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SC Upholds Executive Privilege in the JPEPA Case

The Court recently upheld as covered by the executive privilege on diplomatic


communications the offers made by the Philippine and Japanese governments
during the negotiations of the Japan-Philippines Economic Partnership Agreement
(JPEPA).

JPEPA, the first bilateral free trade agreement between the Philippines and another
country, has yet to take effect since it still has to obtain Senate concurrence as
required under Art. VII, sec. 21 of the Constitution.

In a 10-4 51-page decision penned by Justice Conchita Carpio Morales, the


Supreme Court En Banc dismissed the petition filed by several non-government
organizations, Congresspersons, citizens, and taxpayers to obtain from respondent
government officials JPEPA’s full text “prior to its finalization between the two States
parties” as well as the Philippine and Japanese offers submitted during the
negotiation process.

The Court noted that the petition “has been largely rendered moot and academic” by
the public disclosure of JPEPA’s text after its signing by President Gloria Macapagal-
Arroyo during the pendency of the petition.

As for the Philippine and Japanese offers during JPEPA’s negotiations, the Court
applied the principles in People’s Movement for Press Freedom (PMPF) v.
Manglapus, En Banc Res., GR No. 84642, September 13, 1998 in ruling that the
offers are privileged communications that are confidential in character.

“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 with other foreign governments in future negotiations. A ruling that
Philippine offers in treaty negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views
during negotiations,” observed the Court.

The Court also held that to overcome executive privilege, the party demanding the
information must show that the information sought is vital not just for satisfaction of
curiosity but for effective and reasonable participation in social, political, and
economic decision-making. “We reiterate that our people have been exercising their
right to participate in the discussion on the issue of JPEPA, and they have been able
to articulate their different opinions without need of access to the JPEPA negotiation
documents,” it said.

Concurring are Senior Justice Leonardo A. Quisumbing and Justices Antonio T.


Carpio, Renato C. Corona, Dante O. Tinga (in the result), Minita V. Chico-Nazario,
Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura, Ruben T. Reyes, and
Teresita J. Leonardo-De Castro.

Chief Justice Reynato S. Puno dissented and his 120-page opinion was joined by
Justices Consuelo Ynares-Santiago and Ma. Alicia Austria-Martinez. Also dissenting
in a separate opinion was Justice Adolfo S. Azcuna.

“[T]he diplomatic secrets privilege over treaty negotiations may provide a ground for
exemption but may be overcome if there are reasonable safeguards to protect the
national interest. It is thus not an absolute exemption or privilege but a qualified one,”
the Chief Justice opined. He wrote that “[T]he records are bereft of basis for finding a
public interest to justify the withholding of the subject JPEPA documents after the
negotiations have been concluded” and that respondent government officials failed to
show “a sufficient and specific public interest to defeat the recognized public interest
in exercising the constitutional right to information to widen the role of the citizenry in
governmental decision-making by giving them a better perspective of the vital issue
confronting the nation, and to check abuse in government.” (GR No. 170516,
Akbayan Citizen’s Action Party v. Aquino, July 16, 2008)

ABAKADA VS. PURISIMA Re: Oversight Function of Congress

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a


Joint Congressional Oversight Committee composed of seven Members from the
Senate and seven Members from the House of Representatives. The Members from
the Senate shall be appointed by the Senate President, with at least two senators
representing the minority. The Members from the House of Representatives shall be
appointed by the Speaker with at least two members representing the minority. After
the Oversight Committee will have approved the implementing rules and regulations
(IRR) it shall thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the
purpose of approving the implementing rules and regulations (IRR) formulated by the
DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR.
From then on, it became functus officio and ceased to exist. Hence, the issue of its
alleged encroachment on the executive function of implementing and enforcing the
law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront
the issue of the constitutionality of the Joint Congressional Oversight Committee
created under RA 9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of
congressional oversight in Macalintal v. Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by


Congress to enhance its understanding of and influence over the
implementation of legislation it has enacted. Clearly, oversight concerns post-
enactment measures undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether agencies are
properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess
executive conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power
itself and integral to the checks and balances inherent in a democratic system of
government.

Over the years, Congress has invoked its oversight power with increased frequency
to check the perceived "exponential accumulation of power" by the executive branch.
By the beginning of the 20th century, Congress has delegated an enormous amount
of legislative authority to the executive branch and the administrative agencies.
Congress, thus, uses its oversight power to make sure that the administrative
agencies perform their functions within the authority delegated to them.

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may
be divided into three categories, namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to


administrative operations. Its primary purpose is to determine economy and
efficiency of the operation of government activities. In the exercise of legislative
scrutiny, Congress may request information and report from the other branches of
government. It can give recommendations or pass resolutions for consideration of
the agency involved.

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts


that are readily available, congressional investigation involves a more intense
digging of facts. The power of Congress to conduct investigation is recognized by the
1987 Constitution under section 21, Article VI.

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight
power is thru legislative supervision. "Supervision" connotes a continuing and
informed awareness on the part of a congressional committee regarding executive
operations in a given administrative area. While both congressional scrutiny and
investigation involve inquiry into past executive branch actions in order to influence
future executive branch performance, congressional supervision allows Congress to
scrutinize the exercise of delegated law-making authority, and permits Congress to
retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto power.
It typically utilizes veto provisions when granting the President or an executive
agency the power to promulgate regulations with the force of law. These provisions
require the President or an agency to present the proposed regulations to Congress,
which retains a "right" to approve or disapprove any regulation before it takes effect.
Such legislative veto provisions usually provide that a proposed regulation will
become a law after the expiration of a certain period of time, only if Congress does
not affirmatively disapprove of the regulation in the meantime. Less frequently, the
statute provides that a proposed regulation will become law if Congress affirmatively
approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of


power between the legislative and the executive branches of government as it offers
lawmakers a way to delegate vast power to the executive branch or to independent
agencies while retaining the option to cancel particular exercise of such power
without having to pass new legislation or to repeal existing law. They contend that
this arrangement promotes democratic accountability as it provides legislative check
on the activities of unelected administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may
or may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the Executive disposes. One
safeguard, of course, is the legislative power to enact new legislation or to change
existing law. But without some means of overseeing post enactment activities of the
executive branch, Congress would be unable to determine whether its policies have
been implemented in accordance with legislative intent and thus whether legislative
intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon
the executive prerogatives. They urge that any post-enactment measures
undertaken by the legislative branch should be limited to scrutiny and
investigation; any measure beyond that would undermine the separation of
powers guaranteed by the Constitution. They contend that legislative veto
constitutes an impermissible evasion of the President’s veto authority and intrusion
into the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it
prevents the executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and congressional committee
investigations allow Congress to scrutinize only the exercise of delegated law-making
authority. They do not allow Congress to review executive proposals before they take
effect and they do not afford the opportunity for ongoing and binding expressions of
congressional intent. In contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of "subordinate law" or those enacted by
the executive branch pursuant to a delegation of authority by Congress. They further
argue that legislative veto "is a necessary response by Congress to the accretion of
policy control by forces outside its chambers." In an era of delegated authority, they
point out that legislative veto "is the most efficient means Congress has yet devised
to retain control over the evolution and implementation of its policy as declared by
statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court


resolved the validity of legislative veto provisions. The case arose from the order
of the immigration judge suspending the deportation of Chadha pursuant to § 244(c)
(1) of the Immigration and Nationality Act. The United States House of
Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2)
authorizing either House of Congress, by resolution, to invalidate the decision of the
executive branch to allow a particular deportable alien to remain in the United States.
The immigration judge reopened the deportation proceedings to implement the
House order and the alien was ordered deported. The Board of Immigration Appeals
dismissed the alien’s appeal, holding that it had no power to declare unconstitutional
an act of Congress. The United States Court of Appeals for Ninth Circuit held that the
House was without constitutional authority to order the alien’s deportation and that §
244(c)(2) violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the
Court shied away from the issue of separation of powers and instead held that
the provision violates the presentment clause and bicameralism. It held that the one-
house veto was essentially legislative in purpose and effect. As such, it is subject to
the procedures set out in Article I of the Constitution requiring the passage by a
majority of both Houses and presentment to the President.

Two weeks after the Chadha decision, the Court upheld, in memorandum decision,
two lower court decisions invalidating the legislative veto provisions in the Natural
Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of
1980. Following this precedence, lower courts invalidated statutes containing
legislative veto provisions although some of these provisions required the approval of
both Houses of Congress and thus met the bicameralism requirement of Article I.
Indeed, some of these veto provisions were not even exercised.

In Macalintal, given the concept and configuration of the power of congressional


oversight and considering the nature and powers of a constitutional body like the
Commission on Elections, the Court struck down the provision in RA 9189 (The
Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee.
The committee was tasked not only to monitor and evaluate the implementation of
the said law but also to review, revise, amend and approve the IRR promulgated by
the Commission on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections.

With this backdrop, it is clear that congressional oversight is not unconstitutional per
se, meaning, it neither necessarily constitutes an encroachment on the executive
power to implement laws nor undermines the constitutional separation of powers.
Rather, it is integral to the checks and balances inherent in a democratic system of
government. It may in fact even enhance the separation of powers as it prevents the
over-accumulation of power in the executive branch.

However, to forestall the danger of congressional encroachment "beyond the


legislative sphere," the Constitution imposes two basic and related constraints on
Congress. It may not vest itself, any of its committees or its members with either
executive or judicial power. And, when it exercises its legislative power, it must follow
the "single, finely wrought and exhaustively considered, procedures" specified under
the Constitution, including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to


scrutiny and investigation. In particular, congressional oversight must be confined to
the following:

(1) scrutiny based primarily on Congress’ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation and

(2) investigation and monitoring of the implementation of laws pursuant to the power
of Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed
by the Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative


agency to present the proposed implementing rules and regulations of a law to
Congress which, by itself or through a committee formed by it, retains a "right" or
"power" to approve or disapprove such regulations before they take effect. As such,
a legislative veto in the form of a congressional oversight committee is in the form of
an inward-turning delegation designed to attach a congressional leash (other than
through scrutiny and investigation) to an agency to which Congress has by law
initially delegated broad powers. It radically changes the design or structure of the
Constitution’s diagram of power as it entrusts to Congress a direct role in enforcing,
applying or implementing its own laws.

Congress has two options when enacting legislation to define national policy within
the broad horizons of its legislative competence. It can itself formulate the details or it
can assign to the executive branch the responsibility for making necessary
managerial decisions in conformity with those standards. In the latter case, the law
must be complete in all its essential terms and conditions when it leaves the hands of
the legislature. Thus, what is left for the executive branch or the concerned
administrative agency when it formulates rules and regulations implementing the law
is to fill up details (supplementary rule-making) or ascertain facts necessary to bring
the law into actual operation (contingent rule-making).

Administrative regulations enacted by administrative agencies to implement and


interpret the law which they are entrusted to enforce have the force of law and are
entitled to respect. Such rules and regulations partake of the nature of a statute and
are just as binding as if they have been written in the statute itself. As such, they
have the force and effect of law and enjoy the presumption of constitutionality and
legality until they are set aside with finality in an appropriate case by a competent
court. Congress, in the guise of assuming the role of an overseer, may not pass
upon their legality by subjecting them to its stamp of approval without disturbing the
calculated balance of powers established by the Constitution. In exercising discretion
to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto
itself, a power exclusively vested in this Court by the Constitution.

Memorandum of Agreement on Ancestral Domain

In a summary of the Philippine government and the Moro Islamic Liberation Front
(MILF) Memorandum of Agreement (MOA) on ancestral domain obtained by abs-
cbnNEWS.com/Newsbreak, Camilo Miguel Montesa, policy adviser of the Institute for
Autonomy and Governance (IAG), said that under the accord, the Philippine
government agrees to:

Recognize the Bangsamoro people as "distinct from the rest of the national
communities";
Grant the Bangsamoro people their own "distinct territory";
Grant the Bangsamoro pople their own "government"; and,
Concede international recognition to the Bangsamoro people.

Under the MOA, the Bangsamoro territory comprises the following areas:

the present Autonomous Region of Muslim Mindanao (ARMM);


the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan, and Tangkal in
the province of Lanao del Norte, which voted for inclusion in the ARMM
during the 2001 plebiscite;
additional geographic areas in the provinces of Sultan Kudarat, Lanao del Norte,
and North Cotabato, "subject to plebiscite."
Montesa said that under the MOA, the Bangsamoro homeland did "not form part of
the public domain." Thus, it is "not within the jurisdiction of the Philippine
government."

The Bangsamoro homeland, he added, "encompasses ancestral communal and


customary lands, maritime, fluvial and alluvial domains as well as all natural
resources therein that have inured or vested ancestral rights on the basis of native
title."

--- MY OPINION: I couldn’t find the actual case! So this is just my opinion. The
Agreement would have established a presumptive state independent of the
Philippine republic, which would have its own territory in Mindanao, under the
political control of the MILF, and its own ancestral domains not subject to the
jurisdiction of the Philippine Government. I opposed the agreement for being
unconstitutional, for undermining Philippine sovereignty and territorial integrity, and
for being unjust to non-Muslims, both Lumads and Christian, in Mindanao who would
be displaced by the Agreement. Additionally, I belived the Agreement was similarly
unfair to Filipino-Muslims who were not allied to the MILF, such as the MNLF and the
majority of Filipino-Muslims who are opposed to the creation of a separate Moro
State.

THE SJS PETITION ON RIGHT TO PRIVACY


(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165 on random drug
testing)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and
tertiary level students and public and private employees, while mandatory, is a
random and suspicionless arrangement. The objective is to stamp out illegal drug
and safeguard in the process "the well being of [the] citizenry, particularly the youth,
from the harmful effects of dangerous drugs." This statutory purpose, per the policy-
declaration portion of the law, can be achieved via the pursuit by the state of "an
intensive and unrelenting campaign against the trafficking and use of dangerous
drugs x x x through an integrated system of planning, implementation and
enforcement of anti-drug abuse policies, programs and projects." The primary
legislative intent is not criminal prosecution, as those found positive for illegal drug
use as a result of this random testing are not necessarily treated as criminals. They
may even be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation.
The right to privacy has been accorded recognition in this jurisdiction as a facet of
the right protected by the guarantee against unreasonable search and seizure under
Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its
own, this case appears to be the first time that the validity of a state-decreed search
or intrusion through the medium of mandatory random drug testing among students
and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered
in these proceedings is veritably one of first impression.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia,


considered the following: (1) schools stand in loco parentis over their students; (2)
school children, while not shedding their constitutional rights at the school gate, have
less privacy rights; (3) athletes have less privacy rights than non-athletes since the
former observe communal undress before and after sports events; (4) by joining the
sports activity, the athletes voluntarily subjected themselves to a higher degree of
school supervision and regulation; (5) requiring urine samples does not invade a
student's privacy since a student need not undress for this kind of drug testing; and
(6) there is need for the drug testing because of the dangerous effects of illegal drugs
on the young. The US Supreme Court held that the policy constituted reasonable
search under the Fourth and 14th Amendments and declared the random drug-
testing policy constitutional.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing
even among non-athletes on the basis of the school's custodial responsibility and
authority. In so ruling, said court made no distinction between a non-athlete and an
athlete. It ratiocinated that schools and teachers act in place of the parents with a
similar interest and duty of safeguarding the health of the students. And in holding
that the school could implement its random drug-testing policy, the Court hinted that
such a test was a kind of search in which even a reasonable parent might need to
engage.

In sum, what can reasonably be deduced from the above two cases and applied to
this jurisdiction are: (1) schools and their administrators stand in loco parentis with
respect to their students; (2) minor students have contextually fewer rights than an
adult, and are subject to the custody and supervision of their parents, guardians, and
schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and
well-being of their students and may adopt such measures as may reasonably be
necessary to discharge such duty; and (4) schools have the right to impose
conditions on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds
that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug
testing of students are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure, the right to enroll
is not absolute; it is subject to fair, reasonable, and equitable requirements.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the
country and thus protect the well-being of the citizens, especially the youth, from the
deleterious effects of dangerous drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely pursuing a national drug abuse
policy in the workplace via a mandatory random drug test. To the Court, the need for
drug testing to at least minimize illegal drug use is substantial enough to override the
individual's privacy interest under the premises. The Court can consider that the
illegal drug menace cuts across gender, age group, and social- economic lines. And
it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs,
with their ready market, would be an investor's dream were it not for the illegal and
immoral components of any of such activities. The drug problem has hardly abated
since the martial law public execution of a notorious drug trafficker. The state can no
longer assume a laid back stance with respect to this modern-day scourge. Drug
enforcement agencies perceive a mandatory random drug test to be an effective way
of preventing and deterring drug use among employees in private offices, the threat
of detection by random testing being higher than other modes. The Court holds that
the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on
the part of the employees, the compelling state concern likely to be met by the
search, and the well-defined limits set forth in the law to properly guide authorities in
the conduct of the random testing, we hold that the challenged drug test requirement
is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also
labor under reasonable supervision and restrictions imposed by the Civil Service law
and other laws on public officers, all enacted to promote a high standard of ethics in
the public service. And if RA 9165 passes the norm of reasonableness for private
employees, the more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the people and
to serve them with utmost responsibility and efficiency.

ON UNDUE DELAGATION OF POWERS: Petitioner SJS' next posture that Sec. 36


of RA 9165 is objectionable on the ground of undue delegation of power hardly
commends itself for concurrence. Contrary to its position, the provision in question is
not so extensively drawn as to give unbridled options to schools and employers to
determine the manner of drug testing. Sec. 36 expressly provides how drug testing
for students of secondary and tertiary schools and officers/employees of
public/private offices should be conducted. It enumerates the persons who shall
undergo drug testing. In the case of students, the testing shall be in accordance with
the school rules as contained in the student handbook and with notice to parents. On
the part of officers/employees, the testing shall take into account the company's work
rules. In either case, the random procedure shall be observed, meaning that the
persons to be subjected to drug test shall be picked by chance or in an unplanned
way. And in all cases, safeguards against misusing and compromising the
confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation


with the DOH, Department of the Interior and Local Government, Department of
Education, and Department of Labor and Employment, among other agencies, the
IRR necessary to enforce the law. In net effect then, the participation of schools and
offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It
is, therefore, incorrect to say that schools and employers have unchecked discretion
to determine how often, under what conditions, and where the drug tests shall be
conducted.