Passing laws in the Philippines is more fun in a strange way. Usually it takes a long time to pass a good law. But for some strange reason, a bad law like the recent Cybercrime Prevention Act can be passed with quick speed. But regardless of the time it takes to pass a law, the need for careful study and evaluation is essential. Something which the current legislative process appears to have a serious shortcoming if this law is used as an example.
October 02, 2012
IT WAS in February when at least one senator raised a howl against the Cybercrime Prevention Act while it was still a bill at the Senate. Sadly, perhaps because of political distractions including the impeachment of a sitting Chief Justice of the Supreme Court, it took six months for people to listen, notice, and take action against the cybercrime initiative.
Just as the bill was enacted by the Aquino administration, numerous groups have gone on the record against it. As of Monday, there were seven petitions before the Supreme Court questioning the constitutionality of Republic Act 10175, which allowed government authorities to investigate and prosecute individuals for Internet-related crimes.
When the law was still a bill, senators who were reported to have voted in favor of it were Tito Sotto, Bong Revilla, Manny Villar, Lito Lapid, Koko Pimentel, Jinggoy Estrada, Loren Legarda, Chiz Escudero, Ping Lacson, Gringo Honasan, Pia Cayetano, Bongbong Marcos, and Ralph Recto. Of this lot, the lawyers (all from UP Law) are Koko Pimentel, Chiz Escudero, and Pia Cayetano.
Senator Teofisto “TG” Guingona III, at the time, was reported to have voted against the bill because of its definition of “cybersex” as the “willfull engagement, maintenance, control, or operation, directly or indirectly, or any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.”
In writing at the time about Guingona’s position, I had noted his comment that the bill “runs directly in contravention of the constitutional principle of freedom of speech and freedom of expression,” and that “it is a prior restraint” as well as “legislates morality” as it “tells us what is moral and what is not moral.”
“As a libertarian… I feel that is not within the realm of the legislature. No one has the right to say what is moral and what is immoral, and impose it and it make it a crime.” Guingona was quoted as saying then. “This bill sets us back. Here we are legislating morality… and this is unconstitutional.”
I supported Guingona’s decision then, it the same way that I now support any and all initiatives to question the legality of RA 10175. I likewise support its amendment if not outright repeal, and I question the thinking process that went into drafting the bill and its eventual enactment by the Aquino Administration. One Web comment referred to it as “Digital Martial Law.”
To me, RA 10175 is simply an example of the ineptitude of the legislative process, including the executive action of enactment. Time and time again, the country’s legislature has been hauled off to court on question of legality or constitutionality of law. The inference, of course, is that those tasked to draft laws do not know the law.
I must admit that RA 10175 is timely — if not necessary — in the sense that present technology and circumstances perhaps now require more stringent measures against so-called cybercrimes. But it does not appear to be the most suitable calibration required by today’s situation, given its seeming lack of regard for constitutional freedoms.
The questioned law regards as punishable “cybercrimes” all offenses against the confidentiality, integrity and availability of computer data and systems; computer-related forgery and fraud; and content-related offenses such as cybersex and libel. It also prescribed jail terms of one month to 12 years, and fines ranging from 50,000 to 1 million, depending on the offense. It also establishes the Office of Cybercrime under the Department of Justice, and a National Cybersecurity Coordinating Council under the Office of the President.
My issue then, and until now, is that as a media practicioner, I see RA 10175 as contrary to efforts to minimize if not completely eliminate all forms of action that can be perceived as prior restraint on freedom of expression and freedom of speech. I also believe it ridiculous for the Senate to criminally penalize electronic or online libel when at least one senator is already moving to decriminalize libel under Philippine laws.
If memory serves me, Senate President Pro Tempore Jose “Jinggoy” Estrada had filed Senate Bill No. 83 to amend Article 355 of Republic Act No. 3815 or the Revised Penal Code, noting that stiff jail terms for libel has the effect of curtailing freedom of expression as it threatens journalists and other media personnel who criticize or expose erroneous acts.
Under the Revised Penal Code, one count of libel is punishable by law with an imprisonment of up to six years and one day, and a fine. In filing his bill, Estrada reportedly noted the position of the United Nations Human Rights Committee that the country’s libel law was incompatible with the International Covenant on Civil and Political Rights, specifically on freedom of expression.
Under the new Cybercrime Prevention Act of 2012 passed by the Senate, the provision on libel makes punishable “the unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.” It presumably adopts existing penalties for libel, as it did not indicate any new penalties for such crime committed online.
Under Article 355, libel may be committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means. The penal code is not explicit in relation to the use of cyberspace or the Internet as means to publish libel imputations, but the cybercrime measure addressed this.
And under Article 353 of the Revised Penal Code, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Knowing full well the legislative intent of one of their own to decriminalize libel, why did 13 senators (including three lawyers from UP) still vote in favor of RA 10175? As for the Aquino Administration, it is unsurprising that it voted in favor of the Cybercrime Prevention Act in light of its previous reluctance to support the bill on Freedom of Information.
And as I had noted in February, RA 10175 does not limit its applicability to Internet technology, which presumably includes e-mail systems and Web logs or blogs and podcasts, and online versions of printed publications. The law specifically covered any form of libel “committed through a computer system or any other similar means which may be devised in the future.”
This is scary, as the law specifically provides for criminal penalties for libel that may be committed using a “future” technology that is still to be introduced or commercialized. Doesn’t this make RA 10175 a “Big Brother” tool that poses prior limit and restraint on all forms of distribution of electronic information, including technology that is still to be invented or to mature and become available for commercial use?
The bigger question is how senators allowed RA 10175 to already outlaw that which does not yet exist. Truly, there ought to be an anti-stupidity law, to prevent people from wittingly or unwittingly acting without first understanding. But then, I may be accused of lobbying for a law that unconstitutionally legislates against lack of common sense.