January 8, 2006

Juan L. Mercado

Constitution as soapbox

A radical threat to freedom of expression, smuggled into Constitution draft revisions, has seen University of the Philippines law professor Raul Pangalangan hitting the alarm buttons.

We’ve all been engrossed with the brawl over the no-elections proposal by the Constitutional Consultative Commission. Chairman Jose Abueva and 18 others voted No-El as a no-brainer. But they were smothered by 22 votes for a proposal that won’t fly. In this brawl, many of us overlooked this charter sleight-of-hand.

It swirls around one seemingly-harmless word: “ responsible” In his January 6 Inquirer column, Pangalangan says, “responsible” would be wedged into the freedom-of-speech provision in the Bill of Rights.

“No law shall be passed abridging the exercise of freedom of speech or of the press,” That’s how our Founding Fathers phrased this bedrock for liberty in our 1935 Constitution.

This is anchored to the US Constitution’s First Amendment. Over the years, it prohibited curbs on freedom of worship, speech and the press, as well as peaceful assembly seeking redress of grievances.

In all our subsequent charters, that shield was grafted en toto. In practice, the dictator Ferdinand Marcos shredded that right. But he maintained the provision in his sham constitution as a legal fig leaf.

This law has stood the test of time. “If it ain’t broke, don’t fix it,” the old sages tell us. “But what’s wrong with calling for responsible speech or press?” Commissioner Sergio Apostol huffed on an ANC TV interview. The clause was just “hortatory,” in Apostol’s own words. It was a beneficent appeal to media practitioners: behave themselves.

Really? Apostol confuses his role of constitutional drafter with that of street-corner preacher. And since when did the constitution become a soap box?

“Experience should teach us to most on our guard to protect our liberties when the government’s purposes are most beneficent,” US Supreme Court Justice Louis Brandeis once wrote.

Adding the word “responsible” may seem like an innocent admonition, Pangalagan writes. Verbal superfluity is tolerable in a grade-school parents- teachers meeting or political rally. But when tacked on to a Constitution, let alone the Bill of Rights, verbosity can wreck havoc. “Settled rules of constitutional exegesis” affirm that every word, every clause must be given effect.

“There are absolutes in the Bill of Rights,” Justice Hugo Black pointed out. “They were put there on purpose by men who knew what words meant and meant their prohibitions were absolute.”

Words take a life of their own when they’re embedded into a Constitution and left for the courts to interpret. Unintended results can spin off, Pangalanan warns. “The real danger is what meanings history will beckon”.

Recent history shows the devastating mischief that erupted when the Marcos dictatorship imposed its criteria for “responsible” journalism” beyond the spartan prohibitions set by the constitution.

“An entire generation has grown up not knowing…the atmosphere of fear, of conditioned obedience, which weighed heavily on people” under martial law, Inquirer’s Manuel Quezon writes.

Thus, few recall that three days after Marcos clamped on martial law, arrested journalists and padlocked media, the regime issued Department of Public Information Order No. 1.

Signed by then Information Minister Francisco Tatad, it set objectives for “responsible” media: “to print and broadcast accurate, objective, straight news reports of positive national value, consistent with the efforts of government, to meet the dangers and threats that occasioned proclamation of martial law and the efforts to achieve a ‘new society’.”

It’s eight explicit “thou shalt nots” banned material that “undermined faith in government” to “materials that foment opinions contrary to law.” Among the unwritten bans: “thou shalt not criticize the President, First Lady, family and relatives, e.g. Benjamin “Kokoy” Romualdez.

In the name of “responsible journalism”, Marcos men assumed, unto themselves, the power to anoint journalists. “Lorenzo J. Cruz, assistant secretary of information, said that the Times-Journal staff had been investigated, found to be respectable journalists’, (and therefore) could be counted on, notes Cornell University’s book: Marcos and Martial Law in the Philippines.

Such practices may warm the cockles of people who share Commissioner Apostol’s propensities to clamp on “responsibility” by constitutional fiat. But it does violence to liberty of the press.

Governments may not force a newspaper to print copy which, in it’s journalistic discretion, it chooses to leave on the newsroom floor,” Justice Byron White once wrote. That is the same principle that underpins the local press objection to bills that compel, by law, the right of reply.

“The Consultative Commission’s website contains reader-friendly summaries of proposed reforms,” Pangalangan notes. It’d be useful to know whose fingerprints are on this obnoxious amendment.

“Apparently, the commissioners do not consider this (one-word-torpedo) as a “highlights” of their work, he noted. “If they considered it unimportant, then they do not understand how constitutions work and how words can very well alter the balance of powers in our political democracy.”

A number of good men did much good work in reviewing the charter. That work has been imperiled first by the No-El provision, now by this proposed sell out of free expression. This will trigger an inevitable firestorm. Apostol and friends haven’t seen anything yet.

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... IN & OUT - Highlights

... IN & OUT (2) - Inside stuff

... SERIOUS BUSINESS - Benefiting from the Sisterhood Agreement

... IN-DEPTH - Constitution as soapbox

... ANALYSIS - How do you measure faith?

... ANALYSIS (2) - The clergy and politics ... KA IKING 4U - Pump-priming local development