Presiding Justice Andres B. Reyes, Jr.Court of Appeals of the PhilippinesAssociate Justices (see Annex)Court of Appeals of the PhilippinesCourt of AppealsMa. Orosa St, Ermita1000 ManilaPhilippinesTel: +63 (02) 524 1241 to 52Email: firstname.lastname@example.orgCC:His Excellency Benigno S. Aquino IIIPresident, Republic of the PhilippinesMalacañang Palace1610 J.P Laurel St.San MiguelManila, PhilippinesFax:+63 (2) 736-1010Email: email@example.comHon. Renato C. CoronaChief Justice, Supreme Courtc/- Clerk of the Court3rd Floor, New Supreme Court Building AnnexPadre Faura St., Ermita, 1000 Manila.PhilippinesFax: +63 (02) 525-3208Email: firstname.lastname@example.orgHon. Leila M. De LimaSecretary, Department of JusticeEmail: email@example.comHon. Loretta Ann P. RosalesChairperson, Commission on Human RightsState Accounting & Auditing Center Bldg.Commonwealth Ave., U.P. Complex1101 Diliman, Quezon CityPhilippinesFax: + 63 929 firstname.lastname@example.org
June 2, 2011Dear Justice Reyes and Associate Justices, RE: Freedom of Expression and Justice in the Ampatuan Massacre TrialsWe the undersigned members and partners of the International Freedom ofExpression Exchange (IFEX) are writing to express our deep concerns about the 12April 2011 Resolution of the Court of Appeals of the Philippines, Manila SpecialDivision of Five, requiring Monette Salaysay and Rowena Paraan to explain why theyshould 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 among32 journalists and media workers murdered in the massacre of 58 people on 23November 2009, and Paraan, the General Secretary of the National Union ofJournalists of the Philippines (NUJP), leaves both women at risk of a jail term andfinancial punishment.It remains unclear whether the petition was initiated by defence lawyers orindependently by five justices of the Court of Appeals. We note however that theresolution is remarkably similar in argument and tone to a paid advertisement whichhad been placed in national dailies by the accused, Zaldy Ampatuan, whose casegave rise to the statements which are the subject of the Resolution.The Resolution accuses Salaysay and Paraan of “foisting bias and corruption uponthe members of the court” through their statements. In substance, the statementsattributed to Salaysay and Paraan noted that although Associate Justices DantonBueser and Marlene Gonzales-Sison recused themselves in the case of AndalAmpatuan Senior, they did not do so in the case of Zaldy Ampatuan. The statementsquestioned this apparent inconsistency.As we gather in Lebanon for the bi-annual conference of IFEX, the internationalcommunity of freedom of expression and press freedom defenders, we are alarmedat the chilling effect of the contempt Resolution, along with separate contempt claimsagainst several prosecutors.We note that the right to freedom of expression, as protected by Article 19 of theInternational Covenant on Civil and Political Rights (ICCPR) and of the UniversalDeclaration of Human Rights, and by the Constitution of the Philippines, imposesstrict limits on the ability of courts to restrict freedom of expression to protect theadministration of justice.As the (then) three special international mandates on freedom of expression – theUnited Nations Special Rapporteur on Freedom of Opinion and Expression, theOrganisation for Security and Cooperation in Europe (OSCE) Representative onFreedom of the Media, and the Organisation of American States (OAS) SpecialRapporteur on Freedom of Expression – stated in a Joint Declaration of 10December 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 criticaland 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 judicialproceedings. While historically, courts responded to criticism through contemptproceedings, in many countries this is effectively a thing of the past.In the United States, the offence of “scandalising the court” is effectively a deadletter. The Supreme Court has made it clear, in a series of cases, that onlystatements which create a “clear and present danger” to the administration of justice(i.e. the fairness of proceedings) may attract sanction.1In Canada, the situation is similar. The standard was set in a 1987 case involving themost stringent possible criticism, alleging that the courts were “warped” in favour ofprotecting 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.2We note that the Resolution of the Court of Appeals of the Philippines appears atpoints to confuse the two objectives of the contempt power, noted above (protectionagainst criticism and protection of the fairness of justice). Thus, on page five, theResolution 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 mightundermine the fairness of proceedings, such as intimidation of witnesses. But we feelconfident that the Philippine courts are able to withstand strong, even unfair, criticismand yet render justice. This is particularly true where, as is the case here, no jury isinvolved.We therefore call on members of the Court of Appeals of the Philippines to withdrawthe Resolution immediately. We urge the Justices to instead recognise the obligationof the judiciary to uphold the right to freedom of expression, in accordance with theinternational and constitutional obligations of the Philippines.1 Bridges v. California, 314 US 252, 270-71 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craigv. 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 themanner in which hearings into the massacre continue to be vexed by stalling tacticsand unacceptable delays and distractions in prosecuting the accused on chargesrelated 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 thejudiciary and courts of the Philippines ensure that the focus of judicial actions is theprosecution of all those responsible for ordering and undertaking this horrendouscrime, rather than permitting continued distractions.Meanwhile, we continue to stand firmly with the families of the victims and with ourcolleagues in the Philippines in their honourable quest for justice and defence of theright 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, dédition 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
ANNEXAssociate Justices - Court of Appeals of the PhilippinesAssociate Justice Portia Aliño HormachuelosAssociate Justice Remedios Salazar FernandoAssociate Justice Bienvenido L. ReyesAssociate Justice Josefina Guevara SalongaAssociate Justice Rebecca De Guia SalvadorAssociate Justice Juan Q. Enriques, JR.Associate Justice Amelita G. TolentinoAssociate Justice Mario L. Guariña IIIAssociate Justice Rosmari D. CarandangAssociate Justice Hakim S. AbdulwahidAssociate Justice Noel G. TijamAssociate Justice Rosalinda Asuncion VicenteAssociate Justice Jose C. Reyes, JR.Associate Justice Fernanda Lampas PeraltaAssociate Justice Magdangal M. De LeonAssociate Justice Vicente S. E. VelosoAssociate Justice Isaias P. DicdicanAssociate Justice Japar B. DimaampaoAssociate Justice Celia C. Librea- LeagogoAssociate Justice Pampio A. AbarintosAssociate Justice Estela M. Perlas- BernabeAssociate Justice Mariflor Punzalan CastilloAssociate Justice Sesinando E. VillonAssociate Justice Ramon M. Bato, Jr.Associate Justice Romulo V. BorjaAssociate Justice Edgardo A. CamelloAssociate Justice Rodrigo F. Lim, Jr.Associate Justice Normandie B. PizarroAssociate Justice Apolinario D. Bruselas, Jr.Associate Justice Ramon R. GarciaAssociate Justice Ricardo R. RosarioAssociate Justice Francisco P. AcostaAssociate Justice Stephen C. CruzAssociate Justice Jane Aurora C. LantionAssociate Justice Michale P. ElbiniasAssociate Justice Elihu A. YbañezAssociate Justice Franchito N. DiamanteAssociate Justice Amy C. Lazaro- JavierAssociate Justice Rodil V. ZalamedaAssociate Justice Florito S. MacalinoAssociate Justice Edgardo T. LlorenAssociate Justice Edgardo L. Delos SantosAssociate Justice Manuel M. BarriosAssociate Justice Samuel H. GaerlanAssociate Justice Danton Q. BueserAssociate Justice Leoncia R. DimagibaAssociate Justice Edwin D. SorongonAssociate Justice Ramon A. CruzAssociate Justice Agnes R. CarpioAssociate Justice Socorro B. IntingAssociate Justice Angelita A. Gacutan
Associate Justice Myra G. FernandezAssociate Justice Eduardo B. Peralta, Jr.Associate Justice Ramon Paul L. HernandoAssociate Justice Nina G. Antonio- ValenzuelaAssociate Justice Gabriel T. InglesAssociate Justice Victoria Isabel A. ParedesAssociate Justice Abraham B. BorretaAssociate Justice Pamela Ann Abella MaxinoAssociate Justice Carmelita Salandanan ManahanAssociate Justice Melchor Quirino C. SadangAssociate Justice Zenaida T. Galapate Laguilles