Thrust and parry on the cybercrime law
In a meeting called by Justice Roberto A. Abad and held last Friday, January 4, the 15 petitioners against the constitutionality of the Cybercrime Prevention Act of 2012, with Solicitor General Francis Jardeleza also in attendance, identified the issues to be argued by specific counsels.
I was designated to argue the “most objected provision of the law,” Art 4 c (4) penalizing libel.
Rep. Neri Colmenares was designated to argue the constitutionality of sections 6 and 7, which increase the penalty for crimes under the new law and provide that prosecution under it is without prejudice to conviction for violations of other laws.
Lawyer Jayjay Disini, my colleague at UP Law, was designated to argue the issue of Art. 12 that authorizes the collection of computer data. Lawyer Rodel Cruz of the Philippine Bar Association was designated to argue the issue of Art. 19 or the “take-down clause’ of the law. Atty. Julius Matibag was designated to discuss the issue of Art 5. which penalizes “aiding and abetting” provided in the new law.
Just yesterday, I was designated to argue the additional issue of whether the new law’s penalization of “cybersex” is constitutional.
I was allotted a total of 15 minutes to make my arguments on libel and the cybersex provision, while the other counsels were allotted 10 minutes each. I expect though that my grilling will last at least two hours after my prepared submissions.
While it would be contemptuous to discuss the merits of the case, it is still acceptable to highlight the issues for argumentation on the 15th.
First, petitioners will argue that both the cybercrime law’s provisions on libel and cybersex violate freedom of expression under the Bill of Rights and under International Human Rights Law. They are expected to argue that the law is one that infringes on expression and hence, the fact that the language of the law may cover even constitutionally protected speech renders the law valid on its face.
Additionally, petitioners will argue that since there is no fixed definition of what is defamatory and what is immoral or pornographic, the law is also void for being vague. The government will in turn
argue that the law’s provisions on libel and cybersex are valid exercise of police power to uphold the public good. It will argue that the criminalization of libel is meant protect one’s honor, which has been recognized also to be a right; while the prohibition on cybersex will uphold good morals.
Second, petitioners will argue that the laws prohibition on “aiding and abetting” is also void because it is unclear who, in cyber world, may be guilty of aiding and abetting. Does it include, for instance, an intermediary, a cyber café owner, and even a school where school computers are used to upload data defined as being criminal by the law? The state will argue that the definition of “aiding and abetting” is clear as the light of day and that the legislative intent is to punish all those who will enable criminal data to be uploaded on the Internet.
Third, petitioners will argue that increased penalty for crimes punished under the new law and that conviction is without prejudice to conviction under any other law, including the Revised Penal Code, is unconstitutional because it violates the rule that members of the same class must be treated equally. On the possibility of multiple convictions for the same acts, petitioners will argue that this
violates the prohibition on double jeopardy. The state will argue that there is a genuine distinction for the higher penalty as in the case of libel, it is the fact that anything on the internet may be accessed from any corner of this planet. Anent the issue of multiple conviction, it will argue that this is not double jeopardy since the elements of the crimes subject of multiple convictions are not
identical.
Fourth, on the collection of data, petitioners will argue that this violates the right to privacy, or the right to be left alone, and that this requires judicial intervention. The state will argue that this is
a valid exercise of police powers to enable them to conduct police investigation for violations of the new law. The Solicitor-General though has conceded that Congress should consider amending the law to require a judicial warrant for this purpose.
And finally, the all controversial provision,Article 19 that authorizes the DOJ secretary to shut down Web sites. While the Solicitor-General has conceded that this is unconstitutional as
judicial intervention is required for this purpose, Justice Abad required the issue to still be argued since the parties cannot stipulate on the unconstitutionality of a statute. He asked the Solicitor-General to inform Congress of its position so that the latter may send its own lawyer to defend the questioned section.
Next week, I will have a detailed discussion on the issues involving the constitutionality of e-Libel and cybersex.
Meanwhile, be at the Supreme Court on January 15 and be counted!
Predictably, the Supreme Court decision on Hacienda Luisita had mixed reviews. The left slammed the decision as being blatantly pro-Cojuangco since the Department of Agrarian Reform had long declared the stock distribution option null and void since 1995. Lo and behold, the left lamented that the Court is now saying that the tenants, through yet another referendum, and not the Constitution and our laws, will determine its legality. Hacienda Luisita Inc. was also unhappy with it. It wanted a decision that would recognize the validity of a series of referendum where allegedly, at least 70 percent of the tenants voted in favor of the stock option. But there is someone who ended as a victor with the decision: President Benigno Aquino III. No, it is not because he stands to benefit from this decision. His Statement of Assets and Liability for the past year posted a tremendous increase in cash and assets precisely because he divested himself of his minority shareholdings in the company. And no, it wasn’t also because he made good on his promise to redistribute the Hacienda to its tiller-tenants on or before 2015. On the contrary, the farmers are almost back to square one even if the DAR had already decided in their favor and against the SDO. The President became the ultimate victor in this case because while he could have influenced how the decision would be penned by the highest court of the land, he did not. Proof of this is how his lone appointee to the Court voted. Justice Maria Lourdes Sereno lacked the usual propensity of newly appointed justices to vote in favor of their appointing power, at least while newly appointed. In fact, Sereno was one of four who dissented and declared that the SDO was contrary to the letter and spirit of the land reform law. President Gloria Macapagal Arroyo would not have hesitated to talk to her new appointee to vote in favor of her interest. The controversial book by Marites Vitug claimed that she employed regular gofers whose task was just to liaison between her and some Justices of the Court. But in Aquino’s case, I heard Justice Sereno herself declare, in a lunch tendered in her honor by the University of the Philippines, that this President appointed her despite not having personally known her, but also that he did not ask any favors in return, not even regarding Hacienda Luisita which he co-owned at the time she was appointed. We cannot underscore Aquino’s victory in this regard. Arroyo’s unforgivable sin was not just in being corrupt herself, but also in corrupting our democratic institutions, such as our courts. It happened when she left the vetting for judicial posts at the hands of her cousins, the De Leon spouses, who in turn, nominated appointees on the basis of loyalty to Malacañang, and not on the basis of proven competence. Then there was her built in system of influencing and meddling in judicial decision-making through gofers. The lowest point for Arroyo was when she appointed a Chief Justice despite an express and literal prohibition in the Constitution. Not even the decision in De Castro can cleanse the former President of this sin. Credit must be given where it is due. Mr. Aquino could even have played hardball with the court in exchange for a favorable decision on Luisita, but he did not. He could even have promised that his allies in the House of Representatives would let go of the impeachment complaint against one member of the court in exchange for a decision upholding the series of referendums that were already held at Luisita. He did not. Fact is, this was one rare occasion when the most powerful official of the land allowed the Court to perform its constitutional function unhindered by presidential powers and prerogatives. This is truly refreshing. *** I am shocked that a majority of our people find the punching incident of Mayor Sara Duterte acceptable. The reality is those series of punches, including the manhandling that Sheriff Abe Andres suffered under the hands of the mayor’s bodyguards, constituted the imposition of sanctions without according the lowly sheriff his due process right to be heard. Furthermore, such punches were inflicted on a person in authority while the latter was discharging his duties. It was hence the crime of assault on a person in authority, and not just physical injuries. What makes matters worse is that the victim personifies our judicial system. Those punches were hence potent strikes not just on a sheriff, but also on the entire judicial branch of government. This made those punches affronts on the rule of law. The fact that the Mayor’s constituents should come to her defense comes with no surprise. Davao has been notorious for what Human Rights Watch claims to be almost a thousand cases of extralegal killings in the form of vigilante killings. What worries advocates of the rule of law is that in that city, almost everyone, with the possible exception of the Church, have expressed support for these killings. I have heard many Davao locals claim that these killings have kept the city drug free and peaceful. They miss the point. The right to be heard is the cornerstone of human rights law. By punishing a person before hearing his side, we wreck havoc on a legal system that has accorded protection to human beings amidst temptations by despots and anarchists to resort to law of the jungle.
