Responsible Journalism and the Right to Reply Bill

The Freedom of Speech and of Expression is the linchpin in the wheel of a true, responsive, and relevant democracy. Any act or omission of a government that unwarrantly intrudes into its domain and unjustifiably limit its purpose must be struck down with the vigour, assiduousness, and the swiftness of a Paul Bunyan taking down a Sycamore tree.

The importance of the freedom of the press can never be overstated. It is both a sword and a shield for media men and journalists to use in quest to convey the truth in the interest of the general public. It is a trite argument to say the press performs an essential function in a true democracy as a watchdog on matters of public interest and concern.

In the Philippines this freedom is enshrined in the 1987 Constitution. Section 4 of its Bill of Rights [Article 3] thus clearly mandates-"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". It has proudly withstood against all those who tried to fetter its power in the guise of the common good. Of late, however, it must once again rise above the challenge that may be brought about by the Right to Reply Bill [House Bill No. 3386 and Senate Bill No. 2150] should the bills become law, imposing upon publishers, editors-in-chief the mandatory publication of a person's reply to the news or article written about him/her and providing penalties for failure to do so.

From my viewpoint, both bills are insidious, unjustifiable, and indirect attempts to delimit press freedom. Both bills brazenly aim at tilting the fragile balance between a person's privacy and reputation against the demands of public interest, to muzzle the guns of responsible journalism. Their effect is to impose unjustifiable control on what editors would publish in matters of public concern. Accusations are rife about alleged scalawags and unscrupulous journalists and mediamen in the ranks of Philippine media and one can symphatize with those persons whose reputations were forever unfairly destroyed by irresponsible reporting.

Should these bills become law and taking aside strong arguments about their unconstitutionality, are these bills the panacea to this conundrum? For one, the bills do not impose a limitation period within which the person in interest must make a reply to the article/news about him/her. A publisher's or editor-in-chief"s compliance of the law would depend entirely on the person in interest to send a reply. The consequences of a waiting game would hang over the heads of the publishers and editors-in-chief like the proverbial sword of Damocles thereby hindering a responsible journalist from performing his job. Moreover, what if the reply is sent months or years after the imputing article or news were published and the publisher or editor in chief have changed by then, or much worse, the publication no longer exist? What comes of it?

On this issue of press freedom and responsible journalism, much can be learned from the decisions of the House of Lords of the United Kingdom. In the seminal case of Reynolds versus Times Newspapers [2001] 2 AC 127, the House of Lords had the occasion to rule on this matter. In this case, the plaintiff Albert Reynolds [a former Prime Minister of Ireland] filed an action for damages for defamatory statements in an article published by the Sunday Times asserting that the words in the article, in their natural and ordinary meaning were meant and were understood to mean that he had deliberately and dishonestly misled the Dail [the Irish Parliament] and his cabinet colleagues in connection with the appointment of the then Attorney-General that led to the government's collapse. In this case, the defendants failed to record and include the plaintiff's own account of his conduct given to the Dail in which he denied any misinformation. He won in the trial court and in the eventual appeal to the House of Lords, the defendants argued that the House of Lords must recognize a new category of qualified privilege defence in all circumstances to the media reporting of political issues.

In its majority decision the House of Lords through Lord Nicholls of Birkenhead denied the defendant newspaper's argument as without merit, stating that it would not be an appropriate remedy. In the course of this decision, the House of Lords suggest a non-exhaustive guideline on how a United Kingdom court may approach a similar case [thus prescribing how a responsible journalist should behave in the conduct of his professional affairs]. The House declares that depending on the circumstances, the matter to be taken into account are, and I quote:

"1.The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true;

2.The nature of the information, and the extent to which the subject matter is a matter of public concern;

3.The source of the information. Some informants have no direct knowledge of the events.Some have their own axes to grind, or are being paid for their stories;

4. The steps taken to verify the information;

5. The status of the information.The allegations may have already been the subject of an investigation which commands respect;

6. The urgency of the matter.News is often a perishable commodity;

7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary;

8. Whether the article contained the gist of the plaintiff's side of the story;

9. The tone of the article. A newspaper can raise questions or call for an investigation. It need mot adopt allegations as statement of fact;

10. The circumstances of the publication including the timing."

While this decision comes from a common law country, there is no reason why the Philippine media, both Philippine Houses and the Courts should not reflect on this. My point is the intended Bills are not necessary to protect a person's privacy or reputation. The Philippines have sufficient laws to measure this task. The affected person can sue for libel or damages if he believed his reputation has been besmirched or privacy violated. What the journalists should do is to police its own ranks and weed out the unscrupulous ones who would hastily rush for the sake of a "scoop" and sensationalism publish about something with the barest of materials to deal with. Both Bills are not the magical cure-all to the disease of irresponsible journalism. Should they become law, that law would be an unjustifiable intrusion to press freedom and susceptible of a legal challenge on the issue about its constitutionality.

The freedom of the press does not gleefully embrace in its shield of protection the publication of defamatory statements. Aggrieved persons can seek proper redress of their grievances against the media through an appropriate criminal action for libel or a civil action for damages. The need for a strong, vigilant, and vigorous press to keep the public informed is one of the foundations of any democracy. The Filipino people must oppose the passage of House Bill No. 3386 and Senate Bill 2150 as unjustifiable intrusions to press freedom. With the unresolved extrajudicial killings of media persons on the rise, the freedom of the press has never been in such danger since the dark days of martial law.

The The Japan-Philippine Economic Partnership Agreement [JPEPA] and the Issue on Hazardous Waste

Classes in my GDL course have commenced and I am already in the midst of a forest of books and cases. Still the desire to write about the JPEPA and the issue on hazardous waste is one I could no longer ignore. So like the poor mariner heeding the siren's call, I foray headlong into the rocks and crevices of the bilateral contract we call the JPEPA.

Environmental Law is a field of law closest to my heart and soul. In fact, in my LLM degree at University College London, one of my favorite courses was environmental law.

There have been a plethora of concerns about the JPEPA treaty- sovereignty, bilateral trade, and environmental issues abound. Undoubtedly, once ratified by the Philippine Senate, the treaty would introduce far reaching consequences to the Philippines.

The issue on the possible transport of waste to the Philippines from Japan is one of the thorny topics of debate. In the context of environmental concern, opponents of the treaty fear the entry into the Philippines of scrap and waste that may include hazardous or nuclear waste from Japan's health and industrial institutions under Article 29 (2) (j) of the treaty. This fear is well founded.

Proponents of the treaty argue that there are sufficient Philippine environmental laws that prevent such a possibility. On its face, they have a point. On the domestic front, Republic Act No. 6969 [ Toxic Substances and Hazardous and Nuclear Wastes Control Act 1990] prohibits the entry, transit or storage and disposal of hazardous and nuclear waste in Philippine territories. Republic Act 8749 [The Clean Air Act] and Republic Act 4053 [ Prohibits the entry of used clothing and used rags] are also relevant. On the international level, the Philippines is bound by the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal on 21 October 1993. Japan is also bound by the Basel Convention by its accession to the treaty on 17 September 1993.

The terms of the Basel Convention are the most relevant to the provisions of the JPEPA Bilateral Treaty considering its international stature and Philippine domestic environmental laws are not binding to Japan.

Potential problems may arise pertaining to the definition of waste or hazardous waste. Both parties may have different definitions in their respective domestic jurisdictions and I may be wrong but I could not find any definition in the treaty [ 153 pages long] itself. Moreover, how do the parties of the treaty determine the percentage of a mixed waste and scrap transported items that would classify the load as waste or scrap? In other words, if a pallet of transported goods from Japan contains a mixed scrap and hazardous waste load, how would the parties determine whether to classify it as a scrap or hazardous waste load?

In the event of conflict between the definitions of hazardous waste or its percentage composition in a load adopted under the treaty and domestic definition in Philippine law, is there a need to amend or repeal the latter to conform with the definition under the treaty?

It is submitted that under international law, the provisions of the treaty will prevail over the domestic law pursuant to the pacta sunt servanda principle. But there is really no need to amend the conflicting domestic laws. Take the case of the United Kingdom. In the UK case of Factortame [No 2] a UK domestic law was in conflict with European Union [EU] law on discrimination. The House of Lords "disapplied" the offending provision of domestic law instead of repealing it and enforced the international EU law. In this wise, United Kingdom Parliamentary Sovereignty is preserved while adhering to its international obligations.

If both parties could not agree under the treaty as to disposal of scrap and waste, recourse to the Basel Convention would resolve the disagreement. The Philippines and Japan are both parties to the Convention thus binding themselves to its terms. Waste and Hazardous Waste are defined in Articles 1 and 2. More importantly, the transboundary movement of hazardous waste is undertaken in compliance with the principle of "Prior Informed Consent"- The state party of destination must first be informed of the proposed hazardous waste movement and its consent to the transport be granted before the movement is undertaken. In other words, the Philippine state's prior informed consent must first be obtained by Japan before any transboundary of hazardous waste to the Philippines would even commence.

However, laws and conventions are only effective depending on the political will of the state. Granting that the Arroyo government has the political "balls" to be nonsubservient to illegal demands by Japan, the Basel Convention prevents Japan from dumping hazardous waste into any inch of Philippine territory without the consent of the Philippine government. Hence, the fear that the Philippines could become a dumping ground for hazardous waste from Japan is a creation borne of being uninformed. It could only happen if the Philippine government surrenders its Constitutional obligation and responsibility to protect the state from environmental destruction and bow down to economic and trade pressures from Japan.

But then that would be another story.....

An Apology too Late: Religion and Science in Conflict?

I had the chance to browse through a number of newspapers last Sunday. On page 5 of the 14 September 2008 edition of the newspaper, "The Mail on Sunday", there's an article about the Church of England's decision to officially apologize to Charles Darwin for its opposition and misunderstanding of his Theory of Evolution. For the uninitiated, Charles Darwin argued in his Theory of Evolution that man [ or should I say, a human being, in this politically correct world] was descended from the apes. Some of Darwin's descendants branded this act as ludicrous and questioned the motivation of the Church. Why, for goodness sake, it took the Church 126 years more or less, to admit it is wrong in its opposition to the Evolution Theory simply beggar's belief.

Surely, there must be other reasons for this turnaround, utilitarian or otherwise.

In respect to science, it is not an isolated incident that the scholasticism that held power in the Church collided with empirical science and humanism. Galileo Galilei was put to trial in 1633 by the Vatican due to his scientific declaration that the earth revolves around the sun.

On its face, science and scholasticism in the Church are at odds with each other. Empirical data against religious faith. But such is the dichotomy of life don't you think? In as much as their light and dark, heat and cold, male and female, day and night, is religion really an opposite of science? Is there really an irreconcilable incompatibility between the two?

Ancient religious texts and religious mystics speak about things that are now being empirically proven through science. For example, it is long since "known" that some eastern religions talk of matter as a form of energy waves that human vision can see long before the birth of modern science. This concept has been proven to be true by quantum physics.

Perhaps, in the future of an enlightened world, the dawn of truth will arise. Parting forever the veil of sevenfold from human eyes, to gaze upon that singular truth- that science and religion are but different manifestations of the same reality.

Of Dogs and Gas Chambers

It was reported in the Sunstar newspaper website Cagayan de Oro [09 September edition] the termination of stray dogs by gassing them in chambers in the city pound. For a man's best friend to suffer such a painful death is an abomination. It should not be permitted. It is an inhumane way to terminate a dog's life. Is this how we repay all those countless moments when man's best friend makes him happy?

The city veterinarian claims that financial constraints- an injection putting a stray dog to sleep costs a lot of money. But this lack of budget could not justify by any means the way the stray dogs were killed in the city. The veterinarian even admitted it takes 40 long minutes for the dogs to die by carbon monoxide poisoning!

Dogs are renown for their loyalty. One goes home and find his dog at his doorstep, wagging its tail, and welcoming his patron with no other demands except perhaps a pat on its head. They guard our houses, act as guide dogs for the blind, and do other things that impact on the human life.Is this how we reward their loyalty to the human race?

My sister and I had several dogs when we were growing up. It was one way our parents enabled us to learn about actual responsibility.

In the United Kingdom, owning a dog entails a lot more responsibility. A person walking his dog or dogs is a common sight along its roads and vast parks during any time of the year. Some dog owners even hire professional dog walkers to walk their dogs. The dog walkers even bring with them plastic bags to pick up their dog poo to dispose the excrement properly. Once I saw a well-dressed lady picking up after his dog pooed. A scene like that you will never see in the Philippines. In my years residing in this country, I have never seen a stray dog.

The United Kingdom Royal Society for the Prevention of Cruelty to Animals [RSPCA] has been very active in its mandate to protect all animals with the participation of the people. It has a dedicated workforce that is worthy of admiration. I should know because of an incident. My wife and I were just settling in the house we bought. The house has a sizable backyard abutting an open space with mature trees and a number of squirrels in population. One bright summer afternoon, I heard a commotion in the backyard while making tea in the kitchen. I looked outside through the window and saw a grey squirrel lying on an elevated portion of the ground adjacent to the fence. I went out and approached the squirrel and found it was badly injured. I called the RSPCA and in fifteen minutes or so, an RSPCA officer knocked on our main door to take control of the situation. He softly and cautiously held the squirrel in his hands and placed it inside a box and took the box away. I am pretty sure that the squirrel would die eventually due to its serious injuries [maybe caused from a fight with another squirrel or from an attack by tomcats regularly prowling the area] but the point is the way the RSPCA speedily addressed my concern.

Filipinos have a lot of catching up to do in regard to treating our animals in life or in death. The creation of a more active workforce to implement animal welfare laws in our country and the education of our people about responsible animal ownership would be huge steps in the right direction.

Executive Privilege and the need for an ASEAN Court of Human Rights

In a decision dated 04 September 2008, the Philippine Supreme Court en banc, denied the Motion for Reconsideration filed by the Respondents in the case Romulo Neri v Senate Committee on Accountability, et al., G.R No. 180643. The Supreme Court upheld the argument of the petitioner Neri regarding Executive Privilege, thus giving him legal basis not to answer specific questions raised during the respondents' Senate committee hearing involving the allegedly anomalous government contract with a Chinese company Zhong Xing Telecommunications Equipment [ZTE] Limited for a national broadband service in the Philippines. Thus speak the highest court of the land.

As it always had been in these islands we call our beloved Philippines, the decision elicited varying degrees of reactions from lawyers and cause-oriented groups, among others, ranging from utter disbelief and vehement frustration to complete resignation. Some writers even appear to have derided the majesty and impartiality of the Justices of the Supreme Court by alluding to the fact that the justices who upheld petitioner's claim for executive privilege in the majority decision were appointees of the President Arroyo to the court, conveniently excluding the other fact that some of those who dissented to the majority decision were also appointed to the highest court by the same president.

Since classes in the graduate schools in the UK are yet less than two weeks away, I had the time, occasion and enthusiasm to read the full account of the main case decision as well as the decision on the motion for reconsideration. A lot of issues were involved in the reports but I must say I thoroughly enjoyed the experience.

And let me gingerly jump with trepidation into the cauldron of opinions about this matter.

First, the contract for national broadband network project negotiated by the Philippine government and the ZTE Ltd. is in the nature of a private contract considering that ZTE Ltd. is a publicly listed company. In other words, the negotiation was not between two sovereign states but between a government and a private company. Is it not a basic principle in Philippine constitutional law that a government takes on the mantle of a private individual when it enters into binding private contracts with private entities such as ZTE Ltd? Should executive privilege apply in this context especially with allegations of impropriety amounting to criminal acts?

But then, if indeed there were no underhanded negotiations in the botched broadband deal, why hide behind the skirt of the privilege? Why refuse open disclosure? It would have improved the otherwise battered image of the presidency and regain precious ground in the battle for the people's rapidly diminishing trust in the current dispensation and its leaders. All it does now is to fuel the smoldering ambers of suspicions and insinuations that something "fishy" indeed happened and only recourse to technical defences could exculpate responsible individuals from the bludgeoning hammer of truth.

Secondly, the three questions squarely raised by the Senate committee that led to the issue of executive privilege are, with due respect, a bit cheeky. It was like "taking the bait to the quarry". The motive to connect the president's office to the allegations of impropriety was all too obvious and reckless that any senior government official asked the same questions would wantonly shout, "mother!" and hide behind the shield of Executive Privilege. Incidentally, the Court categorically states the case was not about the right of the people to a full disclosure of public information but the right of the respondent committee to obtain information for the purpose of legislation.

Would the issue in this case be decided in the same way if instead of the Senate a taxpayer files a petition for the full disclosure of the facts surrounding the contract on the constitutional right to access to public information?

A petition for the disclosure of the circumstances confounding the issues founded on human rights would certainly further human rights jurisprudence in the country and test the waters as it were.

Executive Privilege draws its breath of life from the Doctrine of Separation of Powers in Constitutional Law. Derived from United States jurisprudence, it is a right claimed by the President of the United States and other officials of the executive branch of the government to withhold from Congress, the courts or individuals, information that has been requested or subpoenaed. It is also invoked to prevent executive employees or officials from testifying in Congressional hearings. The privilege was adopted and applied in Philippine jurisprudence in several landmark cases.

But is the concept of Executive Privilege absolute? I dare submit a position- that the answer depends on the kind of Supreme Court Justices holding court and deliberating on the issue. It is a question that appeals not only to their legal erudition but also to their individual conscience.

Situations like this where a decision of the Supreme Court leaves a bitter taste in the mouth makes more pronounced the need for an ASEAN Court of Human Rights. The ASEAN states are way behind other regions of the world in regard to human rights development and enforcement. In Europe, the Americas, and Africa already exist regional conventions on human rights providing an avenue for disgruntled parties to appeal decisions of state courts.

There have been several endeavours purposely to create such a convention. The Working Group for an ASEAN Rights Mechanism is a very good example. But there still is a lot of work to do.

To Sheathe or To Unsheathe: Much Ado about Condoms

There is much raging and gnashing of teeth, all about condoms, in the internet editions of Philippine newspapers and tabloids. How a plastic tubing that could even be used as birthday baloons and unguided water rockets elicit such frenetic and vehement exchange of comments has been mindboggling. It has been like a comedy of errors. Seriously....

Roman Catholic Bishops have strongly opposed the Philippine government's plan to distribute or easily make accessible condoms as well as dessiminate information of its use, among others, to combat the spread of AIDS causing HIV. The Bishops maintain this policy as one subterfuge for the ultimate government aim of population control [ The Filipinos, for all our peculiarities, stay true to the biblical blessing, " Go to the world and multiply.."]. That a condom's use in preventing AIDS causing HIV or other sexually spread diseases has not been substantiated by medical research as 100 per cent effective. The Church believes that the best way to avoid HIV/AIDS is abstinence from sex, behavioural change and monogamous partnership of men and women. Bless them....


Begrudgingly or not, the Church indeed has a sensible logic in its two-thousand year plus argument, dont you think? Freudian thought posits the desire for sexual pleasure as one of the oldest and most basic of urges that all humans feel. But if a male person thrust and fire his manhood indiscriminately, then repose his sword in many a naughty different scabbard, it is not rocket science, I dare say, that the risk of HIV/AIDS increase exponentially.


Indeed this government policy may encourage promiscuity among the younger generation and more frequent immoral adventures among the mature ones.


Incidentally, information about condom use is readily available in the internet and condoms could be bought in any reputable drugstore anyway, though buyers would often feel squeamish when buying condoms. So why the big fuss about it? If truth be told, there are a lot of Roman Catholics that have been using it already.


For me, this controversy between the Church and the government is an issue about human rights, i.e. the right to access to information in order to arrive at an informed decision, and religious dogma.


It is every person's human right to receive and access information relevant to an informed and educated decision-making. Even God, would most certainly agree. Isn't it that the biblical God made man [ or should I say, "person", in this politically correct world lest I will earn the righteous indignation of well-meaning feminists!] in His image and has given him a free will? So why would the Church censor information about condoms and restrain its faithful from deciding for themselves to use a condom or not?


I must say let it be done with. Let the faithful gain access to information about condoms. Let the faithful make an informed decision whether to use a condom or not. Wouldn't it strengthen the moral fibers of the Church if the faithful refuse to use condoms after being informed about its uses? The Church is a champion of human rights, is it not? So why oppose the exercise of such right?


The Roman Catholic Church in the Philippines must realize that it must adapt to changing norms of the present times or risk becoming irrelevant. The States of Italy, where the seat of the Roman Catholic Church in the Vatican is situated, and Spain allow abortion under specific circumstances are prime examples. The Church in these countries do not interfere with State affairs as much as the Philippine Catholic Church. As one exasperated colleague commented, " If the Philippine Catholic Church meddle with the Philippine State policies, let it pay taxes like secular companies!".


Make no mistake about it. I was baptized and brought up a Roman Catholic. I was a church acolyte in my hometown during my younger years. My parents are "cerrado" romano catolicos. I have a Bible on my bedside table that I consistently read while waiting to pass through sleep's dark and silent gate every night. And I have a firm belief that the Filipino people are capable of making informed decisions without fear of eternal damnation.

Abortion in the Philippines: To do or not to do?

The Reproductive Health Care Act [HB 4110] has been vigorously opposed by the Church and pro-life groups alleging that it may be a backdoor attempt to legalize abortion in the Philippines. I have acquired a copy of the HB 4110 through the internet and after reading it, I could not seem to find an outright provision expressly declaring that abortion will be legalized.However, certain provisions in the bill such as Sections 3(c) and 3(d) on reproductive rights and reproductive health, respectively; Section 4 (a) (2) on the right to make reproductive decisions; and Section 5 (a) (3) on the prevention and management of abortion could somehow be interpreted as giving the Filipino woman the choice to undergo abortion without fear of prosecution.


The proposed Bill is a human rights based legislation. Pro-choice proponents would certainly proclaim it to be a huge move forward for human rights legislation in the country. But is it?


The Philippine Revised Penal Code (R.A. No. 3815 as Amended) prohibits abortion in Articles 256- 259. The 1987 Constitution (Section 5 Article II and Section 1 Article III) protects the right to life. The Right to Life is the most fundamental of human rights. It is the spring from which flow forth all other human rights. The Constitution protects the unborn from the moment of "conception" according to some quarters. But the question remains. At what time do we legally reckon the moment of conception? Is it during the formation of the human embryo or when it has become a human fetus? Who has the legal standing to represent the unborn? When can we say the unborn has legal personality?


United Kingdom abortion law is enlightening. The 1967 Abortion Act mandates that abortion of a fetus may be allowed for up to 24 weeks of pregnancy provided two doctors must decide that the risk to a woman’s physical or mental health or the risk to her child(ren)’s physical or mental health will be greater if she continues with the pregnancy than if she ends it. However, there is no time limit on abortion where two doctors agree that a woman’s health or life is gravely threatened by continuing with the pregnancy or that the fetus is likely to be born with severe physical or mental abnormalities. Further, in the event that an abortion must be performed as a matter of medical emergency a second doctor’s agreement does not need to be sought. The consent of the woman's partner, her own doctor, or her family in the induced abortion of a fetus under the foregoing legal criteria is not necessary.

Technically, abortion is not really allowed in the United Kingdom for the Act only provides legal defences for those doing it. Incidentally there had been a move to lower the upper limit of 24 weeks but it was defeated in the House of Commons.


Aside from legal grounds, pro-life proponents rely on moral and religious arguments in opposing an abortion law. Pro-choice groups on the other hand assert a pregnant woman's right to choose and make a decision for herself to terminate or continue her pregnancy.

A lot had been said, done, talked and written by these groups on the opposite sides of this great divide.

But what about the human embryo? The human fetus? Does a human embryo or a human fetus have human rights before being born? Could a human embryo or a human fetus be fit to be a subject of legal relations? For me, these are the questions crucial to the equation.....