[Mirror] Peña, Irene

SY 2011-2012, Second Semester


Internet-Based Official Gazette is Not Valid

Section 1 of Commonwealth Act 638 provides that:

There shall be published in the Official Gazette [1] all important legislative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. …

The clear object of the above-quoted provision 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 “ignorantia legis non excusat.” It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one (Tañada vs. Tuvera, 136 SCRA 27).

It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC, 82 SCRA 30:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.

Section 1 of Executive Order No. 200 provides that “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.”

Considering the jurisprudence and law stated above, the accessibility of laws to all citizens is the primary concern. The issue on whether an internet-based Official Gazette is valid largely depends on citizens’ accessibility to internet. To make the citizens knowledgeable of the laws is the rationale behind the enactment of E.O. No. 200. Our legislators believe that newspapers of general circulation is an effective means to disseminate any newly enacted laws since newspapers are cheap. Therefore, it is but important to first consider how accessible internet is to every citizen. If it will just decrease citizens’ accessibility to laws because not all Filipinos can afford internet access at computer shops, much less own a computer set with internet access, then it would be unwise and unpractical to enact such a law making Official Gazette internet-based.


Right to Privacy is Not Absolute

The right to privacy is the right to be let alone, in the absence of some “reasonable” public interest in a person’s activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. (USLegal.com) [1]

Right to privacy, as a constitutional right, can be invoked most of the time, if not always. This is because there are certain circumstances that right to privacy may no longer be fully granted to a person, such as when he submits to the jurisdiction of a court wherein confidential facts may inevitably be disclosed before the court and the public. Thus, such basic right is observed differently with respect to all court cases and rape cases.

Generally, the complainant and, sometimes, the defendant, as in the case of counterclaim, voluntarily seek the aid of the court to settle their disputes. Therefore, it is but a logical consequence that they should be willing to reveal pertinent facts, despite confidential in nature, to settle the case with truth. Moreover, they should have anticipated public exposure to a great extent since they are dealing with a government institution.. After the Supreme Court has finally determined the controversy, the usual course of putting on record all facts of the case, specifically the name or identity of the parties, must be recorded on the Supreme Court Reports Annotated (SCRA), a public document which is and should be open to public for inspection.

Public document refers to a state paper, or other instrument of public importance or interest, issued or published by authority of congress or a state legislature. Also any document or record, evidencing or connected with the public business or the administration of public affairs, preserved in or issued by any department of the government. (Ilammatt v. Emerson. 27 Me. 335, 40 Am. Dec. 59S) [2]

On the other hand, rape cases treat right to privacy with more gravity. Humanitarian sense dictates that what could be more humiliating for both the rape victim and convict to have their real names revealed in public documents, which is accessible to the public. The disgrace felt by both parties during the trial is already embarrassing. What more the unwarranted revelation of their true identities on public documents like SCRA? Definitely very degrading. Thus, the enactment of Section 5 of Rape Victim Assistance and Protection Act of 1998, which shall protect the privacy, specifically the real name and identity, of both the rape victim and the convict.

Section 5 of the, stipulates that “any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused.” It further states that a police officer, prosecutor or court may order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.


Endnotes

[1] http://definitions.uslegal.com/r/right-to-privacy/

[2] http://blackslawdictionary.org/public-document/


Whether a valid search and seizure (random search) may go through the contents of one’s laptop largely depends on the surrounding facts of the case

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.”

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s “right to be let alone” or the “right to determine what, how much, to whom and when information about himself shall be disclosed.”

Section 2 states “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 states: “(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. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. [1]

Whether a valid search and seizure (random search) may go through the contents of one’s laptop largely depends on the surrounding facts of the case—the circumstances which caused the implementation of the search and seizure. Hence, Article III, Section 2 of the 1987 Philippine Constitution enshrining the right to privacy of correspondence does not work as a blanket prohibition against all kinds of search and seizure.

One premise where a valid search and seizure, whether with warrant or not as the case may be, not considered inimical to a person’s right to privacy of correspondence is that directed against impending terrorism attacks wherein thorough inspection of personal belongings, specifically one’s laptop, may be allowed. As provided for by:

Section 7. Surveillance of suspects and interception and recording of communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. [2]

Applying the law, the search and seizure of a laptop to be able to gather information pertinent to terrorism by going through its contents is an exceptional situation wherein the right to privacy of correspondence may be validly breached. It is but a logical act to go through the contents of such laptop because it is only through such inspection wherein relevant information related to terrorism may successfully be revealed. Without such inspection, the laptop as a potential, strong evidence might only be put into futility.

Following the line of thought above, only those instances where going through the contents of a laptop is reasonable under the circumstances of a given case does a person’s right to privacy of correspondence not unjustly violated. Another example would be the search and seizure of persons highly-suspected of engaging in child pornography activities. Of course, it is only rational that the contents of the laptop may be examined to be able to look for evidence.

Another premise where a search and seizure, although valid, works to the detriment of a person’s right to privacy of correspondence happens when the scrutiny of his laptop’s contents is not reasonable to his alleged case. For instance, when a search and seizure is implemented due to an intelligence report regarding his illegal possession of firearms. Obviously, going through the contents of the laptop is absurd, thus an unreasonable search and seizure results and the person’s right to privacy of correspondence unjustly violated.


Endnotes

[1] Camilo l. Sabio vs. Gordon, G.R. No. 174340, October 17, 2006, 504 SCRA 704.

[2] Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007.

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