SY 2011-2012, Second Semester
Numerous definitions cover the term publication depending on the genre it is used into. It may be statutorily undefined but its effect was given was given a more stringent definition.
In the Philippines, Commonwealth Act 638 introduces the government publication known as Official Gazette. From it where numerous enacted laws and rules for governmental application are being printed in conformity with the provision of Article 2 of the New Civil Code that “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.”
In the given provision as amended by President Corazon Aquino by virtue of Executive Order No. 200 the publication requirement highlights two important point. Foremost is the provision on allowing alternative publication in newspaper of general circulation and secondly that the reckoning period shall be 15 days from the date of publication.
Nevertheless, the intimation of the online version of the Official Gazette did not only give rise to practical solution of publishing news and laws of general application but it also created a pool of varying opinion and view. Among these is whether the online publication of laws equivalent to publication in the Official Gazette.
It is important to distinguish not the nature but the effect of the publication in different medium as well as its statutory purpose. Attesting to this are the following points to consider:
Technically, publication in the official website is far more practical for it requires less maintenance expense than running a publication with all its amenities from paper to ink to lay-out artist. Electronic publication is readily available to almost everyone who wishes to view or download it unlike written publication where a limited number of subscriber gets to enjoy it. Website serves as repository of electronically publish enacted laws which is easier to maintain requiring a less than square foot of space unlike publication houses.
Legally, these published works falls into different purposes. The Supreme Court in its ruling in the case of Garcilliano vs House of Representative provides a clearer picture of the issue stressing further the rules on publication as edicted in the Tañada vs. Tuvera Case.
Accordingly, the high court decreed that publication in the internets as an alternative medium of publication can only be considered in lieu of its evidentiary purposes. It is clear in Electronic Commerce Act (RA 8792) Chapter II Section 7 paragrahp C that “(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if –
(i) There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form; and
(ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity.
For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws.
With this apparent mandate of the law, it is opined that publication in the official website does not waived the publication requirement as an indispensable element.
“The stand for privacy, however, need not be taken as hostility against other individuals, against government or against society. It is but an assertion of an individual of his inviolate personality.”
Dean, Justice Irene Cortes
At the heart of the legal controversy swirling within our legal system, academic walls and political halls, it is noticeably important to be aware of the extent and limitations of the inquisitorial priveleges the legal authority has to every Filipino.
Imposing as it is, the question on the right of privacy cannot be deliberately ignore for it is among the basic right an individual has to enjoy. It stand parallel to the right of liberty exercised by every Filipino within the idea that such enjoyment of right does not in any way prejudice the rights enjoyed by another.
However, the problem arises as to where does an individual proceeds in the event this basic right of privacy is violated? Does our system provides specific legal sanctuary in which individual can readily invoke this right?
The 1987 Philippine Constitution under Article III, Section 2 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.
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.
These are considered as the foundation of the different provision on privacy right instituted in the Philippines among are the Section 5 of Republic Act 8505 (An Act Providing for Assistance and Protection for Rape Victim, “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 Law on Secrecy of Bank Deposits (RA 1405), E-Commerce Act on provision on privacy security and provision for penalties on piracy work as well as E-Commerce Act Obligation of Confidentiality.
Those are among the many sources from which springs the intention of the law to defend and protect the privacy of an individual in almost every aspect and area of their day to day life.
Drawn against by question as to whether an accused can petition the Supreme Court to strike out his name on any publication of the decision of the case he have been acquitted of an offense so as to protects his reputation and interest is best justified by singling out first as to what classification of rights does it falls? Does publication of the decision violated his personal rights at all? Does it discriminate him enough to cause damage to his person?
As a riposte, the issue here is not essential since it is a question between his personal right and the public’s right of information. Undeniable, the safety of the general population is far more important than the protection of the rights of one citizen. It does not mean however that one should prejudice the other right, to simply put it, the public takes precedence in almost all aspect of governmental functions and duties primarily because it is the reason why government exist after all.Nor does the publication violated his personal right of privacy since what has been published is the full decision being the property of the Supreme Court in its purpose to educate and disseminate information to the public. The publication consist the legal principle on which the high court based their ruling, it provides transparency in their judicial function. The constructive purpose of the court outweigh the negative effect the publication entail. Lastly, the questioned publication provides not only and information but the truthful fact and circumstances paving for his innocence which I believe is reasonable just.
Amidst serious foreign and security threat, another interesting issue rises: the legality of Laptop computers and other personal digital assistant (PDA) and other devices which are now being subject of border and warrant less searches.
A federal judge in a case of an officer who found a child pornography on the laptop of a man who flew into Los Angeles International Airport from the Philippine suppressed the evidence laptop, ruling that electronic storage devices are extensions of the human memory and should not be opened to inspection without cause.
A U.S. case law on Sebastian Boucher ruled that forcing Boucher to surrender the password of his laptop would be unconstitutional thus violate his Fifth Amendment right against self-incrimination by revealing the contents of the files.
These are among the novel issues effected by border inspection. The reasonableness of which greatly depends on the judicial analysis of affected state. Politically, these inspection carries great weight on the governments legitimate interest in the subject of the search against the personal legitimate privacy right.
In the case of United States vs. Cotterman, it is ruled that property, such as a laptop and other electronic storage devices, presented for inspection when entering the United States at the border may be transported to a secondary site for adequate inspection, even if there is no reason for suspicion. So long as the property has not been officially cleared for entry into the United States and remains in the control of the government, any further search is simply a continuation of the original border search — the entirely of which is justified by the government’s border search power.
Government agents are not required to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports as stressed in the case of United States vs. Arnold.
Given these varying geographical circumstance, it is but obvious that there is an excusable reason for the intrusion on laptops and other devices. Then again the issue of deprivation of right to privacy must be considered as well for the conferring absolute authority to government personnel to subject the techie devices would also mean sacrificing the personal rights of the owner. For this, it is with belief that these border searches or warrant less searches must not in all be applied unconditionally it must be rigorously regulated . As what the Fourth Amendment of the United States Constitution the search must be acquaint with reasonable suspicion.