Law Innovations (Philippines)

Updates in Philippine law, upgrades for the Filipino lawyer

Archive for the ‘Jurisprudence’ Category

Official Gazette of the Republic of the Philippines Now Online

Posted by Oli Reyes on July 26, 2010

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 http://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.

Posted in Jurisprudence, Statute Updates, Technology and Law | 3 Comments »

Are Campaign Contributions Subject to Donor’s Tax?

Posted by Oli Reyes on November 17, 2009

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.” Read the rest of this entry »

Posted in Jurisprudence | Tagged: , , | Leave a Comment »