Wednesday, February 29, 2012

doctrines: judicial privilege

If the doctrine on executive privilege is nothing but a constitutional myth then judicial privilege is a mythical monster against the freedom of information enshrined in Article III on the Bill of Rights of the '87 Philippine Constitution.

The charter expressly provides: " SEC. 7. - The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well 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."

There are no known exceptions as far as i know except that the demand for information should not burden the bureaucracy in the manner of preparation with regard to matters of public record demanded by its citizen. We are after all in the 'age of information' and technology is the tool in which the right is sufficiently served.

That was before Ermita v. Senate came. There are also qualified exceptions towards state secrets with regard to the 'security of the state'. 

However, in the Supreme Court, where citizens invoke its adjudicative power with regard to controversies to enforce a right that was violated, the beast just doesn't square off.

In addition, a party litigant may invoke to keep the record of a decided case in private and not be a part of the public records but which is of course a different matter as this matter has got something to do with the individual's right to privacy. It is not something that the court may invoke. It is not the right of the court.

        code on information
        lord bingham on the rule of law

Monday, February 27, 2012

events: corona impeachment


art. VII of the impeachment charge questions the manner in which a TRO was issued in favor of the former president GMA.

i find the following excerpt on the rule of law elucidating with regard to its due execution:
      " My second sub-rule is that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Most modern commentators would not share to the full Dicey’s hostility to the exercise of official discretions. In the immigration field, for example, judges have routinely and gratefully invited the Secretary of State to exercise his discretion to grant leave to enter or remain to applicants who do not meet the tests for entry laid down in the immigration rules but whose personal history or circumstances demand  sympathetic consideration. But the essential truth of Dicey’s insight stands. The broader and more looselytextured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law.25 This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification. These are requirements which our law, in my opinion, almost always satisfies, because discretion imports a choice between two possible decisions and orders, and usually the scope for choice is very restricted. The grant of a civil injunction, it is always said, is discretionary. But if a clear violation of legal right is shown, and there is a clear risk of repetition injurious to the victim for which damages will not compensate, and there is no undertaking by the lawbreaker to desist, the trial judge ordinarily has no choice. His discretion can only, usually, be exercised one way. A second, very familiar, example is found in section 78(1) of the Police and Criminal Evidence Act 1984, which provides:

      “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

The use of the word “may” is relied on as conferring a discretion. But what the subsection does, I suggest, is to require an exercise of judgment, which may be difficult to make but which will determine the outcome: if the statutory condition is judged to be satisfied, the judge must refuse to allow the evidence to be given; if it is not, the subsection does not authorise the judge to exclude the evidence. For my third illustrative example I return to the immigration field. If an official were to grant leave to enter or remain to a person who did not meet the tests laid down in the immigration rules, but whose case presented no exceptional features whatever suggesting the need for special treatment, such decision would be incapable of rational justification and could not be defended as an exercise of discretion. There is in truth no such thing as an unfettered discretion, judicial or official, and that is what the rule of law requires."

granting that there was sufficient compliance with the requirements...primordial executive concerns through the Department of Justice should not have been easily dismissed. After all, situational realities, real dangers, possible adverse results are things which are well within the executive branch's' domain of certainty-determination.  not the courts' which by nature is insulated from the ever changing  realities of day to day-realities which are deemed- from moment to moment- uncertain.

      lord bingham on the rule of law