Privileged character of diplomatic negotiations

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 Peoples 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
Presidents representatives on the state of the then on-going negotiations of the RP-
US 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 Resolution went on to state, thus:

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. Although much has been said about open and secret diplomacy,
with disparagement of the latter, Secretaries of State Hughes and Stimson
have clearly analyzed and justified the practice. In the words of Mr.
Stimson:

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
circumstancesIf 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)

xxxx

There is frequent criticism of the secrecy in which negotiation

with foreign powers on nearly all subjects is concerned. This, it is
claimed, is 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. Lipincott Co., 1938) President Wilson in starting his
efforts for the conclusion of the World War declared that we must have
open covenants, openly arrived at. He quickly abandoned his thought.
 No one who has studied the question believes that such a method
of publicity is possible. In the moment that negotiations are started,
pressure groups attempt to muscle in. An ill-timed speech by one of
the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a widespread
propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v.

Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its
negotiations with foreign countries,viz:

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 and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his
great arguments of March 7, 1800, in the House of Representatives, The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations. Annals, 6th Cong., col. 613 (Emphasis
supplied; underscoring in the original)

Considering that the information sought through the three (3) questions
subject of this Petition involves the Presidents dealings with a foreign nation, with
more reason, this Court is wary of approving the view that Congress may
peremptorily inquire into not only official, documented acts of the President but
even her confidential and informal discussions with her close advisors on the
pretext that said questions serve some vague legislative need. Regardless of who is
in office, this Court can easily foresee unwanted consequences of subjecting a
Chief Executive to unrestricted congressional inquiries done with increased
frequency and great publicity. No Executive can effectively discharge
constitutional functions in the face of intense and unchecked legislative incursion
into the core of the Presidents decision-making process, which inevitably would
involve her conversations with a member of her Cabinet.

With respect to respondent Committees invocation of constitutional

prescriptions regarding the right of the people to information and public
accountability and transparency, the Court finds nothing in these arguments to
support respondent Committees case.

There is no debate as to the importance of the constitutional right of the

people to information and the constitutional policies on public accountability and
transparency. These are the twin postulates vital to the effective functioning of a
democratic government. The citizenry can become prey to the whims and caprices
of those to whom the power has been delegated if they are denied access to
information. And the policies on public accountability and democratic government
would certainly be mere empty words if access to such information of public
concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three
(3) specific questions, did not in any way curb the publics right to information or
diminish the importance of public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN
Project in aid of legislation. There is nothing in the assailed Decision that prohibits
respondent Committees from inquiring into the NBN Project. They could continue
the investigation and even call petitioner Neri to testify again. He himself has
repeatedly expressed his willingness to do so. Our Decision merely excludes from
the scope of respondents investigation the three (3) questions that elicit answers
covered by executive privilege and rules that petitioner cannot be compelled to
appear before respondents to answer the said questions. We have discussed the
reasons why these answers are covered by executive privilege. That there is a
recognized public interest in the confidentiality of such information is a recognized
principle in other democratic States. To put it simply, the right to information is
not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not

espouse an absolute right to information. By their wording, the intention of the
Framers to subject such right to the regulation of the law is unmistakable. The
highlighted portions of the following provisions show the obvious limitations on
the right to information, thus:

Article III, 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 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.

Article II, 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. (Emphasis
supplied)
Arguments proffered by petitioners against the application of PMPF
v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
case, there being substantial factual distinctions between the two.

To petitioners, the first and most fundamental distinction lies in the nature of
the treaty involved. They stress that PMPF v. Manglapus involved the Military
Bases Agreement which necessarily pertained to 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 Military Bases Agreement, are not so vital to national
security to disallow their disclosure.

Petitioners argument betrays a faulty assumption that information, to be considered

privileged, must involve national security. The recognition in Senate
v. Ermita[29] 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.

While there certainly are privileges grounded on the necessity of safeguarding

national security such as those involving military secrets, not all are founded
thereon. One example is the informers privilege, or the privilege of the
Government not to disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the enforcement of that
law.[30] The suspect involved need not be so notorious as to be a threat to national
security for this privilege to apply in any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only
would this be contrary to long-standing practice. It would also be highly prejudicial
to law enforcement efforts in general.

Also illustrative is the privilege accorded to presidential communications,

which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for the
privilege being that
 x x x [a] frank exchange of exploratory ideas and assessments, free
from the glare of publicity and pressure by interested parties, is essential
to protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. x x x[31] (Emphasis
supplied)

In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that the
Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing. [32] This qualification applies whether the privilege is being invoked
in the context of a judicial trial or a congressional investigation conducted in aid of
legislation.[33]

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] deliberative process
covers documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by 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 item of
discovery and front page news, the objective of the privilege being to enhance the
quality of agency decisions. [35]

The diplomatic negotiations privilege bears a close resemblance to the

deliberative process and presidential communications privilege. It may be readily
perceived that the rationale for the confidential character of 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 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.

The decision of the U.S. District Court, District of Columbia in Fulbright

& 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 negotiations. Among the points noted therein
were the issues to be discussed, positions which the French and U.S. teams took on
some points, the draft language agreed on, and articles which needed to be
amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:

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. A description of the negotiations
at any one point would not provide an onlooker a summary of the
discussions which could later be relied on as law. It would not be
working law as the points discussed and positions agreed on would be
subject to change at any date until the treaty was signed by the
President and ratified by the Senate.

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. As several months pass in
between negotiations, this lack of record could hinder readily the U.
S. negotiating team. Further disclosure would reveal prematurely
 adopted policies. If these policies should be changed, public confusion
would result easily.

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, Arthur Andersen & Co. v. Internal Revenue Service,
C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties shouldbe
accorded the same protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical

consequence from the privileged character of the deliberative process.
A second point petitioners proffer in their attempt to differentiate PMPF
v. Manglapus from the present case is the fact that the petitioners therein consisted
entirely of members of the mass media, while petitioners in the present case
include members of the House of Representatives who invoke their right to
information not just as citizens but as members of Congress.

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 which was not raised in PMPF v. Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of members of

the mass media, it would be incorrect to claim that the doctrine laid down therein
has no bearing on a controversy such as the present, 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 probability of the claim succeeding
in the new context might differ, but to say that the privilege, as such, has no
validity at all in that context is another matter altogether.

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,[41] implies that a
privilege, once recognized, may be invoked under different procedural
settings. That this principle holds true particularly with respect to diplomatic
negotiations may be inferred from 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.
 Clearly, the privilege for diplomatic negotiations may be invoked not only
against citizens demands for information, but also in the context of legislative
investigations.

Hence, 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.
As third and last point raised against the application of PMPF
v. Manglapus in this case, petitioners proffer that the socio-political and historical
contexts of the two cases are worlds apart. They claim that the constitutional
traditions and concepts prevailing at the time PMPF v. Manglapus came about,
particularly 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.[42]

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 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.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to
the President, being the sole organ of the nation in its external relations, was
echoed in BAYAN v. Executive Secretary[56] where the Court held:

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.

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. x x x (Italics in the
original; emphasis and underscoring supplied)
----

PMPF v. Manglapus indeed involved a demand for information from private

citizens and not an executive-legislative conflict, but so did Chavez v.
PEA[74] which held that the [publics] right to information . . . does not extend
to matters recognized as privileged information under the separation of
powers. What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the publics right
to information.
To buttress their contention, which the ponencia upholds, respondents rely
on United States v. Curtiss-Wright Export Corporation,[24] a case that has
become a classic authority on recognizing executive primacy or even exclusivity in
foreign affairs in the U.S.[25] and in the Philippines.[26] They also cite Peoples
Movement for Press Freedom (PMPF) v. Manglapus, the only Philippine case
wherein the Court, in an unpublished Resolution, had occasion to rule on the
issue of access to information on treaty negotiations. PMPF v.
Manglapus extensively quoted Curtiss-Wright, viz:
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 and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude;
and Congress itself is powerless to 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 its external
relations, and its sole representative with foreign nations. Annals,
6th Cong., col. 613. The Senate Committee on Foreign Relations at a
very early day in our history (February 15, 1816), reported to the
Senate, among other things, as follows:

The President is the constitutional representative of the United

States with regard to foreign nations. He manages our concerns with
foreign nations and must necessarily be most competent to determine
when, how, and upon what subjects negotiation may be urged with the
greatest prospect of success. For his conduct he is responsible to the
Constitution. The committee considers this responsibility the surest
pledge for the faithful discharge of his duty. They think the
interference of the Senate in the direction of foreign negotiations
calculated to diminish that responsibility and thereby to impair the
best security for the national safety. The nature of transactions with
foreign nations, moreover, requires caution and unity of design,
and their success frequently depends on secrecy and dispatch. 8
U.S. Sen. Reports Comm. on Foreign Relations, p. 24.
 It is important to bear in mind that we are here dealing not
alone with an authority vested in the President by an exertion of
legislative power, but with such an authority plus the very
delicate, plenary and exclusive power of the President as the sole
organ of the federal government in the field of international
relations - a power which does not require as a basis for its
exercise an act of Congress, but which, of course, like every other
governmental power, must be exercised in subordination to the
applicable provisions of the Constitution. It is quite apparent that if,
in the maintenance of our international relations, embarrassment -
perhaps serious embarrassment- is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must
often accord to the President a degree of discretion and freedom from
statutory restriction which would not be admissible were domestic
affairs alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary, and the
premature disclosure of it productive of harmful results. Indeed,
so clearly is this true that the first President refused to accede to a
request to lay before the House of Representatives the instructions,
correspondence and documents relating to the negotiation of the Jay
Treaty - a refusal the wisdom of which was recognized by the House
itself and has never since been doubted.[27] (emphasis supplied)
 1. Diplomatic secrets privilege

In Almonte v. Vasquez,[117] the Court recognized a common law

governmental privilege against disclosure, with respect to state secrets bearing on
diplomatic matters.[118] In Chavez v. PCGG,[119] the Court also
recognized the confidentiality of information on inter-government exchanges prior
to the conclusion of treaties and executive agreements subject to reasonable
safeguards on the national interest.[120] It also reiterated the privilege against
disclosure of state secrets bearing on diplomatic matters, as held
in Almonte. Citing Chavez, Senate v. Ermita also acknowledged the states
secrets privilege bearing on diplomatic matters. In PMPF v. Manglapus, the Court
upheld the confidentiality of treaty negotiations. In that case, petitioners sought to
compel the representatives of the President in the then ongoing negotiations of
the RP-U.S. Military Bases Agreement to give them access to the negotiations, to
treaty items already agreed upon, and to the R.P. and U.S. positions on items that
were still being contested.

In determining the applicability of the diplomatic secrets privilege to the case at

bar, I reiterate the primordial principle in Senate v. Ermita that a claim of
executive privilege may be valid or not depending on the ground invoked to
justify it and the context in which it is made. Thus, even
while Almonte and Senate v. Ermita both recognized the state secrets privilege
over diplomatic matters, and Chavez and PMPF v. Manglapus both
acknowledged the confidentiality of inter-government exchanges during treaty
negotiations, the validity of the claim of the diplomatic secrets privilege over the
subject JPEPA documents shall be examined under the particular circumstances
of the case at bar. I especially take note of the fact that unlike PMPF v.
Manglapus, which involved a request for access to information during
negotiations of a military treaty, the case at bar involves a request for
information after the conclusion of negotiations of an international trade
agreement. Bearing this context in mind, let me now delve into the merits of the
invocation of executive privilege.

Almonte, Chavez, Senate v. Ermita, and PMPF v. Manglapus did not

discuss the manner of invoking the diplomatic secrets privilege. For the proper
invocation of this privilege, U.S. v. Reynolds[121] is instructive. This case involved
the military secrets privilege, which can be analogized to the diplomatic secrets
privilege, insofar as they are both based on the nature and the content of the
information withheld. I submit that we should follow the procedure laid down
in Reynolds to determine whether the diplomatic secrets privilege is properly
invoked, viz:
The privilege belongs to the Government and must be asserted
by it; it can neither be claimed nor waived by a private party. It is not
to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer. The court
itself must determine whether the circumstances are appropriate
for the claim of privilege, and yet do so without forcing a disclosure
of the very thing the privilege is designed to protect.
It was in PMPF v. Manglapus that the Court was confronted with a collision
between a citizens constitutional right to information and executive secrecy in
foreign affairs. As afore-discussed, the Court, in denying the petition in an
unpublished Resolution, quoted at length Curtiss-Wrights disquisition on the
necessity of secrecy in foreign negotiations. Again, the relevant portion of that
quote, which was cited by respondents, reads, viz:
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 and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself
is powerless to 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 its external relations, and its sole
representative with foreign nations. Annals, 6th Cong., col. 613.

xxx xxx xxx

It is important to bear in mind that we are here dealing not

alone with an authority vested in the President by an exertion of
legislative power, but with such an authority plus the very
delicate, plenary and exclusive power of the President as the sole
organ of the federal government in the field of international
relations - a power which does not require as a basis for its
exercise an act of Congress, but which, of course, like every other
governmental power, must be exercised in subordination to the
applicable provisions of the Constitution. It is quite apparent that if,
in the maintenance of our international relations, embarrassment -
perhaps serious embarrassment- is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must
often accord to the President a degree of discretion and freedom from
statutory restriction which would not be admissible were domestic
affairs alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his
 confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary, and the
premature disclosure of it productive of harmful results. Indeed,
so clearly is this true that the first President refused to accede to a
request to lay before the House of Representatives the instructions,
correspondence and documents relating to the negotiation of the Jay
Treaty - a refusal the wisdom of which was recognized by the House
itself and has never since been doubted.[262] (emphasis supplied)

The Court followed this quote with the conclusion that (w)e have the same
doctrine of separation of powers in the Constitution and the same grant of
authority in foreign affairs to the President as in the American system. The same
reasoning applies to treaty negotiations by our Government.

Taking a hard look at the facts and circumstances of PMPF v.

Manglapus, it cannot escape ones eye that this case did not involve a question of
separation of powers arising from a legislative inquiry, as in the case of the
House of Representatives demand on President Washington for papers relating to
the Jay Treaty. In PMPF v. Manglapus, petitioners invoked their right to
information under Article III, Section 7; and freedom of speech and the press under
Article III, Section 4. They sought to compel the representatives of the President of
the Philippines in the then ongoing negotiations of the RP-U.S. Military Bases
Agreement to (1) open to petitioners the negotiations/sessions of respondents with
their U.S. counterparts on the RP-U.S. Military Agreement; (2) reveal and/or give
petitioners access to the items which they (respondents) had already agreed upon
with their American counterparts relative to the review of the RP-U.S. Military
Bases Agreement; and (3) reveal and/or make accessible to petitioners the
respective positions of respondents and their U.S. counterparts on items they had
not agreed upon, particularly the compensation package for the continued use by
the U.S. of their military bases and facilities in the Philippines. The above quote
from Curtiss-Wright, referring to a conflict between the executive and the
legislative branches of government, was therefore different from the factual
setting of PMPF v. Manglapus. The latter case which involved a collision
between governmental power over the conduct of foreign affairs with its secrecy
prerogative on the one hand, and the citizens right to information under the
Constitution on the other.

The PMPF Court did stress that secrecy of negotiations with foreign
countries did not violate freedom of access to information and freedom of speech
and of the press. Significantly, it quoted The New American Government and Its
Work, viz:
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. Although much has been said about open and secret
diplomacy, with disparagement of the latter, Secretaries of State
Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:
A complicated negotiation cannot be carried through without
many, many private talks and discussions, 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 do under certain circumstances and would not do under
other circumstances If these reportsshould become publicwho would
ever trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284).
xxx xxx xxx
There is frequent criticism of the secrecy in which negotiation
with foreign powers on nearly all subjects is concerned. This, it is
claimed, is 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. Lippincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World War declared that
we must have open covenants, openly arrived at. He quickly
abandoned his thought.
No one who has studied the question believes that such a
method of publicity is possible. In the moment that negotiations
are started, pressure groups attempt to muscle in. An ill-timed
speech by one of the parties or a frank declaration of the
concessions which are extracted or offered on both sides would
quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are
fully published, there is ample opportunity for discussion before it
is approved. (The New American Government and Its Work, James T.
Young, 4th edition, p. 194)[263] (emphasis supplied)

It is worth noting that while the above quote speaks of the evil of open
diplomacy, it does not discuss the value of the right of access to information; much
less, one that is constitutional in stature. The New American Government and Its
Work was published in 1940, long before the Freedom of Information Act was
passed in the U.S. in 1966. It did not and could not have taken into account the
expanded statutory right to information in FOIA. It is more doubtful if this book
can be used to calibrate the importance of the right of access to information in
the Philippine setting, considering its elevation as a constitutional right.

Be that as it may, I submit that as both Chavez v. PCGG and PMPF v.

Manglapus are extant case law recognizing the constitutionally-based
diplomatic secrets privilege over treaty negotiations, respondents have
discharged the burden of showing the bases for exempting the subject
JPEPA documents from the scope of the constitutional right to information.

Prescinding from these premises, the next question to grapple with is

whether the exemption or diplomatic secrets privilege over treaty negotiations as
recognized in Chavez v. PCGG and PMPF v. Manglapus is absolute or qualified.