[Mirror] Cauilan, Melody

SY 2011-2012, Second Semester

My Response to “Official Gazette of the Republic of the Philippines” Now Online

With the rise of modern technology, there comes the question about the mandate of official publication. Such law requires publication in the official gazette, however, since internet is apparent and internet transaction has been proven to be faster and more effective as compared to manual dissemination of information, can we allow internet postings to stand in lieu of official gazette?

In order for a law to be valid it has to be published. By virtue of the President Corazon Aquino extant law-making powers, amended Article 2 of the Civil Code (through E.O. No. 200) providing for the publication of laws either in the official gazette or in a newspaper of general circulation in the Philippines as a requirement for their effectivity. It was then, the general assumption that laws take effect within 15 days from the time they are published in the newspaper, rather than in the Official Gazette.The 15 day period might be counted from the time the laws or issuances are posted online at http://www.gov.ph.

The requirement that for laws to be effective only a publication thereof in the Official Gazette will suffice. It was an issue recognized by the Supreme Court in the case of 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”; 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”.

General Rule: Laws must be published in either the Official Gazette or a newspaper of general circulation. Exception: The law may provide for another manner of publication. Different manner meaning: Not in Official Gazette or newspaper of general circulation; or Example: Read over the television or the radio (provided that the alternative is reasonable) or Change in the period of effectivity. Publication means making it known; dissemination. It doesn’t have to be in writing. Requirement of publication applies to all laws and is mandatory.

If the law allows publication in the official gazette to be sufficient, then the on-line publication should be enough. This can be justified in at least three (3) ways. First, the word “publication” in the law means to “make available to the public” and that is exactly what the on-line official gazette does. Second, Sec. 27 of the E-Commerce Act mandates that the government transact business electronically. The online OG fulfils that role. In other words, between EO200, CA638 and the Ecommerce Act, the legislative mandate already exists to authorize the publication of laws through the Internet.

Universal dissemination of the law is the main purpose behind the publication of laws so that the doctrine of “dura lex sed lex” may be validly subscribed to in this jurisdiction. It is well settled in the above cited case of Tañada vs Tuvera that such publication is paramount requirement for the effectivity of laws that must not be set aside. However, upon the spur of technology and the out burst of modernity unforeseen couple of decades ago will warrant the need to for the law to adapt to the ever changing phase of human life. Recently, there has been a moved to publish laws in the internet in lieu to its publication in the official gazette and/or a newspaper of general circulation. No one will contend that dynamism is a key factor for development and progress if not of survival itself, therefore, If an executive order by the President or an act of congress will mandate that said internet publication of laws will suffice for the publication requirement for the effectivity of laws of course it has a presumption of constitutionality and looking at its face value it is a valid law. However, we need to qualify this so called “internet publication” if it is congruent with the intention of the subsequent statute specifically Article 2 of the Civil Code or runs counter to the wisdom behind the publication requirement as reiterated in the landmark case of Tañada vs Tuvera.

The Official Gazette going on-line is an innovation that will bridge the gap of the current generation and the previous in the view point of accessibility, availability and convenience. This moved will only contravene with the intent and purpose of the law if it will supersede the publication requirement in paper form (publication in the official gazette and newspaper of general circulation) because of the simple reason that it will impede the dissemination element of the publication requirement. Although, the internet has single handedly revolutionize the way we live today it is a very inconvenient reality that most part of this country do not have readily available access to modern amenities. It is a depressing truth that remote places in the country are still, in spite of the fast forward development experience in metropolitan areas, in medieval phase of life deprived of the most basic necessities of electricity, clean water source, and alike. If the moved to inter-activate the official gazette would in turn disregard the paper form publication, the big question will be; how will these people far from the more civilized community be properly informed of their rights and the laws being legislated in the furtherance of the general welfare? After all, is it not that sovereignty resides in the people? Therefore, it is a matter of right that said sovereign people be informed with the laws being crafted in their behalf and for their sake. The clear object of Art. 2 of the Civil Code 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. Thus, the word “publication” in the law means to “make available to the public” and that is exactly what the on-line Official Gazette offers .

If going on-line would be an addition to as another form of publication of our laws, then it is to be supported and encourage but if not then it should be stop and prevented at all caused. This is how I see it – My Response to the Official Gazette going on-line.

Can a party litigant who lost in a case request the removal of courts decision published in its website and other repository of laws and jurisprudence claiming that such publication impugns his right to privacy?

PRIVACY as defined In general , the right to be free from secret surveillance and to determine whether, when, how, and to whom, one’s personal or organizational information is to be revealed. In specific, privacy may be divided into four categories

(1) Physical: restriction on others to experience a person or situation through one or more of the human senses;

(2) Informational: restriction on searching for or revealing facts that are unknown or unknowable to others;

(3)restriction on interfering in decisions that are exclusive to an entity

(4) restriction on attempts to know an individuals state of mind.- http://en.wikipedia.org/wiki/Privacy

Privacy and confidentiality are terms sometimes used interchangeably. Although related to each other, these are not identical concepts. Fundamentally, privacy is about persons; confidentiality is about information. Privacy includes both the idea of respect for personal autonomy and an interest in freedom from uninvited and unwarranted intrusions.It also efers to our right to control access to ourselves and to our personal information.

We individuals are the most numerous members of the “Private Sector.” In a democratic societies, the most basic human right right to privacy which in our jurisdiction is rooted under the 1987 Philippine Constitution expressly provided in Article II, Section 2

[t]he 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…

This includes all the physical and mental aspects of private person and citizenship in the private sector. The individual citizen is also the smallest possible minority in a democratic society, the cell of the body politic as it were. The individual gets an entire Article of the Constitution guaranteeing such protection — the Bill of Rights. It has been said that it is THE MOTHER OF ALL RIGHTS. Every person’s Right to Privacy is thus the most precious of democratic rights. It is the Mother of all our core democratic rights.

The issue arose from this is that can a party litigant who lost in a case request the removal of courts decision published in its website and other repository of laws and jurisprudence claiming that such publication impugns his right to privacy?

My position is in the negative.We have to take into account that judicial decisions forms part of the legal system of the Philippines (Article 8 of the New Civil Code). This are public records vested with public interest. Under Section 7 of Article III of the 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”

This inquires the signifance as regards the rights vested in our 1987 Philippine constitution the “Right to Information” or “Right to Privacy” which of this will be given more weight the right to privacy prevails or the right to information.

Every guaranteed right is subject to certain limitations under the law. The 1987 Constitution enshrined the right to privacy in our bill of rights.It has been decided in numerous cases by the court that the right to privacy prevails over the right to information. Every law has its exemption and henceforth the right to privacy is not limitless. The decision of the Court form part of the law of the land as provided for in our Civil Code and therefore if laws need to published, applying the principle that the agent follows the principal, since court decision that we call jurisprudence is the manifestation of the law, Courts Decision must also be published whether in print or online (internet). The paramount consideration in publishing laws is that it serves as an affirmative evidence in part of the government that the law is known to all and therefore ignorance of such may not be established as a defence, underlying the time honoured principle of “dura lex sed lex”. Now, if such decision forming the Philippine Jurisprudence is allowed to be removed then it will violate the people’s right to information, knowing how the law is interpreted or manifested is as important as knowing the law itself.

And finally this lawful purpose, I strongly adhere to believe that no privacy rights are violated.The request by a losing litigant of the removal of courts decision published in its website and other repository of laws and jurisprudence claiming it impugns a person’s right to privacy will not be a proper remedy. It will only be a hindrance to the efficient and effective dissemination of the laws and jurisprudence to the public.

Can Search and Seizure be extended in the content of a laptop?

he right against unreasonable search and seizure is a core right implicit in the natural right to life, liberty and property. Even in the absence of a constitution, individuals have a fundamental and natural right against unreasonable search and seizure under natural law.

Article III Section 2 of the 1987 Philippine Constitution provides:

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, andparticularly describing the place to be searched and the persons or things to be seized.

The Constitution also provides that any evidence obtained in violation of the provision mentioned is inadmissible in evidence (Sec. 3, Article III).

The general rule is this — no arrests and search/seizure could be made without a warrant. However, there are exceptions. Among the exceptions concerning search and seizure are: (1) search of moving vehicles; (2) seizure in plain view; and (3) waiver by the accused of his right against unreasonable search and seizure. These exceptions, while distinct and separate from each other, are often discussed together (routine airport security inspection is a slightly different matter, but that’s the subject of another post).

Search and seizure is valid when made with a warrant particularly describing the place to be searched and the persons or things to be seized. The law also provides for exceptions for warrantless searches. However, searching a person’s laptop is subject to the protection of the Constitution which requires a warrant specifying the document to be searched thereby my answer is in the affirmative that a valid search and seizure can be extended to the contents of a laptop provided it is done in compliance with the law.

RA 9775 otherwise known as The Anti-Child Pornography Law and RA 9239 of the Optical Media Act of 2003 both require search warrants from any court of law for the taking of optical media containing suspicious data.

In US v. Ramsey, searches and seizures to be conducted at the border do not need the warrant requirements due to their government’s interest to secure borders. The border search exception is based on the rationale that the government interest to protect borders is more important than an individual’s privacy interest.1 In People v. Endacott, the Second Appellate District Court of Appeal of California concluded that a search of the defendant’s electronic devices was valid under the border search exception. (United States v. Flores-Montano, 549, 153 (2004) and People v. Endacott, 79 Cal. Rptr. 3d 907, 908-910 Ct. App. 2008)

There are lots of privacy issues on searches and seizures of laptops as these devices hold loads of information. It is up to our lawmakers to set the standard by which our country is secured while privacy rights of individuals are protected.Therefore search and seizure may be done, provided it is limited only to what was alleged in the search warrant as required by law.

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