Indifference’s penaltyBy Juan L. Mercado
Philippine Daily Inquirer
“The worst sin is to be indifferent,” George Bernard Shaw wrote. Does this apply to President Aquino’s flip-flops on the Freedom of Information (FOI) bill?
P-Noy cartwheeled from preelection crusader for FOI to stoic indifference in his State of the Nation Addresses. He oscillated to grudging support for FOI a year later, only to relapse into stolid indifference.
The chair of the House committee on public information is Eastern Samar Rep. Ben Evardone. He parried Akbayan Rep. Walden Bello’s demand for a vote. Then Nueva Ecija Rep. Rodolfo Antonino snarled deliberations further by insisting that a right of reply (RoR) provision be stitched into the FOI bill.
“The calculated incompetence of the House committee … led to the outcome it wanted all along,” the Inquirer editorial “House hypocrites” (11/15/12) pointed out. “The House leadership, and the administration it closely works with, do not want the FOI cause to advance.”
Speaker Feliciano Belmonte Jr. denied he connived with Executive Secretary Paquito Ochoa Jr. to derail the FOI bill. Belmonte joined the Manila Chronicle as a copyboy at age 16 and eventually became a reporter. Was Evardone a Malaya staffer? (Say it isn’t so, Jake Macasaet.)
The FOI bill seeks public access to data on government transactions to ensure accountability. RoR is a “rider” that will compel the media to give officials “equal space and time” to respond to criticism.
The US Supreme Court’s decision striking down Florida’s RoR statute “can be said about right of reply bills here,” constitutional scholar Joaquin Bernas warned three years ago (Inquirer, 6/1/09).
Florida candidate Pat Tornillo cited local RoR statutes when he sued the Miami Herald to compel it to publish his replies. The law fractured the Constitution’s ban on prior restraint, the Herald replied.
The privately owned press is bound by only two factors, the Court ruled: (a) acceptance by a sufficient number of readers and hence advertisers to assure financial success; and (b) integrity of editors and publishers. RoR fails “to clear the First Amendment barriers because of its intrusion into the function of editors.”
Any compulsion to publish that which reason tells editors should not be published is unconstitutional. “A responsible press is an undoubtedly desirable goal,” the Court said. Press responsibility is not mandated by the Constitution. “Like many other virtues, it cannot be legislated.”
“Decisions on content, format and treatment of public issues and public officials—whether fair or unfair—constitute exercise of editorial control and judgment,” Justice Byron White wrote. “Government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom’s floor.”
Nonetheless, Antonino filed last year House Bill 4252, which sports a grandiose title: “Freedom of Information and Transparency Act of 2011.” It exhumes the remains of “right of reply measures buried by the previous Congress,” Viewpoint said (Inquirer, 6/28/11).
HB 4252’s booby trap is stashed in Section 10: “Opportunity to Reply.” Aggrieved parties can demand that their replies to criticism be published “in the same space” of newspapers or the same program in broadcast. Replies must be “published or broadcast not later than three days.”
These provisions were taken from Rep. Monico Puentevella’s HB 3306 and Senators Bong Revilla and Chiz Escudero’s Senate Bill 2150. Both measures mandated RoR with stiff penalties.
“Only dictatorships barge into newsrooms to usurp editorial functions,” a Cebu Citizens Press Council memo stressed. “A legislated right to reply operates as a command. This is prior restraint… Media cannot be told what to publish, nor can it be ordered what not to publish.”
The Puno Supreme Court hewed closely to this constitutional tradition. It spiked Department of Justice and National Telecommunications Commission warnings against airing the “Hello, Garci” tapes of Gloria Macapagal-Arroyo. This threat to gag constituted prior restraint. “It challenged the most exalted of all civil rights, the freedom of expression,” Chief Justice Reynato Puno wrote as ponente.
“Many of us are puzzled” by the President’s failure to spare even a line in his State of the Nation Address about retrieving the FOI measure, which was gutted by pro-Arroyo solons in the 14th Congress, Inquirer columnist Cielito Habito wrote. “This [is] an uncharacteristic omission by the President.” By instinct, track record and policy, P-Noy supports transparency.
“No one beyond P-Noy’s innermost circle seems to know the real reason for the omission,” Habito fretted. “One can only hope it’s not an ominous sign that enemies of transparency are gaining some headway in the new leadership.”
“Experience teaches only the teachable,” Aldous Huxley wrote. A day after the 14th Congress sabotaged the FOI bill, President Aquino pledged to fast-track the measure in the 15th Congress. That’d make FOI the “very first legacy” of the 15th Congress under his administration, Deputy Speaker Erin Tañada predicted then. Today, “there is only a month remaining,” Tañada said. “There may still be time for the committee to redeem itself and report out the bill to plenary.”
But the real problem is: Will President Aquino shuck off indifference within a rapidly closing window of opportunity? Otherwise, his record of achievements, up to now, would clone that of his disgraced predecessors.
The ancient texts remind even Presidents: “Because you are lukewarm, and neither hot nor cold, I will vomit you out of my mouth.”
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