N.B. – This was published in Asian Correspondent (June 7, 2:20 p.m.) where I write a column (Philippine Fantasy). I also gave written permission to The Philippine Reporter, a Canada-based newspaper, to publish this article which the newspaper did in its June 16 issue.
For the next administration, the proposed Freedom of Information Act (FOIA) could be a priority because it is “watered down” already.
When a party-list member of the House of Representatives (HOR) said that the incoming 15th Congress might pass a “watered-down” version of the bill, he misses the point entirely: As it is, the proposed FOIA is already weak in substance. While having an enabling law to strengthen the constitutional provision of the people’s right to information is necessary, Senate Bill No. (SBN) 3308 and House Bill No. (HBN) 3732 do not guarantee the freedom they are supposed to uphold and protect.
The proposed FOIA has a “legal presumption in favor of access to information (Sec. 5).” It does not, however, have a “sunshine clause” that compels the Philippine government to declassify confidential documents that are deemed to have permanent historical value. Citing the case of the United States’ FOIA, I wrote in the past that then US President Bill Clinton “signed Executive Order No. 12958 in April 1995 which authorized the release of previously classified national security documents ‘more than 25 years old and [and deemed] to have permanent historical value under title 44, United States Code (Sec. 1.6c of EO 12958).'”
What is preventing the Philippine Congress from adopting a sunshine clause which guarantees declassification of selected confidential documents? Perhaps the concerned legislators are aware of the success of certain US media organizations in exposing, for example, the torture methods of the Central Intelligence Agency (CIA) in Latin America during the 1980s. Given this, they cannot imagine the impact of declassification of documents, particularly from the Philippine military during Martial Law from 1972 to 1986, which may expose the plethora of government wrongdoings like human rights violations. For the government officials supporting outgoing President Gloria Macapagal-Arroyo, their imagination apparently runs more wildly as they think about the repercussions of the eventual declassification of documents pertaining to government transactions from 2001 to 2010, as well as controversial issues like alleged fraud in the 2004 elections.
If and when he assumes office, leading presidential candidate Sen. Benigno “Noynoy” Aquino III may greatly benefit from the declassification of confidential documents related to the assassination of his father, Ninoy Aquino, in August 1981. If only for this, the incoming administration should support the inclusion of a “sunshine clause.”
That it is called “sunshine clause” has apparently to do with the effect of declassification: It helps “shed light” on issues by putting erstwhile confidential documents that have historical value out in the open after a certain period of time.
Political vampires in Congress and beyond are therefore expected to block the passage of such a provision. It is likely that they will find acceptable the current version of the bill. However, Rep. Bienvenido Abante’s statement after the non-passage of FOIA last Friday shows that the certain government officials want the bill to be prospective and not retroactive. This means that if the powers-that-be would have their way, government transactions prior to the law’s effectivity would not be covered.
Any provision to this effect would definitely weaken the already watered-down FOIA: This, after all, could deprive the public, especially the media, of crucial information pertaining to the past actions of President Gloria Macapagal-Arroyo whose administration from 2001 to 2010 had been beset with numerous controversies.
Concerned individuals and groups should therefore resist any move to make the already watered-down FOIA from getting any weaker. They should consider the following courses of action:
- Include a “sunshine clause” that will compel the government to disclose confidential documents with historical value after 25 years.
- Reject any provision that would make the FOIA prospective in nature. If necessary, a provision explicitly stating the FOIA’s retroactive nature should be included.
- Provide a special provision for the government agencies’ expeditious granting or denial of information requests from journalists, subject to the same “procedure of access” as stated in Section 9(a).
The first two recommendations should be seen as absolutely necessary to strengthen the FOIA. The third, on the other hand, should be considered an acknowledgment of the workings of the press where deadlines are an everyday reality, and that subjecting journalists to a maximum of a seven-day working period (Sec. 9e, SBN 3308) is simply unacceptable.