AUSL Technology & the Law

by Edison Gatioan

Introduction

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.¹ This is one of the most significant guarantees pronounced in article III of the 1987 Constitution.

This fundamental principle of justice can also be gleaned from the provisions of our civil code. It must be noted that while Article 3 of the Civil Code declares that “Ignorance of the law excuses no one from compliance therewith,” Article 2 of the same code however provides that “Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided.” It is now amended by Section 1of Executive Order No. 200 to read as “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.” This provision under Executive Order No. 200 is further reiterated verbatim in Section 18, Chapter 5 of the Administrative Code of 1987.

It is very clear thus, that while every person is expected to know and obey the law, there is a requirement that proper notice of such law must be properly published, for it to acquire efficacy on its subject.

In terms of judicial or quasi-judicial process, “the right to “due process of law” is one of the most basic and all encompassing rights granted by our Constitution, extending to practically every aspect of “life, liberty or property”. Ordinarily, such right requires some kind of judicial or quasi-judicial process involving notice to and the hearing of the side of a person whose life, liberty or property is in jeopardy of being lost or violated.”²

This paper focuses on how to further advance the right of every person to be informed of every matter that affects his life, liberty, or property to strengthen the constitutional guarantee to due process by proposing additional rule on proper publication of law, rules, regulations, orders, circulars, issuances, or legal notices.

Our Present Laws and Rule on Publication

The requirement of publication is generally governs by the provisions of the Civil Code, as amended by Executive Order 200, and the Administrative Code of 1987 in so far as publication of laws, rules, regulations, orders, circulars, or issuances, among others, is concern.

As to notices pertaining to judicial proceedings, the Rules of Court provides that under certain proceedings or circumstances, Service of Summons, Final Orders, Resolutions, Petitions, Settlement of Estate, among others, requires that the same must be published in a newspaper of general publication either in the proper manner provided by the rule or in such places and for such time as the court may order.

The following rule under the Rules of Court requires publication to wit:

RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

SEC. 9. Service of judgments, final orders, or resolutions.—Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a)

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RULE 14
SUMMONS

SEC. 14. Service upon defendant whose identity or whereabouts are unknown.—In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a)

SEC. 15. Extraterritorial service.—When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a)

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RULE 74
SUMMARY SETTLEMENT OF ESTATES

SEC. 2. Summary settlement of estates of small value.—Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact if made to appear to the Regional Trial Court having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register’s office.

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RULE 86
CLAIMS AGAINST ESTATE

SEC. 3. Publication of notice to creditors.—Every executor or administrator shall, immediately alter the notice to creditors is issued, cause the same to be published three (3) weeks successively in a newspaper of general circulation in the province, and to be posted for the same period in four public places in the province, and in two public places in the municipality where the decedent last resided.

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RULE 89
SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT

SEC. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estates.—The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations:

2. The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper;

SEC. 8. When court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of deed.—Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of the court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

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RULE 93
APPOINTMENT OF GUARDIANS

SEC. 6. When and how guardian for nonresident appointed. Notice.—When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate.

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RULE 103
CHANGE OF NAME

SEC. 3. Order for hearing.—If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

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RULE 107
ABSENTEES

SEC. 4. Time of hearing; notice and publication thereof.—When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition.

Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where absentee resides, as the court shall deem best.

SEC. 6. Proof at hearing; order.—At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and the Official Gazette.

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RULE 108
CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

SEC. 4. Notice and publication.—Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

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The publication of laws, rules, regulations, orders, circulars, issuances and court processes, among others, in a newspaper of general circulation is generally referred to as “Legal Notice.”

Limitations of the Mode of Publication under the Present Laws and Rules

Under the present laws and rules of court, the requirement of publication of laws, rules, regulations, orders, circulars, issuances, and court processes, among others, are satisfied by publication of the same in the official gazette and/or in a newspaper of general circulation. This however, often resulted to failure to actually reach the intended parties of publication, or has a limited reach as to readership of such publication. The result is either a denial of justice to the affected parties or poor dissemination of information of promulgated laws, rules, orders, regulations, and issuances, among others.

What makes it worse is the unscrupulous practice of some litigants in cahoots with a few in charge of the administration of justice to intentionally limit the reach of legal notices by publishing the same in newspapers with very limited publication or in fly-by-night newspapers that found its way to obtain accreditation with judicial or quasi-judicial offices.

Moreover, with today’s advancement in transportation and the fact that about ten million Filipinos are either migrants or working in foreign countries, leaving behind properties or rights in the Philippines which can be a subject of enforcement of laws, rules, regulations or even litigations, the present mode of publication seems insufficient to guarantee the right of every person to due process.

Conclusion

With the advent of information technology in the midst of our continuing challenge to advance the right of every person to the due process of law, it is high time that we adopt measures to utilize the internet as an additional avenue for us to further promote the right of every person to be informed. This can be done by promulgation of a new law mandating the creation of a Single Government Web Site to serve as the repository of all legal notices or otherwise to be called as publication in the internet.

The proposition of this writer is not to make publication in the internet as an alternative to the present mode of publication, but rather, to make it an additional requirement for publication of legal notices to further promote the Constitutional guarantee of due process.

The requirement of publication in the internet will give every person, whether living in the Philippines or abroad, accessible to news print or not, a good chance to be informed of legal notices affecting their live, liberty, or property. It shall cover all provincial and national newspapers to make it effective.

Another consideration is the fact that with the availability of news in the internet, it has become a practice by many to access the news in the internet, instead of the traditional practice of reading the newspaper in hard copy. The problem with this new trend is that legal notices are not posted in the internet version of newspapers. Hence, the purpose of legal notices thru publication in newspaper of general circulation as a mean to inform the public or a party concern is defeated in a way as a result of the evolution in our information technology. And our remedy is to keep the law abreast with technology by mandating electronic publication of legal notices in addition to the present mode of publication in the official gazette and/or in a newspaper of general circulation.

Endnotes

1. Section 1, Article III, 1987 Constitution of the Philippines [↩]
2. A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison Updated April 22, 2008 12:00 AM [↩]

March 28th, 2009 | Category: SY08-09b | Subscribe to comments | Leave a comment | Trackback URL