A relic of colonial rule (Updated)

LIBEL AS a means of repression has been problematic in the Philippines even before the Revised Penal Code (RPC) went into effect in January, 1932.

A libel law can be a legitimate means of redress for people the media have aggrieved, but the present law as defined in Article 353 of the RPC, with its origins in both the Spanish and US colonial periods, was primarily used to prevent criticism of both colonial regimes and to discourage the airing of Filipino demands for independence. Since 1946 when Philippine independence was recognized it has been used to intimidate critical journalists and citizens. A campaign for decriminalization has been ongoing for nearly three decades, but the Cybercrime Prevention Act of 2012 makes conviction for online libel even more repressive than a conviction in print.

A libel law was in place during the Spanish colonial period, when it penalized insults and “injuries” against “persons of authority.” During the American occupation, Act No. 277 criminalizing libel passed the US’ Philippine Commission and was used to bully the nationalist press. The justification for Act 227’s criminalization of libel was both racist and colonial. Then Governor General William Howard Taft justified its passage by saying that Filipinos are “a strange people unused to the freedom of the press.”

The colonial roots of the Philippine libel law are equally evident in the definition of libel in Article 353 of the RPC, which is virtually the same as the definition of libel in Act No. 277. The latter defines libel as “a malicious defamation…tending to blacken the memory of one who is dead, or to impeach the honesty, virtue or reputation, or publish the alleged or natural defects of one who is alive, and thereby expose him to public hatred, contempt, or ridicule.”

The RPC’s Article 353 defines libel as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any 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 who is dead.” Libel is also a criminal offense in both Act No. 277 and the RPC.

The 1908 libel suit filed by then Secretary of the Interior Dean C. Worcester against the pro-independence newspaper El Renacimiento (The Rebirth) for its editorial “Aves de Rapina (Birds of Prey) was the landmark case during US colonial rule.

El Renacimiento described “the eagle” as the “most rapacious” bird of prey, and criticized certain US colonial government officials “who, besides being eagles, have the characteristics of the vulture, the owl, and the vampire.” These officials, said the newspaper, pretended to be studying the Igorots, but in reality were looking for gold deposits in the mountains of Luzon.

Although the paper did not name him, Worcester filed a libel suit which resulted in the conviction of  Fidel Reyes, who wrote the editorial, his co-editor Teodoro M. Kalaw, and publisher Martin Ocampo. Kalaw and Ocampo appealed the decision before the Philippine Supreme Court and later, the US Supreme Court, but their conviction was affirmed in both. Although pardoned by then US Governor-General Francis Burton Harrison in 1914, Ocampo had to pay the then huge amount of P100,000 in fines, which so crippled the paper and its sister newspaper Muling Pagsilang both ceased publication.

The current libel law has been in the RPC since 1932 despite calls for its decriminalization—and for its updating and even total repeal, given its repressive intent and colonial origins—from journalists’, free expression, and media advocacy groups. The law mandates prison terms of from six months to six years and/or a fine of 200 to 6,000 pesos. In more recent cases, however, those convicted of libel have been fined more than these amounts and sentenced to prison terms. Libel as a criminal offense has made it specially troubling for journalists even prior to conviction, since anyone accused of libel can be arrested, and unless able to post bail, imprisoned pending the outcome of the case.

Prior to the Gloria Macapagal-Arroyo regime, the most prominent post-martial law libel case in the Philippines was the late President Corazon Aquino’s suit against the Philippine Star’s publisher Maximo Soliven and the columnist Luis Beltran—the first by any sitting President—for the latter’s tongue-in-cheek statement in his column that Mrs. Aquino “hid under her bed” during a 1987 coup attempt. While still President, Joseph Estrada also threatened to sue the Manila Times for libel, but withdrew the suit when the paper apologized.

The nine-years during which Mrs. Arroyo was in power were particularly problematic, notably for the 11 libel suits her husband filed against 43 journalists starting in 2006, and for the conviction and imprisonment of Davao broadcaster Alex Adonis in 2007.

Adonis read during one of his broadcasts a tabloid account on a supposed incident involving then House Speaker Prospero Nograles. Nograles sued Adonis for libel, and Adonis was convicted and sentenced to four years’ imprisonment. After serving two years of his sentence, Adonis filed a complaint before the United Nations Human Rights Committee (UNHRC) alleging that the Philippine libel law is incompatible with Article XIX of the International Covenant on Civil and Political Rights (ICCPR).

The administration of Benigno Aquino III must review the Philippine libel law, decriminalize libel, and compensate broadcaster Adonis for the time he spent in prison for libel, said the UNHRC in response. The UNHRC declared in 2011 that the country’s libel law is not only at odds with Section 2 Article XIX of the ICCPR to which the Philippines is a signatory; it is also excessive because it imprisons those convicted of libel.

Section 2 of  the ICCPR’s Article XIX declares that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The Philippine libel law in effect denies Filipinos that right.

Adopted by the UN during its 103rd session, the UNHRC statement urged the Philippine government, as party to the ICCPR, to submit a report to the UN within six months detailing what it has done in compliance with the Committee’s suggestions. The Philippine government instead passed Republic Act 10175, the Cybercrime Prevention Act, in September 2012, which not only absorbed  the criminal libel provisions of the RPC  in its  Section 4 (C) 4; it also raised the  penalty by one degree: from six months  to six years’ imprisonment,  to six years to twelve years.

The penalty of imprisonment for libel in the RPC  is already disproportionate to the offense; raising it by one degree makes it even more excessive and repressive. Words are after all merely that—words. They’re not fists, sticks, stones or bullets—with which, as everyone knows, it’s journalists who have been attacked, not their subjects, and about which the Philippine government has done little to stop or even minimize.

The Aquino administration’s support for the Supreme Court majority opinion declaring online libel Constitutional is meanwhile consistent with Mr. Aquino’s own declaration that the killing of journalists is not a serious matter, the more “serious” concern of officialdom being exemption from the criticism the Constitution’s protection of free expression makes possible through the new media and the old.

Contrary to Mr. Aquino’s defense of the SC decision that those who report the truth have nothing to fear from the country’s libel law, under that law truth alone is no defense. It’s not a matter of one’s right to free expression’s being limited by one’s infringement of someone else’s rights either. As legitimate as that limit may be, it doesn’t justify the excessive penalty of imprisonment for libel. It doesn’t matter whether the penalty is six months’ imprisonment or six years, the total abolition of jail time as a penalty for libel being the only option consistent with the Constitutional protection of free expression. It is the penalty of imprisonment that makes the Philippine libel law not only particularly repressive, but also a relic of colonial rule.