Akbayan Vs Aquino Facts:: The JPEPA Is A Matter of Public Concern

Akbayan vs Aquino
FACTS:
Petitioners, as non-government orgs, congresspersons, citizens and taxpayers, filed a petition for
mandamus and prohibition seeking to compel respondents, Department of Trade Industry (DTI)
Undersecretary Thomas Aquino, et al., to furnish petitioners the full text of the Japan-Philippines
Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers (parts of the
notes of negotiating parties) submitted during the negotiation process and all pertinent attachments and
annexes thereto.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines
with another country in the event the Senate grants its consent to it, covers a broad range of topics
which includes trade in goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of natural persons,
cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of
the business environment, and general and final provisions.
Petitioners emphasize that the refusal of the government to disclose the said agreement violates their
right to information on matters of public concern and of public interest. That the non-disclosure of the
same documents undermines their right to effective and reasonable participation in all levels of social,
political and economic decision making. Respondent herein invoke executive privilege. They relied on
the ground that the matter sought involves a diplomatic negotiation then in progress, thus constituting
an exception to the right to information and the policy of full disclosure of matters that are of public
concern like the JPEPA - that diplomatic negotiations are covered by the doctrine of executive privilege.
ISSUE:
Whether the full text/content/negotiation of the JPEPA is under the executive privileged and thus must
be confidential? – YES, but only the exchange of notes / negotiations
RATIO:
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold requirement
that it be a matter of public concern. From the nature of the JPEPA as an international trade agreement,
it is evident that the Philippine and Japanese offers submitted during the negotiations towards its
execution are matters of public concern. This, respondents do not dispute. They only claim that
diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.
Respondents' claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full public
disclosure is absolute, there being matters which, albeit of public concern or public interest, are
recognized as privileged in nature.
Privileged character of diplomatic negotiations

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA
may not be kept perpetually confidential — since there should be "ample opportunity for discussion
before [a treaty] is approved" — the offers exchanged by the parties during the negotiations continue to
be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese
representatives submitted their offers with the understanding that "historic confidentiality" 27 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 future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views during negotiations.
While, on first impression, it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally
involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in
an area of lesser importance in order to obtain more favorable terms in an area of greater national
interest.
Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher
national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore, are
recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears
emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a
type of information as privileged does not mean that it will be considered privileged in all instances.
Only after a consideration of the context in which the claim is made may it be determined if there is a
public interest that calls for the disclosure of the desired information, strong enough to overcome its
traditionally privileged status.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They
stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to
matters affecting national security; whereas the present case involves an economic treaty unlike those
covered by the Military Bases Agreement, are not so vital to national security to disallow their
disclosure.
While there certainly are privileges grounded on the necessity of safeguarding national security such as
those involving military secrets, not all are founded thereon.
One example is the "informer's privilege", or the privilege of the Government not to disclose the
identity of a person or persons who furnish information of violations of law to officers charged with the
enforcement of that law.
Privilege accorded to presidential communications, which are presumed privileged without

distinguishing between those which involve matters of national security. the privilege accorded to
presidential communications is not absolute, one significant qualification being that "the Executive
cannot, any more than the other branches of government, invoke a general confidentiality privilege to
shield its officials and employees from investigations by the proper governmental institutions into
possible criminal wrongdoing.
Deliberative process privilege recognized in the United States. covers documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the
need to protect national security but, on the "obvious realization that o􀀽cials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news", the
objective of the privilege being to enhance the quality of agency decisions.
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the rationale for the con􀁇dential
character of diplomatic negotiations, deliberative process, and presidential communications is similar, if
not identical.
The privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged
character of the deliberative process.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present
case is the fact that the petitioners therein consisted entirely of members of the mass media, while
petitioners in the present case include members of the House of Representatives who invoke their right
to information not just as citizens but as members of Congress.
The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and
effect simply because the same privilege is now being claimed under different circumstances.
Whether there is sufficient public interest to overcome the claim of privilege
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 information confidential , which is the reason
for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence
of which must be shown by the party asking for information.
Petitioners have failed to present the strong and "sufficient showing of need" referred to in the
immediately cited cases. The arguments they proffer to establish their entitlement to the subject
documents fall short of this standard.
Definite preposition – can be disclosed. Except: military, national security, diplomatic negotiations

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Akbayan vs Aquino

The JPEPA is a matter of public concern

Respondents' claim of privilege

Privileged character of diplomatic negotiations

Arguments proffered by petitioners against the application of PMPF v. Manglapus

Privilege accorded to presidential communications, which are presumed privileged without

Whether there is sufficient public interest to overcome the claim of privilege

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