Law Innovations (Philippines)

Updates in Philippine law, upgrades for the Filipino lawyer

Archive for the ‘Technology and Law’ Category

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

Posted by Oli Reyes on August 2, 2010

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.

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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 »

Philippine Supreme Court Now on Twitter, Facebook

Posted by Oli Reyes on July 6, 2010

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.

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How UP Diliman Implemented Its Own Automated Voting System

Posted by Oli Reyes on February 18, 2010

(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.

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