SY 2011-2012, Second Semester
- Publication of a law in the Official Gazette Online in www.gov.ph
- The issue of privacy
- U can’t touch my HARD Diks
Is the publication of law in the Official Gazette Online at http://www.Gov.ph, be recognized as a valid compliance of publication requirement, taking into considerations the provision of Article 2 New Civil Code, Executive Order 200, Commonwealth Act No. 638 and Republic Act no. 8792?
Article 2 of the New Civil Code provides ” Laws shall take effect 15 days following their complete publication in the Official Gazette unless otherwise provided”
This has been amended by E.O. 200 to the effect that a law, to be operative must be published in the Official Gazette or in a newspapaer of general circulation unless otherwise provided…
C.A. no. 638, on the other hand, mandates the publication in the Official Gazette , of the following A. All legislative issuances of the congress of the Philippines, B. Executive and Administrative orders, C. Decision of the Court of Appealsd and Supreme Court deemed to have sufficient importance to be published, D. Those papers and documents as determined by the President to have legal effect and general applicability.
A law should be enacted repealing or amending provisions contained in Article 2 of the New Civil Code and R.A. 8792. In the absence of such amendments, laws published through the Official Gazette Online must be considered as having no force and effect.
Along the same vein, claims that R.A. 8792 of 2000 validated such publications is, in my humble opinion, based on a wrong legal anchor, Under the E- Commerce Law, an electronic document has the functional equivalent of a written document but only for evidentiary purposes; the law considers the admissibility of electronic data message or documents as evidence. The law does not contain a provision making internet a mode of publishing a statute or law.
As long as there is no law repealing or amending Article 2 of the New Civil Code and R.A. 638, the requirement that for a law, to be valid, should be published in the Official Gazette or in a newspaper of general circulation must be observed.
This is an issue dealing primarily with privacy.
Privacy is defined as that state of being in retirement from the company or observation of thers; seclusion.
Privacy may be sub divided into 4 separate but related concepts.
- Information privacy- Related to rules governing the handling and collection of personal data.
- Bodily privacy. Deals with the protection of people’s physical selves against invasive procedures.
- Privacy related to communication. this covers mails, phobe conversation, emails etc.
- Territorial privacy. Imposition of limits on intrusion into the domestic space and other environments.
The view that a general right to privacy must be afforded protection is a recent phenomenon. ” The Right to Privacy” , published in the Harvard Law Review in 1890 by Warren and Brandies, is regarded as the source of the modern discussion on the topic.
The prevailing concern for the protection of privacy may be attributed to (1.) change in the nature and threat of privacy brought about by technological upheaval, (2)advent of tabloid journalism. These two factors made it expensive or almost impossible for persons to attain the same level of seclusion previously enjoyed.
Some may disagree but privacy law is culturally rooted. Regarded as a basic right in Europe,eyed with pragmatic interst in North America, it is a topic just recently emerging in Asia. Privacy law accepted and functioning in England may not necessarily work in America and in our country.
It goes without saying that privacy interest will definitely collide and interfere with other interests. No single interest is supreme. even if privacy is a primordial human right, it cannot stand by itself, and sadly, the exercise of such right on behalf of another person may have negative consequences for another.
Presently, R.A. 8505 and RA 7610 are legislative enactments affording privacy to certain classes of individuals.
the Supreme court, in the case of People vs. Cabalquinto gr no. 167693, in Sept 2006, withheld the name of a rape victim.
These are, however, enactments and judicial decisions extending protection only to women and children who were the victims.
The Office of the Solicitor General suggested several elements that should be present in order for the request of a person, that his name be witheld in a decision of a court should such decision be prejudicial to him, be removed.
There must be a clear showing that the individual’s expectation of privacy must be reasonable, and such reasonableness depends ona 2 part test 1) wheter by his conduct, the person has exhibited an expectation of privacy, and (2) whetert he expectation is one that society recognizes as reasonable.
On the first element, expectation of privacy must be perceptible. However, it must be coupled with reasonableness. An offender has no right invoking his right to privacy on overt acts which is clearly a crime. Hiding information of such nature by the courts is detrimental to public interest.
In my opinion, if a person is involved in a case, and he is not the offended party in a rape or violent crimes against women and their children, he may not invoke his right to privacy, even if the decision of the court may tarnish his reputation or character.
Chan Robles Library, and other related websites, cannot be ordered by a private individual to have their names stricken off their sites in cases decided by the court on claims that it is violative of their right to privacy. These are institutions dependent on what the tribunal gives to them; these offices are, to my mind in these regard, mere extensions of the Supreme Court.
Imagine yourself as you are about to enter the NAIA , sweating profusely from the 100 meter dash you just did from the parking area to avoid the blistering sun, while placing placing your suitcase and other effects on the conveyor belt to be x rayed, the airport officer, in his trying to be stentorian voice bellowed “hijo open mo nga laptop mo, tingnan natin kung me mga illegal diyan”. What would you do?
The sad truth of the matter is, in my humble opinion, we have no choice but to submit to such a search no matter how intrusive they may be.For the very simple reason that the airport authorities will have a very convenient excuse not to let you in should you refuse them to go over the contents of your laptop..national security, safety of others, child pornography etc…
Now, would that be valid? to force you to open your laptop, and provide them with the password so they can check the files and make a determination as to the legality or illegality of the contents? In my opinion, it should be regarded as an invalid search, and under the exclusionary rule, whatever evidence gathered or discovered under a search which is in violation of the right against unreasonable search and seizure are fruits of a poisonous tree and must be rendered as inadmissible.
Despite numerous US rulings such as in the case of a Colorado Bank Fraud defendant Ramona Fricosu, In re Boucher, and the case of John Ickes, which all compelled the defendants to provide authorities with their respective passwords which eventually lead to all three being convicted arising from evidence gathered from their laptops, I deeply feel that convictions of this nature should not be allowed to happen in our jurisdiction.
An airport search should be compared to a search upon entry to a department store— mostly visual and minimal frisking, and that should be the end of it, for your suitcase, the airport has the x ray. An inquiry inside the contents of your laptop is a fairly intrusive process for anyone to go through. Despite the advent of numerous scanning technologies, we can say that, whether you are hiding something or not, a search of the files inside your hard drive would be like a body search…cavities included.
A hard drive is a repository of what we think, an extension of our mind, our feelings. Additionally, it also contain informations about our bank records, phone records, health informations, Atty- client communications, patient- doctor records- you have no idea what some unscrupulous individuals would do with that kind of data.
Need a piece of advice? leave your laptop