[Mirror] Talamayan, Loren Marie

SY 2011-2012, Second Semester


Official Gazette goes on-line

The print version of the Gazette contains matters of public interest, including newly-enacted laws and generally applicable executive and administrative orders.

“We’re looking to collate all government issuances under one executive site,” said Manolo Quezon III, a member of the President’s communications team. “Why reinvent the wheel when we’ve already had (the Gazette) since time immemorial?” he added.

According to Article 2 of the Civil Code of the Philippines (http://www.chanrobles.com/civilcodeofthephilippines1.htm), “Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette”.WHAT IS THE OFFICIAL GAZETTE?

Established under Commonwealth Act No. 638 of 1901, the Official Gazette is mandated to publish:

“(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”.

However, the Gazette takes time to compile and publish, has a limited print run, and is only available on a subscription basis.

Moreover, in the case of Tañada v. Tuviera (http://www.scribd.com/doc/18582887/1-Tanada-v-Tuvera-GR-No-63915-December-29-1986) in 1986, the Gazette was criticized for its “erratic release and limited readership.” Although the Court eventually upheld the Civil Code in its decision on the case, then-president Corazon Aquino later issued Executive Order No. 200 of 1987 (http://www.lawphil.net/executive/execord/eo1987/eo_200_1987.html) to ammend the Code such 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”.

Because the electronic edition of the Gazette can be updated much faster than traditional print media, some observers have wondered whether the provisions of the Civil Code are applicable to the online edition.

“There is now the possibility 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,” said Oli Reyes on the Law Innovations (Philippines) blog (http://lawinnovations.wordpress.com/2010/07/26/official-gazette-of-the-republic-of-the-philippines-now-online/).

However, Quezon said that 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,” he explained.

http://www.gmanetwork.com/news/story/197115/scitech/official-gazette-of-the-republic-of-the-philippines-goes-online


Technology and the Law

CONSTITUTIONAL RIGHT

One of the rights granted by the 1987 Constitution is the right to privacy as provided in Article III Section 3 of the Bill of Right:

Section 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.

The Right to Privacy is one of the rights granted to individual citizens guaranteed by the Constitution. 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)(i) However, this right is not absolute. It is subject to some limitations. According to Samuel Warren and Louis D. Brandeis in its book THE RIGHT TO PRIVACY published in Harvard Law Review (1890), the limits of the Right to Privacy are enumerated as follows:

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.

. 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.

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

SUPREME COURT’s DECISION

Supreme Court decisions are so important because the Supreme Court is the final authority for interpreting the laws and the Constitution. All courts in the country must adhere to the decisions as handed down by the Honorable Supreme Court. The Supreme Court offers online services available to lawyers and the public for inquiry. Supreme Court’s decision is a public record. Public records are any information, minutes, files, accounts or other records which a governmental body is required to maintain, and which must be accessible to scrutiny by the public. This includes the files of most legal actions.(ii)

WHICH RIGHT MUST PREVAIL?

PUBLIC’S RIGHT TO KNOW MUST PREVAIL. One of the aforementioned limitations is that the right to privacy does not prohibit any publication of matter which is of public or general interest. And it is also clear from the provision itself that “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.” Thus, a party litigant who losses in the case cannot request the removal of his name in the Supreme Court’s decision by invoking his right to privacy. The same is true to the one posted in internet. It is provided in Rule 4 Section 1 of the Rules on Electronic Evidence, “An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.”

However, it is a different scenario in rape cases. In such cases it treat the right to privacy with more gravity. It is provided in of Section 5 of Rape Victim Assistance and Protection Act of 1998 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.” In the same law it is also 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.”


Searches and Seizures: Laptop Computers

One of the rights guaranteed under the Bill of Rights is the Right Against Unreasonable Searches and Seizures. It is provided in Article III, Section 2 of the 1987 Constitution:

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 main purpose of this provision is to protect the privacy and sanctity of the person and of his house and other possessions against arbitrary intrusions by the State officers. “Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.” (Valmonte v. General de Villa, GR No. 83988, September 29, 1989) To be “reasonable” a search or seizure must be conducted either (i) pursuant to a valid search warrant issued by a judge or (ii) pursuant to an exception to the search warrant requirement, such as consent.

Nowadays, most of the people are into computers. It can be said that this generation is a computer age/ cyber age. As a result, some people uses computers to perpetrate a crimes like possession of child pornography, solicitation of prostitution, cyber sex, identity theft and fraud. According to research, there are hundred ways that computers record everything you do on the Internet. While it is possible to clear some records of your activities by deleting files or hiding passwords, it is never possible to completely clear records of all computer activity. When the police seize your computer, they have the technical ability to see how you’ve used it – what emails you have sent, what websites you have visited and what files you have downloaded. The Bill of Rights protects you from unreasonable search and seizure. It restricts the police from doing searches or from taking computers unless they have probable cause to believe that they can find evidence that you committed a crime, and a judge issues a warrant. However, in some situations, the circumstances justify a warrantless search like (i) Warrantless search incidental to a lawful arrest; (ii) Seizure of evidence in plain view; (iii) Search of moving vehicle; (iv) Consented warrantless search; (v) Customs search; (vi) Stop and Frisk; and (vii) Exigent and Emergency Circumstances.

In the case of US v. Camp, the judge found the plain view doctrine – not the seach incident exception – justified the seizure of the laptop, he also found it necessary to point out that what the agent did came within the parameters of the doctrine. THE PLAIN VIEW DOCTRINE ONLY ALLOWS OFFICERS TO SEIZE CONTRABAND OR EVIDENCE OF A CRIME; IT DOES NOT JUSTIFY SEARCHING FOR CONTRABAND OR EVIDENCE OF A CRIME. The judge, therefore, also noted that [n]either Agent Spears nor Detective Boyce searched the laptop computer once it had been seized. Rather, Agent Spears filed an application for a search warrant to search the contents of the laptop computer on June 27, 2011, and only upon receipt of a validly executed search warrant did he conduct a search of the contents of the laptop computer. Agent Spears detailed his history and experience as an FBI agent, the basis of his belief that evidence of [Camp’s] alleged crime would be contained on the laptop computer, and [Camp’s] specific activities that would have caused evidence of [Camp’s] alleged crimes to be contained on the laptop computer. Having considered the application for a search warrant in full, the Court finds that the magistrate had a substantial basis for concluding that probable cause existed.

Therefore, in the absence of the requirements provided by law as discussed above the police officers cannot seized a laptop computer and make a random search thereon for it violates the Constitutional Right of a person; the right to privacy. So if the police ask to come into your home to “look around,” know your rights. You have the right to say no. Ask to see the warrant that gives them the right to computer search and seizure. If they don’t have a warrant and they don’t have your permission, chances are they cannot conduct the search.

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