Monday, September 03, 2007

A perspective on Freedom of Expression in the Philippines-Development and Challenges

I disapprove of what you say, but I will defend to the death your right to say it.

- Voltaire-


A. FREEDOM OF EXPRESSION, ITS DEFINITION AND IMPORTANCE

Freedom of expression occupies a preferred position in the hierarchy of rights. This right has largely been associated with the right to dissent and freedom of thought.

In the dissenting opinion of Justice Cruz in the case of National Press Club vs. COMELEC[1], a definition of “freedom of expression” is offered, to wit:

Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the communication of ideas falling under the more comprehensive concept of freedom of expression. These rights include the equally important freedom of the press, the right of assembly and petition, the right to information on matter of public concern, the freedom of religion insofar as it affects the right to proselytize and profess one's faith or lack of it, and the right to form associations as an instrument for the ventilation of views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the guaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972. The reason for this precaution is that freedom of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be wielded by every citizen in the land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart to use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options, let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be heeded, for acceptability will depend on the quality of his thoughts and of his persona, as well as the mood and motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against any attempt to muzzle his thoughts.

In the more recent case of Estrada vs. Disierto[2], Justice Puno cited the raison d’ etre of freedom of expression and speech as follows:

The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus." In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress of a society can take place without destroying the society." In Hague v. Committee for Industrial Organization, this function of free speech and assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all." In the relatively recent case of Subayco v. Sandiganbayan, this Court similarly stressed that " . . . it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers."


B. POLITICAL AND HISTORICAL BACKGROUND OF FREEDOM OF EXPRESSION IN THE PHILIPPINES

All four Philippine constitutions have acknowledged free expression and press freedom, although this has not always ensured effective protection of those rights, notably during the Marcos era. Both have always been a part of the Filipinos’ long struggle for freedom and are part of the Philippine revolutionary tradition.[3]

Justice Romero in his dissenting opinion in the case of Osmena vs. COMELEC[4] wrote of the political and historical background of Freedom of Expression under the Malolos Consitution, to wit:

To stretch our memories, Spain's adamant denial of basic freedoms to our hapless forefathers, among others, sparked the Philippine revolution. Jose Rizal, in "Filipinas Despues de Cien AƱos" described the reform a sine quibus non, saying, "The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free." The Filipino propagandists who sought refuge in the freer intellectual climate of Spain invariably demanded "liberty of the press, of cults, and of associations through the columns of "La Solidaridad."

One of the more lofty minds unleashed his fierce nationalistic aspirations though the novels Noli Me Tangere and El Filibusterismo, necessarily banned from the author's native land. Eventually, the seeds of these monumental works ignited the flame of revolution, devouring in the process its foremost exponent, albeit producing a national hero, Jose Rizal. The mighty pen emerged victorious over the colonizers' sword.

The Malolos Constitution, approved before the turn of century on January 20, 1899, enshrined freedom of expression in Article 20 of its Bill of Rights, thus:

"Article 20 Neither shall any Filipino be deprived

1. Of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means."

This right, held sacrosanct by the Filipino people and won at the cost of their lives found its way ultimately in the Constitutions of a later day, reinforced as they were, by the profound thoughts transplanted on fertile soil by libertarian ideologies.

This opinion of Justice Romero was however based on a 1918 decision of the Supreme Court, which spoke through Justice Malcolm. In the case of United vs. Bustos[5], J. Malcolm wrote:

Turning to the pages of history, we state nothing new when we set down the freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien Anos" (The Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non," which the Filipinos insist upon, said: "The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by instituting Filipino delegates."

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the wants of the Filipino people demanded." (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press and assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these Islands and won at so dear as one would protect and preserve the covenant of liberty itself.

Net comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State constitutions guarantee the right of freedom of speech and press and the right of assembly and petition. We are therefore, not surprised to find President McKinley in that Magna Charta of Philippine Liberty, the Instruction to the Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a redress of grievances."

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United States, which the American people demanded before giving their approval to the Constitution.

We mention the foregoing facts only to deduce the proposition never to be forgotten for an instant that the guaranties mentioned are part and parcel of the Organic Law — of the Constitution — of the Philippines Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with it all the applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would inadequately answer. But included are the following:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorized defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4 L.R. 4 Q. B., 73; Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Garden, 5 Q. B. D., 1.)

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the contrary, it is a duty which every one owes to society or to the State to assist in the investigation of any alleged misconduct. It is further the duty of all know of any official dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.)

“These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.

Thence on, the guaranty was set in stone in our 1935 Constitution, and the 1973 68 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"SECTION 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."”[6]

C. A COMPARATIVE ANALYSIS OF THE FREEDOM OF EXPRESSION PROVISIONS

A comparative analysis of the different provisions reveals the following:

1. The constitutional provisions enumerates 5 cognate rights, namely:

· Freedom of Speech
· Freedom of Expression
· Freedom of the Press
· Right of peaceful assembly;
· Right to Petition

2. The 1935 and 1973 constitutions did not include the phrase “freedom of expression” apparently because the latter is embraced in the freedom of speech and of the press.

3. The enumeration of the cognate rights highlights the fact that impairment or abridgement of one also impairs the others. All these rights while not identical are inseparable.

4. The abridgement in the provisions refer to those committed by the legislature and local legislative bodies, and not by private persons or entities.

5. The freedom of expression clause is similar to the First Amendment of the United States’ Bill of Rights, which prohibits abridgement by law, as opposed to the Universal Declaration of Human Rights, whose language was crafted to ensure respect of such right.


D. RESTRICTIONS ON FREEDOM OF EXPRESSION

In the case of Tiongco vs. Aguilar,[8] Justice Davide wrote:

For every right carries with it a corresponding obligation. Freedom is not freedom from responsibility, but freedom with responsibility. In Zaldivar vs. Gonzales (166 SCRA 316, 353-354 [1988]), it was held:

"Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs an occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antimony between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community."

Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily to undermine the confidence of the people in the integrity of the members of this Court and to degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68 SCRA 42 [1975]); or of disrespectful, offensive, manifestly baseless, and malicious statements in pleadings or in a letter addressed to the judge (Baja vs. Macandog, 158 SCRA 391 [1988], citing the resolution of 19 January 1988 in Phil. Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]).

Justice Romero in Osmena vs. COMELEC further wrote that:

“Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or privilege of free speech and publication has its limitations, the right not being absolute at all times and under all circumstances. For freedom of speech does not comprehend the right to speak whenever, however, and wherever one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled.

Still, while freedom of expression may not be immune from regulation, it does not follow that all regulation is valid. Regulation must be reasonable as not to constitute a repression of the freedom of expression. First, it must be shown that the interest of the public generally, as distinguished from that of a particular class requires such regulation. Second, it must appear that the means used are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”

There are different tests employed in resolving any challenge to laws restricting freedom of expression. These tests include the following:

1. Dangerous Tendency Rule[9]
2. Clear and Present Danger Rule[10]
3. Balancing of Interests[11]

E. A NEW CHALLENGE

In the Philippines, where people's rights are "perceived" to be protected by the constitution, there still exists certain archaic provision of the law, which hinders its effective exercise. The crime of sedition is one such offense. It is inconsistent with generally accepted principles of the right to freedom of expression.
Freedom of expression is protected under Article III, section 3 of our 1987 Constitution which provides as follows, “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and to petition the government for redress of grievances.”
On the other hand, sedition is a crime “committed by persons who rise publicly and tumultuously in order to attain by force, intimidation, or by other means outside of legal methods, any of the following objects: (1) To prevent the promulgation or execution of any law or the holding of any popular election; (2) To prevent the National Government, or any provincial or municipal government or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order; (3) To inflict any act of hate or revenge upon the person or property of any public officer or employee; (4) To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and (5) To despoil, for any political or social end, any person, municipality or province, or the National Government, of all its property or any part thereof.” (Article 139, Revised Penal Code).
The crime of sedition is an offense of the mind. It occurs in the mind of a repressive Government and as is usually the case, it is being used as a weapon to deny, rather than to protect the people’s rights, particularly on freedom of expression. It is also being employed to justify the use of massive state resources against an individual or group who are at odds with the government’s position.The American Civil Liberties Union (ACLU) in a position paper said:
The right to express one's thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to of realize his or her full human potential. Thus, freedom of expression is an end in itself -- and as such, deserves society's greatest protection.It's vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. Therefore, all points of view -- even those that are "bad" or socially harmful -- should be represented in society's "marketplace of ideas."
If the people are to be the masters of their fate and of their elected government, they must be well- informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.
The crime of sedition is no longer existing and has fallen into dissuse in many countries, such as Canada, Ghana, Ireland, Kenya, New Zealand, South Africa, Taiwan, United Kingdom and the United States.
Based on a memorandum on the Malaysian Seditoon Act, prepared by Article 19 for their Global Campaign on the Freedom of Expression dated July 2003:" International bodies and courts have made it very clear that freedom of expression and information is one of the most important human rights. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I), which states:
Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.
Freedom of expression is both fundamentally important in its own right and also key to the fulfilment of all other rights. It is only in societies where the free flow of information and ideas is permitted that democracy can flourish. In addition, freedom of expression is essential if violations of human rights are to be exposed and challenged.
The importance of freedom of expression in a democracy has been stressed by a number of international courts. For example, the African Commission on Human and People’s Rights has held:
Freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country.
Similarly, the Inter-American Court of Human Rights has stated:Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. ... [I]t can be said that a society that is not well informed is not a society that is truly free.
Both the UN Human Rights Committee and the European Court of Human Rights have repeatedly affirmed this.
The fact that the right to freedom of expression exists to protect controversial expression as well as conventional statements is well established. For example, in a recent case the European Court of Human Rights stated:
According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
These statements emphasize that freedom of expression is both a fundamental human right and also key to democracy, which can flourish only in societies where information and ideas flow freely. "
In the Philippines, the crime of sedition has been used against eminent nationalist leaders such as Jose Rizal, Andres Bonifacio, Aurelio Tolentino, Macario Sakay, Isabelo Delos Reyes, Amado Hernandez, and Benigno Aquino, Jr.




[1] GR no.142653, March 5, 1992
[2] G.R. Nos. 146710-15. March 2, 2001.
[3] Freedom of Expression and Media in the Philippines, Article 19, December 2005, London, page 19
[4] G.R. No. 132231. March 31, 1998
[5] 37 Philippine Reports 731
[6] Estrada vs. Disierto, supra
[7] Refer to “Annex A”
[8] G.R. No. 115932. January 25, 1995
[9] In the case of Ebralinag vs The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest that the state has the right and duty to prevent.
[10] Presently in the United States, the clear and present danger test is not applied to protect low value speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial. Hence, even following the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speeches that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly. (Iglesia ni Kristo vs. Court of Appeals, G.R. No. 119673. July 26, 1996.
[11]Justice Castro cited American Communications Association v. Duds, 18 where the "balancing-of-interests" test was applied. In said case, the United States Supreme Court stated that "in suggesting that the substantive evil must be serious and substantial, it was never the intention of [the U.S. Supreme Court] to lay down an absolutist test measured in terms of danger to the Nation." 19 Chief Justice Vinzons, expounded:
When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. . . . In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination . . . We must, therefore, undertake the delicate and difficult task . . . to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights. 20
The test is further explained thus:
The theory of balance of interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory that it is the Court's function in the case before it when it finds public interests served by legislation on the one hand, and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that public interest served by restrictive legislation is of such character that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important public interests. (Dissenting opinion of Justice Kapunan, SWS vs. COMELEC, G.R. No. 147571. May 5, 2001

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