Monday, February 27, 2006

State takeover of public utility

President Gloria Macapagal-Arroyo issued proclamation No. 1017 which declared a state of national emergency on February 24, 2006.
One of the main constitutional bases in issuing the proclamation is Section 17 Article XII, which is the chapter on National Economy and Patrimony. It states:

"Sec. 17. In times of national edmergency, when the public interest so requires, the state may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest."

Sedition & Inciting to Sedition

The buzz words by law enforcement officials today are sedition and inciting to sedition.
Sedition and inciting to sedition are two separate felonies that are punishable under our Revised Penal Code.
The felony of Sedition is one ofthe crimes against the public order and is can be found in Article 139 of the Revised Penal Code. It states:
"Art. 139. Sedition - How committed. The crime of sedition is 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 therefrom 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 person 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."
Inciting to Sedition, meanwhile is a different felony under Article 142 of the Revised Penal Code:
"Art. 142. Inciting to sedition. - The penalty of prision correccional in its maximum period and fine not exceeding 2,000 pesos shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by menas of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the Philippines, or any of the duly constituted authorities thereof, which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people agasint the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices."

Friday, February 24, 2006

Car insurance fraud II

Let us discuss one of the simplest form of car insurance fraud.
In this type of fraud, this is a conspiracy between the car repair shop and the car owner.
The car owner meets an accident. He bumped a wall resulting in damage to the front bumper and perhaps the fender.
The car owner then brings it to the car repair shop.
Some unscrupulous car repair shops will intentionally cause more damage to some parts of the car.
For example, instead of just the bumper and the fender being damaged, the car repair shop will intentionally damage the headlights. The car owner will not object to this, thinking that this is to his advantage because he will get a new set of headlights, charge to the insurance company.
So, when a claim is made to the insurance company, it will not be just the bumper and fenders claimed for indemnification, but also the headlights which was not actually destroyed as a result of the accident.
Remember that car insurance, like any insurance is only an indemnification resulting from a peril.
Insurance is there to restore the insured to the same condition prior to the peril.
Insurance is not a scheme to enrich the insured.
Insurance companies have their own meticulous and highly experienced in-house adjusters and evaluators.
These claims evaluators can easily smell an anomaly, when there is one.
The claims evaluators will closely re-trace the point of impact and can determine which parts are affected for a particular impact.
They know which damaged parts are not accident-related, therefore not compensable.

Wednesday, February 22, 2006

Fraud in car insurance claims I

Just about anything in car insurance claims is prone to fraud.
Having handled car insurance cases for a number of years, I just get amused sometimes of the ingenuity of these defrauders in making car insurance claims.
It is not unusual that car repair shops are in cahoots with the policyholders themselves.
Worse, some may be in cahoots with crooks in the Land Transportation Office.
First, we need to discuss briefly the nature of the car insurance business
A car owner will have to insure his unit with a non-life insurance company.
This is to protect him, in the event of an unknown peril. If a car owner meets an accident, if his car is covered by insurance, then the insurance company will indemnify the owner, meaning the insurance company will pay the costs of repairing the car and restoring it to its condition previous to the accident.
In this simple example, it would be called “own-damage” claim.
Third party damage: A car owner will also insure his unit against third party property damage.
In other words, if a car will cause damage to somebody else’s property, naturally, he will have to pay the owner of the damaged property.
If the car is insured against third party property damage, the insurance company will shoulder the costs
There is also an insurance against third party injury.
If a car owner will meet an accident and causes injury to a third party, like bumping a pedestrian, then some form of payment will have to be given to the injured third party.
If the car is insured against third party injury, then the insurance company will indemnify for the damaged caused upon the third party.
What usually happens is that a car owned will just procure a “comprehensive” insurance on his car or vehicle.
In such case, he is covered by insurance for all the above perils, plus coverage against theft.

Sunday, February 19, 2006

Podcasting

I would like to podcast soon. Podcasting is the way to go. If blogging is to be able to express through scribbling, podcasting is expressing using audio facilities. Podcasting means you create your own radio program.

I am learning the ropes. I have gotten free tutorials from the internet as there are kind people who share their knowhow in podcasting.

There is one from New York who gives a step by step instruction into podcasting. He makes recommendations on what necessary facilities to use. So in a few days, I hope to be able to podcast.

Tuesday, February 14, 2006

Converting Pagemaker to PDF

I take charge of publishing the the website edition of The Negros Chronicle (www.negroschronicle.com) the weekly community paper that my father Ely publishes, circulated in Negros Oriental province.
From its print edition, I get the pagemaker program every Saturday, and convert it to pdf for uploading in the website.
Unfortunately, I had tremendous problems in converting from pagemaker to pdf.
By the way pdf is short for portable document format. Don't ask me for a definition of pdf because its so complicated. I can't understand it myself.
I would just say it is one type of file format that you view on your computer. The text or images that have been converted to PDF files cannot be altered. That's the whole import of PDF.
For instance, if you email a file in Word form, when it reaches the recipient, the file can be altered.
But if you convert the word file to pdf before sending it by email, when it reaches the recipient, the converted file cannot be altered/edited anymore.
So if you email your resume for instance, convert the Word file first to PDF. Don't send the Word file.
Anyway, my laptop has pagemaker 7.0 and adobe acrobat 6.0 professional, relatively the latest versions of each programs.
The problem is, it won't convert from pagemaker 7.0 to pdf (adobe acrobate 6.0 professional). It always results in error.
My desk top computer meanwhile, can convert. I surfed the net and thankfully, someone gave a procedure of converting from pagemaker to pdf via postcript files. That's very technical, huh? Don't worry, I don't even understand it. I just operate it.
So for a long time, I had to convert from pagemaker to pdf only in my desktop.
That was until just more than a week ago.
I never gave up surfing the net to find the solution to my laptop's predicament. Why wouldn't my laptop convert from pagemaker 7.0 to pdf 6.0 professional?
The solution I learned (advice from adobe acrobat themselves), was to update my pagemaker 7.0 to pagemaker 7.1a.
First, I updated my pagemaker to 7.1. And then I updated it to pagemaker 7.1a.
After updating, I was amazed! The pagemaker converted to adobe acrobate 6.0 professional in an instant!
I no longer pass through postcript files in going to pdf, as I did in my desktop.
That's a relief.

Monday, February 13, 2006

Newspaper's most difficult job

What is the most difficult job in community newspapering?
The most rewarding experience in working in the community press is that one gets to experience practically all aspects of the operations.
It is different from working in a national newspaper because it is more compartmentalized.
Working in a community newspaper one does everything. It is not surprising if the editor is the news gatherer, the news writer, the proofreader, the layout editor, the marketing executive, the sales executive, even the printer.
In my boyhood I was exposed to community newspaper business. So I got to experience the different types of jobs in this business.
Long before I even landed in a desk job of news transcriber, I worked the manual labor.
The newspaper was then printed through letterpress. Desktop publishing was a yet a thing of the future at that time.
I was a newsboy, I folded the papers ready for letterpress impression. I knew how to operate the Minerva.
The Minerva is a brand name of what perhaps is the equivalent now of the Hewlett Packard laser printer.
The Minerva was a monster of a machine.
Although operating the Minerva was a dangerous job, for me it wasn’t the most difficult.
The most difficult job in the community newspaper operation is the delivery of the paper to the homes of subscribers.
There were subscribers of our newspaper to whom we had to deliver personally.
As a teenager, I took on this job.
When everything was printed at dawn of Sunday, the delivery begins after all the pages were “inserted” (manually).
I rode in a motorcycle, and together with a companion we started the delivery at 4 a.m.
This job perhaps is nothing different from delivering the bread, or delivering the mails to the homes of recipients or addressees.
This is a very tiresome job. It is physically demanding. It was because we had to deliver the newspapers to subscribers from dawn, which was very cold, until after noontime, which was very hot.
I had to be directly exposed to sunlight most of the time. I had to wear sweaters even under the scorching heat just to protect myself from direct sun exposure. I wore a baseball cap.
At the end of the day, I would feel really exhausted. This job will really test the limits.
I feel for people whose job is having to be exposed to direct sunlight.
Newsboys, the mail men, delivery boys, ice cream vendors, or evenperhaps the Mormons…they have one of the most difficult jobs.
If you work inside an office in a building, away from the punishing heat, be thankful.
You have no reason to complain.

Newsboy days

At age five, I sold newspapers. But it was only a single newspaper I sold, The Negros Chronicle which was published by my father.

The Negros Chronicle first hit the streets less than a year after the declaration of martial law. The Chronicle's maiden issue was on June 12, 1973.

When martial law was declared, Marcos closed down all media. A little later, the government allowed newspapers back into circulation. In each province, one newspaper was allowed to publish.

From being jobless, my father suddenly had a source of income to feed his family when he was granted a permit to publish a weekly community paper. During the days of martial law, one had to get a government permit to publish a newspaper.

We lived in a two-bedroom apartment along Silliman Avenue. If I am not mistaken, the monthly rent at that time was P250. It was right at the heart of Dumaguete City's commercial district, which was at that time, not really commerical.

Dumaguete was a sleeping city, but was largely known because of Silliman University.
It was not a long walk for me and several other kids to sell the newspaper. Just a few meters away, we were already at the corner of Silliman Avenue and Alfonso XII Street, the city's main intersection.

There, we sold newspapers. We were young salesmen. Kids from the neighborhood also sold newspaper like us.

The newspaper was sold at fifteen centavos. Those days, one centavo coins were legal tender.

In selling newspapers, I learned that I must prominently display the banner headline so potential buyers can see what the week's main story was. With that, I could perhaps close a sale.

At five years old, my selling newspapers on the streets was more of a training.
At the end of the day, newspaper is a business as it is a vocation.
To make the paper survive, one had to know how to sell the newspaper.
The most basic way to sell a newspaper, is to sell them on the streets.

Because of my early experience as a newsboy, I am always concious that newsboys are a vital component of a newspaper's operations.

Sunday, February 12, 2006

The Voice of America: its impact on my young life

The first time I learned about the Voice of America (VoA), it was a source of news around the world. I was to monitor the Voice of America, record the news, and transcribe it. At a young age of thirteen, that was what the Voice of America was about.
I had to use the "short-wave" band of a more sophisticated radio to listen to VoA. It wasn't on the AM band.
So before I was even taught transcription work, I had to learn to properly tune the radio to VoA. If not tuned properly, one would hear shrill mono-sound that would warp even with the slightest and finest move I make on the tuner whether clockwise or counter clockwise. Tuning to the VoA was always a "delicate" affair for me, I remember.
When I listened to VoA, everything else in my surroundings had to be quiet. Any other sound was a distraction.
It was an age when access to television---much less t.v. news---was sorely limited. The Philippines was under a dictatorship, and everything was controlled by the government. In the province, virtually there was no t.v. to tune in.
I was instructed to record the Voice of America "Special English" version which broadcast every 8:30 p.m. This would used be for transcription.
The Special English news was delivered turtle-paced. It was as if the newscaster had taken a sleeping pill. But actually, it was broadcast to countries where English wasn't the main language facility.
Every night I tuned in to VoA I began to realize it wasn't just a material where news is gathered, monitored and transcribed.
Sometimes, the Voice of America would broadcast news about the Philippines. It was fresh. The news was unlike the regular news from the government Philppine News Agency. Even as a boy, I could already tell objective news from heavily slanted news.
I listened to objective news about the Philippines from the Voice of America.
The Manila radio stations couldn't be heard in our province. There was "Newswatch" of the government's Channel 9 with Harry Gasser as the newsreader every 7 o'clock. The news stories were about the beauty of the Philippines. You watch the news and you feel like there was nothing wrong in the country. Everything was rosy. That was how it was under an era of repression.
The news coming from the Voice of America was also intended for consumption in repressed countries that longed for free information.
Aside from the Philippines, there were countries in Asia that were (still are) not under deomocratic governments like China, Vietnam, North Korea.
It was the VoA that delivered news as it should be.
The Voice of America is the Voice of Freedom in the Pacific.
My father had a friend Max Abellaneda He was also a "media-man" in terms of height.
Max listened to nothing else but the VoA. This man was updated of the latest political developments around the world.
Those were the early days of the Reagan era. And the mortal enemy of the U.S. was the Soviet Union.
In many ocassions, uncle Max gave us scoops because he practically listended to VoA 24/7. In this sense, Max was a true media man.
Nowadays, I do not tune in to VoA as much, mainly because of the more accessible international news sources like CNN and Fox News.
But still I switch the television to the VoA channel.
And when I do, it brings back a lot of memories of my younger days.

My first desk job: a news transcriber

As a little boy, I grew up when the Philippines was under the dictatorship of Ferdinand E. Marcos. I do not remember much of martial law. It was lifted in 1981, but Marcos had iron clad control of practically all vital media institions in the country.
I grew up in media. My grandfather set up one of the country's oldest community papers in Bohol province. It has chronicled Bohol's history since 1956, fifty golden years ago.
My father set up what would be the second-generation media outfit in Negros Oriental. The Negros Chronicle was established in 1973. It branched out to the airlances in 1980 by opening the pioneer FM station in the province.
For the community media outfits, other than local news, information depended on those fed in Manila. Most of the time it was controlled by the Marcos government.
I could not discern this of course at that time as I was only a fresh teenager. But now that I am in my mid-thirties, I can recall and see the vast distinction the reportage of today's media outfits and those under Marcos.
I was exposed to many facets of news ---news gathering, news monitoring, news writing, news transcription ---at a very early age.
I was only thirteen when I was given my first formal job as a news transcriber (or transcriptionist?) for my father's newspaper and radio. But we called ourselves "news transcribers".
I transcribed the news for many years.
During those days, the main tools of a transcriber were a typewriter and a tape recorder and a radio. It wasn't just any tape recorder. It was this heavy duty Panasonic recorder/player that had a sturdy facility of 'rewind' and 'forward' buttons, that had no built in radio receiver. It was rectangular in shape, perhaps the size of a cell phone box. I remember we had a black tape recorder and an Olympia typwriter.
One of the best trainings in news transcription is the news from the Voice of America or VoA (I will write my "VoA experience" in a separate article).
It had a special edition where news was delivered in "Special English."
Special English news was delivered slower by the newscaster. It was meant to be heard by people in countries which really did not have English as the main language. The VoA's special Engligh version was good for neophytes in transcription.
I would record the "special English" version of the VoA every 8:30 p.m. At 9:00 p.m. I would begin pounding the rickety trypewriter.
I quickly became very fast with the typewriter.
Then later I could transcribe the English news delivered in regular-speed English.
After graduating in transcription, I moved on to news translation.
When the new government of Cory Aquino took over, the material for our national news was Noli De Castro's TV Patrol.which was delivered in Tagalog.
So it became a different process altogether.
I would play a portion of Noli De Castro's news. Then I would stop the tape recorder. I would embark on a thought process of translating his Tagalog news in my mind. When I begin typing, it would already be my English translation of Noli's news.
This was a much slower process than ordinary transcription. But years of doing it improved my skills.
Another major source of national news at that time were the Cebu radio stations like DYRC and DYHP. But this was delivered in Visayan language.
I would have to translate the Visayan news delivery before typing the substance in English.
I became quite good a transcriber that I could already transcribe the VoA news almost without pressing the 'stop' and 'rewind' buttons anymore, particularly the special English news editions.
I was very thankful I learned this skill. It has been very helpful in my required typing classes and later in my career.
I became very fast in typewriting that I was exempted in my college typing class.
I would feel embarrassed in my typing class because my classmates would stare at how I used the typewriter.
Some of my classmates pressed the typewriter keys like they were trying to kill insects with their fingers.
Those tanscribing days I cannot forget. I now use the computer at work. But even as technology tools have advanced, the skills of yesterday are still as useful.

Saturday, February 11, 2006

Shield Law IX: The Editorial that sparked it

It was the editorial published in the defunct Manila Post on June 4, 1946 that sparked the move to enact a shield law in the Philippines to protect journalists from forced disclosures of the sources of their news reports.
Because it has historic value, the I will quote the editorial. I lifted this from the deliberations of the Senate of the First Republic on the proposed shield law (Senate Bill No. 6) since as of now, I haven't gotten hold of the best evidence: a copy of the June 4 1946 issue of Manila Post (yet).
I would not know how to get one, since the paper has long 'retired' or (permanently) "put to bed"---to use a newspaperman's lingo.
The editorial wrote:
"Two very recent instances familiar to Philippine newspaper readers reveal that even in this democratic sector of the globe a free press has not yet been fully realized. The staff of the Pacifican, army paper complained sometime ago of too much censorship. The other day a member of the Roxas cabinet "off limits" newsmen from his office because he could not stomach the criticisms against the President.
"The unforgetful public will recall that the 'back pay' Congress took offense at the well-intentioned criticism of the editor of this paper against the lawmaking body and wanted to investigate him. It will also be recalled that a few months ago a report of this paper was jailed for not complying with a Supreme Court magistrate's order that he divulge the source of his news. The reporter, true to the ideal of fearlessness to which this paper is voted and in consonance with a well-established journalistic canon, preferred incarceration to violation of the confidence reposed in him by his informant."
The paper may since have folded up, but it has left an indelible legacy to Philippine journalism. It was to make that bold initiative to shake the halls of Congress to enact an important piece of legislation that would serve to institutionalize the much needed protection for those dedicated to maintain the free flow of information to society.

How to hold the plaintiff hostage

The most frustrating part when one is counsel for the plaintiff is when the plaintiff is held hostage by the defense.
This comes about when the defendse will file all sorts of motions just to delay the proceedings.
The plaintiff becomes hostage because if the plainitff opposes the defense's motion, then naturally this would have to take time for the court to resolve.
This distracts the normal course of the proceedings.
This morning I tried to oppose a motion by the defense who filed a motion for leave to file an amended answer.
The judge began to lecture and said better not oppose it because if you do, then the proceedings will further be delayed.
Good point judge.
However, since what was scheduled this morning was for pre-trial, I suggested to the judge that since we are all interested in speedy proceedings, I will withdraw my opposition to the motion and the judge just there and then admit the answer. I further suggested that right after admitting the answer, we immediately proceed to pre trial today because anyway what was scheduled was for pre-trial and the plaintff was ready. Besides, the defense did not ask for a cancellation of the pre trial whe it filed the motion tfor leave to amend their answer.
The defense was quick to the draw and said, "your honor we still need to amend the pre-trial brief."
Well, the day ended when the judge just reset the pre trial to another date.
The plainitff will always be held hostage by the defense during the proceedings.
The plaintiff must always be prepared to counter the usual delaying techniques of the defense.

Thursday, February 09, 2006

Shield Law VIII: Privileged communication

It can be noted, curiously, that the proposed shield law first introduced in the Senate proceeded from the concept of "privileged communication". Of course the thrust was to promote the constitutional guarantee of press freedom.
Yet, Senator Vicente Y. Sotto, the author of Senate Bill No. 6 originally considered the shield law as proceeding from the realm of privileged communications, like those specifically enumerated in the rules of evidence.
In the bill's explanatory note, Senator Sotto sought to place "news reports or information among the privileged communications side by side with those given by the clients of an attorney or of a doctor, or to a priest in the confessional."
Senator Sotto, a lawyer, not surprisingly, patterned the bill from the privileged communications which under the rules of evidence, are not to allowed to be subjects of testimonies of witnesses.
Under the rules of evidence, certain witnesses are disqualified from testifying when the matter to be testified on were learned in confidence.
Under the rules of court, the following are disqualfied to testify by reason of privileged communications:
(1) the husband or wife cannot be examined without the consent of the other as to any communication received in confidence by one from the other during marriage;
(2) an attorney cannot, without the consent of his client, be examined as to any communication made by the client;
(3) a doctor cannot in a civil case, wihtout the consent of the patient, be examined as to any advice or treatment given or any information which may have been acquired while attending to the patient in a professional capacity;
(4) A minister or priest cannot, without the consent of the person making the confession be examined as to the matter confessed;
(5) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence.
Senate Bill No. 6 wished to add the journalist as among those who were disqualified to testify on matters learned in confidence from their sources when it was revealed in confidence.
The common denominator in disqulfiying witnesses in privilege communications is when the matter revealed from one person to the other was "confidential."
Thus the Philippine Shield Law derived its philosophy fromthe concept of "confidential information"
In addition, in the original Senate bill No. 6, the only exception from compelled disclosures is when the court so directed, for the public interest.
The fact that it was only the court (original proposal) that was empowered to order compelled revelations only shows that the concept was patterned after the provisions of the rules on evidence.
This is not so, in American state shield laws.
In many state shield laws in the U.S., the insulation of journalists from compelled revelations
is not necessarily based on privileged communications.
As a matter of fact, American state shield laws do not require that the information "be made in confidence" in order to insulate the newsman from compelled revelations.
The general rule in the United States is that a newsman (their laws say "covered person") cannot be compelled to reveal the source of his information, regardless of whether or not it was obtained in confidence.
I believe, the Philippine Shield Law can be modified and expanded by doing away with the concept of "privileged communications" or "confidential information."
I support the position that newsmen must be insulated from compelled disclosures regardless of whether or not the information was obtained in confidence.
The proposed amendment therfore, is to remove the phrase "which was related in confidence."
This would augur well to promoting a free and independent press.

Wednesday, February 08, 2006

Shield Law VII: How it all started

I found it interesting to dig into the history of the Philippine Shield Law.
Today I made some research, to find out how the Philippine Shield Law came to be.
It was the Philippine Press that pressed for the passage of a shield law to protect practicing journalists.
The defunct Manila Post published an editorial on its June 4, 1946 issue voicing the need to protect working journalists in the exercise of their profession. It was a protection "demanded by preponderant public opinion."
This prompted Senator Vicente Sotto to file Senate Bill No. 6 during the First Congress of the Republic.
Now I understand why the Philippine Shield Law is also known as the "Sotto Law".
The title of the Senate Bill No. 6 filed by Senator Sotto shows clearly the legal basis upon which the shield law originally relied---the concept of "privileged communications".
The title originally stated:
"An Act to exempt the publisher, editor or reporter of any publication from revealing the source of published news or information obtained in confidence."
The explanatory note of Senate Bill No. 6 states:
"We are simply putting in a crystallized form what seems to be demanded by preponderant public opinion. The Manila Post in its editorial of June 4 1946, has given us notice that the time has come that press freedom should be acknowledged in a positive manner by placing news-reports or information among the "privileged communications" side by side with those given by the clients of an attorney or of a doctor, or to a priest in the confessional. The importance of the role of press in our political set-up warrants such a privilege so that it can function free from fear or intimidation. Incidentally it will also infuse among the members of the fourth estate a sense of responsibility which they owe to their constituents, the public."

Snippet: Biography of Senator Vicente Y. Sotto :
Senator Vicente Sotto was born in Cebu City on April 18, 1877 to Marcelino Sotto and Pascuala Yap. He finished his secondary education at the Colegio de San Carlos in Cebu City. He obtained the degree of Bachelor of Laws and Judicial Science and passed the bar examinations in 1907. In 1902, Senator Sotto entered politics when he ran for the municipal councilorship of Cebu and won. In 1907, he was elected mayor despite his absence during the election owing to his involvement in a court battle caused by a kidnapping suit lodge against him by his opponent, and was forced to stay in Hongkong. After seven years in the Crown Colony, Senator Sotto decided to return to the country in 1914. In 1922, he was elected representative of the second district of Cebu until 1925. On November 1946, he ran for Senator and won and served as Chairman of the Senate Committee on Finance until 1950 (Source: www.senate.gov.ph )

Sunday, February 05, 2006

Shield Law VI: Constitutional bases

The Shield Law draws support from several provisions of the constitution.
The Shield Law promotes the constitutional guarantees to freedom of the press. The constitution states that no law shall be passed abridging freedom of the press.
The press must be free to publish without fear of subsequently having to face the prospects of being judicially sanctioned.
Part of the freedom of the press is the maintainance of the free flow of information.
In the process of news-gathering, the press must have an assurance that their work products, or even those materials used must generally be insulated against the undue intrusions by the state through the use of subpoenas.
Also, the constitution under Section 7 of Artilce III states that the right of the people to information on matters of public concern should be recognized.
The press must not be prevented from performing its role as a bridge in the flow of information which are of public concern.
Also, among the policies of the state is the express recognition of the vital role of communication and information in nation building (Sec. 24 Article II).
It is also submitted that in criminal processes, the shield law protects an accused's basic constitutional right to a fair trial.
This is illustrated by several state shield laws in the Untied States, and even the pending bill for a federal shield law which mandates that it is only in extreme circumnstances, when vital matters are not available from any other source that resort to materials gathered by the press can be made.
Having said this, our own shield law may be inadequate. Thus, the Philippine shield law must be reformed so that clear guidelines can be established as to when the state can subpoena materials from the press in pursuit of fair criminal prosecution.
Without such guidelines, the constitutional right of the accused to a fair trail will not be protected.

Thursday, February 02, 2006

Shield Law V: What about unpublished information?

The Philippine Shield Law seems to imply that the protection to newsmen from compelled revelations pertains only to the source of information which APPEARED IN THE PUBLICATION.
So the shield law applies in "published information"--information that appeared in the publicaiton.
What about "unpublished information"?
Can a lawyer in a case subpoena a newsman to produce materials like contents of audio tape recordings which were not used in the publication?
There is what is called "out-takes" in news parlance.
A lawyer can specifically ask the court to produce portions of the tape interview other than those that appeared in the publication.
The lawyer seking the subpoena can argue that what he is seeking is "unpublished information" which is outside the coverage of the Philippine shield law.
Can the newsman be compelled to produce "unpublished information"?
Yes, because Philippine law covers only those "appearing in said publication"
Let's take a look at the California shield law.
According to the Califronia shield law a newsman cannot be cited for contempt for "refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public."
The California shield law defines "unpublished information" as information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication.
I am in favor of expanding the Philippine shield law to include "unpublished information" as among those which newsmen cannot be compelled to reveal.
To limit the protection from compelled disclosure to published information defeats the purpose of the shield law and does not help in maintianing the "newsman-source privilege".

Shield Law IV: Resisting a subpoena

Journalists can resist a subpoena.
In Philippine law, the shield law still has to evolve. We do have a shield law, but it is seldom used.
If a newsman is served a subpoena and is required to bring to court matrials which are confidential in nature, he can resist the subpoena.
The procedure is to file a motion to "quash" the subpoena. In this motion the newsman must politely explain to the court that he cannot produce the material being sought as it is condiential in nature, and producing such materials may violate what I would call the "newsman-source confidence" pursuant to the shield law.
But the Philippine shield law is not absolute immunity from compelled revelations.
Let us remember that what cannot be revealed is the SOURCE of any news report or information APPEARING IN SAID PUBLICATION.
It is required that such information must have been related to the newsman IN CONFIDENCE.
Therefor, it the source of the information was not given in confidence, then a newsman can be required to produce such material.
Let me cite a common example. A suspect in a crime confesses to a newsman the crime the former committed. This was revealed while the suspect was detained and in full hearing view of other people like other detainees, and the police. This confession is tape-recorded. A news item appears in the newspaper.
Can the tape recording be subpoenaed for use as evidence for the prosecution?
It is obvious that the source of the infromation, the confessor himself did not confess in confidence.
Thus, such material can be required to be brought to court via a subpoena.
Because our shield law requires that such information must hav ebeen revealed in confidence, the law is quite restrictive.
For how much information really is gathered with an explicit agreement of confidence?
That is why I propose that we follow the American state shield laws which generally does not require that the communication be confidential before the shield law can be invoked.
Under US state shield laws, a newsman cannot be compelled to testify or produce any document, unless the court is convinced, AFTER A HEARING and giving the newsman an opportunity to be heard, that the party seeking to compel production of such testimony or document has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than the newsman himself.
I fully agree with this concept.
Using the newsman's materials as evidence (for the prosucution) must be the last resort. It should not be resorted to until all means to obtain such information have been exhasuted.
Newsman, by the nature of the profession, obtain infromation that are not normally obtainable by ordinary persons. This peculiar characteristic must be observed and respected.
In other words, the prosecution must not be too quick to subpoena a newsman in procuring evidence.
The proseuction must first obtain the evidence by other means.
Otherwise, we will be having lazy policemen and prosecutors so sloppy in gathering evidence.
We must always bear in mind that newsmen should be netural.
They should not be made part of the prosecutorial team.

Shield Law III: The Subpoena

One of the annoying processes that a newsman would have to encounter in the exercise of his profession is the process called subpoena.
I have noticed that many times, newsmen most of whom have no propoer legal training, quiver or even panic when served with a copy of a subpoena. Others who are used to receiving subpoenas, would understandably be annoyed by it.
Newsmen should be ready to become receipients of a subpoena because it is part of the territory.
A subpoena is defined as a process directed to a person requiring him to attend and to testify at a the hearing or trial of an action.
A subpoena may also require a person to bring to court documents or other things in his control.
One good advice to newsmen if they receive a court subpoena is to immediately refer the matter to the legal counsel of their news organization. If there is none, then refer to the editor or senior executive of the organization so you can be provided proper advice.
It must be stressed that a subpoena is a compulsive process. This means you cannot just shove away a subponea. Generally, it must be complied with.
If it is to be objected to, there is a strict procedure for opposing and a lawyer is needed for this.
The law says in case of failure to attend, the court or judge issuing the subpoena may issue a warrant to arrest the witness and bring him before the court where his attendance is required.
More, the witness who fails to comply with a subpoena may be imposed an economic sanction by requiring the witness to pay the costs for serving the subpoena.
For journalists, many times a subpoena will require them to bring recordings of their interviews, their notes, journals, to be used by a party in the case.
This is where the shield law comes in.
In many cases, journalists can invoke the shield law to resist a subpoena particularly if the materials sought are confidential ("reavealed in confidence").
Remember that under the sheld law, a journalist is shielded from revealing the source of his information.
If he is made to produce a tape recording of an interview, or worse a video recording, this would necessarily show the identity of the source.
Some legal practitioners are crafty, and they will use the subpoena process to uncover what are supposed to be law-protected "secret files" of journalists.
So journalists must always be careful when served with subpoena.

Witch-hunting is part of law practice

I got pissed off today because the first pleading I read was from an adverse party who was asking the court to require my client produce certain originals of documents, and have it presented and copied for the adverse party's use.
You can just imagine the ingenuity of the adverse party of asking the court to let my client produce documents so that these very same documents will be used agasint my client.
If not resisted, it will be a situation where my client will be "magisa sa sariling mantika".
That would have been part of what in litigation is called "discovery procedure."
There was one problem---and this is what really made me nuts---the documents the adverse party was asking from my client were not in my client's possession. And the adverse party knew it.
For instance they were asking from my client for a document that was forumulated, executed by a third person not a party to the case.
So I objected and asked, why not seek this document from the third person himself?
The other document sought by the adverse party was one known to have been given already to another person before.
So I objected and asked again, why not get the document from the person who has custody of such document?
I was aghast because I think the adverse party (or their legal counsel actually) was a lazy boy.
It was obvious they have no evidence on hand.
They wanted my client to produce the document for them and use it against my client.
Absurd? Or plain stupid?