Duterte narcolist: To publish or not to publish

Since the start of the drug war, Filipinos have grown wary of the narcolist — a compilation of names of drug suspects that many people on the list feel have marked them for the slaughter.

Public dread has not stopped the government from publicizing one list on Aug. 7, 2016 with 158 names, and another with 207 on April 30, 2018, weeks before the May barangay elections.

Some of those named — mostly local government officials and policemen — ended up dead, including five mayors who were tagged as narcopoliticians.

President Rodrigo Duterte has given the go-ahead to release a third list containing about 100 names before the May 2019 national elections, to identify the people who should not be elected.

“We cannot allow (our government) to be run by destroyers of society,” presidential spokesperson Salvador Panelo said, justifying its publication.

If people on the list feel “libeled,” he said they can “always go to the courts.”

But what are the legal liabilities of the government and the media if they publish the list?

“A lot,” according to University of the Philippines constitutional law professor John Molo.

There should be “no room for error” in compiling names on the list, otherwise those responsible for it could face a slew of criminal and civil charges, he said.

Molo said the state “has always been in the business of compiling lists” but had kept them as internal documents.

Possible liabilities

“Constitutionally, (making a narcolist) is a valid effort and compiling names is not illegal,” he said. “The interesting question is whether it is valid to release it during the election period.”

Integrated Bar of the Philippines (IBP) president Abdiel Fajardo said announcing the names of people on the narcolist carries three possible liabilities: criminal liability for libel under the Revised Penal Code; civil liability for tort under the Civil Code; and administrative liability if a government functionary were involved.

The first remedy for those named is to file libel charges against the people who drew up or publicized the list, said human rights lawyer Romel Bagares.

But proving guilt may not be so easy because reporting on the list “may qualify as privileged communications as an adjunct of the freedom of the press to report matters of public interest,” Fajardo said.

Constitutional law expert Tony La Viña is even more definitive. “(The media) is never liable for reporting government information,” he said.

La Viña also said it would be hard to pinpoint anyone accountable “because there is presumption of regularity” in drawing up the list.

A two-pronged test is needed to establish libel, Bagares added.

First is knowing falsity — running the list despite knowing it is “utterly false.” Second is reckless disregard for the truth — by not “counterchecking” what is to be published.

“There is a high threshold for this,” Bagares said. “But even then the media should not be simply echoing what the government is saying and be critical of its reasoning.”

Fajardo and Molo agree that public officials responsible for the list could be held liable for violating the Antigraft and Corruption Practices Act, specifically Section 3(e), in “causing any undue injury to any party … through manifest partiality, evident bad faith or gross inexcusable negligence.”

They could also be charged with incriminating an innocent person (Article 363) and intriguing against honor (Article 364) under the Revised Penal Code.

Police officers found negligent in helping draw up the list could be held liable under the National Police Commission’s Revised Rules of Procedure, Molo added. They could be slapped with a range of penalties, from forfeiture of salaries to rank demotion and summary dismissal.

Proof before publishing

All the legal experts agree that the right to due process of those listed would be violated. They, however, stopped short of saying the government should not release the list.

Nonoy Espina, president of the National Union of Journalists of the Philippines, urged the media not to publish until there was unassailable proof of the guilt of the people listed, and after the state had filed charges against them.

He said the media should be wary of being “complicit to what amounts to mass murder.”

Msgr. Meliton Oso, Iloilo coordinator of the Parish Pastoral Council for Responsible Voting, said those on the list were likely to be targeted by “fanatics” or vigilantes who have been executing drug suspects gangland style.

‘Trial by publicity’

He said the government should first bring those on the list to court, citing former Iloilo City Mayor Jed Patrick Mabilog who has not been charged since being named by the President as a drug protector three years ago.

Mabilog and his family have fled the country, fearing for their safety.

Jonnie Dabuco of the Commission on Human Rights in Western Visayas said filing charges would allow the people on the list to answer the allegations, but releasing the narcolist before then would be tantamount to “trial by publicity” and “witch-hunting.” —With a report from Nestor P. Burgos Jr.