Kareen O.

Raguindin Legal Research and Thesis Writing: DRAFT TITLE:

Atty. Osorio

GOVERNMENT SECRECY IS A SHADOW DEMOCRACY. WE demand access to Information. Pass and Approve Freedom of Information Now! I. INTRODUCTION: In the height of the overwhelming corruption that has become a practice and culture in the Philippines, this has become the prime source of impediment to the social and economic development of the country. The government seat has now become a ladder to advance self interest and earn instantaneous wealth through unscrupulous transactions and misuse of public funds instead of upholding the promise of trust and agency to its constituents. The masses are continuously raped from justice and equity as they proceed to their usual practice without being subjected to scrutiny when evidence necessary for conviction are withheld and controlled by the government, holding no one responsible and accountable. Hence, the loophole in our system. With the people remain oblivious to such wrong doings, they are continuously deprived of their right to life, liberty and property and the benefits essential for the enjoyment of the blessings of democracy. As provided in our constitution, sovereignty resides in the people for the people by the people. It is undisputable that supreme power is vested in the people. But to declare so is only a pretense premise when the people themselves are deprived of access to information of public interest in nature. Therefore it is highly crucial to pass and approve the freedom of information law in order to ensure and facilitate the constitutional right of people to access to information of public concern, to attain transparency and accountability, for genuine governance and as a mechanism for anti-

corruption. Freedom of Information is the foundation to an effective and participative citizenry and guarantees other rights towards the development of the nation as a whole. For the right to know is a fundamental right significant in every democratic country and without such is nothing but a shadow democracy. Thesis Statement: AT THE HEIGHT OF THE OVERWHELMING EPIDEMIC CORRUPTION IN OUR COUNTRY, AS A DEMOCRATIC

GOVERNMENT WHERE SOVERIGNTY RESIDES IN THE PEOPLE FOR THE PEOPLE AND BY THE PEOPLE, IT IS CRUCIAL TO PASS AND APPROVE THE FREEDOM OF INFORMATION LAW TO UPHOLD THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO ACCESS TO INFORMATION OF PUBLIC CONCERN INTENDED FOR TRANSPARENCY AND ACCOUNTABILITY, FOR GENIUINE GOVERNANCE AND TO SUBJECT SUCH INFORMATION AS EVIDENCE AGAINST CORRUPTION AND FRAUD IN ALL AREAS OF THE GOVERNMENT. II. THE FOI RIGHT A. Freedom of information is a fundamental right and an internationally protected right. The first United Nations general assembly in 1946 adopted resolution 59 (i) calling of an international conference of freedom information which provides that: Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the UN is consecrated;

Freedom of information is a fundamental human right. Humans who are interdependent to each other for survival, existence and development in a civil

society and in a global standpoint, communication and sharing of ideas is inherent and universal not only as gregarious beings but is imperative to the existence of society and of any form of organization. In akin to the freedom of speech, of expression, or of the press law, freedom of information is of identical importance. To restrict and deprive information would impede the peoples right to public opinion which includes scrutinizing and disapproving of government misconduct. Little knowledge of information thus results to less responsive and less participative citizenry. Likewise right to access to information of public nature is essential in a democratic government. All government acts must emanate and come from the will of the people. Having the right to information allows the people to see whats going on behind the curtains and any mismanagement and corruption practices can easily be noticeable. The Philippines, a member of the United Nations since October 24, 1945 has yet to pass the freedom of information act which is now pending in the Congress for the first reading. To date, there are over 90 countries who have adopted the freedom of information act and others in resemblance to such act. The worlds first freedom of information legislation was adopted by the Swedish parliament in 1766. The enlightenment thinker and politician Anders Chydenius (17291803), from the Finnish city of Kokkola, played a crucial role in creating the new law. As Professor Juha Manninen describes in his article, the key achievements of the 1766 Act were the abolishment of political censorship and the gaining of public access to government documents. Anders Chydenius legacy has received increased recognition globally. [i]

Between 26 years after the change in Constitution there are several attempts to pass freedom of information act in the Philippines but unfortunately it remains deadlock, overlooked and given less priority by legislators. The first ever filed in congress was the Freedom of Information Act of 1992. The most recent is the House Bill no 53 introduced by Representative Lorenzo R. Taada III in the 15th congress. B. The right to Access and Information Freedom of Information is the right of every citizen to access to information held by the executive, legislative and judicial departments including all its agencies and institutions as well as government owned and controlled agencies. The law provides the legal process granting full disclosure of information of public interest in nature, imposing sanctions and penalties upon those in violation of such right. But this is not an absolute right; freedom of information law also provides exceptions to the contrary on matters necessary for national security. Information is to be subjected to public scrutiny as an important aspect to a democratic society and a fundamental right internationally recognized by law. Such right allows the people to asses actions implemented by the government on the concurrence of the rule of law and their mandate, the needs of society and as well as its efficiency and effectiveness while providing complete, reliable, impartial, qualitative and quantitative information necessary for a responsive and efficient participatory of its citizens in the decision making process in all areas of the government. Whereas the 1987 Constitution, Article III of Section 7 of the Bill of Rights explicitly provides that: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used

as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law. It clearly shows that information must be afforded to the people. However, such constitutional mandate is not enough. And though the provisions are selfexecuting, legislative aid is necessary in order to guarantee and safeguard the implementation of such right. The absence of standard and implementing procedure together with sanctions and penalties and its exceptions would enable the government officials to willfully deny information on basis of their discretion, regardless of the cause and concern of the people. With no other remedy than for the person seeking information to file an action in court for the exhibition of information, causing delay when want of information is needed, going through unnecessary proceedings when the law itself is already clear. Legislative enactment is an enabling factor for the establishment of procedures for the speedy, timely and availability of information. In the case of Valentin Legaspi vs Civil Service Commission, petitioners invoked the fundamental right of the people to information on matters of public concern on a special civil action for mandamus against the Civil Service Commission when the latter denied the request of the petitioners for information on the civil service eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. The court ruled that the petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. (i) In relation to the right to be informed the state is duty bound to an open, accountable and transparent government. As provided in the constitution Article II of section 28:

Subject to reasonable conditions prescribed by law, the state adopts and implements a policy of full public disclosure of all its transactions involving public interest. In line with the provision on section 27 of the same article it also provides that: The state shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. To eradicate graft and corruption practices to a minimal degree, freedom of information law is highly crucial. The state should provide the framework and implementing rules for the disclosure of information. This would promote honesty and integrity among government official and increases reliability and trust when they are easily seen and exposed to the public. Corruption and fraudulent practice would be detectable and traceably allowing the speedy disposition of cases. It is also a tool to ascertain the legitimacy of public expenditures, the distribution of public funds and to determine where taxpayers money is spent. Where sources of information can be acquired directly, uncoated and prejudicial information can now be established for the basis of suffrage and for the public to be involved in the decision making aspect concerning political, social and economical issues. As provided in the constitution under section 16 of article XIII of Social Justice and Human: The right of the people and their organization to effective and reasonable participation at all levels of social, political, and economic decision- making shall not be abridged. The state shall, by law, facilitate the establishment of adequate consultation mechanism.

C. FOI as an Enabling law The implementation of the FOIA is a primary tool for the effective enforcement of other laws as above mentioned, which also includes the law on graft and corruption and code and ethical standards of public officials. Republic Act No. 6713 or the code and ethical practices of public employees provides under Section 8 that: Sec. 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interest including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. Under the said law, public officials are required to submit their statement of asset and liability and net worth. With the passage of FOIA, SALN is not only be made available to the appropriate government agencies such as the BIR and the DBM but also to the public as well through an official information system of database, wherein information are duly accredited and timely reviewed, for reliability and up to date information made available to the people. To uphold the notion that public office is a public trust, their constituents have every right to be informed of their economic and political status. The masses can craft their own judgment by comparing earnings and expenditures of their delegated officers over years of incumbency of any unusual or suspicious earnings accumulated which should not only be left to the judgment of the judiciary nor to other departments. Since the people is

ultimately the check and balance of all three departments of the state. The judgment of the people is the true test in determining the worthiness of their delegation and the basis of their right to suffrage.

III.

Problems in the framework and establishment of the FOI right. In establishing the FOI act, the scope of application, subject matter, procedures in

obtaining the information, management and information system, quality assurance and testing, cost and fees of producing the information, penalties, exemptions to and penalties in violation of such right, jurisdiction of any legal claim in violation of access to information, independent body in determining quality and quantitative information, and other rules or procedures should be considered in the contents and application of the FOI right.

IV.

Advantages and Disadvantages of the right to Access of Information

The right to access to information is vital in attaining transparency and accountability of public officials. Delegated official will practice with due care and respect for the law and follow vehemently their mandated functions because of transparency. It promotes good governance and trust from the public. To inform the public would not only keep them knowledgeable on governmental actions and decisions but also it guarantees participative citizenry, contributing to shared responsibility in the overall nation building process. However, freedom of information has also its downside. Certain information would be detrimental to national security and would jeopardize international relations which is why exemptions to the right should seriously be studied. Laying out what information would pose

as a threat to national interest and security should properly be established. Another disadvantage includes the question of is its effectiveness. Somehow, politicians will manipulate their way into the law and system in order to include some information to be classified as part of the exemptions. Also, producing information would also be costly. But on the other hand, the overall benefit to the present and futures development of our country outweighs the cost.

V.

Conclusion

Freedom of information act must now be prioritized and implemented into law. To uphold the right of the people to an open, transparent and accountable government is a combat against graft and corruption practices, allows effective participative citizens and in essence indispensable to a democratic society where sovereignty must reside in the people and all actions of the government must emanate from the will of the people.

VI.

Bibliography

Hector S. De Leon: Textbook on the Philippines Constitution 2005 edition Anders Chydenius: The Worlds First Freedom of Information Act http://www.access-info.org/.../Get_Connected/worlds_first_foia.pdf

ARMA International Educational Foundation: Freedom of Information: History, Experience and Records and Information Management Implications in the USA, Canada and the United Kingdom http://www.armaedfoundation.org/pdfs/Freedom_of_Information_in_US_UK_and_C anada.pdf General Assembly Resolutions 1st Session - United Nations

www.un.org/documents/ga/res/1/ares1.htm Representative Lorenzo R. Taada III: HB 53 Freedom of Information www.erintanada.com/advocacies/legislative-work.pdf Maxwell Kadiri: Understanding the Provisions of the Freedom of Information Act, Its Essential Elements and How They Affect Public Institutions, Including Its Implications for Democratic Government. http://www.noa.gov.ng/attachments/article/132/UNDERSTANDING%20THE%20PR OVISIONS%20OF%20THE%20FREEDOM%20OF%20INFORMATION%20ACT.pd f

Center for Media Freedom and Responsibility: Freedom of Information http://prezi.com/wyr5ugyyzqsd

Official Gazette: Proposed substitute Freedom of Information bill of 2012 www.gov.ph/foi