Hon. Rodolfo W. Antonino
Representative, Nueva Ecija 4th District
House of Representatives
Subject: Appeal to dissociate Right of Reply from the Freedom of Information bill
Dear Rep. Antonino:
We are members of the Right to Know. Right Now! Coalition, a campaign network of organizations from various sectors that have long been advocating for the passage of a Freedom of Information Act.
We write to you in relation to your position to integrate the Right of Reply into the proposed Freedom of Information law, as embodied in your HB 4252.
With humility, and all due respect to your position, we appeal to you to dissociate the Right of Reply from the Freedom of Information bill, and allow these two measures to be tackled independently by the Committee on Public Information, and ultimately, by the House plenary.
We note the submission to the Committee by the Legislative Counseling Service, Reference and Research Bureau, which opines that a right of reply provision is a proper subject of a separate bill, in conformity with the "one bill, one subject" rule as provided in Article VI, Section 26 (1) of the Constitution. As explained in the opinion, the FOI bill relates to the government duty/mandate to provide access to government records. In contrast, the right of reply is a limitation to freedom of speech or of the press, and would be more properly addressed in a separate bill.
But more than this, we believe that insisting on the integration of a right of reply provision in the FOI bill will have the effect of killing the chances of the FOI bill passing in the 15th Congress.
We say this based on the known still widely-divided positions on Right of Reply.
On one hand, we acknowledge your strong belief that there is a need to give public officials the opportunity to correct errors or to reply to damaging but unfair reportage using information accessed from government, and that this should be made an enforceable right under an FOI law.
On the other hand, we join our colleagues in the media community in their opposition to the right of reply. As stated by the Freedom Fund for Filipino Journalists in a recent statement, legislating a right of reply "would not only undermine the editorial prerogative to decide what to publish, which is at the heart of editorial independence; it would also make unlimited newspaper pages and broadcast airtime available to those who only have to claim to have been denied their right of reply, thus limiting the amount of media space and time available for relevant reports on public issues."
This position finds support in the 1974 US case of Miami Herald v Tornillo, where the US Supreme Court reversed a Florida Supreme Court decision upholding the validity of a Florida right of reply statute. The court stated in part:
[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates. . . . [p258]
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. [n24] The choice of material to go into a new paper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.
With the positions on the right of reply still very far apart, it will obviously require a long legislative process for differences to be threshed out. In contrast, the FOI bill without a right of reply provision has already gone through a very long legislative history, and undergone painstaking balancing of interests. Attaching to the FOI a right of reply provision at this point "poisons" the otherwise already broad consensus on the FOI bill.
We trust that this not your intent. We recall that in the 14th Congress you were part of the House contingent to the bicameral conference that approved a bicam report on FOI without a right of reply provision.
We do not disregard concerns over the possible abuse of FOI expressed by a number of legislators. We respectfully submit, however, that a right of reply should not be seen as the only balancing measure. We support the approach by the Senate of introducing reasonable safeguards against possible abuse as embodied in a provision adopted in the Senate Committee Report, as follows:
No abuse in the exercise of rights and in the performance of duties under this Act. - Public officials and employees, in the performance of their duties under this Act, as well as citizens in the exercise of their rights under this Act, shall act with justice, give everyone his or her due, and observe honesty and good faith.
Public officials and employees as well as citizens shall endeavor to handle information kept or obtained under this Act with due care, to the end that inaccuracies and distortions are avoided.
Any public official or employee, or citizen who, in the performance of duties or exercise of rights under this Act, willfully or negligently causes loss, damage or injury to another, in a manner that is contrary to law, morals, good customs or public policy, shall compensate the latter for the damage incurred. This is without prejudice to other remedies available to the aggrieved party under any other law for the same acts.
We humbly request for the adoption of a similar approach in the House, even as we stand ready to engage the committee process if the Right of Reply bills of Rep. Karlo Alexei Nograles and Rep. Pedro Romualdo are heard independently.
We hope for your favorable response to our appeal.
Very truly yours,
The Right to Know. Right Now! Coalition
Rep. Walden Bello
House of Representatives
Bishop Broderick Pabillo
Chairman, Catholic Bishops’ Conference of the Philippines - National Secretariat for Social Action-Justice and Peace (CBCP-NASSA)
Atty. Nepomuceno Malaluan
Co-Director, Institute for Freedom of Information and
Co-Convenor, Right to Know. Right Now! Coalition
Ms. Malou Mangahas
Executive Director, Philippine Center for Investigative Journalism
Mr. Peter Angelo Perfecto
Executive Director, Makati Business Club
Mr. Vincent Lazatin
Executive Director, Transparency and Accountability Network
Ms. Annie Geron
General Secretary, Public Services Labor Independent Confederation (PSLINK)
Mr. Joshua Mata
Secretary General, Alliance of Progressive Labor (APL)
Ms. Yuen Abana
Campaign Coordinator, Partido ng Manggagawa
Mr. Ramon R. Tuazon,
Dr. Florangel Rosario-Braid, President Emeritus & Senior Adviser
Ms. Madeline B. Quiamco, Dean
Asian Institute of Journalism and Communication
Mr. Red Batario
Executive Director, Center for Community Journalism and Development
Dr. Antonio La Viña
Dean , Ateneo School of Government
Prof. Leonor M. Briones
Lead Covenor, Social Watch Philippines
Atty Eriene Jhone Aguila
Kaya Natin! Movement for Good Governance and Ethical Leadership
Ms. Clarissa V. Militante
Coordinator, Focus on the Global South, Philippines Programme
Mr. Jun Aguilar
Mr. Elso Cabangon
Filipino Migrant Workers Group
Mr. Sixto Donato C. Macasaet
Executive Director, Caucus of Development NGO Networks (CODE-NGO)
Ms. Ana Maria R. Nemenzo
National Coordinator, WomanHealth Philippines
Mr. Max M. De Mesa
Chairperson, Philippine Alliance of Human Rights Advocates (PAHRA)
Ms. Maxine Tanya Hamada
Executive Director, The International Center for Innovation, Transformation and Excellence in Governance (INCITEGov)
Mr. Norman Cabrera
Secretary General, Ang Kapatiran Party
Fr. Albert E. Alejo, SJ
Team Leader, Ehem! Anticorruption Movement
Ms. Ellene Sana
Executive Director, Center for Migrant Advocacy
Ms. Jessica Reyes-Cantos
Lead Convenor, Rice Watch and Action Network
Mr. Carlo Brolagda
Chairperson, College of Social Sciences and Philosophy Student Council, UP Diliman
Mr. Viko Fumar
Chairperson, BUKLOD CSSP, UP Diliman
Mr. Jong Pacanot
Freedom from Debt Coalition - Southern Mindanao
Mr. Mike Lopez
Movement of Students for Progressive Leadership in UP (MOVE UP)
Atty. Elpidio V. Peria
Executive Director, Biodiversity, Innovation, Trade and Society (BITS) Policy Center
Sr. Pilar Versoza, Founder
Mr. Eric B. Manalang, President
Prolife Philippines Foundation
Mr. Edgardo J.T. Tirona
Former President, Council of the Laity of the Philippines and Society of St. Vincent de Paul.
Mr. Edilberto M. Cuenca
Lay Coordinator, Commission on Family & Life, Vicariate of Sts. Peter and Paul, Makati City
Mr. Bart Guingona
Atty. Corazon Fabros,
Ms. Abeline Salacata, Secretariat
Stop the War Coalition
Ms. Joy Aceron
Program Director, Government Watch/ PODER, Ateneo School of Government
Mr. Jojo Ibanez Jr.
Alliance of Progressive Labor - Davao
Ms. Mary Ann Manahan
Co-convenor, Save Agrarian Reform Alliance
Ms. Starjoan D. Villanueva
Executive Director, Alternate Forum for Research in Mindanao (AFRIM)
Mr. Alain Pascua
President, KAAKBAY Partylist
Mr. Juanito C. Enriquez, Jr.
Managing Director, Civil Society Organization Forum for Peace, Inc.
Mr. Salvador H. Feranil
Managing Director for Mindanao, Philippine Network of Rural Development Institutes
Raul Socrates C. Banzuela
National Coordinator, Pambansang Kilusan ng mga Samahang Magsasaka (PAKISAMA)
Dr. Sylvia Estrada-Claudio
Director, University of the Philippines Center for Women’s Studies.
Dr. Joseph Anthony Lim
Professor, Economics Department, Ateneo De Manila University
Mr. Filomeno S. Sta. Ana III
Coordinator, Action for Economic Reforms
Ms. Jenina Joy Chavez
Director, Southeast Asia Monitor for Action