A comprehensive cyberspace law as an incontrovertible necessity in the Philippines

In 1999, as a law student, I co-authored a legal paper calling for the enactment of a comprehensive cyberspace law in the Philippines. There were just a handful of email services at that time, ICQ was the social networking site aside from the IRC, the bandwidth was inadequate to support fast video streaming, and you had to dial for access using a noisy modem. Despite the explosion on Internet usage and uses and tremendous increase of Web-users in the Philippines since then, such a law has yet to be enacted. The following excerpts serve as the paper's conclusion:

"From the discussion of evolution and continuing development of the Internet and the exponential growth of services and information provided online, this study has shown that there exist compelling reasons for legislative reform and extra-statutory measures.  While in other jurisdictions, especially in technologically advanced countries with heavier dependence on the Internet, “cyberspace law” has gained recognition as a field in itself, in the Philippines, this has yet to happen.

In October 26, 1998, President Joseph Ejercito Estrada signed Executive Orders No. 34 and No. 35, both seeking to commence action on the part of government to keep in step with the information revolution.  Executive Order No. 34 directs the National Computer Center (NCC) to design and build an integrated Government Information Infrastructure (GII), presumably in the same, if not downscaled, mold as the United States’ National Information Infrastructure.  Executive Order No. 35 provides for the restructuring of the National Computer Center, as the central executive agency that will oversee the coordination and integration of government policies, programs and projects relating to the information infrastructure. 

While laudable in intent and principle, these measures may be endangered by the inaction of government in dealing with computer and Internet abuse.  The acts here discussed – hacking, the sending of viruses, and spamming and email overflow – already pose as threats to the GII, even before it is formally set up.  Without decisive and swift action by government, particularly in the field of legislative reform, the technological advancement envisioned may actually be a disastrous step into backwardness.  At present, even without the GII, domestic hacking, creation and sending of viruses, and spamming are prevalent.  With the GII, government records and data, including confidential and sensitive information relating to national security and state programs, are likewise exposed to danger if measures to prevent and respond to abuse are not in place.

In the meantime, pending legislative reform, this study has sought to provide alternative means of penalizing hackers and crackers, disseminators of viruses and other malicious code, and spammers, whether criminally or civilly.  It has been shown that these are not traditional crimes and can not thus be adequately analogized and penalized as such.  As to civil actions, substantive law might be adequate, in the sense that the elements of actionable conduct are fulfilled.  However, perhaps an even greater challenge is hurdling problems that may be encountered procedurally, such as the acquisition of jurisdiction, the admissibility of electronic and digital information as evidence, and other considerations, which if unresolved, could ultimately defeat a civil or criminal action or recoverability of damages.

Legislative reform and other domestic measures must also be resorted to alongside trans-border efforts to penalize Internet abuses.  This is a necessary consequence of the “borderless” nature of the Internet itself.  International cooperation will have to be forged to effectively respond to rising incidence of criminality and tortious acts on the Internet.  Such international cooperation will have to include not only governments, but the private sector as well.  Government regulation on the Internet has received much resistance from sectors who believe that regulation will impede further advancements on the Internet.  However, the Internet has proven to be a new arena for conflict, where interests are asserted and threatened – without some form of regulation, how will interests be allocated and rights protected?

The recognition of government that the Internet is such an arena, and that it is in the interest of the State to treat it as such, constitutes the single most important initial step in dealing with Internet abuse."

To date, apart from E-Commerce Law and Cybercrime Prevention Act, no pro-active and up-to-date law on cyberspace and the Internet has been enacted, 17 years since the Philippines became a member of the National Science Foundation Network (NSFNET) -- in 1994. It's about time.  

Our kids abroad: Part I (Macau, HK, Shanghai and Beijing)

We had our first family trip out of the country in 2006 when Vito was 3 years old and Manu was 2 years old. We planned to go to Hong Kong via Macau so Gina and I decided that we might as well try to visit some notable places there that we thought would be interesting to kids, such as the Macau Tower, Macau Grand Prix Museum, St. Paul’s ruins and a nearby museum (that used to be a fort with its old cannons still intact and overlooking Macau), and also such other places beyond the regular tourists’ radar (e.g., a park with huge rocks dotted with literary verses; a fireman’s museum). We varied our meals by eating/buying food among Western restaurants and fast food joints, convenience stores, and local eateries.

On top of the Macau Tower

After 2 nights in Macau, we took a hydrofoil to HK. Carrying 2 toddlers who would fight for a stroller (that I picked up in a store in Macau) owing to long walks, we took the usual “safe” and kid-friendly itineraries, like Disneyland, Ocean Park, Victoria Peak, Aberdeen Harbour, and HK Space Museum; watched the Symphony of Lights, strolled at the Avenue of Stars, and shopped a bit at Harbour City; and simply enjoyed the nippy weather of HK in December.
 

Inside the HK Space Museum

When we went out of the country in 2008, again during another Christmas break, we traveled to Shanghai and Beijing. While in Shanghai, we toured both sides of the Bund, the French Concession/Xintiandi, went to the Shanghai Science and Technology Museum, rode the Maglev train, watched acrobatic shows, among others. After the first day with a free tour, we went around the city by ourselves, either by walking or taking the subway/taxi.

Waking up early in the morning, after celebrating a very silent New Year's eve in Shanghai (not a single fireworks/firecracker was heard), we took a shuttle to the Pudong International Airport for our trip to Beijing.

Onboard the Maglev train hurtling at a maximum speed of 431 km/hr

Again, as we considered these early forays as mere exploratory trips in preparation for, hopefully, more in depth and longer travels in the future, and with due consideration of our modest budget, we had a whirlwind tour of the Forbidden City, the Great Wall, the Olympics stadiums, and Beihai Park. We skated on the frozen Beihai Lake, had the famous roast duck for a late dinner in a restaurant off Wangfujing St. (a street well known for exotic dishes), and bought unusually succulent, sweet boiled corn on the cob sold by an elderly lady in front of Day’s Inn Hotel. We were lucky that Vito’s Ninong (Godfather) Lester, who was then finishing his master of laws at Tsinghua University, gladly served as our guide.

At the Juyongguan section of the Great Wall

In 2009, we were fortunate to visit Singapore (on a whim). There, I met 2 classmates from UP Law, JT and Hazel, who were doing extremely well as expat lawyers. And in March this year, we went back to HK with Nanay and the 2 kids (who have sprung up in heights) in tow -- they both received excellent academic awards during their school’s moving up ceremonies. Allow me to share the details next posting.

Meanwhile, our itinerant feet are getting itchy again...

The relationship test and the nature of the controversy test in determining intra-corporate disputes

In the landmark case of STRADEC vs. SIDC, et. al. (GR No. 187872), the Supreme Court has modified and modernized the test in determining intra-corporate disputes by applying both the relationship test and the nature of the controversy test.

The ruling states that, “an intra-corporate dispute is understood as a suit arising from intra-corporate relations or between or among stockholders or between any or all of them and the corporation. Applying what has come to be known as the relationship test, it has been held that the types of actions embraced by the foregoing definition include the following suits: (a) between the corporation, partnership or association and the public; (b) between the corporation, partnership or association and its stockholders, partners, members, or officers; (c) between the corporation, partnership or association and the State insofar as its franchise, permit or license to operate is concerned; and, (d) among the stockholders, partners or associates themselves.”

On the other hand, it declares that, “Under the nature of the controversy test, the dispute must not only be rooted in the existence of an intra-corporate relationship, but must also refer to the enforcement of the parties' correlative rights and obligations under the Corporation Code as well as the internal and intra-corporate regulatory rules of the corporation.”

According to the Supreme Court, the combined application of the relationship test and the nature of the controversy test has, consequently, become the norm in determining whether a case is an intra-corporate controversy or is purely civil in character.

By applying the relationship test, the Supreme Court finds in STRADEC case “that the first and second causes of action qualify as intra-corporate disputes since STRADEC and respondent Wong are incorporators and/or stockholders of SIDC.” And “considering that they fundamentally relate to STRADEC’s status as a stockholder and the alleged fraudulent divestment of its stockholding in SIDC, the same causes of action also qualify as intra-corporate disputes under the nature of the controversy test.”

Hence, combining both tests then, the Supreme Court declares that “STRADEC’s causes of action for the nullification of the loan and pledge over its SIDC shareholdings contracted by respondents Yujuico and Sumbilla as well as the avoidance of the notarial sale conducted by respondent Raymond M. Caraos both qualify as intra-corporate disputes.”

Thinking of buying leasehold rights or subleasing real property in Subic Bay Freeport Zone?

When buying leasehold rights or leasing real properties from locators and individuals inside the Subic Bay Freeport Zone (SBFZ), “caveat emptor.” Let the buyer beware.

The Freeport is governed by a special law, Republic Act No. 7227, as amended; its implementing rules and regulations; as well as a relatively new set of rules entitled “Resident’s Handbook.”

A property being offered for transfer or sublease should have been duly approved for lease/assignment by the Subic Bay Metropolitan Authority (SBMA) board of directors. The properly signed lease agreement or deed of assignment must have been registered at the SBMA Registry Office. The subject property must also be checked whether it has unpaid accounts with the SBMA, or utility firms such as Enerzone, Subicwater and Subictel.

To be accorded legal effect especially insofar as SBMA and third parties are concerned, the succeeding deed of assignment or sublease agreement should be submitted to the SBMA for approval and registration; and the latter’s share from the total purchase price properly accounted and remitted to it. When applicable, no taxes would be assessed and paid from the transaction.

It is because RA 7227 provides that:

"(c) The provisions of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas.

In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter." (Section 12)

For that matter, the would-be assignor/sublessor must guarantee to the buyer/sublessee the following:

1. That it is not in default in its agreement with SBMA;
2. That it shall pay SBMA its due share from the total consideration of the agreement;
3. That it shall submit to SBMA a certified true copy of the deed of assignment/sublease agreement within five (5) days from its execution; and
4. That it shall pay in full the balance stipulated in the terms of its lease agreement, upon execution of the deed of assignment/sublease agreement.

Finally, it is important to remember that the original Lease Agreement between the locator/individual and the SBMA is always considered to be integral to the succeeding deed of assignment/sublease.

Some Salient Points of “The Rules of Procedure for Environmental Cases”

A 600 MW coal power plant threatening to rise across the bay, beaches that seem to get dirtier everyday, toppling of huge, old trees by rain and wind, unusual flooding even in elevated areas – these are some environmental concerns that residents and locators in Subic Bay Freeport have begun to contend with, the latter two having been exposed by super-typhoon Pedring. The manner by which natural resources and the environment are being utilized and managed binds these issues together, calling for a closer scrutiny, if not outright, decisive action.

Brushing up a bit on the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC), that became effective starting 29 April 2010, could come in handy, especially now.

The Rules have the following objectives, to wit:

(a) To protect and advance the constitutional right of the people to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases. (Section 3, Rule I)

These Rules govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:

(a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development Authority Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
(l) R.A. No. 7076, People’s Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management Act;
(t) R.A. No. 9072, National Caves and Cave Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and
(y) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. (Section 2, Rule I)

Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. (Section 5, Rule II)

"Continuing mandamus" is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. (Section 4 [c], Rule I)

"Environmental protection order (EPO)" refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. (Section 4 [d], Rule I)

"Strategic lawsuit against public participation (SLAPP)" refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. (Section 4 [g], Rule I)

According to the Supreme Court, these Rules are the first of its kind in the world.

The controversial RTC judge and the matter of injunction and territorial jurisdiction in criminal cases

"Controversial Pasig City Regional Trial Court (RTC) Branch 167 presiding judge Rolando Mislang has submitted his compliance to the Supreme Court's (SC) Office of the Court Administrator (OCA) order for him to explain his issuance of 2 temporary restraining orders (TRO) that halted preliminary investigation proceedings and the filing of information in a criminal case for syndicated estafa against Globe Asiatique (GA) Realty Holding Corporation's Delfin Lee.

In a 5-page letter-compliance addressed to Court Administrator Jose Midas Marquez, Mislang stressed the existence of a "prejudicial question" that warranted his issuance of the TROs." (http://www.abs-cbnnews.com/business/09/16/11/judge-mislang-defends-tro-ga-case)

Let us revisit then the Philippine Rules of Court and pertinent jurisprudence. The Rules of Court defines preliminary injunction as “an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction.” (Section 1, Rule 58)

The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. (Medina vs. Greenfield Development Corporation, 443 SCRA 150, 159).

To be entitled to injunction, plaintiff must be able to convincingly show that he is entitled to it; he has a right in esse, meaning it is present, clear and positive; it is neither future nor contingent; the act sought to be prevented or restrained would work grave, irreparable injury and great injustice upon plaintiff; and equity rests with him.

It has been settled that there is a limitation on the territorial reach of injunctions issued by the trial courts. Thus, in a recent case, the Supreme Court ruled that “respondent judge had no authority to issue a writ of preliminary injunction enjoining acts performed outside his territorial jurisdiction. Respondent judge should have known that the injunctive writs he issued were enforceable only within his territorial jurisdiction, or any part, of the Third Judicial Region. In Civil Case No. 153-0-2006, the writ of injunction, which respondent judge issued, was directed against complainant, the Secretary and the Acting Deputy Customs Commissioner for Administration whose offices in Manila are outside the territorial jurisdiction of the Regional Trial Court of Olongapo City.” (A.M. No. RTJ-07-2064. June 26, 2009)

Also, as a general rule, writ of injunction is not available in criminal cases. But this is subject to exceptions: e.g., when there is a prejudicial question which is sub judice; when the court has no jurisdiction; to afford adequate protection to the constitutional rights of the accused; when necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; when double jeopardy is apparent; etc. (See Florenz Regalado. Remedial Law Compendium, Vol. II.)

With respect to prejudicial question, it “generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.” (Sps. Jose vs. Sps. Suarez. G.R. No. 176795, June 30, 2008)

The Upgraded (2012) Hyundai Santa Fe

The family recently purchased the upgraded Hyundai Santa Fe and couldn’t be happier with its performance and comfort, particularly the two futsal players in the house. Our 2007 Kia Carens though still dutifully rendering efficient service, is already showing a few signs of ageing, so it definitely welcomes some help.

Powered by a 2.2 liter CRDI engine, equipped with the electronic variable geometry turbo system called R-eVGT, the brown metallic 2WD Santa Fe is easy to steer, quite fast from the get-go, cruises smoothly and quietly, and brakes strongly but gently. While still in the “break-in” phase, the power of Santa Fe is palpable even as it averages 7.7L-10L/100km for mixed Freeport and SCTEX driving.

But first a disclaimer: I am no techie, much less a car expert, so this is purely anecdotal even as I borrow the technical jargons from the websites of Topgear-Phils., Autoindustriya.com, the Philippine Daily Inquirer as well as Korean and Australian news agencies.

With its wide girth, the boys do not have to fight for space in the second row and they can be separated by two cupholders right down the middle. There are airvents on both sides, so does the third row. While it's relatively tall, the boys can easily get in and out of the Santa Fe.

We are still learning about its features and so far, the boys enjoy the NAVSAT capabilities of the Santa Fe (even if it just involves the distance from the house to school and vice-versa most of the time), the automatic wipers that adjust as the rain beats even harder, and the cooler right between the front seats. The touch-screen monitor also doubles as a reverse camera for easier and safer parking, while the side mirrors with signal repeaters fold with the push of a button.

According to the news, the 2012 model year upgrade for Santa Fe, “comprises a number of cosmetic enhancements both inside and out, led by the addition of silver ‘skid plates’ for the front and rear bumpers." The “refreshed seven-seat crossover also features a new chromed grille with ‘floating’ Hyundai badge, revised headlights, high-gloss black (instead of silver) roof rails.”

No mechanical changes are part of the MY2012 upgrade though. Its “R-eVGT 2.2 liter twin-cam 16-valve engine that delivers 197ps and 44.5kg/m of wall-climbing torque,” remains. It still “sports the latest electronically controlled variable geometry turbine technology and piezzo-electric crystal injectors offering precise fuel metering regardless of engine speed. Its Bosch-developed CRDi system is mated to an all-new, more compact, lighter 6-speed automatic transmission (AT) that offers a wider range of ratios and better mechanical efficiency than the outgoing 5-speed AT.” We're fine with it.

Certainly then the Santa Fe is an ideal CUV for a family with two smart and peripatetic young fellows bursting with energy. Hopefully, it will serve us in good stead for countless family adventures to come.