Indifference’s Penalty

by Juan L. Mercado

“The worst sin is to be indifferent,” George Bernard Shaw  wrote. Does this apply to President  Benigno  Aquino’s  flip-flops on the Freedom of Information ( FOI ) bill?

PNoy cartwheeled  from pre-election  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.

Lower House Committee of  Public Information’s chair is  Rep. Ben Evardone of  Eastern Samar.  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 FOI.

“The calculated incompetence of the House committee…led to the outcome it wanted all along,” Inquirer’s editorial  “House Hypocrites” 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 FOI.   Belmonte – who joined Manila Chronicle as copy boy at age 16 — became  a  reporter.  Was  Evardone a  Malaya staffer?. (Say it  isn’t so, Jake Macasaet).

“FOI  seeks public access to data on government transactions to ensure accountability.  RoR is a “rider”. It  would  compel media to give officials  “equal space and time” to respond to criticism.

The  US  Supreme Court ‘s  decision striking  down  Florida ’s  right of reply statute “can  be said about  right of reply bills here,” constitutional  scholar Joaquin Bernas warned  three years back, (PDI/01 June 2009).

Florida  candidate Pat Tornillo cited local right-to-reply statutes when he sued the Miami Herald to compel it publish  his replies. The law  fractured the Constitution’s ban on prior restraint, Herald replied.

The privately owned  press  is bounded by only two factors, the Court ruled:  (a)  Acceptance by  a sufficient number of readers; and hence advertisers to assure financial success; and (b) second, 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Any compulsion to publish that which reason tells (editors)  should not be published is unconstitutional.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,”  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 HBill 4252  which  sports a grandiose title: “Freedom of Information and Transparency Act of 2011.” It exhumes remains of “right of reply” measures,  buried by the previous Congress”, Inquirer said (Viewpoint/ 28 June 2011).

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 “be published or broadcast not later than three days.”

These provisions  were snitched from Rep. Monico Puentevella’s House Bill 3306 and Senators Bong Revilla and Francis “Chiz” Escudero’s Senate Bill 2150. Both measures stipulated mandated right of replies 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,” 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, gutted by pro-Arroyo solons  in the 14thCongress,” 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.  Day after the 14th Congress sabotaged FOI,   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 the Aquino III administration, Deputy Speaker  Erin Tanada predicted then.  Today, “there is only a month remaining,” Tanada 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  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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