67,000 Year-Old Callao Man & the National Cultural Heritage Act of 2009

Speaking as one with a keen personal interest in human evolution and Philippine prehistory, I am tremendously excited by the discovery of what apparently are the oldest human remains ever found in the Philippines – the Callao Man, which at 67,000 years, predates Tabon Man by around 17,000 years. The discovery was made back in 2007, following an archaeological excavation of the Callao Caves in Cagayan Province led by Dr. Armando Mijares of the Archaeological Studies Program at UP Diliman. Callao Man consists of a single bone (the third metatarsal of the foot), yet it has been identified as a human, and there even is speculation that it might be of a pre-modern human species which if confirmed, will rewrite the story of evolution. Nonetheless, the Callao Man discovery is archaeologically significant not only because it is the oldest human remains in the Philippines (ang Unang Pinoy!), but also it lends credence to the theory that as far back as 67,000 years ago, humans were already capable of travelling long distances by sea, with no visible land masses in sight.

Though Callao Man was discovered back in 2007, it is the first significant archaelogical discovery in the Philippines since the enactment last December of the National Cultural Heritage Act of 2009 (available for download from NCCA website, PDF format). The law was designed to conserve our nation’s cultural heritage by imposing protections on our cultural property. Interestingly, the language of the law does not contain any specific reference to human remains as among those objects which may be classified as cultural property, perhaps a sign that the legislators were queasy about the subject. In Civil Code conception, human remains are considered as property, and it is the immediate family members who control the interment or disposition of the body; while under the Organ Donation Act of 1991, it also is an immediate family member or guardian who is capacitated to donate an organ of a decedent who left no express wishes on that matter. Under Sec. 33 of the Indigenous Peoples Rights Act of 1997, indigenous cultural communities or peoples have the right to repatriation of human remains, and it is possible that this right may soon come to clash with scientific examination of ancient human remains, similar to the dispute over Spirit Cave Man in Nevada.

Official Gazette of the Republic of the Philippines Now Online

Members of the Philippine bar would know what the Official Gazette is, but few are likely to have ever seen or held a physical copy of the publication. That may change soon, as the Official Gazette is now online at www.gov.ph. The launch of the beta version of the site was announced earlier today by Manolo Quezon (now a member of the Communications Group of the Aquino administration) on his Twitter feed.

The site, in its current state, features President Aquino’s State of the Nation Address as well as links to the platform of government, speeches and a directory. If the site will eventually replicate the contents of the Official Gazette, it will contain much more than that. The Official Gazette was created by Commonwealth Act No. 638 (1941), and Section 1 of the Act provides for its contents:

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 everyorder 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 inthis 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 ofthe Government, but not the legislative or judicial branch of the Government.

Among the matters provided in the Official Gazette which would be especially of public interest would be newly enacted laws and executive/administrative orders of general application. So far, the text of these laws or executive orders have been relatively hard to come by online, unlike Supreme Court decisions which are almost immediately published at the Court’s website. The public and the legal community would welcome the prospect of the Official Gazette being an online repository of the newest laws and executive issuances.

For lawyers in particular, one interesting question will arise from this development. Originally, Article 2 of the Civil Code provided that “[l]aws shall take effect after fifteen days following the completion of their publication in the Official Gazette…”, a requirement which the Supreme Court reiterated and reinvigorated in Tanada v. Tuvera (1986). However, in June 1987, President Cory Aquino, using her then extant law-making powers, amended Article 2 of the Civil Code (through E.O. No. 200) by now providing publication in a newspaper of general publication as an alternative to the Official Gazette. Since then, the general assumption has been that laws take effect within 15 days from the time they are published in the newspaper, rather than in the Official Gazette which traditionally takes some time to be printed. There is now the possibility though, with the new online presence of the Official Gazette, that the 15 day period might be counted from the time the laws or issuances are posted online at www.gov.ph.

The passage of a law amending either the Article 2 of the Civil Code or Commonwealth Act No. 638 could guarantee that date of the online publication of laws on the Official Gazette Online would count as the reckoning point for the 15-day period. However, in the absence of such an amendatory law, the doctrine pronounced in 2008 by the Supreme Court in Garcillano v. House of Representatives could preclude such a claim. In Garcillano, 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”. The Court then even refuted the argument that the E-Commerce Act of 2000 validated such online publication.

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.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only “in accordance with its duly published rules of procedure.”

Garcillano was decided 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.

Philippine Supreme Court Now on Twitter, Facebook

In a strikingly novel move, the Supreme Court of the Philippines now has its own official Twitter and Facebook accounts. Atty. Midas Marquez of the Court’s Public Information Office made the announcement today in a press conference and even hinted that Chief Justice Renato Corona may “tweet once in a while”.

It is not immediately clear if any of the other national Supreme Courts around the world also maintain an official Twitter account. The State Supreme Courts of Florida and Indiana do have Twitter accounts (opened just within the last few months), while a seemingly official looking account of the United States Supreme Court was later revealed as bogus. The Philippine Supreme Court could have very well been the first High Court in the world to have dived into the social media pool. Any palpable effects that may ensue will certainly be watched by other judicial organs which may be considering a similar move.

• The Supreme Court of the Philippines on Twitter
• The Supreme Court of the Philippines on Facebook

International Chamber of Commerce Revises Arbitration Costs

A heads up from our friend and emerging international arbitration specialist Jun Bautista. For those involved in arbitration practice, some important news out there. The International Chamber of Commerce, the largest business organization in the world and one of the leading providers of arbitration services worldwide, will be revising its arbitration costs effective 1 May 2010. This will be the first time since January of 2008 that the ICC will be revising its arbitration costs.

From the ICC website, an overview of the revised costing:

“The revision does not change ICC’s traditional method of calculating administrative costs and arbitrators’ fees on the basis of the amount in dispute. However, the rates applicable to each ‘slice’ of the amount in dispute have been adjusted. An increase averaging 0.14 of a percentage point has been applied to most slices…As an example of changes resulting from the new scales, the advance on costs requested in a case valued at US$ 1 million submitted to a sole arbitrator might rise to US$ 61,093 from US$ 56,485 presently, and the advance in a case valued at US$ 25 million submitted to a tribunal of three arbitrators, to US$ 480,989 instead of US$ 447,730 presently (these examples do not include arbitrators’ expenses)”

The revised costs, as reflected in Appendix III of the ICC Rules of Arbitration, may be found here (PDF).

Attendance in IBP Conventions No Longer Mandatory For Retaining Membership in Good Standing

Last 2008, the Integrated Bar of the Philippines passed IBP Resolution No. XVIII-2008-188 which mandated attendance in the immediate preceding IBP Regional or National Convention in order to obtain a Certificate of Good Standing from the IBP. This new requirement has led to questions even until now whether one has to attend these conventions. However, last 17 April 2009, the IBP Board of Governors issued a new resolution revoking the 2008 Resolution. Therefore, one need not have attended the previous IBP conventions in order to be certified as a member in good standing.

Save the Date: Law Innovations MCLE Series

Law innovations is proud to announce that it will be holding a 36-hour full credit MCLE series on March 11, 12, 18 & 19, at the 2nd floor, Kamayan EDSA. Among the featured lecturers are Solicitor-General Alberto Agra, POEA Director Atty. Jennifer Jardin-Manalili, and COMELEC Law Director Ferdinand Rafanan. Participants may avail of our early bird rate of Php 8,000 if they pay on or before 3 March 2010, and the pre-payment rate of Php 9,000 if they pay before March 11. The on-site rate is Php 11,000 for the full 36-hour course. Participants who are looking for partial credits may avail of our whole-day and half-day rates.

Visit our MCLE page for more details and updates.

How UP Diliman Implemented Its Own Automated Voting System

(Note: Atty. Ferdinand Rafanan, Director of the COMELEC Law Department, has accepted the invitation of Law Innovations to speak on the 2010 automated national elections at its first MCLE Series (36-hours full credit) scheduled for 11, 12, 18 & 19 March 2010. E-mail law.innovations@gmail.com for more details)

As the Philippines prepares for its first automated national elections in May 2010, we may as well look to the University of the Philippines-Diliman, which has implemented automated voting for all its local student university-wide elections since 2009. While the framework of the U.P. Diliman voting system (dubbed “Halalan”) requires no paper ballots and is thus radically different from that which will be utilized in our own national polls, it may be a source of inspiration and future lessons as our country adjusts to the prospect of an automated electoral future.

With the assistance of U.P. College of Law Secretary Solomon Lumba, I was able to interview the current Project Manager of Halalan, Rystraum Gamonez, a second year Computer Science student at the U.P. College of Engineering. Rystraum explained that Halalan was developed after members of his campus organization, the UP Linux Users Group (UnPLUG), were watching a typically prolonged tabulation of paper ballots for the University Student Council election, wondering whether an automated voting system for the campus was possible. They scoured the Internet for available election software for their purposes, only to find none. To their credit, they decided then to develop one themselves, and the software they developed was used, first in local College of Engineering elections, then by three other colleges in their own local council elections, before it was finally adopted by the entire university for the student council elections of 2009. The efforts of the developers of Halalan have hardly remained anonymous. For developing the Halalan software, UnPLUG won an award during the 2006 Software Freedom Day, a worldwide celebration of Free and Open Source Software initiated by Software Freedom International and co-sponsored then by IBM. The prize — an IBM Power5 server which is currently used as the central server for Halalan. The team of developers who invented Halalan: Waldemar Bautista, Ralph Justin Arce, John Michael Bitanga, Vanessa Rose Castro, Wigi Vei Oliveros, Antonio Mari San Miguel, DJ Sison, Carlo Santos and Orly Tarun.

Full Text of Anti-Child Pornography Act of 2009

Last 17 November 2009, President Arroyo signed into law Republic Act No. 9775, which will be better known as the “Anti-Child Pornography Act of 2009″. This landmark legislation was lobbied for by children’s rights advocates, including the UNICEF. We have obtained from the House of Representatives website a copy of the bill as finally approved by both Houses of Congress last 13 October 2009, and will be reproducing the full text below. Should we find deviations between this copy and the final text of the law, we will correct our copy immediately.  But before that, a few of my own personal observations on the new law.

One remarkable aspect about the new law is how extensively it involves the community  in the enforcement of its provisions. As expected, ISPs and every Internet content host in the Philippines (yes, that includes bloggers) is required to take active measures to block child pornography, and even to report incidences thereof to the authorities. At the same time, internet cafes, schools, offices and service providers are mandated to “install blocking system or software to prevent transmittal of or access to the child pornography materials”.  Also similarly engaged are any “[p]hoto developers, information technology (IT) professionals, credit card companies and banks, and any person who has direct knowledge of any child pornography activities”, they to report such child pornography activity within 7 days from discovery to the authorities, or else pay a fine. And there is that rather broad warning that “[i]t shall be unlawful for a person to knowingly facilitate the commission of any of the prohibited or unlawful acts under any of the provisions of this Act.” This extensive community involvement is laudable, though I can’t think of any other enforcement against criminalized activity in the Philippines that similarly engages by mandate of law so wide a swath of society

A child under the law is defined as 18 years old and below. Apart from the intuitive and urgently needed criminalization of pornographic acts involving real children, the law also classifies as child pornography a “digital image, computer image or computer-generated image that is indistinguishable from that of real children engaging in an explicit sexual activity”, and a “representation of a person who is, appears to be, or is represented as being a child, the dominant characteristic of which is the depiction, for a sexual purpose, of: the sexual organ or the anal region, or a representation thereof; or the breasts, or a representation of the breasts, of a female person.” The inclusion of virtual or 2-d representation of children had raised a howl among fans of Japanese “hentai”. (See Edward Baylon on Japanator and Anime News Network) Still, while the depiction of minors engaged in sexual activity in medium such as anime is considered pornographic and criminal, it would not necessarily follow that less blatant acts such as, for example, the depiction of breasts is necessarily criminal. With respect to “any representation of the sexual parts of a child”, the depiction must be “for primarily sexual purposes” in order to be considered pornographic; and in ascertaining “primarily sexual purposes”, the law requires to be taken into account, among others, “[t]he work taken as a whole imbued within its context, manner or presentation, intention and culture, lascivious, literary, artistic, political and scientific value.”

Nonetheless, the U.S. Supreme Court in 2002 took issue with parts of the U.S. Child Pornography Prevention Act of 1996 insofar as that law prohibited “sexually explicit images that appear to depict minors but were produced without using any real children”. In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court, voting 6-3-1, declared those restrictions as overbroad and unconstitutional. The following passage from Justice Anthony Kennedy’s majority opinion, which pointed out that such recent films as Baz Luhrmann’s Romeo & Juliet & American Beauty might be considered pornographic under the new law, are worth looking into:

The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea–that of teenagers engaging in sexual activity–that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age.  This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations. It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

Both themes–teenage sexual activity and the sexual abuse of children–have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 (“She hath not seen the change of fourteen years”). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. E.g., Romeo and Juliet (B. Luhrmann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

Contemporary movies pursue similar themes. Last year’s Academy Awards featured the movie, Traffic, which was nominated for Best Picture. See Predictable and Less So, the Academy Award Contenders, N. Y. Times, Feb. 14, 2001, p. E11. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. See “American Beauty” Tops the Oscars, N. Y. Times, Mar. 27, 2000, p. E1. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.

Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute’s prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work’s redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene…

These concerns nonetheless should not detract from the very real evil which the new law prevents – the actual exploitation of real children through pornography. This new law might make the Internet less free-wheeling, but it makes society more safe.

Full text of the Anti-Child Pornography Act of 2009 after the jump.

List of Pleadings Which Must Be Verified (Update #1)

Every law student knows of the urgency of the verification requirement; that a defective or absent verification when required may be cause of the outright junking of the pleading so impaired. Many clients have ended up befuddled, if not outraged, at seeing their complaints dismissed due to improper verification. Indeed, the verification requirement has been the cause for minor paranoia among lawyers in the Philippines, and the prudential rule has emerged that whenever in doubt, verify.

(Another common, often fatal flaw in verification is the continued adherence by some lawyers to the now obsolete rule that a pleading may be verified as “true and correct based on knowledge or belief”. Since the adoption of A.M. No. 00-2-10-SC, amending Section 4,  Rule 7  of the 1997 Rules of Civil Procedure, pleadings must know be verified as “true and correct based on personal knowledge or based on authentic records.”)

Still, as a general rule, pleadings need not be verified, and it is only when required by statute or a procedural rule that a pleading should be verified. What follows below, for the benefit of practictioners, is a comprehensive list of pleadings filed before the courts or quasi-judicial agencies that are required to be verified.

Are Campaign Contributions Subject to Donor’s Tax?

With the Philippine campaign season approaching, it is worth asking whether campaign contributions are subject to the donor’s tax which is generally assessed on all gifts pursuant to the National Internal Revenue Code.

The quick answer is “No”. Section 13 of Republic Act No. 7166 explicitly provides that “[a]ny provision of law to the contrary notwithstanding any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission [on Elections] shall not be subject to the payment of any gift tax.” The phrase “duly reported to the Commission” establishes an important caveat, and it is very arguable that such contributions which were not reported to the COMELEC may be subject to the donor’s tax. Who is bound to “duly report to the COMELEC” for the purposes of Section 13? Both the campaign donor and the candidate/political party receiving the campaign contributions are duty-bound under law to report these contributions with the COMELEC. Under Section 99 of the Omnibus Election Code (B.P. 881), the person who gives campaign contributions is obliged to file with the COMELEC not later than thirty days after the election “a report under oath stating the amount of each contribution, the name of the candidate, agent of the candidate or political party receiving the contribution, and the date of the contribution.” At the same time, under Section 14 of Republic Act No. 7166, within the same thirty-day period, the candidate and the treasurer of the political party are also obliged to file “the full, true and itemized statement of all contributions and expenditures in connection with the election.”