Republic of the Philippines SUPREME COURT Manila

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

-versus-

G.R. No._____________

EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents. x----------------------------------------------------------------------------------x

PETITION FOR CERTIORARI AND PROHIBITION

(with Application for Temporary Restraining Order)

Petitioner, SENATOR TEOFISTO DL GUINGONA III, by counsel, most respectfully states that:

PREFATORY STATEMENT

When

the

judiciary

mediates

to

allocate constitutional boundaries, it does not assert any superiority over the other

departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned determine to it by the Constitution to

conflicting

claims

of authority

under the Constitution and to establish for the parties in an actual controversy the rights which that to instrument them. secures vs. and The

guarantees

(Biraogo

Philippine Truth Commission of 2010, G.R. No. 192935, G.R. No. 193036, December 7, 2010)

The power of the Honorable Supreme Court is sought not on questions of the wisdom and necessity of a law, but on its compliance in our with the fundamental Despite guarantees the

enshrined

Constitution.

knowing

difficulties of enforcement and several avenues for potential, petitioner makes the calibrated choice to raise only

questions of constitutionality, both as an affirmation of his primary objections to certain provisions of the Cybercrime Prevention Act of 2012 and recognition of the jurisdictional reach of this Court.

This

is

an

assault

against

our

fundamental

Constitutional rights to due process, guarantee against unreasonable searches and seizures, prohibition against double jeopardy, and equal protection of the law. The questioned provisions, as contained in certain provisions of Republic Act 10175, infringes our basic freedom and throws us back to the dark ages.

A good law like the Cybercrime Prevention Act of 2012 cannot be paralyzed by constitutionally infirmed provisions questionably dangerous provisions. The remedy sought from this Court is to strike down the provisions that collide with the Constitution.

On clear constitutional grounds, this Petition is brought before the Honorable Court to test the validity of a governmental act in light of its conformity with a higher norm --- the Constitution.

I NATURE OF THE PETITION

1.

This is a Special Civil Action for CERTIORARI and

PROHIBITION under Rule 65 of the Revised Rules of Court seeking to NULLIFY Sections 4 (c) (1) (4), 6, 7, and 19 of Republic Act No. 10175, otherwise known as the

Cybercrime Prevention Act of 2012 (Cybercrime Act, for brevity) for being UNCONSTITUTIONAL and/or PROHIBIT respondent government bodies from implementing it. A certified true copy of Cybercrime Act is hereto attached and made an integral part hereof as Annex A.

2.

To prevent manifest injustice and inequality, the

Petitioner also seeks the issuance of a TEMPORARY RESTRAINING ORDER to IMMEDIATELY ENJOIN the implementation and enforcement of Sections 4 (c) (1) (4), 6, 7, and 19 of the Cybercrime Act, during the pendency of this Petition.

II REASONS FOR THE ALLOWANCE OF THE PETITION

3.

The present Petition should be given due course

for the following reasons:

3.1

Section 5 (1) (2) (a), Article VIII of the 1987

Philippine Constitution provides that the Supreme Court shall have the power to rule on the constitutionality or validity of a law. Thus, Section 5. The Supreme Court shall have the following powers:
1.

Exercise

original

jurisdiction

over cases affecting ambassadors, other

public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
a.

All

cases

in

which

the

constitutionality or validity of any treaty, international agreement, or law,

executive

presidential decree, proclamation, order, instruction, ordinance, or

regulation is in question. (emphasis supplied)

3.2. Petitioner

appeals

that

the

Honorable

Supreme Court exercise its judicial power to declare Sections 4 (c) (1) (4), 6, 7, and 19 of the Cybercrime Act as NULL AND VOID for being in gross violation of the constitutional rights to due process, equal protection of the laws, prohibition against double jeopardy, right

against unreasonable search and seizure, and right to privacy.

3.3 The subject of the present Petition is of transcendental importance which has overreaching significance to society and paramount public interest, considering its impact on the public and social media.

3.4. There is no plain, speedy and adequate remedy in the ordinary course of law available to Petitioner other than this Petition as the continued implementation of the Cybercrime Act already exposes the Petitioner and the general public to the harm it seeks to avoid.

III PARTIES

4.

Petitioner SENATOR TEOFISTO DL GUINGONA

III is a duly-elected Senator of the Republic of the Philippines. He was the lone Senator who voted against Republic Act No. 10175, otherwise known as the

Cybercrime Prevention Act of 2012. As a respected legislator, he has a legal standing to see to it that the prerogative, powers and privileges vested by the

Constitution in his office remain inviolate.

As such, he is

allowed to question the validity of any official action which, to his mind, infringes on his prerogatives as legislator1 . He may be served with court notices and other process through the undersigned counsel.

5.

Respondents are public officers tasked with the and implementation of the Cybercrime

enforcement

Prevention Act of 2012.

5.1

Respondent EXECUTIVE SECRETARY is the

alter ego of the President of the Philippines. He may be served with summons and other process at the Premier Guest House, Malacanang, JP Laurel St., San Miguel Manila;

5.2

Respondent

SECRETARY

OF

THE

DEPARTMENT OF JUSTICE (DOJ) is a public officer tasked

1 Biraogo vs. The Philippine Truth Commission of 2010, G.R. No. 192935, G.R. No.

193036, December 7, 2010

with the enforcement and the prosecution of the crimes defined under the Cybercrime Prevention Act of 2012. She may be served with summons and other process at the Department of Justice, Padre Faura St., Ermita, Manila;

5.3 Respondent

SECRETARY

OF

THE

DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG) is a public officer tasked with the

implementation of the Cybercrime Prevention Act of 2012. He may be served with summons and other process at A. Francisco Gold Condominium II, EDSA cor. Macapagal St., Diliman, Quezon City;

5.4 Respondent

CHIEF

OF

THE

PHILIPPINE

NATIONAL POLICE (PNP) is tasked with the enforcement of the Cybercrime Prevention Act of 2012, particularly authorized to engage in the collection of traffic data under the above-mentioned law. He may be served with summons and other process at the PNP National Headquarters, Camp General Crame, Quezon City, Metro Manila; and,

10

5.5 Respondent DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION (NBI) is the head of the NBI, which is tasked as the Law Enforcement Authority empowered to engage in the collection of traffic data under the above-mentioned law. He may be served with summons and other process at the NBI Building, Taft Ave., Ermita, Manila.

IV STATEMENT OF FACTS

6.

On July 27, 2010, House Representative Susan A. Yap

filed House Bill No. 85 entitled An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression, and the Imposition of Penalties Therefor and for Other Purposes.

7. on

After its first reading, it was referred to the Committee Communication Technology, which later

Information

consolidated all the bills on Cybercrime. This resulted to House Bill No. 5808 which now appears in Committee Report No. 1818 filed on February 9, 2012.

8.

On May 9, 2012, House Bill No. 5808 was approved on

Second Reading.

11

9.

After a series of amendments, copies of the bill were

distributed and later approved on Third Reading on 21 May 2012. This was thereafter transmitted to the Senate on 23 May 2012.

10. In the meantime, on 03 May 2011, Senate Bill No. 2796 entitled An Act Defining Cybercrime, Providing for Prevention, Investigation and Imposition of Penalties Therefor and for Other Purposes, as reflected in Committee Report No. 30.

11. After a series of interpellations, on 24 January 24, 2012, amendments were introduced and accepted by the Senate. Thus, on the same day, Senate Bill No. 2796 was approved on second reading.

12. Thus, copies of the bill with the approved amendments were distributed and later approved on third reading on 30 January 2012. Petitioner was the lone Senator who opposed the passage of the bill for being in violation of the 1987 Constitution.

13. On 04 June 2012, House Bill No. 5808 and Senate Bill No. 2796 were consolidated, resulting to the passage of Republic Act No. 101751, otherwise known as Cybercrime Prevention Act of 2012.

12

14. On 12 September 2012, the President of the Philippines approved Republic Act No. 10175, and this took effect fifteen (15) days after the completion of its publication in the Official Gazette and at least two (2) newspapers of general circulation.

15. The above-mentioned Act defines cybercrime and enumerates therein the punishable acts described as cybercrime offenses including among others, libel.

16. Under Section 4 (c) (1) and (4) of the Cybercrime Act, cybersex and libel were defined as follows:

Section 4 (c)(1) Cybersex The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the for aid favor of a or

computer

system,

consideration.

Section 4(c)(4) Libel The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,

13

as

amended,

committed

through

computer system or any other similar means which may be devised in the future.

17. Section 6 of the Cybercrime Act also provided the penalty to be imposed upon any person who commits 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. Thus,

Section 6 - 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.

14

18. Section 7 of the Cybercrime Act, in turn, declares that the prosecution under the said Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. Thus,

Section 7 - Liability under Other Laws. 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.

19. As regards the implementation and enforcement of the said law, Section 19 granted the Department of Justice with the authority to issue an order to restrict or block access to such computer data against any person prima facie found to be in violation of the provision of the Cybercrime Act. Thus,

SEC. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

15

20. The foregoing provisions are clearly violative of the guarantees enshrined in the 1987 Philippine

Constitution, hence, should be declared NULL AND VOID.

21. Hence, this Petition.

V GROUNDS FOR THE PETITION

A SECTION 4 (c) (4) IN RELATION TO SECTION 6 OF THE CYBERCRIME ACT VIOLATES THE CONSTITUTIONAL GUARANTEES ON EQUAL PROTECTION AND DUE PROCESS OF LAW. B SECTION 7 OF THE CYBERCRIME ACT IS CONTRARY TO THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY; and, C SECTION 19 OF THE CYBERCRIME ACT IS VIOLATIVE OF THE CONSTITUTIONAL PROHIBITION AGAINST UNLAWFUL SEARCHES AND SEIZURE AND THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

VI

16

ARGUMENTS / DISCUSSIONS

Section 4 (c) (4) in relation to Section 6 of the Cybercrime Act is violative of the constitutional guarantee on equal protection of law. --------------------------------------------22. Section 1, Article III of the 1987 Constitution provides that no person shall be denied the equal protection of the law. This is one of the basic rights guaranteed under the Constitution. This was emphasized in the case of Biraogo vs. The Philippine Truth Commission of 2010 (G.R. No. 192935, G.R. No. 193036, December 7, 2010), where the Supreme Court declared that equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.

23. Unfortunately,

this

right

was

violated

with

the

enactment o RA law which seeks to punish libel already defined and punishable under Art. 355 of the Revised Penal Code, but this time, imposing a higher penalty simply because it was committed through the use of information and communications technology.

17

24. Significantly, the Cybercrime Act merely adopted the provision on libel as provided under Revised Penal Code, as follows:

Section

4(c)(4)

Libel

The

unlawful

or

prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be

devised in the future.

25. Section 6 of the Cybercrime Act, on the other hand, provides that a person who commits any crime defined and penalized by the Revised Penal Code and special laws such as libel, shall be punished one (1) degree higher than that provided for by the Revised Penal Code and special laws, as the case may be, if he commits it with the use of information and

communications technology. Thus,

Section 6 - 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 shall and be

communications

technologies

18

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.

26. Applying the foregoing, it can be readily seen that Libel under the Revised Penal Code is punished by Prision Correccional in its minimum and medium periods, or imprisonment for a

period of six (6) months and one (1) day to four (4) years, or a fine ranging from 200 to 6,000 pesos, or both. Thus,

Art. 355. Libel means by writings or similar means. A libel committed by means of writing, radio, printing, lithography, painting,

engraving, theatrical

phonograph,

exhibition,

cinematographic

exhibition, or any similar means, shall be punished by prision correccional in its

minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in

19

addition to the civil action which may be brought by the offended party.

27. On the other hand , Libel under the Cybercrime Act is punished with a penalty of prision mayor or an imprisonment of six (6) years and one (1) day to twelve (12) years, the penalty one (1) degree higher than prision correccional or an imprisonment of six (6) months and one (1) day to four (4) years.

28. Applying the foregoing provisions, it would appear that if libel is committed by means radio, of writing, printing, painting,

lithography,

engraving,

phonograph,

theatrical exhibition, cinematographic exhibition, or any similar means under Article 355 of the Revised Penal Code, the penalty would only be six (6) months and one (1) day to four (4) years. On the other hand, if libel is committed through a computer system or any other similar means under the Cybercrime Act, the penalty would be the higher penalty of imprisonment for a period of six (6) years and one (1) day to twelve (12) years.

20

29. It is very clear that those liable for libel under the RPC would suffer a lesser penalty than cyber libel under R.A. No. 10175. This is clearly a violation of the equal protection clause of the Constitution. It unduly discriminates persons of the same class, as it penalizes the act of publishing libelous materials through internet more heavily than those which are committed by means of writing, printing, lithography, exhibition, engraving, radio,

phonograph,

painting,

theatrical

cinematographic

exhibition, or any similar means.

30.

This should not be allowed. A law, to be valid,

must apply to all members of the same class. Persons committing libel are similarly situated, whether using a computer system or not. There is no reason to treat them differently. As such, there is no justification for the difference in the imposition of penalties under the two statutes. Being unduly discriminatory to members of the same class, certainly, Section 6 of the Cybercrime Act should be struck down for being violative of the constitutional guarantee against equal protection of the law.

31. As held in the case of Biraogo vs. The Philippine Truth Commission of 2010 (G.R. No. 192935, G.R. No. 193036, December 7, 2010),

21

The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the

government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.

32. In view of the foregoing, it is very easy to see that Section 6 of the Cybercrime Act should be struck down for being violative of the constitutional guarantee on equal protection of the law.

Section 7 of Republic Act No. 10175 is contrary to the constitutional prohibition against double jeopardy.

22

--------------------------------------

33. As if it were not enough, Section 7 of the Cybercrime Act also violates the constitutional prohibition against double jeopardy as it makes a person liable not only under the Cybercrime Act, but also under the Revised Penal Code.

34. Section 21, Article III of the 1987 Philippine Constitution, states that No person shall be twice put in jeopardy of punishment for the same offense If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

35. A

simple

reading

of

the

foregoing

constitutional

provision would show that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. This was blatantly violated by Section 7 of the Cybercrime Act, as it specifically states that A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code. Thus,

23

SEC. 7. Liability under Other Laws. 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.

36. From the foregoing provision, it is clear that an internet user violating Cybercrime Act could still be held liable in another case under the Revised Penal Code (RPC). In the case of Galman vs. Sandiganbayan (144 SCRA 43), the Supreme Court ruled that:

The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the

defendant who has been acquitted, final repose and safeguard oppression him through from the

government

abuse of criminal processes.

37. In Ivler vs. Hon. Judge Modesto - San Pedro (G.R. No. 172716, 17 November 2010), the Supreme Court stated that:

24

One of the tests of double jeopardy is whether charged or not the second includes in the offense or is

necessarily included the

necessarily charged in

offense or

former

complaint

information (Rule 113, Sec. 9). Another test is whether the evidence which

proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. xxx

38.

Applying these tests to the foregoing Petition, and for

illustration purposes, there is no doubt that the act of libel punishable under the Cybercrime Prevention Act of 2012 is identical to that punished under the Revised Penal Code. The elements constituting both offenses are definitely identical so conviction and punishment under these two laws for the same offense is definitely unconstitutional

25

39. It is very clear that Section 7 of the Cybercrime Act unlawfully exposes an individual for punishment twice, first under the Revised Penal Code, and second, under the Cybercrime Act. This runs afoul against the constitutional prohibition on double jeopardy.

Section 19 of RA 10175 is violative of the prohibition against unlawful searches and seizure and due process of the law. --------------------------------------

40. A reading of the Cybercrime Act also shows that it grants the Department of Justice unbridled authority to restrict or block access to ones computer data once it is a prima facie found to be in violation of the Act. This again, is a blatant violation of the constitutional right of an individual against unreasonable searches and seizure.

41. Section 2, Article III of the 1987 Philippine Constitution provides:

The right of the people to be secure in their persons, houses, papers,

26

and

effects and

against seizures

unreasonable of whatever

searches

nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination of the under oath and or the

affirmation

complainant

witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

42. However, provides:

Section

19

of

the

Cybercrime

Act

SEC. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

27

43. From the foregoing, it is very clear that Section 19 of the Cybercrime Act gives the DOJ an extraordinary power to issue an order restricting or blocking access to ones computer data based merely on PRIMA FACIE evidence. There is no more need to file a case in court, as the determination of sufficiency of evidence is vested entirely upon the Department of Justice. In effect, the constitutional provision that search warrants shall be issued only upon probable cause to be determined personally by the judge is rendered nugatory.

44. As a result of this overwhelming exercise of power by the Department of Justice, a person is effectively deprived of access to his own computer data without first being given an opportunity to be notified as to crime purportedly violated. Neither is he given a chance to defend himself from the charges against him. Without affording the affected party with notice and hearing, the government could immediately, and without any warning, restrain a persons right to communicate and

opportunity to access his personal data and computer-stored information. This is the danger which this Petition seeks to avoid.

28

45. This is a violation of the due process clause of the Constitution, which requires that any judgment affecting one's person or property be rendered only after notice and hearing. As held in the recent case of Rogelio Aberca, et. al. vs Maj. Gen. Fabian Ver, et. al (G.R. No. 166216, March 14, 2012)

Procedural due process is that which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. It contemplates notice and opportunity to be heard before judgment is rendered affecting one's person or property.

Section 4 (c) (1) of the Cybercrime Act violates the constitutional right to due process. -------------------------------------

46. Section 4 (c) (1) of the Cybercrime Act defined Cybersex as follows: Cybersex The willful engagement, or operation,

maintenance,

control,

directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

29

47. A simple reading however of this provision would show that the definition of the crime of cybersex is too broad as it failed to provide for any parameters what constitutes the commission of a crime. It simply stated that an act is punishable simply because there was an exhibition of sexual organs or sexual activity. It did not provide any standard or limitation, as it encompasses any and all sexual acts, for as long as they were exhibited on-line. As such, mere publication of nude materials in the internet is already considered punishable even if they are classified as artistic works.

48.

Given the foregoing, it is very evident that the

definition of Cybersex under this act is so broad as it fails to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid. As such, an individual is now in danger of being prosecuted for crimes without knowing what was

specifically violated, for as long as he used a computer. As held in the case of The People of the Philippines vs. Eusebio Nazario (G.R. No. L-44143 August 31, 1988):

As a rule, a statute or act may be said to be vague when it lacks comprehensible

standards that men "of common intelligence must necessarily guess at its meaning and

30

differ as to its application." It is repugnant to the Constitution in two respects: (1) it violates due process for failure to

accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

49.

Due to the over extensive definition of cybersex, an

individual is in effect restricted from exploring his creativity and expressing it on the internet for fear of being prosecuted for a crime which lacks a sufficient standard.

50.

This violates the constitutional right to freedom of

expression as a person is being subjected to a prior restraint on expressing himself, a right specifically protected under Section 4, Article III of the Constitution, which states that No law shall be passed abridging the freedom of speech, of expression x x x.

51.

From the foregoing, it is clear that the Cybercrime Act a prior restraint on the freedom of

not only constitutes

31

expression, but also legislates morality. The law to be effective should not plead to the legislator to determine what is moral and what is not. Defining standards of morality is not a function of congress but should be better left in the hands of our religious leaders.

The implementation of these highly questionable provisions would create a chilling effect tantamount to prior restraint on the freedom of speech and expression. --------------------------------------

52. Taking

all

these

highly

questionable

provisions

altogether, it can be reasonably expected that the general public would now be under the impression that expression of public opinion with the use of information communication technology is now already a criminal offense under the Cybercrime Act. Our people, especially those in social media should not be forbidden from expressing their thoughts and opinions in cyberspace whether critical or not for fear of being labeled as cyber criminals.

53. As stated by Justice Antonio Carpio in the case of Sps. Romualdez vs. COMELEC, et al, (G.R. No. 167011, April 30, 2008), a person who does not know whether his speech constitutes a

32

crime under an overbroad or vague law may simply refuse to speak to avoid being charged of a crime. The overbroad or vague law chills him into silence. Looking at it in a broader perspective, it can be seen that this is tantamount to prior restraint on the freedom of speech and expression.

54. It must be stressed that freedom of expression has gained recognition as a fundamental principle of every

democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. This was exhaustively explained in Gonzales vs. Commission on Elections, where the Supreme Court stated:

At the very least, free speech and free press may be identified with the liberty to discuss matter publicly of and truthfully any

public

interest

without

censorship and punishment. There is to be no previous restraint on the

communication of views or subsequent liability whether in libel suits,

prosecution for sedition, or action for damages, or contempt proceedings

33

unless there be a clear and present danger of substantive evil that Congress has a right to prevent.

55. This right to freedom of expression is so important that decriminalizing libel is the present trend in modern countries. True to this, it was even expressly guaranteed under Article 19 of the Universal Declaration of Human Rights, that Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.

56. Considering the foregoing, it is clear that allowing the passage of the highly questionable provisions of the Cybercrime Act would in effect curtail the peoples right to freedom of expression. As a result, any computer user will now live in fear knowing that his critical comments, when published on-line, might expose him to criminal charges. This should not be allowed. A democratic government flourishes when its citizens are not left to cower in the sidelines because of fear, afraid to speak up and later, afraid even to think against its own government.

34

57. In view of all the foregoing constitutional infirmities, the Honorable Supreme Court should exercise its power to review the constitutionality of the Cybercrime Prevention Act of 2012 and should make sure that all acts of the government are done in consonance with the authorities and rights allocated to it by the Constitution.

58.

In the case of Biraogo vs. The Philippine Truth

Commission of 2010 (G.R. No. 192935, G.R. No. 193036, December 7, 2010), the Supreme declared the nullity of a law simply because it was clearly violative of the Constitution, stating that No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing constitutional it is simply then irreconcilable it cannot still with be

parameters,

allowed. The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles. Thus,

As Justice Laurel puts it, when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in

35

reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual

controversy the rights which that instrument secures and guarantees to them.

It

cannot

be

denied

that

most

government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people. But then again, it is important to remember this ethical principle: The end does not justify the means. No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in

accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed. The Court

cannot just turn a blind eye and simply let it pass. It will continue to uphold the

36

Constitution principles.

and

its

enshrined

The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.

59. There is therefore an urgent need for this Honorable Court to exercise its supreme power to declare the nullity of Section 4 (c) (1) and (4), Sections 6, 7 and 19 of Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012 for being in direct contravention of the 1987 Constitution.

VII GROUNDS FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER

60. In view of the approval of Republic Act 10175 otherwise known as the Cybercrime Prevention Act of 2012, herein Respondents are now to implement the said statute in clear violation of the Constitution.

37

61. Pending action by this Honorable Court, Petitioner seeks that Respondents be enjoined from implementing Sections 4 (c) (1) (4), 6, 7, and 19 of the Cybercrime Prevention Act of 2012. Unless the implementation and enforcement of the aforecited provisions is enjoined, Petitioner and the entire Filipino people stand to suffer grave and irreparable injury.

PRAYER

WHEREFORE,

in

view

of

the

foregoing,

Petitioner

respectfully prays that judgment be rendered by this Honorable Court:

1.

Upon the filing of this Petition, forthwith issue TEMPORARY immediately RESTRAINING enjoin the ORDER (TRO)

a to from

Respondents

implementing Sections 4 (c) (1) (4), 6, 7, and 19 of the Cybercrime Prevention Act of 2012 pending resolution of this case.

38

2.

IMMEDIATELY set the case for ORAL ARGUMENT in order

to give the parties the opportunity to amplify and ventilate their respective positions; and

3.

After due proceedings, render judgment:

a.

DECLARING Sections 4 (c) (1) (4), 6, 7, and

19 of Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012 NULL AND VOID for being UNCONSTITUTIONAL; and

b.

PERMANENTLY

PROHIBITING

all

Respondents from implementing Sections 4 (c) (1) (4), 6, 7, and 19 of the Cybercrime Prevention Act of 2012; and,

Petitioner further prays for such other reliefs as may be deemed just and equitable.

Makati City for Manila

27 September 2012.

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