akbayan+v.+aquino-2

8/18/2019 Akbayan+v.+Aquino-2

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AKBAYAN V. AQUINOG.R. NO. 170516, JULY 16, 2008

ACTS: The petitioners (NGOs, members of Congress,tizens and taxpayers) in this petition for mandamusnd prohibition seek to obtain from respondents (variouscia!s from the "T#, "$%, N&"%, "O', "O&, CC) theu!! text of the 'apan*hi!ippines &conomic artnershipgreement (+'&%)- inc!uding the hi!ippine andpanese o.ers submitted during the negotiationrocess/ The 0ouse 1pecia! Committee on G!oba!izationCommittee) conducted an in2uiry into theegotiations of the '&%/ #n the course of its in2uiry, theommittee re2uested %2uino, "T# 31ec and Chairman of he hi!ippine Coordinating Committee (+CC), to studynd negotiate the proposed '&%, and to furnish theommittee 4ith a copy of the !atest draft of the '&%/2uino did not heed the re2uest/

ater, 5ep/ %gu6a re2uested for the same document, but2uino rep!ied that %gu6a sha!! be provided 4ith a copyhereof +once the negotiations are completed and asoon as a thorough legal review of the proposed

greement has been conducted. #n a separate move,he Committee, through 5ep/ Teves re2uested &xecutiveecretary &rmita to furnish it 4ith +all documents on theubject including the latest draft of the proposedgreement, the requests and oers etc. &rmita 4roteeves, +...A copy of the draft JPEPA will however beorwarded to the ommittee as soon as the te!t thereof settled and complete. 5ep/ %gu6a a!so re2uested&"% and the Tari. Commission for copies/ %ccording to

he Tari. Commission, it does not have a copy of theocuments being re2uested, a!beit he 4as certain that1ec %2uino 4ou!d provide the Congressman 4ith aopy +once the negotiation is comp!eted/ N&"%

or4arded %gu6a7s re2uest to 31ec %2uino 4ho 4ou!d ben the best position to respond to the re2uest/

mid specu!ations that the '&% might be signed by thehi!ippine government 4ithin "ecember 899:, theresent petition 4as ;!ed/ The agreement 4as to be !atergned on 1eptember % and 'apanese >oizumi in $in!and, fo!!o4ing 4hich the residentndorsed it to the 1enate for its concurrence/ @hi!e thena! text of the '&% has no4 been made accessib!e tohe pub!ic since 1eptember --, 899=, %2uino et al. doot dispute that, at the time the petition 4as ;!ed up tohe ;!ing of petitioners7 5ep!y (4hen the '&% 4as sti!!

eing negotiated) the initia! drafts thereof 4ere keptom pub!ic vie4/

kbayan et al/7s positionA8

The '&%, 4hich 4i!! be the ;rst bi!atera! free trade agreement to bentered into by the hi!ippines 4ith another country in the event theenate grants its consent to it, covers a broad range of topics 4hichspondents enumerate as fo!!o4sA trade in goods, ru!es of origin,stoms procedures, paper!ess trading, trade in services, investment,te!!ectua! property rights, government procurement, movement of atura! persons, cooperation, competition po!icy, mutua! recognition,spute avoidance and sett!ement, improvement of the business

nvironment, and genera! and ;na! provisions/

(-) The refusa! of the government to disc!ose the documbearing on the '&% negotiations vio!ates their right to informon matters of pub!ic concern and contravenes other constituprovisions on transparency, such as that on the po!icy of fu!! pdisc!osure of a!! transactions invo!ving pub!ic interest/(8) Non*disc!osure of the same documents undermines theirto e.ective and reasonab!e participation in a!! !eve!s of spo!itica!, and economic decision*making/(B) "ivu!ging the contents of the '&% on!y after the agreehas been conc!uded 4i!! e.ective!y make the 1enate into a rubber stamp of the &xecutive, in vio!ation of the principseparation of po4ers/

%2uino et al/7s positionA "ip!omatic negotiations are covby the doctrine of executive privi!ege, thus constitutinexception to the right to information and the po!icy of fu!! pdisc!osure/ %t the time 4hen the Committee 4as re2uestincopies of such documents, the negotiations 4ere ongoing asare sti!! no4 and the text of the proposed '&% is sti!! unceand sub6ect to change/ Negotiations of the representatives ohi!ippines as 4e!! as of 'apan must be a!!o4ed to exa!ternatives in the course of the negotiations in the same maas 6udicia! de!iberations and 4orking drafts of opinionsaccorded strict con;dentia!ity/

ISSUE: @hether or not the '&% is a matter of pconcern/

HEL: YES. To be covered by the right to informathe information sought must meet the thresre2uirement that it be a matter of pub!ic concern/ $the nature of the '&% as an internationa! tagreement, it is evident that the hi!ippine and 'apao.ers submitted during the negotiations to4ardexecution are matters of pub!ic concern/

ISSUE: @hether or not executive privi!ege mayinvoked/

HEL: YES. Neither the right to information norpo!icy of fu!! pub!ic disc!osure is abso!ute, there bmatters 4hich, a!beit of pub!ic concern or pub!ic inteare recognized as privi!eged in nature/ @hether a cof executive privi!ege is va!id depends on the groinvoked to 6ustify it and the context in 4hich it is m#t bears emphasis, ho4ever, that such privi!ege is presumptive/ On!y after a consideration of the conte4hich the c!aim is made may it be determined if thea pub!ic interest that ca!!s for the disc!osure ofdesired information, strong enough to overcomtraditiona!!y privi!eged status/

%pp!ying the P"P# v. "anglapus ru!ing, 4hi!e the $ T&T of the '&% may not be kept perpetcon;dentia! D since there shou!d be amp!e opportufor discussion before a treaty is approved D the O$$&C0%NG&" by the parties during the negotiacontinue to be privi!eged even after the '&pub!ished/ #t is reasonab!e to conc!ude that the 'apade!egates submitted their o.ers 4ith the understanthat +historic con;dentia!ity 4ou!d govern the s

8 The ;rst t4o grounds re!ied upon by petitioners 4hich be

the merits of respondents7 c!aim of privi!ege sha!! be discu The !ast, being pure!y specu!atory given that the 1enate ide!iberating on the '&%, sha!! not/

!OLITICAL LA" REVIE" # ATTY. JACK JI$ENE% # $ARK JOREL O. CALIA


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isc!osing these o.ers cou!d impair the abi!ity of thehi!ippines to dea! not on!y 4ith 'apan but 4ith otheroreign governments in future negotiations/ % ru!ing thathi!ippine o.ers in treaty negotiations shou!d no4 bepen to pub!ic scrutiny 4ou!d discourage futurehi!ippine representatives from frank!y expressing theire4s during negotiations/ @hi!e, on ;rst impression, itppears 4ise to deter hi!ippine representatives fromntering into compromises, it bears noting that treatyegotiations (or any negotiation for that matter)

orma!!y invo!ve a process of quid pro quo, andftentimes negotiators have to be 4i!!ing to grantoncessions in an area of !esser importance in order tobtain more favorab!e terms in an area of greaterationa! interest/

he dip!omatic negotiations privi!ege bears a c!oseesemb!ance to the de!iberative process and presidentia!ommunications privi!ege/ The rationa!e for theon;dentia!ity of dip!omatic negotiations, de!iberativerocess, and presidentia! communications is simi!ar, if ot identica!/ The privi!ege for dip!omatic negotiations is

meant to encourage a frank exchange of exp!oratory

eas bet4een the negotiating parties by shie!ding suchegotiations from pub!ic vie4/ 1imi!ar to the privilege for residential communications, the dip!omaticegotiations privi!ege seeks to protect the independence decision*making of the resident, particu!ar!y in its

apacity as +the so!e organ of the nation in its externa!e!ations, and its so!e representative 4ith foreignations/ %nd, as 4ith the deliberative process privilege,he privi!ege accorded to dip!omatic negotiations arises,ot on account of the content of the information per se,ut because the information is part of a process of e!iberation 4hich, in pursuit of the pub!ic interest, muste presumed con;dentia!/ Negotiations bet4een t4o

ountries to draft a treaty represent a true examp!e of ae!iberative process/ >uch give*and*take must occur forhe countries to reach an accord/

he nature of dip!omacy re2uires centra!ization of uthority and expedition of decision 4hich are inherent executive action/ %nother essentia! characteristic of p!omacy is its con;dentia! nature/ #n the moment thategotiations are started, pressure groups attempt tomusc!e in/ %n i!!*timed speech by one of the parties orfrank dec!aration of the concession 4hich are exacted

r o.ered on both sides 4ou!d 2uick!y !ead toidespread propaganda to b!ock the negotiations/ %ftertreaty has been drafted and its terms are fu!!y

ub!ished, there is amp!e opportunity for discussionefore it is approved/ ub!icity !eads to +grandstanding,ends to freeze negotiating positions, and inhibits theve*and*take essentia! to successfu! negotiation/ ub!icpinion !eaves the negotiating pane! 4ith !esser options/

SSUE: @hether or not the P"P# v. "anglapus ru!ing ispp!icab!e in the case at bar/

kbayan et al/7s positionA) "anglapus invo!ved the >i!itary Eases %greement 4hich

ecessari!y pertained to matters a.ecting nationa! securityF

the '&% invo!ves an economic treaty that seeks to regtrade and commerce bet4een the hi!ippines and 'apan 4is not so vita! to nationa! security to disa!!o4 their disc!osu(8) #n "anglapus, the petitioners consisted entire!y of memof the mass media, 4hi!e petitioners in this case inmembers of the !o4er house 4ho invoke their righinformation not 6ust as citizens but as members of Congetitioners thus conc!ude that the present case invo!veright of members of Congress to demand informationegotiations of internationa! trade agreements from&xecutive branch, a matter 4hich 4as not raised in "angla

(B) The socio*po!itica! and historica! contexts of the t4o care 4or!ds apart/ Constitutiona! traditions and conprevai!ing at the time of "anglapus, particu!ar!y+incompatibi!ity hypothesisB is inva!id in the aginternationa! cooperation

HEL: YES. hi!ippine courts, 4hen assessing a c!aiprivi!ege for dip!omatic negotiations, are more frefocus direct!y on the issue of 4hether the privi!ege bc!aimed is indeed supported by pub!ic po!icy/ There ba pub!ic po!icy supporting a privi!ege for dip!omnegotiations for the reasons exp!ained above, the Csees no reason to modify, much !ess abandon,doctrine in "anglapus/

The privi!eged character accorded to dip!omnegotiations does not ipso facto !ose a!! force and esimp!y because the same privi!ege is no4 being c!aiunder di.erent circumstances/ The probabi!ity ofc!aim succeeding in the ne4 context might di.er, bsay that the privi!ege, as such, has no va!idity at athat context is another matter a!together/

The ru!ing in "anglapus is grounded more on the naof treaty negotiations as such than on a particu!ar spo!itica! schoo! of thought/

ISSUE: @hether or not there is sucient pub!ic inteto overcome the c!aim of privi!ege/

HEL: NO. There are at !east 8 kinds of pub!ic intethat must be taken into account/ One is the presupub!ic interest in favor of $eeping the subinformation con%dential, 4hich is the reason forprivi!ege in the ;rst p!ace, and the other is the pinterest in favor of disclosure, the existence of 4must be sho4n by the party asking for informationprivi!ege is a 2ua!i;ed privi!ege and can be overcon!y by a +sucient sho4ing of need/ etitioners fto present such standard of need/

ISSUE: @hether or not access to the said documenessentia! to the peop!e7s exercise of their righparticipate in decision*making/

HEL: NO. The text of the '&% having been pub!ispetitioners have fai!ed to convince this Court that 4i!! not be ab!e to meaningfu!!y exercise their rig

B 1choo! of thought that the re2uirements of foreign po!icy anidea!s of transparency 4ere incompatib!e 4ith each other internationa! re!ations 4ere sti!! governed by po4er, po!itics4ars/



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articipate in decision*making un!ess the initia! o.ers areso pub!ished/ #t is of pub!ic kno4!edge that variousGOs and private citizens have a!ready pub!ic!yxpressed their vie4s on the '&%, their comments noteing !imited to genera! observations thereon but on itspeci;c provisions/ Numerous artic!es and statementsritica! of the '&% have been posted on the #nternet/iven these deve!opments, there is no basis for theaim that access to the hi!ippine and 'apanese o.ers isssentia! to the exercise of their right to participate in

ecision*making/

SSUE: @hether or not respondents be!ated!y c!aimedxecutive privi!ege/

EL: NO. @hen the Committee and 5ep/ %gu6ae2uested for copies of the documents, respondentsep!ied that the negotiations 4ere sti!! on*going and thathe draft of the '&% 4ou!d be re!eased once the texthereof is sett!ed and comp!ete/ There 4as no intimationhat the re2uested copies are con;dentia! in nature byeason of pub!ic po!icy/ 5espondents7 fai!ure to c!aim therivi!ege during the 0ouse Committee hearings may not

e construed as a 4aiver thereof by the &xecutiveranch/ @hat respondents received 4ere mere re2uestsor information/ The Committee itse!f refrained fromursuing its ear!ier reso!ution to issue a subpoena ducesecum.

$JCA There 4as a very !ong response by '/ Carpio*ora!es to C' uno7s dissenting opinion/ !ease read therigina!/


akbayan+v.+aquino-2

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