DIE HARD III
Herman TIu Laurel
7/1/2011
What could be more important than writing about a key bit of information that will make the Filipino people realize they don’t need foreign funds in the national economy anymore to enable them to throw the yoke of economic colonialism immediately? All the BS that cause the inferiority complex and mendicancy of Filipinos (BS such as “we need foreign investors”; “we don’t have the funds”; “we can’t run the country without debt”; or “we can’t escape the debt trap”) will simply have to go down the toilet drain.
Several times before, we have written about this idle fund that can free us of foreign dependency right away. We placed the figure at $28 billion or P1.3 trillion and identified that fund as the Special Deposit Account (SDA) with the Bangko Sentral ng Pilipinas (BSP), which was pointed out to us by economist Hiro Vaswani of KME (Kilusang Makabansang Ekonomiya). Recently, we got another confirmation of the existence and availability of this “disposable” fund kept idle only because of the treasonous streak of our BSP officials.
In a guest column by Mario Antonio Lopez in one business daily, it was reported that former Neda Chief Romulo Neri was of the opinion that “our dollar reserves of $65 billion (are) substantially above what the IMF (International Monetary Fund) considers adequate for a nation of our size and needs.”
In fact, Neri was said to believe that “we can, if we wish to, use perfectly legal means to liberate half of the fund ($30 billion) to jump-start a number of badly needed initiatives in education, agriculture, and health over and above the money currently available,” stressing that the “P40 billion requested, indeed needed, by the AFP (Armed Forces of the Philippines) is a small amount compared to what can be made available to the three other programs which, in the process of providing the needed services, also means increased employment and livelihood opportunities.”
In other words, we don’t need the PPP (Public-Private Partnership) projects of PeNoy because this $30-billion fund is already larger than all the funding requirements for the 83 “flagship” projects under his entire term.
One report even placed the relatively miniscule “investment” requirement at “P739.78 billion under the Private-Public Partnership, 10 of which with investment requirements of P127 billion have been shortlisted and readied for rollout in 2011.”
Besides this, another reason for tapping the idle SDA is that PPP partners get unconscionable “sweeteners” such as TRO-free operations which, like in past BOT (Build-Operate-Transfer) projects, effectively bar people from resorting to the courts no matter the inimical nature of these projects to public welfare or how financially abusive the project owners become. Of course, this is on top of the fact that “investor-partners” of government also get “sovereign guarantees” for their profits, which only means that they get to secure their loans risk free and their profits at exorbitant rates of return.
One of our fellow columnists in another paper, Romeo Lim, sums up the flawed logic of the PPP program (and the BOT law that preceded it): “Government (does) not have money to fund the huge investment requirements of our infrastructures program. Revenue collection (is) never enough… Government assets for sale (are) not inexhaustible, and there (are) limits to government borrowings.”
Unfortunately, that rationale, despite never being valid nor true, has gotten even the most intelligent and well-informed of our leaders either totally or partially ignorant of the existence of the huge fund that the country can use, perhaps out of a reluctance to exercise a modicum of mental or political independence.
Actually, the BSP and the country’s bankers know that this gargantuan fund is readily available for the nation’s benefit. But why is everybody silent about it? Is it because of certain shenanigans in the BSP, where officials are in cahoots with foreign fund managers to take advantage of it?
A recent news item (“BSP’s outsourced funds reach $9.8B”) reveals that a huge chunk of our reserves continues to yield management commissions or fees to almost a dozen foreign fund managers, stating, “The central bank’s externally-managed portfolios as of the end of last year totaled $9.89 billion, up by $5.94 billion from $3.95 billion third quarter of 2010 due to a shift in portfolios. (The BSP’s treasury department)… said the amount of almost $6 billion were cash infusions from the BSP’s internally-managed portfolios. The move was to shift this much amount from the internally-managed funds to externally-managed portfolios, which are funds outsourced to external managers and invested in longer-dated maturity securities, to preserve the country’s foreign currency capital. The BSP’s external fund management program started in 1997 (FVR’s time), when a portion of the gross international reserves was invested in long-term instruments. The BSP currently has 10 external fund managers including JP Morgan Chase.”
So who are the other “fund managers?” Do BSP officials receive fat commissions for subcontracting this, too?
In addition, it was revealed that “about 42 percent of Philippine funds which are US dollar hedged portfolios — are invested in the US, 33 percent in the Eurozone, 11 percent in Japan and nine percent in the United Kingdom.” BSP insiders tell us that commissions are paid out for such “investments” as well.
The Filipino people should thus wake up to the big scam that is going on with the country’s huge financial reserves. We are not as poor as those opportunistic elements in our ruling elite and financial cabals make us to be.
We, the people, should take charge of our nation’s financial resources through a People’s Bank run by our knowledgeable representatives — not by gofers of the international and local banking cartel.
(Tune in to Radyo OpinYon, Monday to Friday, 5 to 6 p.m., and Sulo ng Pilipino, Monday, Wednesday and Friday, 6 to 7 p.m. on 1098AM; Talk News TV with HTL, Tuesday, 8 to 9 p.m., with replay at 11 p.m., on GNN, Destiny Cable Channel 8, on “Supreme Court: Supreme Injustices” with Lauro Vizconde, Dante Jimenez and Rasti Delizo of PMJ; visit http://newkatipunero.blogspot.com and http://hermantiulaurel.blogspot.com for our articles plus TV and radio archives)
Friday, July 1, 2011
Comments on the Freedom of Information Bill of 2009
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
Speech delivered before the Pangasinan Press Club on June 25, 2011, 2:00 P.M. at the Star Plaza Hotel, Dagupan City
A. Introduction
B. History
C. Purpose
D. Salient Provisions
E. Comments
F. Recommendation
A. Introduction
The Freedom of Information Bill is a mere proposal. It is struggling to be a law entitled “The Freedom of Information Act of 2009.” The origin of the proposal, the process that followed, its current status and foreseeable future are the subject matters of this discussion.
B. History
1. On May 12, 2008, the House of Representatives approved on third reading House Bill No. 3732, “An Act Implementing the Right of Access to Information On Matters Of Public Concern Guaranteed Under Section 28, Article 2, And Section 7, Article 3, Of The 1987 Constitution, and for Other Purposes.”
2. On December 14, 2009, the Senate approved on third reading the counterpart Bill, Senate Bill No. 3308, “An Act Implementing the Right of the People to Information on Matters of Public Concern Guaranteed Under Section Seven, Article Three, of the 1987 Constitution and the State Policy of Public Disclosure of All its Transactions Involving Public Interest under Section Twenty-Eight, Article Two of the 1987 Constitution, and For Other Purposes, with Senators Aquino, Arroyo, Ejercito-Estrada, Enrile, Escudero, Gordon, Honasan, Lapid, Pangilinan, Pimentel, Jr., Revilla and Zubiri Voting in Favor of the Measure”.
3. On January 18, 2010, the House and Senate panels met to reconcile the disagreeing provisions of House Bill No. 3732 and Senate Bill No. 3308, and thereafter, after such disagreeing provisions were reconciled, came up with a Bicameral Conference Committee Report on the harmonized version of the Bill, short-titled “The Freedom of Information Act of 2009.”
4. On February 1, 2010, the Senate, being satisfied with the Bicameral Conference Committee Report and knowing the importance of the said piece of legislation, immediately ratified the same. The House of Representatives, on the other hand, however, was not able to ratify the same due to lack of quorum.
5. On November 9, 2010, the Office of the President, through Sec. Sonny Coloma, submitted a statement to the House of Representatives Committee on Public Information regarding certain concerns relating to specific provisions of the proposed bill, as follows:
“1. Access to information currently being used for decision-making or project management; Frequency of access to information currently being used. Government agencies are entrusted with specific functions in furtherance of certain public objectives. Normally included in these functions are policy formulation or program management where information management is vital. The smooth exercise of these functions, where regularity of actions of public officers is presumed, may be put at risk if the government agencies are subjected to requests for information at every step of the way. Second-guessing the decisions of our public officers will undermine their effectiveness. Therefore, it is important to determine if information that is currently being used by government agencies for decision-making or project management will be made available already or if a reasonable lapse of time will be allowed before this is done, similar to declassification of documents by the military. The intention is not to hide information nor to limit frequency of access but only to ensure that government operations are not hampered.
2. Access to transcripts and minutes of official meetings may diminish candid and open discussions by public officers. Relatedly, open access to minutes or transcripts of official meetings may diminish candid and open discussions that characterize such meetings. Off-the-cuff remarks, characterizations, or outbursts that are recorded when important topics are Page 4 of 4tackled during these meetings may subject public officers or institutions to embarrassment or ridicule, even if this is not the intent of the person requesting for information. This is the reason why public or private institutions only provide official reports to outside parties, leaving out information that can only distract said outside parties. This is a salient point that needs to be addressed by the proposed bills.”
6. On March 23, 2011, President Benigno Simeon Cojuanco Aquino III spoke before the Civil Society Organization (CSO) at the Pilgrim Christian College Auditorium, Cagayan de Oro City, Misamis Oriental, and shared his thoughts on the Freedom of Information Bill, in his own words, as follows:
“Yung freedom of information ipaliwanag ko lang hong konti. Yung pwede magkaroon ng sitwasyon, kunyari may Cabinet meeting, may magsasabi ng tsismis, yung tsismis baka may batayan. Pag sinabi kong tsismis hindi pa pwedeng dalhin sa korte yung impormasyon. Pero pag may Freedom of Information tayo, walang harang pati yung tsismis kailangan nakalagay doon, pwede mademanda ng libel. So, pag nag-Cabinet meeting kayo nung may tangan ng tsismis quiet siya, eh ang impormasyon pala importante.
Kayo ho, ilan ang gusto sa inyong magdesisyon tungkol sa – bigyan ko kayo ng sample – meron tayong mga kabataan, meron ho silang paglalakbay kasama yung ibang mga Asyanong bansa umikot sa bawat bansa. Pagbalik nung ating mga kababayan may dumating sa aking report, suspected SARS yung isa. Pag may nakatunog na media kunyari, ‘totoo ho ba ito?’, Suspected pa lang. O di pag may Freedom of Information obligado ko ibigay sa kanila yung report. Eh yung sa dinami-dami ng pahayagan, radio, TV, makakalimutan na yung suspected, di ba? Bigla na lang: ‘SARS, on the way to the Philippines’. Pero yung report suspected.
Madaling salita po, gusto ko po, at naniniwala ako dun sa constitutional provision that the people are entitled to information on where by which they can base their decisions on. Pero naniniwala rin naman po ako na a little knowledge is dangerous. So, dulo po niyan, hanapin natin yung balance. Meron po kami sa ating Communications Office pinag-aaralan, tinitignan yung Office Secrets Act ng England, tinitignan po yung Freedom of Information ng America. Hinahanap ho natin yung balance na hindi naman po mahirapan ang nasa gobyerno na mamahala dahil nangyari ho gagayahin yung tatlong tsonggo – walang sasabihin, walang nakikita, walang naririnig dahil kinakabahan na mademanda kaliwa’t kanan. Eh ginagawa na po yung tama nadedemanda ka na.
So, hindi ho ganun kasimple yun. At hindi ho ako umaatras na kailangan talagang malaman ng taumbayan yung mga impormasyon na makakabase ng tamang desisyon. Hindi ho ako katulad nung sa ZTE, kung naaalala niyo si Neri. Sabin ni Neri sinuhulan siya ni Abalos, sinabi niya kay GMA. Tapos sa ruling ng Supreme Court, hindi naming pwedeng tanungin si Neri. Tapos si GMA, hindi ho naman pwedeng ipatawag dahil merong executive privilege. Dulo nuon, yung dalawang taong nag-usap hindi namin pwedeng kausapin, di baligtad na baligtad yun. Ano ang magagawa, anong mangyayari diyan, hindi ho ba? Dadalawa ang nag-usap, pareho mong hindi pwedeng kausapin nung panahon na yun. Paano mo papausbungin yung kaso? Baligtad ho dun sa gusto natin mangyari, pero kailangan naman po ma-ensure natin na yung pagkakaroon ng freedom of… yung karapatan, freedom of information, hindi magdudulot ng dagdag na pinsala sa mga mamamayan dahil walang safeguards para gamitin nung mga hindi maganda and intension laban sa taumbayan.
So, hayaan po niyo, talagang isusulong natin yan. Pinipilit lang natin mapaganda as much as possible yung batas para maisakatuparan na po itong Freedom of Information. Pasensya na po napahaba ang pagsasalita ko, meron pa ho yatang Part 2 dito at uiuuwi ko na po ito para mas mahaba at mas kumpleto ho yung sagot.
Salamat po.”
6. We all know the consolidated bills have to be ratified by the House of Representatives and approved by President Aquino. Until such events happen, the Freedom of Information Bill remains a mere proposal, and not yet a law. That is the current status of the matter.
C.Purpose
7. The purpose of the Bill is to implement the citizens’ right to information under Article 2, Section 28, and Article 3, Section 7 of the 1987 Constitution. How is this right expressed under these provisions? As follows:
a. 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 (Sec. 28, ART. II). Batay sa makatwirang mga kundisyong itinatakda ng batas, inaangkin at ipinatutupad ng Estado ang patakarang lubos na hayagang pagsisiwalat ng lahat ng mga transaksyon nito na kinapapalooban ng kapakanang pambayan.
b. 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 such limitations as may be provided by law (Sec. 7, ART. III). Dapat kilalanin ang karapatan ng mga taong-bayan na mapagpabatiran hinggil sa mga bagay-bagay na may kinalaman sa tanan. Ang kaalaman sa mga opisyal na rekord, at sa mga dokumento at papeles tungkol sa mga opisyal na gawain, transakasyon, o pasya, gayon din sa mga datos sa pananaliksik ng pamahalaan na pinagbabatayan ng patakaran sa pagpapaunlad ay dapay ibigay sa mamamayan sa ilalim ng mga katakdaang maaaring itadhana ng batas.
D. Senate Bill No. 3308
8. The current Senate Bill No. 3308, dated June 3, 2009, which awaits ratification by the House of Representatives and approval by the Chief Executive essentially provides for a general rule, exceptions, and exceptions to the exceptions, which read as follows:
a. General Rule – Access to Information. – Government agencies shall make available to the public for scrutiny, copying and reproduction in the manner provided by this Act, all information pertaining to official acts, transactions or decisions, as well as government research data used as basis for policy development, regardless of their physical form or format in which they are contained and by whom they were made. (Sec. 6, S.B. 3308)
b. Exceptions – The request for information may be DENIED when revelation or disclosure of the information will/is:
b.1 Create a clear and present danger of war or any external threat to the State as determined by the Office of the president and/or the Secretary of National Defense (Sec. 7a, ibid.);
b.2 In case the information pertains to foreign affairs, unduly weaken the negotiating position of the government in an on-going negotiation, or seriously jeopardize diplomatic relations (Sec. 7b, ibid.);
b.3 In case the information pertains to internal and external defense and law enforcement, render a legitimate military operation ineffective, or unduly compromise the prevention, detection or suppression of a criminal activity or endanger the life or physical safety of confidential witnesses, law enforcement and military personnel or their immediate families. However, information relating to the details of the administration, budget and expenditure, and management of the defense and law enforcement agencies shall always be accessible to the public (Sec. 7c, ibid.);
b.4 In case the information pertains to the personal information of a natural person other than the requesting party, constitute a clearly unwarranted invasion of his or her personal privacy, unless it forms part of a public record, or the person is or was an official of a government agency and the information requested relates to his or her public function, or the person has consented to the disclosure of the requested information (Sec. 7d, ibid.);
b.5 In case the information pertains to trade, industrial, financial or commercial secrets of a natural or juridical person other than the requesting party, obtained in confidence by, and/or filed with the government agency, seriously prejudice the interest of such person, unless such person has consented to the disclosure (Sec. 7e, ibid.);
b.6 Privileged by law or by the rules of court, unless the person entitled to the privilege has waived it (Sec. 7f, ibid.);
b.7 Exempted by law, in addition to those provided in this section (Sec. 7g, ibid.);
b.8 Obtained by any committee of either House of Congress in executive session, whenever such information falls under any of the foregoing exceptions (Sec. 7h, ibid.);
b.9 Consist of drafts of decisions by any executive, administrative, judicial or quasi-judicial body in the exercise of their adjudicatory functions whenever the revelation thereof would reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice (Sec. 7i, ibid.).
c. Exceptions to the Exceptions – Even if the information requested falls under the exceptions set forth in the preceding section, access to information shall NOT BE DENIED if (Sec. 8, id.):
c.1 The information requested may be reasonably severed from the body of the information which would be subject to the exceptions (Sec. 8a, id.);
c.2 The public interest in the disclosure outweighs the harm to the interest sought to be protected by the exceptions (Sec. 8b, id.);
c.3 The requester is either House of Congress, or any of its Committees, unless the disclosure will constitute a violation of the Constitution (Sec. 8c, id.).
E. Comments
9. Freedom of the Press – In addition to ARTICLE II, Section 28, and ARTICLE III, Section 7, the Bill should have specifically taken into consideration Section 4, ARTICLE III of the Constitution, which provides:
“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
“Hindi dapat magpatibay ng batas na nagbabawas sa kalayaan sa pananalita, pagpapahayag, o ng pamahayagan, o sa karapatan ng mga taong-bayan na mapayapang magkatipon at magpetisyon sa pamahalaan upang ilahad ang kanilang mga karaingan.”
The question that arises is: WHETHER THE PROPOSED BILL ABRIDGES THE FREEDOMS OF SPEECH, EXPRESSION, OR OF THE PRESS?
Let us examine the last quoted provision of the Constitution. Does it provide for a general rule? It does. It states the general rule in the negative form: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Does it provide for any exception? It does not. Can an exception be provided by ordinary legislation by Congress? No. Congress may do so only by way of special legislation after it properly declares itself a constituent assembly for the purpose of amending the Constitution.
10. Regime of Truth – Under the Constitution, the government must perform its functions or duties under the RULE OF LAW and a regime of TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY, and PEACE (Preamble). The conditions are conjunctive, not disjunctive. It is not enough that the government observes the RULE OF LAW. The sovereign Filipino people mandates it must perform its duties under a regime of truth, the whole truth, and nothing but the truth.
Therefore, the question is: WHETHER THE PROPOSED BILL IS CONSISTENT WITH THE REGIME OF TRUTH? If the answer is YES, the Bill is constitutional. If the answer is NO, the Bill is unconstitutional. Obviously, every citizen is entitled to be heard as to his opinion in this regard.
11. Section 28, ART. II, CONSTITUTION – The Bill cites Section 28, ARTICLE II of the Constitution as basis for legislation. Is the provision clear? Yes. What does it provide? It provides for a general rule and an exception, as follows:
General Rule: The State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Inaangkin at ipinatutupad ng Estado ang patakarang lubos na hayagang pagsisiwalat ng lahat ng mga transaksyon nito na kinapapalooban ng kapakanang pambayan.
Exception: Reasonable conditions prescribed by law. Makatwirang mga kondisyong itinatakda ng batas.
Therefore, the question is: WHETHER THE CONDITIONS UNDER THE PROPOSED BILL ARE REASONABLE? If the answer is YES, the Bill is constitutional. If the answer is NO, the Bill is unconstitutional. Again, every citizen is entitled to his own opinion.
12. Section 7, ART. III, CONSTITUTION – The Bill cites Section 7, ARTICLE III of the Constitution as basis for legislation. Is the provision clear? Yes. What does it provide? It materially provides for a general rule and an exception, as follows:
General Rule: 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. Ang kaalaman sa mga opisyal na rekord, at sa mga dokumento at papeles tungkol sa mga opisyal na gawain, transaksyon, o pasya, gayun din sa mga datos sa pananaliksik ng pamahalaan na pinagbabatayan ng patakaran sa pagpapaunlad ay dapay ibigay sa mamamayan.
Exception: Limitations as may be provided by law. Mga katakdaang maaaring itadhana ng batas.
Therefore, the question is: WHETHER THE LIMITATIONS UNDER THE PROPOSED BILL ARE REASONABLE? If the answer is YES, the Bill is constitutional. If the answer is NO, the Bill is unconstitutional. Again, every citizen is entitled to his own opinion.
It is important to note that the Bill appears to restate the general rule in the Constitution:
The Constitution states the general rule as follows:
“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.”
The Bill states the general rule as follows:
“Access to Information. – Government agencies shall make available to the public for scrutiny, copying and reproduction in the manner provided by this Act, all information pertaining to official acts, transactions or decisions, as well as government research data used as basis for policy development, regardless of their physical form or format in which they are contained and by whom they were made.” (Sec. 6, S.B. 3308)
The question that naturally arises is: WHETHER THE GENERAL RULE UNDER THE CONSTITUTION IS CLEAR? The answer is either YES or NO.
If the answer is YES, then it should have been adopted verbatim in the Bill, in the same way certain provisions of the Constitution were adopted verbatim in the Administrative Code of 1987. Any deviation from the constitutional expression is necessarily IMPRECISE.
If the answer is NO, then the attempt in the Bill to clarify it constitutes a virtual indictment by the Senate for inaccurate articulation against the 1986 Constitutional Commissioners who wrote the provision and the 1987 Philippine Constitution.
There may be a simple test to resolve the issue. It is the understanding of the average citizen. If he understands the constitutional statement of the general rule, then there is no need for Congress to deviate from the language used. Consequently, since the Constitution was unquestionably ratified by a clear majority of our citizenry, it seems reasonable to assume the average citizen had indeed understood what he approved.
13. Redundant Bill – The Code of Conduct and Ethical Standards for Public Officers and Employees, or RA 6713, which took effect in 1989, appears to be substantially providing to the public what the Bill seeks to accomplish. To this extent, the Bill seems redundant.
Let us review the material provisions of the Code which the Bill clearly replicates:
Under RA 6713, public officials and employees:
a. When required by the public interest, shall provide information on their policies and procedures in clear and understandable language, ensure openness of information (Sec. 4e).
b. Are under obligation to file Statements of Assets, Liabilities, Net worth, and relatives in government, and Disclosure of Business Interests and Financial Connections which shall be made available for inspection at reasonable hours (Sec. 8c1). Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law. (Sec. 8c2).
c. Shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request. (Sec. 5a)
d. Must attend to anyone who wants to avail himself of the services of their offices and must, at all times, act promptly and expeditiously. (Sec. 5d)
e. Shall make all public documents accessible to, and readily available for inspection by, the public within reasonable working hours. (Sec. 5e)
f. Shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:
f.1 To further their private interests, or give undue advantage to anyone; or
f.2 To prejudice the public interest. (Sec. 7c)
g. Shall accomplish and submit declarations under oath of, and the public has the right to know, the assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under 18 years of age living in their households. (Sec. 8)
14. What acts are prohibited under the Code? The Code declares unlawful, and provides for administrative and criminal liabilities, for any person to obtain or use any statement filed under it for:
a. Any purpose contrary to morals or public policy; or
b. Any commercial purpose other than by news and communications media for dissemination to the general public.
15. Is the violation of any provision of the Bill malum in se or malum prohibitum? It appears to be malum in se. It is bad because it violates the constitutional right of a citizen which is based on a public need, not just a public want. An informed citizenry is a necessity for a vibrant and productive democracy. This is the apparent reason why under the United Kingdom’s Official Secrets Act of 1989, it is a defense for the accused to prove that at the time of the alleged offense he did not know, and had no reasonable cause to believe, that the information, document or article in question, related to military or civil defense, organization, operations, policy, strategy, planning, weapons, equipment, research, and services, or that its disclosure would be damaging within the meaning of the Act.
Hence, criminal intent must accompany the commission of the prohibited act. Otherwise, the accused will have to be acquitted. It is unlike a malum prohibitum where the mere commission of the prohibited act is enough for conviction.
16. How would the Office of the President and the Supreme Court handle a controversy involving a Freedom of Information (FOI) Law? A case in point would be the en banc decision in Senate of the Philippines v. Eduardo Ermita (G.R. No. 169777, dated April 20, 2006), where the central issue was the meaning and scope of confidential or privileged information.
On September 28, 2005, Mrs. Gloria Macapagal-Arroyo issued Executive Order (E.O.) 464, “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES,” which, pursuant to Section 6 thereof, took effect immediately. The Order materially provides as follows:
“SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:
i. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
ii. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
iii. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
v. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:
i. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
ii. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
iii. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
iv. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)”
Comment:
(a) The legislative power of inquiry materially provided in Section 22 of Article VI of the Constitution reads:
“SECTION 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House as the rules of each House provides, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate, or the Speaker of the House of Representatives at least three days before, his scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.”
(b) In other words, the Constitution provides for two (2) modes by which the heads of executive departments may appear and testify before Congress:
First mode: Upon their own initiative, with the consent of the President; or
Second mode: Upon the request of either House of Congress.
Clearly, the consent of the President is required under the first mode, but not in the second. The law is clear. Yet, in E.O. 464, Mrs. Arroyo requires her prior consent even under the second mode. Thus, E.O. 464 constitutes an amendment of the Constitution. Does Mrs. Arroyo have the authority to amend the Constitution? The answer is obviously NO.
17. How did the Supreme Court rule on the SOLE ISSUE of validity of E.O. 464? As follows:
a. The first half, Sections 1 and 2a, were declared VALID;
b. The second half, Sections 2b and 3, were declared VOID.
18. According to the court, resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value – our right as a people to take part in government.
F. Recommendation
19. The Constitution and the laws are based on common sense. Hence, common sense is the best foundation for understanding the legal system. With it, understanding begins. Without it, understanding cannot begin.
What does common sense tell us about the FOI Bill? It tells us to follow the general rules that are prescribed by the Philippine Constitution. With or without the Bill, the people’s right to information exists. Let us use it vigilantly.
The general rules are clear. They do not need enabling legislation. They are immediately executory. Thus, the exceptions are the problem areas for legislation.
First. General Rule: The State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Inaangkin at ipinatutupad ng Estado ang patakarang lubos na hayagang pagsisiwalat ng lahat ng mga transaksyon nito na kinapapalooban ng kapakanang pambayan.
Exception: Reasonable conditions prescribed by law. Makatwirang mga kondisyong itinatakda ng batas.
Second. General Rule: 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. Ang kaalaman sa mga opisyal na rekord, at sa mga dokumento at papeles tungkol sa mga opisyal na gawain, transaksyon, o pasya, gayun din sa mga datos sa pananaliksik ng pamahalaan na pinagbabatayan ng patakaran sa pagpapaunlad ay dapay ibigay sa mamamayan.
Exception: Limitations as may be provided by law. Mga katakdaang maaaring itadhana ng batas.
20. Insofar as the exceptions are concerned, the law is basic and clear. It distinguishes between rights and duties. It establishes four (4) common standards for both. Thus, to: (a) private citizens and journalists or media practitioners who wish to exercise their right to information under the FOI Bill, and (b) public officials and employees who must correspondingly perform their duty to disclose information – the common standards are stated in the Filipino version of the universal Golden Rule:
Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19, CIVIL CODE)
Ang bawat tao, sa paggamit ng karapatan at sa pagtupad ng mga tungkulin, ay dapat kumilos nang ayon sa katarungan, magbigay sa bawat isa ng nararapat, at magpakatapat, kasama ang mabuting layunin.
Patungo sa pagtatatag ng isang tunay na makatarungan at makataong lipunan.
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