Killed, threatened and sanctioned

by the Center for Media Freedom & Responsibility (CMFR)

It was another bad year for media freedom and free expression in the Philippines. A record number of journalists were killed in the Philippines in 2013, and the number of attacks and threats against journalists increased compared to previous years. The cases of the killers of journalists also continued to languish in the courts.

Meanwhile, the government pressed for even harsher sanctions against online libel through the Cybercrime Prevention Act of 2012, while it continued to stall the passage of a Freedom of Information bill.

Journalists killed

Fourteen (14) journalists/media workers were killed in 2013, with 10 killed because of their work. This is the highest number of work-related killings in a year since 2009, when 37 journalists/media workers were killed. Thirty-two (32) of the journalists killed in 2009 were victims of the 23 November Ampatuan Massacre, in which 58 people were killed in single incident of election-related violence in Ampatuan town, Maguindanao province.

The administration of President Benigno S. Aquino III now holds the record for the most number of journalists killed for their work in the first half of his six-year presidency. It is now 15 out of a total of 22 since he became President in 2010.

One hundred and forty (140) journalists/media workers have been killed in the line of duty since 1986, when the institutions of liberal democracy were restored in the Philippines. Only 13 cases that reached the courts have resulted in the conviction of the killers. Only the gunmen and their accomplices have been found guilty. No mastermind has been convicted.

Weak justice system

That no mastermind has ever been convicted in the cases of journalists killed is an indication of the weaknesses of the justice system in the Philippines. Among the problems that can be attributed to these weaknesses are the difficulty of arresting suspected masterminds and of proving their guilt because of the complex rules that enable suspects with powerful connections to evade arrest, and the system of appeals that lead to interminable delays during actual trials.

Conviction for Ureta murder case

For instance, Amador Raz, the gunman’s accomplice in the killing of radio broadcaster Rolando Ureta, was convicted for homicide on 16 January 2014, but the government officials suspected of ordering the crime remain scot-free.

Ureta was shot dead on 3 January 2001, in Aklan province. Almost seven years have passed when gunman Jessie Ticar surrendered on 18 December 2007 only to be cleared from criminal liability after dying of illness on 2 May 2008.

Raz was arrested three weeks before Ticar’s surrender. He was seen driving the motorcycle Ticar used to escape after shooting Ureta. Both were originally charged with murder but the Court downgraded Raz’s conviction to homicide, deciding that the prosecution had failed to prove “treachery and premeditation.”

A witness placed both Raz and Ticar in the venue of a meeting with government officials Dominador Alindatu and Joecel Maribojo, whom Ureta had criticized in his radio program, but the Court decided that this was not enough proof of premeditation since the witness could not say what was discussed in the meeting.

Esperat murder case archived

Another case, the murder of Marlene Esperat, was archived by Branch 138 of the Makati City Regional Trial Court on 28 August 2014 because the police had failed to arrest suspected masterminds Osmeña Montañer and Estrella Sabay, both of whom are former Department of Agriculture (DA) executives.

Esperat, a former government employee turned radio broadcaster, was killed on 24 March 2005 after exposing corruption in the DA involving large amounts of tax money, which came to be known as the Fertilizer Fund Scam.

Ortega murder case setback

In a similar case, the police’s failure to arrest the suspected masterminds had already become an opportunity for those persons to be dropped from criminal trial altogether.

In October 2013, the Court of Appeals reaffirmed its decision dated 13 March 2013 to drop brothers Mario and Joel Reyes as accused masterminds in the murder of radio broadcaster Gerardo Ortega.

As in Ureta’s case, Branch 52 of the Puerto Princesa Regional Trial Court had already convicted the confessed gunman, Marlon Recamata, for murder on 7 May 2013.

Environmental advocate Ortega was killed on 24 January 2011 after exposing the Malampaya Fund Scam, which involved the misuse of funds generated by the Malampaya gas plants off the coast of Palawan province. Mario Reyes was then mayor of Coron town, Palawan province, while Joel Reyes was the provincial governor. The brothers have since evaded arrest and are rumored to have escaped abroad.

In its decision on March 2013, the appellate court said Justice Secretary Leila de Lima erred in creating a second panel to re-investigate the murder instead of acting on the Ortega family’s motion against the first investigating panel’s findings that cleared the Reyes brothers of the crime. The Court further said that the second investigating panel exceeded its authority when it reversed the first panel’s findings, since it was only tasked to review new evidence.

Ampatuan Massacre trial

In a case where the suspected masterminds have been arrested and are in detention, the outlook was no better. One hundred ten (110) out of 197 originally named as accused had already been arrested since the trial for the Ampatuan Massacre started in January 2010, but the government seems to have been mishandling the case as well.

On 28 February 2014, state prosecutors submitted a manifestation to the Court saying that they were no longer inclined to present more evidence against all of the 104 accused and were ready to rest their case against 28 accused, including primary suspects Andal “Unsay” Ampatuan Jr., former mayor of Datu Unsay town, Maguindanao province, and Sukarno Dicay, former overall-in-charge of the Maguindanao Provincial Police Office.

The prosecution panel had only been presenting evidence against petitions filed by most of the accused to be granted bail, but the panel also adopted the same evidence as “evidence-in-chief” (evidence to prove guilt). The state prosecutors wanted to rest both in their presentation of evidence against the bail petitions as well as in their presentation of “evidence-in-chief.”

If the state prosecutors rest in both and lose the bail petitions, they will no longer be allowed to present additional evidence-in-chief: they risk losing the case entirely.

Private prosecutors opposed

In a letter to the Department of Justice (DOJ) Secretary Leila de Lima and the state’s panel of prosecutors dated 5 March 2014, lawyer and private prosecutor Nena Santos argued that “The resting of the case is premature,” particularly against suspects Andal Jr. and Dicay.

Santos represents the families of 27 massacre victims, including Maguindanao governor Esmael Mangudadatu, husband of victim Genalyn Mangudadatu.

The private prosecutor said in her letter that the Court had not yet fully admitted the testimonies presented to prove conspiracy behind the massacre, pending the decision of the Court of Appeals on motions to discharge suspects who were asked to become state witnesses.

She added that the Court could not grant the manifestation of the government prosecutors to rest because Andal Jr.’s defense first has to present counter evidence. “It only created a false hope on (sic) the part of the victims and the public that the conviction will soon come to pass.”

The judge hearing the trial, Jocelyn Solis-Reyes, told the state prosecutors during a hearing on 12 March 2014 that “Under the rules, the petition for bail must first be resolved before the evidence-in-chief,” and that the petition for bail will only be resolved after the defense has presented rebuttal evidence.

Judge Solis-Reyes ordered the state prosecutors to instead rest their case only for those accused who had waived presenting rebuttal evidence.

It would be prudent for state prosecutors to wait for the Judge to evaluate the “formal offer of evidence (FOE)” in the bail petitions first before they consider resting in evidence-in-chief, according to another private prosecutor, Freedom Fund for Filipino Journalists (FFFJ) lawyer Prima Quinsayas.

Quinsayas represents families of 17 massacre victims for the FFFJ, a coalition of five media organizations. CMFR serves as its secretariat.

Both Santos and Quinsayas said the state prosecutors had been keeping private prosecutors out of the loop since the start of 2013.

DOJ undersecretary Francisco Baraan III, head of the department’s team investigating and prosecuting the killers and masterminds in the killing of journalists, defended the state prosecutors’ move during an interview for the TV news program Bandila aired on 26 March 2014.

“We had an opening to ask for separate trials for some of the accused whom we know, based on our evaluation, we have good evidence against,” Baraan was quoted as saying in Filipino, referring to the five guidelines released by the Supreme Court on 10 December 2013 to speed up the trial.

Guidelines for speedy trial

The five guidelines are (1) to allow judicial affidavits in lieu of direct testimonies; (2) to allow the Judge to hold separate trials for those accused against whom the prosecution had no more evidence to present; (3) to allow the Judge to issue separate decisions without waiting for the presentation of evidence to be completed for all the accused; (4) to assign a third assisting judge to handle incidents such as arraignments and pre-trials and to decide on motions not touching on the merits of the case; and (5) to allow the Judge to resolve motions and petitions despite related motions and petitions pending in higher courts.

It was the second and third guidelines that compelled the Court to order the prosecutors to manifest who among the accused they had no more evidence to present against.

“I don’t want to mention it in public … (but) there’s a strategy here,” a news report quoted Baraan saying.

Whatever the strategy behind wanting to rest their case in presenting evidence-in-chief, and being disinclined to present more evidence, it seems certain is that the prosecution’s case has been damaged as a result. After the prosecution panel had submitted their “formal offer of evidence” against the bail petition of Andal Jr., Judge Solis-Reyes, following the fifth Supreme Court guideline, rejected the testimonies of suspects-turned-state witnesses former councilor Mohammad Sangki and former police officers Rex Ariel Diongon and Rainer Ebus, despite petitions still pending in the appellate court for those suspects to be discharged.

Attacks and threats

If journalists and media workers were not being killed for their work, they were being threatened. CMFR has recorded 68 incidents of attacks and threats against journalists and media workers in 2013. Twenty-five (25) of these incidents, as in the Ampatuan Massacre, were related to media’s coverage of the elections. In May 2013, the Philippines held national and local elections for seats in the congress and various local positions.

On the eve of the May 13 elections, the crew of the TV news program Ronda Balita in Ozamis City, northern Mindanao, was trying to catch a rumored mass vote-buying activity at a seaside village. But the convoy of then-mayoralty candidate Rolando Romero stopped them. Romero and his security aides also destroyed the news crew’s equipment when the producer tried to interview him. Not content, Romero allegedly tried to shoot at one cameraman. But when his pistol misfired, the group mauled the media worker instead. The politician’s ally later said Romero had only “defended himself.”

After election-day, Commission on Elections (COMELEC) officials barred reporters from the canvassing of votes in the provinces of Northern Samar and Aurora. Election officials in both provinces asked reporters for their COMELEC accreditation. But the reporters were still barred even when they complied. When the reporters complained, COMELEC chairman Sixto Brillantes Jr., in a response that has become typical when anyone questions a government official or agency’s actions or decisions, advised them to file a complaint with the police.

Cybercrime and FOI

The situation was equally disheartening on the legislative front. In February 2014, the Supreme Court upheld the constitutionality of the provision on online libel of the Cybercrime Prevention Act of 2012 (Republic Act 10175), despite the already repressive impact of criminal libel on the print media, while the government continued dilly-dally in the passing of a Freedom of Information (FOI) law.

Original author’

On 18 February 2014, the Supreme Court declared “Section 4(c)(4) (of RA 10175) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it.”

As if the United Nations Human Rights Council had not already called criminal libel in the Philippines “excessive,” RA 10175 raised the penalties by one degree– from a minimum of six months’ imprisonment in the Revised Penal Code per count of libel in print, to a minimum of six years per count of online libel.

“The Court decision not only legitimizes the higher penalties for online libel; by implication it also declares the original libel law constitutional,” CMFR said in a statement released after the Court declared its decision.

Languished in congress’

Meanwhile, the FOI bill remained stuck in Congress. On 24 September 2013, the Senate started its plenary deliberations on the proposed FOI bill and approved it on third and final reading last 10 March 2014. But as of this writing, the House of Representatives was still discussing Section 7 of the bill, which defines the exemptions to the right of the public to access government-held information.

The Senate Committee on Public Information and Mass Media headed by Senator Grace Poe was quick to act on the bill. The Senate hearing on the FOI bill last 4 September 2013 was the first under the 16th Congress. Poe said the bill is “long overdue” and “has languished in Congress for far too long already.” The Senate held another hearing on 18 September 2013.

Representatives from different sectors were in both hearings to express their support and to present their recommendations on the bill. There were also concerns over the inclusion of a Right of Reply (ROR) provision in the FOI bill. Poe said there are other outlets where politicians can air their side on an issue and that an ROR provision would only be a form of censorship.

The House committee on public information met on 23 October 2013 to form a technical working group to consolidate the 22 FOI bills pending in that chamber. But the committee failed to hold its first organizational meeting last 19 September 2013 for “lack of an available meeting room.” Representative Jorge Almonte, head of the committee, said another reason was that one of his relatives was among those held hostage by the Moro National Liberation Front fighters in Mindanao, southern Philippines.

The public clamor for the bill’s passage “reached its tipping point during the Million People March last 26 August 2013,” Poe said. The “Right to Know, Right Now!” coalition, an alliance of about 160 organizations and individuals from various social sectors and civil society groups that have long been campaigning for the passage of an FOI Act, joined the march which called for the total abolition of the “pork barrel” fund or the Priority Development Assistance Fund. CMFR is a member of the coalition.