Notable progress in right to information in Southeast Asia

Vietnam passes Access to Information Law, while the Philippine President issues an executive order

 

As the international community marks its first Universal Access to Information day, there was significant progress in 2016 on official policy among Southeast Asian countries on freedom of information (FOI) as two countries – Vietnam and the Philippines – passed new policies enabling the right.

Vietnam’s National Assembly passed on 6 April 2016 the country’s Access to Information Law, making it the third country in the region to have a national legislation after Thailand (1997) and Indonesia (2008).

Meanwhile, newly-elected Philippine President Rodrigo Duterte issued in July an executive order on the Right to Information (RTI) marking a significant departure from the previous administration — which did not prioritize such legislation during its six-year term.

In other countries, activities on FOI legislation were moving slowly. Cambodia continued consultations with civil society groups in drafting its legislation, which is expected to be passed in Parliament in 2017.

In Burma (Myanmar), on the other hand, there has been no news about any proposal for such a law from the new government that took over on 1 April. The previous government was not able to pass the Ministry of Information’s proposed bill which was circulated for comments last year.

The international community marks the first official “Universal Access to Information” day after UNESCO issued a resolution in November 2015 making what is previously observed by advocates as the International Right to Know Day to be an official commemoration.

Philippines’ executive order

Fulfilling an election campaign promise, President Duterte issued Executive Order (EO) Number 2 “Operationalizing in the executive branch the people’s constitutional right to information and the state policies to full public disclosure and transparency in the public service and providing guidelines therefor.”

The order awaits implementing rules and regulations to be drafted by the Department of Justice and the Office of the Solicitor General instructing how the executive branch would proceed.

However, hopes for greater openness in the executive branch were doused when the Presidential Communications Office released a list of 166 proposed exemptions from different branches of government. Such a list of generic exemptions threatens to nullify the intent of the order, and has received calls from advocates to be trimmed down.

For comparison, Indonesia’s Public Information Disclosure Act lists only 10 categories of exemptions with a total of 32 specific exemptions covering the executive, legislative, and judicial branches for various specified reasons. Thailand’s similar law lists seven broad categories of information considered as classified in nature.

The Philippines’ new EO does not cover information disclosure and access in the legislature and courts, for which a law must be passed by Congress.

For its part, Congress seems to be unenthusiastic to pass a comprehensive law. The Speaker of the House of Representatives said an FOI law that a law is unlikely to be passed this year despite the Presidential example.

The House Speaker claimed that the body will be busy this year with the deliberations on the state budget of 2017, and that the members of committees have not been completed.

These pronouncements seem to carry over the legislature’s foot dragging over the previous initiatives to pass an FOI law since the first initiative was introduced some 29 years ago.

There are at least two FOI proposals in the current House of Representatives, while a proposal in the Senate which was approved during the previous session just needs to be refiled.

Legally defined right in Vietnam

Some seven years since a proposal was made public, Vietnam’s National Assembly passed the Access to Information Law with an affirmative vote of 437 of the 448 members of the legislature.

The draft law was finally proposed by the Standing Committee in August 2015, after extended deliberations from 2009 on the scope of the right and exemptions for access to information in the proposal.

Nevertheless, the landmark legislation has the potential to change the information disclosure climate in the one-party state if the country’s burgeoning civil society community makes use of the law when it takes effect after two years in July 2018.

The main defining feature of the law is the recognition of the access to information as a right equally guaranteed to all citizens.

A weak law

In an analysis based on the draft released by the National Assembly Standing Committee, the Center for Law and Democracy (CLD) gave a relatively low rating of 59 to the draft law, which ranks 93rd of the 102 countries with FOI legislation.

By comparison, Thailand’s Official Information Act obtained a score of 79, while Indonesia’s law obtained a score of 101 out of a total potential score of 150 from its RTI Legislation Rating Methodology.

The bill scored poorly in five of seven aspects of the review, except in defining the law’s scope and in promotional aspects where it obtained scored of greater than 50 percent of the total.

In CLD’s initial assessment is based on the August 2015 draft, which is the only available translation in English.

Vietnam’s 2016 Access to Information Law provides the framework for state agencies to release information to the public either by publication or through formal requests. It encourages releases of information under the general principles of “fullness, accuracy and timeliness,” as part of state duty to publish information as part of the law.

The law identifies different channels of releasing information held by government agencies in articles 10 to 14, through online information portals, the Official Gazette and the mass media. It notably also instructs agencies to consider enabling the release of information to meet the needs of disadvantaged groups such as people in remote areas, those with disabilities, and the poor.

It must be noted that Vietnam state agencies and organizations also own the country’s mass media outlets. Even if these may operate autonomously from the agency in terms of operations or finance, media officials are still part of the state bureaucracy.

Nevertheless, the Access to Information Law’s provisions empowering the public to request the release of information in articles 16 to 22 may be considered as the law’s pioneering initiative in Vietnam. Information requests may include documents that maybe considered sensitive, including internal issues and dossiers, if necessary to protect the interests of the requesting persons.

Limited accountability

The new law lists five broad areas of circumstances for refusing information requests, in addition to preserving legal restrictions previously made in the name of “national defense, national security, social order and safety, social ethics, and the community health,” and those that do not infringe on the state and its organizations and agencies, and the rights of individuals.

This again contrasts with the very specific restrictions in the Indonesian law, which notably also includes a list of information categories that may never be restricted for any reason.

In practice, such broad limitations are also used to curtail other rights related to freedom of expression in the country, for example, among bloggers who are frequently jailed for crimes under the Penal Code such as “conducting propaganda against the state” and “abusing democratic freedoms.”

Unlike the FOI laws in Thailand and Indonesia, Vietnam’s Access to Information Law does not create any agency that citizens can run to in case of disputes arising from information requests, or to oversee if the quality of information made available by the agency is in accordance with the law.

Information releases, whether as part of the agency initiative or from individual requests, are deemed part of the additional responsibilities outlined in the law.

Disputes and issues are handled by the head of the agency, who makes the final decisions on refusals from his or her subordinates.

The law may still allow complaints and lawsuits to handle cases arising information requests. However, the Access to Information Act does not create new penalties for violations of its provisions by either the requesting party or the personnel responsible for releasing the information. It instead provides for examination of potential fines or liabilities under existing laws.

Ultimately, the new law which will take effect in two years time serves mainly as administrative guidelines for information dissemination among Vietnam state organs. Whether it will usher in openness in government depends on how different offices fulfill their duty to make information available, and how Vietnamese citizens use the law.