Righting Wrongs: Criminal Law Provisions in the Philippines related to National Security and their Impact on Human Rights Defenders Article 154(3) of the RPC criminalizes and represses publication of pending legislation or proclamations, including declarations of martial law before they are officially published, which could prevent the public from learning about and deliberating or commenting on draft laws before they are passed and published.101 It thus cannot be said to be necessary and proportionate for the protection of national security. By prohibiting the publication of anonymous material, Article 154(4) suppresses a wide range of legitimate speech, without a requirement of any showing of harm to any individual or interest or any malicious intent, solely because the speaker/writer chooses to remain anonymous including when the individual seeks to protect their privacy including for example, with the aim of protection against reprisals. The repressive impact of this provision must be considered in the context of the Philippines where, given the high rate of extrajudicial killings, enforced disappearances, torture and harassment of human rights defenders and journalists,102 some individuals desire to remain anonymous when speaking out or writing about human rights issues. This provision thus is not a necessary and proportionate restriction of freedom of expression for the protection of national security. Therefore, the provisions of Article 154 are inconsistent with the Philippines’ obligation under the ICCPR to respect and protect freedom of expression as its provisions are not precise enough to enable individuals to know how to regulate their conduct accordingly and allows unfettered discretion by law enforcement in its execution.103 It is not “concrete, clear, and unambiguous”104 and is thus inconsistent with the principle of legality. Its provisions are also overbroad, criminalizing legitimate speech and suppressing political discussion and peaceful dissent. Furthermore, Article 154 of the RPC cannot be justified as a legitimate and necessary measure to protect national security or public order. As mentioned above, laws limiting the exercise of freedom of expression on the grounds of protecting national security should punish only (a) expression that is intended to incite imminent violence; and that (b) is likely to incite such violence; in circumstances in which (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.105 The retention of Article 154 of the RPC in the criminal law of the Philippines in its current form is not consistent with Philippines obligations under Article 19 of the ICCPR. b. Criminal libel provisions in the RPC and the Cybercrime Prevention Act Criminal defamation laws have significant potential of being abused to limit criticism and stifle public debate that is necessary in a democratic society. The constant threat of criminal sanctions, including imprisonment, casts a chilling effect upon individuals, including in particular human rights defenders whose work includes exposing human rights abuses perpetrated by persons in authority. Thus, as mentioned above, the Human Rights Committee and other human rights bodies have called for the decriminalization of libel. As demonstrated by the cases described above, a substantial number of criminal libel cases have been brought against human rights defenders and journalists by public officers who they have alleged to have committed abuses in office, or have been involved in graft and corruption. 101 One author notes that any publication of President Marcos’ suspension of the writ of habeas corpus before its declaration on 21 September 1972 would have violated Art. 154. Rodolfo G. Palattao, The Revised Penal Code Made Easy, Book II, supra note 39, at p. 103. 102 Report of the Special Rapporteur on the situation of human rights defenders: Observations on communications transmitted to Governments and replies received, UN Doc. A/HRC/19/55/Add.2 (2012) at para 292. 103 Human Rights Committee General Comment 34 on Article 19: Freedoms of opinion and expression, UN Doc CCPR/C/GC/34 at para. 25. 104 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/ HRC/14/23 (2010) at para. 79(d). 105 Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc. E/ CN.4/1996/39 (1996). 17