[Mirror] Apordo, Mark Christian

SY 2011-2012, Second Semester


Official Gazette GOES ONLINE

As all law students know, laws to be valid and enforceable it must be published first. Our Supreme Court, in the case Tañada vs. Tuvera G.R. No. 63915. April 24, 1985 (the first Tañada case), reasoned that an omission of publication would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it (Romulo L. Neri vs. Senate Committee on Accountability of Public Officers and Investigations. G.R. No. 180643. September 4, 2008). The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby.

Comes now, Manolo Quezon (a member of the Communications Group of the Aquino administration) announced that Official Gazette is now online at http://www.gov.ph. But with reservation that the print version of the Gazette still takes precedence over its electronic counterpart. The online version doesn’t supplant the paper version, which is what the law and jurisprudence required.

Thus an interesting question arises as whether the publication in the said website is compliant with the provision of Article 2 of the Civil Code of the Philippines as amended, vis-à-vis due process clause and also by considering the pertinent provisions of Electronic Commerce Act of 2000.

Article 2 of the Civil Code of the Philippines as amended provides 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. 200)”

While Section 7 of Electronic Commerce Act of 2000 provides that:

Section 7. Legal Recognition of Electronic documents- Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and-

(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference, in that–

i. The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and

ii. The electronic document is reliable in the light of the purpose for which it was generated and in the light of all relevant circumstances.

(b) Paragraph (a) applies whether the requirement therein is in the from of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original from.

(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if-

i. There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final from; and

ii. That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity.

For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws.

This Act does not modify any statutory any statutory rule relating to admissibility of electronic data massages or electronic documents, except the rules relating to authentication and best evidence.

The last paragraph of Article 2 of the Civil Code of the Philippines “unless it is otherwise provided” pertains to the date of effectivity of the law published and not referring to any other medium or means of publication as it is already settled in case of Tañada vs. Tuvera. G.R. No. L-63915. December 29, 1986 (the second Tañada case) where the Supreme Court ruled that publication must be effected in the Official Gazette and not in any other medium. Thus, mandating strict construction of the law. Constrained to the said ruling, President Cori Aquino was forced to enact Executive Order no. 200 (1987) inserting the option of having laws to be published in the newspaper of general circulation. Therefore, the inevitable conclusion is that there are only two mediums or ways of publishing a law in order to comply with the requirement of Article 2 of the Civil Code, to wit:

  1. Official GazetteG (Article 2 of the Civil Code of the Philippines and the second Tañada case)
  2. Newspaper of General Circulation (Executive Order no. 200 [1987])

Without official publication in the Official Gazette or in a newspaper of general circulation there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that “Ignorance of the law excuses no one from compliance therewith” (People vs. de Dios, G.R. No. L-11003, August 31, 1959, per the late Chief Justice Paras).

Undeniably the pronouncement of the Communications Group of the Aquino administration give rise, for the second time, the similar issue raised in the second Tañada case: Must the publication be effected only in the Official Gazette and Newspaper of General Circulation? And significantly the question to our mind, does the publication in the website http://www.gov.ph would comply with the provisions of Article 2 of the Civil Code of the Philippines?

The question seems to be already answered in the case of Garcillano vs. The House of Representatives G.R. No. 170338, December 23, 2008, where the court categorically held that:

“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.”

But I put my reservation on the said ruling because the primary guiding principle behind the Electronic Commerce Act of 2000 is the “functional equivalent” approach. It must noted that Electronic Commerce Act of 2000 was only lifted in the Model Law on Electronic Commerce (Model Law) of UNCITRAL. To understand the principle of “functional equivalent” in simple terms, the functions of say, a document or a signature is analyzed, and if an equivalent exists in electronic form, then it will be adopted. For example, a signature performs the function, among others, of identifying the signer and indicating his consent to a document. If an electronic method performs the same functions, then such method would be considered an electronic signature (Atty. Jesus M. Disini, Jr. and Janette C.Toral, The Electronic Commerce Act, and its Implementing Rules and Regulations, Annotation, PhilExport, September 2000).

It is like a reminiscing of the second Tañada case, which begs for the enactment of further law for effectiveness and efficiency of the of Electronic Commerce Act of 2000 especially the provision on the Legal Recognition of Electronic documents and its Implementing Rules and Regulation which provide that:

SECTION 7. Legal Recognition of Electronic Data Messages and Electronic Documents. — Information shall not be denied validity or enforceability solely on the ground that it is in the form of an electronic data message or electronic document, purporting to give rise to such legal effect. Electronic data messages or electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing. In particular, subject to the provisions of the Act and these Rules:

a) A requirement under law that information is in writing is satisfied if the information is in the form of an electronic data message or electronic document.

b) A requirement under law for a person to provide information in writing to another person is satisfied by the provision of the information in an electronic data message or electronic document.

c) A requirement under law for a person to provide information to another person in a specified non-electronic form is satisfied by the provision of the information in an electronic data message or electronic document if the information is provided in the same or substantially the same form.

d) Nothing limits the operation of any requirement under law for information to be posted or displayed in specified manner, time or location; or for any information or document to be communicated by a specified method unless and until a functional equivalent shall have been developed, installed, and implemented.

These provisions embody the fundamental principle that electronic documents should not be discriminated against but should be given the same legal status as their paper-based counterparts. Note that the first sentence states the rule in the negative to emphasize that the law validates or confirms the legality of the form of the electronic document, not its contents per se. In other words, the law does not automatically state that the information in the electronic document is legal or valid – it might very well be criminal. But such information shall not be denied recognition or effect solely because it is contained in an electronic document (Atty. Jesus M. Disini, Jr. and Janette C. Toral, The Electronic Commerce Act, and its Implementing Rules and Regulations, Annotation, PhilExport, September 2000).

Until and unless the legislative will act on it, the development and the purpose of the Electronic Commerce Act of 2000 will not be attained, if not, a mere trivial-law at all.


WHAT RIGHT TO PRIVACY? WHAT ABOUT?

The 1987 Philippine Constitution does not provide for specific provision on right to privacy per se. Instead, it only provides provisions on certain right to privacy like the privacy of communication and correspondence (Section 3, Article III); and the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose (Section 2, Article III).

On the other hand, Section 7 of Article III of the 1987 Philippine Constitution 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.”

Thus, giving the room to a potential conflict of ideas and interpretation of protection of person’s right to privacy against the right of the people to information.

It is worth to note that in the United State, right to privacy is being anchored in the right to liberty of a person so that it encompasses the general right to privacy. These argumentations can be seen in the cases of Meyer v Nebraska (1923), Griswold v Connecticut (1965) and a more recent one Ravin v State (1975) wherein the Alaska Supreme Court found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home. But of course these rulings are not binding upon us because foreign laws and jurisprudence are not controlling but only have a persuasive effect.

Lawyers and law students may have inferred that a right to privacy per se exists during the feast of the controversial National Identification Card System that has been pushed since the time of President Fidel V. Ramos (Blas F. Ople vs. Ruben D. Torres, G.R. No. 127685, 23 July 1998); supported during his short term by former President Joseph “Erap” Ejercito Estrada; and eventually prospered during the time of former President Gloria Macapagal-Arroyo by virtue of Executive Order No. 420 (Kilusang Mayo Uno vs. The Director-General, G.R. No. 167798, 19 April 2006).

Thus, if a question is ask whether an accused can ask the Supreme Court to drop his name or to prohibit the publication of his name in the website or in any means of publication (i.e. SCRA, SCAD, LawPhil.Net, Lawyer’s Review et al) in its Decision in order to hide his identity and therefore protect his remaining reputation to the public, it is safer to invoke such right by citing a specific or a positive law that gives such accused the right to privacy under a specific circumstance.

For specific and usual case, violation against women and their children, victims are the only one protected with their right to privacy and never has been of the accused. As basis and authority, Section 44 of Republic Act No. 9262 and Section 40 of A.M. No. 04-10-11-SC (October 19, 2004) provide that:

“SECTION 44. Confidentiality. – 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 to 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.

Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand pesos (P500,000.00).”

xxx

“SEC. 40. Privacy and confidentiality of proceedings. – All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy.

Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos.”

As an illustration of this is the case of People vs. Cabalquinto (G.R. No. 167693, 19 September 2006) wherein the Supreme Court agreed with the Solicitor General on the idea that:

“the fact that the aggrieved child may have consented, through a parent or guardian, to a public hearing of the case does not negate the expectation of privacy which the child may later invoke because child victims cannot be presumed to have intended their initial agreement to extend beyond the termination of their case to the posting of the decision reached by the Court on the Web Page. Moreover, such an expectation of privacy is reasonable considering the various statutes and rules which reveal the intention of the State to maintain the confidentiality of information pertaining to child abuse cases.”

Thus, the Supreme Court ordered to retain the confidentiality of the real name of the victim-survivorand the use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, was ordered not to be disclosed in public.

But there is an interesting provision of Section 5 of Republic Act No. 8505 which recognizes the privacy of the accused and probably may be construed by others as the basis of the accused to eliminate his name in the Decision of the Supreme Court before its publication, it provides that:

“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.

The investigating officer or prosecutor shall inform the parties that the proceedings can be conducted in a language or dialect known or familiar to them.”

However, as can be gleaned from the provision is that it is only applicable during the investigation and the preliminary process of prosecuting the accused. This is logical enough because at that stage the accused is still presumed innocent. But that is not the case when the accused is already convicted.

Once the accused is convicted, the public has the right to be informed of the same and shall be accessible to public for their information. This is the Constitutional mandate under Section 7 of Article III (which is quoted in the first part of this work) and Section 28 of Article II of the 1987 of the Philippine Constitution which provides that:

“Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

One may ask, what if the accused have been acquitted, can he now ask for the removal of his name and use instead of pseudonym on the Decision? In strict legal sense, the possible answer is still in the negative considering that there is no law that grants such right to remove his name. The wording used in the provisions in the 1987 Philippine Constitution are “Subject to reasonable conditions prescribed by law” and “subject to such limitations as may be provided by law” which only suggest that a law should be enacted. And there is none son far (thanks to our hard working Congress). In practical sense, it is my humble reasoning that the accused should not move for the deletion of his name for that Decision itself will attest to his innocence and therefore will be an instrument to repossess his good reputation despite inevitable stigma.


Not My HARD DIsK

As the world goes digital faster than expected, many of our laws becomes questionable as to its application. It is presumed, however, that when Congress makes laws, they are anticipating future complication that may came out and thus formulating and inserting provisions to such laws to remedy the same as soon as it becomes apparent. The same presumption holds true when the 1987 Philippine Constitution was drafted.

That is why if person is confronted by an authority to give his password to his laptop or hard disk or to any encrypted files, he has the right to refuse or not give his password unless of course the authority is armed with search warrant or valid order of court. It goes without saying that the warrant should have complied with the following requirement:

(1) it must be issued upon probable cause;

(2) the probable cause must be determined by the judge himself and not by the applicant or another;

(3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and

(4) the warrant issued must particularly describe the place to be searched and persons or things to be seized

This right is based on Section 2, Article III of the 1987 Philippine Constitution, which reads that “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 same conclusion holds true, that person can refuse to give his password, during the trial stage. As the same may constitute violation of right against self-incrimination. Section 17, Article III of 1987 Philippine Constitution provides that “No person shall be compelled to be a witness against himself.” This is based on humanitarian and practical consideration. Humanitarian because the government can easily coerce someone to testify against himself; and practical because there is a very small chance that a person will testify against himself. Notably, this right against self-incrimination can be invoke not only in criminal proceeding but as well as in civil, administrative and legislative proceeding.

However, right against self-incrimination is only applicable to testimonial evidence. Thus, the issue boils down as to whether giving the password to an encrypted hard disk would constitute compulsory testimonial self-incrimination.

Testimonial evidence, in connection with right against self-incrimination, is a communication of thoughts or information in response to official questions or interrogations. It is communication of person’s thoughts, beliefs, or knowledge and it can be oral, written, or inferred from person’s conduct. As held in Beltran vs. Samson, 53 Phil 570, “writing is something more than moving the body, or the hand, or the fingers; writing is not purely mechanical act, because it requires the application of intelligence and attention. Thus, the court held that the accused cannot be compelled to furnish a specimen of his handwriting as it will incriminate him.

Therefore, in analogy, giving the password would constitute as self-incriminating testimony against anyone. The only remedy that the government may do is to ask the same court to allow them, after determining probable cause, to search the same but with the clear and specific condition that other documents, aside from the one specified in the petition, which may be found therein, should be inadmissible evidence.

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