ON THE UNPRESIDENTIAL WHISTLING OF A VERY PRESIDENTIAL DUTERTE

When I watched the video of PaDi Mayor Digong Duterte's press con where he whistled apparently at Ms Mariz Umali, I felt not only uncomfortable. I was incensed. I thought Ms Umali was a random media person PaDi did not know but whistled at. But I did notice that she seemed to  enjoy a banter with PaDi and did not at all appear repulsed. I googled about her and that incident.. I discovered she issued a statement  that said in so many words that she did not take offense. She merely found his catcalling "maybe improper." I thought, "This woman is internally oppressed. How could she dismiss catcalling by someone to whom she is a stranger inoffensive? Or is it because her offender is the incoming President?"

Whether Ms. Umali was offended or not, I felt that what PaDi did was very improper. I became Mariz Umali. I felt the victimization  she could not feel. I posted a call-out on Facebook.

Next, I read my newsfeed.

There was hatred, even bloodlust, for Duterte. I could gather this from the irrationality of people's strong statements. There were voices of people stuck on May 9 unable to move on from the defeat of Roxas. You could tell from the fact that they suddenly became advocates for women's rights. I did not hear them say anything about women's rights in the past. In fact, they never reacted to that tasteless virtual sex act onstage during a birthday party of a Liberal Party stalwart. This also angered me. The Yellow Kingdom was, to them, all sunshine and, despite situations needing voices, they kept quiet. I thought, "These people, noisy as they are now, are not really speaking for women; they are using a women's issue only to advance political vendetta or promote hatred of PaDi."

And then there were people drumbeating for vigilance; they never called for vigilance before. I thought, "They were simply apathetic - or apolitical might be the politically correct word. Now, they have become politically involved." This to me is a very positive development - that the foul mouth of a President unprecedented in our history is jolting people and getting them out of political apathy. Even PaDi Mayor must be happy.

Thankfully, I could find sincere rebuke as well.

The amusing thing is that when I said on FB that PaDi should not whistle at a woman in public even if she seems not to take offense, some reacted in a way I understood to mean they thought they discovered women's rights before I did or they cared more for women than I did. I sort of ...uhmmm... got annoyed. I became historical. "Hoy, you think only your hearts bleed for women? For decades, I have been fighting for women's rights and even devote free legal services to them. Blah, blah." Then it dawned on me that they did not expect the call-out from the Dutertard that I am. Well, not every political supporter is like many supporters of the Yellow Army who condemn injustice only when it is not attributable to yellow hands. The Dutertards I know do not pay blind obeisance.

Much later on, I saw this video of Ms Umali and PaDi interacting in a private atmosphere. He was humble, friendly, and patient despite the shallowness of her questions. In fact, I felt that she was assaulting his privacy and he was not really relishing  the intrusion. But who am I to arrogate unto myself the license to squirm in discomfort on behalf of the country's incoming President?

They were on their way to dinner - the supposed future sexual harassment victim and the supposed future sexual harassment offender.

After watching the entire video, I began to see the catcalling in a different light. I got convinced that when Ms Umali said she was not offended, she was not offended. She and PaDi Mayor had a "history" before that controversial press con and that was the reason why she   took  his whistling with a grain of salt.

And so two hours ago, I said on someone's wall that in sexual harassment cases, while the nature of the act is important, so is context. Catcalling may be an act by which sexual harassment is committed, but in what context is it done? Also, sexual harassment is a subjective offense. It is not the offender's intent but the victim's feeling that is relevant. Ms Umali was not offended. Please let us not insist she was. Your feelings do not define the crime, OK? Neither does your political frustration or hatred, OK? Let us not reduce  Ms Umali into an object and take her place as the subject.

I still think Duterte should not whistle as he did. It is unpresidential. It is. Unpresidential. I do not look forward to it.

But I look forward to the presidential things he promised to do, a few of which are:

1. Bring the Lumad home;

2. Create a committee to investigate killings of journalists;

3. End PDAF and DAP;

4. Enforce simplicity among government officials;

5. Review K to 12;

6. Cleanse NLRC;

7. End contractualization;
8. Legalize medical marijuana;
9. End the drug trade;

10. Resume peace talks;

11. Appoint pro-people officials to deliver social services; and

12. Make justice accessible.

I am happy the unpresidential President has less than a month to vacate the palace and the more presidential one will take over.

NOT AGAIN. NEVER AGAIN.

Kicker Daily news reported that Imelda Marcos says she wants her son, Bongbong, to serve the Philippines "like his father."

Omigosh, omigosh. Not again. Never again.

Who wants a return to the bleak winter of human rights in the Philippines that covered two decades?

There will be blood on the streets. The only sound will be the thud of bodies falling after a long day protesting social injustice. And before the blood of the fallen will dry, more fresh blood will flow like a river. Silence will become the norm.

There will be massive hunger despite the opulence of the very few. Bongbong will be fishing into the pocket of the national treasury as if it is the pocket of his trousers.

Everyday, everywhere in the Philippines, everyone will be experiencing the terrors the indigenous peoples in Mindanao and elsewhere are facing right now.

No to Bongbong Marcos!

Imelda says she wants Bongbong to serve PH “like his father”

Posted on October 13, 2015 by Marcus V

Photo Credit: SCMP

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• Former first lady says she believes her son can reach the top someday
• Her son learned a lot from his father, she says
• Bongbong earlier said his mother was disappointed in his decision to run only for VP

MANILA, Philippines – Call it a mother’s intuition, but former First Lady Imelda Marcos believes her son Senator Ferdinand “Bongbong” Marcos Jr. has what it takes to become president someday.

“Of course, we can only pray that he makes it so that he will have the privilege to serve the Filipino like his father,” she told GMA News.

She was seen accompanying her son to file his certificate of candidacy on Tuesday but did not go inside the COMELEC building due to the crowd.

Imelda earlier defended her husband’s regime as one of the country’s best eras ever and said her son learned a lot from his parents.

“I want him to to be able to serve the country and benefit the country,” she said. “I think he has the potential there and after all he was 21 years in Malacañang and he saw how his father and mother were dedicated to the Philippines and to the Filipino people, and that was the best time we had in our history.”

The senator himself said his mother was disappointed by his decision to run only for vice president.

“She’s wanted me to become president since I was three years old. Imagine how disappointed she was,” he said.

Nevertheless, the son and namesake of the late dictator also vowed to return the country to its former glory.

In filing his certificate of candidacy on Tuesday, the senator also noted how he was the seventh person to have filed his COC.

“I was told that when I filed my COC that I am the seventh person to file, so the lucky number 7’s still there for us Marcoses,” he said. “I think it’s a good omen.”

The late strongman believed in numerology and frequently pointed to the number 7 as his lucky number.

LIMITS TO EXPRESSION UNDER STRASBOURG JURISPRUDENCE (Last of Two Parts)

by: CHERYL L. DAYTEC-YANGOT

There is no democracy without public discourse and no public discourse without freedom of speech, freedom of the media, and freedom of information.[1]

Freedom of  expression comes with duties and responsibilities owed  to truth, to independence, to impartiality, to objectivity, to democracy, and to individual privacy, among others.

Fidelity to truth comes with what Strasbourg calls “the duty  to impart information and ideas on matters of public concern.”[2]  Media should be impartial. In order for them to  generate a democratic culture,  they   should  be neutral observers, “unengaged with events but faithfully recording them.”[3]

The duty to be objective calls on media to express value-judgments- even polemical ones-  standing on facts.[4]  They are   responsible in ensuring  veracity of stories, although “exaggeration or even a degree of provocation is protected.[5] In Bladet Tromso v. Norway,[6]  Strasbourg ruled that it is sufficient  that journalists  “rely on the contents of official reports without having to undertake independent research.”  The minority  however propounded  that to enjoy protection under Article 10 of the European Convention on Human Rights, they  must investigate. In  one case, Strasbourg said that media must ensure  accuracy of historical facts since unlike temporal news, there is no urgency in publishing them, [7] in effect elevating  the standard  for responsibility  to scrutinize veracity compared to the standard when they report news, a “perishable commodity.[8]  In another,[9]  it  implied that media have the duty for balanced reportage and to  respect the other side’s  right-of-reply.

Fidelity to democracy demands public watchdogs[10]  to propagate information on matters of public interest or concern[11]  and stimulate  public discussion or spur public debate.[12]  The configuration of people’s political consciousness depends on data received. Democracy is not  just a government where people elect their leaders. It is one where people have adequate information upon which to anchor their political decisions including who to vote for. Knowledge is power. Thus, the  Camden  Principles  declare that  “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[13]

 Media play a crucial role not only as purveyors of raw facts  but also of informed opinions as suggested in Lingens.[14] By  crystallizing  issues in sound value-judgments, they  aid  the  public to  adopt positions on social issues, enabling them to be part of public discourse, inspiring  dissent to unbridled use of State power, effectively enhancing democracy. Thus, media should create   forums for  public debate.[15]                                                                                                                                                                                          

The minority in Bladet Tromso asserted a negative media responsibility: they should not sacrifice facts “for the commercial gratification of an immediate scoop.” It said that newspapers have the “ordinary obligation to verify factual statements that were defamatory of private individuals,” implying the duty to protect individual privacy.  But the majority judgment, while prizing respect for the rights and reputation of others and  protection of confidential information, stressed that media’s duty “is nevertheless to impart- in a manner consistent with its obligations and responsibilities- information and ideas on all matters of public interest” because “the public also has a  right to receive them.”[16] This suggests that privacy yields to public interest and it is media’s duty to promote it.

Strasbourg stressed that press freedom “affords the public one of the best means of discovering and forming an opinion of ideas and political leaders.”[17]  But “the safeguard…to journalists in relation to reporting on issues of general interest is  subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”[18]

Media must ensure no  confidential  information  leak[19] or  confidential source  disclosures. Source protection  is a  free press premise. Absent such, sources may withhold information germane to public interest for fear of persecution, essentially impeding the public’s right to information.  Thus,  to compel journalists to reveal sources infringed their  right.[20] Essentially, this was reiterated in Sanoma Uitgevers BV v The Netherlands[21] but  Strasbourg modified the duty  when it  held that  forcing journalists who exposed illegal car races and edited photographs for source  anonymity to produce the CD-ROM  storing the original photographs was above-board because it was intended to identify a vehicle used in a grave felony irrelevant to the illegal race. It said that States may balance conflicting interests served by crime prosecution against protection of sources.

As a consciousness purveyor, media have pervasive public influence. Thus it is incumbent upon them not to use freedom of expression without self-restraint to advocate racism,[22]  violence,[23] totalitarianism[24]  or  corruption of the young’s morals.[25]

Indubitably, freedom of expression is not a license. It is a right that comes with a twin: responsibility.

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[1] Dieter Grimm, “Freedom of Speech in a Globalized World”  in EXTREME SPEECH AND DEMOCRACY, (Ivan Hare and James Weinstein, eds.,  2009).

[2]Observer   v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and  Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239); Castels v Spain, 4 EHRR 445 (1992);  Lingens v. Austria,  8  EHRR 407 (1988).

[3] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[4] Oberschlick v. Austria, 19 EHHR 839 (No. 2), 1997; De Haes v. Belgium,  25 EHRR 11 (1997).

[5] Prager v. Austria (26 April  1995).

[6] Application No. 21980/93 (20 May 1999).

[7] Times Newspapers  (Nos. 1 and 2) v UK , Application No. 3002/03 and 23676/03, (10 March 2009).

[8] Id.

[9]  Tidende v. Norway, 2000 EHRR  305 (2 May 2000).  

[10] Traditionally, mass media were regarded as the public watchdogs. But contemporary Strasbourg jurisprudence says that even organizations outside of the mainstream media, like civil society organizations and non-government organizations are also public watchdogs. See  Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[11] Goodwin v. United Kingdom, Application No.  16/1994/463/544 (27 March 1996).

[12] Steel and Morris v UK , Application No. 68416/01 (15 February 2005).

[13] Introductory Statement, The Camden Principles on Freedom of Expression and Equality.

[14] Lingens v. Austria,  8  EHRR 407 (1988).

[15] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[16] Id.

[17] Lingens v. Austria,   8  EHRR 407 (1988).

[18] Bergens Tidende et alis v  Norway,  2000 EHRR  305 (2 May 2000) ;  Stoll v. Switzerland (2007) ECHR 69698/01;  Fressoz and Roire v. France (GC), Application No. 29183/95 (21 January 1999).

[18] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995).

[19] See Article 10, European Convention on Human Rights. 

[20] Goodwin v. UK, Application No.  16/1994/463/544 (27 March 1996); reiterated in Szabadsagjogokert v. Hungary,  Application no. 37374/05 (14 April 2009).

[21] Application No. 38224/03  (31 March 2009)

[22] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995). In this case, however, the court found a violation in the imposition of penalties for the broadcast of racist views because the broadcast was only for  exposition, and not given as views of the journalist or broadcaster.

[23] Leroy v. France, Application No. 36109/03 (2 October 2008)

[24] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87 (12 October 1989)

[25] Handyside v.   UK, Application No. 5493/72  (7 December 1976).

LIMITS TO EXPRESSION UNDER STRASBOURG JURISPRUDENCE (First of Two Parts)

by; CHERYL L. DAYTEC-YANGOT

In the  jurisprudence of the European Court of Human Rights (ECHR), freedom of expression[i]  is highly apprized. Thus it entrenched a principle of liberal interpretation in favor of rights holders when there is a clash between the right and government interests in every case. This liberal interpretation is complemented by the principle of narrow interpretation of exceptions to its free exercise.[ii] Where there is interference, the necessity therefor must be convincingly established.[iii]

However, Strasbourg jurisprudence is also very zealous against the use of expression for ends incompatible with democratic principles. Where expression is employed as license to justify acts challenging the democratic paradigm contemplated under the ECHR[iv], Strasbourg frowns. Procurement to public disorder and violence against an individual or a class of the population is considered repugnant to democratic principles and hardly inspires Strasbourg’s sympathy.

One principle prominent in Strasbourg jurisprudence   on matters involving free expression stands out.  Contracting States “enjoy a certain margin of appreciation in assessing whether and to what extent an interference is necessary"[v]  and this margin is wider in cases of incitement to violence, public disorder and hatred.[vi]

But  “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician.”[vii] Holding that contracting States, “in their capacity as guarantors of public order,”  are free to adopt  measures to restrict freedom of expression,[viii] their actions are, in  a democratic system, subject to close scrutiny of authorities and the public, and, as the dominant force, must “display restraint in resorting to criminal proceedings.”[ix]  Underlying this is the  principle of narrow interpretation against States even in public disorder cases.

Public order is envisaged to refer not only to public order or ordre public but also embraces order “that must prevail within the confines of a specific social group.”[x] Thus Strasbourg held that restriction of  expression that tended to create disorder in the armed forces, a specific group, was proper considering that disorder in that group can have repercussions on societal order. [xi]

The test on incitement takes the speech in its entirety and concerns itself with determining whether it  encourages violence,  public disorder, armed resistance and insurrection.[xii]  There must be    sufficient nexus between expression and the real possibility of resulting violence for  interference to be justified. Although Strasbourg adheres to a principle of  tolerance and broadmindedness, consistent to which it protects information and ideas that shock, offend and disturb,[xiii] imminence of violence  is way above the threshold of real possibility.

In drawing the demarcation line between permissible and impermissible expression, Strasbourg evaluates intent,  content and context. Thus, although communism is regarded reprehensible to democracy, sheer membership in a communist organization not legally banned is insufficient basis to penalize an individual especially where the latter has not advocated violence and this intent to promote disorder cannot be presumed.[xiv]  Mere use of aggressive language does not legitimize  interference. The use of an equivocal symbol associated both  with communism and  proletariat struggle for better labor conditions was held not to promote  totalitarian propaganda.[xv] Where a cartoon condoning  11 September 2001 terrorist attack was published soon after in an area with separatist elements, Strasbourg held that the expression glorified violence.[xvi] When journals questioning military discipline were distributed among soldiers under a charged atmosphere of military discontent, it was held that there was incitement to public disorder.[xvii]

 Strasbourg jurisprudence considers  medium of expression and  audience size. In one case,  explosive poems  which literally might be  procurement to violence was upheld  as legitimate expression. Ruling against the State, Strasbourg said that it must  “be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers.”[xviii] This implies that if the  medium had mass appeal, the judgment would have been different. The audience size was a consideration  when leaflets assailing a military decision was distributed during a military parade witnessed by 50,000 people.[xix]

Strasbourg  employs the  fair balance test in determining if a positive obligation exists even in cases related to public disorder or violence. It said that  regard must be had to the fair balance to be struck between the community’s general interest  and the individual rights.[xx]

Historical matters figure in the equation of appraising  whether expression promotes public disorder or violence or tenets antithetical to democracy. Thus, Strasbourg is emphatic that  National Socialism principles  are  beyond  the ambit of protection ‘out of respect for the historical past forming the background to the Convention” declaring that  “National Socialism is a totalitarian doctrine incompatible with democracy and human rights.”[xxi]

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[i] This is protected under Article 10 of the European Convention on Human Rights.

[ii] Vajnai v. Hungary, Application No. 33629/06.

[iii] Autronic AG v. Switzerland, judgment of 22 May 1990; Worm v. Austria, judgment of 29 August 1997; Vajnai, id.

[iv] European Convention on Human Rights

[v] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.

[vi] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.

[vii] Id.

[viii] Incal v. Turkey, 9 June 1998

[ix] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV

[x] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87, 12 October 1989.

[xi] Id.

[xii] Han v Turkey, Judgment of 13 September 2005.

[xiii] Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), 23168/94, ECHR 1999-IV; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.

[xiv] Vogt v. Germany, id.

[xv] Vajnai v. Hungary, Application No. 33629/06

[xvi] Leroy v. France, Application No. 36109/03

[xvii] Engel, et alis v. The Netherlands, Application No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72

[xviii] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.

[xix] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.

[xx] Ozgur Gundem v. Turkey, Application No. 00023144/93; 16/03/2000

[xxi] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87, 12 October 1989.