Government Financed Ads a.k.a ‘Infomercials’

November 13th, 2009

Direct Violation of the Laws against Premature Campaigning and Corruption

www.Shobeceo.com

OVERVIEW

Prof. Randolf S. David once asked, “What kind of rules do we need so that the merely popular do not get the power to decide for the entire nation?” This question recognizes the fact that Philippine politics has become a popularity contest wherein a famous candidate has somehow higher chances of winning. The people do not care about the platforms of the politicians. The voters do not cast their votes based on the substance of the candidate but on the basis of popularity. “For it has long been the case that suitability for public office in our country is decided not by one’s credentials or experience, but rather by one’s media projection.” Dr. Florangel Rosario Braid, the President of the Asian Institute of Journalism and Communication said, “the marriage between media and politics and the economy has shaped the culture of our politics.”

Only those who can maintain their fame get to stay in the position. This reality in the Philippine setting opens the door to graft and corrupt practices. Politicians have used the mainstream media to boost their public appearances and make the people aware that they (the politicians) are present and available for public consumption. “No longer content with speeches or press releases, they now stage, through press conferences, the grandness of public affairs and the heroism of their civic apostolate. In their hands, statecraft becomes synonymous with media visibility.”

Funds that could have been useful for other public purposes are diverted for personal gain by unscrupulous public officials who wish to stay in power or gain more of it by having government money spent for their ‘early campaigns’. This is usually made more rampant before elections take place. Massive propaganda is being used as leverage in order to retain publicity and popularity of those who seek to run for office in the next elections. Those seated in the public office takes undue advantage of their incumbency and use public funds to support their premature campaigning, which erodes public trust.  Hence the need to study the manner by which this government financed advertisements are approved.

This paper shall check whether there are sufficient rules and guidelines set before the government approves and gives financing to a particular advertisement. It shall also examine the accountability of people involved in such approval or of those whose faces are shown in the advertisements. The paper shall analyze whether there are laws violated by such practice. If there are existing laws, analysis of their efficiency shall be conducted for as observed, the practice has caused great distress to the public at large. If there are none as of yet, then the proponents shall recommend the enactment of laws, rules, or guidelines that could prevent the abovementioned misuse of public funds. shobeceo

INTRODUCTION

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Generally speaking, election as the embodiment of the popular will is the expression of the sovereign power of the people. Its purpose is to enable the electorate to choose the people that will run their government, whether national, provincial, municipal, city or barangay. It is predicated upon the representative form of government theory that the people who bear the burden of government should share in the privilege of choosing the officials of that government.  When conducted fairly, elections provide the population with an opportunity to participate in the selection of their leaders, a right recognized even in major international human rights instruments. Through elections, the voters are given a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest. It involves every element necessary to the complete ascertainment of the expression of the popular will, embracing the entire range, from the deposit of the ballot by the elector up to the final ascertainment and certification of the result.

Philippines has 17 election regions, 80 provinces, 136 cities and 1,494 municipalities. Election consists of a competition by around 17,000 candidates vying for a spot in around 3,600 political positions, for both national and local posts.  The competition is really tough and candidates are but expected to spend a lot to win a spot. shobeceo

The Role of the COMELEC

The powers of the Commission on Elections are defined in the Constitution. The functions of the COMELEC under the Constitution are essentially executive and administrative in nature. Our fundamental law has placed the agency charged with the enforcement and administration of all laws relative to the conduct of elections beyond the control of the Executive and beyond the power of Congress to abolish it, in addition to adopting other measures tending to give thereto a reasonable degree of independence. In Aratuc v. COMELEC, Justice Barredo declared that it is but proper that the Court should accord the greatest measure of presumption of regularity to its course of action to the end that it may achieve its designed place in the democratic fabric of our government.

The COMELEC’s mandate is to enforce election law. It is intended to be an independent administrative tribunal to place outside the influence or control of political parties, and the three branches of government. The intent of Constitution is to give it all necessary and incidental powers to achieve its purposes. It has powers of administration and supervision over election processes. Great latitude is given to insure free, orderly, honest, peaceful, and credible elections. Thus, the choice of means employed by the COMELEC cannot be interfered with unless the same is illegal or arbitrary. COMELEC acts in an analogous capacity to the Ombudsman with its investigatory and prosecutory powers. In pursuing this function, the COMELEC is not strictly bound by rules of evidence. However, factual findings of the COMELEC will not be disturbed by courts when there is no evidence. This rule is applied with greater force when it comes to the COMELEC since its on a level higher than other statutory administrative organs.

Whatever may be the nature of the functions of the COMELEC, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government. By Constitutional mandate, it must do everything in its power to secure a fair and honest canvass of the votes cast in the elections, hence it is given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created- to promote free, orderly and honest elections. The choice of means taken by the Commission, unless clearly illegal or constitute grave abuse of discretion, should not be interfered with.  In Relampagos v. Cumba and the COMELEC, the Court upheld the jurisdiction of the COMELEC to issue writs of certiorari, prohibition and mandamus over election cases where it has appellate jurisdiction by virtue of Section 50 of Batas Pambansa Blg. 697.

As early as 2008, reported presidential frontrunners began to invade television, radio, and print media, calling attention to themselves through product endorsements and/or public-service messages.  To name a few:

·       Senate President Manuel Villar called on people to report to him all illegal recruiters, victimizing Filipinos wanting to work abroad. 

·       Senator Mar Roxas II and Senator Richard Gordon endorsed laundry soap and a brand of an anti-bacterial soap, respectively.

·       Vice President Noli de Castro made a public official courtesy on regular TV spots and even print ads for the Home Development Mutual Fund (otherwise known as ‘Pag-ibig’)

o   This is the biggest spender on infomercials, chunking P 172 million out of the recorded P 298 million expenses for government infomercials

·       Metro Manila Development Authority Chairman Bayani Fernando flooded EDSA and other major highways with his posters for MMDA

·       Department of Interior and Local Government Secretary Ronaldo Puno promoted his department with him as the main character in the advertisement and reports his accomplishments as a secretary

·       Department of National Defense Secretary Gilbert Teodoro promoting his department and its adjunct agencies to inform the public of his department under his leadership

Personal advertisements or endorsements indirectly pave the way for candidates to make an impression upon the voters even before they officially proclaim their candidacy.  On the other hand, public-service messages should concern citizens because these are publicly funded and public funds are being used for personal gain, where it should have been used for the general benefit of the Filipinos.  These activities aim to affect the voters’ perception for the coming election.  However, there is no one regulatory body directing the conduct of public officials in using these infomercials properly. 

This paper will focus on the impact of publicly funded infomercials upon the voters, the government, and on Philippine elections.  shobeceo

OBJECTIVES

a.     This paper aims to check whether there are sufficient laws, rules and guidelines set addressing the political advertisements.

b.     It shall also examine the accountability of people involved in such approval or of those whose faces are shown in the advertisements.

c.     The paper shall analyze whether there are laws violated by such practice.

·       If there are existing laws, analysis of its efficiency shall be conducted.

·       If there are none as of yet, then the proponents shall recommend the enactment of laws, rules, or guidelines that could prevent the abovementioned misuse of public funds.

SCOPE AND LIMITATIONS

a.     This paper shall be limited to a review of electoral corruption, as a form of political corruption, in the Philippines.

b.     The study will be limited to public-service messages otherwise known as ‘infomercials’ of incumbent public officials and will exclude privately funded commercials and product endorsements.

c.     The authors will be using an interdisciplinary approach in analyzing facts and in giving recommendations to resolve the issues.

ANALYSIS

Corruption Defined

In General

In one study made on the Anti-Corruption Strategy for the Philippines, corruption is deemed to be “the violation of norms of duty and responsibility for normal gain”, which includes embezzlement, a form of political corruption where public funds are used for one’s own benefit. 

Political Corruption

Political corruption is a form of corruption that is defined by Marcin Vvalecki as the abuse of state resources related to privatization or public procurement.  It is a politically motivated violence which is usually triggered by excessive competition over state resources between political factions, extreme poverty, apathy and weak civic activism, lack of independent media, control of status by moneyed interest (or state capture), lack of enforcement of political finance rules, use of discretionary or secret resources, and use of public funds and resources without accounting for them.

Susan Rose-Ackerman, on the other hand, believes that corruption sees government as an economic prism and its workings as akin to private business monopolies.  She believes that political corruption has two aspects, that is: (1) Public-private regarding wherein public officials uses public funds to serve their private interests; and (2) Rent-seeking, which is the culture that exploits the rents created by the government.  In the latter aspect, it may be said that a public official is renting an office in the government, but while in that seat he tries to exhaust all available resources in such position for private regarding.

Political corruption comes in two main forms. The first consists of private entities like individuals, corporate bodies, trade unions, trade associations, special interest groups, ethnic groups, NGOs and think tanks who provide resources to a party or candidate in return for previous or future benefit.  The other consists of parties and candidates using state funds or administrative resources to secure electoral benefits or for partisan electoral purposes.  In the first form, both the ruling and opposition parties may resort to it, while in the second form, only the incumbent parties and candidates are likely to engage in the same.

Electoral Corruption

In taking a closer look, electoral corruption, a narrower version or a subset of political corruption, has its focus on the workings and the effects of corruption in the sphere of election cases.  It is deemed to have been as old as election itself.  Corruption in election cases range from the lowest scale of the “Sunday School” variety, which involves the timing release of positive statistics on the good performance of the national economy during or before the election week to the widespread and large scale election fraud cases of ballot-buying, ghost voters, and the like.

The abuse of state/public resources for electoral purposes are often manifested through the following:

a.     Holding, for free, of political rallies in a government or a public facility while having the same facilities denied to other parties and candidates.

b.     Denying parties and candidates access to state, public, or taxpayer-funded resources such as media, conference halls, rally grounds, and the like.

c.     Using public employees to staff political rallies and party offices during the work day/working hours.

d.     Using state vehicles, aircraft of the state-owned airline, and other publicly funded facilities to convey party supporters to political rallies, polling stations or to transport party memorabilia.

e.     Compromising the political neutrality of the security agencies.

f.      Lack of equity in the vigor with which election officials and other relevant official adjudication bodies investigate and adjudicate complaints lodged by parties and candidates contesting the elections.

Electoral corruption can either be competitive or anti-competitive.  Competitive corruption exists when a variety of candidates have access to electoral corruption.  It requires that at least two contenders have close fight for the position that they are vying for and that they are able to significantly engage in electoral corruption.  It consists of “an intricate game of tricks open to all contestants”.  On the other hand, anti-competitive corruption arises when one of the contenders is more powerful than the rest.  It is a situation wherein the powerful contender – usually the incumbent – has an unmatched access to resources or control of media and for all intents and purposes, he is the only on with the ability to engage in electoral corruption.

While it has been a long-standing practice, almost like a tradition, in the Philippines, electoral corruption is known to corrode the legitimacy of the democratic process of election and of the political system at large.  shobeceo

Government-financed Advertisements (Infomercials)

The politicians who are either seeking elective posts, by trying to become reelected or by making a political comeback, find ways to circumvent the laws prohibiting premature campaigning.  “Election corruption and abuse of state resources for partisan electoral purposes begin long before the election period.” Politicians engaged themselves in an advertising race in order to obtain more media mileage. The innovative approach that the politicians were able to devise was the use of the so-called infomercials. These infomercials allegedly aim to improve the visibility and the awareness of the public about the politicians’ accomplishments in their respective department or post. The main characters in those infomercials claim that the primary aim of the infomercials is public information and not partisan politics.

Even the fisherfolk activist group Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) expressed its dismay with the government-paid infomercials and points out the fact that these TV ads cannot resolve the pervasive lack of employment, poverty, and hunger across the country. Pamalakaya national chair Fernando Hicap said, in a press statement, “The P298 million taxpayers money spent by Malacañang on infomercials have no mitigating impact on the lives of jobless, hungry, and starving millions.  The 27.6 million poorest Filiipinos all over the country will not benefit from this ‘running teleserye’ of state propaganda and political deception.” He further states that, “this barrage of infomercials promoting the senatorial candidacy of Arroyo anointed candidates in the 2010 elections is a national robbery of public funds.  Malacañang should stop this electoral oriented infomercials to stop the bleeding of national coffers and save taxpayers money from all-out financial depletion.” shobeceo

Premature Campaigning as Prohibited Activity

The main contention against premature campaigning stems from the provisions in the Omnibus Election Code of the Philippines which provides, to wit:

Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having   x  x    (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. (emphasis supplied)

Sec. 80. Election campaign or partisan political activity outside campaign period. – It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (emphasis supplied)

The provision clearly deems it unlawful to engage in an election campaign or partisan political activity outside of the campaign period. However, many legal practitioners believe that there is no such thing as premature campaigning. Their main argument is that when a person has not yet submitted his/her certificate of candidacy, he/she is not yet deemed a candidate. Therefore, he/she cannot be made guilty of premature campaigning when legally speaking, he/she is not yet a candidate to begin with.

On the other hand, Sec.  13 of Republic Act No. 9369 amending Sec. 11 (now Sec. 15 as amended) of Republic Act No. 8436, provides, to wit:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (emphasis supplied)

Under this new law, it would seem that as a candidate, a person cannot be held liable for campaigning earlier because firstly, he/she is not yet a candidate unless he/she files a certificate of candidacy, and secondly, he/she is only considered as a candidate at the start of the campaign period for which he/she filed his/her certificate of candidacy, and thirdly because unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period. On the basis of this provision, a candidate may not be guilty of premature campaigning because he/she is only considered as a candidate upon the beginning of the campaign period. Prior to the campaign period, a person is not deemed a candidate even if he/she already submitted his/her certificate of candidacy. 

Unfortunately, even the COMELEC through its director of legal department, Atty. Ferdinand Rafanan said, “”In my own opinion, nobody can be liable for the election offense of premature campaigning now. Because as in the old law and in the new law, premature campaigning is still anchored on the fact that a person has already filed a certificate of candidacy.”

However, a reading of Sec. 80 of B.P. 881 would prove otherwise. There is an operative phrase defining who can be guilty of premature campaigning. The phrase “any person” is very explicit that even if a person does not qualify under the word candidate since he/she has not yet filed his/her certificate of candidacy, he/she may still be classified as a voter, a member of a party or a member of an association. The phrase “any person” is an all-embracing phrase that may even include non-voters and any ordinary citizen. But Justice Antonio Carpio said, to wit:

[B]efore a private person can commit the crime, there must first be another person who is already considered by law a “candidate.” Section 79(b) of the Omnibus Election Code provides that “the term ‘election campaign’ or ‘partisan political activity’ refers to an act designed to promote the election or defeat of a particular candidate or candidates to public office.”  Thus, there can be no premature “election campaign” or “partisan political activity” unless there is a “candidate.”

Interestingly, in the case of Rosalinda A. Penera vs. Commission on Elections, by a split vote of 8-7, the Court held that “Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act No. 8436, as amended”.  Penera who was elected and proclaimed as municipal mayor of Sta. Monica, Surigao del Norte used vehicles, consisting of two jeepneys and ten motorcycles carrying multi-colored balloons. The motorcade went around three barangays in Sta. Monica, and Penera and her partymates waved their hands and threw sweet candies to the crowd. These acts were all done prior to the filing of her certificate of candidacy which is obviously outside of the campaign period. Moreover, these acts were committed on the same day but immediately before she filed her certificate of candidacy. She did all the acts on her way to the COMELEC office to file her certificate of candidacy.  Consequently, “[f]or violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera must be disqualified from holding the office of Mayor of Sta. Monica.”

Nevertheless, Justice Carpio in his dissent firmly believes that ”with the enactment of R.A. 9369, our lawmakers have decided to do away with the imposition of a penalty on premature campaigning”. Former Chief Justice Artemio Panganiban asked this question: “Even now, many have already set up billboards, ads and infomercials announcing their run for the presidency or other public offices. Can they be disqualified?” He answered his own question by saying, “No, because prior to the filing of their COCs, they cannot be deemed ‘candidates’ yet. Thus, legally, there had been no ‘premature’ campaigning.” This assumption erodes the very essence of defining when election period commences. Espousing this same view will defeat the very purpose for which elections law were enacted. Granting for the sake of argument that this contention is true, then the provision on campaign period is nugatory for a candidate and his/her followers may campaign at any time they want even outside of the campaign period, for it is only upon the beginning of the campaign period that a person filing a certificate of candidacy may be deemed as a candidate. The designation of a specific campaign period would be meaningless.

Nonetheless, since the majority opinion in Penera considers Sec. 80 of B.P. 881 in relation to Sec. 68 of the same law still relevant, this paper would adopt the same view. In effect, there is such a thing as premature campaigning and even if the person has not yet filed his/her certificate of candidacy, he/she may eventually be found guilty of premature campaigning. Surprisingly, Supreme Court spokesman Jose Midas Marquez has a different reading of the decision. In a news article,  the reasoning for his statements was “What happened in the case of Mayor Penera was she already filed her certificate of candidacy, and yet she continued with her motorcade, which was a day before the start of the campaign period. Without that filing of the COC, then that case cannot be used as basis.” He added, “”Aspirants for president with running infomercials are not covered by the law dahil hindi pa naman sila nagpa-file ng certificate of candidacy (since they have not yet filed their certificate of candidacy).”

But the Penera decision affirmed the COMELEC Second Division Resolution in SPA No. 07-224 disqualifying Penera. The same Resolution was affirmed by COMELEC en banc by dismissing the Motion for Reconsideration filed by Penera for “utter lack of merit.” The Resolution categorically stated that the basis for the decision was the acts of Penera even prior to her filing of her certificate of candidacy. In fact, the acts punished by the Resolution was Penera’s acts preceding her filing of certificate of candidacy. The statement of Atty. Marquez seems to confuse the legal minds more than enlightening them. shobeceo

Infomercials as Premature Campaigning

The alleged primary aim of the infomercials is to boost the public awareness of people regarding a certain government department, agency or accomplishment. It is of public knowledge, however, that the characters in those infomercials have already declared their intention to run for public office long before the beginning of the proliferation of their respective infomercials. The contents of the infomercials are embedded with hidden messages to keep the public informed of the characters’ existence. Infomercials call the attention of the viewers, listeners or readers to the political achievements of the politicians thus, giving the incumbent politicians an advantage over the others who do not occupy high government posts.

Senator Miriam Defensor-Santiago who is strongly against infomercials of cabinet secretaries and even her fellow senators succinctly described the practice of those politicians using infomercials to conceal their true agenda, to wit:

Unless a person is blind, deaf, or dumb, it is crystal clear that the alleged infomercials of Cabinet members are intended to camouflage the violation of the campaign ban, for the simple reason that these Cabinet members engage only in such infomercials in the year prior to election year and at no other time, and for no other reason than personal political publicity.

Politicians using infomercials found an ally in House Speaker Prospero Nograles who said, “It has become necessary considering that in our present setup, there is a tendency to project all the bad news and not print the good news. It’s a way of balancing out things and leveling the playing field”. Arguments against this view once again go back to: Why only now? And why must the infomercial focus on the face and name of the politician instead of focusing on the accomplishments of the department, agency or unit? The answer is this: “Viewers will long remember how looked and how you spoke, but will seldom recall what you actually said.” shobeceo

Infomercials Using Public Funds Must be Disallowed

Since the infomercials are about a certain government department, agency or accomplishment, they are presumably funded by public funds. The use of infomercials per se is not legally, not even morally wrong. What makes it an intolerable act is the fact that infomercials proliferate only at the time nearing the election period and those involved in the infomercials are the same persons who publicly declared their intention to run for public office.

Politicians heading a certain government agency can divert funds and allocate them for infomercials instead of using them for other practical public purposes. There is really no public interest that is enhanced in the use of infomercials. Politicians spend public funds only to boost their publicity. Infomercials serve no legitimate purpose. “By using public funds, these government officials have the financial mechanism to campaign ahead of others.”

The Commission on Audit classifies expenditures that must be disallowed as follows: irregular, unnecessary, excessive and extravagant. For information purposes, the terms are defined according to the COA Circular, to wit: (emphasis supplied)

Irregular: The term “irregular expenditure” signifies an expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or practices that have gained recognition in law.  Irregular expenditures are incurred without conforming   with   prescribed usages and rules of discipline.  There is no observance of an established pattern, course, mode of action, behavior, or conduct in the incurrence of an irregular expenditure.   A transaction conducted in a manner that deviates or departs from, or which does not comply with standards set is deemed irregular.  An anomalous transaction which fails  to  follow  or  violates  appropriate  rules   of procedure,  is likewise  irregular.  Irregular expenditures are different from illegal expenditures since the latter would pertain to expenses incurred in violation of the law whereas, the former is incurred in violation of applicable rules and regulations other than the law.

Unnecessary: The  term pertains to  expenditures which could not pass the test of prudence or the diligence  of a good  father  of a family, thereby  denoting  non-responsiveness to the  exigencies of  the service. Unnecessary expenditures are those not supportive of the implementation of the objectives and mission of the agency relative to the nature of its operation. This would also include incurrence  of  expenditure   not dictated  by the demands of good government,  and  those the  utility  of  which  cannot  be  ascertained  at  a specific time.  An expenditure that is not essential or that which can be dispensed with without loss or damage to property is considered unnecessary.  The mission and thrusts of the agency incurring the expenditures must be considered in determining in whether or not an expenditure is necessary.

Excessive: The term “excessive expenditures”  signifies unreasonable expense or expenses  incurred  at  an immoderate quantity and exorbitant price. It also includes  expenses which exceed what is usual or  proper as  well  as expenses which are unreasonably  high,  and beyond  just  measure or amount. They also include expenses in excess of reasonable limits.

Extravagant: The term “extravagant expenditure” signifies those incurred without restraints, judiciousness and economy.  Extravagant expenditures exceed the bounds of propriety.  These expenditures are immoderate, prodigal, lavish, luxurious, waste grossly excessive, and injudicious.

Federico D. Pascual Jr. in his column in The Philippine Star, asked the following questions regarding the infomercial of Chairman Efraim Genuino of the Philippine Amusement and Gaming Corporation, who after being considered by the Arroyo administration as a senatorial bet (the news article mentioned that Genuino is seeking for the presidential post) resorted to infomercials, to wit:

Who pays for all those expensive TV ads promoting his face, name and image? Is it PAGCOR or Genuino personally? Does big-time gambling have to be advertised on mass media? How truthful are those ads showing heavily edited pictures of crowds? Why does Genuino always paste beside him the picture of President Arroyo?

Although the infomercial expenditures may not be considered as irregular since there are rules, regulations, procedural guidelines, policies, principles or practices that are easy to follow, they may still be classified as unnecessary, excessive and extravagant for these criteria call for moral and conscientious determination. It is crystal clear that infomercials serve no purpose other than to boost the public image of the soon-to-be candidates in the upcoming elections. Public spending for the infomercials is unconscionable for it deprives other legitimate and useful purpose of government funding. At the same time, the politicians receive private gain at the expense of the public being taxed for useless purposes. For all these reasons, the use of public funds for the infomercials must be disallowed. shobeceo

Role of Media on Infomercials

Media plays an important role in the Philippine politics.  “The media is often referred to as the fourth estate, more or less on the same altitude as the classical democratic powers of the judiciary, the executive and the legislative.” “Elections are the cornerstone of any democracy, and the media has a vital role — in informing the public about what the politicians are promising, in telling the politicians what ordinary people want, or do not want, and in ensuring that the polls are ‘free and fair’.”

Filipinos are known to be avid fans of teleseryes and telenovelas, even game shows and reality shows.  The habit of keeping watch of the latest news and updates through television, radio, or newspapers is inculcated in the Philippine culture and tradition.  Hence, it cannot be denied that media is a big factor in influencing the Filipinos in the matter of lifestyle, opinions, and decision-making. “That is why we have a proliferation of TV programs in which entertainment personalities are cast in public service roles, and politicians are packaged as showbiz celebrities.”

In a news article by Aries Rufo, he cited the role of media in implementing the Penera decision and the regulation of infomercials, to wit:

Caught in the middle would be the media, which will have to delicately balance its reporting to avoid being accused of engaging in premature campaigning. Election lawyers said that if the SC ruling would be strictly observed, a total news blackout on the candidates would have to be observed.

This would affect media’s effort to engage the candidates on behalf of the electorate, and generate millions of revenues from campaign ads.

True enough, the media is caught in the middle of two conflicting interests: revenue generation and responsible journalism. One of the basic reasons why companies are set up is to generate profit. Without profit, media outlets cannot be in existence. The growth in revenue of media outlets when election is fast approaching can be attributed to political advertising. “P160M in political ads boost ABS-CBN profits” and “Higher ad rates, lower tax boost GMA profits by 20%” are the common examples of headlines that people see when media outlets report their profits. This is a recognition that political advertisements contribute to the additional profits that media outlet receive.

Political advertising is a very profitable aspect of media. The radio and television frequencies are very expensive. The rates even vary depending on the time slot when the advertisement would be played. Much of a politician’s campaign budget goes to the media because of their immense reach to the masses. Because of the profitability of political advertising, the Bureau of Internal Revenue issued recently Revenue Regulation No. 8-09 which requires all political candidates or parties to withhold a five percent (5%) withholding tax on their campaign expenditures, in order also to boost government revenue. In 2008-2009, the cabinet members and executive officials advertising through the media used about 118 million pesos of public funds for their infomercials. In 2009 alone, the expenses amounted to 100 million pesos. 

The report of the Commission on Audit submitted to Senator Santiago as chair of the economic affairs committee, on 14 August 2009 by COA Chair Reynaldo Villar indicated the following figures:

 

In Round Figures:

1. Chair Agusto Syjuco, Tesda	P28.3 M
2. Mayor Jejomar Binay, Makati	P23.4 M
3. VP Noli de Castro, OVP, Pag-ibig / HDMC, HUDCC	P18.1 M
4. Chair Efraim Genuino, Pagcor	P14.1 M
5. Sec. Francisco Duque, DOH	P13.2 M
6. Chair Bayani Fernando, MMDA	P 7.4 M
7. Sec. Jesli Lapuz, DepEd	P 5.7 M
8. Sec. Hermogenes Ebdane, DPWH	P 3.8 M
9. Sec. Nasser Pangandaman, DAR	P 2.4 M
10. Sec. Ronaldo Puno, DILG	P 0.9 M
TOTAL:	P117.7 M

 

And this is the list for the year 2009, so far:

1. Mayor Binay	P23.4 M
2. Chair Syjuco	P22.5 M
3. VP de Castro	P18.1 M
4. Chair Genuino	P14.1 M
5. Chair Fernando	P 6.4 M
6. Sec. Lapuz	P 5.7 M
7. Sec. Edbane	P 3.8 M
8. Sec. Duque	P 3.3 M
9. Sec. Pangandaman	P 2.4 M
10. Sec. Puno	P .240 M
TOTAL:	P100.4 M

It is commendable that media outlets especially television stations have their respective campaigns for clean, fair and honest elections. They serve as the citizen’s watchdog against fraudulent and abusive practice of politicians. Media play a vital role in informing the citizenry of the current state of Philippine politics. It is sad to note, however, that despite the fact that the media campaign against unfair elections, no media entity has come forward to sue the politicians using infomercials. It is more dismaying that the same media entities are taking advantage of the profitability of airing and printing the infomercials. Nonetheless, it is understandable why the media enterprise do not refuse to air or print the infomercials – because infomercials are profitable.

It cannot be denied that a derivative form of infomercial is the so-called “advertorial”. It is “an advertisement, as in a magazine, produced so as to resemble an article or editorial” The writers get paid to write on a certain politician, whether be it about the latter’s personal information or his/her achievements as a public servant. It dilutes responsible journalism for the politician can dictate upon the writer as to how the article must be written. Consequently, the articles that would reach the public are one-sided and all on the positive attributes of the politician. The electorate would then be misinformed and deceived because the politicians are packaged as a perfect product when in reality, they have hidden defects. They would be made to believe that the politicians described in the article are the perfect public servants for the country. shobeceo

Infomercials as Money and Popularity Contest

Prof. Randolf S. David said, “Because we have made elections expensive and celebrity-oriented, public office has become the preserve of the very rich or the very popular.” In the Philippines, being rich makes a person popular. Firstly, he/she is popular because of the media and public attention that he/she gets. Secondly, he/she is popular because he/she can buy airtime or print space for publicity. Since election has become a popularity contest in the Philippines, whoever gets greater publicity has a higher chance of winning. In the current situation, whoever has more money increases his/her winnability. The question then becomes: Where will the money come from? 

Since the infomercials a presumably funded by the public money, then the heads of the agency or department with big budgets have the advantage of having immense funding for their infomercials. They may use the “savings” of their department to fund the infomercials. Also, they may use their discretionary funds to pay for the advertisements. More importantly, they may use the legitimate budget or the appropriation for publicity of their department to boost their personal popularity even if the advertisements do not contain useful information. The politicians may produce a thirty-second infomercial, five seconds of which would flash the name of the department and the rest would be focusing on his/her face and his/her name. The politicians will not be content with one exhibition of their infomercials for it will not be enough to mark the minds of public. The infomercials must be run again and again, all throughout the day, almost in every timeslot especially in primetime that would entail more costs. It then goes back to the question of who has the biggest budget to spend. shobeceo

Infomercials as Basis for Other Forms of Corruption

Some infomercials contain disclaimers that they were “paid for by the friends” of the politician. It is very suspicious, however, why all of a sudden there is a surge in their production at the time nearing the election. It is very unlikely that the politicians’ so-called “friends” from nowhere just contributed money for the production of the infomercials. Also, it is very notable that many cabinet secretaries engage in the infomercials all at the same time. Why was there a sudden proliferation of infomercials? Before, their departments were not even heard of by the ordinary citizens. But why spend on infomercials only now? The timing of the infomercials casts doubt on their purpose.

Granting for the sake of argument that the infomercials are paid for by the politicians’ “friends”, the contributions must then be named to the department or the agency that the politicians are heading. It cannot be a personal contribution to the politicians since the purpose of the infomercials, according to them is to boost the public awareness on their department, agency or government unit. Why then do the infomercials say “Paid for by friends of (name of the politician)”? The beneficiary should have been the department, agency or unit, not the politician. If the politician himself was the beneficiary of the contributions, he/she may be held liable for indirect bribery under the Revised Penal Code. 

The Revised Penal Code also punishes the following acts (emphasis supplied):

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property x x x

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. x x x

Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

The provisions quoted above punish the illegal acts of public officials who have authority to disburse funds. Being the heads of departments, agencies or units, the politicians who have infomercials have the authority to approve the use of their respective funds or to apply the same themselves for purposes other than for which the funds were lawfully intended. The proliferation of infomercials raises the suspicion as to where the funds that the politicians use come from. During budget deliberations, department heads literally beg Congress to grant them more budget in order to implement certain projects. It is inconceivable why now the same department heads use their funds for infomercials. Are infomercials part of their priority projects?

At the same time, he/she may also be held liable under the Anti-Graft and Corrupt Practices Act, Republic Act No. 3019, under paragraph (i) which provides, to wit:

Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.  Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (emphasis supplied)

Under the quoted provision above, the department, agency or unit heads may be liable since they used their positions to approve the disbursement of public funds to campaign for themselves and to boost their publicity. As heads of the department, agency or unit, they have the final word on how to spend certain funds. It is inevitable that the expenditures on the infomercials have their approval. And since their true intent and purpose is for campaigning purposes which constitute private gain, they may be held accountable for their illegal acts under the provision. Moreover, the law creates a presumption that manifestly unlawful, inequitable, or irregular transaction or acts are for personal gain. Undeniably, the infomercials will fall under those descriptions according to the Commission on Audit Circular No. 85-55-A.

Republic Act No. 6713 can also be used to deter the use of infomercials for personal gain, to wit:

Section 7. Prohibited Acts and Transactions. — In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

x x x

(d) Solicitation or acceptance of gifts. — Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. (emphasis supplied)

 

It is very clear that the claim of the politicians that their friends paid for their infomercials may be construed as a violation of the abovementioned law. Why would their “friends” pay for the benefit of the politicians’ department, agency or unit? Do they really have an utmost concern for the image of the department, agency or unit? Or do they want to please the politicians? These questions do not have to be answered for the answers are quite obvious. shobeceo

CONCLUSIONS AND RECOMMENDATIONS

The State, in the exercise of its inherent police power, must enact laws to safeguard and regulate the conduct of honest, orderly and peaceful elections. These various and numerous provisions of the Election Law however, were adopted to assist the voters in their participation in the affairs of the Government and not to defeat that object. For in an election, the first consideration of every democratic polity is to give effect to the expressed will of the majority. Its primal feature is to allow the citizen to vote for whom he pleases, free from improper influences.

Although afforded a prime niche in the hierarchy of rights embodied in the fundamental law, the freedom of speech may not be invoked in this instance in favor of the politicians who make use of these infomercials, for such right ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature, which statutes for all intents and purposes, are crafted to effectively insulate such so cherished right from ravishment and preserve the democratic institutions our people have. The exercise of the right must hence be subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law.

From the above facts and opinions we can see that our election laws need to be amended to adapt to the current systemic problem in Philippine politics. Our laws are outdated compared to the innovative schemes that politicians have devised in order to circumvent the mandates of the law. Politicians have become so creative that they can find ways to illegally campaign without being punished for their acts. We need, therefore, to clearly establish the punishable acts of electoral fraud and introduce special penal laws that will specifically cover electoral fraud cases.  The Fair Elections Act for instance provides that “The Senate shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and for a among candidates and assure free, orderly, honest, peaceful and credible elections.” This however does not seem to cover instances wherein media communication is being used by the politicians to engage in premature campaigning which does not even exist in view of jurisprudence to the effect that this is not prohibited until during campaign period has already started.

In addition, the media have to be more responsible in reporting and even in advertising for partisan political candidates or parties. While enterprising businesses have a legitimate cause to accept advertisements, they also have a civic duty to regulate within their own sphere the infomercials that they would broadcast. They cannot just swarm the public with infomercials and then blame the public for believing what they saw, heard or read. Also through financial disclosure, the public, especially the electorate is allowed to keep score on the amounts, sources and destinations of government money. Without it, the people would risk never knowing the price tag of their democracy or the identity of major influences behind it. “Good journalists should also report elections in a non-partisan way, suppressing their own political views in order to allow the public to make up their minds solely on the basis of what the various candidates are offering.” In media, there is a distortion in the line differentiating the money-making aspect and responsible journalism of media outlets. “Political consultants often distinguish between ‘free’ (news) and ‘paid’ (advertising) media, but this dichotomy fails to describe the continuing proliferation of media forms and formats.” The media entities must address the dilemma brought about by their two conflicting interests. It can only be solved if we have responsible and independent media. Part of responsible journalism is the duty to give to the public the truth behind the issues.   And even more than becoming a responsible journalist, a responsible citizen of the Philippines has the obligation to do only what is morally correct and to become a watchman for the country in bringing about a fair and honest election. “Acknowledging the extent to which the media have come to dominate the selection process is a challenge to journalists, who prefer to think of themselves as detached observers.”

We also need an educated and well-informed electorate. It is really the electorate who will decide who is going to win in the elections. In Germany, “On the one hand, journalists would claim they want to be fair. In addition to this ethical attitude it would be unwise to manipulate from a business angle also. Readers, listeners or viewers would react negatively should they feel that the news they are getting is manipulated. Many would simply stop buying the paper or stop listening or watching the program that they believe is reporting in a biased fashion.”

After the devastation brought about by Typhoon Ondoy, the Philippines has been declared under a state of calamity. After Ondoy, there came Pepeng and Ramil. Because of the calamities that struck the country, rehabilitation programs need immediate funding. Instead of using public funds for infomercials, the executive department must channel its discretionary funds and savings to the rehabilitation programs. Typhoon victims need new homes and a fresh start. Government infrastructure concerning flood control and calamity-prevention must also be prioritized in order to avert the same fate that Filipinos especially in flood-stricken areas experienced. In summation, there are more relevant and more compelling projects that need government funding. Infomercials should never make it to the priority list.

Each individual, from any walk of life, whether man or woman, minor or adult, has a role to play in helping the people decide for the future leaders of our country.  The citizenry has to be vigilant and report immediately any incident of possible fraud or corruption within our electoral system.  Only then can we effectively fight the abuse on government-financed advertisements, otherwise known as ‘infomercials’, of incumbent public officials, who feed on public funds for their private regard.  Each aspect of our society is not spared. All must be involved. shobeceo

Entry Filed under: Philippine Cases

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