Breakthrough Brightens Hopes for FOI in Philippines

8 December 2011

The Aquino administration has produced a long-awaited proposal for a freedom of information bill in the Philippines which has been praised by pro-FOI advocates and appears likely to pass.

The issuance of a draft law came after months during which President Benigno Aquino, who had appointed a study group of top officials in November 2010 to develop a bill, continued to voiced his doubts.

 The  draft bill beefs up protections for national security and the administration’s deliberative process, two areas of Aquino concern.

Accepting the changes, the Right to Know, Right Now! Coalition said Congress should be able to pass a bill. Sen. Gregorio Honasan, appearing Dec. 8 at a coalition rally, “vowed that the much-delayed deliberation on the Freedom of Information bill will be acted on in the first quarter of next year,” according to a report in The Philippine Star. Legislation narrowly failed to pass in June 2010.

 Right to Know, Right Now! Coalition Statement 

THERE should be no more stumbling blocks for the Senate and the House of Representatives to move the Freedom of Information (FOI) bill quickly past the legislative wringer — the latest draft legislation prepared by Malacañang’s study group has substantively settled the various reported concerns of President Aquino about the bill.

This position was expressed at a press conference on Dec. 8, 2011, by the Right to Know, Right Now! Coalition, a network of over 150 organizations and civil society leaders that is pushing for the passage of the FOI Act.

At the same forum, Sen. Gregorio Honasan, chairperson of the Senate Committee on Public Information, pledged to act independently on the measure, adding that he expects to submit his committee report to plenary action by the first quarter of 2012, or in the next three months.

The Coalition said Honasan’s assurance rekindles the hope of FOI advocates that the long-overdue passage of the FOI Act might still come to fruition in the 15th Congress.

The Right to Know, Right Now! Coalition said work on the FOI now moves back to the legislature, as well it should. The Coalition has responded positively to two amendments proposed by Malacañang’s study group on the FOI, notably, the insertion of “national security” and the President’s “deliberative process” in the list of exceptions enrolled in the bicameral conference committee report of the 14th Congress.

The Senate had ratified this version of the bill, which was just a step shy of passing into law but for the feigned lack of a quorum on the final session day of the House of Representatives then led by LAKAS-CMD’s Prospero Nograles.

According to the Coalition, the President’s “deliberative process” is a new exception that the Palace study group has sought. It pertains, the study group said, to records of minutes and advice given and opinions expressed during decision-making or policy formulation that the President may invoke to be privileged by reason of the sensitivity of the subject matter or of the impairment of the Chief Executive’s deliberative process that would result from disclosure.

However, once policy has been formulated and decisions made, minutes and research data may be made available for disclosure unless they were made in executive session.

At the press conference, the Coalition submitted to Honasan its comments on the proposed amendments of the Malacañang study group. The same amendments had been submitted to Honasan’s committee by the study group at a hearing on the FOI bill held on Aug. 18, 2011.

The Palace amendments include the expansion of the concept of “national security” beyond national defense and foreign affairs.

This and the proposed amendment on the Chief Executive’s “deliberative process” already respond to the most critical concerns that President Aquino had expressed about the FOI bill in various press interviews.

The Coalition accepted the amendments, provided that safeguards against abuse of the exceptions are also introduced. “To show the Coalition’s utmost good faith in our claim of our right to information, and to move the legislative process through reasonable consensus, we are not objecting to the additional exceptions introduced by Malacañang, provided balancing safeguards are also provided”, Atty. Nepomuceno Malaluan, spokesperson of the Coalition, said at the press conference.

Among the safeguards that the Coalition pushed are the strict interpretation of the exceptions and the proscription against using the exceptions to cover-up a crime, wrongdoing, graft, or corruption. It also sought the reinstatement of a provision that gives citizens who have been denied access to information based on a legitimate exception, to appeal to an independent body to overturn the denial upon showing of a greater or overriding public interest in disclosure.

But with his concerns now fully settled in his study group’s proposed amendments, the Coalition said the Executive, the Senate, and the House of Representatives should now move forward, and at a quicker pace, on the FOI bill, Malaluan said.

“We hope that a decisive and speedy action by the Senate will break the impasse on the FOI bill. Passage by the Senate by the first quarter of next year will allow us to concentrate our advocacy efforts on Rep. Ben Evardone, chairman of the House Committee on Public Information, who has not moved on the bill since its only hearing more than a year ago,” Malaluan added.

Toby Mendel, an international expert on FOI who is in Manila for a workshop on transparency in international financial institutions, provided an assessment of how the bicam version and the Malacañang version would compare to existing FOI laws around the world, if the Philippines passes any of these versions.

The RTI Rating methodology developed by the Canada-based Centre for Law and Democracy, which Mendel heads, uses 61 indicators, drawn from a wide range of international standards on the right to information, as well as comparative study of numerous right to information laws from around the world, with a possible perfect score of 150 points.

The bicam version which forms the basis for most of the bills now pending in both the Senate and House of Representatives, scored better with 93 points. If passed, this would place the country alongside Chile and New Zealand at a ranking of 28, out of 89 countries with FOI laws that have been assessed.

The bill with Malacañang amendments scored 88, which would rank it one step below the United States that landed on 36th slot.

Mendel, however, emphasized that while improvements in both versions could still be made, the key need at this point is for a right to information law to be adopted. ‘

“The Philippines remains outside of the club of some 90 countries around the world that have adopted right to information laws, a fact which is becoming increasingly embarrassing for a country with an otherwise strong democratic tradition. A stark reminder of this is the fact that the Philippines is the only country on the Steering Committee of the Open Government Partnership (OGP) that does not have a right to information law,” Mendel said.

The OGP, launched by President Obama with the support of Brazilian President Rousseff, aims to promote greater transparency among its members. Brazil and the Philippines were the only two countries in the OGP steering committee that did not have FOI legislation.

Just recently though, Brazilian President Dilma Rousseff has signed its FOI law on Nov. 18, 2011 after it was passed by its Senate on Oct. 25, 2011.

Apart from the new exceptions, Malacañang’s proposed amendments seek to reduce the penalties for most punishable acts from criminal to administrative, and omit certain punishable acts included in the 14th Congress’s bicameral conference committee version.

It also introduces an Information Commission as an appeals body for denials of access to information, in place of the Office of the Ombudsman as provided in the bicam version.

The Coalition did not object to changing the category of certain criminal acts into administrative offenses, stating that it has been open to comments by government officials regarding the severity of the penalties. The Coalition, however, opposed the removal from the list of punishable acts the claiming of an exception that is manifestly devoid of factual basis, saying that this is a very important safeguard against the abuse or invalid use of the exceptions.

On the Palace’s proposal to create an Information Commission, the Coalition submitted to the wisdom of the Senate the determination of what will be the better model, as long as there are strong features of independence, and there is the requisite institutional capacity to effectively discharge its functions.

The Right to Know, Right Now! Coalition said that with the President’s concerns now substantively addressed, and given the 15-year popular campaign for its passage, it now looks forward to more focused and quicker action on the FOI bill in both the Senate and the House of Representatives.

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