AKBAYAN CITIZENS ACTION PARTY (“AKBAYAN”), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (“PKSK”), ALLIANCE OF PROGRESSIVE LABOR (“APL”), VICENTE A. FABE, ANGELITO R. MENDOZA…

Akbayan Citizens Action Party versus Aquino

The Case

This is a special civil action for mandamus and prohibition brought by Akbayan Citizens Action Party and other non-government organizations, together with several members of the House of Representatives, citizens, and taxpayers, against the Executive Secretary, the Undersecretary of Trade and Industry, and other public respondents. The petitioners sought to compel the disclosure of the full text of the Japan-Philippines Economic Partnership Agreement, including the Philippine and Japanese offers exchanged during the negotiations, together with all pertinent attachments and annexes. The case matters because it is the Supreme Court's fullest statement on the diplomatic negotiations privilege as a recognized exception to the constitutional right to information on matters of public concern, and it teaches when that privilege is merely presumptive and when it must yield.

Procedural History

This case reached the Supreme Court as an original petition for mandamus and prohibition, filed on December 9, 2005, amid speculations that the agreement might be signed within that month. There were no prior rulings by a trial court or by the Court of Appeals. The petitioners went directly to the Supreme Court, invoking the Court's original jurisdiction over petitions for mandamus and prohibition, and anchoring their claim on the constitutional right to information on matters of public concern. The Court resolved the procedural questions of standing and mootness before reaching the substantive grounds, and it ultimately ruled on the merits of the claim of privilege.

Facts

Congressmen Lorenzo Tañada the Third and Mario Joyo Aguja filed House Resolution Number 551 on January 25, 2005, calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the Japan-Philippines Economic Partnership Agreement. That resolution became the basis of an inquiry conducted by the House Special Committee on Globalization into the negotiations. In the course of its inquiry, the House Committee requested Undersecretary Tomas Aquino, Chairman of the Philippine Coordinating Committee created under Executive Order Number 213, to furnish it with a copy of the latest draft of the agreement. He did not heed the request. Congressman Aguja later made the same request, and by letter of November 2, 2005, Undersecretary Aquino replied that a copy would be provided once the negotiations were completed and a thorough legal review had been conducted.

In a separate move, the House Committee, through Congressman Herminio Teves, requested Executive Secretary Eduardo Ermita to furnish all documents on the subject, including the latest draft and the requests and offers. By letter of June 23, 2005, Secretary Ermita wrote that the Department of Foreign Affairs had explained that the request might be difficult to accomplish at that time, since the proposed agreement had been a work in progress for about three years, but that a copy of the draft would be forwarded as soon as the text was settled and complete. Congressman Aguja also wrote to the Director-General of the National Economic and Development Authority and to the Chairman of the Tariff Commission. The Tariff Commission replied that it did not have a copy, while the National Economic and Development Authority informed him that his request had been forwarded to Undersecretary Aquino, who would be in the best position to respond.

At its third hearing on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft, but the subpoena was not pursued because the Speaker of the House had requested that its issuance be held in abeyance until the President gave her consent to the disclosure. The petition was then filed on December 9, 2005. The agreement was later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, after which the President endorsed it to the Senate for concurrence. The final text was made accessible to the public beginning September 11, 2006, but the respondents did not dispute that, while the agreement was still being negotiated, the initial drafts were kept from public view.

Issues

• Whether or not the petitioners have standing to file a petition anchored on the right of the people to information on matters of public concern.
• Whether or not the petition has been rendered moot and academic by the public disclosure of the text of the agreement.
• Whether or not the Philippine and Japanese offers submitted during the negotiations are matters of public concern covered by the right to information.
• Whether or not the respondents' claim of executive privilege over the diplomatic negotiations is valid.
• Whether or not the privilege for diplomatic negotiations applies even though the agreement concerns trade and commerce rather than national security.

Applicable Provisions

Article 164 of the Japan-Philippines Economic Partnership Agreement provides:

This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 165.

This provision bears on the case because it shows that the agreement does not take effect immediately upon signing, so that the agreement as it then stood could not yet be considered final and binding between the two States.

Ruling

On standing, the Court held that in a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, the petitioners need not show any legal or special interest in the result. It is sufficient to show that they are citizens and therefore part of the general public which possesses the right. Since the petitioners were all suing in their capacity as citizens and groups of citizens, including members of the House of Representatives who additionally sued in that capacity, their standing was grounded in jurisprudence.

On mootness, the Court held that the public disclosure of the text of the agreement after its signing had largely rendered the petition moot and academic, to the extent that it sought disclosure of the full text. The Court noted that with Senate deliberations still pending, the agreement could not yet be considered final and binding, because Article 164 provides that it does not take effect immediately upon signing. The petition was not entirely moot, however, because the petitioners also sought the Philippine and Japanese offers exchanged during the negotiations.

On whether the offers are matters of public concern, the Court held that from the nature of the agreement as an international trade agreement, the offers submitted during the negotiations are matters of public concern, and the respondents did not dispute this. They claimed only that diplomatic negotiations are covered by the doctrine of executive privilege.

On the claim of privilege, the Court held that the ground relied upon was not simply that the information involved a diplomatic matter, but that it pertained to diplomatic negotiations then in progress. The privileged character of diplomatic negotiations has been recognized in this jurisdiction. The Court quoted its earlier ruling 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, and it adopted the doctrine that the President is the sole organ of the nation in its negotiations with foreign countries. Applying these principles, the Court held that while the final text of the agreement may not be kept perpetually confidential, since there should be ample opportunity for discussion before a treaty is approved, the offers exchanged during the negotiations continue to be privileged even after the agreement is published. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. The Court emphasized, however, that the privilege is only presumptive, and that 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 disclosure strong enough to overcome the traditionally privileged status.

On whether the privilege requires a national security interest, the Court rejected the petitioners' assumption that information must involve national security to be privileged. Executive privilege has encompassed claims of varying kinds, such that it may be more accurate to speak of executive privileges. The diplomatic negotiations privilege bears a close resemblance to the deliberative process privilege and the presidential communications privilege, and its rationale is similar if not identical: to encourage a frank exchange of exploratory ideas by shielding negotiations from public view and to protect the independence of decision-making of the President as the sole organ of the nation in its external relations.

Doctrine

The right to information on matters of public concern is a public right, and a petitioner suing under it need not show a legal or special interest, it being sufficient to show that he or she is a citizen and part of the general public. The right is not absolute, however, and diplomatic negotiations are recognized as privileged in this jurisdiction. The privilege for diplomatic negotiations is presumptive only, not absolute, and it may be overcome by a showing of a public interest in disclosure strong enough to outweigh the traditionally privileged status of the information. The privilege does not depend on the information involving national security; it arises because the information is part of a process of deliberation, in the same way that the deliberative process privilege and the presidential communications privilege are recognized.

Disposition

The petition was dismissed, with the Court denying the prayer for the disclosure of the Philippine and Japanese offers exchanged during the negotiations, while recognizing that the text of the agreement itself had already been made public.

Remember This

Memorize this line: the privilege for diplomatic negotiations is presumptive, not absolute, and it survives even after the treaty is published, because the offers exchanged during negotiations remain privileged. Examiners like to use this case to test the exceptions to the right to information, the standing of citizens suing on a public right, and the distinction between the diplomatic negotiations privilege and the presidential communications and deliberative process privileges.