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Opinion | National

MEL STA. MARIA | The Comelec's ridiculous and unconstitutional requirements
The online news portal of TV5

"Freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by a despotic government." - Thomas Jefferson

The National Union of Journalists of the Philippines (NUJP) last week released a statement criticizing Comelec Resolution Number 9615 requiring, among others, broadcast stations to first seek the "approval" of the Comelec before interviewing political candidates. NUJP said this prior-approval requirement is "ridiculous". It argued that "to be able to comply with this ridiculous edict, broadcast networks and their news staff will need to be fortunetellers who should be able to predict where and when a candidate will be at any future moment." likewise reported that the same resolution provides a "right of reply" to candidates in relation to "charges published or aired against" them. posted Commissioner Brilliantes tweets stating that the "right of reply" is constitutional.

I agree with NUJP. And more than its ridiculousness, the prior-approval requirement is constitutionally infirm. As to the "right of reply" regulation, Comelec Chairman Sixto Brillantes, Jr., I believe, is wrong. The mandatory obligation of the press and media to publish or broadcast a candidate's right- of-reply statement is not expressly provided in the constitution. Neither is it constitutionality within the powers of the Comelec to grant. Fundamentally, any mandatory publication or broadcasting of a "right of reply" statement imposed on the press and media is repulsive to the Constitution.

First, lets look at the "prior-approval" requirement. Section 9 of Resolution Number 9615 pertinently provides that appearance or guesting of a candidate in a newscast, news interview or news documentary shall not be prohibited broadcast propaganda. To ensure that this requirement is not used to circumvent prohibited propaganda, the resolution provides

"To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy."

"Prior approval" is clearly a form of prior restraint. This requirement grants the Comelec the power of censorship over what newspaper and TV news organizations believe to be worthy of news no matter how much slant such news would unintentionally have in favor of a candidate.

There are certain inevitables that go with the news. While they do not generally editorialize, TV news organizations have no control over what the viewers may conclude on the presentation of the news. In fact, the interpretation of the viewers are essential in a democracy where public opinion should always be generated. The Comelec's prior-approval requirement intrudes into the very basic fabric of freedom of expression. It inevitably will deal with the examination of the the content, message and even, unwittingly, the ideas intended to be generated by the news.

In effect, it is a regulation designed to compel newspapers and TV and radio stations to substitute Comelec judgments from their own. Nothing can be more institutionally intrusive on freedom of expression and of the press. It is censorship. Its implementation will not improve our electoral system. It will destroy it.

As George Bernard Shaw said, "all censorships exist to prevent anyone from challenging current conceptions and existing institutions. All progress is initiated by challenging current conceptions, and executed by supplanting existing institutions. Consequently, the first condition of progress is the removal of censorship."

There were reports that Comelec chairman Brilliantes attempted to clarify that "prior-approval" does not mean "prior-consent" but merely "prior notice". Well, the Comelec must be very careful in drafting resolutions that will affect the whole nation, the campaign and freedom of the press. Most members are lawyers and they should know better. Manifestly, even a high-school student will not mistake "approval" or "consent" from mere "notice".

The word "approval" is so plain and straightforward that no interpretation is needed. If they meant "prior notice" then why didn't they just say "prior notice"? There is no need to provide words for which another meaning is attributed. Otherwise, doing so is plain ineptitude.

And if we are to believe the Comelec in its amusing explanation, then it means that Comelec just wasted its time drafting a useless provision. Be that as it may, notification in itself is a tempting antecedence for prohibition. It provides an occasion to examine content of news and messages which may lead to prior restraint.

With respect to the right-of-reply, Section 14 of Comelec Regulation Number 9615 pertinently provides that "all parties and bona fide candidates shall have the right to reply to charges published or aired against them. The 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."

Though there is no question that all candidates must have such "right-of-reply", let them do it on their own and by their own means. The Comelec cannot force any newspaper or any TV and radio station to publish or broadcast the replies of particular candidates in relation to "charges published or aired against" them. Freedom of expression and of the press, as guaranteed by our Constitution, never contemplated granting government the power to command media what to publish/broadcast and what not to publish/broadcast.

Comelec Chairman Brillantes has been reported on to have justified the Comelec's right-of-reply requirement as allowed by the Constitution. He must be reminded that the powers expressly granted by the Constitution are always limited by the Bill of Rights. As my favorite jurist, Justice William Douglas, said: "The Constitution is not neutral. It was designed to take the government off the backs of people." That is the most straightforward and honest reason given why the Bill of Rights is enshrined in the Constitution. It explicitly provides constitutional boundaries which cannot be unduly and intrusively crossed by the government.

Section 4 of the Bill of Rights of the Constitution provides that "no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble, and petition the government for redress of grievance."

In the exercise of this guaranteed freedom, the press and the media have the fundamental right to choose what ought to be news and what should be published or broadcasted. They must be allowed to determine for themselves whether they will continue or stop the dissemination of what they reasonably believe as worthy or unworthy materials.

And considering that candidates may also be vitriolic and dishonest in their replies, the reply of a candidate will necessarily trigger the need to reply by the other candidate. Replies and counter-replies may go on and on - for, with, and among hundreds of candidates. Newspapers and tv/radio organizations will find themselves just platforms for politicians publishing or broadcasting their statements, thereby sacrificing space and time for the publication or broadcasting of truly worthy news which the citizenry ought to know.

The case of Miami Herald Publishing Company vs. Tornillo decided by the United States Supreme Court summed up the danger of "right-of-reply" regulations. It ruled that

"faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate."

Indeed, government possessing power to dictate to the press and media what are good news, acceptable journalism, or fair reporting and to further command them when, how and what to post, broadcast or print is a greater danger that must be prevented outweighing the perceived unfairness of not allowing a right-of- reply to candidates. Forced-publication or broadcasting is another insidious form of censorship. It violates the freedom of expression and of the press.