Members and partners of the International Freedom of Expression Exchange (IFEX) today urged the Court of Appeals to withdraw contempt charges against National Union of Journalists of the Philippines secretary general Rowena Paraan and Monette Salaysay, widow of Ampatuan massacre victim Napoleon Salaysay. (Please see joint letter below)
The charges stemmed from Paraan and Salaysay’s statements questioning the inconsistency of Associate Justices Banton Bueser and Marlene Gonzales-Sison. Bueser and Sison inhibited themselves from the deliberations on a petition of former Maguindanao Governor Andal Ampatuan Sr. to exclude him from the list of accused, but not in a similar petition filed by his son, suspended ARMM governor Zaldy Ampatuan. Both are primary suspects in the November 23, 2009 massacre.
“We accept that there is a need to protect the courts against statements that might undermine the fairness of proceedings, such as intimidation of witnesses. But we feel confident that the Philippine courts are able to withstand strong, even unfair, criticism and yet render justice,” IFEX wrote.
The global network of free expression organizations also expressed alarm over the chilling effect the contempt resolution would bring to journalists and other advocates of justice for the Ampatuan massacre victims.
“We urge the Justices to instead recognize the obligation of the judiciary to uphold the right to freedom of expression, in accordance with the international and constitutional obligations of the Philippines.”
Signed by 38 members and partners of IFEX, the joint letter expressed their firm support for the families of the massacre victims and Filipino journalists in the quest for justice and freedom of expression. #
Nestor Burgos, NUJP Chairperson, 0917.725.6333
Alwyn Alburo, NUJP Vice Chairperson, 0918.921.3712
Rowena Paraan, NUJP Secretary General, 0910.495.0095
Joint Action Letter: Philippines – Freedom of Expression and Justice in the Ampatuan Massacre Trials
Joint Action Letter: Philippines
June 2, 2011
The International Federation of Journalists (IFJ) alongside the Centre for Law and Democracy (CLD), the National Union of Journalists of the Philippines (NUJP) and 35 members of the International Freedom of Expression Exchange (IFEX) signed on to the following letter on the occasion of the 16th IFEX General Meeting in Beirut, Lebanon, on May 30 and 31.
Presiding Justice Andres B. Reyes, Jr.
Court of Appeals of the Philippines
Associate Justices (see Annex)
Court of Appeals of the Philippines
Court of Appeals
Ma. Orosa St, Ermita
Tel: +63 (02) 524 1241 to 52
His Excellency Benigno S. Aquino III
President, Republic of the Philippines
1610 J.P Laurel St.
Fax:+63 (2) 736-1010
Hon. Renato C. Corona
Chief Justice, Supreme Court
c/- Clerk of the Court
3rd Floor, New Supreme Court Building Annex
Padre Faura St., Ermita, 1000 Manila.
Fax: +63 (02) 525-3208
Hon. Leila M. De Lima
Secretary, Department of Justice
Hon. Loretta Ann P. Rosales
Chairperson, Commission on Human Rights
State Accounting & Auditing Center Bldg.
Commonwealth Ave., U.P. Complex
1101 Diliman, Quezon City
Fax: + 63 929 0102
June 2, 2011
Dear Justice Reyes and Associate Justices,
RE: Freedom of Expression and Justice in the Ampatuan Massacre Trials
We the undersigned members and partners of the International Freedom of Expression Exchange (IFEX) are writing to express our deep concerns about the 12 April 2011 Resolution of the Court of Appeals of the Philippines, Manila Special Division of Five, requiring Monette Salaysay and Rowena Paraan to explain why they should not be held in contempt for comments attributed to them in an article in thePhilippine Daily Inquirer regarding the Ampatuan Town Massacre trials.
The Resolution against Salaysay, whose husband Napoleon Salaysay was among 32 journalists and media workers murdered in the massacre of 58 people on 23 November 2009, and Paraan, the General Secretary of the National Union of Journalists of the Philippines (NUJP), leaves both women at risk of a jail term and financial punishment.
It remains unclear whether the petition was initiated by defence lawyers or independently by five justices of the Court of Appeals. We note however that the resolution is remarkably similar in argument and tone to a paid advertisement which had been placed in national dailies by the accused, Zaldy Ampatuan, whose case gave rise to the statements which are the subject of the Resolution.
The Resolution accuses Salaysay and Paraan of “foisting bias and corruption upon the members of the court” through their statements. In substance, the statements attributed to Salaysay and Paraan noted that although Associate Justices Danton Bueser and Marlene Gonzales-Sison recused themselves in the case of Andal Ampatuan Senior, they did not do so in the case of Zaldy Ampatuan. The statements questioned this apparent inconsistency.
As we gather in Lebanon for the bi-annual conference of IFEX, the international community of freedom of expression and press freedom defenders, we are alarmed at the chilling effect of the contempt Resolution, along with separate contempt claims against several prosecutors.
We note that the right to freedom of expression, as protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and of the Universal Declaration of Human Rights, and by the Constitution of the Philippines, imposes strict limits on the ability of courts to restrict freedom of expression to protect the administration of justice.
As the (then) three special international mandates on freedom of expression – the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organisation for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media, and the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression – stated in a Joint Declaration of 10 December 2002:
Special restrictions on commenting on courts and judges cannot be justified; the judiciary play a key public role and, as such, must be subject to open public scrutiny.
No restrictions on reporting on ongoing legal proceedings may be justified unless there is a substantial risk of serious prejudice to the fairness of those proceedings and the threat to the right to a fair trial or to the presumption of innocence outweighs the harm to freedom of expression.
Courts in many countries have distinguished between statements which are critical and paint courts and/or judges in a bad light (known in common law jurisdictions as “scandalising the court”), and statements which undermine the fairness of judicial proceedings. While historically, courts responded to criticism through contempt proceedings, in many countries this is effectively a thing of the past.
In the United States, the offence of “scandalising the court” is effectively a dead letter. The Supreme Court has made it clear, in a series of cases, that only statements which create a “clear and present danger” to the administration of justice (i.e. the fairness of proceedings) may attract sanction.
In Canada, the situation is similar. The standard was set in a 1987 case involving the most stringent possible criticism, alleging that the courts were “warped” in favour of protecting the police, made not by a journalist but by a lawyer, an officer of the court. In response, the Court stated:
But the courts are not fragile flowers that will wither in the hot heat of controversy…. The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions.
We note that the Resolution of the Court of Appeals of the Philippines appears at points to confuse the two objectives of the contempt power, noted above (protection against criticism and protection of the fairness of justice). Thus, on page five, the Resolution states:
In appropriate cases, the court in order to preserve its dignity, can be forced to wield its inherent power to punish for contempt persons responsible for any abuse of or unlawful interference with the processes or proceedings of a court….”
We accept that there is a need to protect the courts against statements that might undermine the fairness of proceedings, such as intimidation of witnesses. But we feel confident that the Philippine courts are able to withstand strong, even unfair, criticism and yet render justice. This is particularly true where, as is the case here, no jury is involved.
We therefore call on members of the Court of Appeals of the Philippines to withdraw the Resolution immediately. We urge the Justices to instead recognise the obligation of the judiciary to uphold the right to freedom of expression, in accordance with the international and constitutional obligations of the Philippines.
Like many members of the broader Philippine public, we are distressed by the manner in which hearings into the massacre continue to be vexed by stalling tactics and unacceptable delays and distractions in prosecuting the accused on charges related to the murders of 57 of the 58 victims of 23 November 2009.
More than 18 months since the massacre horrified the world, it is imperative that the judiciary and courts of the Philippines ensure that the focus of judicial actions is the prosecution of all those responsible for ordering and undertaking this horrendous crime, rather than permitting continued distractions.
Meanwhile, we continue to stand firmly with the families of the victims and with our colleagues in the Philippines in their honourable quest for justice and defence of the right of all peoples to speak out on matters of grave public importance.
1. Centre for Law and Democracy
2. International Federation of Journalists (IFJ)
3. National Union of Journalists of the Philippines (NUJP)
4. Aliansi Jurnalis Independen (Alliance of Independent Journalists)
5. Arabic Network for Human Rights Information
6. ARTICLE 19: Global Campaign for Free Expression
7. Association of Caribbean Media Workers
8. Cambodian Center for Human Rights
9. Canadian Journalists for Free Expression
10. Center for Journalism in Extreme Situations
11. Center for Media Freedom and Responsibility
12. Center for Media Studies & Peace Building
13. Centre for Independent Journalism
14. Centro de Reportes Informativos sobre Guatemala
15. Egyptian Organization for Human Rights
16. Foundation for Press Freedom
17. Freedom Forum
18. Freedom House
19. Free Media Movement
20. Globe International
21. Hong Kong Journalists Association
22. Independent Journalism Center
23. Index on Censorship
24. IPS Communication Foundation
25. Maharat Foundation (Skills Foundation)
26. Media, Entertainment and Arts Alliance
27. Media Foundation for West Africa
28. Media Institute of Southern Africa
29. Media Rights Agenda
30. Media Watch
31. Mizzima News
32. National Union of Somali Journalists
33. Norwegian PEN
34. Observatoire pour la liberté de presse, d’édition et de création
35. Pacific Islands News Association
36. Pakistan Press Foundation
37. Southeast Asian Press Alliance
38. South East European Network for the Professionalization of the Media
Associate Justices – Court of Appeals of the Philippines
Associate Justice Portia Aliño Hormachuelos
Associate Justice Remedios Salazar Fernando
Associate Justice Bienvenido L. Reyes
Associate Justice Josefina Guevara Salonga
Associate Justice Rebecca De Guia Salvador
Associate Justice Juan Q. Enriques, JR.
Associate Justice Amelita G. Tolentino
Associate Justice Mario L. Guariña III
Associate Justice Rosmari D. Carandang
Associate Justice Hakim S. Abdulwahid
Associate Justice Noel G. Tijam
Associate Justice Rosalinda Asuncion Vicente
Associate Justice Jose C. Reyes, JR.
Associate Justice Fernanda Lampas Peralta
Associate Justice Magdangal M. De Leon
Associate Justice Vicente S. E. Veloso
Associate Justice Isaias P. Dicdican
Associate Justice Japar B. Dimaampao
Associate Justice Celia C. Librea- Leagogo
Associate Justice Pampio A. Abarintos
Associate Justice Estela M. Perlas- Bernabe
Associate Justice Mariflor Punzalan Castillo
Associate Justice Sesinando E. Villon
Associate Justice Ramon M. Bato, Jr.
Associate Justice Romulo V. Borja
Associate Justice Edgardo A. Camello
Associate Justice Rodrigo F. Lim, Jr.
Associate Justice Normandie B. Pizarro
Associate Justice Apolinario D. Bruselas, Jr.
Associate Justice Ramon R. Garcia
Associate Justice Ricardo R. Rosario
Associate Justice Francisco P. Acosta
Associate Justice Stephen C. Cruz
Associate Justice Jane Aurora C. Lantion
Associate Justice Michale P. Elbinias
Associate Justice Elihu A. Ybañez
Associate Justice Franchito N. Diamante
Associate Justice Amy C. Lazaro- Javier
Associate Justice Rodil V. Zalameda
Associate Justice Florito S. Macalino
Associate Justice Edgardo T. Lloren
Associate Justice Edgardo L. Delos Santos
Associate Justice Manuel M. Barrios
Associate Justice Samuel H. Gaerlan
Associate Justice Danton Q. Bueser
Associate Justice Leoncia R. Dimagiba
Associate Justice Edwin D. Sorongon
Associate Justice Ramon A. Cruz
Associate Justice Agnes R. Carpio
Associate Justice Socorro B. Inting
Associate Justice Angelita A. Gacutan
Associate Justice Myra G. Fernandez
Associate Justice Eduardo B. Peralta, Jr.
Associate Justice Ramon Paul L. Hernando
Associate Justice Nina G. Antonio- Valenzuela
Associate Justice Gabriel T. Ingles
Associate Justice Victoria Isabel A. Paredes
Associate Justice Abraham B. Borreta
Associate Justice Pamela Ann Abella Maxino
Associate Justice Carmelita Salandanan Manahan
Associate Justice Melchor Quirino C. Sadang
Associate Justice Zenaida T. Galapate Laguilles