Stifling free speech in the workplace

An article I wrote on a recent Supreme Court decision and its implications on free speech in the workplace just came out on Newsbreak. Here is the link to the original article. The full text follows –

The freedoms of speech and of expression have long been acknowledged as indispensable to a democratic society. The eminent American jurist, Benjamin N. Cardozo, speaking for the United States Supreme Court, stated that the freedom of thought and speech “is the matrix, the indispensable condition, of nearly every other form of freedom.”  Our own high court has characterized the freedom of expression as being “a fundamental postulate of our constitutional system.”

International human rights law likewise recognizes the fundamental importance of free expression. Article 19 of the Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of expression and opinion” and that this right includes the freedom “to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

But despite this widely recognized primacy of the freedom of expression, the Philippine Supreme Court, in a decision handed down by its Second Division last November, has laid down a new doctrine that threatens to seriously undermine the exercise of this essential right in the context of labor relations.

The said decision concerned a labor dispute between the management of Dusit Hotel Nikko and members of its employees’ union. In the course of the dispute, several employees came to work with shaved heads and were prevented from working by the hotel. Speaking through Associate Justice Presbitero J. Velasco, Jr., the Court, in its decision in the case of NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v. Court of Appeals,  ruled that the act of several hotel employees in reporting for work with shaved heads, ostensibly in violation of the hotel’s grooming standards, constituted an illegal strike and was “not a protected action;” in other words, that the act of shaving one’s head as a means of protest transgressed the limits of freedom of expression and could validly be restricted by law.

The Constitution and law recognize two types of activities that can be undertaken by workers collectively – strikes and other peaceful concerted activities.

A “strike” is explicitly defined as “any temporary stoppage of work by the concerted action of employees as a result of an industrial dispute.”  The right to strike is recognized under the Constitution,  but may only be exercised “in accordance with law,” that is in the manner prescribed and with due observance of the requirements set forth under the Labor Code.

Any other “peaceful concerted activities” short of a strike are not, however, subject to the same degree of regulation. These concerted activities fall under the mantle of the constitutionally protected freedoms of speech, expression, and assembly, and may only be prevented or restricted upon a clear showing that a “clear and present danger” to public interest exists.

The legally allowable degree of regulation, therefore, is determined by how a particular act is characterized: Is it a strike, in which case more stringent restrictions may be applied? Or is it another type of peaceful concerted activity, which can only be restricted when there is a clear danger to public interest?

In finding that the act of coming to work with a shaved head, even without an express refusal to work, amounted to a strike as it forced the hotel to “choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work,” the Supreme Court has dramatically expanded the legal definition of strike. It has characterized speech which is “detrimental to the employer’s reputation” as amounting to a strike and therefore subject to more stringent restriction. In so doing, it has opened the door to more intrusive regulation of activities which in the past would be considered as protected under the freedom of speech and expression guarantees of the Constitution.

In past years, the Supreme Court has exercised a tremendous amount of care in order to avoid precisely this kind of encroachment into the constitutionally protected sphere. In one decision, the Court upheld the primacy of freedom of expression over property rights, and allowed workers to join a rally even during working hours. According to the Court:

“As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for redress of grievances — over property rights has been sustained. Emphatic reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all.”

In fact, even in cases where the Court has found an illegal strike to have occurred, it has taken pains to distinguish between the invalidity of the strike – for having failed to adhere to the process required under the Labor Code – and the protected character of specific acts done during the strike. For instance, in one case where the Court declared a strike at a hospital illegal, it nonetheless clarified that the “wearing of armbands” and “putting up of placards” cannot be construed as illegal, as “they are within the mantle of constitutional protection under freedom of speech.”

The Dusit decision, unfortunately, does away with such fine distinctions, and raises concerns about the way in which the freedoms of speech and expression will be construed within the workplace in the coming years.

To begin with, it is an abrupt turnaround from the recognition of the primacy of the freedom of speech particularly with respect to property rights. Dusit implies that if workers’ speech is detrimental to an employer’s reputation – in other words, it “embarrasses” the employer – then it may be disallowed, and, in fact, punished. This reverses the long-established hierarchy of rights that give more weight to free speech than to property interests.

Furthermore, by expanding the definition of a strike, and, as a consequence, the range of workers’ activities that may be subject to more stringent regulation, it severely limits the freedom of workers to speak and express themselves within the workplace. It is easy to envision that Dusit may eventually be used to restrict activities such as wearing of pins or armbands or displaying placards or signs.

For employees in the public sector, this expanded definition has even direr consequences. Since public employees are allowed to organize and engage in peaceful concerted activities but are prohibited by law from conducting strikes, expanding the notion of “strike” to cover not only cases of actual work stoppage but also any action “embarrassing” to the employer may eventually lead to a total restriction on any type of activity critical of or in protest against the government.

This will undoubtedly constitute a significant erosion of these fundamental freedoms. The mere possibility that the Dusit decision may signal a sea change in the State policy on freedom of expression within the workplace is threat enough. For as pointed out by the Court:

“Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”"

If we are to continue to uphold the tenets of our democratic society, we should strive our utmost to ensure that that crucial “breathing space” continues to be respected by our courts.

Rights and wrongs

The start of another year! So I suppose this is a good a time as any to resume posting.

For the past few weeks, the headlines — and for that matter, most of the inside pages as well — have been dominated by news about the Alabang 3 and the alleged million peso bribes offered to agents of the Philippine Drug Enforcement Agency (PDEA) and prosecutors of the Department of Justice (DOJ) to secure their release. For the most part, the emphasis in the news articles and opinion columns written on the matter has been on the heroism and steadfastness of the PDEA officers who refused the bribes and rebuffed attempts by DOJ prosecutors (who, most would suppose, actually succumbed to bribery) to have the three suspects released. Even my own professor, former UP Law Dean Raul Pangalangan,  characterized the issue, in his column in the Inquirer, as a demonstration of “how the legitimate safeguards of due process can be misused.”

I must admit that from all appearances the issue seems fairly cut and dried. Those involved eve readily fulfill the stereotypical roles we have all come to expect in relation to the local justice system — the rich and privileged suspects, arrogant in their assumption that they can buy their way out of anything; the corrupt government lawyers, only to willing the twist the letter of the law for personal monetary gain; the sleazy private practitioner, adept at using bribes and connections to get his guilty clients off; and standing alone against this tide of iniquity, the idealistic and incorruptible law enforcement officer, a rare gem of virtue amid the decay of the criminal justice system.

But while I do not discount the bravery and integrity of Major Ferdinand Marcelino of the PDEA (or for that matter, do I doubt the corruption that pervades so much of the justice system), I cannot help but be disturbed by the fact that in the wake of this entire affair, concepts such as “due process” and “rights of the accused” have seemingly become inextricably linked to corruption and tolerance for crime; “legal gobbledygook” that repulsively smooth lawyers use as overly technical excuses to get privileged suspects off the hook.

One thing that immediately struck me when this story hit the headlines was the fact that the PDEA refused to release the suspects despite an order from the DOJ, claiming that said order was still subject to “automatic review.” Now while most of us may believe that the suspects were “really” guilty, and that the DOJ order was “really” prompted not by sound legal considerations but by cold, hard monetary ones, should we really be happy at the thought that, in this particular case, instead of seeking recourse through the proper legal venues, the arresting officers simply chose to ignore what on its face was a legal order of release from a duly empowered civilian authority?

Article 125 of the Revised Penal Code requires that suspects arrested without a warrant (as in this case) can only be kept in police custody for a maximum of 36 hours before formal charges must be brought against them in court. In this case, formal charges were not brought precisely because the office that was tasked to bring them, the DOJ, found, at least ostensibly, that the arrest, and consequent search, of the suspects was invalid. Yet notwithstanding this, the PDEA chose to keep the suspects in custody well beyond the legally permitted 36-hour period.

Now I may not exactly be the biggest fan of the DOJ (or more precisely, this particular DOJ), but I am certainly less inclined to allow on-the-ground law enforcement agencies like the PDEA to ignore clearly established legal rules and act in whatever manner they feel is “right,” laws and rules be damned.

While I strongly agree that the corruption in the criminal justice system urgently needs to be addressed, I feel just as, if not more, firmly that simply ignoring procedure is definitely not the way to go.

Two legal wrongs will not certainly make a right.

On the Alston Report

Was writing this brief comment on the Final Report of UN Special Rapporteur Philip Alston — my professor at NYU as it so happens — when the Manila Peninsula “incident” took place. Distractions and all, it came out in the Inquirer on Saturday, December 1.

Earlier this week, Philip Alston, the United Nations Special Rapporteur on Extrajudicial Executions, released his final report on the extrajudicial killings in the Philippines. Consistent with Alston’s earlier public pronouncements on the issue, the report concluded that responsibility for most of the killings, particularly those of leftist activists, could be laid at the doorstep of the military.

According to the report, these extrajudicial executions were carried out as part of a military counter-insurgency strategy which targets leaders and members of “front” organizations of the CPP-NPA. The “official line” of the AFP that the killings were the result of internal purges within the ranks of the communist insurgency was dismissed as being “strikingly unconvincing.”

The report, however, did not stop there. While dismissing the military’s theory of internal purge, it nonetheless recognized the responsibility of the CPP-NPA for some extrajudicial executions, most notably the murder of civilians under the guise of “revolutionary justice,” and the killing of peasants in the course of agrarian reform disputes. The report was just as firm in characterizing these CPP-NPA killings as being clear violations of international law.

Responses to the report have thus far run along predictable lines. A spokesperson for the President was quick to deny that there was an official “policy” supporting the killings. The PNP doggedly insisted that the report was merely an “opinion” and that any of its findings should be supported by “evidence which could stand in a court of law.” On the other side, the party-list groups Bayan Muna, Anakpawis, and Gabriela immediately called for the sacking of top defense officials for their culpability in the killings, while remaining silent on the report’s similarly firm indictment of the CPP-NPA.

These initial reactions, anchored as they are on the vested political interests of these various groups, fail to adequately grasp the purpose and full import of the Alston report.

To begin with, the principal objective of a report by a special rapporteur is to assess a State’s compliance with its legal obligations in a given area under international law. Hence, the report opens with an enumeration of applicable treaties that the Philippines has ratified, namely the International Covenant on Civil and Political Rights and the Geneva Conventions. These form the legal basis for Philippine obligations with respect to the issue of extrajudicial killings.

These obligations, according to a familiar mantra, are those to respect, protect, and fulfill, in this specific case the right of persons to life and to judicial process. The obligation to “respect” requires government to refrain from engaging in extrajudicial killings. The obligation to “protect” mandates government to prevent third parties, whether rogue soldiers or armed insurgents, from doing the same. The obligation to “fulfill” compels government to put in place the necessary mechanisms, such as courts clothed with adequate powers, to ensure enjoyment of the rights.

Under this framework, it does not matter if government does not formally adopt a policy condoning the killings. It still is in breach of its obligations so long as the killings are perpetrated by its agents, in this case the military, and it fails to take appropriate actions to stop them and enforce liability on the perpetrators.

Similarly, as the report is concerned with the larger issue of State compliance, it should not be characterized in the same manner as a criminal investigation. Insistence on the report following the formal rules of evidence observed by courts is misplaced, since what is at issue is not individual criminal culpability, but the adequacy of State action with respect to its obligations under international human rights law.

The fairness or validity of the report, rather, should be assessed by the methodology utilized in collecting the information on which it was based. In the case of the Alston report, it was anchored on extensive interviews from the government, military, and civil society, as well as documents provided by these same groups. In other words, its conclusions are derived from weighing of the information from various, undoubtedly contradictory, sources.

That the report paints a grim picture of the Philippine situation cannot be denied. But rather than viewing it as a public relations dilemma that has to be “handled” or dismissed, government should take up the real challenge of acting on the recommendations set forth in the report. After all, Alston’s investigation was done at the behest of the Philippine government itself. It would be the height of obtuseness, not to mention absurdity, for the government to dismiss the selfsame findings it sought.

Anger

There seems to be so much to get angry about these days. I find that even a short browse through my daily copy of the Philippine Daily Inquirer (yes, I am one of the dying breed who still insist on maintaining subscriptions to the traditional newsprint-and-ink version) is often sufficient to set my temper flaring.

For shaking off sleepiness, it’s almost as good as chugging down a mug of coffee in the morning.

What do I get angry about exactly? Well a lot of things. Most of which have to do with the fact that so many people in public life (I refuse to call them “public servants,” since they never act that way at all) commit the most atrocious, unconscionable, blatantly unfair, and oftentimes illegal acts without (and this is what really gets me) the barest hint of shame. Its not simply that they do “wrong,” but that they act so righteous while doing so.

Take the case of one of my favorite pet peeves, Bayani Fernando and his thug squad known as the MMDA. I know the man has received a lot of praise for his supposedly no-nonsense enforcement of the law, but in my view he has violated more laws than he has actually upheld. To begin with, his entire campaign against informal settlers, small-time vendors, and other “obstructions” to streets, sidewalks, and waterways is anchored on a resolution enacted by the MMDA; a resolution which the Supreme Court, in several decisions, has already declared the MMDA has NO POWER to enact.

Furthermore, his continued confiscation of vendors’ property and forced evictions of the poor violate not only rights very clearly enshrined in our Constitution, but numerous provisions of various laws such as the Urban Development and Housing Act.

Now, I want, no, I desperately crave, public officials to be uncompromising in the way they enforce the laws. But they must be equally stringent in obeying it themselves, and that means pursuing enforcement with due observance of legally established rights. Otherwise they are not acting as public officials but as vigilantes.

Besides, there is something which I find unacceptable in his very attitude towards enforcement. I mean, fine, we have laws mandating that sidewalks should be kept clear, but have you ever seen the MMDA enforce this rule against well-to-do homeowners whose driveways encroach on this public space? Have you seen them tow-away SUVs illegally parked on sidewalks and trash them the same way they do to the stalls and produce of itinerant vendors? If we’re really serious about enforcing the law, let’s start by cracking down on the most privileged, not the most powerless members of our society.

Otherwise what we’re propping up is not a strong State, but merely a loudmouthed, oppressive bully.

Impunity

I’ve started writing a column for a newspaper so I suppose I should post the first one here.

“Get out of the Philippines,” was the suggestion I received from a friend of mine recently. Surprisingly, she was not basing her proposal on the usual economic considerations but was instead, referring to the rampant killings of activists, journalists, and, well, lawyers.

Of course, I did not take her concerns about my personal welfare seriously. After all, even in the most trigger-happy environment, who would bother gunning down a law professor? Apart from disgruntled students, that is.

What I did take seriously, however, was the solution she put forward: Leave the Philippines. She did not suggest seeking succor from the courts or protection from the police; she proposed flight

Of course, the rather extreme notion of fleeing one’s native land only becomes reasonable in the light of one fundamental fact – nobody really trusts the courts, much less the police. Instead, the vast majority have become convinced, despite the bold and extremely laudable initiatives of our Chief Justice, that neither the courts, the police, nor the entire criminal justice system will be able to protect us from becoming victims of crime, whether killings carried out by professional gunmen (or disgruntled students), robberies aboard FX taxis, or the theft of our cellular phones.

This lack of trust in state mechanisms for law enforcement has its roots in the general perception that, in a seemingly overwhelming number of crimes, the agents of the law have failed to bring the perpetrators to justice. In the more spectacular cases involving the murder of activists, the police have rarely, if ever, made any plausible arrests, and the courts have not made any convictions. In the more mundane instances involving cell phone theft, the ordinary citizen, recognizing the futility of filing a police report, will simply write off the loss.

All these are indicative of what is known as a “culture of impunity.”

Impunity, simply put, is freedom from the consequences of one’s acts. In the case of criminal acts, these consequences should ideally involve punishment. A culture of impunity, therefore, arises when criminal acts have gone repeatedly unpunished to the point where this failure has become the norm rather than the exception.

In our case, most of us have gone through outrage at and disappointment with the government, to cold acceptance of its inability to protect us. And like my friend, we have learned to cope with this institutional failure.

The problem with merely coping, though, is that it concedes that government’s failure is inevitable and, more crucially, unchangeable. This is a premise that we cannot afford to accept if we still intend to continue living in the Philippines and generally trying to make things work. We must retreat from acceptance, and once again try to find our outrage, reclaim our collective expectations, and force government to live up to them.

Otherwise, we might as well take my friend’s advice, and join the mad rush to the airport.