On Online libel of the CyberCrime law: Writing Well is the Best Defense

There has been a lot of anxious speculation in social media and the blogsphere about the possible chilling effect of the new cybercrime law (officially the “Cybercrime Prevention Act of 2012″, Republic Act No. 10175) on the freedom enjoyed by netizens in cyberspace. All this hand-wringing is premature. A cursory reading of the law will reveal it to be simply an updated version of a hodge-podge of existing laws.

For instance, libel has always been a crime, whether committed online or the old-fashioned, printed way. Thus, it is Article 353 of the Penal Code that defines libel as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or nay act, omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one already dead. “ What the new cybercrime law simply does is make reference to the commission of libel through an electronic medium or Libel 2.0.

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Yes, but is it sexual harassment ?

The case of alleged sexual harassment raised by Cristy Ramos against 2 members of the Philippine national football team, the widely (and wildly) popular Azkals, has brought the issue of sexual harassment into the forefront once more, this time in the area of team sports.

The details of the incident has been widely reported elsewhere, and need not be repeated here. Suffice it to say that it has led to wide, and sometimes acrimonious, debate online and off among those who would condemn the perceived sexual “offenders” and those who would defend, or at least offer explanations for,  their actions.

First the disclaimer: The Ramos sisters were good friends and our neighbors at the subdivision where we grew up. The Ramoses are family friends, FVR and my dad having gone to college together. However, we drifted apart during our college years, having attended different schools, although I would bump into the recently-departed Jo once in awhile, she being a popular campus figure in U.P. Diliman.  I would also see Cristy’s husband, Freddy Jalasco, socially from time to time although I have not seen him in years.

There are two particular articles which I found most enlightening, all the more so for being from the point of view of women who are no strangers to the atmosphere and psychology of men’s team sports. One is by Lia Cruz (Sexual Harassment in mens’ locker room should be challenged) and the other by Mika Palileo (What is sexual harassment? On Sofia Cristina and the woman question), both at the AksyonTV website. Their insights are fascinating and cast light on one of the darker aspects of popular sports.

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Miriam makes her point

Emphatically, as always. In taking to task the prosecution team in the C.J. Corona impeachment trial for their scattershot approach which led to the sudden and unceremonious withdrawal of 5 of the 8 articles of impeachment, Senator Miriam Defensor-Santiago let loose with a few choice and colorful words.  Just Miriam being Miriam, the other senator-judges seemed to say, until Atty. Vitaliano Aguirre signaled his displeasure by a contemptuous act which he defiantly stood by. An even bigger uproar ensued.

Which led to Fr. Catalino Arevalo, S.J., in a homily at the EDSA Shrine, to denounce Miriam “as worthy of the fires of hell” for having called the members of the prosecution panel “fools”. This according to the Bible. Never one to suffer fools gladly, Miriam was quick with a retort. The Constitution provides a wall of separation between Church and State, said she, and a priest cannot violate the law in the guise of criticizing a senator-judge with the ulterior motive of promoting his own (presumably anti-Corona) political agenda. Moreover, the Bible can be interpreted in an almost infinite number of ways. Even the devil can quote scripture to suit his ends, she might have added.

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Revive blog and Constitutional law

The time has come to revive my moribund blog. I stopped writing and posting as the well had run dry, so to speak, and I found myself at loose ends as to whether I wanted to continue blogging or not.
But the most gripping legal drama of the decade began to unfold over the past two months and I felt the urge not to let the event go unremarked.

My views are, to borrow Thomas Merton’s phrase, that of a “guilty bystander”. I am guilty of many things, not least of which is a recurring apathy and indifference towards events swirling around me, and an unhealthy tendency to focus on my own peculiar miseries. What Merton called “a spurious self-isolation in a special world”. This is an attempt to break out of my shell and once again engage with the world at large. If only through the blogosphere.

For starters I wanted to write about something arid yet compelling, oftentimes insufficiently understood but nowadays a subject of much heated debate – constitutional law. I am far from being an expert, or even an assiduous student, of the Constitution. Yet it is my conceit that I have something worthwhile to say on the subject, if only from the point of view a curious observer.

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Plagiarism in the Supreme Court

Justice Mariano Del Castillo is being accused of plagiarism in not properly citing the scholarly authorities used in the decision in Viduya vs. Executive Secretary, which he penned. An ethics committee has been formed to investigate the matter, chaired by Chief Justice Renato Corona, with Justice Teresita de Castro as the working chair and Justices Roberto Abad, Jose Perez, and Jose Mendoza as members.

But did he actually copy the words of an article written by Mark Ellis, executive director of the International Bar Association, and passed them off as his own ? Mr. Ellis’ article, entitled “Breaking the Silence on Rape as an International Crime”, was published in the Case Western Reserve Journal of International Law and makes the case for considering rape as a crime against humanity, like piracy, genocide and other heinous offenses, and therefore “ subject to universal jurisdictions under customary international law”.

The Viduya ruling, in disposing of the claims of Filipino victims of Japan’s wartime policy of forcing women to work as sex slaves serving Japanese soldiers, held that the Philippines is under no obligation to assist in pursuing the comfort women’s claims. It essentially becomes a diplomatic issue. According to the Court, since “ The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan thereby creating serious implications for stability in this region”, the Court cannot compel the government to take up the cudgels for the victims. The petition was accordingly dismissed.

Although it may appear from a quick and superficial reading of the Ellis article and the Viduya ruling that they espouse differing views on how rape should be treated under international law, they are actually on the same page. Both seem to “ fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law”. But it was precisely in explaining the immediately preceding quote that Justice Del Castillo might have sailed into intellectually dishonest waters. Continue reading

Noynoy Aquino and the Rule of Law

Talking to reporters during his retirement ceremony yesterday, outgoing Chief Justice Reynato Puno commented on the refusal of president-elect Noynoy Aquino to take his oath of office before the incoming Chief Justice, Renato Corona. C.J. Puno said that Mr. Aquino should “respect the rule of law” in answer to a question regarding Aquino’s plan of being sworn in by a yet unnamed barangay captain in Tarlac province. This as a way of snubbing GMA’s choice of Puno’s successor, a “midnight appointee” from Noynoy’s point of view. Even though the Supreme Court was nearly unanimous (Justice Carpio-Morales dissented) in declaring that the president “has an imperative duty under the Constitution to fill up the vacancies” in the S.C. even if she is set to leave in a few weeks, delicadeza be damned.

To be sure, there is nothing in the Constitution or the law which would compel Noynoy to take his oath of office before the Chief Justice. All that is required is that the person be authorized to administer oaths. For this purpose, a barangay head would be as good as any justice.

But tradition is sometimes weightier than the the letter (or non-letter) of the law. Only two past Philippine presidents (Quezon and Osmena) were not sworn into office by the Philippine C.J., during the commonwealth and war periods. All post-independence presidents took their office of office before the Chief Justice. The reason is simple: this is a recognition of the separation of powers between the three main branches of government and an acknowledgment of the respect and deference due the leader of a supposedly co-equal branch. Although in reality, an imperial presidency trumps both the legislature and judiciary in terms of actual power and prestige. Continue reading

Are the Ampatuans Rebels or Murderers ?

The government says they’re both.

But under the present state of the law, they cannot be charged with rebellion and still stand trial for murder. Murder, and all other incidental crimes related to rebellion, will be subsumed in the latter charge. And while the Penal Code allows separate prosecutions for either murder or rebellion, rebels cannot be charged for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter.

The Ampatuans can literally get away with murder if they know how.

However, most people know them to be just plain murderous cutthroats.

So what happens now ? Continue reading

Will the Murder Raps Against Senator Ping Lacson Stick ?

They will if Cezar Mancao II testifies in open court as to the existence of a conspiracy to kill P.R. man Salvador “Bubby” Dacer and that the instigator of such conspiracy was Senator Panfilo Lacson y Morena, alias “Ping“. But there has to be corroborative evidence and/or testimonies from other witnesses.

Eight years after the abduction and gruesome murders of publicist Bubby Dacer and his driver Emmanuel Corbito in November 2000, Dacer’s children sought yesterday the indictment of Sen. Lacson for the murders.

In a nine-page affidavit of complaint filed before the Department of Justice, Dacer daughters Carina, Sabina, Emily and Amparo said it was Lacson who “ordered the killing of our father” based on a recent affidavit executed by another principal suspect and alleged co-conspirator, former Police Senior Superintendent Cezar Mancao II, who is expected to be extradited from the United States on March 31. At the time of the killings, Mancao was working under Lacson in the defunct Presidential Anti-Organized Crime Task Force (PAOCTF), a special law enforcement unit then reporting directly to deposed President Joseph “Erap” Estrada. According to Mancao’s testimony given in in Broward County, Florida, where he is detained pending repatriation to the Philippines, he personally heard Lacson order former Police Superintendent Michael Ray Aquino, then operations chief of the PAOCTF, to kill Dacer sometime in October 2000. Aquino fled to the U.S. after things got too hot and is also presently facing extradition charges. Continue reading

Upholding the Right of Reply Part II

Another argument against the Right of Reply is that it’s equivalent to “censorship” and “prior restraint” on the constitutionally guaranteed freedom of the press.

Prior restraint is a form of censorship. It is a legal term referring to a government’s actions that prevent materials from being published. Censorship that requires governmental permission in the form of a license or imprimatur before anything is published constitutes prior restraint every time permission is denied. Prior restraint is an official restriction of speech before publication. The U.S. Supreme Court has rightfully found it to be “the most serious and the least tolerable infringement on First Amendment rights“. Continue reading