Cybercrime Law: Bayan-Bayan Muna Joint Motion for Partial Reconsideration

REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

EN BANC

JOSE JESUS M.DISINI, JR., et al.,Petitioners,

- versus -

THE SECRETARY OF JUSTICE, et al.,Respondents.

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LOUIS BAROK C. BIRAOGO,Petitioner,

- versus -

NATIONAL BUREAU OF INVESTIGATIONet al.,

Respondents.

x--------------------------------------------------------x

ALAB NG MAMAMAHAYAG (ALAM), etal., Petitioners,

- versus -

OFFICE OF THE PRESIDENTRespondent.

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SENATOR TEOFISTO DL GUINGONA III,Petitioner,

- versus -

THE EXECUTIVE SECRETARY, et al.,Respondents

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G.R. No. 203335

G.R. No. 203299

G.R. No. 203306

G.R. No. 203359

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ALEXANDER ADONIS, et al.,Petitioners,

- versus -

THE EXECUTIVE SECRETARY, et al.,Respondents.

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HON. RAYMOND V. PALATINO, ET AL.Petitioners,

- versus -

HON. PAQUITO N. OCHOA, JR., etc., et al.,Respondents.

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BAGONG ALYANSANG MAKABAYANSecretary General RENATO M. REYES, JR.et al.,

Petitioners,

- versus -

BENIGNO SIMEON C. AQUINO III, etc., etal.,

Respondents.

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MELENCIO S. STA. MARIA, et al.,Petitioners,

- versus -

HON. PAQUITO OCHOA, ETC, et al.,Respondents.

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G.R. No. 203378

G.R. No. 203391

G.R. No. 203407

G.R. No. 203440

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NATIONAL UNION OF JOURNALISTS OFTHE PHILIPPINES, et al.,

Petitioners,

- versus -


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PAUL CORNELIUS T. CASTILLO, et al.,Petitioners,

- versus -

THE HON. SECRETARY OF JUSTICE etal.,

Respondents.

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ANTHONY IAN M. CRUZ, ET AL.,Petitioners,

- versus -

HIS EXCELLENCY BENIGNO S. AQUINOIII etc., et al.,

Respondents.

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PHILIPPINE BAR ASSOCIATION, INC.,Petitioner,

- versus -

HIS EXCELLENCY BENIGNO S. AQUINOIII etc., et al.,

Respondents.

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G.R. No. 203453

G.R. No. 203454

G.R. No. 203469

G.R. No. 203501

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BAYAN MUNA REPRESENTATIVE NERI J.COLMENARES,

Petitioner,

- versus -

THE EXECUTIVE SECRETARY PAQUITOOCHOA JR.,

Respondent.

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NATIONAL PRESS CLUB OF THEPHILIPPINES, INC., etc.,

Petitioners,

- versus -

OFFICE OF THE PRESIDENT, PRESIDENTBENIGNO SIMEON AQUINO III, etc., et al.,

Respondents.

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PHILIPPINE INTERNET FREEDOMALLIANCE, et al.,

Petitioners,

- versus -


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JOINT MOTIONFOR PARTIAL RECONSIDERATION

(WITH MOTION FOR CLARIFICATION)AND NOTICE OF CHANGE OF ADDRESS

OF COUNSEL FOR PETITIONER IN G.R. 203509.1

1 Bayan Muna Representative Neri J. Colmenares v. Executive SecretaryPaquito N. Ochoa Jr.

G.R. No. 203509

G.R. No. 203515

G.R. No. 203518

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PETITIONERS in G.R. No. 203407 and G.R. No. 203509, bycounsels, unto the Honorable Court, most respectfully state that:

TIMELINESS

1. Petitioners in G.R. No. 203407 received certified truecopies of this Honorable Courts Decision in Disini Jr. et al vs.Secretary of Justice et al., G.R. No. 203335, February 18, 2014 onFebruary 26, 2014, while Petitioner in G.R. No. 203509, throughcounsel, received a copy thereof on February 25, 2014.

2. Petitioners have fifteen (15) days within which to file aMotion for Reconsideration. In short, Petitioners have until March 12,2014 to file such motions.

3. This Motion for Reconsideration is, therefore, timely.

ARGUMENTS IN SUPPORT OF MOTION

I

ACTUAL MALICE RULE

IN LIGHT OF THE HONORABLE COURTSPRONOUNCEMENT IN THE DECISIONREITERATING THE ACTUAL MALICERULE, IT IS THE CONSTITUTIONAL DUTYOF THE HONORABLE COURT TODECLARE, , ARTICLE 354 OF THE REVISEDPENAL CODE, AS AMENDED, AS VOID ANDUNCONSTITUTIONAL INSOFAR AS PUBLICOFFICERS AND PUBLIC FIGURES ARECONCERNED.

II

NON-INTERNET BASEDCOMMUNICATIONS

LACK OF INVESTIGATORY,PROSECUTORIAL AND JUDICIALLYDETERMINABLE STANDARDS IN THEINVESTIGATION, PROSECUTION AND

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PUNISHMENT OF LIBEL UNDER SECTION4(C)(4) OF R.A. 10175 COMMITTEDTHROUGH THE OVERLY BROADCOMPUTER SYSTEM OR ANY OTHERSIMILAR MEANS WHICH MAY BE DEVISEDIN THE FUTURE, CREATING A CHILLINGEFFECT THAT INFRINGES ON THEFREEDOM OF SPEECH CLAUSE UNDERTHE CONSTITUTION, AND WHICH THEHONORABLE COURT DID NOT PASS UPONIN ITS DECISION.

III

INTERNET-BASED COMMUNICATIONS

THE HONORABLE COURTSCLASSIFICATION MADE IN INTERNET-BASED COMMUNICATIONS BETWEEN THEORIGINAL AUTHOR OF THE POST, ON THEONE HAND, AND THE OTHERS WHOSIMPLY RECEIVE THE POST AND REACTTO IT, ON THE OTHER HANDTHAT LIBELUNDER SECTION 4(C)(4) OF R.A. 10175 ISCONSTITUTIONAL AS IT APPLIES TO THEFORMER, AND UNCONSTITUTIONAL AS ITAPPLIES TO THE LATTERIS ALREADY AJUDICIAL RECOGNITION THAT SAIDPENAL PROVISION IS OVERBROAD ANDSHOULD BE DECLAREDUNCONSTITUTIONAL IN ITS ENTIRETY.

THE CLASSIFICATION MADE TRIVIALIZESTHE EXCHANGES OF COMMUNICATIONSIN THE INTERNET. RESORTING TO SUCHA LIMITED JUDICIAL APPROACH, INSTEADOF DECLARING THE ENTIRE SECTION4(C)(4) UNCONSTITUTIONAL, DOES NOTDO AWAY THE BREADTH OF CHILLINGEFFECTS THAT SAID PENAL PROVISIONCREATES ON THE EXERCISE OFFREEDOM OF SPEECH, THEREBYGREATLY ENDANGERING THECONSTITUTIONAL NORM IN PURSUINGTHE STATES PRIMARY INTEREST INUPHOLDING THE FREEDOM OF SPEECHCLAUSE.

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IV

THE PHILIPPINE GOVERNMENTS DUTYTO PROTECT PERSONS FROM LIBEL IS

LIMITED TO CIVIL REMEDIES

THE HONORABLE COURT SHOULDCONSIDER IN THE RESOLUTION OFHEREIN PETITION, THE REALITY THATCRIMINAL DEFAMATION SUITS ARE USEDTO SILENCE CRITICS AND STIFLEFREEDOM OF SPEECH. AS AN EXCEPTIONTO THE CONSTITUTIONAL NORM OF THEPRIMACY OF FREEDOM OF SPEECH,DECLARING THAT THE PHILIPPINEGOVERNMENTS DUTY IN PROTECTINGPERSONS FROM LIBEL IS LIMITED ONLYTO CIVIL REMEDIES FULLY COMPLIESWITH THE PHILIPPINE GOVERNMENTSOBLIGATION UNDER ARTICLE 19 OF THEINTERNATIONAL COVENANT ON CIVILAND POLITICAL RIGHTS THAT THERESTRICTIONS THAT MAY BE IMPOSEDON THE EXERCISE OF FREEDOM OFEXPRESSION SHALL ONLY BE SUCH ASARE NECESSARY.

V

CYBERSEXAND AIDING OR ABETTING AND ATTEMPT

IN THE COMMISSION OF CYBERCRIME

SECTION 4(C)(1) ON CYBERSEX ANDSECTION 5 OF R.A. 10175 ARECONSTITUTIONALLY ABHORRENT.

VI

SECTION 6 OF R.A. 10175, WHICHPROVISION PUNISHES BY ONE DEGREEHIGHER THOSE CRIMES COVERED BYTHE REVISED PENAL CODE OR SPECIALLAWS IF COMMITTED WITH THE USE OFINFORMATION AND COMMUNICATIONS

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TECHNOLOGIES, IS UNCONSTITUTIONALIN ALL CASES AND FOR ALL OFFENSES.

VII

SECTION 7, A RELATED SECTION, WHICHPROVIDES THAT A PROSECUTION UNDERTHE ACT SHALL BE WITHOUT PREJUDICETO ANY LIABILITY UNDER THE REVISEDPENAL CODE OR SPECIAL LAWS, ISUNCONSTITUTIONAL IN ALL CASES ANDFOR ALL OFFENSES.

VIII

THE INSERTIONS OF THE BICAMERALCONFERENCE COMMITTEE, ESPECIALLYTHOSE PROVISIONS WHICH INCREASEDPENAL SANCTIONS AND CREATEDWHOLE CLASSES OF CRIMES AFFECTINGFUNDAMENTAL RIGHTS, THAT AREFOUND NEITHER IN THE SENATEVERSION (SBN-2796) NOR IN THE HOUSEVERSION (HBN-5808) BUT ARE FOUND INR.A. 10175, ARE UNCONSTITUTIONAL.2THIS IS AN HISTORIC OPPORTUNITY FORTHIS HONORABLE COURT TO PROSCRIBETHE ABHORENT PRACTICE OFBICAMERAL INSERTIONS.

IX

REQUIREMENTS FOR COLLECTION,SEIZURE OR DISCLOSURE OF OTHERDATA VIOLATE THE CONSTITUTION

THE COLLECTION, SEIZURE ORDISCLOSURE OF OTHER DATA (I.E.,CONTENT, IDENTITY) UNDER SECTION 12OF R.A. 10175 REQUIRES A COURTWARRANT THEREIN BUT THEREQUIREMENTS USED BY SAIDPROVISION FOR THE ISSUANCE ORGRANT THEREOF ARE DEFICIENT OF THE

2 See pp. 18-21, 22, of Petition, G.R. No. 203509. See pp. 4, 22-50 ofPetitioners Memorandum of Law.

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CONSTITUTIONAL REQUIREMENTS, INVIOLATION OF SECTION 2, ARTICLE III OFTHE CONSTITUTION.

X

SECTION 15 DOES NOT MERELYENUMERATE THE DUTIES OF LAWENFORCEMENT AUTHORITIES WHICHSUPPLEMENTS EXISTING SEARCH ANDSEIZURE RULES; RATHER, SECTION 15,ON ITS FACE, UNDULY EMPOWERS LAWENFORCEMENT AUTHORITIES TOORDER ANY PERSON WHO HAPPENS TOHAVE KNOWLEDGE OVER THE SUBJECTOF THE WARRANT, WHICH IS A POWERFUNCTIONALLY EQUIVALENT TO ASUBPOENA AGAINST SUCH ANYPERSON WHO LIES OUTSIDE THE SCOPEAND DESCRIPTION OF THE WARRANT.

DISCUSSION

I

ACTUAL MALICE RULE

In light of the Honorable Courtspronouncement in the Decisionreiterating the actual malice rule, itis the constitutional duty of theHonorable Court to declare Article354 of the Revised Penal Code, asamended, as void andunconstitutional, insofar as publicofficers and public figures areconcerned.

In its Decision, the Honorable Court itself has reiterated in nouncertain terms the application of the rule on actual malice in thisjurisdiction where defamatory statements, even when the same arefalse, are made against public officials and public figures:

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The elements of libel are: (a) the allegation of adiscreditable act or condition concerning another; (b)publication of the charge; (c) identity of the persondefamed; and (d) existence of malice.

There is actual malice or malice in fact when theoffender makes the defamatory statement with theknowledge that it is false or with recklessness as towhether it was false or not. The reckless disregardstandard used here requires a high degree of awareness ofprobable falsity. There must be sufficient evidence topermit the conclusion that the accused in fact entertainedserious doubts as to the truth of the statement hepublished. Gross or even extreme negligence is notsufficient to establish actual malice.

The prosecution bears the burden of proving thepresence of actual malice in instances where suchelement is required to establish guilt. The defense ofabsence of actual malice, even when the statementturns out to be false, is available where the offendedparty is a public official or a public figure, as in thecases of Vasquez (a barangay official) and Borjal (theExecutive Director, First National Conference on LandTransportation). Since the penal code and implicitly, thecybercrime law, mainly target libel against private persons,the Court recognizes that these laws imply a stricterstandard of malice to convict the author of a defamatorystatement where the offended party is a [public officer or a]public figure. Societys interest and the maintenance ofgood government demand a full discussion of publicaffairs. (Emphasis and underscoring supplied)

The rule on actual malice, which was adopted in thisjurisdiction from the decisions of the U.S. Supreme Court in New YorkTimes v. Sullivan,3 in relation to public officials, and in CurtisPublishing Co. v. Butts,4 in relation to public figures, is a conclusivedoctrine that goes into the construction of the freedom ofspeech clause, now under Section 4, Article III of the 1987Constitution:

Section 4. No law shall be passed abridging thefreedom of speech, of expression, or of the press, or the

3 376 U.S. 254.4 388 U.S.130.

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right of the people peaceably to assemble and petition theGovernment for redress of grievances.

As such, any statute or provision thereof that violates therule on actual malice is repugnant to Section 4, Article III ofthe Constitution. And this specifically clear in Article 354 of theRevised Penal Code, as amended, which, instead of adhering to therule on actual malice, applies the rule on malice in law, thus:

Article 354. Requirement for publicity. - Everydefamatory imputation is presumed to be malicious,even if it be true, if no good intention and justifiablemotive for making it is shown, except in the followingcases:

1. A private communication made by any person to anotherin the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without anycomments or remarks, of any judicial, legislative or otherofficial proceedings which are not of confidential nature, orof any statement, report or speech delivered in saidproceedings, or of any other act performed by publicofficers in the exercise of their functions. (Emphasissupplied)

As stated above, the Honorable Court has stated in the Decisionthat:

The defense of absence of actual malice, evenwhen the statement turns out to be false, is availablewhere the offended party is a public official or a publicfigure, xxx. Societys interest and the maintenance ofgood government demand a full discussion of publicaffairs. (Emphasis supplied)

The clear import of such pronouncement is that Article 354 of theRevised Penal Code, as amended, is void and unconstitutional forbeing repugnant to the freedom of speech clause, in relation to publicofficers and public figures. Despite this, however, the HonorableCourt, with all due respect, instead of striking down Article 354 of theRevised Penal Code, as amended, read into the Revised PenalCode, as amended, as well as R.A. 10175 something that does notexist in their text:

Since the penal code and implicitly, the cybercrimelaw, mainly target libel against private persons, the Court

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recognizes that these laws imply a stricter standard ofmalice to convict the author of a defamatorystatement where the offended party is a [public officeror a] public figure. (Emphasis and underscoring supplied)

It is basic that if a law or an administrative rule violates any normof the Constitution, that issuance is null and void and has no effect.The Constitution is the basic law to which all laws must conform.5 TheConstitution is the highest law of the land. It is the basic andparamount law to which all other laws must conform.6 Laws that donot conform to the Constitution shall be stricken down for beingunconstitutional.7 Under the doctrine of constitutional supremacy, if alaw or contract violates any norm of the constitution, that law orcontract whether promulgated by the legislative or by the executivebranch or entered into by private persons for private purposes is nulland void and without any force and effect.8

Police power does not include the power to violate theConstitution. Police power is the plenary power vested in Congress tomake laws not repugnant to the Constitution. This rule is basic.9

Clearly, by not declaring Article 354 of the Revised Penal Code,as amended, as void and unconstitutional for violating the freespeech clause under Section 4, Article III of the Constitution, inrelation to public officers and public figures, the Honorable Courtfailed to perform its duty xxx to uphold the Constitution and todeclare void all laws [or any of their provisions] that do not conform toit.10

II

NON-INTERNET BASED COMMUNICATIONS

Lack of investigatory, prosecutorialand judicially determinable standardsin the investigation, prosecution and

5 Social Justice Society v. Dangerous Drugs Board (G.R. No. 157870, November03, 2008, 570 SCRA 410).6 Sabio v. Gordon (G.R. No. 174340, October 17, 2006, 504 SCRA 704).7 Macalintal v. Commission on Elections, 453 Phil. 586 (2003).8 Manila Prince Hotel v. Government Service Insurance System, 335 Phil. 82(1997).9 Tawang Multi-Purpose Cooperative v. La Trinidad Water District (G.R. No.166471, March 22, 2011).10 Id.

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punishment of libel under Section4(c)(4) of R.A. 10175 committedthrough the overly broad computersystem or any other similar meanswhich may be devised in the future,creating a chilling effect that infringeson the freedom of speech clauseunder the Constitution, and which theHonorable Court did not pass upon inits Decision.

The Honorable Court, in its Decision, did not rule on the issueassailing the constitutionality of the phrase computer system or anyother similar means which may be devised in the future, throughwhich Section 4(c)(4) on libel under R.A. 10175 may be committed,despite herein petitioners (G.R. No. 203407) raising the same in theirpetition11 and reiterating said issue in their Memorandum:12

SEC. 4. Cybercrime Offenses. The following actsconstitute the offense of cybercrime punishable under thisAct:

x x x

(c) Content-related Offenses:

x x x

(4) Libel. The unlawful or prohibited acts of libel asdefined in Article 355 of the Revised Penal Code, asamended, committed through a computer system orany other similar means which may be devised in thefuture. (Emphasis supplied)

Section 3(g) of R.A. No. 10175 defines computer system asfollows:

SEC. 3. Definition of Terms. For purposes of thisAct, the following terms are hereby defined as follows:

(g) Computer system refers to any device or group ofinterconnected or related devices, one or more of which,pursuant to a program, performs automatedprocessing of data. It covers any type of device withdata processing capabilities including, but not limited to,

11 Petition, pp. 20-21.12 Memorandum, pp. 30-31.

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computers and mobile phones. The device consisting ofhardware and software may include input, output andstorage components which may stand alone or beconnected in a network or other similar devices. It alsoincludes computer data storage devices or media.(Emphasis and underscoring supplied)

The first part of the definition cited above has been liftedverbatim from the definition of computer system under Article 1(a) ofthe Convention on Cybercrime:13

Article 1(a) computer system means any device or agroup of interconnected or related devices, one or more ofwhich, pursuant to a program, performs automatedprocessing of data;

As of March 08, 2014, the Philippines is not a signatory to thesaid Convention nor has it ratified the same.14 The Convention, whichthe Philippines, in an excessively eager fashion, has adopted byenacting R.A. 10175 despite not even being a signatory thereto, doesnot include libel as one of the offences or substantive criminal lawtherein in the measures to be taken at the national level.

All the above circumstances are very telling, especiallyconsidering the fact that libel committed through a computersystem or any other similar means which may be devised in thefuture under Section 4(c)(4) of R.A. No. 10175 is not equivalentto libel committed through the internet or online libel. This is avery vital aspect of said libel provision that the Honorable Courts failsto consider, with all due respect, in its Decision.

The definition itself under Section 3(g) of R.A. 10175 providesexamples of a computer system, categorically stating that it is adevice: computers, mobile phones, and computer data storagedevices or media. Moreover, said definition adds that such a devicemay stand alone or be connected in a network or other similardevices.

As such, under Section 4(c)(4) of R.A. 10175, in relation toSection 3(g) thereof, it not a requisite for libel committed through acomputer system or any other similar means which may be devised

13 Also known as the Budapest Convention on Cybercrime, entered into force onJuly 01, 2004.14 Convention on Cybercrime, CETS No.: 185, Council of Europe Treaty Office, accessed on March 08, 2014.

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in the future to be published in the internet. Stated differently, forthe element of publication to be satisfied under Section 4(c)(4), adefamatory statement is published using a computer system orany other similar means which may be devised in the future,whether such defamatory statement end up in the internet ornot, as long as a third person other than the person defamed isinformed of it.

A clear example of this would be text messages using mobilephones or smart phones. In a study:15

The Philippines mobile market took off back in1999/2000. In the decade or so following the number ofmobile telephone subscribers has grown by around 100million coming into 2013, mobile penetration had movedpast 100% (112% by end-2012) in this country of around96 million people. xxx. At its peak, around two billion SMSmessages were being sent every day in the Philippines.The country generates the largest SMS volume in theworld, the Philippines accounting for more than 10% ofglobal SMS at one stage xxx.

A report by Business Monitor International says that the numberof mobile phone subscribers in the Philippines is expected to reach117 million by end-2016, and will have a 114% penetration rate byend-2016.16 The National Statistical Coordination Board estimatesthat by 2016, the population in the Philippines will be more than 104million.17

These millions of Filipino mobile phone users (or all of us),who are primarily using SMS or text messages in their dailycommunications for personal, interpersonal, social, political orbusiness purposes, where nuances and contexts in themessages certainly vary and are not readily or reasonablydiscernible to third persons, are potential accused-in-waiting incriminal defamation suits.

15 Philippines Mobile Communications, Forecasts and Broadcasting Market, accessed on March 08, 2014.16 PH mobile phone subscribers to hit 117M by 2016, April 10, 2012, ABS-CBNews.com accessed on March 08, 2014.17 The exact estimated population in the Philippines by 2016 is 104,739,784.Table 1. Estimated Population, Philippines and the World,

accessed on March 08, 2014.

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Or even persons who own devices or gadgets like iPad or Tab,not to mention laptops and personal computers (PC), which are allcovered by the definition of computer system, are all potential targetsof libel under Section 4(c)(4) despite not publishing their defamatorystatements in the internet and not having reached a wider publicaudience.

The all-embracing character of the term computer system asthe means used for publication under Section 4(c)(4) is even mademore wide-ranging, both in variety and time, by the addition of thephrase or any other similar means which may be devised in thefuture.

Undoubtedly, this all-embracing character of the phrasecomputer system or any other similar means which may be devisedin the future, through which libel may be committed under Section 4(c)(4) of R.A. 10175, makes it overly broad and is lacking ofinvestigatory, prosecutorial and judicially determinablestandards to safeguard protected speech and expression, inpursuance of the States primary interest in upholding the freedom ofspeech clause, from the unrestrained discretion of law enforcementagencies, prosecutors and courts to determine and decide who andwhat to investigate, prosecute or punish.

Without a carefully crafted legislation designating the limitsand parameters of the means to commit libel under Section 4(c)(4),particularly for purposes of publication of a defamatory statement inthis age of modern technological advances, the said provision, as itcurrently stands using the phrase computer system or any othersimilar means which may be devised in the future, creates anextensive chilling effect on the people, ordinary or not, thatinfringes on the freedom of speech clause under theConstitution.

This all-embracing character and the chilling effect it creates arefurther magnified by Section 6 of R.A. 10175, which uses a meansthat is broader in scope than a computer system or any other similarmeans which may be devised in the future, that is, information andcommunications technologies, thus:

SEC. 6. All crimes defined and penalized by theRevised Penal Code, as amended, and special laws, ifcommitted by, through and with the use of informationand communications technologies shall be covered bythe relevant provisions of this Act: Provided, That thepenalty to be imposed shall be one (1) degree higherthan that provided for by the Revised Penal Code, as

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amended, and special laws, as the case may be.(Emphasis supplied)

In the paper Information and Communication TechnologyDevelopment Indices (2003)18 published by the United NationsConference on Trade and Development, the term information andcommunications technologies (ICTs) is defined in the following ways:

The World Bank defines ICTs as the set of activitieswhich facilitate by electronic means the processing,transmission and display of information (Rodriguez andWilson, 2000). ICTs refer to technologies people use toshare, distribute, gather information and to communicate,through computers and computer networks (ESCAP,2001). ICTs are a complex and varied set of goods,applications and services used for producing, distributing,processing, transforming information [including]telecoms, TV and radio broadcasting, hardware andsoftware, computer services and electronic media(Marcelle, 2000). ICTs represent a cluster of associatedtechnologies defined by their functional usage ininformation access and communication, of which oneembodiment is the Internet.

Again, the phrase computer system or any other similar meanswhich may be devised in the future and the term information andcommunications technologies are too broad and all-embracing, notparticularly carved with specificity to be included in a penalstatute, especially where the prohibited act is a matter involvingspeech, that is, libel or defamation.

III

INTERNET-BASED COMMUNICATIONS

The Honorable Courts classificationmade in internet-basedcommunications between the originalauthor of the post, on the one hand,and the others who simply receive thepost and react to it, on the otherhandthat libel under Section 4(c)(4)

18 p. 3 (2003), accessedon March 08, 2014.

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of R.A. 10175 is constitutional as itapplies to the former, andunconstitutional as it applies to thelatteris already a judicialrecognition that said penal provisionis overbroad and should be declaredunconstitutional in its entirety.

The classification made trivializes theexchanges of communications in theinternet. Resorting to such a limitedjudicial approach, instead ofdeclaring the entire Section 4(c)(4)unconstitutional, does not do awaythe breadth of chilling effects thatsaid penal provision creates on theexercise of freedom of speech,thereby greatly endangering theconstitutional norm in pursuing theStates primary interest in upholdingthe freedom of speech clause.

In the Decision, the Honorable Court created a classification indetermining whether Section 4(c)(4) on libel under R.A. 10175 isconstitutional or not:

WHEREFORE, the Court DECLARES:

x x x

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALIDand CONSTITUTIONAL with respect to the original authorof the post; but VOID and UNCONSTITUTIONAL withrespect to others who simply receive the post and react toit; and (Underscoring supplied)

The Honorable Court has explained in its Decision that:

But the Courts acquiescence goes only insofar as thecybercrime law penalizes the author of the libelousstatement or article. Cyberlibel brings with it certainintricacies, unheard of when the penal code provisionson libel were enacted. The culture associated withinternet media is distinct from that of print.

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The internet is characterized as encouraging afreewheeling, anything-goes writing style. In a sense, theyare a world apart in terms of quickness of the readersreaction to defamatory statements posted in cyberspace,facilitated by one-click reply options offered by thenetworking site as well as by the speed with which suchreactions are disseminated down the line to other internetusers. (Emphasis supplied)

The Honorable Court itself said it: Cyberlibel brings with itcertain intricacies, unheard of when the penal code provisions on libelwere enacted. The culture associated with internet media is distinctfrom that of print. The classification made between the originalauthor of the post and the others who simply receive the post andreact to it has inadequately addressed these intricacies in internet-based communications.

The Honorable Court makes this example:

But suppose Nestor posts the blog, Armand is athief! on a social networking site. xxx.

Except for the original author of the assailedstatement, the rest (those who pressed Like, Commentand Share) are essentially knee-jerk sentiments of readerswho may think little or haphazardly of their response to theoriginal posting. xxx.

The old parameters for enforcing the traditional form oflibel would be a square peg in a round hole when appliedto cyberspace libel. Unless the legislature crafts a cyberlibel that takes into account its unique circumstances andculture, such law will tend to create a chilling effect on themillions that use this new medium of communication inviolation of their constitutionally-guaranteed right tofreedom of expression.

x x x

Of course, if the Comment does not merely reactto the original posting but creates an altogether newdefamatory story against Armand like He beats hiswife and children, then that should be considered anoriginal posting published on the internet. (Emphasissupplied)

But the reality in internet-based communications is not as simpleas that above-quoted example. What are the investigatory,

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prosecutorial and judicial parameters or standards to determinewhether one is merely reacting or altogether creating a newdefamatory statement in the internet? The lines are blurred incountless instances, as in these examples:

A writes a status on Facebook: Armand is a thief!

B, As Facebook friend, makes a comment on Asstatus: Yes, Armand stole Cs watch. D told me.

E writes an entry on his blog: Mayor X has 3mistresses, according to a reliable source.

F makes a comment: Actually, Mayor X has 5mistresses. I know because one of them lives near ourhouse.

G tweets on his Twitter account: Mayor X receivesmoney from an illegal gambling lord.

H replies to Gs tweet, also on Twitter: Mayor Xreceives it every 30th at Restos VIP room.

In the examples given above, B, F and H are certainly merelyreacting to the posts, and the subject matters in their reactions areclearly covered by the respective topics of said posts. Their reactionsmerely supplied some details of the posts.

In the Decision, even the Honorable Court is categoricallyrecognizing the chilling effect of Section 4(c)(4) in internet-basedcommunications, and the failure of the legislature to consider theuniqueness and peculiarities of the internet when said penal provisionwas inserted into the bill that later on became R.A. 10175:

The old parameters for enforcing the traditionalform of libel would be a square peg in a round holewhen applied to cyberspace libel. Unless thelegislature crafts a cyber libel that takes into accountits unique circumstances and culture, such law willtend to create a chilling effect on the millions that usethis new medium of communication in violation of theirconstitutionally-guaranteed right to freedom ofexpression. (Emphasis supplied)

Undoubtedly, herein petitioners and the Honorable Court cannotpossibly illustrate all the scenarios arising from internet-basedcommunications where the classification made by the Honorable

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Court does not apply or is doubtful of application. There are as manypossibilities as there are countless users of the internet.

In case of doubt whether only those possessing guilty minds aregoing to be investigated, prosecuted or punished for libel underSection 4(c)(4) and those with innocent minds are left undisturbedand not harassed or persecuted, the Honorable Court is ought to beprudent in its actions. The constitutionally-appropriate judicial conductis to tilt the balance in favor of the overarching nature of freedom ofspeech against an exception (libel) to the constitutional norm, unless,in the words of the Honorable Court, xxx the legislature crafts acyber libel that takes into account its unique circumstances andculture.

, The Honorable Court has to strike down Section 4(c)(4) of R.A.10175.

IV

PHILIPPINE GOVERNMENTS DUTY TO PROTECTPERSONS FROM LIBEL IS LIMITED TO CIVIL REMEDIES

The Honorable Court should considerin its decision the reality that criminaldefamation suits are used to silencecritics and stifle freedom of speech.As an exception to the constitutionalnorm of the primacy of freedom ofspeech, declaring that the PhilippineGovernments duty in protectingpersons from libel is limited only tocivil remedies fully complies with thePhilippine Governments obligationunder Article 19 of the InternationalCovenant on Civil and Political Rightsthat the restrictions that may beimposed on the exercise of freedomof expression shall only be such asare necessary.

A defamation suit, especially criminal actions, has become aclassic tool in the Philippines for harassment reasons intended tosilence critics. Such form of legal action is called a Strategic LawsuitAgainst Public Participation or SLAPP, which has led foreignjurisdictions to enact statutes and rules against SLAPP actions. One

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of these is the California Code of Civil Procedure (Californias Anti-SLAPP Law),19 which states under Section 425.16(a) thereof that:

(a)The Legislature finds and declares that there hasbeen a disturbing increase in lawsuits brought primarily tochill the valid exercise of the constitutional rights offreedom of speech and petition for the redress ofgrievances. The Legislature finds and declares that it is inthe public interest to encourage continued participation inmatters of public significance, and that this participationshould not be chilled through abuse of the judicial process.To this end, this section shall be construed broadly.

Our jurisdiction has its own anti-SLAPP provisions in certainstatutes20 and rules21 involving limited areas of concerns only. TheRules of Procedure for Environmental Cases22 defines SLAPP, inrelation to environmental concerns, as follows:

Strategic lawsuit against public participation (SLAPP)refers to an action whether civil, criminal or administrative,brought against any person, institution or any governmentagency or local government unit or its officials andemployees, with the intent to harass, vex, exert undueinfluence or stifle any legal recourse that such person,institution or government agency has taken or may take inthe enforcement of environment laws, protection of theenvironment or assertion of environmental rights.23

By incorporating anti-SLAPP provisions in some of our statutesand rules, our jurisdiction has recognized that the filing of anaction may be abused, as done in many cases, to chill theexercise of freedom of speech. This is generally the current state ofcriminal defamation actions in the country. One can easily file acriminal complaint for libel before a prosecutors office. From thatmoment alone and during the preliminary investigation, therespondent slapped of libel has already sustained damage and beensubjected to undue burden to undergo an onerous and burdensomeprocess of preliminary investigation, coupled with the fear and anxiety

19 California Anti-SLAPP Project, Accessed onMarch 10, 2014.20 Republic Act No. 8749 (Clear Air Act of 1999), Section 43 and Republic ActNo. 9003 (Ecological Solid Waste Management Act of 2000), Section 53.21 Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, April 29,2010, Rule 1, Section 4(g); Rule 6, Sections 1-4; Rule 19, Sections 1-3.22 Id.23 Id. at Section 4(g).

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caused by the possibility of arrest when the action reaches the trialcourt. The intention of the complainant is generally not to win theaction but to intimidate and silence the respondent or accused byburdening the latter with matters associated in legal actions (i.e., thestress, anxiety, legal costs, arrest) until the critic succumbs theretoand abandons his or her criticisms or opposition.

It is in this context that criminal defamation suits constitute achilling effect on the exercise of freedom of speech.

Herein petitioners respectfully beseech the Honorable Court toview freedom of speech in the realm of international human rights,particularly with respect to the State parties obligations under theInternational Covenant on Civil and Political Rights. The Philippinesratified the Covenant on October 23, 1986 and its First OptionalProtocol on August 22 1989. Article 19 of the Covenant covers theState parties obligation regarding the right to hold opinions and theright to freedom of expression, thus:

Article 19

1. Everyone shall have the right to hold opinionswithout interference.

2. Everyone shall have the right to freedom ofexpression; this right shall include freedom to seek,receive and impart information and ideas of all kinds,regardless of frontiers, either orally, in writing or inprint, in the form of art, or through any other media ofhis choice.

3. The exercise of the rights provided for in paragraph2 of this article carries with it special duties andresponsibilities. It may therefore be subject to certainrestrictions, but these shall only be such as are providedby law and are necessary:

(a) For respect of the rights or reputations of others;

V. For the protection of national security or of public order(ordre public), or of public health or morals. (Emphasissupplied)

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In its General Comment No. 3424 on Article 19 (Freedoms ofopinion and expression) of the Covenant, the United Nations HumanRights Committee, a body of independent experts that monitors theimplementation of the Covenant by the State parties, has declaredthat:

7. The obligation to respect freedoms of opinionand expression is binding on every State party as awhole. All branches of the State (executive, legislativeand judicial) and other public or governmentalauthorities, at whatever level national, regional orlocal are in a position to engage the responsibility ofthe State party. (Emphasis and underscoring supplied)

General Comment No. 34 constitutes as an authoritativeinterpretation of the freedoms of opinion and expression under Article19 of the Covenant, and it is binding on State parties.

A defamation law constitutes a restriction on the exercise offreedom of speech. It must, however, pass the necessary test to beconsidered a valid restriction in the realm of human rights:

33. Restrictions must be necessary for alegitimate purpose. x x x.

34. Restrictions must not be overbroad. TheCommittee observed in general comment No. 27 thatrestrictive measures must conform to the principle ofproportionality; they must be appropriate to achievetheir protective function; they must be the leastintrusive instrument amongst those which mightachieve their protective function; they must beproportionate to the interest to be protectedTheprinciple of proportionality has to be respected notonly in the law that frames the restrictions but also bythe administrative and judicial authorities in applyingthe law. The principle of proportionality must also takeaccount of the form of expression at issue as well as themeans of its dissemination. x x x.

35. When a State party invokes a legitimateground for restriction of freedom of expression, it mustdemonstrate in specific and individualized fashion theprecise nature of the threat, and the necessity and

24 102nd Session of the Human Rights Committee, Geneva, July 11-29, 2011.

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proportionality of the specific action taken, in particular byestablishing a direct and immediate connection betweenthe expression and the threat.

x x x

47. Defamation laws must be crafted with careto ensure that they comply with paragraph 3, and thatthey do not serve, in practice, to stifle freedom ofexpression. All such laws, in particular penal defamationlaws, should include such defences as the defence of truthand they should not be applied with regard to those formsof expression that are not, of their nature, subject toverification. At least with regard to comments about publicfigures, consideration should be given to avoidingpenalizing or otherwise rendering unlawful untruestatements that have been published in error but withoutmalice. Xxx. States parties should consider thedecriminalization of defamation and, in any case, theapplication of the criminal law should only becountenanced in the most serious of cases andimprisonment is never an appropriate penalty. It isimpermissible for a State party to indict a person forcriminal defamation but then not to proceed to trialexpeditiously such a practice has a chilling effect thatmay unduly restrict the exercise of freedom of expressionof the person concerned and others. (Emphasis andunderscoring supplied)

The above-quoted portions of General Comment No. 34 clearlystate that defamation laws must be crafted with care to ensure thatsuch laws do not serve, in practice, to stifle freedom of expression,and that restrictions must be the least intrusive instrument amongthose which might achieve their protective function.

In the performance of its duty to protect its citizens, particularlyprivate persons, against libel, the least intrusive instrument amongthe defamation laws which might achieve their protective function isaffording the offended party the opportunity to seek redress throughcivil actions or remedies, not through criminal defamation suitsthat, in practice in the Philippines, constitute a chilling effect onthe exercise of freedom of speech. It is in this context that GeneralComment No. 34 states that, States parties should consider thedecriminalization of defamation.

As such, in view of the long experience of our jurisdiction incriminal defamation suits that constitute a chilling effect on the

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exercise of freedom of speech, the Honorable Court is underobligation to declare that penal defamation statutes orprovisions in this jurisdiction are in violation of Article 19 of theCovenant, especially considering that the provisions of the Covenantare part of the law of the land, as provided for under Section 2, ArticleII of the Constitution:

Article II, Section 2. The Philippines renounces waras an instrument of national policy, adopts the generallyaccepted principles of international law as part of thelaw of the land and adheres to the policy of peace,equality, justice, freedom, cooperation, and amity with allnations. (Emphasis supplied)

V

CYBERSEX

AND AIDING OR ABETTINGAND ATTEMPT IN THE COMMISSION OF CYBERCRIME

Section 4(c)(1) on cybersex andSection 5 of R.A. 10175 areconstitutionally abhorrent.

The Honorable Court has downplayed the chilling effect ofSection 5 of R.A. 10175 on the exercise of freedom of speech whenits Decision declared that said penal provision is unconstitutional onlyin relation to Section 4(c)(4) on libel, Section 4(c)(3) on unsolicitedcommercial communications, and Section 4(c)(2) on childpornography:

But the crime of aiding or abetting the commission ofcybercrime under Section 5 should be permitted to apply toSection 4(a)(1) on Illegal Access, Section 4(a)(2) on IllegalInterception, Section 4(a)(3) on Data Interference, Section4(a)(4) on System Interference, Section 4(a)(5) on Misuseof Devices, Section 4(a)(6) on Cyber-squatting, Section4(b)(1) on Computer-related Forgery, Section 4(b)(2) onComputer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex.None of these offenses borders on the exercise of thefreedom of expression.

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The crime of willfully attempting to commit any of theseoffenses is for the same reason not objectionable.(Emphasis supplied)

For the guidance of the Honorable Court, Section 4(c)(1) oncybersex is a content-related offense under R.A. 10175:

SEC. 4. Cybercrime Offenses. The following actsconstitute the offense of cybercrime punishable under thisAct:

x x x

(c) Content-related Offenses:

(1) Cybersex. The willful engagement,maintenance, control, or operation, directly or indirectly, ofany lascivious exhibition of sexual organs or sexualactivity, with the aid of a computer system, for favor orconsideration. (Emphasis supplied)

Since Section 4(c)(1) on cybersex is an offense that punishescontent touching on expressions involving lascivious exhibition ofsexual organs or sexual activity it involves the exercise of thefreedom of expression. Whether said penal provision, however, isunconstitutional or not is another matter, but herein petitionersrespectfully submit that Section 4(c)(1) is void and unconstitutional onits face.

Aiding or abetting and attempt to commit cybersex underSection 4(c)(1) are precarious offenses, with law enforcementagencies having an unrestrained deal of discretion to make their owndeterminations as to what constitutes these offenses in relation to anoverly broad and constitutionally abhorrent cybersex offense underR.A. 10175.

The Honorable Court should not have accorded any weight at allto the deliberations of the Bicameral Committee of Congress that thecybersex offense does intend to penalize a private showing xxxbetween and among two private persons xxx although that may be aform of obscenity to some, and that engaging in a business is anecessary element to constitute this offense. Nor does the allegationof the Solicitor General that said offense seeks to punish cyberprostitution, white slave trade and pornography for favor andconsideration, including interactive prostitution and pornography likewebcam, have any value.

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Anyone who reads the plain text of Section 4(c)(1) does not seetherein the deliberations of the Bicameral Committee of Congress aswell as the claims of the Solicitor General. Indeed, the bare text ofSection 4(c)(1) shows that any act including works of art andtheatrical and cinematic exhibitions within the province ofprotected speech and expression that is a willful engagement,maintenance, control, or operation, directly or indirectly, of anylascivious exhibition of sexual organs or sexual activity, with theaid of a computer system, for favor or considerationconstitutes a violation thereof.

As such, in the same manner that the Honorable Court hasdeclared Section 5 void and unconstitutional in relation to Section4(c)(2) on child pornography, Section 5 must suffer the same fate inrelation to Section 4(c)(1) on cybersex.

It bears to add that Section 4(c)(1) on cybersex also punishesindirect acts, and, at the same time, Section 5 punishes aidingor abetting and attempt that may also be considered as indirectacts for purposes of committing the cybersex offense.

In a situation where an alleged offender commits aiding orabetting or attempt in the commission of cybersex, and his or heract also constitutes an indirect act of committing cybersex, he orshe is at the mercy of law enforcement agencies and the prosecution,and in danger of being punished for a higher penalty if prosecuted forsuch indirect act instead of mere aiding or abetting or attempt.

Finally, cybercrimes are not ordinary offenses. They are verydifferent from traditional crimes that are easily perceptible ordiscernible and committed without using modern-day technology. Thevagueness of Section 5 arises from the fact that it does prescribe thepunishable acts that may constitute aiding or abetting and attempt.Because of the pervasive character and peculiar nature of thecybercrimes that are punishable under R.A. 10175, a citizen is notafforded a reasonable and necessary opportunity under Section 5 tobe notified of what acts are considered as aiding or abetting andattempt within the ambit of the cybercrimes under R.A. 10175.

For all these reasons, the Honorable Court must strike downSection 4(c)(1) on cybersex and Section 5(a)(b) in its entirety.

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VI

Section 6 of R.A. 10175, whichprovision punishes by one degreehigher those crimes covered by theRevised Penal Code or special laws ifcommitted with the use ofinformation and communicationstechnologies, is unconstitutional inall cases and for all offenses.

The Majority Opinions treatment ofthe use of the internet andinformation and communicationstechnology incidentally, the twoare distinct as a qualifyingcircumstance, is not consistent withits own position and must bereconsidered by the Honorable Court.Both the internet and ICT devices,unlike an unfunded check orunlicensed firearm, are neutraltechnology whose use is evenencouraged under the provisions ofthe Constitution. Neither theinternet nor ICT devices areinherently evil technology. ASeparate Opinion is supportive ofthis view.

Petitioner submits that Section 6 in a wholesale mannerqualified over two hundred felonies under the RPC and all offensesfound in special criminal laws, thus disrupting our criminal justicesystem in ways that would make R.A. 10175 unconstitutional.

The Majority Opinion agreed with the Solicitor General andwould hold that there exists a substantial distinction when one usesinformation and communications technology. This distinction, asthe opinion of the Majority goes, creates a basis for higher penaltiesfor cybercrimes.25

Petitioners would like to point out that the Separate Opinion ofthe Honorable Chief Justice is supportive of this position.26

25 See p. 32, Majority Opinion (Abad, J.), 11 February 2014.26 See pp. 11 to 24, Concurring and Dissenting Opinion (Sereno, CJ)

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For having no substantialdistinction for increasing thepenalty for a whole universe ofcrimes, Section 6 isunconstitutional for violatingequal protection andsubstantive due process.

Section 6 provides for a one degree increase in penalty forthose who commit an offense under the RPC or special laws ifcommitted by, through and with the use of Information andCommunications Technology. This provision is unconstitutionalbecause it violates Sec. 1, Article III of the Constitution which statesthat No one shall . . . be denied the equal protection of the laws, arule requiring that all persons or things similarly situated should betreated alike, both as to rights conferred and responsibilities imposed.Any valid classification requires:

a. Substantial distinction which makes for real differenceb. Germane to the purpose of the lawc. Not limited to existing conditions onlyd. Must apply equally to all members of the same class.27

No substantial distinction exists between those who commitcrimes, on one hand, through ICT or the internet, and those who useother means, on the other.

Under the first prong of the equal protection doctrine, theMajority Opinion, with due respect to the Honorable Court, cannothold that a substantial distinction exists for the purposes of making aholding that a neutral technology per se is reason alone for qualifyingthe universe of crimes and offenses by one degree higher.

The Majority Opinion is clear in that even without theCybercrime Law, online libel is already punishable under the RPC.The same Majority Opinion disposed of the child pornographyprovisions in like manner.28 Worse, the Majority Opinion, with duerespect to all members of the Court en banc, held that Section 4(c)4merely establishes the computer system as another means ofpublication29 and that Section 6 is only a qualifying circumstance;and that RA 10175 did not provide for a distinct penalty but onlyqualified libel in the RPC if committed with the use of information and

27 See, e.g., Beltran v. Secretary of Health, G.R. No. 133640, 25 November 2005,476 SCRA 168.28 Majority Opinion, p. 33.29 Id.

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communication technology or ICT. This is an admission that the useof ICT is no different than the commission of libel through radio, orprint or theatrical performance. They are of the same class deservingone penalty under the RPCthat of prision correccional.

If the internet, TV, or radio are of the same class, then Section6 which increased the penalty of all covered crimes includingonline libel by one degree, violates equal protection. Since it is theposition of the Majority Opinion that the crime of libel, and, as aresult, other RPC offenses as well, committed through the use ofICT is of the same class of crimes committed by other means underthe Revised Penal Code, this is supportive of Petitioners view thatthe qualifying circumstance under Section 6 violates equalprotection rights of both ICT (non-internet) users and internetusersthey suffer heavier penalties for using a means of publicationno different than other means of publication, which, to reiterate, areless severely punishable. There is no substantial distinction,therefore the classification set forth in Section 6 is unreasonablewithin the meaning of equal protection.

How different is the use of ICT in the commission of crimes,from other existing means? Is the use of the internet indispensablefor the commission of an offense under RA 10175, requiring a penaltyone degree higher? Section 3(e) of RA 10175 provides:

(e) Computer data refers to any representation of facts,information, or concepts in a form suitable for processingin a computer system including a program suitable tocause a computer system to perform a function andincludes electronic documents and/or electronic datamessages whether stored in local computer systems oronline. (emphasis supplied)

While Section 3(g) provides:

(g) Computer system refers to any device or group ofinterconnected or related devices, one or more of which,pursuant to a program, performs automated processing ofdata. It covers any type of device with data processingcapabilities including, but not limited to, computers andmobile phones. The device consisting of hardware andsoftware may include input, output and storagecomponents which may stand alone or be connected ina network or other similar devices. It also includescomputer data storage devices or media. (Emphasissupplied)

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In the crime of libel, while it is possible that an internetpublication could reach one million hits, it is more likely that apublication via TV will reach millions of hits because millions ofviewers do tune in to TV sets every day. Worse, becauseincreasingly archaic devices such as fax machines form part ofthe definition of ICT.

Why did the Majority Opinion invalidate the use of ICT for libeland child pornography, while it did not invalidate the same use ofneutral technology for all other crimes? If increasingly archaictechnology such as fax machines, or ubiquitous technology such ascell phones and daily text messages, per se require a penalty onedegree higher, then the Majority Opinion will be open to an absurdpostulate that Crime X through the use of fax machines (standalone devices) is more heinous and serious than the same Crime Xthrough broadcast television, if not the internet. What is thesubstantial distinction between the commission of a crime by faxmachine (an ICT device but unconnected to the Internet) and a crimeby broadcast media, which merits an increase in penalty for the faxuser? There can be no such substantial distinction. In fact, PetitionerColmenares, during questioning by the Honorable Court during oralargument, stated that I would surely choose to be a victim of libel viafax, rather than victim of libel via the pervasive TV or print if I had thechoice. While it will take a minute for a libelous statement via TV toreach millions of people, it will take possibly ten years for a libelousstatement via facsimile to reach 500,000 people.

If the use of ICT underSection 6 can refer to stand-alone devices unhooked to theInternet, then the MajorityOpinion should be reconsideredand Section 6 declared void inall cases.

A corollary point is that crimes committed by the use of ICT asprovided under Section 6 can be done through means which arestand-alone from the internet, or independent from internet channels.If this is true, then, with due respect to the Honorable Court, theMajority Opinions basis for substantial distinction on the grounds of

- through the internet- offender often evades identification- able to reach far more victims or cause greater harm30

30 p. 32, Majority Opinion.

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are not relevant for such stand-alone devices (non-Internet ICTdevices) whose use are still covered by R.A. 10175. While faxmachines is Petitioners key example, other stand-alone non-InternetICT devices include BlueTooth, and practically all forms of intranetconnections.

Section 6 does not apply to allmembers of its class.

Under Section 6, one who commits an offense under a speciallaw using a computer (ICT device) shall suffer a penalty of onedegree higher than that imposed under the Penal Code or speciallaw. However, one who violates the E-Commerce Act,31 a special law,will not suffer an increase in penalty even if he uses a computer tocommit an offense therein, because the use of a computer or theinternet is already factored in the penalty imposed under the E-Commerce Act.32 On the other hand, another person who similarlyresorts to an ICT device but violates another special law, where theuse of ICT is not an element, will suffer an increase in penalty. Thepenalty increase mandated by the law will apply only, if bychance, to one who is prosecuted under a special law whichdoes not happen to consider the use of an ICT device as anelement of the crime in that special law.

Worse, under the Data Privacy Act,33 certain offenses, such asthat found in Sec. 29,34 which names the use of a computer systemas an element of the offense, will not merit the increased penalty

31 Republic Act No. 8792.32 Section 33(b) of the e-Commerce Act provides: Piracy or the unauthorizedcopying, reproduction, dissemination, or distribution, importation, use,removal, alteration, substitution, modification, storage, uploading,downloading, communication, making available to the public, or broadcastingof protected material, electronic signature or copyrighted works includinglegally protected sound recording or phonograms or information material onprotected works, through the use of telecommunication networks, such as,but not limited to, the internet, in a manner that infringes intellectual propertyrights shall be punished by a minimum fine of One Hundred Thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and amandatory imprisonment of six (6) months to three (3) years . . . (emphasissupplied)33 R.A. 10173.34 SEC. 29. Unauthorized Access or Intentional Breach. The penalty ofimprisonment ranging from one (1) year to three (3) years and a fine of not lessthan Five hundred thousand pesos (Php500,000.00) but not more than Twomillion pesos (Php2,000,000.00) shall be imposed on persons who knowinglyand unlawfully, or violating data confidentiality and security data systems,breaks in any way into any system where personal and sensitive personalinformation is stored. (emphasis supplied)

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under Section 6 of RA 10175, yet another who uses a computer inviolating Sec. 32 of the very same Data Privacy Act which does notcontain the use of a computer as an element of the offense, will meritan increase in penalty.35

Why should one offender suffer a penalty heavier than the otherwhen both of them used a computer system to commit the offenseunder RA 10175? Because RA 10175 will lead prosecutors, judgesand triers of fact to different propositions for the same class of ICTusers, then Section 6 is void for violating equal protection.

Raising penalties by onedegree under Section 6 maynot be possible for special lawswhich do not follow the RPCscale of penalties; thus Section6 cannot apply equally to allmembers of the class of ICTusers.

But the more important question Petitioners would wish to raiseis, What is an increase of one degree under our system of speciallaws referred to in Section 6?

Special laws do not generally have a scale of penalties like theRevised Penal Code. Unless a special law follows the scale ofpenalties under the RPC, there is no way for a judge or trier of fact toincrease the penalty of an offender charged under Section 6. Sowhile an ICT user will receive a higher degree of penalty if by chancehe was charged under a special law which uses the RPCs scale ofpenalties, another similarly situated internet or ICT user will notget an additional penalty if the special law under which he wascharged does not contain the RPCs scale of penalties. Section 6will not apply equally, therefore, to all the members of the class of ICTusers.

It must be stressed that the proviso found in Section 6,Provided, That the penalty to be imposed shall be one degree higherthan that provided for by the Revised Penal Code and special lawswas not contained in the bills approved on third reading by both the

35 SEC. 32. Unauthorized Disclosure. (a) Any personal information controller orpersonal information processor or any of its officials, employees or agents, whodiscloses to a third party personal information not covered by the immediatelypreceding section without the consent of the data subject, shall he subject toimprisonment ranging from one (1) year to three (3) years and a fine of not lessthan Five hundred thousand pesos (Php500,000.00) but not more than Onemillion pesos (Php1,000,000.00).

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Senate and the House, but was a proviso merely inserted duringthe Bicameral Conference. The absurdities in the operation of thecriminal justice system introduced by R.A. 10175 which Petitioners doraise, are the very absurdities introduced by that Section 6 proviso,read with Section 7, of RA 10175. That Section 6 proviso, penal atthat, did not go through the constitutionally required procedure for abill to become a law, which procedure consists of three readings, withperiods of interpellation and amendments, committee hearings, andconsultations with stakeholders. If only for this, this HonorableCourt must strike down Section 6 without qualification. It is alsohigh time for this Court to review the doctrine in Tolentino vs.Secretary of Finance36 and modify its variant of the enrolled bill rule(which follows the relic of the old British system of parliamentarysupremacy) and proscribe the insertion of a provision, especially if itis a penal provision, in bicameral conferences under judiciallydiscernible and manageable standards. Bicameral committeeinsertions are justiciable questions. Petitioner shall make a casefor a review of Tolentino, below, following Petitioners discussion ofSections 6 and 7.

Section 6 violates substantivedue process, because nowherein the laws Declaration ofPolicy can an explanation befound to justify the heinousnessor perversity of the use of ICT, aneutral technology, in a mannerthat would have justified anincrease in penalty for a wholeuniverse of extant crimes.

Petitioners asserts that Section 6 also violates substantive dueprocess because: (a) it does not address a legitimate end or purpose;(b) the means used is not reasonable; and (c) there is no reasonableconnection between the means and the end.

What policy or purpose is being implemented by Section 6 thatrequires an increase of penalty? The Cybercrime Prevention Act setsforth the following declaration of policy:

Section 2. Declaration of Policy. The Staterecognizes the vital role of information andcommunications industries such as content production,telecommunications, broadcasting electronic commerce,

36 G.R. No. 115455, August 25, 1994. See also Tolentino v. Secretary ofFinance, G.R. No. 115455, October 30, 1995.

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and data processing, in the nations overall social andeconomic development. The State also recognizes theimportance of providing an environment conducive tothe development, acceleration, and rationalapplication and exploitation of information andcommunications technology (ICT) to attain free, easy,and intelligible access to exchange and/or delivery ofinformation; and the need to protect and safeguard theintegrity of computer, computer and communicationssystems, networks, and databases, and theconfidentiality, integrity, and availability ofinformation and data stored therein, from all forms ofmisuse, abuse, and illegal access by making punishableunder the law such conduct or conducts. In this light,the State shall adopt sufficient powers to effectivelyprevent and combat such offenses by facilitating theirdetection, investigation, and prosecution at both thedomestic and international levels, and by providingarrangements for fast and reliable internationalcooperation. (emphasis supplied)

While the policy declared by RA 10175 aims to safeguard thefree and easy access of the internet by penalizing their abuse,nowhere in the policy can an explanation be found to justify theheinousness or perversity of the misuse of neutral technologyunder ICT in a manner that would have justified an increase inpenalty.

The problem previously raised by lawmakers in Congress wasthat cybercrimes are not penalized under existing law. But Section 6went out of bounds because it not only penalized a supposedcybercrime but even raised the penalty for the entire corpus ofexisting crimes, if committed through ICTwhich, according to theSolGen, is ubiquitousby one degree. What public interest is beingserved by such an increase? Is the increase reasonably necessary toaccomplish decency, morality and civility? A one degree increase inpenalty just to maintain minimum standards of civility, morality,and decency is not only an unreasonable policy basis for suchdrastic means, but the increase already touches dangerously notonly on free speech but all other fundamental rights as well.

Section 6 violates substantivedue process for being anarbitrary and unreasonableimposition that increases totwelve (12) years the penalty ofa felony which, if committed by

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other similar means, ispunishable by a mere six (6)years.

ICT use is legitimate and encouraged. But its abuse does notmake a crime worse. Further, why should R.A. 10175 take on theuniverse of all crimes in the RPC and special laws? Conceivably,every crime in the RPC can be connected to an ICT device, fromprinters to mobile phones to fax machines, even if the ICT devicewere unconnected to the internet. ICT is a technology designed tofacilitate transactions. Thus, through R.A. 10175, even where theconnection between the means and whatever ends the statutepurports to accomplish is tenuous, the one degree higher penalty willhave to be applied by prosecutors and triers of fact alike.

If only to stress the point and by way of illustration:

If three dedicated human rights advocates working for agovernment agency came into custody of secret and highlyclassified documents proving that certain public officials areresponsible for extra judicial killings going on in the country,and if these three individuals wish to condemn and publiclyexpose the same, they will likely face a risk of beingprosecuted under the crime of Revelation of Secrets underArticle 229 of the RPC. This notwithstanding, the threeadvocates agreed to immediately and publicly reveal theclassified documents, with Advocate A publishing the secretdocument through a large and popular TV station, AdvocateB through a national newspaper, while Advocate C revealedthe secret documents by emailing these to a thousand of hisfriends. While the revelation of secrets through print and TVwill merit the penalty of prision correccional under the RPC,the advocate who revealed via email will receive the higherpenalty of prision mayor.

This is despite the Majority Opinions holding that theinternet is but another means of publication no different fromthe others. What policy or purpose is being achieved by penalizingthe qualified offense of E-revelation of secrets by one degree higherthan simple revelation of secrets via TV? What serious impact resultsfrom the use of a fax machine or even a text message through thecell phone, or even through the internet, which makes the act soheinous and which substantially differentiates it from TV, print orother devices?

Additionally, because it violates equal protection, Section 6therefore also violates substantive due process for being an arbitrary

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and unreasonable imposition that increases to 12 years the penalty ofa felony which, if committed by other similar means, is punishable bya mere six years.

VII

SECTION 7, A RELATED SECTION, WHICHPROVIDES THAT A PROSECUTION UNDERTHE ACT SHALL BE WITHOUT PREJUDICETO ANY LIABILITY UNDER THE REVISEDPENAL CODE OR SPECIAL LAWS, ISUNCONSTITUTIONAL IN ALL CASES ANDFOR ALL OFFENSES.

Section 7, inextricably related toSection 6, is constitutionallyinfirm, because it allows, if notrequires, what the Constitutionprohibits.

If one can conclude that Section 6 is constitutionally infirm,Section 7 erases any doubt that there are constitutionally fatal defectsin the prosecution and penalties of RA 10175 in its entirety. It isPetitioners submission that Section 7 is unconstitutional for allcases and in all offenses, whereas the Majority Opinion only heldthat Section 7 is void for purposes of online libel (Section 4(c)4) andchild pornography (Section 4(c)2).37

Petitioners challenge the constitutionality of Section 7, whichallows for another prosecution under the Revised Penal Code of anyof the offenses already prosecuted as a qualified offense underSection 6, on the ground that it violates equal protection, substantivedue process, and the right of a person to be free from beingprosecuted twice for the same offense under Section 21, Article III ofthe Constitution.

The Majority Opinion did hold that e-Libel and e-ChildPornography, applied through Section 7, will violate the proscriptionagainst double jeopardy. Indeed both crimes are not new crimes, asthe Majority so holds.

37 See Dispositive portion of the Majority Opinion, pp. 48-49.

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So much for Libel and Child Pornography. But does the samerationale, and therefore the same disposition, hold true with crimesother than Libel and Child Pornography?

By way of example, the offense of Revelation of Secrets underArt. 229 of the RPC provides:

Art. 229. Revelation of Secrets by an officerAnypublic officer who shall reveal any secret known to himby reason of his official capacity, or shall wrongfullydeliver papers of which he may be have charged andwhich should not be publishes, shall suffer the penaltyof prision correccional in its medium and maximumperiods, . . . .

If a public official reveals classified documents through theinternet, he is charged under Art 229 qualified by Sec. 6 asqualified e-revelation of secrets and will be penalized with prisionmayor. However, under Section 7, the prosecutor is required tocharge him again with simple revelation of secrets which is againpenalized but this time with the original penalty of prisioncorreccional. The application of Section 6 and Section 7 willrequire the prosecutor to proceed with charges which are bothgoverned by the RPC. This goes for all cases aside from libel andchild pornography.

Thus, Petitioners assert that Section 7, in relation to Section 6,is unconstitutional because it constitutes a direct violation of thetext of Art. III, Section 21 of the Constitution, for allowing, if notmandating, precisely that which the Constitution prohibits. Ifone were to go by the reasoning and position of the Majority Opinion,then all other criminal statutes which penalize the same act, with thesame elements, under the same code or under both the RPC andspecial penal laws, should likewise be invalidated. Clearly, theaccused is prosecuted twice for the same offense for committing thesame act, with the same elements. This is a direct violation of thetext of Section 21, Art. III of the Constitution which requires that:

No person shall be twice put in jeopardy of punishmentfor the same offense. If an act is punished by a law andan ordinance, conviction or acquittal under either shallconstitute a bar to another prosecution for the same act.

While the Constitution prohibits putting a person twice injeopardy of punishment for the same offense, RA 10175 allows, ifnot orders, the prosecutorial system to place a person twice injeopardy of punishment for the same offense. Because RA 10175

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through Section 7 allows what the Constitution prohibits, Section7 is unconstitutional for directly violating the Constitution.

If Section 7 orders what theConstitution prohibits, then theHonorable Court cannot wait foran actual case where anaccused must first be charged,arraigned, convicted, and thenundergo the entire appellateprocess to overcome a wrongfulconviction handed down by awrongful statute for the ultimatepurpose of raising aconstitutional challenge againstthe very law under which hewas tried.

A pre-enforcement facialchallenge can be made againstSections 6 and 7 at this stage.

The dangers brought about by Sections 6 and 7 areimmediately apparent, and one ought not to wait for an actual caseand an actual trial to proceed which can number in the thousands before such a constitutional question can be raised via certioraribefore the Honorable Court. In fact there can be no guarantee thatdouble jeopardyif ones counsel indeed happens to raise it as aprocedural defensecan be raised at all at the trial level. In likemanner there can be no guarantee that a constitutional challenge, ifat all fielded precisely on that ground, can be brought to the SupremeCourt in due time. Thus if any court, including the Honorable Court,were to pass upon the constitutionality of Section 7 in relation toSection 6, then the instant case is propitious.

Section 7 also violates equalprotection and substantive dueprocess for causing absurdity.

In the felony of E-Revelation of Secrets for example, whileAdvocate A and B who revealed classified documents via TV andprint are prosecuted once under Art. 229 for revelation of secrets,Advocate C is not only prosecuted for qualified revelation of secretsunder Art. 229 as required under Section 6, but also prosecutedunder Article 7 which requires that he be prosecuted for simplerevelation of secrets under the same Art. 229. Worse, while themaximum imposable penalty for Advocates A and B is six years

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imprisonment, Advocate C will get a maximum penalty of 12years as a result of being prosecuted for the same act, for thesame offense, under the same article, and in the same RevisedPenal Code. The situation becomes more absurd if Advocate Creveals the classified documents via fax, in which case he will beprosecuted and penalized twice for using an outmoded technology. Itought to be noted that the elements of the offense of revelation ofsecrets are the same in both prosecutionsthe elements of a publicofficial, custody of documents classified as secret or confidential, andpublication or revelation.

Section 7 under RA 10175 is a violation of the equal protectionrights of internet and/or ICT users, because under this law one whocommits an offense using an ICT device will be prosecuted twicewhile those who use a different device or medium are onlyprosecuted once, when in fact there is no substantial distinctionamong them. This absurdity is more pronounced if the accused useda fax machine, considering that there is no substantial distinctionbetween, for example, libel or revelation of secrets through ICT andthose who use other means to publish the defamatory statement orreveal classified information.

This in turn violates substantive due process considering thattriggering another prosecution and imposing another penalty will beunreasonable and oppressive to internet and/or ICT users. Theinternet, unlike an unfunded cheque or unlicensed firearm, is not aproscribed or evil technology per se, but a neutral technology that hasto be encouraged. It is not an inherently evil technology. In fact, theConstitution provides in Section 24, Article II: The State recognizesthe vital role of communication and information in nation-building.Section, Article XIV (Education, Science and Technology, Arts,Culture, and Sports Education) provides:

Sec. 10. Science and technology are essential fornational development and progress. The State shall givepriority to research and development, invention,innovation, and their utilization; and to science andtechnology education, training, and services. It shallsupport indigenous, appropriate, and self-reliant scientificand technological capabilities, and their application to thecountrys productive systems and national life.

Section 2 of R.A. 10175 (Declaration of Policy) provides:

Sec. 2. Declaration of Policy. The State recognizesthe vital role of information and communicationsindustries such as content production,

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telecommunications, broadcasting, electronic commerce,and data processing, in the nations overall social andeconomic development. The State also recognizes theimportance of providing an environment conducive to thedevelopment, acceleration, and rational application andexploitation of information and communicationstechnology (ICT) to attain free, easy, and intelligibleaccess to exchange and/or delivery of information; . . . .

No reasonable policy is achieved by penalizing ICT users twice,and in fact, this imposition is contrary both to the Constitution and thevery Policy Declaration of the Cybercrime Law itself. Petitionerssubmits that there is a dissonance between means and ends underR.A. 10175 within the meaning of substantive due process.

A violator shall be prosecutedtwice as Section 7 requires,considering that the elementsrequired to prove the qualifiedoffense under Section 6 arepractically and actually thesame under Section 7.

Section 7 also violates Section 21, Art. III of the Constitution,which provides that no person shall be twice put in jeopardy ofpunishment for the same offense. Under the Cybercrime PreventionAct, the prosecution of an offender using ICT under both Sections 6and 7 for the commission of the same act and offense is not a merepossibility, but a certainty, because the law declares it so. A violator,under the Cybercrime Law, shall be prosecuted twice as Section 7requires, considering that the elements required to prove the qualifiedoffense under Section 6 are practically and actually the same underSection 7. It is as if one is prosecuted twice for qualified rape andsimple rape under the Revised Penal Code in relation to RA 8353and penalized twice for the same act and the same elements in thesame offense.

Under Section 6 and Section 7, one who commits an offenseunder a special law using a computer (ICT device) shall suffer apenalty of one degree higher than that imposed under the PenalCode or special law. However, one who violates the E-CommerceAct,38 a special law, will not suffer an increase in penalty even if heuses a computer to commit an offense therein, because the use of acomputer or the internet is already factored in the penalty imposed

38 Republic Act No. 8792.

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under the E-Commerce Act.39 On the other hand, another person whosimilarly resorts to an ICT device but violates another special law,where the use of ICT is not an element, will suffer an increase inpenalty. The penalty increase mandated by the law will applyonly, if by chance, to one who is prosecuted under a special lawwhich does not happen to consider the use of an ICT device asan element of the crime in that special law.

Under the Data Privacy Act,40 certain offenses, such as thatfound in Sec. 29,41 which names the use of a computer system as anelement of the offense, will not merit the increased penalty underSection 6, through the application of Section 7, yet another who usesa computer in violating Sec. 32 of the very same Data Privacy Actwhich does not contain the use of a computer as an element of theoffense, will merit an increase in penalty.42

Information andCommunications Technologiesunder Section 6, read withSection 7, is a term undefinedunder R.A. 10175 and istherefore void for being vaguewithin the meaning ofsubstantive due process.

39 Section 33(b) of the e-Commerce Act provides: Piracy or the unauthorizedcopying, reproduction, dissemination, or distribution, importation, use,removal, alteration, substitution, modification, storage, uploading,downloading, communication, making available to the public, or broadcastingof protected material, electronic signature or copyrighted works includinglegally protected sound recording or phonograms or information material onprotected works, through the use of telecommunication networks, such as,but not limited to, the internet, in a manner that infringes intellectual propertyrights shall be punished by a minimum fine of One Hundred Thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and amandatory imprisonment of six (6) months to three (3) years . . . (emphasissupplied)40 R.A. 10173.41 SEC. 29. Unauthorized Access or Intentional Breach. The penalty ofimprisonment ranging from one (1) year to three (3) years and a fine of not lessthan Five hundred thousand pesos (Php500,000.00) but not more than Twomillion pesos (Php2,000,000.00) shall be imposed on persons who knowinglyand unlawfully, or violating data confidentiality and security data systems,breaks in any way into any system where personal and sensitive personalinformation is stored. (emphasis supplied)42 SEC. 32. Unauthorized Disclosure. (a) Any personal information controller orpersonal information processor or any of its officials, employees or agents, whodiscloses to a third party personal information not covered by the immediatelypreceding section without the consent of the data subject, shall he subject toimprisonment ranging from one (1) year to three (3) years and a fine of not lessthan Five hundred thousand pesos (Php500,000.00) but not more than Onemillion pesos (Php1,000,000.00).

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A note that needs stressing, if only to show how badly craftedand constitutionally infirm RA 10175 is. While the entire law speaksof cyberspace, computer crimes and cyber offenses obviouslyreferring to the Internet, Section 6 and, as a result, Section 7,suddenly insert the broad field of Information andCommunications Technologies (ICT), which includes telephonesystems and the old technology of fax machines. Information andCommunications Technologies is not defined under the law.

While definitions of ICT can strike one as straightforward orsimilar across the board through any easy online search, they doopen up the question of vagueness,43 since a trier of fact wouldhave to turn to a moving empirical definition outside the face ofthe statute. If this is true, then the greater the need then for theCyberCrime Prevention Act to make a clear and manageablestatutory definition for ICT, especially if prosecutors were to resort toICT, as a means for an offense, in framing the Information.

In what follows, Petitioners suggests some distinctions andnuances in ongoing attempts to define ICT, which is a movingdefinition depending on time, place, supplier or service provider,audience, user, and regulator:

Software vs. hardware. Applications vs. systems. Forexample: ICT most often refers to the unified system of linking uptelecommunications (phones, radios) and computer systems, but itcould also include software and applications associated with ICThardware (VOIP, instant messaging, etc.).

Understandings of ICT differ across professions. One mightargue that ICT has different definitions depending on skill level/usage,e.g., a graphic artist (Adobe Photoshop) as opposed to a programmer(Java); a website designer vis--vis a systems administrator (Cisco).

43 See Southern Hemisphere Engagement Network, Inc., vs. Anti-TerrorismCouncil, G.R. No. 178552, October 5, 2010. Here the Court held:

A statute or act suffers from the defect of vagueness when itlacks comprehensible standards that men of common intelligencemust necessarily guess at its meaning and differ as to itsapplication. It is repugnant to the Constitution in two respects:(1) it violates due process for failure to accord persons, especiallythe parties targeted by it, fair notice of the conduct to avoid; and(2) it leaves law enforcers unbridled discretion in carrying out itsprovisions and becomes an arbitrary flexing of the Governmentmuscle.

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ICT as catch-all. A reading of the statute gives the impressionthat the proponent of the proviso whoever it was wanted to useICT as an umbrella term encompassing all levels of ICT systems.This is constitutionally impermissible for criminal statutes if one wereto consider substantive due process (due notice to the public), expost facto doctrine, and specificity of crimes; a narrow definition ofICT ought to have been in place, especially for purposes of Section 6,since Section 6 assigns criminality to a universe of putative offensesand because the empirical definition of ICT depends on time andplace. In fact the Bicameral Conference Minutes affirm this, and yetproceeded to pass the law even with these sweeping dangers inmind.44

The absurdity which Section 6 introduces throws the entirecriminal system into chaos. This is because Section 6 was neverthe subject of a thorough deliberation or consultation and, infact the one degree higher proviso cannot be found either onthe House Bill and the Senate Bill passed on third reading. TheSection 6 proviso was merely inserted by the BicameralConference Committee. The same can be said for the one degreehigher provisos found under Section 4(c)(2) on child pornography,and Section 8 of the law.

The Majority Opinion was silent on Petitioners argument aboutthe allowable boundaries of Bicameral Conference Committeeactions. This Petitioner asserts that it is high time for the HonorableCourt to recalibrate the boundaries for impermissible if notunconstitutional acts of an unaccountable amorphous ad hoc bodycalled the Bicameral Conference Committee whenever a challenge israised that the body inserted provisions not found in either the Senateor House versions, especially if those provisions, as in this case, arein fact beyond what was contemplated by the policy, intent, spirit andsubstance of bills passed by both Houses of Congress after threereadings. Unilateral insertions are unconstitutional acts whichtrample upon the spirit and intent of Section 26, Art. VI of theConstitution, which requires extended congressional deliberativescrutiny in passing a statute, viz: No bill passed by either Houseshall become a law unless it has passed three readings on separatedays xxx Upon the last reading of a bill, no amendment thereto shallbe allowed xxx. The insertion of the one degree higher penalprovision of Section 6 never passed through three readings,committee hearings, and stakeholder participation, and yet thebicameral committees insertions increase the penalties and qualify a

44 See pp. 20-22, Concurring and Dissenting Opinion (Sereno, CJ).

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whole universe of extant crimes in the entire Revised Penal Code andSpecial Laws.

VIII

THE INSERTIONS OF THE BICAMERALCONFERENCE COMMITTEE, ESPECIALLYTHOSE PROVISIONS WHICH INCREASEDPENAL SANCTIONS AND CREATEDWHOLE CLASSES OF CRIMES AFFECTINGFUNDAMENTAL RIGHTS, THAT AREFOUND NEITHER IN THE SENATEVERSION (SBN-2796) NOR IN THE HOUSEVERSION (HBN-5808) BUT ARE FOUND INR.A. 10175, ARE UNCONSTITUTIONAL.THIS IS AN HISTORIC OPPORTUNITY FORTHIS HONORABLE COURT TO PROSCRIBETHE ABHORENT PRACTICE OFBICAMERAL INSERTIONS.

It is high time that the enrolledbill doctrine so far depictedunder Tolentino vs. Secretary ofFinance ought to be reviewed, ifnot qualified, by the HonorableCourt, to prevent recurringstructural constitutionalviolations at the bicameralcommittee level.Should the Honorable Courtmake the constitutional choiceto review Tolentino

Documents

Cybercrime Law: Bayan-Bayan Muna Joint Motion for Partial Reconsideration