Tuesday, February 12, 2008

Who Owns the Right to Know -- the Public, the Press, or Congress?

THE RIGHT OF THE PUBLIC TO KNOW the Truth, the whole Truth, and nothing but the Truth about their government is indispensable to making a representative democracy work. Unfortunately the Public's Right to Know is not self-executing, and amounts to a right to try and find out.

Devoted to that end, Journalism, Mass Media and Telecomms have evolved as the organized suppliers of the Public's Right to Know, through a vigorous and undeniably lucrative exercise of the Constitutionally protected Freedom of the Press. The commercial exploitation of the right to information is premised upon the more general rights to freedom of speech and expression, which thereby come under the marvelous protection of free enterprise Capitalism itself.

Thus Press Freedom is really the freedom of the marketplace for ideas. Which is a great big market place in which "The Truth" is only one of the myriad products for sale in a 24/7 catalogue of news, views, and entertainment. Press Freedom, as such, belongs to an even larger cosmos of free markets that span artistic and literary freedom, as well as academic freedom and the rights of education.

Recently it has been claimed in several controversial contexts that the exercise of Press Freedom has the highest possible priority over all others because that exercise serves the Right of the Public to Know, and ought not to be impeded, even by the Police. The Press does have more power to find out the Truth than ordinary citizens, because of the material, technological and human resource advantages of capitalist organization and funding organized free speech.

But we need a better appreciation and respect for the definite hierarchy of rights, duties and powers that are apportioned to individuals, corporations and institutions, all of whom claiming the rights of Freedom of Expression and the Public's Right to Know.

The Supreme Court states in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen.
CONGRESS HAS A RIGHT TO KNOW AND THE POWERS TO FIND OUT Clearly, CONGRESS has a greater Right to Know than private citizens or the Press with processes and powers to enforce that right, because it also happens to be the DUTY of the Congress to KNOW all pertinent information about matters of public interest otherwise they cannot wisely make and remake the laws.
[1987 ART. VI Section 21] The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
In the final analysis it is Congress that has not only the RIGHT TO KNOW but also the DUTY TO KNOW "the Truth" about the Government as a whole, to inform the people what it finds out, in order to fix the laws in response. WOODROW WILSON explains:
Quite as important as legislation is vigilant oversight of administration. It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. The informing function of Congress should be preferred even to its legislative function.
The main legislative function of Congress is to pass the annual national government budget.
The primary DUTY of Congress is to make and remake that particular law appropriating the national government budget, now over a trillion pesos, a task which would endear them to the Masses, if only they did it with more regularity and less graft.

This DUTY to make and remake the budget requires "continuous watchfulness" by the Congress and its committees over the executive department, which spends that budget. Without knowing how the administration is implementing the laws, Congress cannot do its DUTY to remake the laws. The House and Senate Budget hearings are essentially exercises of the Congressional power of oversight.

In short, neither Private Citizens nor even the Press have a sworn duty or obligation to know the truth about any given facet of reality or society. Therefore, the Constitution does not give them the POWERS OF INQUIRY that it clearly accords to the Congress as the elected representatives of the people.

The general powers of oversight given to Congress are vast. If they were wielded by honest and forthright government officials, it is unimaginable how Evil can reign! The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. The constitutional authority for Congress to conduct oversight stems from such explicit and implicit provisions as:

1. The power of the purse.
2. The power to organize the executive branch.
3. The power to confirm officers of the Republic.
5. The power of investigation and inquiry.
6. Impeachment and removal.

Thus private persons have less power given to them by the Constitution to find stuff out about the government. Even if we each share equally in the Public's Right to Know, our power to find out is strictly limited by the fact that as private citizens we have no actual duty or even ability to do so. And of course, most citizens do not have the interest to know. The Right to Know is also the Right Not to Know if one does not want to. Or even, to know what is false, fanciful, artistic, fantastic or plain inane.

INDIVIDUALS have the broadest elemental rights of Freedom of Expression. Artistic, literary, academic, and journalistic endeavours are explicitly protected by the Constitution. Of course, freedom of speech is so broad it also protects bad art, terrible books, horrible research, even gossip columns masquerading as fearless views. The reason for this is that Freedom of Speech is the law of equal liberty among citizens to express themselves, to speak and be spoken to, to hear and to be heard. But at the level of the individual citizen expressing himself, the only duty one is obliged to discharge is not to interfere with the equal rights of others to free expression. There is no legal obligation to "tell the truth" or anything like that when it comes to personal free expression. I can stand on a street corner on top of a soap box and say to passersby that the universe was created by the Great Spaghetti Monster. In other words, when individuals exercise this most basic right of free expression, there is no DUTY or OBLIGATION to speak the truth. I may speak my own opinion about things, and as long as I do not impose this on others, THEY are obliged to defend my right to say it, as I am obliged to defend theirs. My Liberty is your Libery! In artistic freedom, the same thing happens. I am allowed to draw a cubical patch of grass and entitle it "The True and Real Shape of Planet Earth" and be assured that my freedom to do so is protected by the Constitution itself!

JOURNALISTS AND MASS MEDIA also have broad rights of Free Speech that come under the specific label of Press Freedom. Newspapers, radio and television also enjoy explicit Constitutional protection to exercise free speech rights. Moreover, they can buy and sell, manufacture and distribute news, views, gossip and commercial messages of virtually any quality, veracity, utility or profundity that they wish. Like individuals who exercise free speech rights, commercial mass media are not obliged by legal DUTY to deal exclusively in lofty matters such as "the truth, the whole truth and nothing but the truth." Even the legendary objectivity or impartiality of the Press when it comes to straight news stories is a matter of their own free will and choice, often because that is the only way to survive in the commercial marketplace of competing media outfits. But TELLING THE TRUTH is not essentially the duty of the Press. Suppose for example that a newspaper consistently LIES by printing the wrong month, day and year on its pages. They can't be prosecuted for such dishonesty, misleading and harmful though it might be to the gullible. Neither can they be stopped from printing gossip columns, salacious and titillating news stories, or pernicious punditry, for that would be censorious abridgement of free speech! Instead, the mass media are part of the vast commercial marketplace for intellectual properties and commodities such as news, views, gossip, shipping schedules, classified ads, movie reviews and sports stories. The rights of Press Freedom, in the ultimate analysis, are really the rights of commerce and free enterprise. Free Speech is an essential and integral part of CAPITALISM itself, because advertising, marketing, promotions and the very price of goods themselves are the lifeblood of information that flows in the economy. Without a free flow of that information, we would not even have "free enterprise capitalism." Thus, the Main Stream Media serve the Public's Right to Know by maintaining a free-enterprise commercial marketplace for gathering, producing, buying and selling information and knowledge of all kinds. Together with Academe, the Press enjoys the freedom of a free market. PRESS FREEDOM is essentially the right to the commercial exploitation of information and data. It is as safe as Free Enterprise Capitalism itself.

Although Mass Media supremacists have lately been claiming the highest priority for Press Freedom and its practitioner-beneficiaries, Father Joaquin Bernas has already enunciated the principle that Mass Media does not possess more rights under Freedom of Expression than ordinary citizens do. In fact, I have opined that they possess less rights by the amount represented by limitations in the Franchise and Libel laws.


manuelbuencamino said...

So let's throw out the writ of amparo and the writ of habeas data and give the pulis and security forces a free pass, right?

mbw said...

I own my right to know.

DJB Rizalist said...

Yes you do, but it you're right to know (just like mine) is inferior to that of the Congress, which has not only the Right to Know but the duty. You don't. Neither does the press. Which only has commercial rights to information.

DJB Rizalist said...

in granting a writ of amparo over Jun Lozada the court said the right to life has priority over all other rights in "the hierarchy of freedom".

Now where have you heard or read that before?

manuelbuencamino said...

Not from Rizal or Ninoy or any other martyr who gave up his life for freedom

DJB Rizalist said...

in giving up their lives, martyrs surrender their most precious right. that is why they are called heroes. amparo is a mexican bonbon of judicial corruption that has enriched unelected judges for a century or more. It's more powerful than habeas corpus, yet the court claims it obeyed the constitution and did not "increase, decrease or modify" substantive rights.

They are the ones you should goose step to and say "Sig Heil"! to.

mbw said...

Doesn't alienate from the fact that I own my right to know.

DJB Rizalist said...

Yes you own your "right to know". That is the right given to you by freedom of expression. it is a private right to know anything whatsoever you want to "know".

But the PUBLIC's Right to Know is a right to know THE TRUTH.

You don't have that PUBLIC right, nor do you have the DUTY to know that truth. You certainly do not have the POWER to extract that truth.

So when we speak of the PUBLIC'S RIGHT TO KNOW that is a right that actually belongs to Congress!

MBW said...

Then they can have that one but I'll keep mine! (Let them come and get it if they want -- they won't get to first base where I sit.)