provisional liberty during the motion for reconsideration or appeal.  It is interesting to see the explanation on their absence. At any rate, bail will most likely be granted.

Fifth. In the event that the case is appealed, the Supreme Court cannot entertain new evidence. The limit of its review is to examine only the proofs deliberated upon by the “trier of facts.” 
Accordingly, the Supreme Court is duty-bound to give the greatest weight to the Sandiganbayan’s  factual findings.

But  all those who rejoice in the Sandiganbayan’s decision must manage their expectations. The Supreme Court has lately favored the family of the dictator Ferdinand Marcos in their decisions:  the grant of the Marcos burial at the Libingan ng mga Bayani, the exoneration of Imelda Marcos in the LRT-PGH graft and dollar-salting charges, and the dismissal of the Imee Marcos case involving the damages sought against her concerning the death of Archimedes Trajano. Many ask: would the final outcome be any different in this latest Imelda Marcos? Will a majority of the members of the Supreme Court again save her from this  ignominy which, to many, is so deserving? Will Associate Justice Marvin Leonen’s eye-opening observation in his dissent in the Enrile bail case once again come to fore that, in our justice system, “there are just some among us who are elite” and “who are powerful and networked to enjoy privileges not shared by all”?  Let us hold our breath.

But there is one surprising revelation emerging. We are now witnessing the courage of the courts to decide against those who are considered as powerful and close to the “powers that be.”

And there is a greater revelation. Judicial independence is now perceived by many, not as emanating from majority of the Supreme Court justices but, astoundingly, as coming from the lower court judges.  We have seen this first in Judge Andres Soriano of the Makati Regional Trial Court Branch 148 who rendered ineffective President Duterte’s arrest-order against Senator Trillanes. Now, it’s Sandiganbayan Associate Justices Rafael Lagos, Maria Theresa Mendoza-Arcega, and Maryan Corpus-Mañalac.

Truly,  this emerging  exhibition of judicial courage exponentially elevates the significance of Imelda Marcos’ conviction to an institutional level. Hopefully it continues.

Jardeleza to ban ‘tokhang’ house visits

Sisyphus’ Lament By: Oscar Franklin Tan

SINGAPORE — Justice Francis Jardeleza proclaimed a slam dunk theory to end “Project Tokhang” house visits during the second Supreme Court “tokhang” hearing last Nov. 28.
On deck were Free Legal Assistance Group led by Dean Jose Manuel “Chel” Diokno, and CenterLaw’s young lawyers led by Inquirer columnist Joel Butuyan. CenterLaw’s Gil Anthony Aquino and Cristina Antonio joined the bar in 2016 and 2015, almost 30 years after Diokno.

In the first hearing, Diokno attacked Command Memorandum Circular (CMC) 16-2016, claiming its terms “negate” and “neutralize” mean “kill.”

But his case collapsed within Senior Associate Justice Antonio Carpio’s first nine minutes of questions, including a standard freshman exam question on the right against unreasonable search that was answered wrong.

Only Jardeleza bolstered Diokno’s “top level” attack on CMC 16-2016’s wording, contrasted with Butuyan’s “ground level” attack on its implementation specifically in San Andres Bukid, Manila.

Jardeleza asked Diokno to recast his case per his suggestions. Innocuously, he asked Butuyan to argue the same, even if he did not formally attack CMC 16-2016. His clients were too scared to authorize this.

In the second hearing, Jardeleza repeated Butuyan’s argument that “house visitations of suspected drug personalities” violate the right against unreasonable search. Any consent to enter cannot be valid because it is made under threat of “immediate case buildup and negation” under CMC 16-2016 if entry is refused.

Solicitor General Jose Calida likened “tokhang” to “bayanihan,” where barangay officials join police. He refuted that police do not enter homes, make arrests or seize evidence; they merely talk with no coercion intended.

But Jardeleza countered this then triggers the right against self-incrimination and custodial investigation rights under Republic Act No. 7438, including the right to a lawyer and other “Miranda rights.”

These are not ordinary conversations because the person visited is already listed as a suspect, though there is no evidence to apply for a search or arrest warrant.

Calida parried that custodial investigation involves actually being brought into custody, not speaking with police at one’s own door.

Jardeleza cited Sec. 2(f) of RA 7438: “‘custodial investigation’ shall include the practice of issuing an ‘invitation’ to a person who is investigated.”

If police cannot invite one to the police station unless there is cause for arrest, he paralleled, neither should they be able to invite themselves to one’s home. “Tokhang” creates a coercive atmosphere such that the police station is practically transported to one’s home when several policemen knock on one’s door.

Jardeleza thus pronounced a “prima facie case” for stopping further “tokhang” house visits. This is a powerful argument because custodial rights are one area where the Constitution always favors the suspect, given the sheer imbalance relative to police.
Calida eventually asked to answer Jardeleza in a memorandum, a polite way of calling a time out.

Completing Jardeleza’s masterstroke, no one noticed how he transplanted Butuyan’s arguments to salvage Diokno’s case, when he curiously asked Butuyan to argue Diokno’s case in the previous hearing.

It was Butuyan who prominently cited custodial rights in his opening speech, and RA 7438 is raised in page 49 of Butuyan’s written petition but not cited in Diokno’s.
Justice Marvic Leonen spoke for one out of the second hearing’s three hours, injecting drama by asking Philippine National Police Chief Ronald “Bato” dela Rosa if he ever issued a kill order.

Before Calida spoke, Butuyan was grilled at length by Justices Presbitero Velasco Jr. and Alexander Gesmundo. The latter tried to trap him by arguing there is no penalty for police who conduct unauthorized searches.

Butuyan won the skirmish, correctly citing “violation of domicile,” Art. 128 of our Revised Penal Code. The trap was odd, though, as a circular’s invalidity is not the same issue as implementing policemen’s liability.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

source:  Inquirer