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THE
Supreme Court (SC), voting 10-4, on Wednesday dismissed
the petition filed by several party-list groups and
nongovernment organizations (NGOs) seeking full
disclosure of Philippine and Japanese offers submitted
during the negotiations for the Japan-Philippines
Economic Partnership Agreement (Jpepa).
In a
51-page decision, the Court upheld the position of the
Executive branch that diplomatic negotiations are
covered by the doctrine of executive privilege, thus,
constituting an exception to the right to information
and the policy of full disclosure.
It
explained that in order to overcome the privilege
invoked by the Executive branch, the petitioners must
show that the information is necessary for them to be
able to participate in social, political and economic
decision-making.
In his
120-page dissenting opinion, however, Chief Justice
Reynato S. Puno said there cannot be a blanket
invocation of executive privilege involving diplomatic
negotiations. He said executive officials must give a
valid reason for such invocation.
He
stressed that the right of the public to information is
enshrined in the Constitution and that the burden is on
the executive department to show that executive
privilege is an exception.
“It
cannot be the other way around, where the public will
show a need. The public has the right, the public need
not explain the reason for this right,” the Chief
Justice said.
Concurring with the majority ruling were Associate
Justices Leonardo Quisumbing, Antonio T. Carpio, Renato
C. Corona, Dante O. Tinga, Minita V. Chico-Nazario,
Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura,
Ruben T. Reyes, and Teresita J. Leonardo-De Castro.
Those
who dissented besides Puno were Associate Justices Ma.
Alicia Austria-Martinez, Adolfo S. Azcuna and Consuelo
Ynares-Santiago. Associate Justice Arturo D. Brion did
not take part due to his involvement in the Jpepa
negotiations, being the then labor secretary during the
negotiations.
Contrary
to the claim of the petitioners, the Court said the
people have been exercising their right to participate
and articulate their different opinions surrounding the
controversial bilateral agreement.
Likewise, the SC said the petitioners failed to show how
their lack of access to Philippine-Japanese offers would
affect their duty to legislate laws.
It noted
that mere assertion that the Jpepa covers a subject
matter over which Congress has the power to legislate is
not sufficient for the Court to grant its petition.
The
majority decision did not give credence to the position
of the justices who dissented, that the executive branch
failed to show how disclosing the documents pertaining
to Jpepa would impair the performance of its functions.
“While
in keeping with the general presumption of transparency,
the burden is initially on the executive to provide
precise and certain reasons for upholding its claim of
privilege, once the executive is able to show that the
documents being sought are covered by a recognized
privilege, the burden shifts to the party to overcome
the privilege by a strong showing of need,” the Court
said.
“It was
then incumbent on petitioner requesting parties that
they have a strong need for the information sufficient
to overcome the privilege. They have not, however,” the
SC declared.
Furthermore, the High Tribunal warned that the
disclosure of the documents being sought by the
petitioners might jeopardize diplomatic relations
between the two governments.
“We must
bear in mind that, by disclosing the documents of the
Jpepa negotiations, the Philippine government runs the
grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese
government itself. How would the Philippine government
then explain itself when that happens? Surely, it cannot
bear to say that it just had to release the information
because certain persons simply wanted to know it
‘because it interests them’,” the SC explained.
Records
showed that the Jpepa was signed by President Arroyo and
Japanese Prime Minister Junichiro Koizumi in Helsinki,
Finland on September 9, 2006. The President later
endorsed the agreement to the Senate on for its
concurrence pursuant to Article VII, Section 21 of the
Constitution.
The
agreement is still being deliberated upon by the
Philippine Senate, which under the Constitution must
ratify all treaties.
In their
petition for mandamus and prohibition, the petitioners
led by Akbayan Citizens Action Party (Akbayan) asked the
Court to compel the respondents to disclose the full
text of the Jpepa, including the Philippine and Japanese
offers submitted during the negotiation process.
Other
petitioners were Pambansang Katipunan ng Mga Samahan sa
Kanayunan, Alliance of Progressive Labor, Vicente Fabe,
Angelito Mendoza, Manuel Quiambao, Rose Beatrix
Cruz-Angeles, Rep. Lorenzo Tañada III, Rep. Mario Joyo
Aguja, Rep. Loreta Ann Rosales, Rep. Ana Theresia
Hontiveros-Baraquel and Rep. Emmanuel Joel Villanueva.
The SC,
however, declared moot the petitioners’ prayer for the
disclosure of the contents of the Jpepa, considering
that its full text had been made accessible to the
public since September 11, 2006.
However,
the Court said the demand of the petitioners to obtain
the Philippine and Japanese offers in the course of the
negotiations, is a different matter.
The
petitioners argued that the government’s refusal to
disclose the documents on the Jpepa negotiations
violates their right to information on matters of public
concern and contravenes other constitutional provisions
on transparency, such as that on the policy of full
public disclosure of all transactions involving public
interest.
In
addition, the petitioners claimed that nondisclosure of
the documents would weaken their right to participate in
all levels of social, political and economic
decision-making.
They
also argued that divulging the contents of the Jpepa
only after the agreement has been concluded will
effectively make the Senate a rubber stamp of the
executive, which is a violation of the principle of
separation of powers.
Respondents, on the other hand, did not deny that the
agreement is a matter of public concern, but argued that
diplomatic negotiations are covered by the doctrine of
executive privilege. |
