SC ruling on JPEPA: Shackled by ‘entropy of the old tradition of secrecy’
Philippine Center for Investigative Journalism | 21 July 2008
SC ruling on JPEPA: Shackled by ‘entropy of the old tradition of secrecy’
Posted by: Alecks P. Pabico
“WE must overcome the entropy of the old tradition of secrecy,” counseled Supreme Court Chief Justice Reynato Puno in his lengthy argument on the petition to have the government disclose details of the negotiations between the Philippines and Japan in relation to the Japan-Philippine Economic Partnership Agreement (JPEPA). Obviously, it was an advice that went largely unheeded as majority of his colleagues upheld for a second time the Arroyo government’s invocation of executive privilege.
Chief Justice Reynato S. Puno This time, 10 justices voted to declare the government’s claim of secrecy of the JPEPA negotiations as valid, saying 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.
In March, nine justices also overruled the Chief Justice by upholding the executive privilege invoked by former socioeconomic planning secretary Romulo Neri over three questions asked by senators investigating the scandal-tainted $329-million NBN deal. The justices, mostly appointees of Gloria Macapagal-Arroyo, argued that the said questions were covered by the presidential communications privilege.
Puno’s well-argued dissent on the JPEPA ruling however illustrates, rather regrettably, how most of our magistrates are seemingly shackled by archaic mindsets in this day and age. First, they appear to be out of touch with contemporary developments in international trade negotiations. Second, they also have an apparent low regard for the people’s right to information despite its elevated status as a constitutional right under the 1987 Constitution.
Read Chief Justice Puno’s dissenting opinion.
Penned by Justice Conchita Carpio Morales, the majority’s decision that diplomatic negotiations are covered by the doctrine of executive privilege is based on the traditionally held privilege of the President as the “sole organ of the nation in its external relations, and its sole representative with foreign nations.”
“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,” the majority said. Thus, the privilege for diplomatic negotiations, they also argued, may be invoked not only against citizens’ demands for information, but also in the context of legislative investigations.
Puno, however, pointed out that the statutory basis (United States v. Curtiss-Wright Export Corporation) for presidential primacy in foreign affairs in U.S. jurisdiction, as cited by the majority decision, did not even involve treaty negotiations, much less trade agreement negotiations. Moreover, the case was decided more than 70 years ago.
“Since then, the dynamics of the allocation of power over international trade agreements between the executive and the legislature has dramatically changed,” said Puno, citing the waning of the executive’s exclusive power over negotiations of international trade agreements vis-à-vis Congressional power over foreign trade that began as early as the 1920s.
This allocation of power over international trade agreements between the executive and Congress, Puno said, also finds expression in Philippine jurisdiction. Similar to the power of Congress under the U.S. Constitution, the Philippine Congress is vested by the 1987 Constitution with power over foreign trade, “at least with respect to the fixing of tariff rates, import and export quotas, tonnage and wharfage dues and other duties and imposts.” The 1987 Constitution, in fact, only reiterates what the 1935 and 1973 Constitutions already provided.
“One cannot simply turn a blind eye on Congress’s foreign trade power granted by the Constitution in interpreting the power of the Executive to negotiate international trade agreements,” said Puno.
Alongside the waning of executive power, particularly in U.S. jurisdiction, the Chief Justice pointed to a parallel and important development - a developing openness to the public of international trade agreement negotiations.
That is why, he maintained, in today’s era of the NAFTA (North Atlantic Free Trade Agreement), CAFTA (Central American Free Trade Agreement), and a prospective FTAA (Free Trade Area of the Americas), “secrecy-shrouded negotiations of international agreements 300 or even 25 years ago can no longer justify the continuation of that approach.”
Though secrecy has long played an integral role in the negotiation of international agreements, Puno said it has not been without controversy. “It facilitates frank discussion, minimizes posturing and allows flexibility in negotiating positions. But it is also prone to abuse and is often assailed as undemocratic and facilitating abuse of power.”
“In the public eye,” Puno said, “excessive secrecy can weaken accountability and undermine the legitimacy of government action. “Generally, it can also undermine the faith of the public in the need for secrecy for ’secrecy can best be preserved only when credibility is truly maintained.’”
Unfortunately for the rest of us, the Supreme Court justices gave more weight to the claim of executive privilege by a government that is not even known for having a decent track record in transparency and accountability. (Remember Executive Order Nos. 464, 608, the fate of the Mayuga and Melo reports, the gag order on NEDA documents, and how Arroyo has curbed access to information amid Senate scrutiny of ODA-funded projects?)
Majority of the justices also chose to ignore how the secrecy of the JPEPA negotiations had lent itself to lopsided compromises and unconstitutional provisions - on 15 counts as acknowledged even by Senator Miriam Defensor-Santiago, hence her suggestion for the agreement’s “conditional concurrence.”
Though Senator Mar Roxas said he respects the Court’s ruling, he likewise remarked how the negotiations had largely been to the country’s disadvantage. “I believe that in negotiating the JPEPA, our government should and could have done better: first, in consulting all stakeholders concerned and the general public even prior to the start of formal bilateral talks; second, in consolidating all of these positions into a comprehensive national negotiating stance; and lastly, in ensuring that the national interest is protected at all times in engaging trade negotiations.”
Groups opposed to the JPEPA also note with danger how the SC decision has undermined the “fundamental right of the people to know the ‘compromises’ that the executive department is making on their behalf.” This, they claimed, could serve to embolden the executive branch to enter into more trade and investment agreements and make commitments without due regard to their harsh effects on various sectors, especially the poor and marginalized. The country currently has pending negotiations with the European Union (UN), the U.S., China, among others.
In his dissenting opinion, Puno showed how his colleagues have yet to come to terms with the changing landscape that has allowed for greater public participation in international trade negotiations. Describing this trend, he wrote:
“In the 1990s, the changing nature of world politics and economics focused international issues on economic well-being rather than on political and military dominance. Fearing environmental destruction and increased unemployment, members of Congress, commentators, and special interest groups have used trade agreements such as NAFTA and the mass media to heighten public awareness and participation in international trade relationships. The 1990s led the American public to realize that international trade issues had a direct impact on their standard of living and way of life, thus fomenting public participation in international trade negotiations. With the growing concern over the far-reaching implications of bilateral and multilateral international trade agreements and the increased focus upon the processes by which they are negotiated, calls for greater openness and public participation in their negotiation have come in many forms and from many corners, particularly in the U.S. A central component of the demand for participation has been to gain access to negotiating documents shared by the U.S. with other governments prior to the conclusion of a free trade agreement.The 1990s saw a continuous expansion of public access to the international trade agreement process. Rather than simply being left to point out failures in already existing agreements, individuals were now allowed to help shape future agreements. In reemphasizing the open government mentality of the 1970s, the 1990s marked the beginning of a new era in trade negotiations. Private individuals now played an important role in many areas throughout the international trade agreement process. The Trade Act of 2002 was then passed, enhancing transparency through increased and more timely access to information regarding trade issues and activities of international trade institutions; increased public access to meetings, proceedings, and submissions at the World Trade Organization (WTO); and increased and more timely public access to all notifications and supporting documentation by parties to the WTO.”
Given these developments, Puno claimed that secrecy in the negotiation of treaties is “not a rule written in stone.” He thus considered it imperative to revisit the balance between secrecy and openness, especially in the Philippines.
“We elevated the right to information to constitutional stature not without reason,” reminded Puno. “In a democracy, debate - by the people directly or through their representatives in Congress - is a discussion of and by the informed and not an exchange of surpluses of ignorance. In the arena of economic governance, the right to debate and participate is exercised not as an end in itself. Especially for the powerless whose sword and shield against abuse is their voice, the exercise of the right is not merely rhetoric. It is a fight from the gut to satisfy basic human needs and lead a humane life.”
