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Remarks given at the 6th National Congress of the National Union of Journalists of the Philippines (NUJP), Catholic Bishops’ Conference of the Philippines Retreat House, Tagaytay City (2008). By Romel Regalado Bagares, Executive Director, Center for International Law (CenterLaw)

If News is A Verb, What Has Money (or Economics) Got To Do With It?

[O]ur rights are only as good as the kind of state we have. And the kind of state we have in some way
is a function of how good we are at exercising our rights as a collectivity. In a way, therefore,
journalism is also state-building.

News is a verb is the title of a long, splendid, exhilarating – and sometimes acerbic – essay the American journalist Pete Hamill wrote to account for the promises and perils he thought his beloved profession faced at the closing of the 20th century. At the end of the essay, right on page 100, he counseled journalists “to do only what they can do” if they want to see “better cities, better citizens, and a smarter, more humane country.”

“At the very least,” he said, “we will have avoided adding anything more to the appalling history of human lousiness.”

Speaking as a sometime newspaperman, I think he was right on the money when he talked of news as a verb. To speak of news as a verb is to speak of a certain dynamism demanded by a changing landscape, but also of a becoming based on a hopeful, if humane vision of the future.

Elsewhere, if I remember it correctly, in a speech at the Columbia School of Journalism where he received an award for excellence in the craft, Hamill spoke of journalism as the pleasure of getting it down right the first time. That’s how he summarized for himself the core of the craft he had chosen as a profession. Now, those of you have felt that inexplicable joy after having put down into writing a perfect lead at the first instance, or getting out into the public the story of a lifetime, you know what he is talking about. Getting the story, getting it right, and getting it out right is what every journalist worth her salt aspires for in the daily news grind.

Well, in the same occasion, Hamill in fact said there is a truism he wanted drilled into the head of every aspiring journalist, and he was here, lifting from his decades of working as a craftsman of the printed page; it is this: that newspapers will always break your heart.

I think he meant to say that journalism will always break your heart, so you had better get used to it. I guess I’m one of those who, against Hamill’s wishes, just couldn’t get used to it. As a friend of mine once wrote in her blog as she reflected on her first few years as a journalist, I’m one of those “who crossed to the other side.”

Indeed journalists have always been visionaries; they tend to ask so little in exchange for the insufferable they willingly embrace in their pursuit of the profession; they are always the last to look at the poverty of their situation, opting instead to examine the poverty of others because that is what their profession demanded. Most of the time, they don’t have any choice; it’s the only job they knew that ticked.

There is still a certain romanticism to it, of course, and I say this not with disparagement but with the awe of someone who has known the sacrifices former colleagues have made or are forced to make in the name of what they consider to be a most hallowed profession.

I remember breaking the news to my father, a policeman – he’s now retired –that I just got my first real job, a newspaper reporter’s job, in fact – and I thought he would be impressed; but all he said to me was, you know police work is so much like the work of a journalist; well, actually, to be more accurate about it, what he said was policemen and journalists come from the same mold; after all, they’re both extortionists!

I don’t know if my father was speaking from experience. Presumably, he was, because if you must know, before he entered the police force, he and a brother of his published a small newsweekly in our hometown, General Santos City. They had to close it down when Martial Law came crashing down on everyone.

Ah, the sad lot of journalists: if you’re not a miserable pauper, you’re accused of being an extortionist. That or we take to heart the two reasons the critic Karl Kraus said was the journalists’ only reasons for being: they write because they have nothing to say, or they have something to say because they write.

The critical sociologist C. Wright Mills once said something to the effect that we must pity the society that not only loses what is valuable to it but worse, does not even know what it has just lost.

In the language of Philippine constitutional law, the right to free speech (along with its specific expression, right to a free press), occupies the higher rung in the ladder of rights; in fact free speech – like the right to hold your own religious beliefs – is a right preferred over the others. If it is a right preferred over the others, we wonder why journalists have to face so many indignities today in the exercise of such a public right.

This leads me to the heart of the topic I was tasked to talk about today: journalists and economic rights. My academic interest being international law, I’ll attempt to discuss how economic rights as seen on the international plane become operative in the domestic plane and its relevance to the lot of journalists.

We often speak of, read about, even write or do a story on, human rights. What we often mean by it refers to that set of civil and political rights accorded to every citizen of the realm. In the political realities of the day, journalists are the first to know what these rights are all about; in the daily news grind, they give a human face to the all-too abstract notion of civil and political entitlements denied – the activists abducted and given up for dead; the suspects salvaged; the protesters barred from protesting, and then arrested; the newspaper offices shut down in the name of a national emergency.

But are economic rights – or economic welfare claims, as distinct from civil and political rights, human rights?

That question has spawned in the literature of human rights so much philosophical debate with flesh-and-blood consequences, and in a second, I will tell you what, in my humble opinion, is the why of it. Much of it has something to do with the values that societies give priority to, and with the political realities of an international society divided along ideological lines.

This year, the Universal Declaration of Human Rights (UDHR) turns sixty years old. It is considered the founding document of international human rights law, or the International Bill of Human Rights. But when the United Nations General Assembly adopted it on December 10, 1948, it did so with the understanding that it was merely a resolution and not a binding treaty. In other words, it was simply a wish list of all the good things that the UN General Assembly wanted to see happen eventually, and hopefully, in the near future.

Its legal significance would only be seen many years later – as an authoritative guide to the existence of certain norms that the civilized nations consider as binding across the board. As the first comprehensive code of human rights proclaimed by an international organized considered representative of the world, the UN, it has come to be seen as an authoritative interpretation of what are the human rights and fundamental freedoms the UN Charter itself has ordained.

Key provisions of the Declaration relevant to our present concern are the following:

a) the right to social security (Art. 22);
b) the right to work and protection against unemployment (Art. 23.1);
c) the right to equal pay for equal work (Art. 23.2)
d) the right to form and join trade unions (Art. 23.4); and
e) the right to rest and leisure (Art. 24).

Now let me be clear here that these are not a special set of economic rights that only apply to journalists. These are economic rights that apply to all workers. But should we require a special set of economic rights for journalists? I do not think so. But we can look at these rights as requiring specific articulations in particular work contexts.

It would take nearly two decades more for the UN to come out with two treaties in 1966 embodying these rights – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESC), of which the latter is our primary concern.

These two treaties embody what have been referred to as the first two generations of human rights; the third generation meanwhile, refer to the right to development, right to peace, and the right to environment, whose status remain very controversial.

It is worth noting that in the ICESC, aside from those enumerated in the Declaration, the following rights were included:

a) the right to health (Art. 12.1);
b) the right to strike (Art. 8.1 [d]);
c) the right to be free from hunger (Art. 11.2);
d) the right to enjoy the benefits of scientific progress (Art. 15.1[b]); and
e) the freedom for scientific research and creativity.

One important difference between these two covenants is seen in the principal obligations of States that are parties to them.

Under the ICCPR, the obligations immediately take effect; in other words, the obligations are equally and immediately enforceable by all parties; in the ICESC, the parties merely agree to take steps “to the maximum of its available resources” towards the progressive realization of the rights under the Covenant” including “particularly the adoption of legislative measures.”

This distinction would come to a sharper focus in the context of the Cold War; the United States and the so-called Free World tended to emphasize the ICCPR over the ICESC; the Soviet Bloc and the rest of the so-called Communist World tended to give importance to the ICESC over the ICCPR. Better a hungry but free journalist than one who is well-fed but has no freedom at all to practice her profession, the West seemed to say.

The other side of the fence, meanwhile, seemed to retort with the argument that you can’t eat freedom; you must first feed your people before you can teach them freedom. Today, you can hear the same argument said about human rights in the discussion about the viability of the Asean Charter.

The other night I was in an animated discussion with a Singapore-based Vietnamese diplomat over sumptuous dinner at the reception for ASEAN diplomats negotiating the terms of the new Asean Charter. The diplomat basically echoed the argument of those opposed to a stronger human rights mechanism in the ASEAN Charter when he said that our situation in Asean is different from that in Europe and elsewhere. Change has to be gradual he said, because our concerns are different. We need to establish stability first, before we can start talking about freedoms.

But the Philippines is a party to both Covenants. That means that it has bound itself to its obligations under these two Covenants.

Moreover, the 1987 Charter express an elaborate set of provisions binding the State to respect human rights that encompass as well economic rights. In its Declaration of Principles and State Policies, it mandates that the State value the dignity of every human person and guarantee full respect for human rights. On economic human rights, it features Art. XIII on social justice and human rights, divided into labor, agrarian and natural resources reform, urban and land reform and housing, health, women, role and rights of people’s organizations, and human rights.

In terms of statutory implementation, we have the Labor Code, which grants workers certain economic rights, expressed in many of its provisions. I can think of two most relevant rights in the ICESC, which are susceptible of easy determination as far as the issue of breach is concerned: the right to just and favorable conditions of work, and the right to form unions – two rights that incidentally, are often denied journalists in the Philippines, despite their being enshrined not only in the Labor Code but above all, in the Constitution.

This discussion is further amplified by the fact that under Art. II of the 1987 Charter, the so-called Incorporation Clause, generally-accepted principles of international law automatically become part of the law of the land. These two rights I pointed out are arguably historically rooted; meaning, that they assume wide acceptance and are considered international legal norms binding on states.

Technically speaking, even without need of legislation, by virtue of Art. II of the Charter, they are deemed part of the law of the law and are self-executory as customary norms of international law.

Yet our own Supreme Court has not been very helpful at all in elaborating the applicability of economic rights in the domestic scene, going as far as noting in one case that the framers of the Constitution did not intend to empower the Commission on Human Rights to safeguard economic rights. Its focus, the Court said, was merely civil and political rights.

It even referred to the deliberations of the Constitutional Commission, where one proponent of the creation of the CHR himself noted how economic rights have been deployed to suppress political rights:

In the past regime, every time we invoked the violation of human rights, the Marcos regime came out with the defense that, as a matter of fact, he had defended the rights of people to decent living, food, decent housing and a life consistent with human dignity.

Now, early on we noted the distinctions in the manner in which States are obligated under the two covenants. One criticism directed at the ICESC is that its provisions allow no more than “underdeveloped justiciability”, considering that the rights it enumerates are not self-executory or do not take effect immediately.

Dean Raul C. Pangalangan has proposed in a 1999 essay how to hold States responsible for their breach of their obligations under international law. He says this can be done through the law on State Responsibility. The law on State Responsibility prescribes rules on how to determine if a State breaches an obligation under international law. There is an internationally wrongful act of a State when it commits a conduct that constitutes breach of its international obligation. A breach takes place when the State commits an act not in conformity with what is required of it by that obligation, which can arise from customary, conventional or other obligation.

In fact, the law on state responsibility distinguishes between an obligation of conduct, and an obligation of result. The first happens where the conduct of the State is not in conformity with that required of the obligation.

The second takes place where the State fails to achieve a result required of it by an obligation under international law. Of relevance to our discussion at this point is the obligation by result, which is not fulfilled merely by enactment of the law. As long as the result has not been achieved, it matters little whether the State has or has not enacted a law. We do have laws providing for economic rights. But obviously, the existence of these laws are not a measure of the compliance by the State of its obligations to ensure that the economic rights of citizens are protected and enforced.

This discussion may sound too technical for you. But really, it is about the values that society holds dear and how it proves the importance it attaches to these values. The Proclamation of Tehran, adopted by the International Conference on Human Rights in Tehran on May 13, 1968, is of relevance when it declares that “human rights and fundamental freedoms are indivisible, [and] the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.”

In other words, there is really no difference between the first and second generation of rights. They are inter-dependent; they are inseparable.

But, at the center of it all, is the central role accorded to the State in the fulfillment of these rights. At the philosophical level, there is the debate on whether these rights are really natural; that is whether, they pre-exist the State and the State is merely called to implement them. The language of natural rights deny the historicity of rights, it denies that rights develop as societies develop. But I think there is no debate about the fact that we need the State to realize these rights.

It is the State that assembles a public legal community and the accompanying legal and political structures to support the functioning of such community. This recalls the criticism laid against the entire human rights movement by Harvard law professor David Kennedy about the apparently statist-orientation of human rights discourse. Kennedy arrives at an observation that in the end, all that talk about pre-existing rights really amount to nothing without the existence of a state structure that would enforce, grant, recognize and support human rights. Kennedy sees this as a big problem. “Although the human rights vocabulary expresses relentless suspicion of the state, by structuring emancipation as a relationship between an individual right holder and the state,” he writes, “human rights places the state at the center of the emancipatory promise.”

How is this so? He explains in a landmark essay:

By consolidating human experience into the exercise of legal entitlements, human rights strengthens the national
governmental structure and equates the structure of the state with the structure of freedom. To be free…is to have
an appropriately organized state. We might say that the right-holder imagines and experiences freedom only as a
citizen. This encourages autochthonous political tendencies and alienates the “citizen” from both his or her own
experience as a person and from the possibility of alternative communal forms.

This criticism of the apparently statist orientation of human rights is closely linked to an observation he makes in earlier section of the essay about the inseparability of the discourse of rights from “legal formalization.”

Rights are baptized as demandable through public law remedies; that is, “explicit rights formalized and implemented by the state.” The well-defined divide between the public and the private hides brought about by governments as well as by private actors: “human rights explicitly legitimates ills and deligitimates remedies in the domain of private law and nonstate action.”

My own take is that his criticism is only true up to a point; that is, if we take the state as the ultimate reality that encompasses the rest of reality – the individual, our various collectivities, our families, our loyalties to our favorite basketball team, our favorite punk band. Historically too, rights came to be only with the appearance of a state powerful enough to destroy feudal and clan powers. That is what the French Revolution did. Establish rights for the citizen as citizen.

How is this relevant to your economic rights as journalists? Well, it means our rights are only as good as the kind of state we have. And the kind of state we have in some way is a function of how good we are at exercising our rights as a collectivity. In a way, therefore, journalism is also state-building.

At least we know what we are up against. We see that we need more than the discourse of universal human rights where the very institution charged with protecting and ensuring their viability is itself the principal violator of these same rights. Thus, Hamill’s lament that journalism will always break your heart assumes a new dimension. It is about a certain doggedness in the struggle for recognition, respect and protection of these rights – a long obedience in the same direction, to borrow from a theologian.

We know this from the history of the Philippine press itself – how its struggle against political oppression could only come to a head with the realization that without a common action, there can be no effective political opposition. We must remember too that some economic rights are primarily individual. Others are collective, like for instance, the right to form a union. It can only be expressed in full as a group right.

Traditional libertarian political theory posits a fundamental opposition between the individual and the state. Political theory is thus rendered the poorer by a view that fails to account for “mediating structures” in society like civil society, and yes, unions.

The French Count Alexis De Toqueville, writing down his impressions of his visit to a newly-born United States of America, could not help remarking that the country owes much of the vibrancy of its democratic tradition to the countless citizen-led organizations of all sorts he saw at work there. There’s the making of an active civil society for you.

If anything, the continuing impunity faced by Philippine journalism has only underscored the need for journalists to band together and work together to address a common problem. NUJP is one such venue – arguably now a truly national organization – where it is hoped journalists can find an effective means of resolving unanswered claims to economic rights. Rooted in the vision of our own Labor Code itself is the establishment of industry-wide unions for every imaginable sector. Will NUJP make that possible for the media sector? It’s up to you to respond to the challenge.

The idea of News as a verb implies the possibilities of agency. It also implies collective action – the kind that makes it possible for citizens to have, again, in Hamill’s terms, “better cities, better citizens, and a smarter humane country”, or at the very least, the kind that allows us to avoid “adding anything more to the appalling history of human lousiness.”

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Written by Romel

March 2, 2010 at 3:40 pm

Posted in Uncategorized

Tagged with , ,

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