15 January 2013 #RA10175

Today marks the day for the oral arguments for and against the constitutionality of Republic Act 10175, or the Anti-Cybercrime law, at the Philippine Supreme Court. Netizens once again call for profile/account “blackouts” similar to that made on 2 October 2012, when the law was supposed to be made effective days after its publication (until its implementation was suspended due to a Temporary Restraining Order [TRO] by the Court).

I. Privacy of Communication and correspondence, and Right to Due Process
II. Freedom of expression, and Internet Libel
III. Actual controversy
IV. Cybercrime Law

This law will affect every Philippine citizen, and as such, I speak my mind herein.

I. Privacy of Communication and correspondence, and Right to Due Process

In solidarity with those opposed to the present form of RA 10175, I reiterate my strong reservation, else opposition, to Sections 12 and 19 of thereof, as they are susceptible to abuses by Philippine authorities. Assurance by government officials of responsible exercise of power are not as fixed as law, and such assurances can always be overturned by mere reaction to a developing event, a change of heart, or even successions to that government position.

II. Freedom of expression, and Internet Libel

As to Section 4(c)(4), or on the formalization of the cybercrime called Internet libel, I reiterate my position that the current moves to decriminalize libel appear reactionary as they maintain the criminalization of slander in the Revised Penal Code (which provides now an absurd consequence, as oral defamation remains criminalized but that the graver, written form of defamation would be decriminalized); that the solution thereto is the amendment of the provisions of the Revised Penal Code to admit further exceptions, besides privileged communication and fair report, against the commission of libel — such as, in consonance to free expression: free discourse on matters of public interest and welfare; free criticism of the government, its branches, its officers and employees, and its agents, among others; and in consonance of the right to information, besides those previously mentioned, fair criticism of consumer products and services, among others; and that the solution thereto — i.e. to update the 1930s Revised Penal Code attuned to the requirements of the times — devolves upon Congress, as legislative power is vested upon it.

Under the Section 10, Article XVI of the 1987 Constitution:

Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

III. Actual controversy

As to the statement that “the SC acts on actual disputes and controversies – and there is none involving the Cybercrime law yet because it has yet to be implemented,” suffice it to say that the implementation of RA10175, in its current flawed form, entails the utilization and disbursement of government resources which would be tantamount to a wastage if such law is implemented in its current form (considering Sections 24, 27 and 28 thereof), and that, arguably, the issues cover or involve paramount public interest (considering that the law impairs Constitutional rights). Section 1, Article VIII of the Constitution provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The promulgation of RA 10175 in its flawed form, as it has unconstitutional provisions, is a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress, which is covered by the second clause of the second paragraph of Section 1, Article VIII of the Constitution.

It will not be the first time for the Philippine Supreme Court to look into the Constitutionality of a promulgation by any political branch of the Government, before such is implemented. It must be recalled, this time on the part of the Executive branch, that Administrative Order No. 308 (during the regime of former President Fidel Ramos), even before implementation, was declared unconstitutional for infringing the right of privacy in the case of Ople vs. Torres, GR 127685, 23 July 1998, En Banc, Puno [J]. The reception of the present petitions hardly is novel, nor a precedent, on that issue.

IV. Cybercrime Law

By means of clarification, I am not against a law that would punish crimes which are committed using computers and information communication technologies. For indeed, the exercise of State’s police power, to deter third persons from committing crimes against people in the Philippines, would then be consonant to the principle, the duty of the State provided in the first sentence of Section 4, Article II of the 1987 Constitution, which provides that “The prime duty of the Government is to serve and protect the people.” Nevertheless, it will be difficult to support a law where some of its provision would threaten, else curtail, people’s Constitutional rights. It would be inconsistent if the State, by the passage of such law to protect its people from the acts of third persons, removes or substantially diminishes Constitutional protections enshrined in the Constitution, and leave its people at the mercy of the State’s own, potentially infringing, acts.


2 responses to “15 January 2013 #RA10175

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