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Philippines: Law must follow Executive Order

This statement was originally published on article19.org on 17 August 2016.

ARTICLE 19 welcomes the Executive Order requiring all Philippine executive branch government officials to fulfil the public's right to information and the President's request to the legislature to follow with a comprehensive law. Combatting impunity for crimes against journalists and state actors' refraining from making statements stigmatising journalists are also critical tools for freedom of expression and information in order to tackle corruption.

The Philippine government adopted Executive Order No. 2 on 23 July 2016, three weeks after the new President assumed office. The Order, which only applies to the executive branch of government, comes after a three-decade public campaign and nine separate bills in the legislature, none of which succeeded. On 15 August 2016, President Rodrigo Duterte called on the Philippine legislature to follow suit and adopt a comprehensive right to information law that was "long overdue".

Philippines joins Vietnam and Sri Lanka with new laws, and Myanmar and Fiji with new bills, in a wave of transparency reforms in Asia this year.

"While the adoption of Executive Order No.2 is a welcome first step to tackle Philippines' comparatively high levels of corruption, it does not absolve the legislature's responsibility to adopt a comprehensive right to information law as commanded by the Philippine Constitution, after three decades of public demand and repeated failed promises. The Order itself also has some weaknesses that should be addressed in any subsequent law," said David Diaz-Jogeix, Director of Programmes at ARTICLE 19.

"As well as strong right to information legal framework, the Philippine government and authorities must refrain from stigmatising journalists and take concrete steps to challenge the culture of impunity for attacks against and killings of journalists. Respect for the rule of law and international human rights commitments and a recognition of the importance of freedom of expression and information in the fight against corruption are now more crucial than ever," added Diaz-Jogeix.


Executive Order No.2 weaknesses

Executive Order No. 2 is an important first step to enforcing the right to information. However, it is significantly limited because it is only an executive order and not a comprehensive law covering all parts of the state. As such, it does not apply to the legislative or judicial branches.

In addition, when compared to international standards, the Order includes the following weaknesses:

  • Section 2 limits the Order to cover national executive government offices only. Local governments are only "encouraged to observe and be guided" by its provisions. This leaves significant space for them to arbitrarily decide whether to accept or reject requests for information at the non-national level.
  • Section 18 limits the Order only to override or repeal existing regulations, rules, and orders, not laws. Any existing legislation which restricts the right to information remains in force.
  • Sections 3 and 9 limit the Order to Filipino citizens only. Section 3 limits the right of access to "every Filipino". This is enforced in Section 9 which requires "valid proof of identification or authorisation". As a basic human right, the right to information should be open to all people. Requirements to show identification are likely to disproportionately impact poor and/or displaced people, who may not have access to identification.
  • Section 4 does not define which information is exempt. The Order includes a number of concerning issues relating to exemptions: 1) exempted information is to be decided by the Department of Justice and the Office of the Solicitor General in 15 days from the date of effect, without public consultation; 2) the list of information can be changed without proper process; 3) information that is limited by any existing laws will be exempt; 4) exemptions are absolute, without consideration of harm or public interest; 5) the Data Privacy Act 2012 may limit access to personal information in many cases.
  • The presumption of release is limited. While the order states that all information is presumed to be public, when information falls under the exemption list, there is a very limited provision to release information that only applies if the denial "is intended primarily and purposely to cover up a crime, wrongdoing, graft or corruption". Therefore, for example, if the denial is to protect privacy or commercial confidentiality and hides corruption or toxic pollution releases, it will not apply.
  • Section 10 requires applicants to show reasons for the request. Section 10 requires that applicants show proof of identification and provide "the reason for, or purpose of, the request for information." This is somewhat limited in the following sentence about denials but still violates the right to freedom of information as well as the Philippine Constitution which does not include this requirement.
  • Section 13 does not include an independent oversight body. While there is a mandatory internal appeal, and then appeals to a court, there is no provision for an independent oversight body such as an ombudsman to review the decision or to review the implementation of the rule.

President Duterte has in the recent past sparked concerns among civil society and media workers who defend the right to freedom of expression and information in Philippines. In May 2016, President Duterte stated that killed journalists had "done something" to deserve punishment. Philippines has one of the highest rates of unsolved killings of journalists in the world. 34 journalists were killed in one day alone, on 23 November 2009 in the Ampatuan massacre, and at the time of writing no individuals have been held accountable.

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