The Philippine Online Chronicles

Who needs a law to strangle our necks?

Early this year, Undersecretary Manolo Quezon of the Presidential Communications Development and Strategic Planning Office announced that President Benigno S. Aquino III finally gave marching orders for the passage of a Freedom on Information (FOI) Law. (Read Malacanang's primer on the substitute FOI Bill here.)

In a report by abs-cbnnews.com, Quezon said the bill “will provide for the full disclosure of government transactions and assure every citizen access to public records subject to a few exceptions.” "The citizenry and the media have a right to information. Therefore, any grounds for rejecting any request for information is in the nature of an exception but the general rule must be (information is) yours to obtain," he said.

The announcement came after advocates of FOI bill criticized the Aquino administration for sitting on the legislation. So, what’s the catch?

Malacanang will submit the Palace version of the bill to Congress and, Quezon said, they leave it to its leaders to make amendments. What are the salient points in the Palace’s draft? A glance would reveal a long list of exceptions.

The biggest flaw, however, is the removal of public interest override in executive privilege. During a policy forum organized by the Center for Media Freedom and Responsibility (CMFR) in July last year, Quezon said the executive communications privilege should remain inviolable.

Presidential communications privilege or sometimes referred to as deliberative process are privileged conversations and correspondence between the president and public officials. In the past, this was used by the Arroyo administration, through Executive Order 464, to withhold information pertaining to the anomalous national broadband network deal.

Quezon said that among the exceptions are : 1) the records of minutes and advice given and opinions expressed during decisionmaking or policy formulation as part of the Chief Executive’s deliberative process. Once policy has been formulated and decisions made, minutes and research data may be made available for disclosure unless it is made in executive session; and 2) the information requested is obtained by any committee of either House of Congress in executive session.

In his article titled “Executive privilege versus public interest,” posted by the Philippine Center for Investigative Journalism (PCIJ), lawyer Nepomuceno Malaluan, co-convenor of the Access to Information Network (ATIN), said: “The claim of a generalized interest in confidentiality of the president’s conversation must also be weighed against the right of people to information on matters of public concern.”

Malaluan cited the Supreme Court decision in Senate vs. Ermita:

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.

x x x

x x x

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

I am not saying that Aquino will do an Arroyo but why did the Palace remove from the original versions of the bill the public interest override in executive privilege? If he has nothing to hide, transparency should never be a problem.

Moreover, as correctly pointed out by Luis V. Teodoro, CMFR deputy director, in his paper titled “Enhancing or restricting access?” the provisions forbidding the release of information on policy discussions until the adoption of a policy is “antithetical to the principle of citizen participation in the making of state policy.”

Also exempted are information consisting of drafts of orders, resolutions, decisions,

memoranda or audit reports by any executive, administrative, regulatory, constitutional,

judicial or quasi-judicial body in the exercise of their regulatory, audit and adjudicatory function. Again, the point raised by Teodoro, also former dean of the University of the Philippines College of Mass Communication, holds water.

Another provision in the Palace draft states that also exempted are information pertaining to the foreign affairs of the Republic of the Philippines, when its revelation shall/may unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation…”

Negotiations of the Philippine government with other countries, especially those relating to the economy or military sphere are of public concern. A case in point is the reported ongoing negotiations in Washington regarding stronger US military presence in the country. The Filipino people should not be kept in the dark regarding such important matters.

Also revolting is the replacement of “national defense” with “national security” in the Congress versions of the bill as grounds for invoking exceptions.

In the past, “national security” has been used by the military in denying access to camps where abducted activists were suspected of being hidden. Even with the inspection order granted by the courts in amparo petition cases, the military, in many cases, chose to ignore requests for visits by the families of the disappeared. This is true in the case of Karen Empeño and Sherlyn Cadapan, Melissa Roxas, James Balao, Jonas Burgos, Romulo Robinos and many others. In a few camps, the relatives were allowed to enter but they were not given access to all of the premises and facilities, defeating the purpose of finding their missing loved ones.

These, among other exceptions, make the Palace bill a rope that strangles citizen’s right to information.

You ask how then can we assert our right to information?

The 1987 Philippine Constitution guarantees this right. As stated in the Bill of Rights, Article III, Section 7 to information:“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 limitations as may be provided by law.”

Declaration of Principles and State Policies, Article II, Section 28 also states: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

A good FOI law would strengthen this Constitutionally-guaranteed right but a bad one that goes against the principle of maximum disclosure, would curtail this right even more.

Image from Why We Protest website. Some rights reserved.