[Mirror] Guasque, Jacqueline

SY 2011-2012, Second Semester


IGNORANTIA LEGIS NON EXCUSAT: How the web is an effective tool for communication in this day and age

The FACTS:

Since we are now in the age of modernization, people are finding ways as to how to fully utilize the use of the World Wide Web. Publication of news articles, events, commentaries and opinions are readily available 24/7 to the million of users around the globe. But should such style of Publication be made applicable to the requirement necessary for the effectivity of a law?

According to Article 2 of the Civil Code of thePhilippines, as amended by E.O. No. 200, “Laws shall take effect after fifteen days following the completion of publication either in the OFFICIAL GAZETTTE, or in a NEWSPAPER OF GENERAL CIRCULATION in thePhilippines, unless it is otherwise provided.” Hence, it is a mandatory requirement that a law, in order to be effective, needs to be published either in the OFFICIAL GAZETTE or in a NEWSPAPER OF GENERAL CIRCULATION.

The ISSUE:

The usual connotation when someone says “publish” is by means of printing presses and by using papers for printing. However, is it possible to take the word “publish” to the next, not to mention, modern level? Can the Office of the President “publish” the law in the Official Gazette through the web and hence still satisfy the requirement provided in Article 2 of the Civil Code, as amended, for the law to be effective?

The OPINION:

YES. Publishing the law in the Official Gazette’s “Official Website” will satisfy the requirement laid down in Article 2 of the Civil Code.

Publication is the act of offering something for the general public to inspect or scrutinize. It means to convey knowledge or give notice. [1] There is nowhere in the law that provides that a particular way of publishing be used so long as the publication requirement is satisfied. There is no limitation imposed as to how a law should be published in the Official Gazette. Note that a law should be able to accommodate not only the present occurrences but also future ones. It cannot be presumed that the legislature did not foresee the fact that years from the time they drafted the said provision, paper publication will not be the only way of publishing something.

The web is the most convenient and efficient way of communicating to people as it is readily accessible to anyone 24/7. There is no better way to publish the law than through this. The amendment of Article 2 was made to include newspaper of general circulation as the Official Gazette has erratic releases and limited readership. The former was said to perform the better function of communicating the laws to the people as such periodicals are more easily available, have wide readership, and come out regularly. [2] With the availability of the Official Gazette online, a wider audience is expected to be provided with the knowledge of the laws that are supposed to govern them.

This issue should also be related to the Electronic Commerce Act [3], which aims, as one of its goals, to facilitate the storage of information through the utilization of electronic, optical or similar medium. The State recognizes the vital role of information and communications technology (“ICT”) in nation-building and the need to create an information-friendly environment, which supports and ensures the availability, diversity and affordability of ICT products and services. As what the law evinces, the government is amenable to the fact of using technology for government transactions and dealings, provided that the necessary authentication process, rules and regulations are followed.

In line with this, online publication of a law in the Official Gazette Website should be considered as fully complying with the requirement set forth in Article 2 of the Civil Code. Such constitutes the fact that public knowledge of the law was disseminated immediately after it went live.


Endnotes

[1] http://legal-dictionary.thefreedictionary.com/publication

[2] Tañada vs. Tuvera, G.R. No. L-63915 [29 December 1986].

[3] Republic Act No. 8792


Decoding the Constitution: The Right to Privacy in the Philippines

The FACTS:

Mr. A has this estafa case and the case reached the Supreme Court. Unfortunately, he lost the case. As we all know, when a case reaches the Supreme Court, the same is published in every website discussing Philippine jurisprudence. Now, every time someone key-in his name in the web search engines, the estafa case is displayed as one of its results. Due to such, Mr. A suffered humiliation and embarrassment from people, who chanced upon such search result of his name. Because of this, he wants his name be removed from such websites and he therefore invokes his Constitutional right to privacy.

The ISSUE:

Can a person request that his name be removed from such websites pertaining to SC decided cases as the same is a violation of his right to privacy? Why? Why not?

The OPINION:

No. A person cannot ask for such removal as the same does not constitute as a violation of his right to privacy.

The Philippineshas no specific law on privacy. However, the 1987 Constitution [1] tried to provide under its Article III (Bill of Rights) provisions for the right to privacy, namely:

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.

Section 3.

1)The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

Basically we can draw out what the Constitution guarantees, as with regard to right to privacy, are (1) the rights against unreasonable searches and seizures; and (2) the privacy of communication and correspondence. The situation brought up by such facts neither falls in the said classification.

Note also that under Section 7, Article III of the Constitution, the right of the people to information on matters of public concern shall be recognized. A citizen has the right to access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, subject to the limitations provided by law. Hence, the case being jurisprudence, one has the right to access such information.

Given the situation, a person cannot invoke that his right to privacy has been violated because of the publication of his name along with the case he was in as the right to privacy does not prohibit the publication of matter which is of public or general interest. [2]


Endnotes

[1] http://www.lawphil.net/consti/cons1987.html

[2] http://webcache.googleusercontent.com/search?q=cache:hp055FZJuB8J:philippinecommentary.blogspot.com/2005/12/right-to-privacy-and-publics-right-to.html+right+to+privacy+in+the+philippines&cd=3&hl=en&ct=clnk


GOING THROUGH AIRPORT SECURITY: Laptop contents scrutiny a violation of one’s right

The FACTS:

As we all know, when we go to the airport, every belonging we have pass through the X-ray scanner so as to search for dangerous and prohibited items which cannot be carried inside the aircraft. Of course, this includes all electronic devices such as mobile phones, ipods and laptops.

So let’s just say that the airport security asks you to open up your laptop to browse the contents for security checking, what would you do?

The ISSUE:

Can airport security validly search and browse the contents of your laptop for security purposes, even if the same be a valid search?

The OPINION:

No. The airport security cannot validly ask a passenger to open up his laptop and browse the contents thereof. It would be a clear violation of one’s right against self-incrimination, which is guaranteed by our Constitution.

Note that the search being conducted in airports may be considered as “plain view searches,” by the use of X-ray scanners, which means that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and maybe introduced in evidence. Such applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. [1]

We have to bear in mind that the contents of a laptop may never be subject to the “plain view doctrine,” considering the fact that it is never in plain sight. One has to open up the laptop before you can see the contents.

The Constitution also guarantees the right to privacy of correspondence and communication, which such contents of our laptop may fall into. Hence, even if the search may be valid, airport security cannot just browse the contents of your laptop against your will.


Endnotes

[1] People vs. Doria, G.R. No. 125299, 22 January 1999

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