by: CHERYL L. DAYTEC
Let me spread flowers
on the road I traveled
to find you
Because I should not have regrets
But between that road
and where I stand
I will plant thorns
I should not retrace my steps
Let me honor
my memories of you
By forgetting them
until their most resilient ghost
disappears
Because they comfort and hurt
I cannot trust the double-edged
Let me banish my pains
with more tears
Until I will never cry again for you
Then I can cry when
There are other wounds
That I can heal with my tears
Or there are joys that I should celebrate
I traveled mountains and seas
To search for you
I did not find you; I found me
Before I did, I never knew I was lost
And now I know it was myself
I was looking for all along. /cld apr2013, st paul, mn, usa
THE NURSE
by: CHERYL L. DAYTEC-YANGOT
The Nurse
(for Thelma)
She came a stranger to
this once-peculiar
Place. Four
seasons. Undergrounds.
Fish-and-chips. Haggis.
Royal ghosts
A place whose poor are
not the poorest
Back home
Her father raised the
money
To grow wings on her feet
For that better life
than he ever had
But some nights,
listening to cries
Uttered in a mix of distress and English
She would weep in her
mothertongue
The walls the audience
Of her ineffable
solitude
Of her yen for home
Despite the blight of
want there
Her father would say
over the phone,
It will pass. Stay put
You will find there
the bed of roses
I prepared you for
It will be home
He was right
The strangeness of the
place
Transformed it into home
After she responded to the buzzer
One thousand times
Chronic cases
Terminal cases
She was needed here
Relevance made a place a home
As much as language, as much as roots
It became joy to
embrace humanity’s pain
Helping it
Fend off the
sinister man with the scythe
Or bravely confront and trounce him
Or listen to the oft-talked about gentle voice
Urging a soul to return to its body
As it is about to reach a dark tunnel’s end
Her heart had shed tears
As her hands pulled the zipper over lifeless
faces
Imagining how crestfallen
Loved ones must be more than she was
Just yesterday before the terrible news
came
She injected morphine into unfledged veins
Praying that a premature journey to the other side
Would be like the dance of an autumn leaf
To the gale,
graceful as it falls to the ground
Becoming dust one day
She had lost sleep for over a hundred patients
And kept their
names
From being carved on gravestones
Some of them still stay in touch
London became home despite
Late night hours. Arrogant doctors’ moods
Harsh winter morning shifts. Graveyard shifts
Her father had always been proud of her
Over the phone, he would say
You have a heart several times
Bigger than
the average
Your hands
warmer than normal
Now,
At Heathrow Airport, she anxiously awaits
Her flight back home to the Philippines
To bury her father. Pneumonia. Lung cancer
Complications. She never wiped his brows
Furrowed by pain. He never saw his daughter’s
Bedside manner, never felt the hands
With a heart several times more huge
Than the average size he was so proud of
She was his daughter, everyone else’s
Nurse.
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.
[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
[23] Leroy v. France
[24] B.H., M.W., H.P. and G.K. v Austria
[25] Handyside v. UK
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]
[i] This is
protected under Article 10 of the European Convention on Human Rights.
[ii] Vajnai v. Hungary
[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
[vi] Karatas v Turkey
[vii] Id.
[viii] Incal v. Turkey
[x] B.H., M.W., H.P. and G.K.
v Austria
[xi] Id.
[xii] Han v Turkey
[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
[xiv] Vogt v. Germany
[xv] Vajnai v. Hungary
[xvi] Leroy v. France
[xvii] Engel,
et alis v. The Netherlands
[xviii] Karatas v Turkey
[xix] Chorherr v. Austria
[xx] Ozgur Gundem v. Turkey
MESSAGE from the CORDILLERA ON KA ROMY'S BIRTHDAY
By: CHERYL L. DAYTEC-YANGOT
(This was a message I wrote on the occasion of the 73rd birthday of Atty. Romy T. Capulong in 2008. Today is the 3rd death anniversary of Ka Romy, first President and founding member of the National Union of Peoples' Lawyers.)
This
is not intended to be a eulogy but it probably sounds like one that will be delivered at Atty. Romeo
Capulong’s burial fifty years from now. It is our belief that it is better that
it is articulated while he is alive to appreciate it today on his 73rd birthday.
A life consecrated to the defense of the
oppressed, to challenging the status quo
when it is antithetical to the interest
of the masses, is a life that will never
end. As Andres Bonifacio breathes out the inspiration we keep drawing from for his great example of dedication to the cause of revolutionary struggle, so
will Atty. Romeo Capulong remain alive long after he gives up the ghost.
Romeo Capulong spent his years on earth
in selfless service to the people. In the best of times, in the worst of times,
and in the times in between, he has been a standard bearer for the rights of
the oppressed, the marginalized, the downtrodden, the rejected. In being so, he
has been compromising his and his family’s well-being and even his very life, a risk well within his grasp. But to him, to choose a life of comfort
without regard for the welfare of the masses is wrong, if not outright
disgraceful. And so overriding his own fears, he kept marching and still
marches with the enlightened masses to
confront with unwavering courage the
goblins and evil forces that shrive human
life of essence and meaning.
Atty. Capulong’s record is a torch that shatters the deepest darkness.
It is a torch that brightens the path of us who, inspired by exemplars of
greatness and heroism, have chosen to
tread his trajectory, the trajectory less traveled but the right one
nevertheless. We realize that in the context of things in the here-and-now, the
only noble life is one of consequence to
the liberation of the masses from the dungeon of poverty and tyranny. The only
noble life is one that bears close semblance to Atty. Capulong’s.
Since Martial Law, never has our country been as shrouded
in darkness as it is now. We live under a reign of
terror, a reign that nurtures no reverence for human life. Freedom itself languishes inside walls, liberties
are obstructed by fences and barbed
wires, the forces of greed are at their strongest, guns are pointed to heads
that entertain thoughts of dissent, our
mouths are clamped to deter us from speaking the truth. Our days are as dimmed
as our nights. Silence and sleeping are very
safe, very convenient. Sadly, many have embraced convenience as the hands of
tyranny operate under the cover of
darkness to push the nation to the pit of wretchedness. But hope does not die
when there are people, like Romeo Capulong, who elect to stay awake, struggling in the dark to impede the slaughter of the essence of life:
freedom – from hunger, from oppression, from bondage, from terror, from
anything that diminishes humanity. That there are persons of courage like him at such a time as now is itself a
miracle, like a determined bud shooting from the bone dry, barren earth. It is a miracle worthy of celebration.
What we do for ourselves die with us,
but what we do for others will endure even after our death. In a country plunged in obscurities, this much
is certain: Atty. Capulong will live beyond his years on earth.
We in the Cordillera are one with the
Filipino masses in wishing this great champion of the oppressed a very happy
birthday and many more to come.
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