The Journal of The Jester-in-Exile

(Or, the self-embarassment the NBI has set up for itself by arresting the Flesh Asia Daily authors in relation to the Hayden Kho/ Katrina Halili/ Maricar Reyes boinkfest videos.)

I was busy, but I had to write this post. Looks like the comedy of errors that is the Hayden Kho-Katrina Halili scandal has now lowered itself into farce.

By law enforcement officials, no less. After reading the Inquirer report I found my head shaking. Seriously. Talk about the Peter Principle as applied to law enforcement.

Sheesh. N00bz. Bobits. Idjuts.

Why do I say so?

Let's take a look at a number of the angles surrounding the arrest of one JB Lazarte.

***
Before we get down to the nuts and bolts, let's first visit this case I feel is relevant -- in Soriano vs. Laguardia, citing FCC vs. Pacifica and Katigbak vs. Gonzales, the court took note of how an expression can be permissibly restricted by being considered indecent: by whether or not the medium through which the expression was made is pervasive, by whether or not the expression is aired at a time of day when children have a reasonable risk of being in the audience, and whether or not the expression was made in a "G" rated milieu.

Despite the fact that internet penetration is growing, it is NOT a pervasive medium. Unlike television and radio, which can be accessed anywhere in the country with a working receiver, the internet is -- sadly -- a medium not accessible to the general public (I leave the paralegals to research the latest data on that). Not every person has access to the internet; in contrast, any person riding a jeepney, FX, and bus has listened to the onboard radio or television, if not the receiver he carries himself or passes by in some show window. (It would seem that the NBI are much too optimistic in viewing the pervasiveness of internet use.)

As to whether or not there is a reasonable risk of children accessing FAD, such is why the author's rather crude (no offense meant) attempt at a warning page was made. The reader takes full responsibility for having accessed the site. Furthermore, any computer-savvy parent is aware of parental locks and similar software that prevent young children from accessing such sites. (It would seem that the NBI are not sufficiently computer-savvy to realize this.)

Nailing down the NBI's coffin in this context is this final point: FAD does not purport itself to be a "G" rated site, oh no. In fact, Flesh Asia Daily blatantly and brazenly declares itself to be a site only for adults. (If the NBI did not get that, they must be unable to read.)

How rather disappointing of our law enforcement agents and the prosecutor involved not to have seen these.

***
Further on in the interesting case of Soriano vs. Laguardia comes the "balancing of interests" test when the regulation of expression is concerned, and the court found "the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth."

I would argue that this applies to Flesh Asia Daily as well. If the court accepts it to be the case, then the preceding three guidelines apply, showing that in no way does FAD present a danger to the welfare of the youth, in the same manner that FHM, Red Magazine, Maxim, Playboy, and whatnot have not been considered by the NBI as dangerous to the welfare of the youth (for if the NBI had, these publications' editors would have been arrested long ago).

After all, the magazines are being sold in stores where children can go in and buy stuff (like 7-11, for instance). Not that they're allowed to buy, of course, and if the kids lift the magazines out of the racks and take them out of the stores it's the kids' fault, not the stores'; similarly, if a kid deliberately enters FAD despite internet parental locks, the message warning him off, and the insistence of the internet shop owner, it makes the kid responsible for his actions and not FAD.

***
The Inquirer story reports that the author of Flesh Asia Daily was arrested and charged for violating Article 201 of the Revised Penal Code. This is what that law says:

Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which
(1) glorify criminals or condone crimes;
(2) serve no other purpose but to satisfy the market for violence, lust or pornography;
(3) offend any race or religion;
(4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

The story didn't say which clause was applicable. No matter.

Let's say the NBI decided to apply "(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals."

Were there any doctrines proclaimed that were contrary to public morals? I submit that there were none; else quite a number of local glossy magazines would've been banned, quite a number of billboards would've been torn down, and Willie Revillame's noontime Wowowee would not be aired in the way it is now.

Assuming, however, that there were such doctrines, the court should take note that the expression was not publicly expounded. Unlike television, radio, or public billboards, of which the public cannot avoid being exposed to due to their ubiquity, the access of FAD is a private decision made by a reader on his computer. There is a one-on-one user relationship between FAD and the reader that makes the reading of the site a private rather than a public matter.

Assuming, still, that the proclamation of contrarian doctrines was public, the court should take notice that FAD is not physically based in RP (yes, n00bz, do your homework as to where the site is hosted; the site is not hosted in the author's personal computer -- seriously, how n00b of the NBI to think so), and as such cannot be considered to fall within the ambit of Philippine morals. The Philippines cannot, by operation of law or otherwise impose, on another jurisdiction the morals the Philippines is presumed to subscribe to by law. Since the author of FAD has made his allegedly illegal proclamation in foreign jurisdiction, he cannot be prosecuted for it; why, has the Philippines prosecuted Martin Nievera for violating the Philippine Flag Law in a foreign country?

Assuming, futher, that indeed the author of FAD can be prosecuted for FAD's content because the Philippines will arrogate to itself jurisdiction over the foreign host and even the internet (something no country has yet done, not even the People's Republic of China), this case becomes one of a case of harassment and unevenhanded justice. Why is FAD the only one being charged by the NBI? Why is the NBI not running after Japanese AV sites, Swedish sites, Russian sites, and all those, when the Philippines has arrogated unto itself jurisdiction over foreign hosts and the internet? There is no justification for law enforcement to seek to prosecute one alleged violator and let thousands of other alleged violators run scot-free. So many violations, if they are indeed violations, have been ongoing before FAD -- why was FAD the first to be picked up by the NBI?

Hay, NBI. Did you think it through before you got the warrant to arrest Lazarte?

***
Let's say the NBI decided to apply "(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same." The smackdown is simple: define "obscene"?

I'm sure any competent defense lawyer will rip the NBI's definition apart... simply because there is to date no legal definition of what is obscene.

How about "(2) (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes"? Obviously not.

"(2) (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which
(2) serve no other purpose but to satisfy the market for violence, lust or pornography"? This, the NBI can perhaps use against FAD, but it should have used this against manufacturers of toy weapons (and maybe even manufacturers of real ones), many glossy magazines, and hundreds of street tabloids long ago and consistently. Else, the NBI should be charged with harassment (and rightly so).

(3) and (4) don't directly apply in this case; the connections are rather tenuous. Any offense to race or religion was not directed specifically to said race or religion, and the abetting of traffic in prohibited drugs, well, let's just say it would make kids curious of what "E" is. (I told you it was tenuous.)

(5) is just a catch-all, and can be dismissed out of hand by any of the preceding arguments.

Susme. Is reading comprehension no longer a requirement to be employed by the NBI?

***
Let's say the NBI decides to claim "(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals" as the basis for the arrest. A simple smackdown: "Morals? Define."

Remember, morals are a personal business. Even if the Philippines has a Catholic majority, Catholic morals cannot be imposed because a) such would be tantamount to prescribing a state religion, something against the Constitution, b) such would be tantamount to marginalizing the millions of non-Catholics who do not subscribe to Catholic morals, and c) such would be tantamount to marginalizing the millions of Catholics who do not completely subscribe to Catholic morals. (Just look at the support for the Reproductive Health Bill by quite a number of Catholics, such as that group Catholics for Choice or something like that.)

Heck, what if I say that the ABS-CBN coverage of the arrest of Lazarte by the NBI offends my morals? Will the NBI go and arrest the ABS-CBN reporter and crew? Or will the NBI acquiesce to the reporter's defense of freedom of the press and freedom of expression, a standard which should likewise be afforded to Lazarte?

Unless, of course, the hypothetical crew and the NBI both or separately acknowledge a double standard, and thus aid, abet, and perpetuate an injustice. Such a thing the courts should not countenance.

On the other hand, if the NBI decides to define morals as "public morals", we've discussed that earlier, showing how the NBI cannot find any legal leg to stand on.

***
Which brings me to this final quote from the story:

The Lazartes can only be charged with Article 201 under the Revised Penal Code for possession of indecent materials, according to (Palmer Mallari, NBI Anti-Fraud and Computer Crimes Division -- AFCCD -- executive director).

He also stated that the law is what applies to nearly all “cyberporn” cases that the AFCCD has handled. He noted this provision's limitation particularly on the coverage of pornographic materials in digital format.

No law in the Philippines covers Internet related crimes, including Internet pornography. Mallari himself said there is a need to include a cybercrime law to help them prosecute criminals using the Internet.

Special notes. Pay attention, everyone.

He noted this provision's limitation particularly on the coverage of pornographic materials in digital format.

This we discussed at length already, showing how the NBI should not have harassed Lazarte by arresting him for a weak case.

No law in the Philippines covers Internet related crimes, including Internet pornography.

Possibly one of the most impressive men of the judiciary I've had the privilege to meet drummed this into the heads of we who were listening to him with rapt attention: Nullum crimen sine lege, nulla poena sine lege. There is no crime if there has been no law enacted. One cannot be punished for doing something that is not prohibited by law.

I wonder if the NBI agents (who are supposed to be lawyers, I'm told) have forgotten this basic legal maxim? Hell, has Mallari forgotten it?

(Smaller note -- we took a look at Article 201, we didn't see possession of indecent materials... I wonder if this is a bad quote by the Inquirer reporter or it's a major slip-up of Director Mallari? Uh-oh, eh?)

No wonder the NBI want to turn Lazarte into state witness; it's a clumsy attempt to make a graceful exit without the NBI admitting any error on their part.

I'd like to say that again, and highlight it.

No wonder the NBI want to turn Lazarte into state witness; it's a clumsy attempt to make a graceful exit without the NBI admitting any error on their part.

See the L-sign to the forehead I've just flashed Mallari?

***
I kinda thought that the story would be the Philippines' version of the famous case People vs. Larry Flynt, which ended up being Hollywoodized. As I finish this article, I realize that this case will give clearthinking folks a collective urge to facepalm -- not merely for the farce that it is but for the waste of resources that it is.

Imagine that. The NBI doing all this nonsense, while bombs keep on going off in Mindanao... and nobody's been caught yet.

Bra-VO.

Bleh. Later, all. Still busy. Might take a while.