Chief Justice Puno: Freedom of the press is a 'touchstone of democracy'

Speech about freedom of the press. Good reference for moot court competitions.

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Speech delivered by Chief Justice Reynato S. Puno during the International Conference on Impunity and Press Freedom on February 27, 2008

We are here now to strengthen democracy, especially one of its touchstones – the freedom of the press.

It is a noble thing that we set out to do, but is also one which is difficult to accomplish. Thus, it is important that before we begin with our endeavor, we must first ensure that we all understand fully who "We" are, where "here" is, why we are here "now," and what "democracy" is basically all about.

It is a dangerous time for those who report the truth. From 1992 to 2008, 679 journalists have been killed worldwide. The Philippines has the 5th highest number of incidents where journalists have been murdered. Since 2001, 70 journalists have been killed in the line of duty on Philippine soil. Of the cases filed as a result of these killings, only one has been resolved, 6 are undergoing trial, 18 are under investigation, 4 have been dismissed, and 4 are pending prosecution.

"We" are persons who can do something that will have a profound impact in defense of freedom of the press. "We" are the advocates, experts, journalists, and jurists coming from all over the world who share the same concern over the rampant human rights violations around us. I emphasize that it is "We" who can do something, because we can better effect change not in our individual stations, but as a group working together.

"Here" is a conference organized by the Southeast Asian Press Alliance with the Center for Media Freedom and Responsibility aimed at three objectives: first, to contribute to ongoing multisectoral efforts, as well as national, regional, and international campaigns, to fight impunity in the Philippines by finding, discussing, and generating insights and models for enhancing the rule of law, free expression, and human rights in general; second, to bridge Philippine campaigns on impunity with similar efforts around the world; and third, to raise public awareness about impunity and its effect in the Philippines on both the freedom of the press and of expression. "Here" is a forum for us to work together as a group.

"We" are "here" because of the urgency of "now." It is the culture of impunity that encourages attacks on journalists. Unless and until we do something to submerge this pernicious culture, these attacks will continue to litter our collective consciousness with corpses of people who are bearers of truth.

"Democracy" is all about the voice of the people. It is, as John Stuart Mill defines it, "government by discussion." Imperative to discussion are the cognate freedoms of information, of expression, and of the press. Hence, no less than the Universal Declaration of Human Rights assures that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers." The freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public; that a free press is a condition of a free society.

Democracy in this country is under siege because bullets fired at the direction of journalists pierce not only human flesh, but also our republican ideals. In their Joint Declaration regarding International Mechanisms for Promoting Freedom of Expression, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression identify two threats to freedom of expression and the free flow of information and ideas, which have now reached crisis proportions in many parts of the world: first, dubbed censorship by killing, are attacks on journalists and others exercising their right to freedom of expression; and second, is the abuse of restrictive defamation and libel laws. In the same declaration, each State was reminded of its obligation to take adequate measures to end the climate of impunity. Such measures should include devoting sufficient resources and attention to preventing attacks on journalists and others exercising their right to freedom of expression, investigating such attacks when they do occur, bringing those responsible to justice, and compensating victims.

Let not our knees wobble. These two challenges, censorship by murders and the restraint of libel laws, have been with us since time immemorial. Legal historians trace the roots of freedom of expression in Athens, Greece as far back as 800-600 B.C. Even then, expressive freedom was given only to select "citizens" which did not include women, resident aliens and juveniles. The Athenian majority was not accorded the expressive freedom by their aristocratic rulers.

During the Roman time, freedom of expression was likewise severely restricted by the ruling class. The Caesars controlled the distribution of news to the people. Without exception, they smothered dissent against their government. They hounded their critics to their graves.

So it was in England. Here the struggle to eliminate censorship took more than 500 years. The Crown of England was just as intolerant of criticisms. The 1274 De Scandalis Magmatum presaged the beginnings of seditious libel law. The edict proscribed political dissent. From the early 1500s, through the Puritan Revolution, until the 17th century, printing was regulated by the Crown and the restrictions were implemented through the church. Scribes tell us that it was during Henry VIII's reign that royal measures were enacted to censor alleged heretical materials. Thus, there was a special law to restrict the distribution of William Tyndale's English translation of the New Testament. The law states:

“There shall be no annotations or preambles in Bibles or New Testaments in English. The Bible shall not be read in English in any church. No women or artificers, prentices, journeymen, servingmen of the degree of yeomen or under, husbandmen, nor labourers, shall read the New Testament in English… anything contrary to the King's instructions… shall be thereof convict… his first offense recant, for his second abjure and bearer a fagot, and for his third shall be adjudged a heretic, and be burned. (Neal 1885)"

The English Court of Star Chamber, a secret tribunal, was an instrument of censorship. It meted out such punishments as levying unlimited fines, imprisonments, the pillory, flogging, mutilation and branding. In 1630 for instance, a certain Alexander Leighten published "An Appeal to Parliament" in which he urged the superiority of the Scriptures over the monarchy. On orders of the Star Chamber, Leighten was taken to Westminster and was "whipped, had one of his ears cut off, his nose slit and one side of his face branded." A week later, the mutilation was repeated on the other side of his face. In 1641, the Star Chamber was dissolved due to its surfeit of excesses. In fine, history tells us that no amount of mutilation, no amount of murders of truth tellers will kill freedom of press.

The second threat to freedom of the press is abuse of defamation and libel laws. The origins of defamation date back to Greece. As aforestated, it was in Athens, Greece that certain types of "citizens" were given freedom of expression. But even then, these "citizens" were made answerable for slander and sedition. This restriction was carried on in Roman times and got embedded in English common law. Early English defamation laws were of a different kind. Under early English common law, the truthfulness of a statement is not a defense. Hence, a truthful criticism of the Crown could result in a severe penalty. English law recognized four types of libel: (1) blasphemous libel, which is any speech that denied the existence of God or ridiculed any Christian doctrine; (2) seditious libel or criticism of the government, its leaders or policies; (3) obscene libel, which is the forerunner of obscurity laws; and (4) private libel, which is speech that injured the reputation of another person. Again, history teaches us that the misuse and abuse of libel laws against media practitioners through the ages did not stamp out the flame of freedom of the press, and it never will.

At this point, let me share with you our humble efforts to strengthen democracy in our country by enhancing human rights and giving more flesh to the freedom of the press. On the area of human rights, our High Court has promulgated the Writ of Amparo and the Writ of Habeas Data. It is interesting to note that the provenance of both the Rule on Writ of Amparo and the Rule on Habeas Data is a forum much like this one. The National Consultative Summit on Extrajudicial Killings and Enforced Disappearances, held last July 16-17, 2007 addressed also the culture of impunity that stalks our country.

The Rule on the Writ of Amparo which protects the victims of extrajudicial killings and enforced disappearances took effect last October 24, 2007. In the Supreme Court alone, a total of 14 writs of Amparo have already been issued out of 18 petitions that prayed for the writ. Out of these 14 cases, 5 have already been decided by the Court of Appeals from October 2007 to present.

On the other hand, the Rule on the Writ of Habeas Data took effect last February 2, 2008. This Rule is an independent remedy to enforce the right to informational privacy and the complementary "right to truth." It is also as an additional remedy to protect an individual's civil rights. This writ is available "to any person whose right to privacy in life, or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party." Reliefs include the "deletion, destruction, or rectification of the erroneous data or information."

Just a month old, no writ of habeas data has been issued yet. It is an excellent human rights tool used mostly in countries recovering from military dictatorships. It enforces the right to truth, which is the bedrock of the rule of law. Observers say that with the promulgation of these two writs, the number of victims of extrajudicial and enforced disappearances had declined. Perhaps it is too early to rejoice over their deterrent effect. This fight for human rights is one fight full of commas and no period; a fight where you never write "30."

On the second area (i.e., protecting freedom of the press), the High Court, through Administrative Circular No. 08-2008, issued Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases. In this Circular, the High Court directed judges to determine whether the imposition of a fine alone in libel cases would best serve the interest of justice. The High Court cited cases where it refused to incarcerate those accused of libel but instead penalized them with the payment of fine. Somehow, this Circular has caused Congress to fast track debate on bills decriminalizing libel. I respectfully suggest that Congress should also look into the idea of putting a cap on civil liability for libel of media people. It is not only the threat of imprisonment that handcuffs media. The punches of poverty coming from threats of unlimited civil liability can also convert some of their backbones into mere wishbones. Just a few days ago or on February 15, 2008, we decided the case of Chavez v. The Secretary of Justice and the National Telecommunications Commission (G.R. No. 188338). We struck as unconstitutional prior restraints the warnings issued by the respondent public officials that media people will be prosecuted if they air the controversial wiretapped conversation between the sitting President and a Commissioner of the COMELEC allegedly revealing fraud in the 2004 national elections.

Let me submit that attempts to curtail freedom of the press all over the world will never end. We should never weary in protection. I end by emphasizing just one particular value promoted by freedom of the press – the search for truth. I can do no better than quoting the explanation of First Amendment scholar Thomas Emerson:

xxx A central value of free and open debate is the discovery of truth and knowledge through the free trade of ideas. In language that is reminiscent of John Milton's Areopagitica and John Stuart Mill's On Liberty, Emerson stated,

an individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by exposing it to opposition, and make full use of different minds. Discussion must be kept open no matter how certainly true an accepted opinion may be; many of the most widely acknowledged truths have turned out to be erroneous. (Emerson 1970, 6-7)

The idea that free expression is central to discovering truth is not just discussed in philosophical tomes of the seventeenth and eighteenth centuries. It appears in Supreme Court Justice Oliver Wendell Holmes's 1919 dissent in Abrams, in which he passionately stated, "[T]he ultimate good desired is better reached by free trade in ideas --- that the best test of truth is the power of the thought to get itself accepted in the competition of the marketplace" (Abrams v. United States [1919] 630). It also appears in Justice Louis D. Brandeis's 1927 concurring opinion on Whitney, in which he referred to the Founding Fathers and how "they believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and the spread of political truth" (Whitney v. California [1927] 374). Brandeis added, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence" (Cornwell, Freedom of the Press, pp. 4-5).

Today, our society is bedeviled by the enforced disappearances of some votaries of democracy, especially media practitioners. An enforced silence on these enforced disappearances cannot but give impetus to its growing culture of impunity. It is this enforced silence that we ought to break for if there is anything that democracy can ill afford it is the sovereignty of the deaf and the dumb. It is speech and speech-plus that will dissipate the darkness that today hovers over the heads of the Filipino people. Speech is the function of the press. Speech-plus is the action of the sovereign people. Let them converge for they will lead us to the doorstep of truth.

A pleasant day to all.

OUTLINE: This house would impose death penalty

Background:

Due to the alarming upsurge of heinous crimes which has resulted not only in the loss of human lives and wanton destruction of property but also affected the states' efforts towards sustainable economic development and prosperity while at the same time has undermined the people's faith in the Government and the latter's ability to maintain peace and order in the country, death penalty is proposed to be imposed.

Pros:

1. The crimes punishable by death are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.

2. The interest of justice, public order and the rule of law necessitates the imposition of death penalty.

3. To foster and ensure not only obedience to government's authority, but also to adopt such measures as would effectively promote the maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare which are essential for the enjoyment by all the people of the blessings of democracy in a just and humane society


Cons:

1. Imposition of death penalty will not in anyway prevent commission of heinous crimes. It only reflects the failure of the government and the society to instill proper values to its citizens.

2. Justice cannot be attained by killing the perpetrator of heinous crime. We must value life and in the same vein, the government must not resort to imposing death penalty to find justice to the victim. A civil society should not descend to the status of murderers by preferring revenge over far better forms of justice.


3. Punishment is supposed to reform and rehabilitate the perpetrator of a crime. Imposing the death penalty will not achieve said goal. Death penalty is an absolute judgment against the life of a person.

Executive Privilege in the Philippines

Executive Privilege

The power of the Government to withhold information from the public, the courts, and the Congress.”

The right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.”

It has encompassed claims of varying kinds. One variety of the privilege, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x ” (Emphasis and underscoring supplied)


Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information. Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is a “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters.” The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information.

In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” The latter includes ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit:

1) The protected communication must relate to a “quintessential and non-delegable presidential power.”
2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

Senate vs. Ermita, G.R. No. 169777. April 20, 2006
What remains to be valid provision of E.O 464?

In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress (Section 1).

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including (Section 2(a)):

Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995;

Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

Q&A

1. For purposes of appearing before the Congress, when is consent of the President necessary? Only when the Congress exercises oversight functions.
2. May oversight functions be facilitated by compulsory process? Yes, if it is made in aid of legislation. In which case, Department heads may be compelled to appear.
3. Is there an instance when a Department Head may refuse to appear in inquiries in aid of legislation? Yes, if he informs the President that the information might be covered by executive privilege and the President invokes the same, he cannot be compelled to appear.
4. Who can invoke executive privilege? Only the President and its Executive Secretary

Neri vs. Senate, G.R. No. 180643, March 25, 2008

The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings occasionally interpreted only by this Court in various cases.

The Court is convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

Presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article.

AKBAYAN vs. Aquino, G.R. No. 170516, July 16, 2008
Are trade offers and notes during negotiations privileged?

The privilege character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez vs. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interests. In PMFF v. Manglapus, the Court stressed that secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom to access to information. An essential characteristic of diplomacy is its confidential nature. Further, the President is the sole organ of the nation in its negotiations with foreign countries. Into the field of negotiations the Senate cannot intrude; and Congress is in itself powerless to invade it.

Applying the principles in PMFF v. Manglapus, while the final text of JPEPA may not be kept perpetually confidential, the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published for historic confidentiality would govern the same.

The Court sees no reason in abandoning the doctrine in PMFF v. Manglapus there being a public policy supporting a privilege for diplomatic negotiations. In our jurisdiction, there is no counterpart of the Freedom to Information Act nor is there any statutory requirement for withholding information. Hence, Philippine Courts when assessing a claim for privilege for diplomatic negotiations are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exceptions. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privilege does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

There are at least two kinds of public interests that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is public interest in favor of disclosure, the existence of which must be shown by the party seeking the information.

Petitioners failed to present the strong and sufficient showing of need to overcome executive privilege. They failed to show that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation

"JUST AN OUTLINE" of Arguments on the motion that THW Allow the Use of Torture

Background:

Torture means the use of interrogation techniques and the power vests in the President to detain indefinitely, and with no need to bring charges to 'unlawful enemy combatant'. It may be the use of mind-altering drugs, an acceptable procedure that could not be construed as torture, to get information from the detainee about planned terrorist attacks.

In U.S. and other countries, several bills were proposed to allow the use of torture against terrorist or unlawful enemy combatant.

Use of torture must be allowed:

1. The State has the right to defend itself. Terrorism is detrimental to the welfare of the people and the State. Terrorism destroys hundred of lives and destroys the order of the society. The evil or harm sought to be prevented was greater than the torture to be inflicted to a terrorist.

2. Torturing terrorists suspects "may be justified" if it was "in order to prevent further attacks on different States".

3. Terrorism is not covered by any international treaty. The war on terror “renders obsolete” the Geneva Conventions’ strict rules on the interrogation of enemy prisoners. Geneva Conventions should not be applied to terrorist prisoners.

4. The use torture is not totally inhumane. There is no “specific intent” to cause long-term harm to a detainee. In Israel, where torture has effectively been made legal, use of "a moderate measure of physical pressure" was considered not inhumane.

Use of torture must not be allowed:
1. Torture deprives the person the right to due process. Torture penalizes the person without the benefit of judgment from court. No free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The State, in furtherance of its right to defend itself, cannot resort to acts that would negate the people’s bill of rights.
2. Torture is against the principle of non-brutality. No cruel, degrading, or inhumane punishment must be inflicted upon any person.
3. The use of torture will circumvent international guidelines on the torture of detainees like the Geneva Convention and various other international treaties, such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.
4. The policy of using torture will have a domino effect to the society. It will create a culture of violence and will further destroy the order of society.