“All is not lost with the death of the Freedom of Information Bill”, this was declared by Centerlaw Chair Prof. Harry Roque of the UP College of Law. “It is the Constitution that grants the people the right to information on matters involving public concerns. The failure of Congress to pass the FOI law simply means that the right would not be subject to limitations other than those provided by jurisprudence”, Roque added.
Roque explained that Freedom of Information as enshrined in the 1987 Constitution is self-executory. This , according to him, is apparent in the language of the Constitution: “ 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 decision, as well as to government research data used as basis for policy development shall be afforded the citizenry, subject to such limitations as may be provided by law.”. In the case of Chavez versus PEA-Amari, the Supreme Court defined “public concerns” as those “which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen”.
The remedy, as ruled by the Court also in Chavez is for any citizen, including members of the media, to file a suit in Court for mandamus if a government agency does not release any information that may involve public concerns. Mandamus is an extra-ordinary writ to compel the doing of a ministerial act. Here, the refusal to accord the peoples right to information may be controlled by the writ since pursuant to the law, the duty to divulge these information is purely ministerial and does not involve the exercise of discretion.
Roque explained that under existing jurisprudence, some limitations on the right to information include matters affecting national security, the conduct of foreign affairs, and on-going criminal investigations . “Outside of these traditional exceptions, no public officer may deny the people or members of the media their right to information”.
Roque though conceded that it would have been better to have the law. “Law seeks to achieve predictability. Obviously, legislation on how the right should be exercised and the consequences of the breach of the right would promote further predictability on the exercise of the right”. But in default of legislation, Roque exhorted the citizenry and the media to construe the right as not being subject to legislated limitations. “Demand for information as if it is not subject to any limitations”, Roque advised the public and the media.#30#
Prof. Roque Chairs the Center for international Law. He is the Philippine country representative to the Southeast Asia Media Legal Defense Initiative, a coalition of lawyers in the region that seeks to promote freedom of expression.