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GARCIA VS BOARD OF INVESTMENTS FACTS: The Bataan Petrochemical Corporation (BPC), a Taiwanese private corporation, applied for registration with the Board of Investments (BOI) in February 1988 as a new domestic producer of petrochemicals in the Philippines. It originally specified the province of Bataan as the site for the proposed investment but later submitted an amended application to change the site to Batangas. Unhappy with the change of the site, Congressman Enrique Garcia of the Second District of Bataan requested a copy of BPC’s original and amended application documents. The BoI denied the request on the basis that the investors in BPC had declined to give their consent to the release of the documents requested, and that Article 81 of the Omnibus Investments Code protects the confidentiality of these documents absent consent to disclose. The BoI subsequently approved the amended application without holding a second hearing or publishing notice of the amended application. Garcia filed a petition before the Supreme Court. ISSUE: Whether or not the BoI committed grave abuse of discretion in yielding to the wishes of the investor, national interest notwithstanding. RULING: The Court ruled that the BoI violated Garcia’s Constitutional right to have access to information on matters of public concern under Article III, Section 7 of the Constitution. The Court found that the inhabitants of Bataan had an “interest in the establishment of the petrochemical plant in their midst [that] is actual, real, and vital because it will affect not only their economic life, but even the air they breathe” The Court also ruled that BPC’s amended application was in fact a second application that required a new public notice to be filed and a new hearing to be held. Although Article 81 of the Omnibus Investments Code provides that “all applications and their supporting documents filed under this code shall be confidential and shall not be disclosed to any person, except with the consent of the applicant,” the Court emphasized that Article 81 provides for disclosure “on the orders of a court of competent jurisdiction”. The Court ruled that it had jurisdiction to order disclosure of the application, amended application, and supporting documents filed with the BOI under Article 81, with certain exceptions. The Court went on to note that despite the right to access information, “the Constitution does not open every door to any and all information” because “the law may exempt certain types of information from public

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Consti May 16

Transcript of Consti May 16

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GARCIA VS BOARD OF INVESTMENTS

FACTS:The Bataan Petrochemical Corporation (BPC), a Taiwanese private corporation, applied for registration with the Board of Investments (BOI) in February 1988 as a new domestic producer of petrochemicals in the Philippines. It originally specified the province of Bataan as the site for the proposed investment but later submitted an amended application to change the site to Batangas. Unhappy with the change of the site, Congressman Enrique Garcia of the Second District of Bataan requested a copy of BPC’s original and amended application documents. The BoI denied the request on the basis that the investors in BPC had declined to give their consent to the release of the documents requested, and that Article 81 of the Omnibus Investments Code protects the confidentiality of these documents absent consent to disclose. The BoI subsequently approved the amended application without holding a second hearing or publishing notice of the amended application. Garcia filed a petition before the Supreme Court.

ISSUE: Whether or not the BoI committed grave abuse of discretion in yielding to the wishes of the investor, national interest notwithstanding.

RULING:The Court ruled that the BoI violated Garcia’s Constitutional right to have access to information on matters of public concern under Article III, Section 7 of the Constitution. The Court found that the inhabitants of Bataan had an “interest in the establishment of the petrochemical plant in their midst [that] is actual, real, and vital because it will affect not only their economic life, but even the air they breathe”  The Court also ruled that BPC’s amended application was in fact a second application that required a new public notice to be filed and a new hearing to be held.

Although Article 81 of the Omnibus Investments Code provides that “all applications and their supporting documents filed under this code shall be confidential and shall not be disclosed to any person, except with the consent of the applicant,” the Court emphasized that Article 81 provides for disclosure “on the orders of a court of competent jurisdiction”. The Court ruled that it had jurisdiction to order disclosure of the application, amended application, and supporting documents filed with the BOI under Article 81, with certain exceptions.

The Court went on to note that despite the right to access information, “the Constitution does not open every door to any and all information” because “the law may exempt certain types of information from public scrutiny”. Thus it excluded “the trade secrets and confidential, commercial, and financial information of the applicant BPC, and matters affecting national security” from its order. The Court did not provide a test for what information is excluded from the Constitutional privilege to access public information, nor did it specify the kinds of information that BPC could withhold under its ruling.

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Chavez v. PCGG, 299 SCRA 744

FACTS: Petitioner asks this Court to define the nature and the extent of the people’s constitutional right to information on matters of public concern. Petitioner, invoking his constitutional right to information and the correlative duty of the state to disclose publicly all its transactions involving the national interest, demands that respondents make public any and all negotiations and agreements pertaining to PCGG’s task of recovering the Marcoses’ ill-gotten wealth. 

ISSUE: Are the negotiations leading to a settlement on ill-gotten wealth of the Marcoses within the scope of the constitutional guarantee of access to information?

HELD: Yes. Considering the intent of the framers of the Constitution, it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the “exploratory” stage. There is a need, of course, to observe the same restrictions on disclosure of information in general -- such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information.

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Neri v. Senate CommitteeAction:A motion for reconsideration of the Decision dated Mar. 25 2008, granting the petition for certiorari filed by petitioner Romulo Neri against the respondent Senate Committee on Accountability of Public Officers and Investigations, Trade and Commerce, and National Defense and Security (the “Committees”).Fact:Neri appeared before the Committees and testified for about 11 hours on matters concerning the NBN Project, a project awarded by the DOTC to ZTE.Neri disclosed that then Comelec Chairman Benjamin Abalos offered him P200M in exchange for his approval of the NBN Project. He informed PGMA of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on PGMA and his discussions relating to the NBN Project, Neri refused to answer, invoking “executive privilege.”Committees persisted in knowing Neri’s answers to (a) w/n PGMA followed up the NBN Project, (b) w/n she directed him to prioritize it, and (c) w/n she directed him to approve it, required him to appear and testify once more on Nov. 20 2007. On that day, Neri did not appear upon orders of the President invoking executive privilege.On Nov. 22, the Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On Nov. 29, Neri’s replied that he manifested that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege. He also manifested his willingness to appear and testify should there be new matters to be taken up. He requested that he be furbished “in advance as to what else” he “needs to clarify.”Issue:1. w/n there is a recognized presumptive presidential communications privilege in our legal system2. w/n there is factual or legal basis to hold that the communications elicited by the 3 questions are covered by executive privilege3. w/n Committees have shown that the communications elicited by the 3 questions are critical to the exercise of their functions4. w/n Committees committed grave abuse of discretion in issuing the contempt orderHeld:1. Yes. In Almonte v. Vasquez, the Court affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. The Court articulated that “there are certain types of information which the government may withhold from the public,” that there is “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters”; and that “the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.”2. Yes.

Committees contend that the power to secure a foreign loan does not relate to a “quintessential and non-delegable presidential power,” because the Constitution does not vest it in the President alone, but also in the Monetary Board. “Quintessential” is defined as the most perfect embodiment of something, the concentrated essence of substance. “Non-delegable” means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor. The power to enter into an executive agreement is in essence an executive power and the final decision in the exercise of the said executive power is still lodged in the Office of the President even when it has to secure the prior concurrence of the Monetary Board because it is only a form of check and balance.

Committees contend that the application of the “doctrine of operational proximity” for the reason that “it may be misconstrued to expand the scope of the presidential communications privilege to communications between those who are “operationally proximate” to the President by who may have “no direct communications with her.” In the case at bar, the danger is absent because the official involved here is a member of the Cabinet, thus, properly

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within the term “advisor” of the President; in fact, her alter ego and a member of her official family.

Committees contend that the Court erred in upholding the President’s invocation, through Exec. Sec., of executive privilege because

o Between Committee’s specific and demonstrated need and the President’s generalized interest in confidentiality, there is a need to strike the balance in favor of the former

It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized interest in confidentiality. The Letter dated Nov. 15 of Exec. Sec. Ermita specified presidential communications privilege in relation to diplomatic and economic relation with another sovereign nation as the bases for the claim.

The privileged character of diplomatic negotiations has been recognized in this jurisdiction 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.”

o In the balancing of interest, the Court disregarded the provisions of the 1987 Constitution on government transparency, accountability, and disclosure of information

o The constitutional provisions cited by Committees do not espouse an absolute right to information. It must be emphasized that the assailed Decision did not enjoin the Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege.

3. No. Committees contend the information elicited by the 3 questions are necessary in the discharge of their legislative function, among them,

To consider the 3 pending Senate Bills—There is simply a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific reference to pending Senate Bills. And it is further expressed by the counsel of Committees that even without Neri answering the 3 questions, the Senate can still come up with legislations.

To curb graft and corruption—The potential culpability of high government officials in a given government transaction is not a task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing.

4. Yes. Committees contended that the ruling in Senate v. Ermita, requiring invitations or subpoenas to contain the “possible needed statute which prompted the need for the inquiry” along with “the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof” is not provided for by the Constitution and is merely an obiter dictum

An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress’ power. Witnesses should be adequately informed what matters are to be covered by the inquiry. It will allow them to prepare the pertinent information and documents

The language of Sec. 21 Art. 6 of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Onyle those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expresses in Sec. 21 Art. 6 of the Constitution.

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SABIO v. GORDON

On February 20, 2006, Senator Miriam Defensor-Santiago introduced Senate Res. No. 455 “directing

an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas

Telecommunications Corporation (POTC),  Philippine Communications Satellite Corporation

(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in

their operations by their respective Board of Directors.” Pursuant to this, on May 8, 2006, Senator

Richard Gordon, wrote Chairman Camilo Sabio of the PCGG inviting him to be one of the resource

persons in the public meeting jointly conducted by the Committee on Government Corporations and

Public Enterprises and Committee on Public Services. Chairman Sabio declined the invitation because

of prior commitment. At the same time, he invoked Section 4(b) of  E.O. No. 1 “No member or staff of

the Commission shall be required to testify or produce evidence in any judicial, legislative or

administrative proceeding concerning matters within its official cognizance.” Apparently, the

purpose is to ensure PCGG’s unhampered performance of its task. Gordon’s Subpoenae Ad

Testificandum was repeatedly ignored by Sabio hence he threatened Sabio to be cited with contempt.

ISSUE: Whether or not Section 4 of EO No. 1 is constitutional.

HELD: No. It can be said that the Congress’ power of inquiry has gained more solid existence and

expansive construal.  The Court’s high regard to such power is rendered more evident in Senate v.

Ermita, where it categorically ruled that  “the power of inquiry is broad enough to cover officials of

the executive branch.”  Verily, the Court reinforced the doctrine in Arnault that “the operation of

government, being a legitimate subject for legislation,  is a proper subject for investigation” and  that

“the power of inquiry is co-extensive with the power to legislate”. Subject to reasonable conditions

prescribed by law, the State adopts and implements a policy of full public disclosure of all its

transactions involving public interest.

Article III, Section 7

The right of the people to information on matters of public concern shall be recognized.

Access to official records, and to documents, and papers pertaining to official acts,

transactions, or decisions, as well as to government research data used as basis for policy

development, shall be afforded the citizen, subject to such limitations as may be provided

by law.

These twin provisions of the Constitution seek to promote transparency in policy-making and in the

operations of the government, as well as provide the people sufficient information to enable them to

exercise effectively their constitutional rights. Armed with the right information, citizens can

participate in public discussions leading to the formulation of government policies and their effective

implementation.

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CASE Name: AKBAYAN vs AquinoPonente: Carpio-Morales, J.

FACTS The petitioners – NGOs, Congresspersons, citizens and taxpayers – filed a petition for

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

January 25, 2005 – Petitioners Congressmen Lorenzo R. Tañada III and Mario Joya Aguja filed House Resolution No. 551 calling for an inquiry regarding the bilateral trade being negotiated the Philippine government, particularly the JPEPA. This became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA. In the inquiry they requested respondent Undersecretary Tomas Aquino, Chairman of the Philippine Coordinating Committee to study and negotiate the JPEPA, and to furnish the House Committee with a copy thereof. Usec. Aquino did not heed their request.

November 2, 2005 – Usec. Aquino replied to Congressman Aguja’s request, through a letter, that they will be provided a copy of the document “once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted.”

Congressman Herminio G. Teves, in a separate move, requested Executive Secretary Eduardo Ermita to do the same. Executive Secretary replied through a letter that copy of the JPEPA would be forwarded to the Committee as soon as it is settled and complete.

Aguja also requested the same from NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon. Both of them responded that the person in best position to answer request would be Usec. Aquino.

August 31, 2005 – A third hearing was conducted by the House Committee resolving to issue a subpoena for the most recent draft of the JPEPA but it was not pursued because then House Speaker Jose de Venecia requested him to hold in abeyance the subpoena until the President gives her consent to the disclosure of the documents.

September 9, 2006 – PGMA signed JPEPA JPEPA – First bilateral free trade agreement to be entered by the Philippines in the event that

the Senate grants consent to it. It covers topics about:o trade in goods, rules of origin, customs procedures, paperless trading, trade in

services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.

September 11, 2006 – it was made accessible to the publicISSUES:

1. Whether or not the JPEPA is a matter of public concern. YES2. Whether or not executive privilege may be invoked. YES3. Whether or not the ruling in PMPF vs Manglapus in the case at bar. YES4. Whether of not there is sufficient public interest to overcome the claim of privilege.

NO5. Whether or not the respondents belatedly claim executive privilege. NO

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1. Yes The courts have the duty to determine on a case by case basis whether the matter at

issue is of interest or importance, as it relates to or affects the public. The Court held that, the JPEPA, being an international trade agreement is covered by the doctrine of executive privilege, therefore, exempted from the right to information and the policy full public disclosure.

2. Yes 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. Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made. It bears emphasis, however, that such privilege is only presumptive. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

The respondents claim privilege considering the status (negotiations ongoing and the text was still subject to change) and nature (diplomatic negotiations) of the JPEPA during the time that the Committee was requesting a copy the documents thereof, these are covered by executive privilege. JPEPA was a diplomatic negotiation in progress.

Privileged character of diplomatic negotiations has been recognized by the Court. 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.

In PMPF vs Manglapus, the Court held 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.

o The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.

o Mr. Stimson a Secretary of the State in the US said that: A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell 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 circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.).

o They adopted the doctrine laid down in US vs. Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries.

It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan, but also with other foreign governments in future negotiations.

3. YES(1) National security (PMPF vs Manglapus) vs. economic treaty (present case)

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Faulty assumption that information, to be considered privileged, must concern national security. The recognition in Senate v. Ermita that executive privilege has encompassed claims of varying kinds, such that it may even be more accurate to speak of executive privileges, cautions against such generalization.

Examples of privileged information are: informer’s privilege, presidential communications privilege, deliberative process privilege, and diplomatic negotiations privilege.

Privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the 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 diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential.

In Fulbright and Jaworski v. Department of Treasury, the US District court ined close relationship between deliberative process and diplomatic negotiation privileges, which are:o Negotiations between two countries to draft a treaty represent a true

example of a deliberative process. Much give-and-take must occur for the countries to reach an accord.

o The policies behind the deliberative process privilege support non-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 lead to less candor by the U. S. in recording the events of the negotiations process.

o Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, drafts of treaties should be accorded the same protection.

In Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative, the court refrained from applying the doctrine laid down in Fulbright and ordered the disclosure because the information being sought was not inter-agency and the court does not reach the question of deliberative process.o The US government stated a statutory basis for withholding information, or the

Exemption 5 from Freedom of Information Act, namely: (1) it must be 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 process.

Philippine courts, however, having no counterpart of the FOIA, when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy, without having to consider as the CIEL court did if these negotiations fulfill a formal requirement of being inter-agency.

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NOTES: o Fulbright -> 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 negotiations.

o CIEL -> plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement the same district court.

(2) Petitioners in Manglapus consisted entirely of members of mass media vs. in the case at bar petitioners include members of the House of Representatives Incorrect to claim that the doctrine laid down in Manglapus does not apply to the

present case, where the demand for information has come from members of 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 now being claimed under different circumstances.

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 generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations, implies that a privilege, once recognized, may be invoked under different procedural settings. In PMPF v. Manglapus, 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.

The recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding.

(3) The school of thought that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the incompatibility hypothesis, while valid when international relations were still governed by power, politics and wars, are no longer so in this age of international cooperation. 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 that the nature of treaty negotiations have so changed that [a]n ill-timed speech by one of the parties or a frank declaration of the concession 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 substantiate the same. This, petitioners failed to discharge.

4. NO There are at least two kinds of public interest that must be taken into account. One is

the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information.

Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and

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property rights without their knowledge and participation, in violation of the due process clause of the Constitution.

o 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, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, ample opportunity for discussion before [the treaty] is approved.

The Congress alleged that they could not meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464. And also Art. VII Sec 21 of the Consti.

o In PMPF vs Manglapus echoed by Bayan vs. Executive Secretary, the Court held that: By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether.

o As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. 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 a means of checking the treaty-making power of the President, but only the Senate.

5. NO That respondents invoked the privilege for the first time only in their Comment to the

present petition does not mean that the claim of privilege should not be credited. Petitioners position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it.

What respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. Request = NOT compulsory process, they do not strictly call for an assertion of executive privilege.

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 IDEALS vs PSALMSGR 192088, 9 Oct 2012Petitioners: IDEALS et al Respondents: PSALM et alFACTS:PSALM is a GOCC created by virtue of the EPIRA law. Said law mandated PSALM to manage privatization of NPC. When PSALM commenced the privatization an invitation to bid was published and the highest bidder K-Water was identified. The sale to K-Water was sought to be enjoined by petitioners who contend that PSALM gravely abused its discretion when, in the conduct of the bidding it violated thepeople’s right to information without having previously released to the public critical information about the sale.

ISSUES:1.Can the bid documents, etc. used in the on-going negotiation for the privatization and sale of Angat hydro plant be accessed via the right to information?

2.Is the duty to disclose information the same with the duty to permit access to information on matters of public concern?HELD:1.Yes. The court reiterated that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order.

2.No. Unlike the disclosure of information which is mandatory under the Constitution, the otheraspect of the people’s right to know requires a demand or request for one to gain access to documents and paper of the particular agency. Moreover, the duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency

Bantay vs. COMELECG.R. No. 177271May 4, 2007

FACTS: Before the Court are two consolidated petitions for certiorari and mandamus to nullify and

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set aside certain issuances of the Commission on Elections (Comelec) respecting party-list groups which have manifested their intention to participate in the party-list elections on May 14, 2007. 

A number of organized groups filed the necessary manifestations and subsequently were accredited by the Comelec to participate in the 2007 elections. Bantay Republic Act (BA-RA 7941) and the Urban Poor for Legal Reforms (UP-LR) filed with the Comelec an Urgent Petition to Disqualify, seeking to disqualify the nominees of certain party-list organizations. Docketed in the Comelec as SPA Case No 07-026, this urgent petition has yet to be resolved.Meanwhile petitioner Rosales, in G.R. No. 177314, addressed 2 letters to the Director of the Comelec’s Law Department requesting a list of that groups’ nominees. Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en banc Resolution 07-0724 under date April 3, 2007 virtually declaring the nominees’ names confidential and in net effect denying petitioner Rosales’ basic disclosure request. Comelec’s reason for keeping the names of the party list nominees away from the public is deducible from the excerpts of the news report appearing in the April 13, 2007 issue of the Manila Bulletin, is that there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees, and that party list elections must not be personality oriented according to Chairman Abalos.In the first petition (G.R. No. 177271), BA-RA 7941 and UP-LR assail the Comelec resolutions accrediting private respondents Biyaheng Pinoy et al., to participate in the forthcoming party-list elections without simultaneously determining whether or not their respective nominees possess the requisite qualifications defined in R.A. No. 7941, or the "Party-List System Act" and belong to the marginalized and underrepresented sector each seeks to. 

In the second petition (G.R. No. 177314), petitioners Loreta Ann P. Rosales, Kilosbayan Foundation and Bantay Katarungan Foundation impugn Comelec Resolution dated April 3, 2007.

While both petitions commonly seek to compel the Comelec to disclose or publish the names of the nominees of the various party-list groups named in the petitions, BA-RA 7941 and UP-LR have the additional prayers that the 33 private respondents named therein be "declare[d] as unqualified to participate in the party-list elections and that the Comelec be enjoined from allowing respondent groups from participating in the elections. 

ISSUE: 

1. Can the Court cancel the accreditation accorded by the Comelec to the respondent party-list groups named in their petition on the ground that these groups and their respective nominees do not appear to be qualified.2. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list groups, has violated the right to information and free access to documents as guaranteed by the Constitution; and3. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said nominees.

HELD: The 1st petition is partly DENIED insofar as it seeks to nullify the accreditation of the respondents named therein. However, insofar as it seeks to compel the Comelec to disclose or publish the names of the nominees of party-list groups, sectors or organizations accredited to participate in the May 14, 2007 elections, the 2 petitions are GRANTED. Accordingly, the Comelec is hereby ORDERED to immediately disclose and release the names of the nominees of the party-list groups,

1. The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of accreditation on the grounds thus advanced in their petition. The exercise would require the Court to make a factual determination, a matter which is outside the office of judicial review by way of special civil action for certiorari. In certiorari proceedings, the Court is not called upon to decide factual issues and the case must be decided on the undisputed facts on record. The sole function of a

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writ of certiorari is to address issues of want of jurisdiction or grave abuse of discretion and does not include a review of the tribunal’s evaluation of the evidence. (note that nowhere in R.A. No. 7941 is there a requirement that the qualification of a party-list nominee be determined simultaneously with the accreditation of an organization. )

2. Section 7, Article III of the Constitution, viz:Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Section 28, Article II of the Constitution reading:Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

COMELEC’s basis of its refusal to disclose the names of the nominees of subject party-list groups, Section 7 of R.A. 7941,which last sentence reads: "[T]he names of the party-list nominees shall not be shown on the certified list" is certainly not a justifying card for the Comelec to deny the requested disclosure. There is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or even publishing through mediums other than the "Certified List" of the names.

It has been repeatedly said in various contexts that the people have the right to elect their representatives on the basis of an informed judgment. While the vote cast in a party-list elections is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives. The Court frowns upon any interpretation of the law or rules that would hinder in any way the free and intelligent casting of the votes in an election3. COMELEC has a constitutional duty to disclose and release the names of the nominees of the party-list groups named in the herein petitions. The right to information is a public right where the real parties in interest are the public, or the citizens to be precise, but like all constitutional guarantees, however, the right to information and its companion right of access to official records are not absolute. The people’s right to know is limited to "matters of public concern" and is further subject to such limitation as may be provided by law. But no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective petitions. Mandamus, therefore, lies.

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Province of North Cotabato v. Government of the Republic of the Philippines (G.R. Nos. 183591, 183752, 183893, 183951, & 183962) (14 October 2008)

Facts:On 8 August 2008, the Government of the Republic of the Philippines (GRP), represented by

the GRP Peace Panel and the Presidential Adviser on the Peace Process (PAPP), and the Moro Islamic Liberation Front (MILF) were scheduled to sign the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the previous GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MOA-AD included, among others, a stipulation that creates the Bangsamoro Juridical Entity (BJE), to which the GRP grants the authority and jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro—defined as the present geographic area of the ARMM constituted by Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City, as well as the municipalities of Lanao del Norte which voted for inclusion in the ARMM in the 2001 plebiscite. The BJE is then granted the power to build, develop, and maintain its own institutions. The MOA-AD also described the relationship of the GRP and the BJE as “associative,” characterized by shared authority and responsibility. It further provides that its provisions requiring “amendments to the existing legal framework” shall take effect upon signing of a Comprehensive Compact.

Before the signing, however, the Province of North Cotabato sought to compel the respondents to disclose and furnish it with complete and official copies of the MOA-AD, as well as to hold a public consultation thereon, invoking its right to information on matters of public concern. A subsequent petition sought to have the City of Zamboanga excluded from the BJE. The Court then issued a Temporary Restraining Order (TRO) on 4 August 2008, directing the public respondents and their agents to cease and desist from formally signing the MOA-AD.

Issues and Ruling:1. W/N the President has the power to pursue reforms that would require new legislation

and constitutional amendments.YES. However, the stipulation in the MOA-AD that virtually guarantees that necessary changes shall be effected upon the legal framework of the GRP must be struck down as unconstitutional as it is inconsistent with the limits of the President’s authority to propose constitutional amendments. Because although the President’s power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief, and, in the course of conducting peace negotiations, may validly consider implementing even those policies that require changes to the Constitution, she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.

2. W/N there is a violation of the people’s right to information on matters of public concern (1987 Constitution, Art. III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Art. II, Sec. 28), including public consultation under RA No. 7160 (Local Government Code of 1991).

YES. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people’s right to be consulted on relevant matters relating to the peace agenda:

a. EO No. 3, which enumerates the functions and responsibilities of the PAPP, is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the PAPP to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society;

b. RA No. 7160 (LGC) requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for

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the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment;

c. RA No. 8371 (IPRA) provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples (ICC/IP).

3. W/N the GRP Peace Panel and the PAPP committed grave abuse of discretion amounting to lack or excess of jurisdiction.

YES. The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by EO No. 3, RA No. 7160, and RA No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary, and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

4. W/N the MOA-AD is constitutional.NO. It cannot be reconciled with the present Constitution and laws. Not only its specific provisions, but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.

5. W/N the GRP can invoke executive privilege.NO. Respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.Carpio-Morales, J.The people’s right to information on matters of public concern under Sec. 7, Art. III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Art. II of the Constitution.

The right to information guarantees the right of the people to demand information, while the policy of public disclosure recognizes the duty of officialdom to give information even if nobody demands.

The IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

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An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social, and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme of cases and, even then, under carefully defined circumstances.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority.The President has authority, as stated in her oath of office, only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

Public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

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Hazel Ma. C. Antolin v. Abelardo T. Domondon, Jose A. Gangan, and Violeta J. Josef

GR No. 1655036 July 5, 2010

Facts:Petitioner Hazel Antolin took the 1997 CPA Board Exams but failed, receiving failing grades

from four out of seven subjects. Convinced that she deserved to pass, she wrote to respondent Abelardo Domondon, Acting Chairman of the Board of Accountancy, and requested that her answer sheets be re-corrected. Her answer sheets were shown but these consisted merely of shaded marks. She requested for copies of the questionnaire, their respective answer keys, and an explanation of the grading system used in each subject. Respondent denied the request.

Issue:WON Antolin has a right to obtain copies of the examination papers.

Petitioner:Primarily, petitioner filed a petition for mandamus with damages against the Board of

Accountancy and its members before the Manila RTC, praying that the court would order the board to furnish her with copies of the examination papers and other documents and materials. She later amended her petition, pleading a cause of action for the access of the documents requested for. However, the RTC dismissed the petition on the ground that the petition had already become moot and academic since she already passed the 1998 CPA Board Exams. However, an omnibus order of the trial court reconsidered her case. The CA, however, ruled that (i) the PRC regulation preventing her from gaining access to said documents were valid limitations on petitioner’s right to information and access to government documents; (ii) that the examination documents were not of public concern; (iii) it was not the function of the respondents to review and reassess the answers to exam questions of a failing examinee; (iv) the case was moot and academic as petitioner already passed the 1998 CPA Board Exams; (v) that petitioner failed to exhaust administrative remedies, having not elevated the matter to the PRC before seeking judicial intervention. Petitioner insists she has the Constitutional right to gain access to said examination documents, that she did not need to exhaust administrative remedies since no recourse to the PRC was available as only a pure question of law is involved in the case and that her petition was not rendered moot and academic when she passed the 1998 CPA Board Exams.

Respondents: Respondent primarily denied the request of petitioner on two grounds: first, the PRC rules

only permitted access to the petitioner’s answer sheet and that reconsideration of rating shall be effected only on grounds of mechanical error in grading the answer sheets or malfeasance; secondly, he clarified that the Board was precluded from releasing the exam papers as such act were considered unprofessional by the PRC resolution. The Board did not find any mechanical error in the grading of petitioner’s test papers. Nonetheless, the petitioner elevated the case to the RTC wherein respondents argue that petitioner was not entitled for the relief sought, among others. They also filed to dismiss the petition on damages since (1) petitioner failed to exhaust administrative remedies, (2) the petition stated no cause of action as there was no ministerial duty to release the information demanded, (3) and the constitutional right to information on matters of public concern is subject to the limitation set forth by the PRC Resolution No. 338. Also, they added that the petition had become moot and academic since petitioner already passed the 1998 CPA Board Exams.

Dispositive Portion:IN VIEW OF THE FOREGOING, the petitions are GRANTED.  The December 11, 2006 and February

16, 2004 Decisions of the Court of Appeals in CA-GR SP No. 76546 and CA-GR SP No. 76498, respectively, are hereby SET ASIDE.  The November 11, 2002 and January 30, 2003 Orders of the Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED.  The case is remanded to the Regional Trial Court for further proceedings.

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Court:The Court rules in favor of the petitioner. Section 28, Article 2 of the Constitution provides

that the State may adopt policies in the disclosure of all its transactions involving public interest while Section 7, Article 3 provides the right of the people to information on matters of public interest. It is clear that the people’s right to information is limited to matters of public concern and subject to such limitations as may be provided by law. The Court, nonetheless, conceded that the CPA Board Exams are matters of public concern. The examinees in particular, would understandably be interested in the fair and competent administration of these exams in order to ensure that only those qualified are admitted into the accounting profession.

Furthermore, on the issue of mootness, the Court held that the petitioner’s belated passing of the Board Exams does not automatically mean that her interest in the examination papers has become mere superfluity.

Lastly, CA erred in ruling that petitioner should have exhausted administrative remedies before seeking judicial intervention because issues of law cannot be resolved with finality by an administrative officer.