What’s frightening about the cybercrime law?By Fr. Joaquin G. Bernas S. J. |Philippine Daily Inquirer
My relaxation reading these past few days has been “Winter of the World,” Ken Follet’s Book 2 of his “The Century Trilogy.” The first few chapters are about the gradual rise of fascism and Nazism amidst an unsuspecting world lulled by the idea that the government knows what is best for the people. Meanwhile, within our midst there is a debate going on about how to teach the facts and the lessons of martial law in schools. I find this to be an opportune moment to talk about the new cybercrime law or Republic Act 10175 to see what shades of Nazism, fascism and martial rule it might contain.
The new law is getting to be the talk of the town these days in legal circles and has signaled hackers of government websites into action. Inevitably the controversy on the subject will reach the Supreme Court, and the decision should tell us more about the mind of new Chief Justice Maria Lourdes Sereno. Meanwhile, let me just put down a number of preliminary observations.
The title of the law is “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES.”
The intention of the law, partly good and partly chilling, is set down in its Declaration of Policy. The good intention is to acknowledge the important role communication technology can play for the nation’s overall social and economic progress. The chilling part is the empowerment of the executive arm “to effectively prevent and combat [cyber] offenses by facilitating their detection, investigation and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.”
As can easily be seen, the law deals not only with the most delicate rights of freedom of expression, freedom of communication, and the privacy of communication but also with the equally sacred right of the people “to be secure in their persons, houses, papers and effects” against government intrusion. These rights suffered during the period of martial rule. Their suppression or impairment is usually the target of governments that have dark intentions. When criticized, the facile answer given to critics by those with dark intentions is that these rights are not absolute. That defense is already being repeated by Palace mouthpieces. It is therefore a good time to look into the disturbing aspects of the law. We might begin by taking at least a preliminary look at some of the provisions which are now under attack.
Section 6 of the law says: “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.”
Libel has been decriminalized in other civilized jurisdictions. Our legislature, instead, will throw us back to the dark ages by imposing a higher penalty for libel. In effect, the advance in communication technology is being treated not as a boon but as a bane.
Section 7 says: “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.” This is a clear invitation, if not to double jeopardy, at least to harassment through threat of a second prosecution. If you are thinking that second prosecution for the same offense is just an invention of American jurisprudence, guess again. Even under Spanish law it was already prohibited by the Fuero Real and the Siete Partidas. Section 7 is once again a throwback to the era even before Fuero Real and Siete Partidas were born.
But what is most disturbing to many is Section 19 which says: “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ [Department of Justice] shall issue an order to restrict or block access to such computer data.”
There are very valid reasons for being frightened by this. I for one recall the law on search and seizure in effect during the past martial law period. Whereas now no search warrant or warrant of seizure may issue except upon probable cause to be determined by a judge, Section 19, now popularly called the “takedown provision,” does not require probable cause but only prima facie evidence determined not by a judge but by the Department of Justice. This is a throwback to the provision under martial rule when warrants for the search and seizure of persons, houses, papers and effects could be issued by a “responsible officer as may be authorized by law.” Not only that: Whereas under the draconian rule of martial law warrants could issue only after “examination under oath of the complainants and witnesses he may provide,” no such safeguard is found in Section 19.
It will not do to say that whatever shortcomings there are in RA 10175 will be remedied by its IRR (implementing rules and regulations). Rules and regulations cannot cure defects in a law. Moreover, RA 10175 is a penal law. In other words, it commands obedience under pain of punishment. Fundamental fairness therefore demands that those commanded should be able to understand what the command says simply by reading the law.
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