Wednesday, November 19, 2008

due process

The observance, mandate and clamor for “Due Process” reverberate in this Country for one reason or another. The truth is that, the continuous and loud demand for such a qualified Process is irrespective of whether there was in reality no Process done, or the Process was in fact unduly done, or the truth that the Process was duly done but with Orders and /or Judgment unwanted by Parties of interest.

On account of such a rather common confusion about the often invoked but probably little understood judicial principle on the part of ordinary citizens, it might be good to forward the following three more basic not only necessary but also practical constitutive as well as complimentary factors of “Due Process.”

First: The fundamental objective and ultimate finality of “Due Process” is to establish the objective truth in a formal contention, be this civil or criminal in nature. The contention is resolved based on the composite judicial weight of principal and adminicular evidence presented and accepted during the trial of merit of the Case submitted for the intervention of Orders and eventual Judgment by a competent Court of law.

Second: The reality of “Due Process” squarely stands on a tripod,which in more simple words consists in answering the following three primary questions: One, what is/are the object/s of contention? Two, who is/are the subjects/s involved in the contention? Three, what does/do the law/s say about the contention? The answer to the above three salient questions is primarily drawn from the evidentiary hearing of the contending parties and their witnesses.

Third: The key and truly distinct figure in “Due Process,” however, is the Judge assigned to the Case. Roman Law—commonly accepted as the eminent expression of judicial normative excellence—has a signal provision saying “Iudex est dominus processus”, i.e., the Judge has dominion—control, command, supervision—over the judicial process. This means that, without the least violating pertinent procedural and substantive laws, the Judge nevertheless has not only the right but also the mandate to see to it that the Process is not confused , derailed or unduly prolonged by patently vain, pompous or dilatory motions or “tactics” contrary to his already given Orders and eventual Judgment. Otherwise, behold the “Undue Process” in terms of the following more common phenomena in the local Courts:

The process is instead in the dominion, control or command of the Prosecutors and/or Counsels. The Judge thus renounces or loses his rightful, mandatory and defining role in the Process. Even but simple Cases or even serious contentions with ready and glaring resolutions according to pacified jurisprudence, thus take years if not decades to obtain judgments. The Courts are wherefore flooded by practically forever pending Cases, while the Judges feel harassed, exasperated or “burnt out.”

It is in the context of such judicial irregularity in many local Courts that justice is delayed and thereby considered denied. In other words: NO NONSENSE JUDGES – these are the crying need of the Courts of the land. These are Judges who have the sense and the guts to be precisely the “DOMINUS PROCESSUS” for a truly “Due Process.”

+OVCruz, DD
November 19, 2008