Palace draft of freedom of info bill: Focus on restrictions?
History of FOIA in the Philippines
Nineteen years since the first Freedom of Information bill in Congress was filed, the Philippines has yet to pass a Freedom of Information (FOI) Act.
The bill moved farthest in the 14th Congress. It was approved by the bicameral conference committee and ratified by the Senate, but died in the House of Representatives.
The country is shamed by this failure in the context of the global surge for FOI laws. As of February 2010, at least 80 countries—19 in Asia—have nationwide laws which recognize the right to information and access to public records. More recently, the democratized countries of South East Asia, where the Philippines has stood out among the most liberal minded societies, have passed FOI laws. Thailand has had an FOI since 1997; Indonesia adopted one in 2010; and even Malaysia’s Selangor State has passed its own version.
Advocates hope that an FOI law, which enhances the right to know, will be ratified soon. Citizen and civil society organizations are closely monitoring the response of the Aquino administration and the 15th Congress to the demand for an FOI, particularly since the President won the last elections committing to uphold transparency and good governance.
Constitutionally-guaranteed right
The 1987 Philippine Constitution guarantees the right 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.” (Bill of Rights, Article III, Section 7)
“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.” (Declaration of Principles and State Policies, Article II, Section 28)
Although guaranteed in the Constitution and other legal provisions, an FOI law is still necessary to define the procedures and punish those who violate these rights. Most experts understand FOI as a critical component of the information system in a democracy—facilitating the right to know.
The denial of the right to information and access to government-held records on matters of public concern in the Philippines remains widespread. The request for official documents, records, and data is met with inaction, excuses, referrals, or outright rejection.
The basic principle that drives calls for an FOI is that the citizens in whom sovereignty resides in a democracy require and have a right to information on government matters both to exact accountability from those to whom they have delegated state power, as well as in behalf of the democratic imperative of participation in decision-making.
But the culture of secrecy, which has developed because of, among other reasons, the corruption that has metastasized throughout government and much of society has such deep roots in this country. Few government officials and bureaucrats regard openness as both a human right as well as central to effective governance.
Minimum standards
Dismantling that culture, says Toby Mendel of ARTICLE 19 in a 2008 paper (Freedom of information: A Comparative Legal Survey) for United Nations Educational, Scientific and Cultural Organization Paris, is indispensable to the promotion of open government. Among other guiding principles, Mendel listed the following as necessary to the making of an authentic (rather than illusory) freedom of information regime:
• The principle of maximum disclosure, based on the assumption that freedom of information is both a fundamental human right as well as vital to democratic governance;
• The obligation to publish, which makes it the duty of government agencies to pro-actively disseminate and publish information of public interest; and
• A limited scope of exceptions—Exceptions should be narrowly as well as clearly specified and must be based on whether the requested information once release will cause harm and whether it will be contrary to public interest.
The fundamental issue is whether, to begin with, the bill that will be introduced for consideration by the present Congress or the Aquino administration meets these criteria.
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