Freedom of Information law: will it pass under Duterte?

MANILA, Philippines – It has been a politician’s promise time and again. But like most campaign promises, the Freedom of Information (FOI) law remains a draft on paper.

With President Rodrigo Duterte’s signing of the historic executive order on FOI, some groups have become optimistic the measure will ultimately hurdle decades-long obstacles in Congress. But will it?

Some advocates, however, are still dissatisfied with the EO. While they acknowledge its significance, some analysts and lawmakers said a law is still needed to institutionalize access to public records. (READ: Freedom of Information: What's lacking in Duterte's EO?)

While the President has signed the EO, the prospect of an FOI law remains unsure as only Congress – both the Senate and the House of Representatives – has the power to institutionalize it. And looking back, the House of Representatives has made it intentionally difficult for the measure to survive the legislative mill. Some political analysts and strategists have repeatedly said Congress has proven that they could not legislate against its own interests. (READ: The problem with Con-Ass? Distrust of Congress)

Case in point: the contentious Right of Reply provision, which requires the media to give people who want to reply to their critical reports equal space or airtime as the original report – something that media groups oppose.

This issue became more pronounced after the highly controversial issue of the Priority Development Assistance Fund or pork barrel, when most lawmakers were linked to anomalous transactions. (READ: Report on Luy list revives House push for right of reply)

During the 16th Congress, lawmakers opposed the consolidated version until the very last minute. The bill remained pending before the House Committee on Rules because legislators did not want the absence of a right of reply provision.

With all this, one thing is clear: Even as Duterte himself has vowed to prioritize FOI in his own turf, advocates said it would take more than an EO to enact into law the much-awaited legislation, as he himself has to rally his allies in Congress to approve it.

Senator Grace Poe, the author of the FOI bill in the Senate, said: "We also appeal to our President that we need more prodding in Congress so that the actual bill is approved into law. This is more to [make it more] lasting, because it doesn't matter which administration is in office because if it is a law, they cannot just not implement it, but if it is an executive order it will always depend on who is the sitting president," Poe said in a televised interview.

This was the very criticism thrown against former president Benigno Aquino III.

In the 2009 presidential campaign, then candidate Aquino promised to pass the FOI law if he wins. Fast forward to June 30, 2016, Aquino ended his 6-year term with no FOI law in sight. (READ: What happened to FOI under Aquino?)

For the former leader, there was no push for the FOI as his administration had supposedly practiced the tenets of the measure – disregarding the need to institutionalize the measure.

Future of FOI

Leading the House of Representatives and the Senate are two allies of Duterte. House Speaker Pantaleon Alvarez and Senate President Aquilino “Koko” Pimentel III have so far committeed to the passage of the law.

Pimentel said there is no reason for Congress not to pass the law as the President himself has already made the first move.

For the Senate, Pimentel is “confident” that the bill will be approved. This comes as no surprise as the Senate had indeed passed the measure in the past. It is the House that finds issue with it.

"The President can expect the Senate to follow his lead with a bill to implement freedom of information throughout all branches of the government," Pimentel earlier said.

The Senate is keen on passing the bill, with Senator Grace Poe, Duterte’s rival in the 2016 polls, heading the committee on mass media and public information.

"So I’m sure confident sila na papasa po ‘yang FOI bill sa Senado (they are confident that the FOI bill will be passed in the Senate),” Pimentel said.

Alvarez, for his part, urged lawmakers to pass the measure, citing Duterte’s exemplary move in signing the EO.

“The President has started the ball rolling in the direction of greater transparency in government with an executive order on freedom of information. We should do our part and enact a meaningful Freedom of Information Law applicable to all branches of government,” Alvarez said.

He added: “The greatest crimes are committed in dark secrecy. A Freedom of Information Law will bring the light of truth and transparency into government transactions.”

While there are doubts in the House, Pimentel is confident that their counterpart will heed Duterte’s call.

Kung meron nang FOI ang Presidente, wala akong maisip na dahilan para tanggihan ‘yan ng House of Representatives,” Pimentel said.

(If the President already has an FOI, I can't think of any reason why the House of Representives will reject the measure.)

While the issue of whether it will be approved or not is important, the kind of FOI law that will be passed is equally crucial.

Will it have a right of reply provision? What exceptions will be included? Will it be a watered down version?

Bigger purpose

In the Philippines, while the Code of Ethics does make it the obligation of government offices to make public documents available, journalists have found time and again that requests may be refused without any clear grounds. Sometimes, it even takes a long time for offices to respond to requests. (READ: Why the Philippines needs a freedom of information law)

Selective release is true even for requests for asset disclosure statements despite the clause in the law that specifically requires custodians to make such documents available for duplication within 10 days after they have been received.

This is where one could clearly see the stark difference between the two houses of Congress and how they deal with the people’s right to information.

The House of Representatives releases only a summary of the wealth of House members, while the Senate regularly releases full copies of senators' SALNs to the media.

The Government Procurement Reform Act also mandates transparency in the procurement processes and equal access to information for bidders, but stops short of requiring access to the actual contracts.

Oftentimes, journalists have to go through insiders to get copies of government contracts.

But contrary to popular belief, FOI is not just purely for the media as it can benefit ordinary Filipinos, too. Without FOI, citizens’ requests from government agencies will continue to drag.

“Kung may anak kayo na nasa state university or colleges tapos sinabi wala nang budget, puwede ninyong hingin kung ano talaga ang pera na napunta sa unibersidad na iyon,” Poe said.

(If you have a child studying in a state university or in colleges and then they say there's no more budget, you can check the amount of money given to the school.)

“Kung kayo ay magsasaka at kailangan ninyo kung ano ang mga proyekto ng gobyerno sa Department of Agriculture, o kung ano yung perang inilaan doon, puwede na kayong pumunta doon at hindi kayo puwedeng sabihan na ito ay impormasyon na hindi ninyo dapat makuha,” she added.

(If you are a farmer and you need to know the projects of the government in the Department of Agriculture or the budget set for that, you can go to their office and they cannot tell you that this is information you can't get.)

Opposition to the law

Lawmakers who are against the FOI law claim that this could allow certain government information to fall in the hands of “bad social elements”, "enemies of the state", or even "irresponsible media."

Former Speaker Feliciano “Sonny” Belmonte Jr said most lawmakers fear the law might be used for political persecution. (READ: Who are against the FOI bill?)

“It had my blessing but it would have antagonized a lot of people, they believe for instance, some of them have already worked in government and so forth, and they think that the moment you do this, all your enemies will pounce on you. Everything, your entire life is open and this country, being such a political country, you end up having to defend this, that,” Belmonte said in an earlier interview.

But that is the very thing the measure sets out to do – make default free access to public information and set limits of access and grounds for refusal.

Other countries, such as the United Kingdom, Norway, United States, and Japan limit access to the following types of information: (READ: Fast facts: Freedom of Information laws around the world)

The bill passed in the Senate in 2014 set similar restrictions. These include information that would jeopardize national security, foreign relations, law enforcement operations, trade and economic secrets, individual’s right to privacy, privileged information as considered in judicial proceedings, or information made in executive sessions of Congress, and those covered by presidential privilege.

Such exceptions, however, cannot be used to cover up a crime, wrongdoing, and other illegal activities.

With all the intricacies of the law, it remains to be seen how swiftly Congress will pass the measure. After all, aside from FOI, they will have to deal with other priority bills of the President, such as the restoration of the death penalty and Charter Change. 

Now that Duterte wants a Constituent Assembly to amend the 1987 Constitution, both chambers might have little to no time left to attend to their legislative affairs.

This all the more raises the question: Can Congress – especially the House of Representatives – go beyond their own interests to pass the FOI law? After all, most of them are now riding on Duterte's platform of change.  – Rappler.com

Camille Elemia

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

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