02 Jul 2010

Presented by the National Union of Peoples’ Lawyers
“Kabuhayan, Karapatan, Katarungan: A Forum on ESC Rights”
August 28, 2007
Malcolm Hall, UP College of Law


Profile of the NUPL


The NUPL is a nationwide voluntary association of human rights lawyers in the Philippines committed to the defense, protection, and promotion of  civil, political as well as social, economic and cultural rights and the right to self-determination, especially of the poor and the oppressed. The NUPL shall primarily be a mechanism for collaboration, coordination, and facilitation of legal services in the local and national levels. It shall also be a venue for advocacy on national and other important issues affecting the rights of the people in order to serve them even more effectively and efficiently and shall help seek redress for violation of the rights especially of the poor and the oppressed.

    The NUPL is a fairly new organization, founded on September 15, 2007, but many of its members have been active in human rights lawyering going back even during the martial law years.   It currently has one hundred eighty-one (181) members nationwide, one hundred twenty nine (129) of whom are lawyers, while the rest are law students and paralegals.   Despite the modest number of members, it is estimated that about 70-80% of the human rights cases in the country  including petitions for the writ of amparo are handled by its members, showing the active commitment of NUPL to human rights.   NUPL currently has four chapters in Cebu, Iloilo, Leyte and Ozamis but also counts among its ranks many of the members of the Union of Peoples’ Lawyers in Mindanao (UPLM), the largest formation of human rights lawyers in Mindanao.  

    The NUPL is an affiliate member of the International Association of Democratic Lawyers (IADL) based in Belgium and one of  the NUPL Board Members is the current President of the International Association of Peoples Lawyers (IAPL) based in  the Netherlands. It has also established professional linkages with several other human rights lawyers’ organizations around the world.

    The NUPL was given accreditation to speak before the 7th and 8th sessions of the UN Human Rights Council and during the 1st Universal Periodic Review (UPR) where it provided the international community with a comprehensive  account of the human rights violations in the country today.

    The NUPL, many of whose members have been targets of different forms of attack,  is an active advocate against the attacks on lawyers and judges.  It continuously monitors these attacks and compiles data on these cases.  

    The NUPL has actively encouraged its members to use the Writ of Amparo in an attempt to take the opportunity being offered by the writ to provide a possible remedy for victims of extra judicial killings and enforced disappearances.   The NUPL also encouraged its members to participate in the Access to Justice of the Poor Workshop organized by the Supreme Court.  

Although NUPL lawyers are also lawyers of the various sectors who are presenting papers to Chief Justice Reynato Puno on the issue of access to justice, it also seeks to forward on its own, a proposal to amend the Rules of Court and incorporate the Rule on the Strategic Lawsuit Against Public Participation or the Anti-SLAPP Rule.



I. SLAPP: Nature and Concept

    A Strategic Lawsuit Against Public Participation (SLAPP) is any legal action filed against an individual or individuals, groups, labor unions, entity or associations, community residents, or the like by reason, or arising out, of their exercise of freedom of speech, expression, or of the press, or of the right to peaceably assemble or petition the government for redress of grievances in matters of public concern, and is intended merely to harass, vex, exert undue pressure, or stifle the resources of such individual or individuals, groups, labor unions, entity or associations, community residents, or the like.   

The subject matter of public participation or public concern shall mean anything that involves matters of public, social, economic, community, or cultural issue, significance, interest, importance, or welfare.

Simply put, SLAPP actions are designed to intimidate and silence critics and opponents by burdening them with the cost of a legal defense so that they would be forced to abandon their criticism and opposition against any acts involving matters of public concern.
 
    SLAPP actions typically has the environment as the subject matter of public participation (e.g. (1) local residents who are petitioning to change zoning laws and are protesting to prevent a real estate development in their area are sued by the developer; (2) environmentalists are sued by mining companies for protesting against the mining companies and mining operations).

    The means used by an individual or individuals, groups, labor unions, entity or associations, community residents, or the like to engage in public participation as regards matters of public concern, which consequently resulted in the filing of SLAPP actions against them, are the following:

1.    The exercise of freedom of speech, expression, or of the press;
2.    The exercise of the right to peaceably assemble; or
3.    The exercise of the right to petition the government for redress of grievances.          

SLAPP actions adversely affect the economic, social, and cultural rights of the people who are made defendants, respondents, or accused, as the case may be, in such actions. When environmentalists, local residents, or indigenous people, for example, are opposing the mining operations of a certain mining company in their locality, as such operations likewise adversely affect their economic, social, and cultural rights, the mining company would file against them cases like libel, alarm and scandal, illegal assembly, direct assault, and the like whenever they would exercise the above-mentioned constitutional rights to oppose the said mining operations.

This situation is likewise true in localities wherein banana plantations conduct the aerial spraying of pesticides, or are operating without complying with the health standards set by the existing statutes and rules and regulations. When organizations, local residents, or individuals exercise their constitutional rights to oppose such illegal practices, SLAPP actions are filed against them.

As result of these SLAPP actions, the social, economic, and cultural rights of the people who are made defendants, respondents, or accused, as the case may be, in such actions are adversely affected and violated as they now find it difficult to perform their work or pursue their livelihood, engage in social interactions and participation within the community, or assert their cultural rights without being burdened, restrained, threatened, or distressed by such actions. The situation is even worse in instances where warrants of arrest are issued against them and due to lack of financial capacity, they could not post bail.

Hence, SLAPP actions involve a violation of the economic, social, and cultural rights of the people who are made defendants, respondents, or accused, as the case may be, in such actions.

    But more than that, however, SLAPP actions also clog the court dockets and take away precious judicial time and resources  from resolving cases genuinely filed by parties who are either injured or at least honestly believe they are injured.  In criminal actions, these SLAPP actions even use the prosecutorial machinery of the State against the hapless rights advocates.  This not only an abuse of judicial process, but the use of government resources to impinge on the exercise of constitutional rights.

    Anti-SLAPP provisions have been incorporated in the Rules of Procedures of other jurisdictions particularly in many States in the United States of America (see examples of anti-SLAPP provisions of other jurisdictions in Chapter III). 

    It cannot be denied that the defendants, respondents, or accused, as the case may be, in SLAPP actions are up against giant corporations and influential individuals in opposing the same. As the abuse of the judicial process by those who have the means and resources is prevalent in the Philippine society, the real and lasting solution against SLAPP actions is for the prosecution service and the judiciary to be truly independent, impartial, and cognizant of the plight of the marginalized sectors.

    Nevertheless, the introduction of anti-SLAPP provisions in the Philippine Rules of Court shall provide an opportunity for the people to oppose and move for dismissal of such actions. It is in this light that anti-SLAPP provisions are being proposed, taking into consideration the nature and provisions of the existing Rules of Court. Under the circumstances obtaining in SLAPP actions, it is imperative that measures for their dismissal at the earliest opportunity be formulated in the Rules of Court to spare the people from this special kind of harassment suits. Likewise, to discourage and deter the filing of SLAPP actions, mechanisms for the award of damages, litigation costs, attorney’s fees, and other reliefs as the circumstances may warrant should also be devised in favor of the defendants, respondents, or accused, as the case may be, of such actions.


II. Proposed Anti-SLAPP Provisions

A. Definition of Terms:

(a)    “Strategic Lawsuit Against Public Participation” or SLAPP includes any civil complaint, counter-claim, cross-claim, third (fourth, etc.) – party complaint, or complaint-in-intervention, criminal complaint or information, or administrative complaint filed against individual or individuals, groups, labor unions, entity or associations, community residents, or the like by reason, or arising out, of their exercise of freedom of speech, expression, or of the press, or of the right to peaceably assemble or petition the government for redress of grievances in matters of public concern, and is intended merely to harass, vex, exert undue pressure, or stifle the resources of such individual or individuals, groups, labor unions, entity or associations, community residents, or the like. 

(b)    “Public Concern” means anything that involves matters of public issue, public significance, public interest, public importance, or public welfare.

(c)    “Claim” means any civil complaint, counter-claim, cross-claim, third (fourth, etc.) – party complaint, or complaint-in-intervention.

(d)    “Plaintiff” refers to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) – party plaintiff.

(e)    “Defendant” refers to the original defending party, the defendant in counter-claim, the cross-defendant, or the third (fourth, etc.) – party defendant.

(f)    "SLAPPback" means an action for damages filed by the defendant, respondent, or accused, as the case may be, of a SLAPP action against the plaintiff or complainant thereof arising from the final and executory dismissal of the said SLAPP action.

B. Duty of the court in civil cases; motion to dismiss. – Upon receipt of any complaint or pleading asserting a claim, the court shall have the duty to immediately make a determination whether the same is a SLAPP action.

If the court finds the same to be a SLAPP action, it shall order its dismissal and award damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the case to the defendant.

Subject to the right of appeal, an order dismissing the complaint or pleading asserting a claim determined to be a SLAPP action shall bar the refilling of the same action or claim.

The duty of the court to make such determination does not preclude the defendant from filing a motion to dismiss on the ground that the complaint or pleading asserting a claim is a SLAPP action. Such ground shall not be deemed waived even if not included in a motion to dismiss.

C. Duty of the investigating prosecutor; motion for determination. – Upon receipt of any complaint, the investigating prosecutor shall have the duty to immediately make a determination whether the same is a SLAPP action.

If the investigating prosecutor finds the same to be a SLAPP action, it shall order its dismissal. Subject to the right of appeal, an order dismissing the complaint determined to be a SLAPP action shall bar another prosecution for the same offense.

The duty of the investigating prosecutor to make such determination does not preclude the respondent from filing a motion for determination of the complaint as a SLAPP action prior to the submission of his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense.

D. Duty of the prosecutor during inquest; further investigation; release. – When a person is arrested without a warrant whereby an inquest is conducted in accordance with existing rules, the inquest prosecutor shall have the duty to immediately make a determination whether the complaint is a SLAPP action.

If the inquest prosecutor finds the same to be a SLAPP action, it shall order its dismissal. Subject to the right of appeal, an order dismissing the complaint determined to be a SLAPP action shall bar another prosecution for the same offense.

If the inquest prosecutor finds the same to be not a SLAPP action but the person arrested has reasonably shown during the inquest that the complaint may be a SLAPP action, the inquest prosecutor shall order the further investigation of the same, and the immediate release of the person arrested.  The immediately preceding section shall be applicable during the further investigation of the said complaint.

E. Duty of the court in criminal cases; motion for judicial determination. – Upon receipt of any complaint or information, the court shall have the duty to immediately make a determination whether the same is a SLAPP action.

If the court finds the same to be a SLAPP action, it shall order its dismissal and award damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the case to the accused.

Subject to the right of appeal, an order dismissing the complaint or information determined to be a SLAPP action shall bar another prosecution for the same offense.

The duty of the court to make such determination does not preclude the accused from filing a motion for judicial determination of the complaint or information as a SLAPP action within a reasonable period of time upon the receipt of the complaint or information by the court.

F. Applicability in Summary Procedure. – The preceding provisions of paragraphs (B) and (E) shall be applicable in cases falling under the rule on summary procedure.

G. Non-applicability to action involving public interest. – The right to file such motion to dismiss or motion for determination before the office of the prosecutor or the court, as the case may be, shall not be applicable against any action brought solely in the public interest or involving public concern.

H. Administrative cases. – In every case administrative case, whether in the private or public sector, the private or public officer, as the case may be, having the duty to decide the complaint shall have the duty to immediately make a determination whether the same is a SLAPP action.

In case of a public officer, if he finds the same to be a SLAPP action, he shall order its dismissal and award damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the case to the respondent. Provided, That the respondent shall have the right to file a SLAPPback action and recover damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the case, upon the favorable judgment in the said complaint becoming final and executory.

In case of a private officer, if he finds the same to be a SLAPP action, he shall order its dismissal. Provided, That the respondent shall have the right to file a SLAPPback action and recover damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the case, upon the favorable judgment in the said complaint becoming final and executory.

The duty of the private or public officer, as the case may be, to make such determination does not preclude the respondent from filing a motion to dismiss on the ground that the complaint is a SLAPP action.

I. Right to file SLAPPback and recover damages, litigation costs, attorney’s fees, and other reliefs. – Upon the final and executory dismissal of a SLAPP action, the defendant, respondent, or accused thereof, as the case may be, shall have the right to file a SLAPPback action for damages against the plaintiff or complainant, as the case may be, of the SLAPP action and recover damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the case.

The court shall consider only the fact of the final and executory dismissal of the SLAPP action in granting the SLAPPback action. Provided, That the court shall consider the circumstances of the case in the determination of the amount of damages, litigation costs, attorney’s costs, and other reliefs that shall be awarded to the plaintiff thereof.

J. Motion to dismiss SLAPPback. – The defendant in a SLAPPback action may file a motion to dismiss a SLAPPback action on the ground that the dismissal of the SLAPP action from which the former arises is not final and executory, among other grounds that may be available upon the defendant.


Provided, That if the motion to dismiss a SLAPPback action on any ground is found to be frivolous or solely intended for delay, the court shall deny the motion and award to the plaintiff damages, litigation costs, attorney’s fees, and other reliefs as warranted by the circumstances of the filing and denial of the motion. Provided further, That the same are separate from the damages, litigation costs, attorney’s fees, and other reliefs that shall be awarded to the plaintiff in the SLAPPback action upon the favorable judgment therein becoming final and executory.

K. Denial of motion to dismiss SLAPP action, motion for determination of complaint or information, motion to dismiss SLAPPback action. – The denial of a motion to dismiss on the ground that the complaint or pleading asserting a claim is a SLAPP action, the motion for determination of the complaint or information as a SLAPP action, or the motion to dismiss a SLAPPback action on the ground that the dismissal of the SLAPP action is not final and executory is not appealable. Provided, That the movant may file an appropriate special civil action under Rule 65 of the Rules of Court.


III. Anti-SLAPP Provisions of other Jurisdictions

    A. The State of California (United States) has three (3) Sections of its Code of Civil Procedure regarding SLAPP actions:

(1)     Section 425.16 of the Code of Civil Procedure was enacted in 1992. It has the following provisions intended to thwart SLAPP actions by means of a special motion to strike the SLAPP actions:

(a)    The said section was enacted to counter the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of (1) freedom of speech and (2) petition for the redress of grievances;”

(b)    SLAPP action against a person arising from the exercise of his or her right of petition for redress of grievances or right of free speech may be dismissed upon a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on his claim;

(c)    If the special motion to strike is granted by the court, the defendant is entitled to recover his or her attorney’s fees and costs;

(d)    If the special motion to strike a SLAPP action is found to be frivolous or solely intended for delay, and is therefore denied, the plaintiff in the SLAPP is entitled to recover attorney’s fees and costs;

(e)    The acts in furtherance of a person's right of petition or free speech in connection with a public issue, where a special motion to strike may be filed against a SLAPP action in case one is filed, include:

    (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
    (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
    (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;
    (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(f)    The special motion to strike may be filed within 60 days from the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper;

(g)    The order granting or denying the special motion to strike is appealable.


(2)    Section 425.17 of the Code of Civil Procedure, enacted on September 6, 2003, is designed to prevent the abuse of the use of the special motion to strike as the same has been used against public interest lawsuits and class actions on public concerns filed by organizations or individuals against corporations or real estate developers contrary to the purpose and intent of Section 425.16. Its important provisions are the following:

(a)    Section 425.16 (the right to file a special motion to strike against SLAPP actions) does not apply to any legal action brought solely in the public interest or on behalf of the general public.