WHAT a difference.
In his first Executive Order upon assuming office, then-President Benigno Aquino 3rd sought to create the Philippine Truth Commission to investigate his predecessor Gloria Arroyo’s government.
That set the tone for six years of castigating her and other perceived opponents, while defending presidential friends.
For his first EO, new President Rodrigo Duterte aims to institute in all agencies under him the freedom of information (FOI) pledged by Aquino during his election campaign, but stalled by his administration till his term ended.
That sets a very different tone of transparency and accountability for one’s own rule. Guess which EO truly advances good governance.
From debate to decree
The idea of an EO to implement FOI came up in this column’s March 8 article. “20 must-ask questions for the presidentiables” < http://www.manilatimes.net/20-must-ask-questions-for-the-presidentiables/249065/ >.
One question proposed for the last two presidential debates in March and April was: “In your first week in office, are you willing to issue an Executive Order to all officials and personnel in national government agencies and corporations under your authority, as well as in the Armed Forces of the Philippines and the Philippine National Police, to speedily provide any information on government actions, policies, programs, and transactions requested by any citizen, subject to restrictions in law and jurisprudence, plus limits publicly declared in writing by those state agencies or companies, approved by the President, and subject to judicial review?”
The question was never asked, but in the March 20 debate, Vice President Jejomar Binay pledged to issue a freedom of information EO. But rival candidates Sen. Grace Poe, former secretary Mar Roxas, and Duterte cited cases and accusations against Binay. That ended further talk on the FOI order.
However, Duterte apparently did not forget the idea. Soon after the May 9 elections, when most rivals had conceded to him, the President-elect pledged to issue an EO instituting freedom of information in the executive branch.
“If Congress refuses to pass such a law, I will start on it progressively,” he told media on May 11. “Let’s cut to the chase. From day one, although this will not be retroactive, since ordering so will create a very chaotic situation. FOI—I will impose it on my department, the Executive Department.”
As noted in the proposed debate question, the EO can cover all national government agencies under the President, all government-owned and -controlled corporations, state universities and colleges, and the Philippine National Police.
As Commander-in-Chief, President Duterte can also issue a General Order to the Armed Forces of the Philippines instituting FOI in the AFP, subject to existing confidentiality and security restrictions governing military information.
And with administration allies dominant in Congress, Duterte could get the FOI law finally enacted, just as Aquino used his clout in the legislature to block its passage.
Another option to widen FOI’s coverage is for the Civil Service Commission to issue a bureaucracy-wide Memorandum Circular for all civil servants to provide access to official information, subject to restrictions in law, jurisprudence, or explicit policies of agencies, Congress, the Judiciary, and local governments.
As CSC Chairman in 2008 – 09, this writer and his fellow commissioners was set to issue such a circular. Constitutionalist Fr. Joaquin Bernas reviewed the draft MC and found it in accord with existing laws and jurisprudence. But one commissioner declined to sign, and the circular was set aside after this writer’s CSC appointment was rejected by the Commission on Appointments.
Giving teeth to the FOI EO
There are many FOI measures and studies here and abroad to guide the Office of the President in drafting the EO. The 2013 bill required access to information, except for the following items:
• Information specifically authorized to be kept secret under guidelines established by an executive order, and properly classified
• The records of minutes and advice given and opinions expressed during decision-making or policy formulation, invoked by the Chief Executive to be privileged by reason of the sensitivity
• Information pertaining to internal and/or external defense, law enforcement, and border control
• Drafts of orders, resolutions, decisions, memoranda, or audit reports by any executive, administrative, regulatory, constitutional, judicial, or quasi-judicial body
• Information obtained by any committee of either house of Congress in executive session
• Personal information of a natural person other than the requesting party
• Information pertaining to trade secrets and commercial or financial information that would seriously prejudice industrial, financial, or commercial competition
• Information classified as privileged communications in legal proceedings by law or by the Rules of Court
• Information exempted by law or the Constitution.
The EO may allow government entities to impose their own restrictions on information access in addition to the general exclusions. But those special protocols must be approved by the President before they take effect.
Being an act of the President, the EO can impose administrative penalties only, from reprimand and demotion, to suspension and dismissal. But criminal penalties would require a law.
To give administrative teeth to the EO, drafters may wish to adopt provisions in the 2007 Anti-Red Tape Act, which required speedy action on frontline services. The EO may classify information requests among those services, and require agencies to set timetables for complying with requests. Bureaucrats who delay would face sanctions.
The EO may also make the withholding of information an aggravating factor in administrative investigations. If a civil servant is found to have concealed pertinent knowledge in covering up a proven offense, the penalty would be greater.
Will President Duterte’s FOI EO make his government more transparent and accountable?
We’ll have to see the fine print and the actual implementation before passing judgment. One likely litmus test of the FOI order: access to information on suspects allegedly killed while resisting arrest.
And there is one indispensable ingredient for freedom of information that no order or law can bring forth: The public—you and I—must assert our right to know.