In the recent case of AKBAYAN CITIZENS ACTION PARTY (“AKBAYAN”), ET. AL. vs. THOMAS G. AQUINO, Et. Al., En Banc, G.R. No. 170516,
Chief Justice Reynato Puno dissented. I will digest the majority opinion, followed by Puno's dissent. I subscribe to the dissenting opinion.
Petitioners Akbayan, et. al. sought via a petition for mandamus and prohibition to obtain from public respondents 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.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on
Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the petition was filed on
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 respondents enumerate as follows: 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 assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates their right to information on matters of public concern and contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest. Second, they contend that non-disclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making. Lastly, they proffer that 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.
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.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made. In the present case, the ground for respondents’ claim of privilege is set forth in their Comment, viz: “x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary. X x x. They come within the coverage of executive privilege. At the time when the Committee was requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. X x x. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.“
The ground relied upon by respondents was that the information sought pertains to diplomatic negotiations then in progress.
The Court ruled that the privileged character of diplomatic negotiations has been recognized in this jurisdiction and 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.” It stated that the “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.” The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.
The Court held that the President is the sole organ of the nation in its negotiations with foreign countries. The President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.
It added 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
It stated that a ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. 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. Publicity leads to “grandstanding” and tends to freeze negotiating positions and inhibits the give-and-take essential to successful negotiation.
The Court stressed that by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones. Diplomatic negotiations are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive, for 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.
While there certainly are 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.
Also illustrative is the privilege 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. “Deliberative process” covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 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 Court stated that 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.
Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at any one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It would not be “working law” as the points discussed and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the Senate.
Citing American jurisprudence, the Court stated that the policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations process if these notes were revealed. Exposure of the pre-agreement positions might well offend foreign governments and would lead to less candor in recording the events of the negotiations process. Releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, drafts of treaties should be accorded the same protection. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process.
It will be noted that under Exemption 5 of the US Freedom of Information Act (FOIA), in order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision-making process.
Public policy underlying the deliberative process privilege requires that diplomatic negotiations should also be accorded privileged status, even if the documents subject of the present case cannot be described as purely internal in character.
The Court’s statement in Senate v. Ermita that “presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations [state secrets privilege, informer’s privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,” implies that a privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred from the fact 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.
The privilege for diplomatic negotiations may be invoked not only against citizens’ demands for information, but also in the context of legislative investigations.
Petitioners admit that “diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to jeopardize the diplomatic process.” They argue, however, that the same is privileged “only at certain stages of the negotiating process, after which such information must necessarily be revealed to the public.” They add that the duty to disclose this information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming up of definite propositions or official recommendations. However, the Court held that the duty to disclose “definite propositions of the government” does not apply to diplomatic negotiations. Although the constitutional right to information includes official information on on-going negotiations before a final contract, the information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. It follows that even definite propositions of the government may not be disclosed if they fall under “recognized exceptions.” The privilege for diplomatic negotiations is clearly among the recognized exceptions.
According to the Court, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information. Citing U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district court in a criminal case, the Court emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure a fair administration of criminal justice. 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 President’s 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. Without access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.
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. Each time the deliberative process privilege is asserted the 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.
The case for petitioners has been immensely weakened by the disclosure of the full text of the JPEPA to the public since
According to the Court, it is of public knowledge that various non-government sectors and private citizens have already publicly expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet. Given these developments, there is no basis for petitioners’ claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making.
The treaty-making power is exclusive to the President, being the sole organ of the nation in its external relations. By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." The power to enter into treaties or international agreements, the Constitution is vested in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of a treaty and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him.
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 ensure that all treaties will substantively conform to all the relevant provisions of the Constitution.
It follows 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 whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate.
That respondents 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. Petitioners’ 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.
Respondents’ failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. 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, respondents’ failure to invoke the privilege during the House Committee investigations did not amount to a waiver thereof. The Court observed, however, that the claim of privilege appearing in respondents’ Comment to this petition fails to satisfy in full the requirement that the claim should be invoked by the President or through the Executive Secretary “by order of the President.” Respondents’ claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the phrase “by order of the President,” shall be considered as partially complying with the requirement. The requirement that the phrase “by order of the President” should accompany the Executive Secretary’s claim of privilege is a new rule.
Chief Justice REYNATO PUNO dissented.
The key to resolving the decisive issue in the case at bar turns on the proper framework of analysis. The instant case involves primarily not an assessment of globalization and international trade or of the extent of executive privilege in this global arena, but a valuation of the right of the individual and his representatives in Congress to participate in economic governance. Economic decisions such as forging comprehensive free trade agreements impact not only on the growth of our nation, but also on the lives of individuals, especially those who are powerless and vulnerable in the margins of society.
In demanding the subject JPEPA documents, petitioners suing as members of the House of Representatives invoke their power over foreign trade under Article VI, Section 28 (2) of the 1987 Constitution which provides, viz:
Sec. 28 (2). The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (emphasis supplied)
Respondents, on the other hand, deny petitioners’ demand for information by contending that the President is the sole organ of the nation in external relations and has sole authority in the negotiation of a treaty; hence, petitioners as members of the House of Representatives cannot have access to the subject JPEPA documents. On closer examination, respondents’ contention can be reduced into two claims: (1) the executive has sole authority in treaty negotiations, hence, the House of Representatives has no power in relation to treaty negotiations; and (2) the information and documents used by the executive in treaty negotiations are confidential.
Article II of the U.S. Constitution grants the President the power to make treaties, but only with the approval of a super-majority of the Senate. Under Article I, Congress has the power to regulate foreign trade, including the power to “lay and collect Taxes, Duties, Imposts and Excises.”
While the drafters of the U.S. Constitution discussed the commerce power and the power to make treaties, there is scant information on how they intended to allocate the powers of foreign commerce between the political branches of government. “The well-recognized utility of Congressional involvement in treaty and international agreement negotiation applies with even greater force when it comes to international trade. For here, the making of international agreements intersects with the Constitution’s express grant of authority to Congress to regulate commerce with foreign nations.”
The drafters of the Constitution gave the President power to negotiate because of the need to demonstrate clear leadership and a unified front when dealing with other nations. The Senate was given the power to ratify treaties because, as the more “contemplative” arm of the legislature, it was less subject to short-term interests than the House while still directly representing the interests of the people. Congress was granted the power to set tariffs and to regulate commerce in order to check the powers of the Executive.
Thus, under the U.S. Constitution, the President has the power to negotiate international treaties, but does not have the constitutional authority to regulate commerce or to determine tariffs and duties. On the other hand, Congress has the power to regulate commerce with foreign nations, but does not have the power to negotiate international agreements directly. That there is a question on the demarcation of powers between the President and Congress in international trade agreements cannot escape the eye.
Given this slice of
In sum, while provision was made for granting authority to the President with respect to the fixing of tariffs, import and export quotas, and tonnage and wharfage dues, the power of Congress over foreign trade, and its authority to delegate the same to the President by law, has consistently been constitutionally recognized. Tthe foreign relations power of the President, “like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” Congress’ power over foreign trade is one such provision that must be considered in interpreting the treaty-making power of the President.
The 1987 Constitution itself, reiterating the 1935 and the 1973 Constitutions, provides that Congress may, by law, authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues within specified limits, and subject to such limitations and restrictions as Congress may impose. One cannot simply turn a blind eye on Congress’ foreign trade power granted by the Constitution in interpreting the power of the Executive to negotiate international trade agreements.
Turning to the case at bar, Congress undoubtedly has power over the subject matter of the JPEPA, as this agreement touches on the fixing of “tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts.” Congress can, in fact, revoke or amend the power of the President to fix these as authorized by law or the Tariff and Customs Code of 1978. Congress can legislate and conduct an inquiry in aid of legislation on this subject matter, as it did pursuant to House Resolution No. 551. The purpose of the legislative inquiry in which the subject JPEPA documents are needed is to aid legislation, which is different from the purpose of the negotiations conducted by the Executive, which is to conclude a treaty. Exercised within their proper limits, the power of the House of Representatives to conduct a legislative inquiry in aid of legislation and the power of the executive to negotiate a treaty should not collide with each other.
It is worth noting that petitioner members of the House of Representatives are not seeking to directly participate in the negotiation of the JPEPA, nor are they indirectly interfering with the Executive’s negotiation of the JPEPA. They seek access to the subject JPEPA documents for purposes of their inquiry, in aid of legislation, on the forging of bilateral trade and investment agreements with minimal public scrutiny and debate, as evinced in the title of House Resolution No. 551, “Directing the Special Committee on Globalization to Conduct an Urgent Inquiry in Aid of Legislation on Bilateral Trade and Investment Agreements that Government Has Been Forging, with Far Reaching Impact on People’s Lives and the Constitution But with Very Little Public Scrutiny and Debate.”
Precisely, the inquiry in aid of legislation under House Resolution No. 551 seeks to investigate the sufficiency of public scrutiny and debate on the JPEPA, considering its expansiveness, which is well within the foreign trade power of Congress. At this point, it is in fact impossible for petitioners to interfere with the JPEPA negotiations, whether directly or indirectly, as the negotiations have already been concluded. Be that as it may, the earlier discussion on the allocation of international trade powers between the Executive and Congress in
he Court has defined “executive privilege” as the right of the President and high-level executive branch officials to withhold information from Congress, the courts, and the public.
In the
In Almonte v. Vasquez,[i][117] the Court recognized a common law governmental privilege against disclosure, with respect to state secrets bearing on diplomatic matters.[ii][118] In Chavez v. PCGG,[iii][119] the Court also recognized the confidentiality of information on inter-government exchanges prior to the conclusion of treaties and executive agreements subject to reasonable safeguards on the national interest.[iv][120] It also reiterated the privilege against disclosure of state secrets bearing on diplomatic matters, as held in Almonte. Citing Chavez, Senate v. Ermita also acknowledged the states secrets privilege bearing on diplomatic matters. In PMPF v. Manglapus, the Court upheld the confidentiality of treaty negotiations. In that case, petitioners sought to compel the representatives of the President in the then ongoing negotiations of the RP-U.S. Military Bases Agreement to give them access to the negotiations, to treaty items already agreed upon, and to the R.P. and
In determining the applicability of the diplomatic secrets privilege to the case at bar, I reiterate the primordial principle in Senate v. Ermita that a claim of executive privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. Thus, even while Almonte and Senate v. Ermita both recognized the state secrets privilege over diplomatic matters, and Chavez and PMPF v. Manglapus both acknowledged the confidentiality of inter-government exchanges during treaty negotiations, the validity of the claim of the diplomatic secrets privilege over the subject J
The reasons cited by respondents for refusing to furnish petitioners the subject JPEPA documents demonstrate that these documents contain matters that should not be disclosed, lest the ongoing negotiations be hampered. As respondents further explain in their Comment, if premature disclosure is made while negotiations are ongoing, the Philippine panel and the President would be “hampered and embarrassed by criticisms or comments from persons with inadequate knowledge of the nuances of treaty negotiations or worse by publicity seekers or idle kibitzers.”
Without ruling on the confidentiality of the subject JPEPA documents during negotiations (as this is no longer in issue), the reasons provided by respondents for invoking the diplomatic secrets privilege while the JPEPA negotiations were ongoing no longer hold now that the negotiations have been concluded. That respondents were claiming confidentiality of the subject JPEPA documents during -- not after -- negotiations and providing reasons therefor is indubitable. The 23 June 2005 letter of respondent Secretary Ermita to Congressman Teves states that the “proposed Agreement has been a work in progress for about three years.” Likewise, respondents’ Comment states that “(a)t the time when the Committee was requesting the copies of such documents, the negotiations were ongoing as they are still now.” Both statements show that the subject JPEPA documents were being withheld from petitioners during and not after negotiations, and that the reasons provided for withholding them refer to the dangers of disclosure while negotiations are ongoing and not after they have been concluded.
In fact, respondent Secretary Ermita’s 23 June 2005 letter states that a “copy of the draft JPEPA” as soon as “the text thereof is settled and complete” would be forwarded to the Committee, which is precisely one of the subject JPEPA documents, i.e., the final text of the JPEPA prior to its signing by the President. Similarly, in his letter dated 2 November 2005, respondent Undersecretary Aquino replied that the Committee would be provided the latest draft of the agreement “once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted.”[v][126] Both letters of Secretary Ermita and Undersecretary Aquino refer to the draft texts of the JPEPA that they would provide to the Committee once the negotiations and text are completed, and not to the final text of the JPEPA after it has been signed by the President. The discussion infra will show that in the case of the North American Free Trade Agreement (NAFTA), the complete text of the agreement was released prior to its signing by the Presidents of the U.S., Canada and Mexico. Likewise, draft texts of the Free Trade Area of the Americas (FTAA) have been made accessible to the public. It is not a timeless absolute in foreign relations that the text of an international trade agreement prior to its signing by the President should not be made public.
For a claim of diplomatic secrets privilege to succeed, it is incumbent upon respondents to satisfy the Court that the disclosure of the subject JPEPA documents after the negotiations have been concluded would prejudice our national interest, and that they should therefore be cloaked by the diplomatic secrets privilege. It is the task of the Executive to show the Court the reason for the privilege in the context in which it is invoked, as required by Senate v. Ermita, just as the
With respondents’ failure to provide reasons for claiming the diplomatic secrets privilege after the conclusion of negotiations, the inevitable conclusion is that respondents cannot withhold the subject JPEPA documents.
In the
The Court also held that the judicial branch, and not the executive branch, is the final arbiter of whether the privilege should apply, contrary to the government’s assertion that the head of the relevant agency should be allowed to assert the privilege unilaterally.[ix][139]
Courts and scholars have identified three purposes[x][140] of the privilege: (1) to protect candid discussions within an agency;[xi][141] (2) to prevent public confusion from premature disclosure of agency opinions before the agency has established a final policy;[xii][142] and (3) to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action, when these were not in fact the ultimate reasons for the agency’s action.[xiii][143]
Two requisites are essential for a valid assertion of the privilege: the material must be pre-decisional and deliberative. To be “pre-decisional,” a document must be generated before the adoption of an agency policy. To be “deliberative,” it must reflect the give-and-take of the consultative process.[xiv][144] Both requirements stem from the privilege’s “ultimate purpose (which) ... is to prevent injury to the quality of agency decisions” by allowing government officials freedom to debate alternative approaches in private.[xv][145] The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made; nor does the privilege cover material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.[xvi][146] There must also be a formal assertion of the privilege by the head of the department in control of the information based on his actual personal consideration of the matter and an explanation as to why the information sought falls within the scope of the privilege.[xvii][147]
In our jurisdiction, the Court has had no occasion to recognize and rule on the applicability of the deliberative process privilege. In the recent case Neri v. Senate Committees,[xviii][151] the Court recognized the claim of the presidential communications privilege, which is closely associated with the deliberative process privilege.[xix][152]
Puno asked: Let us now determine whether the deliberative process privilege will shield from disclosure the following JPEPA documents sought by petitioners: (1) the initial offers (of the
His stand: It is my considered view that the subject JPEPA documents do not come within the purview of the kind of information which the deliberative process privilege shields in order to promote frank and candid discussions and protect executive branch decision-making of the Philippine government. The initial offers are not in the nature of “advisory opinions recommendations and deliberations”[xx][155] similar to those submitted by the subordinate to the chief in a government agency, as in the seminal case of Kaiser. The initial offer of the
Likewise, the final text of the JPEPA prior to signing by the President is not in the nature of an advice or recommendation or deliberation by executive officials of the Philippine government, as it is the handiwork of the Philippine and the Japanese negotiating panels working together. The documents sought to be disclosed are not of the same nature as internal deliberations of the Department of Trade and Industry or the Philippine negotiating panel in crafting and deciding the initial offer of the
He added: But this is not all. In Senate v. Ermita, the Court also required that executive privilege must be invoked by the President, or the Executive Secretary “by order of the President,” unlike in
The waning of the exclusivity of executive power over negotiations of international trade agreements vis-à-vis Congressional power over foreign trade was accompanied by a developing openness to the public of international trade agreement negotiations in
Public participation in international trade negotiations affects trade negotiations in two distinct ways. First, it serves as a check on the power of elected and bureaucratic leaders by generating and limiting the issues that require government action. Second, it provides those in positions of power and influence with specific, detailed information upon which to base their decisions; for in the absence of public input, government officials risk making decisions based on incomplete information, thereby compromising public policy.[xxiii][185]
The public participates in trade negotiations in various ways. Individuals influence governmental action by electing the President and members of Congress, joining special interest groups that lobby influential members of the executive and the legislative branches, initiating litigation, serving on presidentially appointed advisory committees, testifying at international trade commission hearings, and protesting individually or as a group. But ultimately, the degree of public involvement in any area of government policy depends on the amount of available access.[xxiv][186]
The need to create meaningful public participation during negotiation and implementation applies to both multilateral agreements, such as the FTAA, and to bilateral agreements.[xxv][195] Public participation gives legitimacy to the process and result, and it strengthens the political will of populations who must support ratification and implementation once the text is finalized. The wide range of expertise available outside of governmental corridors would also be more fully accessible to officials if an organic and meaningful exchange of ideas is part of the process. While it is true that participation implies resource allocation and sometimes delay, these are investments in a democratic outcome and should not be seen as costs.[xxvi][196]
Secrecy has long played an integral but also controversial role in the negotiation of international agreements. It facilitates frank discussion, minimizes posturing and allows flexibility in negotiating positions. But it is also prone to abuse and is often assailed as undemocratic and facilitating abuse of power. In the public eye, excessive secrecy can weaken accountability and undermine the legitimacy of government action.[xxvii][197] Generally, it can also undermine the faith of the public in the need for secrecy[xxviii][198] for “secrecy can best be preserved only when credibility is truly maintained.”[xxix][199]
Of all the organic laws of our country, the 1987 Constitution holds most sacrosanct the people’s role in governance. As a first principle of government, the 1987 Constitution declares in Article II, Section 1, Declaration of Principles and State Policies, that the Philippines is not only a republican but also a democratic state. The word “democratic” was added to “republican” as a “pardonable redundancy” to highlight the importance of the people’s role in government.
In line with this desideratum, our fundamental law enshrined in rubric the indispensability of the people’s participation in government through recall,[xxx][204] initiative,[xxxi][205] and referendum.[xxxii][206] Similarly, it expressly provided for the people’s right to effective and reasonable participation in Article XIII, Section 16, on Social Justice and Human Rights, viz: “The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.”
To prevent the participation of the people in government from being a mere chimera, the 1987 Constitution also gave more muscle to their right to information, protected in the Bill of Rights, by strengthening it with the provision on transparency in government, and by underscoring the importance of communication. Thus, the 1987 Constitution provides in Article III, Section 7 of the Bill of Rights, viz “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”
Symmetrical to this right to information are the following provisions of the 1987 Constitution:
Article II, Section 28, Declaration of State Principles and Policies:
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (emphasis supplied)
Article XI, Section 21, National Economy and Patrimony:
Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. (emphasis supplied)
Going full circle, the 1987 Constitution provides for the vital role of information in nation-building in the opening Declaration of State Principles and Policies and in the General Provisions towards the end of the Constitution.
Article II, Section 24, provides, viz:
Sec. 24. The State recognizes the vital role of communication and information in nation-building. (emphasis supplied).
Article XVI, Section 10, General Provisions provides, viz:
Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. (emphasis supplied)
An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service (footnote omitted). It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.[xxxiii][214]
Under both the 1973 and the 1987 Constitutions, the right to information is self-executory. It is a public right that belongs to and can be invoked by the people. Consequently, every citizen has the “standing” to challenge any violation of the right and may seek its enforcement.[xxxiv][218] The self-executory status and the significance in a democracy of the right of access to information were emphasized by the Court in Gonzales v. Narvasa. [xxxv][219]
The question of access is first addressed to the government agency having custody of the information sought. Should the government agency deny access, it “has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee” because “(t)o hold otherwise will serve to dilute the constitutional right. As aptly observed, ‘…the government is in an advantageous position to marshal and interpret arguments against release…’ (87 Harvard Law Review 1511 [1974]).”[xxxvi][252] Furthermore, the Court ruled that “(t)o safeguard the constitutional right, every denial of access by the government agency concerned is subject to review by the courts.”[xxxvii][253]
There is no dispute that the subject JPEPA documents are matters of public concern that come within the purview of Article III, Section 7 of the Bill of Rights. The thorny issue is whether these documents, despite being of public concern, are exempt from being disclosed to petitioner private citizens on the ground that they are covered by executive privilege.[xxxviii][254]
Respondents contend that Executive Order 464 (E.O. 464), “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation under the Constitution, and for other Purposes,”[xxxix][257] provides basis for exemption of the subject JPEPA documents from the operation of the constitutional guarantee of access to information. They argue that while Senate v. Ermita struck down Sections 2(b) and 3 of E.O. 464 as unconstitutional, Section 2(a), which enumerates the scope of executive privilege including information prior to the conclusion of treaties, was spared from a declaration of constitutional infirmity.[xl][258] However, it is easily discernible from the title and provisions of E.O. 464 that this presidential issuance applies to executive privilege invoked against the legislature in the context of inquiries in aid of legislation, and not to executive privilege invoked against private citizens asserting their constitutional right to information.[xli][259] It thus cannot be used by respondents to discharge their burden of showing basis for exempting the subject JPEPA documents from disclosure to petitioners suing as private citizens.
As noted earlier, Almonte recognized a common law governmental privilege against disclosure, with respect to state secrets bearing on military and diplomatic matters.[xlii][260] This case involved an investigation by the Office of the Ombudsman that required the Economic Intelligence and Investigation Bureau (EIIB) to produce records pertaining to their personnel. As the Court found that no military or diplomatic secrets would be disclosed by the production of these records and there was no law making them classified, it held that disclosure of the records to the Office of the Ombudsman was warranted. In arriving at this conclusion, the Court noted that the case did not concern a demand by a citizen for information under the freedom of information guarantee of the Constitution, but involved the power of the Office of the Ombudsman to obtain evidence in connection with an investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. It is thus not difficult to see that the facts and issue of Almonte starkly differ from the case of petitioner private citizens who are enforcing their constitutional right to information. Given this distinction, I submit that Almonte cannot provide the backbone for exemption of the subject JPEPA documents from disclosure. The same holds true with respect to Senate v. Ermita in which the constitutionality of E.O. 464 was at issue, and the Court ruled, viz: E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern.[xliii][261]
In Chavez v. PCGG, the Court, citing the above-quoted exchanges of the Constitutional Commissioners regarding the constitutional right to information, recognized 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.” Be that as it may, in Chavez v. PCGG, the Court resolved the issue whether the government, through the Presidential Commission on Good Government (PCGG), could be compelled to disclose the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth. The Court did not have occasion to rule on the diplomatic secrets privilege vis-à-vis the constitutional right to information.
It was in PMPF v. Manglapus that the Court was confronted with a collision between a citizen’s constitutional right to information and executive secrecy in foreign affairs. As afore-discussed, the Court, in denying the petition in an unpublished Resolution, quoted at length Curtiss-Wright’s disquisition on the necessity of secrecy in foreign negotiations. Again, the relevant portion of that quote, which was cited by respondents, reads, viz:
In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As
xxx xxx xxx
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment -perhaps serious embarrassment- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty - a refusal the wisdom of which was recognized by the House itself and has never since been doubted.[xliv][262] (emphasis supplied)
Taking a hard look at the facts and circumstances of PMPF v. Manglapus, it cannot escape one’s eye that this case did not involve a question of separation of powers arising from a legislative inquiry, as in the case of the House of Representative’s demand on President Washington for papers relating to the Jay Treaty. In PMPF v. Manglapus, petitioners invoked their right to information under Article III, Section 7; and freedom of speech and the press under Article III, Section 4. They sought to compel the representatives of the President of the Philippines in the then ongoing negotiations of the RP-U.S. Military Bases Agreement to (1) open to petitioners the negotiations/sessions of respondents with their U.S. counterparts on the RP-U.S. Military Agreement; (2) reveal and/or give petitioners access to the items which they (respondents) had already agreed upon with their American counterparts relative to the review of the RP-U.S. Military Bases Agreement; and (3) reveal and/or make accessible to petitioners the respective positions of respondents and their U.S. counterparts on items they had not agreed upon, particularly the compensation package for the continued use by the U.S. of their military bases and facilities in the Philippines. The above quote from Curtiss-Wright, referring to a conflict between the executive and the legislative branches of government, was therefore different from the factual setting of PMPF v. Manglapus. The latter case which involved a collision between governmental power over the conduct of foreign affairs with its secrecy prerogative on the one hand, and the citizen’s right to information under the Constitution on the other.
The
Be that as it may, I submit that as both Chavez v.
It is my considered view that the diplomatic secrets privilege is a qualified privilege or qualified exemption from the coverage of the right to information. In Chavez v. PCGG, the Court cited the deliberations of the 1986 Constitutional Commission recognized that “inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest”.
The above deliberations show that negotiation of treaties and executive agreements may or may not come within the purview of “transactions” covered by the right to information, subject to reasonable safeguards to protect national interest.[xlv][265] In other words, the diplomatic secrets privilege over treaty negotiations may provide a ground for exemption, but may be overcome if there are reasonable safeguards to protect the national interest. It is thus not an absolute exemption or privilege, but a qualified one.
The Freedom of Information Act 2000 of the
It may be argued that the subject JPEPA documents consist of information similar to information covered by the above-cited qualified exemptions under the Freedom of Information Act 2000. The qualification of the above exemptions in the
While Puno agreed with the ponencia’s treatment of the diplomatic secrets privilege as a qualified privilege and its recognition of the need to formulate a weighing test, he stated that the Court cannot use the test laid down in U.S. v. Nixon,[xlviii][268] Senate Select Committee v. Nixon,[xlix][269] and In re Sealed Case (Espy)[l][270] that the Court should determine whether there is a “sufficient showing of need” for the disclosure of disputed documents. None of these three cases can provide the proper test. The requirement of “showing of need” applies when executive privilege is invoked against an evidentiary need for information, such as in the case of another government entity seeking information in order to perform its function; that is, the court in U.S. v. Nixon, the Senate in Senate Select Committee, and the grand jury in In re Sealed Case (Espy).
In the adjudication of rights guaranteed in the Constitution, however, the Court has never used “showing of need” as a test to uphold rights or allow inroads into them. Puno added that the Court ought not weigh the need to exercise the right to free speech or free assembly or free practice of religion. These are freedoms that have been won by all for the benefit of all, without the requisite. The question in the adjudication of constitutional rights is whether the incursion into a right is peripheral or essential, as when there is only a “soft restraint” on the potential extraditee’s right to procedural due process;[li][271] or whether there is a heavier public interest that must prevail over a constitutional right in order to preserve an ordered society, such as when there is a “clear and present danger” of a substantive evil that the State has a right to prevent as demonstrated in free speech cases,[lii][272] or when there is a “compelling state interest” that must override the free exercise of religion.[liii][273]
The right to information lies at the heart of a government that is not only republican but also democratic. For this reason, Article III, Section 7[liv][274] of the 1987 Constitution, calls for “an informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution.”[lv][275] Thus, employing the “balancing of interests” test, the public interest in upholding this constitutional right of the public to information must be carefully balanced with the public interest in nondisclosure of information in relation to treaty negotiations.
There is a world of difference between employing the “balancing of interests” test and the “showing of need” test adopted by the ponencia from U.S. v. Nixon, Senate Select Committee v. Nixon, and In re Sealed Case (Espy). In U.S. v. Nixon, the “showing of need” was necessary, as the information was being sought by a court as evidence in a criminal proceeding. In Senate Select Committee, the information was being sought by the Senate to resolve conflicting testimonies in an investigation conducted in the exercise of its oversight functions over the executive branch and in aid of legislation pertaining to executive wrongdoing. Finally, in In re Sealed Case (Espy), the information was being sought by the grand jury to investigate whether a government official had committed a crime.
In weighing the “showing of need” in all three cases, the courts considered the relevance of the evidence, the availability of other evidence, and the criticality of the information sought in the performance of the functions of the court, the Senate, and the grand jury, respectively. These considerations have no meaning in petitioners’ assertion of their right to information, for there is no proceeding in relation to which these considerations can be measured. It easily leaps to the eye that these considerations do not apply to adjudication on the constitutional right to information in relation to executive privilege, but the ponencia does not state what the “showing of need” consists of in the context of the public’s assertion of the right to information.
Insofar as the constitutional right of access is concerned, the writing on the wall indicates that it suffices that information is of public concern for it to be covered by the right, regardless of the public’s need for the information – whether to assess the performance of the JPEPA Philippine negotiating panel and express satisfaction or dissatisfaction, or to protest the inclusion of repulsive provisions in the JPEPA, or to keep public officials on their toes by making them aware that their actions are subject to public scrutiny – or regardless of the public’s lack of need for the information, if they simply want to know it because it interests them.[lvi][276]
The right to information is a constitutional right in and of itself and does not derive its significance only in relation to the exercise of another right, such as the right to free speech or a free press if that is the kind of “function” of an individual that can be equated with the functions of government agencies in the above cases cited by the ponencia. Stated another way, the right to information is an end in itself, even as it may be exercised in furtherance of other rights or purposes of an individual. To say that one exercises the right to information simply to be informed, and not because of a particular need, is not a meaningless tautology. Thus, instead of using “showing of need” as a passport to access purportedly privileged information, as in the case of government entities needing information to perform a constitutionally mandated duty, the yardstick with respect to individuals exercising a constitutionally granted right to information should be the importance of the right and the public interest in upholding it.
Applying the balancing of interests test to the case at bar leads to the ineluctable conclusion that the scale must be tilted in favor of the people’s right to information for, as shown earlier, the records are bereft of basis for finding a public interest to justify the withholding of the subject JPEPA documents after the negotiations have been concluded. Respondents have not shown a sufficient and specific public interest to defeat the recognized public interest in exercising the constitutional right to information to widen the role of the citizenry in governmental decision-making by giving them a better perspective of the vital issues confronting the nation,[lvii][277] and to check abuse in government.[lviii][278]
As aforestated, the negotiations are already concluded and the JPEPA has been submitted to the Senate for its concurrence. The treaty has thus entered the ultimate stage in which the people can exercise their right to participate in the discussion on whether the Senate should concur in its ratification or not. This right will be diluted, unless the people can have access to the subject JPEPA documents.
The ponencia cites PMPF v. Manglapus, Chavez v. PCGG and Chavez v. Public Estates Authority[lix][279] and Senate v. Ermita as authorities for holding that the subject JPEPA documents are traditionally privileged; and emphasizes that “(t)he privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances.”[lx][280] This approach espoused by the ponencia, however, deviates from the fundamental teaching of Senate v. Ermita that a claim of executive privilege may be held “valid or not depending on the ground invoked to justify it and the context in which it is made.”
In U.S. v. Nixon, the leading U.S. case on executive privilege, the U.S. Supreme Court was careful to delineate the applicability of the principles of the case in stating that “(w)e are not here concerned with the balance between the President’s generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President’s interest in preserving state secrets. We address only the conflict between the President’s assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.”[lxi][281]
That the application of the “showing of need” test to executive privilege cases involving branches of government and of the “balancing of interests” test to cases involving the constitutional right to information could yield different results is not an absurdity. The difference in results would not be any more absurd than it would be for an accused to be adjudged innocent in a criminal action but liable in a civil action arising from one and the same act he committed.[lxii][282] There is no absurdity when a distinction is made where there are real differences.
Among scholars and the public, not a few have registered strong reservations on the ratification of the JPEPA for its being studded with provisions that are detrimental to the Filipino interest.[lxiii][285] While the executive branch and other groups have expressed support for the JPEPA, these contested provisions, at the very least, merit public debate and access to the subject JPEPA documents, for they have far-reaching effects on the public’s interest and welfare.
Two highly contested JPEPA provisions are Articles 89 and 94. Advocates against the JPEPA contend that these provisions run afoul of the 1987 Constitution, primarily Article XII, on the National Economy and Patrimony. Article 89 of the JPEPA provides for National Treatment, viz:
Article 89
National Treatment
Each Party shall accord to investors of the other Party and to their investments treatment no less favorable than that it accords, in like circumstances, to its own investors and to their investments with respect to the establishment, acquisition, expansion, management, operation, maintenance, use, possession, liquidation, sale, or other disposition of investments.
In the opinion rendered by Justice Feliciano in response to the invitation to deliver a statement at a hearing of the Senate Joint Committee on Foreign Relations and the Committee on Trade and Commerce, he explained that the “national treatment” obligation requires the Philippines to “treat Japanese investors as if they were Philippine nationals, and to treat Japanese investments in the Philippines as if such investments were owned by Philippine nationals.”[lxiv][286] This provision raises serious constitutional questions and need untrammeled discussion by the public, as entry into certain sectors of economic activity in our country is restricted to natural persons who are Philippine citizens or to juridical persons that are at least sixty, seventy or one hundred percent owned by Philippine citizens. Among these constitutional provisions are Article XII, Section 2 on the utilization of lands and other natural resources of the
To be sure, Article 94 of the JPEPA provides for an option on the part of the
On trade and investment, former U.P. College of Law Dean Merlin Magallona, an international law expert, explained as resource person in the hearing of the Senate Joint Committee on Foreign Relations and the Committee on Trade and Commerce that, under Articles 96 and 98 of the JPEPA, the
Articles 96 and 98 of the JPEPA provide, viz:
Article 96
Protection from Strife
1. Each Party shall accord to investors of the other Party that have suffered loss or damage relating to their investments in the Area of the former Party due to armed conflict or state of emergency such as revolution, insurrection, civil disturbance or any other similar event in the Area of that former Party, treatment, as regards restitution, indemnification, compensation or any other settlement, that is no less favorable than the most favorable treatment which it accords to any investors.
2. Any payments made pursuant to paragraph 1 above shall be effectively realizable, freely convertible and freely transferable.
Article 98
Subrogation
1. If a Party or its designated agency makes a payment to any of its investors pursuant to an indemnity, guarantee or insurance contract, arising from or pertaining to an investment of that investor within the Area of the other Party, that other Party shall:
(a) recognize the assignment, to the former Party or its designated agency, of any right or claim of such investor that formed the basis of such payment; and
(b) recognize the right of the former Party or its designated agency to exercise by virtue of subrogation any such right or claim to the same extent as the original right or claim of the investor.
2. Articles 95, 96 and 97 shall apply mutatis mutandis as regards payment to be made to the Party or its designated agency first mentioned in paragraph 1 above by virtue of such assignment of right or claim, and the transfer of such payment.
Dean Magallona pointed out that under Articles 96 and 98 of the JPEPA, the Japanese government may execute with a Japanese investor in the
Environmental concerns have also been raised in relation to several provisions of the JPEPA, among which is Article 29 on Originating Goods, which provides, viz:
Article 29
Originating Goods
1. Except as otherwise provided for in this Chapter, a good shall qualify as an originating good of a Party where:
(a) the good is wholly obtained or produced entirely in the Party, as defined in paragraph 2 below;
(b) the good is produced entirely in the Party exclusively from originating materials of the Party; or
(c) the good satisfies the product specific rules set out in Annex 2, as well as all other applicable requirements of this Chapter, when the good is produced entirely in the Party using nonoriginating materials.
2. For the purposes of subparagraph 1(a) above, the following goods shall be considered as being wholly obtained or produced entirely in a Party:
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(i) articles collected in the Party which can no longer perform their original purpose in the Party nor are capable of being restored or repaired and which are fit only for disposal or for the recovery of parts or raw materials;
(j) scrap and waste derived from manufacturing or processing operations or from consumption in the Party and fit only for disposal or for the recovery of raw materials;
(k) parts or raw materials recovered in the Party from articles which can no longer perform their original purpose nor are capable of being restored or repaired; and
(l) goods obtained or produced in the Party exclusively from the goods referred to in subparagraphs (a) through (k) above.
Annex 1[lxxvi][298] of the JPEPA reduced the tariff rates for these goods to zero percent, below the minimum set forth in the current Philippine schedule, JPEPA opponents point out.[lxxvii][299] There are allegations from the public that the above provisions on trade of toxic and hazardous wastes were deleted in the working draft text of the JPEPA as of 21 April 2003, but these provisions found their way back into the final text signed by President Macapagal-Arroyo. If true, it would be in the public’s interest to know why said provisions were put back, as they affect the public welfare; and how it is in the Philippine interest to include them in the JPEPA.[lxxviii][300]
Various concerned sectors have also expressed their objection to some provisions of the JPEPA. A substantial number of fishermen harp on the inadequacy of protection given to their sector and the violation of the Philippine Constitution with respect to deep-sea fishing. In Annex 7, 2B (Schedule of the Philippines)[lxxix][301] of the JPEPA, the Philippine government made a reservation on national treatment by invoking Article 12 of the 1987 Constitution under the heading: “Sector: Fisheries, Sub-sector: Utilization of Marine Resource.”[lxxx][302] The measures invoked by the Philippine government are: 1) no foreign participation is allowed for small-scale utilization of marine resources in archipelagic waters, territorial sea and Exclusive Economic Zones; 2) for deep-sea fishing corporations, associations or partnerships having a maximum 40 percent foreign equity can enter into co-production, joint venture or production-sharing agreement with the Philippine government.[lxxxi][303] Concerned sectors contend, however, that the second measure violates Article XII, Section 2 of the Philippine Constitution which mandates, without qualification, the protection of the nation’s marine wealth in Philippine archipelagic waters, territorial sea and EEZ; and reserves “its use and enjoyment exclusively to Filipino citizens.”[lxxxii][304]
The food sector also complains about the insufficiency of protection from export subsidies under Article 20 of the JPEPA, which, according to it, makes it possible for
Article 20
Export Duties
Each Party shall exert its best efforts to eliminate its duties on goods exported from the Party to the other Party. (emphasis supplied)
This sector raises the objection that while the JPEPA only requires “best efforts,” both the Japan-Indonesia Economic Partnership Agreement (JIEPA) and the Japan-Malaysia Economic Partnership Agreement (JMEPA) disallow the introduction or the maintenance of agriculture export subsidies.[lxxxiv][306]
Without adjudging the merits of objections to the above provisions of the JPEPA, the fact that these concerns are raised and that these provisions will impact on the lives of our people stress the need for an informed debate by the public on the JPEPA. Rooted in the unique Philippine experience, the 1987 Constitution strengthened participatory democracy not only in our political realm but also in the economic arena. Uninformed participation in the governance of the country impairs the right of our people to govern their lives while informed debate serves as the fountainhead from which truth and the best interest of the country will spring.
By upholding the constitutional right to information over the invocation of executive privilege in the instant case, it is my considered view that the subject JPEPA documents should be disclosed considering the particular circumstances of the case at bar. In arriving at this conclusion, a balancing of interests test has to be employed which will allow the executive to show the public interest it seeks to protect in invoking executive privilege. The test serves as a safeguard against disclosure of information that should properly be kept secret. There is thus no foundation for the fears expressed in the Separate Opinion of Justice Tinga, viz: “(The ruling) would establish a general rule that diplomatic negotiations of treaties and other international agreements…belong to the public record since it is encompassed within the constitutional right to information…if indeed the Philippines would become unique among the governments of the world in establishing that these correspondences related to treaty negotiations are part of the public record, I fear that such doctrine would impair the ability of the Philippines to negotiate treaties or agreements with foreign countries.” As afore-discussed, allowing public access to trade agreement negotiations and draft texts, in various degrees and ways, has gained momentum in the landscape of
Contrary to the Separate Opinion of Justice Tinga, the Executive as the custodian of records of negotiations of treaties and other international agreements has the discretion to classify information as confidential in accordance with applicable laws, and not let it become part of the public record of a government in the sunshine. But when the executive is haled to court to enforce a constitutional right to this information, it is the court’s task in each particular case to balance the executive’s need for secrecy in treaty negotiations with the constitutional right to information, and decide whether that particular information should be disclosed or kept confidential.[lxxxv][307] Finally, the discussion in the Separate Opinion of Justice Tinga on the application of Article 32, Supplementary Means of Interpretation, of the Vienna Convention on the Law of Treaties[lxxxvi][308] and the question of whether the subject JPEPA documents constitute “preparatory work” under this provision are premature, as the Philippine Senate has not concurred in the ratification of the JPEPA; hence, it has not entered into force. I submit that the question is not relevant to the resolution of the case at bar, as we are not here engaged in an interpretation of the JPEPA.
In sum, transparency and opacity are not either-or propositions in the conduct of international trade agreement negotiations. The degree of confidentiality necessary in a particular negotiation is a point in a continuum where complete disclosure and absolute secrecy are on opposite ends.[lxxxvii][309] In assigning this fulcrum point, it is my humble view that the Court should balance the need for secrecy of the Executive and the demand for information by the legislature or the public. The balancing act in every case safeguards against disclosure of information prejudicial to the public interest and upholds the fundamental principle enunciated in Senate v. Ermita[lxxxviii][310] -- that a claim of executive privilege “may be valid or not depending on the ground invoked to justify it and the context in which it is made.”[lxxxix][311]
[i][117] G.R. No. 95367,
[ii][118] Id., citing 10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. 3-4 and 7, pp. 427-29, 434.
[iii][119] G.R. No. 130716,
[iv][120] 5 Records of the C
[v][126]
[vi][127] In Reynolds, the Secretary of the Air Force filed a formal “Claim of Privilege” and objected to the production of the document “for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.” The Judge Advocate General of the U.S. Air Force also filed an affidavit, which claimed that the demanded material could not be furnished “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” On the record before the trial court, it appeared that the accident that gave rise to the case occurred to a military plane that had gone aloft to test secret electronic equipment. The
[vii][128] 345 U.S. 1, 8 (1953).
[viii][132] In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 737, citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd, 384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35 L.Ed.2d 119 (1973).
[x][140] Kennedy, supra note 135 at 1769; see also Iraola, R. “Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions,” Iowa Law Review, vol. 87, no. 5, August 2002, pp. 1559 and 1578, citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995), aff’d, 76 F.3d 1232 (D.C. Cir. 1996).
[xv][145] In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 736, citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).
[xvi][146]
[xviii][151] G.R. No. 180643,
[xix][152] With respect to deliberative process privilege, only pre-decisional and deliberative materials are covered; hence, the agency must first show that the agency material sought is pre-decisional and deliberative for a qualified privilege to attach. With respect to presidential communications privilege, the presidential communications must be made in the performance of the President’s responsibilities of his office and in the process of shaping policies and making decisions. Once this requisite is satisfied, a qualified privilege attaches to the presidential communication.
[xx][155] In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 737, citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd,384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35 L.Ed.2d 119 (1973).
[xxi][156] This conclusion is in line with the ruling of the U.S. District Court of the District of Columbia in Center for International Environmental Law (CIEL) v. Office of the United States Trade Representative (237 F. Supp. 2d 17) which the ponencia discusses. However, CIEL was litigated under the Freedom of Information Act (FOIA) in the
In CIEL, nonprofit groups monitoring international trade and environmental issues brought a Freedom of Information Act (FOIA) suit against the Office of the United States Trade Representative, seeking information related to the negotiation of the U.S.-Chile Free Trade Agreement. Under the FOIA, deliberative and pre-decisional communications between and within agencies of the
The District Court explained its ruling, viz:
For purposes of the inter-agency requirement, the Supreme Court has noted that the term “‘agency’ means ‘each authority of the Government of the United States,’ § 551(1), and ‘includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government ..., or any independent regulatory agency,’ § 522(f).” Klamath Water Users, 532 U.S. at 9, 121 S.Ct. 1060. In general, this definition establishes that communications between agencies and outside parties are not protected under Exemption 5 (deliberative process privilege)… See, e.g., Brownstein Zeidman & Schomer v. Dep't of the Air Force, 781 F.Supp. 31, 35 (D.D.C.1991) (“While FOIA exemption 5 does protect intra-governmental deliberations, it does not cover negotiations between the government and outside parties.”); see also Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d at 257-58 (policy objectives of Exemption 5 not applicable to negotiations between agency and outside party).
… Chilean officials are not “enough like the agency’s own personnel to justify calling their communications ‘intra-agency.’ ” Klamath Water Users, 532 U.S. at 12, 121 S.Ct. 1060. Nor did the documents that Chile submitted to USTR play “essentially the same part in [the] agency's process of deliberation as documents prepared by agency personnel might have done.” …It may be true, as defendants assert, that Chilean proposals and responses are essential to USTR’s development of its own negotiating positions, but the role played by such documents is unmistakably different from the role of internally created documents; Chile shares its positions not in order to advise or educate USTR but in order to promote its own interests. See Def. Mem. at 22 (acknowledging that “
xxx xxx xxx
The decision in Ryan v. Dep’t of Justice, 617 F.2d 781, also is distinguishable. In Ryan, the court of appeals held that communications produced by Senators in response to an agency questionnaire regarding nominating procedures for judicial candidates fell within the narrow ambit of Exemption 5 (deliberative process privilege). The court characterized the Senators as “temporary consultants” who were “solicited to give advice only for specific projects.” … In the instant case, by contrast, the Chilean officials were not solicited for advice but rather negotiated with and treated as adversaries openly seeking to advance their own interests… (237 F. Supp. 2d 17, 28). (emphasis supplied)
The District Court of the
In that case (Fulbright & Jaworski), one of very few to consider Exemption 5 (deliberative process privilege) in the context of foreign relations, individual notes taken by a United States negotiator during treaty discussions with France were protected from release under Exemption 5. The court held that “releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty” and consequently would risk great harm to the negotiations process… Despite the superficial similarity of context - the “give-and-take” of treaty negotiations - the difference is that the negotiator’s notes at issue in Fulbright & Jaworski were clearly internal. The question of disclosure turned not on the inter-agency requirement of Exemption 5 but on whether or not the documents were part of the agency’s pre-decisional deliberative process… Judge Green’s discussion of the harm that could result from disclosure therefore is irrelevant, since the documents at issue here are not inter-agency, and the Court does not reach the question of deliberative process. (237 F. Supp. 2d 17, 29) (emphasis supplied)
[xxii][157]
[xxiii][185] Supra note 183 at 116.
[xxiv][186]
[xxv][195]
[xxvi][196]
[xxvii][197] Katt, Jr., W., “The New Paper Chase: Public Access to Trade Agreement Negotiating Documents,” 106
[xxviii][198] Id. at 697, citing Robert P. Deyling, Judicial Deference and De Novo Review in Litigation over National Security Information under the Freedom of Information Act, 37 Vill. L. Rev. 67, 93 (1992).
[xxix][199] N.Y. Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring)
[xxx][204] 1987 Phil. Const. Art. X, §3.
[xxxi][205] 1987 Phil. Const., Art. VI, §32; Art. X, §3.
[xxxii][206] 1987 Phil. Const., Art. VI, §32; Art. X, §3.
[xxxiii][214]
[xxxiv][218]
[xxxv][219] G.R. No. 140835,
[xxxvi][252]
[xxxvii][253] G.R. No. L-72119,
[xxxviii][254] See Legaspi v. Civil Service Commission, G.R. No. L-72119,
[xxxix][257] Issued by President Gloria Macapagal-Arroyo on
Section 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.
Section 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the
Philippine National Police (
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
Section 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.
[xl][258] Comment, pp. 18-20.
[xli][259] The Court ruled in Senate v. Ermita, viz:
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern.
[xlii][260] G.R. No. 95367,
[xliii][261] G.R. No. 169777,
[xliv][262] PMPF v. Manglapus, G.R. No. 84642,
[xlv][265] With respect to the disclosure of the subject JPEPA documents to the House Special Committee on Globalization conducting an inquiry in aid of legislation, the “reasonable safeguard(s) for the sake of national interest” is that the said documents are released only after employing a “balancing of interests test” as will subsequently be shown.
[xlvi][266] Freedom of Information Act 2000, §27(1)(a).
[xlvii][267]
[xlviii][268] 418
[xlix][269] 498 F.2d 725, 162
[l][270] 121 F.3d 729, 326 App. D.C. 276.
[li][271] Secretary of Justice v. Lantion, G.R. No. 139465,
[lii][272] Cabansag v. Fernandez, 102 Phil. 152; Gonzales v. COMELEC, 137 Phil. 489 (1969); Bradenburg v.
[liii][273] Estrada v. Escitor, A.M. No. P-02-1651,
[liv][274] 1987 Phil. Const. Art. III, §7 provides, viz:
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
[lv][275] Valmonte, supra at 264.
[lvi][276] Similarly, as afore-discussed, the statutes on the right of access to information of the
[lvii][277] Legaspi v. Civil Service Commission, G.R. No. L-72119,
[lviii][278] G.R. No. 74930,
[lix][279] 433 Phil. 506 (2002).
[lx][280] Ponencia.
[lxi][281] 418
[lxii][282] Similarly, the application of the U.S. Freedom of Information Act (FOIA) can yield different results between a request for information by the public and by the legislature. The FOIA requires executive agencies to make documents available to the public, but sets forth nine exemptions from the Act, including matters that are specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such executive order… These exemptions justify denial to the public of information from executive agencies, but they do not apply to Congress. FOIA specifically provides that these exemptions do not constitute authority to withhold information from Congress.
[lxiii][285] See Salazar, M., “JPEPA Concerns,” Manila Bulletin, 2 June 2008; Aning, J., “
[lxiv][286] Memorandum of Justice Florentino P. Feliciano on the Constitutional Law Aspects of the Japan-Philippines Economic Partnership Agreement (JPEPA), Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 7.
[lxv][287] 1987 Phil. Const. Art. XII, §2 provides, viz:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.
[lxvi][288] 1987 Phil. Const. Art. XII, §11 provides, viz:
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the
[lxvii][289] 1987 Phil. Const. Art. XII, §14 provides in relevant part, viz:
… The practice of all professions in the
[lxviii][290] 1987 Phil. Const. Art. XIV, §4(2) provides, viz:
Section 4…. (2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the
The control and administration of educational institutions shall be vested in citizens of the
No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.
[lxix][291] Supra note 286 at 7-8.
[lxx][292]
[lxxi][293] 1987 Phil. Const. Art. XVI, §11 (1) provides, viz:
Section 11. (1) The ownership and management of mass media shall be limited to citizens of the
[lxxii][294] 1987 Phil. Const. Art. XVI, §11 (1) provides, viz:
Sec. 11. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.
Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.
The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the
[lxxiii][295] Supra note 286 at 8-9.
[lxxiv][296] Dean Merlin Magallona,
[lxxvi][298] Some of these goods provided in Annex 1 of the JPEPA are the following:
Heading No. Description
2620.60 00 Ash and residues (other than from the manufacture of iron or steel) containing arsenic, mercury, thallium or their mixtures, of a kind used for the extraction of arsenic or those metals or for the manufacture of their chemical compounds
2621.1000 Ash and residues from the incineration of municipal waste
3006.80 Waste pharmaceuticals
3825.5000 Wastes of metal pickling liquors, hydraulic fluids, brake fluids and anti-freeze fluids
[lxxvii][299] Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 4 October 2007, p. 3.
[lxxviii][300] Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 4 October 2007, citing provisions of the working draft text of the JPEPA as of 21 April 2003 (accessed through the Philippine Institute for Development Studies, the government research institution tasked to study the JPEPA) and Article 29 of the JPEPA signed by President Gloria Macapagal-Arroyo.
[lxxix][301] Annex 7, 2B of the JPEPA provides, viz:
2B: Schedule of the
1. Sector: Fisheries
Sub-Sector: Utilization of Marine Resource
Industry Classification:
Type of National Treatment (Article 89)
Reservation:
Measures: The Constitution of the Republic of the
Description: 1. No foreign participation is allowed for small-scale utilization of marine resources in archipelagic waters, territorial sea and exclusive economic zones.
2. For deep-sea fishing, corporations, associations or partnerships with maximum 40 percent foreign equity can enter into coproduction, joint venture or production sharing agreement with the Philippine Government. (emphasis supplied)
[lxxx][302] Position Paper of Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya), Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 4.
[lxxxi][303]
[lxxxii][304] Position Paper of Magkaisa Junk JPEPA Coalition, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 14 September 2007, p. 14.
1987 Phil. Const. Art. XII, §2 provides in relevant part, viz:
The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
[lxxxiii][305] Position Paper of Task Force Food Sovereignty and the Magkaisa Junk JPEPA Coalition, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 4.
[lxxxiv][306]
[lxxxv][307] This approach is similar to the observation in the Separate Opinion of Justice Tinga that it can be deduced from an 18 July 1997 decision of the International Criminal Tribunal for the former Yugoslavia that the “invocation of states secrets cannot be taken at face value but must be assessed by the courts.”
[lxxxvi][308] The Vienna Convention on the Law of Treaties provides in Article 32, viz:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 (General rule of interpretation), or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
[lxxxvii][309] Katt, Jr., W., “The New Paper Chase: Public Access to Trade Agreement Negotiating Documents,” 106
[lxxxviii][310] G.R. No. 169777,
[lxxxix][311]
