Who Opposes the FOI Bill in the Philippines?

3 August 2012

 By Nepo Malaluan

Malaluan is a Trustee at the Action for Economic Reforms and Co-Director of the Institute for Freedom of Information. He is also Co-Convenor of the Right to Know. Right Now! Coalition, a network of more than 150 organizations from various sectors that have long been campaigning for the passage of the Freedom of Information Act.

President Aquino demonstrated in his third State of the Nation Address (SONA) the direct link between good/clean governance and positive socio-economic outcomes. For choosing the straight and righteous path, using power for the public good rather than abusing it, casting aside the practice of kickbacks and favoritism, and relentlessly pursuing offenders to account for their actions, the President reports a windfall of compelling national gains. The Executive’s proposed budget for health and education has increased, its poverty-alleviation schemes are broader and better targeted, the bidding and roll out of infrastructure projects are better managed, programs are more effective, and the country’s investment outlook has been upgraded.

It is this direct and concrete link between good/clean governance and positive socio-economic outcomes that animates the continuing and urgent call for the passage of the Freedom of Information (FOI) Act. Institutionalization and people’s participation are crucial, and an FOI law will play a key role in all these. As President Aquino himself emphasized in his SONA, “our fight does not end with the ousting of one corrupt official, with the suspension of an anomalous contract, or the systemic overhauling of a government office”.

FOI advocates have thus welcomed the endorsement by the President in January this year of the passage of the FOI law. But we were so saddened that the President’s third and latest SONA – as did his first and second – was deafeningly silent on whether or not his reported support for FOI is more real than just a press release.

No Push for Evardone

We were so saddened not so much because we want to find fault in the apparent gaps of what the Executive now calls “the virtuous cycle” it wants to champion. Our sadness was one of regret over a missed opportunity for the President to tip the balance against the now apparent determination of Rep. Ben Evardone, chairman of the House of Representatives’ Committee on Public Information, to kill FOI by inertia and inaction. Our sadness was also one of confusion over mixed signals from the President: Why is FOI getting less than vigorous push as, say, sin taxes?

So what’s keeping FOI? Or rather, who are holding back FOI?

One argument we are hearing is that an FOI is no longer needed because the Aquino administration has already taken steps to be transparent. We acknowledge the transparency initiatives of the administration, such as the proactive disclosure of budget and project documents. The administration has also assumed a leadership position in the Steering Committee of the international Open Government Partnership.

But this misses half the point, the more important half, in fact, of true and full transparency. It is when citizens request documents that state agencies must conform to one norm – release, disclose documents, subject only to clear and narrow exceptions.

Hence, rather than being redundant, an FOI law will be an important legal framework for the government’s own transparency initiatives. The FOI law will clarify the scope and limitations of available information. Such clarification embodied in the FOI bill was a product of a very long and careful balancing process, the latest being the work of the President’s own study group. Equally important, the FOI law will lay down a uniform procedure for accessing information that is needed to mitigate the administrative avoidance common among government agencies. Other important features of the proposed FOI law are the introduction of basic record-keeping standards, the mandatory disclosure of a number of documents of high public interest, and the specification of sanctions for violations.

We also note that transparency (and this also goes with corruption eradication) remains uneven at different agencies and levels of government, and this could be part of the same old practice that the Aquino administration is waging a war against. A survey on FOI conducted by the Social Weather Stations in December 2011 finds that, of the respondents who had experience in obtaining documents from government, only 10 percent expressed satisfaction with the ease of access. Sixteen percent were undecided, while a high 64 percent were dissatisfied.

Public Interest Test Debated

Another argument we hear is that FOI will harm the public interest more than do it good, as government information becomes readily accessible to bad social elements and “irresponsible” media.

This argument is unfortunate, and hints at flawed logic and thought. For one, the FOI bill affords protection, by way of exceptions, to information the disclosure of which will harm public interest. Provisions to safeguard against abuse of FOI can also be adopted, as was done by the Senate Committee.

For another, it grossly understates the power of government to defend itself. If the acts are outright criminal, it has command over the police (even the military under certain circumstances) and prosecution to address the criminal act. If it is adverse opinion or falsehood that it is concerned about, government is not wanting in access to mass media to correct, clarify, or present its counter opinion.

An FOI law, in the context of a good, clean government, will further consolidate the forces of reform. In the context of an abusive, bad government, it empowers citizens to defend themselves and to exact accountability. An FOI law cements the “matuwid na daan”, ensuring it is preserved for generations of Filipinos, long after President Aquino’s term has ended.  An FOI law assures that the “virtuous cycle” of god governance will not ever relapse into a “vicious cycle” of corruption, long after the Aquino administration’s term is up.

Having an FOI law secures the public interest rather than jeopardizes it. This is the message of Senate President Enrile in his speech at the opening of the third regular session of the 15th Congress. He said: “The benefits of transparency are mutually advantageous to civil society and government. The vigilance of our citizens becomes the standard by which our public leaders will be measured. Transparency parts the curtains of corruption and illegal practices. In turn, accountability, will refine decision-making, and make leadership and public institutions more responsive and efficient.”

Bill Still Can Pass

The first question is: Can the FOI bill still become law in the 15th Congress?

Certainly. The Senate has given its commitment to pass the measure at the soonest, and it has so far matched this commitment with action. At the House, while Rep. Ben Evardone has been obstinate in delaying the measure, the House leadership, and the President, have all the power and influence to bring him into line.

The second question is: Will the FOI bill be passed in the 15th Congress? Put another way, will President Aquino, Speaker Feliciano Belmonte Jr., and their Liberal Party coalition push for the FOI bill’s passage into law in the 15th Congress? They have all dutifully supported the bill in various statements.

But more than proof of words, proof of action on the FOI bill is best. Advocates keep faith that political will and greater trust in the people by the highest leaders of this country will see the FOI bill through before the year is over. Or even better, before the deadline for filing of certificates of candidacy for the next elections comes up in October 2012.

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