The Philippines: A Liberal Information Regime Even Without an Information Law

17 January 2003


Yvonne T. Chua has been the training director of the Philippine Center for Investigative Journalism (PCIJ) since 1995. As journalism trainer, she has trained scores of journalists in the Philippines and abroad, including Indonesia, Cambodia and Nepal. In 1999, she won the first prize in the Jaime V. Ongpin Awards for Investigative Journalism for her report on Corruption in textbook procurements. Her book, Robbed: An Investigation of Corruption in Philippine Education won the National Book Award the same year. Chua teaches journalism at the University of the Philippines and was managing editor of Ang Pahayagang Malaya before joing PCIJ. She was a Jefferson Fellow at the East-West Center in Hawaii and Marshall Mcluhan Fellow in Canada.


The Philippines: A Liberal Information Regime Even Without an Information Law
By Yvonne T. Chua

The Philippines has no freedom of information law, but Filipinos hardly lag behind citizens of democratic states that have statutes providing access to information held by the State. The Philippines in fact can boast of having the most liberal information regime in Southeast Asia. In a 2001 survey on the accessibility to the public of 43 government-held records, it fared even better than Thailand, which passed an Official Information Act in 1997.

Are records available to the public?
[Countries ranked according to “YES” answers]
Philippines
59%
Thailand
56%
Cambodia
44%
Singapore
42%
Malaysia
33%
Indonesia
18%
Vietnam
18%
Burma
5%
Source: Philippine Center for Investigative Journalism and Southeast Asian Press Alliance

Filipinos have quite a few things working in their favor–a constitutional guarantee on access to information, administrative and judicial remedies in case of nondisclosure by the State, courts that generally side with citizens, the government’s increasing use of technology to store and disseminate information, and vigilant journalists and civil society groups that assert the right to information.

There are, however, a number of obstacles to access. For one, access to information has yet to be institutionalized, and many government agencies have yet to recognize that providing information is part of their functions. Despite strides toward greater government transparency, many sections of the bureaucracy are still in the grip of a culture of secrecy, a legacy of the Marcos dictatorship, which ruled the country from 1972 to 1986.

In addition, inadequate or undeveloped information infrastructures, the poor state of recordkeeping, a low level of awareness among citizens of their rights, and time-consuming and expensive litigation in cases of denial hamper information access. Recently, the government has also included restrictions on information as part of a package of anti-terrorism measures that were put in place after the 9/11 attacks and a series of kidnappings by extremists believed to be linked to Al-Qaeda.

In an effort to expand access, a loose coalition of more than a dozen nongovernmental organizations has formed the Access to Information Network or ATIN to lobby for a freedom of information act in a bid to compel the government to put in place a uniform, simple and speedy procedure in enforcing the right to information and to provide clear penalties for the unlawful denial of access and destruction of records.

Constitutional Guarantee

The Philippines is one of the few countries in the world to enshrine in its Constitution the right of the people to information on matters of public concern. Like most other constitutions, the Philippine charter also protects, among other freedoms, those of expression and of the press.

Filipinos have a history of being kept in the dark by the governments that ruled them. They suffered three centuries of Spanish rule, 50 years of U.S. colonialism, and a three-year Japanese occupation during the Pacific War. Decades after independence from the US, Ferdinand Marcos imposed his own “information blackout” on his people. During most of these years, however, a few Filipinos would always find ways to get the truth out to the rest of the populace. In the 1880s, for instance, reform-minded Filipinos produced anticolonial publications that molded the national consciousness and made possible the revolution against Spain.

In 1898 Filipinos overthrew the Spanish government and, not surprisingly, the first republic adopted a constitution that recognized freedom of the press. But the new government was short-lived as Spain ceded the Philippines to the United States.

The US colonial government imposed military rule, which ended when a civilian government was set up in the years that followed. In 1935 a new constitution was drafted and approved, patterned essentially after the US Constitution and guaranteeing freedom of the press among other rights. Implicit in this freedom was the right to information.

Ironically, it was during Marcos’s martial rule that a provision on access to information was first written into the Constitution. It turned out, however, to be classic Marcosian doublespeak. A succession of decrees issued by Marcos himself negated the right of information written into the 1973 charter by clamping down on the release of information by the State. The martial-law administration even went as far as to outlaw rumor-mongering and to demand the right to review printed materials prior to their publication.

Secrecy in the government reached unprecedented and ridiculous heights. The defense department, intelligence organizations, foreign office, armed forces, police and prisons were the most assiduous in concealing data. In the name of national security, thousands of documents, especially those involving the arrest and torture of the regime’s political opponents, suspected communists and prospective dissenters, were arbitrarily classified as “top secret,” “secret,” or “confidential,” and kept beyond the reach of citizens and the courts. At the same time, “declassified intelligence information” was used indiscriminately to either arrest or discredit Marcos’s enemies.

Having experienced the perils of having a State that overly restricts information, framers of the 1987 Constitution, which came into force a year after a civilian-backed military uprising toppled Marcos and put Corazon Aquino in the presidency, opted to give broad guarantees of press freedom and information access. Section 7 of the Constitution’s Bill of Rights reads: “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.” In addition, the Constitution (Article 2 Section 28) mandates the State to adopt and implement “a policy of full disclosure of all transactions involving public interest.”

On top of the Constitution, Congress passed a law (Republic Act 6713) that provided a code of conduct for public officials which obliges the government to release information on other matters of public concern and compels public officials to disclose their assets and liabilities, among other duties.

While the Constitution and other laws impose limitations on the right to information, these are prescribed on account of national security, individual rights such as the right to privacy, and public order and safety, and generally considered as acceptable.

The Supreme Court

Jurisprudence upholding citizens’ access to information and safeguarding against abuses of civil servants somehow helps to make up for the absence of a freedom of information law in the Philippines. To its credit, the country’s highest court has consistently ruled against state agencies that have sought to restrict the release of information it deems to be of public interest.

The Supreme Court has held the constitutional provision on the right to information as self-executing, or without need for any implementing law. It has issued a liberal interpretation of what are matters of public concern, declaring that these can “embrace (a) broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen.”

The Supreme Court has ruled without fail that the duty to disclose information of public concern and to afford access to public records cannot be discretionary on the part of government agencies, whose task it has defined as chiefly imposing reasonable regulation of access, not prohibiting disclosure of information. It has been the court’s practice to shift to state agencies the burden of showing that the information being sought is not of public concern or if it is, that it is exempt from the coverage of the legal guarantee.

In various rulings, the Supreme Court has emphasized the function of the right to information in a democracy and in ensuring transparency in government. “The cornerstone of this republican system is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom power has been delegated.”

In the same breath, the high court has recognized the right to information as an essential premise of the meaningful exercise of the freedoms of speech, of expression and of the press. It has acknowledged the journalists’ right to access public records as being grounded in their function of keeping the nation informed on matters of public concern. “For them, the freedom of the press and of speech is not only critical, but vital to the existence of their professions. The right of access to information assures that these freedoms are not rendered nugatory by the government’s monopolizing pertinent information.”

The Press

Apart from the courts, watchful journalists and nongovernmental organizations have helped ensure a free flow of information by asserting the right to public documents and exhausting administrative and legal remedies when requests for information are not acted on or are denied.

The first case on the right to information ever heard by the Supreme Court was filed by a newspaper editor who was refused access to land records. This was in the 1940s, long before the right to information was even enshrined in the Constitution. The post-Marcos years saw a flurry of cases filed by journalists’, citizens’, lawyers’ or public interest groups seeking to compel the government to release sensitive information such as those on civil service eligibilities and applications for the installation of a petrochemical plant submitted to the trade department.

One of Southeast Asia’s first democratic states, the Philippines has a strong tradition of crusading journalism. Filipinos expect journalists to be their “watchdogs” vis-à-vis the government.

While most journalists still prefer the informal route of obtaining information, particularly through sources they have painstakingly cultivated, the tribe of journalists who formally request for the release of official information is growing. Many of them are investigative reporters who have learned to turn the constitutional provision and other laws on the right to information to their advantage, even threatening to take legal action when they are rebuffed by state agencies.

A handful of journalists have availed themselves of administrative remedies, by lodging a complaint with the Civil Service Commission and the Office of the Ombudsman, as a newspaper columnist did in 2000 when the general manager of the Manila International Airport Authority failed to act on her request for information about the operations of the new airport terminal.

Some, though fewer, have resorted to litigation. Among the first to test the 1987 Constitution’s provisions on freedom of the press and access to information before the Supreme Court was a group of journalists who had been denied information on loans the Government Service and Insurance System had granted to legislators before 1986.

Civil Society
A stronger civil society emerged in the country when the “people power” revolt ended Marcos’s 20-year strongman rule in 1986 and has since vigorously resisted attempts to curtail the rights of citizens.

During the martial-law years, NGOs were instrumental in informing the world about the political, social and economic conditions prevailing in the Philippines that the Marcos government had tried to conceal, especially violations of human rights.

Civil society organizations remain as active as ever in obtaining and disseminating official information. Moreover, many NGOs help empower citizens by educating them about their right to information and other civil and political rights. NGOs have taught citizens simple things like how to write letters requesting information as well as more complicated tasks like filing a complaint in case their request is denied or not acted on. Public education is made easier, of course, when communities are organized, and this is an area on which a number of NGOs focus.

When requests were denied, a number of NGOs have sought judicial remedy as they see that their role is to help develop policy not only in the legislative and executive arenas, but also in the judiciary.

Lawyers in particular seem to favor having the right to information written into jurisprudence. In some cases, the information may no longer be needed, but a legal precedent becomes the long-term objective. A prominent lawyers’ group, the Movement of Attorneys for Brotherhood, Integrity and Nationalism, went to court to compel the government to publish all of Marcos’s unpublished presidential decrees and executive orders. A favorable ruling put an end to the days of secret laws and unpublished decrees.

Technology
The good news is an increasing number of government offices have discovered the wonders of the information age, thereby allowing the public greater access to information. In a growing number of local government units, computerization of land records has drastically reduced research time. In big cities and provinces that have computerized their real property division, printouts of tax assessments can be secured on the same day.

The National Statistics Office (NSO), the Bureau of Labor and Employment Statistics and several local government offices have made information available in CD-Rom discs, or are willing to copy the information to these. Besides having a well-maintained library, the NSO employs record custodians who entertain requests for information by mail, phone and e-mail. Data are available in hard copy, CD-Rom and the NSO Web site. People can even ask for copies of their birth records by phone and have these delivered to their homes or offices.

In the last few years, government offices have been putting more information on the Web. The Commission on Audit site offers audit reports of selected government agencies. The Supreme Court’s site has a listing of successful bar examinees. Agencies like the education, budget, health and environment departments post bidding notices and more recent orders and circulars online. Some state agencies’ Web sites, however, could stand some improvement. Citizens expecting to find copies of laws posted on the official site of the House of Representatives and the Senate are bound to be disappointed.

The Multimedia Revolt
Political developments in late 2000 and early 2001 appear to have awakened Filipinos to the power of information and of an informed citizenry.

When he became president in 1998, Joseph Estrada, a former movie actor conscious of his media image and intolerant of criticism, tried to control a critical press mainly through corruption and intimidation. A portion of the monthly payoffs that Estrada collected supposedly from illegal gambling operators went to the pockets of editors, news anchors and reporters to ensure favorable reporting. At the same time, he wielded the stick against news organizations that were critical of his administration.

In 1999, he forced the closure of a national newspaper by slapping a multimillion-peso libel suit against its editors and a reporter and threatening tax audits on the newspaper owner’s other businesses after it reported that he had signed a power contract containing questionable provisions. That same year, another newspaper critical of Estrada, lost about $1.6 million in advertising revenues when the President exhorted movie producers to pull out their ads from the paper.

Estrada also tried to tame the broadcast media by hiring the top news executives of the country’s two leading networks to be his press secretary and undersecretary. His actions had a chilling effect on the press. Most newsrooms became more cautious in reporting his activities and shied away from running stories about possible wrongdoing by the President, his multiple households and circle of friends.

It was in such an atmosphere that a small group of investigative journalists at the Philippine Center for Investigative Journalism (PCIJ) began to expose cases of abuse of power by Estrada. Most of the mainstream media initially gave the exposes a frosty reception, prompting the PCIJ to disseminate its findings through the Web and electronic groups.

At about the same time, activists, civic groups and organizations identified with the Roman Catholic Church and with opposition politicians also began a campaign to expose Estrada’s misdeeds. Initially denied a voice in the mainstream media, they turned to new technologies-email groups, Web sites and texting or short message service via their mobile phones-to pass on information. As many as 200 anti-Estrada web sites and about 100 e-groups were set up during this period.

Then, in the last quarter of 2000, a close friend of the President shocked the nation with his claim that Estrada had been accepting payoff from illegal gambling operators. The press could no longer ignore the allegations against the President.

The live and full coverage by radio and television of Estrada’s impeachment trial proved to be an effective crash course for millions of Filipinos nationwide on the workings and duties of government. The three-week courtroom drama dominated prime-time news and public affairs programs, and was replayed on late-night cable news TV. On January 16, 2001, when the majority of the senators, sitting as judges in the trial, blocked the examination of evidence that would incriminate the President before a live audience, Filipinos spontaneously resorted again to people power.

The second explosion of people power turned out to be a multimedia revolt. Along with the traditional media, which covered the events freely and aggressively, text, e-mail and the Web became weapons of protest and helped bring the Estrada administration to an early end.

The Mindset

Despite the constitutional guarantee and judicial affirmation of the right to information, denial of access to official information remains widespread in the Philippines. Citizens who routinely access information from the government have found that the release of information is often subject to the discretion of public officials. Rules may vary from one agency to another; even within the same agency, there can be several rules. The regulations for releasing information also tend to change from one administration to the next.

Many citizens are often frustrated as well in their earnest attempts to assert their right to information by a bureaucracy that has not made it part of the regular duties of its employees to provide information. While civil servants presumably should know the law that sets a 15-working day rule for them to act on requests, many offices are known to wait until the last day to act, even if only to tell the requesting party that the documents they want are unavailable. Others wait the full 15 days and then ask for 15 more.

It has been a practice in many government agencies to entrust the job of storing and releasing information to a junior employee who is either untrained or in no position to determine what data that can be released to the public. More often than not, the junior employee resists the request for fear of getting into trouble if the information released is likely to cause controversy.

The problem becomes more acute when the information sought is not part of the data or the reports that government agencies routinely publish or make available to the public. Requests for such information are frequently met with inaction, excuses, referrals, or outright rejection because granting the public access to such information often entails additional work.

Government agencies also clam up when citizens seek information on controversial issues. State agencies are expected to withhold information regarding an anomaly or irregularity in the official transactions of an office or its officers and employees in order to protect the public officers concerned from embarrassment or from criminal or administrative liability. Only recently, the energy department denied the request of citizens’ groups for a copy of a government committee’s investigation on power contracts found disadvantageous to the government.

The creation of public information or media relations units in government agencies appears to have been of little help to information users. In many government offices, public information units are known to limit their work to preparing annual reports and press releases, holding press conferences and writing speeches for their bosses, rather than providing information requested by citizens.

The Information Infrastructure

The poor state of record keeping also impedes information access. Many government workers who are assigned to handle documents often do not know how to file them in usable and retrievable form. It is not uncommon to find voluminous documents classified arbitrarily and stored in boxes piled haphazardly in the basement of a government agency.

Looking up old-and not so old-records is another challenge to researchers in offices that rarely bother to keep them for long. These include audit reports on some government offices and even appointments schedules of the President. During Estrada’s term, the media office would throw away the president’s appointments schedule and the press secretary’s accomplishment reports after some time for lack of space.

What could be one of the most frustrating experiences of citizens is requesting for information that should be there but is not. The missing information or document is often the result of delayed reporting or non-reporting. The Department of Public Works, for example, is notorious for not submitting to the Office of the National Administrative Register certified true copies of its rules since 1993. At the Securities and Exchange Commission (SEC), researchers often come across incomplete corporate files. Articles of incorporation are almost always available, but not financial statements, general information sheets and other disclosure reports of private corporations.

Copying data by hand can be the most difficult step in the exercise of the right to information. Many state offices do not allow documents to be taken out of the premises and have only one or two photocopiers that are often tied up.

Sometimes, even technology is of little help. A case in point is the SEC, where records at the public reference unit are either computerized or on microfilm, except for recent filings. Still, getting data remains a cumbersome activity because of defective equipment and ill-trained staff. The SEC can accommodate only about 100 researchers daily, and each one is limited to three corporations a day. It may take the whole day to obtain records if the documents are onsite. If the documents are offsite or stored in the SEC’s warehouse in another city, researchers must endure a three-day wait.

Quality and Quantity

In general, the quality and availability of economic information in the Philippines are satisfactory. The country is the only one in Southeast Asia that issues quarterly reports on national income interest. The reports for the first, second and third quarters are released two months after the end of the reference period, while the annual reports come out only a month after the end of the year.

But the same cannot be said of other types of information. Education statistics are often three years behind. Data on the country’s coral reefs, for example, are 10 years old.

Information to be useful must be not only timely and reliable, but also complete and understandable if it is to help citizens make enlightened decisions. This, however, is not always the case. Environmental NGOs complain of how some communities have been deprived of complete information regarding environmental impact assessment. What they get instead are glowing reports about how an environmentally critical project will create jobs and not lead to displacements, but not the risk assessment reports.

Some information is downright unreliable. As Filipinos’ experience with Estrada and other government officials has shown, the statements of civil servants’ assets and liabilities are among of the least trustworthy documents in government. A PCIJ report showed that Estrada did not truthfully declare his wealth, his business interests and even the identities of his relatives, and that there was no way his statements could justify the wealth he amassed during his two-year term. The center’s report and subsequent exposés on Estrada’s malfeasance in public office led to his impeachment and eventual ouster from office.

PCIJ Study
A study conducted from April to May of 2002 by the PCIJ reveals how accessing public records from certain state offices is a struggle for many ordinary citizens.

The center had assigned student interns to request for documents, ranging from budgets and bidding documents to police cases that have been declared closed, from different government agencies at both the local and national levels. The students were under strict orders not to introduce themselves as interns of the PCIJ as the project aims to test how ordinary students and other citizens access the information they want. In the Philippines, government offices tend to be more accommodating of journalists.

The experience of students trying to obtain statements of assets and liabilities from the executive branch, Congress and the judiciary shows the low regard, even downright disregard, of many government agencies for the public’s right to information.

Republic Act 6713, which embodies the code of conduct for public officials, requires public officials to file statements of assets and liabilities every April and to make these available for copying after 10 working days from the time these are filed. Statements are to be made available to the public for 10 years, after which they may be destroyed unless needed in an investigation.

It took student interns only a letter of request and a week to get from the House of Representatives the asset statements of all congressmen from the Central Luzon region from 1998 to 2001. At the Senate, a letter and a day-long wait yielded the statements of all 24 senators for 2000 and 2001. But statements from 1998 to 1999 could not be immediately located and were released only after 28 days from the time the students put in their request. The two offices proved to be the exception rather than the rule when it comes to releasing statements of assets and liabilities of public officials.

Malacanañg, or the presidential palace, refused to release the statements of all members of former President Estrada’s Cabinet, saying these were “confidential” documents that could be released only to the government officials themselves or to law enforcement agencies for use in court cases. The palace’s refusal to disclose the information prompted the student interns to seek the information from the different departments to which the former Cabinet members were assigned.

Of these, only the public works departments gave out the statements of its former secretary. Most of the other departments rejected the students’ requests on the ground that the documents were “confidential” or “personal” and could be released only with the consent of the government officials. Strangely, one department told a student intern that RA 6713 prohibited government offices from releasing the information. It was the exact opposite of what the law provided. A few departments could not accommodate the students because they did not bother to keep a file of the statements or disposed of these after only a year.

The students at least got straightforward answers from these agencies. At the Bureau of Internal Revenue, one intern was referred to at least seven units before she was formally told a month later her request was being denied because the documents were “confidential.” During all that time, bureau employees had bluntly been telling her to mind her own business and that it would take a court order to get them to disclose the information.

The student interns were also unsuccessful in getting the statements of assets of liabilities of the national police chief and of, ironically, the Supreme Court chief justice. They were told that other researchers had also been unsuccessful in getting the documents because their offices never gave these out.

Campaign for Legislation

While citizens can turn to the courts to compel government agencies to release information, many do not relish the legal process. Besides the money it entails, litigation takes time. In many cases, when the court finally orders the agency to release the information, its import has been mooted by other events. As a result, the right to information is not exercised to its fullest. It is for this and other reasons that several legislators and civil society organizations are becoming convinced that it is high time that the Philippines has a freedom of information or an official information act.

In the 11th Congress (1998-2001), a freedom of information bill passed third reading in the House of Representatives but was never acted upon by the Senate, which found itself preoccupied with the impeachment trial of Estrada. The current Congress has before it again about a dozen of bills providing for a law on the right to information. This time, however, several NGOs have banded themselves into a loose coalition called the Access to Information Network or ATIN to actively lobby for the passage of such a bill.

ATIN has gone as far as crafting a bill modeled on freedom of information laws in other countries to address what it perceives as shortcomings in the bills now pending in the legislature. Party-list representatives and a handful of liberal members of the House of Representatives have agreed to sponsor the bill.

ATIN’s proposed measure seeks to put in place a uniform, simple, and speedy procedure in enforcing the right to information and provide clear penalties for the unlawful denial of access to official information and unlawful destruction of records. At present, erring public officials face only administrative sanctions.

The coalition of NGOs also proposes the creation of an independent body whose job is to hear appeals from citizens who have been denied access to information and introduce mechanisms to compel government bodies to actively inform the public on matters of public concern. ATIN’s proposed bill also provides protection to whistleblowers.

Enacting an official information or freedom of information act has become all the more urgent in light of recent developments where government has seen it fit to restrict information, especially in its fight against terrorism.

The government’s war against bandits and rebels in Mindanao has led it to curtail access of citizens and journalists to areas of conflicts, to individuals and groups accused of involvement with terrorism, to agencies and officials tasked with fighting terrorism, to documents pertaining to terrorism and terrorists, including those otherwise routinely available to the public. An international fact-finding mission that went to Basilan in March 2002 to investigate the consequences of the war in the southern Philippines tasted first-hand government’s refusal to let them into the prisons to obtain information on the conditions of detainees.

More recently, an order from the justice secretary prohibiting the immigration bureau from releasing the travel records of the president and her Cabinet members came to light. The order was issued purportedly to prevent the information from falling into the hands of terrorists. But government investigators, who are probing the justice secretary on possible violation of the constitutional provision on the right to information, believe the order was designed to conceal from the public records that would prove corruption charges against the secretary. The justice secretary and a businessman from whom he supposedly received bribe money for a favorable legal opinion on a power contract were said to have met abroad where the money changed hands.

Anti-terrorism bills now pending before Congress have also gotten citizens’ groups worried because of their potential to curtail civil and political rights. If passed, the bills would allow the State to intercept communications on suspected terrorists groups, thus encroaching on the privacy of communication. A couple of bills seek to penalize what is considered as malicious reporting of unwarranted information and violation of the confidentiality of certain reports on terrorism, provisions which would only serve to restrict the free flow of information.

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