Reporter's Omerta and the Art of the Kuryente

The Senate has certainly been made a laughing stock of as serious allegations that possibly as many as four Senators leaked what transpired in an Executive Session to depose Romulo Nery last week on his claim of Executive Privilege. Now the reporter and her newspaper claim the journalistic privilege of confidentiality and refuse to name the source(s) of their news story.

That is their right by law to assert the journalistic privilege, but I think it is also in the Public Interest and well within the Right of the Public to Know if there are one or more Senators who willfully and maliciously violated the rule of secrecy over executive sessions of the Senate and its committees. Or, did the newspaper fabricate the whole story, as Senator Joker Arroyo fumed?

In the balance of today's controversy are sacred privileges claimed by major institutions of government and society, namely the Press and its privilege of keeping confidential sources; the Presidency and Executive Privilege; and the Senate privilege of secrecy over its Executive Sessions.

The question begged is this: what are the limits of journalistic privilege to pursue and make known to the public, Interesting Knowledge, about the government or its officials?

PDI's John Nery, Juliet Javellana Labog and Business World's Vergel O. Santos were talking to Ricky Carandang on ANC about the roles that journalists have played in the recent ZTE bribery scandal -- both as reporters and observers of the news, as well as makers of the news and active players in the unfolding events.

That is certainly true for Jarius Bondoc, whose sensational columns about sexcapades and golf junkets in China, and millions of dollars in bribery money focussed the spotlight on ZTE and the national broadband project early on. Together with Joey de Venecia and Romulo Nery testifying in the Senate, the scandal has already resulted in the accused broker, Benjamin Abalos to resign as chairman of the Commission on Elections this past week.

But by revealing Romulo Neri to be the source of his news-making columns early on in the ZTE scandal saga, Jarius Bondoc broke a rule of omerta that has so effectively sustained journalism's art of the Unnamed Authoritative Sources (which has been perfected by local practitioners in the highly effective and devious Science of the Kuryente.) Vergel Santos opines that Jarius Bondoc ought to be fired for such breach of journalistic confidentiality by the Philippine Star, upon whom he believes the onus now rests to clarify their policy on the matter of journalists divulging their sources of information.

Meanwhile, in the brewing brouhaha over PDI's allegations against Joker Arroyo at the Senate's executive session with Romulo Neri on Sept. 26. Juliet Javellana Labog swears sweetly never to reveal her own sources of information, who may or may not have been four Senators at the supposedly confidential executive Session of the Senate. (That's for her to know and everybody else to find out if they can!) John Nery says the newspaper "stands by their story" that Joker Arroyo intervened to prevent Romulo Neri from testifying further on his conversations with President Arroyo about the ZTE project.

Ricky and guests concluded that there is now way PDI can be compelled to reveal the source or sources of information on what transpired during the executive session.

What exactly is the Journalistic Privilege of Confidentiality? It seems to rest on a 1946 statute:

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.

Sec. 2. All provisions of law or rules of court inconsistent with this Act are hereby repealed or modified accordingly.

Sec. 3. This Act shall take effect upon its approval.

Approved, October 5, 1946

That's the entire Republic Act No. 53! It is upon this that our good pundits think they can withhold information from the Philippine Senate. Yet it is crystal clear that "a House or committee of Congress" such as the Senate or its Blue Ribbon Committee in executive session can vote to compel revelation of such information by finding it to be "in the interest of the State."

From the sounds of it, Ms. Labog has been advised by the lawyers of the newspaper that she stands on firm ground with RA 53! Yet, Joker Arroyo does not have to look any further than RA 53 for the power he believed the Senate must have to determine if one or more of their members broke the rule of omerta that the Philippine Senate lives by: the secrecy rule covering Executive Sessions. In other words the Senate could use Republic Act No. 53 to put Ms. Labog in jail for contempt if need be.

I would think this is only elementary fairness if PDI also expects the Senate to apply the same strict rules the Privilege of the Executive for example, that Romulo Neri has invoked on his conversations with President Arroyo.

Unlike the Journalist's Privilege, the Executive Privilege of the President is far more potent and also well-defined by last year's unanimous Supreme Court decision on EO 464, Senate vs. Ermita. Thanks to Miriam Defensor Santiago, we can distill all that English Composition to this: The executive privilege of the President generally covers critical information relating to national security and diplomatic secrets.

To hear our good pundits talk of course, there is no higher or more inviolable privilege than that of confidentiality between a journalist and his or her sources. Never mind that the story which provoked the current controversy involves the dissing of not one, but two other forms of privilege: that of the Senate to have its Executive Sessions kept completely confidential and that of the President's Executive Privilege, which happened to be the subject of the Senate's executive session.

The Philippine Daily Inquirer, says John Nery and Juliet Labog stand by their story that four different sources of information, who must remain unnamed of course, revealed what happened after the Senate went into executive session last Thursday to get Romulo Nery to explain the basis of his invocation of executive privilege over their particular conversations.

Tonight, Juliet Labog very clearly declared she would not reveal her sources for the leaked information. If she does and the Senate exercises its prerogatives under the Law, she will most likely be cited for contempt and go to jail. The New York Times reporter Judith Miller once spent some time in jail because she would not reveal the source of a story she wrote. That source turned out to be Karl Rove.

However in the present situation, the Swinging Door of Observation allows us to glimpse into what I like to call the Art of the Kuryente. This is the most refined form of journalistic practice that utilizes the Principle of the Unnamed Authoritative Sources to create a news story to which some public official or famous personality is bound to react. It's like delivering a sudden "ground" or electrical shock to someone. They just have to react. Now the "kuryente" story may be based on fact or fantasy or diabolically--both (who is to know with unnamed sources invoked), but achieves an excuse for newspaper editors to use it under the very liberal rubric that the Press can do anything it needs to, including making stuff up, in order to elicit "the truth" from public officials.

I'm all for the cleverest investigative reporting, but I wonder if this qualifies as that. Here we have what could be four Senators breaking the rule of secrecy around Executive sessions of the Senate (without which it would lose a very important tool of Congressional versight and hearings in aid of legislation. They feed a news reporter their version of what happened in Executive Session, which the newspaper is free to mash up and spin out in the most shocking manner possible to get maximum reaction. It is possibly an unethical act for the purported leakers, as Pia Cayetano piously promises to investigate.

To me it does not look like "investigative journalism" as such. What would be most disturbing is if ALL of the story were true! Just think. If there really were four Senators who leaked what transpired during the executive session, then they were just using PDI and Juliet Labog to perform unethical or even illegal acts. Unchecked, this would make the use of the executive session would be seriously damaged.

Of course all three major players in this latest twist to the ZTE story -- the Press, the Senate and the Presidency -- have some Sacred Privilege they are guarding, because the maintenance of it is necessary for the democratic principle of Check and Balance to work.

I agree with the latter, but it does not mean that Juliet Javellana Labog's journalistic privilege outweighs the Philippine Senate's demand for information in a hearing in aid of legislation, and for the confidentiality of its Executive Sessions.

In any judicial action, the interests that would have to be weighed are precisely those of the Journalistic, Executive and Senate privileges that have been put at loggerhead's by everyone's monumental immoderation in the exercise of the same.