SY 2011-2012, Second Semester
Article 2 of the Civil Code partly provides that “ laws shall take effect after fifteen days following completion of their publication in the Official Gazette, unless it is otherwise provided….”
The requirement that for the laws to be effective only a publication thereof in the Official Gazette will suffice has entailed some problems, a point recognized by the Supreme Court in Tanada, et a. vs. Tuvera, eta al. (G.R. No. 63915, December 29 1986) when it observed that “ there is much said of the view that the publication need not be made in the Official Gazette, considering its erratic release and limited readership”
It was likewise observed that “ undoubtedly, newspapers of general circulation could be better perform the function of communicating the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly”.
Under Article 2, publication in the Official Gazette was necessary. Now, under E.O. No. 200, publication may either be in Official Gazette or a newspaper of general circulation.
As a general rule, laws must be published in either the Official Gazette of a newspaper of general circulation. But laws may provide for another manner of publication. With the advent of technology, different manner of publication may be read over the television of the radio or the internet or any other manner provided that the alternative is reasonable. Publication, means making it known; dissemination. Thus, it does not have to be in writing or in the traditional publication like the newspaper. Electronic publication of law or statute save in the Website of the Official Gazette of the Office of the President satisfies the requirement of Article 2, of the Civil Code of the Philippines.
One may ask, what if the accused have been acquitted, can he now ask for the removal of his name on the Decision? In strict legal sense, the possible answer is in the negative considering that there is no law that grants such right to remove his name.
The 1987 Philippine Constitution does not provide for specific provision on right to privacy per se. Instead, it only provides provisions on certain right to privacy like the privacy of communication and correspondence (Section 3, Article III); and the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose (Section 2, Article III).
On the other hand, Section 7 of Article III of the 1987 Philippine Constitution provides that:
“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.”
The wording used in the provisions in the 1987 Philippine Constitution are “Subject to reasonable conditions prescribed by law” and “subject to such limitations as may be provided by law” which only suggest that a law should be enacted. And there is none so far. In practical sense, it is my humble reasoning that the accused should not move for the deletion of his name for that Decision itself will attest to his innocence and therefore will be an instrument to repossess his good reputation despite inevitable stigma.
Thus, if a question is ask whether an accused can ask the Supreme Court to drop his name or to prohibit the publication of his name in the website or in any means of publication in its Decision in order to hide his identity and therefore protect his remaining reputation to the public, it is safer to invoke such right by citing a specific or a positive law that gives such accused the right to privacy under a specific circumstance. To cite a specific and usual case, violation against women and their children, victims are the only one protected with their right to privacy and never has been of the accused. As basis and authority, Section 44 of Republic Act No. 9262 and Section 40 of A.M. No. 04-10-11-SC (October 19, 2004) provide that:
“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.”
But there is an interesting provision of Section 5 of Republic Act No. 8505 which recognizes the privacy of the accused and probably may be construed by others as the basis of the accused to eliminate his name in the Decision of the Supreme Court before its publication, it provides that:
“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.”
However, as can be gleaned from the provision is that it is only applicable during the investigation and the preliminary process of prosecuting the accused. This is logical enough because at that stage the accused is still presumed innocent. But that is not the case when the accused is already convicted.
Once the accused is convicted, the public has the right to be informed of the same and shall be accessible to public for their information. This is the Constitutional mandate under Section 7 of Article III (which is quoted in the first part of this work) and Section 28 of Article II of the 1987 of the Philippine Constitution which provides that:
“Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”
The right against unreasonable search and seizure is a core right implicit in the natural right to life, liberty and property. Even in the absence of a constitution, individuals have a fundamental and natural right against unreasonable search and seizure under natural law. Moreover, the violation of the right to privacy produces a humiliating effect that cannot be rectified anymore. This is why there is no other justification to speak of for a search, except for a warrant.
Parallel to the rule on warrant of arrest is the rule on search and seizure. These two warrants are safeguards to the possible abuses that may be committed by public officers or employees against the constitutional rights of every Filipino citizens or aliens who live permanently or temporarily stay in the Philippines.
Section 2, Article III of the 1987 Philippine Constitution provides that “the right of the people to be secure in their 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 a 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 13, Rule 126 of the Rules of Court and some cases decided by the Supreme Court provide the instances when search is lawful without search warrant:
1. When there are prohibited articles open to the eye and hand of an officer (Plain View Doctrine).
The “plain view doctrine” is usually applied where the police officer is not searching for evidence against the accused, but nonetheless inadvertently comes upon an incriminatory object (People v. Musa, 217 SCRA 597). The following requisites must be present :
a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;
b) the evidence was accidentally discovered by the police who have the right to be where they are;
c) the evidence must be immediately visible; and
d) “plain view” justified the seizure of the evidence without any further search (People v. Sarap, G.R. No. 132165, March 26, 2003).
2. When there is consent which is voluntary (consented search) and the following requisites must be present :
a) there is a right;
b) there must be knowledge of the existence of such right; and
c) there must be intention to waive (De Gracia v. Locsin, 65 Phil 689).
3. When it is incident to a lawful inspection.
Example of this kind of search is the searches of passengers at airports, ports or bus terminals.
Searches of passengers at airports, ports or bus terminals. is valid by virtue of Republic Act 6235 which provides that luggage and baggage of airline passengers shall be subject to search. However, Republic Act 6235 does not expressly provide that search and seizure may extend to the contents/ files of the laptops of passengers. But when a passenger who has the knowledge that he has the right to refuse such search by virtue of Section 2, Article III of the 1987 Constitution, but nonetheless consent voluntarily will amount to waiver of such right.