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Men Sta Ana III - PWYP Montreal Conference 2009


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Methodologies for mandatory disclosure initiatives

Host country legislation: Philippines Freedom of Information Bill 3732/Bill 3308

Filomeno Sta. Ana, Action for Economic Reforms, Philippines

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Men Sta Ana III - PWYP Montreal Conference 2009

  1. 1. Freedom of information and the extractive industries Filomeno S. Sta. Ana III Action for Economic Reforms Why a law on access to public information is absolutely necessary for the success of the advocacy vis-à-vis the extractive industries.
  2. 2. The Setting <ul><li>The Philippines has bad institutions, aggravated by the illegitimate and corrupt rule of Mrs. Gloria Macapagal-Arroyo. </li></ul><ul><li>Under the Arroyo administration, transparency and accountability have been thrown out of the window. </li></ul><ul><li>For example, contracts and other pertinent documents have been hidden to prevent investigations and legislative inquiries from obtaining substantive evidence. </li></ul><ul><li>Cabinet officials are likewise prevented from testifying in legislative inquiries. </li></ul>
  3. 3. The Setting <ul><li>The Philippine Constitution recognizes the right of citizens to access public information. The Constitutional provision is supposed to be self-executing. </li></ul><ul><li>However, the lack of the pertinent substantive and procedural details makes “self-execution” difficult in many cases. </li></ul><ul><li>Hence, it is necessary to have an enabling law on the right to information. </li></ul>
  4. 4. An Enabling Law <ul><li>Legal gaps must be addressed through legislation. </li></ul><ul><li>The gaps include: </li></ul><ul><ul><li>The lack of uniform, simple and speedy procedures; </li></ul></ul><ul><ul><li>The need to specify the coverage of the guarantee, that is, what information may be exempted from the guarantee. </li></ul></ul><ul><ul><li>The absence of “mechanics for the compulsory duty of government agencies to disclose information on government transactions.” </li></ul></ul>
  5. 5. The need for an enabling law <ul><li>The lack of mechanisms, specifically an enabling law, has resulted in the routine if not widespread violation by government officials and agencies of the citizen’s right to public information. </li></ul><ul><li>This has abetted bad governance--the diminution of transparency and accountability, leading to corruption and wrongheaded policies due among other things, to lack of citizens’ ownership. </li></ul>
  6. 6. The relevance of an enabling law to the advocacy vis-à-vis the extractive industries <ul><li>Responsible, sustainable mining can only thrive in an environment of good institutions. </li></ul><ul><li>The lack of transparency, the lack of information the culture of opacity indicate bad institutions. </li></ul>
  7. 7. The relevance of an enabling law to the advocacy vis-à-vis the extractive industries <ul><li>Example: Contracts between national government and corporations involved in extractive industries are not accessible to the public. </li></ul><ul><li>Example: The public at large and even key government agencies, including the Department of Finance, do not have the information as to which corporations, including those in the extractive industries, are exempted from paying certain taxes, thanks to several laws that provide generous fiscal incentives. </li></ul>
  8. 8. The relevance of an enabling law to the advocacy vis-à-vis the extractive industries <ul><li>The fiscal incentives given to mining, apart from tax evasion, account for the very low revenue effort (revenues collected as a proportion of gross production value), 7.5 percent average for the period 1997-2007, from the mineral industry, much lower than the national revenue effort (revenues collected as a proportion of GDP), equivalent to 16 percent for the same period. </li></ul><ul><li>This is appalling, considering that the Philippine revenue effort is already low in comparison to similarly situated countries. </li></ul>
  9. 9. The relevance of an enabling law to the advocacy vis-à-vis the extractive industries <ul><li>Thus, without an enabling law on the right to information, advancing the advocacy for transparency and information disclosure vis-à-vis the extractive industries will be impeded. </li></ul><ul><li>Without an enabling law, it will be difficult to obtain the relevant information on contracts, on revenue payments, on fiscal incentives, etc. </li></ul>
  10. 10. Basic features of the proposed Freedom of Information Act <ul><li>Wide coverage: The Act covers all possible government agencies--executive, legislature, and the judiciary as well as independent Constitutional bodies. </li></ul><ul><li>Narrow list of clearly defined and reasonable exceptions (e.g., info that pertains to clear and present danger of war, invasion, or external threat; info that will compromise prevention, detection, or suppression of criminal activity; invasion of personal privacy, which does not harm the public interest). </li></ul>
  11. 11. Basic features of the proposed Freedom of Information Act <ul><li>Right to override an exception when greater public interest demands info disclosure. </li></ul><ul><li>Clear, uniform and speedy procedure to obtain public information. </li></ul><ul><li>Criminal liabilities for some acts that violate the law. </li></ul><ul><li>Mechanisms that will promote a culture of openness or transparency in government. </li></ul>
  12. 12. Full disclosure <ul><li>Contracts or agreements with the private sector relating to infrastructure and development projects. </li></ul><ul><li>Compromise agreements entered into by a government agency with an individual. </li></ul><ul><li>Procurement contracts. </li></ul><ul><li>Construction or concession agreements/contracts. </li></ul><ul><li>Loans, grants, development assistance, technical assistance and programs with bilateral and multilateral institutions as well as with private agencies. </li></ul><ul><li>Loans from domestic and foreign financial institutions. </li></ul>
  13. 13. Full disclosure <ul><li>Guarantees given to state- owned corporations and to private corporations, persons or entities. </li></ul><ul><li>Public funding to any private entity. </li></ul><ul><li>Bilateral or multilateral agreements, treaties in defense, trade, economic partnership, investments, cooperation and similar binding commitments. </li></ul><ul><li>Licenses, permits or agreements given by any government agency to any person or entity for the extraction and/or utilization of natural resources. </li></ul>
  14. 14. Status <ul><li>The bill has been passed in the Lower House of Congress. </li></ul><ul><li>The bill is at present being deliberated at the plenary session of the Senate, with likely approval. </li></ul><ul><li>The protracted advocacy, covering almost 10 years, is finally paying off. </li></ul><ul><li>The remaining, biggest hurdle is the possibility of a presidential veto. But now that she’s leaving the Office of the President soon, she does not have any compelling reason to block passage of the law. </li></ul>