While the Freedom of Information (FoI) bill labors in the House of Representatives and by all indications has its life sucked out by President Aquino’s House allies in the 15th Congress, its counterpart right to reply was brought into existence by a mere resolution from the Commission on Elections (Comelec).
The Comelec issued Resolution 9615 recently providing “all parties and bona fide candidates shall have the right to reply to charges published or aired against them.”
The right to reply was a quid pro quo demanded by legislators for the passage of the FoI bill which through the maneuverings of Malacañang and its allies was instead inserted in the main measure. Still the Palace appears to have backtracked from its support of the pro-transparency measure leading to the FoI bill being held in suspended animation through a lack of quorum in the House which was how the past administration was successful in foiling the bill.
The Comelec resolution also contained a directive to media outlets to compel them to allot media space for aggrieved candidates for the May midterm elections.
It said “reply shall be given publicity by the newspaper, television, and/or radio station which first printed or aired the charges with the same prominence or in the same page or section, or in the same time slot as the first statement.”
This was the first time that the Comelec has required the right to reply on media. Commissioner Rene Sarmiento said it was something new in Comelec’s rules and regulations.”
Comelec claims that the imposition was meant to strike a balance “between freedom of expression and public interest”.
Comelec admitted that it has yet to settle legal questions as to whether it will suppress the press.
Comelec spokesman James Jimenez said the right to reply provision will be carried out through the Comelec informing a media outlet of a candidate’s complaint within 24 hours. The media firm will then have to send a report to the Comelec within 24 hours on the actions taken on the complaint.
Jimenez said the Comelec would be careful in imposing the rule, adding that both the candidate and the media will be allowed to give their accounts.
The imposition came with the Comelec’s ruling to reduce the airtime for campaign pitches of candidates in media outlets, which was immediately assailed by news outfits.
GMA Network Inc. said the resolution (or the Rules and Regulations Implementing Republic Act No. 9006 otherwise known as the “Fair Election Act”) (the “New Rules”) should be reviewed.
GMA Network said the Comelec did not conduct any public hearing especially among those affected by the resolution. GMA cited the Omnibus Election Code that requires due notice to all interested parties as well as an opportunity for the same to be heard on Comelec resolutions.
“Under the resolution, it appears that a candidate is only allowed an aggregate total of 120 minutes of television advertising, whether appearing on national, regional or local, free or cable television (regardless of the source of content), and 180 minutes of radio advertising, whether airing on national, regional, or local radio, regardless of the number of stations or networks used,” according to the network.
This differs from the rules observed in the 2010 national elections in which a candidate for a national elective position was allowed to use and avail himself of 120 minutes of TV airtime and 180 minutes of radio airtime on a per station basis.
Due to said change, GMA requested the Comelec to clarify whether the 120 minutes granted to a candidate for a national position and the 60 minutes for a local elective position for television already include all the available minutes which he or she can use to broadcast political ads on all TV networks and stations, including cable TV.
If the answer is in the affirmative, GMA said that broadcasting entities would certainly encounter major difficulties primarily “in monitoring the broadcasting minutes spent by numerous candidates for various elective positions” broadcast in other TV and radio networks, “and therefore compliance with the New Rules will be cruel and oppressive.” It should be noted that, under the New Rules, the officers of the Network would be held criminally liable for any violations of the candidates with respect to the allowed airtime limits.
It added that even if the candidates will be required to submit their written certification of their broadcasting minutes, the verification of the authenticity of the certifications would pose “burdensome, oppressive, and unreasonable” demands given that GMA does not have the required expertise to perform such, and would entail added and substantial costs to the network.
While it may have the available means and competence to monitor all of the political advertisements aired on its TV and radio stations nationwide, GMA pointed out that it “does not have the required capability (or even the opportunity as those networks and entities may not allow access to their facilities) to undertake an accurate monitoring and attain a reasonable degree of certainty of a candidate’s (or all the candidates’) remaining quota of broadcasting minutes.
GMA Network also argued that given the dynamic nature of the broadcast industry, any breach of the allowed TV and radio minutes, which is penalized as a criminal offense, would become a controversial issue among broadcast networks and content providers for cable TV, and “spawn network cross-accusations that violations did not occur in their own fence, but in the others’.”
It added the limited number of broadcast minutes brought about by the New Rules would “unduly pull or gravitate” candidates to a few large networks with high ratings to the detriment of the small ones. GMA further stated that this media pull may still result in an increased cost for broadcast services, rendering the “equal access to media time” rule in Sections 2 and 6 of Republic Act No. 9006 meaningless as it puts candidates with low campaign budgets at a disadvantage.
GMA thus urged that the same rule on the airtime allotment in the 2010 elections based on a per station basis be reinstated for purposes of the 2013 elections. Otherwise, GMA said that it “would find itself in a quandary or worse, be indicted for an election offense.”
In addition, GMA expressed its confusion over the provisions that required the prior approval of the Comelec “for appearances or guestings by a candidate on any bona fide newscast, news interview or news documentary even as said guesting or appearance is deemed incidental and not considered as broadcast election propaganda,” as stated in the New Rules. GMA thus puts in question why it should be required to “afford other candidates equal opportunity to promote their candidacy especially if their appearance is not really pertinent to a news documentary or report being made.”
The network further argued that this interference in the content of news reporting would not only require added manpower and logistical resources, but would likewise invite challenges on the right of free expression. In relation to this, GMA submitted that it should be given leeway to determine on its own which matters are considered newsworthy enough for broadcast considering that it has 50 years of experience and expertise in the broadcast industry.
GMA said that while it understands that the Comelec may issue rules and regulations, it maintained the company and its officers should not be faulted and held criminally liable “for any breach of the time limits provided under the New Rules.” GMA referred to it as “a marked deviation” from the list of election offenses, which mostly include deliberate acts undertaken by candidates and their representatives.
GMA Network said the Comelec should give the network leeway “to determine on its own which matters are newsworthy enough to air on its programs.”
“Given that candidates would most likely hurl various charges and accusations against each other during the election period, some of which are news-worthy enough to report on air, and considering the limited amount of airtime which news programs are allotted, GMA envisions that its news programs will be inundated by demands from various candidates clamoring for their supposed right to reply to GMA’s news reports,” the network wrote the Comelec.
Party-list Rep. Teddy Casiño, meanwhile, slammed Malacañang’s version of the Freedom of Information (FoI) bill, saying that this will prevent people’s participation in policy making.
Section 7 (d) exempts the following from the law’s coverage: ‘the information requested consists of drafts of orders, resolutions, decisions, memoranda or audit reports by any executive, administrative, regulatory, constitutional, judicial or quasi-judicial body in the exercise of their regulatory, audit and adjudicatory function.”
The Bayan Muna representative explained that Malacañang expanded the provision which originally referred to judicial and adjudicatory functions only.
“This will definitely be a hindrance to active involvement in policy making by the people. I can’t imagine an FoI law that prevents the public from getting copies of drafts of executive orders, administrative orders, memorandum circulars and similar documents. Only in the Philippines,” exclaimed Casiño, who last Monday withdrew his name as co-author of the bill.
A Catholic priest and a legal expert said the FoI bill could still be saved if Aquino really wants it passed despite the limited time remaining in the current session of Congress.
“They were completely in favor in this RH bill. Why can they not favor something which is so much more helpful?” said Fr. Ranhilio Aquino, Dean of San Beda College’s Graduate School of Law.
The priest believes that Malacañang is behind the setback hounding the passage of the FoI bill, which pushes transparency in government records and transactions.
“Malacañang’s silence on the FoI is very intriguing unlike on the Reproductive Health law,” he said.
“That’s a Malacañang agenda,” he said. “That’s what happens when your legislature is dominated by the partymates of the President in power.”
The FoI bill has yet to be tackled at the House plenary after more than a year of languishing at the committee level.