Setting the stage for a Philippines FOI law

6 March 2014

By Purple S. Romero and Jerryll Reyes

The authors co-wrote a chapter on the “Politics of Freedom of Information Bill in the Philippines” in the book Room for Maneuver: Social Sector Policy Reform in the Philippines. The book, published by The Asia Foundation, will be launched on March 4. This article appeared originally March 1 in Rappler.

2014 is the year when it is most crucial to have the future of the Philippines’ Freedom of Information (FOI) bill spelt out.

This year came on the heels of critical events that brought the issue of transparency closer to home for Juan dela Cruz. The multibillion-peso pork barrel controversy and the Super Typhoon Yolanda tragedy lent a human face to the need for disclosure of public information and accountability, increasing the urgency for measures that institutionalize and streamline access to government data.

Suddenly, everyone was asking where our taxes went and how government and international funds were being used. The questions were raised by different voices; the interest, held by different sectors.

Because of the pork barrel controversy, farmers asked about the allotment of the Priority Development Assistance Fund (PDAF), which should have gone to them instead of the alleged dubious non-governmental organizations of businesswoman Janet Lim Napoles, and electricity consumers have inquired about the Malampaya fund, or revenues from the exploration and development of the Malampaya gas field.

This is an important shift for those seeking to have the bill passed as it extracted the fight for the FOI bill away from media advocacy alone to an issue that resonates more with the man on the street.

2014 is also two years away from the 2016 general elections, making this period an opportunity and a gamble at the same time for FOI bill advocates. It serves as a window for making the FOI bill a key election issue, a time that might also serve as a reminder that FOI was, after all, a 2010 campaign promise of President Aquino.

His anticorruption platform clearly says, “Support to uphold the people’s right to information on matters of public concern and support the enactment of the Freedom of Information Bill in Congress.”

The timing is also tricky, however, as politicians – including President Aquino himself – are expected to use their energy and time on election preparations next year, if not earlier. The FOI bill could be a priority or could be sidelined altogether, depending on where it fits into the election strategy of the Aquino administration and its opponents, and members of Congress up for re-election.

Advocates of the FOI bill believe that it should be passed now as it will institutionalize the preservation and release of information that shapes government actions, decisions, functions, and power. It is also supposed to penalize government bodies that will prevent access to public records, with exceptions of information on national security.

Global movement toward transparency also increased the pressure for a democratic country like the Philippines to legislate access to public information. The administration’s tilt toward transparency, accountability, and citizen engagement and its membership in “Open Government Partnership” provide such a window for the right to information advocacy.

Politics of the bill

In one of the chapters in the book Room for Maneuver: Social Sector Policy Reform in the Philippines, we tried to tease out lessons from decades of FOI advocacy which might be important in moving forward.

The story of the FOI bill shows how the political dynamics between the executive and legislative branches influences the lawmaking process. It also relays how institutional interests and capabilities define the pace of creating laws. These interwoven factors have made the fight for the FoI bill an uphill battle for more than 20 years.

The case highlights the important role of committed advocates in both houses as key supporters and champions in driving the reform process. The challenge remains, however, in finding policy champions who are willing to spend their political capital in making this change. While the FOI bill is perceived as a tool for reform, passing it is also considered a political risk because it may change and challenge existing power configurations.

Bottleneck in House

While there have been changes in both houses since the 2013 elections, the bottleneck remains to be in the House of Representatives more than the Senate. Senator Grace Poe signified her interest to champion this bill as soon as she was elected. The Senate leadership through Senator Franklin Drilon was very vocal as well in supporting this proposed legislation. While his counterpart in the House of Representatives, Speaker Feliciano Belmonte, said that he will make sure that FOI bill will be passed under his term, he has prioritized amending the charter’s economic restrictions instead this year.

This pronouncement makes the House of Representatives the usual battleground for the FOI bill. Under the administration of then President Gloria Macapagal Arroyo, the FOI bill reached the bicameral committee but was killed in the House during the ratification of the committee report.

In the lawmaking process, reconciling versions of the bill emanating from both chambers signals an important step toward having the bill passed. Even when the FOI bill reached this stage in 2010, however, it was killed because there was no decisive, categorical support from the House leadership.

This makes leadership in both houses a critical element in creating real progress for the FOI bill – from initiating public hearings, bringing the bill to plenary, and right through the voting process. The role of the committee heads is also crucial in fast-tracking the passage of the FOI bill. Having them as allies will help in having the bill finalized and approved at the first stage.

Need for Leadership

The FOI case has also underscored an important point which might be true in all reform cases – the support of an incumbent president is absolutely critical, given his or her control of formal processes, and given the extent of the executive’s power.

In making the choice to prioritize a specific bill, a president will need to take into account a number of factors: the relative priority of one bill versus another; the strength of public opinion as well as a president’s own view on a particular issue; the willingness of allies to exert efforts to pass the legislation; and the likely probability of being able to get a bill approved by both houses of Congress.

Without a clear supportive signal from the President, FOI advocates are left with no assurance that the bill will be passed into law. While Malacañang has said that the fate of the FOI bill must be subjected to the standard processes of the legislative mill, a clear marching order from the President can change the equation.

Looking for Windows

Advocates also need to be politically savvy to identify windows of opportunity when they can push for and negotiate the terms of a FOI bill with key players, especially potential presidents during election times.

Continuing to frame and publicize the issue in a way that it becomes more relevant and more easily appreciated by people from various socioeconomic classes should also be a central aim of the advocates. One of the criticisms of the bill and the advocacy itself was that it was always seen as an “intellectual” issue, primarily promoted by media. In fact, it was pointed out that the executive saw no urgency in acting on the freedom of information because there is no groundswell coming from different sectors.

While this was the case, advocates have yet to build on this strategy to be able to strengthen public clamor for it and to make the campaign a multisectoral effort. The events specified above – the Yolanda recovery and reconstruction efforts, and the case of alleged misuse of pork barrel – could be seized as opportunities for building public support for the proposed measure.

Tilting the political agenda towards passing the FOI bill will require an alignment of the interests and priorities of the executive and legislative chambers. Timing is key, as well as the utilization of formal and informal processes. Messaging is imperative – FOI advocates could attack or engage the political players, or do both – but either strategy should attain the ultimate objective of creating necessary momentum and drawing a clear map of incentives or consequences for political leaders.

Interestingly, the FOI is a bill that nobody openly hates or rejects, but it is also a proposed measure that raises questions of trust between stakeholders. Public officials said it can be abused, but advocates said opacity in government transactions and actions can be more inimical to real progress.

It has been more than two decades since the first FOI bill was filed in Congress, and the same challenges to the advocates remain. 2014 is the year when making the passage of the FOI bill relevant and urgent becomes a real test.

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