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WEDNESDAY, DECEMBER 31, 2008

CASE DIGEST - AKBAYAN VS. AQUINO

Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA) at the sidelines of the Asia-Europe
Summit in Helsinki in September 2006 was hailed by both Japanese Prime Minister Junichiro Koizumi and Philippine
President Gloria Macapagal Arroyo as a milestone in the continuing cooperation and collaboration, setting a new chapter
of strategic partnership for mutual opportunity and growth (for both countries).
JPEPA which has been referred to as a mega treaty is a comprehensive plan for opening up of markets in goods and
services as well as removing barriers and restrictions on investments. It is a deal that encompasses even our
commitments to the WTO.
The complexity of JPEPA became all the more evident at the Senate hearing conducted by the Committee on Trade and
Commerce last November 2006. The committee, chaired by Senator Mar Roxas, heard differing views and perspectives
on JPEPA. On one hand the committee heard Governments rosy projections on the economic benefits of JPEPA and on
the other hand the views of environmental and trade activists who raised there very serious concerns about the country
being turned into Japans toxic waste basket. The discussion in the Senate showed that JPEPA is not just an issue
concerning trade and economic relations with Japan but one that touches on broader national development concerns.

Issues:

1. Do the therein petitioners have standing to bring this action for mandamus in their capacity as citizens of the Republic,
as taxpayers, and as members of the Congress

2. Can this Honorable Court exercise primary jurisdiction of this case and take cognizance of the instant petition.

3. Are the documents and information being requested in relation to the JPEPA exempted from the general rules on
transparency and full public disclosure such that the Philippine government is justified in denying access thereto.

Rulings:

The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case of Akbayan Citizens Action Party et al
vs. Thomas G. Aquino et al (G.R. No. 170516). The Highest Tribunal dismissed the Petition for mandamus and
prohibition, which sought 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) and the lists of the
Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes
thereto.

In its Decision, the Court noted that the full text of the JPEPA has been made accessible to the public since 11 September
2006, and thus the demand to be furnished with copy of the said document has become moot and academic.
Notwithstanding this, however, the Court lengthily discussed the substatives issues, insofar as they impinge on petitioners'
demand for access to the Philippine and Japanese offers in the course of the negotiations.

The Court held: 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 Japenese 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 future negotiations.

It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations would discourage future
Philippine representatives from frankly expressing their views during negotiations. The Highest Tribunal recognized that
treaty negotiations normally involve a process of quid pro quo, where negotiators would willingly grant concessions in an
area of lesser importance in order to obtain more favorable terms in an area of greater national interest.

In the same Decision, the Court took time to address the dissent of Chief Justice Reynato S. Puno. It said: We are aware
that behind the dissent of the Chief Justice lies a genuine zeal to protect our people's right to information against any
abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavour to guard against the
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 thereof.
Rulings:

Akbayan vs Aquino - digest

Akbayan vs Aquino July 16 2008

FACTS:
Petition for mandamus and prohibition was filed by the petitioners, as congresspersons, citizens and taxpayers,
requesting respondents to submit to them the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA).
Petitioner emphasize that the refusal of the government to disclose the said agreement violates there 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 negotiation are covered by the doctrine of executive
privilege.

Issue:
Whether or not the petition has been entirely rendered moot and academic because of the subsequent event that
occurred?

Whether the information sought by the petitioners are of public concern and are still covered by the doctrine of executive
privilege?

Held:
On the first issue, the Supreme Court ruled that t]he principal relief petitioners are praying for is the disclosure of the
contents of the JPEPA prior to its finalization between the two States parties, public disclosure of the text of the JPEPA
after its signing by the President, during the pendency of the present petition, has been largely rendered moot and
academic.
The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the
extent that it seeks the disclosure of the full text thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also
the Philippine and Japanese offers in the course of the negotiations.

Moving on to the second issue, The Supreme Court Ruled that 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.
The court adopted also the doctrine in PMPF v. Manglapus, Wherein petitioners were seeking information from the
Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The
Court denied the petition, stressing that secrecy of negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of access to information

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