Friday, March 17, 2006

Life, death in the street

Its past 10 p.m. I just came from a funeral home in Makati.

If you have been reading my blog I wrote about one lesbian client-friend of mine who adopted a little girl. It was not long ago. She was a co-worker when I was working full time at the office of Senator Nene Pimentel. She passed away yesterday.

It was a rather violent death. She was driving her scooter along Roxas Boulevard near MIA road. She was ran over by a passenger bus. Her head was crushed by the rear-right tire of the bus.

It came as a shock because the last time I met her a few weeks ago I briefly discussed with her the progress of the adoption papers with the Office of the Civil Registry of Makati. After her adoption petition was granted, she still had to work out changing the birth certificate of her adopted child and all.

It was really unexpected.

Her name was Chedeng Gaylord. 47 years old adoptiver mother of a four-year old girl named ImelChed. She worked as a political officer in the office of Senator Nene Pimentel.

I never came close with Chedeng until I handled her adoption case. She related much of her past life in my professional conversations with her.

Chedeng was worked the streets. Before landing a job in the Senate, she sold cigarrettes for a living. In the streets still, Chedeng spent much of her time as a Senate worker. In her scooter, she would deliver documents from Senate everyday. That was until she met the fatal accident.

In the streets she had a life. It is just a tragedy that in the streets, she met her death.

Farewell, friend. God bless you.

Monday, March 13, 2006

Will ABC 5 yield?

Another brewing issue that is bound to elicit a debate on press freedom interests is a declaration by the Executive Department, through Presidential Chief of Staff Michael Defensor, who was seen on television declaring the state’s intention to subpoena video tapes of a supposed interview with detained Brig. General Danilo Lim which will show that the general declared his withdrawal of support from the government.
This, Defensor said, will prove the state right, and would justify the proclamation of a state of national emergency.
In addition, Sec. Defensor said besides the video tapes, the state has other evidence that there was indeed a conspiracy to overthrow the government.
The question is: What will ABC 5’s response be? What are its options?
The most logical option of course, is to yield to the state. Give it to them. Why create a fuss? What’s the big deal?
And this option has constitutional and jurisprudential bases.
After all, it has long been a legal tradition that the interests of the state in the successful prosecution of crimes---specially those which threaten the stability or the very existence of the government--- precedes private interests, such as private ownership (of video tapes), or freedom of the press to be left alone against state intrusions.
But the press wants to be left alone, doesn’t it?(Specially these days)
However, the well-established rule is that the press enjoys no testimonial privilege from complying with subpoenas, particularly when such testimony is crucial in the prosecution of crimes (Branzburg v Hayes).
On the other hand, this does not mean that the press cannot ask questions first, before submitting itself to the state’s prosecutorial processes.
As a matter of legal and historical fact, before a newsman is compelled to testify, even in those matters where information was gathered under confidential circumstances, the government has the prior obligation to demonstrate a “compelling need” for the newsman’s testimony.
And part of this “compelling necessity” is for the state first to establish that a there was a crime.
Thus, if in that interview, Brig. Gen. Lim merely declared withdrawal of support, is that a crime?
Wouldn’t it be proper , therefore, for ABC 5, to first ask the state some few questions, before it complies with a subpoena?
The press has rights (to due process), doesn’t it?
Secondly, Sec. Defensor was quoted as saying it has evidence to prove the state’s case, other than the video tapes.
The next question is: with the admitted availability of “other” evidence, is there still a compelling necessity to subpoena the press?
It would be reasonable to assume that ABC 5 will just take the easy route of just complying with the subpoena. In the process it would earn good points from the state. Why rock the boat?
By not submitting to the state, this could potentially have adverse repercussions on business.
But there are greater interests.
There are interests, such as the protection of the freedoms that the press enjoys, like the freedom to promote the maintenance of that free flow of information, unobstructed by state intrusions.
The problem is that if ABC 5 submits the tapes without raising questions or objections, it might probably create a state hobby.
We can expect the state demanding all kinds of information, even those considered sacred by the press, like those sealed by pacts of confidentiality.
As the esteemed Mr. Justice Douglas, in his dissenting opinion in Branzburg versus Hayes said, “The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it.”
“Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.”
This is the real danger.
Will ABC 5 yield?

Sunday, March 12, 2006

Shield Law IX Branzburg v Hayes

Every journalist must have a working familiarity with the landmark ruling Branzburg versus Hayes, decided by the United States Supreme Court.

The Court was divided (5-4) and the decision was arrived after intense opposing views by the majority and the dissenters.

In this case the United States Supreme Court ruled that requiring newsmen to appear and testify before state or federal grand juries DOES NOT abridge the freedom of speech and press guaranteed by the First Amendment.

The Brief Facts in Branzburg

On November 15, 1969, the newspaper Courier-Journal carried a story under the by-line of petitioner Branzburg describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks.

The article included a photograph of a pair of hands working above a laboratory table on which was a substance identified by the caption as hashish.

The article stated that petitioner had promised not to reveal the identity of the two hashish makers.

Branzburg was shortly subpoenaed by the Jefferson County grand jury; he appeared, but refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana.

In another incident involving petitioner Branzburg arose out of his later story published on January 10, 1971, which described in detail the use of drugs in Frankfort, Kentucky.

The article reported that in order to provide a comprehensive survey of the "drug scene" in Frankfort, Branzburg had "spent two weeks interviewing several dozen drug users in the capital city" and had seen some of them smoking marihuana.

A number of conversations with and observations of several unnamed drug users were recounted. Subpoenaed to appear before a Franklin County grand jury "to testify in the matter of violation of statutes concerning use and sale of drugs," petitioner Branzburg moved to quash the summons.

The newsman’s argument

In refusing to testify, Branzburg, argued that to gather news, it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.

The claim by the newsman is that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future.

This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.

The issue

The sole issue for determination is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.

The majority opinion

The majority of the Supreme Court decided that the First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

The Court added: We cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.

Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question.

The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not, the Court said.

Shifting gears?

Having said this, though, the Supreme Court shifted gear and ruled that news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment.

The Court added that official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash.

“We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth,” the Supreme Court said.

The Standards in requiring newsmen to testify

What is striking in this landmark decision is that while the Supreme Court ruled that there is no testimonial privilege available to newsmen, that would immunize them from grand jury subpoenas, the Court laid down an important pre-condition before such subpoena is effected.

The Court said, “if there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some "compelling need" for a newsman's testimony.

Since then, it has been a pre-condition that the government first demonstrate a “compelling need” for a newsman’s testimony.

As a matter of fact, the U.S. Senate bill which seeks to legislate shield law protection mandates that newsman have to be given an opportunity to be heard on the matter of “compelling need” before newsmen actually are compelled to testify.[1]

These conditions naturally flow from the requirement of “compelling need” required by the U.S. Supreme Court in Branzburg.

Sunday, March 05, 2006

No more deep throats?

I remember my former professor Fr. Joaquin Bernas write that the proscription against prior restraint is not all there is to press freedom.
The press freedom clause in the constitution also protects media practitioners against what is called "subsequent punishment."
In other words, the press must not be burdened with apprehensions that their publications would later on put them into trouble by the state.
If the press publishes in fearful anticipation of a state-sponsored backlash, then there is no press freedom.
Recently, the National Telecommunications Commission has issued a memorandum circular banning stories with "anonymous sources".
According to the report by the Philipine Daily Inquirer, news from anonymous sources is not allowed.
This memo could very well change the way broadcasting of stories with "un-named sources".
Since anonymous sources is no longer allowed, then news reporters are obligated to include in their report the sources of their stories.
Such a situation is an affront to a newsman's basic freedom.
Since news reporters are now obligated to identify the sources of their stories, then nobody will come forward to feed newsman with "tips" or "leads" with which newsmen usually pursue their stories.
The relieance of anonymous sources has traditionally been used as a starting point in the exposes of corruption like so-called fertilizer funds-scam, malpractices in government, including cheating in elections.
Most of these "un-named" sources are sometimes low ranking government employees, but who are "in-the-know", or who can point to the paper trail of documentary evidence that will eventually establish wrong-doings by high-ranking government officials.
They talk to newsmen, always on the condition that their identities are not revealed.
One of the triumphs of journalism was the conscientious publication of stories which eventually exposed what was later on known as the Watergate Scandal. It resulted in the resignation of a President.
The truth prevailed because the reporters of the Washignton Post relied on an anonymous, un-named source to whom the reporters Bernstein and Woodward would only identify as "Deep Throat" (identified 30 years later as Mark Felt of the FBI).
Now, the state is banning the use of "anonymous" sources in broadcasting news reports.
Who will now come forward and talk to newsmen, and give leads to newsworthy stories?
This is suppression of press freedom of the highest order.

Saturday, March 04, 2006

Ramon Montano: inciting to sedition II

The case filed by the government agasint Retired Maj. General Ramon Montano was a rare opportunity to handle a case of inciting to sedition.
Inciting to sedition is a penal law that restricts a persons right to free speech.
I would say that a case of inciting to sedition is not really common, because it is only when the national government puts its step forward to quell serious political threats, that government people start visting and invoking the Revised Penal Code provisions on Inciting to Sedition.
I would say that Inciting to Sedition is a felony that is more political than it is a criminal infraction.
In the Montano case, he has made himself visible as an anti-Arroyo critic.
And when supposed transcription messages attributed to Montano were flashed on the screen, the police went to work and arrested Gen. Montano.
The Quezon City prosecutor's office was convinced that more evidence is needed besides the "computer-print-out" of the transcripts of a text flashed ont he screen of ANC News Channel on Saturday February 25, 2006.
Rightfully so.

The Quezon City prosecutor's office ordered the release of Retired Gen. Montano pending further investigation.
There was absolutely no basis to arrest Gen. Montano, with or without an arrest warrant.
You can just imagine the police watching ANC News Channel at the height of the President's Proclamation of a state of national emergency.
The police claim they were on full alert, and the thing to do during full alert is to watch ANC news channel?
In the event, when the policemen (the CIDG) saw a supposed message coming from General Montano, they immediately believed what was flashed on screen, as if it were gospel truth.
They did not verify from ANC News from where they got such a message, so it could properly be traced.
When they saw that the trasncriptions of a text message were attributed Reitried Gen. Montano, they immediately scampered to his residence in Muntinlupa to arrest him.
And what was their basis in effecting a warrantless arrest?
The transcription of ANC news Channel flashed on the t.v. screen!
This incident portrays the dangers lurking around that threatens our basic freedoms.
The police will be so quick to make arrests even wihtout any shred of credible evidence.
Montano had to be detained for the weekend, only to be released come Monday.

Ramon Montano:case of inciting to sedition I

I acted as co-counsel of Atty. Felipe Remollo in handling the case of inciting to sedition filed against Retired Gen. Ramon Montano by the police.
Montano's wife, Fe Pareja Montano, is a provincemate and is mayor of San Jose Negros Oriental.
Montano was arrested last Saturday February 25, 2006, one day after President Gloria Arroyo isswued Proclamation No. 1017 placing the country under a state of national emergency.
Here is the report I made on the arrest:
Retired General Ramon E. Montano was released Monday afternoon February 27, 2006 after three days of detention at Camp Crame on charges of Inciting to Sedition.
Montano was arrested Saturday afternoon February 25, 2006 by elements of the Constabulary Investigation and Detection Group (CIDG) at the Orchard Golf and Country Club in Muntinlupa.
Montano was charged by the police after supposed transcriptions attributed to him were flashed by the ANC Channel 27 in the morning of Saturday.
The narration of facts to the Quezon City prosecutors office by the CIDG stated:
“Investigation disclosed that on February 24, 2006 at about 9:27 AM after PGMA announced the Presidential Proclamation 1017 over the airwaves, the entire PNP was placed under full alert and on standby for any untoward incident. CIDG personnel on standby were watching television for news development and were turned on ANC Channel 27 at the CIDG Headquarters and viewed the transcription of the statement of retired General Ramon E. Montano who was quoted as saying ‘WE ARE ASKING THE POLICE AND THE SOLDIERS STILL UNDER THE CLORIA GENERALS TO BREAK AWAY FROM THAT CHAIN OF COMMAND OF CORRUPTION AND JOIN THE FILIPINO.”
“On the same date personnel from CIDG were dispatched by Police Chief Superintendent Jesus A. Verzosa to the address of Gen. Montano in Muntinlupa to arrest him for statements shown over the television which constitute an act of Inciting to Sedition against the government,” the CIDG report stated.
Montano on the other hand chided the police for effecting an illegal arrest.
Montano’s lawyers expressed outrage in effecting a warrantless arrest on the basis of an unverified transcription flashed in a television station.
They stressed that Montano did not appear on television and the police immediately believed what was flashed on a television, which was plain hearsay, without conducting further investigation on the veracity of the report.
The only evidence presented by the police to the prosecutor were a “computer print-out of transcript statement of General Ramon Montano”, and the sworn statements of policemen who allegedly were watching t.v. at the height of Proclamation 1017.
Last Monday, the prosecutor decided to release Montano pending “further investigation”.
After his arrest, Montano was subjected to a medical examination. He was found to be experiencing hypertension and coloring red right eye, which doctors described as “sub conjunctional hemorrhage”.
He was then brought to the Camp Crame hospital for medical treatment. Montano was accompanied by his wife San Jose mayor Fe P. Montano and other close relatives.