[Mirror] Cledera, Bethany Joy

SY 2011-2012, Second Semester


She Posted What???!!!

HEAR YE! HEAR YE! READ ALL ABOUT IT!!! READ ALL ABOUT IT!!! Announcements, news, letters and everything that a human being can ever think of can now be read by the whole world. There is facebook, twitter, blogs, tumblr and every website that attracts people to post whatever they want and whenever they want to whomever they want to reach. Almost every person that has cellular phones or knowledge in technology can get to avail of all this things. I watch the news every day, it has been a practice since I was a kid because for my father, you should know as early as a toddler what is really happening in the world or what’s new about it. As I was watching the news one Friday, it was TV Patrol of Ch. 2, they were going about a survey done that 7 out of 10 Filipinos are internet pinoys or Filipinos who are internet savvy. This only shows that even the most trifty or stingy persons will make it a point to check the internet.

It has also been used by all types of organizations to let the world know about the new things about them. Our government also used this mechanism to make their services more up to date and easily accessible to all the Filipinos no matter where they may be. Even the Office of the President handles the website of the Official Gazette wherein all news about the whereabouts of the President or the new changes being done in the government can easily be known.(gov.ph) Then I thought wow, the world has become really advanced. Upon browsing the website of the government I came to the page if all new issuances and proclamations newly passed by the Congress or the President himself. Then it got me thinking about the news wherein people would always reason out when they got caught doing something illegal that they do not know that there was such a law or they weren’t aware of the newly passed ordinance and that they should just be let off just this time, QUESTION!!!, CAN THE POSTED ISSUANCES OR NEW LAWS PASSED IN THE WEBSITE OF THE GOVERNMENT BE CONSIDERED AS PUBLICATION??? let us take a closer look…

According to the Civil Code of the Philippines, ART. 2. LAWS SHALL TAKE EFFECT AFTER FIFTEEN DAYS FOLLOWING THE COMPLETION OF THEIR PUBLICATION EITHER IN THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCUALTION IN THE PHILIPPINES UNLESS OTHERWISE PROVIDED.

So as I understand, it should first be published in a newspaper of general circulation or the Official Gazette to be considered as published and has full effect. Now being the technologically advanced generation as we are, one cannot help but ponder, is the online version of the Official Gazette can be considered as the one required by the law or are any of the published laws in the website of gov.ph be made applicable to what Article 2 of the Civil Code requires? At first glance, you can think that YES! , the law required official gazette printing and the website said it was the official gazette so this should be the one they were talking about right? But also your going to think that NO! the law presupposes that such publication of the official gazette is actually on paper and not virtually for other people that are not techy savvy to appreciate and understand the law. Well, in my opinion it should be understood that upon the passing of the Civil Code the country has yet to discover the beauty of the internet and its usefulness and they were just talking about the paperbound version of the law, the one you can actually touch. But then let’s face it even the Government has become internet literate and I assume that they have thought about it as well. So maybe they actually consider such internet publication as the publication thought of in the law. Maybe there is this assumption that ones it is published in the internet then all the Filipinos including the non Filipinos will someday click and scan over it and realize that hey, it a new law being applied. Well, One problem with pondering, if there is no strong proof you can never be sure so everything is just opinions and imaginations. So unless there has been news confirmation or status update or tweet about this topic the doors are wide open for more contemplation. So see you on my next ponder moment!


wishes and wants….

Every person has the right to do and demand everything he or she pleases but there should be limitations. One can ask for publicity but one can also ask for his or her privacy. The question is can they always be given what they want whenever they want it. Limitations are very important for everything to function well equally. So here goes my next pondering topic.

Main Issue: Can a losing party, petition to the Court for the removal of their name upon publication of the case in the Supreme Court Reports Annotated and in the internet when it has been final and executory on the ground that it will prejudice their constitutional right to privacy?

NO. As a rule, no party can petition to move for the removal of their names in the case they are included when it will be published in the SCRA or internet for the simple reason that they lose and even invoking their constitutional right to privacy, as this is considered as public document and every individual has the right to access the same. Once the parties chose to find relief in the Court, the latter has acquired their persons jurisdiction and it is in the Court’s discretion as well if they think it be proper for the exclusion of the parties’ names. But there are instances that are mandated by the law that allows the confidentiality of the real identities of the parties for their protection.

For better understanding of the issue, let us go back in history… the publication of the opinions and decisions of the Supreme Court is first made to law in the Republic Act 296 or Judiciary Act of 1948 specifically, sections 21 – 22 that stated the process of the recording the decisions of the Justices by the Clerk of Court in the opinion book and its preparation for its publication in the Official Gazette for the public to have access to the same.

Section 21. Form of decisions — When opinion to be reported. — When a decision is rendered by the Supreme Court, a written opinion or memorandum exemplifying the ground and scope of the judgment of the court shall be filed with the Clerk of the Court and shall be by him recorded in an opinion book. When the Court shall deem a decision to be of sufficient importance to require publication, the Clerk shall furnish a certified copy thereof to the Reporter. Dissenting opinions shall be published when the justices writing such opinions shall so direct.

Section 22. Preparation of opinions for publication. — The Reporter shall prepare and publish with each reported decision a concise synopsis of the facts necessary to a clear understanding of the case and shall state the names of counsel, and concisely the material and controverted points made, and the authority therein cited by them, and shall prefix to each case a syllabus, which shall be confined, as near as may be, to points of law decided by the Court on the facts of the case, without a recital therein of the facts.

Also in the Rules of Court specifically Section 55:

RULE 55
PUBLICATION OF JUDGMENTS AND FINAL RESOLUTION

Section 1. Publication. The judgments and final resolutions of the court shall be published in the Official Gazette and in the Reports officially authorized by the court in the language in which they have been originally written, together with the syllabi therefor prepared by the reporter in consultation with the writers thereof. Memoranda of all other judgments and final resolutions not so published shall be made by the reporter and published in the Official Gazette and the authorized reports.

In the Republic Act no 1125 as amended by Republic Act 9282 which created the Court of Tax Appeals, in section 15, it stated that all the documents and evidence submitted in the Court are considered public documents and the public has the right to access and inspect the same. Also, it is in the discretion of the same Court to decide if any of its contents may be withdrawn.

Section 15. Publicity of proceedings and publication of decisions. – All decisions of, and all evidence received by the Court and its divisions, including transcript of stenographic reports of the hearings, shall be public records open to the inspection of the public, except that after the decision of the Court in any proceedings has become final the Court may, upon motion of the taxpayer or the Government permit the withdrawal, by the part entitled thereto of originals of books, documents and records, and or models, diagrams, and other exhibits, introduced in evidence before the Court or any division; or the Court may, on its own motion, make such other disposition thereof as it deems advisable. The Court shall provide for the publication of its decisions in the Official Gazette in such form and manner as may be best adopted for public information and use.

There are no clear laws with regards to the constitutional right to privacy in the 1987 Constitution, but it is understood to be imbedded in the whole Constitution through the spirit of such right, a specific mention of it is under Section 3 in the Bill of Rights:

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.

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

It can be understood that the constitutional right to privacy cannot just be invoked any time the parties would capriciously like to exclude their names when they lose in a case. There are also be consideration before such demands can be met by the Court like if it is under the instances that the Court really allows the confidentiality of the parties as what would be shown in the following laws:

When the victims are women and children, it is mandated in the Constitution that they should be protected at all times.

Republic Act no. 9262 Section 44:

SECTION 44. Confidentiality. – All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter’s consent, shall be liable to the contempt power of the court.

Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand pesos (P500,000.00).

Republic Act 7610 Section 29:

Section 29. Confidentiality. – At the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case.

It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party.

Republic Act no. 8505 Sections 5-6 for rape victims:

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.

Section 6. Rape Shield. – In prosecutions for rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case.

And also, Republic Act no. 8369 Section 12:

AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM EXCLUSIVE ORIGINAL JURISDICTION OVER CHILD AND FAMILY CASES, AMENDING BATAS PAMBANSA BILANG 129,AS AMENDED, OTHERWISE KNOWN AS ACT OF 1980, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES:

Sec. 12. Privacy and Confidentiality of Proceedings. – All hearings and conciliation of the child and family cases shall be treated in a manner consistent with the promotion of the child’s and the family’s dignity and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt with utmost confidentiality and the identity of parties shall not be divulged unless necessary and with authority of the judge.

In the cited laws, though it does not clearly state that their identities can be forego upon the publication of the case for the public, it is still the unspoken practice of the Supreme Court. If the highest court of the land think that it will be proper and safe for the victims that their identities be hidden to the public then the Court will do so. The safety and protection of the victims are the number one concern of the Court. Under such circumstances should the Court may withdraw the publication of the names of the parties be it the winning or losing one. But to petition just because such party has lose and just to save face, I think it is very whimsical and improper and the Supreme Court will not allow the same. So see you in my next ponder moment…


You’re Going Where?

One of the known recreations to escape the buzzing metro is to travel either abroad or just to explore the different islands of the Philippines. And a popular transportation is through flying. It is considered as the fastest way in going to the chosen destination without the hassle of staying in long bus/ car rides or boat/ship travel. Though there are many advantages, there are also the disadvantages, one of which is the mandatory searches of the luggage of the passengers before one can be allowed to enter the airport let alone the aircraft. It takes more time than entering the plane depending on the number of people present, the destination and also the season. This is understandable, with the high percentage of high jacking threats and terrorism around the world. Airport search is required for the safety of the passengers and its crew as well as the airport of their destination. But, other than the long lines and sometimes uncomfortable situations, there are times that a passenger may feel that such searches may go beyond their allowed limitations. So see you in my next ponder moment…

An example of a scenario is when the police authorities received information that a passenger coming from a particular country would be possessing let say, child pornographic materials that are prohibited in our country but there were no added specification as to the identity of the culprit. What the police authorities did with the help of the airport officials was to randomly check the passengers coming from such country and insisting that such passengers submit their laptops or gadgets to be opened and their hard drives to be searched for electronic documents that could support the information that they received. Question? Are they allowed to perform such search? If so, can they go as far as asking the passenger to submit his laptop for its files to be searched for the alleged prohibited materials?

The 1987 Constitution, protects every individual against unlawful search and seizure as cited in Section 2, Article III of the Bill of Rights:

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.

It stated that no person can be subjected to a search that has no lawful reason or what the law considers as probable cause. An officer must have a reasonable belief that a crime has been committed and the person that would be arrested and incidentally searched might have been responsible for the crime. Also, in the same Article of the Constitution, Section 3 stated:

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.

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

It reiterated the constitutional right of a person to his privacy; no one can violate such right, unless there is a lawful cause for such violation and it is for the common good of other people. Given the stated constitutional rights, one can also not ignore the exceptions of this law. There are several kinds of searches that not only the Congress but most especially, the Supreme Court in their decisions, that have been recognized. And one of which is the airport search which the Philippines has adopted from the United States. The need for such searches was mainly for the safety of its passengers and the people who are working in the airports and aircrafts. Also, with the high terrorism alert all over the world, one cannot just ignore such threats.

It is stated in the Republic Act no. 1973 Tariff and Customs Code of the Philippines Book II Customs Law under Section 2210:

Section 2210: Right to search Vessels or Aircrafts and persons or articles conveyed therein.- it shall be lawful for any official or person exercising police authority under the provisions of this Code to go aboard any vessel or aircraft within the limits of any collection district and to inspect, search and examine said vessel or aircraft and any trunk, package, box or envelope on board and search any person on board the said vessel or aircraft underway, to use all necessary force to compel compliance and if it shall appear that any breach or violation of the customs and tariff laws of the Philippines has been committed, whereby or in consequence of which such vessels or aircrafts or the article or any part thereof, on board of or imported by such vessel or aircraft, are liable to forfeiture to make seizure of the same or any part thereof.

This justifies the search conducted by airport officials upon its passengers before entering the airport and the aircraft. But does this search give unlimited power to such officials to search passengers that have chosen to fly as a mode of their transportation? In the situation given, the police authorities had received a tip that child pornographic materials was in the possession of a passenger but the problem is only the country of origin is known by the police and that is it. No other indication of the true identity of the person having such illegal materials. Any officer cannot just RANDOMLY search passengers in the airport forcing them to submit their laptops or any gadget consisting of their files to be searched. The law and the Supreme Court, has long reiterated that for a person to be searched without a warrant, the officer or private citizen must have PROBABLE CAUSE, as cited in the Supreme Court decision People v. Aminnudin, the police authorities must have caught the person in flagrante committing a crime or has just committed a crime. They should have had personal knowledge that could justify such arrest and the search would be coincidental for such valid warrantless arrest. In our situation, the authorities cannot be said to have personal knowledge because there are no other circumstances that can support that their suspicion can be had. They just randomly pick individuals to be searched and making them submit their laptops and gadgets.

The checking of electronic documents of the passengers of an aircraft cannot be allowed unless there is a warrant for such purpose or there is probable cause that could justify the authorities to search it. Even if it could be said that a person when he chose to be a passenger of an aircraft, he had knowledge that there would be a mandatory search of his luggage and his laptop or other form gadgets are considered to be part of such luggage; he cannot be expected to not be surprised if the authorities would want to search the CONTENTS of his laptop because it is not an ordinary practice accepted in such kind of search. A reasonable passenger would just expect that his things that are in plain view as well as those inside his bags would be looked at but to go so far as being required to open his private files then it can be considered as a violation of his constitutional right and such attained personal files cannot be used against him in court. It is not the usual practice of the search process in the airport and can only be supported by a warrant for such effect. As what has been stated in the Constitution, these are the rights that are inviolable not being under the exceptional circumstances, which in this case it is not. The police authorities should have gathered more evidence and went under surveillance to prove with probable cause their actions.

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