The Anti-Cybercrime Law is unconstitutional

The anti-Cybercrime Law saga continues… this time with Senate Pres. Juan Ponce Enrile and Department of Justice Secretary Leila de Lima saying that there is nothing unconstitutional in this law. Hmmm, when netizens came out in social networking sites to condemn this law, for days, Malacañang was strangely silent. And when Malacañang finally came up with something, they issued a statement saying that “the law wasn’t perfect” and it could use some amendments.

But over the weekend, Pres. Benigno “PNoy” Aquino, III openly declared that he was for this law, then as if on cue, we heard the chorus line sing praises for the Anti-Cybercrime Prevention Law. This is why JPE and the DoJ Secretary have come up with their opinions that there was nothing unconstitutional in this law. If you ask me, the President’s nod is also a signal for the Supreme Court to throw away all those petitions against this law.

At this point, netizens should prepare for the worse… and by this I mean that the Supreme Court will uphold this law and the DoJ Anti-Cybercrime Unit will start shutting down not just the “hacktivists” but also those who use the social networking for their anti-Aquino rhetoric.

Granted that this law will have the Supreme Court’s nod for its constitutionality, but what about its jurisdiction? Here’s an article I downloaded from the social networking sites, from a New York Times July 6, 2012 article headlined, “U.N. Affirms Internet Freedom as a Basic Right” written by Somini Sengupta, who begins that article with a question, “Will Internet companies help or hinder government authorities that try to restrict their citizens from using the Web freely?” 

The article continues, “That debate was freshly stirred on Thursday as the United Nations Human Rights Council passed a landmark resolution supporting Freedom of Expression the Internet. Even China, which filters online content through a firewall, backed the resolution. It affirmed that, “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.”

Like what we pointed out, this article came out only last July 6, 2012 before Pres. Benigno “PNoy” Aquino, III signed the Anti-Cybercrime Prevention Act of 2012. What I would like to find out is, who was our Philippine representative in the Human Rights Council and whether or not he voted for or against that measure?

Meanwhile, what happens if a Filipino living in the United States tweets an anti-Aquino note… and the DoJ Anti-Cybercrime Unit traces it to that person… what will the DoJ do? File a libel case against that Filipino? We have no jurisdiction in the US… or perhaps our senators already believe that Philippine Laws can be implemented outside our area of responsibility? 

Of course, we also heard the other side of the Senate direct from Sen. Miriam Defensor Santiago, who prides herself as a Constitutional Law expert that this law is unconstitutional. Sen. Pres. Juan Ponce Enrile questioned Sen. Miriam why she failed to question this during the senate deliberations? That’s for Sen. Miriam to respond, but if she says that this law is unconstitutional, we would like to hear the reasons why? After all, Sen. Santiago holds a doctorate in Juridical Science and attended postdoctoral studies on Internet Law in Harvard University.

Since we don’t have the luxury of space, we will only put in what Sen. Santiago pointed out. She believes that the Supreme Court will declare this law unconstitutional because “it uses language that is overboard, as well as language that is too vague.” Sen. Miriam also said, “Prior censorship violates the overbreath doctrine and the vagueness doctrine in constitutional law. Under the overbreath doctrine, since the law is so broadly written that it deters free expression, then the Supreme court will strike it down on its face because of its chilling effect.” So it’s crystal clear that this law is unconstitutional!

While I do not question Sen. Miriam’s legal mind, however we have a Supreme Court whose independence from the Executive Branch still has to be proven and we are already seeing signs of this… when the SC did not issue a Temporary Restraining Order (TRO) to stop the implementation of the Anti-Cybercrime Act. Clearly, the SC under Chief Justice Lourdes Sereno is playing into the hands of Pres. Aquino who supports this law.

Another thing that Sen. Miriam pointed out why the SC would reject this law under the vagueness doctrine is due to the fact that while it provides for punishing cybercrime offenders, the law doesn’t specify what conduct of punishment will be exacted on violators. Therefore, this law is unconstitutional because it violates due process. Now didn’t the Constitution say, “No law shall be passed abridging the freedom of speech?” Yup the 1987 Constitution guarantees this basic human right. So will the SC reject it or not?

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