I do not subscribe to his statement. I believe in the words of an English philosopher that, "There is no medicine like hope, no incentive so great, and no tonic so powerful as the expectation of something tomorrow." The Filipino needs these words to strengthen him more than ever today. I believe it is wrong to despair, and if despair is wrong, hope is right.
This year should be better than 2005 for our country. There is reason to hope that we will be delivered from the crisis situation. We are in a state of flux even in the global telecommunity – with respect to the solution of problems brought about by the Internet – as well as in matters regarding personal jurisdiction.
Jurisdiction, under traditional principles of International Law, has been based on the presence of the person "in the forum," so that the particular court jurisdiction could exercise control over that person.
But the modern means of transportation and present-day mobility have strained the concept of jurisdiction. Further complexities evolved due to disputes over intangible entities and juridical persons like corporations which have no physical situs, as well as those properties such as air rights, which also lack a physical form.
A former American colleague of mine in the international telecommunity, who visited the Philippines and spent Christmas here, discussed with me the different facets of personal jurisdiction with regard to the Internet, as they exist today.
For just as the concept of jurisdiction has changed to accommodate intangible entities and items, so is it changing to accommodate Internet transactions and the varied effects of e-commerce. Where jurisdiction from Internet contacts is at issue, physical presence of the defendant within the same state/country jurisdiction as the plaintiff will likely be important.
My friend was very specific about the fact that US courts have crafted new regulations to cope with jurisdictional definitions based on a kind of intangible presence. The US Supreme Court has required non-residents of a particular state to defend lawsuits in that state. The due process clause of the 14th Amendment of the US constitution, however, limits the jurisdiction of state courts over defendants who lack sufficient contacts with the forum state, because upholding jurisdiction, absent such contacts, would transgress traditional principles of fair play and substantial justice.
My friend was frank enough to tell me that fair play and justice do not seem to mean much in our country today. Power and the power-brokers seem to rule the day. Power-brokers that disappear from Philippine shores are not urgently ordered by the presidency to return to the Philippines so that personal jurisdiction can be acquired over them to face some looming charges in a legislative or court investigation. "There doesn’t seem to be any degree of anger and outrage emanating from the central authority in the Philippines," was what he said.
But he was very hopeful for this country’s future because he believes in the valuable human resource that is the Filipino.
We also discussed the fact that Internet users are usually people who reside, work and access the Net somewhere, which thereby justifies the courts using location as a basis for the exercise of jurisdiction over the person. Being a lawyer himself who got his doctorate in jurisprudence from the University of Michigan, and had added to his law practice Giga or Internet Law, we were in tandem about the fact that if both the plaintiff and the defendant are in the same state jurisdiction, that state may exercise jurisdiction which, by the way, is a traditional concept.
It is, however, likely that the two parties to an Internet transaction do not reside and work in the same jurisdiction, which will then make it essential for the courts to apply the traditional notions of "fair play and substantial justice," which simply means that jurisdiction will be based on the Internet user’s contacts with the plaintiff’s state.
The very nature of the Internet dictates that courts determine if the defendant has purposely availed himself of the benefits of the plaintiff’s forum state, making it reasonable for the defendant to foresee being subject to the jurisdiction of that state’s judicial system.
"Minimum contact" seems to be the guide, and a major test for such is a person’s making money while dealing in a particular state jurisdiction. At this time, as most Internet users know, personal communications facilitated by the Internet have resulted in a large range of new legal issues, but little in terms of profits, a fact that the courts in every country must consider in deciding if an Internet user is subject to its jurisdiction. The nature of the Internet also causes problems for courts that want to limit a court’s power over Internet users.
There is, therefore, a need to look at the due process’ "purpose availment" requirement in order to determine if a court is over-reaching its jurisdiction. Most Internet users do not care about the location of the other party in an e-transaction, but some courts have argued that a user, in the words of my friend, "is purposely availing himself or herself of all the laws and public services of every jurisdiction" so that these resources will protect the Internet user from theft and vandalism, and facilitate the Internet’s continued operation.
Other courts have set forth the theory that Internet users are unconcerned about which jurisdiction provides the legal protection or the possible resources, which makes it difficult to contend that a user has knowingly or purposely availed himself of the benefits of a particular court jurisdiction.
It is also difficult for courts to assert that an Internet user "reasonably anticipate" being brought to court in a particular geographical location when the Internet user has absolutely no idea of where the other party in a transaction or communication is geographically located.
It is quite evident that the law, with respect to personal jurisdiction and the Internet, is in a flux. However, I love my computer in spite of frequent spam mail and occasional breakdowns.
But I have realized with the greatest clarity that the computer may store many matters about me: my files, my writing, and even my reading someday, but it cannot store the wonderful moments of long ago nor the nostalgia today, that wrenches my heart for those years when three sons and a daughter, as children, entrusted to their mother totally their happiness from day to day.
For that matter, it will never be able to capture the deep feeling of hope I have or the dreams for my country this New Year.