SY 2011-2012, Second Semester
- Online Official Gazette
- May a person request the removal or striking off his name in SC decisions and other repositories which contain the same such online websites, SCRA, SC decision online by claiming that his right to privacy is being impugned?
- When a search and seizure is valid, may they go through the contents of your laptop?
May posting of a newly enacted law in the Official Online site (http://gov.ph) of the government satisfy the publication requirement of Article 2 of the New Civil Code?
I just visited http://gov.ph and the site’s title is: Official Gazette. Based on some articles, this website is the online version of the Official Gazette. The said site was launched on July 26, 2010. In one article, it mentions that the said site aims to “collect all government issuances in one executive site”. However, according to Manolo Quezon, a member of the President’s Communication Team, “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. So the Official Gazette online is updated daily, then the weekly edition is printed,”.
However, I have a different view to this. The term “Publication” may not only mean being printed. Publication based on dictionaries, is “communication of something to the public.” I believe that the online version can be enough to satisfy the requirement of Article 2. Specifically, the part that says “Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette…” As long as it is in the Official Gazette whether online or printed, the publication has been satisfied. Also, the e-commerce law, allows this. The Government can do transactions electronically. THe government is using diffrent mediums to communicate to the public. The online version is more accesible since the Internet is catering to most of the Filipinos nowadays. Those in the provinces are slowly having access with internet and technology.
Although this is still debatable, it may be best that a certain law be passed to avoid the ambiguity in its interpretation. It can also be raised in our Highest Tribunal but a case over this is yet to be filed so as to know whether online publication on the digitial version of the Official Gazette is enough to mean that the requirement of publication in Article 2 has been satisfied.
May a person request the removal or striking off his name in SC decisions and other repositories which contain the same such online websites, SCRA, SC decision online by claiming that his right to privacy is being impugned?
First, let us define what Right to Privacy is. Based on an article found at Dr. Jovito Salonga’s Center for Law Development Website (http://salongacenter.org/2011/07/right-to-privacy/), it was defined as “the right to be left alone… the right of a person to be free from undesired publicity or disclosure and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” Using this definition, a person cannot just invoke that his name be striken off SC decisions and other repositories because these decisions concerns the public. These decisions are made precedent to similar future cases in which different members of society may use or invoke when applicable to them. These decisions serves as models and notices of the consequences of a certain action or inaction. It shows the applicabality of the law in different situations an individual may experience. The right of privacy is not absolute, the constitution has provided for its limitation. Again, as mentioned in the same website, “the right is not violated when the interference is made upon lawful order of the court or when public safety or order requires otherwise as prescribed by law.”
Looking at the practical side, I think the striking off or removing of a name would be costly and might cause chaos. Chaos in the sense that, when one is allowed then others would follow. Every person whose name would not want to make his name public would request for its removal, regardless of the reason. In case, our laws permits this removal by passing of a new law on this, I hope our legislators qualify and would be strick on those who can avail. The Supreme Court also, if given the task to make rules on such must be vigilant. There are already cases in which the Supreme Court allows that the naming of minor rape victims be witheld and this I believe is a valid ground as it will protect the rights of the child from being exposed. I have seen an ORDER (see November 1, 2010 order; http://www.publications.ojd.state.or.us/Publications/Rules.htm) in which the Supreme Court and Court of Appeals of Oregon (2010) applies that is similarly related on the issue at hand and such could be adopted in our society. The grounds in which they allow a “redaction” or the “replacement of a person’s name with initials, psuedonyms, or use of any other convention to conceal the identity of the person”. If such be adopted in our jurisdiction, it would be better if it be granted before the printing so as not to cause extra work or costs for the removal of such name.
All in all, such right should be limited. If it has been proven that the person is innocent or that he falls in other reasons stated in the the Oregon order, he be allowed that his name be stricken of. If, however, he is guilty and that it serves as a model for the general public, the striking off should not be allowed.
Under other jurisdiction, specifically in the United States, the question is answered in the positive. They may go through the contents of your laptop as “LaptopSearches Do Not Require Reasonable Suspicion”. (http://www.ca9.uscourts.gov/datastore/opinions/2008/07/09/0650581.pdf) Citing United States v. Arnold, 523 F.3d 941 (9th Cir. 2008)
In the Philippines, our rights with regard to search and seizure can be found in our 1987 Constitution, particularly Article III, 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. “
In our jurisdiction, search and seizure may be done provided that such is reasonable. What covers reasonable searches and seizures then? First, those which the law and jurisprudence provide, some of these laws and those found in jurisprudence are the following:
In G.R. No. 181881, it has been cited that “Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place,’” x x x
Warantless Search and Seizures: Section 13, Rule 126 of the Rules of Court and some cases decided by the Supreme Court provide the instances when search is lawful without search warrant:
- In times of war within the area of military operation.
- As an incident of a lawful arrest.
- When there are prohibited articles open to the eye and hand of an officer (Plain View Doctrine)..
- When there is consent which is voluntary (consented search)
- When it is incident to a lawful inspection.
- Under the Tariff and Customs Code for purposes of enforcing the customs and tariff laws;
- Searches and seizures of vessels and aircraft; this extends to the warrantless search of motor vehicle for contraband.
- When there is a valid reason to “stop – and – frisk”.
Given those enumerated above, specifically the consented search, the contents of the laptop may also be included. However, if consent is not voluntary then this may be another issue. They cannot just open ones belongings without “reasonableness”. Officials must also follow the proper rules as regard to the search and prove that such is not done “unreasonably.” Another issue may also come to play as regard to privacy and freedom of expression/press but then again, as discussed in the previous entry of this blog, privacy is not without a limitation. Privacy has a limit, provided that such may also be proven that the limitation can be enforced.
As for freedom of expression and press, this “reasonable search and seizure”, especially those which are random in nature may hinder the rights mentioned. One may not bring their laptop for fear of being caught of whatever the laptop may contain as well as those confidential documents that are prone of being exposed by these inspections.
Since other countries are already enforcing that a laptop may be searched even “without reasonable suspicion”, the best way is to be prudent enough to know the contents of your laptop/gadget and a little knowledge of what contents may violate their laws specifically those which one may encounter during travel. If one is not sure of the contents, it is better not to bring such gadget, although it will be taxing and inconvenient without it. It will save you from being exposed and humiliated.
As for our own jurisdiction, laws or rules must be passed in order that our rights be protected. Without the safeguards, our right may be taken for granted and the officials who may implement such laws may become abusive in its exercise.