THE AQUINO administration submitted last week to the House of Representatives Committee on Public Information its third version of a Freedom of Information bill. The same bill was also submitted to the Senate Committee on Public Information and Mass Media.
Apparently convinced that the administration had finally drafted a bill acceptable to the media and the public, Mr. Aquino himself announced its submission to Congress during his speech at the commemoration of the 112th anniversary of the newspaper Manila Bulletin, describing the Palace handiwork as “a substitute Freedom of Information Bill, which we believe addresses stakeholders’ desires to have more transparency and more access to information in government.” The word “substitute” is in reference to the bill’s being an alternative to the more liberal (and less problematic) Tañada bill the 14th Congress killed in 2010, about which the Aquino administration apparently has reservations.
“We want every other administration voted into power to work under the same standard of transparency and accountability that we have set for ourselves. This is a significant step toward achieving that goal,” Aquino added, addressing concerns over earlier drafts of the bill that administrations after his may interpret some of their provisions in favor of restricting rather than enhancing access to information.
The bill makes it a point to require the President, Vice President, members of the Cabinet, Congress, the Supreme Court, and Constitutional offices, as well as officers of the armed forces with general or flag rank, to disclose their Statements of Assets, Liabilities and Net Worth (SALN) by publishing these in the websites of their respective offices.
Despite Section 17 of Article XI of the Philippine Constitution (Accountability of Public Officers), which requires these officials to disclose their net worth, media organizations have been routinely denied requests for the SALNs of justices of the Supreme Court and other officials.
As recently as January this year, said PCIJ in three reports (“Accused, Accusers Mock Asset Records Law, SC justices, Ombudsman, House keep SALNs secret,” “A long, sad search for SALNs,” “SC, CA, judiciary score perfect zero on SALNs;”), it had been denied the SALNs not only of the justices of the Supreme Court but also those of the Ombudsman, the justices of the Court of Appeals — and 185 of the 188 Congressmen who signed the impeachment complaint against Renato Corona.
The administration bill’s making SALN disclosure mandatory through annual publication would eliminate the need to submit requests for information that at present involve meeting restrictive requirements including the payment of fees not everyone can afford to pay. It also indicates an attempt to observe United Nations standards on what constitutes an authentic access to information regime.
In addition to requiring pro-active publication of government-held information, UN standards also mandate a policy preference in favor of public access to information. The same standards also require limits to the types of information that may not be disclosed. The assumption is that laws that describe themselves as Freedom of Information laws could actually restrict access to information unless the above conditions, among others, are met.
The administration bill does declare in its Section 5 that “there shall be a legal presumption in favor of access to information”, but lists in Section 6 ten exceptions, or government- held information that may not be disclosed.
The list still includes exceptions media and civil society groups had objected to in earlier Malacanang versions, including information an executive order may describe as vital to national security, and/or as pertaining to the country’s foreign affairs. Instead of itself mandating a specific period after which the restricted information may be released, as is the case in the US FOI, the bill leaves it to the executive order to specify a “reasonable period, ” which could be anything from a few months to decades.
“National security” could also be interpreted so broadly that it has been used in this country as a catch- all justification for the denial of information. The experience of other countries also bears this out. Pakistan has a Freedom of Information act, but, according to Pakistani journalists, requests for information on, say, US drone attacks within Pakistani territory, are almost routinely denied by the government on the excuse that the information requested involves national security.
Equally problematic is paragraph (b) of Section 6, which excludes from disclosure, and therefore prevents the public from participation in policy debates, the discussion of policy options under consideration by government. The research data on which a policy is based, as well as the discussions that went into its formulation, may be released only after the policy is in place.
While the bill as submitted to Congress is admittedly an improvement over earlier Malacanang versions (a provision in an earlier version creating an Information Commission under the Office of the President has also been removed in the present draft), the above provisions are still problematic.
But the battle for public access to information—today universally recognized as a human right—is not limited only to the contents of the draft that Congress will finally consider. Congress is and has itself been a battleground in the 14-year fight for access to information, given many congressmen’s reluctance to reveal their assets and net worth as well as other information relevant to their public functions, despite the Constitutional mandate for such disclosure.
As the PCIJ and other media organizations’ experience shows, many of the country’s public officials apparently have something to hide, among them their involvement in transactions that may be in conflict with their public duties, or even the details of their personal lives that may have a bearing on how they do their jobs. In demonstration of this bias for opaqueness rather than transparency, the 14th Congress killed what would have been a nearly ideal FOI bill in 2010 through its members’ staying out of the session hall despite their paying lip service earlier to the need for its approval.
The possibility is therefore far from remote that, for all its imperfections, the administration bill may emerge from the Congressional mill as mangled and even as hostile to the purposes in whose behalf it was filed as other well-meaning bills. The even harder part than getting a reasonable FOI draft together is the FOI advocates’ following the bill through Congress, and seeing to it that whatever amendments are introduced enhance, rather than restrict, access to information as a human right crucial to the empowerment of the sovereign people in a regime that calls itself democratic.
Luis V. Teodoro is deputy director of the Center for Media Freedom and Responsibility, which is a member of the Right to Know Right Now FOI coalition. He is on Facebook and Twitter.