Official Gazette GOES ONLINE

As all law students know, laws to be valid and enforceable it must be published first. Our Supreme Court, in the case Tañada vs. Tuvera G.R. No. 63915.  April 24, 1985 (the first Tañada case), reasoned that an omission of publication would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it (Romulo L. Neri vs. Senate Committee on Accountability of Public Officers and Investigations. G.R. No. 180643.  September 4, 2008).  The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby.

Comes now, Manolo Quezon (a member of the Communications Group of the Aquino administration) announced that Official Gazette is now online at www.gov.ph. But with reservation 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.

 

Thus an interesting question arises as whether the publication in the said website is compliant with the provision of Article 2 of the Civil Code of the Philippines as amended, vis-à-vis due process clause and also by considering the pertinent provisions of Electronic Commerce Act of 2000.

Article 2 of the Civil Code of the Philippines as amended provides 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)”

While Section 7 of Electronic Commerce Act of 2000 provides that:

Section 7. Legal Recognition of Electronic documents– Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and-

(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference, in that–

i. The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and

ii. The electronic document is reliable in the light of the purpose for which it was generated and in the light of all relevant circumstances.

(b) Paragraph (a) applies whether the requirement therein is in the from of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original from.

(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 from; 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.

This Act does not modify any statutory any statutory rule relating to admissibility of electronic data massages or electronic documents, except the rules relating to authentication and best evidence.

The last paragraph of Article 2 of the Civil Code of the Philippines “unless it is otherwise provided” pertains to the date of effectivity of the law published and not referring to any other medium or means of publication as it is already settled in case of Tañada vs. Tuvera. G.R. No. L-63915.  December 29, 1986 (the second Tañada case) where the Supreme Court ruled that publication must be effected in the Official Gazette and not in any other medium. Thus, mandating strict construction of the law.  Constrained to the said ruling, President Cori Aquino was forced to enact Executive Order no. 200 (1987) inserting the option of having laws to be published in the newspaper of general circulation. Therefore, the inevitable conclusion is that there are only two mediums or ways of publishing a law in order to comply with the requirement of Article 2 of the Civil Code, to wit:

  1. Official GazetteG (Article 2 of the Civil Code of the Philippines and the second Tañada case)

2.   Newspaper of General Circulation (Executive Order no. 200 [1987])

Without official publication in the Official Gazette or in a newspaper of general circulation there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that “Ignorance of the law excuses no one from compliance therewith” (People vs. de Dios, G.R. No. L-11003, August 31, 1959, per the late Chief Justice Paras).

Undeniably the pronouncement of the Communications Group of the Aquino administration give rise, for the second time, the similar issue raised in the second Tañada case: Must the publication be effected only in the Official Gazette and Newspaper of General Circulation? And significantly the question to our mind, does the publication in the website http://www.gov.ph would comply with the provisions of Article 2 of the Civil Code of the Philippines?

The question seems to be already answered in the case of  Garcillano vs. The House of Representatives G.R. No. 170338, December 23, 2008, where the court categorically held that:

“The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations.”

But I put my reservation on the said ruling because the primary guiding principle behind the Electronic Commerce Act of 2000 is the “functional equivalent” approach. It must noted that Electronic Commerce Act of 2000 was only lifted in the Model Law on Electronic Commerce (Model Law) of UNCITRAL. To understand the principle of “functional equivalent” in simple terms, the functions of say, a document or a signature is analyzed, and if an equivalent exists in electronic form, then it will be adopted. For example, a signature performs the function, among others, of identifying the signer and indicating his consent to a document. If an electronic method performs the same functions, then such method would be considered an electronic signature (Atty. Jesus M. Disini, Jr. and Janette C.Toral, The Electronic Commerce Act, and its Implementing Rules and Regulations, Annotation, PhilExport, September 2000).

It is like a reminiscing of the second Tañada case, which begs for the enactment of further law for effectiveness and efficiency of the of Electronic Commerce Act of 2000 especially the provision on the Legal Recognition of Electronic documents and its Implementing Rules and Regulation which provide that:

SECTION 7. Legal Recognition of Electronic Data Messages and Electronic Documents. — Information shall not be denied validity or enforceability solely on the ground that it is in the form of an electronic data message or electronic document, purporting to give rise to such legal effect. Electronic data messages or electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing. In particular, subject to the provisions of the Act and these Rules:

a) A requirement under law that information is in writing is satisfied if the information is in the form of an electronic data message or electronic document.

b) A requirement under law for a person to provide information in writing to another person is satisfied by the provision of the information in an electronic data message or electronic document.

c) A requirement under law for a person to provide information to another person in a specified non-electronic form is satisfied by the provision of the information in an electronic data message or electronic document if the information is provided in the same or substantially the same form.

d) Nothing limits the operation of any requirement under law for information to be posted or displayed in specified manner, time or location; or for any information or document to be communicated by a specified method unless and until a functional equivalent shall have been developed, installed, and implemented.

These provisions embody the fundamental principle that electronic documents should not be discriminated against but should be given the same legal status as their paper-based counterparts. Note that the first sentence states the rule in the negative to emphasize that the law validates or confirms the legality of the form of the electronic document, not its contents per se. In other words, the law does not automatically state that the information in the electronic document is legal or valid – it might very well be criminal. But such information shall not be denied recognition or effect solely because it is contained in an electronic document (Atty. Jesus M. Disini, Jr. and Janette C. Toral, The Electronic Commerce Act, and its Implementing Rules and Regulations, Annotation, PhilExport, September 2000).

Until and unless the legislative will act on it, the development and the purpose of the Electronic Commerce Act of 2000 will not be attained, if not, a mere trivial-law at all.

Advertisements

~ by mcapordo on December 9, 2011.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: