New EO issued to keep gov’t secrets: A Kind of Hush

New EO issued to keep gov’t secrets
A Kind of Hush
By Don Gil K. Carreon

THE GOVERNMENT is entitled to have its secrets,” says former senator Francisco Tatad, who as an information minister during the Marcos years, must have been privy to stories that the public will probably never know.
But Tatad is also aware that with this right goes another—the right of the public to be informed. On May 21, 1993, Tatad was one of six senators who filed Senate Bill 1242 or “Access to Official Information Act of 1993.” The bill was meant to ensure the constitutional right of citizens to be informed of all government transactions involving public interest, while at the same time recognizing the state’s right to prevent the unauthorized disclosure of official secrets. The proposed law, however, did not pass the Senate.
President Gloria Macapagal Arroyo is also aware of these two rights—the right of the government to keep secrets and the right of the public to be informed—but seems keener on upholding the first. Last March 30, Arroyo issued Executive Order (EO) 608, instituting a national clearance system for government employees who have access to classified information. The reason cited for the EO was the constant risk faced by the government of being infiltrated by a group or an individual with intentions that may be inimical to the national interest.
The system requires those with access to classified information to undergo a comprehensive background check before being issued an interim security clearance by the heads of their offices. The clearance will, however, still be reviewed by the National Intelligence Coordinating Agency (NICA) and subject to final approval by Office of the National Security Adviser (NSA). The approved clearance will include its expiration and access level limitations.
The EO states that leaking of classified information without proper clearance “shall be considered a grave offense and shall be punishable in accordance with civil service rules and regulations.” As such, an employee can be removed from service and charged with a criminal or civil suit.
PJR Reports tried to get the side of NSA chief Norberto Gonzales but he was unavailable for an interview. On the other hand, an official from NICA deferred commenting on the issue until Malacañang has convened a committee that will discuss the EO’s implementing rules and regulations.

Doing a Marcos
According to a statement from the Access to Information Network (ATIN), EO 608 appears to be harmless, but since it also refers to Memorandum Circular (MC) No. 78, “its deviousness becomes plain.”
The EO wrongly states that MC 78, which lays down the guidelines for the classification of information, was issued in 1978. It was actually issued on Aug. 14, 1964, by Arroyo’s father, former President Diosdado Macapagal. Classified infor-mation may then be categorized as restricted, confidential, secret, and top secret in order of importance. Combined with EO 608, classified information will be accessible only to those with security clearances.
On July 19, 1968, under former President Ferdinand Marcos, MC 78 was amended by MC 196, which adds other security measures in handling classified information. The ATIN statement said that MC 78 was invoked again only on Sept. 3, 1984 in Letter of Instruction (LOI) No. 1420, which repeated that government personnel who reveal classified information to the public or the media will be penalized. The ATIN statement added that LOI 1420 was a “measure to further constrict information at a time when the challenge to the Marcos dictatorship was gaining momentum.”
There is, however, one big difference between the Marcos-era  security clearance system and the one under Arroyo. As pointed out by Tatad, LOI 1420  was limited to the defense and foreign affairs establishments while Arroyo’s EO 608 will cover the entire bureaucracy.
Jose Pavia, general manager of the Philippine News Agency during the Marcos years, said that while journalists had it harder then, with the censors looking over their shoulders and guidelines defining which stories were off-limits to media, the efforts by the executive department to keep certain information away from the media and the public are similar.

Policy shift
After the fall of the Marcos regime, the Aquino government adopted policies that sought to increase government trans-parency. Article III, Section 7 of the 1987 Constitution states that, “The right of the people to information of matters of public concern shall be recognized. Access to official records and 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.”
In 2002, the Southeast Asian Press Alliance found that despite the absence of a law on freedom of information, the Philippines was one of the most open countries in the region.
Then came Arroyo.
Lawyer Nepomuceno Malaluan, ATIN co-convenor, said that the problem used to be how to make the constitutional guarantee of access to information fully functional. Today, he said,  “Under the Arroyo administration, we have moved toward greater secrecy as an institutional position.”
Vincent Lazatin, executive director of Transparency and Accountability Network, said EO 608 was a step backward for the advocacy of right to information.
“Philippine jurisprudence has been clear about the fact that individual government agencies are actually without the discretion to determine what to release and what it will not,” Lazatin said.
“This EO establishes the intention, as well as the mecha-nism, to allow the executive to withhold information,” Mala-luan said.

Reasons to worry
In 2005, Arroyo issued EO 464, which prevented Cabinet officials from appearing before congressional inquiries without her permission.  When the Supreme Court struck it down for infringing on the people’s right to know and on the legislature’s power of inquiry, she issued MC 108, which was basically EO 464 with a different name as it gave her the discretion to identify which inquiries are in aid of legislation and therefore should be attended by her officials.
Arroyo has also refused to disclose investigations on controversies surrounding her administration. In April 2005, Arroyo rebuffed calls to publicize the findings of the Armed Forces of the Philippines, led by the Navy chief, Vice Admiral Mateo Mayuga, on the alleged participation of military officials in election fraud in 2004.
The recommendations of former Chief Justice Hilario Davide on electoral reforms were likewise not widely released. Last February, only pressure from the international com-munity forced the government to release the report of former Supreme Court Justice Jose Melo on the high number of extrajudicial killings in the country.
Newsbreak managing editor Glenda Gloria said she would like to give the government the benefit of the doubt as other countries that have more mature democracies also have security clearance systems. But since it will be implemented in the Philippines with its weak and politicized institutions, it may be open to abuse.
Gloria cites the military, which she said tends to overclassify information, as an example of what happens when this system is abused.
“In the military, even the daily news clippings gathered by their public information officer is marked  ‘Confidential’,” said Gloria.
Malaluan said he wants to see how the EO will be applied but since classification is dis-cretionary, it will vary from one official to another.
“So you can have public  officials who are more trans-parent (and) public officials who are more secretive,” he said.

Lessons from Garci
EO 608 came two years after Arroyo suffered from the most embarrassing controversy to hit her administration—the “Hello Garci” scandal. It was caused by the leakage of alleged wiretapped conversations between Arroyo and an election officer believed to be former elections commissioner Virgilio Garcillano as they were apparently discussing how to rig votes in the 2004 elections. The EO is seen then as a way of plugging leaks to ensure that the government will avoid a similar situation. Interestingly, the EO was issued during the election period.
Lazatin says the EO may specifically have been issued to prevent Arroyo’s political opponents and journalists from digging up damaging information about her.
Gloria says that while EO 608 will certainly make it harder to acquire information, she is not convinced that it will prevent journalists from doing their jobs.
“Filipinos have produced some of the finest investigative journalism pieces even without a freedom of information act,” she says.
Philippine Daily Inquirer’s Fe Zamora adds that EO 608 is just another challenge for journalists to dig deeper and work harder in cultivating sources.
“It’s another hurdle but what else is new? The Arroyo administration has covered itself with layers of directives to shield itself from public scrutiny,” Zamora says.
Malaluan observes that government employees’ new-found power to decide which information to release will only strengthen the practice of information as privilege. He adds that it will also be harder to develop sources as the system makes it easier to track down the source of a leak. The potential source may be discouraged by the punishments.

A cat and mouse game
Tatad, himself a former journalist, believes that pinpointing the source of a leak would not necessarily be easier with the new EO since journalists know how to protect the identity of their sources.
“It’s a cat and mouse game,” Tatad says. “If the journalist is better in seeking information than the government is at hiding it, then too bad for the government.”
Gloria added that there are still people in the bureaucracy whose desire to serve the public and expose wrongdoings will not be discouraged by the EO.
Aside from decent bureaucrats and muckrakers, there is still another factor the government may have not considered when it implemented the policy—the disgruntled employee. As the most famous scandal involving a leak has shown, nothing is more damaging to a government than an informed employee with an axe to grind.
In the Watergate scandal, “Deep Throat,” the main source of stories for journalists Carl Bernstein and Bob Woodward, turned out to be W. Mark Felton, assistant deputy director of the Federal Bureau of Investigation (FBI). Felton decided to squeal on then US president Richard Nixon for many reasons. One was his own sense of outrage over the way Nixon was misusing the FBI. The other reason was more pragmatic: Felton was bypassed in the appointment of the FBI chief.
Arroyo had better keep her employees happy, especially those who know of things that are best kept secret. – with reports from Ivy Jean Vibar and Katrina Albarillo

Comments are closed.