5 lawyers to face SC on cybercrime law

Would the Supreme Court act on the case even in the absence of actual controversy involving it?

FOR INTERNET FREEDOM. Members of the Philippine Internet Freedom Alliance (PIFA) protest against the Cybercrime Law outside the gate of the Supreme Court in Padre Faura, Manila, October 2, 2012. Photo by Purple Romero.

MANILA, Philippines – Yes, the cybercrime law could be seen as something that violates freedom of speech, but where’s the case proving that?

This question is worth asking as the Supreme Court on Tuesday, January 15, holds its first set of oral arguments on Republic Act 10175, or the Cybercrime Prevention Act. The oral arguments, which begin at 2 pm, will be conducted 3 months after the SC issued a temporary restraining order in October 2012, which stopped the government from implementing it. 

Cameras and cell phones are not allowed inside the Court during the arguments, although Rappler has requested the High Tribunal to grant media access this time around. The SC said it will tackle the request en banc.

The cybercrime law is one of big cases confonting the Court in 2013. It’s a test case of sorts for a tribunal led by one of its youngest justices, Maria Lourdes Sereno. (Read: ‘First important test for Sereno court’)

The Sereno Court is perceived as divided since her appointment as chief justice did not bode well for an institution that is shaped by tradition. Sereno was a junior justice, barely two years into the position, when she replaced dismissed Chief Justice Renato Corona in August 2012. 

Will this division show itself as the SC decides on this contentious case?

Sereno is also an appointee of President Benigno Aquino III, and observers are eager to see how she will vote on a law that he signed. The same applies to the other Aquino appointees: Justices Bienvenido Reyes, Estela Perlas-Bernabe and Marvic Leonen.

Where’s the case?

A total of 16 petitions have been filed against the law, which netizens said is tantamount to “e-martial law” because it contains provisions that penalize online libel and authorize the Department of Justice to shut down websites that based on prima facie (on its face) evidence contains harmful content, among others. (Read: 50 shades of liability)

Oscar Tan, former chairman of the UP Law Journal, said the SC acts on actual disputes and controversies – and there is none involving the cybercrime law yet because it has yet to be implemented.

“I think the more important issue is that you have petitions against a law that has not even been enforced,” he said. 

“Remember that our justices are not elected, so the Constitution restricts their power to strike down the acts of elected legislators to actual cases and controversies.””

Sec. 1 Article VIII of the 1987 Constitution states that “Judicial power includes the duty of 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.”

Too vague, too broad

However, lawyer Harry Roque, one of the petitioners against the law, said he will argue that it is unconstitutional because of overbreadth, and that it is void for vagueness. (‘See you in court, PNoy’)

Tan conceded that these are “accepted exceptions in free speech cases to the objection that there is no actual case.”

The overbreadth principle means that a law is too broadly written that it infringes on free speech, while “void for vagueness” means the law is vague enough that its corresponding penalties could not be easily comprehended.

Aside from Roque, 4 other lawyers will argue before the High Court why the cybercrime law violates the Filipinos’ respective rights to freedom of speech and due process, among others. They are:

  • Bayan Muna Rep. Neri Colmenares, who will explain why Sections 6 and 7 are unconstitutional. Section 6 increases by one degree the crimes covered by the Revised Penal Code (RPC), while Section 7 states that prosecution under the law shall be without prejudice to any liability under the RPC. Colmenares has faced the High Tribunal several times in previous cases.
  • Jesus Disini Jr will tackle Section 12, which authorizes law enforcement authorities to collect traffic data in real time. Disini is a technology law expert who drafted the implementing rules and regulations for the E-commerce Act.
  • Rodel Cruz will discuss the takedown clause, or Section 19, which allows the DOJ to shut down websites that contain harmful content. Cruz is the counsel of one of the petititoners, the Philippine Bar Association, and is a senior partner at The Firm (Villaraza Cruz Marcelo & Angangco).
  • Julius Matibag will address Section 5(1) and (b), which penalizes those who aid or abet the commission of a cybercrime offense. Matibag is a human rights lawyer.

The government itself, through the Office of the Solicitor General, is saying that Section 9 should be declared unconstitional, because it constitutes prior restraint.

Protests

The law has been widely criticized online, trigerring online and media protests. In October 2012, Rappler turned its avatar to black to protest the law.

Lawyer and former UP professor Theodore Te, the new head of the SC Public Information Office, was himself one of the counsels of media organizations in their petition against the law.(Read Te’s Thought Leaders blog here on ‘Cyberauthoritarianism.’)

So-called hacktivists, such as the loose movement called “Anonymous,” have defaced various government websitesto to protest the law.

Only last Monday, January 14, hackers defaced the website of the National Food Authority.

The main website of the Philippine government (www.gov.ph) was hacked at the strike of midnight on Oct 3, 2012, while the websites of the Philippine National Police, the Intellectual Property Office, the Police Community Relations Group and the Maritime Industry Authority, were hacked a day before.

Other government websites previously hacked include the Philippine Information Agency, the Bangko Sentral ng Pilipinas, the Philippine Nuclear Research Insitute and the National Telecommunications Commission.

The protests prompted the justice department to hold dialogues with various sectors.

Same argument for RH law

Tan said that that if the High Court decides on the constitutionality of the cybercrime law even if it has yet to be implemented, those who challenged the validity of the reproductive health law could use the same line of reasoning. 

A son of the legal counsel of the Catholic Bishops’ Conference of the Philippines earlier filed a petition questioning the constitutionality of the RH law. James Imbong, son of CBCP legal counsel Jo Imbong, filed the petition along with his wife Lovely and on behalf of his children.

They said in the petition that Republic Act 10354, (entitled ‘An Act Providing for a National Policy on Responsible Parenthood and Reproductive Health’), “mocks the nation’s Filipino culture – noble and lofty in its values and holdings on life, motherhood and family life.”

Roque said however that relaying their position during the oral arguments is essential because they “will be educating the nation and attempting to convert the justices who have not made up their minds.” – Rappler.com

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