Debate on constitutionality of cybercrime law

A Statement by the Asian Human Rights Commission
January 15, 2013

At 2pm today, the Philippines Supreme Court will hear petitions challenging the Constitutionality of the newly approved law, Cybercrime Prevention Act of 2012 (Republic Act No. 10175). The law was approved in September 12, 2012, but the SC issued a Temporary Restraining Order (TRO) after petitions were filed questioning the conformity of the law to the 1987 Constitution and the country's obligation for protection of freedom of expression in international law.

In its Advisory issued earlier, the SC will hear oral arguments questioning the following provisions of the law:

First, by Atty. Harry Roque, Jr. on section 4(c) (4) of the Act;

"SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(4) Libel. — 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."

Second, by Congressman Neri Colmenares, on section 6 and 7;

"SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws."

Third, Atty. Rodel Cruz, on section 19;

"SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data."

Fourth, Atty. Jesus Disini, Jr, on section 12;

"SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system..."

Fifth, Atty. Julius Matibag, on section 5 (a) and (b);

"SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable."

On top of the debate on the Constitutionality of this law, the Asian Human Rights Commission (AHRC) welcomes this as an opportunity to discuss protection and promotion of rights to freedom of expression, thoughts and opinion. It calls on the SC that in hearing petitions and oral arguments on the challenge to the law to ensure that a balance between protection of freedom of expression and prevention of internet crimes is reached.

Freedom of expression is a cornerstone in the protection of civil liberties. When there is restriction on citizens from expressing their opinion of public interest, it denies any forms of genuine debate concerning their issues that matters in the society and their relation to the State. The Philippines is constitutionally a democratic country and the 1987 Constitution is a product of bitter social and political struggle.

However, despite its robust 1987 Constitution, there are jurisprudence and provisions in its criminal law such as the Revised Penal Code (RPC) that continue to operate despite being contradictory to the spirit of the Constitution. Though the country's constitution has been replaced jurisprudence and case-laws, laws and legislation, their interpretation and implementation, have largely remained unchanged since dictatorial rule.