The publication requirement of a law vis-à-vis its effectivity is provided under Article 2 of the New Civil Code which 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.”
In the past, the publication of laws must be effected in the Official Gazette and not in any other medium.
As a brief history, 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." Section 1 of said Act provides that there shall be published in the Official Gazette (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: Provided, That for the purpose of this section every order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect: And provided, further, That the term “document” as used in this section shall include any order, regulation, rule, certificate, license, notice, or similar instrument issued, prescribed, or promulgated by any executive department, bureau, office, commission, independent board, agency, or instrumentality of the administrative branch of the Government, but not the legislative or judicial branch of the Government.
However, on July 18, 197, President Corazon C. Aquino issued Executive Order No. 200 of 1987, which amended Article 2 of the Civil Code. Pursuant to this amendatory law, publication may now either be in the Official Gazette or in a newspaper of general circulation in the Philippines.
Notwithstanding that publication may now be made in the in the Official Gazette or in a newspaper of general circulation in the Philippines, a question arises when publication is to be made in the Official Gazette. As you are aware, on July 26, 2010, the Office of the President launched the online version of the Official Gazette of the Republic of the Philippines. Thus, it is interesting to analyze whether the posting of laws via the online version of the Official Gazette would be considered as sufficient for purposes of complying with the publication requirement of Article 2 of the New Civil Code.
Applying the provisions of Electronic Commerce (E-Commerce) Act of 2000[1], it may be considered that online publication of laws would be sufficient for purposes of complying with the publication requirement of Article 2 of the New Civil Code. This may be established based on the objective of the E-Commerce Act which aims to facilitate domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information through the utilization of electronic, optical and similar medium, mode, instrumentality and technology to recognize the authenticity and reliability of electronic data messages or electronic documents related to such activities and to promote the universal use of electronic transactions in the government and by the general public.
This contention may be further supported on the basis of the sphere of application of the Act which applies to any kind of electronic data message and electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information.
A law, as posted via the online version of the Official Gazette, may be deemed as an electronic data message or electronic document which falls within the sphere of application of the E-Commerce Act. As provided under the Act, an electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means[2]. On the other hand, an electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. [3]
It is worth noting though that the ruling of the Court in Garcillano vs. The House of Representatives[4] can be deemed to have disproved the above proposition on said online publication based on the E-Commerce Act. In this case, the court ruled that the E- commerce Act “xxx 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.” Thus, on the basis of this decision, it may be inferred that the publication thru the online version of the Official Gazette has no basis vis-à-vis the E-Commerce Act and thus, may not comply with the publication requirement of Article 2 of the New Civil Code.
Actually, based on the news, Manolo Quezon III, a member of the President's communications team, said that the print version of the Official Gazette still takes precedence over its electronic counterpart. He explained that the online version doesn't supplant the paper version, which is what the law and jurisprudence required.[5]
Nonetheless, the following points may be taken into account:
· In reference, at least, to the object and sphere of application of the Act, it appears that it does not limit its application solely for evidentiary purposes
· In said case, the respondents justify their non-observance of the publication by arguing that they are published in booklet form available to anyone for free, and accessible to the public at the Senate’s internet web page. It is important to highlight that publication here was made in the Senate’s internet webpage. As such, the case may be different as regards the publication using the online version of the Official Gazette for publication.
· Written publication can be a functional equivalent of publication via the online version of the Official Gazette pursuant to the legal recognition of the Act of electronic data messages and electronic documents.
Further, as reiterated in the Court’s resolution of the case of Tañada vs. Tuvera[7], the need for publication before any law be made effective seeks to prevent abuses on the part if the lawmakers and, at the time, ensure to the people their constitutional right to due process and to information on matter of public concern. Accordingly, this may also be achieved thru publication via the online version of the Official Gazette.
“The State recognizes the vital role of information and communications technology (ICT) in nation-building; the need to create an information-friendly environment which supports and ensures the availability, diversity and affordability of ICT products and services xxx; its obligation to facilitate the transfer and promotion of technology; xxx[8].” This declaration of policy acknowledges to the role of technology for the national benefit. Thus, the use of the online version of the Official Gazette falls within this realm. Be it noted that the in the past, the Official Gazette was criticized because of its erratic releases and limited readership; and thus, publication in the
Yet, whether or not the publication via the online version of the Official Gazette is sufficient for purposes of Article 2 of the New Code and whether the same finds supportive basis under the E-Commerce Act remains to be an interesting and challenging matter to be resolved. It seems that technology and the law are not yet outfitted for each other, at least in this jurisdiction.
· Written publication can be a functional equivalent of publication via the online version of the Official Gazette pursuant to the legal recognition of the Act of electronic data messages and electronic documents.
· The clear object of Article 2, based on the ruling of the Court in the case of Tañada vs. Tuvera[6], is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. The notice and publication would serve as the basis for the application of the maxim "ignorantia legis non excusat”. The Court ruled that it would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.
Further, as reiterated in the Court’s resolution of the case of Tañada vs. Tuvera[7], the need for publication before any law be made effective seeks to prevent abuses on the part if the lawmakers and, at the time, ensure to the people their constitutional right to due process and to information on matter of public concern. Accordingly, this may also be achieved thru publication via the online version of the Official Gazette.
· The publication via the online version of the Official Gazette is in consonance with the rapid developments in information technology and greater number and diversity of its users which in turn provides increased public awareness.
“The State recognizes the vital role of information and communications technology (ICT) in nation-building; the need to create an information-friendly environment which supports and ensures the availability, diversity and affordability of ICT products and services xxx; its obligation to facilitate the transfer and promotion of technology; xxx[8].” This declaration of policy acknowledges to the role of technology for the national benefit. Thus, the use of the online version of the Official Gazette falls within this realm. Be it noted that the in the past, the Official Gazette was criticized because of its erratic releases and limited readership; and thus, publication in the
newspapers of general circulation was allowed thereafter as the same could better facilitate communication of laws to people, easily available and have broader audience.
Yet, whether or not the publication via the online version of the Official Gazette is sufficient for purposes of Article 2 of the New Code and whether the same finds supportive basis under the E-Commerce Act remains to be an interesting and challenging matter to be resolved. It seems that technology and the law are not yet outfitted for each other, at least in this jurisdiction.
[1]Republic Act (RA) No. 8792, “An Act Proving for the Recognition and Use of Electronic Commercial and Non-commercial Transactions, Penalties for Unlawful Use Thereof, and Other Purposes
[2] Section 5(c), RA 8792
[3] Section 5(f), RA 8792
[4] G.R. No. 170338, December 23, 2008
[6] G.R. No. 63915. April 24, 1985
