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Archive for the ‘Statute Updates’ 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.

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Full Text of Anti-Child Pornography Act of 2009

Posted by Oli Reyes on November 20, 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. Read the rest of this entry »

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Full Text of Anti-Torture Act of 2009

Posted by Oli Reyes on November 16, 2009

President Arroyo signed into law last 10 November 2009, Republic Act No. 9745, known as the “Anti-Torture Act of 2009“. It is a remarkable law in many respects, and one that should be counted as a step towards the right direction. For example, it classifies the practice of waterboarding as torture (See Section 4[a][5]); and one remembers the considerable debate in the United States during the Bush Administration whether the practice was indeed torture.

What you see below is the full text of the Anti-Torture Act of 2009, as taken from the House/Senate Bill that was submitted to the President for signature last October 15. A PDF copy of the bill is also available on the website of the House of Representatives.

Full text of the Anti-Torture Act of 2009 after the jump. Read the rest of this entry »

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