Oleriana

SY 2011-2012, Second Semester

  • A Look at the Potential Sufficiency of Publication at the Online Official Gazette to Meet the Requirement under Article 2 of the Civil Code of the Philippines
  • Remote Possibility of Exclusion of a Person’s Name from a Supreme Court Decision, Website, and Reports Annotated
  • Validity of Search and Seizure of Files/Documents of Laptops and Other Electronic Devices

A Look at the Potential Sufficiency of Publication at the Online Official Gazette to Meet the Requirement under Article 2 of the Civil Code of the Philippines

Article 2 of the Civil Code of the Philippines states 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, unless it is otherwise provided.” (As amended by E.O. 200) [1]

Also, In the landmark case of TAÑADA VS. TUVERA 136 SCRA 27 dated 24th of April 1985, invoking the right of the people to be informed on matters of public concern as well as the principle that laws to be valid and enforceable must be published in the Official Gazette, petitioners filed for writ of mandamus to compel respondent public officials to publish and/or cause to publish various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementations and administrative orders. Art. 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The clear object of this provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim ignoratia legis nominem excusat. The word “shall” therein imposes upon respondent officials an imperative duty. That duty must be enforced if the constitutional right of the people to be informed on matter of public concern is to be given substance and validity. The publication of presidential issuances of public nature or of general applicability is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. The Court declared that presidential issuances of general application which have not been published have no force and effect.

With the dawn of advanced information technology, authorities are continuously looking for ways to maximize efficiency, convenience, accesibility, and simplicity in the publication of presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementations and administrative orders; and in the manner that government publications can effectively reach every filipino citizen in the least time and cost possible. With the establishment of an online Official Gazzete in the Philippines, there is now the possibility that the 15-day period might be counted from the time the laws or issuances are posted online at http://www.gov.ph.

However, Quezon said that the printed version of the Gazette still takes precedence over its electronic counterpart. “The online version does not supplant the paper version, which is what the law and jurisprudence required. So the Official Gazette online is updated daily, then the weeekly edition is printed,” he explained. [2]

Also, in the case of Garcillano vs. House of Representatives, the Court debunked the claim that the publication in its website by the Senate of its rules of procedure for inquiries in aid of legislation satisfied the requirement under Section 21, Article VI of the Constitution that it conduct such inquiries “in accordance with its duly published rules of procedure”. [3]

Garcillano was decide on an 8-6 vote, and the closeness of the vote intensifies the possibility that this doctrine may later be reversed. But until that point, or the passage amendatory legislation, the prudential measure remains to continue publishing laws on newspapers of general circulation, and to reckon the effectivity of the law from the date of newspaper publication. Still, there is tremendous benefit to the public with the online presence of the Official Gazette. Not only does it increase public awareness over the actions of our government, it further bolsters the constitutional right to information on matters of public concern. [4]


Endnotes

[1] Article 2 of the Civil Code of the Philippines

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

[3] http://lawinnovations.wordpress.com/2010/07/26/official-gazette-of-the-republic-of-the-philippines-now-online/

[4] http://lawinnovations.wordpress.com/2010/07/26/official-gazette-of-the-republic-of-the-philippines-now-online/


Remote Possibility of Exclusion of a Person’s Name from a Supreme Court Decision, Website, and Reports Annotated

Section 3(1), Article III of the 1987 Constitution of the Republic of the Philippines states –

“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 issue at hand is a clash between the constitutional right to privacy as enshrined in the 1987 constitution and the State’s power to limit such privacy for the purpose of preserving public safety and interest. There is no doubt that the Constitution affords every citizen his right to privacy as this is in keeping with its numerous provisions which solemnly values human dignity. The following provisions, under the same article, are corollary to privacy –

“Section 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.”

“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.”

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. Historically, it has mostly been in the areas of legality of searches and seizures, and the infringement of privacy of communication where the constitutional right to privacy has been critically at issue. [1]

However, the right of privacy to be invoked by a person in asking that his name be stricken off from any SC Decisions, SC websites, SCRA and other repositories does not again qualify as a ground for this kind of violation. Appropriation of name or likeness, the oldest and most widely recognized branch of the invasion of privacy tort, imposes liability for unauthorized use of another’s name, likeness, or other identifying characteristics. Although the tort applies whenever the defendant, for his or her benefit (pecuniary or otherwise), appropriates the plaintiff’s identity, the great majority of appropriation cases involve ‘‘commercial’’ uses like advertising or merchandising. [2]

In conclusion, a person may not ask for his name to be stricken-off from any issuance of the Supreme Court of the Philippines. These issuances are public documents for future reference in the administration of justice to the end that public safety and interest be preserved. Public interest is indisputably the greatest tenet of our constitutional mandate that right to privacy must be subservient to it.


Endnotes

[1] Arnel Agustin v. Court of Appeals and Minor Martin Jose Prollamente, represented by his Mother/Guardian Fe Angela Prollamante, GR No. 162571, 15 June 2005, Third Division

[2] http://american-business.org/3138-appropriation-of-name-or-likeness.html


Validity of Search and Seizure of Files/Documents of Laptops and Other Electronic Devices

Article III, Section 2 of the 1987 Philippine Constitution 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”

As part of the Bill of Rights, citizens are accorded security in their persons and basically everything that belongs to them. The constitution guarantees the protection of the citizen from unreasonable search and seizure by requiring that only upon determination of probable cause by the judge that a search warrant or warrant of arrest shall issue. This is also in consonance with the right to privacy as it values not only a person’s right to be let alone but also the keeping of peace in his household and properties.

Nevertheless, there are certain exceptions to the constitutional provision on warrant such as incidental to a lawful arrest, search of evidence in plain view, search of a moving vehicle, consented warrantless searches, custom searches, stop and frisk, exigent and emergency circumstances, checkpoints, Republic Acts requiring inspections or body checks in airports, emergency, in times of war, and within military operations.

In consideration is whether the valid physical seizure of a laptop/hardware and other electronic devices carry with it the search for its files/documents. After scrutiny and interpretation of Section 2, Article III of the Constitution, it is to be settled that the warrant must particularly describe the place to be searched and the persons or things to be seized. One can therefore infer that the hardware is a different subject matter from its contents/files. As such, non-inclusion of the contents in the warrant will render the search for the same invalid and inadmissible as evidence in any proceeding.

According to an American case, The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry [1]. This is known as the border doctrine.

In the Philippines, by reason of technology advancement, evidence that may possibly be used in Court and crimes involving technology are recognized. We have now A.M. NO. 02-1-06-SC 2002-01-22, Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property which took effect on February 15, 2002. Section 16 of the said rule provides for the seizure of computer disks and other storage device and Section 2 thereof also authorizes the ex-parte application of the issuance of a writ of search and seizure directing the alleged infringing defendant or expected adverse party to admit into his premises the persons named in the order and to allow the search, inspection, copying, photographing, audio and audiovisual recording or seizure of any document and article specified in the order. Applied to cybercrimes, consider the following wording in a warrant: Any pornographic material found in the computer shop of X depicting minors engaged in sexual intercourse (in relation to RA 9775), there is also a recognition of technology as a tool in the commission of a crime. And on the surface, it may be argued that the terms of the warrant are sufficiently particular. [2]

Finally, the provision of the constitution are controlling, so non-observance of the same cannot be excused. The files/documents must be clearly stated in the warrant, otherwise it will be tantamount to illegal search or seizure.


Endnotes

[1] Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979)

[2] http://lawandict.blogspot.com/2010/02/cybercrimes-and-search-and-seizure.html

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