Thursday, February 09, 2006

Shield Law VIII: Privileged communication

It can be noted, curiously, that the proposed shield law first introduced in the Senate proceeded from the concept of "privileged communication". Of course the thrust was to promote the constitutional guarantee of press freedom.
Yet, Senator Vicente Y. Sotto, the author of Senate Bill No. 6 originally considered the shield law as proceeding from the realm of privileged communications, like those specifically enumerated in the rules of evidence.
In the bill's explanatory note, Senator Sotto sought to place "news reports or information among the privileged communications side by side with those given by the clients of an attorney or of a doctor, or to a priest in the confessional."
Senator Sotto, a lawyer, not surprisingly, patterned the bill from the privileged communications which under the rules of evidence, are not to allowed to be subjects of testimonies of witnesses.
Under the rules of evidence, certain witnesses are disqualified from testifying when the matter to be testified on were learned in confidence.
Under the rules of court, the following are disqualfied to testify by reason of privileged communications:
(1) the husband or wife cannot be examined without the consent of the other as to any communication received in confidence by one from the other during marriage;
(2) an attorney cannot, without the consent of his client, be examined as to any communication made by the client;
(3) a doctor cannot in a civil case, wihtout the consent of the patient, be examined as to any advice or treatment given or any information which may have been acquired while attending to the patient in a professional capacity;
(4) A minister or priest cannot, without the consent of the person making the confession be examined as to the matter confessed;
(5) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence.
Senate Bill No. 6 wished to add the journalist as among those who were disqualified to testify on matters learned in confidence from their sources when it was revealed in confidence.
The common denominator in disqulfiying witnesses in privilege communications is when the matter revealed from one person to the other was "confidential."
Thus the Philippine Shield Law derived its philosophy fromthe concept of "confidential information"
In addition, in the original Senate bill No. 6, the only exception from compelled disclosures is when the court so directed, for the public interest.
The fact that it was only the court (original proposal) that was empowered to order compelled revelations only shows that the concept was patterned after the provisions of the rules on evidence.
This is not so, in American state shield laws.
In many state shield laws in the U.S., the insulation of journalists from compelled revelations
is not necessarily based on privileged communications.
As a matter of fact, American state shield laws do not require that the information "be made in confidence" in order to insulate the newsman from compelled revelations.
The general rule in the United States is that a newsman (their laws say "covered person") cannot be compelled to reveal the source of his information, regardless of whether or not it was obtained in confidence.
I believe, the Philippine Shield Law can be modified and expanded by doing away with the concept of "privileged communications" or "confidential information."
I support the position that newsmen must be insulated from compelled disclosures regardless of whether or not the information was obtained in confidence.
The proposed amendment therfore, is to remove the phrase "which was related in confidence."
This would augur well to promoting a free and independent press.

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