Protecting news sources: The unfinished battle

At this writing, the congressmen are still deluding themselves that they can get former Commissioner on Elections Virgilio Garcillano to talk about alleged tape conversations with President Gloria Macapagal-Arroyo.

They’re going in circles with alleged legal luminaries among the legislators lecturing on profound points of law, jurisprudence and procedural rules on House investigations. I’m bored to tears. I’m sure the congressmen think they’re performing for history. I’ll leave them to their illusions.

Garci hasn’t said anything of any real substance yet, except to read his list of Representatives and Senators who he says called him up during the last elections. He won’t say what they talked about except to insist that the subjects of the conversations were not inappropriate or improper, much less illegal. Despite threats to cite him in contempt of the House, he’s sticking to his announced plan to refuse to answer questions having to do with what he claims were audio tapes obtained through illegal wiretaps.

I doubt that this will go anywhere, at least today. If and when warranted, we’ll return to it. It’s a good time to tie up loose ends in our previous columns on the right of journalists not to reveal confidential news sources, a subject which may have graver implications on our democracy than the current circus surrounding Garci.

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One might conclude that the passage of Republic Act No. 1477 on June 15, 1956, amending R.A. No. 53 to replace the phrase "interest of the State" with "security of the State" removed any problems journalists have had keeping the identities of their sources for news and other information confidential. One would be wrong.

As recounted in our last two columns, the amendment of R.A. 53, the so-called Sotto Press Freedom Law, was probably a reaction to the imprisonment of five reporters in December 1955 for contempt of court. The reporters had refused to reveal the source of their news report of an alleged extortion attempt to change the decision of the Pasig Court of First Instance (now the Regional Trial Court) in a murder case involving then Secretary of Defense, and concurrently Secretary of Justice, Oscar Castelo.

In that lower court case, CFI Judge Emilio Rilloraza ruled that the reporters could be compelled to reveal the identity of their source because such was demanded by the "interest of the State." In accord with the Supreme Court’s decision in In Re Parazo (82 Phil 230), discussed in our last column, that phrase in R.A. 53 was not limited to national security or public safety situations. The phrase "interest of the State" included matters of national importance such as principal functions of Government like the administration of justice. Judge Rilloraza ruled that the administration of justice would be obstructed by the reporters’ refusal to disclose their source for their news reports.

It would appear that raising the standard of evidence from "interest" to "security" of the State would make it considerably more difficult to require journalists to reveal their sources. After all, the Supreme Court did say in the Parazo case: "The phrase ‘interest of the state’ is quite broad and extensive. It is of course more general and broader than ‘security of the state.’ ’’

But does the standard "security of the State" mean that even if a matter is one of national importance, but does not affect national security or public safety, no court or legislative or administrative body may compel such disclosure, much less hold a refusing reporter in contempt and therefore subject to sanctions, including deprivation of liberty? Specifically, does substituting the word "security" for "interest" mean that even if disclosure may be in the national "interest," in that it furthers the efficient and orderly administration of justice, but cannot be said to affect national "security," a reporter may no longer be required to reveal his source?

Logically, it would seem so. One might even argue, somewhat optimistically, that the 1955 case of the five reporters – Joe Aspiras, Francisco de Leon, Manuel Salak, Gregorio Coronel and Max Edralin – couldn’t happen again because of R.A. 1477. That, however, has not proved to be the case.

To begin with, the Supreme Court clearly has not yielded its "inherent power" to respond to perceived assaults on its integrity with contempt citations, and the corresponding imprisonment.

In the Parazo case, the Court specifically said: "In support of if not in addition to the power granted by Section 1 of Republic Act No. 53 to this Court, we have the inherent power of courts in general, specially of the Supreme Court as representative of the Judicial Department, to adopt proper and adequate measures to preserve their integrity, and render possible and facilitate the exercise of the their functions…"

Fr. Joaquin Bernas, S.J. asked in his authoritative work on the Constitution whether the amendment of R.A. 53 by R.A. 1477 "can affect what the court claims to be its ‘inherent power.’" Apparently not. In the 1995 administrative matter involving Emil P. Jurado (243 SCRA 299), which we will discuss in greater detail on another occasion, the Supreme Court reiterated its "inherent power to punish for contempt to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court."

Moreover, the Court in the Jurado case said that R.A. 53, as amended by R.A. 1477, "confers no immunity from prosecution from libel or other sanction under the law. This is because while the journalist has " the right to refuse (or not to be compelled) to reveal the source of any news report…revealed to him in confidence," the law is also "quite unequivocal that the right to refuse to disclose sources is without prejudice to liability under civil and criminal laws."

The Supreme Court held Emil in contempt for "gross irresponsibility" in his criticisms of the Court and lower courts. He was fined the princely sum of P1,000 which Fr. Bernas says is "hardly an amount to deter obstinate critics."

The journalists’ battle to keep sources confidential continues. Perhaps there is some hope in the eloquently argued dissent of Mr. Justice Reynato Puno in the Jurado case. Justice Puno said: "I fear that the majority opinion will weaken the press as an informed and informative source of information of the sovereign people." Moreover, "the equation chosen by the majority has the pernicious effect of hobbling the writing hand of newsmen and of chilling the sources of information of the press."