Professor Dannenmaier Cited by Philippines Supreme Court
Professor Eric Dannenmaier was cited by the Philippines Supreme Court Chief Justice in a dispute over release of negotiating documents from a trade agreement. The Court denied a petition to release the records, but its Chief Justice dissented, citing Dannenmaier in support of the proposition that disclosure would strengthen the country’s democratic process.
The case of Akbayan Citizens Action Party v Thomas Aquino (Supreme Court of the Philippines (G.R. No. 170516, 2008) arose when a group of citizens' organizations and members of the Philippines Congress sought release of the text of a 2005 Japan-Philippines Economic Partnership Agreement. The petitioners also sought the release of drafts and written offers each country had submitted during the negotiation process. Inquiries by members of the Philippine’s Congress produced nothing, and the legislators joined others in a mandamus petition to the country’s Supreme Court. By the time the Court heard the case, the trade agreement itself had been made public, but the government still refused to provide documents produced during negotiations. Petitioners claimed that access was essential to their effective participation in the public discussion over whether to ratify the trade agreement.
The Supreme Court sided with the government, finding that the documents revealed diplomatic negotiations protected from disclosure under national and international law. But Chief Justice Reynato S. Puno authored a vigorous dissent, arguing that the disclosure of the documents – particularly where public review and legislative ratification of the agreement was at stake – was important to a full consideration of the agreement as part of the democratic process.
The Chief Justice cited Professor Dannenmaier’s 2004 article “Trade, Democracy, and the FTAA: Public Access to the Process of Constructing a Free Trade Area of the Americas,” (1066 Fordham Int’l Law J. 1078) nine separate times, often quoting at length from the article in support of his position that the documents should have been released. The Chief Justice relied both on Dannenmaier’s comparative description of increased public access to Western Hemisphere trade negotiations, and his more instrumental claims that access “gives legitimacy to the process and result, and it strengthens the political will of populations who must support ratification and implementation once the text is finalized. … While it is true that participation implies resource allocation and sometimes delay, these are investments in a democratic outcome … .” (dissent at 42 quoting Dannenmaier at 1115).
Professor Dannenmaier said: “Okay, so it’s only a dissent – but sometimes dissent is the start of something beautiful. It’s good to see ideas that were embraced in the context of an Inter-American process finding some purchase in a pan-Asian context. On the merits, I don’t think I could support a wholesale release of diplomatic communiqués, but the failure to provide details regarding a trade agreement of keen interest to the Philippine people certainly makes it hard for citizens to be good citizens. And withholding details from Congress members who must consider a ratification vote? Surely there is a more democratic solution.”A copy of the opinion can be found at http://elibrary.judiciary.gov.ph/decisions.php?doctype=Decisions / Signed Resolutions&docid=12166820302146138178#