An Unconstitutional Law: A Discourse on the Cybercrime Law
I refer to the burning issue of the day that concerns our society as a whole. This pertains to the new measure enacted by the Legislative and signed into law by the Chief Executive. I am specifically referring to RA 10175 or Cybercrime Prevention Act of 2012.
I overwhelmingly concur with the contention advanced by the Human Rights Online Philippines in condemning the said law. As they directly expressed it in an official statement wherein they stated that they:
“…stands against the present state of the Anti-Cyber Crime Law and we demand that such law must be consistent with human rights standards and perpetrators behind this spiteful law be held accountable.”
Further, they added that:
“RA 10175 or Cybercrime Prevention Act of 2012 is a State crime and an assault against the human rights of the people. HRonlinePH.com is one with the Filipino netizens in condemning its intention to deliberately go against our right to defend human rights online.
“Under the law, activists and human rights defenders will be the obvious and primary target of attacks by guilty politicians and government officials. The intentional inclusion/insertion of treacherous provisions poses great danger to defenders utilizing the internet in its work to promote, defend and assert human rights against violators from the government.
“The law is an obvious assault to many of the peoples’ rights both activists and ordinary citizens like free speech, freedom of expression, due process and among others. It is inconsistent with government’s obligation to respect, protect and fulfill human rights as provided in the Bill of Rights under the Philippine constitution and international Bill of Rights.”
There is no shadow of doubt that this law is sinister and nefarious by virtue of that irrefutable fact that it attacks the fundamental basic rights of the citizens with regard to their right to free speech, freedom of expression, political rights and the right to believe.
Hence, the citizens and various cause-oriented groups joined forces and troops to Padre Faura to ask the Supreme Court to questioned before the Highest Court of the law its legality and constitutionality.
In the words of attorney JJ Disini:
“Indeed, various petitions have been lodged in the Supreme Court to question the constitutionality of the Act’s provisions relating to libel, increased penalties, real-time collection of traffic data and the so-called takedown provision.”
Undeniably, “the law is also a blatant breach of the Government’s obligation and commitment to the United Nation International Covenant on Civil Political Rights.”
Article 19 of the (ICCPR) clearly states that:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
I echo once again the Human Rights Online Philippines on their statement that:
“Certainly we need a law that would protect the people from cyber criminals and it’s our elected officials’ obligation to provide us one. But we cannot allow a law that would be used to suppress any of our democratic rights and freedom may it be on the internet or on the grounds. We must not allow any law that violates standards and protection of our rights.
“We challenge and demand that PNoy government fulfill its duty and obligation to protect us. Protect the people from cyber criminals and from any form of attacks of human rights violators from the government.
“We reiterate and assert that it is our right to defend human rights offline and online and any law that would violate these rights must be junked and perpetrator must be held accountable!”
It is my firm conviction that this law is constitutionally infirm on the following constitutional aberrations:
1. The provision on libel is unconscionable, oppressive and arrogant. Further, the trending in almost all civilized judicial world today is tilting to the decriminalization of this flimsy and stupid law; yet in this country this law is still being used and utilized to the maximum by the powers that be in attacking political activists, journalists, bloggers, etc. this is utterly ironic, “instead of bringing its libel legislation in line with its UN treaty obligations, the Philippines has set the stage for further human rights violations by embedding criminal libel in the “cybercrime” law.” What a shame! The whole world knows that: “It is obviously the intention of the malicious provisions of the law for guilty politicians to protect themselves by depriving the people of venues for airing demands and remedy for their issues.”
2. This preposterous law violates the rule against double jeopardy “since the acts and the crime of online libel are the same as that defined in the Revised Penal Code” hence there is a dangerous tendency for an offender to be penalized twice for the same offense. Consider the following: a person could be sentenced to 12 years imprisonment for posting online comments judged to be libelous. This is indeed, grossly unjust and oppressive, to say the least!
3. This law violated the Protection Clause
In the words of counsel Disini, “”since the online libel law targets the fundamental right to free speech, the onus is upon the government to demonstrate a compelling state interest in penalizing online libel in this manner, and show that there was no less restrictive alternative available to promote that interest.
4. This law violates the constitutional provision against unreasonable searches and seizure. Further, by empowering various state agencies to launch surveillance against suspects and suspicious netizens, this law clearly violates the right of the citizens to their privacy, so as their communication.
5. The so-called takedown provision. Indeed, this is the most sinister and utterly odious provision of this dangerous law. Said provision “authorizes the DOJ to block access to any content upon a prima facie (or first glance) finding of a violation of the provisions of the Act.” Hence, it logically follows that under this scenario, “the DOJ has effectively become the judge, jury and executioner without the benefit of a trial or a conviction established beyond reasonable doubt.”
6. The Question of the Public Interest
Public Interest is defined as “the welfare of the general public (in contrast to the selfish interest of a person, group, or firm) in which the whole society has a stake and which warrants recognition, promotion, and protection by the government and its agencies.”
While Wikipedia defined the term thus:
“The public interest refers to the “common well-being” or “general welfare”. The public interest is central to policy debates, politics, democracy and the nature of government itself.”
From the two definitions given, one can deduced incontestably that public interest means the interest of the whole public and the protection of the general welfare.
I am wondering aloud, where the hell is the advancement or the protection of the public interest in this law?
There is no iota of doubt that this Cybercrime law undeniably threatens free speech and the right thing to do is for the Congress to either review it or repeal its unconstitutional provisions.
“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.
“The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.
“We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”
On this juncture, may I highlight that I also agree with the position taken by the Amnesty International in their stand with regard to this issue:
“The ‘cybercrime’ law rolls back protections for free speech in the Philippines. Under this law, a peaceful posting on the Internet could result in a prison sentence.”
Further, Isabelle Arradon, the deputy Asia director at Amnesty International added that:
“The law, which came into effect on Wednesday, broadly extends criminal libel (defined in the Philippines as the public and malicious imputation of a discreditable act that tends to discredit or dishonour another person and which currently exists under the Revised Penal Code) to apply to acts “committed through a computer system or any other similar means which may be devised in the future”.
“It also increases the criminal penalties for libel in computer-related cases.
“In January 2011, the UN Human Rights Committee found the Philippines’s criminalization of libel to be “incompatible” with the freedom of expression clause in the International Covenant on Civil and Political Rights.
“The Philippine constitution establishes that ‘no law shall be passed abridging the freedom of speech’”.
In the stirring words of Dr. Zosimo Lee, former Dean of College of Social Science and Philosophy at the University of the Philippines:
“The Cybercrime Law is inviting non-compliance because it is perceived to be unfair and undemocratic. Non-compliance from citizens, if it reaches critical levels, should be worrisome to any legitimate government because it can weaken the whole force of the law and hobbles effective administration. And when the force of the law is weakened, the legitimacy of any government becomes suspect on the whole.”
On this note, I would like to commend the Supreme Court in issuing a Temporary Restraining Order (TRO) days ago which effectively suspend the execution and implementation of the said law pending the examination and determination of the said Court of its legality and constitutionality.
It is my hope and a great number of our people that eventually the Honorable Court as the last bastion of Freedom, Justice and Fairness will rule that the said law is unconstitutional!
Until then, until that judgment and judicial pronouncement of the Court, it is our passionate and firm will to continue to fight this unjust, unfair and illegal law in whatever means we means necessary.
Hence, it is our collective shouts and screams that:
It is not a crime to criticize government inaction and irresponsibility, it is our right!
It is not a crime to expose government violations, it is our right!
It is not a crime to assert and defend our rights, it is our right!
But it is a CRIME by the Government to violate our internet freedom because it is our human rights!
Jose Mario Dolor De Vega
October 11, 2012
The writer has a Master’s degree in Philosophy, a law degree and a degree in AB Political Science. He was previously teaching Philosophy, Ethics and Anthropology at an institution of higher education in the Nilai University College at Nilai, Negeri Sembilan, Malaysia.
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