The law on keeping secrets on Mamasapano

Truth remains elusive over three weeks after the ill-fated Mamasapano operation. Truth is a democracy’s most fundamental value. Much of our democratic infrastructure is necessarily dedicated to conveying truth to the ordinary citizen. Little in law stands in the way of truth. Indeed, much in law compels its disclosure.

Resigned police chief Alan Purisima frustrated Senate President Franklin Drilon and Sen. Miriam Defensor Santiago, two of the country’s most respected lawyers, by claiming he gave, not orders, but advice. Drilon sighed, “I give up!” and Santiago retorted, “Maniwala ako sa iyo (You think I believe you)!” I overheard two people joke, “Did you order adobo?” “No, that was only advice.” Such exasperation echoed across the archipelago.

Purisima prominently asked to seek clearance from President Aquino before answering whether he was the official who first informed him about Mamasapano’s horrifying outcome. Other requests for secrecy were made during the Senate hearings. Suspended Special Action Force commander Getulio Napeñas asked for a closed session when asked why his men turned over to US Federal Bureau of Investigation agents the finger taken from slain terrorist Marwan as a DNA sample. Peace Adviser Teresita Quintos Deles asked for the same to discuss the tricky relationship between the Moro Islamic Liberation Front and Bangsamoro Islamic Freedom Fighters. Finally, the MILF requested that its Mamasapano findings be presented in a closed session. Strangely, no requests for secrecy were made for artillery protocols and the lack of air assets in the area.

Inquiry in aid of legislation is a critical corollary to the grand power to make law, as the latter must be informed lawmaking. Everything can be connected to future legislation—Sen. Sonny Angara even pinpointed the paltry hazard pay of policemen sent into combat—and the unbounded scope of legislative inquiries makes them a key check and balance in our democracy.

There are two exceptions to the near-omnipotence of an elected legislator seeking truth. First, government may always withhold national security, military, or diplomatic secrets. It must, however, explain enough of the circumstances to allow the requesting legislator (or later, a court) to weigh them.

Second, the President may invoke executive privilege. This is an institutional privacy surrounding the President to allow his inner circle to have candid discussions with him with the comfort of knowing that they cannot be subpoenaed. It is necessarily implied because one sees how the presidency cannot function without it. The Supreme Court fortunately summarized executive privilege after the Senate arrested then Secretary Romulo Neri in 2008 to force him to testify on his conversations with then President Gloria Macapagal Arroyo regarding the national broadband project awarded to the Chinese company ZTE.

The first rule of executive privilege is that an official must explicitly claim it and have the President’s approval to do so. Secrecy is never presumed. Second, the official must be logically close to the President, such as a Cabinet secretary, and need the candor protected. Third, specific reasons must also accompany an invocation of executive privilege. A court may balance the reasons given, and the US Nixon case gave great weight to obtaining evidence, despite the privilege, for a criminal trial.

Finally, the sovereign people themselves have a separate right to information. Section 7 of the Bill of Rights provides: “The right of the people to information on matters of public concern shall be recognized.” We want a freedom of information law to facilitate this, but the law right in our Constitution has long been in force and underlies every televised Senate hearing.

Little in law justifies secrecy in ongoing congressional investigations. Against the backdrop of national security, we must balance how the Bangsamoro Basic Law is our generation’s most important legislative enterprise. Citizens must be informed, whether to let them voice opinions to their congressmen or to prepare them for plebiscites. The MILF’s credibility, for example, has become intertwined with the BBL for most citizens, and the country needed to gauge its peace negotiator Mohagher Iqbal and his message of restraint on national TV. Similarly, Deles will need to give some overview of the MILF’s cooperation in antiterrorism as differentiated from the BIFF, and we do not need the sensitive details. Na peñas will need to give some explanation of the FBI’s involvement, especially with persistent rumors of US puppetmasters.

Finally, Purisima cannot invoke executive privilege. First, he is not the President. Second, no one is asking about the President’s conversations and personal instructions regarding Mamasapano. The queries are peripheral to these: Who was in charge above the SAF level, who informed the President about the debacle, and when was he first informed? Executive privilege protects the presidency as an institution, not Purisima from Drilon and Santiago.

Truth’s protracted absence is crippling our great nation, and ignorance and bigotry are filling the vacuum. Grown men, from acting police chief Leonardo Espina to Autonomous Region in Muslim Mindanao Gov. Mujiv Hataman, have shed tears in frustration on national TV. If none of our leaders can step up with a confident, reassuring and complete account, then we can at least remove all barriers to the truth in whatever fragmented, convoluted form it has to come in. As John Milton wrote: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

* * *

React on Twitter (@oscarfbtan) and facebook.com/OscarFranklinTan.