Keeping Secrets
How gov’t routinely violates the public’s right to information
Keeping Secrets
By Yvonne T. Chua
AT THE start of the Arroyo presidency, the Philippines was being held up as among the most open democracies in Southeast Asia.
Thanks to the 1987 Constitution guaranteeing Filipinos the right to information on matters of public concern and a slew of Supreme Court decisions upholding this public right, the country had boasted a liberal information regime—even without actual freedom of information legislation.
In fact, the Philippines topped a 2001 survey done by the Philippine Center for Investigative Journalism (PCIJ) and Southeast Asian Press Alliance on the accessibility to the public of 43 government-held records in eight Southeast Asian countries. It fared even better than Thailand, which passed an Official Information Act in 1997.
Apparently, not anymore.
The public has suffered major setbacks in obtaining state-held information in the past five years. Malacañang no less leads the government institutions that have put up barriers.
The obstacles range from the well-publicized Executive Order (EO) 464 issued by President Gloria Macapagal Arroyo in September 2005 to the lesser known “Media Backgrounder” released last April by the Supreme Court. EO 464 banned officials of the executive department from appearing before congressional inquiries without Arroyo’s say-so. The guidelines spelled out in the high tribunal’s “Media Back-grounder” make it harder to get the Statement of Assets and Liabilities (SAL) of members of the judiciary.
So worrisome are the growing restrictions on the right to information that the Access to Information Network (ATIN), a loose coalition of civil society and media organizations, is stepping up its campaign for the passage of a freedom of information law. ATIN comprises the Action for Economic Reforms, Center for Community Journalism and Development, Center for Media Freedom and Responsibility, Legal Rights and Natural Resources Center, Pagbabago@Pilipinas, PCIJ, and the Transparency and Accountability Network.
Enshrined in Charter
First included in the 1973 Constitution, the right to information was expanded and enshrined in the 1987 Constitution. Article III, Section 7 states: “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 such limitations as may be provided by law.”
The Constitution (Article II, Section 28) also enjoins the State to adopt and implement “a policy of full disclosure of all its transactions involving public interest.”
In the Philippines, the right to information has long been established as a public right. Any citizen may assert that right. The right has also long been held as self-executory. No enabling law is needed for citizens to exercise the right. Long settled, too, is the principle that government agencies are without discretion in granting access to information. Their job is to routinely release information, except for the ones restricted by law or jurisprudence.
To be fair, citizens have had their share of frustrations when accessing information from the government even in the pre-Arroyo years. These chiefly had to do with the absence of uniform procedures on speedy access, a mindset against releasing information, the chaotic state of record keeping, a poor information infrastructure, and the low quality of information gathered by state agencies.
The problems remain, but have since been compounded by policies adopted by the Arroyo administration that hardly augur an atmosphere of transparency.
After prohibiting Cabinet and other officials from appearing before the Senate hearings on the reported overpricing of the North Rail Project and the alleged cheating in the May 2004 elections without getting her approval, Arroyo made the arrangement official by issuing EO 464 on Sept. 28, 2005. The order became the basis for the no-show of government executives in subsequent hearings such as the Senate Blue Ribbon’s inquiry on the fertilizer fund scam and even budget hearings of government departments such as justice and interior and local governments.
Even the Supreme Court acknowledges that EO 464 involved not merely the legisla-tive power of inquiry, but also the right of people to information.
“The impairment of the right of the people to information as a consequence of EO 464 is…just as direct as its violation of the legislature’s power of inquiry,” the High Court wrote in its 52-page ruling last April 20.
The justices explained: “To the extent that investigations in aid of legislation are generally conducted in public…any executive issuance tending to unduly limit disclosure of infor-mation 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.”
Impenitent Palace
After a failed bid to get the Supreme Court decision overturned, an impenitent Malacañang regurgitated EO 464 last July 27, this time in the guise of Memorandum Circular 108, or “Guidelines on Appearances of Department Heads and Other Officials of the Executive Department before Congress.” Needless to say, the order has triggered a new wave of uproar among senators and the public.
Besides EO 464, a string of acts by the Palace has made the Arroyo administration notorious for nondisclosure of information on matters of public concern.
By skillfully playing the numbers game, Malacañang got the House of Representatives to twice trash the impeachment complaints against Arroyo, in the process suppressing information on the conduct of the 2004 elections and other supposed unlawful acts she had committed while in office. The complaints were anchored on the controversial “Hello, Garci” recordings or the wiretapped conversations between former elections commissioner Virgilio Garcillano and Arroyo and other pro-administration parties on the alleged conspiracy to rig the presidential vote in Arroyo’s favor.
Last April, Malacañang and the military adamantly refused to make public the full report by the Armed Forces fact-finding board that investigated four generals and other officers implicated in the “Hello, Garci” tapes. Even an appeal from the influential Catholic Bishops’ Conference of the Philippines to disclose the report prepared by Navy chief Vice Admiral Mateo Mayuga and his team of investigators went for naught.
The following month, the Office of the President spurned a request of the Transparency and Accountability Network (TAN), a coalition of anti-corruption non-government organizations, for a copy of the full report on proposed electoral reforms that retired Chief Justice Hilario Davide Jr. had submitted to Arroyo. Even Davide, named presidential adviser on electoral reforms shortly after bowing out of the Supreme Court, declined to give TAN a copy despite having consulted the group for his Palace assignment.
Malacañang at first informed TAN that it was “unable to retrieve” the report. One day later, it said “intra-governmental documents containing advisory opinions comprising part of a process by which governmental decisions and policies may be formulated are confidential in nature.”
The Palace, however, did release a summary of Davide’s report. To TAN’s dismay, the synopsis contained none of the controversial recommendations.
At the House of Repre-sentatives, several legislators had failed in their attempts since February 2005 to pry out of the executive branch information on the proposed Japan-Philippines Economic Partnership Agree-ment (JPEPA), a bilateral prefe-rential trade treaty being nego-tiated between Tokyo and Manila.
Trade Undersecretary Tomas Aquino, the country’s chief negotiator, had continuously refused to provide lawmakers the document, saying presidential imprimatur was needed. Aquino had also reasoned that the draft of the proposed agreement could be given only when the negotiations had been completed and the agreement thoroughly reviewed.
Fed up, Akbayan party-list representatives Loretta Ann Rosales, Mario Aguja and Risa Hontiveros Baraquel, Joel Villa-nueva of the Citizen’s Battle Against Crime and Corruption (Cibac) and Quezon Rep. Erin Tañada took their case to the Supreme Court last December to compel disclosure of JPEPA’s full text.
The dilemma
Even civil servants grumble at how they have been denied their right to information. The 10,000-member Philippine Association of Government Budget Administrators (PAGBA) counts among the victims. In 1998 and 2002, the state budget officers wrote the Government Service Insurance System requesting information on how much of members’ contributions go to life insurance and retirement benefits. The state-run corporation ignored the query and furnished PAGBA instead with general guidelines.
Now what if it is the Supreme Court that refuses to disclose information on matters of public concern? To whom should the aggrieved party turn for relief?
That was exactly the dilemma of the PCIJ. The High Tribunal rejected the organization’s requests in 2003, 2004, and 2006 for the SALs of the justices. The PCIJ informed the Supreme Court that the SALs would be posted on its website along with those it had gathered from other branches of government, but was told that the reason for its request was insufficient.
The High Court also referred the PCIJ to its April 27, 2006, “Media Backgrounder” that regulates access to the SALs of justices, judges, and court personnel. The backgrounder reads, “The independence of the Judiciary is constitutionally as important as the right to information which is subject to the limitations provided by law. Under specific circumstances, the need for the fair and just adjudication of litigations may require a court to be wary of deceptive requests for information which shall otherwise be freely available.”
Under the current state of access to information, selective disclosure has become an issue. The anti-corruption TAN was deprived a copy of Davide’s full report on proposed electoral reforms, only to find out that former elections commissioner Christian Monsod had gotten one. Party-list representatives, meanwhile, learned that Sen. Manuel A. Roxas III and Albay Rep. Joey Salceda had managed to secure a copy of the proposed Japan-Philippines treaty.
“It seems to be a fraternity thing,” TAN’s Vincent Lazatin told a forum on the right to information organized by ATIN last Aug. 15. “You have access if you’re part of the circle.”
That is why ATIN believes legislation is urgently needed to ensure speedy and equal access to information. But prospects for the enactment of a right to information act appear bleak.
Right to information
In the 11th Congress, a right-to-information bill actually got passed on third reading in the House of Representatives and transmitted to the Senate. Alas, the Senate had no counterpart bill.
In the 12th Congress, the House Committee on Public Information got as far as consolidating six right-to-information bills and putting out a committee report by January 2004. Alas, the report was never heard on second hearing.
Lawyer Frederick Mikhail Farolan, chief of staff of Cibac Rep. Villanueva, a proponent of one of the five right-to-information bills pending in the 13th Congress, surmised that the previous Congress did not pay attention to the committee report because elections would be near.
“The report was procedurally and substantively meant to be archived,” he said. “Legislators have no interest in letting the public look at their records when elections are approaching.”
With the 2007 elections a few months away, that might very well again be the fate of the right to information bills in the current Congress.
Yvonne T. Chua wrote the chapter on the Philippines for the book, Right to Know: Access to Information in Southeast Asia, published in 2001 by the Philippine Center for Investigative Journalism and the Southeast Asian Press Alliance.
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