Rethinking the ‘Trial by Publicity’ rule

IN ONE more demonstration of the Philippine military’s incapacity for anything resembling objective judgment, which results in its chronic inability to distinguish between victims and victimizers, the retired generals of the Armed Forces of the Philippines, through the Association of General and Flag Officers (AGFO), their 800-strong organization, decried what they said was the “trial by publicity” that their cohort Jovito Palparan Jr., has been getting.

But in the very same AGFO statement arguing that Palparan is innocent until proven guilty, they assumed the guilt of Palparan’s alleged victims—in fact practically said between the lines that Palparan has not only rid the country of its “real enemies,” whom the organization described as “those who resort to violence and intimidation to achieve their selfish political ends,” but should even be hailed as some kind of hero.

“In many societies,” the organization proclaimed, “such actions (by the ‘real enemies’) are considered acts of terrorism and those who commit them, terrorists,”  while it maintained that Palparan, despite the dozens of enforced disappearances, torture and murders that –only coincidentally, of course—afflicted every area in which he was assigned, is still entitled to the presumption of innocence.

“Let him have his day in court and defend himself against his accusers,” said AGFO president retired Lieutenant General Edilberto Adan. “Our justice system presumes that he is innocent until proven otherwise in a court of law.”  Adan and company argued that Palaparan has been condemned even before his trial, thanks to the efforts of what he described as “militants,” which is contrary to democratic tenets, you see.

In the very same statement, Adan also praised Palparan as a professional soldier who “faced hardships and risks, and had put his life on the line like countless Filipino soldiers in the service of the country, starting as a junior officer in the 1970s. His courage and leadership had saved lives and protected communities. His sacrifices should be taken into account.”

AGFO also had something to say about one of those concepts about which the Philippine military is otherwise unfamiliar —democracy—which it argued gives everyone the right to a fair trial. “If (Palparan) abused his power and authority or committed any crime against anyone as the militants claim, then allow him to face his accusers, and they should present evidence for evaluation by competent authorities so that justice may be served.”

I suppose it was both “risky” and “professional”  for the brave soldiers of the AFP and its equally brave officers to abduct “terrorists”  like  University of the Philippines students  Sherlyn Cadapan and Karen Empeno and to torture them, or to assassinate reformist local government officials like Eden Marcellana without the benefit of any trial. I suppose justice was thereby served by subjecting two UP students to unspeakable torture and murdering Marcellana and dozens of other men and women. I suppose that in the AFP’s peculiar vocabulary, abducting, torturing and assassinating citizens are not “acts of terrorism” and the perpetrators not “terrorists.”  I suppose it was all for the sake of “democracy” too.

No matter. The claim that  it’s “the militants” who’re subjecting Palparan to “trial by publicity” is in the first place false.  By its very name, any idiot should have noted that the term “trial by publicity” implies the use of the mass media to suggest or to even declare that a person  accused of a crime is guilty.

Trial by publicity is contrary to journalism ethics supposedly because it makes a fair trial for anyone accused of a crime problematic by making his conviction  likely solely on the basis of the say-so of the mass media.  In some cases it can subject the offending media  organizations to a charge of contempt of court under the sub judice (under judgment) rule, which constrains the press from influencing the outcome of trials through biased news reports and/or commentary.

Journalism ethics notwithstanding, in the Philippine setting, trial by publicity has had a mixed record in terms of achieving justice.  Because journalists are not always knowledgeable in the law (the pre-martial law era of lawyer-journalists has passed), those who either imply or argue the guilt of an accused individual have been known to contribute to a miscarriage of justice.

In one case, for example, a broadcaster interviewed in the police station where they were being held, and without benefit of counsel, two boys accused of killing a Philippine Science High School student.   His first question was “Why did you kill him?”  It was also problematic because the accused were legally children below 18 years old. But the broadcaster’s ethical lapse aside, it could be argued that the police were at least partly responsible in that they allowed the interview to take place, and allowed it without any of the accused person’s lawyer’s being present.

In another case, the mayor of a Laguna town accused of raping and killing a UP Los Banos student could have escaped prosecution had it not been for media attention, while in another high-profile killing, the accused son of a former chief justice was about to be detained in a hospital rather than in prison when it was discovered by the media, whose reports helped put him in a regular jail.

One need not go as far back as the 1990s, however.  Many observers have noted the care with which the rights and even the comfort of the three senators accused of plunder in connection with the diversion of pork barrel funds compared to the indifferent and even non-observance of the rights of ordinary citizens.  Without media attention, all three could have ended up in that distinctly Philippine invention, “hospital arrest.”  As it is, they’re detained in special facilities with amenities denied ordinary citizens.

The Palparan case is also illustrative. Palparan eluded arrest for three years with the help of his military network.  Past experience suggests that he might not even have been arrested, and the crimes of which he is accused forgotten, without media attention, erratic as it was, to the complaints of the relatives of his presumed victims, and the issuances of foreign and domestic human rights groups.

It’s not due to any passionate commitment to human rights on the part of the media. What Palparan’s friends cannot understand is that the sub-human crimes of which their boy is accused are too horrible even for this country of horrors, and too relevant to human concerns, for even the conservative media to ignore, significance being the major value that determines newsworthiness.

Trial by publicity has in this as in past instances prodded a flawed justice system to act in order to achieve the ends of justice.  It suggests that the peculiarities of that flawed system—its indifference to the rights of the poor and powerless and its bias for the wealthy, the powerful and the well-connected—compel the news media to make a choice between observing a rule meant to protect the rights of the accused on the one hand, and on the other, assuring the right to justice of the victims of the some of the worst crimes ever committed in these isles of iniquity. In the uniquely Philippine case has it become impossible to do both. ###