Strong Senate Supports Bolsters Hope in Philippines

3 June 2012

Despite near unanimous support for a freedom of information bill in the Philippines Senate, the bill’s prospects remain uncertain in the House.

Twenty-two out of 23 senators have endorsed the committee report on a FOI bill by Sen. Gregorio B. Honasan II, chairman of the Senate Committee on Public Information.

Honasan was expected to formally sponsor the FOI bill at the Senate plenary session June 4.

However, the FOI bill “still remains in limbo” in the House, according to an assessment in a statement by the Right to Know, Right Now! Coalition, a broad-based group that is continuing the fight for a FOI bill, a now 14-year-old effort.

The lack of movement on the bill in the House comes despite it being controlled by a majority coalition led by the Liberal Party allies of President Benigno Aquino III. The president has supported passage of a FOI law, but took many months to draft his own bill. “Given the apparent resistance to FOI in the House of Representatives, strong executive support is imperative for the FOI law to finally pass,” the Coalition statement says.

A couple of weeks ago Budget Secretary Butch Abad attended on a high-level meeting with the House Committee Chairman to push for immediate committee action, according to a Coalition member. The meeting also was attended by the head of the Presidential Legislative Liaison Office and a number of senior members of Congress. 

Among other challenges facing the bill in the House is a move to require the media to provide a “right to reply” for public officials.

The Coalition called Rep. Ben Evardone “to perform his duty as committee chairman, and immediately call a hearing to resolve the remaining contentious issues in the committee, and submit a committee report for plenary action.” The Coalition also asked that the bill be placed on the list of House priorities.

Senate Bill Praised

In the meantime, the Coalition applauded the Senate bill, stating:

We commend the Senate Committee for keeping intact a progressive, pro-people FOI bill, even as it accommodates amendments proposed by Malacañang. The report used as basis the bicameral conference committee report that almost passed in the 14th Congress, and includes two amendments introduced by Malacañang to address concerns on national security matters and the President’s ability to get free and frank advice in the deliberation of decisions.

First, the words “national security” were inserted in exception (a), thereby expanding the concept of national security beyond national defense and foreign affairs, as follows:

“SECTION. 6. Exceptions.

(A) The information is specifically authorized to be kept secret under guidelines established by an executive order, and in fact properly classified pursuant thereto: Provided, That 1) The information directly relates to national security or defense and its revelation may cause grave damage to the national security or internal and external defense of the State; or 2) The information requested pertains to the foreign affairs of the Republic of the Philippines, when its revelation may weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with any state: Provided, further, That the executive order shall specify the reasonable period after which the information shall be automatically declassified or subject to mandatory declassification review, and that any reasonable doubt as to classification and declassification shall be settled in favor of the right to information;

Second, a new exception was introduced relating to the President’s deliberative process and communications privilege, as follows:

“SECTION 6. Exceptions.

(B) The information consist of records of minutes, records of advice given or records of opinions expressed during decision-making or policy formulation, invoked by the Chief Executive to be privileged by reason of the sensitivity of the subject matter or by reason of the impairment of the Chief Executive’s deliberative process that would result from the disclosure thereof.  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. “

Contrary to fears that these amendments “watered down” the FOI bill, the changes further balance legitimate interests involved in FOI. The public interest in protecting national security matters and in the President’s ability to secure confidential advice in the deliberation of policy is widely recognized, and is found in existing FOI legislations around the world.

Exemptions Regime Approved

The Coalition also praised the committee report for having “preserved and strengthened the safeguards against abuse of exceptions that we have fought for.” These safeguards include:

  • The narrow scope of the exceptions, achieved by specifying the harm on public interest that we wish to avoid to justify the confidentiality;
  • The reiteration of the jurisprudence that the burden of proving an exception lies with government;
  • The qualification that the exceptions are to be strictly construed;
  • The prohibition against using exceptions to cover-up a crime, wrongdoing, graft, or corruption;
  • The qualification that the President, the Supreme Court, the Senate, the House of Representatives, and the Constitutional Commissions may waive an exception with respect to information under their respective control, when they deem that there is an overriding public interest in disclosure;
  • The proviso that access to information shall not be denied if public interest in the disclosure of the information outweighs public interest in securing its confidentiality; and,
  • The imposition of criminal liability for claiming an exception when such claim is manifestly devoid of factual basis.

“We also note the expansion of the list of documents that need to be disclosed without need of request, to include the SALNs of the highest officials of the country, pursuant to Art. XI, Sec. 17 of the Constitution,” the Coaltion added. “This removes any more excuse to withhold SALNs from the public, consistent with the intent of the Constitution that the burden to lead by example rests on the holders of the greatest power.”

Coalition Assesses Benefits

“In sum, the Senate committee’s substitute bill, if passed, secures the following gains for the people,” the Coalition said, smmarizing it’s benefits::

  • It will impose a uniform and speedy procedure for access to information, thereby removing the room for administrative avoidance;
  • It will free the broadest amount of non-sensitive information for easy access by citizens in availing of government services;
  • It lays down clear limits on exceptions, subject to safeguards against abuse;
  • It identifies a list of documents of high public interest that are required to be disclosed without need of request, including SALNs;
  • It introduces basic standards on government’s record keeping and introduces various mechanisms to facilitate easy access of information; and,
  • It introduces better remedies to denial of access and violation of our right to information, including the imposition of administrative and criminal liability.

 The Coalition also commended “Senator Honasan’s initiative to deepen the conception of the right to information, from one based mainly on principles of accountability, anti-corruption, and people’s participation, to include the idea that the people own the information held by government.” The committee report based this assertion on the first Constitutional principle (Article II, Section 1 of the 1987 Constitution) that “sovereignty resides in the people and all government authority emanates from them.”

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