[Mirror] Ragudo, Erin

SY 2011-2012, Second Semester

Assignment in Tech and the Law

The Problem:

Office of the President executed an Executive order. This was published in the electronic format of the Official Gazette at http://gov.ph.

Will such publication satisfy the requirement in Article 2 of the Civil Code? Explain your answer in relation to the case of Tanada vs Tuvera.

My Answer:

Yes, it will satisfy the publication requirement as specified by Article 2 of the Civil Code which states that laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided.

The case of Tanada vs. Tuvera will not apply here because in that case, the Presidential Decrees were not published at all thus completely violating the provision of the Civil Code. The respondents in that case argued that publication is not needed anymore since the decrees declared that such laws will take effect immediately after approval. According to the Court, respondents should publish the decrees in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, shall have no binding force and effect.

In that case, Justice Plana had concurred with qualifications, according to J. Plana, the premise in Article 2 “… unless it is otherwise provided” clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. Justice Gutierrez had the same opinion.

The construction of the law makes it vague as to whether the part “unless it is otherwise provided” applies to the date of effectivity or to the mode of publication.

Since the Executive Order was published in the Official Gazette, albeit, the electronic one, it still is the Official Gazette. Granted that the authors had in no way perceived such technology but I still stand by my answer for the reason that the publication requirement exists to inform the public of such issuance and to bind them. Before a person may be bound by law, he must first be officially and specifically informed of its contents and what could be a better way to inform us than by the world wide web?

We cannot find any copy of the Official Gazette on every corner but an internet cafe is always present.

In the advent of new technological advances, the laws should be updated to include such new technologies so that we can utilize it and for the convenience and benefit of the public.

Right to Privacy

Facts: An accused was acquitted by the Supreme Court on the crime that he was charged of. May he ask for the removal of his name in the Decision/SCRA?SC website on the basis of his right to privacy?

My Opinion:

No. Our Constitution does not provide a hard and fast rule regarding the people’s right to privacy. But a handful of provisions in our Constitution provides a few guidelines in dealing with our right to privacy. Section 7 of Article III of the 1987 Philippine 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.”

Therefore, if we were to use that provision of law to resolve the facts that was stated above, the request of the accused to remove his name from the SC Decision will not be tenable since it will be in conflict of the public’s right to be informed of the truth with respect to the real aspects of the case. This right to be informed is limited only by “such limitations as may be provided by law” meaning, a law should be passed in order to limit or impose regulations on such law.

Another provision of our Constitution, specifically, Section 28 of Article II, provides that:

“Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

If i were to analyze this particular provision and apply it to the facts above, the answer will still be in the negative seeing the phrase “subject to reasonable conditions prescribed by law” meaning, a law is required for the State to modulate the certain provision of the Constitution, a law that sadly, we still do not have.

In relation to the case at hand, in investigation, prosecution and trial for the crime of rape, Section 5 of R.A. 8505 states that:

Section 5. Protective Measures. – At 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. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, 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.

The investigating officer or prosecutor shall inform the parties that the proceedings can be conducted in a language or dialect known or familiar to them.

The accused, in this case may, and is entitled to exercise his right to privacy and his name to not be disclosed to the public. But only in the preliminary proceedings. Nothing is said in case he was convicted or acquitted.

Supreme Court decisions are considered to be a part of the law of the land therefore, it should be complete and true to the facts of the case so as to not mislead the people who will be relying on such decisions.

Putting a ‘border’ on Border Searches

Not having any first hand experience on searches (except on malls), I had to search the world wide web for this type of search. And I found this http://www.gmanetwork.com/news/story/138315/scitech/border-laptop-searches-might-get-restricted .

Some excerpts:

—As Sen. Ron Wyden, D-Ore., who is co-sponsoring one of several bills in Congress that would restrict such searches, put it: “You can’t put your life in a suitcase, but you can put your life on a computer.”

—Susan Gurley, executive director of the Association of Corporate Travel Executives, which filed its own Freedom of Information request to obtain the government’s laptop search policy, noted that border searches pose a particular concern for international business travelers. That’s because they often carry sensitive corporate information on their laptops and don’t have the option of leaving their computers at home.

—Tahir Anwar is an imam at a mosque in San Jose, Calif., so his laptop and iPhone contain confidential information about the mosque’s members, including their personal e-mail messages.

—Rep. Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also require suspicion to inspect electronic devices. Engel said he is not trying to impede legitimate searches to protect national security. But, he said, it is just as important to protect civil liberties.

“It’s outrageous that on a whim, a border agent can just ask you for your laptop,” Engel said. “We can’t just throw our constitutional rights out the window.”

So, we now go to the case at hand, may airport personnel validly compel passengers to present their laptops and other similar electronic devices to be searched for possibility of offenses that such passenger had committed?

In a U.S. Case, United States v. Arnold, 523 F.3d 941, decided April 2008, it was held that: “The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.”

In the Philippines, our right to privacy is governed by the Constitution which states that:

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.

I think that the border search should be regulated. Yes, it is necessary because today, dangerous information can easily be transported through electronic devices. But so are confidential and private ones. So regulation is definitely called for.

People should never feel as if their most intimate secrets can be poked upon and scrutinized by any person claiming authority to do so. Among others, one purpose of a laptop is for persons to bring their work, pictures, videos, and other important electronic data wherever they may be for easy access. It follows that some private information are stored in it and no one should be subjected to a stranger’s investigation without a probable cause.

This makes me think of dystopia..scary thought..eraseeraseerase!!!!

1 comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: