When the Senate goes into Executive Session it is assuring witnesses of the same kind of confidentiality that the Press asserts for its "unnamed sources". Thus the leak was an act declaring Journalists Privilege to be higher than that of the Senate.Tuesday's PDI Editorial "Protecting News Sources" deserves to be dissected for the fallacious reasoning that has led to the destruction of Senate Executive Session as a tool in Congressional investigations in aid of legislation. Every single paragraph reeks of intellectual dishonesty and hubris. (This is my fourth post on the matter in as many days because I believe there are still some people in the PDI editorial board who may listen to reason and see the damage to public interest and national security that they have caused. )
My caveats to the editorial:
On Sept. 30, the Inquirer reported that Romulo Neri, former director general of the National Economic and Development Authority, was “on the verge” of disclosing what he knew about the $329-million National Broadband Network deal when Sen. Joker Arroyo intervened and said that Neri should be allowed to avail himself of a legal counsel of his choice. The story by Juliet Labog-Javellana was based on the account of four sources who spoke on condition of anonymity.
Arroyo called the report a complete falsehood and asked the Senate to investigate the senators and other officials present at the executive session for violating the secrecy rule on closed-door sessions. He also asked the Senate to investigate the Inquirer for publishing the report. He and Sen. Juan Ponce Enrile said the Senate should cite Javellana for contempt unless she reveals her sources.
That's funny, my DVD recording of the public session that preceded the Executive Session, and PDI own news reports before Labog's article clearly state that it was Blue Ribbon Chairman Alan Peter Cayetano who said that Romulo Neri could bring along counsel of his choice! But PDI has it in for their former sweetheart Joker Arroyo and that was the whole point of this exercise: to put pressure on the pro-administration senator through lies and intrigue. Besides, I wonder how one Senator could've overruled an entire roomful of them.
The Inquirer is standing by its story. We also believe that we cannot be compelled to reveal the identities of sources since the information was given in confidence and on condition of anonymity. Our stand has a strong basis in law. Republic Act No. 53, as amended, otherwise known as the Sotto Law, says that the publisher, editor, columnist or reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information which was given to him unless it is demanded by “the security of the State.”
In the story, Labog quotes a "source" saying that, "“It’s hard to predict what he (Neri) was going to say, but he was about to talk. I think it’s the presence of Nonoy that stopped him,” one source said." There is an important grain of truth in this. Witnesses won't talk if they think what they say in Executive Sessions will be divulged. By leaking what supposedly happened in the session, whether accurately or not nevertheless destroys the credibility of the Executive Session in the minds of ALL future witnesses, including Romulo Neri. Has not PDI therefore seriously damaged the institution and the mechanism of Congressional investigations by abusing the so-called Journalists Privilege of using unnamed sources? Now, it is true that PDI cannot "be compelled" to reveal their sources, but the law clearly states that they can be punished for it, criminally and civilly. Read again R.A. 1477 which amended the Sotto law:"Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor columnist 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 security of the State."We do not believe that “the security of the State” is involved in the inquiry into the anomalous ZTE deal. What is involved primarily is the issue of corruption, as alleged by two witnesses in open hearings. Neri himself disclosed that he was offered P200 million by former Commission on Elections Chair Benjamin Abalos. Jose de Venecia III, son of the Speaker, said Abalos offered to give him $10 million so he would withdraw his bid for the NBN project.
They do not believe that the security of the State was involved in the inquiry into ZTE. But that was precisely the reason for the Executive Session, to find out if national security was involved. But let us assume that "the security of the State" was NOT involved in the ZTE deal, because I want to make the point that the investigation itself, not its target, IS a matter that involves the security of the state, because it involves the security of the Senate and its processes which ARE targetted at possible national security matters. The point is made in yesterday's Philippine Commentary that spying on the Senate and its Executive Sessions or breaching confidentiality by leaking its proceedings IS a breach of national security, just as much as wiretapping the President or Senators. It doesn''t matter if they end up talking about the weather or cheating the elections or anything else. Compromising the integrity of the proceedings is itself criminal and immoral, in my opinion. From now on, no one can rely on the executive session, because leakers have been emboldened that they can always do their dishonorable deeds with th ecollusion of a major newspaper, even if they go to some other media. Witnesses will never be sure that what they say won't end up on the front pages or prime time newscasts. And wait till the shoe is on the other foot!
In the executive session, Neri was on the verge of revealing more about the project when, according to our four sources, Arroyo intervened and allowed Budget Secretary Rolando Andaya to join the session as Neri’s legal counsel.
Arroyo himself has said that the case against Javellana is “a borderline case.” He is apparently aware of the protection given by the Sotto Law to journalists. The Senate committees investigating the case cannot compel Javellana to disclose the names of her sources, and the Senate cannot cite her for contempt if she refuses to identify them.
Oh yes, the Senate CAN cite them for contempt, even if they don't reveal their sources, because the basis would not be R.A. 53 or 1477, but the Senate Rules themselves which were clearly violated with the collusion of the newspaper: Take a look at the recently adopted Rules of Prceedure Governing Hearings in Aid of Legislation:(1) If the Committee believes that the interrogation of a witness in a public hearing might endanger national security, it may, motu proprio or upon motion of any interested party, conduct its inquiry in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in public hearing; (2) Attend-ance at executive sessions shall be limited to members of the Committee, its staff, other Members of the Senate, and other persons whose presence is requested or allowed by the Chairman; and (3) Testimony taken or material presented in an executive session, or any summary thereof, shall not be made public, in whole or in part, unless authorized by the Committee
It is not only the law that gives protection to journalists who quote anonymous sources in their stories; their professional code of ethics also gives them such protection. In journalism, the protection of sources is a cornerstone of press freedom. A journalist who violates the confidentiality of his sources will soon see these sources drying up.
Ideally, the sources of information in a news report should be identified. But this cannot be done all the time. There are times when a journalist has to agree to keep his source or sources anonymous for certain reasons. One reason is if the life of the person giving the information would be endangered. Another is if he would lose his job because of the information he is disclosing. There may be other reasons, and it is up to the reporter and his editor to decide whether to use the material given on condition of anonymity.
At least the PDI Editors understand that it is a matter of discretion whether or not to exercise the Journalists Privilege. This time, I think they wantonly abused that privilege just to put pressure on Joker Arroyo and to make mischief by casting four Apples of Discord into a Senate already abused by the Chief Justice in 2001 (when Davide usurped the SOLE power of the Congress to remove Constitutional officers) and by the Chief Executive through various gag orders like EO 464.
Even now, Enrile is already proposing to amend or even repeal the Sotto Law. That certainly would be a reactionary move; it would remove one protection given to journalists in carrying out their work. Especially in these times when high government officials seek to hide anomalous multimillion-peso deals from public scrutiny, journalists will have to continue the practice of using information given by sources “on condition of anonymity.” Journalists are discerning people and they should be trusted to vet their sources very carefully before bestowing on them the mantle of “anonymity.” Also, there is the two-source rule: information given by one anonymous source has to be corroborated by another source. (In the case of the Javellana story, there were four sources.)
There is no need to amend the law. It is clear enough that even if they don't divulge the sources, they can still be put in jail for breaking some other Law or Rule.
If the Senate committee on ethics decides to conduct its inquiry, it should focus on the senators as well as the other people present at the executive session and not on the reporter who wrote the story. Javellana was only doing her job. The four sources who talked to her were the ones who supposedly broke the confidentiality of the executive session. A “roll call” type of inquiry should produce some results.
I agree with discovering if, who and how "four sources" have seriously compromised the integrity of the Senate and all future executive sessions. But focus should also be put on the Press, which thinks it can do anything, including lying, kuryente, and other dirty tricks, in order to "get at the Truth." I wonder how they would like it if some of the "truths" about their editors and publishers, their reporters and their staff were to be revealed anonymously. Only social and political chaos can result from institutional abuses of privilege.I frankly don't see how the executive session process can possibly be saved now, even by the Senate. Perhaps only by increasing the penalties against such transgression and abuse of privilege can the road back to institutional sanity be regained. For now, abuse of Freedom of the Press has destroyed an important tool in the arsenal of Congress for oversight and legislation. Executive Sessions will be tainted for a long time to come.
Recent Philippine Commentary on this matter:
Spying on Senate Executive Sessions on Presidential Executive Privilege Violates National Security.
Dissing the Senate
Reporters Omerta and the Art of the Kuryente
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