Bill of Rights

We the People

The constitutional law professor and former Obama White House “regulatory czar” Cass Sunstein makes an important point in a recent article about the relationship between our constitutional rights and social mores. In it he writes

(w)e often think that our rights are established by the Constitution and by the Supreme Court, interpreting that document. True, the Constitution is fundamental, but some of our most important rights, as we understand and live them, are a product of changing social values, which affect private institutions, public officials and sometimes even constitutional law.

He cites the recent decision of the US Defence Department to allow women to fight on the battlefield and the Boy Scouts’ reconsidering of its long-time national ban on gay members as examples of how shifts in cultural attitudes towards some issues relax restrictions and grant rights to some members of society who were previously excluded.

It was back in 1981 on a vote of 6-3 that the US Supreme Court decided to uphold the government’s right to refuse to sign up women for the draft. Similarly, as early as 2000, the high court in a split 5-4 decision sided with the Boy Scouts whose moral views prevented them from admitting gays into their organisation. These two cases involving sexual discrimination on the one hand and freedom of association on the other were some of the most significant decisions in the court’s history. And yet they have recently been overturned not by judicial review but by the organisations themselves. As Sunstein pointed out

(i)n 1981 many people would have been astonished to hear that in a little more than three decades, and without the slightest pressure from the Supreme Court, the Defense Department would allow women to serve in combat. Yet on Jan. 24 of this year, the Pentagon announced, with the full support of the Joint Chiefs of Staff, that the military is lifting its longstanding prohibition on women in combat.

As recently as 2000, many people would have found it unimaginable that in a little more than a decade, the Boy Scouts would seriously consider eliminating its ban against the admission of openly gay members.

…Powerful though they are, the Defense Department and the Boy Scouts of America have no authority to overrule the Supreme Court. But it is an enduring feature of our constitutional system that as they learn over time, public and private institutions are free to endorse understandings of rights that go beyond anything announced by the highest court in the land.

In the Philippines, the recent passage of the RH bill serves to illustrate the very same point that Sunstein makes. The RH bill had been languishing in congress for over a decade. Its passage late last year was credited to the administration’s willingness to stand up to religious clerics. But the administration had actually dragged its feet before endorsing the bill to congress, just as it is doing with the freedom of information bill.

It was due to the pressure from reproductive rights advocates and recent polling that indicated a large majority of Catholics supported it which gave Malacañang the courage to finally stick its neck out in favour of the bill. It was society that led, and the leaders that followed. With regard to the case of Carlos Celdran, an RH bill advocate, who was recently found guilty by a municipal court for upsetting the “religious feelings” of the clergy, the law on which the decision was based seems absurd to most viewers today. It is a vestige of the Spanish inquisition which took place many centuries ago and remains codified in the statutes of its former colony.

With respect to the cyber crime law that threatened to curtail the rights of many online bloggers to freely express themselves, until the Supreme Court issued an injunction, the divide that separates legislators who crafted the bill and the president who signed it on the one hand, and the younger generation for whom tweeting and liking on social media are as natural as breathing on the other, is really quite evident.

Back to the US, and the recently concluded election over there where Rep Paul Ryan in his initial remarks after being named the GOP vice presidential nominee electrified the party’s base by saying that, “our rights come from nature and God, not from government”. He was echoing the pronouncement made by Thomas Jefferson in America’s declaration of independence, in which he wrote that such freedoms were “self-evident”. But it wasn’t god or nature that gave them those rights, according to Sunstein. It was “we the people”.

On fair play and the right of reply

“The media is the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent. That’s power.” – Malcolm X

I’ll go against popular sentiment and support Rep. Rodolfo Antonino’s proposal to include the right of reply in the Freedom of Information Bill, not only because it challenges media on a right it considers sacrosanct –  the exercise of sole and absolute control over what and who will get how much printed space, airtime, or bandwidth – but, more importantly, because it guarantees fair play. 

The argument of media against the right of reply is framed as a struggle between freedom of speech and oppression. 

    “Right of Reply is repugnant to any true democracy’s notion of independent media. A press that can be dictated upon to dedicate time and space to anybody who cries foul is as good as censored. It is not just that the finiteness of time and space makes equal time and equal space an impossibility in print, on air, or even online. More to the point, any attempt to legislate responsibility and fairness in news and commentary can only end up hijacking journalists of their editorial prerogatives. It will force editors to surrender to law the use of their own human judgment, and yes, their own scruples, their own vulnerable sense of ethics, to decide what is fit to print or air. Telling media what it must print will have the same result as telling it what it must not: It will have the effect of prior restraint, and of denigrating our Bill of Rights. Right of Reply, everywhere it has been experimented with and failed, is not manifest in fair reporting but in dictated tyranny, on a daily basis,” said a recent editorial in this website. (Interaksyon.com)

As an opinion columnist, the framing of the argument works fine for me. Freedom of speech gives me the editorial prerogative of writing on any issue. I can attack anybody and I am not obligated to surrender any of my column space to a response because to be legally obliged to give up some of my finite space would, in effect, be telling me what I can or cannot write. 

I have the Bill of Rights to back me up. I can build or destroy as I wish. I have that power and I’m only at the bottom of the media pyramid. Above me are the editors and publishers and above them, at the top of the pyramid, are the owners. They control the flow of information and opinion, they have the last word on what to disseminate or suppress. 

Media prefers to call the arbitrary power to decide what information and opinion to disseminate or suppress editorial prerogative but I call it censorship. Censorship or editorial prerogative gives owners of the largest news organizations immense power. They can set the terms and scope of the national debate because the rest of media, from second-tier outlets to hao-siao operations all the way down to blogs and tweets, feeds on their headlines and editorials. 

Does the marketplace of ideas function more efficiently under a self-regulating media oligopoly than a system of laws and regulations that mandates fairness? Is it healthy for democracy to have a one-sided conversation?

Gagging speech is a crude form of censorship. The more sophisticated way is to allow everyone to speak but only a selected few to be heard. That’s what media does when it exercises editorial prerogative and denies a victim the opportunity to air his side. It mocks the Bill of Rights and it undermines the principle of fair play.

Fair play is as vital to democracy as free speech. Fairness is what Rep. Antonino’s right of reply amendment is all about. It addresses the question why should a victim of shoddy reporting or a demolition job be denied the right to rebut the information or allegation that could damage his reputation and good name? Why should a victim have to look for another forum to air his side? Why can’t he have the right to defend himself in the same forum where he was maligned?

I am not arguing for the right of reply as a cover for what closet authoritarians call responsible journalism.  We all know that the meaning of responsible journalism is subjective – if you agree with the story then it’s fair and balanced and if you disagree then it’s biased and unfair – so I won’t cite numerous reports and editorials that I find irresponsible. Besides, I don’t believe a law mandating responsible journalism will work because responsibility cannot be legislated. But fairness can be. 

I support the right of reply because every victim should be given the right to air his side in the same forum where he was singled out. Rep. Antonino’s right of reply amendment gives media’s victims the wherewithal to defend their reputation and good name. 

    “Opportunity to Reply – Any person natural or juridical who came to be involved directly or indirectly in the issue publicly obtained (meaning obtained under FOI) must be given the opportunity to account for, explain, manifest or throw light upon the issue concerned in the following manner” – give equal space or time for a reply in the same printed space, on-air segment or online post where the information appeared, not later than three days after its printing, airing, or posting. 

The right of reply amendment is not an attempt to “hijack the editorial prerogatives” of journalists nor does it attack their  “vulnerable sense of ethics”. It is not a prior restraint ruse or a denigration of the Bill of Rights. It is victim-oriented legislation, it mandates fairness, it levels the playing field for the victim, it is not legislated oppression. 

How can giving a victim the right of reply be tantamount to the suppression of freedom of speech? How can the “finiteness of time and space” be cited as legitimate grounds to deny a victim the opportunity to defend his reputation and good name? 

Media cannot tell a person who feels maligned, “We would love to have you respond but we don’t have the time and space to carry your rebuttal. Pasensiya na lang, poh.” 

Time and space limitations are not valid grounds for evading accountability. If media wants to call Rep. Antonino’s amendment legislated fairness then so be it. Because if media will not play fair then it must be made to play fair. And that’s only fair. 

My only criticism of Rep. Antonino’s amendment is it grants the right of reply only to those affected by the FOI Bill. There are many victims of shoddy reporting and demolition jobs who have nothing to do with government and they will continue to have no recourse. But we can leave consideration of a stand-alone right of reply bill for a later time. 

For now, suffice it to say that Rep. Antonino’s amendment is about fair play. It is not against the freedom of speech because granting victims the right of reply fosters rather than stifles freedom of speech. It levels the playing field, it allows victims to be heard as loudly as those who own the means to be heard far and wide.

Let’s have freedom of information and the right of reply. Both or nothing. Democracy cannot thrive with one and not the other.

Common credo of candidates with the Aquino-Roxas ticket

Common Credo or Statement and Pledge of Unifying Principles adopted by all candidates affiliated with the Noynoy Aquino-Mar Roxas ticket on November 28, 2009

A government, based on core values of transparency, personal and institutional integrity, honesty, and good governance, is a goal we must all share. To achieve this goal, we must unite based on shared principles.

We therefore present this Credo to the Filipino People so that our basis for unity is clear and unequivocal. These are our guiding principles in approaching the perils and problems of our society as elected officials, and we hold ourselves accountable to each other and the public to uphold these principles in the campaign and in office.

We believe that our democracy is best maintained, as it was restored, by the ways of democracy.

We believe that true change can be achieved only through peaceful means.

We believe that the first step towards prosperity and progress for all is for all sectors and classes to discuss our differences reasonably and with goodwill.

We believe that grievances that cause rebellion will not be solved by purely military solutions; and furthermore only a more equitable distribution of power and opportunity will enable peace to reign in our hearts and homes.

We therefore believe we must strive for a genuine national reconciliation founded on justice, even at the cost of our individual political self-interest.

We strongly believe that Social Justice is our common birthright: the working person must be given his just and rightful share of the fruits of his labor, and that to the owners and managers must be restored a regime of laws that are fair and not discriminatory.

We believe true national unity is possible if we commit ourselves to the rights and freedoms enshrined in our Bill of Rights.

We believe that if we Filipinos are secure in our rights and freedoms, we will all be motivated to live up to our duties and obligations as citizens.

We believe that a President, in order to be able to inspire and to lead, must possess the fundamental requirement of a genuine mandate from the people.

We believe that the presidency is an institution that only works, if both the president and those affiliated with the administration recognize they only hold that office temporarily.

This means, too, that we must lead by example; insisting on integrity not only for ourselves but all our appointees; upholding meritocracy in the bureaucracy; and believing in, and insisting on, the supremacy of the civilian over the military always.

We shall not hide from debate, suppress the mechanisms for the redress of grievances, or thwart the participation of the public in the formulation of policy.

We believe cynicism corrupts and corrodes our ability to dream and work for a better nation for ourselves and for our children.

We believe we must maintain at all times an unshakeable faith in the Filipino.

For these reasons, we commit to this Credo. We have each taken different roads to reach this point; but henceforth, we will be together because we are confident that we will be in lock step with the Filipino People.

Signatories:

Benigno Aquino III

Manuel Roxas II

Franklin Drilon
Nereus Acosta
Risa Hontiveros-Baraquel
Sonia Roco
Ruffy Biazon
Danilo Lim
Ralph Recto
Alex Lacson
Teofisto Guingona III
Sergio Osmena III

[Archived from the official campaign blog of President Benigno S. “Noynoy” Aquino III]