Kalayaan sa Pananalita (Freedom of Speech) o Krimen?
By Juana Pilipinas
(From The Author: The featured quote is a free graphics taken from the Internet. Some may question the spelling of the word “licence” in it. It is accurate in the British English convention but should be spelled “license” in American English convention.)
Palagi po nating naririnig ngayon ang salitang freedom of speech. Pwede daw pong murahin at insultuhin ni PDuterte ang kahit na sino man dahil iyon ang kanyang karapatan. Protektado daw po siya ng kalayaan sa pananalita o freedom of speech. Ganun din daw po kay Mocha Uson. Pwede daw po niyang murahin, laitin, at yurakan ang dangal ng mga oposisionista, katulad ni Senador Trillanes at ang Pangalawang Pangulong Leni Robredo dahil dito.
Tama po ba na gawing sandalan ang karapatang kalayaan sa pananalita ng mga nagtatangol sa Pangulo at kay Mocha?
Si Drew Olivar po at ang balahurang video niya patungkol kay VP Robredo, freedom of speech pa rin?
Marami pa pong ibang tao lalo na sa social media at mga comments section ng mga blogs at online na peryodiko na nagsasabing mayroon silang freedom of speech kapag may pumupuna sa kanilang mga maaanghang o balahurang pahayag. Tama po ba sila?
Suriin po natin.
Ano ang Artikulo III, Seksyon 4 ng Konstitusyon?
Ang Artikulo III ng Konstitusyon ay ang katipunan ng mga karapatang pangtao ng bawat mamamayan ng Pilipinas na itinalaga sa Konstitusyon. Ito po ang nilalahad ng Seksyon 4:
“Hindi dapat magpatibay ng batas na nagbabawas sa kalayaan sa pananalita, pagpapahayag, o ng pamamahayagan, o sa karapatan ng mga taong-bayan na mapayapang magkatipon at magpetisyon sa pamahalaan upang ilahad ang kanilang mga karaingan.”
Ang atin pong tutuonan ng pansin ay ang kalayaan sa pananalita. Bawal po ang anumang batas na magbabawas o magpapahinto sa kalayaan ng tao na sabihin ang kanilang opinyon sa anumang isyu o bagay. Ang kalayaan sa pananalita ay proteksyon ng mga mamayan laban sa gobyerno na maaring magsagawa ng batas na maglilimita nito.
Ang bawat mamamayan ay may karapatang magpahayag ng kanilang damdamin at opinyon ngunit ito po ay hindi lubos. Meron pong limitasyon ang ating kalayaan sa pananalita.
Mga Limitasyon ng Kalayaan sa Pananalita
Moderasyon at pang-unawa po sa kapwa ang dapat pairalin bago natin sambitin, isulat, isiwalat, i-tweet, i-meme, i-blog , i-YouTube, i-Facebook (o anumang plataporma) ang ating mga saloobing damdamin. Mayroon pong katumbas na responsibilidad ang kalayaan. Krimen po ang pananalitang umabuso sa karapatan ng ibang tao at yung nakakaepekto sa kanilang kaligtasan.
Ito po ang listahan ng mga halimbawa ng pananalita o aksyon na hindi protektado ng kalayaan sa pananalita :
- Pagsisinungaling para siraan ang puri ng kapwa tao.
- Pananalita o aksyon na malaswa o mahalay.
- Pananakot o pagbabanta sa kapwa tao.
- Pananalita na naglalagay sa panganib ang kapwa tao.
- Pananalita na lumalabag sa karapatan ng kapwa tao.
- Bayolenteng banta sa kapwa tao.
- Pagsisiwalat ng mag sikreto ng pamahalaan o ng militar.
- Panawagan na ibagsak ang pamahalaan.
- Pananalita na nag-uudyok sa kapwa na gumawa ng mga akto o hakbang na labag sa batas.
Sa artikulong ito, ang mga pananalita o aksyon na tinaguriang krimen sa dangal o puri ng kapwa tao ang ating pagtutuonan ng pansin. Sa listahan sa itaas, ito po ang numero 1. Ang tawag po sa krimeng ito ay slander o libel, o krimeng nakakasira sa puri o dangal ng kapwa tao. Ang mga pananalita o aksyon sa numero 2-9 ay mga krimen din ngunit ang mga ito ay kakaibang uri.
Pagkakaiba ng Slander sa Libel
Ang slander at libel ay parehong krimen na ang sanhi ay ang mga salitang hindi makatotohanan na sumisira o yumuyurak sa dangal o puri ng kapwa tao. Ang kaibahan ay ang slander ay tulad ng tsismis o intriga na kumakalat sa pamamagitan ng pananalita at ang libel ay pamamahagi ng paninira sa pamamagitan ng pagsusulat at paglalathala. Sa kasalukuyan na mundo na gumagamit ang mga tao ng computerized devices, mayroon naring bagong krimen na tinatawag na cyberlibel.
Batas sa Krimeng Slander o Libel sa Pilipinas
Ang taong nangli- libel o nangi- slander ay lulamabag sa Titulo 13, Tsapter 1 ng Revised Penal Code of the Philippines.
Title 13, Crimes Against Honor, Chapter One, Libel. http://www.chanrobles.com/revisedpenalcodeofthephilippinesbook2.htm
Meron narin pong Cyberlibel Prevention Act of 2012 (RA 10175) na ipinahiwatig na konstitusyunal ng Korte Suprema nuong Pebrero 11, 2018 para sa mga naglalathala ng kabalahuraan gamit ang mga computerized devices. Binigyang liwanag ng Korte Suprema na sa mga aktong kriminal na cyber related, ang kasalanan ay sa taong nag-udyok, nagpasimuno o pinagmulan ng orihinal na dokumentong libelous. Ang mga taong nagkalat nito sa pamamagitan ng pagla-like, pagri-retweet, o ibang pamamaraan ay hindi papatawan ng parusa.
Cyberlibel Prevention Act of 2012 (RA10175) https://www.lawphil.net/statutes/repacts/ra2012/ra_10175_2012.html
Sana po ay basahin at unawain ang mga probisyon ng dalawang batas na nabangit sa itaas at gawing gabay ang mga ito bago magsalita, magsulat o maglathala ng anumang makakaepekto sa ating kapwa tao. Ang kalayaan sa pananalita ay pwedeng abusuhin. Pag inabuso po natin ang ating kapwa sa pamamagitan nito, ito ay matatawag na krimen o paglabag sa batas. Lahat po ng krimen ay may kalakip na parusa.
Kayo na po ang humusga
Sino po ang tama? Yung nagsasabing protektado ng freedom of speech ang lahat ng pananalita ng Pangulo at ni Mocha Uson o yung mga tumutuligsa sa kanila at nagsasabing lumalabag sila sa batas kapag sila ay nangaabuso ng kapwa tao sa kanilang pananalita?
Si Olivar, pwede ba niyang igiit ang kanyang freedom of speech sa ginawa niyang video?
Ang mga netizens na wagas kung mambalahura ng mga opisyales sa gobyerno o sa kapwa netizens, dapat ba silang magmunimuni o sige lang dahil sa freedom of speech?
YOU BE THE JUDGE.
The Society of Honor by Joe America 
Maraming salamat, Juana Pilipinas, sa makabuluhang leksyon na ito. Keep them coming!
Salamat din po for dropping by and commenting.
Just parking here some memes for those who like them:
1. INIWAN NG MAAYOS, NGAYON AY BUSABOS.
Referring to the inflation, growth rate, international standing, corruption index ranking, current acct deficit, exchange rate and loss of control over Phil territory after Duterte took over from Aquino.
2. BONELESS BANGUS – code name of Sec Alan Cayetano used by his security people on radio
Referring to his stand on the West Phil Sea and Phil sovereignty vis a vis China; refers to his whitish complexion, and refers to the loss of Philippine fish catch to the Chinese, making it more expensive and adding to inflation
Oh, my. Any problem if I tweet these? They are absolutely classic.
They’re not my originals, just saw them in the interwebs. 🙂 🙂 tweet away!
http://newsinfo.inquirer.net/999896/protesters-disrupt-dutertes-independence-day-speech-in-cavite
When you are in power it is freedom of speech, when you are a protester, it is alarm and scandal.
https://news.mb.com.ph/2018/06/12/protester-arrested-at-freedom-day-rites-attended-by-duterte/
“Hindi pwedeng gamitin [freedom of expression]. Sa disturbance ng public order siya hindi lusot (They cannot use [freedom of expression] as an excuse. He cannot excuse himself from violating the disturbance of public and order.”
Ang hinangaan ko yung instantaneous na enforcement of the law sa protester pero pag yung mga nasa pwesto o may impluwensya, VIP at kid gloves treatment.
Like that picture of Delima and Bong Revilla, not even kid gloves, they kept on touching Delima, it hands off when it comes to Bong Revilla.
The Supreme Court ruled that saying Sunamabeach in Tagalog is just an expression of anger just like Pack and Pakyaw.
http://www.gmanetwork.com/news/news/nation/580693/1969-sc-decision-saying-putang-ina-mo-not-slander-just-expression-of-anger/story/
But you won’t escape with grave threats.
That putang SC case puts on display the juvenile standing of the judiciary. The case should never have even gone to any courts, least of all elevated to the SC. Just imaging the amount of tax payers money lost.
One judiciary reform required is for loosing complainants to foot the full cost of the case.
Some one sued for oral defamation and grave threats.
What was not highlighted was he still got penalized for grave threats but not for defamation.
It could be an expression of anger but most cussing do not stop with just PI. Most often, PI is just the prelude to violent threats, defamation, and some other criminal acts.
I think they let the grave threats stick in that particular case but they let him escape with the defamation.
Certainly insults and altercations, and one thing leads to another. But we cannot persecute based on expectations.
Unless we have the 3 precons in the Tom Cruise movie Minority Report. The 3 precons were kids with special neural sensory powers all wired up into a special machine that allows them to forecast crimes before they were committed. Their notification allows Tom Cruise and his team to apprehend the criminals before the crime was committed.
Love that movie. I am a sci-fi fan.
We need some of those kids and machines in PH. No more Tokhang guessing games. All criminals are proven guilty by clairvoyance.
*******
1. Thank you for delineating the limits of freedom of speech.
2. There are two aspects to be considered in the case of Drew Olivar.
2.1. VP Robredo is a public person.
2.2. Olivar used the Facebook platform.
3. As to the first aspect, the Philippine doctrine on defamation is broad when it comes to public figures. Public figures are naturally subject to public scrutiny and, therefore, the bar for defamation is higher. I gather that:
3.1. The defamation must be proven to be false.
3.2. The defamer must be proven to have shown “actual malice” or reckless disregard for that falsity.
4. The defamation of VP Robredo by Olivar does not bear repeating. I think 3.2 is easy to prove; 3.1 is not. The onus of proof is not on Olivar to prove that his claim is true. The onus is on VP Robredo to prove Olivar’s claim is false.
4.1. This doctrine overturns the standard rule that the onus of proof belongs to he who makes the claim.
4.2. But how do you prove a negative?
4.3. I believe it is for this reason that VP Robredo has not formally filed a case.
5. The other aspect is that the publisher of a defamation post is liable. This makes FB liable… but only if it was notified of the offending post and did nothing about it within a reasonable amount of time.
5.1. The penalty for online label is higher. Previously, bail was pegged at a minimum of P2,000; now it is set to at least P50,000 to P100,000. Maximum jail time has been increased from 4 years and 2 months to 12 years.
5.2. Penalties only apply to the original poster. They do not apply to users who simply react to the post, like sharing, re-blogging, or registering their “Like.” I note that I have seen Olivar’s re-posted several times.
6. Another interesting question: Is Olivar’s post slander or libel? He is speaking (audio) but the post is on a multimedia (text, video, images, and print) platform.
*****
4.2 – By presenting witnesses and producing affidavits (MRP). I am pretty sure that the VP did not travel alone and she can produce someone who can validate her personal statement.
6. It falls within the ambit of cyberlibel. The RPC was updated with an RA which grouped all offensive digital/computerized speech/act into cyberlibel.
*******
A negative cannot be proved.
***
Lawyer: Were you with the claimant every day?
Witness: Yes.
Lawyer: Were you with the claimant most of the day?
Witness: Yes.
Lawyer: Were you with the claimant 24/7?
Witness: No.
Lawyer: Then you cannot say that nothing happened, can you?
Witness: No.
*****
Kung si Georgina ang kasama, 24/7 yan. Kuripot daw is Ma’am Leni so double bed accommodation siguro yon. But that is a mere opinion on my part. It could happen.
Remember the Chiong sisters case? Paco de Llaranaga was believed to have been in Cebu even if friends – an entire class – testified he was in Manila. As friends they are not considered neutral witnesses according to the judge.
I think until the basics of justice, truth and fairness are grasped by Philippine society and culture – my opinion is they are NOT – the same dreadful game will keep repeating itself.
So what will be admissible in court as far as evidence or truth in the case of Olivar V. Robredo in your opinion?
I find it ridiculous in the first place that someone has to prove something alleged isn’t true. Normally that is not the way it works in court, but outside it seems anyone can accuse you of anything, wildly. No wonder people don’t get “innocent until proven guilty” as a concept.
If you ask what evidence will be deemed permissible, I fear that will depend on the judge. Some judges, like the one presiding over De Lima’s case, make a case where there is none. But I guess some have to fight with windmills so that others may have it better later on..
Well said, Irineo.
May limitasyon ang freedom of speech, sigurado yan.
Slarder or libel, pero yung burden of proof ay nasa taong na agrabyado. Kaya, nakadepende na yan kay VP Robredo kung e rereklamo nya si Olivar at kung papano nya mapatunayan na hindi totoo ang sinasabi ni Olivar.
Tanong din ni Edgar yan. Ang sagot ko ay by the VP presenting witnesses and affidavits from those who were with her during the trip. “clear and convincing evidence” at damages ang kailangan for public figures. I am sure the video inflicted some pain and suffering to the VP. I’d say as a layman that she got a case.
German law distinguishes between Defamation and Intentional Defamation. Philippine Law seems to only cover what is defined as Intentional Defamation in Germany: “Whosoever intentionally and knowingly asserts or disseminates an untrue fact related to another person” while defamation in Germany is “Whosoever asserts or disseminates a fact related to another person which may defame him or negatively affect public opinion about him, shall, unless this fact can be proven to be true”.There is also a higher sentence for both if “if the act was committed publicly, in a meeting or through dissemination of written materials” – clever definition as jurisprudence simply had to define what is published on the Internet as public or equivalent to written materials, while simply talking around town has a smaller sentence, and you would have to have witnesses to prove it was said.
https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1701
A lot of sections in Chapter 14 of the German Criminal Code are repealed, as they probably are 19th century stuff. “Insult” still remains, Section 186, although it will usually be cops and clerks in government who file cases. Private altercations may often fall under Section 199 Mutual Insults.
https://en.wikipedia.org/wiki/Strafgesetzbuch#§_103:_Insulting_of_organs_and_representatives_of_foreign_states_(repealed)
Since January 1, 2018, I am free to insult Duterte. This is because President Erdogan filed a case against a German satirist, causing the German Parliament to repeal the old law prohibiting insults to foreign heads of state. I still am not allowed to do this, but why should I:
Whosoever removes, destroys, damages, renders unrecognisable or insults by mischief a flag of a foreign state, which is displayed according to legal provisions or recognised custom, or a state symbol of such a state which has been publicly installed by a recognised mission of such state, shall be liable to imprisonment not exceeding two years or a fine. – meaning I can indeed display a tattered Filipino flag in a blog article which is something I did once, but I may not go onto Embassy or Residence grounds and burn the flag of another country, or piss on it (“insult by mischief”). Special rules against insulting Ambassadors are gone also, only ordinary rules apply like to everyone else.
https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1482
There are rules similar to what was thrown at Carlos Celdran here in Germany. Whosoever publicly or through dissemination of written materials (section 11(3)) defames the religion or ideology of others in a manner that is capable of disturbing the public peace, shall be liable to imprisonment not exceeding three years or a fine. or Whosoever 1. intentionally and inappropriately disturbs a religious service or an act of religious worship of a church or other religious association within Germany or 2. commits defamatory mischief at a place dedicated to the religious worship of such a religious association shall be liable to imprisonment not exceeding three years or a fine.
Even if I think waving a placard in church would not interest anyone over here, it could only lead to sentencing if done during Holy Mass, disturbing the service. What Pussy Riot did in an Orthodox Church, even if outside of worship, could be considered “defamatory mischief”. Besides, minor offences by first timers in Germany usually do not lead to prison. Sentences two years and under are suspended, meaning all you have to do is report to a parole officer. The reason is not to destroy biographies – or expose normal people to the prison crowd.
This part is also interesting:
————
Section 188 Defamation of persons in the political arena
(1) If an offence of defamation (section 186) is committed publicly, in a meeting or through dissemination of written materials (section 11(3)) against a person involved in the popular political life based on the position of that person in public life, and if the offence may make his public activities substantially more difficult the penalty shall be imprisonment from three months to five years.
(2) An intentional defamation (section 187) under the same conditions shall entail imprisonment from six months to five years.
————-
Consider that many simple people (much like Leni Robredo) enter politics in Germany. Teachers who run for municipal council and take leave during their term. Notary publics who leave their office to their partners because they were elected for Mayor (the Bonn Mayor in the 1980s was a Notary Public with a functioning office). Owners of family businesses who let their family run the business while they are in the State Parliament – happens often in rural Germany. Imagine if these people were subject to the same harrassment by insults as what was the norm during the Weimar Republic, when especially Nazis insulted everybody. Insults could mean danger, as people who believed these insults sometimes acted on them.
*******
This definition of defamation would apply to Olivar.
“…unless this fact can be proven to be true.”
The onus of proof would be on him.
*****
The anus of proof? Hehe. Funny though how many Filipinos believe that tsismis is true. Some older ones will even say “where there is smoke, there is fire” as if that proved anything. Tsismis is often vicious, of course usually against people one doesn’t like.
Trolls only had to weaponize that aspect of Philippine society, spreading rumors like “Mar Roxas stole the Yolanda funds”. I have seen people nodding in absurd agreement about the strangest allegations in Filipino migrant communities, based on quarrels between groups.
In pre-enlightened societies, you had that often: “Christians sacrifice children” in Rome. Being able to look beyond emotions and check facts/logic is an acquired, modern skill.
The danger in this situation is that people could say “Leila de Lima did it also, didn’t she”?
That kind of “argument” almost qualifies as proof for many a Filipino from ordinary origins. Hate discussing in Filipino because the language does lack rigor, illogic passes easily.
True, vicious rumors and hearsay are often believed by a lot of Filipinos. Why are they hesitant to ask for evidence/proof from the bearer? Is it part of the feigned or false modesty?
I also agree that the it is oftentimes hard to express logical and abstract concepts in Filipino. Pero swak na swak sa pamimilosopo. Taglish and Konyo is easier but it is often ridiculed as the language of the oligarch.
Do you also find it as a subjective or a non-substantive language or is it just my lack of in-depth knowledge of it?
Three things:
1) your writing in Filipino has greatly improved, I think it is a result of practice. There were earlier articles that sounded a bit wooden, like school Tagalog. What you write now is more of a contemporary Filipino which reflects what is used in social media, more vivid/fluid.
2) It is not non-substantive, but it takes a lot of practice to express things substantively in Filipino. Ang peg ko diyan iyong mga isinusulat nila Trillanes at Gary Alejano. Filipino is after all a language of verbs, English and especially German are languages of nouns.
3) At times I just don’t feel like writing in the language. In fact at times I feel tired of all matters regarding Philippines and Filipinos. I feel a great distance to the mentality. Combined with a great sadness about why things have to be that way. What can I do?
Well, a bit of a break is what I’m taking, that’s what I’m doing now. All of us do at times. Hoping that the horror of a Marcos running the country with the Peso at 80:1$ doesn’t come.
*******
3. I once asked the question here, “Do you feel that your thinking is light-years away from contemporary Filipinos?”
@Josephivo replied that he didn’t, that we expend the same effort as a poor man thinking how to provide for the family.
I wasn’t thinking quantitatively, of course, but qualitatively.
If I were to pinpoint the quality, I would say it’s not only the unChristian violence of Duterte’s side but also the idolatry of the opposite sides. There is groupthink on all sides.
I am speaking not only of the idolatry of saints but also the idolatry of all false gods — of celebrities; of isms; of fame; of houses, cars, and gadgets; of sex partners; of money; of piety; and of power.
Everything is reduced to relative status.
Anyone who does not possess any of these in “sufficient” quantity is looked down upon. “Sufficient” being in the eyes of the beholder.
If you do possess any of these in “sufficient” quantity, you are looked up upon and privileged. The constraints of morality do not apply to you.
One may have status, but one can easily lose it because of groupthink. It’s almost impossible to put Sereno and Alvarez in the same sentence, never mind the same category, but they both lost “it.”
On the other hand, there’s Pacquiao who can lord it over all because he has an immense quantity of several false gods.
Our morality is idiosyncratic at worst and sectarian at best.
*****
Duterte is talking about resigning (again) but he wants someone like Bongbong or Chiz to replace him. The Marcos horror you are dreading might just be around the corner.
http://cnnphilippines.com/news/2018/08/15/Duterte-better-successor-Escudero-Marcos.html
I think he is hinting that he will over power or influence the PET and Escudero is just a red herring.
Just a trivial info, Neph – what does PET stand for? I can’t seem to find it.
sonny, PET is the Presidential Electoral Tribunal, de facto the Supreme Court.
With Sereno out, it might be easier for things to be cooked as Duterte wants.
Everything is reduced to relative status.
Anyone who does not possess any of these in “sufficient” quantity is looked down upon.
yes, that is so very true. Contempt is one very pervasive aspect of Philippine society.
There are also elements of very materialistic attitude in Munich, but not that CONTEMPT.
There is tolerance (sometimes even admiration) for stuff like Franz Beckenbauer saying “God rejoices over every child” after he got his secretary pregnant during a Bayern München Christmas party. But not this “you know who I am” at almost every street corner.
One may have status, but one can easily lose it because of groupthink.
Akin to the age of witch hunts over here in Europe.
Much thanks, Irineo.
I can emphatize with your #3. It is with a sense of resignation that I feel my interest of many things Filipino is slipping away by physical default. The undesirability of our present state of affairs in the islands are weighing heavily on this alienation.
You may have noticed that the speeches of President Duterte were laden with cussing, insults, altercations, sex jokes, profanity, and language that cast aspersions on the Office of the President. He has done these under the cover of “Freedom of Speech”. The kanto lingo simply termed it as “Spits Freedom”.
A collection of his speeches then, my kanto friend suggested title is “The Spittles of President Rodrigo Roa Duterte”.
You are funny. I like “Spits Freedom” or “Freedom of Spits” by PRD.
Yes. He seems to get a kick out of not only bringing shame to the highest office of the country but also recklessly disrespecting the Constitution.
JP, my friends of younger times from the Cordilleras said it first – freedom of spit w/ good serving of ‘nga-nga’ 🙂 More respectable than PrD, though.
That is even funnier, Kuya Sonny. Ipa-trending yan sa tweeter. 🙂