DFA vs. BCA

9/10/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 795

G.R. No. 210858. June 29, 2016.*

DEPARTMENT OF FOREIGN AFFAIRS, petitioner, vs.
BCA INTERNATIONAL CORPORATION, respondent.
Remedial Law; Special Proceedings; Alternative Dispute

Resolution; Arbitration; Arbitration is deemed a special proceeding
and governed by the special provisions of Republic Act (RA) No.
9285, its Implementing Rules and Regulations (IRR), and the
Special Alternative Dispute Resolution (ADR) Rules. RA No. 9285
is the general law applicable to all matters and controversies to be
resolved through alternative dispute resolution methods.—
Arbitration is deemed a special proceeding and governed by the
special provisions of RA 9285, its IRR, and the Special ADR
Rules. RA 9285 is the general law applicable to all matters and
controversies to be resolved through alternative dispute
resolution methods. While enacted only in 2004, we held that RA
9285 applies to pending arbitration proceedings since it is a
procedural law, which has retroactive effect: While RA 9285 was
passed only in 2004, it nonetheless applies in the instant
case since it is a procedural law which has a retroactive
effect. Likewise, KOGIES filed its application for arbitration
before the KCAB on July 1, 1998 and it is still pending because no
arbitral award has yet been rendered. Thus, RA 9285 is applicable
to the instant case. Wellsettled is the rule that procedural laws
are construed to be applicable to actions pending and
undetermined at the time of their passage, and are deemed
retroac-
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* SECOND DIVISION.

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Department of Foreign Affairs vs. BCA International
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tive in that sense and to that extent. As a general rule, the

retroactive application of procedural laws does not violate
any personal rights because no vested right has yet
attached nor arisen from them.
Same; Same; Same; Same; Consistent with Article 2046 of the
Civil Code, the Special Alternative Dispute Resolution (ADR)
Rules were formulated and were also applied to all pending
arbitration proceedings covered by Republic Act (RA) No. 9285,
provided no vested rights are impaired.—The IRR of RA 9285
reiterate that RA 9285 is procedural in character and applicable
to all pending arbitration proceedings. Consistent with Article
2046 of the Civil Code, the Special ADR Rules were formulated
and were also applied to all pending arbitration proceedings
covered by RA 9285, provided no vested rights are impaired.
Thus, contrary to DFA’s contention, RA 9285, its IRR, and the
Special ADR Rules are applicable to the present arbitration
proceeding. The arbitration between the DFA and BCA is still
pending, since no arbitral award has yet been rendered.
Moreover, DFA did not allege any vested rights impaired by the
application of those procedural rules.
Same; Same; Same; Same; Republic Act (RA) No. 9285, its
Implementing Rules and Regulations (IRR), and the Special
Alternative Dispute Resolution (ADR) Rules provide that any party
to an arbitration, whether domestic or foreign, may request the
court to provide assistance in taking evidence such as the issuance
of subpoena ad testificandum and subpoena duces tecum.—RA
9285, its IRR, and the Special ADR Rules provide that any party
to an arbitration, whether domestic or foreign, may request the
court to provide assistance in taking evidence such as the
issuance of subpoena ad testificandum and subpoena duces tecum.
The Special ADR Rules specifically provide that they shall apply
to assistance in taking evidence, and the RTC order granting
assistance in taking evidence shall be immediately executory and
not subject to reconsideration or appeal. An appeal with the Court
of Appeals (CA) is only possible where the RTC denied a petition
for assistance in taking evidence. An appeal to the Supreme Court
from the CA is allowed only under any of the grounds specified in
the Special ADR Rules. We rule that the DFA failed to follow the
procedure and the hierarchy of courts provided in RA 9285, its
IRR, and the Special ADR Rules, when DFA directly

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appealed before this Court the RTC Resolution and Orders

granting assistance in taking evidence.
Same; Same; Same; Same; Deliberative Process Privilege;
This case is one of first impression involving the production of
evidence in an arbitration case where the deliberative process
privilege is invoked.—Considering that this petition was not filed
in accordance with RA 9285, the Special ADR Rules and 1976
UNCITRAL Arbitration Rules, this petition should normally be
denied. However, we have held time and again that the ends of
justice are better served when cases are determined on the merits
after all parties are given full opportunity to ventilate their
causes and defenses rather than on technicality or some
procedural imperfections. More importantly, this case is one of
first impression involving the production of evidence in an
arbitration case where the deliberative process privilege is
invoked.
Constitutional Law; Right to Information; This right to
information has certain limitations and does not cover privileged
information to protect the independence of decision-making by the
government.—Contrary to the RTC’s ruling, there is nothing in
our Chavez v. Public Estates Authority, 384 SCRA 152 (2002),
ruling which states that once a “definite proposition” is reached by
an agency, the privileged character of a document no longer
exists. On the other hand, we hold that before a “definite
proposition” is reached by an agency, there are no “official acts,
transactions, or decisions” yet which can be accessed by the public
under the right to information. Only when there is an official
recommendation can a “definite proposition” arise and,
accordingly, the public’s right to information attaches. However,
this right to information has certain limitations and does not
cover privileged information to protect the independence of
decision-making by the government.
Same; Same; Privileged Information; Chavez v. Public Estates
Authority, 384 SCRA 152 (2002), expressly and unequivocally
states that the right to information “should not cover recognized
exceptions like privileged information, military and diplomatic
secrets and similar matters affecting national security and public
order.”—Chavez v. Public Estates Authority, 384 SCRA 152
(2002), expressly and unequivocally states that the right to
information “should not cover recognized exceptions like

privileged information,

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military and diplomatic secrets and similar matters affecting

national security and public order.” Clearly, Chavez v. Public
Estates Authority expressly mandates that “privileged
information” should be outside the scope of the constitutional
right to information, just like military and diplomatic secrets and
similar matters affecting national security and public order. In
these exceptional cases, even the occurrence of a “definite
proposition” will not give rise to the public’s right to information.
Same; Same; Deliberative Process Privilege; The deliberative
process privilege applies if its purpose is served, that is, “to protect
the frank exchange of ideas and opinions critical to the
government’s decision[-]making process where disclosure would
discourage such discussion in the future.”—The privileged
character of the information does not end when an agency has
adopted a definite proposition or when a contract has been
perfected or consummated; otherwise, the purpose of the privilege
will be defeated. The deliberative process privilege applies if its
purpose is served, that is, “to protect the frank exchange of ideas
and opinions critical to the government’s decision[-]
making process where disclosure would discourage such
discussion in the future.” In Judicial Watch of Florida v.
Department of Justice, 102 F. Supp. 2d 6 (2000), the U.S. District
Court for the District of Columbia held that the deliberative
process privilege’s “ultimate purpose x x x is to prevent injury to
the quality of agency decisions by allowing government officials
freedom to debate alternative approaches in private,” and this
ultimate purpose would not be served equally well by making the
privilege temporary or held to have expired. In Gwich’in Steering
Comm. v. Office of the Governor, 10 P. 3d 572 (2002), the Supreme
Court of Alaska held that communications have not lost the
privilege even when the decision that the documents preceded is
finally made. The Supreme Court of Alaska held that “the
question is not whether the decision has been implemented, or
whether sufficient time has passed, but whether disclosure of
these preliminary proposals could harm the agency’s future
decision[-]making by chilling either the submission of such

proposals or their forthright consideration.”
Same; Same; Same; Deliberative process privilege contains
three (3) policy bases: first, the privilege protects candid
discussions within an agency; second, it prevents public confusion
from premature disclosure of agency opinions before the agency
establishes final

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policy; and third, it protects the integrity of an agency’s

decision; the public should not judge officials based on information
they considered prior to issuing their final decisions.—The
deliberative process privilege can also be invoked in arbitration
proceedings under RA No. 9285. “Deliberative process privilege
contains three (3) policy bases: first, the privilege protects candid
discussions within an agency; second, it prevents public confusion
from premature disclosure of agency opinions before the agency
establishes final policy; and third, it protects the integrity of an
agency’s decision; the public should not judge officials based on
information they considered prior to issuing their final decisions.”
Stated differently, the privilege serves “to assure that
subordinates within an agency will feel free to provide the
decision[-]maker with their uninhibited opinions and
recommendations without fear of later being subject to public
ridicule or criticism; to protect against premature disclosure of
proposed policies before they have been finally formulated or
adopted; and to protect against confusing the issues and
misleading the public by dissemination of documents suggesting
reasons and rationales for a course of action which were not in
fact the ultimate reasons for the agency’s action.”
Same; Same; Same; If an official is compelled to testify before
an arbitral tribunal and the order of an arbitral tribunal is
appealed to the courts, such official can be inhibited by fear of
later being subject to public criticism, preventing such official from
making candid discussions within his or her agency.—Under RA
9285, orders of an arbitral tribunal are appealable to the courts. If
an official is compelled to testify before an arbitral tribunal and
the order of an arbitral tribunal is appealed to the courts, such
official can be inhibited by fear of later being subject to public
criticism, preventing such official from making candid discussions

within his or her agency. The decision of the court is widely
published, including details involving the privileged information.
This disclosure of privileged information can inhibit a public
official from expressing his or her candid opinion. Future quality
of deliberative process can be impaired by undue exposure of the
decision-making process to public scrutiny after the court decision
is made.
Same; Same; Same; A party can disclose privileged
information in its possession, even without the consent of the other
party, if the disclosure is to a tribunal. However, a party cannot be
compelled by

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the other party to disclose privileged information to the

tribunal, where such privileged information is in its possession
and not in the possession of the party seeking the compulsory
disclosure.—Section 20.03 merely allows a party, if it
chooses, without the consent of the other party, to disclose
to the tribunal privileged information in such disclosing
party’s possession. In short, a party can disclose privileged
information in its possession, even without the consent of
the other party, if the disclosure is to a tribunal. However,
a party cannot be compelled by the other party to disclose
privileged information to the tribunal, where such
privileged information is in its possession and not in the
possession of the party seeking the compulsory disclosure.
Nothing in Section 20.03 mandates compulsory disclosure of
privileged information. Section 20.03 merely states that “the
restrictions imposed in Section 20.02,” referring to the “consent of
the other party,” shall not apply to a disclosure of privileged
information by a party in possession of a privileged information.
This is completely different from compelling a party to disclose
privileged information in its possession against its own will.
Same; Same; Same; As a qualified privilege, the burden falls
upon the government agency asserting the deliberative process
privilege to prove that the information in question satisfies both
requirements — predecisional and deliberative.—As a qualified
privilege, the burden falls upon the government agency asserting
the deliberative process privilege to prove that the information in

question satisfies both requirements — predecisional and
deliberative. “The agency bears the burden of establishing the
character of the decision, the deliberative process involved, and
the role played by the documents in the course of that process.” It
may be overcome upon a showing that the discoverant’s interests
in disclosure of the materials outweigh the government’s interests
in their confidentiality. “The determination of need must be made
flexibly on a case-by-case, ad hoc basis,” and the “factors relevant
to this balancing include: the relevance of the evidence, whether
there is reason to believe the documents may shed light on
government misconduct, whether the information sought is
available from other sources and can be obtained without
compromising the government’s deliberative processes, and the
importance of the material to the discoverant’s case.”

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LEONEN, J., Separate Concurring Opinion:

Arbitration; UNCITRAL Arbitration Rules; View that Article
33(1) of the 1976 United Nations Commission on International
Trade Law (UNCITRAL) Arbitration Rules mandates that the
arbitration tribunal shall apply the law designated by the parties.
If the parties fail to designate the applicable law, the applicable
law shall be that which is determined by the conflict of laws.—
Article 33(1) of the 1976 UNCITRAL Arbitration Rules mandates
that the arbitration tribunal shall apply the law designated by the
parties. If the parties fail to designate the applicable law, the
applicable law shall be that which is determined by the conflict of
laws.
Same; View that since both parties are Filipino and did not
designate the applicable law in the Agreement dated April 5, 2002,
the applicable law is The Arbitration Law [Republic Act (RA) No.
876].—Since both parties are Filipino and did not designate the
applicable law in the Agreement dated April 5, 2002, the
applicable law is Republic Act No. 876. Section 14 of Republic Act
No. 876 allows the arbitrators to issue subpoenas at any time
before the issuance of the award: SEC. 14. Subpoena and
subpoena duces tecum.—Arbitrators shall have the power to
require any person to attend a hearing as a witness. They shall

have the power to subpoena witnesses and documents when the
relevancy of the testimony and the materiality thereof has been
demonstrated to the arbitrators. Arbitrators may also require the
retirement of any witness during the testimony of any other
witness. All of the arbitrators appointed in any controversy must
attend all the hearings in that matter and hear all the allegations
and proofs of the parties; but an award by the majority of them is
valid unless the concurrence of all of them is expressly required in
the submission or contract to arbitrate. The arbitrator or
arbitrators shall have the power at any time, before rendering the
award, without prejudice to the rights of any party to petition the
court to take measures to safeguard and/or conserve any matter
which is the subject of the dispute in arbitration. Republic Act No.
9285, its Implementing Rules and Regulations, and the Special
Rules on Alternative Dispute Resolution may also apply since
these are procedural laws that may be applied retroactively.
Constitutional Law; Right to Information; View that the right
to information is not absolute and is “subject to limitations as may
be

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provided by law.” One of the limitations imposed on the right

to information is that of executive privilege.—The right to
information is not absolute and is “subject to limitations as may
be provided by law.” One of the limitations imposed on the right
to information is that of executive privilege.
Same; Same; Executive Privilege; Words and Phrases; View
that executive privilege has been defined as “the power of the
Government to withhold information from the public, the courts,
and the Congress” or “the right of the President and high-level
executive branch officers to withhold information from Congress,
the courts, and ultimately the public.”—Executive privilege has
been defined as “the power of the Government to withhold
information from the public, the courts, and the Congress” or “the
right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately
the public.” Executive privilege has been further defined in Neri v.
Senate Committee on Accountability of Public Officers and
Investigations, et al., 549 SCRA 77 (2008), to encompass two (2)

kinds of privileged information: (1) presidential communications
privilege and (2) deliberative process privilege. Thus: [T]here are
two (2) kinds of executive privilege: one is the presidential
communications privilege, and the other is the deliberative
process privilege. The former pertains to “communications,
documents or other materials that reflect presidential decision-
making and deliberations and that the President believes should
remain confidential.” The latter includes “advisory opinions,
recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated.”
Accordingly, they are characterized by marked distinctions.
Presidential communications privilege applies to decision-making
of the President while, the deliberative process privilege, to
decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President’s
unique constitutional role; the second on common law privilege.
Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their entirety,
and covers final and post-decisional materials as well as pre-
deliberative ones. As a consequence, congressional or judicial
negation of the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative process
privilege.

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Same; Same; Same; View that unlike state secrets, the purpose
of the privilege is not for the protection of national security. The
purpose is to protect the free exchange of ideas between those
tasked with decision-making in the executive branch and to
prevent public confusion before an agency has adopted a final
policy decision.—Unlike state secrets, the purpose of the privilege
is not for the protection of national security. The purpose is to
protect the free exchange of ideas between those tasked with
decision-making in the executive branch and to prevent public
confusion before an agency has adopted a final policy decision:
Courts have identified three purposes in support of the privilege:
(1) it protects candid discussions within an agency; (2) it prevents
public confusion from premature disclosure of agency opinions
before the agency establishes final policy; and (3) it protects the
integrity of an agency’s decision; the public should not judge

officials based on information they considered prior to issuing
their final decisions. For the privilege to be validly asserted, the
material must be predecisional and deliberative.
Same; Same; View that information is predecisional if no final
decision has been made. On the other hand, information is
deliberative if it exposes the decision-making process of the agency.
—Information is predecisional if no final decision has been made.
On the other hand, information is deliberative if it exposes the
decision-making process of the agency: A document is
“predecisional” under the deliberative process privilege if it
precedes, in temporal sequence, the decision to which it relates. In
other words, communications are considered predecisional if they
were made in the attempt to reach a final conclusion. A material
is “deliberative,” on the other hand, if it reflects the give-and-take
of the consultative process. The key question in determining
whether the material is deliberative in nature is whether
disclosure of the information would discourage candid discussion
within the agency. If the disclosure of the information would
expose the government’s decision-making process in a way that
discourages candid discussion among the decision-makers
(thereby undermining the courts’ ability to perform their
functions), the information is deemed privileged.
Same; Same; Deliberative Process Privilege; Words and
Phrases; View that the deliberative process privilege is a privilege
that an officer of an executive department may invoke to prevent
public disclosure of any information that may compromise its deci-

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sion-making capability.—The deliberative process privilege is

a privilege that an officer of an executive department may invoke
to prevent public disclosure of any information that may
compromise its decision-making capability. Its purpose “rests
most fundamentally on the belief that where agencies forced to
operate in a fishbowl, frank exchange of ideas and opinions would
cease and the quality of administrative decisions would
consequently suffer.” This is to prevent subjecting an agency’s
decision-making process to public opinion before any definite
policy action has been made. Thus, the privilege may lose its
purpose when the disclosure is not to the public. Here, the

Department of Foreign Affairs opposed the disclosure of
information to the Ad Hoc Tribunal by invoking the privilege, but
the proceedings of the Ad Hoc Tribunal are not made public.
Republic Act No. 9285 requires confidentiality in all arbitration
proceedings.
PETITION for review on certiorari of the orders and

resolution of the Regional Trial Court of Makati City,
Br. 146.
The facts are stated in the opinion of the Court.
Office of the Solicitor General for petitioner.
Castillo, Laman, Tan, Pantaleon & San Jose for
respondent.
CARPIO, J.:

The Case

This petition for review1 assails the Orders dated 11
October 20132 and 8 January 2014,3 as well as the
Resolution dated 2 September 2013,4 of the Regional Trial
Court of Makati City (RTC), Branch 146, in S.P. PROC. No.
M-7458.
_______________
1 Rollo, pp. 17-45. Under Rule 45 of the 1997 Rules of Civil Procedure.
2 Id., at pp. 46-49. Penned by Presiding Judge Encarnacion Jaja G.
Moya.
3 Id., at p. 50.
4 Id., at pp. 51-56.

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The Facts

In an Amended Build-Operate-Transfer Agreement
dated 5 April 2002 (Agreement), petitioner Department of
Foreign Affairs (DFA) awarded the Machine Readable
Passport and Visa Project (MRP/V Project) to respondent
BCA International Corporation (BCA), a domestic

corporation. During the implementation of the MRP/V
Project, DFA sought to terminate the Agreement. However,
BCA opposed the termination and filed a Request for
Arbitration, according to the provision in the Agreement:
Section 19.02. Failure to Settle Amicably.—If the Dispute

cannot be settled amicably within ninety (90) days by mutual
discussion as contemplated under Section 19.01 herein, the
Dispute shall be settled with finality by an arbitrage tribunal
operating under International Law, hereinafter referred to as the
“Tribunal,” under the UNCITRAL Arbitration Rules
contained in Resolution 31/98 adopted by the United
Nations General Assembly on December 15, 1976, and
entitled “Arbitration Rules on the United Nations Commission on
the International Trade Law.” The DFA and the BCA undertake
to abide by and implement the arbitration award. The place of
arbitration shall be Pasay City, Philippines, or such other place as
may be mutually agreed upon by both parties. The arbitration
proceeding shall be conducted in the English language.5
(Emphasis supplied)

On 29 June 2009, an ad hoc arbitral tribunal6 was
constituted. In an Order dated 15 April 2013,7 the arbitral
tribunal approved BCA’s request to apply in court for the
issuance of subpoena, subject to the conditions that the
application will
_______________
5 Id., at p. 264.
6 Composed of Atty. Danilo L. Concepcion as chairman, and Dean
Custodio O. Parlade and Atty. Antonio P. Jamon, as members.
7 Rollo, pp. 83-84.

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not affect its proceedings and the hearing set in October

2013 will proceed whether the witnesses attend or not.
On 16 May 2013, BCA filed before the RTC a Petition for
Assistance in Taking Evidence8 pursuant to the
Implementing Rules and Regulations (IRR) of “The

Alternative Dispute Resolution Act of 2004,” or Republic
Act No. 9285 (RA 9285). In its petition, BCA sought the
issuance of subpoena ad testificandum and subpoena duces
tecum to the following witnesses and documents in their
custody:9
_______________
8 Id., at pp. 68-80.

9 Id., at pp. 72-77.

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On 1 July 2013, DFA filed its comment, alleging that the

presentation of the witnesses and documents was
prohibited by law and protected by the deliberative process
privilege.

The RTC’s Ruling

In a Resolution dated 2 September 2013, the RTC ruled
in favor of BCA and held that the evidence sought to be
produced was no longer covered by the deliberative process
privilege. According to the RTC, the Court held in Chavez
v. Public Estates Authority10 that acts, transactions or

decisions are privileged only before a definite proposition is
reached by the agency and since DFA already made a
definite proposition and entered into a contract, DFA’s acts,
transactions or decisions were no longer privileged.11
The dispositive portion of the RTC Resolution reads:
WHEREFORE, the petition is granted. Let subpoena ad

testificandum [and subpoena] duces tecum be issued to the
persons listed in paragraph 11 of the Petition for them to appear
and bring the documents specified in paragraph 12 thereof, before
the Ad Hoc Tribunal for the hearings on October 14, 15, 16, 17,
2013 at 9:00 a.m. and 2:00 p.m. at the Malcolm Hall, University of
the Philippines, Diliman, Quezon City.12
On 6 September 2013, the RTC issued the subpoena

duces tecum and subpoena ad testificandum. On 12
September 2013, DFA filed a motion to quash the subpoena
duces tecum and subpoena ad testificandum, which BCA
opposed.
In an Order dated 11 October 2013, the RTC denied the
motion to quash and held that the motion was actually a
motion for reconsideration, which is prohibited under Rule
9.9
_______________
10 433 Phil. 506; 384 SCRA 152 (2002).

11 Rollo, pp. 54-55.
12 Id., at p. 55.

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of the Special Rules of Court on Alternative Dispute

Resolution (Special ADR Rules).
On 14, 16, and 17 October 2013, Undersecretary
Franklin M. Ebdalin (Usec. Ebdalin), Atty. Voltaire
Mauricio (Atty. Mauricio), and Luisito Ucab (Mr. Ucab)
testified before the arbitral tribunal pursuant to the
subpoena.
In an Order dated 8 January 2014, the RTC denied the

motion for reconsideration filed by DFA. The RTC ruled
that the motion became moot with the appearance of the
witnesses during the arbitration hearings. Hence, DFA
filed this petition with an urgent prayer for the issuance of
a temporary restraining order and/or a writ of preliminary
injunction.
In a Resolution dated 2 April 2014, the Court issued a
temporary restraining order enjoining the arbitral tribunal
from taking cognizance of the testimonies of Usec. Ebdalin,
Atty. Mauricio, and Mr. Ucab.

The Issues

DFA raises the following issues in this petition: (1) the
1976 UNCITRAL Arbitration Rules and the Rules of Court
apply to the present arbitration proceedings, not RA 9285
and the Special ADR Rules; and (2) the witnesses
presented during the 14, 16, and 17 October 2013 hearings
before the ad hoc arbitral tribunal are prohibited from
disclosing information on the basis of the deliberative
process privilege.

The Ruling of the Court

We partially grant the petition.
Arbitration is deemed a special proceeding13 and
governed by the special provisions of RA 9285, its IRR, and
the Special
_______________
13 The Arbitration Law or Republic Act No. 876, Section 22; Special
ADR Rules, Rule 1.2.

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ADR Rules.14 RA 9285 is the general law applicable to

all matters and controversies to be resolved through
alternative dispute resolution methods.15 While enacted
only in 2004, we held that RA 9285 applies to pending
arbitration proceedings since it is a procedural law, which

has retroactive effect:
While RA 9285 was passed only in 2004, it nonetheless

applies in the instant case since it is a procedural law
which has a retroactive effect. Likewise, KOGIES filed its
application for arbitration before the KCAB on July 1, 1998 and it
is still pending because no arbitral award has yet been rendered.
Thus, RA 9285 is applicable to the instant case. Wellsettled is the
rule that procedural laws are construed to be applicable to actions
pending and undetermined at the time of their passage, and are
deemed retroactive in that sense and to that extent. As a general
rule, the retroactive application of procedural laws does
not violate any personal rights because no vested right has
yet attached nor arisen from them.16 (Emphasis supplied)
The IRR of RA 9285 reiterate that RA 9285 is procedural

in character and applicable to all pending arbitration
proceedings.17 Consistent with Article 2046 of the Civil
Code,18 the Special ADR Rules were formulated and were
also applied to all pending arbitration proceedings covered
by RA 9285, pro-
_______________
14 Rules of Court, Rule 72, Section 2, provides: “In the absence of

special provisions, the rules provided for in ordinary actions shall be, as
far as practicable, applicable in special proceedings.”
15 Department of Foreign Affairs v. Falcon, 644 Phil. 105; 629 SCRA
644 (2010).
16 Korea Technologies Co., Ltd. v. Lerma, 566 Phil. 1, 27; 542 SCRA 1,
24-25 (2008).
17 IRR of RA No. 9285, Article 8.4.
18 Civil Code, Article 2046: “The appointment of arbitrators and the
procedure for arbitration shall be governed by the provisions of such rules
of court as the Supreme Court shall promulgate.”

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vided no vested rights are impaired.19 Thus, contrary to

DFA’s contention, RA 9285, its IRR, and the Special ADR
Rules are applicable to the present arbitration proceeding.

The arbitration between the DFA and BCA is still pending,
since no arbitral award has yet been rendered. Moreover,
DFA did not allege any vested rights impaired by the
application of those procedural rules.
RA 9285, its IRR, and the Special ADR Rules provide
that any party to an arbitration, whether domestic or
foreign, may request the court to provide assistance in
taking evidence such as the issuance of subpoena ad
testificandum and subpoena duces tecum.20 The Special
ADR Rules specifically provide that they shall apply to
assistance in taking evidence,21 and the RTC order
granting assistance in taking evidence shall be
immediately executory and not subject to reconsideration
or appeal.22 An appeal with the Court of Appeals (CA) is
only possible where the RTC denied a petition for
assistance in taking evidence.23 An appeal to the Supreme
Court from the CA is allowed only under any of the
grounds specified in the Special ADR Rules.24 We rule that
the DFA failed to follow the procedure and the hierarchy of
courts provided in RA 9285, its IRR, and the Special ADR
Rules, when DFA directly appealed before this Court the
RTC Resolution and Orders granting assistance in taking
evidence.
_______________
19 Special ADR Rules, Rule 24.1: “Considering its procedural

character, the Special ADR Rules shall be applicable to all pending
arbitration, mediation or other ADR forms covered by the ADR Act, unless
the parties agree otherwise. The Special ADR Rules, however, may not
prejudice or impair vested rights in accordance with law.”
20 IRR of RA No. 9285, Rules 4.27 and 5.27; Special ADR Rules, Rules
9.1 and 9.5.
21 Special ADR Rules, Rule 1.1(g).
22 Special ADR Rules, Rules 9.9 and 19.1.

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DFA contends that the RTC issued the subpoenas on the

premise that RA 9285 and the Special ADR Rules apply to
this case. However, we find that even without applying RA
9285 and the Special ADR Rules, the RTC still has the
authority to issue the subpoenas to assist the parties in
taking evidence.
The 1976 UNCITRAL Arbitration Rules, agreed upon by
the parties to govern them, state that the “arbitral tribunal
shall apply the law designated by the parties as applicable
to the substance of the dispute. Failing such designation by
the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers
applicable.”25 Established in this jurisdiction is the rule
that the law of the place where the contract is made
governs, or lex loci contractus.26 Since there is no law
designated by the parties as applicable and the Agreement
was perfected in the Philippines, “The Arbitration Law,” or
Republic Act No. 876 (RA 876), applies.
RA 876 empowered arbitrators to subpoena witnesses
and documents when the materiality of the testimony has
been demonstrated to them.27 In Transfield Philippines,
Inc. v. Luzon Hydro Corporation,28 we held that Section 14
of RA 876 recognizes the right of any party to petition the
court to take measures to safeguard and/or conserve any
matter which is the subject of the dispute in arbitration.
Considering that this petition was not filed in
accordance with RA 9285, the Special ADR Rules and 1976
UNCITRAL Arbitration Rules, this petition should
normally be denied. However, we have held time and again
that the ends of justice are better served when cases are
determined on the merits after all parties are given full
opportunity to ventilate their
_______________
25 Article 33(1) of the 1976 UNCITRAL Arbitration Rules.

26 Supra note 16.
27 Section 14 of RA No. 876.
28 523 Phil. 374; 490 SCRA 14 (2006).

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causes and defenses rather than on technicality or some

procedural imperfections.29 More importantly, this case is
one of first impression involving the production of evidence
in an arbitration case where the deliberative process
privilege is invoked.
Thus, DFA insists that we determine whether the
evidence sought to be subpoenaed is covered by the
deliberative process privilege. DFA contends that the RTC
erred in holding that the deliberative process privilege is no
longer applicable in this case. According to the RTC, based
on Chavez v. Public Estates Authority,30 “acts, transactions
or decisions are privileged only before a definite proposition
is reached by the agency,” and since, in this case, DFA not
only made “a definite proposition” but already entered into
a contract then the evidence sought to be produced is no
longer privileged.31
Information, however, on ongoing evaluation or review of bids

or proposals being undertaken by the bidding or review committee
is not immediately accessible under the right to information.
While the evaluation or review is still ongoing, there are no
“official acts, transactions, or decisions” on the bids or proposals.
However, once the committee makes its official recommendation,
there arises a “definite proposition” on the part of the government.
From this moment, the public’s right to information attaches, and
any citizen can access all the non-proprietary information leading
to such definite proposition.
x x x x
_______________
29 Supra note 15, citing Ateneo de Naga University v. Manalo, 497

Phil. 635; 458 SCRA 325 (2005).
30 Chavez v. Public Estates Authority, supra note 10.
31 Rollo, pp. 54-55.
We have held in Chavez v. Public Estates Authority32 that:
32 Chavez v. Public Estates Authority, supra note 10 at pp. 531-532,
534; pp. 186, 188-189.

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The right to information, however, does not extend to matters

recognized as privileged information under the separation of
powers. The right does not also apply to information on military
and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement
agencies before the prosecution of the accused, which courts have
long recognized as confidential. The right may also be subject to
other limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential
conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal deliberations of the
Supreme Court and other collegiate courts, or executive sessions
of either house of Congress, are recognized as confidential. This
kind of information cannot be pried open by a coequal branch of
government. 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. This
is not the situation in the instant case.
We rule, therefore, that the constitutional right to information
includes official information on ongoing negotiations before a
final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized
order. Congress has also prescribed other limitations on the right
to information in several legislations. (Emphasis supplied)

Contrary to the RTC’s ruling, there is nothing in our
Chavez v. Public Estates Authority33 ruling which states
that
_______________
29 Supra note 15, citing Ateneo de Naga University v. Manalo, 497

Phil. 635; 458 SCRA 325 (2005).
31 Rollo, pp. 54-55.
We have held in Chavez v. Public Estates Authority32 that:
32 Chavez v. Public Estates Authority, supra note 10 at pp. 531-532,
534; pp. 186, 188-189.
33 Id.

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once a “definite proposition” is reached by an agency, the

privileged character of a document no longer exists. On the
other hand, we hold that before a “definite proposition” is
reached by an agency, there are no “official acts,
transactions, or decisions” yet which can be accessed by the
public under the right to information. Only when there is
an official recommendation can a “definite proposition”
arise and, accordingly, the public’s right to information
attaches. However, this right to information has certain
limitations and does not cover privileged information
to protect the independence of decision-making by the
government.
Chavez v. Public Estates Authority34 expressly and
unequivocally states that the right to information “should
not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar
matters affecting national security and public order.”
Clearly, Chavez v. Public Estates Authority35 expressly
mandates that “privileged information” should be
outside the scope of the constitutional right to information,
just like military and diplomatic secrets and similar
matters affecting national security and public order. In
these exceptional cases, even the occurrence of a “definite
proposition” will not give rise to the public’s right to
information.
Deliberative process privilege is one kind of
privileged information, which is within the
exceptions of the constitutional right to information.
In In Re: Production of Court Records and Documents and
the Attendance of Court Officials and Employees as
Witnesses,36 we held that:
_______________
34 Id.
35 Id.
36 In Re: Production of Court Records and Documents and the
Attendance of Court Officials and Employees as Witnesses under the
Subpoenas of February 10, 2012 and the Various Letters for the
Impeachment Prosecution Panel Dated January 19 and 25, 2012, 14
February 2012 (unsigned Resolution).

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Court deliberations are traditionally recognized as

privileged communication. Section 2, Rule 10 of the IRSC
provides:
Section 2. Confidentiality of court sessions.—Court sessions
are executive in character, with only the Members of the Court
present. Court deliberations are confidential and shall not be
disclosed to outside parties, except as may be provided herein or
as authorized by the Court.
Justice Abad discussed the rationale for the rule in his
concurring opinion to the Court Resolution in Arroyo v. De Lima
(TRO on Watch List Order case): the rules on confidentiality will
enable the Members of the Court to “freely discuss the issues
without fear of criticism for holding unpopular positions” or fear
of humiliation for one’s comments. The privilege against
disclosure of these kinds of information/communication is
known as deliberative process privilege, involving as it
does the deliberative process of reaching a decision.
“Written advice from a variety of individuals is an important
element of the government’s decision-making process and that the
interchange of advice could be stifled if courts forced the
government to disclose those recommendations”; the privilege is
intended “to prevent the ‘chilling’ of deliberative
communications.”
The privilege is not exclusive to the Judiciary. We have in
passing recognized the claim of this privilege by the two other
branches of government in Chavez v. Public Estates Authority
(speaking through J. Carpio) when the Court declared that —
[t]he information x x x like internal deliberations of the
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. (Emphasis supplied)

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In Akbayan Citizens Action Party (“Akbayan”) v.

Aquino,37 we adopted the ruling of the U.S. Supreme Court
in NLRB v. Sears, Roebuck & Co,38 which stated that the
deliberative process privilege protects from disclosure
“advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental
decisions and policies are formulated.” We explained that
“[w]ritten advice from a variety of individuals is an
important element of the government’s decision-making
process and that the interchange of advice could be stifled
if courts forced the government to disclose those
recommendations”; thus, the privilege is intended “to
prevent the ‘chilling’ of deliberative communications.”39
The privileged character of the information does not end
when an agency has adopted a definite proposition or when
a contract has been perfected or consummated; otherwise,
the purpose of the privilege will be defeated.
The deliberative process privilege applies if its purpose
is served, that is, “to protect the frank exchange of ideas
and opinions critical to the government’s decision[-]making
process where disclosure would discourage such discussion
in the future.”40 In Judicial Watch of Florida v. Department
of Justice,41 the U.S. District Court for the District of
Columbia held that the deliberative process privilege’s
“ultimate purpose x x x is to prevent injury to the quality of
agency decisions by allowing government officials freedom
to debate alternative approaches in private,” and this
ultimate purpose would not be served equally well by
making the privilege temporary or held to have expired. In
Gwich’in Steering Comm. v. Office of the Governor,42 the
Supreme Court of Alaska held that com-
_______________
37 580 Phil. 422; 558 SCRA 468 (2008).

38 421 U.S. 132 (1975).
39 Supra note 36.
40 Vandelay Entm’t, LLC v. Fallin, 2014 OK 109 (16 December 2014);
City of Colorado Springs v. White, 967 P.2d 1042 (1998).
41 102 F. Supp. 2d 6 (2000).
42 10 P.3d 572 (2002).

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munications have not lost the privilege even when the

decision that the documents preceded is finally made. The
Supreme Court of Alaska held that “the question is not
whether the decision has been implemented, or whether
sufficient time has passed, but whether disclosure of these
preliminary proposals could harm the agency’s future
decision[-]making by chilling either the submission of such
proposals or their forthright consideration.”
Traditionally, U.S. courts have established two
fundamental requirements, both of which must be met, for
the deliberative process privilege to be invoked.43 First, the
communication must be predecisional, i.e., “antecedent to
the adoption of an agency policy.” Second, the
communication must be deliberative, i.e., “a direct part of
the deliberative process in that it makes recommendations
or expresses opinions on legal or policy matters.” It must
reflect the “give-and-take of the consultative process.”44
The Supreme Court of Colorado also took into account
other considerations:
Courts have also looked to other considerations in assessing

whether material is predecisional and deliberative. The function
and significance of the document in the agency’s decision-making
process are relevant. Documents representing the ideas and
theories that go into the making of policy, which are privileged,
should be distinguished from “binding agency opinions and
interpreta-
_______________
43 Pacific Coast Shellfish Growers Association v. United States Army

Corps of Engineers, 2016 U.S. Dist. LEXIS 68814 (W.D. Wash. 24 May
2016); Judicial Watch, Inc. v. Department of Justice, 306 F. Supp. 2d 58
(D.D.C. 2004); Gwich’in Steering Comm. v. Office of the Governor, supra
note 42; Judicial Watch of Florida v. Department of Justice, supra note 41;
City of Colorado Springs v. White, supra note 40; Judicial Watch v.
Clinton, 880 F. Supp. 1 (D.D.C.1995); Strang v. Collyer, 710 F. Supp. 9
(D.D.C. 1989); Fulbright & Jaworski v. Dep’t of the Treasury, 545 F. Supp.
615 (D.D.C. 1982).
44 Id.

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tions” that are “retained and referred to as precedent” and

constitute the policy itself.
Furthermore, courts examine the identity and decision-making
authority of the office or person issuing the material. A document
from a subordinate to a superior official is more likely to be
predecisional, “while a document moving in the opposite direction
is more likely to contain instructions to staff explaining the
reasons for a decision already made.”
Finally, in addition to assessing whether the material is
predecisional and deliberative, and in order to determine if
disclosure of the material is likely to adversely affect the purposes
of the privilege, courts inquire whether “the document is so candid
or personal in nature that public disclosure is likely in the future
to stifle honest and frank communication within the agency.” As a
consequence, the deliberative process privilege typically
covers recommendations, advisory opinions, draft
documents, proposals, suggestions, and other subjective
documents that reflect the personal opinions of the writer
rather than the policy of the agency.45 (Emphasis supplied)

Thus, “[t]he deliberative process privilege exempts
materials that are ‘predecisional’ and ‘deliberative,’ but
requires disclosure of policy statements and final opinions
‘that have the force of law or explain actions that an agency
has already taken.’”46
In City of Colorado Springs v. White,47 the Supreme
Court of Colorado held that the outside consultant’s
evaluation report of working environment and policies was
covered by the deliberative process privilege because the
report contained observations on current atmosphere and
suggestions on how to improve the division rather than an
expression of
_______________
45 City of Colorado Springs v. White, supra note 40.
46 Fulbright & Jaworski v. Dep’t. of Treasury, supra note 43.


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final agency decision. In Strang v. Collyer,48 the U.S.

District Court for the District of Columbia held that the
meeting notes that reflect the exchange of opinions
between agency personnel or divisions of agency are
covered by the deliberative process privilege because they
“reflect the agency’s group thinking in the process of
working out its policy” and are part of the deliberative
process in arriving at the final position. In Judicial Watch
v. Clinton,49 the U.S. District Court for the District of
Columbia held that handwritten notes reflecting
preliminary thoughts of agency personnel were properly
withheld under the deliberative process privilege. The U.S.
District Court reasoned that “disclosure of this type of
deliberative material inhibits open debate and discussion,
and has a chilling effect on the free exchange of ideas.”
This Court applied the deliberative process privilege in
In Re: Production of Court Records and Documents and the
Attendance of Court Officials and Employees as Witnesses50
and found that court records which are “predecisional” and
“deliberative” in nature — in particular, documents and
other communications which are part of or related to the
deliberative process, i.e., notes, drafts, research papers,
internal discussions, internal memoranda, records of
internal deliberations, and similar papers — are protected
and cannot be the subject of a subpoena if judicial privilege
is to be preserved. We further held that this privilege is not
exclusive to the Judiciary and cited our ruling in Chavez v.
Public Estates Authority.51
The deliberative process privilege can also be invoked in
arbitration proceedings under RA 9285.
“Deliberative process privilege contains three policy
bases: first, the privilege protects candid discussions within
an agency; second, it prevents public confusion from
premature disclo-
_______________
48 Strang v. Collyer, supra note 43.

49 Judicial Watch v. Clinton, supra note 43.
50 Supra note 36.

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sure of agency opinions before the agency establishes

final policy; and third, it protects the integrity of an
agency’s decision; the public should not judge officials
based on information they considered prior to issuing their
final decisions.”52 Stated differently, the privilege serves “to
assure that subordinates within an agency will feel free to
provide the decision[-]maker with their uninhibited
opinions and recommendations without fear of later being
subject to public ridicule or criticism; to protect against
premature disclosure of proposed policies before they have
been finally formulated or adopted; and to protect against
confusing the issues and misleading the public by
dissemination of documents suggesting reasons and
rationales for a course of action which were not in fact the
ultimate reasons for the agency’s action.”53
Under RA 9285,54 orders of an arbitral tribunal are
appealable to the courts. If an official is compelled to testify
before an arbitral tribunal and the order of an arbitral
tribunal is appealed to the courts, such official can be
inhibited by fear of later being subject to public criticism,
preventing such official from making candid discussions
within his or her agency. The decision of the court is widely
published, including details involving the privileged
information. This disclosure of privileged information can
inhibit a public official from expressing his or her candid
opinion. Future quality of deliberative proc-
_______________

53 Judicial Watch v. Clinton, supra note 43.
54 RA No. 9285, Section 32 provides that: “Domestic arbitration shall
continue to be governed by Republic Act No. 876, otherwise known as ‘The
Arbitration Law’ as amended by this Chapter. x x x.” RA No. 876, Section
29 provides that: “An appeal may be taken from an order made in a

proceeding under this Act, or from a judgment entered upon an award
through certiorari proceedings, but such appeals shall be limited to
questions of law. The proceedings upon such an appeal, including the
judgment thereon shall be governed by the Rules of Court insofar as they
are applicable.”

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ess can be impaired by undue exposure of the decision-

making process to public scrutiny after the court decision is
made.
Accordingly, a proceeding in the arbitral tribunal does
not prevent the possibility of the purpose of the privilege
being defeated, if it is not allowed to be invoked. In the
same manner, the disclosure of an information covered by
the deliberative process privilege to a court arbitrator will
defeat the policy bases and purpose of the privilege.
DFA did not waive the privilege in arbitration
proceedings under the Agreement. The Agreement does not
provide for the waiver of the deliberative process privilege
by DFA. The Agreement only provides that:
Section 20.02. None of the parties shall, at any time, before

or after the expiration or sooner termination of this Amended
BOT Agreement, without the consent of the other party,
divulge or suffer or permit its officers, employees, agents or
contractors to divulge to any person, other than any of its or their
respective officers or employees who require the same to enable
them properly to carry out their duties, any of the contents of
this Amended BOT Agreement or any information relating
to the negotiations concerning the operations, contracts,
commercial or financial arrangements or affair[s] of the
other parties hereto. Documents marked “CONFIDENTIAL” or
the like, providing that such material shall be kept confidential,
and shall constitute prima facie evidence that such information
contained therein is subject to the terms of this provision.
Section 20.03. The restrictions imposed in Section
20.02 herein shall not apply to the disclosure of any
information:
x x x x
C. To a court arbitrator or administrative tribunal the

course of proceedings before it to which the disclosing
party is party. x x x55 (Emphasis supplied)
_______________
55 Rollo, pp. 264-265.

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Section 20.02 of the Agreement merely allows, with the

consent of the other party, disclosure by a party to a
court arbitrator or administrative tribunal of the contents
of the “Amended BOT Agreement or any information
relating to the negotiations concerning the operations,
contracts, commercial or financial arrangements or affair[s]
of the other parties hereto.” There is no express waiver
of information forming part of DFA’s predecisional
deliberative or decision-making process. Section 20.02 does
not state that a party to the arbitration is compelled to
disclose to the tribunal privileged information in such
party’s possession.
On the other hand, Section 20.03 merely allows a
party, if it chooses, without the consent of the other
party, to disclose to the tribunal privileged
information in such disclosing party’s possession. In
short, a party can disclose privileged information in
its possession, even without the consent of the other
party, if the disclosure is to a tribunal. However, a
party cannot be compelled by the other party to
disclose privileged information to the tribunal,
where such privileged information is in its
possession and not in the possession of the party
seeking the compulsory disclosure.
Nothing in Section 20.03 mandates compulsory
disclosure of privileged information. Section 20.03 merely
states that “the restrictions imposed in Section 20.02,”
referring to the “consent of the other party,” shall not apply
to a disclosure of privileged information by a party in
possession of a privileged information. This is completely
different from compelling a party to disclose privileged

information in its possession against its own will.
Rights cannot be waived if it is contrary to law, public
order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by
law.56 There is a
_______________
56 Civil Code, Article 6.

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public policy involved in a claim of deliberative process

privilege — “the policy of open, frank discussion between
subordinate and chief concerning administrative action.”57
Thus, the deliberative process privilege cannot be waived.
As we have held in Akbayan Citizens Action Party
(“Akbayan”) v. Aquino,58 the deliberative process privilege
is closely related to the presidential communications
privilege and protects the public disclosure of information
that can compromise the quality of agency decisions:
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, 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. (Emphasis supplied)
As a qualified privilege, the burden falls upon the

government agency asserting the deliberative process
privilege to prove that the information in question satisfies
both requirements — predecisional and deliberative.59 “The
agency bears the burden of establishing the character of
the decision, the deliberative process involved, and the role

played by the docu-
_______________
57 Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp.

939 (1958).
58 Akbayan Citizens Action Party (“Akbayan”) v. Aquino, supra note 37
at p. 475; pp. 520-521.
59 Vandelay Entm’t, LLC v. Fallin, supra note 40; City of Colorado
Springs v. White, supra note 40.

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ments in the course of that process.”60 It may be

overcome upon a showing that the discoverant’s interests
in disclosure of the materials outweigh the government’s
interests in their confidentiality.61 “The determination of
need must be made flexibly on a case-by-case, ad hoc
basis,” and the “factors relevant to this balancing include:
the relevance of the evidence, whether there is reason to
believe the documents may shed light on government
misconduct, whether the information sought is available
from other sources and can be obtained without
compromising the government’s deliberative processes, and
the importance of the material to the discoverant’s case.”62
In the present case, considering that the RTC erred in
applying our ruling in Chavez v. Public Estates Authority,63
and both BCA’s and DFA’s assertions of subpoena of
evidence and the deliberative process privilege are broad
and lack specificity, we will not be able to determine
whether the evidence sought to be produced is covered by
the deliberative process privilege. The parties are directed
to specify their claims before the RTC and, thereafter, the
RTC shall determine which evidence is covered by the
deliberative process privilege, if there is any, based on the
standards provided in this Decision. It is necessary to
consider the circumstances surrounding the demand for the
evidence to determine whether or not its production is
injurious to the consultative functions of government that
the privilege of nondisclosure protects.
WHEREFORE, we resolve to PARTIALLY GRANT

the petition and REMAND this case to the Regional Trial
Court of Makati City, Branch 146, to determine whether
the documents and records sought to be subpoenaed are
protected by the deliberative process privilege as explained
in this Decision. The Resolution dated 2 April 2014 issuing
a Temporary Restraining Order is superseded by this
Decision.
_______________
60 Strang v. Collyer, supra note 43.

62 Id.

310

Department of Foreign Affairs vs. BCA International Corporation
SO ORDERED.
Brion and Mendoza, JJ., concur.

Del Castillo, J., On Official Leave.
Leonen, J., See Separate Concurring Opinion.

CONCURRING OPINION
LEONEN, J.:

This Petition for Review on Certiorari1 assails the
Resolution2 dated September 2, 2013 and the Orders3 dated
October 11, 2013 and January 8, 2014 of Branch 146 of the
Regional Trial Court of Makati City. The assailed judgments
allowed the issuance of a subpoena duces tecum and subpoena ad
testificandum to compel the officers of the Department of Foreign
Affairs to testify and present documents to the Ad Hoc Arbitral
Tribunal, which was constituted to resolve the issues between the
parties.
On September 29, 2000, the Department of Foreign Affairs
issued a Notice of Award to BCA International Corporation to
undertake its Machine Readable Passport and Visa Project
(Project).4 In compliance with the Notice of Award, BCA
International Corporation incorporated Philippine Passport

Corporation to implement the Project.5 On February 8, 2001, the
Department of Foreign Affairs and Philippine Passport

_______________
1 Rollo, pp. 17-45.

2 Id., at pp. 51-56. The Resolution was penned by Judge
Encarnacion Jaja G. Moya of Branch 146 of the Regional Trial
Court, Makati City.
3 Id., at pp. 46-48 and 50. The Orders were penned by Judge
Encarnacion Jaja G. Moya of Branch 146 of the Regional Trial
Court, Makati City.
4 Id., at p. 86.
5 Id.

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Corporation entered into a Build-Operate-Transfer

Agreement. 6
However, Department of Justice Opinion No. 10 dated March

4, 2002 stated that Philippine Passport Corporation had no
personality to enter into the Build-Operate-Transfer Agreement
since the Project was awarded to BCA International Corporation,
not to Philippine Passport Corporation.7 Thus, the Department of
Foreign Affairs and BCA International Corporation entered into
an Amended Build-Operate- Transfer Agreement8 dated April 5,
20029 to replace BCA International Corporation as the party to
the Agreement.10
During the implementation of the Project, dispute
arose11 between the parties. The Department of Foreign Affairs
sought to terminate the BuildOperate-Transfer
12
Agreement. BCA International Corporation opposed the
termination and filed a Request for Arbitration before the
Philippine Dispute Resolution Center, Inc., invoking Section 19.02
of the Agreement:13
Section 19.02. Failure to Settle Amicably.—If the Dispute

cannot be settled amicably within ninety (90) days by mutual
discussion as contemplated under Section 19.01 herein, the
Dispute shall be settled with finality by an arbitrage tribunal

operating under Interna-
_______________
6 Id., at pp. 219-242, Annex 1 of Comment.

7 Id., at p. 193, Comment.
8 Id., at pp. 85-119, Annex G of Petition.
9 Petitioner alleges that the Agreement was dated April 5,
2002 while respondent alleges that it was dated April 2, 2002. The
Agreement is undated but was notarized on April 5, 2002.
10 Rollo, p. 193.
11 Petitioner alleges that respondent was financially
incapable of implementing the Project (id., at p. 19), while
respondent alleges that petitioner committed numerous delays in
the Project’s implementation (id., at pp. 193-194).
12 Ponencia, p. 286.
13 Id.

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tional Law, hereinafter referred to as the “Tribunal,” under the
UNCITRAL Arbitration Rules contained in Resolution 31/98
adopted by the United Nations General Assembly on December
15, 1976, and entitled “Arbitration Rules on the United Nations
Commission on the International Trade Law.” The DFA and the
BCA undertake to abide by and implement the arbitration award.
The place of arbitration shall be Pasay City, Philippines, or such
other place as may mutually be agreed upon by both parties. The
arbitration proceeding shall be conducted in the English
language.14 (Emphasis in the original)
On June 29, 2009, the Ad Hoc Tribunal15 was constituted to
resolve the dispute.16 On April 15, 2013, the Ad Hoc Tribunal
granted BCA International Corporation’s motion to apply for a
subpoena to compel allegedly hostile witnesses.17
On May 15, 2013, BCA International Corporation filed before
Branch 146 of the Regional Trial Court of Makati City a
Petition18 under Article 5.27(a)19 of the Implementing Rules and
Regulations of Republic Act No. 9285.20 The Petition sought the
issuance of a subpoena ad testificandum and a
_______________
14 Rollo, p. 106.
15 Id., at p. 20. The Tribunal was composed of Dean Danilo
Concepcion as Chair, and Dean Custodio O. Parlade and Professor
Antonio P. Jamon as Members.
17 Rollo, p. 20.
18 Id., at pp. 68-82.
19 DOJ Dept. Circ. No. 98 (2009), Art. 5.27(a) provides:
Article 5.27. Court Assistance in Taking Evidence and Other
Matters.—(a) The arbitral tribunal or a party, with the approval
of the arbitral tribunal may request from a court, assistance in
taking evidence such as the issuance of subpoena ad
testificandum and subpoena duces tecum, deposition taking, site
or ocular inspection, and physical examination of properties. The
court may grant the request within its competence and according
to its rules on taking evidence.
20 Alternative Dispute Resolution Act of 2004 (2004).

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Corporation
subpoena duces tecum to the following witnesses and the

documents within their custody:21
_______________

314


315
VOL. 795, JUNE 29, 2016 315

316


317
VOL. 795, JUNE 29, 2016 317

_______________
23 Id., at pp. 287-291.

318

In its Comment23 dated July 1, 2013, the Department of

Foreign Affairs alleged that the information sought from the
proposed witnesses and documents were protected by the
deliberative process privilege.24
On September 2, 2013, the Regional Trial Court issued the
Resolution25 granting the Petition pursuant to Rule 9.826 of the
Special Rules of Court on Alternative Dispute Resolution.27 The
trial court held that the information sought to be produced was no
longer protected by the deliberative process privilege.28 Citing
Chavez v. Public Estates Authority,29 it found that the
Department of Foreign Affairs not only made a definite
proposition but had already entered into a contract.30 Thus, any
evidence sought to be produced was no longer covered under the

privilege.31
On September 6, 2013, the trial court issued a subpoena duces
tecum and a subpoena ad testificandum ordering the persons
listed in the Petition to appear and bring the required documents
before the Ad Hoc Tribunal on October 14, 15, 16, and 17,
2013.32 On September 12, 2013, the Department of Foreign
Affairs filed a Motion to Quash Subpoena Duces Tecum and Ad
Testificandum,33 which was opposed34 by BCA International
Corporation.
_______________
23 Rollo, pp. 134-146.

24 Id., at p. 26.
25 Id., at pp. 51-56.
26 A.M. No. 07-11-08-SC (2009), Rule 9.8 provides:
Rule 9.8. Court action.—If the evidence sought is not
privileged, and is material and relevant, the court shall grant the
assistance in taking evidence requested and shall order petitioner
to pay costs attendant to such assistance.
27 A.M. No. 07-11-08-SC (2009).
28 Rollo, p. 52.
29 433 Phil. 506; 384 SCRA 152 (2002) [Per J. Carpio, En
Banc].
30 Rollo, p. 55.
31 Id.
33 Rollo, pp. 147-165.

319
VOL. 795, JUNE 29, 2016 319

On October 11, 2013, the Regional Trial Court issued the

Order35 denying the Motion to Quash since it was actually a
motion for reconsideration, which was prohibited under Rule
9.936 of the Special Rules of Court on Alternative Dispute Reso-
lution.37 The Department of Foreign Affairs moved for
reconsideration38 of this Order.
On October 14, 15, 16, and 17, 2013, Former Undersecretary of
Foreign Affairs Franklin D. Ebdalin, Project Manager Atty.
Voltaire Mauricio, and Luisito Ubac of the Department of Trade
and Industry testified before the Ad Hoc Tribunal.39 On January
8, 2014, the trial court issued the Order40 denying the
Department of Foreign Affairs’ Motion for Reconsideration on the

ground that the appearance of the witnesses before the Tribunal
rendered the action moot.41
Aggrieved, the Department of Foreign Affairs filed before this
Court a Petition for Review with Urgent Prayer for the Issuance
of a Temporary Restraining Order and/or Writ of Preliminary
Injunction.42 In the Resolution dated April 2, 2014, this Court
issued a temporary restraining order enjoining the Ad Hoc
Tribunal from taking cognizance of the witnesses’ testimonies.43
_______________
34 Id., at pp. 166-177.

35 Id., at pp. 46-48.
Rule 9.9. Relief against court action.—The order granting
assistance in taking evidence shall be immediately executory and
not subject to reconsideration or appeal. If the court declines to
grant assistance in taking evidence, the petitioner may file a
motion for reconsideration or appeal.
37 Rollo, p. 48.
38 Id., at pp. 57-64.
39 Id., at p. 28.
40 Id., at p. 50.
41 Id.
42 Id., at pp. 17-45.

320

The Department of Foreign Affairs argues that the Regional

Trial Court erred in applying the Implementing Rules and
Regulations of Republic Act No. 9285 and the Special Rules of
Court on Alternative Dispute Resolution, considering that both
parties agreed to be bound by the Arbitration Rules on the United
Nations Commission on the International Trade Law (1976
UNCITRAL Arbitration Rules).44 It further argues that the
evidence sought by BCA International Corporation is covered by
the deliberative process privilege.45
BCA International Corporation, on the other hand, argues that
this Court has no jurisdiction to intervene in a private arbitration
under (a) Article 546 of the UNCITRAL Model Law; (b) Article
5.447 of the Implementing Rules and Regulations of Republic Act

No. 9285; and (c) Rule 1.148 of the Special Rules of
_______________
44 Rollo, pp. 29-31.

45 Id., at pp. 32-40.
46 United Nations Commission on International Trade Law, UNCITRAL
Model Law on International Commercial Arbitration (1985), with amendments as
adopted in 2006
<http://www.uncitral.org/uncitral/enluncitral_texts/arbitration/1985
Model_arbitration.html> (visited June 27, 2016). Article 5 provides:
Article 5. Extent of court intervention.—
In matters governed by this Law, no court shall intervene except where so
provided in this Law.
47 DOJ Dept. Circ. No. 98 (2009), Art. 5.4 provides:
Article 5.4. Extent of Court Intervention.—In matters governed by this
Chapter, no court shall intervene except in accordance with the Special ADR
Rules.
Rule 1.1. Subject matter and governing rules.—The Special Rules of
Court on Alternative Dispute Resolution (the “Special ADR Rules”) shall
apply to and govern the following cases:
a. Relief on the issue of Existence, Validity, or Enforceability of the
Arbitration Agreement;
b. Referral to Alternative Dispute Resolution (“ADR”);
c. Interim Measures of Protection;
d. Appointment of Arbitrator;
e. Challenge to Appointment of Arbitrator;

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Court on Alternative Dispute Resolution.49 BCA International

Corporation insists that even if this Court did have jurisdiction,
the evidence sought from the Department of Foreign Affairs
would not be a state secret that, if revealed, would injure the
public interest.50 It argues that in any case, the Department of
Foreign Affairs waived its right to confidentiality pursuant to
Section 20.03 of the Amended Build-Operate-Transfer
Agreement. 51
From the arguments of the parties, the issues for this Court’s
resolution are:
First, which arbitration rules should apply to this case; and
Second, whether the evidence sought by BCA International

Corporation from the Department of Foreign Affairs is covered by
the deliberative process privilege.

I

Both parties stipulated in the Amended Build-Operate-
Transfer Agreement that in case of dispute, the matter shall be
brought to arbitration under the 1976 UNCITRAL Arbitration
Rules, thus:

_______________
f. Termination of Mandate of Arbitrator;

g. Assistance in Taking Evidence;
h. Confirmation, Correction or Vacation of Award in Domestic
Arbitration;
i. Recognition and Enforcement or Setting Aside of an Award in
International Commercial Arbitration;
j. Recognition and Enforcement of a Foreign Arbitral Award;
k. Confidentiality/Protective Orders; and
l. Deposit and Enforcement of Mediated Settlement Agreements.
49 Rollo, pp. 198-211.
50 Id., at p. 212.
51 Id., at p. 213.
322

Section 19.02. Failure to Settle Amicably.—If the Dispute cannot be

settled amicably within ninety (90) days by mutual discussion as
contemplated under Section 19.01 herein, the Dispute shall be settled
with finality by an arbitrage tribunal operating under International Law,
hereinafter referred to as the “Tribunal,” under the UNCITRAL
Arbitration Rules contained in Resolution 31/98 adopted by the United
Nations General Assembly on December 15, 1976, and entitled
“Arbitration Rules on the United Nations Commission on the
International Trade Law.” The DFA and the BCA undertake to abide by
and implement the arbitration award. The place of arbitration shall be
Pasay City, Philippines, or such other place as may mutually be agreed
upon by both parties. The arbitration proceeding shall be conducted in
the English language.52 (Emphasis in the original)

Article 33(1) of the 1976 UNCITRAL Arbitration Rules
mandates that the arbitration tribunal shall apply the law
designated by the parties. If the parties fail to designate the
applicable law, the applicable law shall be that which is
determined by the conflict of laws:
Article 33
1. The arbitral tribunal shall apply the law designated by
the parties as applicable to the substance of the dispute.
Failing such designation by the parties, the arbitral
tribunal shall apply the law determined by the conflict of
laws rules which it considers applicable.
On the issue of which law applies in this case, I concur with the
ponencia.
Since both parties are Filipino and did not designate the
applicable law in the Agreement dated April 5, 2002, the
applicable law is Republic Act No. 876.53 Section 14 of Repub-
_______________
52 Id., at p. 106.
53 The Arbitration Law (1953).

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VOL. 795, JUNE 29, 2016 323

lic Act No. 876 allows the arbitrators to issue subpoenas at any
time before the issuance of the award:
SEC. 14. Subpoena and subpoena duces tecum.—Arbitrators

shall have the power to require any person to attend a hearing as
a witness. They shall have the power to subpoena witnesses and
documents when the relevancy of the testimony and the
materiality thereof has been demonstrated to the arbitrators.
Arbitrators may also require the retirement of any witness during
the testimony of any other witness. All of the arbitrators
appointed in any controversy must attend all the hearings in that
matter and hear all the allegations and proofs of the parties; but
an award by the majority of them is valid unless the concurrence
of all of them is expressly required in the submission or contract
to arbitrate. The arbitrator or arbitrators shall have the power at
any time, before rendering the award, without prejudice to the
rights of any party to petition the court to take measures to
safeguard and/or conserve any matter which is the subject of the

dispute in arbitration.

Republic Act No. 9285,54 its Implementing Rules and
Regulations,55 and the Special Rules on Alternative Dispute
Resolution56 may also apply since these are procedural laws that
may be applied retroactively.57

II

The law recognizes the fundamental right of the People to be
informed of matters of public concern. Article 3, Section 7 of the
Constitution provides:
_______________
54 Alternative Dispute Resolution Act of 2004.

55 DOJ Dept. Circ. No. 98 (2009).
56 A.M. No. 07-11-08-SC (2009).
57 See Korea Technologies Co., Ltd. v. Lerma, 566 Phil. 1, 27; 542 SCRA 1, 25
(2008) [Per J. Velasco, Jr., Second Division].

324

ARTICLE III
Bill of Rights
. . . .
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.

Similarly, Article II, Section 28 of the Constitution provides:
ARTICLE II
Declaration of Principles and State Policies
. . . .
SECTION 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.

The right to information is not absolute and is “subject to
limitations as may be provided by law.”58 One of the limitations
imposed on the right to information is that of executive privilege.
In Almonte v. Vasquez,59 Former Associate Justice Vicente V.
Mendoza introduced the concept of governmental privilege
against public disclosure:
At common law a governmental privilege against disclosure is

recognized with respect to state secrets
_______________
58 Const., Art. III, Sec. 7.

59 314 Phil. 150; 244 SCRA 286 (1995) [Per J. Mendoza, En
Banc].

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VOL. 795, JUNE 29, 2016 325

bearing on military, diplomatic and similar matters. This

privilege is based upon public interest of such paramount
importance as in and of itself transcending the individual
interests of a private citizen, even though, as a consequence
thereof, the plaintiff cannot enforce his legal rights.
In addition, in the litigation over the Watergate tape subpoena
in 1973, the U.S. Supreme Court recognized the right of the
President to the confidentiality of his conversations and
correspondence, which it likened to “the claim of confidentiality of
judicial deliberations.” Said the Court in United States v. Nixon:
The expectation of a President to the confidentiality of
his conversations and correspondence, like the claim of
confidentiality of judicial deliberations, for example, has all
the values to which we accord deference for the privacy of
all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be free
to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be
unwilling to express except privately. These are the
considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental
to the operation of the government and inextricably rooted

in the separation of powers under the Constitution. . . .
Thus, the Court for the first time gave executive privilege a
constitutional status and a new name, although not necessarily a
new birth.
. . . .
On the other hand, where the claim of confidentiality does not
rest on the need to protect military, diplomatic or other national
security secrets but on a general public interest in the
confidentiality of his conversations,

326

courts have declined to find in the Constitution an absolute

privilege of the President against a subpoena considered essential
to the enforcement of criminal laws.60

Executive privilege has been defined as “the power of the
Government to withhold information from the public, the courts,
and the Congress”61 or “the right of the President and high-level
executive branch officers to withhold information from Congress,
the courts, and ultimately the public.”62
Executive privilege has been further defined in Neri v. Senate
Committee on Accountability of Public Officers and
Investigations, et al.63 to encompass two (2) kinds of privileged
information: (1) presidential communications privilege and (2)
deliberative process privilege. Thus:
[T]here are two (2) kinds of executive privilege: one is the presidential
communications privilege, and the other is the deliberative process
privilege. The former pertains to “communications, documents or other
materials that reflect presidential decision-making and deliberations and
that the President believes should remain confidential.” The latter
includes “advisory opinions, recommendations
_______________
60 Id., at pp. 167-171; pp. 295-297, citing Anno., Government

Privilege Against Disclosure of Official Information, 95 L. Ed. §§3-
4 and 7, pp. 427-429, 434; United States v. Nixon, 418 U.S. 683,
708-9, 41 L. Ed. 2d 1039, 1061-4 (1973); Freund, The Supreme
Court 1973 Term — Foreword: On Presidential Privilege, 88
Harv. L. Rev. 13, 18-35 (1974); United States v. Nixon, 418 U.S.
683, 41 L. Ed. 2d 1039 (1974); and Nixon v. Administrator of

General Services, 433 U.S. 425, 53 L. Ed. 2d 867 (1977).
61 Senate of the Philippines v. Ermita, 522 Phil. 1, 37; 488
SCRA 1, 45 (2006) [Per J. Carpio-Morales, En Banc], citing
Schwartz, B., Executive Privilege and Congressional
Investigatory Power, 47 Cal. L. Rev. 3.
62 Id., at p. 645; p. 45, citing Rozell, M., Executive Privilege
and the Modern Presidents: In Nixon’s Shadow, 83 Minn. L. Rev.
1069.
63 572 Phil. 554; 549 SCRA 77 (2008) [Per J. Leonardo-De
Castro, En Banc].

327
VOL. 795, JUNE 29, 2016 327

and deliberations comprising part of a process by which

governmental decisions and policies are formulated.”
Accordingly, they are characterized by marked distinctions.
Presidential communications privilege applies to decision-making
of the President while, the deliberative process privilege, to
decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President’s
unique constitutional role; the second on common law privilege.
Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their entirety,
and covers final and post-decisional materials as well as pre-
deliberative ones. As a consequence, congressional or judicial
negation of the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative process
privilege.64

Unlike state secrets, the purpose of the privilege is not for the
protection of national security.65 The purpose is to protect the free
exchange of ideas between those tasked with decision-making in
the executive branch and to prevent public confusion before an
agency has adopted a final policy decision:
Courts have identified three purposes in support of the privilege: (1) it

protects candid discussions within an agency; (2) it prevents public
confusion from premature disclosure of agency opinions before the agency
establishes final policy; and (3) it protects the integrity of an agency’s
decision; the public should not judge officials based on information they
considered prior to issuing their final decisions. For the privilege to be

validly asserted, the material must be predecisional and deliberative.66
_______________
64 Id., at p. 645; pp. 118-119, citing In Re: Sealed Case No.
963124, June 17, 1997.
65 See Akbbayan v. Aquino, 580 Phil. 422, 482; 558 SCRA 468,
520 (2008) [Per J. Carpio-Morales, En Banc].
66 CJ. Puno, Dissenting Opinion in Neri v. Senate Committee
on Accountability of Public Officers, supra note 63 at p. 812; pp.
181-182,

328

Information is predecisional if no final decision has been made.

On the other hand, information is deliberative if it exposes the
decision-making process of the agency:
A document is “predecisional” under the deliberative process

privilege if it precedes, in temporal sequence, the decision to
which it relates. In other words, communications are considered
predecisional if they were made in the attempt to reach a final
conclusion.
A material is “deliberative,” on the other hand, if it reflects the
give-and-take of the consultative process. The key question in
determining whether the material is deliberative in nature is
whether disclosure of the information would discourage candid
discussion within the agency. If the disclosure of the information
would expose the government’s decision-making process in a way
that discourages candid discussion among the decision-makers
(thereby undermining the courts’ ability to perform their
functions), the information is deemed privileged.67
Chavez does not mention deliberative process privilege per se.

However, it differentiates the nature and duration of
governmental privilege from that of public disclosure:
Information, however, on ongoing evaluation or review of bids

or proposals being undertaken by the bidding or review committee
is not immediately accessible under the right to information.
While the evaluation or review is still ongoing, there are “no

official acts, transactions, or decisions” on the bids or proposals.
However,
_______________
citing Kaiser Aluminum and Chemical Corp., 433 U.S. 425

(1977) and Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12
(D.D.C. 1995) (citation omitted), aff’d, 76 F.3d 1232 (D.C. Cir.
1996).
67 In Re: Production of Court Records and Documents,
February 14, 2012, p. 17 [Unsigned Resolution, En Banc], citing
Electronic Frontier Foundation v. US Department of Justice, 2011
WL 596637 and NLRB v. Sears, Roebuck& Co., 421 U.S. 151.

329
VOL. 795, JUNE 29, 2016 329

once the committee makes its official recommendation, there

arises a “definite proposition” on the part of the government.
From this moment, the public’s right to information attaches, and
any citizen can access all the non-proprietary information leading
to such definite proposition. In Chavez v. PCGG, the Court ruled
as follows:
Considering the intent of the framers of the Constitution,
we believe that 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 need,
of course, to observe the same restrictions on disclosure of
information in general, as discussed earlier — such as on
matters involving national security, diplomatic or foreign
relations, intelligence and other classified information.
. . . .
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential
conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal deliberations of the

assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independ-

330

ence of decision-making of those tasked to exercise

Presidential, Legislative and Judicial power. This is not the
situation in the instant case.
We rule, therefore, that the constitutional right to information
includes official information on ongoing negotiations before a final
contract. The information, however, must constitute definite
propositions by the government and should not cover recognized
order. Congress has also prescribed other limitations on the right
to information in several legislations.68 (Emphasis supplied)

Thus, for the information to be covered by the deliberative
process privilege, it must be (1) predecisional and (2) deliberative.
The privilege ends when the executive agency adopts a definite
proposition. Akbayan v. Aquino,69 however, qualified that the
privilege may continue even after a definite proposition has been
made if the information concerns matters of national security,
diplomatic relations, and public order or if public disclosure has
been limited by law.70
_______________
68 Chavez v. Public Estates Authority, supra note 29 at pp.

531-535; pp. 186-189, citing Chavez v. PCGG, 360 Phil. 133, 166-
167; 299 SCRA 744, 770 (1998) [Per J. Panganiban, First
Division]; Aquino Sarmiento v. Morato, 280 Phil. 560, 570; 203
SCRA 515, 523-524 (1991) [Per J. Bidin, En Banc]; Almonte v.
Vasquez, supra note 59 at p. 167; p. 297. See People’s Movement
for Press Freedom, et al. v. Hon. Raul Manglapus, G.R. No. 84642,
April 13, 1988 [Unsigned Resolution, En Banc]. See also Tax
Code, Sec. 270; Rep. Act No. 8800 (2000), Sec. 14; Rep. Act No.
8504 (1998), Sec. 3(n); Rep. Act No. 8043 (1995), Sec. 6(j); and
Rep. Act No. 7942 (1995), Sec. 94(f).
69 Supra note 65.
70 Id., at pp. 481-482; p. 528, citing Chavez v. Public Estates
Authority, supra note 29 at pp. 531-533; p. 187; Chavez v. PCGG,
supra at pp. 160-162; p. 765; Aquino-Sarmiento v. Morato, supra
at pp. 568-569; pp. 523-524; Almonte v. Vasquez, supra note 59 at
pp. 167-171;

331
VOL. 795, JUNE 29, 2016 331

III
In this case, the Regional Trial Court issued a subpoena duces
tecum and a subpoena ad testificandum on the basis that the
deliberative process privilege does not apply since the
Department of Foreign Affairs already reached a definite
proposition when it entered into the contract.
Chavez defines definite proposition as an “official
recommendation”71 or “official acts, transactions, or
72
decisions” without need of a consummated contract:
Contrary to AMARI’s contention, the commissioners of the

1986 Constitutional Commission understood that the right to
information “contemplates inclusion of negotiations leading to the
consummation of the transaction.” Certainly, a consummated
contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if
no contract is consummated, and if one is consummated, it may be
too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the
dark until the contract, which may be grossly disadvantageous to
the government or even illegal, becomes a fait accompli. This
negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could
not have intended. Such a requirement will prevent the citizenry
from participating in the public discussion of any proposed
contract, effectively truncating a basic right enshrined in the Bill
of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed
“policy of full disclosure of all its transactions involving public
interest.”
_______________
pp. 247-248; and Peoples Movement/or Press Freedom v. Raul

Manglapus, supra note 68.
71 Chavez v. Public Estates Authority, id., at p. 572; p. 186.
72 Id.
332

The right covers three categories of information which are

“matters of public concern,” namely: (1) official records; (2)
documents and papers pertaining to official acts, transactions and
decisions; and (3) government research data used in formulating
policies. The first category refers to any document that is part of
the public records in the custody of government agencies or
officials. The second category refers to documents and papers
recording, evidencing, establishing, confirming, supporting,
justifying or explaining official acts, transactions or decisions of
government agencies or officials. The third category refers to
research data, whether raw, collated or processed, owned by the
government and used in formulating government policies.
The information that petitioner may access on the
renegotiation of the JVA includes evaluation reports,
recommendations, legal and expert opinions, minutes of meetings,
terms of reference and other documents attached to such reports
or minutes, all relating to the JVA. However, the right to
information does not compel PEA to prepare lists, abstracts,
summaries and the like relating to the renegotiation of the JVA.
The right only affords access to records, documents and papers,
which means the opportunity to inspect and copy them. One who
exercises the right must copy the records, documents and papers
at his expense. The exercise of the right is also subject to
reasonable regulations to protect the integrity of the public
records and to minimize disruption to government operations, like
rules specifying when and how to conduct the inspection and
copying.
The right to information, however, does not extend to matters
recognized as privileged information under the separation of
powers. The right does not also apply to information on military
and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement
agencies before the prosecution of the accused, which courts have
long

333
VOL. 795, JUNE 29, 2016 333

recognized as confidential. The right may also be subject to other

limitations that Congress may impose by law.73

The Department of Foreign Affairs claims that the definite
propositions in this case concern the implementation and the
proposed termination of the Amended Build-Operate-Transfer
Agreement, and not necessarily the signing of the
Agreement.74 However, according to the Certificate of Acceptance
of Phase I,75 the Department of Foreign Affairs officially approved
the implementation of the Agreement.76 The Department of
Foreign Affairs also alleges that it was “constrained to cancel the
agreement.”77 Thus, the Department of Foreign Affairs made
official recommendations concerning the implementation and
termination of the Agreement. It should cease to be covered by the
deliberative process privilege.
There is a need to further explain what constitutes definite
propositions within the context of deliberative process privilege.
Chavez did not require a consummated contract and held that
even a proposed contract could be considered a definite
proposition if there were official acts, transactions, and decisions
that precipitated it. There is a lacuna, as in this case, as to what
may constitute definite propositions when a perfected contract is
in the process of being consummated.
_______________
73 Id., at pp. 532-534; pp. 187-188, citing Chavez v. PCGG,

supra note 68 at pp. 166-167; p. 770; Legaspi v. Civil Service
Commission, 234 Phil. 521, 531-533; 150 SCRA 530, 540 (1987)
[Per J. Cortes, En Banc]; Almonte v. Vasquez, supra note 59 at pp.
167-171; pp. 302-303; and AquinoSarmiento v. Morato, supra note
68 at pp. 568-569; p. 521.
74 Rollo, p. 38.
75 Id., at p. 283.
76 Id.
77 Id., at p. 19.

334
IV

The deliberative process privilege may have already been
waived by the Department of Foreign Affairs in the Amended
Build-Operate-Transfer Agreement.
The deliberative process privilege is lesser in scope than the
presidential communications privilege. Its coverage and duration
are limited. It stands to reason that the privilege may be waived
unless the information concerns national security, diplomatic
relations, or public order.
In Sections 20.02 and 20.03 of the Amended Build-Operate-
Transfer Agreement, the parties agreed to keep information
relating to negotiations confidential, subject to certain limitations:
Section 20.02. None of the parties shall, at any time, before

or after the expiration or sooner termination of this Amended
BOT Agreement, without the consent of the other party, divulge
or suffer or permit its officers, employees, agents or contractors to
divulge to any person, other than any of its respective officers or
employees who require the same to enable them to properly carry
out their duties, any of the contents of this Amended BOT
Agreement or any information relating to the negotiations
concerning the operations, contracts, commercial or financial
arrangements or affair of the other parties hereto. Documents
marked “CONFIDENTIAL” or the like, providing that such
material shall be kept confidential, and shall constitute prima
facie evidence that such information contained therein is subject
to the terms of this provision.
Section 20.03. The restrictions imposed in Section 20.02
herein shall not apply to the disclosure of any information:
A. Which may now or hereafter come into public knowledge
otherwise than as a result of a breach of an undertaking of
confidentiality, or which is ob-

335
VOL. 795, JUNE 29, 2016 335

tainable with no more than reasonable diligence from sources

other than any of the parties hereto;
B. Which is required by law to be disclosed to a [sic] any person
who is authorized by law to receive the same;
C. To a court arbitrator or administrative tribunal the course of

proceedings before it to which the disclosing party is party; or
D. To any consultants, banks, financiers, or legal or financial
advisors of the disclosing party.78 (Emphasis supplied)

The Department of Foreign Affairs was a party to the Amended
BuildOperate-Transfer Agreement. While it stipulated that all
matters concerning the contract were confidential, it similarly
stipulated that information could be disclosed to a court
arbitrator. If it intended to exercise its privilege to keep all
matters concerning the Amended Build-Operate-Transfer
Agreement including negotiations concerning its implementation
confidential, it should not have agreed to the exceptions in Section
20.03 of the Agreement.
This stipulation, however, only affects disclosures made by
officers of the Department of Foreign Affairs. The Department of
Finance and the Commission on Audit were not parties to the
Amended Build-OperateTransfer Agreement; hence, they could
still validly invoke the deliberative process privilege.

V

The deliberative process privilege may not always apply to
arbitration proceedings under Republic Act No. 9285.
The deliberative process privilege is a privilege that an officer
of an executive department may invoke to prevent public
disclosure of any information that may compromise its decision-
making capability. Its purpose “rests most fundamen-
_______________
78 Rollo, pp. 106-107.

336

tally on the belief that were agencies forced to operate in a

fishbowl, frank exchange of ideas and opinions would cease and
the quality of administrative decisions would consequently
suffer.”79 This is to prevent subjecting an agency’s decision-
making process to public opinion before any definite policy action
has been made.
Thus, the privilege may lose its purpose when the disclosure is
not to the public. Here, the Department of Foreign Affairs
opposed the disclosure of information to the Ad Hoc Tribunal by
invoking the privilege, but the proceedings of the Ad Hoc Tribunal
are not made public. Republic Act No. 9285 requires
confidentiality in all arbitration proceedings:
SEC. 23. Confidentiality of Arbitration Proceedings.—The

arbitration proceedings, including the records, evidence and the
arbitral award, shall be considered confidential and shall not be
published except (1) with the consent of the parties, or (2) for the
limited purpose of disclosing to the court of relevant documents in
cases where resort to the court is allowed herein: Provided,
however, That the court in which the action or the appeal is
pending may issue a protective order to prevent or prohibit
disclosure of documents or information containing secret
processes, developments, research and other information where it
is shown that the applicant shall be materially prejudiced by an
authorized disclosure thereof. (Emphasis in the original)

Thus, considering that the records of the Ad Hoc Tribunal are
confidential in nature, there could not have been any need for the
Department of Foreign Affairs to invoke the deliberative process
privilege.
_______________
79 CJ. Puno, Dissenting Opinion in Neri v. Senate Committee on the

Accountability of Public Officers, supra note 63 at p. 811; p. 181, citing Iraola, R.,
Congressional Oversight, Executive Privilege, and Requests for Information
Relating to Federal Criminal Investigations and Prosecutions, 87 Iowa L .Rev.,
1559, 1577 (August, 2002).

337
VOL. 795, JUNE 29, 2016 337

ACCORDINGLY, I vote to GRANT the Petition
Petition partially granted, case remanded to Regional Trial

Court of Makati City, Branch 146.
Notes.—The existence of a person’s right to informational

privacy and a showing, at least by substantial evidence, of an
actual or threatened violation of the right to privacy in life, liberty

or security of the victim are indispensable before the privilege of
the writ may be extended. (Vivares vs. St. Theresa’s College, 737
SCRA 92 [2014])
Republic Act (RA) No. 9285, otherwise known as the “Alter-
native Dispute Resolution Act of 2004,” institutionalized the use
of an Alternative Dispute Resolution System (ADR System) in the
Philippines. (Department of Environment and Natural Resources
[DENR] vs. United Planners Consultants, Inc. [UPCI], 751 SCRA
389 [2015])

——o0o——

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9/10/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 795

G.R. No. 210858. June 29, 2016.*

Remedial Law; Special Proceedings; Alternative Dispute

VOL. 795, JUNE 29, 2016 277

tive in that sense and to that extent. As a general rule, the

278 SUPREME COURT REPORTS ANNOTATED

appealed before this Court the RTC Resolution and Orders

information “should not cover recognized exceptions like

VOL. 795, JUNE 29, 2016 279

military and diplomatic secrets and similar matters affecting

decision[-]making by chilling either the submission of such

280 SUPREME COURT REPORTS ANNOTATED

policy; and third, it protects the integrity of an agency’s

criticism, preventing such official from making candid discussions

VOL. 795, JUNE 29, 2016 281

the other party to disclose privileged information to the

the deliberative process privilege to prove that the information in

282 SUPREME COURT REPORTS ANNOTATED

LEONEN, J., Separate Concurring Opinion:

require any person to attend a hearing as a witness. They shall

VOL. 795, JUNE 29, 2016 283

provided by law.” One of the limitations imposed on the right

Investigations, et al., 549 SCRA 77 (2008), to encompass two (2)

284 SUPREME COURT REPORTS ANNOTATED

integrity of an agency’s decision; the public should not judge

VOL. 795, JUNE 29, 2016 285

sion-making capability.—The deliberative process privilege is

purpose when the disclosure is not to the public. Here, the

PETITION for review on certiorari of the orders and

286 SUPREME COURT REPORTS ANNOTATED

BCA International Corporation (BCA), a domestic

Section 19.02. Failure to Settle Amicably.—If the Dispute

VOL. 795, JUNE 29, 2016 287

not affect its proceedings and the hearing set in October

Implementing Rules and Regulations (IRR) of “The

8 Id., at pp. 68-80.

288 SUPREME COURT REPORTS ANNOTATED

VOL. 795, JUNE 29, 2016 289

290 SUPREME COURT REPORTS ANNOTATED

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292 SUPREME COURT REPORTS ANNOTATED

On 1 July 2013, DFA filed its comment, alleging that the

v. Public Estates Authority10 that acts, transactions or

WHEREFORE, the petition is granted. Let subpoena ad

On 6 September 2013, the RTC issued the subpoena

10 433 Phil. 506; 384 SCRA 152 (2002).

VOL. 795, JUNE 29, 2016 293

of the Special Rules of Court on Alternative Dispute

In an Order dated 8 January 2014, the RTC denied the

294 SUPREME COURT REPORTS ANNOTATED

ADR Rules.14 RA 9285 is the general law applicable to

arbitration proceedings since it is a procedural law, which

While RA 9285 was passed only in 2004, it nonetheless

The IRR of RA 9285 reiterate that RA 9285 is procedural

14 Rules of Court, Rule 72, Section 2, provides: “In the absence of

VOL. 795, JUNE 29, 2016 295

vided no vested rights are impaired.19 Thus, contrary to

Rules are applicable to the present arbitration proceeding.

19 Special ADR Rules, Rule 24.1: “Considering its procedural

296 SUPREME COURT REPORTS ANNOTATED