Wake Up, Philippines!

Right to reply: legislative blackmail

Posted in Congress, Constitutional Rights, Legislation, Media, Right To Information by Erineus on March 6, 2009

By Amando Doronila
Philippine Daily Inquirer
First Posted 22:45:00 03/05/2009

The Right of Reply Bill seeks to enhance the access to the mass media of the people “who feel aggrieved by stories or commentaries which may be biased, inaccurate, and unfair to them,” according to its sponsors.

In his sponsorship speech, Sen. Aquilino Pimentel Jr. said the bill was drafted “in response to the frequent complaints of people who are the subjects of defamatory articles over the refusal or failure of newspapers or broadcast networks to present their side.”

“If the press has the right to offend or to mortify, the people should have the right to reply,” Pimentel said, emphasizing that the freedom of the press “is not the monopoly of members of the press.”

When Pimentel speaks of expanding the right to reply to “the people” who are offended by media reports, we have to ask, who are the people who are mortified and offended by these reports? Clearly, from verifiable evidence, Pimentel appears to be referring to a tiny segment of the people—the political elite, to which he belongs — who are mortified by media reports holding the power-holders accountable for their official acts and abuses in public office.

The right of reply bill seeks to protect a certain group of politically privileged citizens from media reports that expose abuses and corruption of officials. The poor, the underprivileged and the disadvantaged have no reason to complain or to clamor for the right to reply against newspaper reports simply because they have never been the targets or victims of media attacks. The media have historically and traditionally been on the side of the underdogs, who are abused and oppressed by power holders (including legislators, executive officials, police, security forces, bureaucrats). Unlike the power-holders and functionaries with public authority, the media have not bullied and trampled underfoot the underdogs of society. These are the groups which, according to the creed of President Ramon Magsaysay, have less in life and should have more in law.

The politically and socially disadvantaged comprise the majority of the population. They cannot see the relevance of these bills to the exercise of their freedom of speech, especially to join protests against corruption of the elites and the violence of security authorities in suppressing these protests. They cannot understand the concerns of the political elites, such as Pimentel and Rep. Monico Puentevella and those who have endorsed their bills, over media reports exposing abuses of power.

Consequently, there is no way Pimentel’s Senate Bill 2150 and Puentevella’s House Bill 3306 can benefit the underdogs — the victims of abuses of power by the elites. These bills are irrelevant to the underdogs because they have no use for this legislation. These bills are elitist and anti-poor in the sense that they would muzzle the media from denouncing the abuses and corruption of the political elites and curtail the right and responsibility of the media to expose wrongdoing in public office.

Pimentel is making false claims when he says that his bill extends the right of reply to “the people.” In reality, he is referring to a narrow segment of the people, who are already enjoying the legislative privilege of immunity from which the rest of “the people” are excluded. The bill expands the elite’s platform to attack private citizens and groups, as it curtails the freedom of editors to determine the stories they publish or broadcast. The bills grab space from private media to accommodate replies of offended persons, mostly legislators and other power holders, reacting to media attacks centered on public issues.

The political elites have closed ranks behind these bills to gang up on the media. This is a bad sign. The Senate, which is not always a bulwark of press freedom despite senators’ claim to be champions of civil liberties, has passed Senate Bill 2150 in a disgraceful 21-0 vote. The House of Representatives is reported to be sending back House Bill 3306 to the committee on information for review and amendments after further dialogue with media representatives. These steps, claimed to be in observance of “democratic process” in legislation, do not alter the fact that the media face an uphill struggle in getting Congress to kill the legislation. Legislators have warned the media against taking a hardline position, which is that the media cannot compromise their constitutionally-protected freedom to publish stories unfettered by legislated prior-restraint censorship. Indeed, despite all these appearances of a developing compromise, the conflict has hit an impasse.

It does not bode well for a resolution that the chair of the House committee on information, Rep. Bienvenido Abante Jr. has issued a veiled threat that journalists faced dire violent consequences if the media insisted in blocking the right of reply bill. “If you can’t ventilate in writing,” Abante said, “what will a person do but assassinate the journalist? If we include this [provision], it might drastically reduce such incidents.” He was referring to the scores of journalists killed during the past few years.

This is a false assumption. This statement is no different from the Mafia warning that if you interfered in the bootleg racket you would be riddled with submachine-gun bullets.

Unfortunately, many congressmen share this view. They are attracted to a solution that offers facile explanation to the orgy of assassinations of provincial journalists who attacked local officials for wrongdoing. The publication of replies could not have averted the assassinations. The reasons for the killings are complex.

This orgy of killings cannot be stopped by legislative blackmail on the right of reply bill.



Lame concession

Posted in Censorship, Congress, Constitutional Rights, Editorial, Legislation, Media by Erineus on February 27, 2009

Members of media have taken an unequivocal stand against the right-to-reply bill. The proposal to require print and broadcast journalists to give equal space or time to those who wish to defend themselves against attacks, actual or perceived, is seen as unnecessary and an assault on press freedom.

Now comes Senator Aquilino Pimentel Jr., sponsor of the Senate version of the bill, claiming he is listening and is open to making concessions.

Pimentel has come up with the idea of imposing fines instead of jail time for journalists found violating the right-to-reply rule. “We want to be reasonable,” he says.

Apparently, the senator remains unreasonable.

The dilemma is not between going behind bars and shelling out money for fines. Last we looked, the libel law—existing and working well, by the way—still carries the pain of imprisonment. In spite of this, the accusations keep on coming; stories we see, hear and read every day are anything but sanitized.

The bill’s inherent flaw is that it strikes at the heart of journalists’ sense of fairness. The presumption is that everybody in the business is mindful of the ethics that govern the profession. Those who overstep the bounds are aberrations, and there is a law that takes care of this, as well. The industry, for its part, can find ways to raise its standards. But it must be left alone.

Enough arguments have been put forth. Sadly, what we are seeing now are either face-saving acts by those who supported the bill but later on realized they needed friends in the media, or the obstinacy of some who claim to listen but really only want to have their way.

If the lawmakers are truly listening, they must realize that scrapping the bill altogether is the only reasonable step.

‘Media should regulate selves’–CHR

Posted in Censorship, Constitutional Rights, Legislation, Media by Erineus on February 27, 2009

MANILA, Philippines — The controversial right of reply bill pending could be an “undue intrusion” into the rights of media, Commission on Human Rights (CHR) chairperson Leila de Lima said on Thursday.

Instead of passing a bill that would require media outfits to publish the reply of parties offended by reports or commentaries, lawmakers said the media should be allowed to “self regulate.”

“I always believe that it should be self-regulation by media, no legislation is needed. Self-regulation is the best tack,” De Lima said at a press conference in Camp Crame.

But De Lima refused to provide more details of the CHR’s stand on the issue, saying they will be releasing an official statement on the matter soon.

Media organizations and outfits on Monday launched a campaign against the passage of the bill, calling it an “act of terrorism against the media” and a violation of the Constitution.

The Senate passed its version of the measure, principally authored by Minority Leader Aquilino Pimentel Jr., last year, while House Bill 3306 filed by Bacolod Representative Monico Puentevella is pending in the lower chamber.

Both bills seek to require that media publish or air the reply of a party offended by a news story in the same space and with the same prominence as the offending story and carry sanction, including hefty fines and, in the House version, jail time, for those who fail to comply.

For his part, Philippine National Police (PNP) Director General Jesus Verzosa said they respect the code of ethics practiced by the media.

“But also we must have to consider also the wisdom that is being forwarded by our legislators as to why they came up with that proposed bill for the right of reply, so we will wait for the outcome of the processing of the proposed bill of the right of reply,” he said.

By Abigail Kwok
First Posted 17:06:00 02/26/2009

The right to edit

Posted in Censorship, Constitutional Rights, Legislation by Erineus on February 27, 2009

On Wednesday, Senate Minority Leader Aquilino Pimentel Jr. challenged his “friends in the media” to offer him a “reasoned argument” against his right of reply bill, which has passed third reading in the Senate. We are not sure if the burden of proof, so to speak, falls on the media; Pimentel’s counterpart in the House of Representatives, Manila Rep. Bienvenido Abante Jr., for example, gives us all the proof we need that, in the wrong hands, a right to reply law does pose a grave danger to our civil liberties.

Pimentel offers a much more solid argument for a right of reply law, as an expansion of the freedom of the press. As a lawyer, however, Pimentel knows that God (or the devil, depending on which quotation one prefers) is in the details.

And the details are revealing indeed. No distinction between news and opinion (thus killing, in one swoop, the entire tradition of fair comment). No consideration of the cost of reply (thus weighing down news organizations, very few of which actually turn a profit, with an onerous financial burden). And no regard for industry discipline (thus ignoring, sweepingly, decades of practice at self-regulation).

The core of the issue, however, is this: What we have in the right of reply bill (as formulated in Senate Bill 2150, for example) is the right to edit.

Readers scan a newspaper regularly, viewers tune in to a newscast daily, listeners turn to the radio news broadcast hourly, in part because they trust the editors and directors and producers — in short, the news managers — who do the job. The same pattern of trust can be discerned in the emerging media: The most popular websites and the most influential blogs have distinct personalities (in the case of blogs, quite literally).

To choose an example near to Pimentel’s heart: Let us say that in the not-too-distant future, a practiced attention-getter decides that the martial-law era did not in fact happen; that the arrests of Benigno Aquino and Jose Diokno and countless others (including, yes, Pimentel) did not in fact take place; that oppositionists were not in fact tortured and dissidents were not in fact killed. An impossible proposition? Not at all — as the cautionary growth of the Holocaust-denial industry, despite the universe of evidence, should warn us.

Under a right of reply regime, no good deed goes unpunished. Any criticism of a martial-law denier must be paid back in full, with the denier enjoying equal treatment. Even if a newspaper or a TV network or a radio station had already painstakingly shown, perhaps through a comprehensive special report, that martial law did in fact happen and many thousands were in fact left victimized, each news organization would be obliged, under penalty of law, to grant the denier space or airtime equal to the criticism, each time his patent nonsense is criticized.

Does anyone think this is an ideal state of affairs?

News managers — editors, news directors, executive producers — have the duty to judge what is newsworthy. That is part of the unwritten contract readers and viewers and listeners and users enter into. Under a right-of-reply regime, however, a news manager’s duty to spare her audience from the insanity of a martial-law denier is undermined. Indeed, in complying with the strictures of such a law, she will be compelled to propagate the very nonsense she ought to protect her audience from.

Is this an isolated, unlikely case? Not at all — as the shameless growth of the Gloria Macapagal-Arroyo administration’s double-speak factory, despite or perhaps because of its lack of credibility, should tell us.

Executive Secretary Eduardo Ermita wants us to believe that President Arroyo did not snub the EDSA People Power I anniversary rites last Wednesday; she merely had a full schedule. We have the duty to report this statement, of course; on paper it does not look as insane as it sounds. But did no one in Malacañang realize that the anniversary always falls on February 25? It is our bounden duty to point out the inconsistency in Malacañang’s statement, the political savvy behind Malacañang’s use of holidays to mark anniversaries or holidays it welcomes — and thus the hypocrisy in Malacañang’s position on EDSA People Power.

Under a right of reply regime, the media’s constitutionally protected responsibility to sift information from misinformation falls victim to the most flattering form of insincerity: mere lip service.

Philippine Daily Inquirer
First Posted 00:26:00 02/27/2009


Insidious censorship

Posted in Censorship, Constitutional Rights, Human Rights, Legislation, Media by Erineus on February 27, 2009

No democratic country in the world has ever passed legislation that requires the media to provide equal space and time to the replies of citizens offended by news stories.

The members of Congress have taken the lead of reinventing Philippine democracy by initiating legislation that claims to expand freedom of the press while pretending to ensure fairness to citizens who are victims of some news reports or commentaries. Their initiative takes the form of Senate Bill 2150, and House Bill 3306. Both would require the media to publish or broadcast the reply of a party offended by a news story on the same space and with the same prominence as the offending report.

This provision is at the heart of the controversy over the right of reply bill. In practice, it is offensive to the freedom of the press and leads to its curtailment.

On closer examination, the bill amounts to a legislated censorship as pernicious as the muzzling of the press by totalitarian dictatorships. In effect, the bill constitutes prior restraint on the exercise of that freedom by editors in the selection of stories they publish or broadcast.

I am arguing from the operational effects of the bill on the media, not from the legal point of view of its constitutionality. In that context, strong arguments can be mounted against the legislation.

I am referring to the 1974 decision of US Chief Justice Warren Earl Burger who said the choice of material to go into a newspaper, the decision as to the size and content of the paper, and on the treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. Concurring with the majority opinion, Justice Byron Raymond White emphatically held that a newspaper or magazine is not a public utility subject to “reasonable” government regulation on matters affecting the exercise of editorial judgment as to what shall be printed. He said that prior compulsion by government in matters going to the very nerve center of a newspaper — the decision of what copy will or will not be included in a given edition — collides with the freedom of the press clause of the (US) constitution.

US jurisprudence on freedom of the press has been a model and inspiration of Philippine Supreme Court decisions on the issue. From the vantage of the purely operational consequences of the legislated right of reply, I can see the havoc it would wreak on the media industry. We are facing a possible nightmare of disruptions in media operations.

First, let us examine who can, under the bill, compel the media to publish their replies. These are parties “criticized by innuendo, suggestion, or rumor for any lapse in behavior in private or public life.” This provision unlocks the dikes to a flood of demands, converting the media into dumping grounds for all sorts of complaints arising from reports they have published or aired.

The bill appropriates, through legislative fiat, premium newspaper space to these demands for publication of replies on the same spot and same length as the offending story. This requirement is worse than Pravda’s during Stalin’s times. It restricts the media’s choice of stories to use. It prevents editors from touching space pre-allocated to replies. It encroaches on their editorial judgments and independence, which are essential to a free press. It ignores the quality of the stories and gives equal weight to stories regardless of whether they have substance or are full of nonsense. This puts in the same category idiotic and intelligent stories, a parity that does not ensure fairness to offended parties.

The front page of a newspaper is so designed that it reflects the view of the world, as evaluated by editors trained to assess important news. The notion of pre-allocated space, mandated by legislation, distorts social and political reality unfolded by dynamic events. It replaces this empirical reality with an artificial construct built on replies of offended citizens to negative stories.

It would be hard for editors to put out newspapers with these restrictions on choice and placement of stories. They don’t have all the space to accommodate such replies, which tend to create their own cycles of endless replies. One reply leads to another reply, a process which makes it hard to accept Sen. Aquilino Pimentel’s claim that his bill could expand freedom of the press. Freedom to publish of nonsense would be a better word for it.

The most obvious beneficiaries of the bill are the politicians, especially legislators, who can use the right of reply to settle scores with their political adversaries and critics and to protect and promote their own private interests. They are bound to become the foremost users of the right.

Among the members of the political class, legislators, with their privilege speeches, are ahead of other public officials in using newspaper and broadcast space. They need the right of reply more than businessmen, military men, bishops, civil society activists and bureaucrats. This is why Pimentel cannot claim his bill will expand press freedom.

Impressionistic evidence indicates that the privilege speech and parliamentary statements made under cover of legislative immunity are often the source of demands for the right of reply. Private citizens slandered and attacked by privilege speeches seldom seek redress in the media, because it does not help them. They have no use for the Pimentel bill. Reply in the media to privilege speeches can only invite swift retaliation from legislators shielded by parliamentary immunity.

Thus, the right of reply bill is another bludgeon legislators can use to reinforce their parliamentary immunity.

By Amando Doronila
Philippine Daily Inquirer
First Posted 00:34:00 02/27/2009


Militarization by other means

MANILA, Philippines — Soldiers erecting checkpoints, entering communities, and rounding up and interrogating residents in various parts of the country have become so commonplace in Gloria Macapagal-Arroyo’s regime that we take for granted their lawfulness. Do soldiers have a right to do these things?

Not being a lawyer, I can only ask questions. The construction of the 1987 Constitution is easy enough to permit its commonsensical understanding by ordinary citizens. I turn to its words and the values around which it is woven whenever I am bothered by the actions of government. The Constitution is the self-defense and is a necessity of any democratic nation. Every citizen should keep a copy of his country’s Constitution in his pocket.

There is a division of labor between the military and the police that is recognized in every modern society and is upheld in the successive constitutions we have had in our country. The maintenance of peace and order within communities is basically the function of the police. Our Constitution states that such a police force is “national in scope and civilian in character.”

The same Constitution declares among its guiding principles and policies that “Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” I understand sovereignty to mean the power to govern oneself. To defend a nation’s sovereignty is to protect the nation against foreign invaders. To secure the integrity of the national territory is to protect it against forces that seek its dismemberment. On this basis, one may understand the active presence of soldiers in parts of Mindanao where secessionist movements operate. But how does one account for the presence of military patrols in the streets of Barangay Commonwealth in Quezon City?

I quote from a report that appeared in the Inquirer yesterday (3/3/07): “The military said the deployment of soldiers in some areas of Metro Manila was part of civil military operations in certain barangays where issues like poverty can be exploited by communist insurgents …. Army spokesperson Maj. Ernesto Torres said the deployments had been going on since November last year and were mostly in depressed barangays. Troops are sent to barangays where they stay and ‘talk to (residents), ask them how they are doing and tell them there are programs of government which they can avail (themselves) of,’ Torres said in a phone interview. Torres said this was a ‘holistic approach’ in addressing the insurgency problem. AFP spokesperson Lt. Col. Bartolome Bacarro said such deployments were ‘normal’ as it was the AFP-NCRCom mandate to ‘protect Metro Manila’.”

Protect Metro Manila against whom? Against suspected communists? Sec. 18 (1) of the Bill of Rights is clear on this: “No person shall be detained solely by reason of his political beliefs and aspirations.” Last I heard is that no one can be penalized for mere membership in a communist organization. But as important, if Metro Manila is to be protected, whose function is this? I always assumed this belonged to the police.

There is basis for this assumption. The Constitution takes for granted that the maintenance of peace and order is not the normal function of soldiers but of the police. And so it specifies those exceptional instances when the government, through the President, may call out the military. Art. VII, Sec. 18 provides: “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion.”

The last time Ms Arroyo invoked these Commander-in-Chief powers was on Feb. 23, 2006 when she issued Presidential Proclamation 1017 declaring a State of National Emergency. Recognizing that these are emergency powers, the framers of our Constitution made their exercise subject to very stringent qualifications. The most important of these is the provision that ensures the undiminished validity of the Bill of Rights even during such emergencies.

The Supreme Court held PP 1017 to be valid insofar as it was an exercise of the calling-out powers “to prevent or suppress lawless violence,” but struck it down as unconstitutional insofar as it claimed powers for the President that did not belong to her office. These are: the power to issue decrees, to direct the military to enforce obedience to all laws including those not related to lawless violence, and to impose standards on media.

The question we must now ask is: Does lawless violence exist today in our barangays, towns and cities to warrant the engagement of the military in the everyday maintenance of peace and order in our communities? If there is, what is its extent? What is the basis for this assessment? What limits are there, if any, to what the military can do in the course of “suppressing and preventing lawless violence”?

If one goes by the 1987 Constitution alone, there can be no doubt that with these recent troop deployments, the military has overstepped its mandate. My fear is that the antiterrorism law (now euphemistically titled “The Human Security Act of 2007”) is aimed precisely at preempting these questions. By routinizing an undeclared state of emergency, the government lays the ground for the militarization of our communities.

* * *

By Randy David
First Posted 06:18am (Mla time) 03/04/2007

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