Republic of the Philippines Policy Board Technical Support Office, the

SUPREME COURT government agency that is leading the negotiations

Manila on Government Procurement of the JPEPA,
RICARDO V. PARAS, in his capacity as Chief State
EN BANC Counsel of the Department of Justice (DOJ) and lead
negotiator for Dispute Avoidance and Settlement of
the JPEPA, ADONIS SULIT, in his capacity as lead
G.R. No. 170516               July 16, 2008 negotiator for the General and Final Provisions of
the JPEPA, EDUARDO R. ERMITA, in his capacity as
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), Executive Secretary, and ALBERTO ROMULO, in his
PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA capacity as Secretary of the DFA,* Respondents.
KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE
LABOR ("APL"), VICENTE A. FABE, ANGELITO R. DECISION
MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX
CRUZ-ANGELES, CONG. LORENZO R. TANADA III,
CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. CARPIO MORALES, J.:
ROSALES, CONG. ANA THERESIA HONTIVEROS-
BARAQUEL, AND CONG. EMMANUEL JOEL J. Petitioners – non-government organizations,
VILLANUEVA, Petitioners, Congresspersons, citizens and taxpayers – seek via the
vs. present petition for mandamus and prohibition to
THOMAS G. AQUINO, in his capacity as obtain from respondents the full text of the Japan-
Undersecretary of the Department of Trade and Philippines Economic Partnership Agreement (JPEPA)
Industry (DTI) and Chairman and Chief Delegate of including the Philippine and Japanese offers submitted
the Philippine Coordinating Committee (PCC) for during the negotiation process and all pertinent
the Japan-Philippines Economic Partnership attachments and annexes thereto.
Agreement, EDSEL T. CUSTODIO, in his capacity as
Undersecretary of the Department of Foreign Petitioners Congressmen Lorenzo R. Tañ ada III and
Affairs (DFA) and Co-Chair of the PCC for the JPEPA, Mario Joyo Aguja filed on January 25, 2005 House
EDGARDO ABON, in his capacity as Chairman of the Resolution No. 551 calling for an inquiry into the
Tariff Commission and lead negotiator for bilateral trade agreements then being negotiated by the
Competition Policy and Emergency Measures of the Philippine government, particularly the JPEPA. The
JPEPA, MARGARITA SONGCO, in her capacity as Resolution became the basis of an inquiry subsequently
Assistant Director-General of the National Economic conducted by the House Special Committee on
Development Authority (NEDA) and lead negotiator Globalization (the House Committee) into the
for Trade in Services and Cooperation of the JPEPA, negotiations of the JPEPA.
MALOU MONTERO, in her capacity as Foreign
Service Officer I, Office of the Undersecretary for
International Economic Relations of the DFA and In the course of its inquiry, the House Committee
lead negotiator for the General and Final Provisions requested herein respondent Undersecretary Tomas
of the JPEPA, ERLINDA ARCELLANA, in her capacity Aquino (Usec. Aquino), Chairman of the Philippine
as Director of the Board of Investments and lead Coordinating Committee created under Executive Order
negotiator for Trade in Goods (General Rules) of the No. 213 ("Creation of A Philippine Coordinating
JPEPA, RAQUEL ECHAGUE, in her capacity as lead Committee to Study the Feasibility of the Japan-
negotiator for Rules of Origin of the JPEPA, Philippines Economic Partnership Agreement") 1 to
GALLANT SORIANO, in his official capacity as Deputy study and negotiate the proposed JPEPA, and to furnish
Commissioner of the Bureau of Customs and lead the Committee with a copy of the latest draft of the
negotiator for Customs Procedures and Paperless JPEPA. Usec. Aquino did not heed the request, however.
Trading of the JPEPA, MA. LUISA GIGETTE
IMPERIAL, in her capacity as Director of the Bureau Congressman Aguja later requested for the same
of Local Employment of the Department of Labor document, but Usec. Aquino, by letter of November 2,
and Employment (DOLE) and lead negotiator for 2005, replied that the Congressman shall be provided
Movement of Natural Persons of the JPEPA, with a copy thereof "once the negotiations are
PASCUAL DE GUZMAN, in his capacity as Director of completed and as soon as a thorough legal review of the
the Board of Investments and lead negotiator for proposed agreement has been conducted."
Investment of the JPEPA, JESUS MOTOOMULL, in his
capacity as Director for the Bureau of Product In a separate move, the House Committee, through
Standards of the DTI and lead negotiator for Mutual Congressman Herminio G. Teves, requested Executive
Recognition of the JPEPA, LOUIE CALVARIO, in his Secretary Eduardo Ermita to furnish it with "all
capacity as lead negotiator for Intellectual Property documents on the subject including the latest draft of
of the JPEPA, ELMER H. DORADO, in his capacity as the proposed agreement, the requests and offers
Officer-in-Charge of the Government Procurement
etc."2 Acting on the request, Secretary Ermita, by letter improvement of the business environment, and general
of June 23, 2005, wrote Congressman Teves as follows: and final provisions.5

In its letter dated 15 June 2005 (copy enclosed), [the] While the final text of the JPEPA has now been made
D[epartment of] F[oreign] A[ffairs] explains that the accessible to the public since September 11,
Committee’s request to be furnished all documents 2006,6 respondents do not dispute that, at the time the
on the JPEPA may be difficult to accomplish at this petition was filed up to the filing of petitioners’ Reply –
time, since the proposed Agreement has been a when the JPEPA was still being negotiated – the initial
work in progress for about three years. A copy of the drafts thereof were kept from public view.
draft JPEPA will however be forwarded to the
Committee as soon as the text thereof is settled and Before delving on the substantive grounds relied upon
complete. (Emphasis supplied) by petitioners in support of the petition, the Court finds
it necessary to first resolve some material procedural
Congressman Aguja also requested NEDA Director- issues.
General Romulo Neri and Tariff Commission Chairman
Edgardo Abon, by letter of July 1, 2005, for copies of the Standing
latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12,
2005 that the Tariff Commission does not have a copy of For a petition for mandamus such as the one at bar to be
the documents being requested, albeit he was certain given due course, it must be instituted by a party
that Usec. Aquino would provide the Congressman with aggrieved by the alleged inaction of any tribunal,
a copy "once the negotiation is completed." And by corporation, board or person which unlawfully excludes
letter of July 18, 2005, NEDA Assistant Director-General said party from the enjoyment of a legal
Margarita R. Songco informed the Congressman that his right.7 Respondents deny that petitioners have such
request addressed to Director-General Neri had been standing to sue. "[I]n the interest of a speedy and
forwarded to Usec. Aquino who would be "in the best definitive resolution of the substantive issues raised,"
position to respond" to the request. however, respondents consider it sufficient to cite a
portion of the ruling in Pimentel v. Office of Executive
Secretary8 which emphasizes the need for a "personal
In its third hearing conducted on August 31, 2005, the stake in the outcome of the controversy" on questions
House Committee resolved to issue a subpoena for the of standing.
most recent draft of the JPEPA, but the same was not
pursued because by Committee Chairman Congressman
Teves’ information, then House Speaker Jose de Venecia In a petition anchored upon the right of the people to
had requested him to hold in abeyance the issuance of information on matters of public concern, which is a
the subpoena until the President gives her consent to public right by its very nature, petitioners need not
the disclosure of the documents.3 show that they have any legal or special interest in the
result, it being sufficient to show that they are citizens
and, therefore, part of the general public which
Amid speculations that the JPEPA might be signed by possesses the right.9 As the present petition is anchored
the Philippine government within December 2005, the on the right to information and petitioners are all suing
present petition was filed on December 9, 2005. 4 The in their capacity as citizens and groups of citizens
agreement was to be later signed on September 9, 2006 including petitioners-members of the House of
by President Gloria Macapagal-Arroyo and Japanese Representatives who additionally are suing in their
Prime Minister Junichiro Koizumi in Helsinki, Finland, capacity as such, the standing of petitioners to file the
following which the President endorsed it to the Senate present suit is grounded in jurisprudence.
for its concurrence pursuant to Article VII, Section 21 of
the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate. Mootness

The JPEPA, which will be the first bilateral free trade Considering, however, that "[t]he principal relief
agreement to be entered into by the Philippines with petitioners are praying for is the disclosure of the
another country in the event the Senate grants its contents of the JPEPA prior to its finalization between
consent to it, covers a broad range of topics which the two States parties,"10 public disclosure of the text of
respondents enumerate as follows: trade in goods, rules the JPEPA after its signing by the President, during the
of origin, customs procedures, paperless trading, trade pendency of the present petition, has been largely
in services, investment, intellectual property rights, rendered moot and academic.
government procurement, movement of natural
persons, cooperation, competition policy, mutual With the Senate deliberations on the JPEPA still
recognition, dispute avoidance and settlement, pending, the agreement as it now stands cannot yet be
considered as final and binding between the two States.
Article 164 of the JPEPA itself provides that the for the last, the same as those cited for the disclosure of
agreement does not take effect immediately upon the the Philippine and Japanese offers.
signing thereof. For it must still go through the
procedures required by the laws of each country for its The first two grounds relied upon by petitioners which
entry into force, viz: bear on the merits of respondents’ claim of privilege
shall be discussed. The last, being purely speculatory
Article 164 given that the Senate is still deliberating on the JPEPA,
Entry into Force shall not.

This Agreement shall enter into force on the thirtieth The JPEPA is a matter of public concern
day after the date on which the Governments of the
Parties exchange diplomatic notes informing each To be covered by the right to information, the
other that their respective legal procedures information sought must meet the threshold
necessary for entry into force of this Agreement requirement that it be a matter of public concern.
have been completed. It shall remain in force unless Apropos is the teaching of Legaspi v. Civil Service
terminated as provided for in Article 165.11 (Emphasis Commission:
supplied)
In determining whether or not a particular information
President Arroyo’s endorsement of the JPEPA to the is of public concern there is no rigid test which can be
Senate for concurrence is part of the legal procedures applied. ‘Public concern’ like ‘public interest’ is a term
which must be met prior to the agreement’s entry into that eludes exact definition. Both terms embrace a
force. broad spectrum of subjects which the public may want
to know, either because these directly affect their lives,
The text of the JPEPA having then been made accessible or simply because such matters naturally arouse the
to the public, the petition has become moot and interest of an ordinary citizen. In the final analysis, it is
academic to the extent that it seeks the disclosure of the for the courts to determine on a case by case basis
"full text" thereof. whether the matter at issue is of interest or importance,
as it relates to or affects the public.16 (Underscoring
The petition is not entirely moot, however, because supplied)
petitioners seek to obtain, not merely the text of the
JPEPA, but also the Philippine and Japanese offers in the From the nature of the JPEPA as an international trade
course of the negotiations.12 agreement, it is evident that the Philippine and Japanese
offers submitted during the negotiations towards its
A discussion of the substantive issues, insofar as they execution are matters of public concern. This,
impinge on petitioners’ demand for access to the respondents do not dispute. They only claim that
Philippine and Japanese offers, is thus in order. 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
Grounds relied upon by petitioners disclosure.

Petitioners assert, first, that the refusal of the Respondents’ claim of privilege
government to disclose the documents bearing on the
JPEPA negotiations violates their right to information
on matters of public concern13 and contravenes other It is well-established in jurisprudence that neither the
constitutional provisions on transparency, such as that right to information nor the policy of full public
on the policy of full public disclosure of all transactions disclosure is absolute, there being matters which, albeit
involving public interest.14 Second, they contend that of public concern or public interest, are recognized as
non-disclosure of the same documents undermines privileged in nature. The types of information which
their right to effective and reasonable participation in may be considered privileged have been elucidated
all levels of social, political, and economic decision- in Almonte v. Vasquez,17 Chavez v. PCGG,18 Chavez v.
making.15 Lastly, they proffer that divulging the contents Public Estate’s Authority,19 and most recently in Senate
of the JPEPA only after the agreement has been v. Ermita20 where the Court reaffirmed the validity of
concluded will effectively make the Senate into a mere the doctrine of executive privilege in this jurisdiction
rubber stamp of the Executive, in violation of the and dwelt on its scope.
principle of separation of powers.
Whether a claim of executive privilege is valid depends
Significantly, the grounds relied upon by petitioners for on the ground invoked to justify it and the context in
the disclosure of the latest text of the JPEPA are, except which it is made.21 In the present case, the ground for
respondents’ claim of privilege is set forth in negotiations of the RP-US Military Bases
their Comment, viz: Agreement.25 The Court denied the petition, stressing
that "secrecy of negotiations with foreign countries
x x x The categories of information that may be is not violative of the constitutional provisions of
considered privileged includes matters of diplomatic freedom of speech or of the press nor of the freedom of
character and under negotiation and review. In this access to information." The Resolution went on to
case, the privileged character of the diplomatic state, thus:
negotiations has been categorically invoked and clearly
explained by respondents particularly respondent DTI The nature of diplomacy requires centralization of
Senior Undersecretary. authority and expedition of decision which are
inherent in executive action. Another essential
The documents on the proposed JPEPA as well as the characteristic of diplomacy is its confidential
text which is subject to negotiations and legal review by nature. Although much has been said about "open" and
the parties fall under the exceptions to the right of "secret" diplomacy, with disparagement of the latter,
access to information on matters of public concern and Secretaries of State Hughes and Stimson have clearly
policy of public disclosure. They come within the analyzed and justified the practice. In the words of Mr.
coverage of executive privilege. At the time when the Stimson:
Committee was requesting for copies of such
documents, the negotiations were ongoing as they are "A complicated negotiation . . . cannot be carried
still now and the text of the proposed JPEPA is still through without many, many private talks and
uncertain and subject to change. Considering the status discussion, man to man; many tentative suggestions
and nature of such documents then and now, these are and proposals. Delegates from other countries come
evidently covered by executive privilege consistent with and tell you in confidence of their troubles at home
existing legal provisions and settled jurisprudence. and of their differences with other countries and
with other delegates; they tell you of what they
Practical and strategic considerations likewise counsel would do under certain circumstances and would
against the disclosure of the "rolling texts" which may not do under other circumstances. . . If these
undergo radical change or portions of which may be reports . . . should become public . . . who would ever
totally abandoned. Furthermore, the negotiations of trust American Delegations in another
the representatives of the Philippines as well as of conference? (United States Department of State, Press
Japan must be allowed to explore alternatives in the Releases, June 7, 1930, pp. 282-284.)."
course of the negotiations in the same manner as
judicial deliberations and working drafts of xxxx
opinions are accorded strict
confidentiality.22 (Emphasis and underscoring There is frequent criticism of the secrecy in which
supplied) negotiation with foreign powers on nearly all
subjects is concerned. This, it is claimed, is
The ground relied upon by respondents is thus not incompatible with the substance of democracy. As
simply that the information sought involves a expressed by one writer, "It can be said that there is no
diplomatic matter, but that it pertains to diplomatic more rigid system of silence anywhere in the world."
negotiations then in progress. (E.J. Young, Looking Behind the Censorship, J. B.
Lippincott Co., 1938) President Wilson in starting his
Privileged character of diplomatic negotiations efforts for the conclusion of the World War declared
that we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
The privileged character of diplomatic negotiations has
been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court No one who has studied the question believes that such
in Chavez v. PCGG held that "information on inter- a method of publicity is possible. In the moment that
government exchanges prior to the conclusion of negotiations are started, pressure groups attempt
treaties and executive agreements may be subject to to "muscle in." An ill-timed speech by one of the
reasonable safeguards for the sake of national parties or a frank declaration of the concession
interest."23 Even earlier, the same privilege was upheld which are exacted or offered on both sides would
in People’s Movement for Press Freedom (PMPF) v. quickly lead to widespread propaganda to block the
Manglapus24 wherein the Court discussed the reasons negotiations. After a treaty has been drafted and its
for the privilege in more precise terms. terms are fully published, there is ample
opportunity for discussion before it is
approved. (The New American Government and Its
In PMPF v. Manglapus, the therein petitioners were Works, James T. Young, 4th Edition, p. 194) (Emphasis
seeking information from the President’s and underscoring supplied)
representatives on the state of the then on-going
Still in PMPF v. Manglapus, the Court adopted the entire West Bank, or Israeli leader who stated publicly a
doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the willingness to remove Israel's existing settlements from
President is the sole organ of the nation in its Judea and Samaria in return for peace.28 (Emphasis
negotiations with foreign countries, viz: supplied)

"x x x In this vast external realm, with its important, Indeed, by hampering the ability of our representatives
complicated, delicate and manifold problems, the to compromise, we may be jeopardizing higher national
President alone has the power to speak or listen as a goals for the sake of securing less critical ones.
representative of the nation. He makes treaties with the
advice and consent of the Senate; but he alone Diplomatic negotiations, therefore, are recognized as
negotiates. Into the field of negotiation the Senate privileged in this jurisdiction, the JPEPA negotiations
cannot intrude; and Congress itself is powerless to constituting no exception. It bears emphasis, however,
invade it. As Marshall said in his great argument of that such privilege is only presumptive. For as Senate
March 7, 1800, in the House of Representatives, "The v. Ermita  holds, recognizing a type of information as
President is the sole organ of the nation in its privileged does not mean that it will be considered
external relations, and its sole representative with privileged in all instances. Only after a consideration of
foreign nations." Annals, 6th Cong., col. 613. . . the context in which the claim is made may it be
(Emphasis supplied; underscoring in the original) determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to
Applying the principles adopted in PMPF v. Manglapus, overcome its traditionally privileged status.
it is clear that while the final text of the JPEPA may not
be kept perpetually confidential – since there should be Whether petitioners have established the presence of
"ample opportunity for discussion before [a treaty] is such a public interest shall be discussed later. For now,
approved" – the offers exchanged by the parties during the Court shall first pass upon the arguments raised by
the negotiations continue to be privileged even after the petitioners against the application of PMPF v.
JPEPA is published. It is reasonable to conclude that the Manglapus to the present case.
Japanese representatives submitted their offers with
the understanding that "historic
confidentiality"27 would govern the same. Disclosing Arguments proffered by petitioners against the
these offers could impair the ability of the Philippines to application of PMPF v. Manglapus
deal not only with Japan but with other foreign
governments in future negotiations. Petitioners argue that  PMPF v. Manglapus cannot be
applied in toto to the present case, there
A ruling that Philippine offers in treaty negotiations being substantial factual distinctions between the two.
should now be open to public scrutiny would
discourage future Philippine representatives from To petitioners, the first and most fundamental
frankly expressing their views during negotiations. distinction lies in the nature of the treaty involved. They
While, on first impression, it appears wise to deter stress that PMPF v. Manglapus involved the Military
Philippine representatives from entering into Bases Agreement which necessarily pertained to
compromises, it bears noting that treaty negotiations, or matters affecting national security; whereas the present
any negotiation for that matter, normally involve a case involves an economic treaty that seeks to regulate
process of quid pro quo, and oftentimes negotiators trade and commerce between the Philippines and Japan,
have to be willing to grant concessions in an area of matters which, unlike those covered by the Military
lesser importance in order to obtain more favorable Bases Agreement, are not so vital to national security to
terms in an area of greater national interest. disallow their disclosure.
Apropos are the following observations of Benjamin S.
Duval, Jr.: Petitioners’ argument betrays a faulty assumption that
information, to be considered privileged, must involve
x x x [T]hose involved in the practice of negotiations national security. The recognition in Senate v.
appear to be in agreement that publicity leads to Ermita29 that executive privilege has encompassed
"grandstanding," tends to freeze negotiating positions, claims of varying kinds, such that it may even be more
and inhibits the give-and-take essential to successful accurate to speak of "executive privileges," cautions
negotiation. As Sissela Bok points out, if "negotiators against such generalization.
have more to gain from being approved by their own
sides than by making a reasoned agreement with While there certainly are privileges grounded on the
competitors or adversaries, then they are inclined to necessity of safeguarding national security such as
'play to the gallery . . .'' In fact, the public reaction may those involving military secrets, not all are founded
leave them little option. It would be a brave, or foolish, thereon. One example is the "informer’s privilege," or
Arab leader who expressed publicly a willingness for the privilege of the Government not to disclose the
peace with Israel that did not involve the return of the
identity of a person or persons who furnish information %7b532A6DBF-9B4C-4A5A-8F16-
of violations of law to officers charged with the C20D9BAA36C4%7d&vr=2.0&rp=%2ffind
enforcement of that law.30 The suspect involved need %2fdefault.wl&mt=WLIGeneralSubscription. 35
not be so notorious as to be a threat to national security
for this privilege to apply in any given instance. The diplomatic negotiations privilege bears a close
Otherwise, the privilege would be inapplicable in all but resemblance to the deliberative process and
the most high-profile cases, in which case not only presidential communications privilege. It may be
would this be contrary to long-standing practice. It readily perceived that the rationale for the confidential
would also be highly prejudicial to law enforcement character of diplomatic negotiations, deliberative
efforts in general. process, and presidential communications is similar, if
not identical.
Also illustrative is the privilege accorded to presidential
communications, which are presumed privileged The earlier discussion on PMPF v. Manglapus36 shows
without distinguishing between those which involve that the privilege for diplomatic negotiations is meant
matters of national security and those which do not, the to encourage a frank exchange of exploratory ideas
rationale for the privilege being that between the negotiating parties by shielding such
negotiations from public view. Similar to the privilege
x x x [a] frank exchange of exploratory ideas and for presidential communications, the diplomatic
assessments, free from the glare of publicity and negotiations privilege seeks, through the same means,
pressure by interested parties, is essential to to protect the independence in decision-making of the
protect the independence of decision-making of President, particularly in its capacity as "the sole organ
those tasked to exercise Presidential, Legislative and of the nation in its external relations, and its sole
Judicial power. x x x31 (Emphasis supplied) representative with foreign nations." And, as with the
deliberative process privilege, the privilege accorded to
In the same way that the privilege for judicial diplomatic negotiations arises, not on account of the
deliberations does not depend on the nature of the case content of the information per se, but because the
deliberated upon, so presidential communications are information is part of a process of deliberation which, in
privileged whether they involve matters of national pursuit of the public interest, must be presumed
security. confidential.

It bears emphasis, however, that the privilege accorded The decision of the U.S. District Court, District of
to presidential communications is not absolute, one Columbia in Fulbright & Jaworski v. Department of the
significant qualification being that "the Executive Treasury37 enlightens on the close relation between
cannot, any more than the other branches of diplomatic negotiations and deliberative process
government, invoke a general confidentiality privilege privileges. The plaintiffs in that case sought access to
to shield its officials and employees from notes taken by a member of the U.S. negotiating team
investigations by the proper governmental institutions during the U.S.-French tax treaty negotiations. Among
into possible criminal wrongdoing." 32 This qualification the points noted therein were the issues to be
applies whether the privilege is being invoked in the discussed, positions which the French and U.S. teams
context of a judicial trial or a congressional took on some points, the draft language agreed on, and
investigation conducted in aid of legislation. 33 articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
Closely related to the "presidential communications"
privilege is the deliberative process privilege Negotiations between two countries to draft a treaty
recognized in the United States. As discussed by the U.S. represent a true example of a deliberative process.
Supreme Court in NLRB v. Sears, Roebuck & Much give-and-take must occur for the countries to
Co,34 deliberative process covers documents reflecting reach an accord. A description of the negotiations at
advisory opinions, recommendations and deliberations any one point would not provide an onlooker a
comprising part of a process by which governmental summary of the discussions which could later be relied
decisions and policies are formulated. Notably, the on as law. It would not be "working law" as the points
privileged status of such documents rests, not on the discussed and positions agreed on would be subject to
need to protect national security but, on the "obvious change at any date until the treaty was signed by the
realization that officials will not communicate candidly President and ratified by the Senate.
among themselves if each remark is a potential item of
discovery and front page news," the objective of the The policies behind the deliberative process
privilege being to enhance the quality of agency privilege support non-disclosure. Much harm could
decisionshttp://web2.westlaw.com/find/default.wl? accrue to the negotiations process if these notes
rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Sp were revealed. Exposure of the pre-agreement
lit&tc=-1&findtype=Y&tf=-1&db=708&utid= positions of the French negotiators might well
offend foreign governments and would lead to less therein turned not on the threshold requirement of
candor by the U. S. in recording the events of the Exemption 5 that the document be inter-agency, but on
negotiations process. As several months pass in whether the documents were part of the agency's pre-
between negotiations, this lack of record could hinder decisional deliberative process. On this basis, Judge
readily the U. S. negotiating team. Further disclosure Friedman found that "Judge Green's discussion [in
would reveal prematurely adopted policies. If these Fulbright] of the harm that could result from disclosure
policies should be changed, public confusion would therefore is irrelevant, since the documents at issue
result easily. [in CIEL] are not inter-agency, and the Court does
not reach the question of deliberative process."
Finally, releasing these snapshot views of the (Emphasis supplied)
negotiations would be comparable to releasing
drafts of the treaty, particularly when the notes In fine, Fulbright was not overturned. The court
state the tentative provisions and language agreed in CIEL merely found the same to be irrelevant in light
on. As drafts of regulations typically are protected of its distinct factual setting. Whether this conclusion
by the deliberative process privilege, Arthur was valid – a question on which this Court would not
Andersen & Co. v. Internal Revenue Service, C.A. No. 80- pass – the ruling in Fulbright that "[n]egotiations
705 (D.C.Cir., May 21, 1982), drafts of between two countries to draft a treaty represent a true
treaties should be accorded the same example of a deliberative process" was left standing,
protection. (Emphasis and underscoring supplied) since the CIEL court explicitly stated that it did not
reach the question of deliberative process.
Clearly, the privilege accorded to diplomatic
negotiations follows as a logical consequence from the Going back to the present case, the Court recognizes
privileged character of the deliberative process. that the information sought by petitioners includes
documents produced and communicated by a party
The Court is not unaware that in Center for external to the Philippine government, namely, the
International Environmental Law (CIEL), et al. v. Office of Japanese representatives in the JPEPA negotiations, and
U.S. Trade Representative38 – where the plaintiffs sought to that extent this case is closer to the factual
information relating to the just-completed negotiation circumstances of CIEL than those of Fulbright.
of a United States-Chile Free Trade Agreement – the
same district court, this time under Judge Friedman, Nonetheless, for reasons which shall be discussed
consciously refrained from applying the doctrine shortly, this Court echoes the principle articulated
in Fulbright and ordered the disclosure of the in Fulbright that the public policy underlying the
information being sought. deliberative process privilege requires that diplomatic
negotiations should also be accorded privileged status,
Since the factual milieu in CIEL seemed to call for the even if the documents subject of the present case
straight application of the doctrine in Fulbright, a cannot be described as purely internal in character.
discussion of why the district court did not apply the
same would help illumine this Court’s own reasons for It need not be stressed that in CIEL, the court ordered
deciding the present case along the lines of Fulbright. the disclosure of information based on its finding that
the first requirement of FOIA Exemption 5 – that the
In both Fulbright and CIEL, the U.S. government cited a documents be inter-agency – was not met. In
statutory basis for withholding information, namely, determining whether the government may validly
Exemption 5 of the Freedom of Information Act refuse disclosure of the exchanges between the U.S. and
(FOIA).39 In order to qualify for protection under Chile, it necessarily had to deal with this requirement, it
Exemption 5, a document must satisfy two conditions: being laid down by a statute binding on them.
(1) it must be either inter-agency or intra-agency in
nature, and (2) it must be both pre-decisional and In this jurisdiction, however, there is no counterpart of
part of the agency's deliberative or decision-making the FOIA, nor is there any statutory requirement similar
process.40 to FOIA Exemption 5 in particular. Hence, Philippine
courts, when assessing a claim of privilege for
Judge Friedman, in CIEL, himself cognizant of a diplomatic negotiations, are more free to focus directly
"superficial similarity of context" between the two on the issue of whether the privilege being claimed is
cases, based his decision on what he perceived to be a indeed supported by public policy, without having to
significant distinction: he found the negotiator’s notes consider – as the CIEL court did – if these negotiations
that were sought in Fulbright to be "clearly internal," fulfill a formal requirement of being "inter-agency."
whereas the documents being sought in CIEL were Important though that requirement may be in the
those produced by or exchanged with an outside party, context of domestic negotiations, it need not be
i.e. Chile. The documents subject of Fulbright being accorded the same significance when dealing with
clearly internal in character, the question of disclosure international negotiations.
There being a public policy supporting a privilege for Hence, the recognition granted in PMPF v. Manglapus to
diplomatic negotiations for the reasons explained the privileged character of diplomatic negotiations
above, the Court sees no reason to modify, much less cannot be considered irrelevant in resolving the present
abandon, the doctrine in PMPF v. Manglapus. case, the contextual differences between the two cases
notwithstanding.
A second point petitioners proffer in their attempt to
differentiate PMPF v. Manglapus from the present As third and last point raised against the application
case is the fact that the petitioners therein consisted of PMPF v. Manglapus in this case, petitioners proffer
entirely of members of the mass media, while that "the socio-political and historical contexts of the
petitioners in the present case include members of the two cases are worlds apart." They claim that the
House of Representatives who invoke their right to constitutional traditions and concepts prevailing at the
information not just as citizens but as members of time PMPF v. Manglapus  came about, particularly the
Congress. school of thought that the requirements of foreign
policy and the ideals of transparency were incompatible
Petitioners thus conclude that the present case involves with each other or the "incompatibility hypothesis,"
the right of members of Congress to demand while valid when international relations were still
information on negotiations of international trade governed by power, politics and wars, are no longer so
agreements from the Executive branch, a matter which in this age of international cooperation. 42
was not raised in PMPF v. Manglapus.
Without delving into petitioners’ assertions respecting
While indeed the petitioners in PMPF v. the "incompatibility hypothesis," the Court notes that
Manglapus consisted only of members of the mass the ruling in PMPF v. Manglapus is grounded more on
media, it would be incorrect to claim that the doctrine the nature of treaty negotiations as such than on a
laid down therein has no bearing on a controversy such particular socio-political school of thought. If
as the present, where the demand for information has petitioners are suggesting that the nature of treaty
come from members of Congress, not only from private negotiations have so changed that "[a]n ill-timed speech
citizens. by one of the parties or a frank declaration of the
concession which are exacted or offered on both
sides" no longer "lead[s] to widespread propaganda to
The privileged character accorded to diplomatic block the negotiations," or that parties in treaty
negotiations does not ipso facto lose all force and negotiations no longer expect their communications to
effect simply because the same privilege is now be governed by historic confidentiality, the burden is on
being claimed under different circumstances. them to substantiate the same. This petitioners failed to
The probability of the claim succeeding in the new discharge.
context might differ, but to say that the privilege, as
such, has no validity at all in that context is another
matter altogether. Whether the privilege applies only at certain stages
of the negotiation process
The Court’s statement in Senate v. Ermita that
"presidential refusals to furnish information may be Petitioners admit that "diplomatic negotiations on the
actuated by any of at least three distinct kinds of JPEPA are entitled to a reasonable amount of
considerations [state secrets privilege, informer’s confidentiality so as not to jeopardize the diplomatic
privilege, and a generic privilege for internal process." They argue, however, that the same is
deliberations], and may be asserted, with differing privileged "only at certain stages of the negotiating
degrees of success, in the context of either judicial or process, after which such information must necessarily
legislative investigations," 41 implies that a privilege, be revealed to the public."43 They add that the duty to
once recognized, may be invoked under different disclose this information was vested in the government
procedural settings. That this principle holds true when the negotiations moved from the formulation and
particularly with respect to diplomatic negotiations exploratory stage to the firming up of definite
may be inferred from PMPF v. Manglapus itself, where propositions or official recommendations, citing Chavez
the Court held that it is the President alone who v. PCGG44 and Chavez v. PEA.45
negotiates treaties, and not even the Senate or the
House of Representatives,  unless asked, may intrude The following statement in Chavez v. PEA, however,
upon that process. suffices to show that the doctrine in both that case
and Chavez v. PCGG with regard to the duty to disclose
Clearly, the privilege for diplomatic negotiations may be "definite propositions of the government" does not
invoked not only against citizens’ demands for apply to diplomatic negotiations:
information, but also in the context of legislative
investigations. We rule, therefore, that the constitutional right to
information includes official information on on-going
negotiations  before a final contract. The information, The President’s broad interest in confidentiality of
however, must constitute definite propositions by communications will not be vitiated by disclosure of a
the government and should not cover recognized limited number of conversations preliminarily shown to
exceptions like privileged information, military and have some bearing on the pending criminal cases.
diplomatic secrets and similar matters affecting (Emphasis, italics and underscoring supplied)
national security and public order. x x x46 (Emphasis
and underscoring supplied) Similarly, Senate Select Committee v. Nixon,51 which
involved a claim of the presidential communications
It follows from this ruling that even definite privilege against the subpoena  duces tecum of a Senate
propositions of the government may not be disclosed if committee, spoke of the need to balance such claim with
they fall under "recognized exceptions." The privilege the duty of Congress to perform its legislative functions.
for diplomatic negotiations is clearly among the
recognized exceptions, for the footnote to the The staged decisional structure established in Nixon v.
immediately quoted ruling cites PMPF v. Sirica was designed to ensure that the President and
Manglapus itself as an authority. those upon whom he directly relies in the performance
of his duties could continue to work under a general
Whether there is sufficient public interest to assurance that their deliberations would remain
overcome the claim of privilege confidential. So long as the presumption that the
public interest favors confidentiality can be
It being established that diplomatic negotiations enjoy a defeated only by a strong showing of need by
presumptive privilege against disclosure, even against another institution of government- a showing that
the demands of members of Congress for information, the responsibilities of that institution cannot
the Court shall now determine whether petitioners have responsibly be fulfilled without access to records of
shown the existence of a public interest sufficient to the President's deliberations- we believed in Nixon v.
overcome the privilege in this instance. Sirica, and continue to believe, that the effective
functioning of the presidential office will not be
impaired. x x x
To clarify, 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 xxxx
information confidential, which is the reason for the
privilege in the first place, and the other is the public The sufficiency of the Committee's showing of need
interest in favor of disclosure, the existence of which has come to depend, therefore, entirely on whether
must be shown by the party asking for information. 47 the subpoenaed materials are critical to the
performance of its legislative functions. x x x
The criteria to be employed in determining whether (Emphasis and underscoring supplied)
there is a sufficient public interest in favor of disclosure
may be gathered from cases such as U.S. v. In re Sealed Case52 involved a claim of the deliberative
Nixon,48 Senate Select Committee on Presidential process and presidential communications privileges
Campaign Activities v. Nixon,49 and In re Sealed Case.50 against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:
U.S. v. Nixon, which involved a claim of the presidential
communications privilege against the subpoena  duces The deliberative process privilege is a qualified
tecum of a district court in a criminal case, privilege and can be overcome by a sufficient
emphasized the need to balance such claim of privilege showing of need. This need determination is to be
against the constitutional duty of courts to ensure a fair made flexibly on a case-by-case, ad hoc basis. "[E]ach
administration of criminal justice. time [the deliberative process privilege] is asserted the
district court must undertake a fresh balancing of the
x x x the allowance of the privilege to withhold competing interests," taking into account factors such
evidence that is demonstrably relevant in a criminal as "the relevance of the evidence," "the availability
trial would cut deeply into the guarantee of due of other evidence," "the seriousness of the
process of law and gravely impair the basic function litigation," "the role of the government," and the
of the courts. A President’s acknowledged need for "possibility of future timidity by government
confidentiality in the communications of his office is employees. x x x (Emphasis, italics and underscoring
general in nature, whereas the constitutional need supplied)
for production of relevant evidence in a criminal
proceeding is specific and central to the fair Petitioners have failed to present the strong and
adjudication of a particular criminal case in the "sufficient showing of need" referred to in the
administration of justice. Without access to specific immediately cited cases. The arguments they proffer to
facts a criminal prosecution may be totally frustrated.
establish their entitlement to the subject documents fall Petitioner-members of the House of Representatives
short of this standard. additionally anchor their claim to have a right to the
subject documents on the basis of Congress’ inherent
Petitioners go on to assert that the non-involvement of power to regulate commerce, be it domestic or
the Filipino people in the JPEPA negotiation process international. They allege that Congress cannot
effectively results in the bargaining away of their meaningfully exercise the power to regulate
economic and property rights without their knowledge international trade agreements such as the JPEPA
and participation, in violation of the due process clause without being given copies of the initial offers
of the Constitution. They claim, moreover, that it is exchanged during the negotiations thereof. In the same
essential for the people to have access to the initial vein, they argue that the President cannot exclude
offers exchanged during the negotiations since only Congress from the JPEPA negotiations since whatever
through such disclosure can their constitutional right to power and authority the President has to negotiate
effectively participate in decision-making be brought to international trade agreements is derived only by
life in the context of international trade agreements. delegation of Congress, pursuant to Article VI, Section
28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.55
Whether it can accurately be said that the Filipino
people were not involved in the JPEPA negotiations is a
question of fact which this Court need not resolve. The subject of Article VI Section 28(2) of the
Suffice it to state that respondents had presented Constitution is not the power to negotiate treaties and
documents purporting to show that public consultations international agreements, but the power to fix tariff
were conducted on the JPEPA. Parenthetically, rates, import and export quotas, and other taxes. Thus it
petitioners consider these "alleged consultations" as provides:
"woefully selective and inadequate."53
(2) The Congress may, by law, authorize the President
AT ALL EVENTS, since it is not disputed that the offers to fix within specified limits, and subject to such
exchanged by the Philippine and Japanese limitations and restrictions as it may impose, tariff
representatives have not been disclosed to the public, rates, import and export quotas, tonnage and wharfage
the Court shall pass upon the issue of whether access to dues, and other duties or imposts within the framework
the documents bearing on them is, as petitioners claim, of the national development program of the
essential to their right to participate in decision-making. Government.

The case for petitioners has, of course, been immensely As to the power to negotiate treaties, the constitutional
weakened by the disclosure of the full text of the JPEPA basis thereof is Section 21 of Article VII – the article on
to the public since September 11, 2006, even as it is still the Executive Department – which states:
being deliberated upon by the Senate and, therefore, not
yet binding on the Philippines. Were the Senate to No treaty or international agreement shall be valid and
concur with the validity of the JPEPA at this moment, effective unless concurred in by at least two-thirds of all
there has already been, in the words of PMPF v. the Members of the Senate.
Manglapus, "ample opportunity for discussion before
[the treaty] is approved." The doctrine in PMPF v. Manglapus that the treaty-
making power is exclusive to the President, being the
The text of the JPEPA having been published, petitioners sole organ of the nation in its external relations, was
have failed to convince this Court that they will not be echoed in BAYAN v. Executive Secretary56 where the
able to meaningfully exercise their right to participate Court held:
in decision-making unless the initial offers are also
published. By constitutional fiat and by the intrinsic nature of his
office, the President, as head of State, is
It is of public knowledge that various non-government the sole organ and authority in the external affairs of
sectors and private citizens have already publicly the country. In many ways, the President is the chief
expressed their views on the JPEPA, their comments not architect of the nation's foreign policy; his "dominance
being limited to general observations thereon but on its in the field of foreign relations is (then) conceded."
specific provisions. Numerous articles and statements Wielding vast powers and influence, his conduct in the
critical of the JPEPA have been posted on the external affairs of the nation, as Jefferson describes, is
Internet.54 Given these developments, there is no basis "executive altogether."
for petitioners’ claim that access to the Philippine and
Japanese offers is essential to the exercise of their right As regards the power to enter into treaties or
to participate in decision-making. international agreements, the Constitution vests the
same 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 It follows from the above discussion that Congress,
the VFA and the subsequent ratification of the while possessing vast legislative powers, may not
agreement are exclusive acts which pertain solely to the interfere in the field of treaty negotiations. While Article
President, in the lawful exercise of his vast executive VII, Section 21 provides for Senate concurrence, such
and diplomatic powers granted him no less than by pertains only to the validity of the treaty under
the fundamental law itself. Into the field of consideration, not to the conduct of negotiations
negotiation the Senate cannot intrude, and Congress attendant to its conclusion. Moreover, it is not even
itself is powerless to invade it. x x x (Italics in the Congress as a whole that has been given the authority to
original; emphasis and underscoring supplied) concur as a means of checking the treaty-making power
of the President, but only the Senate.
The same doctrine was reiterated even more recently
in Pimentel v. Executive Secretary57 where the Court Thus, as in the case of petitioners suing in their capacity
ruled: as private citizens, petitioners-members of the House of
Representatives fail to present a "sufficient showing of
In our system of government, the President, being the need" that the information sought is critical to the
head of state, is regarded as the sole organ and performance of the functions of Congress, functions that
authority in external relations and is the country's do not include treaty-negotiation.
sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the Respondents’ alleged failure to timely claim
country's mouthpiece with respect to international executive privilege
affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, On respondents’ invocation of executive privilege,
extend or withhold recognition, maintain diplomatic petitioners find the same defective, not having been
relations, enter into treaties, and otherwise transact done seasonably as it was raised only in their Comment
the business of foreign relations. In the realm of to the present petition and not during the House
treaty-making, the President has the sole authority Committee hearings.
to negotiate with other states.
That respondents invoked the privilege for the first time
Nonetheless, while the President has only in their Comment to the present petition does not
the sole authority to negotiate and enter into mean that the claim of privilege should not be credited.
treaties, the Constitution provides a limitation to Petitioners’ position presupposes that an assertion of
his power by requiring the concurrence of 2/3 of all the privilege should have been made during the House
the members of the Senate for the validity of the Committee investigations, failing which respondents are
treaty entered into by him. x x x (Emphasis and deemed to have waived it.
underscoring supplied)
When the House Committee and petitioner-
While the power then to fix tariff rates and other taxes Congressman Aguja requested respondents for copies of
clearly belongs to Congress, and is exercised by the the documents subject of this case, respondents replied
President only by delegation of that body, it has long that the negotiations were still on-going and that the
been recognized that the power to enter into treaties is draft of the JPEPA would be released once the text
vested directly and exclusively in the President, subject thereof is settled and complete. There was no
only to the concurrence of at least two-thirds of all the intimation that the requested copies are confidential in
Members of the Senate for the validity of the treaty. In nature by reason of public policy. The response may not
this light, the authority of the President to enter into thus be deemed a claim of privilege by the standards
trade agreements with foreign nations provided under of Senate v. Ermita, which recognizes as claims of
P.D. 146458 may be interpreted as an acknowledgment privilege only those which are accompanied by precise
of a power already inherent in its office. It may not be and certain reasons for preserving
used as basis to hold the President or its the confidentiality of the information being sought.
representatives accountable to Congress for the conduct
of treaty negotiations.
Respondents’ failure to claim the privilege during the
House Committee hearings may not, however, be
This is not to say, of course, that the President’s power construed as a waiver thereof by the Executive branch.
to enter into treaties is unlimited but for the As the immediately preceding paragraph indicates,
requirement of Senate concurrence, since the President what respondents received from the House Committee
must still ensure that all treaties will substantively and petitioner-Congressman Aguja were
conform to all the relevant provisions of the mere requests for information. And as priorly stated,
Constitution. the House Committee itself refrained from pursuing its
earlier resolution to issue a subpoena duces tecum on
account of then Speaker Jose de Venecia’s alleged
request to Committee Chairperson Congressman Teves 1. After its historical discussion on the allocation of
to hold the same in abeyance. power over international trade agreements in the
United States, the dissent concludes that "it will be
While it is a salutary and noble practice for Congress to turning somersaults with history to contend that the
refrain from issuing subpoenas to executive officials – President is the sole organ for external relations" in that
out of respect for their office – until resort to it becomes jurisdiction. With regard to this opinion, We make only
necessary, the fact remains that such requests are not a the following observations:
compulsory process. Being mere requests, they do not
strictly call for an assertion of executive privilege. There is, at least, a core meaning of the phrase "sole
organ of the nation in its external relations" which is not
The privilege is an exemption to Congress’ power of being disputed, namely, that the power
inquiry.59 So long as Congress itself finds no cause to to directly negotiate treaties and international
enforce such power, there is no strict necessity to assert agreements is vested by our Constitution only in the
the privilege. In this light, respondents’ failure to invoke Executive. Thus, the dissent states that "Congress has
the privilege during the House Committee the power to regulate commerce with foreign
investigations did not amount to a waiver thereof. nations but does not have the power to negotiate
international agreements directly."62
The Court observes, however, that the claim of privilege
appearing in respondents’ Comment to this petition What is disputed is how this principle applies to the
fails to satisfy in full the requirement laid down in case at bar.
Senate v. Ermita that the claim should be invoked by the
President or through the Executive Secretary "by order The dissent opines that petitioner-members of the
of the President."60 Respondents’ claim of privilege is House of Representatives, by asking for the subject
being sustained, however, its flaw notwithstanding, JPEPA documents, are not seeking
because of circumstances peculiar to the case. to directly participate in the negotiations of the JPEPA,
hence, they cannot be prevented from gaining access to
The assertion of executive privilege by the Executive these documents.
Secretary, who is one of the respondents herein,
without him adding the phrase "by order of the On the other hand, We hold that this is one occasion
President," shall be considered as partially complying where the following ruling in Agan v. PIATCO63 – and in
with the requirement laid down in Senate v. Ermita. The other cases both before and since – should be applied:
requirement that the phrase "by order of the President"
should accompany the Executive Secretary’s claim of This Court has long and consistently adhered to the
privilege is a new rule laid down for the first time legal maxim that those that cannot be done directly
in Senate v. Ermita, which was not yet final and cannot be done indirectly. To declare the PIATCO
executory at the time respondents filed their Comment contracts valid despite the clear statutory prohibition
to the petition.61 A strict application of this requirement against a direct government guarantee would not only
would thus be unwarranted in this case. make a mockery of what the BOT Law seeks to prevent --
which is to expose the government to the risk of incurring
Response to the Dissenting Opinion of the Chief a monetary obligation resulting from a contract of loan
Justice between the project proponent and its lenders and to
which the Government is not a party to --  but would also
We are aware that behind the dissent of the Chief render the BOT Law useless for what it seeks to
Justice lies a genuine zeal to protect our people’s right achieve –- to make use of the resources of the private
to information against any abuse of executive privilege. sector in the "financing, operation and maintenance of
It is a zeal that We fully share. infrastructure and development projects" which are
necessary for national growth and development but
which the government, unfortunately, could ill-afford to
The Court, however, in its endeavor to guard against the finance at this point in time.64
abuse of executive privilege, should be careful not to
veer towards the opposite extreme, to the point that it
would strike down as invalid even a legitimate exercise Similarly, while herein petitioners-members of the
thereof. House of Representatives may not have been aiming to
participate in the negotiations directly, opening the
JPEPA negotiations to their scrutiny – even to the point
We respond only to the salient arguments of the of giving them access to the offers exchanged between
Dissenting Opinion which have not yet been sufficiently the Japanese and Philippine delegations – would have
addressed above. made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to
achieve when it vested the power of direct negotiation accorded strict confidentiality." That respondents
solely with the President. liken the documents involved in the JPEPA
negotiations to judicial deliberations and working
What the U.S. Constitution sought to prevent and aimed drafts of opinions evinces, by itself, that they were
to achieve in defining the treaty-making power of the claiming confidentiality not only until, but even
President, which our Constitution similarly defines, may after, the conclusion of the negotiations.
be gathered from Hamilton’s explanation of why the U.S.
Constitution excludes the House of Representatives Judicial deliberations do not lose their confidential
from the treaty-making process: character once a decision has been promulgated by the
courts. The same holds true with respect to working
x x x The fluctuating, and taking its future increase into drafts of opinions, which are comparable to intra-
account, the multitudinous composition of that agency recommendations. Such intra-agency
body, forbid us to expect in it those qualities which are recommendations are privileged even after the position
essential to the proper execution of such a trust. under consideration by the agency has developed into a
Accurate and comprehensive knowledge of foreign definite proposition, hence, the rule in this jurisdiction
politics; a steady and systematic adherence to the same that agencies have the duty to disclose only definite
views; a nice and uniform sensibility to national propositions, and not the inter-agency and intra-agency
character, decision, secrecy  and dispatch; are communications during the stage when common
incompatible with a body so variable and so numerous. assertions are still being formulated.67
The very complication of the business by introducing a
necessity of the concurrence of so many different 3. The dissent claims that petitioner-members of the
bodies, would of itself afford a solid objection. The House of Representatives have sufficiently shown their
greater frequency of the calls upon the house of need for the same documents to overcome the privilege.
representatives, and the greater length of time which it Again, We disagree.
would often be necessary to keep them together when
convened, to obtain their sanction in the progressive The House Committee that initiated the investigations
stages of a treaty, would be source of so great on the JPEPA did not pursue its earlier intention to
inconvenience and expense, as alone ought to condemn subpoena the documents. This strongly undermines the
the project.65 assertion that access to the same documents by the
House Committee is critical to the performance of its
These considerations a fortiori apply in this jurisdiction, legislative functions. If the documents were indeed
since the Philippine Constitution, unlike that of the U.S., critical, the House Committee should have, at the very
does not even grant the Senate the power to advise the least, issued a subpoena duces tecum or, like what the
Executive in the making of treaties, but only vests in Senate did in Senate v. Ermita, filed the present
that body the power to concur in the validity of the petition as a legislative body, rather than leaving it to
treaty after negotiations have been concluded.66 Much the discretion of individual Congressmen whether to
less, therefore, should it be inferred that the House of pursue an action or not. Such acts would have served as
Representatives has this power. strong indicia that Congress itself finds the subject
information to be critical to its legislative functions.
Since allowing petitioner-members of the House of
Representatives access to the subject JPEPA documents Further, given that respondents have claimed executive
would set a precedent for future negotiations, leading to privilege, petitioner-members of the House of
the contravention of the public interests articulated Representatives should have, at least, shown how its
above which the Constitution sought to protect, the lack of access to the Philippine and Japanese offers
subject documents should not be disclosed. would hinder the intelligent crafting of legislation. Mere
assertion that the JPEPA covers a subject matter over
2. The dissent also asserts that respondents can no which Congress has the power to legislate would not
longer claim the diplomatic secrets privilege over the suffice. As Senate Select Committee v. Nixon68 held, the
subject JPEPA documents now that negotiations have showing required to overcome the presumption
been concluded, since their reasons for nondisclosure favoring confidentiality turns, not only on the nature
cited in the June 23, 2005 letter of Sec. Ermita, and later and appropriateness of the function in the performance
in their Comment, necessarily apply only for as long as of which the material was sought, but also the degree to
the negotiations were still pending; which the material was necessary to its fulfillment. This
petitioners failed to do.
In their Comment, respondents contend that "the
negotiations of the representatives of the Philippines as Furthermore, from the time the final text of the JPEPA
well as of Japan must be allowed to explore alternatives including its annexes and attachments was published,
in the course of the negotiations in the same manner as petitioner-members of the House of Representatives
judicial deliberations and working drafts of opinions are have been free to use it for any legislative purpose they
may see fit. Since such publication, petitioners’ need, if with applying the same rule in this peculiar instance,
any, specifically for the Philippine and Japanese offers where the claim of executive privilege occurred before
leading to the final version of the JPEPA, has become the judgment in Senate v. Ermita became final.
even less apparent.
5. To show that PMPF v. Manglapus may not be applied
In asserting that the balance in this instance tilts in in the present case, the dissent implies that the Court
favor of disclosing the JPEPA documents, the dissent therein erred in citing US v. Curtiss Wright72 and the
contends that the Executive has failed to show how book entitled The New American Government and Its
disclosing them after the conclusion of negotiations Work73 since these authorities, so the dissent claims,
would impair the performance of its functions. The may not be used to calibrate the importance of the right
contention, with due respect, misplaces the onus to information in the Philippine setting.
probandi. While, in keeping with the general
presumption of transparency, the burden is initially on The dissent argues that since Curtiss-Wright referred to
the Executive to provide precise and certain reasons for a conflict between the executive and legislative
upholding its claim of privilege, once the Executive is branches of government, the factual setting thereof was
able to show that the documents being sought are different from that of PMPF v. Manglapus which
covered by a recognized privilege, the burden shifts to involved a collision between governmental power over
the party seeking information to overcome the privilege the conduct of foreign affairs and the citizen’s right to
by a strong showing of need. information.

When it was thus established that the JPEPA documents That the Court could freely cite Curtiss-Wright – a case
are covered by the privilege for diplomatic negotiations that upholds the secrecy of diplomatic negotiations
pursuant to PMPF v. Manglapus, the presumption arose against congressional demands for information – in the
that their disclosure would impair the performance of course of laying down a ruling on the public right to
executive functions. It was then incumbent on information only serves to underscore the principle
petitioner- requesting parties to show that they have a mentioned earlier that the privileged character
strong need for the information sufficient to overcome accorded to diplomatic negotiations does not ipso
the privilege. They have not, however. facto lose all force and effect simply because the same
privilege is now being claimed under different
4. Respecting the failure of the Executive Secretary to circumstances.
explicitly state that he is claiming the privilege "by
order of the President," the same may not be strictly PMPF v. Manglapus indeed involved a demand for
applied to the privilege claim subject of this case. information from private citizens and not an executive-
legislative conflict, but so did Chavez v. PEA74 which held
When the Court in Senate v. Ermita limited the power of that "the [public’s] right to information . . . does not
invoking the privilege to the President alone, it was extend to matters recognized as privileged
laying down a new rule for which there is no information under the separation of powers." What
counterpart even in the United States from which the counts as privileged information in an executive-
concept of executive privilege was adopted. As held in legislative conflict is thus also recognized as such in
the 2004 case of Judicial Watch, Inc. v. Department of cases involving the public’s right to information.
Justice,69 citing In re Sealed Case,70 "the issue of whether
a President must personally invoke the [presidential Chavez v. PCGG75 also involved the public’s right to
communications] privilege remains an open information, yet the Court recognized as a valid
question." U.S. v. Reynolds,71 on the other hand, held that limitation to that right the same privileged information
"[t]here must be a formal claim of privilege, lodged by based on separation of powers – closed-door Cabinet
the head of the department which has control over the meetings, executive sessions of either house of
matter, after actual personal consideration by that Congress, and the internal deliberations of the Supreme
officer." Court.

The rule was thus laid down by this Court, not in These cases show that the Court has always regarded
adherence to any established precedent, but with the claims of privilege, whether in the context of an
aim of preventing the abuse of the privilege in light of executive-legislative conflict or a citizen’s demand for
its highly exceptional nature. The Court’s recognition information, as closely intertwined, such that the
that the Executive Secretary also bears the power to principles applicable to one are also applicable to the
invoke the privilege, provided he does so "by order of other.
the President," is meant to avoid laying down too rigid a
rule, the Court being aware that it was laying down a
new restriction on executive privilege. It is with the The reason is obvious. If the validity of claims of
same spirit that the Court should not be overly strict privilege were to be assessed by entirely different
criteria in each context, this may give rise to the absurd
result where Congress would be denied access to a setting considering its elevation as a constitutional
particular information because of a claim of executive right," we submit that the elevation of such right as a
privilege, but the general public would have access to constitutional right did not set it free from the
the same information, the claim of privilege legitimate restrictions of executive privilege which is
notwithstanding. itself constitutionally-based.76 Hence, the comments in
that book which were cited in PMPF v.
Absurdity would be the ultimate result if, for instance, Manglapus remain valid doctrine.
the Court adopts the "clear and present danger" test for
the assessment of claims of privilege against citizens’ 6. The dissent further asserts that the Court has never
demands for information. If executive information, used "need" as a test to uphold or allow inroads into
when demanded by a citizen, is privileged only when rights guaranteed under the Constitution. With due
there is a clear and present danger of a substantive evil respect, we assert otherwise. The Court has done so
that the State has a right to prevent, it would be very before, albeit without using the term "need."
difficult for the Executive to establish the validity of its
claim in each instance. In contrast, if the demand comes In executive privilege controversies, the requirement
from Congress, the Executive merely has to show that that parties present a "sufficient showing of need" only
the information is covered by a recognized privilege in means, in substance, that they should show a public
order to shift the burden on Congress to present a interest in favor of disclosure sufficient in degree to
strong showing of need. This would lead to a situation overcome the claim of privilege.77 Verily, the Court in
where it would be more difficult for Congress to access such cases engages in a balancing of interests. Such a
executive information than it would be for private balancing of interests is certainly not new in
citizens. constitutional adjudication involving fundamental
rights. Secretary of Justice v. Lantion,78 which was cited
We maintain then that when the Executive has already in the dissent, applied just such a test.
shown that an information is covered by executive
privilege, the party demanding the information must Given that the dissent has clarified that it does not seek
present a "strong showing of need," whether that party to apply the "clear and present danger" test to the
is Congress or a private citizen. present controversy, but the balancing test, there seems
to be no substantial dispute between the position laid
The rule that the same "showing of need" test applies in down in this ponencia and that reflected in the dissent
both these contexts, however, should not be construed as to what test to apply. It would appear that the only
as a denial of the importance of analyzing the context in disagreement is on the results of applying that test in
which an executive privilege controversy may happen this instance.
to be placed. Rather, it affirms it, for it means that
the specific need being shown by the party seeking The dissent, nonetheless, maintains that "it suffices that
information in every particular instance is highly information is of public concern for it to be covered by
significant in determining whether to uphold a claim of the right, regardless of the public’s need for the
privilege. This "need" is, precisely, part of the information," and that the same would hold true even
context in light of which every claim of privilege "if they simply want to know it because it interests
should be assessed. them." As has been stated earlier, however, there is no
dispute that the information subject of this case is a
Since, as demonstrated above, there are common matter of public concern. The Court has earlier
principles that should be applied to executive privilege concluded that it is a matter of public concern, not on
controversies across different contexts, the Court the basis of any specific need shown by petitioners, but
in PMPF v. Manglapus did not err when it cited from the very nature of the JPEPA as an international
the Curtiss-Wright case. trade agreement.

The claim that the book cited in PMPF v. However, when the Executive has – as in this case –
Manglapus entitled The New American Government and invoked the privilege, and it has been established that
Its Work could not have taken into account the the subject information is indeed covered by the
expanded statutory right to information in the FOIA privilege being claimed, can a party overcome the same
assumes that the observations in that book in support of by merely asserting that the information being
the confidentiality of treaty negotiations would be demanded is a matter of public concern, without any
different had it been written after the FOIA. Such further showing required? Certainly not, for that would
assumption is, with due respect, at best, speculative. render the doctrine of executive privilege of no force
and effect whatsoever as a limitation on the right to
As to the claim in the dissent that "[i]t is more doubtful information, because then the sole test in such
if the same book be used to calibrate the importance of controversies would be whether an information is a
the right of access to information in the Philippine matter of public concern.
Moreover, in view of the earlier discussions, we must to hastily apply the ruling therein to other contexts. It
bear in mind that, by disclosing the documents of the does not, however, absolutely mean that the principles
JPEPA negotiations, the Philippine government runs the applied in that case may never be applied in such
grave risk of betraying the trust reposed in it by the contexts.
Japanese representatives, indeed, by the Japanese
government itself. How would the Philippine Hence, U.S. courts have cited U.S. v. Nixon in support of
government then explain itself when that happens? their rulings on claims of executive privilege in contexts
Surely, it cannot bear to say that it just had to release other than a criminal trial, as in the case of Nixon v.
the information because certain persons simply wanted Administrator of General Services80 – which involved
to know it "because it interests them." former President Nixon’s invocation of executive
privilege to challenge the constitutionality of the
Thus, the Court holds that, in determining whether an "Presidential Recordings and Materials Preservation
information is covered by the right to information, a Act"81 – and the above-mentioned In re Sealed
specific "showing of need" for such information is not a Case which involved a claim of privilege against
relevant consideration, but only whether the same is a a subpoena duces tecum issued in a grand jury
matter of public concern. When, however, the investigation.
government has claimed executive privilege, and it has
established that the information is indeed covered by Indeed, in applying to the present case the principles
the same, then the party demanding it, if it is to found in U.S. v. Nixon and in the other cases already
overcome the privilege, must show that that the mentioned, We are merely affirming what the Chief
information is vital, not simply for the satisfaction of its Justice stated in his Dissenting Opinion in Neri v. Senate
curiosity, but for its ability to effectively and reasonably Committee on Accountability82 – a case involving an
participate in social, political, and economic decision- executive-legislative conflict over executive privilege.
making.79 That dissenting opinion stated that, while Nixon was not
concerned with the balance between the President’s
7. The dissent maintains that "[t]he treaty has thus generalized interest in confidentiality and congressional
entered the ultimate stage where the people can demands for information, "[n]onetheless the [U.S.]
exercise their right to participate in the discussion Court laid down principles and procedures that can
whether the Senate should concur in its ratification or serve as torch lights to illumine us on the scope and
not." (Emphasis supplied) It adds that this right "will be use of Presidential communication privilege in the
diluted unless the people can have access to the subject case at bar."83 While the Court was divided in Neri, this
JPEPA documents". What, to the dissent, is a dilution of opinion of the Chief Justice was not among the points of
the right to participate in decision-making is, to Us, disagreement, and We similarly hold now that
simply a recognition of the qualified nature of the the Nixon case is a useful guide in the proper resolution
public’s right to information. It is beyond dispute that of the present controversy, notwithstanding the
the right to information is not absolute and that the difference in context.
doctrine of executive privilege is a recognized limitation
on that right. Verily, while the Court should guard against the
abuse of executive privilege, it should also give full
Moreover, contrary to the submission that the right to recognition to the validity of the privilege whenever
participate in decision-making would be diluted, We it is claimed within the proper bounds of executive
reiterate that our people have been exercising their power, as in this case. Otherwise, the Court would
right to participate in the discussion on the issue of the undermine its own credibility, for it would be perceived
JPEPA, and they have been able to articulate their as no longer aiming to strike a balance, but seeking
different opinions without need of access to the JPEPA merely to water down executive privilege to the point of
negotiation documents. irrelevance.

Thus, we hold that the balance in this case tilts in favor Conclusion
of executive privilege.
To recapitulate, petitioners’ demand to be furnished
8. Against our ruling that the principles applied in U.S. v. with a copy of the full text of the JPEPA has become
Nixon, the Senate Select Committee case, and In re Sealed moot and academic, it having been made accessible to
Case, are similarly applicable to the present the public since September 11, 2006. As for their
controversy, the dissent cites the caveat in demand for copies of the Philippine and Japanese offers
the Nixon case that the U.S. Court was there addressing submitted during the JPEPA negotiations, the same
only the President’s assertion of privilege in the context must be denied, respondents’ claim of executive
of a criminal trial, not a civil litigation nor a privilege being valid.
congressional demand for information. What this caveat
means, however, is only that courts must be careful not
Diplomatic negotiations have, since the Court
promulgated its Resolution in PMPF v. Manglapus on Associate Justice
September 13, 1988, been recognized as privileged in
this jurisdiction and the reasons proffered by TERESITA J.
petitioners against the application of the ruling therein RUBEN T. REYES LEONARDO-DE
to the present case have not persuaded the Court. Associate Justice CASTRO
Moreover, petitioners – both private citizens and Associate Justice
members of the House of Representatives – have failed
to present a "sufficient showing of need" to overcome
the claim of privilege in this case. ARTURO D. BRION
Associate Justice
That the privilege was asserted for the first time in
respondents’ Comment to the present petition, and not CERTIFICATION
during the hearings of the House Special Committee on
Globalization, is of no moment, since it cannot be
Pursuant to Section 13, Article VIII of the Constitution, I
interpreted as a waiver of the privilege on the part of
certify that the conclusions in the above Decision had
the Executive branch.
been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
For reasons already explained, this Decision shall not be
interpreted as departing from the ruling in Senate v.
REYNATO S. PUNO
Ermita that executive privilege should be invoked by
Chief Justice
the President or through the Executive Secretary "by
order of the President."

WHEREFORE, the petition is DISMISSED.

SO ORDERED. Footnotes

CONCHITA CARPIO MORALES * In the case title as indicated in the petition,
Associate Justice only the name of Usec. Thomas G. Aquino
appears in the portion for "Respondents," to
wit: "HON. THOMAS G. AQUINO, in his capacity
WE CONCUR:
as Chairman and Chief Delegate of the
Philippine Coordinating Committee for the
REYNATO S. PUNO Japan-Philippines Economic Partnership
Chief Justice Agreement, et al." (Underscoring supplied)
The other respondents are enumerated in the
body of the petition. (Rollo, pp. 20-23) The
LEONARDO A. ANTONIO T. Court motu proprio included the names of
QUISUMBING CARPIO these other respondents in the case title to
Associate Justice Associate Justice conform to Sec. 1, par. 2, Rule 7 of the Rules of
Civil Procedure, as well as the capacities in
MA. ALICIA which they are being sued. Moreover, it
CONSUELO inserted therein that respondent Usec. Aquino,
AUSTRIA-
YNARES- SANTIAGO as stated in the petition, is also being sued in
MARTINEZ
Associate Justice his capacity as DTI Undersecretary.
Associate Justice
1
 Effective May 28, 2003.
RENATO C. CORONA ADOLFO S. AZCUNA
Associate Justice Associate Justice
2
 Annex "F" of Petition, rollo, p. 95.
PRESBITERO J.
DANTE O. TINGA 3
 The Petition quoted the following statement
VELASCO, JR.
Associate Justice of Congressman Teves appearing in the
Associate Justice
transcript of the Committee hearing held on
October 12, 2005:
MINITA V. CHICO- ANTONIO
NAZARIO EDUARDO B.
Associate Justice NACHURA THE CHAIRPERSON. Now I call on
Usec. Aquino to furnish us a copy of
 the draft JPEPA and enunciate to this accessible to the public since September 11,
body the positive as well as the 2006 (Manifestation dated September 12,
negative impact of said agreement. Is 2007). Respondents’ claim does not persuade,
this the draft that the government however. By their own manifestation, the
will sign in December or this will still documents posted on the DTI website on that
be subjected to revisions in the run- date were only the following: (1) Joint
up to its signing? x x x We requested Statement on the Occasion of the Signing of the
also to subpoena this but then the Agreement between Japan and the Republic of
Speaker requested me to hold in the Philippines, (2) the full text of the JPEPA
abeyance because he wanted to itself and its annexes, (3) the JPEPA
get a (sic) consent of the President implementing Agreement, and (4) "resource
before we can x x x the materials on the JPEPA including
department can furnish us a copy presentations of the [DTI] during the hearings
of this agreement. (Rollo, p. 32) of the Senate’s Committee on Trade and
Commerce and Committee on Economic
4
 Id. at 16. Affairs." While these documents no doubt
provide very substantial information on the
5
JPEPA, the publication thereof still falls short
 Annex "A," Comment, rollo, p. 207. of addressing the prayer of petitioners to be
provided with copies of the Philippine and
6
 Respondents’ Manifestation dated September Japanese offers. Thus, the petition, insofar as it
12, 2007; vide "Business Philippines: A prays for access to these offers, has not
Department of Trade and Industry Website" become moot.
at www.business.gov.ph,
particularly www.business.gov.ph/DTI_News. 13
 Constitution, Art. III, Sec. 7.
php?contentID=136 (visited August 9, 2007).
14
7
 Id. at Art. II, Sec. 28.
 Legaspi v. Civil Service Commission, G.R. No. L-
72119, May 29, 1987; 150 SCRA 530, 535. 15
 Id. at Art. XIII, Sec. 16.
8
 G.R. No. 158088, July 6, 2005; 462 SCRA 622, 16
630-631.  Supra note 7 at 541.

17
9
 Supra note 7 at 536.  314 Phil. 150 (1995).

18
10
 Reply to the Comment of the Solicitor  360 Phil. 133 (1998).
General, rollo, p. 319 (underscoring supplied).
19
 433 Phil. 506 (2002).
11
 Business Philippines: A Department of Trade
20
and Industry  G.R. No. 169777, April 20, 2006, 488 SCRA 1.
Website, http://www.business.gov.ph/filedire
ctory/JPEPA.pdf, accessed on June 12, 2007. 21
 Id. at 51.
12
 By Resolution dated August 28, 2007, this 22
 Rollo, pp. 191-192.
Court directed the parties to manifest whether
the Philippine and Japanese offers have been 23
made accessible to the public just like the full  360 Phil. 133, 764 (1998), citing V Record Of
text of the JPEPA and, if not, whether The Constitutional Commission 25 (1986).
petitioners still intend to pursue their prayer
24
to be provided with copies thereof. In  G.R. No. 84642, Resolution of the Court En
compliance, petitioners manifested that the Banc dated September 13, 1988.
offers have not yet been made public and
reiterated their prayer that respondents be 25
 Specifically, petitioners therein asked that
compelled to provide them with copies the Court order respondents to (1) open to
thereof, including all pertinent attachments petitioners their negotiations/sessions with
and annexes thereto (Manifestation and the U.S. counterparts on the agreement; (2)
Motion dated September 17, 2007). reveal and/or give petitioners access to the
Respondents, on the other hand, asserted that items which they have already agreed upon;
the offers have effectively been made and (3) reveal and/or make accessible the
respective positions on items they have not ₱5,000,000 of public funds, of which Congress
agreed upon, particularly the compensation is the constitutional guardian. x x x"
package for the continued use by the U.S. of
their military bases and facilities in the 34
 421 U.S., at 150, 95 S.Ct. 1504, reiterated
Philippines. in Department of the Interior and Bureau of
Indian Affairs v. Klamath Water Users
26
 299 U.S. 304 (1936). Protective Association, 532 U.S. 1, 121 S.Ct.
1060.
27
 Vide  Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against
35
the claim of a taxpayer for the production of a  Id. at 151, 95 S.Ct. 1504 (emphasis
letter from the Inland Revenue of the United supplied).
Kingdom to the associate commissioner of the
Internal Revenue Service (IRS), defendant 36
 Supra note 24.
asserted a claim of privilege, relying on the
affidavit of Lawrence B. Gibbs, Commissioner 37
of IRS, which stated that the production of the  545 F.Supp. 615, May 28, 1982.
letter "would impair the United States
38
government's ability to deal with the tax  237 F.Supp.2d 17.
authorities of foreign governments * * * by
breaching the historic confidentiality of 39
 5 U.S.C. 552(b)(5).
negotiations between the United States and
foreign sovereigns * * *." (Emphasis supplied) 40
The U.S. court therein ruled thus: "Given the  CIEL v. Office of U.S. Trade Representative,
context in which the letter in question was 237 F.Supp.2d 17. Vide Department of the
written, it is reasonable to conclude that frank Interior and Bureau of Indian Affairs v.
and honest expression of views on the treaty Klamath Water Users Protective Association,
language in issue were expressed, views that 532 U.S. 1, 121 S.Ct. 1060: "Exemption 5
ostensibly were expressed in the belief that protects from disclosure "inter-agency or
"historic confidentiality" would govern such intra-agency memorandums or letters which
expressions." (Underscoring supplied) would not be available by law to a party other
than an agency in litigation with the agency." 5
28
U.S.C. § 552(b)(5). To qualify, a document
 B. DuVal, Jr., Project Director, American Bar must thus satisfy two conditions: its source
Foundation. B.A., 1958, University of Virginia; must be a Government agency, and it must fall
J.D., 1961, Yale University, The Occasions Of within the ambit of a privilege against
Secrecy (47 U. Pitt. L. Rev. 579). discovery under judicial standards that would
govern litigation against the agency that holds
29
 Supra note 20 at 46. it."

30 41
 Ibid.  Supra note 20 at 46 (emphasis supplied).

31 42
 Supra note 19 at 189.  Petitioners expound as follows:

32
 Senate Select Committee on Presidential "It has been 18 years since the PMPF
Campaign Activities v. Nixon,  498 F.2d 725, v. Manglapus  case, and the world has
162 U.S.App.D.C. 183. changed considerably in that span of
time. The Berlin Wall fell in 1989,
33
 Vide Arnault v. Nazareno, 87 Phil. 29, 46 bringing down with it the Cold War
(1950): "In the present case the jurisdiction of and its attendant hostilities, and
the Senate, thru the Special Committee created ushering in a new era of globalization
by it, to investigate the Buenavista and and international economic
Tambobong estates deal is not challenged by cooperation as we know it. The
the petitioner; and we entertain no doubt as to Philippines now finds itself part of an
the Senate’s authority to do so and as to the international economic community
validity of Resolution No. 8 hereinabove as a member of both the ASEAN Free
quoted. The transaction involved a Trade Area (AFTA) and the World
questionable and allegedly unnecessary and Trade Organization (WTO).
irregular expenditure of no less than Domestically, this Honorable Court
has repeatedly upheld the people’s
right to information on matters of
 55
public concern, allowing ordinary  Entitled "A DECREE TO CONSOLIDATE AND
Filipino citizens to inquire into CODIFY ALL THE TARIFF AND CUSTOMS
various government actions such as LAWS OF THE PHILIPPINES," promulgated
GSIS loans to public officials, June 11, 1978. In light of the arguments of
settlement of Marcos ill-gotten petitioners, the most salient portion of the
wealth, and sale of reclaimed land to provisions cited by them is Section 402(1)
foreign corporations." (Rollo, p. 326) which states, in part: "For the purpose of
expanding foreign markets x x x in
43
 Rollo, pp. 50-51. establishing and maintaining better relations
between the Philippines and other countries,
44
the President is authorized from time to time:
 Supra note 18.

45
(1.1) To enter into trade agreements
 Supra note 19. with foreign governments or
instrumentalities thereof; x x x"
46
 433 Phil. 506, 534 (2002), citing PMPF v.
Manglapus, supra note 24 and Chavez v. PCGG, 56
 396 Phil. 623, 663 (2000).
supra note 18.
57
47
 G.R. No. 158088, July 6, 2005, 462 SCRA 622,
 In re Sealed Case (121 F.3d 729, 326 632-633.
U.S.App.D.C. 276 [1997]) states thus: "Nixon,
GSA, Sirica, and the other Nixon cases all 58
employed a balancing methodology in  Supra note 55.
analyzing whether, and in what circumstances,
59
the presidential communications privilege can  G.R. No. 169777, April 20, 2006, 488 SCRA 1,
be overcome. Under this methodology, these 44.
opinions balanced the public interests
served by protecting the President's 60
 Id. at 68.
confidentiality in a particular context with
those furthered by requiring 61
disclosure." (Emphasis supplied)  According to the records of this Court, the
judgment in Senate v. Ermita was entered on
48
July 21, 2006. Respondents filed their
 418 U.S. 683 (1974). Comment on May 15, 2006.
49
 Supra note 31. 62
 Revised Dissenting Opinion, p. 15 (Emphasis
and underscoring supplied).
50
 Supra note 47.
63
 450 Phil. 744 (2003), penned by then
51
 Supra note 32 Associate Justice Puno.

52 64
 Supra note 47.  Id., at 833 (Italics in the original, emphasis
and underscoring supplied)
53
 Rollo, p. 349.
65
 The Federalist, No. 75 (Italics in the original,
54
 For a small sampling, vide "Primer sa Japan- emphasis and underscoring supplied).
Philippine Economic Partnership Agreement"
66
(JPEPA) at www.bayan.ph/downloads/Primer  Article II Section 2 of the U.S. Constitution
%20on%20jpepa.pdf; "A RESOLUTION states: "He [the President] shall have
EXPRESSING SUPPORT TO THE CALLS FOR Power, by and with the Advice and
THE SENATE TO REJECT THE JAPAN- Consent of the Senate, to make Treaties,
PHILIPPINES PARTNERSHIP AGREEMENT provided two thirds of the Senators present
(JPEPA)" concur x x x". (Emphasis and underscoring
at www.nccphilippines.org/indexfiles/Page15 supplied) On the other hand, Article VII
62.htm; "JPEPA Ratification: Threat Section 21 of the Philippine Constitution
Economics" at http://www.aer.ph/index.php? states: "No treaty or international agreement
option/=com_content&task=view&id=632&Ite shall be valid and effective unless concurred in
mid=63 (all sites visited on February 2, 2008). by at least two-thirds of all the Members of the
Senate."
67
 Supra note 18. law…" Without a bubble of a doubt,
procedural due process of law lies at
68
 162 U.S. App.D.C. 183, 189. the foundation of a civilized society
which accords paramount
69
importance to justice and fairness. It
 365 F.3d 1108, 361 U.S.App.D.C. 183 (2004). has to be accorded the weight it
deserves.
70
 Supra note 47.
"This brings us to the other end of
71
 345 U.S. 1, 73 S.Ct. 528 (1953) the balancing pole. Petitioner avers
that the Court should give more
72
 Supra at note 63. weight to our national commitment
under the RP-US Extradition Treaty
73
to expedite the extradition to the
 Supra at note 64. United States of persons charged
with violation of some of its
74
 Supra note 19. laws. Petitioner also emphasizes the
need to defer to the judgment of the
75
 Supra at note 18. Executive on matters relating to
foreign affairs in order not to weaken
76
if not violate the principle of
 U.S. v. Nixon (418 U.S. 683) states: "Nowhere separation of powers.
in the Constitution x x x is there any explicit
reference to a privilege of confidentiality, yet
to the extent this interest relates to the "Considering that in the case at bar,
effective discharge of a President’s powers, it the extradition proceeding is only at
is constitutionally based." (Emphasis, italics its evaluation stage, the nature of the
and underscoring supplied) right being claimed by the private
respondent is nebulous and the
77
degree of prejudice he will allegedly
 In re Sealed Case (121 F.3d 729) states thus: suffer is weak, we accord greater
"Nixon, GSA, Sirica, and the other Nixon cases weight to the interests espoused by
all employed a balancing methodology in the government thru the petitioner
analyzing whether, and in what circumstances, Secretary of Justice. x x x (Emphasis,
the presidential communications privilege can italics, and underscoring supplied)
be overcome. Under this methodology, these
opinions balanced the public interests served 79
by protecting the President’s confidentiality in  Constitution, Art. XIII, Sec. 16.
a particular context with those furthered by
80
requiring disclosure." (Emphasis and  433 U.S. 425.
underscoring supplied)
81
 88 Stat. 1695.
78
 G.R. No. 139465, October 17, 2000, penned
by then Associate Justice Reynato S. Puno. 82
 G.R. No. 180643, March 25, 2008.

In that case, respondent Mark 83

 Emphasis supplied.
Jimenez claimed under the due
process clause the right to notice and
hearing in the extradition
proceedings against him. Consider The Lawphil Project - Arellano Law Foundation
the following enlightening
disquisition of the Court:

"In the case at bar, on one end of the DISSENTING OPINION

balancing pole is the private
respondent’s claim to due
PUNO, C.J.:
process predicated on Section 1,
Article III of the Constitution, which
provides that "No person shall be Some 22,000 years ago, the homo sapiens in the Tabon
deprived of life, liberty, or property caves of Palawan gathered food, hunted, and used stone
without due process of tools to survive. Advancing by thousands of years, the
early inhabitants of our land began to trade with In 2002, Japanese Prime Minister Junichiro Koizumi
neighboring countries. They exchanged wax, rattan, and introduced the "Initiative for Japan-ASEAN
pearls for porcelain, silk, and gold of China, Indo-China, Comprehensive Economic Partnership."5 President
and Malaysia.1 The 16th century then ushered in the Gloria Macapagal-Arroyo proposed the creation of a
galleon trade between Manila and Acapulco. The 1700s working group to study the feasibility of an economic
saw the genesis of the Filipino trading with the British, partnership with Japan.6 In October of that year, the
followed by the German and the French in the 1800s. Working Group on the Japan-Philippine Economic
The 1900s opened commerce between the Philippines Partnership Agreement (JPEPA) was formed, consisting
and the United States of America.2 Today, with the onset of representatives from concerned government
of globalization of the economy and the shrinking of the agencies of the Philippines and Japan. It was tasked to
world through technology, a far more complicated study the possible coverage and content of a mutually
international trade has become a matter of survival - beneficial economic partnership between the two
much like gathering food and hunting 22,000 years ago countries.71avvphi1
- to both countries and individuals.
On 28 May 2003, the Philippine Coordinating
The growth and development envisioned by Committee (PCC), composed of representatives from
globalization are premised on the proposition that the eighteen (18) government agencies, was created under
whole world economy would expand and become more Executive Order No. 213. It was tasked to negotiate with
efficient if barriers and protectionist policies are the Japanese representatives on the proposed JPEPA,
eliminated. Expansion will happen as each country conduct consultations with concerned government and
opens its doors to every other producer, and more private sector representatives, and draft a proposed
efficient producers start to compete successfully with framework for the JPEPA and its implementing
countries that produce at higher costs because of agreements.8
special protections that domestic laws and regulations
provide. Smaller countries and small enterprises will In June 2003, the Working Group signified that both
then concentrate their resources where they can be countries were ready to proceed to the next level of
most competitive. The logic is that ultimately, the discussions and thus concluded its work. The Joint
individual consumer will benefit and lower cost will Coordinating Team (JCT) for JPEPA, composed of
stimulate consumption, thus increasing trade and the representatives from concerned government agencies
production of goods and services where it is and the private sector, was then created.9
economically advantageous.3
On 11 December 2003, Prime Minister Koizumi and
Not a few world leaders, however, have cautioned President Macapagal-Arroyo agreed that the Japanese
against the downside of globalization. Pope John Paul II and Philippine governments should start negotiations
observed that "(g)lobalization has also worked to the on JPEPA in 2004 based on the discussions and outputs
detriment of the poor, tending to push poorer countries of the Working Group and the Joint Coordinating Team.
to the margin of international economic and political In February 2004, negotiations on JPEPA commenced.10
relations. Many Asian nations are unable to hold their
own in a global market economy." 4 Mahatma Gandhi’s
words, although referring to infant industrialization, are On 25 January 2005, petitioners Congressman Lorenzo
prescient and of similar import: "The world we must R. Tañ ada III and Congressman Mario Joyo Aguja jointly
strive to build needs to be based on the concept of filed House Resolution No. 551, "Directing the Special
genuine social equality…economic progress cannot Committee on Globalization to Conduct an Urgent
mean that few people charge ahead and more and more Inquiry in Aid of Legislation on Bilateral Trade and
are left behind." Investment Agreements that Government Has Been
Forging, with Far Reaching Impact on People’s Lives
and the Constitution But with Very Little Public Scrutiny
The key to resolving the decisive issue in the case at bar and Debate."11 In the course of the inquiry conducted by
turns on the proper framework of analysis. The instant the Special Committee on Globalization (Committee),
case involves primarily not an assessment of respondent DTI Undersecretary Thomas G. Aquino was
globalization and international trade or of the extent of requested to furnish the Committee a copy of the latest
executive privilege in this global arena, but a valuation draft of the JPEPA. Respondent Undersecretary Aquino
of the right of the individual and his representatives in was the Chairperson of the PCC. He did not accede to
Congress to participate in economic governance. the request.12
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 On 10 May 2005, Congressman Herminio G. Teves, as
those who are powerless and vulnerable in the margins Chairperson of the Special Committee on Globalization,
of society. wrote to respondent Executive Secretary Eduardo
Ermita, requesting that the Committee be furnished all
documents on the JPEPA, including the latest drafts of
First, the facts.
the agreement, the requests and the offers.13 Executive restrain respondents from concluding the JPEPA
Secretary Ermita wrote Congressman Teves on 23 June negotiations, signing the JPEPA, and transmitting it to
2005, informing him that the DFA would be unable to the President until said documents have been furnished
furnish the Committee all documents on the JPEPA, the petitioners.
since the proposed agreement "has been a work in
progress for about three years." He also said that a copy On 17 May 2006, respondents filed their Comment.
of the draft agreement would be forwarded to the Petitioners filed their Reply on 5 September 2006.
Committee "as soon as the text thereof is settled and
complete."14
On 11 September 2006, a certified true copy of the full
text of the JPEPA signed by President Macapagal-Arroyo
On 1 July 2005, petitioner Congressman Aguja, as and Prime Minister Koizumi with annexes and the
member of the Committee, wrote NEDA Director- implementing agreement was posted on the website of
General Romulo Neri and respondent Tariff Commission the Department of Trade and Industry and made
Chairperson Abon to request copies of the latest text of accessible to the public.20 Despite the accessibility of the
the JPEPA. Respondent Chairperson Abon wrote signed full text of the JPEPA, petitioners reiterated in
petitioner Congressman Aguja on 12 July 2005 that the their Manifestation and Motion filed on 19 September
former did not have a copy of the document being 2007 their prayer that respondents furnish them copies
requested. He also stated that "the negotiation is still of the initial offers (of the Philippines and of Japan) of
ongoing" and that he was certain respondent the JPEPA, including all pertinent attachments and
Undersecretary Aquino would provide petitioner annexes thereto, and the final text of the JPEPA prior to
Congressman Aguja a copy "once the negotiation was signing by the President (the "subject JPEPA
completed."15 For its part, NEDA replied through documents").21
respondent Assistant Director-General Songco that
petitioner Congressman Aguja’s request had been
forwarded to the office of respondent Undersecretary I respectfully submit that the ponencia overlooks the
Aquino, who would be in the best position to respond to fact that it is the final text of the JPEPA prior to its
the request.16 signing by the President that petitioners seek to access
when the ponencia holds at the outset, viz:
In view of the failure to furnish the Committee the
requested document, the Committee resolved to Considering, however, that "[t]he principal relief
subpoena the records of the DTI with respect to the petitioners are praying for is the disclosure of the
JPEPA. However, House Speaker Jose de Venecia contents of the JPEPA prior to its finalization between
requested the Committee to hold the subpoena in the two States parties," (Reply to the Comment of the
abeyance, as he wanted to secure first the consent of Solicitor General, rollo, p. 319 [underscoring supplied])
President Macapagal-Arroyo to furnish the Committee a public disclosure of the text of the JPEPA after its
copy of the JPEPA.17 signing by the President, during the pendency of the
present petition, has been largely rendered moot and
academic.
On 25 October 2005, petitioner Congressman Aguja, as
member of the Committee, wrote to the individual
members of the PCC, reiterating the Committee’s x x x           x x x          x x x
request for an update on the status of the JPEPA
negotiations, the timetable for the conclusion and The text of the JPEPA having been made accessible to
signing of the agreement, and a copy of the latest the public, the petition has become moot and academic
working draft of the JPEPA.18 None of the members to the extent that it seeks the disclosure of the "full text"
provided the Committee the requested JPEPA draft. In thereof.22 (emphasis supplied)
his letter dated 2 November 2005, respondent
Undersecretary Aquino replied that the Committee Thus, insofar as petitioners’ access to the final text of
would be provided the latest draft of the agreement the JPEPA prior to signing by the President is
"once the negotiations are completed and as soon as a concerned, the ponencia failed to include the same
thorough legal review of the proposed agreement has among the issues for the Court to resolve.
been conducted."19
The issues for resolution in the case at bar are
As the Committee has not secured a copy of the full text substantive and procedural, viz:
of the JPEPA and its attachments and annexes despite
the Committee’s many requests, petitioners filed the
instant Urgent Petition for Mandamus and Prohibition I. Do petitioners have standing to bring this
on 9 December 2005. They pray that the Court (1) order action for mandamus in their capacity as
respondents to provide them the full text of the JPEPA, citizens of the Republic, taxpayers and
including the Philippine and Japanese offers and all members of Congress?
pertinent attachments and annexes thereto; and (2)
 II. Does the Court have jurisdiction over the even exclusivity in foreign affairs in the U.S. 25 and in the
instant petition? Philippines.26 They also cite People’s Movement for
Press Freedom (PMPF) v. Manglapus, the only
III. Do petitioners have a right of access to the Philippine case wherein the Court, in an unpublished
documents and information being requested Resolution, had occasion to rule on the issue of access to
in relation to the JPEPA? information on treaty negotiations. PMPF v. Manglapus
extensively quoted Curtiss-Wright, viz:
IV. Will petitioners’ right to effective
participation in economic decision-making be In this vast external realm, with its important,
violated by the deferral of the public complicated, delicate and manifold problems, the
disclosure of the requested documents until President alone has the power to speak or listen as a
such time that the JPEPA has been concluded representative of the nation. He makes treaties with the
and signed by the President? 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
I shall focus on the jugular issue of whether or not invade it. As Marshall said in his great argument of
petitioners have a right of access to the subject JPEPA March 7, 1800, in the House of Representatives, ‘The
documents. Let me first take up petitioners’ demand for President is the sole organ of the nation in its external
these documents as members of the House of relations, and its sole representative with foreign
Representatives. nations.’ Annals, 6th Cong., col. 613. The Senate
Committee on Foreign Relations at a very early day in
I. The context: the question of access our history (February 15, 1816), reported to the Senate,
of the members of the House of Representatives among other things, as follows:
to the subject JPEPA documents is raised
in relation to international trade agreement ‘The President is the constitutional representative of
negotiations the United States with regard to foreign nations. He
manages our concerns with foreign nations and must
In demanding the subject JPEPA documents, petitioners necessarily be most competent to determine when,
suing as members of the House of Representatives how, and upon what subjects negotiation may be urged
invoke their power over foreign trade under Article VI, with the greatest prospect of success. For his conduct he
Section 28 (2) of the 1987 Constitution which provides, is responsible to the Constitution. The committee
viz: considers this responsibility the surest pledge for the
faithful discharge of his duty. They think the
Sec. 28 (2). The Congress may, by law, authorize the interference of the Senate in the direction of foreign
President to fix within specified limits, and subject to negotiations calculated to diminish that responsibility
such limitations and restrictions as it may impose, tariff and thereby to impair the best security for the national
rates, import and export quotas, tonnage and wharfage safety. The nature of transactions with foreign nations,
dues, and other duties or imposts within the framework moreover, requires caution and unity of design, and
of the national development program of the their success frequently depends on secrecy and
Government. (emphasis supplied) dispatch.’ 8 U.S. Sen. Reports Comm. on Foreign
Relations, p. 24.
Respondents, on the other hand, deny petitioners’
demand for information by contending that the It is important to bear in mind that we are here dealing
President is the sole organ of the nation in external not alone with an authority vested in the President by
relations and has sole authority in the negotiation of a an exertion of legislative power, but with such an
treaty; hence, petitioners as members of the House of authority plus the very delicate, plenary and exclusive
Representatives cannot have access to the subject power of the President as the sole organ of the federal
JPEPA documents.23 On closer examination, government in the field of international relations - a
respondents’ contention can be reduced into two power which does not require as a basis for its exercise
claims: (1) the executive has sole authority in treaty an act of Congress, but which, of course, like every other
negotiations, hence, the House of Representatives has governmental power, must be exercised in
no power in relation to treaty negotiations; and (2) the subordination to the applicable provisions of the
information and documents used by the executive in Constitution. It is quite apparent that if, in the
treaty negotiations are confidential. maintenance of our international relations,
embarrassment -perhaps serious embarrassment- is to
be avoided and success for our aims achieved,
To buttress their contention, which the ponencia congressional legislation which is to be made effective
upholds, respondents rely on United States v. Curtiss- through negotiation and inquiry within the
Wright Export Corporation,24 a case that has become a international field must often accord to the President a
classic authority on recognizing executive primacy or degree of discretion and freedom from statutory
restriction which would not be admissible were A. Negotiation of trade agreements:
domestic affairs alone involved. Moreover, he, not the question of power allocation between
Congress, has the better opportunity of knowing the the executive and Congress in U.S. jurisdiction
conditions which prevail in foreign countries, and
especially is this true in time of war. He has his The U.S. constitution is a good place to start in
confidential sources of information. He has his agents in understanding the allocation of power over
the form of diplomatic, consular and other officials. international trade agreements between the executive
Secrecy in respect of information gathered by them may and the legislative branches of government.
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 Article II of the U.S. Constitution grants the President
request to lay before the House of Representatives the the power to make treaties, but only with the approval
instructions, correspondence and documents relating to of a super-majority of the Senate.31 Under Article I,
the negotiation of the Jay Treaty - a refusal the wisdom Congress has the power to regulate foreign
of which was recognized by the House itself and has trade,32 including the power to "lay and collect Taxes,
never since been doubted.27 (emphasis supplied) Duties, Imposts and Excises."33

In examining the validity of respondents’ contention While the drafters of the U.S. Constitution discussed the
and the ponencia’s affirmation thereof, that the commerce power and the power to make
executive has sole authority in treaty negotiations, and treaties,34 there is scant information on how they
that information pertaining to treaty negotiations is intended to allocate the powers of foreign commerce
confidential, let me begin by tracing respondents’ and between the political branches of government. 35 "The
the ponencia’s steps back to U.S. jurisdiction as they well-recognized utility of Congressional involvement in
heavily rely on Curtiss-Wright, which was quoted in treaty and international agreement negotiation applies
PMPF v. Manglapus, for their position. 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
In the U.S., there is a long-standing debate on the locus authority to Congress to regulate commerce with
of the primary or even exclusive power over foreign foreign nations." (emphasis supplied)36
affairs.28 Ironically, while Curtiss-Wright is considered a
most influential decision on asserting presidential
primacy in foreign affairs, the issue in that case was the The drafters of the Constitution gave the President
validity of Congress’ delegation of its foreign affairs power to negotiate because of the need to demonstrate
power to the President; President Franklin D. Roosevelt clear leadership and a unified front when dealing with
ordered an embargo on ammunition sales to two South other nations.37 The Senate was given the power to
American countries in execution of a Joint Resolution of ratify treaties because, as the more "contemplative" arm
Congress. Towards the end of the ponencia, Justice of the legislature, it was less subject to short-term
Sutherland stated that "it was not within the power of interests than the House while still directly
the President to repeal the Joint Resolution." 29 The oft- representing the interests of the people.38 Congress was
quoted "sole organ" remark in Curtiss-Wright has not a granted the power to set tariffs and to regulate
few times been regarded in the U.S. as dictum in that commerce in order to check the powers of the
case.30 I make this observation to caution against over- Executive.39
reliance on Curtiss-Wright, but the case at bar is not the
occasion to delve into and settle the debate on the locus Thus, under the U.S. Constitution, the President has the
of the primary power in the broad area of foreign power to negotiate international treaties, but does not
affairs. In this vast landscape, I shall limit my view only have the constitutional authority to regulate commerce
to the subject matter of the instant case -- the openness or to determine tariffs and duties. On the other hand,
or secrecy of treaty negotiations and, more particularly, Congress has the power to regulate commerce with
of trade agreement negotiations. foreign nations, but does not have the power to
negotiate international agreements directly. 40 That
Aside from the fact that Curtiss-Wright did not involve there is a question on the demarcation of powers
treaty negotiations, much less trade agreement between the President and Congress in international
negotiations, that case was decided in 1936 or more trade agreements cannot escape the eye. Throughout
than 70 years ago. Since then, the dynamics of the U.S. history, answers to this question have come in
allocation of power over international trade agreements various permutations.
between the executive and the legislature has
dramatically changed. An appreciation of these In the late 1700s, after the U.S. established its
developments would provide a useful backdrop in independence, it had a weak military and relied on
resolving the issue of access to the subject JPEPA trade policies to maintain its independence and guard
documents. its national security through restriction of imports or
exports with offending great powers.41 Congress
implemented these trade policies through nations.61 But while the scope of the powers granted to
legislation42 and ratification of commercial treaties the President was broader, the extent of the grant was
negotiated by the limited. Unlike in the 1934 Act, Congress did not give
the President the authority to enact international trade
President.43 This continued in the 1800s – the President agreement by a simple proclamation.62 Instead, the
negotiated treaties, including trade treaties, and President had to seek congressional approval. 63 To
secured the requisite Senate concurrence. 44 facilitate approval, the fast track mechanism put in
place procedures for congressional review of the
agreement during the negotiation process. 64 The most
But beginning in the 1920s, Congress began to reassert significant feature of the fast track procedure was that
its power over the development of international trade Congress could only approve or disapprove, but not
policy.45 It began passing protectionist legislation to modify, the text of the agreement. 65 This mechanism
respond to pressure from domestic industries and gave the President greater credibility when negotiating
agriculture.46 In 1930, Congress passed the Smoot- international agreements, because other countries
Hawley Tariff Act of 1930,47 which increased tariffs to knew that the agreements would not be subject to
an average of fifty-three percent and increased the prolonged debates and drastic changes by Congress.66
number of products subject to duties. 48 In retaliation,
other countries quickly subjected the U.S. to similar
tariffs. In the mid-1930s, Congress realized that its In the 1980s, legislation made the fast track procedure
setting of tariffs was at best inefficient 49 and thus passed increasingly complicated.67 The Trade and Tariff Act of
the Reciprocal Trade Agreement Act of 1934 (the 1934 1984 added a requirement that the President consult
Act).50 with the House Ways and Means Committee and the
Senate Finance Committee before giving notice of his
intent to sign the agreement so that the committees
The 1934 Act allowed the President to reduce tariffs could disapprove the negotiations before formal talks
within guidelines prescribed by Congress.51 It permitted even began.68 Congress effectively retained a bigger
the President to issue a Presidential Proclamation portion of its constitutional authority over regulation of
enacting international agreements that lowered tariffs international trade.69 In 1988, Congress passed the
without any further action by Congress.52 Needless to Omnibus Trade and Competitiveness Act of 1988.70 The
state, the 1934 Act was a significant delegation of Act further "enhance(d) Congress’ power in two
Congress’ power to set tariffs. But the Act had a limited respects: by reserving for either House the power to
lifespan and, with each extension of the Act, Congress block extension of the Fast Track authority past the
issued more guidelines and restrictions on the powers it original expiration date and for both houses to derail
had delegated to the President.53 already authorized agreements from the Fast
Track."71 Aside from the House Ways and Means and
The modern period saw a drastic alteration in the U.S. Senate Finance Committees, the House Rules Committee
approach to negotiating trade agreements. 54 Instead of was given the power to "derail" an extension of the fast
making additional changes to the 1934 Act, Congress track.72 The Act extended the fast-track for only three
passed the Trade Act of 1974 (the 1974 Act), which years.73
created modern procedures called the "fast
track."55 Fast track legislation was enacted to address The fast track legislation saw its end in 1994.74 For the
conflicts between the President and Congress.56 These first time after fifty years, the executive branch was
conflicts stemmed from the presidential exercise of the without authority to enter into international trade
executive trade agreement authority and the ordinary agreements except through treaties subject to Senate
congressional approval procedures, which resulted in approval. Despite persistent attempts by President
ongoing amendments and a slower, less reliable trade William J. Clinton and President George H.W. Bush to
negotiation process.57 Fast track procedures were renew the fast track,75 Congress refused to grant the
intended as a "consultative" solution to foreign trade executive branch the power to enter directly into
disputes between Congress and the President. 58 It was international trade agreements from 1994 until August
designed to benefit both branches of government by 2002.76
allowing congressional input into trade agreement
negotiations while enabling "the President to guarantee
to international trading partners that Congress will Finally, with the dawn of the new millennium, Congress
decide on the final agreement promptly." 59 enacted the Bipartisan Trade Promotion Authority Act
of 2002 (Trade Act of 2002),77 which provided for a
revised fast-track procedure under the new label, "trade
The 1974 Act broadened the scope of powers delegated promotion authority (TPA)." 78 The Trade Act of 2002
to the President who was given the authority to make was billed as "establish(ing) a partnership of equals. It
international trade agreements affecting both tariff and recognizes that Congress’ constitutional authority to
non-tariff barriers.60 With the 1974 Act, Congress regulate foreign trade and the President’s constitutional
delegated to the President both the power to set tariffs authority to negotiate with foreign nations are
and the power to regulate commerce with foreign interdependent. It requires a working relationship that
reflects that interdependence."79 (emphasis supplied) negotiations are scheduled to begin, the specific
The purpose of the Act was to attempt again to resolve objectives of the negotiations, and whether the
the ambiguity in the constitutional separation of powers President seeks to create a new agreement or modify an
in the area of international trade.80 existing agreement.97 Six months prior to signing an
agreement, the President must "send a report to
The Trade Act of 2002 was intended for Congress to Congress . . . that lays out what he plans to do with
retain its constitutional authority over foreign trade respect to (U.S.) trade laws."98 At that time, Congress
while allowing performance by the President of the role reviews the proposed agreement. The Trade Act of 2002
of negotiatior,81 but with Congress keeping a closer "provides for a resolution process where Congress can
watch on the President.82 Aside from providing strict specifically find that the proposed changes are
negotiating objectives to the President, Congress ‘inconsistent’ with the negotiating objectives." 99
reserved the right to veto a negotiated agreement. 83 The
President’s power is limited by specific guidelines and In defending the complexity of the Trade Act of 2002,
concerns identified by Congress and his negotiations Congress points out that "the negotiating objectives and
may address only the issues identified by Congress in procedures . . . represent a very careful substantive and
the statute and must follow specific political balance on some very complex and difficult
guidelines.84 Authorization to negotiate is given if the issues such as investment, labor and the environment,
President determines that foreign trade is "unduly and the relationship between Congress and the
burden(ed) and restrict(ed)" and "the purposes, Executive branch during international trade
policies, priorities, and objectives of (the Trade Act of negotiations."100 Without doubt, the Act ultimately
2002) will be promoted" by the negotiations. 85 The Act places much more stringent limitations on the
provides five additional limitations on the negotiation President’s ability to negotiate effectively with foreign
of agreements regarding tariff barriers. 86 Negotiation of nations than previous fast-track legislation
agreements regarding non-tariff barriers is subject to did.101 Document1zzF106300298861
the objectives, limitations and requirement of
consultation and notice provided in the Act. 87 In Given this slice of U.S. history showing the allocation of
addition, the President must notify Congress prior to power over international trade agreement negotiations
initiating negotiations, in order for the final negotiated between the executive and Congress in U.S. jurisdiction,
agreement to be eligible for TPA.88 The President is also it will be turning somersaults with history to contend
required to consult Congress regarding the negotiations that the President is the sole organ for external
"before and after submission of the notice." 89 The Act relations. The "sole organ" remark in Curtiss-Wright
also requires the President to make specific simply does not apply to the negotiation of international
determinations and special consultations with Congress trade agreements in the U.S. where Congress is allowed,
in the areas of agriculture and textiles. 90 at the very least, to indirectly participate in trade
negotiations through the setting of statutory limits to
As oversight to ensure that the President follows the negotiating objectives and procedures, and to almost
guidelines laid out by Congress, the Trade Act of 2002 directly negotiate through the Congressional Oversight
created a Congressional Oversight Group (COG) Group.
composed of members of Congress, in order to provide
direct participation and oversight to trade negotiations Let me now discuss the allocation of power over
initiated under the Act.91 The COG membership includes international trade agreements between the Executive
four members of the House Committee on Ways and and Congress in Philippine jurisdiction.
Means, four members of the Senate Committee on
Finance, and members of the committees of the House
and the Senate, "which would have . . . jurisdiction over B. Negotiation of trade agreements:
provisions of law affected by a (sic) trade agreement the question of power allocation between
negotiations . . . ."92 Each member of the COG is an the Executive and Congress in Philippine jurisdiction
official advisor to the U.S. delegation in negotiations for
any trade agreement under the Act.93 The COG was In their Reply, petitioners refute respondents’
created "to provide an additional consultative contention that the President is the sole organ of the
mechanism for Members of Congress and to provide nation in its external relations and has exclusive
advice to the (United States Trade Representative) on authority in treaty negotiation by asserting that
trade negotiations."94 Congress has the power to legislate on matters dealing
with foreign trade; hence, they should have access to
To enter into an international agreement using the TPA the subject JPEPA documents.
procedures, the President must first consult with the
Senate Committee on Finance, the House Committee on Specifically, as aforementioned, petitioners as members
Ways and Means, and the COG.95 He must then provide of the House of Representatives point to Article VI,
written notice to Congress of his intention to enter into Section 28 (2) of the 1987 Constitution, as basis of their
negotiations.96 The notice must include the date that power over foreign trade. It provides, viz:
Sec. 28 (2). The Congress may, by law, authorize the (1) To enter into trade agreements
President to fix within specified limits, and subject to with foreign governments or
such limitations and restrictions as it may impose, tariff instrumentalities thereof; and
rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework (2) To modify import duties
of the national development program of the (including any necessary change in
Government. (emphasis supplied) classification) and other import
restrictions, as are required or
They contend that, pursuant to this provision, the appropriate to carry out and
Executive’s authority to enter into international trade promote foreign trade with other
agreements is a legislative power delegated to the countries:…
President through Sections 401 and 402 of Presidential
Decree No. 1464 or the Tariff and Customs Code of the b. The duties and other import restrictions as
Philippines, viz: modified in subsection "a" above, shall apply
to articles which are the growth, produce or
Sec. 401. Flexible Clause. — manufacture of the specific country, whether
imported directly or indirectly, with which the
a. In the interest of national economy, general welfare Philippines has entered into a trade
and/or national security, and subject to the limitations agreement: xxx
herein prescribed, the President, upon recommendation
of the National Economic and Development Authority c. Nothing in this section shall be construed to
(hereinafter referred to as NEDA), is hereby give any authority to cancel or reduce in any
empowered: (1) to increase, reduce or remove existing manner any of the indebtedness of any foreign
protective rates of import duty (including any necessary country to the Philippines or any claim of the
change in classification). The existing rates may be Philippines against any foreign country.
increased or decreased to any level, in one or several
stages but in no case shall the increased rate of import d. Before any trade agreement is concluded
duty be higher than a maximum of one hundred (100) with any foreign government or
per cent ad valorem; (2) to establish import quota or to instrumentality thereof, reasonable public
ban imports of any commodity, as may be necessary; notice of the intention to negotiate an
and (3) to impose an additional duty on all imports not agreement with such government or
exceeding ten (10%) percent ad valorem whenever instrumentality shall be given in order that
necessary; any interested person may have an
opportunity to present his views to the
x x x           x x x          x x x Commission which shall seek information and
advice from the Department of Agriculture,
c. The power of the President to increase or decrease Department of Natural Resources, Department
rates of import duty within the limits fixed in subsection of Trade and Industry, Department of
"a" shall include the authority to modify the form of Tourism, the Central Bank of the Philippines,
duty. In modifying the form of duty, the corresponding the Department of Foreign Affairs, the Board
ad valorem or specific equivalents of the duty with of Investments and from such other sources as
respect to imports from the principal competing foreign it may deem appropriate.102 (emphasis
country for the most recent representative period shall supplied)
be used as bases.
Indeed, it is indubitable that Article VI, Section 28 (2) of
x x x           x x x          x x x the 1987 Constitution, vests Congress with power over
foreign trade, at least with respect to the fixing of tariff
rates, import and export quotas, tonnage and wharfage
Sec. 402. Promotion of Foreign Trade. — dues and other duties and imposts, similar to the power
of Congress under the U.S. Constitution. This grant of
a. For the purpose of expanding foreign power to the Philippine Congress is not new in the 1987
markets for Philippine products as a means of Constitution. The 1935 Constitution, in almost similar
assistance in the economic development of the terms, provides for the same power under Article VI,
country, in overcoming domestic Section 22(2), viz:
unemployment, in increasing the purchasing
power of the Philippine peso, and in Sec. 22(2). The Congress may by law authorize the
establishing and maintaining better relations President, subject to such limitations and restrictions as
between the Philippines and other countries, it may impose to fix, within specified limits, tariff rates,
the President, is authorized from time to time:
import and export quotas, and tonnage and wharfage Constitution."110 Congress’ power over foreign trade is
dues.103 (emphasis supplied) one such provision that must be considered in
interpreting the treaty-making power of the President.
Pursuant to this provision, Congress enacted Republic
Act. No. 1937, entitled, "An Act to Revise and Codify the Moreover, while Curtiss-Wright admonished that "…if,
Tariff and Customs Laws of the Philippines," in 1957. in the maintenance of our international relations,
Section 402 of the Act is the precursor of Section 402 of embarrassment -perhaps serious embarrassment- is to
the Tariff and Customs Code of the Philippines of be avoided and success for our aims achieved,
1978,104 which petitioners cite. In almost identical congressional legislation which is to be made effective
words, these sections provide for the authority of the through negotiation and inquiry within the
President to "enter into trade agreements with foreign international field must often accord to the President a
governments or instrumentalities thereof." 105 Section degree of discretion and freedom from statutory
401 of both the Tariff and Customs Code of 1978 and restriction which would not be admissible were
Republic Act No. 1937 also provide for the power of the domestic affairs alone involved,"111 the 1987
President to, among others, increase or reduce rates of Constitution itself, reiterating the 1935 and the 1973
import duty.106 Constitutions, provides that Congress may, by law,
authorize the President to fix tariff rates, import and
The provision in Article VI, Section 22(2) of the 1935 export quotas, tonnage and wharfage dues within
Constitution --to authorize the President, by law, to fix, specified limits, and subject to such limitations and
within specified limits, tariff rates, import and export restrictions as Congress may impose. One cannot simply
quotas, and tonnage and wharfage dues -- was inspired turn a blind eye on Congress’ foreign trade power
by a desire to enable the nation, through the President, granted by the Constitution in interpreting the power of
to carry out a unified national economic program and to the Executive to negotiate international trade
administer the laws of the country to the end that its agreements.
economic interests would be adequately
protected.107 This intention to implement a unified Turning to the case at bar, Congress undoubtedly has
national economic program was made explicit in the power over the subject matter of the JPEPA,112 as this
1987 Constitution with the addition of the phrase agreement touches on the fixing of "tariff rates, import
"within the framework of the national development and export quotas, tonnage and wharfage dues, and
program of the government," upon motion of other duties or imposts." Congress can, in fact, revoke or
Commissioner Christian Monsod. He explained the amend the power of the President to fix these as
rationale for adding the phrase, viz: authorized by law or the Tariff and Customs Code of
1978. Congress can legislate and conduct an inquiry in
The reason I am proposing this insertion is that an aid of legislation on this subject matter, as it did
economic program has to be internally consistent. pursuant to House Resolution No. 551. The purpose of
While it is directory to the President – and it says the legislative inquiry in which the subject JPEPA
"within specified limits" on line 2 – there are situations documents are needed is to aid legislation, which is
where the limits prescribed to the President might, in different from the purpose of the negotiations
fact be distortive of the economic program. 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
x x x           x x x          x x x inquiry in aid of legislation and the power of the
executive to negotiate a treaty should not collide with
We are not taking away any power from Congress. We each other.
are just saying that as a frame of reference, the
authority and the limits prescribed should be consistent It is worth noting that petitioner members of the House
with the economic program of government which the of Representatives are not seeking to directly
legislature itself approves.108 (emphasis supplied) participate in the negotiation of the JPEPA, nor are they
indirectly interfering with the Executive’s negotiation of
In sum, while provision was made for granting the JPEPA. They seek access to the subject JPEPA
authority to the President with respect to the fixing of documents for purposes of their inquiry, in aid of
tariffs, import and export quotas, and tonnage and legislation, on the forging of bilateral trade and
wharfage dues, the power of Congress over foreign investment agreements with minimal public scrutiny
trade, and its authority to delegate the same to the and debate, as evinced in the title of House Resolution
President by law, has consistently been constitutionally No. 551, "Directing the Special Committee on
recognized.109 Even Curtiss-Wright, which respondents Globalization to Conduct an Urgent Inquiry in Aid of
and the ponencia rely on, make a qualification that the Legislation on Bilateral Trade and Investment
foreign relations power of the President, "like every Agreements that Government Has Been Forging, with
other governmental power, must be exercised in Far Reaching Impact on People’s Lives and the
subordination to the applicable provisions of the
Constitution But with Very Little Public Scrutiny and matters.118 In Chavez v. PCGG,119 the Court also
Debate."113 In relation to this, the ponencia states, viz: recognized the confidentiality of information on inter-
government exchanges prior to the conclusion of
Whether it can accurately be said that the Filipino treaties and executive agreements subject to reasonable
people were not involved in the JPEPA negotiations is a safeguards on the national interest.120 It also reiterated
question of fact which this Court need not resolve. the privilege against disclosure of state secrets bearing
Suffice it to state that respondents had presented on diplomatic matters, as held in Almonte. Citing
documents purporting to show that public consultations Chavez, Senate v. Ermita also acknowledged the states
were conducted on the JPEPA. Parenthetically, secrets privilege bearing on diplomatic matters. In
petitioners consider these "alleged consultations" as PMPF v. Manglapus, the Court upheld the confidentiality
"woefully selective and inadequate."114 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
Precisely, the inquiry in aid of legislation under House Agreement to give them access to the negotiations, to
Resolution No. 551 seeks to investigate the sufficiency treaty items already agreed upon, and to the R.P. and
of public scrutiny and debate on the JPEPA, considering U.S. positions on items that were still being contested.
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, In determining the applicability of the diplomatic
whether directly or indirectly, as the negotiations have secrets privilege to the case at bar, I reiterate the
already been concluded. Be that as it may, the earlier primordial principle in Senate v. Ermita that a claim of
discussion on the allocation of international trade executive privilege may be valid or not depending on
powers between the Executive and Congress in U.S. the ground invoked to justify it and the context in which
jurisdiction has shown that it is not anathema to the it is made. Thus, even while Almonte and Senate v.
preservation of the treaty-making powers of the Ermita both recognized the state secrets privilege over
President for Congress to indirectly participate in trade diplomatic matters, and Chavez and PMPF v. Manglapus
agreement negotiations. both acknowledged the confidentiality of inter-
government exchanges during treaty negotiations, the
validity of the claim of the diplomatic secrets privilege
Let us now proceed to respondents’ argument that the over the subject JPEPA documents shall be examined
subject JPEPA documents are covered by the diplomatic under the particular circumstances of the case at bar. I
secrets privilege and should therefore be withheld from especially take note of the fact that unlike PMPF v.
Congress. In so proceeding, it is important to bear in Manglapus, which involved a request for access to
mind the interdependence of the power of Congress information during negotiations of a military treaty, the
over foreign trade and the power of the executive over case at bar involves a request for information after the
treaty negotiations. conclusion of negotiations of an international trade
agreement. Bearing this context in mind, let me now
C. The power of Congress to conduct inquiry delve into the merits of the invocation of executive
in aid of legislation on foreign trade privilege.
vis-à -vis executive privilege
Almonte, Chavez, Senate v. Ermita, and PMPF v.
115
 the Court defined "executive privilege" as the right of Manglapus did not discuss the manner of invoking the
the President and high-level executive branch officials diplomatic secrets privilege. For the proper invocation
to withhold information from Congress, the courts, and of this privilege, U.S. v. Reynolds 121 is instructive. This
the public. case involved the military secrets privilege, which can
be analogized to the diplomatic secrets privilege,
In the U.S., it is recognized that there are at least four insofar as they are both based on the nature and the
kinds of executive privilege: (1) military and state content of the information withheld. I submit that we
secrets, (2) presidential communications, (3) should follow the procedure laid down in Reynolds to
deliberative process, and (4) law enforcement determine whether the diplomatic secrets privilege is
privileges.116 In the case at bar, respondents invoke the properly invoked, viz:
state secrets privilege covering diplomatic or foreign
relations and the deliberative process privilege. Let me The privilege belongs to the Government and must be
first take up the diplomatic secrets privilege. asserted by it; it can neither be claimed nor waived by a
private party. It is not to be lightly invoked. There must
1. Diplomatic secrets privilege be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after
actual personal consideration by that officer. The court
In Almonte v. Vasquez,117 the Court recognized a itself must determine whether the circumstances are
common law governmental privilege against disclosure, appropriate for the claim of privilege, and yet do so
with respect to state secrets bearing on diplomatic
without forcing a disclosure of the very thing the Very truly yours,
privilege is designed to protect.
(Signed)
x x x           x x x          x x x Eduardo R. Ermita
Executive Secretary"123
It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable Respondents’ Comment further warned of the danger of
danger that compulsion of the evidence will expose premature disclosure of the subject JPEPA documents,
military matters which, in the interest of national viz:
security, should not be divulged. When this is the case,
the occasion for the privilege is appropriate, and the … At the time when the Committee was requesting the
court should not jeopardize the security which the copies of such documents, the negotiations were
privilege is meant to protect by insisting upon an ongoing as they are still now and the text of the
examination of the evidence, even by the judge alone, in proposed JPEPA is still uncertain and subject to change.
chambers.122 (emphasis supplied) (footnotes omitted) Considering the status and nature of such documents
then and now, these are evidently covered by executive
In the case at bar, the reasons for nondisclosure of the privilege…
subject JPEPA documents are stated in the 23 June 2005
letter of respondent Secretary Ermita to Congressman Practical and strategic considerations likewise counsel
Teves, Chairperson of the House Special Committee on against the disclosure of the "rolling texts" which may
Globalization, viz: undergo radical change or portions of which may be
totally abandoned. Furthermore, the negotiations of the
"Dear Congressman Teves, representatives of the Philippines as well as of Japan
must be allowed to explore alternatives in the course of
x x x           x x x          x x x the negotiations…124

In its letter dated 15 June 2005 (copy enclosed), DFA The reasons cited by respondents for refusing to furnish
explains that the Committee’s request to be furnished petitioners the subject JPEPA documents demonstrate
all documents on the JPEPA may be difficult to that these documents contain matters that should not
accomplish at this time, since the proposed Agreement be disclosed, lest the ongoing negotiations be
has been a work in progress for about three years. A hampered. As respondents further explain in their
copy of the draft JPEPA will however be forwarded to Comment, if premature disclosure is made while
the Committee as soon as the text thereof is settled and negotiations are ongoing, the Philippine panel and the
complete. (emphasis supplied) President would be "hampered and embarrassed by
criticisms or comments from persons with inadequate
knowledge of the nuances of treaty negotiations or
In the meantime, DFA submits copies of the following worse by publicity seekers or idle kibitzers." 125
documents:
Without ruling on the confidentiality of the subject
· Joint Statement on the JPEPA issued JPEPA documents during negotiations (as this is no
in December 2002 longer in issue), I submit that the reasons provided by
respondents for invoking the diplomatic secrets
· JPEPA Joint Coordinating Team privilege while the JPEPA negotiations were ongoing no
Report dated December 2003 longer hold now that the negotiations have been
concluded. That respondents were claiming
· Joint Announcement of the confidentiality of the subject JPEPA documents during --
Philippine President and the not after -- negotiations and providing reasons therefor
Japanese Prime Minister issued in is indubitable. The 23 June 2005 letter of respondent
December 2003 Secretary Ermita to Congressman Teves states that the
"proposed Agreement has been a work in progress for
about three years." Likewise, respondents’ Comment
· Joint Press Statement on the JPEPA states that "(a)t the time when the Committee was
issued in November 2004 requesting the copies of such documents, the
negotiations were ongoing as they are still now." Both
x x x           x x x          x x x statements show that the subject JPEPA documents
were being withheld from petitioners during and not
For your information. 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 With respondents’ failure to provide reasons for
been concluded. claiming the diplomatic secrets privilege after the
conclusion of negotiations, the inevitable conclusion is
In fact, respondent Secretary Ermita’s 23 June 2005 that respondents cannot withhold the subject JPEPA
letter states that a "copy of the draft JPEPA" as soon as documents.
"the text thereof is settled and complete" would be
forwarded to the Committee, which is precisely one of The contentions in the Concurring Opinion of Justice
the subject JPEPA documents, i.e., the final text of the Carpio that a State may wish to keep its offers
JPEPA prior to its signing by the President. Similarly, in "confidential even after the signing of the treaty because
his letter dated 2 November 2005, respondent it plans to negotiate similar treaties with other
Undersecretary Aquino replied that the Committee countries and it does not want its negotiating positions
would be provided the latest draft of the agreement known beforehand by such countries," and that "(i)f the
"once the negotiations are completed and as soon as a Philippines does not respect the confidentiality of the
thorough legal review of the proposed agreement has offers and counter-offers of its negotiating partner
been conducted."126 Both letters of Secretary Ermita and State, then other countries will be reluctant to negotiate
Undersecretary Aquino refer to the draft texts of the in a candid and frank manner with the
JPEPA that they would provide to the Committee once Philippines"129 are speculative and matters for
the negotiations and text are completed, and not to the respondents to show the Court. The same holds true as
final text of the JPEPA after it has been signed by the regards the assertion in the Separate Opinion of Justice
President. The discussion infra will show that in the Tinga that "with respect to the subject treaty, the
case of the North American Free Trade Agreement Government of the Philippines should expectedly heed
(NAFTA), the complete text of the agreement was Japan’s normal interest in preserving the confidentiality
released prior to its signing by the Presidents of the U.S., of the treaty negotiations and conduct itself accordingly
Canada and Mexico. Likewise, draft texts of the Free in the same manner that our Government expects the
Trade Area of the Americas (FTAA) have been made Japanese Government to observe the protocol of
accessible to the public. It is not a timeless absolute in confidentiality."130
foreign relations that the text of an international trade
agreement prior to its signing by the President should Respondents having failed in shielding the subject
not be made public. JPEPA documents with the diplomatic secrets privilege,
let us now proceed to determine whether they can keep
For a claim of diplomatic secrets privilege to succeed, it these documents secret under the deliberative process
is incumbent upon respondents to satisfy the Court that privilege, which is a distinct kind of executive privilege.
the disclosure of the subject JPEPA documents after the The Separate Opinion of Justice Tinga asserts, however,
negotiations have been concluded would prejudice our that while there is a distinction between the diplomatic
national interest, and that they should therefore be secrets privilege and the deliberative process privilege,
cloaked by the diplomatic secrets privilege. It is the task "they should be jointly considered if the question at
of the Executive to show the Court the reason for the hand, as in this case, involves such diplomatic
privilege in the context in which it is invoked, as correspondences related to treaty negotiations…Thus, it
required by Senate v. Ermita, just as the U.S. would not be enough to consider the question of
government did in Reynolds.127 Otherwise, the Court, privilege from only one of these two perspectives as
which has the duty to determine with finality whether both species of privilege should be ultimately weighed
the circumstances are appropriate for a claim of and applied in conjunction with each other."
privilege,128 will not have any basis for upholding or
rejecting respondents’ invocation of the privilege. The Indeed, the diplomatic character of the JPEPA
requirement to show the reason for the privilege is deliberations or negotiations and the subject JPEPA
especially important in the case at bar, considering that documents was considered in determining the
the subject JPEPA documents are part of trade applicability of the diplomatic secrets privilege in the
agreement negotiations, which involve the above discussion. But as respondents have failed in
interdependent powers of the Executive over treaty protecting the subject JPEPA documents with this kind
negotiations and the legislature over foreign trade, as of privilege that considers the diplomatic character of
recognized in both Philippine and U.S. jurisdictions. negotiations, the next question to consider is whether
Upon the Executive’s showing of the reason and another kind of privilege -- that does not hinge on the
circumstances for invoking the diplomatic secrets diplomatic nature of negotiations, but on the
privilege, the Court can then consider whether the deliberative status of information alone – can shield the
application of the privilege to the information or subject JPEPA documents.
document in dispute is warranted. As the Executive is
given the opportunity to show the applicability of the
privilege, there is a safeguard for protecting what 2. Deliberative process privilege
should rightfully be considered privileged information
to uphold national interest.
The "deliberative process privilege" was not literally properly chargeable to the responsible individual with
invoked in the 23 June 2005 letter of respondent power to decide and act.136 (emphasis supplied)
Secretary Ermita or in respondents’ Comment.
Nevertheless, Secretary Ermita’s statement that "the The Court also threw in public policy and public interest
Committee’s request to be furnished all documents on as bases for the deliberative process privilege, viz:
the JPEPA may be difficult to accomplish at this time,
since the proposed Agreement has been a work in
progress for about three years, (a) copy of the draft …Government from its nature has necessarily been
JPEPA will however be forwarded to the Committee as granted a certain freedom from control beyond that
soon as the text thereof is settled and complete," and given the citizen…There is a public policy involved in
respondents’ afore-quoted assertion of danger of this claim of privilege for this advisory opinion -the
premature disclosure131 in their Comment show policy of open, frank discussion between subordinate
reliance on the deliberative process privilege. and chief concerning administrative action. 137

In the U.S., it is settled jurisprudence that the x x x           x x x          x x x

deliberative process privilege justifies the government’s
withholding of documents and other materials that … Viewing this claim of privilege for the intra-agency
would reveal "advisory opinions, recommendations and advisory opinion in its entirety, we determine that the
deliberations comprising part of a process by which Government’s claim of privilege for the document is
governmental decisions and policies are well-founded. It would be definitely contrary to the
formulated."132 In 1958, the privilege was first public interest in our view for such an advisory opinion
recognized in a U.S. federal case, Kaiser Aluminum on governmental course of action to be produced by the
Chemical Corp. v. United States,133 in which the term United States under the coercion of a bar against
"executive privilege" was also originally used. production of any evidence in defense of this suit for
contract damages.138 (emphasis supplied)
Kaiser was a suit filed against the U.S. in the Federal
Court of Claims. Plaintiff Kaiser sought documents from The Court also held that the judicial branch, and not the
the General Services Administration in the context of an executive branch, is the final arbiter of whether the
action for breach of the most favored purchaser clause privilege should apply, contrary to the government’s
of a contract for the sale of war aluminum plants to assertion that the head of the relevant agency should be
plaintiff. The Court of Claims held that the production of allowed to assert the privilege unilaterally. 139
advisory opinion on intra-office policy in relation to the
sale of aluminum plants to plaintiff and to another Courts and scholars have identified three purposes 140 of
entity was contrary to public interest; thus, the U.S. the privilege: (1) to protect candid discussions within
must be allowed to claim the executive privilege of an agency;141 (2) to prevent public confusion from
nondisclosure. The Court sustained the following premature disclosure of agency opinions before the
justification of the government for withholding a agency has established a final policy;142 and (3) to
document: protect against confusing the issues and misleading the
public by dissemination of documents suggesting
The document . . . contains opinions that were rendered reasons and rationales for a course of action, when
to the Liquidator of War Assets by a member of his staff these were not in fact the ultimate reasons for the
concerning a proposed sale of aluminum plants. Those agency’s action.143
opinions do not necessarily reflect the views of, or
represent the position ultimately taken by, the Two requisites are essential for a valid assertion of the
Liquidator of War Assets. A disclosure of the contents of privilege: the material must be pre-decisional and
documents of this nature would tend to discourage the deliberative. To be "pre-decisional," a document must
staffs of Government agencies preparing such papers be generated before the adoption of an agency policy.
from giving complete and candid advice and would To be "deliberative," it must reflect the give-and-take of
thereby impede effective administration of the the consultative process.144 Both requirements stem
functions of such agencies.134 (emphasis supplied) from the privilege’s "ultimate purpose (which) ... is to
prevent injury to the quality of agency decisions" by
Thereupon, the Court etched out the classic justification allowing government officials freedom to debate
of the deliberative process privilege, 135 viz: alternative approaches in private.145 The deliberative
process privilege does not shield documents that simply
Free and open comments on the advantages and state or explain a decision the government has already
disadvantages of a proposed course of governmental made; nor does the privilege cover material that is
management would be adversely affected if the civil purely factual, unless the material is so inextricably
servant or executive assistant were compelled by intertwined with the deliberative sections of documents
publicity to bear the blame for errors or bad judgment that its disclosure would inevitably reveal the
government’s deliberations.146 There must also be a
formal assertion of the privilege by the head of the documents sought by petitioners: (1) the initial offers
department in control of the information based on his (of the Philippines and Japan) of the JPEPA, including all
actual personal consideration of the matter and an pertinent attachments and annexes thereto; and (2) the
explanation as to why the information sought falls final text of the JPEPA prior to the signing by the
within the scope of the privilege.147 President. The answer is in the negative.

Once the agency has shown that the material is both It is my considered view that the subject JPEPA
pre-decisional and deliberative, the material enjoys a documents do not come within the purview of the kind
qualified privilege that may be overcome by a sufficient of information which the deliberative process privilege
showing of need, as held in In re Sealed Case shields in order to promote frank and candid
(Espy).148 In general, courts balance the need for discussions and protect executive branch decision-
information against the harm that may result from making of the Philippine government. The initial offers
disclosure. Thus, "each time (the deliberative process are not in the nature of "advisory opinions,
privilege) is asserted, the district court must undertake recommendations and deliberations" 155 similar to those
a fresh balancing of the competing interests," taking submitted by the subordinate to the chief in a
into account factors such as "the relevance of the government agency, as in the seminal case of Kaiser.
evidence," "the availability of other evidence," "the The initial offer of the Philippines is not a document
seriousness of the litigation," "the role of the that offers alternative courses of action to an executive
government," and the "possibility of future timidity by official to aid in the decision-making of the latter, but is
government employees." 149 These rulings were made in instead a proposal to another government, the Japanese
the context of the refusal of the White House to submit government, to institute negotiations. The end in view
some documents sought by a grand jury subpoena. 150 of these negotiations is not a decision or policy of the
Philippine government, but a joint decision or
In our jurisdiction, the Court has had no occasion to agreement between the Philippine and the Japanese
recognize and rule on the applicability of the governments.
deliberative process privilege. In the recent case Neri v.
Senate Committees,151 the Court recognized the claim of Likewise, the final text of the JPEPA prior to signing by
the presidential communications privilege, which is the President is not in the nature of an advice or
closely associated with the deliberative process recommendation or deliberation by executive officials
privilege.152 In In re Sealed Case (Espy), the distinction of the Philippine government, as it is the handiwork of
between the two privileges was explained, viz: the Philippine and the Japanese negotiating panels
working together. The documents sought to be
Both are executive privileges designed to protect disclosed are not of the same nature as internal
executive branch decision-making, but one (deliberative deliberations of the Department of Trade and Industry
process privilege) applies to decision-making of or the Philippine negotiating panel in crafting and
executive officials generally, the other specifically to deciding the initial offer of the Philippines or internal
decision-making of the President. The presidential memoranda of Philippine government agencies to
privilege is rooted in constitutional separation of advise President Macapagal-Arroyo in her decision to
powers principles and the President’s unique sign the JPEPA. Extending the mantle of protection of
constitutional role; the deliberative process privilege is the deliberative process privilege to the initial offers of
primarily a common law privilege… Consequently, the Philippines and of Japan and the final JPEPA text
congressional or judicial negation of the presidential prior to signing by President Macapagal-Arroyo will be
communications privilege is subject to greater scrutiny tantamount to extending the protection of executive
than denial of the deliberative privilege… Unlike the branch decision-making to the executive branch not
deliberative process privilege (which covers only only of the Philippine government, but also of the
material that is pre-decisional and deliberative), 153 the Japanese government, which, in trade agreement
presidential communications privilege applies to negotiations, represents an interest adverse to that of
documents in their entirety, and covers final and post- the Philippine government. As seen from the rationale
decisional materials as well as pre-deliberative and history of the deliberative process privilege, this is
ones."154 (emphasis supplied) not the intent of the deliberative process
privilege.156 Given the nature of the subject JPEPA
documents, it is the diplomatic secrets privilege that can
The distinction notwithstanding, there is no reason not properly shield them upon sufficient showing of
to recognize in our jurisdiction the deliberative process reasons for their confidentiality. Hence, the invocation
privilege, which has essentially the same purpose as the of deliberative process privilege to protect the subject
presidential communications privilege, except that it JPEPA documents must fail.
applies to executive officials in general.
But this is not all. In Senate v. Ermita, the Court also
Let us now determine whether the deliberative process required that executive privilege must be invoked by
privilege will shield from disclosure the following JPEPA the President, or the Executive Secretary "by order of
the President," unlike in U.S. jurisdiction where, as the legislative and the executive branches and similar
afore-discussed, the formal assertion of the head of the officials in foreign nations.161 But this trend began to see
department claiming the privilege suffices.157 In the case changes during the Great Depression in the early 1930s
at bar, the Executive Secretary invoked both the and the enactment of the Trade Agreements Act of
deliberative process privilege and the diplomatic 1934,162 under which regime the 1936 case Curtiss-
secrets privilege not "by order of the President," as his Wright was decided.
23 June 2005 letter quoted above shows. Accordingly,
the invocation of executive privilege was not properly As afore-discussed, the U.S. Congress passed the
made and was therefore without legal effect. Reciprocal Trade Agreement Act of 1934 (the 1934 Act).
As an economic stimulus, the 1934 Act authorized the
Senate v. Ermita was decided on 20 April 2006 and President to address economic stagnation by reducing
became final and executory on 21 July 2006. Hence, it tariffs on foreign goods by as much as fifty
may be argued that it cannot be used as a yardstick to percent.163 When the President took such an action,
measure whether respondent Secretary Ermita America’s trading partners reciprocated by reducing
properly invoked executive privilege in his 23 June tariffs placed on U.S. goods, thereby stimulating the U.S.
2005 letter. It must be noted, however, that the case at economy.164 Confronted with the Great Depression and
bar has been pending decision even after the finality of the subsequent deterioration of the global economy, the
Senate v. Ermita. During the time of its pendency, 1934 Act called for a single, strong voice to deal
respondents failed to inform the Court whether effectively with foreign nations. Thus, the President,
Executive Secretary Ermita’s position bore the with this Congressional mandate, became the chief
imprimatur of the Chief Executive. The period of nearly American trade negotiator with complete and
two years from the time Senate v. Ermita became final unrestricted authority to enter into binding
up to the present is more than enough leeway for the international trade agreements.165
respondents to comply with the requirement that
executive privilege be invoked by the President, or the While the 1934 Act gave trading muscle to the
Executive Secretary "by order of the President." President, it also created the first formal method of
Contrary to the assertion of the ponencia,158 the Court public participation in the international trade
would not be overly strict in exacting compliance with negotiation process. Section 4 of the 1934 Act required
the Senate v. Ermita requirement, considering the two- "reasonable public notice" of the President’s intention
year margin the Court has afforded respondents. to enter into agreements with foreign states,166 thereby
giving American citizens the opportunity to know with
Let us now determine whether the public’s which foreign nations the U.S. government proposed to
constitutional right to information and participation can negotiate. Pursuant to the 1934 Act, the President
be trumped by a claim of executive privilege over the established the Trade Agreements Committee, which
documents sought to be disclosed. was composed of high-ranking members of the
executive branch.167 The Trade Agreements Committee,
II. The context: the question of the right of access of the commonly known as the Committee for Reciprocity
petitioner private citizens to the subject JPEPA Information, conducted public hearings at which
documents is raised in relation to international trade specific items up for negotiation with a particular
agreement negotiations on the strength of a country would be discussed.168 But with the Congress
constitutional right to information and participation left almost completely outside the trade negotiation
process and agreements being concluded and
implemented in relative obscurity, the attention of
A. The developing openness Congress and the public turned more toward the
of trade agreement negotiations in U.S. jurisdiction pressing domestic issues, at least until the dawn of the
‘70s.169
The waning of the exclusivity of executive power over
negotiations of international trade agreements vis-à -vis The Cold War and the lingering Vietnam War made
Congressional power over foreign trade was international relations increasingly significant to the
accompanied by a developing openness to the public of general welfare of the U.S. By the mid-1970s, the post-
international trade agreement negotiations in U.S. World War II economic dominance of the U.S. began to
jurisdiction. deteriorate.170 Under Japan’s lead, Asia began gaining
economic strength, quickly joining Europe as a major
Historically, the American public only had an indirect global industrial competitor to the U.S. At the same
participation in the trade negotiation process. Public time, increased media coverage brought international
involvement primarily centered on electing trade issues to the public’s attention 171 and moved the
representatives who were responsible for shaping U.S. public to challenge the traditions, institutions, and
trade policy.159 From the 18th century until the early authority of government with respect to trade issues.
1930s, U.S. international trade relations 160 were largely
left to the interplay between these public delegates in
With the swell of public activism, the U.S. Congress re- central component of the demand for participation has
analyzed its transfer of powers over international trade been to gain access to negotiating documents shared by
issues. Thus, as afore-discussed, in 1974, after forty the U.S. with other governments prior to the conclusion
years of continuous presidential authority over of a free trade agreement. 182
international trade matters, Congress passed the Trade
Act of 1974.172 The Trade Act of 1974 increased the The 1990s saw a continuous expansion of public access
levels of public involvement in international trade to the international trade agreement process. Rather
negotiations, far beyond the requirement of notice of a than simply being left to point out failures in already
proposed trading partner under the 1934 Act. The 1974 existing agreements, individuals were now allowed to
Act required international agreements to include help shape future agreements. In reemphasizing the
provisions creating domestic procedures through which open government mentality of the 1970s, the 1990s
interested public parties could participate in the marked the beginning of a new era in trade
international trade process.173 It also required the negotiations. Private individuals now played an
President to seek information and advice from both important role in many areas throughout the
private and public sectors.174 For this purpose, it international trade agreement process.183 The Trade Act
incorporated the use of advisory committees and of 2002 was then passed, enhancing transparency
included spontaneous opportunities for acceptance of through increased and more timely access to
information from the public.175 Thus, the 1974 Act, information regarding trade issues and activities of
supplemented by several amendments passed in 1979 international trade institutions; increased public access
and 1988, opened the door to unprecedented formal to meetings, proceedings, and submissions at the World
and direct public participation176 in the negotiation of Trade Organization (WTO); and increased and more
international trade agreements and contributed to a timely public access to all notifications and supporting
rekindled awareness of government activities and their documentation by parties to the WTO.184
impact on the public.177
Public participation in international trade negotiations
Towards the latter half of the 1980s, government affects trade negotiations in two distinct ways. First, it
leaders and trade experts again began to advocate serves as a check on the power of elected and
reduced trade barriers as an answer to economic bureaucratic leaders by generating and limiting the
difficulty. They became convinced that increased issues that require government action. Second, it
emphasis on free global trade was the key to future provides those in positions of power and influence with
economic prosperity. The idea of increasing the size and specific, detailed information upon which to base their
strength of the national economy by reducing decisions; for in the absence of public input,
restrictions on foreign trade was the impetus behind government officials risk making decisions based on
trade agreements such as the 1993 North American incomplete information, thereby compromising public
Free Trade Agreement (NAFTA)178 concluded among the policy.185
U.S., Mexico and Canada. The launch of the NAFTA and
the completion of the World Trade Organization’s
(WTO) Uruguay round in the mid-‘90s swept in a new The public participates in trade negotiations in various
era of unprecedented international collaboration on ways. Individuals influence governmental action by
trade policy.179 electing the President and members of Congress, joining
special interest groups that lobby influential members
of the executive and the legislative branches, initiating
In the 1990s, the changing nature of world politics and litigation, serving on presidentially appointed advisory
economics focused international issues on economic committees, testifying at international trade
well-being rather than on political and military commission hearings, and protesting individually or as
dominance. Fearing environmental destruction and a group. But ultimately, the degree of public
increased unemployment, members of Congress, involvement in any area of government policy depends
commentators, and special interest groups have used on the amount of available access.186
trade agreements such as NAFTA and the mass media to
heighten public awareness and participation in
international trade relationships.180 The 1990s led the Although the NAFTA negotiations have been criticized
American public to realize that international trade for being shrouded in much secrecy, the U.S.
issues had a direct impact on their standard of living government released on 6 September 1992, the most
and way of life,181 thus fomenting public participation in recent text of the NAFTA, prior to its signing by
international trade negotiations. With the growing Canadian Prime Minister Brian Mulroney, U.S. President
concern over the far-reaching implications of bilateral George H.W. Bush and Mexican President Carlos Salinas
and multilateral international trade agreements and the on October 7, 1992.187
increased focus upon the processes by which they are
negotiated, calls for greater openness and public The negotiation of the Free Trade Area of the Americas
participation in their negotiation have come in many (FTAA) that began in 1995 has also shown a changing
forms and from many corners, particularly in the U.S. A landscape that allows for greater public participation in
international trade negotiations. In their Santiago multilateral agreements, such as the FTAA, and to
Summit in 1998, the heads of thirty-four Western bilateral agreements.195 Public participation gives
Hemisphere states extended principles of participation legitimacy to the process and result, and it strengthens
explicitly to the FTAA: the political will of populations who must support
ratification and implementation once the text is
The FTAA negotiating process will be transparent . . . in finalized. The wide range of expertise available outside
order to create the opportunities for the full of governmental corridors would also be more fully
participation by all countries. We encourage all accessible to officials if an organic and meaningful
segments of civil society to participate in and contribute exchange of ideas is part of the process. While it is true
to the process in a constructive manner, through our that participation implies resource allocation and
respective mechanisms of dialogue and consultation sometimes delay, these are investments in a democratic
and by presenting their views through the mechanism outcome and should not be seen as costs. 196
created in the FTAA negotiating process. 188
Secrecy has long played an integral but also
The Santiago Declaration also includes a pledge to controversial role in the negotiation of international
"promote the necessary actions for government agreements. It facilitates frank discussion, minimizes
institutions to become more participatory posturing and allows flexibility in negotiating positions.
structures." 189 (emphasis supplied) In the Quebec But it is also prone to abuse and is often assailed as
Summit in 2001, the heads of State went even further undemocratic and facilitating abuse of power. In the
and declared their commitment to "the full participation public eye, excessive secrecy can weaken accountability
of all persons in the political, economic, social and and undermine the legitimacy of government
cultural life of our countries." 190 They also addressed action.197 Generally, it can also undermine the faith of
participation in the context of an FTAA and committed the public in the need for secrecy198 for "secrecy can
to -- best be preserved only when credibility is truly
maintained."199
Ensure the transparency of the negotiating process,
including through publication of the preliminary draft The tension between secrecy and the demand for
FTAA Agreement in the four official languages as soon openness continues, but circumstances have changed,
as possible and the dissemination of additional as the international trade agreements of today tend to
information on the progress of negotiations; [and to] be far more authoritative and comprehensive than
Foster through their respective national dialogue those negotiated by Presidents Woodrow Wilson,
mechanisms and through appropriate FTAA George Washington and John Jay. These trade
mechanisms, a process of increasing and sustained agreements have broader and more direct
communication with civil society to ensure that it has a consequences on private conduct. As the trend on
clear perception of the development of the FTAA international trade agreements will only continue, it is
negotiating process; [and to] invite civil society to important to revisit the tension between secrecy and
continue to contribute to the FTAA process . . . openness. The fact alone that secrecy shrouded
191
 (emphasis supplied) negotiations of international agreements three hundred
or even twenty-five years ago can no longer justify the
continuation of that approach in today’s era of the
Thus, the Presidential summits, which have established NAFTA, CAFTA (Central American Free Trade
both the impetus and the context for an FTAA, Agreement), and a prospective FTAA.200
unmistakably contemplate public access to the
negotiating process, and the FTAA itself is a central part
of that process.192 In July 2001 came the first public These developments in the openness to the public of
release of the preliminary official text of the FTAA. A international trade agreement negotiations show that
revised draft of the text was released in November 2002 secrecy in the negotiation of treaties is not a rule
and again in 2003.193 This notwithstanding, civil society written in stone. Revisiting the balance between secrecy
organizations have expressed great concern for and and openness is an imperative, especially in the
emphasis on the timeliness of information given to the Philippines where the right to information has been
public and input given to negotiators. They have elevated to a constitutional right essential to our
observed that the draft text is published long after democratic society.
issues are actually negotiated; they have thus proposed
specific mechanisms for the timely release of B. Democracy and the rights to information and
negotiating documents, many of which were procedures participation
already in place in the World Trade Organization
(WTO).194 1. Philippine Constitutional provisions on information
and transparency
The need to create meaningful public participation
during negotiation and implementation applies to both
Of all the organic laws of our country, the 1987 MR. AZCUNA. That is right.
Constitution holds most sacrosanct the people’s role in
governance. As a first principle of government, the 1987 MR. SARMIENTO. So, why do we not retain the old
Constitution declares in Article II, Section 1, Declaration formulation under the 1973 and 1935 Constitutions
of Principles and State Policies, that the Philippines is which used the words "republican state" because
not only a republican but also a democratic state. The "republican state" would refer to a democratic state
word "democratic" was added to "republican" as a where people choose their representatives?
"pardonable redundancy" to highlight the importance of
the people’s role in government, as evinced by the
exchanges in the 1986 Constitutional Commission, viz: MR. AZCUNA. We wanted to emphasize the
participation of the people in government. 203 (emphasis
supplied)
MR. NOLLEDO. I am putting the word "democratic"
because of the provisions that we are now adopting
which are covering consultations with the people. For In line with this desideratum, our fundamental law
example, we have provisions on recall, initiative, the enshrined in rubric the indispensability of the people’s
right of the people even to participate in lawmaking and participation in government through
other instances that recognize the validity of recall,204 initiative,205 and referendum.206
interference by the people through people’s
organizations . . .201 Similarly, it expressly provided for the people’s right to
effective and reasonable participation in Article XIII,
x x x           x x x          x x x Section 16, on Social Justice and Human Rights, viz:

MR. OPLE. The Committee added the word "democratic" The right of the people and their organizations to
to "republican," and, therefore, the first sentence states: effective and reasonable participation at all levels of
"The Philippines is a republican and democratic state." social, political, and economic decision-making shall not
be abridged. The State shall, by law, facilitate the
establishment of adequate consultation mechanisms.
May I know from the committee the reason for adding (emphasis supplied)
the word "democratic" to "republican"? The
constitutional framers of the 1935 and 1973
Constitutions were content with "republican." Was this To prevent the participation of the people in
done merely for the sake of emphasis? 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
MR. NOLLEDO. Madam President, that question has strengthening it with the provision on transparency in
been asked several times, but being the proponent of government, and by underscoring the importance of
this amendment, I would like the Commissioner to communication. Thus, the 1987 Constitution provides in
know that "democratic" was added because of the need Article III, Section 7 of the Bill of Rights, viz:
to emphasize people power and the many provisions in
the Constitution that we have approved related to
recall, people’s organizations, initiative and the like, The right of the people to information on matters of
which recognize the participation of the people in public concern shall be recognized. Access to official
policy-making in certain circumstances." 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
MR. OPLE. I thank the Commissioner. That is a very development, shall be afforded the citizen, subject to
clear answer and I think it does meet a need. . . such limitations as may be provided by law. (emphasis
supplied)
x x x           x x x          x x x
Symmetrical to this right to information are the
MR. NOLLEDO. According to Commissioner Rosario following provisions of the 1987 Constitution:
Braid, "democracy" here is understood as participatory
democracy.202 (emphasis supplied) Article II, Section 28, Declaration of State Principles and
Policies:
Of a similar tenor is the following exchange between
Commissioners Abraham Sarmiento and Adolfo Azcuna: Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public
MR. SARMIENTO. When we speak of republican disclosure of all its transactions involving public
democratic state, are we referring to representative interest. (emphasis supplied)
democracy?
Article XI, Section 21, National Economy and Patrimony: MR. RAMA. There is a difference between the provisions
under the Declaration of Principles and the provision
Foreign loans may be incurred in accordance with law under the Bill of Rights. The basic difference is that the
and the regulation of the monetary authority. Bill of Rights contemplates collision between the rights
Information on foreign loans obtained or guaranteed by of the citizens and the State. Therefore, it is the right of
the Government shall be made available to the public. the citizen to demand information. While under the
(emphasis supplied) Declaration of Principles, the State must have a policy,
even without being demanded, by the citizens, without
being sued by the citizen, to disclose information and
The objective of the 1987 Constitution is to attain an transactions. So there is a basic difference here because
open and honest government predicated on the people’s of the very nature of the Bill of Rights and the nature of
right to know, as shown by the following portion of the the Declaration of Principles.208 (emphases supplied)
deliberations of the 1986 Constitutional Commission,
viz:
Going full circle, the 1987 Constitution provides for the
vital role of information in nation-building in the
MR. OPLE. Mr. Presiding Officer, this amendment is opening Declaration of State Principles and Policies and
proposed jointly by Commissioners Ople, Rama, Treñ as, in the General Provisions towards the end of the
Romulo, Regalado and Rosario Braid. It reads as Constitution.
follows: "SECTION 24. THE STATE SHALL ADOPT AND
IMPLEMENT A POLICY OF FULL PUBLIC DISCLOSURE
OF ALL ITS TRANSACTIONS SUBJECT TO REASONABLE Article II, Section 24, provides, viz:
SAFEGUARDS ON NATIONAL INTEREST AS MAY BE
PROVIDED BY LAW." Sec. 24. The State recognizes the vital role of
communication and information in nation-building.
x x x           x x x          x x x (emphasis supplied).

In the United States, President Aquino has made much Article XVI, Section 10, General Provisions provides, viz:
of the point that the government should be open and
accessible to the public. This amendment is by way of Sec. 10. The State shall provide the policy environment
providing an umbrella statement in the Declaration of for the full development of Filipino capability and the
Principles for all these safeguards for an open and emergence of communication structures suitable to the
honest government distributed all over the draft needs and aspirations of the nation and the balanced
Constitution. It establishes a concrete, ethical principle flow of information into, out of, and across the country,
for the conduct of public affairs in a genuinely open in accordance with a policy that respects the freedom of
democracy, with the people’s right to know as the speech and of the press. (emphasis supplied)
centerpiece.207 (emphasis supplied)
Constitutional Commissioner Rosario Braid explained
The correlative policy of public disclosure and the the rationale of these provisions on information and
people’s right to information were also expounded by communication in her sponsorship speech, viz:
Constitutional Commissioners Joaquin Bernas and
Napoleon Rama, viz: MS. ROSARIO BRAID. We cannot talk of the functions of
communication unless we have a philosophy of
FR. BERNAS. Just one observation, Mr. Presiding Officer. communication, unless we have a vision of society. Here
I want to comment that Section 6 (referring to Section 7, we have a preferred vision where opportunities are
Article III on the right to information) talks about the provided for participation by as many people, where
right of the people to information, and corresponding to there is unity even in cultural diversity, for there is
every right is a duty. In this particular case, freedom to have options in a pluralistic society.
corresponding to this right of the people is precisely the Communication and information provide the leverage
duty of the State to make available whatever for power. They enable the people to act, to make
information there may be needed that is of public decisions, to share consciousness in the mobilization of
concern. Section 6 is very broadly stated so that it the nation.209 (emphasis supplied)
covers anything that is of public concern. It would seem
also that the advantage of Section 6 is that it challenges With the constitutional provisions on transparency and
citizens to be active in seeking information rather than information brightlined in neon as backdrop, we now
being dependent on whatever the State may release to focus on the people’s right to information.
them.
2. Focusing on the right to information
x x x           x x x          x x x
The constitutional provision on the people’s right to adjunct of and therefore restricted in application by the
information made its maiden appearance in the Bill of exercise of the freedoms of speech and of the press. Far
Rights of the 1973 Constitution, but without the phrase from it. The right to information goes hand-in-hand
"as well as to government research data used as basis with the constitutional policies of full public disclosure
for policy development." The phrase was added in the (footnote omitted) and honesty in the public service
1987 Constitution to stop the government practice (footnote omitted). It is meant to enhance the widening
during Martial Law of withholding social research data role of the citizenry in governmental decision-making as
from the knowledge of the public whenever such data well as in checking abuse in government. 214 (emphases
contradicted policies that the government wanted to supplied)
espouse.210
Notably, the right to information was written in broad
Likewise, the framers of the 1987 Constitution strokes, as it merely required that information sought to
expanded the scope of "transactions" that may be be disclosed must be a matter of public concern. 215 In
accessed, to include negotiations leading to the Legaspi v. Civil Service Commission,216 the Court
consummation of contracts and treaties, but subject to elucidated on the meaning of "matters of public
"reasonable safeguards on national interest." 211 concern," viz:

The intent of the constitutional right to information, as In determining whether or not a particular information
pointed out by Constitutional Commissioner Wilfrido V. is of public concern, there is no rigid test which can be
Villacorta, is "to adequately inform the public so that applied. "Public concern" like "public interest" is a term
nothing vital in state affairs is kept from them"212 In that eludes exact definition. Both terms embrace a
Valmonte v. Belmonte,213 we explained the rationale of broad spectrum of subjects which the public may want
the right of access to information, viz: to know, either because these directly affect their lives,
or simply because such matters naturally arouse the
An informed citizenry with access to the diverse interest of an ordinary citizen. In the final analysis, it is
currents in political, moral and artistic thought and data for the courts to determine on a case by case basis
relative to them, and the free exchange of ideas and whether the matter at issue is of interest or importance,
discussion of issues thereon is vital to the democratic as it relates to or affects the public.217 (emphasis
government envisioned under our Constitution. The supplied)
cornerstone of this republican system of government is
delegation of power by the people to the State. In this Under both the 1973 and the 1987 Constitutions, the
system, governmental agencies and institutions operate right to information is self-executory. It is a public right
within the limits of the authority conferred by the that belongs to and can be invoked by the people.
people. Denied access to information on the inner Consequently, every citizen has the "standing" to
workings of government, the citizenry can become prey challenge any violation of the right and may seek its
to the whims and caprices of those to whom the power enforcement.218 The self-executory status and the
had been delegated… significance in a democracy of the right of access to
information were emphasized by the Court in Gonzales
x x x           x x x          x x x v. Narvasa,219 viz:

…The right of access to information ensures that these Under both the 1973 (footnote omitted) and 1987
freedoms are not rendered nugatory by the Constitutions, this (the right to information) is a self-
government’s monopolizing pertinent information. For executory provision which can be invoked by any
an essential element of these freedoms is to keep open a citizen before the courts…
continuing dialogue or process of communication
between the government and the people. It is in the Elaborating on the significance of the right to
interest of the State that the channels for free political information, the Court said in Baldoza v. Dimaano (71
discussion be maintained to the end that the SCRA 14 [1976]…) that "[t]he incorporation of this right
government may perceive and be responsive to the in the Constitution is a recognition of the fundamental
people’s will. Yet, this open dialogue can be effective role of free exchange of information in a democracy.
only to the extent that the citizenry is informed and thus There can be no realistic perception by the public of the
able to formulate its will intelligently. Only when the nation’s problems, nor a meaningful democratic
participants in a discussion are aware of the issues and decision-making if they are denied access to
have access to information relating thereto can such information of general interest. Information is needed
bear fruit. to enable the members of society to cope with the
exigencies of the times."220 (emphases supplied)
The right to information is an essential premise of a
meaningful right to speech and expression. But this is Prior to the 1973 Constitution, this right was merely
not to say that the right to information is merely an statutory in character, as stressed in Subido v.
Ozaeta.221 In said case, Subido was an editor of the constitutional protection for receipt of information
Manila Post. He filed a petition for mandamus to compel would apply with even more force when more directly
the respondents Secretary of Justice and Register of related to self-government and public policy.228
Deeds of Manila to furnish him the list of real estate
properties sold to aliens and registered with the On the premise that information is a prerequisite to
Register of Deeds of Manila since the promulgation of meaningful participation in government, the U.S.
Department of Justice Circular No. 128, or to allow him Congress passed the Freedom of Information Act of
to examine all records in the respondents’ custody 1966 (FOIA).229 In the leading FOIA case, Environmental
relative to the said transactions, after his requests to the Protection Agency v. Mink,230 the U.S. Supreme Court
Secretary of Justice and the Register of Deeds were held that the FOIA "seeks to permit access to official
denied. information long shielded unnecessarily from public
view and attempts to create a judicially enforceable
The Court upheld the contention of the respondents public right to secure such information from possibly
that the 1935 Constitution did not guarantee freedom of unwilling official hands."231 In Department of Air Force
information or freedom to obtain information for v. Rose,232 the same Court held that the basic purpose of
publication. The Court ruled that "the right to examine the law was "to open agency action to the light of public
or inspect public records is purely a question of scrutiny." In National Labor Relations Board v. Robbins
statutory construction." 222 Section 56 of Act No. 496, as Tire & Rubber Co.,233 the U.S. High Court ruled that the
amended by Act No. 3300, saved the day for Subido, as basic purpose of the FOIA "is to ensure an informed
it provided that "all records relating to registered lands citizenry, vital to the functioning of a democratic
in the office of the Register of Deeds shall be open to the society, needed to check against corruption and to hold
public subject to such reasonable regulations as may be the governors accountable to the governed." 234
prescribed by the Chief of the General Land Registration
Office with the approval of the Secretary of Justice." Under the FOIA, the reason for the request for
Hence, the petition for mandamus was granted. information has no bearing on the merits of the
request.235 But while the FOIA promotes a policy of
The Subido Court’s interpretation of the 1935 public disclosure, it recognizes certain exemptions from
Constitution followed U.S. jurisprudence that did not disclosure, among which are matters "specifically
and continues not to recognize a constitutional right of authorized under criteria established by an Executive
access to information on matters of public concern. Let order to be kept secret in the interest of national
us briefly examine the right of access to information in defense or foreign policy and are in fact properly
U.S. and other jurisdictions. classified pursuant to such Executive order." 236

3. Right to information in U.S. and other jurisdictions a. Still and all, the U.S. Supreme Court characterized the
U.S. jurisdiction right of access to information as statutory and not
constitutional in Houchins v. KQED, Inc., et al., 237 viz:
The U.S. Supreme Court has recognized a constitutional "(T)here is no constitutional right to have access to
right to receive information integral to the freedom of particular government information, or to require
speech under the First Amendment to the U.S. openness from the bureaucracy. . . The Constitution
Constitution. It has ruled, however, that the right of itself is neither a Freedom of Information Act nor an
access to information is not constitutionally mandated, Official Secrets Act."238 Neither the U.S. courts nor the
but statutorily granted.223 U.S. Congress recognizes an affirmative constitutional
obligation to disclose information concerning
governmental affairs; such a duty cannot be inferred
The U.S. Supreme Court first identified a constitutional from the language of the U.S. Constitution itself. 239
right to receive information in the 1936 case Grosjean v.
American Press Company.224 In that case, the U.S. High
Court, citing Judge Cooley, held that a free and general Like the U.S., other countries also recognize a statutory
discussion of public matters is essential to prepare the right to information as discussed below.
people for an intelligent exercise of their rights as
citizens.225 In the 1976 case Virginia State Board of b. Other jurisdictions
Pharmacy v. Virginia Citizens Consumer (i.e., UK, Australia and New Zealand)
Council,226 widely considered to be the seminal "right to
receive" case,227 a Virginia statute forbidding In the United Kingdom, the last four decades of the 20th
pharmacists from advertising the prices of prescription century saw a gradual increase in the rights of the
drugs was held unconstitutional by the U.S. High Court. individual to elicit information from the public
It reasoned that the free speech guarantee of the First authorities.240 This trend culminated in the passage of
Amendment covered not only the speaker, but also the the "Freedom of Information Act 2000" (FOIA 2000).
recipient of the speech. While commercial speech was FOIA 2000 conferred a right of access to official
involved in that case, the Court left no doubt that the information to every person, irrespective of that
person’s interest in the information. It covers all request official information. Under the OIA, exemptions
information, regardless of subject matter, but also may be divided into two broad classes: (1) "those that
provides for specific exemptions. are engaged upon their terms being satisfied," and (2)
"those that will be disengaged if, in the circumstances,
Exemptions under FOIA 2000 can be either absolute or the withholding of particular information is outweighed
qualified. When the exemption is absolute, the right to by other considerations which render it desirable in the
disclosure does not apply; but when it is qualified, the public interest to make that information
right will not be applied only if the public interest in available."248 Among the exemptions included in the first
maintaining the exemption outweighs the public class is information that would be likely to prejudice the
interest in disclosure of the information. 241 The entrusting of information to the Government of New
weighing of the public interest must be carried out by Zealand on a basis of confidence by the government of
reference to the particular circumstances existing at the any other country or any agency of such government. 249
time a request for information is made. "The central
question in every case is the content of the particular Taking into account the higher constitutional status of
information in question. Every decision is specific to the the right of access to information in Philippine
particular facts and circumstances under jurisdiction compared with the statutorily granted right
consideration."242 Thus, while a public authority may of access to information in U.S. and other jurisdictions,
properly refuse to disclose information subject to a let me now turn to the question of whether executive
qualified exemption, a change in surrounding privilege can constitute an exception to the right of
circumstances may result in the public authority being access and be used to withhold information from the
obliged to disclose the information upon a subsequent public.
request.243
C. Adjudicating the constitutional right to
Among the qualified exemptions are information that information
"would be likely to prejudice…relations between the vis-à-vis executive privilege in Philippine
United Kingdom and any other State"244 and jurisdiction
"confidential information obtained from a State other
than the United Kingdom…"245 1. The general rule and the exception

Ahead of the United Kingdom, the Commonwealth of With the elevation of the right to information to
Australia passed its "Freedom of Information Act 1982 constitutional stature, the starting point of the inquiry is
(Act 1982)." Act 1982 gives every person a legally the general rule that the public has a right to
enforceable right to obtain access to information of a information on matters of public concern and the State
public agency without requirement to demonstrate a has a corresponding duty to allow public access to such
need to know.246 At the same time, it recognizes two information. It is recognized, however, that the
basic kinds of exemptions: (1) exemptions which constitutional guarantee admits of exceptions such as
protect a document of a particular class or kind without "limitations as may be provided by law." 250 Thus, as held
a need to refer to the effects of disclosure (class in Legaspi, "in every case, the availability of access to a
exemption), and (2) exemptions which depend on particular public record" is circumscribed by two
demonstrating a certain likelihood that a particular elements: (1) the information is "of public concern or
harm would result from disclosure of a document one that involves public interest," and, (2) it is "not
(harm-based exemption). exempt by law from the operation of the constitutional
guarantee."251
Covered by the harm-based exemptions are documents
that "would, or could reasonably be expected to, cause The question of access is first addressed to the
damage to…the international relations of the government agency having custody of the information
Commonwealth" or "would divulge any information or sought. Should the government agency deny access, it
matter communicated in confidence by or on behalf of a "has the burden of showing that the information
foreign government, an authority of a foreign requested is not of public concern, or, if it is of public
government or an international organization to the concern, that the same has been exempted by law from
Government of the Commonwealth, to an authority of the operation of the guarantee" because "(t)o hold
the Commonwealth or to a person receiving the otherwise will serve to dilute the constitutional right. As
communication on behalf of the Commonwealth or of an aptly observed, ‘…the government is in an advantageous
authority of the Commonwealth."247 position to marshal and interpret arguments against
release…’ (87 Harvard Law Review 1511
Almost simultaneous with Australia, New Zealand [1974])."252 Furthermore, the Court ruled that "(t)o
enacted the "Official Information Act 1982 (OIA)," safeguard the constitutional right, every denial of access
which allows its citizens, residents, persons in New by the government agency concerned is subject to
Zealand, and companies incorporated in New Zealand to review by the courts."253
There is no dispute that the subject JPEPA documents was no law making them classified, it held that
are matters of public concern that come within the disclosure of the records to the Office of the
purview of Article III, Section 7 of the Bill of Rights. The Ombudsman was warranted. In arriving at this
thorny issue is whether these documents, despite being conclusion, the Court noted that the case did not
of public concern, are exempt from being disclosed to concern a demand by a citizen for information under
petitioner private citizens on the ground that they are the freedom of information guarantee of the
covered by executive privilege.254 Constitution, but involved the power of the Office of the
Ombudsman to obtain evidence in connection with an
Unlike the U.S., U.K., Australia, and New Zealand, the investigation conducted by it vis-a-vis the claim of
Philippines does not have a comprehensive freedom of privilege of an agency of the Government. It is thus not
information law that enumerates the exceptions or difficult to see that the facts and issue of Almonte
sources of exceptions255 to the right to information. In starkly differ from the case of petitioner private citizens
our jurisdiction, various laws provide exceptions from who are enforcing their constitutional right to
the duty to disclose information to the public, such as information. Given this distinction, I submit that
Republic Act No. 8293 or the "Intellectual Property Almonte cannot provide the backbone for exemption of
Code," Republic Act No. 1405 or the "Secrecy of Bank the subject JPEPA documents from disclosure. The same
Deposits Act," and Republic Act No. 6713 or the "Ethical holds true with respect to Senate v. Ermita in which the
Standards Act."256 constitutionality of E.O. 464 was at issue, and the Court
ruled, viz:
Respondents contend that Executive Order 464 (E.O.
464), "Ensuring Observance of the Principle of E.O 464 is concerned only with the demands of
Separation of Powers, Adherence to the Rule on Congress for the appearance of executive officials in the
Executive Privilege and Respect for the Rights of Public hearings conducted by it, and not with the demands of
Officials Appearing in Legislative Inquiries in Aid of citizens for information pursuant to their right to
Legislation under the Constitution, and for other information on matters of public concern. 261 (emphasis
Purposes,"257 provides basis for exemption of the supplied)
subject JPEPA documents from the operation of the
constitutional guarantee of access to information. They In Chavez v. PCGG, the Court, citing the above-quoted
argue that while Senate v. Ermita struck down Sections exchanges of the Constitutional Commissioners
2(b) and 3 of E.O. 464 as unconstitutional, Section 2(a), regarding the constitutional right to information,
which enumerates the scope of executive privilege recognized that "information on inter-government
including information prior to the conclusion of treaties, exchanges prior to the conclusion of treaties and
was spared from a declaration of constitutional executive agreements may be subject to reasonable
infirmity.258 However, it is easily discernible from the safeguards for the sake of national interest." Be that as
title and provisions of E.O. 464 that this presidential it may, in Chavez v. PCGG, the Court resolved the issue
issuance applies to executive privilege invoked against whether the government, through the Presidential
the legislature in the context of inquiries in aid of Commission on Good Government (PCGG), could be
legislation, and not to executive privilege invoked compelled to disclose the proposed terms of a
against private citizens asserting their constitutional compromise agreement with the Marcos heirs as
right to information.259 It thus cannot be used by regards their alleged ill-gotten wealth. The Court did
respondents to discharge their burden of showing basis not have occasion to rule on the diplomatic secrets
for exempting the subject JPEPA documents from privilege vis-à -vis the constitutional right to
disclosure to petitioners suing as private citizens. information.

Respondents also rely on Almonte, Chavez v. PCGG, It was in PMPF v. Manglapus that the Court was
Senate v. Ermita, and PMPF v. Manglapus to carve out confronted with a collision between a citizen’s
from the coverage of the right to information the subject constitutional right to information and executive
JPEPA documents. Let us put these cases under the lens secrecy in foreign affairs. As afore-discussed, the Court,
of scrutiny to determine the correctness of respondents’ in denying the petition in an unpublished Resolution,
reliance upon them. quoted at length Curtiss-Wright’s disquisition on the
necessity of secrecy in foreign negotiations. Again, the
As noted earlier, Almonte recognized a common law relevant portion of that quote, which was cited by
governmental privilege against disclosure, with respect respondents, reads, viz:
to state secrets bearing on military and diplomatic
matters.260 This case involved an investigation by the In this vast external realm, with its important,
Office of the Ombudsman that required the Economic complicated, delicate and manifold problems, the
Intelligence and Investigation Bureau (EIIB) to produce President alone has the power to speak or listen as a
records pertaining to their personnel. As the Court representative of the nation. He makes treaties with the
found that no military or diplomatic secrets would be advice and consent of the Senate; but he alone
disclosed by the production of these records and there negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to sought to compel the representatives of the President of
invade it. As Marshall said in his great argument of the Philippines in the then ongoing negotiations of the
March 7, 1800, in the House of Representatives, ‘The RP-U.S. Military Bases Agreement to (1) open to
President is the sole organ of the nation in its external petitioners the negotiations/sessions of respondents
relations, and its sole representative with foreign with their U.S. counterparts on the RP-U.S. Military
nations.’ Annals, 6th Cong., col. 613. Agreement; (2) reveal and/or give petitioners access to
the items which they (respondents) had already agreed
x x x           x x x          x x x 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
It is important to bear in mind that we are here dealing respective positions of respondents and their U.S.
not alone with an authority vested in the President by counterparts on items they had not agreed upon,
an exertion of legislative power, but with such an particularly the compensation package for the
authority plus the very delicate, plenary and exclusive continued use by the U.S. of their military bases and
power of the President as the sole organ of the federal facilities in the Philippines. The above quote from
government in the field of international relations - a Curtiss-Wright, referring to a conflict between the
power which does not require as a basis for its exercise executive and the legislative branches of government,
an act of Congress, but which, of course, like every other was therefore different from the factual setting of PMPF
governmental power, must be exercised in v. Manglapus. The latter case which involved a collision
subordination to the applicable provisions of the between governmental power over the conduct of
Constitution. It is quite apparent that if, in the foreign affairs with its secrecy prerogative on the one
maintenance of our international relations, hand, and the citizen’s right to information under the
embarrassment -perhaps serious embarrassment- is to Constitution on the other.
be avoided and success for our aims achieved,
congressional legislation which is to be made effective
through negotiation and inquiry within the The PMPF Court did stress that secrecy of negotiations
international field must often accord to the President a with foreign countries did not violate freedom of access
degree of discretion and freedom from statutory to information and freedom of speech and of the press.
restriction which would not be admissible were Significantly, it quoted The New American Government
domestic affairs alone involved. Moreover, he, not and Its Work, viz:
Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and The nature of diplomacy requires centralization of
especially is this true in time of war. He has his authority and expedition of decision which are inherent
confidential sources of information. He has his agents in in executive action. Another essential characteristic of
the form of diplomatic, consular and other officials. diplomacy is its confidential nature. Although much has
Secrecy in respect of information gathered by them may been said about "open" and "secret" diplomacy, with
be highly necessary, and the premature disclosure of it disparagement of the latter, Secretaries of State Hughes
productive of harmful results. Indeed, so clearly is this and Stimson have clearly analyzed and justified the
true that the first President refused to accede to a practice. In the words of Mr. Stimson:
request to lay before the House of Representatives the
instructions, correspondence and documents relating to "A complicated negotiation… cannot be carried through
the negotiation of the Jay Treaty - a refusal the wisdom without many, many private talks and discussions, man
of which was recognized by the House itself and has to man; many tentative suggestions and proposals.
never since been doubted.262 (emphasis supplied) Delegates from other countries come and tell you in
confidence of their troubles at home and of their
The Court followed this quote with the conclusion that differences with other countries and with other
"(w)e have the same doctrine of separation of powers in delegates; they tell you of what they do under certain
the Constitution and the same grant of authority in circumstances and would not do under other
foreign affairs to the President as in the American circumstances… If these reports…should become
system. The same reasoning applies to treaty public…who would ever trust American Delegations in
negotiations by our Government." another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284).
Taking a hard look at the facts and circumstances of
PMPF v. Manglapus, it cannot escape one’s eye that this x x x           x x x          x x x
case did not involve a question of separation of powers
arising from a legislative inquiry, as in the case of the "There is frequent criticism of the secrecy in which
House of Representative’s demand on President negotiation with foreign powers on nearly all subjects is
Washington for papers relating to the Jay Treaty. In concerned. This, it is claimed, is incompatible with the
PMPF v. Manglapus, petitioners invoked their right to substance of democracy. As expressed by one writer, ‘It
information under Article III, Section 7; and freedom of can be said that there is no more rigid system of silence
speech and the press under Article III, Section 4. They
anywhere in the world.’ (E.J. Young, Looking Behind the reasonable safeguards for the sake of national interest,"
Censorship, J.B. Lippincott Co., 1938) President Wilson viz:
in starting his efforts for the conclusion of the World
War declared that we must have ‘open covenants, MR. SUAREZ. And when we say "transactions" which
openly arrived at.’ He quickly abandoned his thought. should be distinguished from contracts, agreements, or
treaties or whatever, does the Gentleman refer to the
"No one who has studied the question believes that such steps leading to the consummation of the contract, or
a method of publicity is possible. In the moment that does he refer to the contract itself?
negotiations are started, pressure groups attempt to
‘muscle in.’ An ill-timed speech by one of the parties or a MR. OPLE. The "transactions" used here, I suppose, is
frank declaration of the concessions which are generic and, therefore, it can cover both steps leading to
extracted or offered on both sides would quickly lead to a contract, and already a consummated contract, Mr.
widespread propaganda to block the negotiations. After Presiding Officer.
a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion
before it is approved." (The New American Government MR. SUAREZ. This contemplates inclusion of
and Its Work, James T. Young, 4th edition, p. negotiations leading to the consummation of the
194)263 (emphasis supplied) transaction?

It is worth noting that while the above quote speaks of MR. OPLE. Yes, subject to reasonable safeguards on the
the evil of "open" diplomacy, it does not discuss the national interest.
value of the right of access to information; much less,
one that is constitutional in stature. The New American MR. SUAREZ. Thank you. Will the word "transactions"
Government and Its Work was published in 1940, long here also refer to treaties, executive agreements and
before the Freedom of Information Act was passed in service contracts particularly?
the U.S. in 1966. It did not and could not have taken into
account the expanded statutory right to information in MR. OPLE. I suppose that is subject to reasonable
FOIA. It is more doubtful if this book can be used to safeguards on national interest which include the
calibrate the importance of the right of access to national security."264 (emphasis supplied)
information in the Philippine setting, considering its
elevation as a constitutional right.
The above deliberations show that negotiation of
treaties and executive agreements may or may not
Be that as it may, I submit that as both Chavez v. PCGG come within the purview of "transactions" covered by
and PMPF v. Manglapus are extant case law recognizing the right to information, subject to reasonable
the constitutionally-based diplomatic secrets privilege safeguards to protect national interest. 265 In other
over treaty negotiations, respondents have discharged words, the diplomatic secrets privilege over treaty
the burden of showing the bases for exempting the negotiations may provide a ground for exemption, but
subject JPEPA documents from the scope of the may be overcome if there are reasonable safeguards to
constitutional right to information. protect the national interest. It is thus not an absolute
exemption or privilege, but a qualified one.
Prescinding from these premises, the next question to
grapple with is whether the exemption or diplomatic The Freedom of Information Act 2000 of the United
secrets privilege over treaty negotiations as recognized Kingdom provides that when an exemption is qualified,
in Chavez v. PCGG and PMPF v. Manglapus is absolute or the right to information will not be upheld only if the
qualified. public interest in maintaining the exemption outweighs
the public interest in disclosure of the information. The
2. Diplomatic secrets privilege covering treaty Act treats as qualified exemptions information that
negotiations: "would be likely to prejudice…relations between the
United Kingdom and any other State"266 and
An absolute or qualified exemption? "confidential information obtained from a State other
than the United Kingdom…."267 As such, these
exemptions may be overcome by a higher public
It is my considered view that the diplomatic secrets interest in disclosure.
privilege is a qualified privilege or qualified exemption
from the coverage of the right to information. In Chavez
v. PCGG, the Court cited the following deliberations of It may be argued that the subject JPEPA documents
the 1986 Constitutional Commission in recognizing that consist of information similar to information covered by
"inter-government exchanges prior to the conclusion of the above-cited qualified exemptions under the
treaties and executive agreements may be subject to Freedom of Information Act 2000. The qualification of
the above exemptions in the United Kingdom is made in
the context of a statutory grant of a right to information. demonstrated in free speech cases,272 or when there is a
In the Philippines where the right to information has "compelling state interest" that must override the free
more force and effect as a constitutional right, there is exercise of religion.273
all the more reason to give it stronger muscle by
qualifying the diplomatic secrets privilege exemption. The right to information lies at the heart of a
This approach minimizes the risk of unjustifiably government that is not only republican but also
withholding diplomatic information that is of public democratic. For this reason, Article III, Section 7274 of
concern but covered by overly broad absolute the 1987 Constitution, calls for "an informed citizenry
exemptions. with access to the diverse currents in political, moral
and artistic thought and data relative to them, and the
We thus come to the task of cobbling the appropriate free exchange of ideas and discussion of issues thereon
test to weigh the public interest in maintaining the is vital to the democratic government envisioned under
exemption or privilege over diplomatic secrets and the our Constitution."275 Thus, employing the "balancing of
public interest in upholding the constitutional right to interests" test, the public interest in upholding this
information and disclosing the subject JPEPA constitutional right of the public to information must be
documents. carefully balanced with the public interest in
nondisclosure of information in relation to treaty
3. The test to use in adjudicating the constitutional negotiations. This test is in line with the approach
right to information vis-à -vis executive privilege adopted in the right to access statute of the United
is the "balancing of interests," and not the "showing of Kingdom and New Zealand.
need"
There is a world of difference between employing the
While I agree with the ponencia’s treatment of the "balancing of interests" test and the "showing of need"
diplomatic secrets privilege as a qualified privilege and test adopted by the ponencia from U.S. v. Nixon, Senate
its recognition of the need to formulate a weighing test, Select Committee v. Nixon, and In re Sealed Case (Espy).
it is my humble view that, contrary to its position, we In U.S. v. Nixon, the "showing of need" was necessary, as
cannot use the test laid down in U.S. v. Nixon, 268 Senate the information was being sought by a court as evidence
Select Committee v. Nixon,269 and In re Sealed Case in a criminal proceeding. In Senate Select Committee,
(Espy)270 that the Court should determine whether the information was being sought by the Senate to
there is a "sufficient showing of need" for the disclosure resolve conflicting testimonies in an investigation
of disputed documents. None of these three cases can conducted in the exercise of its oversight functions over
provide the proper test. The requirement of "showing of the executive branch and in aid of legislation pertaining
need" applies when executive privilege is invoked to executive wrongdoing. Finally, in In re Sealed Case
against an evidentiary need for information, such as in (Espy), the information was being sought by the grand
the case of another government entity seeking jury to investigate whether a government official had
information in order to perform its function; that is, the committed a crime.
court in U.S. v. Nixon, the Senate in Senate Select
Committee, and the grand jury in In re Sealed Case In weighing the "showing of need" in all three cases, the
(Espy). courts considered the relevance of the evidence, the
availability of other evidence, and the criticality of the
In the adjudication of rights guaranteed in the information sought in the performance of the functions
Constitution, however, the Court has never used of the court, the Senate, and the grand jury, respectively.
"showing of need" as a test to uphold rights or allow These considerations have no meaning in petitioners’
inroads into them. I respectfully submit that we ought assertion of their right to information, for there is no
not to weigh the need to exercise the right to free proceeding in relation to which these considerations
speech or free assembly or free practice of religion. can be measured. It easily leaps to the eye that these
These are freedoms that have been won by all for the considerations do not apply to adjudication on the
benefit of all, without the requisite showing of need for constitutional right to information in relation to
entitlement. When we valuate these constitutional executive privilege, but the ponencia does not state
rights, we do not consider their necessity for the what the "showing of need" consists of in the context of
performance of a function, as in the case of government the public’s assertion of the right to information.
branches and entities. The question in the adjudication
of constitutional rights is whether the incursion into a Insofar as the constitutional right of access is
right is peripheral or essential, as when there is only a concerned, the writing on the wall indicates that it
"soft restraint" on the potential extraditee’s right to suffices that information is of public concern for it to be
procedural due process;271 or whether there is a heavier covered by the right, regardless of the public’s need for
public interest that must prevail over a constitutional the information – whether to assess the performance of
right in order to preserve an ordered society, such as the JPEPA Philippine negotiating panel and express
when there is a "clear and present danger" of a satisfaction or dissatisfaction, or to protest the inclusion
substantive evil that the State has a right to prevent as of repulsive provisions in the JPEPA, or to keep public
officials on their toes by making them aware that their As aforestated, the negotiations are already concluded
actions are subject to public scrutiny – or regardless of and the JPEPA has been submitted to the Senate for its
the public’s lack of need for the information, if they concurrence. The treaty has thus entered the ultimate
simply want to know it because it interests them.276 stage in which the people can exercise their right to
participate in the discussion on whether the Senate
The right to information is a constitutional right in and should concur in its ratification or not. This right will be
of itself and does not derive its significance only in diluted, unless the people can have access to the subject
relation to the exercise of another right, such as the JPEPA documents.
right to free speech or a free press if that is the kind of
"function" of an individual that can be equated with the The ponencia cites PMPF v. Manglapus, Chavez v. PCGG
functions of government agencies in the above cases and Chavez v. Public Estates Authority 279 and Senate v.
cited by the ponencia. To reiterate, Valmonte teaches Ermita as authorities for holding that the subject JPEPA
that the right to information is not merely an adjunct of documents are traditionally privileged; and emphasizes
the right to free speech and a free press. Stated another that "(t)he privileged character accorded to diplomatic
way, the right to information is an end in itself, even as negotiations does not ipso facto lose all force and effect
it may be exercised in furtherance of other rights or simply because the same privilege is now being claimed
purposes of an individual. To say that one exercises the under different circumstances."280 This approach
right to information simply to be informed, and not espoused by the ponencia, however, deviates from the
because of a particular need, is not a meaningless fundamental teaching of Senate v. Ermita that a claim of
tautology. Thus, instead of using "showing of need" as a executive privilege may be held "valid or not depending
passport to access purportedly privileged information, on the ground invoked to justify it and the context in
as in the case of government entities needing which it is made."
information to perform a constitutionally mandated
duty, the yardstick with respect to individuals In U.S. v. Nixon, the leading U.S. case on executive
exercising a constitutionally granted right to privilege, the U.S. Supreme Court was careful to
information should be the importance of the right and delineate the applicability of the principles of the case in
the public interest in upholding it. stating that "(w)e are not here concerned with the
balance between the President’s generalized interest in
Prescinding from these premises, I respectfully submit confidentiality and the need for relevant evidence in
that the test laid down by the ponencia -- which civil litigation, nor with that between the confidentiality
predicates access to information on a "showing of need" interest and congressional demands for information,
understood in the context of U.S. v. Nixon, Senate Select nor with the President’s interest in preserving state
Committee v. Nixon, and In re Sealed Case (Espy) -- will secrets. We address only the conflict between the
have the pernicious effect of subverting the nature, President’s assertion of a generalized privilege of
purpose and wisdom of including the "right to confidentiality and the constitutional need for relevant
information on matters of public concern" in the Bill of evidence in criminal trials." 281 I respectfully submit that
Rights as shown in the above-quoted deliberations of the Court likewise ought to take half a pause in making
the 1986 Constitutional Commission. It sets an comparisons and distinctions between the above
emasculating precedent on the interpretation of this all- Philippine cases cited by the ponencia and the case at
important constitutional right and throws into perdition bar; and examine the underlying reasons for these
the philosophy of an open government, painstakingly comparisons and distinctions, lest we mistake apples
enshrined by the framers of the 1987 Constitution in for oranges.
the many scattered provisions from beginning to end of
our fundamental law. That the application of the "showing of need" test to
executive privilege cases involving branches of
Applying the balancing of interests test to the case at government and of the "balancing of interests" test to
bar leads to the ineluctable conclusion that the scale cases involving the constitutional right to information
must be tilted in favor of the people’s right to could yield different results is not an absurdity. The
information for, as shown earlier, the records are bereft difference in results would not be any more absurd than
of basis for finding a public interest to justify the it would be for an accused to be adjudged innocent in a
withholding of the subject JPEPA documents after the criminal action but liable in a civil action arising from
negotiations have been concluded. Respondents have one and the same act he committed. 282 There is no
not shown a sufficient and specific public interest to absurdity when a distinction is made where there are
defeat the recognized public interest in exercising the real differences.
constitutional right to information to widen the role of
the citizenry in governmental decision-making by giving Indeed, it is recognized that executive privilege is also
them a better perspective of the vital issues confronting constitutionally based. Proceeding from the
the nation,277 and to check abuse in government. 278 respondents’ and the ponencia’s reliance on Curtiss-
Wright, even this case, as aforestated, makes a
qualification that the foreign relations power of the
President, "like every other governmental power, must Two highly contested JPEPA provisions are Articles 89
be exercised in subordination to the applicable and 94. Advocates against the JPEPA contend that these
provisions of the Constitution." 283 In drawing the provisions run afoul of the 1987 Constitution, primarily
contours and restrictions of executive privilege, which Article XII, on the National Economy and Patrimony.
finds its origins in the U.S., the constitutional status of Article 89 of the JPEPA provides for National Treatment,
the right to information in the Philippines -- which is viz:
not true of the statutory right to information in the U.S.
-- must at the same time be given life, especially Article 89
considering the many contested provisions of the JPEPA National Treatment
as shown in the ensuing discussion.
Each Party shall accord to investors of the other Party
D. Right to information, informed debate, and to their investments treatment no less favorable
and the contested provisions of the JPEPA than that it accords, in like circumstances, to its own
investors and to their investments with respect to the
The exercise of the right to information and informed establishment, acquisition, expansion, management,
debate by the public on the JPEPA are crucial in light of operation, maintenance, use, possession, liquidation,
the comprehensiveness and impact of this agreement. It sale, or other disposition of investments.
is an amalgam of two distinct agreements - a bilateral
free trade agreement and a bilateral investment In the opinion rendered by Justice Feliciano in response
agreement. Thus, international and constitutional law to the invitation to deliver a statement at a hearing of
expert Justice Florentino P. Feliciano cautions that we the Senate Joint Committee on Foreign Relations and
must be "twice as awake, twice as vigilant" in examining the Committee on Trade and Commerce, he explained
very carefully the provisions of the agreement. 284 The that the "national treatment" obligation requires the
nearly 1,000-page JPEPA contains 16 chapters, 165 Philippines to "treat Japanese investors as if they were
articles and eight annexes covering a wide range of Philippine nationals, and to treat Japanese investments
economic cooperation including trade in goods, rules of in the Philippines as if such investments were owned by
origin, customs procedures, paperless trading, mutual Philippine nationals."286 This provision raises serious
recognition, trade in services, investment, movement of constitutional questions and need untrammeled
natural persons, intellectual property, government discussion by the public, as entry into certain sectors of
procurement, competition, improvement of the economic activity in our country is restricted to natural
business environment, cooperation and dispute persons who are Philippine citizens or to juridical
avoidance and settlement. persons that are at least sixty, seventy or one hundred
percent owned by Philippine citizens. Among these
The JPEPA’s comprehensive scope is paralleled by the constitutional provisions are Article XII, Section 2 on
widespread expression of concern over its ratification. the utilization of lands and other natural resources of
In the Senate, there is a move to concur in the the Philippines;287 Article XII, Section 11 on the
President’s ratification provided that the JPEPA comply operation of public utilities;288 Article XII, Section 14,
with our constitutional provisions on public health, paragraph 2 on the practice of professions;289 and
protection of Filipino enterprises, ownership of public Article XIV, Section 4(2),290 among others.291
lands and use of natural resources, ownership of private
lands, reservation of certain areas of investment to To be sure, Article 94 of the JPEPA provides for an
Filipinos, giving to Filipinos preference in the national option on the part of the Philippines to uphold the
economy and patrimony, regulation of foreign constitutional and statutory provisions referred to
investments, operation of public utilities, preferential above despite their collision with the "national
use of Filipino labor and materials, practice of treatment" obligation in Article 89. That option is
professions, ownership of educational institutions, state exercised by listing, in the Schedule to Part I of Annex 7
regulation of transfer of technology, ownership of mass of the JPEPA, the existing non-conforming constitutional
media, and ownership of advertising firms. and legal provisions that the Philippines would like to
maintain in effect, notwithstanding the requirements of
Among scholars and the public, not a few have Article 89 of the JPEPA.292 The Philippines exercised that
registered strong reservations on the ratification of the option by attaching its Schedule to Part I of Annex 7 of
JPEPA for its being studded with provisions that are the JPEPA. Be that as it may, some scholars note that the
detrimental to the Filipino interest.285 While the Philippine Schedule is not a complete list of all the
executive branch and other groups have expressed currently existing constitutional and statutory
support for the JPEPA, these contested provisions, at the provisions in our legal system that provide for exclusive
very least, merit public debate and access to the subject access to certain economic sectors by Philippine
JPEPA documents, for they have far-reaching effects on citizens and Philippine juridical entities that have a
the public’s interest and welfare. prescribed minimum Philippine equity content. They
claim that the most dramatic example of an omission is
the aforementioned Article XII, Section 11 of the
Constitution, relating to the operation of public utilities. extent as the original right or claim
They cite other examples: the afore-mentioned Article of the investor.
XII, Section 14 relating to the practice of all professions,
save in cases prescribed by law; Article XIV, Section 2. Articles 95, 96 and 97 shall apply mutatis
4(2) relating to ownership and administration of mutandis as regards payment to be made to
educational institutions; Article XVI, Section the Party or its designated agency first
11(1)293 relating to mass media; and Article XVI, Section mentioned in paragraph 1 above by virtue of
11(2)294 relating to the advertising industry.295 such assignment of right or claim, and the
transfer of such payment.
On trade and investment, former U.P. College of Law
Dean Merlin Magallona, an international law expert, Dean Magallona pointed out that under Articles 96 and
explained as resource person in the hearing of the 98 of the JPEPA, the Japanese government may execute
Senate Joint Committee on Foreign Relations and the with a Japanese investor in the Philippines a contract of
Committee on Trade and Commerce that, under Articles indemnity, guaranty, or insurance over loss or damage
96 and 98 of the JPEPA, the Philippines stands as an of its investments in the Philippines due to revolution,
insurance company for Japanese investments against insurrection, or civil disturbance. Compensation by the
private acts.296 Japanese government to its investor under such
contract will give rise to the right of the Japanese
Articles 96 and 98 of the JPEPA provide, viz: government to be subrogated to the right or claim of the
Japanese investor against the Philippine government.
Article 96 The Philippines recognizes explicitly this assignment of
Protection from Strife right or claim of the Japanese investor against the
Philippine Government under Article 98. In effect, he
warns that the Philippines has made itself liable for acts
1. Each Party shall accord to investors of the other Party of private individuals engaged in revolution,
that have suffered loss or damage relating to their insurrection or civil disturbance. He submits that this is
investments in the Area of the former Party due to an abdication of sovereign prerogative, considering that
armed conflict or state of emergency such as revolution, under general or customary international law, the
insurrection, civil disturbance or any other similar Philippines is subject to international responsibility
event in the Area of that former Party, treatment, as only by reason of its own sovereign acts, not by acts of
regards restitution, indemnification, compensation or private persons.297
any other settlement, that is no less favorable than the
most favorable treatment which it accords to any
investors. Environmental concerns have also been raised in
relation to several provisions of the JPEPA, among
which is Article 29 on Originating Goods, which
2. Any payments made pursuant to paragraph 1 above provides, viz:
shall be effectively realizable, freely convertible and
freely transferable.
Article 29
Originating Goods
Article 98
Subrogation
1. Except as otherwise provided for in this
Chapter, a good shall qualify as an originating
1. If a Party or its designated agency makes a good of a Party where:
payment to any of its investors pursuant to an
indemnity, guarantee or insurance contract,
arising from or pertaining to an investment of (a) the good is wholly obtained or
that investor within the Area of the other produced entirely in the Party, as
Party, that other Party shall: defined in paragraph 2 below;

(a) recognize the assignment, to the (b) the good is produced entirely in
former Party or its designated the Party exclusively from
agency, of any right or claim of such originating materials of the Party; or
investor that formed the basis of
such payment; and (c) the good satisfies the product
specific rules set out in Annex 2, as
(b) recognize the right of the former well as all other applicable
Party or its designated agency to requirements of this Chapter, when
exercise by virtue of subrogation any the good is produced entirely in the
such right or claim to the same Party using nonoriginating materials.
 2. For the purposes of subparagraph 1(a) deep-sea fishing corporations, associations or
above, the following goods shall be considered partnerships having a maximum 40 percent foreign
as being wholly obtained or produced entirely equity can enter into co-production, joint venture or
in a Party: production-sharing agreement with the Philippine
government.303 Concerned sectors contend, however,
x x x           x x x          x x x that the second measure violates Article XII, Section 2 of
the Philippine Constitution which mandates, without
qualification, the protection of the nation’s marine
(i) articles collected in the Party wealth in Philippine archipelagic waters, territorial sea
which can no longer perform their and EEZ; and reserves "its use and enjoyment
original purpose in the Party nor are exclusively to Filipino citizens."304
capable of being restored or repaired
and which are fit only for disposal or
for the recovery of parts or raw The food sector also complains about the insufficiency
materials; of protection from export subsidies under Article 20 of
the JPEPA, which, according to it, makes it possible for
Japan to engage in agriculture dumping, one of the most
(j) scrap and waste derived from trade-distorting practices of rich countries. 305 Article 20
manufacturing or processing of the JPEPA, provides viz:
operations or from consumption in
the Party and fit only for disposal or
for the recovery of raw materials; Article 20
Export Duties
(k) parts or raw materials recovered
in the Party from articles which can Each Party shall exert its best efforts to eliminate its
no longer perform their original duties on goods exported from the Party to the other
purpose nor are capable of being Party. (emphasis supplied)
restored or repaired; and
This sector raises the objection that while the JPEPA
(l) goods obtained or produced in the only requires "best efforts," both the Japan-Indonesia
Party exclusively from the goods Economic Partnership Agreement (JIEPA) and the
referred to in subparagraphs (a) Japan-Malaysia Economic Partnership Agreement
through (k) above. (JMEPA) disallow the introduction or the maintenance
of agriculture export subsidies.306
Annex 1298 of the JPEPA reduced the tariff rates for these
goods to zero percent, below the minimum set forth in Without adjudging the merits of objections to the above
the current Philippine schedule, JPEPA opponents point provisions of the JPEPA, the fact that these concerns are
out.299 There are allegations from the public that the raised and that these provisions will impact on the lives
above provisions on trade of toxic and hazardous of our people stress the need for an informed debate by
wastes were deleted in the working draft text of the the public on the JPEPA. Rooted in the unique Philippine
JPEPA as of 21 April 2003, but these provisions found experience, the 1987 Constitution strengthened
their way back into the final text signed by President participatory democracy not only in our political realm
Macapagal-Arroyo. If true, it would be in the public’s but also in the economic arena. Uninformed
interest to know why said provisions were put back, as participation in the governance of the country impairs
they affect the public welfare; and how it is in the the right of our people to govern their lives while
Philippine interest to include them in the JPEPA. 300 informed debate serves as the fountainhead from which
truth and the best interest of the country will spring.
Various concerned sectors have also expressed their
objection to some provisions of the JPEPA. A substantial By upholding the constitutional right to information
number of fishermen harp on the inadequacy of over the invocation of executive privilege in the instant
protection given to their sector and the violation of the case, it is my considered view that the subject JPEPA
Philippine Constitution with respect to deep-sea fishing. documents should be disclosed considering the
In Annex 7, 2B (Schedule of the Philippines)301 of the particular circumstances of the case at bar. In arriving
JPEPA, the Philippine government made a reservation at this conclusion, a balancing of interests test has to be
on national treatment by invoking Article 12 of the employed which will allow the executive to show the
1987 Constitution under the heading: "Sector: Fisheries, public interest it seeks to protect in invoking executive
Sub-sector: Utilization of Marine Resource." 302 The privilege. The test serves as a safeguard against
measures invoked by the Philippine government are: 1) disclosure of information that should properly be kept
no foreign participation is allowed for small-scale secret. There is thus no foundation for the fears
utilization of marine resources in archipelagic waters, expressed in the Separate Opinion of Justice Tinga, viz:
territorial sea and Exclusive Economic Zones; 2) for "(The ruling) would establish a general rule that
diplomatic negotiations of treaties and other Congress – is a discussion of and by the informed and
international agreements…belong to the public record not an exchange of surpluses of ignorance.312 In the
since it is encompassed within the constitutional right arena of economic governance, the right to debate and
to information…if indeed the Philippines would become participate is exercised not as an end in itself. Especially
unique among the governments of the world in for the powerless whose sword and shield against abuse
establishing that these correspondences related to is their voice, the exercise of the right is not merely
treaty negotiations are part of the public record, I fear rhetoric. It is a fight from the gut to satisfy basic human
that such doctrine would impair the ability of the needs and lead a humane life.
Philippines to negotiate treaties or agreements with
foreign countries." As afore-discussed, allowing public I vote to grant the petition.
access to trade agreement negotiations and draft texts,
in various degrees and ways, has gained momentum in
the landscape of U.S. diplomatic and foreign relations. I REYNATO S. PUNO
submit that, when warranted, we must overcome the Chief Justice
entropy of the old tradition of secrecy.

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 Footnotes
discretion to classify information as confidential in
accordance with applicable laws, and not let it become 1
part of the public record of a government in the  Philippine Yearbook 2005, National Statistics
sunshine. But when the executive is haled to court to Office (2005), p. 44.
enforce a constitutional right to this information, it is
2
the court’s task in each particular case to balance the  Id. at 50-51, 54-55.
executive’s need for secrecy in treaty negotiations with
the constitutional right to information, and decide 3
 De Leon, A., "Entering the Lists: SMEs in
whether that particular information should be disclosed Globalized Competition," Bridging the Gap:
or kept confidential.307 Finally, the discussion in the Philippine Small and Medium Enterprises and
Separate Opinion of Justice Tinga on the application of Globalization, Alfonso, O., ed. (2001), p. 49.
Article 32, Supplementary Means of Interpretation, of
the Vienna Convention on the Law of Treaties 308 and the 4
 Pope John Paul II, "Ecclesia in Asia," Synod of
question of whether the subject JPEPA documents
Bishops in Asia, 1999.
constitute "preparatory work" under this provision are
premature, as the Philippine Senate has not concurred
5
in the ratification of the JPEPA; hence, it has not entered  Petition, p. 17; see also Comment, p. 4.
into force. I submit that the question is not relevant to
the resolution of the case at bar, as we are not here 6
 Id.
engaged in an interpretation of the JPEPA.
7
 Id. at 18.
In sum, transparency and opacity are not either-or
propositions in the conduct of international trade 8
 §2, Executive Order No. 213, promulgated
agreement negotiations. The degree of confidentiality
May 28, 2003.
necessary in a particular negotiation is a point in a
continuum where complete disclosure and absolute
9
secrecy are on opposite ends.309 In assigning this  Petition, p. 18; see also Comment, p. 4 and
fulcrum point, it is my humble view that the Court Annex C.
should balance the need for secrecy of the Executive
and the demand for information by the legislature or 10
 Id. at 19.
the public. The balancing act in every case safeguards
against disclosure of information prejudicial to the 11
 Id. at 19; see also Annex C.
public interest and upholds the fundamental principle
enunciated in Senate v. Ermita310 -- that a claim of
12
executive privilege "may be valid or not depending on  Id. at 21-22.
the ground invoked to justify it and the context in which
it is made."311 13
 Id. at 22.

We elevated the right to information to constitutional 14

 Id. See also Annex I.
stature not without reason. In a democracy, debate -- by
the people directly or through their representatives in
15
 Id. See also Annex J. Foreign Affairs and the United States
Constitution 36 (2nd ed.)
16
 Id. at 23-24, Annex K.
29
 United States v. Curtiss-Wright Export
17
 Id. at 25, citing TSN, Committee Hearing on Corporation, 299 U.S. 304, 331 (1936).
Resolution No. 551, 12 October 2005.
30
 Justice Sutherland’s use of the "sole organ"
18
 Id. at 26, Annexes M-1 to M-15, N-1 to N-7. remark in Curtiss-Wright prompted Justice
Robert Jackson to say in the 1952 landmark
19
case Youngstown Sheet and Tube Co. v.
 Id. at 28, Annex P. Sawyer (343 U.S. 579) that at best, what can
be drawn from Sutherland’s decision is the
20
 Respondents’ Manifestation, pp. 2-3. intimation that the President "might act in
external affairs without congressional
21
 Petitioners’ Manifestation and Motion, p. 3. authority, but not that he might act contrary to
an act of Congress." Justice Jackson also noted
22
that "much of the (Sutherland) opinion is
 Ponencia. dictum." In 1981, the District of Columbia
Circuit cautioned against placing undue
23
 Comment, p. 24; ponencia. 1987 Phil. Const. reliance on "certain dicta" in Sutherland’s
Art. VII on the Executive Department, §21 opinion: "To the extent that denominating the
provides, viz: President as the ‘sole organ’ of the United
States in international affairs constitutes a
Section 21. No treaty or international blanket endorsement of plenary Presidential
agreement shall be valid and effective unless power over any matter extending beyond the
concurred in by at least two-thirds of all the borders of this country, we reject that
Members of the Senate. characterization." (American Intern. Group v.
Islamic Republic of Iran, 657 F.2d 430, 438 n.6
24
[D.C. Cir. 1981 ) (Fisher, L., Invoking Executive
 299 U.S. 304 (1936). Privilege: Navigating Ticklish Political Waters,
8 William and Mary Bill of Rights Journal
25
 Ducat, C., Constitutional Interpretation: [April 2000], p. 583, 608-609).
Powers of Government (2000), Vol. 1., p. 252;
Powell, H., "The President’s Authority over In Dames & Moore v. Regan (453 U.S.
Foreign Affairs: An Executive Branch 654 [1981]), the U.S. Supreme Court
Perspective," 67 George Washington Law observed that sixteen years after
Review (March 1999), n.8. See also Chicago & Curtiss-Wright was decided, Justice
Southern Air Lines, Inc. v. Waterman S.S. Jackson responded to the virtually
Corporation, Civil Aeronautics Board, 333 U.S. unlimited powers of the executive in
103 (1948); Webster v. Doe, 486 U.S. 592, 605- foreign affairs in the landmark case
06 (1988); Harlow v. Fitzgerald, 457 U.S. 800, Youngstown Sheet and Tube Co. v.
812 n.19 (1982). Sawyer (343 U.S. 579, p. 641), viz:
26
 See Santos v. Executive Secretary Catalino "The example of such unlimited
Macaraig and Secretary Raul Manglapus, G.R. executive power that must have most
No. 94070, April 10, 1992, 208 SCRA 74, and impressed the forefathers was the
People’s Movement for Press Freedom, et al. v. prerogative exercised by George III,
Manglapus, et al., G.R. No. 84642, September and the description of its evils in the
13, 1988. Declaration of Independence leads
me to doubt that they were creating
27
 United States v. Curtiss-Wright Export their new Executive in his image."
Corporation, 299 U.S. 304, 319-320 (1936),
citing 1 Messages and Papers of the 31
 U.S. Const. Art. II, §2, cl. 2 provides, viz:
Presidents, 194. "(The President) shall have Power, by and
with the Advice and Consent of the Senate, to
28
 Powell, H., "The President’s Authority over make Treaties, provided two thirds of the
Foreign Affairs: An Executive Branch Senators present concur."
Perspective," 67 George Washington Law
Review 527 (1999). See also Henkin, L.
32 40
 U.S. Const. Art. I, §8, cl. 3 provides, viz: "The  Supra note 34.
Congress shall have the power…to regulate
Commerce with foreign Nations . . . ." 41
 Koh, H. & Yoo, J., "Dollar Diplomacy/Dollar
Defense: The Fabric of Economics and
33
 U.S. Const. Art. I, §8, cl. 1. National Security Law," 26 Int’l Law 715, 720
(1992).
34
 Wright, L., "Trade Promotion Authority: Fast
42
Track for the Twenty-First Century?," 12  Wilson, T., "Note, Who Controls
William and Mary Bill of Rights Journal 979, International Trade? Congressional Delegation
982 (2004). "See generally 1 The Debates in of the Foreign Commerce Power," 47 Drake L.
the Several Conventions on the Adoption of Rev. 141, 164 (1998).
the Federal Constitution (Jonathan Elliot ed.,
Burt Franklin reprints, photo. reprint 1987) 43
 Supra note 34, citing John
(2d ed. 1836); The Federalist No. 75 Linarelli, International Trade Relations and
(Alexander Hamilton); James Madison, Journal the Separation of Powers Under the United
of the Federal Convention (E.H. Scott ed., States Constitution, 13 Dick. J. Int’l L. 203, 208-
Books for Libraries Press 1970) (1840); 2 209 (1995) ("Hardly anything can be found in
James Madison, The Debates in the Federal the documentation relating to the drafting of
Convention of 1787 which Framed the the Constitution so as to glean any intent on
Constitution of the United States of America the separation of powers in the area of foreign
(Gaillard Hunt & James Brown Scott eds., commerce."). Id. at Note 26.
1987)." Id. at Note 25.
44
35
 Id., citing John Linarelli, International Trade
 Id., citing John Linarelli, International Trade Relations and the Separation of Powers Under
Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Int’l
the United States Constitution, 13 Dick. J. Int’l L. 203, 208 (1995).
L. 203, 224 (1995) ("Hardly anything can be
found in the documentation relating to the 45
drafting of the Constitution so as to glean any  Supra note 42 at 166.
intent on the separation of powers in the area
46
of foreign commerce."). Id. at Note 26.  Id. referring to the Tariff Act of 1922.

36 47
 Id. at 981-82, citing 148 Cong. Rec. S10,660  Supra note 34 at 983. The Smoot-Hawley
(daily ed. Oct. 17, 2002) (statement of Sen. Tariff Act, Pub. L. No. 71-361, 46 Stat. 590
Baucus). (1930). "The Smoot-Hawley Tariff Act was the
ultimate display of U.S. protectionism, John
37
 Id. "See The Federalist No. 75 (Alexander Linarelli, International Trade Relations and
Hamilton). Another concern was that the the Separation of Powers Under the United
legislative branch would not represent the States Constitution, 13 Dick. J. Int'l L. 203, 210
best interests of the nation as a whole, (1995), and resulted from Congress caving to
whereas the President would place the special interests. Harold Hongju
national interests ahead of those of individual Koh, Congressional Controls on Presidential
states. See Robert Knowles, Trade Policymaking After I.N.S. v. Chadha, 18
Comment, Starbucks and the New Federalism: N.Y.U. J. Int’l L. & Pol. 1191, 1194
The Court’s Answer to Globalization, 95 Nw. U. (1986) ("Because congressional logrolling and
L. Rev. 735, 771 (2001) (referring to the horsetrading contributed to every individual
"concerns raised by Madison that the treaty- duty rate, Smoot-Hawley set the most
maker should represent the interests of the protectionist tariff levels in U.S. history.")." Id.
entire nation")." Id. at Note 21. at Note 36.

48
38
 Id. at 982, citing John O. McGinnis & Michael  Supra note 42 at 166 referring to the Tariff
B. Rappaport, Our Supermajoritarian Act of 1922.
Constitution, 80 Tex. L. Rev. 703, 760 (2002).

39
 See Michael A. Carrier, All Aboard the
Congressional Fast Track: From Trade to
Beyond, 29 Geo. Wash. J. Int'l L. & Econ. 687,
688-89 (1996).
49
 Wright, L., "Trade Promotion Authority: Fast Commerce Power," 47 Drake L. Rev. 141, 169-
Track for the Twenty-First Century?", 12 171 (1998). "Nontariff barriers (NTBs) are
William and Mary Bill of Rights Journal 979, essentially anything other than a tariff or
984 (2004), citing John Linarelli, International quota that is used to restrict trade. The
Trade Relations and the Separation of Powers General Agreement on Tariffs and Trade
Under the United States Constitution, 13 Dick. (GATT) broadly defines NTBs as ‘[l]aws,
J. Int’l L. 203, 211 (1995). regulations, judicial decisions and
administrative rulings of general application . .
50
 Id. citing Reciprocal Trade Agreements Act . pertaining to . . . requirements, restrictions or
of 1934, Pub. L. No. 73-316, 48 Stat. 943 prohibitions on imports or exports or on the
(1934) (allowing the President to negotiate transfer of payments therefore, or affecting
tariff agreements with foreign nations and their sale, distribution, transportation,
implement them by Presidential Proclamation insurance, warehousing, inspection,
without congressional approval). exhibition, processing, mixing or other
use . . . .’ General Agreement on Tariffs and
51
Trade (GATT), Oct. 30, 1947, 61 Stat. A-11,
 Id. at Note 41, citing John T.I.A.S. 1700, 55 U.N.T.S. 194, art. X, para. 1.
Linarelli, International Trade Relations and Examples include customs valuation, import
the Separation of Powers Under the United licensing rules, subsidies, compatibility
States Constitution, 13 Dick. J. Int’l L. 203, 211 standards, quality standards, health and safety
(1995). regulations, and labeling laws. John J. Jackson
et al., Legal Problems of International
52
 Id., citing John Linarelli, International Trade Economic Relations 411 (4th ed. 2002)." Id. at
Relations and the Separation of Powers Under Note 47.
the United States Constitution, 13 Dick. J. Int’l
L. 203, 211-212 (1995), citing Reciprocal 61
 Id. at 985.
Trade Agreements Act of 1934.
62
53
 Wright, L., "Trade Promotion Authority: Fast
 Koh, H., "Congressional Controls on Track for the Twenty-First Century?," 12
Presidential Trade Policymaking After I.N.S. v. William and Mary Bill of Rights Journal 979,
Chadha," 18 N.Y.U. J. Int’l L. & Pol. 1191, 1196 984-85 (2004), citing Wilson, T., "Note, Who
(1986). Controls International Trade? Congressional
Delegation of the Foreign Commerce Power,"
54
 Koh, H., "The Fast Track and United States 47 Drake L. Rev. 141, 170 (1998), referring to
Trade Policy," 18 Brook. J. Int’l L. 143, 143-48 the Trade Act of 1974.
(1992).
63
 Id.
55
 Trade Act of 1974, 19 U.S.C.A. §§2191-94.
64
 Id. citing Wilson, supra note 62 at 170-172,
56
 Carr, T., "The Executive Trade Promotion referring to the Trade Act of 1974.
Authority and International Environmental
Review in the Twenty-First Century," 25 65
 Id.
Houston Journal of International Law 141,
144-145 (2002). 66
 Id., at 985 (2004), citing Koh, H.,
57
"Congressional Controls on Presidential Trade
 Id. at 145. Policymaking After I.N.S. v. Chadha," 18 N.Y.U.
J. Int’l L. & Pol. 1191, 1200-03.
58
 Id.
67
 Trade and Tariff Act of 1984, Pub. L. No. 98-
59
 Id. citing Powell, F., "Environmental 573, 98 Stat. 2948.
Protection in International Trade Agreements:
The Role of Public Participation in the 68
 Koh, H., "The Fast Track and United States
Aftermath of the NAFTA," 6 Colo J. Int’l Envtl. Trade Policy," 18 Brook. J. Int’l L. 143, 149
L. & Pol’y 109, 116 (1995). (1992).
60
 Supra note 49 at 984, citing Wilson, T., 69
 Wright, L., "Trade Promotion Authority: Fast
"Note, Who Controls International Trade? Track for the Twenty-First Century?," 12
Congressional Delegation of the Foreign William and Mary Bill of Rights Journal 979,
986 (2004), citing Koh, H., supra note 68 unfettered extension of fast-track
at 150. authority for a seven year period. . . .
This first proposal was met with
70
 Pub. L. No. 100-418, 102 Stat. 1107. immediate and unified
opposition . . . . (T)his first surge of
71
opposition amounted to a game of
 Supra note 68 at 151. ‘policy chicken.’
72
 Supra note 69, citing Koh, H., "The Fast Facing continuing opposition, the
Track and United States Trade Policy," 18 administration floated a second fast-
Brook. J. Int’l L. 143, 151 (1992), referring to track proposal . . . . Republicans and
the 1988 Act §1103(b)(5)(A)-(B)). "Section the business community once again
1103(b)(5)(A) defines the term ‘extension came out against this new
disapproval resolution’ as: proposal. . . . (T)he administration
dropped its second fast-track
a resolution of either House of the proposal and floated in its place yet
Congress . . . [that] disapproves the another proposal. . . . While the third
request of the President for the proposal garnered quick support
extension . . . of the [fast-track] from opponents of the prior two
provisions to any implementing bill proposals, it did not fare well (with
submitted with respect to any trade other groups). The administration
agreement entered into under rushed to counter this opposition,
section 1102(b) or (c) of such Act relying heavily on the argument that
after May 31, 1991, because the extension of fast-track was vital
sufficient tangible progress has not to give the administration credibility.
been made in trade negotiations. . . . In the end, the Uruguay Round bill
went forward without any fast-track
Section 1103(b)(5)(B) provides that extension." Id. at Note 70 (footnotes
extension disapproval resolutions omitted).
‘may be introduced in either House
75
of Congress by any member of such  Id., citing Lenore Sek, Congr. Res. Serv., Pub.
House [and] shall be jointly referred, No. IB10084, Trade Promotion Auth. (Fast-
in the House of Representatives, to Track Authority for Trade Agreements):
the Committee on Ways and Means Background & Devs. in the 107th Congress
and the Committee on Rules.’" Id. at (2003), detailing multiple proposals and
Note 60. speeches made by Clinton and Bush
requesting renewal of fast-track authority);
73
 Id., citing C. O’Neal Taylor, Fast Track, Trade Clinton Makes Fast Track Plea To Congress,
Policy, and Free Trade Agreements: Why the (Nov. 5, 1997), at http://
NAFTA Turned into a Battle, 28 Geo. Wash. J. www.cnn.com/ALLPOLITICS/1997/11/05/tra
Int’l L. & Econ. 1, 31 (1994): The President's de/ (last visited Mar. 4, 2003); David Schepp,
agreements were only to receive fast track Bush Wants More Trade Powers, BBC News
treatment if they were entered into before Online (Mar. 23, 2001), available at
June 1, 1991. For agreements entered into http://news.bbc.co.uk/1/hi/business/123871
after May 31, 1991, but before June 1, 1993, 7.stm.
fast track was available only if the President
76
requested an extension of negotiating  Id., citing John R. Schmertz & Mike
authority and neither house adopted an Meier, U.S. Enacts New "Fast-Track" Trade Bill,
extension disapproval resolution before June 8 Int’l L. Update 126 (2002).
1, 1991.
77
 19 U.S.C.A. §§3801-13.
74
 Id. at 988, citing Housman, R.,
"The Treatment of Labor and Environmental 78
 Trade Act of 2002 §3804 (detailing the new
Issues in Future Western Hemisphere Trade fast-track procedures).
Liberalization Efforts," 10 Conn. J. Int’l L. 301,
311-13 (1995). 79
 Supra note 69, citing 148 Cong. Rec. S10,661
(daily ed. Oct. 17, 2002) (statement of Sen.
"Initially, the (Clinton) Baucus).
administration sought a virtually
80 92
 Id. at 989.  Id., §3807(a)(2)-(3).

81 93
 Id., citing 148 Cong. Rec. S7768 (daily ed.  Id., §3807(a)(4). "Without accreditation,
Aug. 1, 2002) (statement of Sen. Baucus) congressional representatives would be
("This will give Congress a chance to affect the bystanders and would not be permitted to
outcome of the negotiations well before they participate directly in negotiations. As
occur."). accredited representatives, the members of
the COG have the authority to act on behalf of
82
 Id., citing 148 Cong. Rec. S10,660 (daily ed. the United States in negotiations." Supra note
Oct. 17, 2002) (statement of Sen. Baucus) 83 at 992, citing Note 98.
("Indeed, the Trade Act of 2002 contemplates
94
an even closer working relationship between  Wright, L., "Trade Promotion Authority: Fast
Congress and the Administration . . . ."). Track for the Twenty-First Century?," 12
William and Mary Bill of Rights Journal 979,
83
 Wright, L., "Trade Promotion Authority: Fast 992 (2004), citing 148 Cong. Rec. S9108 (daily
Track for the Twenty-First Century?," 12 ed. Sept. 24, 2002) (statement of Sen.
William and Mary Bill of Rights Journal 979, Grassley); see also Trade Act of 2002 §3807(a)
989 (2004), citing Trade Act of 2002 §3805(b). (4). The purpose of the COG is "to provide
"If the agreement negotiated by the advice to the Trade Representative regarding
administration does not meet the the formulation of specific objectives,
congressional requirements, ‘there are ways negotiating strategies and positions, the
that either House of Congress can derail a development of the applicable trade
trade agreement.’ 148 Cong. Rec. S7768 (daily agreement, and compliance and enforcement
ed. Aug. 1, 2002) (statement of Sen. Baucus) of the negotiated commitments under the
(referring to Trade Act of 2002 §3805(b))." Id. trade agreement."
at Note 80.
95
 Trade Act of 2002 §3804(a)(2).
84
 Trade Act of 2002 §3803 provides the
96
authorization for the President to negotiate a  Id., §3804(a)(1) (requiring that written
trade agreement with a foreign country notice be provided at least ninety days prior to
regarding tariff and/or nontariff barriers and the commencement of negotiations).
the guidelines he must follow.
97
 Id., §3804(a)(1).
85
 Trade Act of 2002 §3803.
98
 Supra note 94, citing 148 Cong. Rec. S7768
86
 Id., §3803(a). Limitations on modifications (daily ed. Aug. 1, 2002) (statement of Sen.
to tariff barriers primarily set minimums for Baucus) (referring to §3804(a)(3)).
rate of duty reductions.
99
 Id., citing 148 Cong. Rec. S7768 (daily ed.
87
 Supra note 83 at 990, citing Trade Act of Aug. 1, 2002) (statement of Sen. Baucus)
2002 §3803(b) (limiting agreements as (setting limitations on trade authorities
provided in sections 3802 and 3804). "The procedures Trade Act of 2002 §3805(b)).
President's actions are considerably more
restricted under the Trade Act of 2002 than 100
 Id., citing 148 Cong. Rec. S9107 (daily ed.
under previous legislation. Compare Trade Act Sept. 24, 2002) (statement of Sen. Grassley).
of 1974, 19 U.S.C.A. §§2101-2495 (1974) and
Omnibus Trade and Competitiveness Act of 101
1988, Pub. L. No. 100-418, 102 Stat. 1107 with  Supra note 94 at 992.
Trade Act of 2002, §§3801-13." Id. at Note 84.
102
 §§401-402, Tariff and Customs Code of the
88
 Trade Act of 2002 §3804(a). Philippines, Presidential Decree No. 1464,
promulgated June 11, 1978, amending
89
Republic Act No. 1937, An Act to Revise and
 Id., §3804. Codify the Tariff and Customs Laws of the
Philippines, enacted on June 22, 1957.
90
 Id., § 3804(b)-(c).
103
 Congress authorized the President to enter
91
 Id., §3807. into foreign trade agreements and to impose
and regulate duties and other import peso, and in establishing and
restrictions, under Rep. Act No. 1189, entitled maintaining better relations between
"An Act Authorizing the President of the the Philippines and other countries,
Republic of the Philippines to Enter into Trade the President, is authorized from
Agreements with Other Countries for a time to time:
Limited Period and for Other Purposes,"
enacted on June 20, 1954; and Rep. Act. No. (1) To enter into trade agreements
1937, entitled "An Act to Revise and Codify the with foreign governments or
Tariff and Customs Laws of the Philippines," instrumentalities thereof; (emphasis
enacted on June 22, 1957. supplied)
104
 Tariff and Customs Code of 1978, §402, Rep. Act. No. 1937, provides
Presidential Decree No. 1464, provides, viz: for the authority of the President to
enter into trade agreements, viz:
WHEREAS, the Tariff and Customs
Code of the Philippines known as Sec. 402. Promotion of Foreign Trade
Republic Act No. 1937 has been
amended by several Presidential
Decrees dating back to the year a. For the purpose of expanding
1972; foreign markets for Philippine
products as a means of assisting in
the economic development of the
x x x           x x x          x x x country, in overcoming domestic
unemployment, in increasing the
NOW, THEREFORE, I, FERDINAND E. purchasing power of the Philippine
MARCOS, President of the Republic of peso, and in establishing and
the Philippines, by virtue of the maintaining better relationship
powers in me vested by the between the Philippines and other
Constitution, do hereby order and countries, the President, upon
decree as follows: investigation by the Commission and
recommendation of the National
Section 1. Codification of all Tariff Economic Council, is authorized from
and Customs Laws. — All tariff and time to time:
customs laws embodied in the
present Tariff and Customs Code and (1) To enter into trade agreements
various laws, presidential decrees with foreign governments or
and executive orders including new instrumentalities thereof; (emphasis
amendments thereto made in this supplied)
Decree, are hereby consolidated into
a single Code to be known as the 106
 §401, Tariff and Customs Code of 1978,
Tariff and Customs Code of 1978 Presidential Decree No. 1464, provides, viz:
which shall form an integral part of
this Decree. (emphasis supplied)
Sec. 401. Flexible Clause.
105
 §402, Tariff and Customs Code of 1978,
Presidential Decree No. 1464, provides for the In the interest of national economy,
authority of the President to enter into trade general welfare and/or national
agreements, viz: security, and subject to the
limitations herein prescribed, the
President, upon recommendation of
Sec. 402. Promotion of Foreign the National Economic and
Trade. — Development Authority (hereinafter
referred to as NEDA), is hereby
a. For the purpose of expanding empowered: (1) to increase, reduce
foreign markets for Philippine or remove existing protective rates
products as a means of assistance in of import duty (including any
the economic development of the necessary change in classification).
country, in overcoming domestic The existing rates may be increased
unemployment, in increasing the or decreased to any level, in one or
purchasing power of the Philippine several stages but in no case shall the
 increased rate of import duty be (FTA). FTAs cover both tariff and non-tariff
higher than a maximum of one barriers.
hundred (100) per cent ad valorem;
(2) to establish import quota or to 113
 Id. at 19; see also Annex C.
ban imports of any commodity, as
may be necessary; and (3) to impose 114
an additional duty on all imports not  Ponencia.
exceeding ten (10%) percent ad
115
valorem whenever necessary;  G.R. No. 169777, April 20, 2006, 488 SCRA
(emphasis supplied) 1, 45.

116
§401, Rep. Act. No. 1937, provides,  Iraola, R. "Congressional Oversight,
viz: Executive Privilege, and Requests for
Information Relating to Federal Criminal
Sec. 401. Flexible Clause. Investigations and Prosecutions," 87 Iowa Law
Review 1559, 1571 (2002).
The President, upon investigation by 117
the Commission and  G.R. No. 95367, May 23, 1995, 244 SCRA
recommendation of the National 286.
Economic Council, is hereby
118
empowered to reduce by not more  Id., citing 10 Anno., Government Privilege
than fifty per cent or to increase by Against Disclosure of Official Information, 95
not more than five times the rates of L. Ed. 3-4 and 7, pp. 427-29, 434.
import duty expressly fixed by
statute (including any necessary 119
 G.R. No. 130716, December 9, 1998, 299
change in classification) when in his SCRA 744.
judgment such modification in the
rates of import duty is necessary in 120
the interest of national economy,  5 Records of the Constitutional
general welfare and/or national Commission, p. 25.
defense. (emphasis supplied)
121
 345 U.S. 1 (1953).
107
 Aruego, J., The Framing of the Philippine
122
Constitution (1936), Vol. 1, p. 388.  Id. at 7-8, 10.

108 123
 2 Records of the Constitutional  Petition, Annex I.
Commission, p. 191.
124
 Comment, p. 21.
109
 The 1973 Constitution similarly provides in
Article VIII, Sec. 17(1), viz: 125
 Id. at 23.

Sec. 17(1). The National Assembly 126

 Id. at 28, Annex P.
may by law authorize the Prime
Minister to fix within specified limits, 127
and subject to such limitations and  In Reynolds, the Secretary of the Air Force
restrictions as it may impose, tariff filed a formal "Claim of Privilege" and objected
rates, import and export quotas, to the production of the document "for the
tonnage and wharfage dues, and reason that the aircraft in question, together
other duties or imposts. with the personnel on board, were engaged in
a highly secret mission of the Air Force." The
110
Judge Advocate General of the U.S. Air Force
 United States v. Curtiss-Wright Export also filed an affidavit, which claimed that the
Corporation, 299 U.S. 304, 320 (1936). demanded material could not be furnished
"without seriously hampering national
111
 Id. security, flying safety and the development of
highly technical and secret military
112
 See Comment, p. 2. The JPEPA is a equipment." On the record before the trial
comprehensive bilateral free trade agreement court, it appeared that the accident that gave
rise to the case occurred to a military plane
 137
that had gone aloft to test secret electronic  Id. at 946.
equipment. The Reynolds Court found that on
the basis of all the circumstances of the case 138
 Id. at 947.
before it, there was reasonable danger that the
accident investigation report would contain 139
references to the secret electronic equipment  Id. at 947-948.
that was the primary concern of the mission,
140
which would be exposed if the investigation  Kennedy, supra note 135 at 1769; see also
report for the accident was disclosed. Iraola, R. "Congressional Oversight, Executive
Privilege, and Requests for Information
128
 345 U.S. 1, 8 (1953). Relating to Federal Criminal Investigations
and Prosecutions," Iowa Law Review, vol. 87,
129
no. 5, August 2002, pp. 1559 and 1578,
 Concurring Opinion of Justice Antonio T. citing Judicial Watch, Inc. v. Clinton, 880 F.
Carpio. Supp. 1, 12 (D.D.C. 1995), aff’d, 76 F.3d 1232
(D.C. Cir. 1996).
130
 Separate Opinion of Justice Dante O. Tinga.
141
 NLRB v. Sears, Roebuck & Co., 421 U.S. 132
131
 "… At the time when the Committee was (1975).
requesting the copies of such documents, the
negotiations were ongoing as they are still 142
 Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C.
now and the text of the proposed JPEPA is still Cir. 1997).
uncertain and subject to change. Considering
the status and nature of such documents then 143
and now, these are evidently covered by  Coastal States Gas Corp. v. Department of
executive privilege… Energy, 617 F.2d 854 (D.C. Cir. 1980).

144
… Practical and strategic  Id.
considerations likewise counsel
145
against the disclosure of the "rolling  In re Sealed Case (Espy), 121 F.3d 729
texts" which may undergo radical (1997), p. 736, citing NLRB v. Sears, Roebuck
change or portions of which may be & Co., 421 U.S. 132 (1975).
totally abandoned. Furthermore, the
negotiations of the representatives of 146
 Id. at 736.
the Philippines as well as of Japan
must be allowed to explore 147
alternatives in the course of the  Northrop Corp. v. McDonnell Douglas Corp.,
negotiations…" Comment, p. 21. 751 F.2d 395, 399 (D.C. Cir. 1984).

148
132
 In re Sealed Case (Espy), 121 F.3d 729  In re Sealed Case, 121 F.3d 729, 737 (D.C.
(1997), p. 737, citing Carl Zeiss Stiftung v. Cir. 1997).
V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324
149
(D.D.C.1966), aff'd, 384 F.2d 979  Id. at 737-38; see also In re Subpoena
(D.C.Cir.1967); accord NLRB v. Sears, Roebuck Served Upon the Comptroller of the Currency,
& Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504, 967 F.2d 630, 634 (D.C. Cir. 1992) (discussing
1516-18, 44 L.Ed.2d 29 (1975); EPA v. how, in balancing competing interests, the
Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, court should consider a number of factors
35 L.Ed.2d 119 (1973). such as the relevance of the evidence,
seriousness of the litigation, and availability of
133
 157 F. Supp. 939 (Ct. Cl. 1958). other evidence); Jensen, K., "The Reasonable
Government Official Test: A Proposal for the
134
Treatment of Factual Information under the
 Id., Note 4. Federal Deliberative Process Privilege," 49
Duke L.J. 561, 578-579 (1999) (discussing and
135
 Kennedy, M., "Escaping the Fishbowl: A identifying the factors).
Proposal to Fortify the Deliberative Process
Privilege," 99 Northwestern University Law 150
 The In re Sealed Case (Espy) arose because
Review (hereafter Kennedy) 1769 (2005). of allegations that U.S. Secretary of
Agriculture, Mike Espy, may have improperly
136
 157 F. Supp. 939 (Ct. Cl. 1958), pp. 945-946. accepted gifts from individuals and
 155
organizations with business before the U.S.  In re Sealed Case (Espy), 121 F.3d 729
Department of Agriculture. These allegations (1997), p. 737, citing Carl Zeiss Stiftung v.
led to the appointment of an Independent V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324
Counsel, to investigate the allegations and to (D.D.C.1966), aff'd,384 F.2d 979
prosecute any related violations of federal law (D.C.Cir.1967); accord NLRB v. Sears, Roebuck
that the Office of the Independent Counsel & Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504,
(OIC) reasonably believed had occurred. The 1516-18, 44 L.Ed.2d 29 (1975); EPA v.
same allegations led the President of the Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39,
United States to direct the White House 35 L.Ed.2d 119 (1973).
Counsel to investigate Espy’s conduct in order
to advise the President on whether he should 156
 This conclusion is in line with the ruling of
take executive action against Espy. The White the U.S. District Court of the District of
House publicly released a report on Espy Columbia in Center for International
produced by the White House Counsel. Environmental Law (CIEL) v. Office of the
Subsequently, a grand jury issued the United States Trade Representative (237 F.
subpoena duces tecum at issue in this case. Supp. 2d 17) which the ponencia discusses.
The subpoena sought all documents on Espy However, CIEL was litigated under the
and other subjects of the OIC’s investigation Freedom of Information Act (FOIA) in the U.S.
that were "accumulated for, relating in any which requires that
way to, or considered in any fashion, by those information/communication should be "inter-
persons who were consulted and/or agency" for it to come within the protection of
contributed directly or indirectly to all drafts the deliberative process privilege. The FOIA
and/or versions" of the White House Counsel’s does not have a counterpart in the Philippines.
report. The subpoena specifically requested Instead, the above conclusion on the non-
notes of any meetings in the White House application of the deliberative process
concerning Espy and of any conversations privilege to the subject JPEPA documents was
between Espy or his counsel and White House reached by going back to the rationale and
employees. The White House produced several history of deliberative process privilege.
folders of documents, but withheld some on
the basis mostly of deliberative process
privilege. In CIEL, nonprofit groups monitoring
international trade and
151
environmental issues brought a
 G.R. No. 180643, March 25, 2008. Freedom of Information Act (FOIA)
suit against the Office of the United
152
 With respect to deliberative process States Trade Representative, seeking
privilege, only pre-decisional and deliberative information related to the
materials are covered; hence, the agency must negotiation of the U.S.-Chile Free
first show that the agency material sought is Trade Agreement. Under the FOIA,
pre-decisional and deliberative for a qualified deliberative and pre-decisional
privilege to attach. With respect to communications between and within
presidential communications privilege, the agencies of the U.S. government are
presidential communications must be made in exempt from government duty to
the performance of the President’s disclose information. Accordingly,
responsibilities of his office and in the process the U.S. District Court of the District
of shaping policies and making decisions. Once of Columbia held that
this requisite is satisfied, a qualified privilege communications between the U.S.
attaches to the presidential communication. and Chile, in the course of treaty
negotiations, were not "inter-agency"
153
 In re Sealed Case, 121 F.3d. at 737. within the meaning of FOIA
exemption and thus should be
154
disclosed to the nonprofit groups
 Id. at 745. seeking access to them.

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 x x x           x x x          x x x
‘includes any executive department,
military department, Government The decision in Ryan v. Dep’t of
corporation, Government controlled Justice, 617 F.2d 781, also is
corporation, or other establishment distinguishable. In Ryan, the court of
in the executive branch of the appeals held that communications
Government ..., or any independent produced by Senators in response to
regulatory agency,’ § an agency questionnaire regarding
522(f)." Klamath Water Users, 532 nominating procedures for judicial
U.S. at 9, 121 S.Ct. 1060. In general, candidates fell within the narrow
this definition establishes that ambit of Exemption 5 (deliberative
communications between agencies process privilege). The court
and outside parties are not protected characterized the Senators as
under Exemption 5 (deliberative "temporary consultants" who were
process privilege)… See, "solicited to give advice only for
e.g., Brownstein Zeidman & Schomer specific projects." … In the instant
v. Dep't of the Air Force, 781 F.Supp. case, by contrast, the Chilean officials
31, 35 (D.D.C.1991) ("While FOIA were not solicited for advice but
exemption 5 does protect intra- rather negotiated with and treated as
governmental deliberations, it does adversaries openly seeking to
not cover negotiations between the advance their own interests… (237 F.
government and outside parties."); Supp. 2d 17, 28). (emphasis
see also Mead Data Central, Inc. v. supplied)
United States Dep't of the Air
Force, 566 F.2d at 257-58 (policy
objectives of Exemption 5 not The District Court of the District of
applicable to negotiations between Columbia distinguished the CIEL case
agency and outside party). from Fulbright & Jaworski v. Dep’t. of
Treasury (545 F. Supp. 615 [D.D.C.
1982]), which also dealt with
… Chilean officials are not "enough deliberative process privilege in
like the agency’s own personnel to relation to treaty negotiations (and
justify calling their communications which the ponencia likewise
‘intra-agency.’ " Klamath Water discussed), viz:
Users, 532 U.S. at 12, 121 S.Ct. 1060.
Nor did the documents that Chile
submitted to USTR play "essentially In that case (Fulbright & Jaworski),
the same part in [the] agency's one of very few to consider
process of deliberation as documents Exemption 5 (deliberative process
prepared by agency personnel might privilege) in the context of foreign
have done." …It may be true, as relations, individual notes taken by a
defendants assert, that Chilean United States negotiator during
proposals and responses are treaty discussions with France were
essential to USTR’s development of protected from release under
its own negotiating positions, but the Exemption 5. The court held that
role played by such documents is "releasing these snapshot views of
unmistakably different from the role the negotiations would be
of internally created documents; comparable to releasing drafts of the
Chile shares its positions not in order treaty" and consequently would risk
to advise or educate USTR but in great harm to the negotiations
order to promote its own interests. process… Despite the superficial
See Def. Mem. at 22 (acknowledging similarity of context - the "give-and-
that "Chile seeks to achieve its own take" of treaty negotiations - the
objectives through the difference is that the negotiator’s
negotiations"). Nor does the fact that notes at issue in Fulbright & Jaworski
USTR "needs to understand what is were clearly internal. The question of
important to Chile in order to disclosure turned not on the inter-
develop its own positions" confer agency requirement of Exemption 5
inter-agency status on these external but on whether or not the documents
documents. Def. Mem. at 21. ( 237 F. were part of the agency’s pre-
Supp. 2d 17, 25). decisional deliberative process…
Judge Green’s discussion of the harm
 that could result from disclosure for goods and increasing the size of the
therefore is irrelevant, since the economy, many Americans do not see it as a
documents at issue here are not pressing issue, central to the way in which
inter-agency, and the Court does not they live their lives." Id. at Note 11 (citations
reach the question of deliberative omitted).
process. (237 F. Supp. 2d 17, 29)
(emphasis supplied) 161
 Id., citing John Day Larkin, Trade
Agreements: A Study in Democratic Methods
157
 U.S. v. Reynolds, 345 U.S. 1 122-28 (1940). "For example, the Fordney-
(1953); Northrop Corp. v. McDonnell Douglas McCumber Act of 1922, though it delegated
Corp., 751 F.2d 395, 399 (D.C. Cir. 1984). some congressional tariff-making powers to
the President, still led to increased tariffs
158
 Ponencia. because the President found himself under too
much congressional scrutiny to act in the best
159
interests of the nation. Overall, when
 Schoenborn, B., "Public Participation In considering international trade agreements,
Trade Negotiations: Open Agreements, Openly most members of Congress may be divided
Arrived At?," 4 Minnesota Journal of Global into two groups: those who are protectionist
Trade 103 (1995). "As delegates, elected at all times and give interest groups whatever
representatives act on their constituents’ they need to retain their tariffs; and those who
behalf in both foreign and domestic affairs. do not, in principle, favor protectionism but
Interested private parties or organizations feel they must not let their constituents down
meet with their elected officials to discuss U.S. while a tariff bill is pending. As a result,
foreign trade policy when current issues allowing legislative input into the process of
pertain to their particular businesses. enacting trade agreements led only to
Typically, these occasions arise when issues increased tariffs with relatively few instances
are ‘intermestic.’ Intermestic issues are those of tariff reductions. To avoid the evils of
that effect both domestic and international logrolling and partisan politics, Congress
policies. John W. Spanier & Eric M. Uslaner, enacted legislation establishing general
American Foreign Policy Making and the policies to be carried out by the
Democratic Dilemmas 28 (1994). Intermestic administration. This action was the only way
issues, such as trade and energy issues, attract to lower tariffs "in the public interest without
increased interest group representation, opening up a logrolling orgy." Id. at Note 16
articulation, and influence. Often ‘so many (citations omitted).
groups have interests in the outcome of
policies and see the stakes as so high that 162
these groups may control much of the policy  Id. at 105-06.
process. Businesses, banks, agriculture and
163
shipping interests, and labor organizations  19 U.S.C. §1351(a)(2) (1934) (current
have a natural interest in trade, foreign version at 19 U.S.C. §1351 [1988]) ("No
investment, and tariff issues.’" Id. at Note 10 proclamation shall be made increasing or
(citations omitted). decreasing by more than 50 per centum any
existing rate of duty or transferring any article
160
 Id. "For most of U.S. history, international between the dutiable and free lists.").
trade relationships were considered a
164
relatively minor area of government activity.  Supra note 159 at 108. "From 1934 to 1939,
Generally, domestic issues are more important the reciprocal trade agreements stimulated
than foreign issues to Americans because the the domestic economy enormously. Walter La
public considers those issues that most closely Feber, The American Age 356 (1989). U.S.
affect daily life to be most important to them. exports rose by nearly one billion dollars and
According to the Gallup Poll, since the late the U.S. favorable trade imbalance increased
1960s, Americans have consistently placed from one-half billion dollars to one billion
domestic issues far above foreign issues when dollars." Id. at Note 21.
considering the most important problem
facing the country. Harold W. Stanley & 165
 Id.
Richard G. Niemi, Vital Statistics on American
Politics 164 (4th ed. 1994). In most years after 166
1972, over 80% of those surveyed chose a  As codified in 19 U.S.C. §1354 (1934), the
domestic issue over a foreign one. While 1934 Act provided:
international trade most certainly affects life
in the broad sense by creating new markets
 Before any foreign trade agreement surrounding the 1973 Arab oil embargo)." Id.
is concluded with any foreign at Note 36.
government or instrumentality
thereof under the provisions of Part 172
 Trade Act of 1974, 19 U.S.C. §§2101-2487
III of this title, reasonable public (Supp. V 1975) (current version at 19 U.S.C.
notice of the intention to negotiate §§2101-2487 [1988 ). With regard to the Act
an agreement with such government of 1974, Professors Jackson and Davey have
or instrumentality shall be given in stated that "[i]n many ways, the struggle of
order that any interested person may Congress to regain some authority over
have an opportunity to present his international economic affairs was best
views to the President, or to such manifested in the passage of the 1974 Trade
agency as the President may Act ..." Jackson & Davey, Legal Problems of
designate, under such rules and International Economic Relations 77 (2d ed.
regulations as the President may 1986).
prescribe; and before concluding
such agreement the President shall 173
seek information and advice with  19 U.S.C. §2155 (Supp. V 1975) (current
respect thereto from the United version at 19 U.S.C. §2155 [1988 ).
States Tariff Commission, the
174
Departments of State, Agriculture,  The president must seek information and
and Commerce and from such other advice on negotiating objectives, bargaining
sources as he may deem appropriate. positions, the operation of a trade agreement
(current version at 19 U.S.C. §1354 once entered into, and other matters arising in
[1988]). connection with the development,
implementation, and administration of U.S.
167
 Supra note 159 at 109, citing Larkin, J.D., trade policy. 19 U.S.C. §2155(a).
Trade Agreements: A Study in Democratic
175
Methods, 48-58 (1940).  19 U.S.C. §2155(a)-(c).

168 176
 Id. at 109, Note 24.  Additionally, §2155 of the 1974 Act created
the Advisory Council for Trade Policy and
169
 Id. at 111-112. Negotiations (ACTPN). That group was
established as a permanent group to provide
170
constant policy advice on matters such as
 Id. at 112. "According to the Economic negotiating objectives, bargaining positions,
Report of the President, 1975 was the last year and the operation of trade agreements. 19
the United States experienced a merchandise U.S.C. §2155.
trade surplus (i.e., the value of exports was
greater than the value of imports). Stanley & 177
Niemi, Vital Statistics on American Politics 370  Schoenborn, B., "Public Participation In
(4th ed. 1994). Moreover, in 1974 and 1975, Trade Negotiations: Open Agreements, Openly
America's gross domestic and national Arrived At?," 4 Minnesota Journal of Global
products declined as the nation suffered a Trade 103, 113-114 (1995).
recession. Id. at 417." Id. at Note 34.
178
 Id. at 114-115. "As a result of a similar
171
 "One issue that raised public awareness economic climate which, during the Great
with regard to international trade was the oil Depression, spurred the passage of the 1934
embargo of 1973. The Organization of Act, the Reagan and Bush Administrations
Petroleum Exporting Countries (OPEC) agreed initiated the concept of reducing barriers to
on reduced production levels that increased trade between Mexico, Canada, and the United
world prices. This action was taken in States in order to increase the economies of all
retaliation for the U.S. support of Israel in the three nations involved. President Clinton
Arab-Israeli War. As a result of America’s supported and Congress passed the North
dependence on Middle-Eastern oil, prices American Free Trade Agreement in December
skyrocketed and long lines at the gas pump led 1993." Id. at Note 48.
to a wave of economic insecurity across
179
America. See generally Ibrahim F.I. Shihata,  Katt, Jr., W., "The New Paper Chase: Public
The Case for the Arab Oil Embargo (1975) Access to Trade Agreement Negotiating
(discussing the history and politics Documents," 106 Columbia Law Review 679,
Note 2 (2006).
180
 Schoenborn, B., "Public Participation In NAFTA: A Retrospective," 7 Journal of
Trade Negotiations: Open Agreements, Openly Environmental Law and Litigation (1992), 99,
Arrived At?," 4 Minnesota Journal of Global 101.
Trade 103, 116 (1995). "James O.
Goldsborough notes that the public is 188
 Dannenmaier, E., "Trade, Democracy, and
becoming more engaged in U.S. foreign policy the FTAA: Public Access to the Process of
in the post-Cold War period. ‘The idea is that Constructing a Free Trade Area of the
foreign and domestic policy are becoming one, Americas," 27 Fordham International Law
and that presidents no longer can treat foreign Journal 1066, 1078 (2004) citing Second
policy as their own privileged -- and private -- Summit of the Americas: Declaration of
domain.’ James O. Goldsborough, Whose View? Principles and Plan of Action, Santiago, Chile,
Despite Heightened Public Interest in Foreign Apr. 19, 1998, reprinted in 37 I.L.M. 947, 950
Policy, the President Must Prevail, San Diego (1998).
Union-Trib., Jun. 14, 1993, at B5.
Goldsborough also states that the public will 189
continue to demand a stronger voice in  Id. at 1078 citing Second Summit of the
international affairs. Americas: Declaration of Principles and Plan of
Action, Santiago, Chile, Apr. 19, 1998,
reprinted in 37 I.L.M. 947, 951 (1998).
In an era of free trade with Mexico,
fair trade with Japan and 190
environmental treaties that attempt  Id., citing Third Summit of the Americas:
to preserve the earth for future Declaration of Principles, Quebec City, Canada,
generations, foreign policy has Apr. 22, 2001, available at http://www.ftaa-
achieved a domestic content it has alca.org/summits/quebec/declara_ e.asp.
not had before. There is nothing
191
‘foreign’ about such issues. They  Id., citing Third Summit: Declaration of
have a direct impact on the quality of Principles; Plan of Action at 14-15.
life of individuals." Id. at Note 50.
192
 Id.
181
 Id. at 116. "‘(N)ow, for the first time,
ordinary Americans are beginning to discover 193
 Id. at 1082-83.
that national and international trade decisions
have critical relevance to their daily lives. And 194
as they increasingly seek a greater voice ... the  Id. at 1096.
trading game will never again be the same.’
195
Charles Lewis, The Treaty No One Could Read:  Id. at 1116.
How Lobbyists and Business Quietly Forged
NAFTA, Wash. Post, June 27, 1993, at C1." Id. at 196
 Id. at 1115.
Note 52.
197
182
 Katt, Jr., W., "The New Paper Chase: Public
 Supra note 179. Access to Trade Agreement Negotiating
Documents," 106 Columbia Law Review 679,
183
 Schoenborn, B., "Public Participation In 681 (2006).
Trade Negotiations: Open Agreements, Openly
Arrived At?," 4 Minnesota Journal of Global 198
 Id. at 697, citing Robert P. Deyling, Judicial
Trade 103, 123 (1995). Deference and De Novo Review in Litigation
over National Security Information under the
184
 Katt, Jr., W., "The New Paper Chase: Public Freedom of Information Act, 37 Vill. L. Rev. 67,
Access to Trade Agreement Negotiating 93 (1992).
Documents," 106 Columbia Law Review
(2006) 679, citing 19 U.S.C.A. §3802(b)(5). 199
 N.Y. Times Co. v. United States, 403 U.S. 713,
729 (1971) (Stewart, J., concurring)
185
 Supra note 183 at 116.
200
 Supra note 197 at 681.
186
 Id. at 122.
201
 4 Records of the Constitutional
187
 Gregory, M. "Environment, Sustainable Commission, p. 735.
Development, Public Participation and the
202
 Id. at 752. Records of the Constitutional
Commission, p. 25)
203
 Id. at 769.
212
 1 Records of the Constitutional
204
 1987 Phil. Const. Art. X, §3. Commission, p. 709.

213
205
 1987 Phil. Const., Art. VI, §32; Art. X, §3.  G.R. No. 74930, February 13, 1989, 170
SCRA 256 (1989).
206
 1987 Phil. Const., Art. VI, §32; Art. X, §3. 214
 Id. at 264-266.
207
 5 Records of the Constitutional 215
Commission, p. 24.  Bernas, J., The 1987 Constitution of the
Republic of the Philippines: A Commentary
208
(hereafter Bernas) (2003), p. 372.
 Id. at 26.
216
209
 G.R. No. L-72119, May 29, 1987, 150 SCRA
 Id. at 83. 530.
210
 1 Records of the Constitutional 217
 Id. at 541.
Commission, pp. 708-710, 757-758, 760.
218
211
 Id. at 371.
 The Records of the Constitutional
Commission state, viz: 219
 G.R. No. 140835, August 14, 2000, 337 SCRA
733.
MR. SUAREZ. And when we say
"transactions" which should be 220
distinguished from contracts,  Id. at 746-747.
agreements, or treaties or whatever,
221
does the Gentleman refer to the steps  80 Phil. 383 (1948).
leading to the consummation of the
contract, or does he refer to the 222
 Id.
contract itself?
223
 Dissenting Opinion of Justice Reynato S.
MR. OPLE. The "transactions" used Puno in Tolentino v. COMELEC, et al., G.R. No.
here, I suppose, is generic and, 148334, January 21, 2004, 420 SCRA 438, 489.
therefore, it can cover both steps
leading to a contract, and already a 224
consummated contract, Mr. Presiding  297 U.S. 233 (1936).
Officer.
225
 Id. at 249-250, citing 2 Cooley, Const. Lim.
MR. SUAREZ. This contemplates 8th ed. p. 886.
inclusion of negotiations leading to
226
the consummation of the  425 U.S. 748 (1976).
transaction?
227
 Bunker, M., Splichal, S., Chamberlin, B.,
MR. OPLE. Yes, subject to reasonable Perry, L., "Access to Government-Held
safeguards on the national interest. Information in the Computer Age: Applying
Legal Doctrine to Emerging Technology," 20
MR. SUAREZ. Thank you. Will the Florida State Law Review 543, 549 (1993).
word "transactions" here also refer
228
to treaties, executive agreements and  425 U.S. 748, 765, Note 19 (1976).
service contracts particularly?
229
 Wilcox, W., "Access to Environmental
MR. OPLE. I suppose that is subject to Information in the United States and the
reasonable safeguards on national United Kingdom," 23 Loyola of Los Angeles
interest which include the national International & Comparative Law Review 121,
security. (emphasis supplied) (5 124-125 (2001).
230 251
 410 U.S. 73 (1973).  G.R. No. L-72119, May 29, 1987, 150 SCRA
530.
231
 Id. at 80.
252
 Id. Analogously, in the U.S., the Freedom of
232
 425 U.S. 352, 372 (1976). Information Act (FOIA) was enacted to
facilitate public access to government
233
documents. The statute was designed "to
 437 U.S. 214 (1978). pierce the veil of administrative secrecy and to
open agency action to the light of public
234
 Id. at 242. scrutiny." Consistent with this purpose and the
plain language of the FOIA, the burden is on
235
 EPA v. Mink, 410 U.S. 73 (1973). the government agency to justify the
withholding of any requested documents.
236
(references omitted) U.S. Department of State
 5 U.S.C. 552 (b)(1). v. Ray, et al., 502 U.S. 164, 173 (1991).
237
 438 U.S. 1 (1978). 253
 G.R. No. L-72119, May 29, 1987, 150 SCRA
530.
238
 Id. at 14, citing Pell v. Procunier, 417 U.S.
817 (1974) and Stewart, "Or of the Press," 26 254
 See Legaspi v. Civil Service Commission,
Hastings LJ 631, 636 (1975). G.R. No. L-72119, May 29, 1987, 150 SCRA
530, 541; See also Comment, pp. 15-21.
239
 Note, "The Rights of the Public and the
Press to Gather Information," 87 Harvard Law 255
 For example, the U.S. FOIA provides for the
Review 1505, 1512-13 (1974). following sources of exceptions from the duty
to disclose information, viz:
240
 Coppel, P., Information Rights (2007), p. 2.
(b) This section (referring to the
241
 Id., pp. 4-5, 8, 505; Freedom of Information FOIA) does not apply to matters that
Act 2000, §2(2)(b). are--

242
 Export Credits Guarantee Department v. (1) (A) specifically authorized under
Friends of the Earth, [2008] EWHC 638 criteria established by an Executive
(Admin), citing Department for Education and order to be kept secret in the interest
Skills v. Information Commissioner and the of national defense or foreign policy
Evening Standard (2007) UKIT EA 2006 0006 and (B) are in fact properly classified
at [20]. pursuant to such Executive order;

243
 Coppel, P., supra note 240 at 550. x x x           x x x          x x x

244
 Freedom of Information Act 2000, §27(1) (3) specifically exempted from
(a). disclosure by statute (other
than section 552b of this title),
245
 Id. at §27(2). provided that such statute (A)
requires that the matters be withheld
246
from the public in such a manner as
 Freedom of Information Act 1982, §11(2). to leave no discretion on the issue, or
(B) establishes particular criteria for
247
 Id. at §33. withholding or refers to particular
types of matters to be withheld… (5
248
 Coppel, P., supra note 240 at 67. U.S.C. 552 [b][1] and [3])

256
249
 Official Information Act 1982, §§6(b) and  Bernas, pp. 372-73.
27(1); Coppel, supra note 240, pp. 68-69.
257
 Issued by President Gloria Macapagal-
250
 1987 Phil. Const. Art. III, §7. Arroyo on September 28, 2005. E.O. 464
provides in relevant part, viz:
Section 1. Appearance by Heads of Vasquez, G.R. No. 95367, 23 May
Departments Before Congress. In 1995; Chavez v. Presidential
accordance with Article VI, Section Commission on Good Government,
22 of the Constitution and to G.R. No. 130716, 9 December 1998).
implement the Constitutional
provisions on the separation of Information between inter-
powers between co-equal branches government agencies prior to the
of the government, all heads of conclusion of treaties and executive
departments of the Executive Branch agreements (Chavez v. Presidential
of the government shall secure the Commission on Good Government,
consent of the President prior to G.R. No. 130716, 9 December 1998);
appearing before either House of
Congress.
Discussion in close-door Cabinet
meetings (Chavez v. Presidential
When the security of the State or the Commission on Good Government,
public interest so requires and the G.R. No. 130716, 9 December 1998);
President so states in writing, the
appearance shall only be conducted
in executive session. Matters affecting national security
and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9
Section 2. Nature, Scope and July 2002).
Coverage of Executive Privilege.
(b) Who are covered. The following
(a) Nature and Scope. - The rule of are covered by this executive order:
confidentiality based on executive
privilege is fundamental to the
operation of government and rooted Senior officials of executive
in the separation of powers under departments who in the judgment of
the Constitution (Almonte vs. the department heads are covered by
Vasquez, G.R. No. 95367, 23 May the executive privilege;
1995). Further, Republic Act No.
6713 or the Code of Conduct and Generals and flag officers of the
Ethical Standards for Public Officials Armed Forces of the Philippines and
and Employees provides that Public such other officers who in the
Officials and Employees shall not use judgment of the Chief of Staff are
or divulge confidential or classified covered by the executive privilege;
information officially known to them
by reason of their office and not Philippine National Police (PNP)
made available to the public to officers with rank of chief
prejudice the public interest. superintendent or higher and such
other officers who in the judgment of
Executive privilege covers all the Chief of the PNP are covered by
confidential or classified information the executive privilege;
between the President and the public
officers covered by this executive Senior national security officials who
order, including: in the judgment of the National
Security Adviser are covered by the
Conversations and correspondence executive privilege; and
between the President and the public
official covered by this executive Such other officers as may be
order (Almonte vs. Vasquez, G.R. No. determined by the President.
95367, 23 May 1995; Chavez v.
Public Estates Authority, G.R. No.
133250, 9 July 2002); Section 3. Appearance of Other
Public Officials Before Congress. All
public officials enumerated in
Military, diplomatic and other Section 2 (b) hereof shall secure
national security matters which in prior consent of the President prior
the interest of national security to appearing before either House of
should not be divulged (Almonte vs. Congress to ensure the observance of
 267
the principle of separation of powers,  Id. at §27(2).
adherence to the rule on executive
privilege and respect for the rights of 268
 418 U.S. 683 (1974).
public officials appearing in inquiries
in aid of legislation. 269
 498 F.2d 725, 162 U.S. App. D.C. 183.
258
 Comment, pp. 18-20. 270
 121 F.3d 729, 326 App. D.C. 276.
259
 The Court ruled in Senate v. Ermita, viz: 271
 Secretary of Justice v. Lantion, G.R. No.
139465, October 17, 2000, 322 SCRA 160.
E.O 464 is concerned only with the
demands of Congress for the 272
appearance of executive officials in  Cabansag v. Fernandez, 102 Phil. 152;
the hearings conducted by it, and not Gonzales v. COMELEC, 137 Phil. 489 (1969);
with the demands of citizens for Bradenburg v. Ohio, 395 U.S. 444 (1969).
information pursuant to their right to
273
information on matters of public  Estrada v. Escitor, A.M. No. P-02-1651,
concern. August 4, 2003, 408 SCRA 1.

260 274
 G.R. No. 95367, May 23, 1995, 244 SCRA  1987 Phil. Const. Art. III, §7 provides, viz:
286, citing 10 Anno., Government Privilege
Against Disclosure of Official Information, 95 The right of the people to
L. Ed. 3-4 and 7, pp. 427-29, 434. information on matters of public
concern shall be recognized. Access
261
 G.R. No. 169777, April 20, 2006, 488 SCRA 1 to official records, and to documents,
(2006). The right to information was involved and papers pertaining to official acts,
in that case only "(t)o the extent that transactions, or decisions, as well as
investigations in aid of legislation are to government research data used as
generally conducted in public;" thus, "any basis for policy development, shall be
executive issuance tending to unduly limit afforded the citizen, subject to such
disclosures of information in such limitations as may be provided by
investigations necessarily deprives the people law.
of information which, being presumed to be in
aid of legislation, is presumed to be a matter of 275
 Valmonte, supra at 264.
public concern."
276
262
 Similarly, as afore-discussed, the statutes
 PMPF v. Manglapus, G.R. No. 84642, on the right of access to information of the
September 13, 1988, pp. 5-6. United States, United Kingdom, and Australia,
among others, do not require a demonstration
263
 PMPF v. Manglapus, G.R. No. 84642, of need or reason to access information.
September 13, 1988, pp. 3-4.
277
 Legaspi v. Civil Service Commission, G.R.
264
 5 Records of the Constitutional No. L-72119, May 29, 1987, 150 SCRA 530,
Commission, p. 25. 541; 1 Records of the Constitutional
Commission, p. 709.
265
 With respect to the disclosure of the subject
278
JPEPA documents to the House Special  G.R. No. 74930, February 13, 1989, 170
Committee on Globalization conducting an SCRA 256, 266.
inquiry in aid of legislation, the "reasonable
safeguard(s) for the sake of national interest" 279
 433 Phil. 506 (2002).
is that the said documents are released only
after employing a "balancing of interests test" 280
as will subsequently be shown.  Ponencia.

281
266
 Freedom of Information Act 2000, §27(1)  418 U.S. 683, 712 at Note 19.
(a).
282
 Similarly, the application of the U.S.
Freedom of Information Act (FOIA) can yield
different results between a request for corporations or associations at least
information by the public and by the sixty per centum of whose capital is
legislature. The FOIA requires executive owned by such citizens. Such
agencies to make documents available to the agreements may be for a period not
public, but sets forth nine exemptions from the exceeding twenty-five years,
Act, including matters that are specifically renewable for not more than twenty-
authorized under criteria established by an five years, and under such terms and
executive order to be kept secret in the conditions as may be provided by
interest of national defense or foreign policy law. In cases of water rights for
and are in fact properly classified pursuant to irrigation, water supply fisheries, or
such executive order… These exemptions industrial uses other than the
justify denial to the public of information from development of water power,
executive agencies, but they do not apply to beneficial use may be the measure
Congress. FOIA specifically provides that these and limit of the grant.
exemptions do not constitute authority to
withhold information from Congress. The State shall protect the nation’s
marine wealth in its archipelagic
283
 United States v. Curtiss-Wright Export waters, territorial sea, and exclusive
Corporation, 299 U.S. 304, 320 (1936). economic zone, and reserve its use
and enjoyment exclusively to Filipino
284
 TSN, Hearing of the House of citizens.
Representatives Special Committee on
Globalization and WTO, 12 October 2005, p. The Congress may, by law, allow
11. small-scale utilization of natural
resources by Filipino citizens, as well
285
 See Salazar, M., "JPEPA Concerns," Manila as cooperative fish farming, with
Bulletin, 2 June 2008; Aning, J., "Santiago priority to subsistence fishermen and
slammed for "conditional" stance on JPEPA, fish workers in rivers, lakes, bays,
Philippine Daily Inquirer (www.inq7.net), 26 and lagoons.
April 2008.
The President may enter into
286
 Memorandum of Justice Florentino P. agreements with foreign-owned
Feliciano on the Constitutional Law Aspects of corporations involving either
the Japan-Philippines Economic Partnership technical or financial assistance for
Agreement (JPEPA), Hearing of the Senate large-scale exploration,
Joint Committee on Foreign Relations and development, and utilization of
Committee on Trade and Commerce, 8 October minerals, petroleum, and other
2007, p. 7. mineral oils according to the general
terms and conditions provided by
287
law, based on real contributions to
 1987 Phil. Const. Art. XII, §2 provides, viz: the economic growth and general
welfare of the country. In such
Section 2. All lands of the public agreements, the State shall promote
domain, waters, minerals, coal, the development and use of local
petroleum, and other mineral oils, all scientific and technical resources.
forces of potential energy, fisheries,
forests or timber, wildlife, flora and The President shall notify the
fauna, and other natural resources Congress of every contract entered
are owned by the State. With the into in accordance with this
exception of agricultural lands, all provision, within thirty days from its
other natural resources shall not be execution.
alienated. The exploration,
development, and utilization of 288
natural resources shall be under the  1987 Phil. Const. Art. XII, §11 provides, viz:
full control and supervision of the
State. The State may directly Section 11. No franchise, certificate,
undertake such activities, or it may or any other form of authorization
enter into co-production, joint for the operation of a public utility
venture, or production-sharing shall be granted except to citizens of
agreements with Filipino citizens, or the Philippines or to corporations or
 associations organized under the foreign diplomatic personnel and
laws of the Philippines, at least sixty their dependents and, unless
per centum of whose capital is otherwise provided by law, for other
owned by such citizens; nor shall foreign temporary residents.
such franchise, certificate, or
authorization be exclusive in 291
 Supra note 286 at 7-8.
character or for a longer period than
fifty years. Neither shall any such 292
franchise or right be granted except  Id. at 8.
under the condition that it shall be
293
subject to amendment, alteration, or  1987 Phil. Const. Art. XVI, §11 (1) provides,
repeal by the Congress when the viz:
common good so requires. The State
shall encourage equity participation Section 11. (1) The ownership and
in public utilities by the general management of mass media shall be
public. The participation of foreign limited to citizens of the Philippines,
investors in the governing body of or to corporations, cooperatives or
any public utility enterprise shall be associations, wholly-owned and
limited to their proportionate share managed by such citizens.
in its capital, and all the executive
and managing officers of such 294
corporation or association must be  1987 Phil. Const. Art. XVI, §11 (1) provides,
citizens of the Philippines. viz:

289
 1987 Phil. Const. Art. XII, §14 provides in Sec. 11. (2) The advertising industry
relevant part, viz: is impressed with public interest,
and shall be regulated by law for the
protection of consumers and the
… The practice of all professions in promotion of the general welfare.
the Philippines shall be limited to
Filipino citizens, save in cases
prescribed by law. Only Filipino citizens or corporations
or associations at least seventy per
290
centum of the capital of which is
 1987 Phil. Const. Art. XIV, §4(2) provides, owned by such citizens shall be
viz: allowed to engage in the advertising
industry.
Section 4…. (2) Educational
institutions, other than those The participation of foreign investors
established by religious groups and in the governing body of entities in
mission boards, shall be owned such industry shall be limited to their
solely by citizens of the Philippines proportionate share in the capital
or corporations or associations at thereof, and all the executive and
least sixty per centum of the capital managing officers of such entities
of which is owned by such citizens. must be citizens of the Philippines.
The Congress may, however, require
increased Filipino equity 295
participation in all educational  Supra note 286 at 8-9.
institutions.
296
 Dean Merlin Magallona, TSN, Hearing of the
The control and administration of Senate Joint Committee on Foreign Relations
educational institutions shall be and Committee on Trade and Commerce, 8
vested in citizens of the Philippines. October 2007; see also Position Paper of
Magkaisa Junk JPEPA, Hearing of the Senate
Joint Committee on Foreign Relations and
No educational institution shall be Committee on Trade and Commerce, 4 October
established exclusively for aliens and 2007, p. 8, citing Dean Merlin Magallona’s
no group of aliens shall comprise August 14 Senate lecture on the Constitutional
more than one-third of the and Legal Implications of the JPEPA.
enrollment in any school. The
provisions of this subsection shall 297
not apply to schools established for  Id.
298
 Some of these goods provided in Annex 1 of Industry Classification:
the JPEPA are the following:
Type of National Treatment
Heading (Article 89)
Description
No.
Reservation:
2620.60 00 Ash and residues
(other than from the
manufacture of iron Measures: The Constitution
or steel) containing of the Republic of the
arsenic, mercury, Philippines, Article XII
thallium or their
mixtures, of a kind Description: 1. No foreign
used for the participation is allowed for
extraction of arsenic small-scale utilization of
or those metals or for marine resources in
the manufacture of archipelagic waters,
their chemical territorial sea and exclusive
compounds economic zones.

2621.1000 Ash and residues

2. For deep-sea fishing, corporations,
from the incineration
associations or partnerships with
of municipal waste
maximum 40 percent foreign equity
3006.80 Waste can enter into coproduction, joint
pharmaceuticals venture or production sharing
agreement with the Philippine
3825.5000 Wastes of metal Government. (emphasis supplied)
pickling liquors,
hydraulic fluids, 302
 Position Paper of Pambansang Lakas ng
brake fluids and anti-
Kilusang Mamamalakaya ng Pilipinas
freeze fluids
(Pamalakaya), Hearing of the Senate Joint
Committee on Foreign Relations and
299
 Position Paper of Magkaisa Junk JPEPA, Committee on Trade and Commerce, 8 October
Hearing of the Senate Joint Committee on 2007, p. 4.
Foreign Relations and Committee on Trade
and Commerce, 4 October 2007, p. 3. 303
 Id.

300
 Position Paper of Magkaisa Junk JPEPA, 304
 Position Paper of Magkaisa Junk JPEPA
Hearing of the Senate Joint Committee on Coalition, Hearing of the Senate Joint
Foreign Relations and Committee on Trade Committee on Foreign Relations and
and Commerce, 4 October 2007, citing Committee on Trade and Commerce, 14
provisions of the working draft text of the September 2007, p. 14.
JPEPA as of 21 April 2003 (accessed through
the Philippine Institute for Development 1987 Phil. Const. Art. XII, §2 provides
Studies, the government research institution in relevant part, viz:
tasked to study the JPEPA) and Article 29 of
the JPEPA signed by President Gloria
Macapagal-Arroyo. The State shall protect the nation’s
marine wealth in its archipelagic
301
waters, territorial sea, and exclusive
 Annex 7, 2B of the JPEPA provides, viz: economic zone, and reserve its use
and enjoyment exclusively to Filipino
2B: Schedule of the Philippines citizens.

1. Sector: Fisheries 305

 Position Paper of Task Force Food
Sovereignty and the Magkaisa Junk JPEPA
Sub-Sector: Utilization of Coalition, Hearing of the Senate Joint
Marine Resource Committee on Foreign Relations and
 Committee on Trade and Commerce, 8 October
2007, p. 4.

306
SEPARATE DISSENTING OPINION
 Id.

307
AZCUNA, J.:
 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 I fully agree with the Dissenting Opinion of Chief Justice
of the International Criminal Tribunal for the Reynato S. Puno.
former Yugoslavia that the "invocation of
states secrets cannot be taken at face value but The ponencia regrettably assumes that the power of
must be assessed by the courts." Congress, when it investigates, is either in aid of
legislation or by way of oversight. What appears to have
308
 The Vienna Convention on the Law of been forgotten is an equally important and fundamental
Treaties provides in Article 32, viz: power and duty of Congress and that is its informing
function by way of investigating for the purpose of
enlightening the electorate.
Recourse may be had to
supplementary means of
interpretation, including the Arthur M. Schlesinger, in THE IMPERIAL PRESIDENCY,
preparatory work of the treaty and aptly quotes Wilson on CONGRESSIONAL
the circumstances of its conclusion, GOVERNMENT on this power:
in order to confirm the meaning
resulting from the application of Congress’s "only whip," Wilson said, "is investigation,"
article 31 (General rule of and that "the chief purpose of investigation, even more
interpretation), or to determine the than the direction of affairs, was the enlightenment of
meaning when the interpretation the electorate. The inquisitiveness of such bodies as
according to article 31: Congress is the best conceivable source of
information…. The informing function of Congress
(a) leaves the meaning ambiguous or should be preferred even to its legislative function." For
obscure; or "the only really self-governing people is that people
which discusses and interrogates its administration."1

(b) leads to a result which is

manifestly absurd or unreasonable. This is all the more compelling in our polity because our
Constitution is replete and suffused with provisions on
309
transparency, accountability and the right of the people
 Katt, Jr., W., "The New Paper Chase: Public to know the facts of governance, as pointed out by the
Access to Trade Agreement Negotiating Chief Justice. Neither is the Philippines the only country
Documents," 106 Columbia Law Review 679, that has done this. Only last year, 2007, Mexico
693 (2006). amended its Constitution to raise to the level of a
fundamental right the public’s right to know the truth,
310
 G.R. No. 169777, April 20, 2006, 488 SCRA 1 thereby providing that: "All information in the
(2006). possession of any federal, state and municipal authority,
entity, body or organization is public xxxx." The
311
 Id. at 51. amendment reads:

312
 In the words of Thomas Jefferson, "if a The Amendment to Article 6 of the Constitution
nation expects to be ignorant and free in a
state of civilization, it expects what never was The Permanent Commission of the Honorable Congress,
and will never be." Letter from Thomas in full use of the power bestowed on it by Article 135 of
Jefferson to Colonel Charles Yancey (Jan. 6, the Constitution, and after approval by both the
1816), in 10 The Writings of Thomas Jefferson Chamber of Deputies and the Senate of Mexico, as well
4 (Paul L. Ford ed., 1899), cited in Library of as the legislatures, decrees:
Congress, Respectfully Quoted 97 (Suzy Platt
ed., 1989). A second paragraph with seven subsections is hereby
added to Article 6 of the Mexican Constitution.

The Lawphil Project - Arellano Law Foundation

Single Article. A second paragraph with seven First. The present Decree shall go into effect
subsections is added to Article 6 of the Mexican the day after its publication in the Official
Constitution, which will now read as follows: Federal Gazette.

Article 6… Second. The federal government, the states

and the Federal District, in their respective
For purposes of the exercise of the right to access to jurisdictions, shall issue legislation about
information, the federal government, the states of the access to public information and transparency,
Federal District, each in their respective jurisdictions, or make the necessary changes no later than
will comply with the following principles and bases: one year after this Decree goes into effect.

I. All information in the possession of any Third. The federal government, the states and
federal, state and municipal authority, entity, the Federal District must establish electronic
body and organism [organs] is public and may systems so that any person can use from a
only be temporarily withheld in the public distance the mechanisms for access to
interest in accordance with legislation. In information and the review procedures
interpreting this right, the principle of the mentioned in this Decree. Said systems must
maximum public-ness must prevail. be functioning no later than two years after
the Decree goes into effect. State laws shall
establish whatever is needed for
II. Information referring to individual’s private municipalities with more than 60,000
lives and personal data shall be protected as inhabitants and the territorial sub-divisions of
stipulated in and with the exceptions the Federal District to have their own
established by law. electronic systems within that same period of
time. [Emphasis supplied.]2
III. Without having to show any involvement in
the topic or justify its use, all individuals will Transparency is in fact the prevalent trend and non-
have access, free of charge, to public disclosure is the diminishing exception. The reason lies
information, his/her personal data, or to the in the recognition under international law of the
rectification of said data. fundamental human right of a citizen to take part in
governance, as set forth in the 1948 United Nations
IV. Mechanisms for access and expeditious Universal Declaration of Human Rights, a right that
review procedures shall be established. These cannot be realized without access to information.
procedures will be substantiated before
specialized, impartial bodies with operational, And even in the United States from where the privilege
managerial and decision-making autonomy. originated no President has claimed a general
prerogative to withhold but rather the Executive has
V. Entities herein mandated shall preserve claimed particular exceptions to the general rule of
their documents in updated administrative unlimited executive disclosure:
archives and shall publish in the available
electronic media complete, updated Conceding the idea of Congress as the grand inquest of
information about their management the nation, Presidents only claimed particular
indicators and the exercise of public resources. exceptions to the general rule of unlimited executive
disclosures – Washington, the protector of the exclusive
VI. Legislation will determine the manner in constitutional jurisdiction of one house of Congress
which those mandated to comply will make against invasion by the other house; Jefferson, the
public the information about public resources protector of presidential relationship within the
given to individuals or entities. executive branch and the defense of that branch against
congressional harassment; Taylor, the protection of
VII. Incompliance [Noncompliance] with the ongoing investigation and litigation; Polk, the protection
stipulations regarding access to public of state secrets in intelligence and negotiation. While
information will be sanctioned accordingly to exceptions might accumulate, no President had claimed
the law. a general and absolute prerogative to withhold. 3

TRANSITORY ARTICLES The President, therefore, has the burden to show that a
particular exception obtains in every case where the
privilege is claimed. This has not been done in the
present case. All that the Senate is asking for are copies
of the starting offers of the Philippines and of Japan.
 5
What is the deep secret in those papers? If the final  See, A.M. Schlesinger, Jr., THE IMPERIAL
product is and has been disclosed, why cannot the PRESIDENCY, 1973, p. 70.
starting offers be revealed? How can anyone, the Senate
or the electorate included, fathom – to use the favorite
word of a counsel – the end product if one is not told the The Lawphil Project - Arellano Law Foundation
starting positions?

Furthermore, Executive Secretary Ermita did not really

invoke the privilege. All he said was that, at the time of
the request, negotiations were on-going, so that it CONCURRING OPINION
was difficult to provide all the papers relative to the
proposed Treaty (which was then the request of the CARPIO, J.:
Senate). He did not say it was privileged or secret or
confidential but that it was difficult at the time to
I concur with the ponencia of Justice Conchita Carpio
comply with the request as the Executive
Morales on the following grounds:
understandably had its hands full in the midst of the
negotiations.
1. Offers and counter-offers between States
negotiating a treaty are expected by the
Now the negotiations are over. The proposed treaty has
negotiating States to remain confidential
been signed and submitted to the Senate for ratification.
during the negotiations prior to the signing of
There is no more difficulty in complying with the now
the treaty. There is no dispute on this.
reduced request of giving copies of the starting offers of
the Philippines and of Japan.
2. After the signing of the treaty, the public
disclosure of such offers and counter-offers
Since the privilege is an exception to the rule, it must be
depends on the consent of both negotiating
properly, seasonably and clearly invoked. Otherwise, it
States. A State may wish to keep its offers and
cannot be applied and sustained.
counter-offers confidential even after the
signing of the treaty because it plans to
Finally, as Ex parte Milligan4 sums it: negotiate similar treaties with other countries
and it does not want its negotiating positions
A country preserved at the sacrifice of all the cardinal known beforehand by such other countries.
principles of liberty is not worth the cost of preserving. 5 The offers and counter-offers of a negotiating
State usually include references to or
discussions of the offers and counter-offers of
I vote to compel disclosure of the requested documents.
the other negotiating State. Hence, a
negotiating State cannot decide alone to
ADOLFO S. AZCUNA disclose publicly its own offers and counter-
Associate Justice offers if they refer to or discuss the offers and
counter-offers of the other negotiating State.

3. If the Philippines does not respect the

confidentiality of the offers and counter-offers
Footnotes of its negotiating partner State, then other
countries will be reluctant to negotiate in a
1
candid and frank manner with the Philippines.
 Schlesinger, 10, 76-77 quoting: Wilson, Negotiators of other countries will know that
Congressional Government, 278, 279, 299, Philippine negotiators can be forced to
301, 303. (Emphasis supplied.) disclose publicly offers and counter-offers that
their countries want to remain confidential
2
 Ricardo Becerra, Mexico: Transparency and even after the treaty signing. Thus, negotiators
the Constitution, Voices of Mexico, Issue 80, of such countries will simply repeat to
Sept.-Dec. 2007, pp. 11-14. Philippine negotiators offers and counter-
offers that they can disclose publicly to their
3
 Op cit., note 1 at 83. own citizens, which offers and counter-offers
are usually more favorable to their countries.
4
This denies to Philippine negotiators the
 4 Wall. 120, 126 (1866). opportunity to hear, and explore, other more
balanced offers or counter-offers from
negotiators of such countries. A writer on on secrecy; and even when brought to a
diplomatic secrets puts it this way: conclusion a full disclosure of all the measures,
demands, or eventual concessions which may
x x x Disclosure of negotiating strategy and have been proposed or contemplated would
goals impairs a party's ability to negotiate the be extremely impolitic; for this might have a
most favorable terms, because a negotiating pernicious influence on future negotiations, or
party that discloses its minimum demands produce immediate inconveniences, perhaps
insures that it will get nothing more than the danger and mischief, in relation to other
minimum. Moreover, those involved in the powers. The necessity of such caution and
practice of negotiations appear to be in secrecy was one cogent reason for vesting the
agreement that publicity leads to power of making treaties in the President,
‘grandstanding,’ tends to freeze negotiating with the advice and consent of the Senate, the
positions, and inhibits the give-and-take principle on which that body was formed
essential to successful negotiation. As Sissela confining it to a small number of members. To
Bok points out, if ‘negotiators have more to admit, then, a right in the House of
gain from being approved by their own sides Representatives to demand and to have as a
than by making a reasoned agreement with matter of course all the papers respecting a
competitors or adversaries, then they are negotiation with a foreign power would be to
inclined to ‘play to the gallery . . . .’ In fact, the establish a dangerous precedent. (Emphasis
public reaction may leave them little option. It supplied)
would be a brave, or foolish, Arab leader who
expressed publicly a willingness for peace 5. The negotiation of treaties is different from
with Israel that did not involve the return of the awarding of contracts by government
the entire West Bank, or Israeli leader who agencies. In diplomatic negotiations, there is a
stated publicly a willingness to remove Israel's traditional expectation that the offers and
existing settlements from Judea and Samaria counter-offers of the negotiating States will
in return for peace.1 remain confidential even after the treaty
signing. States have honored this tradition and
4. In the present case, at least one negotiating those that do not will suffer the consequences.
State – the Philippines – does not want to There is no such expectation of keeping
disclose publicly the offers and counter-offers, confidential the internal deliberations of
including its own. The Philippines is expected government agencies after the awarding of
to enter into similar treaties with other contracts.
countries. The Court cannot force the
Executive branch to telegraph to other 6. However, in the ratification of a treaty, the
countries its possible offers and counter-offers Senate has the right to see in executive
that comprise our negotiating strategy. That session,  the offers and counter-offers made in
will put Philippine negotiators at a great the treaty negotiations even in the absence of
disadvantage to the prejudice of national consent from our treaty partner State.
interest. Offers and counter-offers in treaty Otherwise, the Senate cannot examine fully the
negotiations are part of diplomatic secrets wisdom of the treaty. In the present case,
protected under the doctrine of executive however, the Senate is not a party.
privilege. Thus, in United States v. Curtiss-
Wright,2 the leading case in American Accordingly, I vote to DISMISS the petition.
jurisprudence on this issue, the U.S. Supreme
Court, quoting with approval a letter of
President George Washington, held: ANTONIO T. CARPIO
Associate Justice
x x x 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 Footnotes
refusal the wisdom of which was recognized
by the House itself and has never since been 1
doubted. In his reply to the request, President  Benjamin S. DuVal, The Occasions of Secrecy,
Washington said: University of Pittsburgh Law Review, Spring
1986.

The nature of foreign negotiations requires 2

caution, and their success must often depend  299 U.S. 304 (1936).
 from the general practice of the community of nations.
The Lawphil Project - Arellano Law Foundation For 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 a doctrine would impair the ability of the
SEPARATE OPINION Philippines to negotiate treaties or agreements with
foreign countries. The Philippines would become
TINGA, J.: isolated from the community of nations, and I need not
expound on the negative and destabilizing implications
of such a consequence.
The dissent of our eminent Chief Justice raises several
worthy points. Had the present question involved the
legislative consideration of a domestic enactment, It should be expected that national governments,
rather than a bilateral treaty submitted for ratification including our own, would insist on maintaining the
by the Senate, I would have no qualms in voting to grant presumptive secrecy of all documents and
the petition. However, my vote to dismiss the petition, correspondences relating to treaty negotiations. Such
joining in the result of the ponencia of the esteemed approach would be maintained upon no matter how
Justice Morales, is due to my inability to blithely innocuous, honest or above-board the privileged
disregard the diplomatic and international information actually is, since an acknowledgment that
ramifications should this Court establish a rule that such information belongs to the public record would
materials relevant to treaty negotiations are diminish a nation’s bargaining power in the negotiation
demandable as a matter of right. The long-standing of treaties. This truth may be borne moreso out of
tradition of respecting the confidentiality of diplomatic realpolitik, rather then the prevalence of a pristine legal
negotiations is embodied in the rule according principle, yet it is a political reality which this Court has
executive privilege to diplomatic secrets. to contend with since it redounds to the ultimate
wellbeing of the Philippines as a sovereign nation. On
the premise that at least a significant majority of the
The ponente engages in a thorough and enlightening
most relevant players in the international scene adhere
discussion on the importance and vitality of the
to the basic confidentiality of treaty negotiations no
diplomatic secrets privilege, and points out that such
matter the domestic implications of such confidentiality,
privilege, which is a specie of executive privilege, serves
then it can only be expected that such nations will
to balance the constitutional right to information
hesitate, if not refuse outright, to negotiate treaties with
invoked in this case. If I may add, in response to the
countries which do not respect that same rule.
Dissenting Opinion which treats the deliberative
process privilege as "a distinct kind of executive
privilege" from the "diplomatic secrets privilege", The Dissenting Opinion does strive to establish that in
notwithstanding the distinction, both deliberative certain countries such as the United States, the United
process privilege and diplomatic secrets privilege Kingdom, Australia and New Zealand, there is
should be jointly considered if the question at hand, as established a statutory right to information that allows
in this case, involves such diplomatic correspondences those states’ citizens to demand the release of
related to treaty negotiations. The diplomatic character documents pertinent to public affairs. However, even
of such correspondences places them squarely within the dissent acknowledges that in the United Kingdom
the diplomatic secrets privilege, while the fact that the for example, "confidential information obtained from a
ratification of such treaty will bestow on it the force and State other than the United Kingdom" or information
effect of law in the Philippines also places them within that would be likely to prejudice relations between the
the ambit of the deliberate process privilege. Thus, it United Kingdom and other countries are exempt from
would not be enough to consider the question of its own Freedom of Information Act of 2000. It is
privilege from only one of those two perspectives, as impossible to conclude, using the examples of those
both species of executive privilege should be ultimately countries, that there is a general presumptive right to
weighed and applied in conjunction with each other. access documents relevant to diplomatic negotiations.

In ascertaining the balance between executive privilege It would be a different matter if the petitioners or the
and the constitutional right to information in this case, I dissent were able to demonstrate that a significant
likewise consider it material to consider the number of nations have adopted a paradigm that
implications had the Court established a precedent that incorporates their treaty negotiations into the public
would classify such documents relating to treaty record out of recognition of the vital right to
negotiations as part of the public record since it is information, transparency, good governance, or
encompassed within the constitutional right to whatever national interest revelation would promote;
information. The Dissenting Opinion is unfortunately or that there is an emerging trend in international law
unable to ultimately convince that establishing such a that recognizes that treaty negotiations are not
general rule would not set the Philippines so far apart privileged in character, or even if so, that the privilege is
of such weak character that it may easily be overcome. Where the contracting nations to a treaty share a
If either circumstance was established, it would be common concern for the basic confidentiality of treaty
easier to adopt the position of the dissent, which negotiations it is understandable that such concern may
admirably attempts to infuse full vitality into the evolve unto a firm norm of conduct between them for as
constitutional rights of the people, as it would assure long as no conflict between them in regard to the treaty
that such constitutional affirmation would not come at emerges. Thus, with respect to the subject treaty the
the expense of the country’s isolation from the Government of the Philippines should expectedly heed
community of nations. Japan’s normal interest in preserving the confidentiality
of the treaty negotiations and conduct itself accordingly
Unfortunately, neither the Dissenting Opinion nor the in the same manner that our Government expects the
petitioners herein, have attempted to engage such Japanese Government to observe the protocol of
perspective. A cursory inquiry into foreign confidentiality.
jurisprudence and international law does not reveal
that either of the two trends exist a the moment. In the Even if a case arises between the contracting nations
United Kingdom, the concept of State interest immunity concerning the treaty it does not necessarily follow that
(formerly known as "Crown Privilege") guarantees that the confidentiality of the treaty negotiations may be
information, the disclosure of which would be dispensed with and looked into by the tribunal hearing
prejudicial to the interests of the State, may not be the case, except for the purposes mentioned in Article
disclosed. In the Corfu Channel Case,1 the International 32 of the Vienna Convention of the Law of Treaties. The
Court of Justice affirmed the United Kingdom’s refusal Article provides:
to turn over certain documents relevant to its dispute
with Albania on the ground of national security. In Article 32
Australia, the Attorney General’s certification that Supplementary means of interpretation
information may not be disclosed for the reason that it
would prejudice the security, defense or international
relations of Australia is authoritative and must be Recourse may be had to supplementary means of
adhered to by the court.2 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
According to commentaries on the law on evidence in article 31, or to determine the meaning when the
Pakistan, "if the privilege is claimed on the ground that interpretation according to article 31:
the document relates to the affairs of the State which
means maters of public nature in which a State is
concerned and disclosure of which will be prejudicial to (a) leaves the meaning ambiguous or obscure;
public interest or endangers national defense or is or
detrimental to good diplomatic relations then the
general rule [of judicial review] ceases to apply and the (b) leaves to a result which is manifestly
Court shall not inspect the document or show it to the absurd or unreasonable.
opposite party unless the validity of the privilege
claimed is determined." 3 The aforequoted "preparatory work" or travaux
preparatiores may be used either to confirm the
The International Criminal Tribunal for the former meaning of the treaty or as an aid to interpretation
Yugoslavia, in a decision dated 18 July 1997, did where, following the application of Article 32, the
recognize an international trend that in cases where meaning is ambiguous or obscure or leads to a result
national security or state secrets privilege is invoked, which is manifestly absurd or unreasonable. 5 The article
the courts may nonetheless assess the validity of the may be limited in design as a rule in the interpretation
claim, thus requiring the disclosure of such documents of treaties.
to the courts or its designates.4 Nonetheless, assuming
that such a ruling is indicative of an emerging norm in Moreover, it is less clear what exactly classifies
international law, it only establishes that the invocation documents or correspondences as "preparatory work."
of state secrets cannot be taken at face value but must Should such preparatory work have been cleared for
be assessed ;by the courts. The Dissenting Opinion disclosure by the negotiating countries? In 1995, the
implicitly goes further and establishes that documents International Court of Justice, in Qatar v. Bahrain,6 dealt
involved in diplomatic negotiations relating to treaty with Bahrain’s claim that following Article 32, the ICJ
agreements should form part of the public record as a should adopt its theory concerning a territorial dispute
consequence of the constitutional right to information. I based on the text of a documents headed "Minutes"
would have been more conformable to acknowledge signed at Doha on 25 December 1990 by the Ministers
such a doctrine if it is supported by a similar trend in for Foreign Affairs of Bahrain, Qatar and Saudi Arabia.
foreign jurisprudence or international law. While the ICJ ultimately rejected Bahrain’s contention
on the ground that such minutes could not provide
conclusive supplementary elements for the
 5
interpretation of the text adopted, it is useful to dwell  International Law, ed. By Malcolm D. Evans,
on the fact that such a document classified as p. 188.
"preparatory work" was, at the very least, expressly
approved by the negotiating parties through their 6
 Maritime Delimitation and Territorial
Foreign Ministers. Questions between Qatar and Bahrain,
Jurisdiction and Admissibility, Judgment, ICJ
In the case at bar, it appears that the documents which Reports 995.
the petitioners are particularly interested in their
disclosure are the various drafts of the JPEPA. It is not
clear whether such drafts were ever signed by the
Philippine and Japanese governments, or incorporated
in minutes or similar documents signed by the two
governments. Even assuming that they were signed but
without any intention to release them for public
documentation, would such signatures already classify
the minutes as part of "preparatory work" which,
following the Vienna Convention, provides
supplementary means of interpretation and should
logically be within the realm of public disclosure? These
are manifestly difficult questions which unfortunately,
the petitioners and the Dissenting Opinion did not
adequately address.

Finally, I wish to add that if the petitioner in this case is

the Senate of the Philippines, and that it seeks the
requested documents in the process of deliberating on
the ratification of the treaty, I will vote for the
disclosure of such documents, subject to mechanisms
such as in camera inspection or executive sessions that
would have accorded due regard to executive privilege.
However, the reason behind such a position will be
based not on the right to information, but rather, on the
right of the Senate to fully exercise its constituent
function of ratifying treaties.

DANTE O. TINGA
Associate Justice

Footnotes

1
 United Kingdom v. Albania, 1949 I.C.J. 4 (Apr.
9).

2
 See paragraphs 144 & 145, DECISION ON
THE OBJECTION OF THE REPUBLIC OF
CROATIA TO THE ISSUANCE OF SUBPOENAE
DUCES TECUM,  International Criminal
Tribunal for the former Yugoslavia (18 July
1997).

3
 See id.

4
 See note 2.