Akbayan Citizens Action Party v. Aquino, G.R. No. 170516, July 16, 2008

Summary:  House Special Committee on Globalization conducted an inquiry into the negotiations of the JAPAN-PH Economic Partnership Agreement (JPEPA). In the course of its inquiry, the Committee requested some executive officials in particular Usec. Tomas Aquino, Chairman of the PH Coordinating Committee (the committee tasked to study the feasibility of the JPEPA) to furnish the Committee w/ a copy of the latest draft of the JPEPA. Requests were not met.

Amid the speculations that the JPEPA might be signed by the PH gov't within Dec 2005, Petitioners (NGOs, Congresspersons, citizens and taxpayers) filed on Dec 9 before the SC,  a petition for mandamus and prohibition to obtain the full text of the JPEPA with all the pertinent attachments and annexes thereto including the PH and Japanese offers submitted during the negotiation process.  

SC dismissed the petition for (1) the full text of the JPEPA  including its annexes and attachments has been made accessible to the public since Sept 11, 2006 and for (2) the PH and Japanese offers are covered by executive privilege.  Petitioners failed to present a sufficient showing of need to overcome the claim of privilege in this case.

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Ponente: CARPIO-MORALES J.

Additional Facts:

In a letter Executive Secretary Ermita wrote to Congressman Teves , he explained that:

the Committee's request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete

JPEPA was signed on September 9, 2006 by President Gloria Macapagal-Arroyo, following which the President endorsed it to the Senate for its concurrence pursuant to Art 7, Sec 21 of the Constitution.

The JPEPA covers: trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.

PROCEDURAL ISSUES:

Standing?

Yes. Petition is anchored on the right to information and petitioners are all suing in their capacity as citizens.

Moot?

Not entirely moot because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.

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SUBSTANTIVE ISSUE

Petitioners' Arguments:

(1) the refusal of the government to disclose the documents bearing on the JPEPA negotiations

•     violates their right to information on matters of public concern (Sec 7, Art 3, 1987 Constitution)

•    contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest (Sec 28, Art 2, 1987 Constitution)

(2) non-disclosure undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making. (Sec 16, Art 13, 1987 Constitution)

(3) divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the principle of separation of powers.

Note: 3^rd one, speculatory. Senate was deliberating JPEPA then hence Court did not discussed this argument.

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Respondents' Argument

Diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure.

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Issue: WON there is sufficient public interest to overcome the claim of privilege.

Held: No.

First: Is JPEPA negotiations a matter of public concern?

Yes. JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern.

Second: Does diplomatic negotiations has privileged character?

Yes. Court has in fact recognized its privileged character in many case laws.

Chavez v. PCGG

 information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest

PMPF v. Manglapus

Secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.

Another essential characteristic of diplomacy is its confidential nature.

Why?

In the moment that negotiations are started, pressure groups attempt to muscle in. An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the negotiations.

In PMPF v. Manglapus, the Court also adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries (also supported by Sec 21, Art 7 of the 1987 Constitution).

Applying the principles adopted in PMPF v. Manglapus, the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published.

It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.

But take note: such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances.

SO.. going back to the main question. Did the petitioners successfully present a strong and sufficient showing of need to overcome the claim of privilege in the case?

No. Failed in every criterion set in different case laws.

Criterion 1 in US v Nixon

x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A Presidents acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice.

SC: case not a criminal case

Criterion 2 in Senate Select Committee v. Nixon

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions.

SC: (to members of HoR) Congress not given authority to interfere in treaty negotiations. In fact, Art 7 Sec 21 gives Senate and only the Senate, the power to check the validity of the treaty (and subsequently concur with its ratification or not), not its negotiations.

Also, the final text of the JPEPA was already published, petitioner-members of the HoR are free to use it for any legislative purpose they may see fit.

Criterion 3 in In Re Sealed Case

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees.

SC: Petitioners' claim that the documents are essential to their right to participate in decision-making, no basis. Full text already publicly available; the treaty is being deliberated in the Senate; Petitioners have now ample opportunity to voice their concerns.

Notes:

1. There are 2 kinds of public interest: (a) Public interest in favor of keeping the subject information confidential (b) Public interest in favor of disclosure (This is what petitioners in this case should have proven)

2. Petitioners contended that the PMPF v Manglapus case is not applicable in this case

(a) PMPF involved the Military Base Agreements, an issue so vital to national security that disclosure is not warranted while JPEPA is an economic treaty

SC: Information to be considered privileged need not involve national security. Examples are informer's privilege, privilege accorded to presidential communications, and deliberative process privilege.

Such privileged status rests, not on the need to protect national security but, on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, the objective of the privilege being to enhance the quality of agency decisions.

(b) In PMPF, petitioners are mainly mass media. In this case, petitioners include members of HoR who have rights to demand info on negotiations of international trade.

SC: The privilege for diplomatic negotiations may be invoked not only against citizens demands for information, but also in the context of legislative investigations. This principle holds true particularly with respect to diplomatic negotiations as can be inferred from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude upon that process.

(c) PMPF was decided when the international relations were still governed by power, politics and wars. Now international relations is governed by international cooperation.

SC: The ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought.

3. Petitioners contended that the respondents invoked the privilege for the first time in their Comment to the present petition hence should not be credited.

SC: Failure to claim the privilege during the House Committee hearings may not be construed as a waiver thereof. Request made by the Committee are mere requests that do not strictly call for an assertion of executive privilege.

4. Respondents' claim of privilege failed to satisfy in full the requirement laid down in Senate v Ermita, but the SC nonetheless sustained the claim because of circumstances peculiar to the case and the fact that when respondents filed their Comment the rule laid down in the Senate v Emita was not yet final and executory. 

Privilege should be invoked by the President or through the Executive Secretary “by order of the Pres.”

5. Response to CJ Puno's dissent

(a) Congress are not seeking to directly participate in the negotiations, hence they cannot be prevented from gaining access these documents.

SC: Agan v Piatco

those that cannot be done directly cannot be done indirectly

(b) Respondents can no longer claim the diplomatic secrets privilege now that the negotiations have been concluded, since their reason for non-disclosure (negotiations still on-going) no longer applies.

SC: negotiations just like judicial deliberations do not lose their confidential character once the “final result” has been promulgated.

(c) Congresspersons have sufficiently shown their need for the documents to overcome privilege. JPEPA covers subject matter over which Congress has the power to legislate

SC: ^ mere assertions would not suffice. Second, House Committees were able to proceed with their negotiations w/out the JPEPA documents.

Furthermore, the final text of the JPEPA was already published. Petitioner-members of the HoR are free to use it for any legislative purpose they may see fit.

(d) The balance tilts in favor of disclosing the JPEPA documents. The Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions.

SC: The Executive was able to show that the documents being sought are covered by a recognized privilege, hence the burden now shifts to the party seeking information to overcome the privilege by a strong showing of need.

(e) Exec. Sec. failed to explicitly state that he is claiming the privilege “by order of the President”.

SC: Just a new rule laid down in Senate v Ermita, which judgment became final after the claim of executive privilege occurred.

(f) PMPF v Magalona not applicable in the present case as the Court therein erred in citing US v Curtiss Wright. Curtiss-Wright referred to a conflict between executive and legislative. PMPF involved a collision between a governmental power over conduct of foreign affairs and the citizen's right to information. 

SC: These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the other.

If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this may give rise to the absurd result where Congress would be denied access to a particular information because of a claim of executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding.

(g)  Court has never used need as a test to uphold or allow inroads into rights guaranteed under the Constitution.

SC:  The requirement that parties present a sufficient showing of need means that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege. Such a balancing of interests is not new in constitutional adjudication involving fundamental rights.

 It would appear that the only disagreement is on the results of applying that test in this instance.

(h) right to participate in the discussion whether the Senate should concur in its ratification or not, will be diluted unless the people can have access to the subject JPEPA documents.

SC: Filipinos have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA negotiation documents.

(i) Principles in US v Nixon not applicable as the case addresses President's assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for information.

SC: Court cited it to demonstrate the scope and use of Presidential Communication privilege.

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