Wednesday, February 25, 2009

The Right to Be Heard and the Duty to Reply

UNDERTOW publishes the text comments of Atty. Alan Paguia on Pimentel's   Right of Reply bill:
"If you criticize an individual on print, radio or television, the proposed law gives him the "right of reply." If the owner, editor or station manager fails or refuses to give equal space for reply when requested, that person incurs criminal liability, and a fine and/or an imprisonment of not more than 30 days." "What is wrong with this bill? As far as public officials are concerned, they are given the 'right,' instead of the 'duty to reply.' Thus, the bill weakens, instead of strengthens, public accountability." 
Saludo to Atty. Alan Paguia, who once more displays the  logical rigor and legal wit that has gotten him into so much trouble with the Judicial Putschists like Hilario Davide and Artemio Panganiban.   But earned him the just admiration of worthier hearts and minds for his intellectual honesty and supernal dedication to the letter and spirit of the Law.

There's worse things about this bill however...
Recall that in connection with the anomalous regime change in 2001,  Ateneo Law Prof. Alan Paguia was suspended by SCoRP  in part for invoking his Right To Be Heard by them and their Duty to Reply to him as a citizen under RA 6713 Code of Conduct and Ethical Standards for Public Officials of the Civil Service 
In the performance of their duties, all public officials and employees are under obligation to: (a) Act promptly on letters and requests. - All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request...
Alan is absolutely right. Pimentel's bill weakens public accountability by making it a mere "right" and not a duty under the Civil Service laws for public officials to reply to formal requests for action, including criticisms of past inaction, naturally!

The Senate website has the body of the proposed legislation:
SECTION 1. Right of Reply. – All persons natural and juridical who are accused directly or indirectly of committing, having committed or of intending to commit any crime or offense defined by law or are criticized by innuendo, suggestion or rumor for any lapse in behavior in public or private life shall have the right of reply to the charges published in newspapers, magazines, newsletters or publications circulated commercially or for free, or criticisms aired or broadcast over radio, television, websites, or through any electronic device.
This is actually the superfluous restatement of something that is obviously true under the Bill of Rights of the 1987 Constitution. For as it is defined above, the so-called "Right of Reply"
appears to be a natural, logical derivative or consequence of the Freedom of Speech and Expression.  Of course, all persons have a right to reply to anything said about them or about anybody else, or any thing else,  for that matter!  The right to reply to anybody about anything in any medium is not restricted to criminal accusations or criticisms of lapses in behavior!  The Right of Reply, as described in Section 1 above is entirely subsumed under the Constitutional Right to the Freedom of Speech and Expression.  This is self-evident and uncontroversial. 
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
So far, so good, for the good Senator Pimentel's Right of Reply. But let us examine the rest of the proposed legislation, because there are credible accusations that the bill, if passed into law, would ABRIDGE the freedom of speech, which would violate 1987 Section 4. 
SECTION 2. Where reply published. – The reply of the person so accused or criticized shall be published in the same space of the newspapers, magazine, newsletter or publication or aired over the same program on radio, television, website, or through any electronic device.

SECTION 3. When published. -- [It] shall [be] published or broadcast not later than one day after the reply shall have been delivered to the editorial office of the publication concerned or to the station that carried the broadcast being replied to.

SECTION 4. Length of Reply. – The reply shall not be longer than the accusation or criticism as published or broadcast.

SECTION 5. Free of Charge. – The publication or broadcasting [of] the reply shall [be] free of charge, payment or fees.

SECTION 6. Editing Reply. – The reply shall be published or broadcast except for libelous allegations.

SECTION 7. Penalties. – The editor-in-chief and the publisher or station manager and owner of the broadcast medium who fails or refuses to publish or broadcast the reply as mandated in the preceding section shall be fined in an amount not exceeding P10,000 for the first offense; P20,000 for the second offense; and P30,000 and imprisonment for not more than 0 days for the third offense.

SECTION 8. The publicaiton of the reply does not preclude recourse to other rights or remedies available to the party or parties concerned.

SECTION 9. The Act shall take effect fifteen (15) days following its publication in three (3) newspapers of general circulation.

In the bill's explanatory note, Sen. Pimentel quotes George Orwell:
"In a society in which there is no law, and in theory no compulsion, the only arbiter or behavior is public opinion. But public opinion, because of the tremendous urge to conformity in gregarious animals, is less tolerant than any other system of law. -- George Orwell
and says, further, 
Justice Malcolm once wrote that public opinion should be the constant  source of liberty and democracy rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary. The value placed on public opinion is enshrined in our Constitution which guarantees freedom of expression, freedom of speech and freedom of the press. However, the interest of society demands not merely the right to express one's thoughts but the right to an educated and enlightened public opinion. Essential to the protection of the freedom of expression is the promotion of a full discussion of public affairs. The freedom of speech and expression enshrined in the Constitution necessarily embraces a correlative right of reply, which is the right to reply to every form of  expression proteeted under the ConTBtution, especially to accusations or criticisms published or aired through the mass media. This Act enables all persons to equitably exercise their right of reply in the field of broadcast and print media and protects its exercise by providing penalties for violation of such right.


Manuel said...

DJB, doesn't this new bill reeks of the "fairness doctrine" that may or may not (depending on who you ask) be coming back into vogue in the U.S.?

As much as I despise rags like the PDI and their ilk, making it a criminal offense to refuse to give someone equal space to refute innuendo, etc., is equally despicable.

Would love to get into more detail on this but I've got to earn a living.

Manuel said...

Sorry, should have spell-checked before I posted the comment. "Reeks" should have just been "reek."

DJB Rizalist said...

Fairness ought not be a "doctrine". It is, after all, a VIRTUE.

Manuel said...

That is true, but I also don't like the idea of the government essentially dictating (via the threat of criminal prosecution) what media outlets should be publishing/broadcasting.

Personally, this fixation on whether replying should be a "right" or a "duty" doesn't address the real free speech issue - whether government can use coercive power to dictate what should be published or broadcast.

ricelander said...

Picture this: headline Monday is critical of, say, Mike Arroyo. Mike Arroyo replies; reply should be headline, yes, even as an intensity 8 earthquake hit Manila? Then let us say editorial Monday is harsh on Glo. Malacanang's reply will be where you usually find the editorial. Saan na ilalagay yung editorial for the day.

Ganun ba yun?

ricelander said...

Let's say sampung tao 'yung nasaktan sa isang isyu, e front page news at opinion page pa lahat tapos sabay-sabay nag-reply. Hehehe, paano na kaya magiging itsura nung diaryo.

john marzan said...

dean, weren't you once supportive of this bill because PDI was against it?

DJB Rizalist said...

John Marzan,
Who said I was against it? Besides it's just a Bill. There are many things I hate about it. But I am not so sure some part of this idea cannot survive.

As bloggers we certainly have no problem complying, indeed encouraging the exercise of the right to reply. Our comment threads are always open, anyway.

Maybe it should be applicable to all the big commercial media, such as paper polluting newspapers and airwave invading broadcast media.

But maybe they can comply simply by providing an email address to their ombudsman too.


You are so naughty sometimes, John!

Gabby said...

you say its against freedom of expression... how?

also, you ang atty paguia assumes that it would lessen public official's accountability... the code you quote is about letters sent to the official, NOT the media outlet...

Political Jaywalker said...

Our neighborhood bearer of news errr tsismis pala is alarmed and concerned if she is covered by this bill. She says that if this passes does that mean she has to get the side of our two-timing neighbors and their lovers....