Column: Breaking the code of confidentiality

Published October 9, 2007

If you don’t include Lito Lapid (that’s Sen. Manuel M. Lapid to you), only one senator of consequence has been avoiding the Senate hearings on the National Broadband Network and the ZTE deal. Last week, Sen. Edgardo Angara called up from sunny Cebu to explain why.

The law firm he founded is the retained counsel of ZTE Corp, he said, referring to the ACCRA law firm. “Since the issue is all about conflict of interest,” he said, perhaps it was best to give the hearings a wide berth. Besides, he added, there was so much work on the budget that needed to get done.

* * *

The 2nd Inquirer Briefing takes place tomorrow. If the first get-together of CEOs, diplomats, opinion leaders and Inquirer columnists last July was any indication, the 2nd Briefing will be another slam-bang policyfest, with the discussion (like many a thrilling game in the recently concluded UAAP season) going into overtime. Wednesday’s topic is something close to the Inquirer’s heart: education. More specifically, it is how to make sense of current initiatives in education. Should be (wonky) fun.

* * *

Aside from Sen. Joker Arroyo, another senator has also sought an investigation into the circumstances of the executive session the Senate held late on Sept. 26. In fact, Sen. Panfilo Lacson filed his measure (Senate Resolution No. 164) ahead of Arroyo’s (SRN 165) — albeit on the same day, Oct. 2.

A comparison of the two resolutions is not only instructive in the ways of the Senate; it is also revealing in its accidental self-portrait of the two sponsoring senators. (You don’t have to take my word for it. Both measures are available online, together with the Rules of the Senate, at www.senate.gov.ph.)

Arroyo’s precisely worded resolution takes aim at a wider target: “the violation of Rule XLVII and/or other rules of the Rules of the Senate on executive sessions during the Sept. 26, 2007 proceedings.” Lacson’s employs almost similar language, but is actually much more limited: “investigate the Sept. 26, 2007 ‘executive session’ of the senators where an uninvited guest allegedly hindered the testimony of a witness and the subsequent publication of what supposedly transpired in the said session.”

In the parade of “Whereas” clauses, Arroyo’s SRN 165 already establishes certain facts: 1) “Almost all the senators were present in that Executive Session.” 2) “Budget Secretary [Rolando] Andaya and Deputy Secretary Manuel Gaite attended because Senator [Alan Peter] Cayetano, the Blue Ribbon Chair, said that Mr. [Romulo] Neri can bring his lawyers. Blue Ribbon Director-General Rodolfo Noel Quimbo was also present.” And 3) “at the start of the executive session, Senate President [Manuel] Villar reiterated the longstanding rule that anything said in the meeting stays in the meeting, nothing can get out.” (Hmmm. Rather like Las Vegas.)

Other clauses in SRN 165 are not as fact-driven. Arroyo posits motherhood statements (“the Senate must conduct an inquiry … otherwise, no one will believe the confidentiality and sacrosanctness of executive sessions”) or contentious assertions (“the Inquirer has been at the forefront of the campaign to compel Sec. Neri to reveal his confidential conversations” — a claim that surely columnist Jarius Bondoc of the Philippine Star will contest).

* * *

Lacson’s SRN 164, however, has a curiously phrased premise (I’ve fixed the annoying typos): “Whereas, according to newspaper reports, Budget Secretary Andaya who was not even invited in the supposed executive session entered the Senators’ Executive Lounge and represented himself as the legal counsel of Secretary Neri.”

According to newspaper reports? Lacson’s use of the generic attribution makes us wonder whether he was even present at the executive session. What’s going on here? Perhaps this is merely a non-lawyer’s excessively cautious attempt to insulate himself from legal sanction.

But in the very next clause, Lacson raises a novel legal point: “the presence of Secretary Andaya in the said meeting even without a proper invitation from the Senate could render said executive session academic.” Does an executive session, convoked expressly as such by the Senate President, cease to be one when an improperly invited guest materializes inside the room? That seems to me to give too much leverage to any Eduardo, Leandro or Sergio from Malacañang.

The result is ironic: The non-lawyer’s resolution is more legalistic, and inadvertently opens a legal loophole.

* * *

That, in part, is why Arroyo, ever the lawyer, asked Inquirer’s Juliet Javellana to identify her sources not on legal but on moral grounds. I sympathize with Joker — “for me he will always be the man in robes, defending my father,” I heard Sen. Benigno Aquino III gallantly say of him once. But I believe he is wrong when he argues that “the Inquirer cannot maintain the moral high ground if it will not allow Ms Javellana to reveal her sources.”

Stripped to its essence, Arroyo’s argument from morality encourages journalists to right a wrong (the alleged leak in the Senate) by committing another wrong (breaking the journalistic privilege).

Reduced to its essentials, Bondoc’s parallel decision to reveal some of the information Neri had told him in strictest confidence privileges his appreciation of the public interest over his duty as a journalist. I sympathize with him; it could not have been an easy decision. But esteemed colleague Ellen Tordesillas’ defense of his decision — “If Bondoc’s disclosure of Neri’s confidential information leads to the downfall of Arroyo, well and good” — tells me what is wrong with it. What if it doesn’t lead to her downfall? What then? The decision is “good” only because of a reason extraneous to journalism.

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