Break

I am on official ten-day break from my daily routine.
I don't recall having such kind of respite from the daily grind so I am taking full advantage of it.
There have been a lot of things both old and new I have encountered so far which I would be writing about in the days ahead, all with pictures.
But for now, I'll keep on noting...

Death stalks

Death is a silent, invisible stalker.
It stalks you and me everyday.
The only question is, when will death strike?
It is only a question of when.
This is what engulfed me, and perhaps many minds when a blast at the Glorietta Makati killed more than ten innocent people.
The close relatives of those who were killed never ever thought that death was about to strike their loved ones.
Imagine, my partner Ted said he had a scheduled meeting at Gerry's Grill which is only less than thirty meters from the site of the explosion.
He said his meeting was at three p.m., and he could have used idle time at the Glorietta before the meeting, and he could have been one of those killed.
My wife just twenty four hours earlier from the blast passed by the Glorietta itself at the exact time, 1:30 p.m. of Thursday.
She said she passed by the site of the blast last Wednesday at around 12 noon. That's two days before the blast.
Me too. I go to Glorietta lunch time to buy some things like ink printer, office supplies, accessories.
The last time I was near the site of the explosion was just two days before, Wednesday.
I went to Park Square to have my computer adaptor fixed.
Park Square is about fifty meters away from the blast site.
Death is a cheat.
Many of those who were killed were young, healthy, full of energy, and even were still looking at better days or years ahead.
You could hardly meet any person terminally ill in that place.
Yet, death snatched these young innocent lives away in a single blast...like a thief in the night.

Libelous headline?

The Philippine Daily Inquirer can be embroiled in what would appear to be a publication of a "libelous headline".
The banner headline for the Inquirer's October 18, 2007 issue stated:
"GMA present, says solon"
This headline referred to the time when cash was reportedly distributed to congressmen in a meeting in Malacanang.
The story however was that the solon, Manila Rep. Bienvenido Abante, stated that President Arroyo was not present, when the cash was being distributed.
The word "NOT" was dropped in the headline, thereby giving the entirely opposite story.
The proper headline would have been:
"GMA not present, says solon"
But if this were the title of the story, this wouldn't have grabbed the headline, would it?
Let me analyze this before I discuss cases about media mistakes.
I believe that if a libel charge is to be instituted against the Inquirer, the persons who have direct cause of action would be President Arroyo, and /or Rep. Bienvenido Abante.
But quick to the draw, the Inquirer, immediately issued a retraction, plus correction, plus apology, plus explanation.
More importantly, the Inquirer conveniently described the foul-up as "inadvertent"
And then the Inquirer conveniently goes on to blame the reporter and the news desk---the natural scapegoats.
(Is there or isn't there such a thing as command responsibility in the newsroom? What are the responsibilities of the top-gun editors of the paper?
Anyway, with the retraction, correction, and apology, and the "inadvertence" explanation, the Inquirer immediately laid the groundwork for a legal defense agasint libel.
The offended parties here are public officials.
Therefore, under the New York Times standard, it would have to be the actual malice standard that would have to be applied in this case.
Was the Inquirer guilty of reckless disregard of whether or not the headline was true or not?
Did the Inquirer knew the truth that President Arroyo indeed, was not present during the cash distribution, but still proceeded to headline: "GMA present, solon says"?
But the Inqurier has already pre-empted everything by claiming "inadvertence", meaning negligence.
Negligence as we know, does not rise to the standard of actual malice sufficient enough to ensure an absolution to the offender.
In this case, the offended public official would have to establish clear proof that the Inquirer knew beforehand that GMA was not present, yet the Inquirer still proceeded with the headine: "GMA present, says solon"
We have very insteresting, and even funny jurisprudence about media mistakes, and "headline libel".
I will discuss them tomorrow.

Leakers in executive sessions may be criminally liable

Those responsible for leaking the events that transpire during executive sessions of the Congress or any of its committees may be held criminally liable.
In other words, to leak in executive session is a criminal act.
I surveyed the provisions of the revised penal code and I stumbled upon the following provisions:

"Article 144 Disturbance of proceedings. The penalty of arresto mayor or a fine from 200 to 1,000 pesos shall be imposed upon any person who disturbs the meetings of the National Assembly or of any of its committees or submittees, constitutional commissions or committees or divisions htereof, or of any provincial board or city or municipal council or board, or in the presence of any such bodies should behave in such manner as to interrupt its proceeding or to impair the respect due it."

So those who, during a meeting of the Senate,or any of its committees, behave in such manner as to impair the respect due it, are criminally liable.

I think to leak any information during an executive session is an impairment of the respect due the Senate. Those who leak such information, be he a senator or not, should be held criminally liable.

Another provision in the revised penal code that invited my attention is Article 229:

"Article 229. Revelation of secrets by an officer. Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification, and a fine not exceeding 2,000 pesos, if the revelationof such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification, and a fine not exceeding 500 pesos shall be imposed."

I think the very purpose of executive sessions is to enable a secret to be let out by a resource person, but to be confined among the members of the legislative body.

But if a member of the Senate, a public officer, reveals the secret which he came to know by reason of his being a senator or public officer, and such secret if revealed damages public interest, I think he can be held liable under this provision.

The third provision I came accross with is Article 291 Reveal secrets with abuse of office:

"Article 291. Revealing secrets with abuse of office. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity shall learn secrets of his principal or master and shall reveal such secrets."

So those waiters, utility persons, in the Senate lounge where executive session is being conducted may be criminally liable if they leak to news reporters what transpired during the executive session, because clearly they learned of such secrets by reason of their being waiters.

Why am I citing these penal provisions?

I think when a news reporter hears or receives a leakage from a senator or even a simple waiter or utility person during an executive session, I think the reporter is witnessing a crime being actually committed.

So what?

This has an impact on the journalist-source privilege.

Question: If a journalist, or news reporter actually witnesses a crime being committed i.e. a senator or waiter leaking secret info, and the journalist reports about this crime, but witholds the identity of his or her sources, can the journalist be compelled to reveal his or her source?
Does the journalist's source-privilege disappear in this instance?

Desperate choices

Not long ago I took a Ceres bus from Cebu City to Dumaguete.

It is the most accessible for me because there is always a bus that leasves almost every hour to Bato, where 25-minute-per-trip barges await to take passengers to Sibulan.

In one of my bus trips I had with me my camera.

One scene that amused me was this public comfort room, where the bus would make a brief stop to enable the passengers to relieve themselves.

What was amusing to me was that the price for use of the comfort room depended on what a patron/user relieved himself or herself of.

The rates for the use of the comfrot rooms were:

For "ihi" (urinate) --- one peso

For "libang" (bowel movement) --- three pesos.

I took a picture of a woman who apparently, by her looks in the photo, could not decide what she would relieve herself of.

It appeared she was in a dillema.

Or she could have been amazed at the payment scheme...

Tubercolosis

TB.
That is what tubercolosis is popularly known.
We were having dinner last night with aunts and uncles.
My conversation last night wth my Tital Mamel veered to her work.
She is a physician on infectious diseases, working with D.O.T.S.
I forgot what it means but her work is now focused on a world project aimed at stopping the spread of what is called Multi-Drug Resistant TB or MDR-TB.
I only knew last night that this is such a dreaded and deadly disease, more dangerous than ordinary TB.
Multi Drug Resistant TB speaks for what it is.
It is that kind of TB that resists many a drug treatment.
MDR-TB, she said affects around 30,000 Filipinos, living in urban poor areas.
She laments that their treatment rate is so low in numbers, only about 800 patients.
The reason is that treating MDR-TB is very expensive. It costs, she said US$3,500 to treat an MDR-TB patient.
Where do they get the money to treat these patients here?
She said there is a global fund, mostly coming from industrialized, developed countries that provides these funding to control the spread of MDR-TB worldwide.
Other industrial nations provide funds because they fear that with increasing migration, the threat of MDR-TB penetrating their countries, also increases.
Tita Mamel, Dr. Ma. Imelda D. Quelapio, said that is why a global fund is made available for developing countries like the Philippines.
Here is a fact that Tita Mamel told me last night.
She said the Philippines is the 2nd largest contributor of tubercolosis (not the MDR-TB, but ordinary TB) in the United States, next only to Mexico.
She said that is why visa requirements become all the more stringent due to strict medical checks to ensure that no person with TB enters the U.S.
There is a program in Saint Lukes Hospital for these medical checks for U.S. visa applicants.
Let's go back to MDR-TB.
There are two types of MDR-TB. It is either primary or secondary.
It is primary if MDR-TB is pread from one carrier to another.
It is secondary if TB patient does not follow strictly the six-month treatment.
As a consequence of not completing the six months treatement period, a patient develops secondary MDR-TB.
Ordinary TB then becomes the deadly MDR-TB because a patient will then become drug resistant, and thus could no longer be easily treated with ordinary drugs.
She said the Philippines is already advanced in terms of treating MDR-TB, sans the needed funding, as they began the treatment project in 1999.
That is why she is invited to many countries to help start off similar treatment programs for MDR-TB.
While in terms of the rate of patients treated is so low due to accutely deficient funding in the Philippines, the impact of the program is very effective.
That is why other countries look to the Philippine program as sort of a model for starting MDR-TB treatement prjects.

Alternative law search

A few months ago I blogged about an alternative to Lex Libris, E-library. A visitor referred me to another alternative to law search called Seek Juris at http://www.geocities.com/tzitech/seekjuris.htm . I'm interested to try this out, but I don't know the contact details. Lex Libris is a little costly if you are a subscriber, I must admit.
In my own experience, as a practitioner, these law search aids have become quite indispenseable, and very helpful in my practice.
Practically, I have a mobile law office. I draft pleadings even at Starbucks, or while waiting for my hearing at the mediation center, or while waiting for a flight at the airport.
If a client calls me for a query while I am outside the office, I don't have to go back to the office to research the answer or opinion. I just open the Lex Libris in my laptop. It's saves time, generates quick response for the client.
This is modern day law practice, huh?
Its like having all the SCRA Philippine Reports and your law books tucked in four computer discs. Its a portable law library.
Good investment.
Which reminds me...I haven't paid for my 2nd quarter updates....

Re-think the libel decriminalization position

There are a practical reasons not to push for wholesale libel decriminlization.
Journalists pressing for indiscriminate decriminalization of libel do not reach first base, mainly because it naturally does not generate support from lawmakers.
Libel is a public official's bargaining chip.
That is why lawmakers are allergic to proposals to decrminalize libel.
And even assuming it passes both houses of congress, the body language of President Arroyo when it comes to libel decriminalization seems to be: "over my dead body."
She could likely veto it.
Journalists should instead re-package, and push to remove jail terms for defamation that involves the constitutionally valued political speech.
(I think there is a pending Senate bill on this already)
That would be less an irritant to the ears of our lawmakers.
Is there a difference? Of course there is.
A journalist's position, I submit, should be to remove the jail term for liel involving political speech, but to let it remain a criminal offense.
Is it not that by removing the jail term, it removes libel from the realm of criminal processes?
No. Aside from jail term, there is a penalty called the fine.
So if the jail term is removed, let the fine remain as a punishment, aside from of course the damages which the offended party may seek (which is civil in nature).
Is there any advantange to the journalist by advocating this?
There is. A lot, I think.
First, by letting libel remain a criminal offense (but with only the penalty of fine for libel convictions involving political speech), the proof required of the state to secure a conviction is "proof beyond reason able doubt."
If libel becomes civil, the plaintff needs only to prove what is called "preponderance of evidence", where the judge just weighs the evidence and see which evidence is "heavier".
But with "proof beyond reasonable doubt" as a requirement, the prosecution needs to establish more.
This goes to the benefit of the offender, the accused.
Another benefit if libel remains a criminal offense is that there is an added avenue to wage battle, and that is at the fiscal's level.
If libel were civil, it immediately goes before the judge.
So what's the advantage of having another level to battle one's case?
Remember, at the prosecutor's level, there may be no need of a lawyer.
So it becomes economical to the journalist.
What journalist organizations should do is organize a group of lawyers that will give legal advice to journalists entagled in the prosecutor's level.
From my experience, the discussions of libel in the prosecutor's level merely recurs.
What becomes different are the factual circumstances, but the prinicples are established.
So lawyers have a "de kahon" set-up which would come in handy in helping journalists draft and file their counter affidavits.
And if the journalist gets used to being sued for libel, I'm sure he would immerse into a certain comfort zone, such that drafting counter affdiavits would be a walk in the park, so to speak.
So at the prosecutor's level, there is no need to hire a lawyer, and the journalist has the chance of having the complaint against him dismissed, except of course if the complainant is the First Gentleman.
(Was there ever a libel complaint of the First Gentleman dismissed by a prosecutor, whose boss is the First Gentleman's wife?)
So from a procedural standpoint, there are advantages to let libel remain in the penal books.
Just minor changes needed.
So all these radical bandwagon movements for wholesale libel decrminalization were done without much thinking, I believe.

A case against libel decriminlization

I do not support decriminalization of libel.
Many Filipino journalists are advocating sweeping decriminalization of libel.
I think, strategically it is unhelpful to the working press.
To reform our libel laws, I propose the legislation of the actual malice principle, mainly as instructional guides of the trial courts.
I propose removal of prison terms for speech of high constitutional values.

Over re-action

The band wagon decriminalization libel is an over-reaction.
Members of the press are going overboard by pushing to decriminalize criminal libel.
This is a classic case of burning down the house to roast a pig.
As a journalist, I would be among the first to protect press freedom.
As a student of libel law, I would be more cautious about total decriminalization of libel.
Criminal libel law exists because it serves to balance private interests vis-a-vis the widespread guarantees of freedom of speech.
Historically, there has been an unending tension between the need to protect private reputation, and the need to protect the freedom to speak.
The thrust has always been to find a perfect balance between two opposite interests.
Decriminalization of libel provides no assurance that this balance of interests will be preserved.

Levels of constitutional protections

The constitutional guarantees of freedom of speech and of the press exist on different levels.
A greater degree of constitutional protection is accorded that kind of speech that dwell into the affairs of society, commonly called “public speech” or “political speech.”

The problem with our libel law

The problem with our criminal libel law is its inability to distinguish the hierarchical protections that the constitution accords free speech.
The libel law does not distinguish, for instance, speech exercised in pursuit of political ends, and speech that is of public concern, as against speech of which the public has no concern.
The solution is not to eliminate (decriminalize) libel law, but to fix (amend) it.
There are areas in libel that still need to have criminal sanctions, if only to maintain that balance between private reputation interests and press freedom interests.
Libel entails penal sanctions because it is a measure designed to restrain a victim from resorting to violence or committing breach of the peace to vindicate his honor.
Instead of vindicating honor by the gun, the criminal libel law is offered so honor can be vindicated through the gavel.
What is objectionable is the sweeping effort to totally decriminalize libel, which would result in a wholesale or packaged eradication of a relief designed to maintain that balance of interests.
True, there is a need to remove penal sanctions in defamation cases involving political speech, including speech that involve public officials or public figures on matters of public interest. This is the right direction.
But the removal of penal sanctions should not be made upon all types of cases.
For instance, libel concerning speech on purely private matters involving private individuals, of which the community has no concern, need not be decriminalized. Speech of purely private concern are characterized as having reduced constitutional value compared to speech of public concern. This was discussed in the United States Supreme Court case of Dun & Bradstreet Inc. versus Greenmoss Builders Inc., 472 U.S. 749 (1985).
If there is an indiscriminate removal of penal sanctions in libel cases, the result would be the creation of an imbalance between the need to protect private reputation and to uphold free speech.
If libel is decriminalized, those whose private reputation are attacked will not have adequate means of legal relief, and would likely resort to committing breach of the peace.

Proposal

Our proposal then is to carefully institute amendments in our libel laws, so that we will substantially reduce (or virtually eliminate) the clutch of criminal libel on those speech that have been accorded the highest constitutional protections.
Specifically, it is proposed that an amendment be made to legislate the actual malice doctrine and place it in the statue books.
An amendatory provision in our libel statute, particularly on Article 354 of the Revised Penal Code may be crafted in the following manner:

“Public officials or public figures shall be prohibited from recovering damages for defamatory falsehoods relating to their official or public conduct, unless they prove that such statement was made with actual malice, that is, with knowledge of its falsity or with reckless disregard of whether or not it was false. In cases involving private individuals concerning speech of public concern, such private individuals shall not recover damages unless they prove fault and falsity. Provided that, in no case shall imprisonment be imposed.”
We propose that this suggested amendment be the start of legislative discussions for developing our libel statutes.
With this amendatory provision, we retain criminal libel as a relief for any speech other than political speech.

Skeptical suicide?

I am quite intrigued at the violent death of Maria Jeanette C. Tecson, a lawyer, 40 years old.
The reason is because she died in the same building where I have my law office.
She was reported to have died under violent circumstances inside a hotel room in Richmonde Hotel which is located at No. 21 San Miguel Avenue corner Lourdes Street, Ortigas Center Pasig City.
Now let me clarify. This building is divided into two.
One is the hotel, Richmonde Hotel, while the other is where the various offices are located, the Richmonde Plaza.
I haven't heard of Atty. Tecson except that just like many, she became quite familiar because of the disqualification case agasint Fernando Poe Jr., and the infamous Pacific Plans Inc. fiasco.
Atty. Tecson was involved in the filing of the disqualification case against FPJ, while she acted as lawyer or spokesperson for Pacific Plans where she appeared on nationwide television many times.
So her face looks familiar.
Police are heavily hinting at suicide. But some are suspicious, and say the police should not rule out homicide or murder.
For me, the police should investigate more.
What strikes me immediately is that if it wasn't suicide, then how could the killer have escaped the guards of the hotel?
What time did she die?
These questions are significant to me because I know of certain secret passages in that building where one can come and go unnoticed, even by the barong-clad security guards of the hotel.

Bye Ben

It's goodbye for Benjamin Abalos from a scandal-ridden career in government service.
The embattled Comelec chair, fell from grace after sworn statements accused him directly of offering to bribes high ranking government officials, and a private businessman, in order to corner a multi-million dollar telecommunications contract between the government and a state-owned Chinese telecom firm.
The controversy has taken its toll not only to Abalos, but to his family, prompting him to step down.
Many hailed Abalos' decision to resign saying he has save so much government time and resources, and has spared the nation from another highly divisive impeachment process.
But others hinted Abalos resigned to protect other high officials who may be behind the telecom scandal.
Almost every national scandal has Benjamin Abalos' name stamped on it.
In the Comelec, Abalos' name surfaced prominently in the controversial billion Mega Pacific computerization deal. Abalos was said to have connections with the proponent, the Chua-controlled Photokina.
Under Abalos watch at teh Comelec, the nation witnessed unprecedented electoral scandals.
There was the Garci-scandal in the 2004 preidential elections where Gloria Macapagal Arroyo was caught in taped conversations with a Comelec commissioner.
There was the mind-boggling last minute spurt of Juan Miguel Zubiri in the 2007 senatorial elections, that saw Zubiri overtake Koko Pimentel solely due to the "magical" results in Maguindanao province.
This came after Abalos "co-incidentally" bumped with Zubiri's parents at the a posh Makati restaurant.
There are quite a number of similarities between that Zubiri episode and the NBN scandal.
Abalos claims his close encounters with the Zubiris at the height of the election canvass were by chance, in the same manner that he claims his meetings with government officials at the Wack Wack Golf were also chance encounters.
Then, the election returns of Maguindanao were 'lost' in the hands of election supervisor Lintang Bedol.
In the same way, the contract signed by Transportation Secretary Mendoza and Chinese officials also were lost one day after the signing.
Similar alibi, similar modus...simply too good to be true.

La Salle rips Ateneo defense

In yesterday's sudden death, death became sudden for the Blue Eagles.
The Green Archers advanced to the UAAP finals after beating Ateneo 65-60.
Nothing more can be said except that La Salle played better basketball.
Ateneo's defense collapsed and crumbled, as La Salle punctured dagger shots one after another in the late stages of the game.
La Salle deserved to advance.
'Till next season....