Problems in enforcing Anti-Torture and Cybercrime Laws

A Statement by the Asian Human Rights Commission
January 17, 2013

On January 15, the Supreme Court of the Philippines (SC) heard oral arguments questioning the constitutionality of the Cybercrime Prevention Act of 2012 and its conformity to international norms and standards. The Cybercrime Prevention Act is one of the many unprecedented pieces of legislation in the Philippines in recent years. The Cybercrime Law is expected to protect private individuals from cyber bullying, protect women and children from being sexually trafficked online, and so on. Due to questions raise as to its constitutionality, the SC issued an order suspending its implementation.

Apart from the Cybercrime Law, the Anti-Torture Act of 2009, the first domestic law criminalizing torture in Southeast Asia and the Anti-Enforced Disappearance Act of 2012, the first law criminalizing enforced disappearance in Asia are some examples of landmark human rights legislation. The question as to the Cybercrime Law, however, is whether part of its provisions, notably punishments for libel, is in line with the Constitution and international human rights standards, as we have stated earlier. The Cybercrime Law attracted protest as it borders on the risk of suppressing freedom of expression in the process of protecting rights of individuals.

The AHRC has observed that in numerous cases, such as the prosecution of torture case, the interpretations of the law are problematic when the prevention and punishment of crimes are involved. In torture cases, the police, public attorneys, prosecutors and judges, become the obstacles in the effective implementation of the Anti-Torture Law. Thus, despite the clarity of the law on torture – since there was no challenge raised of its constitutionality in court – this did not prevent inconsistencies and subjective interpretations of the law preventing prosecution of the crime.

For example, in the torture case of five men in San Fernando City in 3 August 2010, the prosecutor rejected their complaint of torture for reasons that they could not have possibly identified the perpetrators because they were blindfolded. The prosecutor exonerated the policemen from torture because the five victims have failed to "positively identify" their torturers. The prosecutor also disregarded the compelling medical and forensic evidence that they were tortured and that they were in police custody on the day on which they claimed to have been tortured.

In another case, a public attorney investigating the case of victim John Paul Nerio, a boy whom policemen tortured in December 11, 2010 in Kidapawan City, did not prosecute the policemen for torture but for child abuse. He argued that Nerio's complaint does not constitute a violation because it is not political in nature. Nerio is an ordinary teenager with no involvement in political activities. The public attorney disregarded the information that policemen have, in fact, extracted a confession from him when they arrested, detained and assaulted him in their custody. The AHRC argued otherwise and sent numerous appeals to the prosecution.

To have the clarity on the meaning and interpretation of the law is very important. But the challenge is the enforcement of the law and how the enforcers of the law – the police, the prosecutors and court judges – interpret the law in their daily work. If freedom from torture as an absolute right could hardly be adequately implemented despite its clarity, it raises questions as to whether the government's institutions could protect any other rights. None of those charged and prosecuted for torture were punished. This will certainly be the challenge in the implementation of the Cybercrime Law.

There is the assumption that the codification of rights in the Constitution and Statutes itself serves as protection. However, in our experience, while they offer some assurance there is no guaranty of the protection of rights. Most of these right remains on paper.

The case of the Abadilla Five is an example to this. In a 13-page legal critique we exposed that local courts disregarded Constitutional and Statutory rights. The court justified the breach in fundamental rights that protect individuals from arbitrary arrest and detention and torture by invoking jurisprudence contradictory to the Constitution. Also, the SC's decision upholding the conviction of the Abadilla Five in this case give rise to questions on consistency and legal certainty in the application of the jurisprudence by the court in adjudication of cases, notably in evaluating forensic evidence and credibility of the witness in court.

The AHRC is of the opinion that the effective and adequate implementation of the law does not rely purely on the clarity of its meaning but how the enforcers of the law – the lawyers, the police, the prosecutors and judges – interpret the substantive meaning of the law and what the law ought to be on protection of rights.

Living stones

By Fr. ROY CIMAGALA, roycimagala@gmail.com
January 17, 2013

I happened to be nearby when the dedication of the newly renovated cathedral of San Pablo City in Laguna took place recently. I immediately went there without being formally invited due to a number of personal reasons.

I learned that the architect who designed the renovation was a close friend of mine who is really a first-class architect. He has designed many beautiful churches and chapels, and I wanted to see another marvel of his.

Then, both the outgoing and incoming rectors of the cathedral were also friends of mine. They were seminarians in the seminary in Spain which was my first pastoral assignment after my ordination. A good number of the priests in that diocese are also alumni of the same seminary in Spain. So, I wanted to see them again after so many years.

As if these were not enough, I discovered to my pleasant surprise that the main celebrant of the Mass was Cebu’s archbishop-emeritus, Cardinal Ricardo Vidal. So I felt very much at home even if this was only my second time to be in that city.

Since the affair was about the dedication of a cathedral, the cardinal preached in his homily about what a church is. As expected, he made reference to some passages in the first letter of St. Peter that talked about the church being made by living stones, that is, us, people.

The relevant quotation is the following: “Be you also as living stones built up, a spiritual house, a holy priesthood, to offer up spiritual sacrifices, acceptable to God by Jesus Christ.” (2,4)

This letter of St. Peter also talks about Jesus as the corner stone that has been rejected but which in fact is the one that gives unity and cohesion to this building, the church that is made of living stones, that is, us.

Up to now, I feel that people have to be reminded about this fundamental element in the definition of the church. While the church is, of course, a special place, a special building since it is a house of worship – we even refer to it as the house of God – it is much more than an edifice.

The church is a communion of people with God and among themselves. It is much more than just a social and material community of people gathered together. That is already a lot, but not yet enough.

A community which is an external phenomenon has to be animated inside by a living communion of life and love rooted on the love of God, shown and given to us in full through Christ and transmitted to us through the Church that was founded by Christ on Peter.

Unless this communion takes place, the vitality and unity of any community that we can see would be at best only apparent. It cannot last long. It cannot pass the test of time, not to mention, the many challenges that it is bound to encounter in life.

There is a lot of theology involved here, something that we have to deepen ourselves in and master, because in the first place it is unavoidable. To relish the fullness of things, to reach the ultimate consequences of what we see, touch and feel and of what we understand, we need to enter into theology where we allow faith to play its crucial role in our effort to understand things.

Theology, with its essential element of faith, allows us to penetrate into the spiritual and supernatural realities that are impenetrable to our senses and even to our reason alone.

And given the complexities of our times, we cannot afford to be ignorant of theology anymore. We need to go serious with it, purifying it from the usual superstitions and other errors that also distort it. In this, we just have to help one another.

I considered it as some stroke of providence that I finished that day of the dedication of the San Pablo Cathedral with a viewing of the movie, For greater glory, which is about the religious persecution in Mexico in the 1920s.

It’s a terrible story that simply showed malice played out in the political life of that country, and the not-so-right effort to defend religious freedom that resorted also to forms of violence.

My analysis is that these things happen when faith is excluded in public life and forced to survive in some clandestine manners that are also prone to irregularities.

We have to be living stones that build up a true Church which is supposed to be the mystical body of Christ himself!

Debate on constitutionality of cybercrime law

A Statement by the Asian Human Rights Commission
January 15, 2013

At 2pm today, the Philippines Supreme Court will hear petitions challenging the Constitutionality of the newly approved law, Cybercrime Prevention Act of 2012 (Republic Act No. 10175). The law was approved in September 12, 2012, but the SC issued a Temporary Restraining Order (TRO) after petitions were filed questioning the conformity of the law to the 1987 Constitution and the country's obligation for protection of freedom of expression in international law.

In its Advisory issued earlier, the SC will hear oral arguments questioning the following provisions of the law:

First, by Atty. Harry Roque, Jr. on section 4(c) (4) of the Act;

"SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future."

Second, by Congressman Neri Colmenares, on section 6 and 7;

"SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws."

Third, Atty. Rodel Cruz, on section 19;

"SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data."

Fourth, Atty. Jesus Disini, Jr, on section 12;

"SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system..."

Fifth, Atty. Julius Matibag, on section 5 (a) and (b);

"SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable."

On top of the debate on the Constitutionality of this law, the Asian Human Rights Commission (AHRC) welcomes this as an opportunity to discuss protection and promotion of rights to freedom of expression, thoughts and opinion. It calls on the SC that in hearing petitions and oral arguments on the challenge to the law to ensure that a balance between protection of freedom of expression and prevention of internet crimes is reached.

Freedom of expression is a cornerstone in the protection of civil liberties. When there is restriction on citizens from expressing their opinion of public interest, it denies any forms of genuine debate concerning their issues that matters in the society and their relation to the State. The Philippines is constitutionally a democratic country and the 1987 Constitution is a product of bitter social and political struggle.

However, despite its robust 1987 Constitution, there are jurisprudence and provisions in its criminal law such as the Revised Penal Code (RPC) that continue to operate despite being contradictory to the spirit of the Constitution. Though the country's constitution has been replaced jurisprudence and case-laws, laws and legislation, their interpretation and implementation, have largely remained unchanged since dictatorial rule.

Therefore, the oral argument today would be an opportunity, not only to challenge the constitutionality of the Cybercrime law, but for the Filipinos to demand from its courts the protection of this right as interpreters of the Constitution in line with the substantive principles of freedom of expression and the country's obligation to implement international law standards in its court system.

“Long Knives” Season

By JUAN L. MERCADO, juan_mercado77@yahoo.com
January 11, 2013

"...once you lose principle, it can never be regained.”

Tension between journalists, publishers and officials, is as old as the 1440 AD Guttenberg press. It resurfaced in Sun Star Cebu and tabloid Superbalita, the country’s most widely-circulated community papers.

Sun Star Cebu is flagship for a syndicated network of 13 papers. An average of 473,107 viewers daily surf the paper’s electronic version. The paper garnered 236 local and international awards, since launched in November 1982 by the Garcia family. It posts a profit. Women run the top three editorial posts. Professionalism kept politics at bay. Till now?

DILG Secretary Mar Roxas’ suspension of Gov. Gwendolyn Garcia lit the brawl. Garcia is not a candidate for canonization. But she was canned long after legal deadlines lapsed. It took 474 days from filing of charges to suspension. That straddled start of the 2013 campaign. Garcia burrowed into her office while DILG swore in Agnes Magpale as acting governor.

This “season of the long knives” dragged in Columnist Bobby Nalzaro’s columns. Sun Star carried Nalzaro’s scathing criticisms of Gov. Garcia, despite periodic personal sniping. The columns vanished after New Year.

“I’m on sabbatical”, Nalzaro told Cebu Daily News. He’d been asked to stop writing “until the Capitol conflict is resolved. It’s (the publisher’s) prerogative… I understand them and respect their decision. After “the issue blows over,” he’d decide what to do next.

“The press is a frail vessel for the hopes it is meant to bear”, London’s Sunday Times editor Harold Evans wrote. “The best it can do is never enough to illuminate the complexity of forces and agencies that we can not monitor for ourselves but affect our lives. A free, cultivated…resourceful and honest press can only try. And if we ever get one, it will be interesting to see what it achieves.”

In Britain, Lord Justice Leveson completed, this November, an enquiry into a Guardian expose: News of the World hacked mobile-phone messages of a girl who was murdered. “The press is often thuggish,” the Leveson report states. “The Press Complaints Commission is largely toothless.”

(Like the Philippine Press Council? Some member-newspapers pillored Antonio Calipjo Go who blew the whistle on textbook rackets – a valid charge President Aquino agreed. PPC collapsed after accused papers ignored it’s request that Calipjo Go’s side be published.)

Fleet Street editors heeded the Leveson commission, and empowered their self-regulatory body to impose fines up to £1million. They rejected oversight legislation but welcomed an arbitration service for libel. (Sen. Vicente Sotto, this January, sneaked in Section 4-c (4) on libel, as a rider, to the then pending cybersex crime bill. That made libel non-bailable, press groups protested.)

At “Southern Weekly” of Guangzhou, China, an editorial, calling for human rights protection, was pasted over by one praising the Communist Party. The staff staged an precedented strike. Demonstrators waved chrysanthemums, flowers used for funerals.

Will the “solution” that striking journalists would not be punished hold?, Dow Jones asks. That’d signal more elbow room under new rulers led by Li Jinping. “Warm rice porridges from southern China can soothe the soul in winter”, said a Beijing News front page feature. China observers interpreted that as support for Southern Weekly, BBC reports.

Bearded terrorists shut down Pioneer Press in 1951, forcing publisher and editor to flee Cebu. Candidate Sergio Osmeña Jr. clubbed the Cuenco family for terrorism. Once seated as governor, Osmeña cracked down on the Southern Star for critical columns. The paper folded.

That ham-handedness rubbed off on Osmeña’s son. In 2004, Mayor Tomas Osmeña threatened to shut down GMA stations “for lack of business permits.” Osmeña vowed to sue radio stations that refused City Hall ads, since it didn’t settle earlier IOUs. He barred reporters from when displeased by their reporting – then backed off.

President Joseph Estrada, in July-November 1999, mounted an ad boycott against the Philippine Daily Inquirer. Erap was infuriated by Inquirer’s reports on mounting graft Estrada dangled a quid-pro-quo before movie producers: he’d grant their request for tax incentives – if they would pull out their ads from the Inquirer.

By the month’s end, half of Inquirer’s top advertisers scrammed. A few, like the Ayala group of companies and Marie France, stood their ground, recalls editor Jose Nolasco. Name your price, a businessman close to Estrada told Sandy Romualdez. “The Inquirer is not for sale, not at any price. We will fight,” she told cheering employees.

Eleven years after his failed boycott, ouster by People Power, conviction for plunder and pardon, Erap visited Inquirer’s office. “Mr. President,” would you instigate another boycott?, the editor asked. "I hear you owe the people here P70,000 each,” referring to losses from the boycott. He smiled. “It was the show biz people who started it. Sina Armida (Siguion-Reyna) yun,” he said. “Di ba after four days, OK na ulit ang Inquirer?” Not so, Inquirer editor in chief Letty Jimenez-Magsanoc quickly noted.

In Cebu’s press tensions, what Inquirer’s Marixi Prieto told the Personnel Management Association of the Philippines, at the peak of Estrada’s boycott resonates: “Credibility is paramount in the news business. And commitment to this principle requires sacrifice….The pullout of the ads is just temporary, and we hope they’ll eventually come back. But once you lose principle, it can never be regained.”

In Memoriam

By JUAN L. MERCADO
January 6, 2013

(Thousands turned out Saturday, at the Jesuit cemetery in Novaliches, for the burial of Fr. James Reuter: teacher, counselor, communicator, Filipino – and priest. More could not make it. He was 96. Allow us to pay tribute to this friend. Start with the reaction of our daughter Maria Lourdes who was a grade school student when martial law was declared...)

"Fr. Reuter waited for me until our St Paul third grade class was dismissed," Malou recalls. There were 22 of us journalists detained under the first wave of martial law arrests. “Not everyone in prison is bad,” he gently said. “Your father and other newsmen are not criminals. They were doing their jobs.” That was four decades back. Malou is a lawyer, who lives in California with her physician husband and two kids. On hearing of Fr. Jim’s passing, she emailed. “He touched many lives, including mine.”

Jim Reuter joined the Jesuits, as a 22-year old novice, in Pennsylvania. In 1938, he arrived in the Philippines. He taught at Ateneo de Manila and Naga. When war broke out, the Japanese military jailed him with 2,154 other Americans, in Los Baños After ordination at Maryland in 1946, Fr. Reuter returned to the Philippines. He became, “a priest whose parish was stage, radio, printing press, shooting lot, dressing room, director’s booth, the theatre”.

He spent years as spokesman for the Catholic Bishops Conference. That work led to confrontation with the Marcos’ censors. Military Intelligence Security Group shut down “Signs of the Times”. Fr Reuter edited this newsletter for religious groups. “Death of a Cobbler” reported military torture of an ordinary citizen. Fr Reuter found himself under house arrest.

Fr. Jim downplayed his role in supporting People Power by getting the underground “Radyo Bandido” on the air. “That station came on the air after President Ferdinand Marcos’ men blew up Catholic station Radio Veritas. “Information is democracy’s oxygen”. He secured dzRJ transmitters and hitchhiked that on Veritas’ frequency of 840. Anchored by June Keithley, “Radyo Bandido” became nerve center for reports on the “Yellow Revolution.” Pope John Paul II cited him “for faithfully and courageously upholding truth, justice and integrity in Catholic Communications.

Thousands got a helping hand from Fr Jim. He weighed in for them in his column "At Three AM". But failing health led to his confinement at a hospital he helped to build: Our Lady of Peace in Parañaque.

On May 18, 2009, he wrote his last "At Three AM" column “I am ten days away from my 93rd birthday. God has been kinder to me than I deserve, giving me such a rich life, in such a beautiful country, among such gentle people. I have been thanked for giving my life to the Philippines.

Whenever we visited Manila, we’d drop by Our Lady of Peace Hospital and chat with Father Jim. The last visit was when he marked diamond anniversary of making his first vows in the Society of Jesus. “Bob Hope said 75 candles on his birthday cake made it look like Los Angeles airport runway,” I crack. Overhead, a jet makes it’s final landing approach for the Manila airport. It's whine drowns out our laughter.

We recalled years he spent in World War II concentration camp. Hard labor, short rations (two ounces of rice in the morning and two ounces at night) constant threats marked the next three years – until liberated. “That taught me three most important things in life,” he wrote. “Breakfast, dinner and supper.” Clothed in rags, the prisoners shuffled barefoot, vulnerable to hookworms and disease.

“Shanghai Lil had a checked career,” Fr. Jim recalls. In Barracks 20, detained Maryknoll sisters befriended her. Noticing a nun’s shoes falling apart, Shanghai Lil gave her red nightclub shoes. “You have no permission to refuse,” the nun’s superior said. Take the shoes.”

In February 1945, Filipino guerrillas assaulted Los Baños as US Eleventh Airborne paratroops dropped four hundred meters from the camp. All guards were killed in 11 minutes. Then, a tall black paratrooper stood in the door: “If you folks would get out into the road, we’re plannin’ to evacuate you all in a li’l while,” he drawled. The late Fr. Leo Cullum distributed remaining consecrated hosts as the chapel caught fire. The nuns ran past us to their Amtrak. So did Shanghai Lil and her friend, the Maryknoll sister, holding hands. “We could see the red shoes flying.”

Fr. Reuter employed his gifts as writer, theatrical director, and broadcaster, but most of all as teacher, the Magsaysay Award reads. “(He made) the performing arts and mass media a vital force for good in the Philippines.”

Thanks for the life lessons Father Jim. Requiescat en pace.

“The Singing Bird”

“In a country well governed, poverty is something to be ashamed of…but in a country badly governed, wealth is something to be ashamed of”.

By JUAN L. MERCADO
December 30, 2012

”Make sure the poor have reason for hope,” Nobel Laureate Armatya Sen writes. That’s counsel worth heeding, as 2012 winds down and curtains will rise on 2013.

On New Year’s Eve, the Kitchen God’s lips are rubbed with pork, ancient Chinese fables say. That’d prod the diety to report favorably, on one’s household, to the Jade Emperor "If you can look into the seeds of time, and say / Which grain will grow and which will not / Speak then unto me,” Banquo challenges witches in Shakespeare’s 1605 play “Macbeth”.

Today, we prefer scientific surveys. “Ninety-two percent of adult Filipinos enter the New Year with hope rather than with fear”, the 4th quarter 2012 Social Weather survey, found. A parallel Pulse Asia survey reached the same conclusion. The upbeat sentiment, cuts across geographic areas as well as economic brackets.

However, “in Mindanao, New Year hope declined by nine points to 85% in 2012.” SWS observed. More (14%) Mindanaoans are fearful. That is understandable. Altered typhoon paths now slam a Mindanao, that once enjoyed immunity-from-storms status.

Typhoon “Sendong” tore into Cagayan de Oro and Iligan in 2011, leaving 1080 corpses. Up to now, “1,979 are missing. Typhoon “Pablo” clobbered Compostela Valley and Davao Oriental December 4. By Christmas Eve, “Pablo’s” death toll crested at 1,067. A “Christmas gift” of 500 coffins came a Metro Manila donor.

“Hope is the poor man’s income”, an old Danish proverb says. There were hard-nosed examples of good governance that anchored the optimism. The “sin” tax reform, reproductive-health measures, plus the new law (RA 10350) cracking down on enforced disappearances were passed.

Moro Islamic Liberation Front and government signed, on Oct 15, the “Framework Agreement on the Bangsamoro”. This is a first step in beating swords into ploughshares for a decades-long rebellion. Both sides are treshing out nitty three annexes on power and wealth sharing, plus “normalization”.

MILF named four of it’s nominees to Transition Commission. “We must learn to live together as brothers,” Martin Luther King wrote. “Or we are all going to perish together as fools”.

Standard and Poor’s raised its outlook on the Philippines’ credit rating to “positive” from “stable” late December. This followed Moody Investor’s upgrade in October. That performance saw President Aquino clock a trust rating of 80%, Ulat ng Bayan survey says.

“Pnoy is not a crook,” as street jargon puts it. “Like mother, like son.” That refers to the unblemished reputation integrity Corazon Aquino brought to her grave. Pnoy must keep his escutcheon unblemished. There are no-holds-barred brawls ahead with the sleaziest of characters that politics can disgorge.

“You can never plan the future by the past”, the statesman Edmund Burke once said. But then Burke never saw our “tradpols”.

A US federal court slapped a $353.6 million contempt fine on Imelda and Ferdinand Marcos, Jr. for trying to secretly ship out of the US, paintings and other artworks, from court-contested holdings. In September, Imelda wailed over government plans to auction off confiscated jewelry, notably the ‘Roumeliotes Collection’. “These are all mine,” she stressed.

Senator Ralph Recto denies he moonlights as spokesman for the tobacco industry. And in the Lower House, the Freedom of Information bill has been consistently sabotaged. Nueva Ecija Rep. Rodolfo Antonino snarled deliberations further by insisting that a right-of-reply (RoR) provision be stitched into FOI.

“The calculated incompetence of the House committee…led to the outcome it wanted all along,” Inquirer’s editorial “House Hypocrites” pointed out. “The House leadership, and the administration it closely works with, do not want the FOI cause to advance.”

“In a country well governed, poverty is something to be ashamed of,” Confucius writes in the Anaclets. “But in a country badly governed, wealth is something to be ashamed of”. These tradpols buck reform and embed poverty.

In 2012, The Philippines poverty rate was roughly the same level as Haiti. One out of every four Filipinos huddle below the poverty line: P16,841 pesos a year. Rate of decline in penury lags behind neighboring countries who experienced broadly similar numbers in the 1980s: China, Thailand, Indonesia (which poverty level lies at 8.5%) or Vietnam (13.5%). Thus, we lag in meeting the Millennium Development Goals.

Those who gave hope were not those who kapit-tuko to official posts: They were mostly self-effacing individuals, who poured themselves out for others.

Some have been recognized. A Ramon Magsaysay Award, for example, went to UP College of Agriculture’s Romulo G. Davide. He showed “passion in placing the power and discipline of science, in the hands of farmers who consequently multiplied their yields, created productive farming communities, and rediscovered the dignity of their labor.”

Many who work away from the headlines. A Cebuana physician ministers, as a Medical Mission sister, to lumads in Bukidnon. A woman-lawyer spends time giving free legal counsel to the poor.

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