Facts:
Petitioners seek to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which includes trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.
Issues:
a. Whether or not the claim of the petitioners is covered by the right to information.
b. Whether the executive privilege claimed by the respondents applies only at certain stages of the negotiation process.
c. Whether there is sufficient public interest to overcome the claim of privilege.
d. Whether the Respondents’ failed to claim executive privilege on time.
Decision:
Supreme Court dismissed the petition, on the following reasons:
1. To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern.
In determining whether or not a particular information is of public concern there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.
From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure.
Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific “showing of need” for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.
2. Supreme Court stated that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order.
3. The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees.
In the case at hand, Petitioners have failed to present the strong and “sufficient showing of need”. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard stated in the decided cases.
There is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement.
Further, the text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published.
4. When the respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited.
Respondents’ failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. What respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. The House Committee refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials – out of respect for their office – until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege.
Friday, December 12, 2008
Sunday, December 7, 2008
ARGUMENTATION REVISITED
Argumentation is the act of forming reasons, making inductions, drawing conclusions, and applying them to the case in discussion; the operation of inferring propositions, not known or admitted as true, from facts or principles known, admitted, or proved to be true. [1]
Key components of argumentation[2]
1. Understanding and identifying arguments, either explicit or implied, and the goals of the participants in the different types of dialogue.
2. Identifying the premises from which conclusions are derived.
3. Establishing the "burden of proof" — determining who made the initial claim and is thus responsible for providing evidence why his/her position merits acceptance.
4. For the one carrying the "burden of proof", the advocate, to marshal evidence for his/her position in order to convince or force the opponent's acceptance. The method by which this is accomplished is producing valid, sound, and cogent arguments, devoid of weaknesses, and not easily attacked.
5. In a debate, fulfillment of the burden of proof creates a burden of rejoinder. One must try to identify faulty reasoning in the opponent’s argument, to attack the reasons/premises of the argument, to provide counterexamples if possible, to identify any logical fallacies, and to show why a valid conclusion cannot be derived from the reasons provided for his/her argument.
Components of Argument[3]
In The Uses of Argument (1958), Stephen Toulmin proposed a layout containing six interrelated components for analyzing arguments:
1. Claim - Conclusions whose merit must be established. For example, if a person tries to convince a listener that he is a British citizen, the claim would be “I am a British citizen.” (1)
2. Data - The facts we appeal to as a foundation for the claim. For example, the person introduced in 1 can support his claim with the supporting data “I was born in Bermuda.” (2)
3. Warrant - The statement authorizing our movement from the data to the claim. In order to move from the data established in 2, “I was born in Bermuda,” to the claim in 1, “I am a British citizen,” the person must supply a warrant to bridge the gap between 1 & 2 with the statement “A man born in Bermuda will legally be a British Citizen.” (3)
4. Backing - Credentials designed to certify the statement expressed in the warrant; backing must be introduced when the warrant itself is not convincing enough to the readers or the listeners. For example, if the listener does not deem the warrant in 3 as credible, the speaker will supply the legal provisions as backing statement to show that it is true that “A man born in Bermuda will legally be a British Citizen.”
5. Rebuttal - Statements recognizing the restrictions to which the claim may legitimately be applied. The rebuttal is exemplified as follows, “A man born in Bermuda will legally be a British citizen, unless he has betrayed Britain and has become a spy of another country.”
6. Qualifier - Words or phrases expressing the speaker’s degree of force or certainty concerning the claim. Such words or phrases include “possible,” “probably,” “impossible,” “certainly,” “presumably,” “as far as the evidence goes,” or “necessarily.” The claim “I am definitely a British citizen” has a greater degree of force than the claim “I am a British citizen, presumably.”
The first three elements “claim,” “data,” and “warrant” are considered as the essential components of practical arguments, while the second triad “qualifier,” “backing,” and “rebuttal” may not be needed in some arguments.
[1] "Argumentation." Webster's Revised Unabridged Dictionary. MICRA, Inc. 07 Dec. 2008.http://dictionary.reference.com/browse/argumentation>.
[2] Cf. Wikipedia.
.
Key components of argumentation[2]
1. Understanding and identifying arguments, either explicit or implied, and the goals of the participants in the different types of dialogue.
2. Identifying the premises from which conclusions are derived.
3. Establishing the "burden of proof" — determining who made the initial claim and is thus responsible for providing evidence why his/her position merits acceptance.
4. For the one carrying the "burden of proof", the advocate, to marshal evidence for his/her position in order to convince or force the opponent's acceptance. The method by which this is accomplished is producing valid, sound, and cogent arguments, devoid of weaknesses, and not easily attacked.
5. In a debate, fulfillment of the burden of proof creates a burden of rejoinder. One must try to identify faulty reasoning in the opponent’s argument, to attack the reasons/premises of the argument, to provide counterexamples if possible, to identify any logical fallacies, and to show why a valid conclusion cannot be derived from the reasons provided for his/her argument.
Components of Argument[3]
In The Uses of Argument (1958), Stephen Toulmin proposed a layout containing six interrelated components for analyzing arguments:
1. Claim - Conclusions whose merit must be established. For example, if a person tries to convince a listener that he is a British citizen, the claim would be “I am a British citizen.” (1)
2. Data - The facts we appeal to as a foundation for the claim. For example, the person introduced in 1 can support his claim with the supporting data “I was born in Bermuda.” (2)
3. Warrant - The statement authorizing our movement from the data to the claim. In order to move from the data established in 2, “I was born in Bermuda,” to the claim in 1, “I am a British citizen,” the person must supply a warrant to bridge the gap between 1 & 2 with the statement “A man born in Bermuda will legally be a British Citizen.” (3)
4. Backing - Credentials designed to certify the statement expressed in the warrant; backing must be introduced when the warrant itself is not convincing enough to the readers or the listeners. For example, if the listener does not deem the warrant in 3 as credible, the speaker will supply the legal provisions as backing statement to show that it is true that “A man born in Bermuda will legally be a British Citizen.”
5. Rebuttal - Statements recognizing the restrictions to which the claim may legitimately be applied. The rebuttal is exemplified as follows, “A man born in Bermuda will legally be a British citizen, unless he has betrayed Britain and has become a spy of another country.”
6. Qualifier - Words or phrases expressing the speaker’s degree of force or certainty concerning the claim. Such words or phrases include “possible,” “probably,” “impossible,” “certainly,” “presumably,” “as far as the evidence goes,” or “necessarily.” The claim “I am definitely a British citizen” has a greater degree of force than the claim “I am a British citizen, presumably.”
The first three elements “claim,” “data,” and “warrant” are considered as the essential components of practical arguments, while the second triad “qualifier,” “backing,” and “rebuttal” may not be needed in some arguments.
[1] "Argumentation." Webster's Revised Unabridged Dictionary. MICRA, Inc. 07 Dec. 2008.
[2] Cf. Wikipedia.
Comment on the 3rd Presidential Debate of Obama and McCain
I’ve been so busy today that I’ve not had time to ‘post’ about the debate - but I’m thinking about it, there’s not much to say. McCain came with his old angry tricks.
I succumbed and watched this video from start to finish, and was pleasantly surprised. This one, of the many debates I saw, actually hewed closer to the ideal format in which the candidates would be free to ask each other questions and argue.
Bob Schieffer of CBS moderated the debate. Before the event, lefty bloggers raised some doubts about his sense of fairness, since he has been on record praising McCain to the heavens. But Bob Schieffer lived up to his stellar reputation as a journalist and directed the conversation wisely.
The early minutes of the debate were harrowing for me as an Obama supporter. McCain went aggressively on the attack. Obama opted to stay above the fray the entire time, forbearing from pointing fingers at Senator McCain’s record even as the opportunities passed him by.
As time went by and the debate settled down to familiar territory of talking points, it became obvious that the split screen display is horribly disadvantageous to Senator McCain, who rolled his eyes, sighed audibly ,grinned uncomfortably and managed to look like a jittery teenager when he was not talking.
I agree with the judges that this was the most ferociously contested debate of the three - Sumithra Rajendran saying it was “an extremely engaging and lively debate which didn’t leave room for yawns.”
I recognize the impact of McCain’s aggressive manner. But I am more impressed by Obama’s calmness. Neill Harvey-Smith said the “end product was that Obama looked and sounded presidential, while McCain’s aggression got the better of him.”
I am also swayed by McCain’s tactical approach, particularly early in the debate, where he turned the economic issue into a tax debate.
Above all, both Obama and McCain had their own share of developing clear, logical arguments using critical-thinking strategies in their argumentation speeches, though they differ in presenting them. Lots of fallacious arguments were thrown against each other, but I think it’s inevitable.
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