SC not likely to reconsider ruling on secrecy of JPEPA negotiations

THE Supreme Court ruled last September 4 to reaffirm its March 25 decision upholding the claim of executive privilege by former socioeconomic planning secretary Romulo Neri over the three questions asked of him by senators investigating the national broadband network (NBN) fiasco.

The Senate’s 104-page motion for reconsideration failed to convince nine of the justices, who stuck to their original positions that Neri validly invoked executive privilege accorded to “presumptive presidential communications.” The Senate, the justices said, failed to overcome the privilege as it was unable to show a “compelling or critical need for the answers to the three questions in the enactment of a law.”

A similar fate, though, is likely to befall the motion for reconsideration filed by petitioners led by the party-list group Akbayan seeking full disclosure of the offers made in the Japan-Philippines Economic Partnership Agreement (JPEPA) negotiations.

Read Akbayan’s motion for reconsideration of SC decision in JPEPA case.

Last July 21, 10 justices voted to declare the government’s claim of secrecy of the JPEPA negotiations as valid, arguing that diplomatic negotiations in this particular case constitute privileged information, thus making it an exception to the right to information and the policy of full public disclosure.

Lawyer Ibarra Gutierrez III, counsel for the petitioners, anticipates the possibility of a denial of their appeal. “Although (the Supreme Court decision in Neri’s case) is not on all fours with our case, it underscores the low likelihood that (the justices) will uphold our motion.”

“But then we already expect that,” he adds.

Gutierrez’s pessimism is understandable as their motion is up against a Court that has already upheld the Arroyo government’s invocation of executive privilege twice.

And if it is any indication, the SC majority decision on the Senate motion, again penned by Associate Justice Teresita Leonardo-de Castro, referred no less to the case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al. Though founded on presidential communications privilege, the executive privilege invoked in Neri’s case also used diplomatic and economic relations with another sovereign nation as grounds for the claim.

In the Akbayan decision penned by Associate Justice Conchita Carpio Morales, the SC thus affirmed:

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.” Even earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the then on-going negotiations of the RP-U.S. Military Bases Agreement. The Court denied the petition, stressing that “secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.”

The SC decision effectively rendered diplomatic negotiations as an exception to the right to information and the policy of full public disclosure.

“It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature,” the Court further argued.

Against this position of majority of the SC justices, can the Akbayan appeal, premised on arguments regarding the status of the right of access to information as a fundamental Constitutional right, and one that is recognized by international human rights law and jurisprudence, stand a chance?

In the Neri case, the Senate tried to argue that the constitutional right of the people to information, along with the constitutional policies on public accountability and transparency, outweighs the claim of executive privilege. But the Court only dismissed such arguments on the basis of a lack ofconstitutional provision that espouses an “absolute” right to information. The majority decision even distinguished between the “right of respondent Committees to obtain information allegedly in aid of legislation” and the people’s right to public information.

Given what they claim to be the majority’s view based on an “overly narrow reading of the right to information,” other pubic-interest lawyers are also not as hopeful that the SC will reconsider its decision in the JPEPA case.

“Most probably, wala nang mangyayari sa (nothing will come out of the) MR,” says Marlon Manuel, spokesperson of the Alternative Lawyers Group (ALG), a coalition of 18 legal resource organizations.

To which University of the Philippines law professor Harry Roque agrees. “It’s the same privilege upheld by the Court in both cases. It’s the same thing. They will dismiss the motion for reconsideration.”

While noting that the Akbayan petition is a different case altogether, Nepomuceno Malaluan, a trustee of the Action for Economic Reforms and co-convenor of the Access to Information Network (ATIN), however points to the fact that “generally, a motion for reconsideration is really hard to win.”