[Mirror] Abayari, Maria Lourdes

SY 2011-2012, Second Semester


Is publication in the online version of the Official Gazette a sufficient compliance with the publication requirement of laws before they become effective?

Introduction

As provided for under Art. 2 of the New Civil Code as amended by Executive Order (EO) No. 200, “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.” This means that before any provisions of a law become effective, it shall first be published either in the Official Gazette or in a newspaper of general circulation, or if the law provides for its effectivity date, such will be followed. With advent of the information technology wherein most of the public can easily access, the Government, thru its Presidential Communications Development and Strategic Planning Office came up with a project to collate all government issuances and place them online, under the website to be managed by the said office. The question now is, will this new development change the “landscape” so to speak of the effectivity of laws?

Let us examine first the surrounding arguments and related legal issuances to come up with the rightful answers.

Legal References

Pursuant to Commonwealth Act No. 638 entitled “An Act to Provide for the Uniform Publication and Distribution of the Official Gazette”, under Sec. 1 of the said law that “There shall be published in the Official Gazette:

(1) all important legislative acts and resolutions of a public nature of the Congress of the Philippines;

(2) all executive and administrative orders and proclamations, except such as have no general applicability;

(3) decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published;

(4) such documents or classes of documents as may be required so to be published by law; and

(5) such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published.

The said issuance further qualifies that for the purpose of this section every order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect and that the term “document” as used in this section shall include any order, regulation, rule, certificate, license, notice, or similar instrument issued, prescribed, or promulgated by any executive department, bureau, office, commission, independent board, agency, or instrumentality of the administrative branch of the Government, but not the legislative or judicial branch of the Government.

In the celebrated case of Tanada v. Tuvera, the Supreme Court upheld that:

“Art. 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The clear object of this provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim “ignoratia legis nominem excusat”. It would be the height of injustive to punish or otherwise burden a citizen for the transgression of a law which he had no notice whatsoever, not even a constructive one.

The very first clause of Section 1 of CA 638 reads: there shall be published in the Official Gazette…The word “shall” therein imposes upon respondent officials an imperative duty. That duty must be enforced if the constitutional right of the people to be informed on matter of public concern is to be given substance and validity.

The publication of presidential issuances of public nature or of general applicability is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents.”

After said pronouncement was made by the Court in the case of Tanada v. Tuvera case, then President Corazon C. Aquino issued Executive Order (EO) No. 200 which amended Art. 2 of the New Civil Code and now read as “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.”

Synthesis

Based on the foregoing, Official Gazette pertains to the official publication of the government where laws, orders, regulations and other official documents which the general public should know were complied and being published on a regular basis. Note that at the time when the CA No. 638, the most popular means of media is print, thus Official Gazette was issued in printed form since the said law does not define or described the how the Official Gazette should be presented. At the time when the country was under the rule of Martial Law and former President Ferdinand Marcos vested upon his office the executive and legislative powers of the Government, some of the laws (called the Presidential Decrees) promulgated by virtue of his office with general applicability were not published in the Official Gazette. But such lapse was raised in the case of Tanada v. Tuvera promulgated during the time of Former Pres. Corazon Aquino which questioned the validity of the issued Presidential Decrees for not following the publication requirement provided for under the New Civil Code. The Court in that case upheld that the laws, before it can took effect should be published in the Official Gazette. Though the Court clearly interpret the meaning of Article 2 of the Civil Code, many criticized said decision since Official Gazette has limited readership and because it is not being published regularly as the laws are being passed. Thus, Pres. C. Aquino signed Executive Order No. 200 which amended Article 2 of the New Civil Code which, aside from Official Gazette, the law may also be published in a newspaper of general circulation before a law becomes effective, and still retains the other means of reckoning the date of effectivity of the law which is the date expressly provided therein.

In the present set-up, wherein the Presidential Communications Development and Strategic Planning Office came up with a plan to collate all the laws, regulations, rules and other issuances of the government which are the usual contents of the Official Gazette and have it reflected in a website to be maintained by the government. In answering the query on whether such move is a sufficient compliance with the requirement that before a law becomes effective, it must first be published in the Official Gazette or newspaper of general circulation, we must bear in mind that the law is clear on where the laws should be published before it becomes effective if it does not provide for the date of its effectivity. And most important is that there should be a clear law amending the present wordings of the New Civil Code pertaining to the publication requirement, otherwise, it shall be maintained that the Official Gazette mentioned therein should pertain to the written publication. The electronic version can still be maintained but only for purposes of informing the public of the existence of the same and not as a basis of reckoning the period of the effectivity of a newly promulgated law. It is worthy to note that the publication requirement is not merely an administrative move but was presented to the public through the issuance of a law or rule in the exercise of the rule-making power of the legislative department and the President.

On the other perspective, for purposes of applying the relevant provisions of the E-Commerce Law (RA 8792), the laws published online shall be considered as the functional equivalent of the written document under existing laws for purposes of legally recognizing electronic documents. In presenting a law as a matter of evidence before a court proceeding, its electronic version shall not be denied of its admissibility on the sole ground that it is in electronic form or on the ground that it is not in written form as provided for under Section 12 of E-Commerce Law.

Summary

Based on the abovementioned discussion, it can be said that the electronic version of the laws to be promulgated and uploaded on the Official Gazette website cannot be said to have sufficiently comply the requirement of publication before any law of general application becomes effective. Neither the electronic version of the law be disregarded as an evidence in court since the electronic copy is considered as the functional equivalent of the written format as provided for under Sec. 7 of the E-Commerce Law.

Whether it is in the electronic or in a written form, at the end of the day, the important thing is that the public was informed of the existence of the law under which he is bound to follow. Such right to be informed is an essential requirement of due process that every citizen should be afforded the most convenient way of informing them newly promulgated rules. On the other hand, it is the obligation of the government to exert efforts in informing the public that such law exists, use all possible means to reach as many, if not the entire population, that a government issuance was promulgated and that same will be made applicable to them.


Can a Party to a Case Decided and Published by the Supreme Court Request for the Removal of His Name on the Ground of His Right to Privacy?

In all cases, whether it is criminal, civil or administrative, there are always parties involved over whom the court acquired jurisdiction to be able to resolve an issue. And all throughout the process, these parties were mentioned until the case reached the Supreme Court such that the case will be decided in its finality.

With the advent of information technology, making almost everything available online, the public can now see how the Supreme Court decides a particular case by accessing the same in its website, http://www.sc.judiciary.gov.ph. There is neither a restriction nor prior a requirement to be able that one can go over and read the cases. Thus, the parties to these cases will be revealed to the public even without such direct intention to do so. In publishing these cases, the Court is giving information on the jurisprudence or judicial decisions promulgated by the said institution to which the public can rely aside from the laws passed by the legislative department. This was in accordance with the provision of the New Civil Code stating that “judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines”. As part of the legal system, at some point these decisions will affect the public and as such they should be informed on its existence as a matter of their right. Given these circumstances, the question now is, “can a party to a case request the Supreme Court to drop or remove his name in the case decided and published by the same Court by invoking his right to privacy?”

In the case of People v. Cabalquinto, G.R. No. 167693, allowed the, the Supreme Court allowed the removal of the name of the victim, who, at the time of the commission of the crime, was still a minor to protect his privacy and dignity. It is also important to take note that in the same case, the comment of the Office of the Solicitor General (OSG) on the issue of right to privacy to wit:

“In order to determine whether the subject matter upon which the right to privacy being invoked falls within the constitutionally-protected zone of privacy, it must be shown that the person’s expectation of privacy is reasonable. The reasonableness of such expectancy depends on a two–part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.”

In this regard, we can say that the request for the removal of the name of a party in a case can only be granted if such request is within the two-part test as stated by the in case of People v. Cabalquinto, supra. Even prior to this case, Republic Act No. 8505, which provides for the assistance and protection to rape victims, has a provision which speaks of protective measures for rape victims. The said provision is stated as:

Section 5. Protective Measures. – At any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.

In addition, Republic Act 7610 provides for confidentiality clause wherein the offended party may withheld his or her name from the public until the court acquires jurisdiction of the case. Similarly, Republic Act 9262 also provides for a confidentiality clause wherein all records pertaining to cases involving violence against women and their children.

In sum, it can be concluded that as a rule, the request of a party to remove his or her name in a case decided and published by the Supreme Court cannot be granted, except:

  1. by his conduct, the individual has exhibited an expectation of privacy, and the expectation is one that society recognizes as reasonable; or
  2. when the case involves violation of RA 7610 or RA 9262, wherein there is a need to protect the dignity and privacy of women and their children.

On the other hand, the question on whether the first circumstance can be used by an accused, whether his or her guilt has been proven or not, is another issue which, at this point has yet to have a supporting jurisprudence since there is no existing law to that effect.


Can the Airport Security Personnel Compel Passengers to Search their Laptop or Similar Devices for any possibility of Committing an Offense?

In our jurisdiction, the right of every individual against unreasonable searches and seizures is guaranteed as reflected in the 1987 Constitution which provides that:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

However, this right is not absolute for there are acceptable exemptions that can be invoked by any individual or any authority to serve for a greater purpose, especially when the search is reasonable and/or one granted by the court of competent jurisdiction. In applying the reasonableness of any search in the one conducted in airports. There are people who would see this as a violation of one’s right to privacy and security of his or her belongings. The same procedure may seems to be one which treats individuals as if they were criminals or a violation of one’s civil right for causing emotional distress to the passenger. These questions, in an ultimate manner, can be rebutted by a simple and most objective reason, so far, is that of securing the lives of the passengers and airport personnel. As we all know, airports, same as seaports, are the main entries or the so-called “gateway” to one’s country, for without it, the possibility of migration and immigration of individuals to and from one country cannot be attained. In the Philippines, the inherent power of the state to exercise police power has been the root of all laws, rules and regulations passed by proper authorities, which, at some point, are objectionable for violating certain rights of an individual. But even in the earlier times, it is an acceptable practice that there are certain rights that an individual or a number of individuals should surrender to give way to the government to exercise its power for the benefit of the public in general.

In almost all airports in the world, it has been a practice that before and individual go on board or before he or she can leave the premises of the airport, he or she must first undergo the routine search of his or her belongings. With the advent of terrorist attacks illegal drug-related shipments, carrying of harmful or deadly weapons, airport security was tighten to ensure the safety of the riding public as well as to avoid any untoward incident that may happen in a country for a not having a secure airport facility.

For this modern time, there are new laws being passed in tune with the changing time and the inclination of many to do harm to others. The changing attitude of many was brought about by the advancement in systems and technology that we are experiencing. In fact, the introduction of new gadgets is very fast that almost every six months, if not, every year, there are new things being introduced in the market which aimed at making our lives easier and more comfortable. These new gadgets also help many people to cope with fast paced environment. At times, these gadgets, unfortunately, were being used to some other purpose which may bring harm to others or be immorally not right. In fact, pornography for instance took a night form, making it more accessible to all ages because of internet and laptops and/or tablets.

Now on the core of this discussion, take for instance a passenger, carrying his or her laptop or tablet entered a country, subjecting that person to a search on his or her belongings including his laptop or tablet, can that person be penalized should there be any material found to be violative of any laws or regulations of that country?

Individuals are on the look out of maintaining their control over information about themselves. In fact, many individuals store some essential information about them in their respective laptops or other related electronic device since the latter has the capability to contain or hold a large amount of information including personal emails, letters, photos, videos, medical information, financial records and the like. Opening and viewing these files may prejudice the dignity and privacy of the concerned individual. As such, the privacy of this information should be protected. In fact, in the United States of America, the case of United States v. Arnold, the Court found that an individual has a reasonable expectation of privacy for the data and files within a computer or other electronic storage devices where the person has taken steps to conceal the data files from view. In that same case, Arnold, who arrived in US from the Philippines. Upon inspecting his luggage, customs officials found a laptop computer, a hard drive, a computer memory stick and six cds. When a customs official asked him to open the laptop to which he did. The customs official access the two folders of Arnold on the said laptop and found something which they believed to be a child pornographic material. His laptop was seized, including the storage devices. He argued that said, having done without any search warrant violated his right under the Fourth Amendment. Although the District Court of the Central District of California agreed with him, said decision was reversed by the Ninth Circuit Court of Appeals upholds the validity of the warrantless search to be valid a it falls within the view of the so called border search.

Under the border search doctrine, the state has the right to regulate the entry and exit of individuals in its borders. Warrantless border searches are reasonable because of the belief that the sovereign nation has the right to protect itself by stopping and examining persons and property crossing its border. Routine border search do not require reasonable suspicion, probable cause or a warrant, it is not the same in nonroutine searches. The same principle was elucidated in the case of US v. Arnold.

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