Menu
legal
 

The Publication Requirement in Light of the Digital Age

Laws must come out in the open in the clear light of the sun instead of sulking in the shadows with their dark, deep secrets.
– Justice Isagani Cruz, Tañada v. Tuvera, Tañada v. Tuvera, 146 SCRA 446, 456 (1986)

EVEN FIRST year law students know that laws, rules and regulations, and other issuances are required to be published in the Official Gazette or in a newspaper of general circulation in the country. This publication requirement has been iron clad in the Civil Code, and it has been reinforced and made even better by the Tañada ruling in 1986.

The landmark Tañada ruling enhanced the people’s right of being informed of the laws and regulations that concern them. It clarified all misapprehensions in relation to the publication requirement for the effectivity of laws, regulations, and issuances of general applicability. The case laid down the doctrine of the indispensability of publication for all laws and issuances of public concern, recognizing such publication as an aspect of the right to due process and information on matters involving public concern.

Moreover, it strengthened the people’s right to information—a stark contrast from the prevailing situation during the Marcos regime, where such right was suppressed by the clandestine manner of promulgating presidential issuances. Most importantly, the case also paved the way for the inclusion of newspapers having general circulation in the country as an authorized medium to satisfy the requirement of prior publication. This translates to a wider reach for Filipinos, as opposed to mere publication in the Official Gazette, which has an irregular release and limited public access.

The end of the Marcos dictatorship saw an increased clamor for an enhanced right of the people to information over matters of public concern. To address this, President Corazon Aquino issued Executive Order No. 200, which included newspapers of general circulation in the country as an additional mode to satisfy the publication requirement. This reform was sparked by the Supreme Court’s observation in Tañada. Further, in light of the boom of the broadcast media, a 2002 thesis produced by the Ateneo’s Juris Doctor program proposed the inclusion of the television as an additional mode to improve the reach of the publication requirement. However, our lawmakers have not adopted this proposal. Then came the digital age.

Publication in the New Age
Almost 15 years after the Tañada ruling, the E-Commerce Act of 2000 was passed, with the view of adapting to the age of modern technology. Such law espouses, among other things, the universal application of the twin principles of functional equivalence and non-discrimination. These entail that information stored, processed or transmitted electronically shall have the same footing as those that are found on paper-based materials, and that there should be no disparity of treatment between those found in paper-based form and those in electronic form. These principles paved the way for the possible inclusion of electronic means for the satisfaction of the publication requirement.

However, this possibility was rejected by the Court in the 2008 case of Garcillano v. House of Representatives. The Senate inquiry on the “Hello Garci” tapes was declared unconstitutional on the ground that the Rules of the Senate concerning their inquiries in aid of legislation were not duly published in the Official Gazette or in a newspaper of general circulation, but was merely posted online on its official website. Arguments pushing to uphold the validity of such posting relied on the E-Commerce Act, alleging that said law already allows and considers as valid the online publication of such. The Court rejected the argument, ruling that the law is merely confined to the legal recognition of electronic documents or electronic data messages for evidentiary purposes, and not for being a medium for the publication of laws, rules and regulations, and other issuances.

As previously stated, the requirement of prior publication of laws, rules and regulations, and other issuances for their effectivity springs from the right to be adequately informed of the law that will apply to their actions, which is an aspect of due process. The requirement is also the foundation of the conclusive presumption that every person knows the law, justifying the prohibition of using lack of knowledge of the law as an excuse for non-compliance with such. Finally, such requirement is also the fulfillment of the right to be informed concerning matters that govern the public enshrined in our Constitution.

Proposing a Mode of Online Publication
Using as a basis the provisions of the E-Commerce Act of 2000, which in turn was based from the UNCITRAL Model Law on Electronic Commerce, publishing laws, rules and regulations, and other issuances through electronic means is legally permissible and should be considered as a valid medium for the satisfaction of the publication requirement.

First, the functional equivalence and non-discrimination principles introduced in the Model Law, as adopted into our E-Commerce Act, are not merely limited for evidentiary purposes; it also allows the legal recognition of information that is produced, stored or transmitted electronically, such as in the case of online publication.

Second, the intent of the framers of the law, as explained in the case of MCC v. Ssangyong, was to promote the use of paperless and digital documents, transactions and communications and to accord to these paperless documents the same legal effects as that of printed documents.

Third, the scope of the E-Commerce law extends even to non-commercial transactions. Such is explicitly mentioned in the provisions of the law, and the intent of not limiting the application of the law to purely commercial transactions was to give the principles contained therein a “universal application.”

Fourth, the E-Commerce Act also mandates the performance of the functions of the Government and its transactions with the public through electronic means. Further, this involves the setting up of an online network of the Government to facilitate such online performance of functions and transacting with the general public.

When the Official Gazette was launched online, as well as when the newspapers of general circulation started having electronic versions of their papers, the functional equivalence principle espoused by the E-Commerce Act should have applied to such online counterparts to render these portals sufficient to satisfy the publication requirement of the law. However, in view of the sweeping statement in Garcillano that the Act does not make the Internet such a medium for the publication of laws, the functional equivalence of these electronic counterparts could not be upheld.

Benefits of Publishing Online
The use of the Internet as an added medium in the publication of laws, rules and regulations would be beneficial to the government as opposed to publication in newspapers of general circulation in terms of cost effectiveness. For one, whenever the government would publish a newly enacted law or regulation in a newspaper, expenditures would be incurred on account of the fact that spaces in periodicals are private property, thus, there must be just compensation. In contrast to the posting of laws and regulations online, the expense would be on account of the registration of the domain name of the website, and not for every publication of law or regulation. Particularly in the case of online publication of laws, rules and regulations, the government already has an existing online portal for such, that is, the Official Gazette online which can be accessed at www.gov.ph.

In addition, the Internet has been a growing medium for accessing news and information among Filipinos. A survey conducted by the National Statistics Office revealed that 78% of the 8,557 establishments surveyed nationwide acquire information from various government agencies through online means. The study also showed that a bulk of Internet users belong to the younger portion of the population. The survey forecasts a steady increase of Internet users over the next few years.

Hence, the idea of publishing laws online is really worth exploring, given the many benefits it may potentially bring, especially when it comes to Government savings. Classifying the Internet as an authorized medium for the publication of laws, rules and regulations is in accordance with the mandate of the E-Commerce Act. Introducing this additional mode for the publishing laws, rules and regulations—to complement the current modes we have now—would heighten the chance of the people actually being informed of the laws which govern and bind them.

The combination of the Internet and the traditional printed modes would lead to an increase in the efficiency of the publication requirement. Publishing online targets different sectors of the population at the same time, thus reaching the farthest extent possible—as compared to having to choose only one mode, which could lead to the sacrifice of a target sector of a particular medium. The convergence of the modes allowed would then lead to the protection of the enshrined constitutional rights to due process and to information, which remains to be the paramount consideration of the publication requirement.

The author is senior law student at the Ateneo Law School. This article is based on her Juris Doctor thesis entitled “Assessing the Sufficiency of Online Publication for the Effectivity of Laws, Rules and Regulations, and Other Issuances,” completed in 2013.

Leave a Reply

Your email address will not be published. Required fields are marked *

*