What to me are the more complex—and important—issues that the Makabayan bloc raises about the consolidated FOI Bill in the House of Representatives are those that have to do with law enforcement. Written in such broad terms, one cannot help but contextualize these sections in terms of enforced disappearances, illegal arrests, and political prisoners.
But of course this is a government that denied in 2011 that it has any political prisoners, and declared that they were investigating extrajudicial killings. In 2014, this government finally captured Major General Jovito Palparan, a fugitive of three years, on charges of kidnapping and illegal detention. To date, it’s unclear what that investigation into extrajudicial killings has yielded, and Palparan is being defended by Senator Antonio Trillanes to high heavens.
Why is this consolidated FOI Bill one that government doesn’t mind passing? It’s in what it says, but also what it falls silent on.
Broad and vague … and useful
The Makabayan bloc questions Section 7(c)(i), (ii), and (v) of the consolidated FOI Bill, for such general terms with regards exemptions to FOI. I add to that Section 7(c)(v)(vi) especially in the context of human rights cases.
These sections state that access to information may be denied when it will “(i) unduly compromise or interfere with any legitimate military or law enforcement operation; or (ii) unduly compromise or interfere with the prevention, detection or suppression of criminal activity, the effective implementation of immigration controls and border security.”
The Makabayan bloc is correct. This allows any police officer to invoke that access to information will “unduly compromise or interfere with any legitimate military or law enforcement operation,” cutting across everything from huge tactical military operations, to every other smaller criminal operation. The stand of the Makabayan bloc is to limit the exception only to “legitimate, ongoing, tactical police and military operations.”
My beef has to do with contextualizing these exceptions in cases where it is precisely law enforcement that is being put into question. Because if we cannot make demands for information that will “compromise or interfere with the prevention, detection or suppression of criminal activity,” then what of human rights abuses during an operation? Say, cases of human rights violations in an operation like Oplan Bantay Laya?
Section 7(c)(v) declares that access to information may be denied if this “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” Which is also to say that if we demand information on how a military operation is being conducted, given issues of human rights violations, the military will have the power to say that that would be a disclosure that would risk circumvention of the law.
And in instances where the military and police are being put into question for their part in military and police operations, we will not have the right to any information that will “deprive a person of a right to a fair trial or an impartial adjudication” according to Section 7(c)(iii). Does this include the police or military officer we are questioning?
Are they also allowed to invoke SectionI(c)(vi)? That we have no right to information that will “endanger the life or physical safety of any individual”? Because then what are we truly left with as far as gathering and having access to information that will allow us to build a human rights abuse case against law enforcers themselves, especially in cases that happen within military operations?
One can see how these exceptions to FOI will be quite useful for the likes of Palparan.
The SALN question
The Makabayan bloc raised the question of access to government officials’ Statements of Assets and Liabilities (SALNs), where the consolidated FOI Bill does not state that the public has “unqualified access” to these. Instead, it limits access to SALNs within “existing laws, rules and regulations.”
The authors of the the consolidated FOI Bill assert Section 9 of the current bill, which declares that disclosure of government officials’ SALN is mandatory, and that it will be provided the public through the government’s official websites.
This of course begs the question: if the current FOI Bill actually does push for mandatory disclosure of our government officials’ SALNs, then why doesn’t it clearly state “unqualified access”? If existing “laws, rules and regulations” actually pertain to the Constitution, Republic Act 6713, and Section 9 of the FOI Bill, then doesn’t it behoove its authors to spell this out?
Because if we contextualize the consolidated FOI Bill in the current state of affairs – the manner in which we are not free to access information about government and military goings-on, the ways in which the internet and websites are used to declare government offices “transparent” —we would have a sense of how the silences that these words carry will be used to keep information from the public.
It doesn’t take a genius really. Especially not with a bill that thrives, too, on the unsaid.
The advocates of the consolidated FOI Bill talk about the many safeguards that exist within the bill itself, safeguards “against the abuse of exceptions.”
But what one realizes is that, as it is, and over and above Makabayan’s reservations about this consolidated FOI Bill, all it takes is to imagine how words can be twisted, turned on its head, milked all its worth, to keep the guilty government official from revealing any information at all. In fact it doesn’t take imagination, it takes only a sense of the present state of politics and leadership in this country to understand how these apprehensions are valid.
I’d like to think that the demand now is for an FOI Bill that takes into consideration the current context and its specificities. What better law to practice nuance on than one that is about our freedom to access information?