Monday, October 8, 2012

Cyber Libel and Constitutional Precedents

The cyber crime law’s section on libel brings to focus once again, the landmark case of New York Times v. Sullivan [1], and its progeny. We focus on the case because it has been declared by the Supreme Court as applicable in the Philippines.

New York Times was a civil libel case filed in the State of Alabama by Montgomery City Commissioner L.B. Sullivan against the New York Times. The suit, involved the following statement, among others:
In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama
State College Campus.

             As police commissioner, Sullivan felt alluded to.

 New York Times held that a civil action for libel filed by a public official is constitutional if there is a showing of actual malice on the part of the publisher. For civil libel to prosper, the statement must have been made with “knowledge that it was false or with reckless disregard of whether it was false or not." Applying New York Times, in a later case, the US Supreme Court further fashioned "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages."[2]
The  doctrine laid down in New York Times was later applied by the US Supreme Court in the criminal case of Garrison v. Louisiana. This case is of particular importance, because the defamation statute of Louisiana very closely resembles the Philippine libel law, the essential elements of which are: (1) a defamatory statement, and (2) publication. Like the Philippine libel law, Louisiana presumes malice in a defamatory statement. In fact, it employs essentially the same phraseology.

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: (Revised Penal Code, Article 354).
"Where a nonprivileged defamatory publication or expression is false it is presumed to be malicious unless a justifiable motive for making it is shown."  (La.Rev.Stat.1950, Tit. 14: "§ 48. Presumption of malice" , Footnote 1 of Garrison v. Louisiana)

A legal presumption, however, dispenses with the prosecution’s presentation of evidence. The presumption shifts the burden on the defense -  to prove the absence of malice.

Malice is an essential element of the offense of libel (defamation in the US). But the presumption of malice unburdens the prosecution from proving that element, in violation of the constitutional requirement that the prosecution prove each and every element of the offense. The US Supreme Court held that the Louisiana prosecution was unconstitutional. It  did not, however, categorically declare the defamation statute unconstitutional.

 Seventeen years after New York Times, in the case of Ivey v. Alabama, the Supreme Court of Alabama declared Alabama’s defamation statute unconstitutional. The law was struck down because it did not require the showing of actual malice as declared in New York Times. The statute used the term “maliciously”, instead of requiring actual malice.  

 “The State argues that, even if § 13A-11-163 does not expressly require “actual malice,” it can be made constitutional by this Court's interpreting the statutory term “maliciously” to mean “with actual malice.”   The State further points out that the trial judge instructed the jury that in order to convict Ivey for criminal defamation it had to find that Ivey had acted with “actual malice” and that the judge then instructed the jury that to find “actual malice” it had to find that Ivey had acted with “either actual knowledge that the accusation was false or [with] a reckless disregard of whether or not the accusation was false or not”; the State then argues that, given these instructions, the charge was within the constitutional bounds of the First Amendment.” 

Ivey v. State of Alabama 100141 July 6, 2001 [3]
 As quoted above, the State government tried to save the statute by arguing that the trial judge did require the showing of actual malice, in his instructions to the jury. The Supreme Court of Alabama, however, was unmoved. It held that the constitutional application of an unconstitutional statute does not cure the statute. Finding persuasion from decisions of the Supreme Courts of Alaska, and Pennsylvania, the Supreme Court of Alabama held that reading “actual malice” into the term “maliciously” would  amount to legislation, not interpretation. [4]

This is of particular importance, in light of the declaration of the Philippine Department of Justice that it would hew closely to Constitutional standards in the drafting of the Implementing Rules and Regulations of the cyber crime law. Applying the logic of Ivey v. Alabama, any attempt at constitutional rectitude in the drafting of the IRR is irrelevant to the consideration of whether or not the cyber crime law is unconstitutional.  Constitutionally correct implementing rules cannot cure the unconstitutionality of the mother law. The vine supports the branch; the branch cannot nourish the vine. If the vine is dead, the branch is rendered lifeless as well.
The doctrine of New York Times has been applied in the Philippines in a fashion similar to the application by the lower courts of Alabama. Acquittals have been declared in cases where actual malice was not proven. So it is the conduct of the prosecution that has been weighed, not the text of the law, in determining constitutionality. This runs counter to the superior logic of Ivey v. Alabama, that constitutional applications do not save an unconstitutional law.

Opinion-makers have advanced the argument that the case is not ripe for adjudication, because there is no real, and direct injury to any of the petitioners. This is the prevailing view in the United States – that a criminal statute may only be challenged by one indicted under said statute. Any other petitioner is deemed to have no standing before the court. This is where Philippine precedent parts company with American jurisprudence. In the recent case of LAMP v. The Secretary of the Budget (G.R. No. 164987) [5]the Supreme Court, en banc, held that:  "xxx   taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.

It bears noting that there is an appropriation of 50 million pesos per year for the implementation of this statute. In order, therefore, that not a single peso of that appropriation is devoted to unconstitutional purposes, the objectionable sections of the statute must be declared unconstitutional.

It has also been urged that the Supreme Court stay its hand; that it exercise judicial restraint because the legislature has declared its intention of amending the law, and the executive has declared that it would apply the law judiciously. But neither legislative intentions, nor declared prosecutorial restraint, have formed the basis for judicial abstention. Intended changes are not facts; and it is elementary that courts decide only on the basis of facts.

Despite their professed adherence to the principles that underlay the Bill of Rights, many legislators agreed to the bill. Is it because they want to minimize internet posts critical of them? There is Tito Sotto and the plagiarism issue. There is Villar and the corruption issue. In the case of the executive, were they also motivated by self-interest? To chill internet posts like the Abnoy youtube videos, and the dalliances of the Executive Secretary with a hot number?

And what of the Court? After all, there are also issues about its Members. There is the psychological test of the Chief Justice. There are the talks about the Firm, its founding member, and former closeness to Gloria Arroyo. There is the still lingering talk about the plagiarism of another justice. Will the Court members yield to self-interest in deciding this case? Will the Court yield to the political power of the few?  Or will the Court members decide in such a way as to deserve their title? Justice.

[1]    New York Times v. Sullivan 376 US 254

[2]      Milkovich v. Lorain Journal Co. 479 US1, quoting  Philadelphia Newspapers, Inc. v.                     Hepps,   475 U.S. 767 (1986)

[4]     In Gottschalk, the State of Alaska argued that the Alaska criminal-defamation statutes should be narrowed to escape a holding of constitutional infirmity and that the trial court had properly narrowed them in its jury instructions;  that argument was very similar to that  The Supreme Court of Alaska, presented here by the State of Alabama.  however, disagreed, and stated:
“We recognize the rule of construction that where it is reasonably possible to do so, statutes should be construed in a manner consistent with constitutional  Here, however, ․ we are not able to save the statute in requirements.  question because in doing so we would be stepping over the line of interpretation and engaging in legislation.
“We are supported in our conclusion that it would be improper for us to engage in the radical reconstruction necessary to save [the statutes] from unconstitutionality by the decisions of other state courts which have  In Commonwealth v. Armao, 446 Pa. 325, dealt with the same problem.  286 A.2d 626 (1972) the Pennsylvania Supreme Court struck down criminal libel statutes which suffered from the same defect as ours, stating:
“ ‘The Commonwealth urges us to in effect re-draft the criminal libel  To accede to statutes in accordance with First Amendment requirements.  this request would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation.’ ”
 The Gottschalk court also noted: 575 P.2d at 296.
“If we were to engage in the process of narrowing suggested by the State, after striking [the statute making truth a partial defense] we would then have to decide whether [the defamation statute] should be limited only to cases of private defamation or should apply to defamation of public officials, public figures or concerning public issues;  whether truth should be an absolute or a conditional defense to private defamation;  and, whether a private false defamation which is neither  The variety of knowingly nor recklessly false should be criminal.  these choices underscores the essentially legislative nature of the task of bringing our defamation statutes within constitutional bounds.”


Tuesday, May 8, 2012

Renato Corona’s SALN - Three Grounds for Dismissal of Article 2
of the Articles of Impeachment

The failure to provide information in the SALN is alleged to be an impeachable offense; removal is sought on the basis of three grounds:

  1. That it is a violation of the anti-graft and corrupt practices act;
  2. That it is a culpable violation of the Constitution; and
  3. That it is a betrayal of the public trust.
 Graft and corruption

On the first issue, the complaint states that:

“2.3. It is also reported that some of the properties of Respondent are not included in his declaration of his assets, liabilities, and net worth, in violation of the anti-graft and corrupt practices act.”

As basis for impeachment, the Constitution provides as follows:

The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. ( Art XI Section 2)

Note that the Constitution states “graft and corruption”, while the complaint alleges “violation of the anti-graft and corrupt practices act”. Is there a difference? Or is this mere sophistic quibbling?

There is no sophistry if the law itself declares the difference.

The Anti-Graft and Corrupt Practices Act states that:

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (Italics supplied in the law)

An enumeration of acts declared to be corrupt practices follows in subsections 3 (a) to 3 (k). They are acts that range from receiving a    commission in any government contract (3 b), requesting a gift from an applicant for a government permit or license (3 c), and giving a party an unwarranted advantage or preference in the discharge of the public official’s duty.

The  mandatory requirement to submit SALNs, however, is found in Section 7.
 It is clear from the foregoing, that the mandate to submit SALNs is not part of Section 3, which declares what are “corrupt practices”. Any failure to comply with Section 7, therefore, cannot be considered an act of corruption to provide basis for impeachment under the phrase “graft and corruption” found in Section 2 of Article XI.

There is no guile, therefore, if the respondent submits that the Constitutional provision referring to “graft and corruption” does not apply to him. There is, in fact, craftiness in the complaint, in alleging “violation of the anti-graft and corrupt practices act”, to yield a basis for impeachment which is easy to prove.

Aside from the textual basis for non-inclusion of Section 7 in the coverage of “graft and corruption” under Section 2 Art XI of the Constitution, exclusion is also warranted based on conceptual grounds. The crimes (treason, bribery, high crimes) enumerated in the provision of the Constitution refer to crimes which are mala in se.

It might be pertinent at this point to hark back to the concept of mala in se as opposed to mala prohibita,  for that is what distinguishes Section 3 (mala in se) from Section 7 (mala prohibita).

Any freshman law student will proudly recite that an act that is mala in se is an act that is inherently evil - one that is universally characterized as immoral or depraved. Majority of the crimes defined by law are of such nature – murder, rape, robbery.

An act that is mala prohibita, on the other hand, is punishable, only because the Congress declares so. The declaration is made, as a matter of public policy, to effect a behavioral change in society. The resultant behavior is, in the judgment of Congress, a good that must be pursued. Congress, however, pursues the good through the stick, and not the carrot. Penalties are imposed, in the hope of effecting behavioral change.

An example is the prohibition on overspending during the elections. There is nothing inherently wrong in a rich man spending all his money to chase a public office. But Congress saw it fit to level the playing field, for which reason, it has made it an election offense to spend beyond some limit.

Another is the ban on smoking in certain areas.

The offenses enumerated in Section 3, being mala in se require the element of mens rea (intent), aside from the prohibited act.  The element of intent … is described as the state of mind accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the resolve with which a person proceeds. It does not refer to mere will, for the latter pertains to the act, while intent concerns the result of the act. [1]

The result of the acts which characterize most offenses involving graft and corruption, is the pecuniary gain to the offender. Commissions, gifts, etc., all produce material gain to the offender. There is no material gain, however, in the refusal to disclose financial information. In fact, refusal may be motivated, not by a desire to conceal corruption, but by a desire to shield one’s privacy, from intrusions by the state. The latter is exemplified in the case of Morfe v. Mutuc.

In that case, Judge Jesus P. Morfe, in the words of the Supreme Court, “a judge of repute of a court of first instance” [2], refused to submit his SALN after his first submission. He questioned Section 7 of RA 3019 in a declaratory relief action before the court of first instance (presided by another judge). The lower court sustained Judge Morfe, which prompted the government to elevate the matter before the Supreme Court.

On the basis of textual and conceptual evaluation, therefore, a removal is not warranted on the ground of “graft and corruption”.

Culpable violation

Another potential basis for removal is the alleged “culpable violation” of the Constitution. The prosecution asserts that submission of the SALN is required under the Constitution.

Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. (Article XI)

The mandate of the Constitution only requires a submission, which was complied with when the respondent submitted his SALN to the Clerk of Court of the Supreme Court. Even if the respondent refused to submit his SALN as Judge Morfe did, it is doubtful that this can serve as the basis for removal.

It bears noting that the Constitutional provision only refers to the filing of the SALN upon assumption of office. Subsequent filings are provided by law, and their non-compliance is dealt with in accordance with said statute. Any violation after a first filing, therefore, is  covered by law, not the Constitution. This, clearly, is not a basis for removal.

In fact, not every failure to comply with a Constitutional mandate can serve as a basis for removal. The violation, it is submitted, must be one that is mala in se (inherently evil), like the other bases for removal, because the phrase “culpable violation” of the Constitution appears in the same enumeration as treason, bribery, and graft and corruption. Under the principle of ejusdem generis, when an enumeration is made, the enumerated items are deemed to be of the same nature or characteristic.

But is there a violation of a Constitutional mandate that cannot be considered inherently evil? It is submitted that such a violation is possible.

The Constitution provides that:

“The President shall submit to the Congress, within thirty days from the opening of every regular session as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.” (Section 22, Article VII). 

If a President decides that he needs more time to arrive at a workable budget, and submits it sixty days after the opening of session, it certainly will not furnish a basis for removal. And the reason for that is the fact that no evil intent can be ascribed to the President, nor can a resultant evil occur (Congress still has months to deliberate).

Similarly, the Constitution provides that: “The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.” (Section 23, Article VII).

A President, like Thomas Jefferson and all subsequent presidents before Woodrow Wilson, may believe that the address is too monarchical (similar to the Speech from the Throne) [3]. If said President sends a report, instead of addressing Congress, it is doubtful that the refusal to address Congress would form the basis for a removal. The reason for that is the fact that the refusal is not an act that is mala in se, like treason and bribery; there being no resultant evil, nor evil intent in the refusal.

The second ground, therefore, cannot be invoked for a removal.

Betrayal of Public Trust

A third potential basis for removal is the alleged betrayal of public trust. In submitting a less than complete SALN, it is argued that the respondent betrayed the public trust. The prosecution seems to  imply that the term “trust” in the phrase “public trust” refers to the candor demanded of a public official,  as in “The public can no longer trust the respondent because he lied when he filled up his SALN.”  The phrase “betrayal of public trust”, however, is not a term of Philippine coinage. As used in the United States, the phrase refers to a breach of fiduciary obligation, not want of candor or dishonesty.

In the case of US v. Addonizio [442 U.S. 178 (1979)], the City Mayor of Newark, New Jersey was charged with extortion, in conspiracy with 14 others. Said crime of extortion was characterized by the District Court as “a serious breach of public trust”.

In the case of US v. Clarence E. Braasch [502 F.2d 139], the Court of Appeals for the Seventh Circuit commenced its decision by stating that: This prosecution, brought under the extortion statute, depicts a betrayal of public trust of the most alarming type to a free society: the corruption of the entire vice squad of the 18th Police District of Chicago over a period of many years.

And in the case of United States Postal Service v. National Association of Letter Carriers (847 F.2d 775), a case involving theft of mail by a post office employee, the Court of Appeals for the Eleventh Circuit the defendant’s “conduct violated his fiduciary responsibilities and amounted to a betrayal of public trust.”

The above cases illustrate that the phrase “public trust”, in the American context, signifies fiduciary obligation; a breach of that fiduciary obligation is what constitutes a betrayal of public trust.

Although not expressly stated in the American Constitution, betrayal of public trust is a basis for removal, understood to be included in the phrase “high crimes and misdemeanors”. Such understanding was culled from English law, the origin of the American concept of impeachment.

As early as 1701, Lord Halifax was impeached for corrupt practices and betrayal of trust. “Thus, under English precedent, “high crimes and misdemeanors” denoted a category of political crimes against the state that was “beyond the reach of ordinary criminal redress,” which included: “misapplication of funds… abuse of official power… neglect of duty…encroachment on or contempt of Parliament’s prerogatives,” and corrupt practices and betrayal of public trust.” [4]

“Blackstone defines the “first and principal” high misdemeanor as “maladministration of such high officers as are in public trust and employment,” usually punished by Parliamentary impeachment.” [5]

Similarly, Alexander Hamilton described impeachment as  follows:

[It is appropriate for] those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” [6]

Pursuant to the understanding that “high crimes” includes betrayal of public trust, “Judge George W. English was charged with favoritism and breach of public trust and confidence”  in 1926. [7]  The charges stemmed from an investigation which found that Judge English manipulated bankruptcy funds (held in trust), and usurped powers over state officers. [8]

The four articles of impeachment presented against Richard M. Nixon, all employed the phrase “Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government.” [9] Clearly, all the articles alleged that Nixon betrayed the trust reposed in him as a President.

Again, by that term “trust”, is meant fiduciary obligation, not candor. In legal parlance, the term trust always is employed to mean fiduciary obligation, not candor. When one creates a (private) trust, for instance, one appoints an agent, called a trustee, who is given property to be held in trust, and managed for a beneficiary.

At the common law, one encounters the doctrine of “public trust”. “The origins of the public trust doctrine are traceable to Roman law concepts of common property. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. This concept that tide and submerged lands are unique and that the state holds them in trust for the people has endured throughout the ages..” [10]

The State as trustee, is entrusted with common property; concomitant to its control of the common property, is the fiduciary duty to maintain the property for the public good.

Similarly, when it is stated that public office is a public trust, that signifies that something is given to the public official, which he holds, or uses in trust, for the common good. That something is a portion of sovereign power; the executive power, in the case of the President, and the power to decide cases, in the case of the judiciary. Said sovereign power is to be wielded for the common good, not for personal gain. So when the sovereign power is exercised for personal gain, as when bribes are received for a favorable judgment, it is at such a time that there is a betrayal of public trust – a derogation of the fiduciary obligation to exercise the power for the benefit of the public.

So only when the exercise of judicial power is tainted with the motive of personal gain, would there be a betrayal of public trust by a judicial officer. 

A similar intention is manifested in the deliberations of the Constitutional Commission, quoted in the concurring opinion of Justice Carpio in the case of Merceditas Gutierrez v House of Representatives G.R.  193459:


Just for the record, what would the Committee envision as a betrayal of public trust which is not otherwise covered by by other terms antecedent thereto?

MR. ROMULO. I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed the trust.

MR. REGALADO. Thank you.

MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.

THE PRESIDENT. Commissioner de los Reyes is recognized.

MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President.(Emphasis in the concurring opinion).

Viewed in its proper context, then, betrayal of public trust cannot be the basis for removal of the respondent, on the allegation that he lied when he filled up his SALN. The accomplishment of the SALN, and its submission, is not an exercise of judicial power, the abuse or misuse of which is a breach of the judge’s fiduciary obligation. Submission of the SALN is a burden on all public officials that has no relation at all to the powers conferred on the officials.

Commentators favoring the prosecution seek to persuade by alluding to the case of Federal District Judge Harry Claiborne, who was removed for tax evasion and falsification of tax returns. Commentators claim that the falsification of tax returns by Harry Claiborne is akin to the alleged falsification by the respondent of his SALN. The Philippine Senate should, therefore,  convict as the US Senate did.

What commentators fail to disclose is that Harry Claiborne had been convicted of tax evasion by a jury, prior to impeachment. The convicted and imprisoned Judge Claiborne refused to resign and continued to collect his full salary, while in prison. It is for that reason that impeachment as a sword, was once again unsheathed by the legislature after a fifty-year hiatus. [11]

The foregoing discussion shows that the facts proven, clearly do not allege a Constitutional violation. A dismissal of Article 2, therefore, is in order.

[1]  Antonio Villareal et al v. People of the Philippines (the Lenny Villa case penned by Sereno).

[2] Judge Jesus P. Morfe worked with the luminaries of old:

1.      He first appeared before the Supreme Court in  August 1935, with Claro M. Recto, in case of  Matias Sales v. Director of Lands (G.R. No. L-41901).
2.      He next appeared in the case of Sebastiana Rodriguez v. Irinea Caoibes (G.R. No. 34147), along with Claro M Recto, and the Sumulong, Lavides and Sumulong law firm; they faced Ramon Diokno (later appointed Supreme Court justice).
3.      In December 1949, Morfe appeared with Claro M. Recto (justice), Manuel C. Briones (justice), Jesus P. Barrera (justice) , and Antonio Araneta, in the case of Nacionalista Party v. Comelec (G.R. No. L-3521)
[4]  The Law of Presidential Impeachment (Edwin Brown Firmage) page 3, 3rd paragraph, quoting Raoul Berger (Utah Law Review Volume 1973 (Winter) No. 4, 681-704.)

[5]  Firmage, supra, page 3, second to last paragraph.

[6]  THE FEDERALIST NO. 65, at 423–24, quoted in Firmage, supra.

[7] Firmage, supra, at page 10, quoting 67 CONG. REC. K 6283–87 (1926).

[10]  The Public Trust Doctrine – California State Lands Commission.
[11] Warren S. Grimes, Preserving Impeachment As The Exclusive Removal Mechanism For Federal Judges. UCLA Law Review June 1991, found at