Freedom of information: What's lacking in Duterte's EO?

MANILA, Philippines (UPDATED) – President Rodrigo Duterte’s landmark executive order on freedom of information may have been well-received, but some FOI advocates say that much has to be done to ensure its effectivity.

Senator Grace Poe, sponsor of the FOI bill in the 16th Congress, said a law is still needed to institutionalize freedom of information. After all, the EO only covers government agencies under the executive branch.

“Simply put, EOs are most often regarded as internal or simply within the confines of the executive department at the most,” Poe said in a post on Twitter.

“Hindi po covered ang Senado, Kongreso, o ang judiciary. Alam po ninyo ay marami ring kurakot sa mga branches na ito. Importante ay mabantayan din, kaya para sa atin dapat talaga isang ganap na batas, para 'pag nagkamali ka hindi lamang mababa ang parusa kundi mabigat-bigat din para walang lulusot,” she said in a separate interview.

(The Senate, the House of Representatives, and the judiciary are not covered. You know, there are also many thieves in these branches. It is important to watch them, that's why, for us, we really need a law, so if you violate it, the punishment won't just be simple. It should be heavy so there's no way out.)

Despite this, Poe and other media groups acknowledged that the EO is a first step toward transparency.

For AlterMidya National Chairman Luis Teodoro, the order is “an important step in promoting transparency and accountability in government" and press freedom.

The National Union of Journalists of the Philippines shared the same sentiment.

“This is a gesture we are sure not only media but everybody who believes transparency and accountability indispensable to good governance and democracy highly appreciates,” NUJP Secretary General Dabet Panelo said in a statement.

The FOI bill has been languishing in Congress, with the Senate repeatedly passing it and the House of Representatives blocking its passage.

While lauding the move, Teodoro highlighted the need for Congress to pass the FOI law.

“If crafted and implemented well, a Freedom of Information Act will enhance and strengthen democracy. Without accessible information from all branches of government that they are tasked to monitor, journalists cannot fulfil their ‘fourth estate’ responsibility.  At the same time, neither can citizens access the information needed in demanding accountability across the public sector,” Teodoro said.

Newly-elected Senator Sherwin Gatchalian said it is high time for Congress to work harder to pass a “full-fledged” FOI law.

“This will forever institutionalize accessible mechanisms for the free flow of information between government and the People. Personally, I pledge to lobby for the swift passage of a comprehensive and powerful FOI Law in the Senate,” Gatchalian said.

Senator Francis Pangilinan said:  “Hindi pa tapos ang ating trabaho. Ang ehekutibo lamang ang sakop ng executive order. Kailangan pa natin ng batas sa Freedom of Information na sakop ang lahat ng antas ng burukrasya."

(Our job is not yet complete. The executive order covers only the executive branch. There is still a need for a freedom of information legislation to ensure transparency at all levels of the bureaucracy.)

No ‘well-defined’ exceptions yet

Poe, who ran against Duterte in the May 2016 polls, said the EO has so far given no clear information on the exceptions – something as crucial as the EO itself at it sets what information will be available to the public.

Unlike the EO, which grants power to the Department of Justice and the Solicitor General to submit list of exceptions, the Senate bill earlier approved had “well-defined” exclusions.

“In the EO, there seems to be much discretion given to the head of office who has custody of the information. Each government office is supposed to come up with a manual,” Poe said.

The EO states that no person requesting for information shall be denied access unless the information sought "falls under any of the exception enshrined in the constitution existing law or jurisprudence.”

The DOJ and the OSG will also serve as the oversight bodies. They will decide on requests for information that may affect national security.

Teodoro and Panelo expressed hope that the exceptions - which are yet to be announced in public - would not diminish the essence of FOI.

“The question now is how long will the list of exceptions be. If too long, the list may restrict rather than expand access to information,” Teodoro said.

“Although the bill seems better than the version of the bill that the previous administration had endorsed in Congress, we hope that any exceptions to the EO’s coverage will not dilute its essence and intent,” Panelo said.

What about funding, criminal raps?

Another long-term feature missing in the EO is the provision for funding. Poe said there has to be structures and mechanisms in place to “institutionalize” the program.

“The EO does not provide for funding; but we can provide appropriations through our law. We need to institutionalize the FOI program so that it will not be removed or underfunded depending on the whims of the next president,” she said.

Another difference between an EO and an FOI law is the kind of penalties it imposes on violators.

Since the scope of the EO covers only the executive departments and agencies, cases will be administrative in their nature. As such, it only provides administrative and no criminal liabilities.

“On the other hand, the law can define what acts constitute crimes, and can provide specific administrative and criminal sanctions and penalties, including imprisonment and fines,” Poe said. – Rappler.com

Camille Elemia

Camille Elemia is a multimedia reporter focusing on media, technology, and disinformation.

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