The recent arrest of Dixie Tmetuchl who is the wife of a former senator Mlib Tmetuchl gave rise to series of questions about the circumstances of her arrest which remain unanswered as the case is under seal.
There are whispers from sources in the court that the prosecutor had requested the case to be kept under seal but it remains unverified as the Office of the Attorney General responded, “No Comments” to the query.
Under the Palauan constitution, a citizen has the right to examine any government document and to observe official deliberation of any government agency.
The article two of the constitution states, “Any law, act of government or agreement to which a government of Palau is a party, shall not conflict with this Constitution and shall be invalid to the extent of such conflict.”
Are the exceptions in the Open Government Act 2014 in direct conflict with the fundamental right stated in the constitution?
The former President Johnson Toribiong who is also one of the architects of the Palauan Constitution said, “The Constitution is the supreme law of the land. I am not a judge but if I were a judge I took an oath to support the constitution.”
He adds, “I see no exception unless they can show to the judge a very extra ordinary reason.”
For better understanding he explains it with an example, “When a judge deliberates on a judgment, it’s not public yet, it is in the making. That’s an exception. But once it is finalized it’ll be revealed to the public.”
According to Toribiong, documents which fall under “implied exception” got to be a document which has not achieved a status of a government document.
Although Toribiong couldn’t comment on Tmetuchl’s case specifically, talking about the under seal nature of cases in general, he said that cases are often kept under seal to find other participants in the crime.
“If they disclose it, people who are on the higher up of the food chain might do something to obstruct justice,” he said.
Toribiong believes that there is no point in keeping cases confidential if public knows about it.
“Don’t announce it and let the people know about it and then keep the documents secret. That’s my view, I’m a plain reading attorney. I read the law as it is.”
He is quick to add, “At the face of it, you cannot hide things that are public but if they want to keep confidential then don’t let the public know about it. Once it is known, it has lost its criminal investigation value”
‘Penumbra of the constitution’
‘Penumbra of the constitution’ is a term used by the US Supreme Court to include certain rights that are not in the plain reading of the constitution.
”They call that finding in the penumbra of the constitution. It is there, you just cannot see it. If somebody wants to challenge the cases under seal, they should file a complaint.”
Toribiong stressed upon the importance to balance the need to disclose the cases that are sensitive because the investigation has not been completed and the right of the public to know and examine.
He reiterates, “I am a strict constructionist, I read the law as it is and I see no exceptions in the constitution.” (By Eshan Kalyanikar)