Philippine Supreme Court Resolutions > Year 2007 > August 2007 Resolutions > [G.R. NO. 170516 : August 28, 2007] AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (PKSK), ALLIANCE OF PROGRESSIVE LABOR (APL), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TAÑADA III, CONG. MARIO JOYO AGUJA, CONG. LORETTA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, PETITIONERS V. HON. THOMAS G. AQUINO, IN HIS CAPACITY AS CHAIRMAN AND CHIEF DELEGATE OF THE PHILIPPINE COORDINATING COMMITTEE FOR THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT, ET AL., RESPONDENTS. :

Quoted hereunder, for your information, is a resolution of the Court En Banc dated August 28,  2007

G.R. No. 170516 - AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (PKSK), ALLIANCE OF PROGRESSIVE LABOR (APL), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TA�ADA III, CONG. MARIO JOYO AGUJA, CONG. LORETTA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL, and CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners v. HON. THOMAS G. AQUINO, in his Capacity as Chairman and Chief Delegate of the Philippine Coordinating Committee for the Japan-Philippines Economic Partnership Agreement, et al., Respondents.

In the instant petition for mandamus and prohibition, petitioners seek to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) and all pertinent attachments and annexes to it, as well as the Philippine and Japanese offers made in the course of the negotiations.

At the time the petition was filed on December 9, 2005^[1] and up to the filing of petitioners' Reply on September 4, 2006,^[2] respondents had not disclosed the text of the JPEPA to the public or even to members of the House of Representatives, they proffering that negotiations were still ongoing and the text was still subject to change. Respondents, in their Comment to the petition, in fact explicitly invoked the doctrine of executive privilege in support of their refusal to divulge the information sought by petitioners.^[3]

The Court notes, however, that significant developments bearing on the case have taken place since the filing of petitioners' Reply, albeit not manifested by either party but which may be taken judicial notice of,^[4] namely: (1) on September 9, 2006, the JPEPA was signed by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland; (2) President Arroyo endorsed the JPEPA to the Senate on November 17, 2006 for its concurrence^[5] pursuant to Article VI, Section 21 of the Constitution,^[6] where, so it is gathered, it is being deliberated upon up to the present; and (3) the full text of the JPEPA, including its annexes, has been made accessible to the public.^[7]

In light of the foregoing developments, it appears that petitioners have effectively obtained the main relief prayed for in their petition, as stated in their Reply, viz: "The principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties."^[8]

It bears noting that, with the Senate concurrence on the JPEPA still pending, the Agreement as it now stands cannot yet be considered as final and binding between the two States.

Since the JPEPA, including its annexes, has already been made public, the Court finds it necessary to be apprised on whether the offers^[9] exchanged by the Philippine and Japanese representatives during the negotiations have also been made public; if in the negative, whether petitioners are still intent on obtaining copies thereof given the recent developments noted above.

WHEREFORE, the PARTIES are directed to manifest before this Court, within five (5) days from receipt hereof, whether the Philippine and Japanese offers are already accessible to the public. If these offers remain confidential, petitioners are directed to include in their manifestation a statement whether they still intend to pursue their prayer to be provided with copies thereof, in light of the fact that they already have access to the final text of the JPEPA itself and its annexes.

Nachura, J., no part.

Quisumbing, J., on official time.

Endnotes:

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[1] Rollo, p. 3.

^[2] Id. at 308.

^[3] "x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary.

"The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come within the coverage of executive privilege. 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. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled jurisprudence.

"Practical and strategic considerations likewise counsel against the disclosure of the 'rolling texts' which may undergo radical change or portions of which may be totally abandoned. Furthermore, the 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." (Id. at 191-192, emphasis and underscoring supplied)

^[4] Rule 129, Sections 1 and 2, of the Rules of Court state:

SECTION 1. Judicial notice, when mandatory. � A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.

SECTION 2. Judicial notice, when discretionary. � A court may. take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (Underscoring supplied)

^[5] "Palace transmits JPEPA for Senate ratification," www.gov.ph/news/default.asp?i=16572 (visited August 10, 2007).

^[6] "Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate."

^[7] The text of the JPEPA and its annexes has been posted at Business Philippines: A Department of Trade and Industry Website, www.business.gov.ph/DTI_News.php?contentlD=136 (visited August 9, 2007).

^[8] Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied, italics in the original).

^[9] It may be gleaned from the pleadings of both parties herein that the Philippine and Japanese offers are in written form. Petitioners state in footnote 131 of their petition thus: "It must be pointed out that for any Philippine offer to be properly analyzed and assessed, it must necessarily be compared side-by-side with the Japanese offer. Only then can it be reasonably determined whether the Philippines is getting a fair deal under the JPEPA" (rollo, p. 52). Respondents, on the other hand, repeatedly refer to the information being demanded by petitioners as "documents," without distinguishing between the text of the JPEPA and the offers (please refer to footnote 3 herein).