How we can break free from the ‘Napolist’

Have our leaders given up prosecution and resigned themselves to floating names in the media, noting the chaos wrought by the multiple incarnations of the “Napolist”? The deluge of useless information underscores the need to make real our right to information. A freedom of information law would have muted the present circus.

We are all frustrated that hardly anything has happened since the spontaneous rally against the pork barrel in Luneta last August and the Supreme Court’s antipork decision last November. We would desperately take even useless information as progress, which is why we demand the list of suspected pork barrel operator Janet Napoles. After its seeming fission into multiple versions, we might be reminded of the Internet slogan, “Information wants to be free.” Or better yet: “Getting information off the Internet is like taking a drink from a fire hydrant.”

The Napolist has bizarrely held us hostage to useless information. Shortly after signing a Senate blue ribbon committee report naming his half-brother, Sen. JV Ejercito was himself tagged in one of the Napolists. So was former senator Manny Villar, who was a billionaire before he ran for public office. Anyone can make a list, argued Sen. Miriam Defensor-Santiago, who crudely demonstrated this by citing her list of “closeted gays” that included a certain “Pinky Lacson.” And names can be removed, as Sen. Francis Escudero accuses Justice Secretary Leila de Lima of doing as he attacks her for allegedly lawyering for Napoles and editing her still unreleased affidavit. At this point, all I want to hear from an honorable senator is that his/her office will publicize its financial records (I am happy to have seen that from Senate President Franklin Drilon and Sen. Sonny Angara).

Seeking real information, Napoleon Arenas Jr., counsel for the Pangasinan Press Club, invoked the constitutional right to information to force De Lima to reveal the “real” list. This was fascinating because the high court may well have agreed. Although the Senate quickly obtained and publicized De Lima’s list, Arenas’ petition might be adapted for future installments.

Our Bill of Rights reads: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

This right has two separate sentences and the difference between the two is crucial. “Access to official records” is regulated by law. Access to “information on matters of public concern,” however, is a clear right. Further, making the Napolist a part of court records precludes libel suits.

Against this right to information, the administration might invoke “executive privilege,” defined by the high court in the Romulo Neri case as a privilege “to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies,” lest the President be deterred from seeking advice. I doubt our President will invoke this because his predecessor, Gloria Macapagal-Arroyo, was accused of abusing it (Neri was one of her Cabinet secretaries).

Normally, we would have considered the Napolist a confidential part of ongoing prosecution. However, with De Lima revealing the list’s existence and the confusion caused by the release of alleged copies of the list by other sources, the rationale for confidentiality seems moot.

As the Napolist is increasingly a “matter of public concern,” independent of its truth, Arenas’ suit is quite intelligent, and that is what scares me. It should cause worry that the right to information has not been fleshed out and courts may inevitably become entangled in what has become a political controversy. It seems empowering to vest in every citizen a power of inquisition comparable to a senator’s, but it also vests in the high court free rein to mark the contours of such a remarkable power. Perhaps Congress should consider the Napolist a catalyst to push the overdue FOI bill. Lawmakers may as well prescribe what kinds of information must readily be disclosed and how, unless they prefer that courts do it for them.

Perhaps the Napolist would not hold our society hostage had we a real FOI framework. With the press of a button, citizens should be able to pull up their favorite senator’s pork barrel allocations and immediately determine whether his/her inclusion in a list is credible. Indeed, I clicked on a tweet by Angara and received the itemized list of his pork allocations since 2004 (his election as a congressman). This is a gold standard of governance we must demand, more than an ad hoc transparency dependent on individual leaders’ integrity or court orders.

The right to information is not new. It is a great legacy distilled from a series of high court cases initiated by the late public crusader and former solicitor general Frank Chavez. But until Congress passes the FOI law, it falls to independent bodies such as the high court, the Commission on Audit and the Office of the Ombudsman to make our right real. They can readily free us from our Napolist-induced paralysis by having all relevant information uploaded to the Internet. The numbers, and not the Napolists’ self-styled guardians, should speak for themselves.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.