ARTICLE ON THE ACCUSED’S RIGHT TO PRIVACY

Sec. 3 article III of the Constitution provides in part that “(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 xxx”.  This constitutional provision embodies a natural right of a person to protect the sanctity of his communications which should not and cannot be used against him in a judicial proceeding. 

In the celebrated case of People vs. Cabalquinto[1], The Supreme Court withheld the real name of the victim-survivor and used fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members were not disclosed.  The points of law which were the basis of Supreme Court ruling were as follows:

1. Sec. 29 of RA 7610 which provides: “Sec. 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 the case of television and radio broadcasting, producer and director in the case of the movie industry, to cause undue and sensationalized publicity of any case of a violation of this Act which results in the moral degradation and suffering of the offended party”.

2. Sec. 44 of RA 9262 similarly provides: “Sec. 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 or 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”.

3. Likewise, the Rule on Violence Against Women and their Children states: “Sec. 40. Privacy and confidentiality of proceedings.—All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy. Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos”.

4. The position of the OSG in its Comment is also noteworthy. The OSG submits that the posting of the full text of decisions in cases involving child abuse on the Supreme Court Web Page violates the right to privacy of the aggrieved parties. In order to determine whether the subject matter upon which the right to privacy being invoked falls within the constitutionally-protected zone of privacy, it must be shown that the person's expectation of privacy is reasonable. The reasonableness of such expectancy depends on a two–part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.

The above discussion highlights the basis of why the name of a person should not or cannot be disclosed in Supreme Court decisions on cases against women or their children.  The ruling posed an issue on whether or not, the same right or privilege may be invoked by the accused in the same case where he was acquitted or his guilt not proven beyond reasonable doubt.

The undersigned opines on the issue as follows:

1. The protection given to women and children is a privilege acquired through legislation hence; an accused cannot invoke the same.  It is worthy to note that the right to privacy enshrined in the constitution is limited to communication and correspondence only and is subject to certain exceptions. 
2. Jurisprudence forms part of the law of the land, hence the people should be apprised of the facts and circumstances which were the basis of the decision of the Supreme Court.  The foregoing principle considered, publication is inevitable for the purpose of informing the public of Supreme Court decisions.

By: Richelle Tanute

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[1] G.R. No. 167693, September 19, 2006

Online Official Gazette

Background: The Official Gazette was created on June 14, 1941 under Commonwealth Act No. 638, "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette" where (1) all important legislative acts and resolutions of a public nature of the Congress of the Philippines; (2) all executive and administrative orders and proclamations, except such as have no general applicability; (3) decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; (4) such documents or classes of documents as may be required so to be published by law; and (5) such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published.
On July 26, 2010, the online version of the Official Gazette was launched. (http://en.wikipedia.org/wiki/Official_Gazette_(Philippines)). 

The New Civil Code, particularly articles 2 and 3 provides as follows:
“ Article 2. Laws shall take effect after fifteen days following the completion of their publication in the official gazette, unless it is otherwise provided. xxx”
“Article 3. Ignorance of the law excuses no one from compliance therewith.”
In the landmark case of Tanada vs. Tuvera, the Supreme Court ruled that publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended.

The Court further stated that “there is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation could 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. The trouble, though, is that this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet been published.”

Consequently, Executive Order No. 200 repealed the then section 2 of the Civil Code and included the news paper of general circulation as one of the means of publishing a law.

The issue interposed by the online version of the official gazette, is whether or not its publication in the internet, is sufficient form of publication of a law.  The New civil code does not qualify as to the means of publishing the official gazette, it only stated that a law, in order to be valid, needs proper and complete publication in the official gazette, or in a newspaper of general circulation. 

Writer's opinion: With the advent of new technology, it can be said people are already accustomed to using the internet as a mode of communication, whether it be for commercial or for personal purposes.  However, this means of communication is not available to anybody.  Say for instance, a farmer residing in a secluded barrio, where internet is not available, will not gain access to any of the contents of the World Wide Web.  It is the same thing, for those people who did not receive formal education, and had never touched a personal computer or laptop for various reasons such as poverty, lack of interest and etc.  Compared to the online version, an official gazette or a newspaper is available to anybody, who will be interested to have a copy of such.  The public should not concern themselves with the very wordings of the law, rather, the purpose of such enactment should be put primordial concern. It is the legislature’s intent to make laws known to every citizen of our country, as such, they provided for standards to ensure that this purpose will not be put in vain. One example of legislative act that emphasizes the aforementioned purpose is the requirement of filing with the Office of the National Administrative Registry of administrative laws and regulations in addition to the publication in the official gazette, or newspaper of general circulation.  In this regard, it is the writer’s opinion that the online version of the official gazette, is not sufficient compliance of the publication requirement of a law.