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No laggard?
The Anti-Graft and Corrupt Practices Act, the law that required the Marcoses to
file those disclosure statements dates back to the 1960s. In 1989, years after the
Marcoses were booted out of office, the Philippine Congress enacted a new law
which allowed the public to access and photocopy the assets and liabilities
statements.
Since then, the law has been used to prove a plunder case against another
president (Joseph Estrada), impeach then remove a chief justice (Renato
Corona), file cases against corrupt generals and lately, support the filing of
charges against sitting senators.
That the Philippines enacted such a law almost 3 decades ago is significant
because as of 2006, a World Bank study showed that only 31 of 101 countries
that require government officials to declare their income and/or assets mandate
that such declarations or a summary should be made available to the public.
This implies that the Philippines is no laggard when it comes to laws allowing
access to public information.
Constitutionally-mandated right
The people's right to information on matters of public concern has been
constitutionally recognized in the country since 1973.
Section 6. 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, shall be afforded the citizen
subject to such limitations as may be provided by law.
- Bill of Rights, 1973 Constitution
After the 1986 Edsa uprising ousted the Marcos dictatorship, this right was
further expanded in the 1987 Constitution to include access to research data
used as basis for policy development.
And while there is no enabling law yet on access to information, the Philippine
Supreme Court has already ruled, in more than one occasion, that the
constitutional mandate is enforceable.
In fact, the Code of Ethics of government officialsthe same law that mandates
public access to financial disclosure statements of government officialsalso
makes it the obligation of public officials and employees to make documents
accessible to the public.
The implementing rules of this law helped institute a system of
promotingtransparency of transactions and access to government information. It
also sets limits of access.
More recently, the Aquino administration has been making strides in promoting
transparency in government by proactively disclosing budget and project
documents.
It is no small wonder then that while the Senate has approved the bill on 3rd
reading, members of the House of Representatives continue to drag their heels
on the freedom of information law.
Because if those laws are already in place, why then is an access to information
law still necessary?
To help answer that question, Rappler, with the support of the Friedrich Naumann
Foundation, analyzed freedom of information laws in other parts of the world. We
noted these common features in the laws we studied:
an overall policy making information available
limits of access
prescribed process by which information may be accessed, cost of access,
and processes for appealing request refusals
in recent cases measures to ensure that access policies are enforced
through oversight bodies and penalty clauses
In place of SALNs, the House only releases a summary of the wealth of House
members in a matrix that includes the total amount of real properties, personal
properties, total assets, liabilities and net worth of each lawmaker. (READ:
Solons from poorest region among richest in Congress).
Rapplers request for the full copies of the SALNs of lawmakers, which we file
every year, has been repeatedly denied.
This is in stark contrast with its co-equal branch, the Senate, which regularly
releases the full copies of statements to 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.
Short of going to court, which can be expensive and time consuming, there is no
clear process for appealing refusals of requests for information.
Limits to access
Those who are lukewarm to the proposed FOI law claim that this could allow
sensitive government information to fall in the hands of bad social elements,
"enemies of the state" or even "irresponsible media."
But FOI laws also typically set limits of access or grounds for refusal of requests.
Among the countries whose laws were reviewed by Rappler, grounds for refusal
usually include a list of exemptions, which include these types of information:
security, national defense and public safety
FULL TRANSPARENCY. A law on access to information would address accusations of bias in the
release of information and ensure that reforms will outlive the current administration.
Preserving information
Another important feature of FOI laws in countries Rappler studied are provisions
requiring note-taking, recording and archiving or protecting information.
This is a policy wherein information, especially verbal ones passed on during
meetings, are duly noted down and kept in a journal or register and is properly
archived and protected.
In the Philippines, duty to record and from time to time publish congressional
proceedings, including how members of Congress voted, has been
constitutionally mandated since as far back as the 1935 Constitution. The only
thing exempted from this mandate were proceedings on matters that may affect
national security.
In practice, however, a significant part of congressional budget proceedings,
includingrecords on amendments to the national budget, never make it to publicly
available records.
And while the Aquino administration has indeed undertaken efforts to make
budget information more transparent, information that finally came out following
thecontroversy over the Priority Development Assistance Fund and
the Disbursement Acceleration Program (DAP) clearly show that much about
government financial transactions are still hidden from the public eye.
More on Rappler's coverage of the pork barrel and other discretionary funds here.
Consider this: letters and emails from politicians requesting for release of funds
and responses to such requests would have been part of accessible information
if the Philippines had an FOI law similar to that of Sweden.
Oversight, penalties
One thing that is also clearly missing in the Philippines is a body designated to
oversee that access to information is indeed enforced. There are also no
penalties for officials who whimsically refuse requests for access.
Among the 15 countries in the Rappler study, only Denmark, Norway,
Netherlands and Finland have no independent oversight bodies. The UK, USA,
Sweden, Australia, Canada, Ecuador, Germany, Thailand, Indonesia, Japan all
have oversight bodies.
Most oversight bodies are mandated to:
actively oversee the compliance of the law
act as mediator / settle disputes
receive & examine appeals, complaints
in some cases, perform investigations
Oversight bodies need not be new government entities. In the case of Ecuador,
Sweden and New Zealand, existing bodies such as the Ombudsman, the Public
Defender & the Chancellor of Justice were tasked to investigate FOI-related
complaints.
Because they already have prosecutorial powers, the functions given to these
bodies include prosecuting offenses.
Penal sanctions are also typical of newer FOI laws, Rapplers study shows.
The United Kingdom, which enacted its first FOI in 2000, penalizes individuals
who deliberately destroy, alter, block access, conceal public info with the intention
of preventing disclosure of that info with a maximum fine of 5,000 British pounds
(over US$8,500).
Much closer to home, the Indonesian FOI punishes officials that deliberately
disregard to provide or publish public information promptly and in the process
causes harm to other persons with imprisonment of up to 1 (one) year a fine of
not more than 5,000,000.00 rupiahs (or US$428).
Think of the impact such a policy would have on information that could affect
public safety and welfare.
OPEN DATA. Access to budget data will empower the public to participate in the audit of government
funds
This helps hasten and widen the scope of the audit and address accusations of
political bias in the auditing of public funds. Remember, the report that the
Commission on Audit released in 2013 covered transactions from 2007 to 2009-almost half a decade too late.
As Budget Undersecretary Richard Moya said, opening up the data would "make
auditing everybody's business."
While the Aquino administration has indeed taken steps to making machinereadable information available to the public through the Open Data Portal,
Rapplers own review of the contents of the portal shows that available data still
falls far short of what is known to be kept by most government offices. In many
cases, only summaries are providednot granular, verifiable data. Data is also
not updated in a timely fashion.
Clearly, a little push is still necessary to get data guardians in government to
share their data. Such a provision in the law would also help ensure that the
initiative will outlast the current administration.
Remember the claim of the Philippine National Police that what may seem like a
surge in crime only means crime figures are reported more truthfully now?
It would be interesting to have access to crime data and see how much of what is
logged in police blotters for every station every day actually make it to national
crime statistics.
Balancing act
As Congress continues to dilly-dally on the Philippines' first FOI, it is worth noting
that in most of the countries with right to information laws, these laws have not
remained static since they were first approved.
Changes or amendments were made as part of a balancing act between access,
privacy and national security/ protection of state secrets.
Sweden, the first country to enact a law on Freedom of Information (1776),
passed a Secrecy Ordinance in 1980. In 2009, it balanced access and secrecy
through The Public Access to Information and Secrecy Act.
The United States, the first country outside Europe to adopt such a law in 1966,
has replaced, revoked, vetoed, and reinstated provisions of the law so many
times as the US government responded to issues and scandals that rocked the
White House.
In 2007, years after the 9/11 tragedy traumatized the country, the US Congress
passedThe Open Government Act of 2007. Clearly, it is possible to balance
concerns over security with the need for transparency.
At the end of the day, its really a question of whether we want to wait for another
3 decades to recover money lost through corruption, as in the case of the Marcos
wealth, or we want to prevent or reduce corruption and abuse of office by making
processes more transparent now.