[Mirror] Abellar, Mae Ann

SY 2011-2012, Second Semester

Validity of Publication in on line official gazette

Facts Given: E.O No. 4 was issued by the office of the President providing that the official gazette is now in electronic form at (http.www.gov.ph).

If a law is published in the web gazette would it satisfy the requirements of Art. 2 of the Civil Code in relation to the Tañada vs. Tuvera case.

Validity of a law’s publication in the online Official Gazette

Publication in the on-line Official Gazette alone is contrary to Philippine law and jurisprudence.

1. It is violative of the due process clause enshrined in the highest law of the land which states that “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” (Sec.1 Art.3 1987 Constitution)

Due process is a rule of fairness and equality. It requires that a person who must obey a command must first know what the command is. On line publication of laws does not reach out to all the people of the country. In a third world country like the Philippines it’s sad to say that not all Filipino’s have internet access, can afford one or even knows how to operate or access the net. If publication is only in the web gazette it would deprive those who do not have access to such and violate one’s right to be informed of the laws which he is expected to know and obey.

2. It does not satisfy the publication requirement of Art. 2 of the Civil Code which states that “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. ( As amended by E.O. No. 200)

The aim of E.O. NO. 200 is to provide a better way of communicating the laws to the most number of people which could not be achieved through mere on line publication alone. It’s whereas clauses provides that “WHEREAS, the requirement that for laws to be effective only a publication thereof in the Official Gazette will suffice has entailed some problems, a point recognized by the Supreme Court in Tañada. et al. vs. Tuvera, et al. (G.R. No. 63915, December 29, 1986) when it observed that “[t]here is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic release and limited readership”;

WHEREAS, it was likewise observed that “[u]ndoubtedly, newspapers of general circulation could better perform the function of communicating the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly”;

3. It’s contrary to the jurisprudence laid down in the case of Tañada vs. Tuvera (146 SCRA 446) because when such decision was promulgated the Supreme Court was referring to the printed Official Gazette and not to the web gazette which became accessible on line last July 2010.

In the case of Tañada vs. Tuvera (146 SCRA 446) the court ruled that “Without such notice and publication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.”

If a law is published in the on line Official Gazette alone such law is not effective and valid for failure to comply with the publication requirements laid down in Art. 2 of the Civil Code and enunciated in the Tañada vs. Tuvera case. In the absence of a law amending Art. 2 of the Civil Code the doctrine laid down in the case of Garcillano v. House of Representatives (G.R. No. 170338 December 23, 2008)could preclude such a claim.

“ The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations. Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only “in accordance with its duly published rules of procedure.”

In the words of the late former president Magsaysay let us be reminded of the people’s right to be informed of the laws which will govern them no matter what their status in life is “ Those who have less in life, should have more in law.”

“The Right to Privacy in On-line repositories of Philippine Jurisprudence” [1], [2]

“The Right to Privacy may be defined as the right of the individual to determine when, how, and to what extent he or she will release personal information.” (R V Duarte 1 SCR 39) On the other hand the Right to Official Information is an indispensable element of a functioning representative democracy. The ideal of a “government by the people” presupposes that the people have access to information on matters of public concern in order to effectively exercise its governing power.” (Explanatory Note House Bill 2993)

No less then the supreme law of the land guarantee’s the right of people to information and matters of public concern. Sec.7 of the Bill of Rights provides that, “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

Article 26 of the New Civil Code protects an individual’s right to privacy. It provides that “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief….”

There seems to be a conflict with the provisions of law above-cited and there is an issue as to which amongst them must prevail. Can a party litigant invoke his right to privacy and ask for the removal of his name or the text of the whole decision adverse to him? Would this be a violation of the public’s constitutional right to information?

The Constitution is the supreme law of the land and all laws must bow before it. (Art. 7 NCC) As a citizen of this country we have the obligation to uphold the Constitution and obey the laws of the land. When we submit ourselves to the jurisdiction of the courts by filing a case or being a participant in it we set the judicial machinery in motion and we could not later on complain that the published decision violates our rights to privacy for decisions of the Supreme Court forms part of the law of the land. We are not left without remedy though, for the Right to Information is not all encompassing it is subject to such limitations as may be provided by law. An example of this limitation is Sec. 44 of R.A. 9262 which provides that “All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics or hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter’s consent, shall be liable to the contempt power of the court.” Applying the said provision of the law the Supreme Court protected the identity of the victim and her family by using fictitious initials in the case of People v. Cabalquinto (G.R. No. 167693,September 19,2006). Even before the Cabalquinto ruling was promulgated on September 19, 2006, the Court has already refrained from posting the full text of decisions in child sexual abuse and similar cases in the SC website. (AM No. 99-7-06-SC, In re: Internet Web Page of the Supreme Court, July 27, 2006)

A person’s right to information must be respected, however we must also be mindful of respecting one’s right to privacy. Thus, we cannot ask for the removal of our names or the whole decision of the Supreme Court for the mere reason that said decision is adverse to us. We must be able to invoke a statutory law which grants such exemption.

“Rights against Unreasonable Search and Seizure of one’s laptop content”

The right against unreasonable searches and seizure in the Philippines is protected by no other than the fundamental law of the land and various statutory laws. It is expressly recognized in Sections 1 and 2 of the Bill of Rights:

“Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Sec. 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.

The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person and recognizes the privacy of letters and other private communications.

The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law the Secrecy of Bank Deposit Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information.

In the Philippine territory one’s right to privacy is indeed guaranteed, however an issue arises if a Filipino citizen is to travel abroad and the contents of his laptop was seized by an Immigration Officer. May he invoke his right against unreasonable searches and seizure?

Yes, if the country where he travelled to is a signatory to the Universal Declaration of Human Rights which protects a person’s right to his property and privacy. As a signatory to the said declaration, a State must comply with their obligation and follow the principle of pacta sunt servanda and amity with other nations. The following are the relevant provisions of UDHR against unreasonable searches and seizures.

Article 3

Everyone has the right to life, liberty and security of person.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 17

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

However, the right against unreasonable searches and seizure is also limited by the UDHR.

Article 29

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

As a sojourning visitor in another country we must be mindful of their laws especially in high risks areas like the airport where we must submit ourselves to their internal rules and procedures as well as security checks as long as it’s not arbitrary, against the law, public policy and morality.

Another exception is when the person is already under the Interpol’s watch list as a suspect of piracy or other crimes. In such cases he may be held under custody and his property may be searched in accordance with a lawful court order. This is also true if the search was done in the interest of “national security” for a State as a “parens patria” must always protect its citizens.

An individual’s right to his privacy ends and must yield to the greater public welfare. He must have a reasonable expectation of privacy depending on what territory he is in.

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