Palace draft of freedom of info bill: Focus on restrictions?
By Kathryn Roja G. Raymundo
Published in PJR Reports, July-August 2011
A scan of the initial draft of the Aquino administration’s Freedom of Information (FOI) bill reveals a focus on restricting rather than enhancing the right to information. The administration bill expands the list of information exempt from public disclosure, and through that alone already restricts the right to information.
The expansion of the Tañada bill (Rep. Lorenzo “Erin” Tañada III, one of the main authors of the measure and known advocate) provision on exempting matters on national defense into national security provides government agencies the same catch-all excuse for withholding information that has in the past been used to justify government secrecy and even the commission of human rights violations [Section 6, Exceptions, (a) and (b)]. This provision in fact bears the fingerprints of the intelligence and military communities, whose traditions of secrecy and antipathy to human rights qualify them least to providing inputs to any FOI act.
A provision forbidding the release of information on policy discussions until the adoption of the policy is on the other hand antithetical to the principle of citizen participation in the making of state policy [Section 6, Exceptions, (c) and (g)]. The bill also removes the public interest override on executive (Presidential) privilege in the Tañada version, thus institutionalizing absolute executive privilege through law.
The administration bill also creates a supposedly independent Information Commission (IC) whose members would be appointed by the President. The IC would have vast powers, among them that of ruling on the legitimacy of requests for information, imposing a temporary or permanent ban on the disclosure of information [Section 20, Powers and Functions of the Commission, (d)], holding any person in direct or indirect contempt [Section 20, Powers and Functions of the Commission, (e)], proposing legislation, and suggesting amendments to Philippine laws on access to information. For all these powers, the commissioners are not required to have any background in human rights, information, or media advocacy and, except for the chairman who must be a lawyer, need only be at least 35 years old and natural born Filipino citizens (Section 16, Composition of the Commission).
Advocates: Be vigilant
During the Center for Media Freedom and Responsibility’s (CMFR) Policy Forum on the FOI, many participants were concerned with the number of exceptions in the draft bill. The event took two tracks to discuss the FOI issue, one by following the legislation process and then, reviewing the experience of different sectors.
CMFR, in partnership with the Asian Institute of Management Policy Center, held the first of a series of three media and policy forums last July 27. A grant from the National Endowment for Democracy made the event possible.
CMFR and the participants emphasized the need for an FOI bill. But they also asked the public to remain vigilant.
Although there is a public clamor for an FOI bill, President Benigno S. Aquino III has expressed his administration’s “objections and reservations” and whether it will be included in the second Legislative-Executive Development Advisory Council as a priority measure was still unlikely at this writing.
FOI advocates fear that if the administration bill is passed even in its present form—and it is likely to be amended, altered and watered down by the members of Congress—it will make access to information more problematic than it is today, putting it in the same category of laws supposedly meant to broaden citizen rights but which actually restrict them.
Once in the books such a law will be difficult to repeal or amend. Perhaps the President fears the possibility of abuse, say these advocates, but the abuse of rights is an acceptable and necessary risk in a democratic regime; only the denial of rights can guarantee the absence of abuse. Granted for the sake of argument that the Aquino administration will be liberal in its implementation of the bill it has drafted. But what happens after 2016, when a new administration whose shape and temper we cannot predict, comes to power? Whatever FOI bill becomes law will, after all, outlive the Aquino administration.
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