SY 2011-2012, Second Semester
- Official Gazette Going on line.. A law student’s two cents…
- Depublication…a right of a losing litigant?
- Validity of Search and Seizure on Laptops by Authorities
The office of the president has launched recently the digital version of the Official gazette of the Republic of the Philippines. The gazette, which primarily purpose is to publish matters of public interest including newly enacted laws, executive and administrative orders will finally be published on line. The endeavour will certainly create mass dissemination of information thereby enhancing public awareness to huge number of people who could hardly get a physical copy of the official publication.
Implication on Art 2 of the Civil Code:
States “ law shall take effect after fifteen days following the completion of their publication in the Official Gazette” . Given the constraints and limited readership, President Corazon Aquino later issued an executive order, specifically EO 200 which further provides that “ Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette or in a newspaper of general circulation in the Philippines”. This being the case, all government laws and orders can now be published not only in the Official Gazette but rather to any news paper of general circulation.
Obviously, the online publication of the gazette enables a faster approach in terms of updated data and inputs, now the next question lies if it conforms with the Art. 2 of the Civil Code provision. On my own humble opinion, I think the online version should not in anyway replace the duration set by the Civil Code as not all concerned Filipino citizens have the opportunity and luxury to gain access on online technology as much as they can do on newpapers of general circulation, the latter being affordable and more accessible to public. Nonetheless, I believe the purpose of digital publication is not seemingly to contradict the provision of the Civil Code pertaining to the 15 days waiting period, but rather to strengthen public cognizance. Otherwise, the legislative should initiate another amendment or EO that would pave way for the lessening of the duration of the effectivity of the laws once it have been published in digital version. However, until such time, to my mind, the electronic counterpart is not yet designed and intended, so far, as to replace the paper version. Still, the latter remains controlling as far as effectivity of laws is concerned.
In Relation to Tanada vs Tuvera :
It is the people’s right to be informed on matters of public concern & corollarily access to official records, & to documents & papers pertaining to official acts, transactions, or decisions, shall be afforded the citizens subject to such limitation as may be provided by law . Laws, to be valid & enforceable, must be published in the OG or otherwise effectively promulgated. The publication of presidential issuances “of public nature” or “of general applicability” is a requirement of due process. Before a person may be bound by law, he must first be officially informed of its contents.
Relative to this jurisprudence which supports Art. 2 of the Civil Code, the online publication as mentioned earlier only enhances public awareness in terms of newly enacted laws and is not designed as a means of alternative that would entail conflict as far as the 15 days effectivity provision of Art 2. is concerned.
Implication on E-Commerce Act of 200 R.A 8792:
Sec. 3 Objective: promote the universal use of electronic transactions in the government and by the general public.
Section 27. Government Use of Electronic Data Messages, Electronic Documents and Electronic Signature. – Not with standing any law to the contrary, within two (2) years from the date of the effectivity of this Act, all departments, bureaus, offices and agencies of the government, as well as all government-owned and –controlled corporations, that pursuant to law require or accept the filling of documents, require that documents be created, or retained and/or submitted, issue permits, licences or certificates of registration or approval, or provide for the method and manner of payment or settlement of fees and other obligations to the government.
RA 8792 contemplates on electronic data message as a functional equivalent of paper documents primarily aimed for evidentiary purposes. Therefore, it only provides for the admissibility of internet based documents as original documents that would be now acceptable in court proceedings. It does not in anyway speaks of internet being a medium for publishing rules and regulations. This is further enunciated on the case Garcilliano vs House of Representatives wherein the court upheld the validity of newspaper publication rather than online publication of the Senate on its rules of procedures.
Conversely, although the E-Commerce Act provides that government entities are licensed to use electronic documents as a mode of facilitating its business transaction nowadays, it should be understood that the Act involves only means to facilitate government services stressing on the use and retrieval of documents and not specifically encompassing the publication of laws and orders for that matter. Stated Otherwise, it should be construed that E Commerce may be a tool somehow to support the online publication of the gazette, however, a supporting statute or amendment relative to the Civil Code must be enacted in order to stricken any doubts as to its real purpose. Finally, it should be emphasized on the amendment that the use of “publication” may cover “on line publication” too in order that laws published on internet may validly be considered as conforming to the Civil Code. Also, the 15 day reckoning period issue which may vary once on line publication attains its validity is to be discussed separately. This issue however should be left on the sound discretion of the legislative.
This question should be answered in the negative. The court, the Supreme Court specifically has some sort of implied privilege of communication when it comes to cases officially published be it in official gazette or website . In the same way, the right arises from the right to information of citizens as one of the constitutional rights as enunciated below;
Art III Sec. 7
Section 7. 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.
Verily, Supreme Court cases are decisions that form part of the laws of the land. The publication of any of these not only informs the public of a prevailing jurisprudence but likewise becomes a stare decisis case which is of paramount significance to the knowledge of every law makers and concerned citizens of the country. Indeed, it becomes a precedent and a source of law in the future.
Another legal basis is that which found on the Civil Code that says;
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.
In my own humble opinion, it stands to reasons that losing litigants should not be given any right of depublication of a case, apart from the reasons of legal doctrines cited, I believe that denial of the privilege should be taken as one of the consequences of unlawful acts and unreasonable pursuit of a losing litigant. To decide otherwise would cloth culprits from shame and preclude them from absorbing the lessons of laws. Likewise, if all losing litigants would have the option to omit their names or unpublished the case which they are involved, in effect, very few jurisprudence would be within reach of every law students for learning and mastery. However, it does not necessary follow that publication would pave way for public prosecution and criticism. We only believe in two purposes which are Awareness and Strengthening of legal systems.
Although in some cases abroad, like for instance inCalifornia, the losing party has some options to consider like the filing of petition for depublication for which the decision is left to the discretion of competent courts. However, in thePhilippines, I have yet to find such privilege to have been given as far as local jurisprudence is concerned.
Article III Section 2 of the 1987 Constitution enunciates the right of a person against unreasonable search and seizures.
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.
It must be noted that above mentioned right can only be invoked upon authorities of the government and not against any private person, business or entity. It provides for the protection of an individual against unreasonable search and seizures of government authorities upon himself and his properties that may later on prejudice him. The question now is whether a computer equipment such as laptop or any electronic evidence can be embraced by this right.
This must be answered in the negative since as far as recent international rules suggest, warrantless searches of laptops in airports without probable cause are considered legal and constitutional by international lawmakers. Otherwise stated, search and seizure in airports for instance, can be considered as an exception to this right. The rationale of this rule emanates from the border search doctrine wherein it justifies the searches done by authorities in order to protect territorial safety because they have every reason to suspect that foreigners may be carrying foreign contraband that may harm internal peace and safety . In additional, international jurisprudence as enunciated in the case of United States vs Arnold holds that it does not even require that government agents to have reasonable suspicion before searching laptops or digital devices at the border, including international airports. The authority to search baggage of arriving international travellers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.