FOI, Right of Reply, Impunity and Discretion

Rw-manila-Genting-Club

Genting Club, Resort World Manila

The Freedom of Information Bill being crafted in the Legislature is a very revealing document because it illustrates how the Philippine feudal democracy works.

A feudal democracy exists when the framework of laws and governance is democratic but the rules for governing are adjusted to preserve the authority and advantages (the rent-seeking ability, for readers of economic bent) of the influential. The influential are those who are rich and those who govern us. That is, the powerful ones among us, the entitled, those favored by birth or wealth or authority, or even accomplishment. They have separated themselves into what I will simply call “the protected class”.

The protected class in the Philippines is very strong and very refined. Elegant, even, in its ways and means. Its members operate in a bubble of impunity that has been masterly crafted over the decades. The bubble holds at bay the normal forces of restraint or punishment that would, in a straight, principled democracy, call liars, crooks and the incompetent to account.

Members of the class preserve that bubble-wrap protective shield in very persistent ways.

Laws that protect the powerful

Here are some examples of legal protections that benefit the favored:

  • Bank secrecy laws that keep criminal investigators away from (illicit) money transactions.
    • RA 1405 (An Act Prohibiting Disclosure of or inquiry into, Deposits with Any Banking Institution and Providing Penalty Therefore)
    • RA 6426 (An Act Instituting a Foreign Currency Deposit System in the Philippines, and for Other Purposes)
  • A harsh libel law that gives those who initiate libel charges powerful rights including presumption of guilt from the getgo; the law provides draconian criminal, rather than civil, punishment.
  • Lack of media regulation, protecting the media barons.
  • Lack of anti-trust legislation, protecting the corporate barons.
  • Lack of anti-dynasty laws, protecting the families of favor.
  • Weak consumer protection laws, letting business owners and government officials profit from bad or even dangerous practices.

There are others, I am sure. These are just a few top-of-mind examples.

We also see evidence of the desire, or demand, for special authority arising in the way the branches of government operate:

  • Executive wants discretionary authority to do as it will, and thus DAP is born and FOI is rejected in favor of “open government”. Open government is the way Executive says “we will be open with the information we choose to provide, but not with all the information that you insist on taking”.
  • The Senate and House carry on relentless investigative hearings “in aid of legislation”, but many of these hearings become platforms for political posturing by the legislators. A compliant tabloid press gives boost to legislators who bring drama to the hearings. The Senate seems to conduct more hearings than the Supreme Court.
  • The Judiciary responds to every complaint as an affront to its independence. Well, impunity is independence, after all, is it not? It is mildly amusing that China does what she wants in the West Philippine Sea because she is “independent” in her sovereign rights, and any complaint is offensive; the courts use the same defense to operate with impunity.

“That’s just the way things work in the political fields, Joe. The Executive does need discretionary authority to run things, the Legislature does need information on which to base laws, and the Supreme Court does need to be sealed off from political influence.” 

Yes, good point. Indeed, I’ve argued that DAP is a good program, allowing quick transition from the poor investments of the Arroyo administration to the good investments of the Aquino administration. Discretionary power is very important for Executive. The Supreme Court’s strike-down of key DAP provisions has slowed the economy by slowing investment.

For sure, I appreciate what the Makati Parking Garage hearings are doing. But I think the clarion call for independence by the Judiciary is little more than protective bubble wrap for inefficient and corrupt courts.

The point, I suppose, is how to discern when behaviors are constructive and when they are coddling the privileged. There is a natural desire within the ranks of the privileged to acquire power, and with power, to acquire advantage, and with advantage, to begin to cheat the system.

We need to sort out what is good discretion and what is bad.

FOI: a battle within the protected class

If we turn to FOI legislation, we see demands from some legislators that a creature called “Right of Reply” be included in the law. “Right of Reply” says that anyone named in a news story who believes the story is punitive can demand equal space in that paper, or equal time on the air, to state his opposing view.  The media publisher or producer must provide the same amount of space or time for reply. This essentially takes what is a traditional obligation of editorial opinion writers – to allow response in kind – and moves it to the news pages.

The news pages become battlegrounds for argument rather than information.

“Right of Reply” is like dumping a cancer-causing chemical into the rivers that provide our drinking water and saying it is good. “Right of Reply” subverts freedom of the press, standing over media publishers and producers like the harsh libel law stands over all of us who write for public consumption, an intimidating force that shapes what we say.

“Right of Reply” adds another layer of impunity to the protective bubble that preserves the power of the influential.

The current working draft of FOI legislation excludes “Right of Reply”. But it is rather interesting that exclusion did not occur because of complaints by citizens or rights groups, but because the media barons objected. The media have tremendous power to work against legislators who press for “Right of Reply”. So it would appear that this battle within the community of the protected class has been won by the more powerful of the privileged. The press. Not because ideals of “freedom” have any sway. No. Because protecting the favored has sway.

The tabloid press: the root of the problem

Fundamentally, those backing “Right of Reply” want to institutionalize the “Binay method” of shaping perceptions by manipulating the news. Indeed, if we study this, we can identify a new culprit in the layers of protection that exist, an irresponsible, sensationalist press. The “Right of Reply” clash is between two forces of impunity – the right of media barons to be loose and irresponsible in their tabloid sensationalism, and the right of others in the protected class to . . . well . . . be protected.

The ethical ideal is that journalism represents a neutral, objective way that important information gets accumulated, digested and distributed to citizens. It is one of the stronger checks and balances of a healthy democracy.

The problem in the Philippines is that the media are largely not journalistic. They are tabloid writers, pandering to conflict to raise their circulation. And members of the protected class know how to use the Philippine press to good advantage. The Binay family is a perfect example, having ready access to media reporters to put their story on an equal footing to facts. And hurling accusations at a lot of earnest, hard-working people.

Those on the receiving end of sensationalist slanders want the right to reply in kind.

If news were objective, the problem would diminish quickly.

Senator Angara has it right when he commented:

“If we aspire for openness in the government, let us also aspire for fairness in media reporting.” [Rappler]

How to do that is an open question. I personally favor regulation of media because the unregulated model is simply not working well. But that is too big an issue to debate here.

Laws protective of the powerful as a litmus test of character

Our job as citizens is to help find the correct balance between the government’s discretionary powers – needed for good work – and the forces of impunity that allow people of influence to stay in power on some basis other than good work.

I think proposed measures like “Right of Reply” stand as a litmus test of bad and good legislators, those for impunity and those for competence .

  • When a proposed anti-trust bill hits the floor of the senate (under the name of “Fair Competition Act” sponsored by Bam Aquino), we will see who stands against it and who stands for it.
  • We should examine the congressional transcripts on FOI’s final draft to see who pushed for what provisions, and consider the final product to determine if it breaks down, or preserves, walls of impunity.
  • When candidates cite their platforms for 2016, we should look carefully for a passionate commitment to competence and accountability over privilege.
  • And we should push to tear down the established walls that protect the favored and harm Philippine development.

 

Comments
22 Responses to “FOI, Right of Reply, Impunity and Discretion”
  1. andrewlim8 says:

    I was watching an interview of the man in charge of the preps for the pope’s visit. In a discussion of crowd management techniques, he was asked if the use of chalk or rope lines was enough to contain the crowd, just like in South Korea. Here they will be using concrete barriers topped with steel fences.

    I nearly fell from my chair, thinking of the chaos during the Nazarene feast. And that’s only a statue. This one’s the real deal, a leader descended from the long line started by Peter. Last year, the devotees did not even let Cardinal Tagle finish the mass!

    Anyway, Filipinos’ capacity to manage themselves (which is reflected in the laws we pass and the leaders we elect) is frequently in doubt.

    Even if you electrify the fences, it will not deter the crowd from rushing the pontiff. So the fervor is there. Why on earth do we rank so low in corruption rankings, then?

    • vernon says:

      Hi Andrew,

      Accurate observation. Yet, Filipinos abroad (Malaysia, Singapore, here in Canada, the Middle East, HK) are among the most well-behaved. It’s ridiculous sometimes to think that if the typical Filipino can be civil and well-behaved in other places, why do they act the opposite right there in their own country?

      vernon

      • sonny says:

        Easy answer, Vernon: the benefit of compliance is clear, swift and sure compared to the Philippines. Same goes for punishment and non-compliance. 🙂

        • vernon says:

          I knew that what you said would be said beforehand by somebody; but is there really any benefit for non-compliance? Breaking laws for example. I just find it sickening.

          Someone wrote in this blog site before (?) that such behavior is culturally rooted. I notice also that some mainland Chinese and Latinos behave like this. It’s worth a study, I guess.

          Thank you for your comment, Sonny.

          vernon

      • josephivo says:

        Some possible contributors (?):

        1. In the Philippines it is a “We versus They” culture. “They” are the colonizers or their Filipino successors. From cheating the colonizer as virtue, cheating became a virtue.

        Abroad Filipinos do not feel this, they feel better accepted as “whole”, as belonging too, as part of a “We” culture. We follow the rules.

        2. In the Philippines we constantly have to assess what others think of us, interrelationships are intense, they define ourselves. So if one breaks the rule, we all can / have to.

        Abroad we are more “anonymous”, we have to act individually and lack the courage to break laws.

  2. Ven Cheock says:

    Hi Joe, The Philippines Democracy is kind of a joke. Check the government leaders legal salary, which are ridiculously low for each office, barely enough to survive, how then can they serve the public?

    > http://www.financemanila.advfn.com/2009/08/how-much-do-philippine-government-officials-make-in-salary > > Philippines Government Official Salary is unrealistic, hardly surviving, how can they (officials) serve the people, no wonder the intelligent officials are into corruption as the standard practice. Sayang na Sayang ang talent nila. > > > > > > lina says: (comment) > January 21, 2011 at 2:52 am > Why do you think candidates run for office in the Philippines? Power begets money. And money begets respectability and prestige. A presidential candidate will spend millions running for office and gets a fraction in return for salary? He’ll start scheming how to get his money back the minute he’s elected, and more. Do the math – nobody runs for office on the “goodness of their heart”. Politicians run for office to enrich themselves, by hook or by crook. It’s a flawed system – and nobody’s doing anything about it. It’s a self-perpetuating cycle of thievery!! > A bunch of thieves outmaneuvering themselves so they can steal more money! It’s a license to steal

    …………………………………………………… Venancio Cheock Retired, UCLA Senior Analyst Medical Center Computer System Los Angeles, CA

    • Bert says:

      Commenter lina hit it right on the head. How can one argue against the truth, for lina’s commentary was really an actual reflection of the prevailing practice by Philippine politicians. But the comment was written January 21 of the year 2011, still relevant at that time, until President Nonoy started implementing his reforms of ridding the government of misfits starting from the top and going after the big fish as well as the small fish, then lina saying “…and nobody’s doing anything about it” is not true anymore.

    • Joe America says:

      Welcome to the blog, Ven. Yes, salaries for key government officials are way below what their responsibilities are, even if they are in line with the very low wage scale in the Philippines. For those kinds of responsibilities, the comparative ought to be what other nations pay their executives as a better basis for comparison than what rice workers in the Philippines get paid.

      Regarding chage, I agree with Bert. Real progress is being made, but it is being made against deeply entrenched values and ways. It is rather like American racism. First came recognition, then many decades of struggle against established values and ways.

  3. parengtony says:

    I would give this blog the title: Sigaw ng Bayan – Tunay na Reporma.

  4. manuel buencamino says:

    1. RA 1405 was enacted in 1955. Its intention was good – to ensure privacy rights – but it has been misused and abused. Maybe what needs to be done is to give list specific exemptions to the blanket cover, tweak the privacy settings.

    “Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country.”

    2. RA 6426 was enacted in 1974. It extended the protection of RA 1405 to FCDs. Its intention was to invite foreign exchange, mainly dollars, into the country. It was an attempt to turn the Philippines into a little Switzerland. Again maybe a little tweaking of the privacy settings is needed.

    3.On FOI and ROR, Sen Angara got it right “If we aspire for openness in the government, let us also aspire for fairness in media reporting.”

    Right of reply (ROR) is a direct response to FOI. There are good arguments coming from both sides.

    ROR makes sense. You made a good case for it “The problem in the Philippines is that the media are largely not journalistic. They are tabloid writers, pandering to conflict to raise their circulation. And members of the protected class know how to use the Philippine press to good advantage.” If I may add, the ruling class controls the biggest media outlets.

    On the other hand, there is the right to know. The balance is out there somewhere.

    Democracy is about striking a balance between opposing forces. We want to provide privacy but not a place to hide loot. We want a free press but not a licentious press. The balancing act is a continuous process, it is what makes democracies dynamic as opposed to static which is the case in totalitarian systems.

    It has been said that America is great because it has the ability to reinvent itself, to take itself back from the brink, to rebalance itself. That’s what all democracies try to do.

    We are in the process of rebalancing – we are pulling back on banking privacy – the Ombudsman now has the power to look into bank accounts without the need of a court order. Hopefully, there will be other tweaks to follow, ones that will ensure the privacy of law-abiding depositors while taking away the cover of criminals.

    There are also proposed legislations aimed at amending the draconian libel law at the same time there is the ROR. There is a need to put Sen Angara’s wise words to practical use.

    I think the wiretapping law should also be reviewed like loosen up the privacy settings under certain specific conditions.

    Democracy is like a high wire act. Exhilirating because it always so precarious. It is only for the daring and the brave.

    • Bert says:

      Very, very good, MB. Always been in agreement with your views, well, at least mostly, :), but this one with a salute, and a tip of the hat. Excellent take.

    • Joe America says:

      Yes, indeed. I agree with Bert. Thank you for the historical notes, the points of view, and the suggested steps forward. And particularly for the uplift at the end.

      The suggestion on the wiretapping law is noted.

      We’ve discussed Right of Reply and media regulation in the past and I know have not yet found agreement on that (you agree to Right of Reply and disagree on regulation, and I am the opposite). If the press remains substantially tabloid in approach, I would agree that some way to balance the sensationalism with information is needed. If the press could, on their own, work to provide a journalistic basis to stories – that is, getting all sides to a story before printing it – then the need for Right of Reply would diminish. I would still prefer regulation and/or the mandating of ethical standards for news content over the “editorializing” of the news pages through Right of Reply.

      Perhaps we should add media ownership to the list of laws to be considered, to prevent undue power to be concentrated among too few outlets. The diversity of expression itself moderates the need to monitor or try to manage news content, assuming a reasonable blend of choices as to “bias”.

      This whole area can use debate.

      • manuel buencamino says:

        Joe,

        On media ownership. To start with, I think if you own a newspaper you shouldn’t be allowed to own a TV or a radio station or network because, as you said, that gives too much voice to one entity. I say one megaphone for one entity. I recall that once upon a time in the US there was a law prohibiting newspapers from owning TV stations and vice versa. For example the Washington Post owned a local TV station but it was in another state. It was against federal law for it to own one in DC. Maybe the law has changed, I don’t know.

        Secondly, we could look at the situation where owners of media have other businesses. I think there’s a problem when broadcast and print media are, for example, owned by people/corporaions who also own public utilities, financial institutions etc. Right there is a potential conflict of interest. There must be a way to deal with this. It’s difficult but we have to find a way around it.

        In the US, there was a time, I don’t know if it is still the case, when GE owned NBC. GE is a big defense contractor so you know, even if NBC and GE claim editorial independence and all that, that there is, at the very least, a potential conflict of interest. You simply cannot have a conglomerate like let’s say San Miguel, Ayala, SM, Pangilinan’s Metro Pacific etc. also owning media outlets.

        In sum, we have to look at the ownership angle of media outlets – who is allowed to own and how much or how many.

        On RoR. I think our views diverged because we were sitting across each other. We both believe in press freedom but I saw the need for some form of restraint because of exactly how you described our press to be. RoR would not even be up for debate if our press was responsible rather than licentious and corrupt. But I think Sen Angara’s observation resolves our differences if we adopt it as a guiding principle.

        • Joe America says:

          Very good. I agree on both points, ownership and more professionalism in reporting. Public media play a unique role as the guardians of information that make a democracy tick well, or badly. They ought not be government owned or controlled, as in China, because then the public has no watchdog. But they also ought not be owned by “rebels”, patrons of negativity that always undermine constructive examination and debate. I hope the good senator pursues his thought with legislative work.

  5. Steve says:

    The problems with the Philippine media go well beyond the tabloid mentality. Corruption is absolutely rampant in Philippine media, as much as it is in politics. How does a city the size of Manila support at least half a dozen broadsheet newspapers? The answer is simple: they aren’ making their money from circulation and ads. They make it by selling news. In the provinces it’s worse. It’s called AC/DC journalism, for Attack/Collect, Defend/Collect. It’s so common that it’s become the accepted norm. Many (not all, but many) killings of journalists arise not from the silencing of a crusader but from disputes over who paid for what and what was actually delivered.

    A friend of mine was once offered a position as editor of a provincial newspaper. She was told that there was no salary, but if she cut the right deals she could earn very well. She declined… but I’m sure someone else accepted.

  6. josephivo says:

    Wealth collection by rent-seeking (or the ability to preserve authority and seek advantages) is the core of this society, not wealth creation. Everything that threatens to make the playing field more level threatens the heart of the Philippines. Rent-seeking covers a full spectrum from plain corrupt stealing, over making profits with advance knowledge…, up to fully legal activities.

    The dynasties are the experts in collecting wealth by utilizing their positions, not their innovative skill or superior customer service. But every Filipino knows that it is all about knowing, having access to the right people. Getting money from someone else is not shameful at all, it is an art, it trumps honesty, decency, religious or political values… .

    Changing this culture will be gargantuan. It is not only at the top that attitudes have to change but also at the bottom. And change is only due to political decisions. Where to find politicians that believe in a better way of getting rich than just by maximizing rent? How to convince the masses that there are better ways to get money than by coercing a relative or selling a vote?

    1. Economically we have to appreciate production of goods and services more than people maintaining the status quo as bankers, retailers, lawyers, bishops, many journalists, school owners…. We have to find ways to keep the bright and dynamic in the country, stop sending them in exile. Infrastructure and the fight against red tape as first steps?

    2. For the “masses” education is the only hope. Replace many dinosaur school heads by driven “Young Turks”, believers in a strong new secular(?) society. K12 has been as a first step?

    3. Communicating to the masses. Away from a tabloid only press, to a responsible press. Subsidize free, independent school and campus papers to engage writers, opinion makers at a young age. Engage celebrities in promoting assertiveness, independent opinions, “we can do it” mentalities. Pray that Pope Francis will be listened to. The parallel communication lines of social media as a first step?

    4. Good politicians will be the alpha and omega. Is a new EDSA revolution with better follow-up utopian? Maybe we have to settle for little steps in the right direction. Be as active as possible in the upcoming elections. President Aquino as a first step?

    • Joe America says:

      You nail it, and the doing of number 1 is particularly challenging. In number 2, lousy pay and the need for so many teachers assures mediocrity; I think a leap has to be made to internet based learning tools to multiply the skills of a small set of exceptional teachers. I think there are shifts in 3 and 4, for the better. See today’s blog.

      I was reading an article in the Inquirer today and it stated they tried to get the counter-view, but the person they wanted to talk to could not be reached in short order. Putting BOTH views in one article is a huge step away from tabloid reporting that puts opponents at each other’s throats on successive days. I think the publisher of the Inquirer is a decent fellow. I don’t know about the President.

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