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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
1000 Manila
Philippines
Tel: +63 (02) 524 1241 to 52
Email: ca_manila@yahoo.com

CC:

His Excellency Benigno S. Aquino III


President, Republic of the Philippines
Malacañang Palace
1610 J.P Laurel St.
San Miguel
Manila, Philippines
Fax:+63 (2) 736-1010
Email: opsnews2004@gmail.com

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.
Philippines
Fax: +63 (02) 525-3208
Email: pio@sc.judiciary.gov.ph

Hon. Leila M. De Lima


Secretary, Department of Justice
Email: lmdelima@doj.gov.ph

Hon. Loretta Ann P. Rosales


Chairperson, Commission on Human Rights
State Accounting & Auditing Center Bldg.
Commonwealth Ave., U.P. Complex
1101 Diliman, Quezon City
Philippines
Fax: + 63 929 0102
chair.rosales.chr@gmail.com
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 the
Philippine 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.1

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.2

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.

1
Bridges v. California, 314 US 252, 270-71 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craig
v. Harney, 331 US 367 (1947); Wood v. Georgia, 370 US 375 (1962).
2
R. v. Koptyo, (1987), 62 OR (2d) 449, p. 469 (Ontario Court of Appeal).
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.

Yours Respectfully,

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
ANNEX

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