Dissing the Senate

The Journalist's Privilege of quoting unnamed sources in news reports and opinion columns is well established in our Constitutional traditions and explicitly by law-

Republic Act No. 53
An Act to Exempt the Publisher, Editor or Reporter of Any Publication From Revealing the Source Of Published News Or Information Obtained In Confidence

Section 1. The publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter, unless the court or a House or committee of Congress finds that such revelation is demanded by the interest of the State.

But it is not an absolute privilege and can be abused just like Executive Privilege or any other institutional privilege, like the secrecy and confidentiality of Senate executive sessions. Under that "unless" clause, abuse of the law can be punished. Perhaps it should be, except that many of news reporters and so-called journalists are perfectly willing to cross the line that makes them something else, or they are willing to help politicians achieve objectives they could not otherwise achieve but which the journalists agree with.

It is when players in different institutions that are normally separated collude illicitly for common goals that I the outlines of an abuse of privilege by both may be seen.

Nevertheless these privileges are indeed founded on Constitutional rights and their exercise cannot be deterred or interdicted except by the virtues of moderation, prudence and wisdom. Only when each institution respects the privileges of the other, can we prevent the destructive collision among inherently powerful government and social institutions like the Press and "Civil Society". The institutional privileges are like walls of separation that protect institutions from one another by defining their boundaries. Good fences make good neighbors. The strength of Republic Act No. 53 will soon be tested. Some print and broadcast journalists seem to think that the Journalists Privilege trumps even the Senate's privilege for the integrity of its proceedings. But even the law clearly grants exemptions from this privilege"in the public interest"!

I think it is time to recognize the concept of Separation of Press and State, and the limits of Press Freedom by identifying how it can be violated by cynical journalists and cynical USERS of journalists.

The more famous "separation" of course involves the Church and State, but let me assert that a similar "separation" ought to be recognized as existing between the Press and the State in the following sense.

I have previously opined that Churches, as expressions of organized religion, are Constitutionally indistinguishable from NGOs, which are expressions of organized advocacies. Likewise, the Press and Mass Media are expressions of organized speech.

All these kinds of organized entities: churches, NGOs, newspapers, radio and television, are really expressions of fundamental human rights like the freedom of speech and opinion, the freedom of thought and expression. In this sense, Churches and TV stations are both NGOs. prayers and religious ceremonies, manifestoes and demonstrations, news reports and opinion columns, are all Constitutional manifestations of the freedom of speech.

They are also expressions of the freedom of assembly, the right to associate with persons of like opinion or ideology or, as in the case of the Media, to make a living out of reading and writing, entertainment and commentary.

In this sense we may regard Churches and Mass Media to be NGO's.

The right to speak also implies the right to be heard, which for the Mass Media is translated into the Right of the Public to Know about what the one Organization that exists in society but which cannot be described to be an "NGO".

That organization which cannot be regarded as equivalent to an NGO is the Government Organization.

Viewed like this, I find it easier to understand the sense of terminology like "Separation of Church and State". The Freedom of Religion cannot be exercised without such a separation because the Government could easily favor one religion over another, and pass laws prejudicial to the others. The principle contained in the Separation of the Church and State requires the Government to treat ALL Non-Government Organizations as having exactly the same rights and duties and privileges, appropriate to their status as organized expressions of free speech and assembly.

Now the Government Organization is itself divided up into three other Organizations, each with their own subdivisions and hierarchy. The Constitution defines the rights and priviliges, duties and responsibilites, domains and jurisdictions of the Executive, Legislative and Judicial branches.

The Constitution defines the SEPARATION OF POWERS not only among the coordinate branches of the government, but also the main wall of separation between the Government and the "NGOs" like churches, mass media and other organizations of the people.

These walls of separation between and among GOs and NGOs are as necessary as the blessed wall of ignorance that prevents ordinary human beings from reading each other's thoughts and thus fomenting utter social chaos!

Freedom of speech and thought also implies of course the right NOT to express in public speech what one is actually thinking. Vice versa, freedom of speech and thought implies that we have a right to the privacy of those thoughts and opinions, even if we have the right to express them.

The freedom of speech and thought therefore also means that every person has the exclusive privilege to decide whether or not to speak at all. Even taking the Fifth Amendent, or the right to remain silent, is an exercise of that fundamental right of privacy called freedom of speech and expression.

Thus the walls of separation between the State and the Individual Citizen, or between the State and the Church, or State and the Press, actually consist of Rights and Privileges granted by the Constitution to those individuals and assemblies of individuals.

Notice for example that the Executive Privilege is being asserted by the President to "discipline" her Cabinet and prevent other institutions like the Senate and the Press from knowing about confidential deliberations with alter egos that are absolutely necessary to the function of her Office.

Of course the Senate, the Press, and the People also have their own Rights and Privileges.

For example the Senate has the Right to conduct investigations and hearings in aid of legislation, with processes and powers to enforce such right. The Senate also has the privilege of conducting its sessions in public or in Executive Session, exercising its own discretion as what is in the public interest.

Likewise the Press and mass media have the right to investigate and publicize what all these government organizations and individuals are doing, and may exercise their own discretion in exercising the right of the Public to know.

All these organizations and social institutions have been in critical conflict throughout the Presidency of Gloria Macapagal Arroyo. Such a state of divisiveness can be seen in the large number of cases that reach the Supreme Court, and the prevailing attitude that all the differences and conflicts among them must eventually decided by the Supreme Court.

Which brings me to the following quotation from Justice Learned Hand writing in 1942 in The Contribution to Civilization of an Independent Judiciary:

You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

Unfortunately there is every evidence that our society "is so riven [divided]" that this comment applies to us.

It is so riven because the Supreme Court itself, did not in fact respect the institution of the Senate in 2001, with its sole privilege to try and to decide with finality any case of impeachment against a Constitutional officer. The present regime of Gloria Macapagal Arroyo was founded on an anti-Constitutional putsch that cloaked itself under the costume of Chief Justice Hilario Davide. Having itself murdered the Constitution on 20 January 2001, the Court merely absolved the murderer in March 2001 and did another Javellanaesque bit of political acquiescence.

The Demolition Job on the Senate continued throughout the past six years, with an attempt at fratricide evident in the Chacha movement centered in the Lower House. The attack from the Executive Branch comes in the form of gag orders like EO 464 and its progeny of administrative orders meant to skirt the more definite conclusions of the Supreme Court's unanimous decision in Senate vs. Ermita.

The Press is disrespecting the Senate with that alleged "leak" to the Philippine Daily Inquirer about what transpired in its Executive Session with Romulo Neri last week.

Either there were real sources who leaked what transpired, or as Joker Arroyo charges, that the newspaper made up the whole report. I don't know what is true. But that is the diabolical beauty of quoting unnamed sources. The report can sound plausible to people because of the context, yet it can be a devious amalgam of truth, falsehood, speculation and conjecture.

Either way, though, someone has abused a Privilege that belongs not to them as persons, but to the Institution of the Senate, the Press or the Presidency.