Akbayan vs.

Aquino

FACTS:

This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan,
concerning trade in goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, etc.

Petitioners, as non-government orgs, congresspersons, citizens and taxpayers, filed a petition for
mandamus and prohibition seeking to compel respondents, Department of Trade Industry (DTI)
Undersecretary Thomas Aquino, et al., to furnish petitioners the full text of the Japan-Philippines
Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during
the negotiation process and all pertinent attachments and annexes thereto.

The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with
another country in the event the Senate grants its consent to it, covers a broad range of topics which
includes 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.
   
Petitioners emphasize that the refusal of the government to disclose the said agreement violates their
right to information on matters of public concern and of public interest. That the non-disclosure of the
same documents undermines their right to effective and reasonable participation in all levels of social,
political and economic decision making.

Respondent herein invoke executive privilege. They relied on the ground that the matter sought involves a
diplomatic negotiation then in progress, thus constituting an exception to the right to information and the
policy of full disclosure of matters that are of public concern like the JPEPA -  that diplomatic negotiations
are covered by the doctrine of executive privilege.

Prior to President’s signing of JPEPA in Sept. 2006, petitioners – non-government organizations,

Congresspersons, citizens and taxpayers – sought via petition for mandamus and prohibition to obtain
from respondents the full text of the JPEPA, including the Philippine and Japanese offers submitted
during the negotiation process and all pertinent attachments and annexes thereto. Particularly, Congress
through the House Committee are calling for an inquiry into the JPEPA, but at the same time, the
Executive is refusing to give them the said copies until the negotiation is completed.

ISSUES:

o Whether or not petitioners have legal standing

o Whether or not the Philippine and Japanese offers during the negotiation process are privileged
o Whether or not the President can validly exclude Congress, exercising its power of inquiry and
power to concur in treaties, from the negotiation process

RULING:

JPEPA, A Matter of Public Concern

To be covered by the right to information, the information sought must meet the threshold requirement
that it be a matter of public concern xxx

From the nature of the 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.
This, respondents do not dispute. They only claim that 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.

Privileged Character of Diplomatic Negotiations Recognized

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that “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.”

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA
may not be kept perpetually confidential – since there should be “ample opportunity for discussion before
[a treaty] is approved” – 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.

A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would discourage
future Philippine representatives from frankly expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro
quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in
order to obtain more favorable terms in an area of greater national interest.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that 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. Only after a consideration of the context in
which the claim is made may it be determined if there is a public interest that calls for the disclosure of the
desired information, strong enough to overcome its traditionally privileged status.

Does the exception apply even though JPEPA is primarily economic and does not involve national
security?

While there are certainly privileges grounded on the necessity of safeguarding national security such as
those involving military secrets, not all are founded thereon. One example is the “informer’s privilege,” or
the privilege of the Government not to disclose the identity of a person or persons who furnish information
of violations of law to officers charged with the enforcement of that law. The suspect involved need not be
so notorious as to be a threat to national security for this privilege to apply in any given instance.
Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not
only would this be contrary to long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general.

Also illustrative is the privileged accorded to presidential communications, which are presumed privileged
without distinguishing between those which involve matters of national security and those which do not,
the rationale for the privilege being that a frank exchange of exploratory ideas and assessments, free
from the glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.

In the same way that the privilege for judicial deliberations does not depend on the nature of the case
deliberated upon, so presidential communications are privileged whether they involve matters of national
security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute,
one significant qualification being that “the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal wrongdoing.” This
qualification applies whether the privilege is being invoked in the context of a judicial trial or a
congressional investigation conducted in aid of legislation.

Closely related to the “presidential communications” privilege is the deliberative process privilege
recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck &
Co, deliberative process covers documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are formulated.
Notably, the privileged status of such documents 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.

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the rationale for the confidential
character of diplomatic negotiations, deliberative process, and presidential communications is similar, if
not identical.

The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is
meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding
such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to protect the independence in decision-making of
the President, particularly in its capacity as “the sole organ of the nation in its external relations, and its
sole representative with foreign nations.” And, as with the deliberative process privilege, the privilege
accorded to diplomatic negotiations arises, not on account of the content of the information per se, but
because the information is part of a process of deliberation which, in pursuit of the public interest, must be
presumed confidential.

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.

Does diplomatic privilege only apply to certain stages of the negotiation process?

In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose “definite
propositions of the government,” such duty does not include recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security and public
order.

Treaty-making power of the President

xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations
since whatever power and authority the President has to negotiate international trade agreements is
derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and
Sections 401 and 402 of Presidential Decree No. 1464.

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and
international agreements, but the power to fix tariff rates, import and export quotas, and other taxes xxx.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the
article on the Executive Department.

xxx

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by
the President only be delegation of that body, it has long been recognized that the power to enter into
treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-
thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the
President to enter into trade agreements with foreign nations provided under P.D. 1464 may be
interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to
hold the President or its representatives accountable to Congress for the conduct of treaty negotiations.

This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the
requirement of Senate concurrence, since the President must still enure that all treaties will substantively
conform to all the relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not
interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence,
such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even Congress as a while that has been given the authority
to concur as a means of checking the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the
House of Representatives fail to present a “sufficient showing of need” that the information sought is
critical to the performance of the functions of Congress, functions that do not include treaty-negotiation.

Did the respondent’s alleged failure to timely claim executive privilege constitute waiver of such privilege?

That respondent invoked the privilege for the first time only in their Comment to the present petition does
not mean that the claim of privilege should not be credited. Petitioner’s position presupposes that an
assertion of the privilege should have been made during the House Committee investigations, failing
which respondents are deemed to have waived it.

xxx (but) Respondent’s failure to claim the privilege during the House Committee hearings may not,
however, be construed as a waiver thereof by the Executive branch. xxx what respondents received from
the House Committee and petitioner-Congressman Aguja were mere requests for information. And as
priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a
subpoena duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee
Chairperson Congressman Teves to hold the same in abeyance.

The privilege is an exemption to Congress’ power of inquiry. So long as Congress itself finds no cause to
enforce such power, there is no strict necessity to assert the privilege. In this light, respondent’s failure to
invoke the privilege during the House Committee investigations did not amount to waiver thereof.

“Showing of Need” Test

In executive privilege controversies, the requirement that parties present a “sufficient showing of need”
only means, in substance, that they should show a public interest in favor of disclosure sufficient in
degree to overcome the claim of privilege. Verily, the Court in such cases engages in a balancing of
interests. Such a balancing of interests is certainly not new in constitutional adjudication involving
fundamental rights.

xxx However, when the Executive has – as in this case – invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can a party
overcome the same by merely asserting that the information being demanded is a matter of public
concern, without any further showing required? Certainly not, for that would render the doctrine of
executive privilege of no force and effect whatsoever as a limitation on the right to information, because
then the sole test in such controversies would be whether an information is a matter of public concern.

Right to information vis-a-vis Executive Privilege

xxx the Court holds that, in determining whether an information is covered by the right to information, a
specific “showing of need” for such information is not a relevant consideration, but only whether the same
is a matter of public concern. When, however, the government has claimed executive privilege, and it has
established that the information is indeed covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that that information is vital, not simply for the satisfaction of its
curiosity, but for its ability to effectively and reasonably participate in social, political, and economic
decision-making.