Freedom of information

Good news! Prior to its adjournment for the holidays, the Senate started plenary deliberation on the freedom of information (FOI) bill. Buried in the legislative mill for the last 14 years, the bill was resurrected by Sen. Grace Poe in the Senate committee on public information, which approved it last September. Senate President Franklin Drilon expects the entire chamber to pass it by the end of March.

Sticky points. But the bad news is that the House committee on public information and media has yet to act on the measure. All it did was to give its technical working group until mid-February to consolidate the 19 or so pending versions of the FOI bill.

It seems the House committee is stuck on several issues, like the insistence of some legislators to install a “rider,” the so-called “right of reply” that would require media outlets to give criticized officials the same print space or broadcast time, free of charge. Constitutionalists view this as a violation of the right to free speech of media practitioners.

Another sticky point is the attempt of a few House members to exempt their statement of assets, liabilities and net worth (SALN) from the proposed FOI law. This is a sneaky effort to amend the Ethical Standards Law and Anti-Graft Law that already allow public access to SALNs. In obedience to this fundamental policy, even the Supreme Court justices have released their SALNs to the Philippine Center for Investigative Journalism. Why should legislators be exempted?

Charter provisions. In its “Declaration of Principles and State Policies,” the Constitution provides: “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.”

More clearly, the Charter, in its Bill of Rights, states: “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.”

While the earlier provision is a general state policy that cannot be implemented without an enabling law, the latter provision—being a part of the Bill of Rights—is self-executory and needs no enabling law to be enforced by courts.

In fact, even prior to the 1987 Constitution, the Supreme Court recognized the people’s right to public information. Said the Court in Baldoza vs Dimaano (May 1, 1976): “There can be no realistic perception by the public of the nation’s problems, nor a meaningful democratic decision-making, if they are denied information of general interest.”

Later, in Chavez vs PCGG (July 15, 2003), the Court directed the government to inform the public of the negotiations on the alleged ill-gotten wealth of the Marcoses. However, it recognized certain restrictions on the right, among them national security matters, intelligence information, trade secrets, banking transactions (although under the Anti-Money Laundering Laws, these are no longer sacred), criminal matters and other confidential information.

More recently, in Senate vs Ermita (April 20, 2006), the Court again used the right to public information to strike down a presidential order barring members of the Cabinet from testifying in legislative investigations, holding that citizens must have “access to information which they can use for formulating their own opinion on matters pending before Congress.”

Action agad! All told, I believe it is better—even for the legislators themselves, not just for the citizens—to approve a well-crafted FOI Law. Otherwise, the Court will continue to enforce this constitutional right without regard to the inputs of Congress.

Recall that, according to the Constitution, the exercise of the right is “subject to limitations as may be provided by law.” The absence or inadequacy of the “limitations… provided by law” will not deter the Court from using self-executory provisions of the Constitution to blaze landmark jurisprudence.

For example, congressional inaction in the face of our people’s clear demand for the abolition of the Priority Development Assistance Fund (PDAF) impelled the Court to strike down this hated scheme. Congress could have preempted the Court decision had it abolished the PDAF by legislation. But it chose to be timid. Thus, the Court acted promptly and decisively, leaving the legislators out in the cold and damned by public opinion.

Another example of congressional default is the legislative failure to revise the Party-list Law. For decades, the Court did not declare any provision of this law invalid, and waited for Congress to act and make it more proportionately representative and easier to determine the winning candidates.

Tired of waiting, the Court, in Banat vs Comelec (April 21, 2009), struck down the Party-List Law provision limiting winners only to those garnering at least two percent of the total votes cast, thereby opening the legislative floodgates even to those who gather microscopic votes in party-list elections.

The moral lesson is that Congress should wisely and proactively use its policy-determining powers, instead of waiting for the Court to strike down its ill-conceived actions, or worse, to fill up the void left by its inaction. Pass the FOI bill now!

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