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Thursday, July 17, 2008
SC upholds confidentiality of RP-Japan economic deal
MANILA -- The Supreme Court (SC) on Wednesday ruled in favor of Malacanang's invocation of executive privilege in refusing to make a full disclosure of the terms of the Japan-Philippines Economic Partnership Agreement (JPEPA).
Voting 10-4 with one abstention, the SC dismissed the taxpayer suit filed by several party-list group representatives and other non-government organizations led by Akbayan, which questioned the bilateral free trade agreement.
Arroyo Watch: Sun.Star blog on President Arroyo
The agreement covers trade in goods and services, rules of origin, customs procedures, paperless trading, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.
Petitioners alleged that the refusal of the government to disclose the JPEPA documents as well as the respective country's "offers" violates their right to information on matters of public concern and contravenes other constitutional provisions on transparency of all transactions involving public interest.
But respondents led by Trade Undersecretary Thomas Aquino III, chairman of the Philippine Coordinating Committee created under Executive Order (EO) 213 to study and negotiate the proposed JPEPA, said diplomatic negotiations are covered by executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure.
In junking the petition, the high court said petitioners failed to prove that there is sufficient public interest to overcome the claim of privilege in compelling government to disclose the respective "offers" of the Japan and Philippine governments.
"Petitioners have failed to present the strong and sufficient showing of need that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiations. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard," the majority decision stated.
Citing the case of PMPF vs Manglapus, the court held that it is the President (Gloria Macapagal-Arroyo) alone who negotiates treaties and not even the Senate or the House of Representatives, unless asked, may intrude upon that process.
Confidentiality
The High Tribunal further said that while the final text of the JPEPA may not be kept perpetually confidential, the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published.
"It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in the future negotiations," the court ruled.
The SC added that should the Philippine offer in treaty negotiations be open to public scrutiny, future Philippine representatives would be discouraged from frankly expressing their views during negotiations.
It said that such a situation might compromise the bargaining leverage of the government since any negotiation normally involves a process of quid pro quo, in which "negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest."
Moot and academic
The SC also said petitioners' request for the public disclosure of the contents of the JPEPA prior to its finalization has been largely rendered moot and academic after the signing of the agreement by President Arroyo and Japanese Prime Minister Junichiro Koizumi on September 9, 2006, and the subsequent endorsement to the Senate for concurrence.
Majority of the magistrates concurred with the ponencia, except for Chief Justice Reynato Puno and Associate Justices Consuelo Ynares-Santiago, Alicia Austria-Martinez, and Adolfo Azcuna.
Associate Justice Arturo Brion took no part in the deliberations, as he was not part of the negotiations being then the labor secretary.
In his dissenting opinion, Puno insisted that the right to information is enshrined in the Constitution, and that it is the burden of the executive to prove that there is an exception.
Puno said it cannot be the other way around where the public will show a need, adding that the public has the right and they need not explain the reason for that right.
He added that there cannot be a blanket invocation of privilege by the executive, and they must give a reason in invoking diplomatic negotiations privilege.
"Transparency and opacity are not either or propositions in the conduct of international trade agreement negotiations. The degree of confidentiality necessary in a particular negotiation is a point in a continuum where complete disclosure and absolute secrecy are on opposite ends," he said.
"The Court should balance the need for secrecy of the executive and the demand for information by the legislature or the public. The balancing act in every case safeguards against disclosure of information prejudicial to public interest," Puno added.
The taxpayer's suit was filed seeking to compel the government to disclose the full text of the agreement, including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes.
Inquiry
Quezon Representative Lorenzo Tanada III and Akbayan party-list Representative Mario Aguja on January 25, 2005 filed House Resolution 551 calling for an inquiry into the trade agreements then still being negotiated.
The resolution became the basis of an inquiry subsequently conducted by the House special committee on globalization.
In the course of the inquiry, the House panel requested Aquino to study and negotiate the proposed JPEPA and to furnish the committee a copy of the latest draft of the JPEPA. The trade official however did not heed the request.
Petitioners said that divulging the contents of the pact only after it has been concluded will effectively make the Senate into a mere rubber stamp of the executive branch, in violation of the separation of powers.
If ratified, opponents of the JPEPA contended that it would set a dangerous precedent wherein treaties could be approved in spite of clear constitutional flaws and ignore the legitimate concerns brought up by the marginalized groups. (ECV/Sunnex)
For more Philippine news, visit Sun.Star Dumaguete. (July 17, 2008 issue)
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