[Mirror] Realeza, Ma. France Joanne

SY 2011-2012, Second Semester

Through the office of the President, the Gazette’s print version was transformed into an e-publication. It contains matters of public interest, including newly-enacted laws and generally applicable executive and administrative orders.

The Official Gazette was created by Commonwealth Act No. 638 (1941), and Section 1 of the Act provides for its contents:

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: Provided, That for the purpose of this section every order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect: And provided, further, That the term “document” as used in this section shall include any order, regulation, rule, certificate, license, notice, or similar instrument issued, prescribed, or promulgated by any executive department, bureau,office, commission, independent board, agency, or instrumentality of the administrative branch ofthe Government, but not the legislative or judicial branch of the Government.

One interesting question will arise from this development. Originally, Article 2 of the Civil Code provided that “[l]aws shall take effect after fifteen days following the completion of their publication in the Official Gazette…”, a requirement which the Supreme Court reiterated in Tanada v. Tuvera (1986), Art. 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The clear object of this 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 ignoratia legis nominem excusat. It would be the height of injustive to punish or otherwise burden a citizen for the transgression of a law which he had no notice whatsoever, not even a constructive one. However, in June 1987, President Cory Aquino, using her then extant law-making powers, amended Article 2 of the Civil Code (through E.O. No. 200) by now providing publication in a newspaper of general publication as an alternative to the Official Gazette. Since then, the general assumption has been that laws take effect within 15 days from the time they are published in the newspaper, rather than in the Official Gazette which traditionally takes some time to be printed. There is now the possibility though, with the new online presence of the Official Gazette, that the 15 day period might be counted from the time the laws or issuances are posted online at http://www.gov.ph.

The passage of a law amending either the Article 2 of the Civil Code or Commonwealth Act No. 638 could guarantee that date of the online publication of laws on the Official Gazette Online would count as the reckoning point for the 15-day period. However, in the absence of such an amendatory law, the doctrine pronounced in 2008 by the Supreme Court in Garcillano v. House of Representatives could preclude such a claim. In Garcillano, the Court debunked the claim that the publication in its website by the Senate of its rules of procedure for inquiries in aid of legislation satisfied the requirement under Section 21, Article VI of the Constitution that it conduct such inquiries “in accordance with its duly published rules of procedure”. The Court then even refuted the argument that the E-Commerce Act of 2000 validated such online publication.

The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations.

According to news, however, Quezon said that the print version of the Gazette still takes precedence over its electronic counterpart. “So the Official Gazette online is updated daily, then the weekly edition is printed,”.

Tech and the law – 2

Can a losing party in a case request for the removal of his name in a decision posted on the Supreme Court website?
The 1987 Constitution, Article III, Section 3. Provides that “(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.” There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

… The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: “The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. UItimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. State, In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modem society has developed. All the forces of technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.” [at pp. 444-445.]

However, such right no matter how fundamental it is, comes with a limitations. the following 19th century essay: THE RIGHT TO PRIVACY by Samuel Warren and Louis D. Brandeis. Originally published in 4 Harvard Law Review 193 (1890). Apparently, it was written during the time when internet was not yet introduced. Nonetheless, the same may be used to know the bounds of privacy. In it, the limits of the Right to Privacy are enumerated:

First. The right to privacy does not prohibit any publication of matter which is of public or general interest.

Second. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.

Third. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.

Fourth. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.

Fifth. The truth of the matter published does not afford a defense.

Sixth. The absence of “malice” in the publisher does not afford a defense.

I submitted, that the RETENTION OF E-DATA AND E- DOCUMENT under the E-Commerce Law which states that:

  • Remains accessible so as to be usable for subsequent reference.
  • Is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to accurately represent the electronic data message or electronic document generated, sent or received;
  • Enables the identification of its originator and addressee, as well as the determination of the date and the time it was sent or received.

is in light to the right of information, which provides “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.” (Sec. 7, Art III, 1987 Constitution).

On the part of the service provider, RESPONSIBILITY OF SERVICE PROVIDERS – ECA “… service providers shall have no authority to modify or alter the content of the electronic data message or electronic document received or to make any entry therein on behalf of the originator, addressee or any third party unless specifically authorized to do so, and who shall retain the electronic document in accordance with the specific request or as necessary for the purpose of performing the services it was engaged to perform. ”

In resorting to the case at bench, The Court has always grappled with the meanings of the terms “public interest” and “public concern”. As observed in Legazpi:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. “Public concern” like “public interest” is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.

Thus, regardless of the need to inform the public about the latest and recent developments on the judiciary, without however affecting the integrity of the party in interest, it is their utmost discretion on whether or not the names may be removed; Provided further that it should be supported by a law or a resolution that will not discriminate nor impair the rights of all the parties.

Tech and the law – 3

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure shall not be violated, and no warrant shall issue but upon probable cause, to be determined 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.” (Sec. 1. Art. III, Constitution of the Philippines.)

1. Particularity of description of place to be searched and things to be seized

The Constitution further requires that the search warrant particularly describe the place to be searched and the things to be seized. In Uy Kheytin vs Villareal, the Supreme Court explained the purpose of this requirement thus:

“The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant – to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made – that abuses may not be committed.”

A search warrant may be said particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs Rubio) or when the description expresses a conclusion of fact – not of law by which the warrant officer may be guided in making the search and seizure (dissent of Abad Santos) or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. If the articles designed to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence other that those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence.

PLAIN VIEW DOCTRINE – 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. The doctrine 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.

If the contents of the laptop are in relation to the crime committed or in any way related to a crime that will be committed, further on crimes that involve national security and public safety, then plain view doctrine can be applied. Hence, it may be seized. The privacy of correspondence is not violated.

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