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FOI bill well positioned for passage by Philippines Congress

Right to Know! Right Now Coalition

This R2KRN statement was originally published on cmfr-phil.org on 13 May 2015.

The Right to Know. Right Now! Coalition (R2KRN) statement.


Congress resumed session on May 4, 2015, with the proposed People's Freedom of Information Act well positioned for passage.

After months of deliberation by a Technical Working Group, the House Committee on Public Information approved (9 votes in favor, 3 against) on November 24, 2014 a consolidated version of 24 FOI bills. On March 5, 2015, the House Committee on Appropriations approved the appropriation provision of the bill.

This paves the way for the House plenary process on the FOI bill to begin. If approved on Second and Third Reading, the bill will be reconciled with the Senate version already approved on Third Reading and awaiting the House counterpart version as early as March 2014.

Timetable a matter of commitment and leadership


While the FOI bill is well positioned for passage, Congress will be working within a very tight timetable.

Only four weeks remain of the second regular session that ends on June 11. Congress and the Executive have enrolled the passage of the Bangsamoro Basic Law or BBL as their top legislative priority during the period. After adjourning on June 12, Congress will only resume session on July 27, when President Aquino will deliver his last state of the nation address. The FOI bill will then have to compete for time with other pending measures, foremost of which will be the 2016 budget. By the time of filing of candidacy in October 2015, legislators and other elected officials will also expectedly devote increasing attention to electoral matters.

These time limitations are apart from the political resistance that the FOI bill has historically faced.

Given our experience with FOI in past Congresses, we believe it is imperative that Congress is able to ratify a Bicameral Conference Committee Report before Congress goes on recess in December 2015, if we are to see the FOI Bill passed into law within the term of President Aquino and the 16th Congress.

According to this timetable, we believe it necessary that the bill is sponsored and the period of interpellation be started substantially during the session from May 4 to June 11. It is crucial for the period of interpellation to start immediately, in order to allow sufficient time for the committee, authors, and advocates to address any remaining issues that may surface.

Congress Action on FOI Tracker

The Right to Know. Right Now! Coalition will monitor the action of Congress on FOI in the coming days, weeks, and months.

We have set up an online Congress Action on FOI Tracker that will provide the public with timely and regular updates on the status of the FOI Bill.

The FOI Tracker will also provide a periodic assessment of Congressional commitment on the passage of the FOI Bill. The assessment will be based on the substantive quality and integrity of the bill in terms of the people's right to information. It will also track Congressional action based on the following timetable:

  • May 4 to June 11, 2015 Session – Second Reading and Debate should commence in the House of Representatives, with Sponsorship completed and Period of Interpellation substantially started by Adjournment Sine Die.
  • July 25, 2015, when Third Regular Session of Congress starts – The continuation of Period of Interpellation must be calendared immediately.
  • September 2015 – Period of Interpellation or Debate must have been closed or terminated.
  • October 2015 – Period of Amendments must have been completed.
  • November 2015 – The People's FOI Bill must have been approved on Second and Third Reading.
  • December 2015 – The Bicameral Conference Report must have been ratified by the Senate and the House of Representatives.
  • January 2016 – The Enrolled People's FOI Bill must have been presented to the President for approval.
  • February 2016 – The People's FOI Bill must have been signed by the President into law.

The FOI Tracker has a meter assessing Congressional action, with a green zone denoting good performance; a yellow zone denoting performance that needs improvement but still with optimistic outlook on the bill; a red zone denoting bad performance and pessimistic prognosis on the bill; and a black zone denoting that Congress is evidently out to kill the FOI Bill.

As of today, with the quality and integrity of the bill intact, with the Senate bill passed on Third Reading, and with the House bill well positioned for passage, Congress's action on the FOI bill remains in the green zone.

Makabayan's unreasonable benchmark

During the plenary process, we anticipate that the Makabayan bloc will resurrect the objections it has articulated in a Position Paper submitted to the committee. These objections have centered on the exceptions that Makabayan argues could weaken the bill.

We agree with the answer to the Makabayan Position Paper by other authors of the FOI bill. We join their overall assessment that the consolidated bill approved by the Committee on Public Information "is a genuine and strong FOI bill that fully protects the people's right to information while carefully balancing it with legitimate interests of individuals, the state and the bureaucracy."

We add that Makabayan's assessment that the committee report is "a greatly watered-down and weakened version" appears to be premised in part on their FOI bill, which in our humble view provides an unreasonable benchmark on exceptions. In its bill (House Bill No. 347), Makabayan advocates a near absolute right to information, and does not admit reasonable exceptions based on legitimate competing interests and rights.

Section 5 (a) of its bill reads:

"No public officer, employee or government institution falling under Section 3 hereof shall withhold public scrutiny of sources of official information or matters of public concern and interest under Section 4 hereof on the grounds of national security, public order and safety or that the information is specifically exempted from disclosure by any other statute, common law and international law principles, and pertinent jurisprudence. PROVIDED, that the sole and only exception to rule on mandatory compliance is when it is established by substantial evidence in a court proceeding that the purpose of the examination is to abet or promote or commit criminal acts defined and/or enumerated in existing statutes or to engage in sheer and idle curiosity."

In truth, from Sweden in 1776 to Mozambique in 2014, 103 countries with a combined population of 5.8 billion have passed FOI and access to information laws. These laws, including those in the most developed economies, invariably spell out exceptions, and appropriate remedies for citizens.

To be sure the House Committee's consolidated bill is not perfect when seen from differing perspectives. We appreciate the articulation of these perspectives. These will promote clarification of legislative intent in interpellation, and when merited, may result in amendments that further refine the bill either in House plenary or at the bicameral conference. The articulation of these perspectives can also assist the public in making an informed position on the emerging FOI bill.

On our part, we are set to work for the amendment of a criminal provision in the Senate bill, if and when the bill reaches the bicameral conference stage. Section 22 (e) of the Senate version makes criminally liable "any individual who divulged or released information covered under Section 7 of this Act." We will seek the deletion of this paragraph.

This act, we believe, is already penalized under existing law, specifically by Article 229 of the Revised Penal Code, which states:

"Article 229. Revelation of secrets by an officer. – Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 50 pesos shall be imposed."

We note that in addition to confining the application of the act to public officers, the said criminal act under Article 229 also has the required element of "damage to the public interest." In contrast, the Senate provision penalizes mere disclosure and by any individual. We are concerned about the negative implications of this on freedom of the press and on freedom of expression.

Click here for the full list of signatories to this statement.

Background

The Center for Media Freedom & Responsibility is a member of the Right to Know. Right Now! coalition - a network of about 160 organizations and individuals from various social sectors and civil society groups, which have long been campaigning for the passage of an FOI Act.

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