Friday, March 31, 2006

AMENDMENT OF THE 1987 CONSTITUTION

AMENDMENT OF THE PHILIPPINE CONSTITUTION

May the 1987 Philippine Constitution be validly amended (or revised)? Yes, the Philippine Constitution may be amended upon the proposal by Congress or directly by the people through initiative subject to ratification[1].

Who and how may the Philippine Constitution be amended? Any amendment to the Constitution may be proposed by: (1) the Congress, (2) a constitutional convention, or (3) the people directly through initiative[2]. The amendment shall be valid when ratified by a majority of the votes cast in a plebiscite[3].

When shall the plebiscite to ratify the amendment to the Constitution be held? If the amendment is proposed by Congress, the plebiscite shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision. If by people’s initiative, within the same period after the certification by the Comelec of the sufficiency of the petition[4].

How may Congress propose amendment to the Constitution? The Congress may amend the Constitution upon a vote of ¾ of all its member [5].

How may a constitutional convention be called? The Congress may call a constitutional convention by a vote of 2/3 of all its members or it may submit to the electorate the question calling such a convention by majority vote of all its members[6].

How is the amendment by people’s initiative made? Amendment by people’s initiative is made upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein subject to the law governing people’s initiative[7].

Is the people’s initiative under the constitution a self-executing provision? No. The Constitution[8] provides that Congress shall provide for the implementation of the exercise of the right of the people through initiative to propose amendments to the Constitution.

Is there a law enacted by Congress for the implementation of the people’s initiative to amend the Constitution? Congress enacted Republic Act 6735[9]. However, the Supreme Court declared it inadequate to cover the system of initiative on amendments to the Constitution[10].

Is the creation of the consultative commission under EO 453[11] to propose constitutional revision valid and constitutional? Yes. The creation of the consultative commission is presumed valid and constitutional until declared by the court otherwise. Although the Constitution does not provide a “consultative commission” to propose amendment to the Constitution, its recommendation may be adopted as proposal by the Congress or the people through initiative.

How often may the Constitution be amended? If the amendment is proposed by the Congress, as often as it may propose amendments in accordance with the Constitution. If by people’s initiative, not oftener than once every 5 years[12].

By:

ATTY. REY NATHANIEL C. IFURUNG
Unit 1206-B, West Tower
PSE Centre, Exchange Road
Ortigas Center, Pasig City
Tel. No. 6383833 + Cel. No. 0917-8160530
Email ifurunglaw@yahoo.com.ph


[1] Art XVII , Philippine Constitution
[2] Secs. 1 and 2, Art. XVII
[3] Sec. 4
[4] Sec. 4
[5] Sec. 1
[6] Sec. 3
[7] Sec. 2
[8] Sec. 2
[9] AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM AND APPROPRIATING FUNDS THEREFOR. Approved: August 4, 1989.

[10] G.R. No. 127325, March 19, 1997, MIRIAM DEFENSOR SANTIAGO et. al., vs. COMMISSION ON ELECTIONS, et. al., (PIRMA).

Senate Bill No. 1290, An Act Prescribing and Regulating Constitutional Amendments by People’s Initiative, which Sen. Santiago filed on 24 November 1995, is still pending.

Gonzalez warns against people's initiative due to SC ruling, First posted 12:47pm (Mla time) Mar 31, 2006 By Tetch Torres, INQ7.net

[11] CREATING A CONSULTATIVE COMMISSION TO PROPOSE THE REVISION OF THE 1987 CONSTITUTION IN CONSULTATION WITH VARIOUS SECTORS OF SOCIETY, 19 August 2005.

SECTION 1. Creation and Mandate. – There is hereby created a Consultative Commission which shall conduct consultations and studies and propose amendments and revisions to the 1987 Constitution, principally the proposals to shift from the presidential-unitary system to a parliamentary-federal system of government, to refocus economic policies in the Constitution to match the country’s vision for global competitiveness, and to review economic policies which tend to hinder the country’s global competitiveness and adversely affect the people’s welfare.

For this purpose, the Consultative Commission shall review existing and new Constitutional reform proposals and hold nationwide consultations with various sectors of society, such as farmers, fishermen, workers, students, lawyers, professionals, business, military, academic, ethnic, and other similar groups, including the different leagues of Local Government Units and members of Congress and the Judiciary.

[12] Sec. 2.

Friday, March 17, 2006

LIBEL

The following article was published in the 17 March 2006 issue of the Philippine Daily Inquirer.


“As I See It : Gov't documentary 'Kataksilan' is libelous

First posted 01:57am (Mla time) Mar 17, 2006
By Neal H. Cruz
Inquirer

Editor's Note: Published on Page A14 of the March 17, 2006 issue of the Philippine Daily Inquirer

THE administration keeps saying that there should be "balance" in all media news reports, yet it is the one guilty of "unbalanced" reporting in its documentary "Paglaban sa Kataksilan 1017," which is being shown on all three government television networks (Channels 4, 9 and 13). Compact discs of the same documentary are being distributed all over the country.
I watched the docu twice, and I wondered why a government preaching "balance" in media would produce such a one-sided show. If it were produced or shown by a private media organization, it would be liable for libel, for it libels many prominent personalities, soldiers and civilians alike, accusing them of being coup plotters and subversives.
The docu narrates the alleged "conspiracy" among communists, soldiers and opposition politicians to topple President Gloria Macapagal-Arroyo and take over the government. Many prominent personalities were shown and named as among the "conspirators" but they were not allowed to give their side. Everything aired was the side of the administration. In law, this is a clear indication of malice, which is the most important element in the crime of libel. x x x”

WHAT IS LIBEL? Let us first state the law. The crime of libel is defined and penalized under Articles 353 to 357, 360 to 362, Chapter 1, Title 13, of ACT NO. 3815, AN ACT REVISING THE PENAL CODE AND OTHER PENAL LAWS (December 8, 1930) known as the Revised Penal Code.

“LIBEL

Section One. — Definitions, forms, and punishment of this crime.
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — 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:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional[1] in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
Art. 356. Threatening to publish and offer to present such publication for a compensation. — [Blackmail]
Art. 357. Prohibited publication of acts referred to in the course of official proceedings. — The penalty of arresto mayor or a fine of from 20 to 2,000 pesos, or both, shall be imposed upon any reporter, editor or manager or a newspaper, daily or magazine, who shall publish facts connected with the private life of another and offensive to the honor, virtue and reputation of said person, even though said publication be made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned.
Art. 358. Slander. —
Art. 359. Slander by deed. —
Section Two. — General provisions
Art. 360. Persons responsible. — Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.
[The criminal and civil action for damages] x x x.
[Preliminary investigation] x x x.
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.
------------

A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (Art. 353. RPC)

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 (a) a private communication made by any person to another in the performance of any legal, moral, or social duty; and (b) a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Art. 354, RPC) Libelous remarks or comments connected with the matter privileged under the provisions of article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. (Art. 362, RPC)

In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendant shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their duties. In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. (Art. 361, RPC)

“Libel” is a defamation committed by means of writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition, or any similar means (Art. 355). Oral defamation is called slander.

Reason why defamation is punished. The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of civilization. The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publication, the liability to make full compensation for the damages done (Worcester vs. Ocampo, 22 Phil. 42).

Elements of defamation:

1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance.
2. That the imputation must be made publicly. [publication]
3. That it must be malicious. [malice]
4. That the imputation must be directed at a natural or juridical person, or one who is dead. [identity]
5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed.

There must be a defamatory imputation. The imputation may cover:

(a) Crime allegedly committed by the offended party;
(b) Vice or defect, real or imaginary, of the offended party; or
(c) Any act, omission, condition, status of, or circumstance relating to, the offended party.

Test of defamatory character of the words used. Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (US vs. O’Connell, 37 Phil. 767)

The meaning of the writer is immaterial. It is not the intention of the writer or speaker or the understanding of the plaintiff or of any hearer or reader by which the actionable quality of the words is to be determined, but the meaning that the words in fact conveyed on the minds of persons of reasonable understanding, discretion and candor, taking into consideration the surrounding circumstances which were known to the hearer or reader. x x x (People vs. Encarnacion, C.A., 48 O.G. 1817) The alleged libelous article must be construed as a whole. (Jimenez vs. Reyes, 27 Phil. 52; U.S. vs. O’connell, 37 Phil. 767; U.S. vs. Sotto, 38 Phil. 666). In applying these rules to the language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the publisher on being called to account. The whole question being the effect the publication held upon the minds of the readers, and they not having been assisted by the offered explanation in reading the article, it comes too late to have the effect of removing the sting, if any there be, from the word used in the publication. (U.S. vs. Sotto, 38 Phil. 666)

Imputation of a criminal act. An article which portrays the offended party as a swindler x x x collected money from several inhabitants of the town through fraud and deceit and constructed a house x x x with the money so collected, imputes the commission of the crime of estafa x x x (People vs. Bailo, et. al. C.A., 37 O.G. 2373)

Imputation of a vice or act. When a person, in an article, imputes upon the persons mentioned therein, lascivious and immoral habits. (People vs. Suarez, G.R. No. 35396, April 11, 1932).

Imputation of an act and omission. An article signed by the accused and published in the Philippines Herald says that the offended party used to borrow money without intention to pay; that he had ordered the fixing of his teeth without paying the fees for the services rendered by the dentist. People vs. Tolentino, C.A., 30 O.G. 1763).

Imputation of condition, status or circumstance. Calling a person a bastard or leper within the hearing of other persons is defamatory.

Meaning of publication. Publication is the communication of the defamatory matter to some third person or persons (People vs. Atencio, CA-G.R. Nos. 11351-R to 11353-R, Dec. 14, 1954). Sending to the wife a letter defamatory of her husband is sufficient publication (U.S. vs. Ubiñana, 1 Phil. 471). Note: The person defamed is the husband and the wife is the third person to whom the publication is made. See Orfanel vs. People, 30 SCRA 819.

There is no crime if the defamatory imputation is not published. The law permits us to think as badly as we please of our neighbors so long as we keep our uncharitable thoughts to ourselves. So, merely composing a libel is not actionable unless it be published. The communication of libelous matter to the person defamed alone does not amount to publication, for that cannot injure his reputation. A man’s reputation is the estimate in which others hold him; not the good opinion which he has of himself. (People vs. Atencio, supra).

There must be malice. The malice or ill-will either must be proved-malice in fact; or may be taken for granted in view of the grossness of the imputation – malice in law. (People vs. Andrada, CA, 37 O.G. 1783). Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed (U.S. vs. Cañete, 38 Phil. 253).

Malice in fact – may be shown by proof of ill-will, hatred, or purpose to injure. Thus, a republication of defamatory matter subsequent to the commencement of an action based thereon is admissible to establish malice in fact (U.S. vs. Montalvo, 29 Phil. 595).

Malice in law – is presumed from a defamatory imputation. Proof of malice is not required, because it is presumed to exist from the defamatory imputation (Art. 354, 1st paragraph).

But where the communication is privileged, malice is not presumed from the defamatory words. The presumption of malice does not arise in the two cases of privileged communication mentioned in paragraphs nos. 1 and 2 of Art. 354. The plaintiff or the prosecution must prove malice in fact, whenever the defamatory imputation appears in a privileged communication. (U.S. vs. Bustos, 37 Phil.. 731)

Identification of the offended party is required in the 4th element.

It is not sufficient that the offended party recognized himself as the person attacked or defamed; it must be shown that at least a third person could identify him as the object of the libelous publication (Kunkle vs. Cablenews-American, 42 Phil. 757). When the obnoxious writing does not mention the libeled party by name, the prosecution is permitted to prove by evidence that the vague imputation refers to the complainant (People vs. Silvela, 103 Phil. 773). In order to maintain a libel suit it is essential that the victim be identifiable, although it is not necessary that he be named. (Corpus vs. Cuaderno, Sr., 16 SCRA 807) But the publication need not refer by name to the offended party. It is sufficient if it is shown that the offended party is the person meant or alluded to therein. (Causin vs. Jakosalem, 5 Phil. 155)

Purpose must be to injure the reputation of the offended party. In the prosecution for libel, it is essential that the intention of the offender in publishing the libelous matter was to discredit or dishonor the person allegedly libeled. If the matter charged as libelous is only an incident in an act which has another objective, the crime is not libel. (People vs. Velasco, G.R. No. 43186. CA, Feb. 19, 1937).

Malice in law is presumed from every defamatory imputation. The opening sentence of Art. 354 states the presumption of malice in defamation. It is known as malice in law.

When the imputation is defamatory, the prosecution or the plaintiff need not prove malice on the part of the defendant. The law presumes that the defendant’s imputation is malicious. Even if the defamatory imputation is true, the presumption of malice still exists, if no good intention and justifiable motive for making it is shown.

The presumption of malice is rebutted, if it is shown by the accused that –
(a) the defamatory imputation is true, in case the law allows proof of the truth of the imputation;
(b) it is published with good intention; and
(c) there is justifiable motive for making it.

Malice is not presumed in the following:

1. A private communication made by any person to another in the performance of any legal, moral or social duty (Art. 354, No. 1);
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions (Art. 354, No. 2).

They are the so-called privileged communications.

Unnecessary publicity destroys good faith. When a copy of a privileged communication is sent to a newspaper publication, the privilege is destroyed by the conduct of the accused (People vs. Cruz, 40 O.G., Supp. 11, 15).

Reason for the doctrine of privileged communication. It is based upon the recognition of the fact that the right of the individual to enjoy immunity from the publication of untruthful charges derogatory to the character is not absolute and must at times yield to the superior necessity of subjecting to investigation the conduct of persons charged with wrongdoing. In order to accomplish this purpose and to permit private persons having, or in good faith believing themselves to have, knowledge of such wrong doing, to perform the legal, moral, or social duty, without restraining them by the fear that an error may subject them to punishment for defamation, the doctrine of qualified privilege has been evolved. (U.S. vs. Bustos, et. al., 37 Phil. 731; U.S. vs. Cañete, et. al., 38 Phil. 253)

Statements made in self defense or in mutual controversy are often privileged. In an honest endeavor to vindicate himself and his own interests a person is often privileged to make statements which would otherwise be regarded as defamatory. Thus, if one’s good name is assailed in the newspaper, he may reply defending himself, and if his reply is made in good faith, without malice and is not unnecessarily defamatory of his assailant, it is privileged. (People vs. Baja, C.A., 40 O.G. Supp. 5, 206)

Proof of truth is admissible in any of the following:

1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer.
2. When the offended party is a Government employee, even if the act or omission imputed does not constitute a crime, provided it is related to the discharge of his official duties. See Ocampo vs. Evangelista, et. al. C.A., 37 O.G. 2196; Tumang vs. People, 73 Phil. 700.

Proof of truth. The proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors or suspicion. It must rest upon positive, direct evidence upon which a definite finding may be made by the Court. See U.S. vs. Sotto, 38 Phil. 666. But probable cause for belief in the truth of the statement is sufficient.
(Source: The Revised Penal Code, Luis Reyes)


BY:

ATTY. REY NATHANIEL C. IFURUNG
Ifurung Law Offices
Unit 1206-B, West Tower, Phil. Stock Exchange
Exchange Road, Ortigas Center, 1605 Pasig City
Telefax: 6383833 ■ Cel. No. 09178160530
Email: ifurunglaw@yahoo.com.ph














[1] Prision correccional, suspension, and destierro. — The duration of the penalties of prision correccional, suspension and destierro shall be from six months and one day to six years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. (Art. 27, RPC)