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What’s frightening about the cybercrime law?

By Fr. Joaquin G. Bernas S. J.
Philippine Daily Inquirer
Monday, October 1st, 2012

My relaxation reading these past few days has been “Winter of the World,” Ken Follet’s Book 2 of his “The Century Trilogy.” The first few chapters are about the gradual rise of fascism and Nazism amidst an unsuspecting world lulled by the idea that the government knows what is best for the people. Meanwhile, within our midst there is a debate going on about how to teach the facts and the lessons of martial law in schools. I find this to be an opportune moment to talk about the new cybercrime law or Republic Act 10175 to see what shades of Nazism, fascism and martial rule it might contain.

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The intention of the law, partly good and partly chilling, is set down in its Declaration of Policy.  The good intention is to acknowledge the important role communication technology can play for the nation’s overall social and economic progress.  The chilling part is the empowerment of the executive arm “to effectively prevent and combat [cyber] offenses by facilitating their detection, investigation and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.”

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

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Section 7 says: “A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.” This is a clear invitation, if not to double jeopardy, at least to harassment through threat of a second prosecution. If you are thinking that second prosecution for the same offense is just an invention of American jurisprudence, guess again. Even under Spanish law it was already prohibited by the Fuero Real and the Siete  Partidas. Section 7 is once again a throwback to the era even before Fuero Real and Siete  Partidas  were born.

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There are very valid reasons for being frightened by this. I for one recall the law on search and seizure in effect during the past martial law period. Whereas now no search warrant or warrant of seizure may issue except upon probable cause to be determined by a judge, Section 19, now popularly called the “takedown provision,” does not require probable cause but only prima facie evidence determined not by a judge but by the Department of Justice. This is a throwback to the provision under martial rule when warrants for the search and seizure of persons, houses, papers and effects could be issued by a “responsible officer as may be authorized by law.” Not only that: Whereas under the draconian rule of martial law warrants could issue only after “examination under oath of the complainants and witnesses he may provide,” no such safeguard is found in Section 19.

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hear ye.

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