Notes on opinion writing

Last Saturday, I met with about a dozen highly engaged law school students to discuss opinion writing (mainly the writing of editorials) and online journalism. I used Inquirer editorials from the last two months as examples — it helped that the Supreme Court decision on the Neri case was then very much in the air; the examples proved doubly relevant. Herewith, some notes.
 


Some founding principles

“The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves, nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe.” Thomas Jefferson

As agent of the people, the most important function of the press in a free society is to inform and it cannot inform if it is uninformed. Chief Justice (then Associate Justice) Reynato Puno, in his dissenting opinion on In re Jurado, 1995

“The essence of journalism is a discipline of verification.” Kovach and Rosenstiel, The Elements of Journalism

The “intellectual principles of a science of reporting” (edited, from Elements)

Do not add.

Do not deceive.

Do your own work.

Be transparent.

Be humble.

Crafting editorials

1. Start right by attracting and retaining the reader’s attention. This is best done by providing an overview of the editorial position as soon as possible. In other words, summarize.

“The international relay of the Olympic flame was meant to be a grand passage through some of the world’s great cities, to dramatize the unity that animates the Olympic spirit and to herald the advent of Beijing as the newest capital of the Olympic movement. Instead, it has turned into a public relations nightmare.”   Torched, April 11, 2008

“The plan by some senators to file a motion before the Supreme Court asking three Justices to inhibit themselves from the Neri case is more trouble than it’s worth; it must be set aside. We can understand the sense of frustration that led to the plan, and the tactical considerations that seem to justify it, but we also fear that the motion will be seriously counterproductive.” Focus on consequences, April 10, 2008

2. Focus only on a few points (usually two or three). But be clear about which is the main argument. In other words, simplify.

“This is unfortunate, because Brion’s vote, especially as he explained it in a separate concurring opinion, adds political color to an already difficult political case. He has started his term in the court of last resort on the wrong foot.

But it is not only the question of political loyalty that hounds Brion’s decision. There is also the quality of his legal reasoning.” Man in the middle, April 4, 2008

“The cartel doesn’t have to work, however; its very existence, during a worldwide rice crisis, will be enough to cause Thailand’s reputation great damage.

But apparently, Samak’s government has been shopping the idea even with producers like India. He himself has tried to gloss over the cartel-like nature of the proposed alliance, refusing comparisons to the Organization of Petroleum Exporting Countries. “We don’t aspire to be like Opec, but we hope to be just a group of five to help each other in trading rice on the world market,” he told reporters.

Could Thailand define “helping each other” as fixing rice prices downwards? That’s possible, but a Thai initiative to lower prices (which have already doubled since last year) will get Samak’s political party in trouble with its base of rural farmers.

Which brings us to the point. Thailand’s Orec proposal is motivated not by national interest but by political greed. As the Times of India noted in a report: “The Thai move is evidently aimed at buttressing the fortunes of the ruling party, which depends on rural support, by hiking support price for farmers.” In other words, it makes political capital out of the world’s current, rice-related misery.” Mekong mafia, May 5, 2008

3. Build the case on facts, which you must select judiciously. Limit the supporting proof to a handful of the most solid. In other words, substantiate.

Presumptuous, April 3, 2008

Are all Senate inquiries void, because the rules of procedure governing them have not been recently republished? The President’s election lawyer thinks so; Romulo Macalintal drew the sweeping conclusion soon after the controversial Supreme Court decision in Neri vs Senate Committee came down. The day after Macalintal, it was Executive Secretary Eduardo Ermita’s turn to extrapolate from the new ruling. Officials of the Executive will skip future inquiries, he said, because they can be considered to be legally invalid.

It is difficult to imagine any member of the Supreme Court expecting the decision in the executive privilege case filed by Romulo Neri to lead to this exact turn of events. No one so much as suggested that the Senate stop all its inquiries, because of the failure to publish the rules. Inquiries in aid of legislation are not only expressly provided for in the Constitution; they are fundamental to the work of both houses of Congress. What the 10-vote majority voided were only the Senate’s contempt citation and arrest order against Neri.

But the law of unexpected consequences is unforgiving. There is no appeal.

There is no appeal, if the Executive itself encourages the wrong interpretation of a controversial decision. “All along the Senate has been conducting its hearings but it turns out they have yet to publish their rules of procedure,” Ermita said. “So, it turns out all their hearings can be considered constitutionally infirm.” But in fact the Supreme Court did not say this. It had limited itself to the “subject proceedings” —- that is, the hearings being conducted by three Senate committees on the National Broadband Network, in the inquiry Neri testified in.

If in fact all Senate inquiries are invalid, what happens (to choose one legislative measure the Arroyo administration wants passed) to the Japanese-Philippine Economic Protection Agreement? By Ermita’s vested-interest logic, the hearings conducted on Jpepa must be considered to be constitutionally infirm too.

Ermita said his legal team had prepared the opinion behind the recommendation that Senate inquiries be skipped; we think the opinion, because it was transparently tailored to fit the recommendation, is not only presumptuous. It is dangerously presumptuous.

Here’s the crux: the administration argues “presumption of regularity” when its actions are questioned or limited or even voided by the courts. But it does not extend the courtesy of the same principle to the Senate. By extrapolating a conclusion favorable to its political fortunes (that is, avoid Senate inquiries), the administration demonstrates a barely concealed contempt for a co-equal but inconvenient branch of government. If, as the administration believes, presumption of regularity were the touchstone of democratic governance, then surely (by the administration’s own logic) it must apply to other agencies of government?

The ruling in the Neri case makes a special point of referring to the Solicitor General’s argument that “every Senate is distinct from the one before it or after it.” The ruling accepts the “explanation” as its own. “Since Senatorial elections are held every three (3) years for one-half of the Senate’s membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit,” the Solicitor General argued.

We agree; it may enact a different set of rules. But the Senate may also decide not to do so. The great flaw in the Solicitor General’s thinking is the failure to appreciate a crucial distinction between the House of Representatives and the Senate, a distinction made by the Constitution itself. The Senate, precisely because only half of its seats are at stake in every election, is a continuing body. That is a reality the Solicitor General recognizes but glosses over; that is why the language used is “may,” not “should.” The Senate has the discretion (and the House does not), because it is a continuing body (and the House is not).

That the Senate did not republish its rules is not an omission, but a decision. To borrow the administration’s favorite line of argument: Why shouldn’t it be presumed regular?

Man in the middle? April 4, 2008

It is unfortunate that new Supreme Court Justice Arturo Brion decided to join the voting on Neri vs Senate Committee. Nothing prevented him from taking part, of course, nothing except delicadeza. He was named to the high court after the oral arguments on the executive privilege case were heard; he had served on the Cabinet and beside Romulo Neri, in whose behalf Executive Secretary Eduardo Ermita had claimed exercise privilege, as recently as a few days before the vote. He could have opted out —- and no one would have thought less of him.

As it is, both his vote and the majority decision have been roundly criticized as prioritizing privilege over right: the so-called presidential communications privilege implied in the Constitution, over the right and duty of the Senate to conduct investigations in aid of legislation, expressly granted by the Constitution.

This is unfortunate, because Brion’s vote, especially as he explained it in a separate concurring opinion, adds political color to an already difficult political case. He has started his term in the court of last resort on the wrong foot.

But it is not only the question of political loyalty that hounds Brion’s decision. There is also the quality of his legal reasoning. He sees, rightly, that the Neri petition “involves a frontal clash between the two great branches of government —- the Executive and the Legislature.” But he also imagines Neri as haplessly entangled between the two great branches: “Caught in between, although identified with the Executive, is the petitioner … I point this out because in this frontal clash the law expressly recognizes the man in the middle —- Neri —- as an individual whose rights have to be respected and who should therefore be given sufficient focus as an individual in this Court’s consideration of the issues.”

This is an interesting view, but ultimately untenable. We say so not because of a lack of concern for the man in the middle; this newspaper has had the privilege of fighting for the rights of individual citizens from the beginning. We say so because Neri, the petitioner at the center of the most important executive privilege case in our history, is emphatically not in the middle. He is not, as Brion quaintly understated it, merely “identified with the Executive.” In the great clash Brion describes, Neri IS the executive. He represents the President; he is claiming executive privilege on behalf of the President. To think that Neri is a mere bystander, trapped and helpless in a death struggle among giants, is to mis-appreciate the factual situation. (Unless, of course, ex-labor secretary Brion is telegraphing us something about the actual dynamics within the Cabinet he was so recently a part of.) 

That Neri’s rights may have been violated is not a minor matter; Justice Antonio Carpio’s separate opinion lays down a closely reasoned argument for it. We, like many, are not entirely persuaded, but the argument is cogent and forceful. And in all truth, Brion’s defense of the citizen as “man in the middle” makes for sometimes stirring reading.

But Carpio did not subordinate institutional issues to individual ones; he treated them separately. Brion’s defense of the right of all officials to keep official communications confidential seems to be a mere adjunct to, a mere afterthought of, his attack on a Senate “engaged in shortcuts.” In other words, his decision suggests that the most important executive privilege case in our history is not about the Executive’s exercise of the privilege, but about the Senate’s alleged violation of the rights of the official who claimed it.

He writes: “The rights of petitioner Neri —- the individual —- were grossly violated by Senate action in contravention of the constitutional guarantee for respect of individual rights in inquiries in aid of legislation.” But even if this argument were valid, it is not only possible but necessary to treat the issue of executive privilege separately (as, in fact, Carpio did).

Brion’s patchwork argument on the central issue of privilege flows from his low regard for the Senate action, and is fatally inconsistent. He argues that content is irrelevant, except when crime is involved. But unless the crime is proven, he adds, then “disclosure cannot be compelled.” Sounds like a man in a muddle.

4. End strongly. Research shows the point of greatest emphasis in most writing lies at the end. If you can, wrap the argument in a neat ribbon. Or, to use another metaphor, swing for the bleachers.

“Enough of these games. If China is ready to take a leading role in the community of nations, it must learn to be open not only to market forces but also and especially to international opinion. Those protesters lining the streets in some of the world’s great cities should not be ignored or their very existence denied; their concerns—-the freedom to choose, the right to a life of dignity, the way of peace—-are themselves an eternal flame.” Torched, April 11, 2008

“The Philippines, which hosts the International Rice Research Institute, where Thai rice farmers learned the science of higher rice productivity, should demand a stop to the Orec initiative. It is not enough that we ask Thailand and Vietnam to guarantee the continued flow of rice imports; we must force Thailand to reconsider its proposal, because it is against the very spirit of Asean solidarity.

At the same time, the Philippines must devote its energies to achieving rice sufficiency soonest. We may be the top rice importer in the world, but we are not laggards in rice productivity; in fact, we have been increasing production since 1998. We simply have too many mouths to feed, and not enough land to grow rice on. But Thailand’s Orec provocation should clarify our options, like a date with an executioner.” Mekong mafia, May 5, 2008

“In other words, independence is not merely a matter of black-letter law, something granted once and for all time; it is also a matter of personal character, something each of us wills into being.

Thus, the Neda employees’ transparent faith in institutions —- top management, legislative mandate, constitutional guarantee —- is an admirable republican virtue, but it is hardly the only one. It must be matched by the action of conscientious citizens, a responsive public opinion, a responsible press.

Indeed, democracy works only when it is founded on moral virtue. Character MAKES community. That makes the choice before Neda employees stark: If top management declines to release the necessary documents to the public, are they ready to do it themselves?” A cry for help, May 23, 2008

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