7.
AKBAYAN vs The petitioners seek to obtain from respondents the full text of
.AQUINO the Japan-Philippines Economic Partnership Agreement
(“JPEPA”)1 including the Philippine and Japanese offers
G.R.NO.170516, submitted during the negotiation process.
JULY 16,2008
Petitioners position: (1) The refusal of the government to disclose the
documents bearing 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.
Aquinoet al.’s position: 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. At the time
when the Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change. Negotiations
of the representatives of the Philippines as well as of Japan must be
allowed to explore alternatives in the course of the negotiations in the
same manner as judicial deliberations and working drafts of opinions
are accorded strict confidentiality.
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. Whether a claim of executive
privilege is valid depends on the ground invoked to justify it and the context
in which it is made. It bears emphasis, however, that such privilege is only
presumptive. 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.
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 delegates
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. 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.