Phantom resolution

This article looks into the applicability of the Rules on Electronic Evidence on criminal cases, in light of the promulgation of the Ang vs. Court of Appeals decision in 2010.


I. The Rules on Electronic Evidence
II. The declaration in Ang vs. Court of Appeals
    A. Impact of and musings about the Ang declaration
III. Does it really exist?
    A. Online copy from the Office of the Court Administrator
    B. The impact of Garciliano vs. House of Representatives Committees on Public Information
    C. One possible option


I. The Rules on Electronic Evidence

Rule 1, Section 2 of the Rules on Electronic Evidence (AM 01-7-01-SC, promulgated 17 July 2001, effective 1 August 2001) [1] provides

These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases.

Supposedly, there was a Resolution, entitled “Re: Expansion of the Coverage of the Rules on Electronic Evidence,” promulgated on 24 September 2002, effective 14 October 2002 following the publication of this Resolution in a newspaper of general circulation. [2] The resolution provided:

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court, the Court Resolved to AMEND Section 2, Rule 1 of the Rules on Electronic Evidence to read as follows:

“SEC. 2 Cases covered. – These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases.”

The amendment shall take effect on October 14, 2002 following the publication of this Resolution in a newspaper of general circulation.

September 24, 2002.

The alleged Resolution was reported in the Philippine Star, [3] a newspaper of general circulation in the Philippines. Nevertheless, as of now, a copy cannot be found in the Supreme Court’s list relevant to amendments to the Rules of Court. [4]

II. The declaration in Ang vs. Court of Appeals

Whether the 24 September 2002 resolution “officially” exists is very relevant, inasmuch as the application of the Rules on Electronic Evidence to criminal cases is hinged on the existence of that resolution, especially considering the declaration of the Supreme Court in Ang vs. Court of Appeals, GR 182835, 20 April 2010; Second Division, Abad [J], [5] to wit:

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings. [A.M. No. 01-7-01-SC, Rule 1, Section 2]

a. Impact of and musings about the Ang declaration

The impact of the declaration in Ang vs. Court of Appeals cannot be discounted, as such declaration affects the admissibility of electronic evidence in criminal cases, especially if the objection to the admissibility of such electronic evidence has been timely, contrary to the facts attendant in Ang vs. Court of Appeals. Whether the declaration in Ang vs. Court of Appeals is right or wrong [6] depends whether the 24 September 2002 resolution exists or not. As often repeated in this short article, does it exist?

Nevertheless, personally, it is just not rational that the application of rules of electronic evidence has not been extended to criminal cases for the past ten (10) years, considering such lengthy period. For, if such would be the case, the absence of such extension negates any prosecution in pursuance of the penal provisions of the e-Commerce Law of 2000 (RA 8792), [7] the Anti-Child Pornography Act of 2009 (RA 9775), [8] the Anti-Photo and Video Voyeurism Act of 2009 (RA 9995), [9] among other special Philippine criminal laws which penalize infringing acts committed especially through electronic media.

III. Does it really exist?

A. Online copy from the Office of the Court Administrator

On 6 July 2012. Francis Acero provided a lead [10] to the Office of the Court Administrator (OCA)’s copy of the 2002 Resolution in its website. [11] This somehow provided a bit of relief to those who believe that the Resolution was existing and applicable, contrary to the declaration in Ang vs. Court of Appeals, inasmuch at the PDF file is stored in the judiciary’s server.

B. The impact of Garciliano vs. House of Representatives Committees on Public Information

Nevertheless, the OCA copy itself cannot be a source, by its own, regarding the disputed Resolution’ publication, considering the import of Garciliano vs. House of Representatives Committees on Public Information, etc., GR 170338, 23 December 2008; En Banc, Nachura [J]. [12] Therein, the Court quoted the response of Justice Carpio (who appear to have participated in 2002 Resolution, if the Resolution does exist and made applicable since 2002) to the contention against mandatory publication of unrevised rules:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules “shall take effect seven (7) days after publication in two (2) newspapers of general circulation,” precluding any other form of publication. Publication in accordance with Tañada is mandatory to comply with the due process requirement because the Rules of Procedure put a person’s liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.

More importantly, in relation to contentions as to the applicability of the e-Commerce Act (RA 8792) to support the claim of valid publication through the Internet, the Court said therein:

R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. [MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 15, 2007, 536 SCRA 408] In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. [Sections 6, 7 and 10 of R.A. No. 8792] It does not make the internet a medium for publishing laws, rules and regulations.

C. One possible option

Thus, it would appear that the only way that the matter may be resolved, whether the Resolution has been made applicable in 2002, would lie upon the availability of proof of publication in a newspaper of general circulation or the Official Gazette. Ultimately, is there a copy of a 2002 issue of the Philippine Star (since its applicability was reported therein), containing the Resolution itself that would resolve the matter altogether?


Endnotes

[1] Administrative Matter 01-7-01-SC, 17 July 2001. Philippine Supreme Court. http://sc.judiciary.gov.ph/rulesofcourt/2001/electronicevidence.htm; LawPhil. http://www.lawphil.net/courts/supreme/am/am_01-7-01_sc_2001.html; ChanRobles. http://www.chanrobles.com/rulesonelectronicevidence.htm

[2] “Administrative Matter 01-7-01-SC, 24 September 2002.” Disini & Disini http://www.disini.ph/res_sc_am_1-7-01.html.

[3] Lim, Francis. “Point of Law” article of 4 February 2003. Philippine Star. “http://www.philstar.com/Article.aspx?articleId=194113. Accessed 10 January 2012. Note: Article available as http://www.philstar.com/business/194111/some-2002-supreme-court-resolutions-and-circulars-affecting-legal-practice, as of 3 December 2012.

[4] Amendments to the Rules of Court. Philippine Supreme Court. http://elibrary.judiciary.gov.ph/index5.php?doctype=Amendments%20to%20the%20Rules%20Of%20Court#rulesofcourt. Accessed 10 January 2012. Note: List no longer available online, as of 20 November 2012.

[5] Ang vs. Court of Appeals, GR 182835, 20 April 2010; Second Division, Abad [J]. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/182835.htm; LawPhil. http://www.lawphil.net/judjuris/juri2010/apr2010/gr_182835_2010.html; ChanRobles. http://www.chanrobles.com/cralaw/2010aprildecisions.php?id=942.

[6] Dreo, Norman. “All’s Well That Ends Well”. Law and ICT. http://lawandict.blogspot.com/2011/09/alls-well-that-ends-well.html

[7] Republic Act 8792. LawPhil. http://www.lawphil.net/statutes/repacts/ra2000/ra_8792_2000.html.

[8] Republic Act 9775. LawPhil. http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html

[9] Republic Act 9995. lawPhil. http://www.lawphil.net/statutes/repacts/ra2010/ra_9995_2010.html

[10] Acero, Francis. http://twitter.com/FrancisAcero/status/221055973593317376 Twitter.

[11] “Part I. Judicial Matters, G. Evidence.” Office of the Court Administrator. oca.judiciary.gov.ph/files/pdfs/PART%20I%201973-2002%20%20-%20JUDICIAL%20MATTERS%20-%20G%20-%20Evidence.pdf.

[12] Garciliano vs. House of Representatives Committees on Public Information, GR 170338, 23 December 2008; En Banc, Nachura [J]. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/2008/december2008/170338.htm; LawPhil. http://www.lawphil.net/judjuris/juri2008/dec2008/gr_170338_2008.html; ChanRobles. http://www.chanrobles.com/scdecisions/jurisprudence2008/december2008/170338.php


Disclaimer: This was not written to to be an affront to any institution one has taken an oath to serve.
Note: Initial part written on 10 January 2012. Updated 29 August 2012. Reformatted 20 November 2012

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3 responses to “Phantom resolution

  1. Pingback: Republic Act 10175: Cybercrime Prevention Act of 2012 | Berne Guerrero

  2. Pingback: Electronic Evidence for Criminal Cases | Berne Guerrero

  3. Dear Atty.Guerrero,

    The “missing” resolution will soon be posted on the SC E-Library. They found it after an inquiry I made with the head of the Supreme Court law library.

    Arno V. Sanidad

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