[Mirror] Saguisag, Lawrence Mikhail

SY 2011-2012, Second Semester


the Official gazzette

present issue presented is if An Executive Order is posted Online, will it satisfy the requirement as set forth by Article 2 of the Civil Code. The civil code provides the following:

“Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication. (1a) “

Article 2, provides that the law woll take effect upon publication in an official Gazette. The term unless otherwise provided, to be clear, refers to the date of effectivity of the law, and not the form of circulation. So, from this we can consider that as long as the law is accesible to all, the law is deemed to be effective. In Tanada vs. Tuvera, the Supreme Court provided in the decision:

“Publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date, for then the date of publication is material for determining its date of effectivity, which is the 15th day following its publication, but not when the law itself provides for the date when it goes into effect.Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity.

The publication of all presidential issuances of a public nature or of general applicability is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose burdens on the people, such as tax revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concern.

The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect.’”
In the case at Bar, the Supreme Court provides that the law be published in order for it to have force and effect. At present, we can consider that the juris prudence with regard to issues arising from electronic issues is still in its infacny, we must tread lightly upon issues regarding online publications since we have no concrete definition as of yet of what is officially published online.


The Right to privacy

Ever Since the restoration of Democracy, we have been blessed with rights have been ensured and kept sacred by our Constitution. One of the rights that is guaranteed by the highest law of the land is the right to privacy.

It is expressly recognized in Section 3(1) of the Bill of Rights:

“Sec. 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.”

Other facets of the right to privacy are protected in various provisions of the Bill of Rights,

“Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Sec. 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.

x x x.

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

x x x.

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.”

One of the first cases in our jurisprudence which tackled the right to privacy occurred in 1998, in the case of Ople vs. Torres when A.O. 386 was to be issued by then President Fidel V. Ramos.

Another instance when the right to privacy was invoked, was when the late Iggy Arroyo stated that certain alleged accounts belonging to his brother, Mike Arroyo, actually belonged to him. He then invoked his right to privacy.

As we can see, the right to privacy is held to be one of the most important rights a peron might possess. The issue posed here is, may a litigant, in order to protect his good name, invoke the right to privacy by requesting removal of his name from all records ?

Although the litigant is entitled to his right to privacy, we must remember that his rights are waived when it violates the right of another, in this case the right of the public to information. In fact, the Constitution itself states “except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.”

That means, although everyone of us is entitled to their right to privacy, since the public is involved and the right to be informed is encroached, the lititgant must realize that the buck stops there. His right to privacy, for the greater good of the general public and their right to be informed is already superseded. He may not request the Court to have his name expunged, because, ultimately the public might suffer.


Search

Imagine when you step out of the plane, carrying your laptop, arguably the most important business tool since you can store whatever you need for business. Naturally, you will be asked by customs to temporarily surrender your belongings for inspection. Of course you should comply, since this is important for the security of everyone. However, the security officer ask you to access your Laptop, so that they may inspect the documents within. What should one do?

Our Right to the privacy of our documents are protected by the Constitution. Article III provides:

“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.”

The Supreme Court also stated:

“Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.”

Privacy of documents is so important that: in the case of Zulueta vs. CA ( Feb. 1986) it was held that pictures and love letters proving the infidelity of the husband, kept by him in his private clinic, taken by the wife without the knowledge of the husband, are inadmissible as evidence for being obtained in violation of the husband’s privacy of communication and correspondence.

Furthermore Sec 1 of the Writ of Habeas Data provides:

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Imagine that, if your wife cannot violate your privacy to such, than that means it is that inviolable. A remedy has also been provided by the preceding statute in case of such violation.

In closing, the search done in airports, although voluntary, should only be limited to the laptop itself, not to its contents. In this case, we should not rely on the Jurisprudence of other countries since our laws with regard to technology is still in need of reshaping and be developed better.

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