Wednesday, February 19, 2014

Cybercrime Law Ruling: a Case of Philippines Behaving Like China

We have been accusing China of violating international laws when it laid claim on a large part of the South China Sea. In fact, we have filed an arbitration proceeding before the arbitral tribunal of the International Permanent Court of Arbitration in The Hague pursuant to the United Nation Convention on the Law of the Seas (UNCLOS) to prosecute our cause. The Philippines claims the contested area as part of its 200-nautical mile Exclusive Economic Zone (EEZ), among a country’s maritime entitlements, which under the UNCLOS are “rights that lawfully demand respect from State-Parties.”
At the Expanded Asean Maritime Forum (EAMF) in Kuala Lumpur in October last year, Department of Foreign Affairs (DFA)-West Philippine Sea Center-Assistant Secretary Henry Bensurto Jr., said:
“To maintain order and stability in the South China Sea, we need predictability in the way we all behave with each other.  To be predictable means, we need to have certain agreed standards, rules and norms,”
“These standards, rules and norms in turn must be objective, impartial and non-discriminatory. International law is one objective standard.”
Ironically, the Philippines finds itself in the same place as China on the issue of Cybercrime Law. In April of 2007, Alexander Adonis, a broadcast journalist now based in General Santos and an anchorman for Socsargen Broadcasting Network, while working as commentator for Bombo Radyo-Davao City, was sentenced to four years and six months in prison in a libel case filed by then Davao representative--later House Speaker--Prospero Nograles.
The case stemmed from a report brought over the radio by Adonis, echoing newspaper reports, alleging that Norgrales was seen running naked in Manila Hotel after the husband of the lady he was having an affair with caught them in flagrante delicto in bed. While doing time, Adonis filed a Communication before the United Nations Human Rights Committee (UNHRC) entitled Adonis v. The Philippines, and recorded as Communication 1815/2008.
In the Communication, he questioned his imprisonment for libel under Article 355 of the Revised Penal Code (RPC) as constituting unlawful restriction of his constitutional right to Freedom of Speech and Expression, thus, a violation of Article 19 of United Nation Covenant on Civil and Political Rights (UNCCPR).
After deliberation, the Committee issued a view citing that Philippine criminal libel conflicts with the country’s obligations under Article 19 of UNCCPR, particularly paragraph three thereof. Continuing, it further stated that the Philippines is “also under an obligation to take steps to prevent similar violations occurring in the future, including by reviewing the relevant libel legislation.”
Clearly, we have state obligations under UNCCPR, which we ratified on October 23, 1986, just a year before we ratified, in a plebiscite, our very own Constitution. Our Constitution commands us to honor said obligations by virtue of its provisions, to name a couple:
“Article II, Section 2. xxx adopts the generally accepted principles of international law as part of the law of the land”;
Article VII, Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
On August 22, 1989, we, through the Senate, ratified the Optional Protocol to the ICCPR, which meant our acceptance of the individual complaints mechanism provided for by the Optional Protocol.
With the UNHRC’s view, though not binding on State-Parties, we thought we would move towards decriminalizing libel. But lo and behold, we have taken the opposite direction. We have not only kept our criminal libel law, we have made it more potent under RA 10175 by punishing online libel with imprisonment of six years and one day to twelve years, compared to only six months and one day to four years and two months for ordinary libel under the Revised Penal Code.
The irony of it all is these are all unfolding under an administration whose leadership comes from a lineage of iconic freedom fighters. 
Just two years after Pnoy took office under the platform of–picking up where his parents left off—good governance and democracy, his party-controlled Congress, the House of Representatives and Senate on June 4 and 5, respectively, passed Republic Act No. 10175, otherwise known as “Cybercrime Prevention Act of 2012.” On September 12, 2012, Pnoy signed it into law. Immediately thereafter, freedom advocacy groups and individuals petitioned the Court for a Temporary Restraining Order and/or Writ of Preliminary Prohibitory Injunction, which it promptly issued.
Two days ago, the Court, widely perceived as sympathetic to Pnoy administration, ruled to uphold the constitutionality--generally and save for some provisions, but particularly online libel--of RA 10175, or The Cybercrime Prevention Act of 2012. As argued, notwithstanding the Court's decision, which does not become final until the lapse of period for MR without one being filed, this is in violation of State obligations under UNCCPR, and international law in general.
How can we effectively argue against China’s alleged disregard of international law, when we ourselves seem inclined to invoke it only when convenient and expedient?
For over two decades now, we have heralded, and thrived under, in between times, heroes of democracy that has made our beloved Philippines its cradle and bastion. Under the youngest yet of supposed bloodline of freedom advocates, though, we are being pushed to rethink that proposition.
We expect an MR of the Court’s decision, and hope that at last look, it sees through the haze of the issues in the case, and rule in favour of our Constitutional rights.


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