Esoterica

The Philippines, along with a smattering of states in the US (Nevada, Idaho, Georgia), is one of the last remaining bastions where it is a crime to defame the dead. This is a stark exception to the prevailing rule that the reputation of a person is personal to him and needs no protection after he dies.

In other countries, there is no criminal liability for defaming dead people. Dead men hear no tales a.k.a. what they won’t know won’t hurt them and dead men speak no tales – the dead can’t prove injury as they can’t testify in court. To criminalize this conduct would also inhibit a complete judgment of history on the lives of public men. Their stories cannot be complete without knowledge of how they are regarded when stakeholders are free to finally speak.

Some jurisdictions allow recovery if the defamation impacts on the living heirs – economically or reputationally. This is if the heirs are harmed directly. Once again, the test is if its personal. Even then, only an action for damages. No jail.

We find this strange because we know that a man’s reputation does survive him. As political dynasty ground zero, here it’s all about the name. Shakespeare famously wrote that what men do lives after them. How often have we witnessed our elders’ drama that the best legacy they leave their children is a good name? There is no shortage of laws to guarantee to you the fruit of your labors in life. The law on succession is all about preserving patrimony within your line. But tangible properties are not the only inheritance. A good name is also a valuable windfall. Yet, for most of the world, no laws exist to provide equivalent protection to the name you leave behind.

In the Philippines, however, we have it. Under Article 353 of our Revised Penal Code, libel is defined as: “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 discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” 

Double dead. This low profile crime gets quite the high profile awareness by President Rodrigo Roa Duterte’s repeated testing of its boundaries. We have just heard him speak his mind on the “truth” about the late Tanauan Mayor Antonio Halili. Before that, he gave his Presidential eulogy on the slain Fr. Ventura’s “secret life.”

De mortuis nil nisi bonum is the standard trope: “of the dead say nothing but good.” This remnant from times past when we still believed that our predecessors could reach out from beyond the grave is the latest in the charge sheet of anti-PRRD laments. This trenchant penchant is not peculiar to him, though. Even Vice President Leonor Robredo has not shied away from savage critiques of the late President Marcos.

This is a felony intended to preserve order. Surely, relatives would be prone to react against the gratuitous vilification of their departed. But keeping it in our statute books does little to prevent the disorder. In libel, truth is a defense. And if the accused can use this to drag the dead man’s name through the mud to justify his insults, it inevitably leads to even more disorder and grief to the affected.

PRRD’s conduct and the way it has been received by society shines a spotlight on this beacon law. Just as when he spewed his diatribe against God, his candid observations about these departed souls feeds into same democratic value of freedom of expression. Could this portend a coming constitutional challenge of the law?

Arcana. The GILAS Pilipinas vs. Australia boomers brawl is a stain on both teams. The FIBA (International Basketball Federation) investigation has opened. Submissions are to be given this Monday. The expectation is that swift sanctions will follow. We pray for the same swift justice for the victims of the violence mushrooming in society.  

The relative liabilities of the cast of characters will be determined under FIBA regulations. Going by precedent, there will be player bans for future games. But players have had to answer also to the bar of: (1) public opinion; and, ultimately, to (2) the rule of law. 

As a trending topic on social media, the melee matched the grisly assassination of Mayor Halili. Forget the World Cup. Filipinos love their basketball. More here obsess about Lebron James becoming a Los Angeles Laker or the ridiculous advantage of the Golden State team having five All-Star starters with the arrival of De Marcus Cousins.

Support and disappointment has been tentative for our boys. There is sympathy but not enough understanding. Sportsmanship failed - in crunch time. It is a blinkered mantra that says: just standing up for team. It wasn’t just each team’s reputation at stake, it was that of each nation. There was a line drawn. And the Australian bench did not cross it.

The Aussies are not ruling out criminal charges. Neither should we. The assault that started it all, their Daniel Kickert’s elbow to our Roger Pogoy after the whistle blew, is clearly criminally actionable. It didn’t happen within the confines of the game which would have made it part of the risk assumed while playing.

Even the roles of the coaching staff are under scrutiny. Professional sport jurisprudence recognizes the responsibility of the coaches to keep their teams in check. But, in the criminal law context, you can hardly indict a coach for instigating the specific criminal conduct we witnessed from the players and the staff. Did the coach order him to throw that chair? I don’t think so.

The stigma of this brawl is one we may not soon erase. But we need to come to terms with our accountabilities and man up. As the hosts, more was expected of us.