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BERDIN VS MASCARINAS to Secs. 60 to 63, Art. 3 of Presidential Decree (P.D.) No.

231, as
amended, or the Local Tax Code.[17]
This is a petition[1] filed under Rule 45 seeking to review and set aside
the 26 May 1998 Decision[2] of the Court of Appeals in CA-G.R. SP No. Even before the Provincial Treasurer approved of Tax Ordinance No. 89-
39045 and to annul and set aside the 24 April 1995 Decision[3] of the 10-49, petitioners had earlier referred Tax Ordinance No. 89-10-49 to the
Regional Trial Court (RTC), Branch 4, Bohol, in Civil Case No. 4577. Provincial Prosecutor for review. The Provincial Prosecutor issued
Opinion No. 90-1[18] dated 3 January 1990 and found Tax Ordinance No.
Petitioners Teodoro Berdin, Vicente Alegarbes, and Abelardo de Vera 89-10-49 valid except insofar as it provided for the padlocking of
(petitioners), are the President, Vice President, and Adviser, respectively, establishments as among the civil remedies available against a delinquent
of the Tubigon Market Vendors Association (Association), an association taxpayer. Said official wrote the Sangguniang Bayan and suggested an
of vendors doing business in Tubigon, Bohol. Respondents Eufracio A. amendment to Tax Ordinance No. 89-10-49 by deleting padlocking of the
Mascarias, Narcisa L. Balatayo, and Lt. Abner Catalla, on the other hand, establishment as among the civil remedies.[19]
were, at the time Civil Case No. 4577 was filed, the Municipal Mayor,
Treasurer, and the INP Station Commander, respectively, of Tubigon, Meanwhile, on 27 December 1989, the Provincial Treasurer suspended
Bohol. some provisions of Tax Ordinance No. 88-11-36 for failure to conform to
the rates prescribed by the Local Tax Code.[20] Thus, the Sangguniang
On 14 December 1988, the Sangguniang Bayan of Tubigon enacted Tax Bayan enacted Municipal Revenue Ordinance No. 90-01-54[21] on 5
Ordinance No. 88-11-36[4] increasing the taxes and fees of the January 1990 to amend the suspended provisions of Tax Ordinance No.
municipality, to take effect on 1 January 1989. 88-11-36. The Provincial Treasurer found Municipal Revenue Ordinance
Petitioner Berdin, as President of the Association, wrote to respondent No. 90-01-54 to be in conformity with the rates authorized under the
Municipal Treasurer requesting a copy of Tax Ordinance No. 88-11-36.[5] Local Tax Code and accordingly lifted the suspension of the provisions of
The request was followed by the filing of a protest before respondents Tax Ordinance No. 88-11-36 that were previously suspended and
Municipal Mayor and Municipal Treasurer.[6] The Association also declared that the same, as amended by Municipal Revenue Ordinance
requested the suspension of the implementation of the ordinance No. 90-01-54, may already be given force and effect.[22]
pending final determination of its legality by appropriate authorities.
Thereafter, on 27 February 1989, petitioners elevated their request for a Thereafter, on 24 January 1990, the Provincial Treasurer wrote
review and suspension of the ordinance to the Provincial Treasurer of petitioners informing the latter of his findings that Tax Ordinance Nos.
Bohol.[7] 88-11-36 and 89-10-49 were both in order and in accord with Art. 3 of
P.D. No. 231 and further explaining that under Sec. 49 of P.D. No. 231, a
Acting on petitioners request, Eufronio M. Pizarras, Provincial Treasurer, public hearing is required only when the local board or council may
referred the letter of petitioner Berdin to the Municipal Treasurer on 15 exercise the power to impose a tax or fee on a tax base or subject similar
March 1989, and requested the latter official to forward a copy of Tax to those authorized in [the Local Tax Code] but which may not have been
Ordinance No. 88-11-36 to the Department of Finance (DOF), through the specifically enumerated herein, a fact not present in the case of the
Provincial Treasurer, for review and approval pursuant to Sec. 8 of questioned ordinances.[23]
Executive Order (E.O.) No. 249 dated 25 July 1987.[8]
Petitioners wrote the Provincial Treasurer on 31 January 1990 informing
Meanwhile, on 29 March 1989, respondent Mayor submitted a corrected the latter that the Provincial Fiscal already made a contrary ruling on Tax
copy of Tax Ordinance No. 88-11-36 to Atty. Melchor P. Monreal, Ordinance No. 89-10-49 and that since the municipality did not appeal
Assistant Regional Director, DOF Regional Office No. 7, Cebu City.[9] the said ruling, the same became final. Petitioners further requested the
Provincial Treasurer to transmit all records to the DOF for purposes of
Final Demand Letters were sent to petitioners de Vera and Berdin on 2 appealing the ruling of the Provincial Treasurer and for a review of the
June 1989 for payment of outstanding rental fees and municipal business questioned ordinances by a higher authority.[24]
taxes due under the new tax ordinance, with a warning that their
stores/establishments will be closed and padlocked.[10] Petitioners Petitioners elevated the finding of the Provincial Treasurer to the
wrote the Municipal Treasurer on 13 June 1989 and requested said Secretary of Finance on 31 January 1990. They also requested the
official to await the resolution of their protest before taking action on the suspension of the implementation of Tax Ordinance No. 88-11-36
Final Demand Letters.[11] Petitioners also sent a letter to the DOF on 21 pending its review by said office.[25] On 30 March 1990, Gregorio A.
August 1989 asking for the suspension of the ordinance pending Barretto, Director III, Bureau of Local Government Finance of the DOF,
resolution of their protest in view of the threat of closure of their referred the appeal to the Provincial Treasurer for comment and/or
stores/establishments.[12] recommendation.[26] The Provincial Treasurer informed the DOF that his
office reviewed and approved the ordinance after the rates have been
Thereafter, on 4 September 1989, petitioners filed a Complaint[13] with found to be just and reasonable and that, for those rates initially found
the RTC of Bohol against respondents Mayor, Treasurer, and INP Station by him to have exceeded the maximum authorized by law, an
Commander of Tubigon, Bohol, as well as the Municipal Council and/or amendatory ordinance was enacted to meet the objection.[27]
Municipality of Tubigon, to enjoin respondents from enforcing Tax
Ordinance No. 88-11-36, to declare the ordinance a nullity and, in the Thereafter, the Deputy Director and Officer-in-Charge of the Bureau of
event said ordinance is found to be invalid, to order respondents to Local Government Finance, by authority of the Secretary of Finance,
reimburse excess taxes paid by petitioners. The case was docketed as informed the Provincial Treasurer that their department cannot review
Civil Case No. 4577.[14] Ordinance No. 88-11-36 as requested by petitioners.[28] The Provincial
Treasurer transmitted a copy of this letter to petitioners.[29]
Tax Ordinance No. 88-11-36 was amended by Tax Ordinance No. 89-10- Four years later, on 24 April 1995, the RTC rendered a Decision[30] in
49[15] dated 17 October 1989, by specifying that the civil remedies Civil Case No. 4577, the dispositive portion of which states:
available include the padlocking of the establishment and/or seizure of WHEREFORE, judgment is hereby rendered as follows:
property and revocation of the permit or license and/or eviction from
public property and/or by legal action.[16] The Provincial Treasurer 1 declaring Municipal Revenue Ordinance No. 88-11-36, series of 1988,
approved Tax Ordinance No. 89-10-49 on 8 January 1990 and held that it enacted by the Sangguniang Bayan of Tubigon, Bohol as valid and
was within the power of the municipality to enact the ordinance pursuant therefore the same can be enforced;
2 declaring Municipal Ordinance No. 89-10-49 dated October 11, 1989 question were merely revisions of an existing tax ordinance and not new
valid, except insofar as it provides for the padlocking of the establishment enactments.
as the civil remedies available against a delinquent taxpayer;
The pertinent provisions of law on this matter are Secs. 49[39] and
3 denying the prayer for mandamus and reimbursement; 50[40] of the Local Tax Code.

4 dissolving the injunctive order dated May 11, 1990 directing the A perusal of these provisions would yield a conclusion that the local
defendants to desist from enforcing Municipal Ordinance No. 88-11-36; board or council has the power to impose a tax or fee (1) on a tax base or
subject specifically enumerated in the Local Tax Code, (2) on a tax base
5 granting Final Injunction restraining defendants from padlocking the similar to those authorized in the Local Tax Code but which may not have
business establishments of the plaintiffs, thus making permanent the been specifically enumerated therein, and (3) on a tax base or tax subject
injunctive order of May 11, 1990 to that effect; and which is not similar or comparable to any tax base or subject specifically
mentioned or otherwise provided for in the Local Tax Code. Public
6 dismissing defendants counterclaim for insufficiency of evidence. hearing apparently is not necessary when the tax or fee is imposed on a
tax base or subject specifically enumerated in the Local Tax Code.
Costs against the plaintiffs.
The basis for the above distinction is that when a tax base or subject is
SO ORDERED.[31] specifically enumerated in the Local Tax Code, the existence of the power
to tax is beyond question as the same is expressly granted. Even in the
determination of the rates of the tax, a public hearing, even if ideal, is not
Petitioners filed a Notice of Appeal with the RTC,[32] which gave due necessary because the law itself provides for a ceiling on such rates. The
course to the appeal and ordered the transmittal of the case records to same does not obtain in a situation where what is about to be taxed is
the Court of Appeals (CA).[33] not specifically enumerated in the Local Tax Code because in such a
situation, the issues of whether to tax or not and at what rate a tax is to
On 26 May 1998, the Fifth Division of the CA rendered a Decision[34] be imposed are crucial. Consequently, a public hearing is necessary and
affirming in toto the decision of the RTC. Their motion for reconsideration vital.
having been denied,[35] petitioners now come to this Court via this
Petition for Review under Rule 45 of the Rules of Court. A scrutiny of the taxes or fees imposed by Tax Ordinance No. 88-11-36
shows that some of them belong to the second and third categories of
The issues raised by petitioners in their Memorandum[36] may be taxes or fees that may be imposed by a municipality that require public
summarized as follows: (1) whether the ordinances are valid and hearing. Petitioners are thus correct in saying that a public hearing is
enforceable; (2) whether publication was necessary; and (3) whether necessary for its enactment. With respect to Tax Ordinance No. 89-10-49,
there was exhaustion of administrative remedies. however, we hold that no public hearing is necessary as it does not
impose any tax or fee. Said ordinance is actually a restatement, with
The petition is meritorious but only in regard to the need for publication. illustrations, of the provisions of the Local Tax Code on civil remedies for
the collection of the local taxes and fees imposed by Tax Ordinance No.
Petitioners adopt a three-level argument with regard to the validity and 88-11-36.
enforceability of Tax Ordinance No. 88-11-36. First, they assert the
ordinance does not exist by virtue of respondent officials delay in Although a public hearing is necessary for the enactment of Tax
furnishing them with a copy of the questioned ordinance. Second, if Tax Ordinance No. 88-11-36, still we uphold its validity in view of petitioners
Ordinance No. 88-11-36 did exist, it was not validly enacted for failure to failure to present evidence to show that no public hearing was
hold public hearings and to have the same published pursuant to Sec. 43 conducted.[41] Petitioners, as the party asserting a negative allegation,
of the Local Tax Code. Finally, petitioners claim, even if Tax Ordinance No. had the burden of proving lack of public hearing.[42] Although the
88-11-36 was validly enacted, the same contains objectionable provisions Sangguniang Bayan had the control of records or the better means of
which would render it invalid and unenforceable. proof regarding the facts alleged and respondent public officials assumed
an uncooperative stance to petitioners request for copies of the Minutes
Petitioners misgivings on the existence of Tax Ordinance No. 88-11-36 are of their deliberation, petitioners are not relieved from this burden.[43]
baseless. The reason for the delay was adequately explained and was Petitioners could easily have resorted to the various modes of discovery
even attributed to petitioners failure to pay for the cost of reproduction under Rules 23 to 28 of the Rules of Court.[44] Furthermore, petitioners
of the ordinance. could have compelled the production of these documents through a
The right of the people to information on matters of public concern is subpoena duces tecum or they could have required testimony on this
recognized under Sec. 7, Art. III of the 1987 Constitution[37] and is issue by officials in custody of the documents through a subpoena ad
subject to such limitations as may be provided by law. Thus, while access testificandum. However, petitioners made no such effort.
to official records may not be prohibited, it certainly may be regulated.
The regulation may come either from statutory law and from the Petitioners next claim that the impositions contained in Tax Ordinance
inherent power of an officer to control his office and the records under No. 88-11-36 exceeded the maximum allowed by the Local Tax Code. In
his custody and to exercise some discretion as to the manner in which particular, petitioners assert that (1) the taxes imposed by the ordinance
persons desiring to inspect, examine, or copy the record may exercise are not based on the taxpayers ability to pay; (2) the taxes imposed are
their rights.[38] The Municipal Treasurer in the case at bar exercised this unjust, excessive, oppressive, discriminatory and confiscatory; (3) the
discretion by requiring petitioners to pay for the cost of reproduction of ordinances are contrary to law, public policy and are in restraint of trade;
Tax Ordinance No. 88-11-36. Such a requirement is reasonable under the (4) the ordinances violate the rule of a progressive system of taxation;
circumstances considering that the ordinance is quite voluminous and (5) the ordinances are contrary to the declared national policy.
consisting of more than a hundred pages.
These questions have already been raised in their protest and resolved by
Petitioners then assail Tax Ordinance No. 88-11-36 and Tax Ordinance the 27 December 1989 findings of the Provincial Treasurer. In fact, said
No. 90-10-49 for failure to hold public hearings pursuant to Sec. 50 of the official suspended some of the provisions of Tax Ordinance No. 88-11-36
Local Tax Code. Respondents, on the other hand, claim that a public for failure to comply with the rates prescribed by the Local Tax Code.
hearing was no longer necessary considering that the ordinances in Furthermore, the subsequent enactment of Municipal Revenue
Ordinance No. 90-01-54 and its approval by the Provincial Treasurer they brought for the consideration of the Provincial Fiscal was Tax
corrected this non-compliance with the Local Tax Code. The local Ordinance No. 89-10-49. Thus, in Opinion No. 90-1,[55] the Provincial
legislative bodys modification of Tax Ordinance No. 88-11-36 through Fiscal found said ordinance valid except insofar as it provided for the
Municipal Revenue Ordinance No. 90-01-54 is sanctioned by Sec. 44[45] padlocking of the establishment as among the civil remedies available
of the Local Tax Code. against a delinquent taxpayer. The ruling of the Provincial Treasurer
Moreover, as the presumption of regularity of official conduct was not declaring Tax Ordinance No. 89-10-49 valid and in order is of no moment
overcome by petitioners, the findings of the Provincial Treasurer must be because, under Sec. 47, the opinion of the Provincial Fiscal is appealable
upheld. to the Secretary of Justice.
There is likewise no merit in petitioners contention that the Provincial
Treasurers finding on the fishery rental fees is flawed. The Local Tax Code With respect to the remaining issues proper for a formal protest,
provides in Sec. 21 thereof that municipalities, in the exercise of their petitioners did not bring the same to the Secretary of Finance. What they
authority to grant exclusive fishery rights and license individual fishing filed instead was a petition with the Municipal Mayor requesting for a
gears in municipal waters, may levy or fix rentals or fees therefore in suspension of the implementation of the ordinance pending final
accordance with said section and in conjunction with other operative determination of its legality by appropriate authorities. Petitioners
laws and regulations on municipal fisheries. One such operative law is thereafter went to the Provincial Treasurer reiterating their request for a
P.D. No. 704[46] which provides for the jurisdiction review and suspension of the ordinance. In fact, the first time petitioners
wrote the DOF was on 13 June 1989, when they merely requested said
of the Bureau of Fisheries and Aquatic Resources in Sec. 4.[47] Thus, it official to require the Provincial Treasurer to resolve their protest
was correct for the Provincial Treasurer to rule that the fishery rental fees expeditiously.
in Tax Ordinance No. 88-11-36 may be given due course provided that
prior approval from the Bureau of Fisheries and Aquatic Resources has Obviously, petitioners did not formally protest Tax Ordinance No. 88-11-
been obtained, pursuant to the provisions of P.D. No. 704, as amended. 36 as the same may properly be brought not before the Provincial
Treasurer but before the Secretary of Finance. What the Provincial
Petitioners further fault the Municipal Treasurer for the latters failure to Treasurer merely conducted was a review of Tax Ordinance No. 88-11-36
furnish the Provincial Treasurer with a copy of Tax Ordinance No. 88-11- under Sec. 44 of the Local Tax Code, limiting itself to the issues proper for
36 after its approval. By not furnishing the latter official with a copy of a review thereof. Thus, said official initially suspended some of the
the tax ordinance, the Municipal Treasurer frustrated a review thereof. provisions of Tax Ordinance No. 88-11-36 for their failure to comply with
the rates prescribed by the Local Tax Code and eventually decided in
In this regard, we hold that the submission of Tax Ordinance No. 88-11- favor of its validity after the Sangguniang Bayan modified the
36 to the Assistant Regional Director, DOF Regional Office No. 7, Cebu objectionable provisions thereof via Municipal Revenue Ordinance No.
City complied with the requirement of review pursuant to Secs. 49 and 50 90-01-54. That what was filed before the Provincial Treasurer was merely
of the Local Tax Code, as said official is the alter ego of the Secretary of a review is evident from the DOFs refusal to review the findings of the
Finance, under an expanded application of the doctrine of qualified Provincial Treasurer, which, it said, was made pursuant to Sec. 44 of the
political agency, where the Presidents power of control is directly Local Tax Code.
exercised by him over the members of the Cabinet who, in turn, and by
his authority, control the Even if we were to consider petitioners appeal with the Secretary of
Finance as a formal protest, despite its unseasonableness, still, it would
bureaus and other offices under their respective jurisdictions in the be unavailing since they did not offer proof on how and in what manner
executive department.[48] Tax Ordinance No. 88-11-36 could be invalid. In fact, the Deputy Director
and Officer-in-Charge of the Bureau of Local Government Finance, by
We now resolve the issue of exhaustion of administrative remedies. authority of the Secretary of Finance, noted that petitioners counsel did
not state the grounds of his protest as provided under Section 45 of the
A perusal of the applicable provisions of the Local Tax Code would show Local Tax Code, as amended, in relation to Section 44 thereof.[56] Verily,
that there are three administrative remedies available to an aggrieved mere allegation that an ordinance is invalid on the grounds enumerated
taxpayer. A tax ordinance may either be (1) reviewed or suspended by in Sec. 44 of the Local Tax Code will not work to rebut the presumption of
the Provincial Treasurer[49] or the Secretary of Finance,[50] (2) the the ordinances validity.
subject of a formal protest with the Secretary of Finance,[51] or (3)
questioned as to its legality and referred for opinion to the Provincial Clearly, for failure to file a formal protest with the Secretary of Finance,
Fiscal.[52] or a legal question with the Provincial Fiscal on Tax Ordinance No. 88-11-
36s validity, petitioners cannot be said to have exhausted administrative
In the case at bar, petitioners question the validity of Tax Ordinance No. remedies available to them.
88-11-36 for the following reasons: (1) no public hearing was conducted; The underlying principle of the rule on exhaustion of administrative
(2) the taxes imposed therein are not based on the taxpayers ability to remedies rests on the presumption that the administrative agency, if
pay; (3) the taxes imposed are unjust, excessive, oppressive, afforded a complete chance to pass upon the matter, will decide the
discriminatory and confiscatory; (4) the ordinances are contrary to law, same correctly.[57] There are both legal and practical reasons for the
public policy and are in restraint of trade; (5) the ordinances violate the principle. The administrative process is intended to provide less
rule of a progressive system of taxation; and (6) the ordinances are expensive and speedier solutions to disputes. Where the enabling statute
contrary to the declared national policy. indicates a procedure for administrative review and provides a system of
administrative appeal or reconsideration, the courtsfor reasons of law,
Of these issues, the first, second, fourth and fifth issues should have been comity, and conveniencewill not entertain a case unless the available
referred for opinion to the Provincial Fiscal pursuant to Sec. 47[53] of the administrative remedies have been resorted to and the appropriate
Local Tax Code, because they are not among those mentioned in Sec. authorities have been given an opportunity to act and correct the errors
44[54] of the Local Tax Code. The other remaining issues, on the other committed in the administrative forum.[58]
hand, are proper subjects of a protest which should have been brought to
the Secretary of Finance. From the above disquisitions, it follows that the validity of the questioned
tax ordinances must be upheld. However, their enforceability is another
However, petitioners did not even bring the issues relative to the legality matter that merits further deliberation considering the apparent lack of
or validity of Tax Ordinance No. 88-11-36 to the Provincial Fiscal. What publication or posting of the questioned ordinances.
Provincial Treasurer on 17 February 1989. Again, in view of the threat of
Petitioners assert that pursuant to Sec. 43 of the Local Tax Code, certified closure of their establishment, petitioners sent a letter to the DOF on 21
true copies of the ordinance should have been published for three (3) August 1989 praying for the same relief of suspension of the ordinance.
days in a newspaper or publication widely circulated within the Again, despite the pendency of the various requests, petitioners filed Civil
jurisdiction of the local government, or posted in the local legislative hall Case No. 4577, again praying for a writ of preliminary injunction to
or premises and two other conspicuous places within the territorial restrain respondents from enforcing the ordinance, a prayer which is
jurisdiction of the local government within ten (10) days after its essentially a prayer for the suspension of the ordinance.
approval.

Provincial Circular No. 22-73 states: WHEREFORE, premises considered, the instant petition is GRANTED IN
PART. The decision of the Court of Appeals in CA-G.R. SP No. 39045 is
All taxes, fees and charges authorized by the Code to be imposed by local hereby MODIFIED in that the Sangguniang Bayan of Tubigon, Bohol is
governments, may only be collected by the treasurer concerned if an hereby DIRECTED to cause the publication of Tax Ordinance No. 88-11-36,
ordinance embodying the same has been duly enacted by the local board Tax Ordinance No. 89-10-49, and Municipal Revenue Ordinance No. 90-
or council and approved in accordance with the provisions of the Code. 01-54 for three (3) days in a newspaper or publication widely circulated
within the jurisdiction of the local government, or their posting in the
Section 43 of the Code provides that within ten (10) days after their local legislative hall or premises and two other conspicuous places within
approval, certified true copies of all provincial, city, municipal and barrio the territorial jurisdiction of the local government. In all other respects,
ordinance levying or imposing taxes, fees or other charges shall be the decision of the Court of Appeals in CA-G.R. SP No. 39045 affirming
published for three (3) consecutive days in a newspaper or publication the 26 May 1998 Decision of the Regional Trial Court in Civil Case No.
widely circulated within the jurisdiction of the local government, or 4577 is hereby AFFIRMED.
posted in the local legislative hall or premises and in two other
conspicuous places within the territorial jurisdiction of the local VINUYA VS ROMULO
government. In either case, copies of all provincial, city, municipal and Petitioners filed a Motion for Reconsideration1 and a Supplemental
barrio revenue ordinances shall be furnished the treasurers of the Motion for Reconsideration,2 praying that the Court reverse its decision
respective component and mother units of a local government for of April 28, 2010, and grant their petition for certiorari.
dissemination.
In their Motion for Reconsideration, petitioners argue that our
While non-compliance with the foregoing provisions of the Code will not constitutional and jurisprudential histories have rejected the Court’s
render the tax or revenue ordinances null and void, still there must be ruling that the foreign policy prerogatives ofthe Executive Branch are
publication and dissemination as provided in the Code to obviate abuses unlimited; that under the relevant jurisprudence and constitutional
in the exercise of the taxing powers and preclude protests from the provisions, such prerogatives are proscribed by international human
people adversely affected. Such publication and dissemination of tax rights and international conventions of which the Philippines is a party;
ordinances will not only be in consonance with the objectives of the Code that the Court, in holding that the Chief Executive has the prerogative
to secure fair, just and uniform local impositions but will also enhance the whether to bring petitioners’ claims against Japan, has read the foreign
efficient collection of valid taxes, fees and other charges. [Emphasis policy powers of the Office of the President in isolation from the rest of
supplied] the constitutional protections that expressly textualize international
human rights; that the foreign policy prerogatives are subject to
obligations to promote international humanitarian law as incorporated
Thus, it would seem that while lack of publication does not render a tax intothe laws of the land through the Incorporation Clause; that the Court
ordinance null and void, said requirement must still be complied with in must re-visit its decisions in Yamashita v. Styer3 and Kuroda v. Jalandoni4
order to obviate abuses in the exercise of the taxing powers and preclude which have been noted for their prescient articulation of the import of
protests from the people adversely affected. Publication is thus a laws of humanity; that in said decision, the Court ruled that the State was
condition precedent to the effectivity and enforceability of an ordinance bound to observe the laws of war and humanity; that in Yamashita, the
to inform the public of its contents before rights are affected by the Court expressly recognized rape as an international crime under
same. international humanitarian law, and in Jalandoni, the Court declared that
even if the Philippines had not acceded or signed the Hague Convention
The records are bereft of any indication that evidence was presented to on Rules and Regulations covering Land Warfare, the Rules and
prove petitioners negative allegation that there was no publication. Regulations formed part of the law of the nation by virtue of the
Neither is there a positive declaration on the part of respondents that Incorporation Clause; that such commitment to the laws ofwar and
there was publication or posting. Even the RTC and the CA decisions are humanity has been enshrined in Section 2, Article II of the 1987
silent on this issue. Consequently, an uncertainty exists on whether the Constitution, which provides "that the Philippines…adopts the generally
ordinances were indeed published or not. We resolve this uncertainty in accepted principles of international law as part of the law of the land and
favor of petitioners and accordingly rule that the questioned tax adheres to the policy of peace, equality, justice, freedom, cooperation,
ordinances must be published before the new tax rates imposed therein and amity with all nations."
are to be collected from the affected taxpayers.
The petitioners added that the statusand applicability of the generally
This does not mean however that the municipality is deprived of the accepted principles of international law within the Philippine jurisdiction
income that would have been collected under the subject tax ordinances would be uncertain without the Incorporation Clause, and that the clause
because taxes may still be collected at the old rates previously imposed. implied that the general international law forms part of Philippine law
While we partially grant this petition, we note with disapproval only insofar as they are expressly adopted; that in its rulings in The Holy
petitioners commission of forum shopping prior to the filing of this See, v. Rosario, Jr.5 and U.S. v. Guinto6 the Court has said that
petition. Petitioners simultaneously prayed for the same relief of international law is deemed part of the Philippine law as a consequence
suspension of the ordinance in four different fora. It should be of Statehood; that in Agustin v. Edu,7 the Court has declared that a
remembered that petitioners initially filed a protest of Tax Ordinance No. treaty, though not yet ratified by the Philippines, was part of the law of
88-11-36 with the Municipal Mayor and the Municipal Treasurer on 11 the land through the Incorporation Clause; that by virtue of the
January 1989. Even as this protest was unresolved, they elevated their Incorporation Clause, the Philippines is bound to abide by the erga
request for a review and suspension of the same ordinance to the omnesobligations arising from the jus cogensnorms embodied in the laws
of war and humanity that include the principle of the imprescriptibility of consenting parties. Consequently, the obligations embodied in the Treaty
war crimes; that the crimes committed against petitioners are proscribed of Peace must be carried out in accordance with the common and real
under international human rights law as there were undeniable violations intention of the parties at the time the treaty was concluded.15
of jus cogensnorms; that the need to punish crimes against the laws of
humanity has long become jus cogensnorms, and that international legal 4. Respondents assert that individuals did not have direct international
obligations prevail over national legal norms; that the Court’s invocation remedies against any State that violated their human rights except where
of the political doctrine in the instant case is misplaced; and that the such remedies are provided by an international agreement. Herein,
Chief Executive has the constitutional duty to afford redress and to give neither of the Treaty of Peace and the Reparations Agreement,the
justice to the victims ofthe comfort women system in the Philippines.8 relevant agreements affecting herein petitioners, provided for the
reparation of petitioners’ claims. Respondents aver that the formal
Petitioners further argue that the Court has confused diplomatic apology by the Government of Japan and the reparation the Government
protection with the broader responsibility of states to protect the human of Japan has provided through the Asian Women’s Fund (AWF) are
rights of their citizens, especially where the rights asserted are subject of sufficient to recompense petitioners on their claims, specifically:
erga omnesobligations and pertain to jus cogensnorms; that the claims
raised by petitioners are not simple private claims that are the usual a. About 700 million yen would be paid from the national treasury over
subject of diplomatic protection; that the crimes committed against the next 10 years as welfare and medical services;
petitioners are shocking to the conscience of humanity; and that the
atrocities committed by the Japanese soldiers against petitionersare not b. Instead of paying the money directly to the former comfort women,
subject to the statute of limitations under international law.9 the services would be provided through organizations delegated by
governmental bodies in the recipient countries (i.e., the Philippines, the
Petitioners pray that the Court reconsider its April 28, 2010 decision, and Republic of Korea,and Taiwan); and
declare: (1) that the rapes, sexual slavery, torture and other forms of
sexual violence committed against the Filipina comfort women are crimes c. Compensation would consist of assistance for nursing services (like
against humanity and war crimes under customary international law; (2) home helpers), housing, environmental development, medical expenses,
that the Philippines is not bound by the Treaty of Peace with Japan, and medical goods.16
insofar as the waiver of the claims of the Filipina comfort women against
Japan is concerned; (3) that the Secretary of Foreign Affairs and the Ruling
Executive Secretary committed grave abuse of discretion in refusing to
espouse the claims of Filipina comfort women; and (4) that petitioners The Court DENIESthe Motion for Reconsiderationand Supplemental
are entitled to the issuance of a writ of preliminary injunction against the Motion for Reconsideration for being devoid of merit.
respondents.
1. Petitioners did not show that their resort was timely under the Rules of
Petitioners also pray that the Court order the Secretary of Foreign Affairs Court.
and the Executive Secretary to espouse the claims of Filipina comfort
women for an official apology,legal compensation and other forms of Petitioners did not show that their bringing ofthe special civil action for
reparation from Japan.10 certiorariwas timely, i.e., within the 60-day period provided in Section 4,
Rule 65 of the Rules of Court, to wit:
In their Supplemental Motion for Reconsideration, petitioners stress that
it was highly improper for the April 28, 2010 decision to lift commentaries Section 4. When and where position filed. – The petition shall be filed not
from at least three sources without proper attribution – an article later than sixty (60) daysfrom notice of judgment, order or resolution. In
published in 2009 in the Yale Law Journal of International Law; a book case a motion for reconsideration or new trial is timely filed, whether
published by the Cambridge University Press in 2005; and an article such motion is required or not, the sixty (60) day period shall be counted
published in 2006 in the Western ReserveJournal of International Law – from notice of the denial of said motion.
and make it appear that such commentaries supported its arguments for
dismissing the petition, when in truth the plagiarized sources even made As the rule indicates, the 60-day period starts to run from the date
a strong case in favour of petitioners’ claims.11 petitioner receives the assailed judgment, final order or resolution, or the
denial of the motion for reconsideration or new trial timely filed, whether
In their Comment,12 respondents disagree withpetitioners, maintaining such motion is required or not. To establish the timeliness of the petition
that aside from the statements on plagiarism, the arguments raised by for certiorari, the date of receipt of the assailed judgment, final order or
petitioners merely rehashed those made in their June 7, 2005 resolution or the denial of the motion for reconsideration or new trial
Memorandum; that they already refuted such arguments in their must be stated in the petition;otherwise, the petition for certiorarimust
Memorandumof June 6, 2005 that the Court resolved through itsApril 28, be dismissed. The importance of the dates cannot be understated, for
2010 decision, specifically as follows: such dates determine the timeliness of the filing of the petition for
certiorari. As the Court has emphasized in Tambong v. R. Jorge
1. The contentions pertaining tothe alleged plagiarism were then already Development Corporation:17
lodged withthe Committee on Ethics and Ethical Standards of the Court;
hence, the matter of alleged plagiarism should not be discussed or There are three essential dates that must be stated in a petition for
resolved herein.13 certiorari brought under Rule 65. First, the date when notice of the
judgment or final order or resolution was received; second, when a
2. A writ of certioraridid not lie in the absence of grave abuse of motion for new trial or reconsideration was filed; and third, when notice
discretion amounting to lack or excess of jurisdiction. Hence, in view of of the denial thereof was received. Failure of petitioner to comply with
the failureof petitioners to show any arbitrary or despotic act on the part this requirement shall be sufficient ground for the dismissal of the
of respondents,the relief of the writ of certiorariwas not warranted.14 petition. Substantial compliance will not suffice in a matter involving
strict observance with the Rules. (Emphasis supplied)
3. Respondents hold that the Waiver Clause in the Treaty of Peace with
Japan, being valid, bound the Republic of the Philippines pursuant to the The Court has further said in Santos v. Court of Appeals:18
international law principle of pacta sunt servanda.The validity of the
Treaty of Peace was the result of the ratification by two mutually
The requirement of setting forth the three (3) dates in a petition for Herein petitioners have not shown any compelling reason for us to relax
certiorari under Rule 65 is for the purpose of determining its timeliness. the rule and the requirements under current jurisprudence. x x x.
Such a petition is required to be filed not later than sixty (60) days from (Emphasis supplied)
notice of the judgment, order or Resolution sought to be assailed.
Therefore, that the petition for certiorariwas filed forty-one (41) days 2. Petitioners did not show that the assailed act was either judicial or
from receipt of the denial of the motion for reconsideration is hardly quasi-judicial on the part of respondents.
relevant. The Court of Appeals was notin any position to determine when
this period commenced to run and whether the motion for Petitioners were required to show in their petition for certiorarithat the
reconsideration itself was filed on time since the material dates were not assailed act was either judicial or quasi-judicial in character. Section 1,
stated. It should not be assumed that in no event would the motion be Rule 65 of the Rules of Courtrequires such showing, to wit:
filed later than fifteen (15) days. Technical rules of procedure are not
designed to frustrate the ends of justice. These are provided to effect the Section 1. Petition for certiorari.—When any tribunal, board or officer
proper and orderly disposition of cases and thus effectively prevent the exercising judicial or quasi-judicial functions has acted without or in
clogging of court dockets. Utter disregard of the Rules cannot justly be excess of its or his jurisdiction, or with grave abuse of discretion
rationalized by harking on the policy ofliberal construction.19 amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a
The petition for certioraricontains the following averments, viz: person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
82. Since 1998, petitioners and other victims of the "comfort women annulling or modifying the proceedings of such tribunal, board or officer,
system," approached the Executive Department through the Department and granting such incidental reliefs as law and justice may require.
of Justice in order to request for assistance to file a claim against the
Japanese officials and military officers who ordered the establishment of The petition shall be accompanied by a certified true copy of the
the "comfort women" stations in the Philippines; judgment, order, or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of
83. Officials of the Executive Department ignored their request and nonforum shopping as provided in the third paragraph of Section 3, Rule
refused to file a claim against the said Japanese officials and military 46. However, petitioners did notmake such a showing.
officers;
3. Petitioners were not entitled to the injunction.
84. Undaunted, the Petitioners in turnapproached the Department of
Foreign Affairs, Department of Justice and Office of the of the Solicitor The Court cannot grant petitioners’ prayer for the writ of preliminary
General to file their claim against the responsible Japanese officials and mandatory injunction. Preliminary injunction is merely a provisional
military officers, but their efforts were similarly and carelessly remedy that is adjunct to the main case, and is subject to the latter’s
disregarded;20 outcome. It is not a cause of action itself.22 It is provisional because it
constitutes a temporary measure availed of during the pendency of the
The petition thus mentions the year 1998 only as the time when action; and it is ancillary because it is a mere incident in and is dependent
petitioners approached the Department ofJustice for assistance, but does upon the result of the main action.23 Following the dismissal of the
not specifically state when they received the denial of their request for petition for certiorari, there is no more legal basis to issue the writ of
assistance by the Executive Department of the Government. This alone injunction sought. As an auxiliary remedy, the writ of preliminary
warranted the outright dismissal of the petition. mandatory injunction cannot be issued independently of the principal
action.24
Even assuming that petitioners received the notice of the denial of their
request for assistance in 1998, their filing of the petition only on March 8, In any event, a mandatory injunction requires the performance of a
2004 was still way beyond the 60-day period. Only the most compelling particular act.1âwphi1 Hence, it is an extreme remedy,25 to be granted
reasons could justify the Court’s acts of disregarding and lifting the only if the following requisites are attendant, namely:
strictures of the rule on the period. As we pointed out inMTM Garment
Mfg. Inc. v. Court of Appeals:21 (a) The applicant has a clear and unmistakable right, that is, a right in
esse;
All these do not mean, however, that procedural rules are to be ignored
or disdained at will to suit the convenience of a party. Procedural law has (b) There is a material and substantial invasion of such right; and
its own rationale in the orderly administration of justice, namely: to
ensure the effective enforcement of substantive rights by providing for a (c) There is an urgent need for the writ to prevent irreparable injury to
system that obviates arbitrariness, caprice, despotism, or whimsicality in the applicant; and no other ordinary, speedy, and adequate remedy
the settlement of disputes. Hence, it is a mistake to suppose that exists to prevent the infliction of irreparable injury.26
substantive law and procedural law are contradictory to each other, or as
often suggested, that enforcement of procedural rules should never be In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br. 58,
permitted if it would result in prejudice to the substantive rights of the Lucena City,27 we expounded as follows:
litigants.
It is basic that the issuance of a writ of preliminary injunction is
As we have repeatedly stressed, the right to file a special civil action of addressed to the sound discretion of the trial court, conditioned on the
certiorariis neither a natural right noran essential element of due existence of a clear and positive right of the applicant which should be
process; a writ of certiorariis a prerogative writ, never demandable as a protected. It is an extraordinary, peremptory remedy available only on
matter of right, and never issued except in the exercise of judicial the grounds expressly provided by law, specifically Section 3, Rule 58 of
discretion. Hence, he who seeks a writ of certiorarimust apply for it only the Rules of Court. Moreover, extreme caution must be observed in the
in the manner and strictly in accordance with the provisions of the law exercise of such discretion. It should be granted only when the court is
and the Rules. fully satisfied that the law permits it and the emergency demands it. The
very foundation of the jurisdiction to issue a writ of injunction rests in the
existence of a cause of action and in the probability of irreparable injury,
inadequacy of pecuniary compensation, and the prevention of
multiplicity of suits. Where facts are not shown to bring the case within there has been neither an appropriation nor an authorization of
these conditions, the relief of injunction should be refused.28 disbursement.

Here, the Constitution has entrusted to the Executive Department the Issue 3: W/N the petitions qualify as “legislator’s suit”
conduct of foreign relations for the Philippines. Whether or not to
espouse petitioners' claim against the Government of Japan is left to the No. The power to concur in a treaty or an international agreement is an
exclusive determination and judgment of the Executive Department. The institutional prerogative granted by the Constitution to the Senate. In a
Court cannot interfere with or question the wisdom of the conduct of legislator’s suit, the injured party would be the Senate as an institution or
foreign relations by the Executive Department. Accordingly, we cannot any of its incumbent members, as it is the Senate’s constitutional
direct the Executive Department, either by writ of certiorari or injunction, function that is allegedly being violated. Here, none of the petitioners,
to conduct our foreign relations with Japan in a certain manner. who are former senators, have the legal standing to maintain the suit.

WHEREFORE, the Court DENIES the Motion for Reconsideration and Issue 4: W/N the SC may exercise its Power of Judicial Review over the
Supplemental Motion for Reconsideration for their lack of merit case

Yes. Although petitioners lack legal standing, they raise matters of


SAGUISAG VS EXECUTIVE SECRETARY transcendental importance which justify setting aside the rule on
procedural technicalities. The challenge raised here is rooted in the very
Facts: Constitution itself, particularly Art XVIII, Sec 25 thereof, which provides
for a stricter mechanism required before any foreign military bases,
Petitioners, as citizens, taxpayers and former legislators, questioned troops or facilities may be allowed in the country. Such is of paramount
before the SC the constitutionality of EDCA (Enhanced Defense public interest that the Court is behooved to determine whether there
Cooperation Agreement), an agreement entered into by the executive was grave abuse of discretion on the part of the Executive Department.
department with the US and ratified on June 6, 2014. Under the EDCA,
the PH shall provide the US forces the access and use of portions of PH Issue 5: W/N the non-submission of the EDCA agreement for
territory, which are called Agreed Locations. Aside from the right to concurrence by the Senate violates the Constitution
access and to use the Agreed Locations, the US may undertake the
following types of activities within the Agreed Locations: security No. The EDCA need not be submitted to the Senate for concurrence
cooperation exercises; joint and combined training activities; because it is in the form of a mere executive agreement, not a treaty.
humanitarian and disaster relief activities; and such other activities that Under the Constitution, the President is empowered to enter into
as may be agreed upon by the parties. executive agreements on foreign military bases, troops or facilities if (1)
such agreement is not the instrument that allows the entry of such and
Mainly, petitioners posit that the use of executive agreement as medium (2) if it merely aims to implement an existing law or treaty.
of agreement with US violated the constitutional requirement of Art
XVIII, Sec 25 since the EDCA involves foreign military bases, troops and EDCA is in the form of an executive agreement since it merely involves
facilities whose entry into the country should be covered by a treaty “adjustments in detail” in the implementation of the MTD and the VFA.
concurred in by the Senate. The Senate, through Senate Resolution 105, These are existing treaties between the Philippines and the U.S. that have
also expressed its position that EDCA needs congressional ratification. already been concurred in by the Philippine Senate and have thereby met
the requirements of the Constitution under Art XVIII, Sec 25. Because of
Issue 1: W/N the petitions as “citizen’s suit” satisfy the requirements of the status of these prior agreements, EDCA need not be transmitted to
legal standing in assailing the constitutionality of EDCA the Senate.

No. In assailing the constitutionality of a governmental act, petitioners AKBAYAN VS AQUINO


suing as citizens may dodge the requirement of having to establish a
direct and personal interest if they show that the act affects a public Petitioners non-government organizations, Congresspersons, citizens and
right. But here, aside from general statements that the petitions involve taxpayers seek via the present petition for mandamus and prohibition to
the protection of a public right, and that their constitutional rights as obtain from respondents the full text of the Japan-Philippines Economic
citizens would be violated, the petitioners failed to make any specific Partnership Agreement (JPEPA) including the Philippine and Japanese
assertion of a particular public right that would be violated by the offers submitted during the negotiation process and all pertinent
enforcement of EDCA. For their failure to do so, the present petitions attachments and annexes thereto.
cannot be considered by the Court as citizens’ suits that would justify a
disregard of the aforementioned requirements. Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed
on January 25, 2005 House Resolution No. 551 calling for an inquiry into
Issue 2: W/N the petitioners have legal standing as “taxpayers” the bilateral trade agreements then being negotiated by the Philippine
government, particularly the JPEPA. The Resolution became the basis of
No. Petitioners cannot sue as taxpayers because EDCA is neither meant an inquiry subsequently conducted by the House Special Committee on
to be a tax measure, nor is it directed at the disbursement of public Globalization (the House Committee) into the negotiations of the JPEPA.
funds.
In the course of its inquiry, the House Committee requested herein
A taxpayer’s suit concerns a case in which the official act complained of respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of
directly involves the illegal disbursement of public funds derived from the Philippine Coordinating Committee created under Executive Order
taxation. Here, those challenging the act must specifically show that they No. 213 (CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO
have sufficient interest in preventing the illegal expenditure of public STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC
money, and that they will sustain a direct injury as a result of the PARTNERSHIP AGREEMENT)[1] to study and negotiate the proposed
enforcement of the assailed act. Applying that principle to this case, they JPEPA, and to furnish the Committee with a copy of the latest draft of the
must establish that EDCA involves the exercise by Congress of its taxing JPEPA. Usec. Aquino did not heed the request, however.
or spending powers. A reading of the EDCA, however, would show that
Congressman Aguja later requested for the same document, but Usec. Before delving on the substantive grounds relied upon by petitioners in
Aquino, by letter of November 2, 2005, replied that the Congressman support of the petition, the Court finds it necessary to first resolve some
shall be provided with a copy thereof once the negotiations are material procedural issues.
completed and as soon as a thorough legal review of the proposed
agreement has been conducted. Standing

In a separate move, the House Committee, through Congressman For a petition for mandamus such as the one at bar to be given due
Herminio G. Teves, requested Executive Secretary Eduardo Ermita to course, it must be instituted by a party aggrieved by the alleged inaction
furnish it with all documents on the subject including the latest draft of of any tribunal, corporation, board or person which unlawfully excludes
the proposed agreement, the requests and offers etc.[2] Acting on the said party from the enjoyment of a legal right.[7] Respondents deny that
request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman petitioners have such standing to sue. [I]n the interest of a speedy and
Teves as follows: definitive resolution of the substantive issues raised, however,
respondents consider it sufficient to cite a portion of the ruling in
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] Pimentel v. Office of Executive Secretary[8] which emphasizes the need
F[oreign] A[ffairs] explains that the Committees request to be furnished for a personal stake in the outcome of the controversy on questions of
all documents on the JPEPA may be difficult to accomplish at this time, standing.
since the proposed Agreement has been a work in progress for about
three years. A copy of the draft JPEPA will however be forwarded to the In a petition anchored upon the right of the people to information on
Committee as soon as the text thereof is settled and complete. (Emphasis matters of public concern, which is a public right by its very nature,
supplied) petitioners need not show that they have any legal or special interest in
the result, it being sufficient to show that they are citizens and, therefore,
part of the general public which possesses the right.[9] As the present
Congressman Aguja also requested NEDA Director-General Romulo Neri petition is anchored on the right to information and petitioners are all
and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, suing in their capacity as citizens and groups of citizens including
for copies of the latest text of the JPEPA. petitioners-members of the House of Representatives who additionally
are suing in their capacity as such, the standing of petitioners to file the
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff present suit is grounded in jurisprudence.
Commission does not have a copy of the documents being requested,
albeit he was certain that Usec. Aquino would provide the Congressman Mootness
with a copy once the negotiation is completed. And by letter of July 18,
2005, NEDA Assistant Director-General Margarita R. Songco informed the Considering, however, that [t]he principal relief petitioners are praying
Congressman that his request addressed to Director-General Neri had for is the disclosure of the contents of the JPEPA prior to its finalization
been forwarded to Usec. Aquino who would be in the best position to between the two States parties,[10] public disclosure of the text of the
respond to the request. JPEPA after its signing by the President, during the pendency of the
present petition, has been largely rendered moot and academic.
In its third hearing conducted on August 31, 2005, the House Committee
resolved to issue a subpoena for the most recent draft of the JPEPA, but With the Senate deliberations on the JPEPA still pending, the agreement
the same was not pursued because by Committee Chairman as it now stands cannot yet be considered as final and binding between
Congressman Teves information, then House Speaker Jose de Venecia the two States. Article 164 of the JPEPA itself provides that the
had requested him to hold in abeyance the issuance of the subpoena agreement does not take effect immediately upon the signing thereof.
until the President gives her consent to the disclosure of the For it must still go through the procedures required by the laws of each
documents.[3] country for its entry into force, viz:

Amid speculations that the JPEPA might be signed by the Philippine Article 164
government within December 2005, the present petition was filed on Entry into Force
December 9, 2005.[4] The agreement was to be later signed on
September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese This Agreement shall enter into force on the thirtieth day after the date
Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the on which the Governments of the Parties exchange diplomatic notes
President endorsed it to the Senate for its concurrence pursuant to informing each other that their respective legal procedures necessary for
Article VII, Section 21 of the Constitution. To date, the JPEPA is still being entry into force of this Agreement have been completed. It shall remain
deliberated upon by the Senate. in force unless terminated as provided for in Article 165.[11] (Emphasis
supplied)
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 President Arroyos endorsement of the JPEPA to the Senate for
respondents enumerate as follows: trade in goods, rules of origin, concurrence is part of the legal procedures which must be met prior to
customs procedures, paperless trading, trade in services, investment, the agreements entry into force.
intellectual property rights, government procurement, movement of
natural persons, cooperation, competition policy, mutual recognition, The text of the JPEPA having then been made accessible to the public, the
dispute avoidance and settlement, improvement of the business petition has become moot and academic to the extent that it seeks the
environment, and general and final provisions.[5] disclosure of the full text thereof.

While the final text of the JPEPA has now been made accessible to the The petition is not entirely moot, however, because petitioners seek to
public since September 11, 2006,[6] respondents do not dispute that, at obtain, not merely the text of the JPEPA, but also the Philippine and
the time the petition was filed up to the filing of petitioners Reply when Japanese offers in the course of the negotiations.[12]
the JPEPA was still being negotiated the initial drafts thereof were kept
from public view.
A discussion of the substantive issues, insofar as they impinge on Whether a claim of executive privilege is valid depends on the ground
petitioners demand for access to the Philippine and Japanese offers, is invoked to justify it and the context in which it is made.[21] In the
thus in order. present case, the ground for respondents claim of privilege is set forth in
their Comment, viz:

x x x The categories of information that may be considered privileged


includes matters of diplomatic character and under negotiation and
Grounds relied upon by petitioners review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by
Petitioners assert, first, that the refusal of the government to disclose the respondents particularly respondent DTI Senior Undersecretary.
documents bearing on the JPEPA negotiations violates their right to
information on matters of public concern[13] and contravenes other The documents on the proposed JPEPA as well as the text which is
constitutional provisions on transparency, such as that on the policy of subject to negotiations and legal review by the parties fall under the
full public disclosure of all transactions involving public interest.[14] exceptions to the right of access to information on matters of public
Second, they contend that non-disclosure of the same documents concern and policy of public disclosure. They come within the coverage of
undermines their right to effective and reasonable participation in all executive privilege. At the time when the Committee was requesting for
levels of social, political, and economic decision-making.[15] Lastly, they copies of such documents, the negotiations were ongoing as they are still
proffer that divulging the contents of the JPEPA only after the agreement now and the text of the proposed JPEPA is still uncertain and subject to
has been concluded will effectively make the Senate into a mere rubber change. Considering the status and nature of such documents then and
stamp of the Executive, in violation of the principle of separation of now, these are evidently covered by executive privilege consistent with
powers. existing legal provisions and settled jurisprudence.

Significantly, the grounds relied upon by petitioners for the disclosure of Practical and strategic considerations likewise counsel against the
the latest text of the JPEPA are, except for the last, the same as those disclosure of the rolling texts which may undergo radical change or
cited for the disclosure of the Philippine and Japanese offers. portions of which may be totally abandoned. Furthermore, the
negotiations of the representatives of the Philippines as well as of Japan
The first two grounds relied upon by petitioners which bear on the merits must be allowed to explore alternatives in the course of the negotiations
of respondents claim of privilege shall be discussed. The last, being purely in the same manner as judicial deliberations and working drafts of
speculatory given that the Senate is still deliberating on the JPEPA, shall opinions are accorded strict confidentiality.[22] (Emphasis and
not. underscoring supplied)

The JPEPA is a matter of public concern


The ground relied upon by respondents is thus not simply that the
To be covered by the right to information, the information sought must information sought involves a diplomatic matter, but that it pertains to
meet the threshold requirement that it be a matter of public concern. diplomatic negotiations then in progress.
Apropos is the teaching of Legaspi v. Civil Service Commission:
Privileged character of diplomatic negotiations
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. Public concern like The privileged character of diplomatic negotiations has been recognized
public interest is a term that eludes exact definition. Both terms embrace in this jurisdiction. In discussing valid limitations on the right to
a broad spectrum of subjects which the public may want to know, either information, the Court in Chavez v. PCGG held that information on inter-
because these directly affect their lives, or simply because such matters government exchanges prior to the conclusion of treaties and executive
naturally arouse the interest of an ordinary citizen. In the final analysis, it agreements may be subject to reasonable safeguards for the sake of
is for the courts to determine on a case by case basis whether the matter national interest.[23] Even earlier, the same privilege was upheld in
at issue is of interest or importance, as it relates to or affects the Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein
public.[16] (Underscoring supplied) the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information


From the nature of the JPEPA as an international trade agreement, it is from the Presidents representatives on the state of the then on-going
evident that the Philippine and Japanese offers submitted during the negotiations of the RP-US Military Bases Agreement.[25] The Court
negotiations towards its execution are matters of public concern. This, denied the petition, stressing that secrecy of negotiations with foreign
respondents do not dispute. They only claim that diplomatic negotiations countries is not violative of the constitutional provisions of freedom of
are covered by the doctrine of executive privilege, thus constituting an speech or of the press nor of the freedom of access to information. The
exception to the right to information and the policy of full public Resolution went on to state, thus:
disclosure.
The nature of diplomacy requires centralization of authority and
Respondents claim of privilege expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential nature. Although
It is well-established in jurisprudence that neither the right to much has been said about open and secret diplomacy, with
information nor the policy of full public disclosure is absolute, there being disparagement of the latter, Secretaries of State Hughes and Stimson
matters which, albeit of public concern or public interest, are recognized have clearly analyzed and justified the practice. In the words of Mr.
as privileged in nature. The types of information which may be Stimson:
considered privileged have been elucidated in Almonte v. Vasquez,[17]
Chavez v. PCGG,[18] Chavez v. Public Estates Authority,[19] and most A complicated negotiation . . . cannot be carried through without many,
recently in Senate v. Ermita[20] where the Court reaffirmed the validity many private talks and discussion, man to man; many tentative
of the doctrine of executive privilege in this jurisdiction and dwelt on its suggestions and proposals. Delegates from other countries come and tell
scope. you in confidence of their troubles at home and of their differences with
other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other successful negotiation. As Sissela Bok points out, if negotiators have more
circumstances. . . If these reports . . . should become public . . . who to gain from being approved by their own sides than by making a
would ever trust American Delegations in another conference? (United reasoned agreement with competitors or adversaries, then they are
States Department of State, Press Releases, June 7, 1930, pp. 282-284.). inclined to 'play to the gallery . . .'' In fact, the public reaction may leave
them little option. It would be a brave, or foolish, Arab leader who
xxxx expressed publicly a willingness for peace with Israel that did not involve
the return of the entire West Bank, or Israeli leader who stated publicly a
There is frequent criticism of the secrecy in which negotiation with willingness to remove Israel's existing settlements from Judea and
foreign powers on nearly all subjects is concerned. This, it is claimed, is Samaria in return for peace.[28] (Emphasis supplied)
incompatible with the substance of democracy. As expressed by one
writer, It can be said that there is no more rigid system of silence
anywhere in the world. (E.J. Young, Looking Behind the Censorship, J. B. Indeed, by hampering the ability of our representatives to compromise,
Lippincott Co., 1938) President Wilson in starting his efforts for the we may be jeopardizing higher national goals for the sake of securing less
conclusion of the World War declared that we must have open critical ones.
covenants, openly arrived at. He quickly abandoned his thought. Diplomatic negotiations, therefore, are recognized as privileged in this
jurisdiction, the JPEPA negotiations constituting no exception. It bears
No one who has studied the question believes that such a method of emphasis, however, that such privilege is only presumptive. For as Senate
publicity is possible. In the moment that negotiations are started, v. Ermita holds, recognizing a type of information as privileged does not
pressure groups attempt to muscle in. An ill-timed speech by one of the mean that it will be considered privileged in all instances. Only after a
parties or a frank declaration of the concession which are exacted or consideration of the context in which the claim is made may it be
offered on both sides would quickly lead to widespread propaganda to determined if there is a public interest that calls for the disclosure of the
block the negotiations. After a treaty has been drafted and its terms are desired information, strong enough to overcome its traditionally
fully published, there is ample opportunity for discussion before it is privileged status.
approved. (The New American Government and Its Works, James T.
Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Whether petitioners have established the presence of such a public
interest shall be discussed later. For now, the Court shall first pass upon
the arguments raised by petitioners against the application of PMPF v.
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Manglapus to the present case.
Curtiss-Wright Export Corp.[26] that the President is the sole organ of the
nation in its negotiations with foreign countries, viz: Arguments proffered by petitioners against the application of PMPF v.
Manglapus
x x x In this vast external realm, with its important, complicated, delicate
and manifold problems, the President alone has the power to speak or
listen as a representative of the nation. He makes treaties with the advice Petitioners argue that PMPF v. Manglapus cannot be applied in toto to
and consent of the Senate; but he alone negotiates. Into the field of the present case, there being substantial factual distinctions between the
negotiation the Senate cannot intrude; and Congress itself is powerless to two.
invade it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, The President is the sole organ of the nation in To petitioners, the first and most fundamental distinction lies in the
its external relations, and its sole representative with foreign nations. nature of the treaty involved. They stress that PMPF v. Manglapus
Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the involved the Military Bases Agreement which necessarily pertained to
original) matters affecting national security; whereas the present case involves an
economic treaty that seeks to regulate trade and commerce between the
Philippines and Japan, matters which, unlike those covered by the
Applying the principles adopted in PMPF v. Manglapus, it is clear that Military Bases Agreement, are not so vital to national security to disallow
while the final text of the JPEPA may not be kept perpetually confidential their disclosure.
since there should be ample opportunity for discussion before [a treaty]
is approved the offers exchanged by the parties during the negotiations Petitioners argument betrays a faulty assumption that information, to be
continue to be privileged even after the JPEPA is published. It is considered privileged, must involve national security. The recognition in
reasonable to conclude that the Japanese representatives submitted Senate v. Ermita[29] that executive privilege has encompassed claims of
their offers with the understanding that historic confidentiality[27] would varying kinds, such that it may even be more accurate to speak of
govern the same. Disclosing these offers could impair the ability of the executive privileges, cautions against such generalization.
Philippines to deal not only with Japan but with other foreign
governments in future negotiations. While there certainly are privileges grounded on the necessity of
safeguarding national security such as those involving military secrets,
A ruling that Philippine offers in treaty negotiations should now be open not all are founded thereon. One example is the informers privilege, or
to public scrutiny would discourage future Philippine representatives the privilege of the Government not to disclose the identity of a person
from frankly expressing their views during negotiations. While, on first or persons who furnish information of violations of law to officers
impression, it appears wise to deter Philippine representatives from charged with the enforcement of that law.[30] The suspect involved need
entering into compromises, it bears noting that treaty negotiations, or not be so notorious as to be a threat to national security for this privilege
any negotiation for that matter, normally involve a process of quid pro to apply in any given instance. Otherwise, the privilege would be
quo, and oftentimes negotiators have to be willing to grant concessions inapplicable in all but the most high-profile cases, in which case not only
in an area of lesser importance in order to obtain more favorable terms would this be contrary to long-standing practice. It would also be highly
in an area of greater national interest. Apropos are the following prejudicial to law enforcement efforts in general.
observations of Benjamin S. Duval, Jr.:
Also illustrative is the privilege accorded to presidential communications,
x x x [T]hose involved in the practice of negotiations appear to be in which are presumed privileged without distinguishing between those
agreement that publicity leads to grandstanding, tends to freeze which involve matters of national security and those which do not, the
negotiating positions, and inhibits the give-and-take essential to rationale for the privilege being that
date until the treaty was signed by the President and ratified by the
x x x [a] frank exchange of exploratory ideas and assessments, free from Senate.
the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to exercise The policies behind the deliberative process privilege support non-
Presidential, Legislative and Judicial power. x x x[31] (Emphasis supplied) disclosure. Much harm could accrue to the negotiations process if these
notes were revealed. Exposure of the pre-agreement positions of the
French negotiators might well offend foreign governments and would
In the same way that the privilege for judicial deliberations does not lead to less candor by the U. S. in recording the events of the
depend on the nature of the case deliberated upon, so presidential negotiations process. As several months pass in between negotiations,
communications are privileged whether they involve matters of national this lack of record could hinder readily the U. S. negotiating team. Further
security. disclosure would reveal prematurely adopted policies. If these policies
It bears emphasis, however, that the privilege accorded to presidential should be changed, public confusion would result easily.
communications is not absolute, one significant qualification being that
the Executive cannot, any more than the other branches of government, Finally, releasing these snapshot views of the negotiations would be
invoke a general confidentiality privilege to shield its officials and comparable to releasing drafts of the treaty, particularly when the notes
employees from investigations by the proper governmental institutions state the tentative provisions and language agreed on. As drafts of
into possible criminal wrongdoing. [32] This qualification applies whether regulations typically are protected by the deliberative process privilege,
the privilege is being invoked in the context of a judicial trial or a Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705
congressional investigation conducted in aid of legislation.[33] (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same
protection. (Emphasis and underscoring supplied)
Closely related to the presidential communications privilege is the
deliberative process privilege recognized in the United States. As
discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,[34] Clearly, the privilege accorded to diplomatic negotiations follows as a
deliberative process covers documents reflecting advisory opinions, logical consequence from the privileged character of the deliberative
recommendations and deliberations comprising part of a process by process.
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 officials will not
communicate candidly among themselves if each remark is a potential The Court is not unaware that in Center for International Environmental
item of discovery and front page news, the objective of the privilege Law (CIEL), et al. v. Office of U.S. Trade Representative[38] where the
being to enhance the quality of agency decisions. [35] plaintiffs sought information relating to the just-completed negotiation of
a United States-Chile Free Trade Agreement the same district court, this
The diplomatic negotiations privilege bears a close resemblance to the time under Judge Friedman, consciously refrained from applying the
deliberative process and presidential communications privilege. It may be doctrine in Fulbright and ordered the disclosure of the information being
readily perceived that the rationale for the confidential character of sought.
diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege
for diplomatic negotiations is meant to encourage a frank exchange of Since the factual milieu in CIEL seemed to call for the straight application
exploratory ideas between the negotiating parties by shielding such of the doctrine in Fulbright, a discussion of why the district court did not
negotiations from public view. Similar to the privilege for presidential apply the same would help illumine this Courts own reasons for deciding
communications, the diplomatic negotiations privilege seeks, through the the present case along the lines of Fulbright.
same means, to protect the independence in decision-making of the
President, particularly in its capacity as the sole organ of the nation in its
external relations, and its sole representative with foreign nations. And,
as with the deliberative process privilege, the privilege accorded to In both Fulbright and CIEL, the U.S. government cited a statutory basis for
diplomatic negotiations arises, not on account of the content of the withholding information, namely, Exemption 5 of the Freedom of
information per se, but because the information is part of a process of Information Act (FOIA).[39] In order to qualify for protection under
deliberation which, in pursuit of the public interest, must be presumed Exemption 5, a document must satisfy two conditions: (1) it must be
confidential. either inter-agency or intra-agency in nature, and (2) it must be both pre-
decisional and part of the agency's deliberative or decision-making
The decision of the U.S. District Court, District of Columbia in Fulbright & process.[40]
Jaworski v. Department of the Treasury[37] enlightens on the close
relation between diplomatic negotiations and deliberative process
privileges. The plaintiffs in that case sought access to notes taken by a
member of the U.S. negotiating team during the U.S.-French tax treaty Judge Friedman, in CIEL, himself cognizant of a superficial similarity of
negotiations. Among the points noted therein were the issues to be context between the two cases, based his decision on what he perceived
discussed, positions which the French and U.S. teams took on some to be a significant distinction: he found the negotiators notes that were
points, the draft language agreed on, and articles which needed to be sought in Fulbright to be clearly internal, whereas the documents being
amended. Upholding the confidentiality of those notes, Judge Green sought in CIEL were those produced by or exchanged with an outside
ruled, thus: party, i.e. Chile. The documents subject of Fulbright being clearly internal
in character, the question of disclosure therein turned not on the
Negotiations between two countries to draft a treaty represent a true threshold requirement of Exemption 5 that the document be inter-
example of a deliberative process. Much give-and-take must occur for the agency, but on whether the documents were part of the agency's pre-
countries to reach an accord. A description of the negotiations at any one decisional deliberative process. On this basis, Judge Friedman found that
point would not provide an onlooker a summary of the discussions which Judge Green's discussion [in Fulbright] of the harm that could result from
could later be relied on as law. It would not be working law as the points disclosure therefore is irrelevant, since the documents at issue [in CIEL]
discussed and positions agreed on would be subject to change at any
are not inter-agency, and the Court does not reach the question of
deliberative process. (Emphasis supplied)
Petitioners thus conclude that the present case involves the right of
members of Congress to demand information on negotiations of
international trade agreements from the Executive branch, a matter
In fine, Fulbright was not overturned. The court in CIEL merely found the which was not raised in PMPF v. Manglapus.
same to be irrelevant in light of its distinct factual setting. Whether this
conclusion was valid a question on which this Court would not pass the While indeed the petitioners in PMPF v. Manglapus consisted only of
ruling in Fulbright that [n]egotiations between two countries to draft a members of the mass media, it would be incorrect to claim that the
treaty represent a true example of a deliberative process was left doctrine laid down therein has no bearing on a controversy such as the
standing, since the CIEL court explicitly stated that it did not reach the present, where the demand for information has come from members of
question of deliberative process. Congress, not only from private citizens.

The privileged character accorded to diplomatic negotiations does not


ipso facto lose all force and effect simply because the same privilege is
Going back to the present case, the Court recognizes that the information now being claimed under different circumstances. The probability of the
sought by petitioners includes documents produced and communicated claim succeeding in the new context might differ, but to say that the
by a party external to the Philippine government, namely, the Japanese privilege, as such, has no validity at all in that context is another matter
representatives in the JPEPA negotiations, and to that extent this case is altogether.
closer to the factual circumstances of CIEL than those of Fulbright.
The Courts statement in Senate v. Ermita that presidential refusals to
furnish information may be actuated by any of at least three distinct
kinds of considerations [state secrets privilege, informers privilege, and a
Nonetheless, for reasons which shall be discussed shortly, this Court generic privilege for internal deliberations], and may be asserted, with
echoes the principle articulated in Fulbright that the public policy differing degrees of success, in the context of either judicial or legislative
underlying the deliberative process privilege requires that diplomatic investigations,[41] implies that a privilege, once recognized, may be
negotiations should also be accorded privileged status, even if the invoked under different procedural settings. That this principle holds true
documents subject of the present case cannot be described as purely particularly with respect to diplomatic negotiations may be inferred from
internal in character. PMPF v. Manglapus itself, where the Court held that it is the President
alone who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.

It need not be stressed that in CIEL, the court ordered the disclosure of Clearly, the privilege for diplomatic negotiations may be invoked not only
information based on its finding that the first requirement of FOIA against citizens demands for information, but also in the context of
Exemption 5 that the documents be inter-agency was not met. In legislative investigations.
determining whether the government may validly refuse disclosure of the
exchanges between the U.S. and Chile, it necessarily had to deal with this Hence, the recognition granted in PMPF v. Manglapus to the privileged
requirement, it being laid down by a statute binding on them. character of diplomatic negotiations cannot be considered irrelevant in
resolving the present case, the contextual differences between the two
cases notwithstanding.
As third and last point raised against the application of PMPF v.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is Manglapus in this case, petitioners proffer that the socio-political and
there any statutory requirement similar to FOIA Exemption 5 in historical contexts of the two cases are worlds apart. They claim that the
particular. Hence, Philippine courts, when assessing a claim of privilege constitutional traditions and concepts prevailing at the time PMPF v.
for diplomatic negotiations, are more free to focus directly on the issue Manglapus came about, particularly the school of thought that the
of whether the privilege being claimed is indeed supported by public requirements of foreign policy and the ideals of transparency were
policy, without having to consider as the CIEL court did if these incompatible with each other or the incompatibility hypothesis, while
negotiations fulfill a formal requirement of being inter-agency. Important valid when international relations were still governed by power, politics
though that requirement may be in the context of domestic negotiations, and wars, are no longer so in this age of international cooperation.[42]
it need not be accorded the same significance when dealing with
international negotiations. Without delving into petitioners assertions respecting the incompatibility
hypothesis, the Court notes that the ruling in PMPF v. Manglapus is
grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting
There being a public policy supporting a privilege for diplomatic that the nature of treaty negotiations have so changed that [a]n ill-timed
negotiations for the reasons explained above, the Court sees no reason speech by one of the parties or a frank declaration of the concession
to modify, much less abandon, the doctrine in PMPF v. Manglapus. which are exacted or offered on both sides no longer lead[s] to
widespread propaganda to block the negotiations, or that parties in
treaty negotiations no longer expect their communications to be
governed by historic confidentiality, the burden is on them to
A second point petitioners proffer in their attempt to differentiate PMPF substantiate the same. This petitioners failed to discharge.
v. Manglapus from the present case is the fact that the petitioners
therein consisted entirely of members of the mass media, while Whether the privilege applies only at certain stages of the negotiation
petitioners in the present case include members of the House of process
Representatives who invoke their right to information not just as citizens
but as members of Congress.
Petitioners admit that diplomatic negotiations on the JPEPA are entitled
to a reasonable amount of confidentiality so as not to jeopardize the
diplomatic process. They argue, however, that the same is privileged only have some bearing on the pending criminal cases. (Emphasis, italics and
at certain stages of the negotiating process, after which such information underscoring supplied)
must necessarily be revealed to the public.[43] They add that the duty to
disclose this information was vested in the government when the Similarly, Senate Select Committee v. Nixon,[51] which involved a claim
negotiations moved from the formulation and exploratory stage to the of the presidential communications privilege against the subpoena duces
firming up of definite propositions or official recommendations, citing tecum of a Senate committee, spoke of the need to balance such claim
Chavez v. PCGG[44] and Chavez v. PEA.[45] with the duty of Congress to perform its legislative functions.

The following statement in Chavez v. PEA, however, suffices to show that The staged decisional structure established in Nixon v. Sirica was
the doctrine in both that case and Chavez v. PCGG with regard to the designed to ensure that the President and those upon whom he directly
duty to disclose definite propositions of the government does not apply relies in the performance of his duties could continue to work under a
to diplomatic negotiations: general assurance that their deliberations would remain confidential. So
long as the presumption that the public interest favors confidentiality can
We rule, therefore, that the constitutional right to information includes be defeated only by a strong showing of need by another institution of
official information on on-going negotiations before a final contract. The government- a showing that the responsibilities of that institution cannot
information, however, must constitute definite propositions by the responsibly be fulfilled without access to records of the President's
government and should not cover recognized exceptions like privileged deliberations- we believed in Nixon v. Sirica, and continue to believe, that
information, military and diplomatic secrets and similar matters affecting the effective functioning of the presidential office will not be impaired. x
national security and public order. x x x[46] (Emphasis and underscoring xx
supplied)
xxxx

It follows from this ruling that even definite propositions of the The sufficiency of the Committee's showing of need has come to depend,
government may not be disclosed if they fall under recognized therefore, entirely on whether the subpoenaed materials are critical to
exceptions. The privilege for diplomatic negotiations is clearly among the the performance of its legislative functions. x x x (Emphasis and
recognized exceptions, for the footnote to the immediately quoted ruling underscoring supplied)
cites PMPF v. Manglapus itself as an authority.

Whether there is sufficient public interest to overcome the claim of In re Sealed Case[52] involved a claim of the deliberative process and
privilege presidential communications privileges against a subpoena duces tecum
of a grand jury. On the claim of deliberative process privilege, the court
stated:
It being established that diplomatic negotiations enjoy a presumptive
privilege against disclosure, even against the demands of members of The deliberative process privilege is a qualified privilege and can be
Congress for information, the Court shall now determine whether overcome by a sufficient showing of need. This need determination is to
petitioners have shown the existence of a public interest sufficient to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the
overcome the privilege in this instance. deliberative process privilege] is asserted the district court must
undertake a fresh balancing of the competing interests," taking into
To clarify, there are at least two kinds of public interest that must be account factors such as "the relevance of the evidence," "the availability
taken into account. One is the presumed public interest in favor of of other evidence," "the seriousness of the litigation," "the role of the
keeping the subject information confidential, which is the reason for the government," and the "possibility of future timidity by government
privilege in the first place, and the other is the public interest in favor of employees. x x x (Emphasis, italics and underscoring supplied)
disclosure, the existence of which must be shown by the party asking for
information. [47]
Petitioners have failed to present the strong and sufficient showing of
The criteria to be employed in determining whether there is a sufficient need referred to in the immediately cited cases. The arguments they
public interest in favor of disclosure may be gathered from cases such as proffer to establish their entitlement to the subject documents fall short
U.S. v. Nixon,[48] Senate Select Committee on Presidential Campaign of this standard.
Activities v. Nixon,[49] and In re Sealed Case.[50]
Petitioners go on to assert that the non-involvement of the Filipino
U.S. v. Nixon, which involved a claim of the presidential communications people in the JPEPA negotiation process effectively results in the
privilege against the subpoena duces tecum of a district court in a bargaining away of their economic and property rights without their
criminal case, emphasized the need to balance such claim of privilege knowledge and participation, in violation of the due process clause of the
against the constitutional duty of courts to ensure a fair administration of Constitution. They claim, moreover, that it is essential for the people to
criminal justice. have access to the initial offers exchanged during the negotiations since
only through such disclosure can their constitutional right to effectively
x x x the allowance of the privilege to withhold evidence that is participate in decision-making be brought to life in the context of
demonstrably relevant in a criminal trial would cut deeply into the international trade agreements.
guarantee of due process of law and gravely impair the basic function of
the courts. A Presidents acknowledged need for confidentiality in the Whether it can accurately be said that the Filipino people were not
communications of his office is general in nature, whereas the involved in the JPEPA negotiations is a question of fact which this Court
constitutional need for production of relevant evidence in a criminal need not resolve. Suffice it to state that respondents had presented
proceeding is specific and central to the fair adjudication of a particular documents purporting to show that public consultations were conducted
criminal case in the administration of justice. Without access to specific on the JPEPA. Parenthetically, petitioners consider these alleged
facts a criminal prosecution may be totally frustrated. The Presidents consultations as woefully selective and inadequate.[53]
broad interest in confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily shown to AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the
public, the Court shall pass upon the issue of whether access to the the nation's foreign policy; his "dominance in the field of foreign relations
documents bearing on them is, as petitioners claim, essential to their is (then) conceded." Wielding vast powers and influence, his conduct in
right to participate in decision-making. the external affairs of the nation, as Jefferson describes, is executive
altogether.
The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11, As regards the power to enter into treaties or international agreements,
2006, even as it is still being deliberated upon by the Senate and, the Constitution vests the same in the President, subject only to the
therefore, not yet binding on the Philippines. Were the Senate to concur concurrence of at least two thirds vote of all the members of the Senate.
with the validity of the JPEPA at this moment, there has already been, in In this light, the negotiation of the VFA and the subsequent ratification of
the words of PMPF v. Manglapus, ample opportunity for discussion the agreement are exclusive acts which pertain solely to the President, in
before [the treaty] is approved. the lawful exercise of his vast executive and diplomatic powers granted
him no less than by the fundamental law itself. Into the field of
The text of the JPEPA having been published, petitioners have failed to negotiation the Senate cannot intrude, and Congress itself is powerless to
convince this Court that they will not be able to meaningfully exercise invade it. x x x (Italics in the original; emphasis and underscoring
their right to participate in decision-making unless the initial offers are supplied)
also published.

It is of public knowledge that various non-government sectors and The same doctrine was reiterated even more recently in Pimentel v.
private citizens have already publicly expressed their views on the JPEPA, Executive Secretary[57] where the Court ruled:
their comments not being limited to general observations thereon but on
its specific provisions. Numerous articles and statements critical of the In our system of government, the President, being the head of state, is
JPEPA have been posted on the Internet.[54] Given these developments, regarded as the sole organ and authority in external relations and is the
there is no basis for petitioners claim that access to the Philippine and country's sole representative with foreign nations. As the chief architect
Japanese offers is essential to the exercise of their right to participate in of foreign policy, the President acts as the country's mouthpiece with
decision-making. respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
Petitioner-members of the House of Representatives additionally anchor withhold recognition, maintain diplomatic relations, enter into treaties,
their claim to have a right to the subject documents on the basis of and otherwise transact the business of foreign relations. In the realm of
Congress inherent power to regulate commerce, be it domestic or treaty-making, the President has the sole authority to negotiate with
international. They allege that Congress cannot meaningfully exercise the other states.
power to regulate international trade agreements such as the JPEPA
without being given copies of the initial offers exchanged during the Nonetheless, while the President has the sole authority to negotiate and
negotiations thereof. In the same vein, they argue that the President enter into treaties, the Constitution provides a limitation to his power by
cannot exclude Congress from the JPEPA negotiations since whatever requiring the concurrence of 2/3 of all the members of the Senate for the
power and authority the President has to negotiate international trade validity of the treaty entered into by him. x x x (Emphasis and
agreements is derived only by delegation of Congress, pursuant to Article underscoring supplied)
VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.[55]
While the power then to fix tariff rates and other taxes clearly belongs to
The subject of Article VI Section 28(2) of the Constitution is not the power Congress, and is exercised by the President only by delegation of that
to negotiate treaties and international agreements, but the power to fix body, it has long been recognized that the power to enter into treaties is
tariff rates, import and export quotas, and other taxes. Thus it provides: vested directly and exclusively in the President, subject only to the
concurrence of at least two-thirds of all the Members of the Senate for
(2) The Congress may, by law, authorize the President to fix within the validity of the treaty. In this light, the authority of the President to
specified limits, and subject to such limitations and restrictions as it may enter into trade agreements with foreign nations provided under P.D.
impose, tariff rates, import and export quotas, tonnage and wharfage 1464[58] may be interpreted as an acknowledgment of a power already
dues, and other duties or imposts within the framework of the national inherent in its office. It may not be used as basis to hold the President or
development program of the Government. its representatives accountable to Congress for the conduct of treaty
negotiations.
This is not to say, of course, that the Presidents power to enter into
treaties is unlimited but for the requirement of Senate concurrence, since
As to the power to negotiate treaties, the constitutional basis thereof is the President must still ensure that all treaties will substantively conform
Section 21 of Article VII the article on the Executive Department which to all the relevant provisions of the Constitution.
states:
It follows from the above discussion that Congress, while possessing vast
No treaty or international agreement shall be valid and effective unless legislative powers, may not interfere in the field of treaty negotiations.
concurred in by at least two-thirds of all the Members of the Senate. While Article VII, Section 21 provides for Senate concurrence, such
pertains only to the validity of the treaty under consideration, not to the
conduct of negotiations attendant to its conclusion. Moreover, it is not
even Congress as a whole that has been given the authority to concur as
The doctrine in PMPF v. Manglapus that the treaty-making power is a means of checking the treaty-making power of the President, but only
exclusive to the President, being the sole organ of the nation in its the Senate.
external relations, was echoed in BAYAN v. Executive Secretary[56] where
the Court held: Thus, as in the case of petitioners suing in their capacity as private
citizens, petitioners-members of the House of Representatives fail to
By constitutional fiat and by the intrinsic nature of his office, the present a sufficient showing of need that the information sought is
President, as head of State, is the sole organ and authority in the external critical to the performance of the functions of Congress, functions that do
affairs of the country. In many ways, the President is the chief architect of not include treaty-negotiation.
We are aware that behind the dissent of the Chief Justice lies a genuine
Respondents alleged failure to timely claim executive privilege zeal to protect our peoples right to information against any abuse of
executive privilege. It is a zeal that We fully share.
On respondents invocation of executive privilege, petitioners find the
same defective, not having been done seasonably as it was raised only in The Court, however, in its endeavor to guard against the abuse of
their Comment to the present petition and not during the House executive privilege, should be careful not to veer towards the opposite
Committee hearings. extreme, to the point that it would strike down as invalid even a
That respondents invoked the privilege for the first time only in their legitimate exercise thereof.
Comment to the present petition does not mean that the claim of
privilege should not be credited. Petitioners position presupposes that an We respond only to the salient arguments of the Dissenting Opinion
assertion of the privilege should have been made during the House which have not yet been sufficiently addressed above.
Committee investigations, failing which respondents are deemed to have
waived it. 1. After its historical discussion on the allocation of power over
international trade agreements in the United States, the dissent
When the House Committee and petitioner-Congressman Aguja concludes that it will be turning somersaults with history to contend that
requested respondents for copies of the documents subject of this case, the President is the sole organ for external relations in that jurisdiction.
respondents replied that the negotiations were still on-going and that the With regard to this opinion, We make only the following observations:
draft of the JPEPA would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are There is, at least, a core meaning of the phrase sole organ of the nation in
confidential in nature by reason of public policy. The response may not its external relations which is not being disputed, namely, that the power
thus be deemed a claim of privilege by the standards of Senate v. Ermita, to directly negotiate treaties and international agreements is vested by
which recognizes as claims of privilege only those which are accompanied our Constitution only in the Executive. Thus, the dissent states that
by precise and certain reasons for preserving the confidentiality of the Congress has the power to regulate commerce with foreign nations but
information being sought. does not have the power to negotiate international agreements
directly.[62]
Respondents failure to claim the privilege during the House Committee
hearings may not, however, be construed as a waiver thereof by the What is disputed is how this principle applies to the case at bar.
Executive branch. As the immediately preceding paragraph indicates,
what respondents received from the House Committee and petitioner- The dissent opines that petitioner-members of the House of
Congressman Aguja were mere requests for information. And as priorly Representatives, by asking for the subject JPEPA documents, are not
stated, the House Committee itself refrained from pursuing its earlier seeking to directly participate in the negotiations of the JPEPA, hence,
resolution to issue a subpoena duces tecum on account of then Speaker they cannot be prevented from gaining access to these documents.
Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance. On the other hand, We hold that this is one occasion where the following
ruling in Agan v. PIATCO[63] and in other cases both before and since
While it is a salutary and noble practice for Congress to refrain from should be applied:
issuing subpoenas to executive officials out of respect for their office until
resort to it becomes necessary, the fact remains that such requests are This Court has long and consistently adhered to the legal maxim that
not a compulsory process. Being mere requests, they do not strictly call those that cannot be done directly cannot be done indirectly. To declare
for an assertion of executive privilege. the PIATCO contracts valid despite the clear statutory prohibition against
The privilege is an exemption to Congress power of inquiry.[59] So long a direct government guarantee would not only make a mockery of what
as Congress itself finds no cause to enforce such power, there is no strict the BOT Law seeks to prevent -- which is to expose the government to
necessity to assert the privilege. In this light, respondents failure to the risk of incurring a monetary obligation resulting from a contract of
invoke the privilege during the House Committee investigations did not loan between the project proponent and its lenders and to which the
amount to a waiver thereof. Government is not a party to -- but would also render the BOT Law
useless for what it seeks to achieve - to make use of the resources of the
The Court observes, however, that the claim of privilege appearing in private sector in the financing, operation and maintenance of
respondents Comment to this petition fails to satisfy in full the infrastructure and development projects which are necessary for national
requirement laid down in Senate v. Ermita that the claim should be growth and development but which the government, unfortunately,
invoked by the President or through the Executive Secretary by order of could ill-afford to finance at this point in time.[64]
the President.[60] Respondents claim of privilege is being sustained,
however, its flaw notwithstanding, because of circumstances peculiar to Similarly, while herein petitioners-members of the House of
the case. Representatives may not have been aiming to participate in the
negotiations directly, opening the JPEPA negotiations to their scrutiny
The assertion of executive privilege by the Executive Secretary, who is even to the point of giving them access to the offers exchanged between
one of the respondents herein, without him adding the phrase by order the Japanese and Philippine delegations would have made a mockery of
of the President, shall be considered as partially complying with the what the Constitution sought to prevent and rendered it useless for what
requirement laid down in Senate v. Ermita. The requirement that the it sought to achieve when it vested the power of direct negotiation solely
phrase by order of the President should accompany the Executive with the President.
Secretarys claim of privilege is a new rule laid down for the first time in
Senate v. Ermita, which was not yet final and executory at the time What the U.S. Constitution sought to prevent and aimed to achieve in
respondents filed their Comment to the petition.[61] A strict application defining the treaty-making power of the President, which our
of this requirement would thus be unwarranted in this case. Constitution similarly defines, may be gathered from Hamiltons
explanation of why the U.S. Constitution excludes the House of
Representatives from the treaty-making process:
Response to the Dissenting Opinion of the Chief Justice
x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a trust. Further, given that respondents have claimed executive privilege,
Accurate and comprehensive knowledge of foreign politics; a steady and petitioner-members of the House of Representatives should have, at
systematic adherence to the same views; a nice and uniform sensibility to least, shown how its lack of access to the Philippine and Japanese offers
national character, decision, secrecy and dispatch; are incompatible with would hinder the intelligent crafting of legislation. Mere assertion that
a body so variable and so numerous. The very complication of the the JPEPA covers a subject matter over which Congress has the power to
business by introducing a necessity of the concurrence of so many legislate would not suffice. As Senate Select Committee v. Nixon[68] held,
different bodies, would of itself afford a solid objection. The greater the showing required to overcome the presumption favoring
frequency of the calls upon the house of representatives, and the greater confidentiality turns, not only on the nature and appropriateness of the
length of time which it would often be necessary to keep them together function in the performance of which the material was sought, but also
when convened, to obtain their sanction in the progressive stages of a the degree to which the material was necessary to its fulfillment. This
treaty, would be source of so great inconvenience and expense, as alone petitioners failed to do.
ought to condemn the project.[65]
Furthermore, from the time the final text of the JPEPA including its
These considerations a fortiori apply in this jurisdiction, since the annexes and attachments was published, petitioner-members of the
Philippine Constitution, unlike that of the U.S., does not even grant the House of Representatives have been free to use it for any legislative
Senate the power to advise the Executive in the making of treaties, but purpose they may see fit. Since such publication, petitioners need, if any,
only vests in that body the power to concur in the validity of the treaty specifically for the Philippine and Japanese offers leading to the final
after negotiations have been concluded.[66] Much less, therefore, should version of the JPEPA, has become even less apparent.
it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives In asserting that the balance in this instance tilts in favor of disclosing the
access to the subject JPEPA documents would set a precedent for future JPEPA documents, the dissent contends that the Executive has failed to
negotiations, leading to the contravention of the public interests show how disclosing them after the conclusion of negotiations would
articulated above which the Constitution sought to protect, the subject impair the performance of its functions. The contention, with due
documents should not be disclosed. respect, misplaces the onus probandi. While, in keeping with the general
presumption of transparency, the burden is initially on the Executive to
2. The dissent also asserts that respondents can no longer claim the provide precise and certain reasons for upholding its claim of privilege,
diplomatic secrets privilege over the subject JPEPA documents now that once the Executive is able to show that the documents being sought are
negotiations have been concluded, since their reasons for nondisclosure covered by a recognized privilege, the burden shifts to the party seeking
cited in the June 23, 2005 letter of Sec. Ermita, and later in their information to overcome the privilege by a strong showing of need.
Comment, necessarily apply only for as long as the negotiations were still
pending; When it was thus established that the JPEPA documents are covered by
the privilege for diplomatic negotiations pursuant to PMPF v. Manglapus,
In their Comment, respondents contend that the negotiations of the the presumption arose that their disclosure would impair the
representatives of the Philippines as well as of Japan must be allowed to performance of executive functions. It was then incumbent on petitioner-
explore alternatives in the course of the negotiations in the same manner requesting parties to show that they have a strong need for the
as judicial deliberations and working drafts of opinions are accorded strict information sufficient to overcome the privilege. They have not,
confidentiality. That respondents liken the documents involved in the however.
JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not 4. Respecting the failure of the Executive Secretary to explicitly state that
only until, but even after, the conclusion of the negotiations. he is claiming the privilege by order of the President, the same may not
be strictly applied to the privilege claim subject of this case.
Judicial deliberations do not lose their confidential character once a
decision has been promulgated by the courts. The same holds true with When the Court in Senate v. Ermita limited the power of invoking the
respect to working drafts of opinions, which are comparable to intra- privilege to the President alone, it was laying down a new rule for which
agency recommendations. Such intra-agency recommendations are there is no counterpart even in the United States from which the concept
privileged even after the position under consideration by the agency has of executive privilege was adopted. As held in the 2004 case of Judicial
developed into a definite proposition, hence, the rule in this jurisdiction Watch, Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the
that agencies have the duty to disclose only definite propositions, and issue of whether a President must personally invoke the [presidential
not the inter-agency and intra-agency communications during the stage communications] privilege remains an open question. U.S. v.
when common assertions are still being formulated.[67] Reynolds,[71] on the other hand, held that [t]here must be a formal claim
of privilege, lodged by the head of the department which has control
3. The dissent claims that petitioner-members of the House of over the matter, after actual personal consideration by that officer.
Representatives have sufficiently shown their need for the same
documents to overcome the privilege. Again, We disagree. The rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of the
The House Committee that initiated the investigations on the JPEPA did privilege in light of its highly exceptional nature. The Courts recognition
not pursue its earlier intention to subpoena the documents. This strongly that the Executive Secretary also bears the power to invoke the privilege,
undermines the assertion that access to the same documents by the provided he does so by order of the President, is meant to avoid laying
House Committee is critical to the performance of its legislative down too rigid a rule, the Court being aware that it was laying down a
functions. If the documents were indeed critical, the House Committee new restriction on executive privilege. It is with the same spirit that the
should have, at the very least, issued a subpoena duces tecum or, like Court should not be overly strict with applying the same rule in this
what the Senate did in Senate v. Ermita, filed the present petition as a peculiar instance, where the claim of executive privilege occurred before
legislative body, rather than leaving it to the discretion of individual the judgment in Senate v. Ermita became final.
Congressmen whether to pursue an action or not. Such acts would have
served as strong indicia that Congress itself finds the subject information 5. To show that PMPF v. Manglapus may not be applied in the present
to be critical to its legislative functions. case, the dissent implies that the Court therein erred in citing US v.
Curtiss Wright[72] and the book entitled The New American Government
and Its Work[73] since these authorities, so the dissent claims, may not
be used to calibrate the importance of the right to information in the privilege. This need is, precisely, part of the context in light of which
Philippine setting. every claim of privilege should be assessed.

The dissent argues that since Curtiss-Wright referred to a conflict Since, as demonstrated above, there are common principles that should
between the executive and legislative branches of government, the be applied to executive privilege controversies across different contexts,
factual setting thereof was different from that of PMPF v. Manglapus the Court in PMPF v. Manglapus did not err when it cited the Curtiss-
which involved a collision between governmental power over the Wright case.
conduct of foreign affairs and the citizens right to information.
The claim that the book cited in PMPF v. Manglapus entitled The New
That the Court could freely cite Curtiss-Wright a case that upholds the American Government and Its Work could not have taken into account
secrecy of diplomatic negotiations against congressional demands for the expanded statutory right to information in the FOIA assumes that the
information in the course of laying down a ruling on the public right to observations in that book in support of the confidentiality of treaty
information only serves to underscore the principle mentioned earlier negotiations would be different had it been written after the FOIA. Such
that the privileged character accorded to diplomatic negotiations does assumption is, with due respect, at best, speculative.
not ipso facto lose all force and effect simply because the same privilege
is now being claimed under different circumstances. As to the claim in the dissent that [i]t is more doubtful if the same book
be used to calibrate the importance of the right of access to information
PMPF v. Manglapus indeed involved a demand for information from in the Philippine setting considering its elevation as a constitutional right,
private citizens and not an executive-legislative conflict, but so did we submit that the elevation of such right as a constitutional right did not
Chavez v. PEA[74] which held that the [publics] right to information . . . set it free from the legitimate restrictions of executive privilege which is
does not extend to matters recognized as privileged information under itself constitutionally-based.[76] Hence, the comments in that book
the separation of powers. What counts as privileged information in an which were cited in PMPF v. Manglapus remain valid doctrine.
executive-legislative conflict is thus also recognized as such in cases
involving the publics right to information. 6. The dissent further asserts that the Court has never used need as a test
to uphold or allow inroads into rights guaranteed under the Constitution.
Chavez v. PCGG[75] also involved the publics right to information, yet the With due respect, we assert otherwise. The Court has done so before,
Court recognized as a valid limitation to that right the same privileged albeit without using the term need.
information based on separation of powers closed-door Cabinet
meetings, executive sessions of either house of Congress, and the In executive privilege controversies, the requirement that parties present
internal deliberations of the Supreme Court. a sufficient showing of need only means, in substance, that they should
show a public interest in favor of disclosure sufficient in degree to
These cases show that the Court has always regarded claims of privilege, overcome the claim of privilege.[77] Verily, the Court in such cases
whether in the context of an executive-legislative conflict or a citizens engages in a balancing of interests. Such a balancing of interests is
demand for information, as closely intertwined, such that the principles certainly not new in constitutional adjudication involving fundamental
applicable to one are also applicable to the other. rights. Secretary of Justice v. Lantion,[78] which was cited in the dissent,
applied just such a test.
The reason is obvious. If the validity of claims of privilege were to be
assessed by entirely different criteria in each context, this may give rise Given that the dissent has clarified that it does not seek to apply the clear
to the absurd result where Congress would be denied access to a and present danger test to the present controversy, but the balancing
particular information because of a claim of executive privilege, but the test, there seems to be no substantial dispute between the position laid
general public would have access to the same information, the claim of down in this ponencia and that reflected in the dissent as to what test to
privilege notwithstanding. apply. It would appear that the only disagreement is on the results of
applying that test in this instance.
Absurdity would be the ultimate result if, for instance, the Court adopts
the clear and present danger test for the assessment of claims of The dissent, nonetheless, maintains that it suffices that information is of
privilege against citizens demands for information. If executive public concern for it to be covered by the right, regardless of the publics
information, when demanded by a citizen, is privileged only when there is need for the information, and that the same would hold true even if they
a clear and present danger of a substantive evil that the State has a right simply want to know it because it interests them. As has been stated
to prevent, it would be very difficult for the Executive to establish the earlier, however, there is no dispute that the information subject of this
validity of its claim in each instance. In contrast, if the demand comes case is a matter of public concern. The Court has earlier concluded that it
from Congress, the Executive merely has to show that the information is is a matter of public concern, not on the basis of any specific need shown
covered by a recognized privilege in order to shift the burden on by petitioners, but from the very nature of the JPEPA as an international
Congress to present a strong showing of need. This would lead to a trade agreement.
situation where it would be more difficult for Congress to access
executive information than it would be for private citizens. However, when the Executive has as in this case invoked the privilege,
and it has been established that the subject information is indeed
We maintain then that when the Executive has already shown that an covered by the privilege being claimed, can a party overcome the same
information is covered by executive privilege, the party demanding the by merely asserting that the information being demanded is a matter of
information must present a strong showing of need, whether that party is public concern, without any further showing required? Certainly not, for
Congress or a private citizen. that would render the doctrine of executive privilege of no force and
effect whatsoever as a limitation on the right to information, because
The rule that the same showing of need test applies in both these then the sole test in such controversies would be whether an information
contexts, however, should not be construed as a denial of the importance is a matter of public concern.
of analyzing the context in which an executive privilege controversy may
happen to be placed. Rather, it affirms it, for it means that the specific Moreover, in view of the earlier discussions, we must bear in mind that,
need being shown by the party seeking information in every particular by disclosing the documents of the JPEPA negotiations, the Philippine
instance is highly significant in determining whether to uphold a claim of government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself.
How would the Philippine government then explain itself when that
happens? Surely, it cannot bear to say that it just had to release the Verily, while the Court should guard against the abuse of executive
information because certain persons simply wanted to know it because it privilege, it should also give full recognition to the validity of the privilege
interests them. whenever it is claimed within the proper bounds of executive power, as
in this case. Otherwise, the Court would undermine its own credibility,
Thus, the Court holds that, in determining whether an information is for it would be perceived as no longer aiming to strike a balance, but
covered by the right to information, a specific showing of need for such seeking merely to water down executive privilege to the point of
information is not a relevant consideration, but only whether the same is irrelevance.
a matter of public concern. When, however, the government has claimed
executive privilege, and it has established that the information is indeed Conclusion
covered by the same, then the party demanding it, if it is to overcome the
privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably To recapitulate, petitioners demand to be furnished with a copy of the
participate in social, political, and economic decision-making.[79] full text of the JPEPA has become moot and academic, it having been
7. The dissent maintains that [t]he treaty has thus entered the ultimate made accessible to the public since September 11, 2006. As for their
stage where the people can exercise their right to participate in the demand for copies of the Philippine and Japanese offers submitted
discussion whether the Senate should concur in its ratification or not. during the JPEPA negotiations, the same must be denied, respondents
(Emphasis supplied) It adds that this right will be diluted unless the claim of executive privilege being valid.
people can have access to the subject JPEPA documents. What, to the
dissent, is a dilution of the right to participate in decision-making is, to Diplomatic negotiations have, since the Court promulgated its Resolution
Us, simply a recognition of the qualified nature of the publics right to in PMPF v. Manglapus on September 13, 1988, been recognized as
information. It is beyond dispute that the right to information is not privileged in this jurisdiction and the reasons proffered by petitioners
absolute and that the doctrine of executive privilege is a recognized against the application of the ruling therein to the present case have not
limitation on that right. persuaded the Court. Moreover, petitioners both private citizens and
members of the House of Representatives have failed to present a
Moreover, contrary to the submission that the right to participate in sufficient showing of need to overcome the claim of privilege in this case.
decision-making would be diluted, We reiterate that our people have
been exercising their right to participate in the discussion on the issue of That the privilege was asserted for the first time in respondents
the JPEPA, and they have been able to articulate their different opinions Comment to the present petition, and not during the hearings of the
without need of access to the JPEPA negotiation documents. House Special Committee on Globalization, is of no moment, since it
cannot be interpreted as a waiver of the privilege on the part of the
Thus, we hold that the balance in this case tilts in favor of executive Executive branch.
privilege.
For reasons already explained, this Decision shall not be interpreted as
8. Against our ruling that the principles applied in U.S. v. Nixon, the departing from the ruling in Senate v. Ermita that executive privilege
Senate Select Committee case, and In re Sealed Case, are similarly should be invoked by the President or through the Executive Secretary by
applicable to the present controversy, the dissent cites the caveat in the order of the President.
Nixon case that the U.S. Court was there addressing only the Presidents
assertion of privilege in the context of a criminal trial, not a civil litigation
nor a congressional demand for information. What this caveat means, WHEREFORE, the petition is DISMISSED.
however, is only that courts must be careful not to hastily apply the
ruling therein to other contexts. It does not, however, absolutely mean
that the principles applied in that case may never be applied in such
contexts.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on
claims of executive privilege in contexts other than a criminal trial, as in
the case of Nixon v. Administrator of General Services[80] which involved
former President Nixons invocation of executive privilege to challenge
the constitutionality of the Presidential Recordings and Materials
Preservation Act[81] and the above-mentioned In re Sealed Case which
involved a claim of privilege against a subpoena duces tecum issued in a
grand jury investigation.

Indeed, in applying to the present case the principles found in U.S. v.


Nixon and in the other cases already mentioned, We are merely affirming
what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability[82] a case involving an executive-legislative
conflict over executive privilege. That dissenting opinion stated that,
while Nixon was not concerned with the balance between the Presidents
generalized interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down principles and
procedures that can serve as torch lights to illumine us on the scope and
use of Presidential communication privilege in the case at bar.[83] While
the Court was divided in Neri, this opinion of the Chief Justice was not
among the points of disagreement, and We similarly hold now that the
Nixon case is a useful guide in the proper resolution of the present
controversy, notwithstanding the difference in context.