The public can still seek court intervention if it wants to be privy to negotiations behind future agreements despite the Supreme Court’s decision that upheld Malacañang’s invocation of executive privilege on the Japan-Philippines Economic Partnership Agreement (JPEPA).
“Of course, it’s always the call of the executive department. If there are like NGOs (nongovernment organizations) or even Congress that would like to be informed of the negotiations, it would be up to the executive department if they will disclose it or not. If they choose not to disclose it then you go to court,” Supreme Court spokesman Jose Midas Marquez told ANC’s “News at 8.”
When asked if discussions or notes leading up to the final deal are no longer subject to public scrutiny after the high court's ruling, Marquez said: “If you’re going by the decision of the Supreme Court here in the JPEPA case, that would be the effect but then again the petitioners can always say that it should be a different case because there are different factual circumstances.”
Voting 10-4, the Supreme Court dismissed the petition filed in 2005 by the Akbayan party-list group and other individuals for a full disclosure of the “behind the scenes” negotiations on JPEPA.
The petitioners had asked the SC to compel government to reveal the full text of the JPEPA, including the Philippine and Japan offers that were submitted during the negotiation process.
The petitioners feared that the trade agreement would include provisions on the dumping of hazardous and toxic waste products in the Philippines. The petitioners cited the right to information on matters of public concern as their main argument.
Marquez explained that with regard to the full text of the final agreement the “issue has become moot” because it was already disclosed even before the case was decided.
As to offers and counteroffers made during the negotiation process, the SC ruled that the petitioners failed to prove the urgent need for public disclosure of documents used in the negotiations.
The SC said JPEPA involved diplomatic negotiations, which are included in executive privilege. The court said the executive department was right in not disclosing these documents.
Chief Justice Reynato Puno, however, strongly opposed the majority decision.
In his 119-page dissenting opinion, Puno said the public had the right to be informed about the JPEPA. He also said there is no blanket provision in the use of executive privilege.
"The Chief Justice said the right to public information is enshrined in the Constitution. That's the general rule. The burden is on the one who claims the exception," Marquez said.
Justices Alicia Martinez, Adolfo Azcuna, and Consuelo Ynares-Santiago joined Puno in the minority decision.
Justice Arturo Brion inhibited himself since he was the labor secretary when the case was filed. The labor department supported the JPEPA since it opens Japan's labor market to Filipino nurses and caregivers.
Japan and the Philippines started to negotiated a free trade agreement on February 4, 2004. The agreement was signed on September 9, 2006.
Ratification of the JPEPA is pending in the Senate. A two-thirds vote is needed to ratify the accord.