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JOSE JESUS M.DISINI, JR., et al., Petitioners, - versus THE SECRETARY OF JUSTICE, et al., Respondents. x--------------------------------------------------------x LOUIS “BAROK” C. BIRAOGO, Petitioner, - versus NATIONAL BUREAU OF INVESTIGATION et al., Respondents. x--------------------------------------------------------x ALAB NG MAMAMAHAYAG (ALAM), et al., Petitioners, - versus OFFICE OF THE PRESIDENT Respondent. x--------------------------------------------------------x SENATOR TEOFISTO DL GUINGONA III, Petitioner, - versus THE EXECUTIVE SECRETARY, et al., Respondents x--------------------------------------------------------x G.R. No. 203359 G.R. No. 203306 G.R. No. 203299 G.R. No. 203335
ALEXANDER ADONIS, et al., Petitioners, - versus THE EXECUTIVE SECRETARY, et al., Respondents. x--------------------------------------------------------x HON. RAYMOND V. PALATINO, ET AL. Petitioners, - versus HON. PAQUITO N. OCHOA, JR., etc., et al., Respondents. x--------------------------------------------------------x BAGONG ALYANSANG MAKABAYAN Secretary General RENATO M. REYES, JR. et al., Petitioners, - versus BENIGNO SIMEON C. AQUINO III, etc., et al., Respondents. x--------------------------------------------------------x MELENCIO S. STA. MARIA, et al., Petitioners, - versus HON. PAQUITO OCHOA, ETC, et al., Respondents. x--------------------------------------------------------x G.R. No. 203440 G.R. No. 203407 G.R. No. 203391 G.R. No. 203378
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NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES, et al., Petitioners, - versus THE EXECUTIVE SECRETARY, et al., Respondents. x--------------------------------------------------------x PAUL CORNELIUS T. CASTILLO, et al., Petitioners, - versus THE HON. SECRETARY OF JUSTICE et al., Respondents. x--------------------------------------------------------x ANTHONY IAN M. CRUZ, ET AL., Petitioners, - versus HIS EXCELLENCY BENIGNO S. AQUINO III etc., et al., Respondents. x--------------------------------------------------------x PHILIPPINE BAR ASSOCIATION, INC., Petitioner, - versus HIS EXCELLENCY BENIGNO S. AQUINO III etc., et al., Respondents. x--------------------------------------------------------x G.R. No. 203501 G.R. No. 203469 G.R. No. 203454 G.R. No. 203453
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BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, - versus THE EXECUTIVE SECRETARY PAQUITO OCHOA JR., Respondent. x--------------------------------------------------------x NATIONAL PRESS CLUB PHILIPPINES, INC., etc., OF THE G.R. No. 203509
Petitioners, - versus OFFICE OF THE PRESIDENT, PRESIDENT BENIGNO SIMEON AQUINO III, etc., et al., Respondents. x--------------------------------------------------------x PHILIPPINE INTERNET ALLIANCE, et al., FREEDOM Petitioners, - versus THE EXECUTIVE SECRETARY, et al., Respondents. x--------------------------------------------------------x G.R. No. 203518 G.R. No. 203515
JOINT MOTION FOR PARTIAL RECONSIDERATION
(WITH MOTION FOR CLARIFICATION) AND NOTICE OF CHANGE OF ADDRESS OF COUNSEL FOR PETITIONER IN G.R. 203509.1
Bayan Muna Representative Neri J. Colmenares v. Executive Secretary Paquito N. Ochoa Jr.
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PETITIONERS in G.R. No. 203407 and G.R. No. 203509, by counsels, unto the Honorable Court, most respectfully state that:
1. Petitioners in G.R. No. 203407 received certified true copies of this Honorable Court’s Decision in Disini Jr. et al vs. Secretary of Justice et al., G.R. No. 203335, February 18, 2014 on February 26, 2014, while Petitioner in G.R. No. 203509, through counsel, received a copy thereof on February 25, 2014. 2. Petitioners have fifteen (15) days within which to file a Motion 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 COURT’S PRONOUNCEMENT IN THE DECISION REITERATING THE “ACTUAL MALICE” RULE, IT IS THE CONSTITUTIONAL DUTY OF THE HONORABLE COURT TO DECLARE, , ARTICLE 354 OF THE REVISED PENAL CODE, AS AMENDED, AS VOID AND UNCONSTITUTIONAL INSOFAR AS PUBLIC OFFICERS AND PUBLIC FIGURES ARE CONCERNED. II NON-INTERNET BASED COMMUNICATIONS LACK OF INVESTIGATORY, PROSECUTORIAL AND JUDICIALLY DETERMINABLE STANDARDS IN THE INVESTIGATION, PROSECUTION AND
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PUNISHMENT OF LIBEL UNDER SECTION 4(C)(4) OF R.A. 10175 COMMITTED THROUGH THE OVERLY BROAD “COMPUTER SYSTEM OR ANY OTHER SIMILAR MEANS WHICH MAY BE DEVISED IN THE FUTURE,” CREATING A CHILLING EFFECT THAT INFRINGES ON THE FREEDOM OF SPEECH CLAUSE UNDER THE CONSTITUTION, AND WHICH THE HONORABLE COURT DID NOT PASS UPON IN ITS DECISION. III INTERNET-BASED COMMUNICATIONS THE HONORABLE COURT’S CLASSIFICATION MADE IN INTERNETBASED COMMUNICATIONS BETWEEN THE ORIGINAL AUTHOR OF THE POST, ON THE ONE HAND, AND THE OTHERS WHO SIMPLY RECEIVE THE POST AND REACT TO IT, ON THE OTHER HAND―THAT LIBEL UNDER SECTION 4(C)(4) OF R.A. 10175 IS CONSTITUTIONAL AS IT APPLIES TO THE FORMER, AND UNCONSTITUTIONAL AS IT APPLIES TO THE LATTER―IS ALREADY A JUDICIAL RECOGNITION THAT SAID PENAL PROVISION IS OVERBROAD AND SHOULD BE DECLARED UNCONSTITUTIONAL IN ITS ENTIRETY. THE CLASSIFICATION MADE TRIVIALIZES THE EXCHANGES OF COMMUNICATIONS IN THE INTERNET. RESORTING TO SUCH A LIMITED JUDICIAL APPROACH, INSTEAD OF DECLARING THE ENTIRE SECTION 4(C)(4) UNCONSTITUTIONAL, DOES NOT DO AWAY THE BREADTH OF CHILLING EFFECTS THAT SAID PENAL PROVISION CREATES ON THE EXERCISE OF FREEDOM OF SPEECH, THEREBY GREATLY ENDANGERING THE CONSTITUTIONAL NORM IN PURSUING THE STATE’S PRIMARY INTEREST IN UPHOLDING THE FREEDOM OF SPEECH CLAUSE.
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IV THE PHILIPPINE GOVERNMENT’S DUTY TO PROTECT PERSONS FROM LIBEL IS LIMITED TO CIVIL REMEDIES THE HONORABLE COURT SHOULD CONSIDER IN THE RESOLUTION OF HEREIN PETITION, THE REALITY THAT CRIMINAL DEFAMATION SUITS ARE USED TO SILENCE CRITICS AND STIFLE FREEDOM OF SPEECH. AS AN EXCEPTION TO THE CONSTITUTIONAL NORM OF THE PRIMACY OF FREEDOM OF SPEECH, DECLARING THAT THE PHILIPPINE GOVERNMENT’S DUTY IN PROTECTING PERSONS FROM LIBEL IS LIMITED ONLY TO CIVIL REMEDIES FULLY COMPLIES WITH THE PHILIPPINE GOVERNMENT’S OBLIGATION UNDER ARTICLE 19 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS THAT THE RESTRICTIONS THAT MAY BE IMPOSED ON THE EXERCISE OF FREEDOM OF EXPRESSION SHALL ONLY BE SUCH AS ARE NECESSARY. V CYBERSEX AND AIDING OR ABETTING AND ATTEMPT IN THE COMMISSION OF CYBERCRIME SECTION 4(C)(1) ON CYBERSEX SECTION 5 OF R.A. 10175 CONSTITUTIONALLY ABHORRENT. VI SECTION 6 OF R.A. 10175, WHICH PROVISION PUNISHES BY ONE DEGREE HIGHER THOSE CRIMES COVERED BY THE REVISED PENAL CODE OR SPECIAL LAWS IF COMMITTED WITH THE USE OF INFORMATION AND COMMUNICATIONS AND ARE
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TECHNOLOGIES, IS UNCONSTITUTIONAL IN ALL CASES AND FOR ALL OFFENSES. VII SECTION 7, A RELATED SECTION, WHICH PROVIDES THAT A PROSECUTION UNDER THE ACT SHALL BE WITHOUT PREJUDICE TO ANY LIABILITY UNDER THE REVISED PENAL CODE OR SPECIAL LAWS, IS UNCONSTITUTIONAL IN ALL CASES AND FOR ALL OFFENSES. VIII THE INSERTIONS OF THE BICAMERAL CONFERENCE COMMITTEE, ESPECIALLY THOSE PROVISIONS WHICH INCREASED PENAL SANCTIONS AND CREATED WHOLE CLASSES OF CRIMES AFFECTING FUNDAMENTAL RIGHTS, THAT ARE FOUND NEITHER IN THE SENATE VERSION (SBN-2796) NOR IN THE HOUSE VERSION (HBN-5808) BUT ARE FOUND IN R.A. 10175, ARE UNCONSTITUTIONAL.2 THIS IS AN HISTORIC OPPORTUNITY FOR THIS HONORABLE COURT TO PROSCRIBE THE ABHORENT PRACTICE OF BICAMERAL INSERTIONS. IX REQUIREMENTS FOR COLLECTION, SEIZURE OR DISCLOSURE OF OTHER DATA VIOLATE THE CONSTITUTION THE COLLECTION, SEIZURE OR DISCLOSURE OF OTHER DATA (I.E., CONTENT, IDENTITY) UNDER SECTION 12 OF R.A. 10175 REQUIRES A COURT WARRANT THEREIN BUT THE REQUIREMENTS USED BY SAID PROVISION FOR THE ISSUANCE OR GRANT THEREOF ARE DEFICIENT OF THE
See pp. 18-21, 22, of Petition, G.R. No. 203509. See pp. 4, 22-50 of Petitioner’s Memorandum of Law.
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CONSTITUTIONAL REQUIREMENTS, IN VIOLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION. X SECTION 15 DOES NOT “MERELY ENUMERATE THE DUTIES OF LAW ENFORCEMENT AUTHORITIES” WHICH “SUPPLEMENTS” EXISTING SEARCH AND SEIZURE RULES; RATHER, SECTION 15, ON ITS FACE, UNDULY EMPOWERS LAW ENFORCEMENT AUTHORITIES TO “ORDER ANY PERSON” WHO HAPPENS TO HAVE “KNOWLEDGE” OVER THE SUBJECT OF THE WARRANT, WHICH IS A POWER FUNCTIONALLY EQUIVALENT TO A SUBPOENA AGAINST SUCH “ANY PERSON” WHO LIES OUTSIDE THE SCOPE AND DESCRIPTION OF THE WARRANT.
I ACTUAL MALICE RULE
In light of the Honorable Court’s pronouncement in the Decision reiterating the “actual malice” rule, it is the constitutional duty of the Honorable Court to declare Article 354 of the Revised Penal Code, as amended, as void and unconstitutional, insofar as public officers and public figures are concerned. In its Decision, the Honorable Court itself has reiterated in no uncertain terms the application of the rule on “actual malice” in this jurisdiction where defamatory statements, even when the same are false, are made against public officials and public figures:
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The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. There is “actual malice” or malice in fact when the offender makes the defamatory statement with the knowledge that it is false or with recklessness as to whether it was false or not. The reckless disregard standard used here requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual malice. The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of “malice” to convict the author of a defamatory statement where the offended party is a [public officer or a] public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs. (Emphasis and underscoring supplied) The rule on “actual malice,” which was adopted in this jurisdiction from the decisions of the U.S. Supreme Court in New York Times v. Sullivan,3 in relation to public officials, and in Curtis Publishing Co. v. Butts,4 in relation to public figures, is a conclusive doctrine that goes into the construction of the freedom of speech clause, now under Section 4, Article III of the 1987 Constitution: Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
376 U.S. 254. 388 U.S.130.
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right of the people peaceably to assemble and petition the Government for redress of grievances. As such, any statute or provision thereof that violates the rule on “actual malice” is repugnant to Section 4, Article III of the Constitution. And this specifically clear in Article 354 of the Revised Penal Code, as amended, which, instead of adhering to the rule on “actual malice,” applies the rule on “malice in law,” thus: Article 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Emphasis supplied) As stated above, the Honorable Court has stated in the Decision that: The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, xxx. Society’s interest and the maintenance of good government demand a full discussion of public affairs. (Emphasis supplied) The clear import of such pronouncement is that Article 354 of the Revised Penal Code, as amended, is void and unconstitutional for being repugnant to the freedom of speech clause, in relation to public officers and public figures. Despite this, however, the Honorable Court, with all due respect, instead of striking down Article 354 of the Revised Penal Code, as amended, read into the Revised Penal Code, as amended, as well as R.A. 10175 something that does not exist in their text: Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court
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recognizes that these laws imply a stricter standard of “malice” to convict the author of a defamatory statement where the offended party is a [public officer or a] public figure. (Emphasis and underscoring supplied) It is basic that if a law or an administrative rule violates any norm of 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 The Constitution is the highest law of the land. It is the basic and paramount law to which all other laws must conform.6 Laws that do not conform to the Constitution shall be stricken down for being unconstitutional.7 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution, that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect.8 Police power does not include the power to violate the Constitution. Police power is the plenary power vested in Congress to make 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 free speech clause under Section 4, Article III of the Constitution, in relation to public officers and public figures, the Honorable Court failed to perform its “duty xxx to uphold the Constitution and to declare void all laws [or any of their provisions] that do not conform to it.”10
II NON-INTERNET BASED COMMUNICATIONS
Lack of investigatory, prosecutorial and judicially determinable standards in the investigation, prosecution and
Social Justice Society v. Dangerous Drugs Board (G.R. No. 157870, November 03, 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 Section 4(c)(4) of R.A. 10175 committed through the overly broad “computer system or any other similar means which may be devised in the future,” creating a chilling effect that infringes on the freedom of speech clause under the Constitution, and which the Honorable Court did not pass upon in its Decision. The Honorable Court, in its Decision, did not rule on the issue assailing the constitutionality of the phrase “computer system or any other similar means which may be devised in the future,” through which Section 4(c)(4) on libel under R.A. 10175 may be committed, despite herein petitioners (G.R. No. 203407) raising the same in their petition11 and reiterating said issue in their Memorandum:12 SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act: xxx (c) Content-related Offenses: xxx (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. (Emphasis supplied) Section 3(g) of R.A. No. 10175 defines “computer system” as follows: SEC. 3. Definition of Terms. — For purposes of this Act, the following terms are hereby defined as follows: (g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to,
Petition, pp. 20-21. Memorandum, pp. 30-31.
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computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media. (Emphasis and underscoring supplied) The first part of the definition cited above has been lifted verbatim from the definition of “computer system” under Article 1(a) of the Convention on Cybercrime:13 Article 1(a) “computer system” means any device or a group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data; As of March 08, 2014, the Philippines is not a signatory to the said Convention nor has it ratified the same.14 The Convention, which the Philippines, in an excessively eager fashion, has adopted by enacting R.A. 10175 despite not even being a signatory thereto, does not include libel as one of the “offences” or “substantive criminal law” therein in the “measures to be taken at the national level.” All the above circumstances are very telling, especially considering the fact that “libel committed through a computer system or any other similar means which may be devised in the future” under Section 4(c)(4) of R.A. No. 10175 is not equivalent to “libel committed through the internet or online libel.” This is a very vital aspect of said libel provision that the Honorable Courts fails to consider, with all due respect, in its Decision. The definition itself under Section 3(g) of R.A. 10175 provides examples of a computer system, categorically stating that it is a device: computers, mobile phones, and computer data storage devices or media. Moreover, said definition adds that such a device “may stand alone or be connected in a network or other similar devices.” As such, under Section 4(c)(4) of R.A. 10175, in relation to Section 3(g) thereof, it not a requisite for libel committed through a “computer system or any other similar means which may be devised
Also known as the Budapest Convention on Cybercrime, entered into force on July 01, 2004. 14 Convention on Cybercrime, CETS No.: 185, Council of Europe Treaty Office, <http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&C M=&DF=&CL=ENG> accessed on March 08, 2014.
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in the future” to be published in the internet. Stated differently, for the element of publication to be satisfied under Section 4(c)(4), a defamatory statement is published using a computer system or any other similar means which may be devised in the future, whether such defamatory statement end up in the internet or not, as long as a third person other than the person defamed is informed of it. A clear example of this would be “text messages” using mobile phones or smart phones. In a study:15 The Philippines mobile market took off back in 1999/2000. In the decade or so following the number of mobile telephone subscribers has grown by around 100 million coming into 2013, mobile penetration had moved past 100% (112% by end-2012) in this country of around 96 million people. xxx. At its peak, around two billion SMS messages were being sent every day in the Philippines. The country generates the largest SMS volume in the world, the Philippines accounting for more than 10% of global SMS at one stage xxx. A report by Business Monitor International says that the number of mobile phone subscribers in the Philippines is expected to reach 117 million by end-2016, and will have a 114% penetration rate by end-2016.16 The National Statistical Coordination Board estimates that by 2016, the population in the Philippines will be more than 104 million.17 These millions of Filipino mobile phone users (or all of us), who are primarily using SMS or text messages in their daily communications for personal, interpersonal, social, political or business purposes, where nuances and contexts in the messages certainly vary and are not readily or reasonably discernible to third persons, are potential accused-in-waiting in criminal defamation suits.
Philippines – Mobile Communications, Forecasts and Broadcasting Market, <http://www.budde.com.au/Research/Philippines-Mobile-CommunicationsForecasts-and-Broadcasting-Market.html> accessed on March 08, 2014. 16 PH mobile phone subscribers to hit 117M by 2016, April 10, 2012, ABSCBNews.com <http://www.abs-cbnnews.com/business/04/09/12/ph-mobilephone-subscribers-hit-117m-2016> 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, <http://www.nscb.gov.ph/headlines/StatsSpeak/2011/071111_rav.asp> 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 all covered by the definition of computer system, are all potential targets of libel under Section 4(c)(4) despite not publishing their defamatory statements in the internet and not having reached a wider public audience. The all-embracing character of the term “computer system” as the means used for publication under Section 4(c)(4) is even made more wide-ranging, both in variety and time, by the addition of the phrase “or any other similar means which may be devised in the future.” Undoubtedly, this all-embracing character of the phrase “computer system or any other similar means which may be devised in the future,” through which libel may be committed under Section 4 (c)(4) of R.A. 10175, makes it overly broad and is lacking of investigatory, prosecutorial and judicially determinable standards to safeguard protected speech and expression, in pursuance of the State’s primary interest in upholding the freedom of speech clause, from the unrestrained discretion of law enforcement agencies, prosecutors and courts to determine and decide who and what to investigate, prosecute or punish. Without a carefully crafted legislation designating the limits and parameters of the means to commit libel under Section 4(c)(4), particularly for purposes of publication of a defamatory statement in this age of modern technological advances, the said provision, as it currently stands using the phrase “computer system or any other similar means which may be devised in the future,” creates an extensive chilling effect on the people, ordinary or not, that infringes on the freedom of speech clause under the Constitution. This all-embracing character and the chilling effect it creates are further magnified by Section 6 of R.A. 10175, which uses a means that is broader in scope than a “computer system or any other similar means which may be devised in the future,” that is, “information and communications technologies,” thus: SEC. 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
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amended, and special laws, as the case may be . (Emphasis supplied) In the paper Information and Communication Technology Development Indices (2003)18 published by the United Nations Conference on Trade and Development, the term “information and communications technologies” (ICTs) is defined in the following ways: The World Bank defines ICTs as “the set of activities which facilitate by electronic means the processing, transmission and display of information” (Rodriguez and Wilson, 2000). ICTs “refer to technologies people use to share, 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 and software, computer services and electronic media” (Marcelle, 2000). ICTs represent a cluster of associated technologies defined by their functional usage in information access and communication, of which one embodiment is the Internet. Again, the phrase “computer system or any other similar means which may be devised in the future” and the term “information and communications technologies” are too broad and all-embracing, not particularly carved with specificity to be included in a penal statute, especially where the prohibited act is a matter involving speech, that is, libel or defamation.
III INTERNET-BASED COMMUNICATIONS
The Honorable Court’s classification made in internet-based communications between the original author of the post, on the one hand, and the others who simply receive the post and react to it, on the other hand―that libel under Section 4(c)(4)
p. 3 (2003), <http://www.unctad.org/en/Docs/iteipc20031_en.pdf> accessed on March 08, 2014.
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of R.A. 10175 is constitutional as it applies to the former, and unconstitutional as it applies to the latter―is already a judicial recognition that said penal provision is overbroad and should be declared unconstitutional in its entirety. The classification made trivializes the exchanges of communications in the internet. Resorting to such a limited judicial approach, instead of declaring the entire Section 4(c)(4) unconstitutional, does not do away the breadth of chilling effects that said penal provision creates on the exercise of freedom of speech, thereby greatly endangering the constitutional norm in pursuing the State’s primary interest in upholding the freedom of speech clause. In the Decision, the Honorable Court created a classification in determining whether Section 4(c)(4) on libel under R.A. 10175 is constitutional or not: WHEREFORE, the Court DECLARES: x xx Further, the Court DECLARES: 1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and (Underscoring supplied) The Honorable Court has explained in its Decision that: But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of print.
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The internet is characterized as encouraging a freewheeling, anything-goes writing style. In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated down the line to other internet users. (Emphasis supplied) The Honorable Court itself said it: “Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of print.” The classification made between the original author of the post and the others who simply receive the post and react to it has inadequately addressed these intricacies in internetbased communications. The Honorable Court makes this example: But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site. xxx. Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. xxx. The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression. xxx Of course, if the “Comment does not merely react to the original posting but creates an altogether new defamatory story against Armand like “He beats his wife and children,” then that should be considered an original posting published on the internet. (Emphasis supplied) But the reality in internet-based communications is not as simple as that above-quoted example. What are the investigatory,
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prosecutorial and judicial parameters or standards to determine whether one is merely reacting or altogether creating a new defamatory statement in the internet? The lines are blurred in countless instances, as in these examples: A writes a status on Facebook: “Armand is a thief!” B, A’s Facebook friend, makes a comment on A’s status: “Yes, Armand stole C’s watch. D told me.” E writes an entry on his blog: “Mayor X has 3 mistresses, according to a reliable source.” F makes a comment: “Actually, Mayor X has 5 mistresses. I know because one of them lives near our house.” G tweets on his Twitter account: “Mayor X receives money from an illegal gambling lord.” H replies to G’s tweet, also on Twitter: “Mayor X receives it every 30th at Resto’s VIP room.” In the examples given above, B, F and H are certainly merely reacting to the posts, and the subject matters in their reactions are clearly covered by the respective topics of said posts. Their reactions merely supplied some details of the posts. In the Decision, even the Honorable Court is categorically recognizing the chilling effect of Section 4(c)(4) in internet-based communications, and the failure of the legislature to consider the uniqueness and peculiarities of the internet when said penal provision was inserted into the bill that later on became R.A. 10175: The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression. (Emphasis supplied) Undoubtedly, herein petitioners and the Honorable Court cannot possibly illustrate all the scenarios arising from internet-based communications where the classification made by the Honorable
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Court does not apply or is doubtful of application. There are as many possibilities as there are countless users of the internet. In case of doubt whether only those possessing guilty minds are going to be investigated, prosecuted or punished for libel under Section 4(c)(4) and those with innocent minds are left undisturbed and not harassed or persecuted, the Honorable Court is ought to be prudent in its actions. The constitutionally-appropriate judicial conduct is to tilt the balance in favor of the overarching nature of freedom of speech against an exception (libel) to the constitutional norm, unless, in the words of the Honorable Court, “xxx the legislature crafts a cyber libel that takes into account its unique circumstances and culture.” , The Honorable Court has to strike down Section 4(c)(4) of R.A. 10175.
IV PHILIPPINE GOVERNMENT’S DUTY TO PROTECT PERSONS FROM LIBEL IS LIMITED TO CIVIL REMEDIES
The Honorable Court should consider in its decision the reality that criminal defamation suits are used to silence critics and stifle freedom of speech. As an exception to the constitutional norm of the primacy of freedom of speech, declaring that the Philippine Government’s duty in protecting persons from libel is limited only to civil remedies fully complies with the Philippine Government’s obligation under Article 19 of the International Covenant on Civil and Political Rights that the restrictions that may be imposed on the exercise of freedom of expression shall only be such as are necessary. A defamation suit, especially criminal actions, has become a classic tool in the Philippines for harassment reasons intended to silence critics. Such form of legal action is called a Strategic Lawsuit Against Public Participation or SLAPP, which has led foreign jurisdictions to enact statutes and rules against SLAPP actions. One
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of these is the California Code of Civil Procedure (California’s AntiSLAPP Law),19 which states under Section 425.16(a) thereof that:
(a) The Legislature finds and declares that there has
been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should 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 certain statutes20 and rules21 involving limited areas of concerns only. The Rules of Procedure for Environmental Cases22 defines SLAPP, in relation 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 government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue influence or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environment laws, protection of the environment or assertion of environmental rights.23 By incorporating anti-SLAPP provisions in some of our statutes and rules, our jurisdiction has recognized that the filing of an action may be abused, as done in many cases, to chill the exercise of freedom of speech. This is generally the current state of criminal defamation actions in the country. One can easily file a criminal complaint for libel before a prosecutor’s office. From that moment alone and during the preliminary investigation, the respondent slapped of libel has already sustained damage and been subjected to undue burden to undergo an onerous and burdensome process of preliminary investigation, coupled with the fear and anxiety
California Anti-SLAPP Project, <http://www.casp.net/california-anti-slappfirst-amendment-law-resources/statutes/c-c-p-section-425-16/> Accessed on March 10, 2014. 20 Republic Act No. 8749 (Clear Air Act of 1999), Section 43 and Republic Act No. 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 trial court. The intention of the complainant is generally not to win the action but to intimidate and silence the respondent or accused by burdening the latter with matters associated in legal actions (i.e., the stress, anxiety, legal costs, arrest) until the critic succumbs thereto and abandons his or her criticisms or opposition. It is in this context that criminal defamation suits constitute a chilling effect on the exercise of freedom of speech. Herein petitioners respectfully beseech the Honorable Court to view freedom of speech in the realm of international human rights, particularly with respect to the State parties’ obligations under the International Covenant on Civil and Political Rights. The Philippines ratified the Covenant on October 23, 1986 and its First Optional Protocol on August 22 1989. Article 19 of the Covenant covers the State parties’ obligation regarding the right to hold opinions and the right to freedom of expression, thus: Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by 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. (Emphasis supplied)
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In its General Comment No. 3424 on Article 19 (Freedoms of opinion and expression) of the Covenant, the United Nations Human Rights Committee, a body of independent experts that monitors the implementation of the Covenant by the State parties, has declared that: 7. The obligation to respect freedoms of opinion and expression is binding on every State party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party. (Emphasis and underscoring supplied) General Comment No. 34 constitutes as an authoritative interpretation of the freedoms of opinion and expression under Article 19 of the Covenant, and it is binding on State parties. A defamation law constitutes a restriction on the exercise of freedom of speech. It must, however, pass the ‘necessary” test to be considered a valid restriction in the realm of human rights: 33. Restrictions must be “necessary” for a legitimate purpose. x x x. 34. Restrictions must not be overbroad. The Committee observed in general comment No. 27 that “restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law.” The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. x x x. 35. When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and
102nd Session of the Human Rights Committee, Geneva, July 11-29, 2011.
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proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat. xxx 47. Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expression that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. Xxx. States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others. (Emphasis and underscoring supplied) The above-quoted portions of General Comment No. 34 clearly state that defamation laws must be crafted with care to ensure that such laws do not serve, in practice, to stifle freedom of expression, and that restrictions must be the least intrusive instrument among those which might achieve their protective function. In the performance of its duty to protect its citizens, particularly private persons, against libel, the least intrusive instrument among the defamation laws which might achieve their protective function is affording the offended party the opportunity to seek redress through civil actions or remedies, not through criminal defamation suits that, in practice in the Philippines, constitute a chilling effect on the exercise of freedom of speech. It is in this context that General Comment No. 34 states that, “States parties should consider the decriminalization of defamation.” As such, in view of the long experience of our jurisdiction in criminal defamation suits that constitute a chilling effect on the
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exercise of freedom of speech, the Honorable Court is under obligation to declare that penal defamation statutes or provisions in this jurisdiction are in violation of Article 19 of the Covenant, especially considering that the provisions of the Covenant are part of the law of the land, as provided for under Section 2, Article II of the Constitution: Article II, Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis supplied)
V CYBERSEX AND AIDING OR ABETTING AND ATTEMPT IN THE COMMISSION OF CYBERCRIME Section 4(c)(1) on cybersex Section 5 of R.A. 10175 constitutionally abhorrent. and are
The Honorable Court has downplayed the chilling effect of Section 5 of R.A. 10175 on the exercise of freedom of speech when its Decision declared that said penal provision is unconstitutional only in relation to Section 4(c)(4) on libel, Section 4(c)(3) on unsolicited commercial communications, and Section 4(c)(2) on child pornography: But the crime of aiding or abetting the commission of cybercrime under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computerrelated Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.
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The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. (Emphasis supplied) For the guidance of the Honorable Court, Section 4(c)(1) on cybersex is a “content-related offense” under R.A. 10175: SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act: xxx (c) Content-related Offenses: (1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration. (Emphasis supplied) Since Section 4(c)(1) on cybersex is an offense that punishes content – touching on expressions involving “lascivious exhibition of sexual organs or sexual activity – it involves the exercise of the freedom of expression. Whether said penal provision, however, is unconstitutional or not is another matter, but herein petitioners respectfully submit that Section 4(c)(1) is void and unconstitutional on its face. “Aiding or abetting” and “attempt” to commit cybersex under Section 4(c)(1) are precarious offenses, with law enforcement agencies having an unrestrained deal of discretion to make their own determinations as to what constitutes these offenses in relation to an overly broad and constitutionally abhorrent cybersex offense under R.A. 10175. The Honorable Court should not have accorded any weight at all to the deliberations of the Bicameral Committee of Congress that the cybersex offense does intend to penalize a “private showing xxx between and among two private persons xxx although that may be a form of obscenity to some,” and that “engaging in a business” is a necessary element to constitute this offense. Nor does the allegation of the Solicitor General that said offense “seeks to punish cyber prostitution, white slave trade and pornography for favor and consideration,” including interactive prostitution and pornography like webcam, have any value.
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Anyone who reads the plain text of Section 4(c)(1) does not see therein the deliberations of the Bicameral Committee of Congress as well as the claims of the Solicitor General. Indeed, the bare text of Section 4(c)(1) shows that any act – including works of art and theatrical and cinematic exhibitions within the province of protected speech and expression – that is a “willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration” constitutes a violation thereof. As such, in the same manner that the Honorable Court has declared Section 5 void and unconstitutional in relation to Section 4(c)(2) on child pornography, Section 5 must suffer the same fate in relation to Section 4(c)(1) on cybersex. It bears to add that Section 4(c)(1) on cybersex also punishes “indirect” acts, and, at the same time, Section 5 punishes “aiding or abetting” and “attempt” that may also be considered as “indirect” acts for purposes of committing the cybersex offense. In a situation where an alleged offender commits “aiding or abetting” or “attempt” in the commission of cybersex, and his or her act also constitutes an “indirect” act of committing cybersex, he or she is at the mercy of law enforcement agencies and the prosecution, and in danger of being punished for a higher penalty if prosecuted for such “indirect” act instead of mere “aiding or abetting” or “attempt.” Finally, cybercrimes are not ordinary offenses. They are very different from traditional crimes that are easily perceptible or discernible and committed without using modern-day technology. The vagueness of Section 5 arises from the fact that it does prescribe the punishable acts that may constitute “aiding or abetting” and “attempt.” Because of the pervasive character and peculiar nature of the cybercrimes that are punishable under R.A. 10175, a citizen is not afforded a reasonable and necessary opportunity under Section 5 to be notified of what acts are considered as “aiding or abetting” and “attempt” within the ambit of the cybercrimes under R.A. 10175. For all these reasons, the Honorable Court must strike down Section 4(c)(1) on cybersex and Section 5(a)(b) in its entirety.
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VI Section 6 of R.A. 10175, which provision punishes by one degree higher those crimes covered by the Revised Penal Code or special laws if committed with the use of information and communications technologies, is unconstitutional in all cases and for all offenses. The Majority Opinion’s treatment of the use of the “internet” and “information and communications technology” – incidentally, the two are distinct – as a qualifying circumstance, is not consistent with its own position and must be reconsidered by the Honorable Court. Both the internet and ICT devices, unlike an unfunded check or unlicensed firearm, are neutral technology whose use is even encouraged under the provisions of the Constitution. Neither the “internet” nor ICT devices are inherently evil technology. A Separate Opinion is supportive of this view. Petitioner submits that Section 6 in a wholesale manner qualified over two hundred felonies under the RPC and all offenses found in special criminal laws, thus disrupting our criminal justice system in ways that would make R.A. 10175 unconstitutional. The Majority Opinion agreed with the Solicitor General and would hold that “there exists a substantial distinction” when one uses “information and communications technology.” This “distinction”, as the opinion of the Majority goes, “creates a basis for higher penalties for cybercrimes.”25 Petitioners would like to point out that the Separate Opinion of the Honorable Chief Justice is supportive of this position.26
See p. 32, Majority Opinion (Abad, J.), 11 February 2014. See pp. 11 to 24, Concurring and Dissenting Opinion (Sereno, CJ)
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For having no substantial distinction for increasing the penalty for a whole universe of crimes, Section 6 is unconstitutional for violating equal protection and substantive due process. Section 6 provides for a one degree increase in penalty for those who commit an offense under the RPC or special laws “if committed by, through and with the use of Information and Communications Technology.” This provision is unconstitutional because it violates Sec. 1, Article III of the Constitution which states that “No one shall . . . be denied the equal protection of the laws,” a rule requiring that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Any valid classification requires: a. b. c. d. Substantial distinction which makes for real difference Germane to the purpose of the law Not limited to existing conditions only Must apply equally to all members of the same class.27
No substantial distinction exists between those who commit crimes, on one hand, through ICT or the internet, and those who use other means, on the other. Under the first prong of the equal protection doctrine, the Majority Opinion, with due respect to the Honorable Court, cannot hold that a substantial distinction exists for the purposes of making a holding that a neutral technology per se is reason alone for qualifying the universe of crimes and offenses by one degree higher. The Majority Opinion is clear in that even without the Cybercrime Law, online libel is already punishable under the RPC. The same Majority Opinion disposed of the child pornography provisions in like manner.28 Worse, the Majority Opinion, with due respect to all members of the Court en banc, held that Section 4(c)4 “merely establishes the computer system as another means of publication”29 and that Section 6 is only a “qualifying circumstance”; and that RA 10175 did not provide for a distinct penalty but only qualified libel in the RPC if committed with the use of information and
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 use of ICT is no different than the commission of libel through radio, or print or theatrical performance. They are of the same class deserving one penalty under the RPC—that of prision correccional. If the internet, TV, or radio are of the same class, then Section 6 which increased the penalty of all covered crimes – including online libel – by one degree, violates equal protection. Since it is the position of the Majority Opinion that the crime of libel, and, as a result, other RPC offenses as well, committed through the use of ICT is of the same class of crimes committed by other means under the Revised Penal Code, this is supportive of Petitioner’s view that the qualifying circumstance under Section 6 violates equal protection rights of both ICT (non-internet) users and internet users—they suffer heavier penalties for using a means of publication no different than other means of publication, which, to reiterate, are less severely punishable. There is no substantial distinction, therefore the classification set forth in Section 6 is unreasonable within 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” indispensable for the commission of an offense under RA 10175, requiring a penalty one 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 processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online. (emphasis supplied) While Section 3(g) provides: (g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media. (Emphasis supplied)
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In the crime of libel, while it is possible that an internet publication could reach one million hits, it is more likely that a publication via TV will reach millions of hits because millions of viewers do tune in to TV sets every day. Worse, because increasingly archaic devices such as fax machines form part of the definition of “ICT”. Why did the Majority Opinion invalidate the use of ICT for libel and child pornography, while it did not invalidate the same use of neutral technology for all other crimes? If increasingly archaic technology such as fax machines, or ubiquitous technology such as cell phones and daily text messages, per se require a penalty one degree higher, then the Majority Opinion will be open to an absurd postulate that Crime X through the use of fax machines (stand alone devices) is more heinous and serious than the same Crime X through broadcast television, if not the internet. What is the substantial distinction between the commission of a crime by fax machine (an ICT device but unconnected to the Internet) and a crime by broadcast media, which merits an increase in penalty for the fax user? There can be no such substantial distinction. In fact, Petitioner Colmenares, during questioning by the Honorable Court during oral argument, stated that “I would surely choose to be a victim of libel via fax, rather than victim of libel via the pervasive TV or print if I had the choice.” While it will take a minute for a libelous statement via TV to reach millions of people, it will take possibly ten years for a libelous statement via facsimile to reach 500,000 people. If the use of “ICT” under Section 6 can refer to standalone devices unhooked to the Internet, then the Majority Opinion should be reconsidered and Section 6 declared void in all cases. A corollary point is that crimes committed by the use of “ICT” as provided under Section 6 can be done through means which are stand-alone from the internet, or independent from internet channels. If this is true, then, with due respect to the Honorable Court, the Majority Opinion’s basis for ‘substantial distinction’ on the grounds of - “through the internet” - “offender often evades identification” - “able to reach far more victims or cause greater harm”30
p. 32, Majority Opinion.
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are not relevant for such stand-alone devices (non-Internet ICT devices) whose use are still covered by R.A. 10175. While fax machines is Petitioner’s key example, other stand-alone non-Internet ICT devices include BlueTooth®, and practically all forms of intranet connections. Section 6 does not apply to all members of its class. Under Section 6, one who commits an offense under a special law using a computer (ICT device) shall suffer a penalty of one degree higher than that imposed under the Penal Code or special law. 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 to commit an offense therein, because the use of a computer or the internet is already factored in the penalty imposed under the ECommerce Act.32 On the other hand, another person who similarly resorts to an ICT device but violates another special law, where the use of ICT is not an element, will suffer an increase in penalty. The penalty increase mandated by the law will apply only, if by chance, to one who is prosecuted under a special law which does not happen to consider the use of an ICT device as an element of the crime in that special law. Worse, under the Data Privacy Act,33 certain offenses, such as that found in Sec. 29,34 which names the use of a computer system as an element of the offense, will not merit the increased penalty
Republic Act No. 8792. Section 33(b) of the e-Commerce Act provides: “Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recording or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years . . .” (emphasis supplied) 33 R.A. 10173. 34 SEC. 29. Unauthorized Access or Intentional Breach. – The penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored. (emphasis supplied)
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under Section 6 of RA 10175, yet another who uses a computer in violating Sec. 32 of the very same Data Privacy Act which does not contain the use of a computer as an element of the offense, will merit an increase in penalty.35 Why should one offender suffer a penalty heavier than the other when both of them used a computer system to commit the offense under RA 10175? Because RA 10175 will lead prosecutors, judges and triers of fact to different propositions for the same class of ICT users, then Section 6 is void for violating equal protection. Raising penalties by “one degree” under Section 6 may not be possible for special laws which do not follow the RPC scale of penalties; thus Section 6 cannot apply equally to all members of the class of ICT users. But the more important question Petitioners would wish to raise is, What is an increase of “one degree” under our system of special laws referred to in Section 6? Special laws do not generally have a scale of penalties like the Revised Penal Code. Unless a special law follows the scale of penalties under the RPC, there is no way for a judge or trier of fact to increase the penalty of an offender charged under Section 6. So while an ICT user will receive a higher degree of penalty if by chance he was charged under a special law which uses the RPC’s scale of penalties, another similarly situated internet or ICT user will not get an additional penalty if the special law under which he was charged does not contain the RPC’s scale of penalties. Section 6 will not apply equally, therefore, to all the members of the class of ICT users. It must be stressed that the proviso found in Section 6, “Provided, That the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code and special laws” was not contained in the bills approved on third reading by both the
SEC. 32. Unauthorized Disclosure. – (a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).
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Senate and the House, but was a proviso merely inserted during the Bicameral Conference. The absurdities in the operation of the criminal justice system introduced by R.A. 10175 which Petitioners do raise, are the very absurdities introduced by that Section 6 proviso, read with Section 7, of RA 10175. That Section 6 proviso, penal at that, did not go through the constitutionally required procedure for a bill to become a law, which procedure consists of three readings, with periods of interpellation and amendments, committee hearings, and consultations with stakeholders. If only for this, this Honorable Court must strike down Section 6 without qualification. It is also high 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 parliamentary supremacy) and proscribe the insertion of a provision, especially if it is a penal provision, in bicameral conferences under judicially discernible and manageable standards. Bicameral committee insertions are justiciable questions. Petitioner shall make a case for a review of Tolentino, below, following Petitioner’s discussion of Sections 6 and 7. Section 6 violates substantive due process, because nowhere in the law’s Declaration of Policy can an explanation be found to justify the heinousness or perversity of the use of ICT, a neutral technology, in a manner that would have justified an increase in penalty for a whole universe of extant crimes. Petitioners asserts that Section 6 also violates substantive due process because: (a) it does not address a legitimate end or purpose; (b) the means used is not reasonable; and (c) there is no reasonable connection between the means and the end. What policy or purpose is being implemented by Section 6 that requires an increase of penalty? The Cybercrime Prevention Act sets forth the following declaration of policy: Section 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce,
G.R. No. 115455, August 25, 1994. See also Tolentino v. Secretary of Finance, G.R. No. 115455, October 30, 1995.
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and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such 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. (emphasis supplied) While the policy declared by RA 10175 aims to “safeguard the free and easy access of the internet” by penalizing their abuse, nowhere in the policy can an explanation be found to justify the heinousness or perversity of the misuse of neutral technology under “ICT” in a manner that would have justified an increase in penalty. The problem previously raised by lawmakers in Congress was that ‘cybercrimes’ are not penalized under existing law. But Section 6 went out of bounds because it not only penalized a supposed cybercrime but even raised the penalty for the entire corpus of existing crimes, if committed through “ICT”—which, according to the SolGen, is “ubiquitous”—by one degree. What public interest is being served by such an increase? Is the increase reasonably necessary to accomplish decency, morality and civility? A one degree increase in penalty just to maintain “minimum” standards of “civility”, “morality”, and “decency” is not only an unreasonable policy basis for such drastic means, but the increase already touches dangerously not only on free speech but all other fundamental rights as well. Section 6 violates substantive due process for being an arbitrary and unreasonable imposition that increases to twelve (12) years the penalty of a felony which, if committed by
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other similar means, is punishable by a mere six (6) years. ICT use is legitimate and encouraged. But its abuse does not make a crime worse. Further, why should R.A. 10175 take on the universe of all crimes in the RPC and special laws? Conceivably, every crime in the RPC can be connected to an ICT device, from printers to mobile phones to fax machines, even if the ICT device were unconnected to the internet. ICT is a technology designed to facilitate transactions. Thus, through R.A. 10175, even where the connection between the means and whatever ends the statute purports to accomplish is tenuous, the one degree higher penalty will have 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 a government agency came into custody of secret and highly classified documents proving that certain public officials are responsible for extra judicial killings going on in the country, and if these three individuals wish to condemn and publicly expose the same, they will likely face a risk of being prosecuted under the crime of Revelation of Secrets under Article 229 of the RPC. This notwithstanding, the three advocates agreed to immediately and publicly reveal the classified documents, with Advocate A publishing the secret document through a large and popular TV station, Advocate B through a national newspaper, while Advocate C revealed the secret documents by emailing these to a thousand of his friends. While the revelation of secrets through print and TV will merit the penalty of prision correccional under the RPC, the advocate who revealed via email will receive the higher penalty of prision mayor. This is despite the Majority Opinion’s holding that the internet is but another means of publication no different from the others. What policy or purpose is being achieved by penalizing the qualified offense of “E-revelation of secrets” by one degree higher than simple revelation of secrets via TV? What serious impact results from the use of a fax machine or even a text message through the cell phone, or even through the internet, which makes the act so heinous and which substantially differentiates it from TV, print or other devices? Additionally, because it violates equal protection, Section 6 therefore also violates substantive due process for being an arbitrary
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and unreasonable imposition that increases to 12 years the penalty of a felony which, if committed by other similar means, is punishable by a mere six years. VII SECTION 7, A RELATED SECTION, WHICH PROVIDES THAT A PROSECUTION UNDER THE ACT SHALL BE WITHOUT PREJUDICE TO ANY LIABILITY UNDER THE REVISED PENAL CODE OR SPECIAL LAWS, IS UNCONSTITUTIONAL IN ALL CASES AND FOR ALL OFFENSES.
Section 7, inextricably related to Section 6, is constitutionally infirm, because it allows, if not requires, what the Constitution prohibits. If one can conclude that Section 6 is constitutionally infirm, Section 7 erases any doubt that there are constitutionally fatal defects in the prosecution and penalties of RA 10175 in its entirety. It is Petitioner’s submission that Section 7 is unconstitutional for all cases and in all offenses, whereas the Majority Opinion only held that Section 7 is void for purposes of online libel (Section 4(c)4) and child pornography (Section 4(c)2).37 Petitioners challenge the constitutionality of Section 7, which allows for another prosecution under the Revised Penal Code of any of the offenses already prosecuted as a qualified offense under Section 6, on the ground that it violates equal protection, substantive due process, and the right of a person to be free from being prosecuted twice for the same offense under Section 21, Article III of the Constitution. The Majority Opinion did hold that e-Libel and e-Child Pornography, applied through Section 7, will violate the proscription against double jeopardy. Indeed both crimes are not new crimes, as the Majority so holds.
See Dispositive portion of the Majority Opinion, pp. 48-49.
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So much for Libel and Child Pornography. But does the same rationale, and therefore the same disposition, hold true with crimes other than Libel and Child Pornography? By way of example, the offense of Revelation of Secrets under Art. 229 of the RPC provides: Art. 229. Revelation of Secrets by an officer—Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers of which he may be have charged and which should not be publishes, shall suffer the penalty of prision correccional in its medium and maximum periods, . . . . If a public official reveals classified documents through the internet, he is charged under Art 229 qualified by Sec. 6 as “qualified e-revelation of secrets” and will be penalized with prision mayor. However, under Section 7, the prosecutor is required to charge him again with “simple revelation of secrets” which is again penalized but this time with the original penalty of prision correccional. The application of Section 6 and Section 7 will require the prosecutor to proceed with charges which are both governed by the RPC. This goes for all cases aside from libel and child pornography. Thus, Petitioners assert that Section 7, in relation to Section 6, is unconstitutional because it constitutes a direct violation of the text of Art. III, Section 21 of the Constitution, for allowing, if not mandating, precisely that which the Constitution prohibits. If one were to go by the reasoning and position of the Majority Opinion, then all other criminal statutes which penalize the same act, with the same elements, under the same code or under both the RPC and special penal laws, should likewise be invalidated. Clearly, the accused is prosecuted twice for the same offense for committing the same act, with the same elements. This is a direct violation of the text of Section 21, Art. III of the Constitution which requires 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. While the Constitution prohibits putting a person twice in jeopardy of punishment for the same offense, RA 10175 allows, if not orders, the prosecutorial system to place a person twice in jeopardy of punishment for the same offense. Because RA 10175
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through Section 7 allows what the Constitution prohibits, Section 7 is unconstitutional for directly violating the Constitution. If Section 7 orders what the Constitution prohibits, then the Honorable Court cannot wait for an actual case where an accused must first be charged, arraigned, convicted, and then undergo the entire appellate process to overcome a wrongful conviction handed down by a wrongful statute for the ultimate purpose of raising a constitutional challenge against the very law under which he was tried. A pre-enforcement facial challenge can be made against Sections 6 and 7 at this stage. The dangers brought about by Sections 6 and 7 are immediately apparent, and one ought not to wait for an actual case and an actual trial to proceed – which can number in the thousands – before such a constitutional question can be raised via certiorari before the Honorable Court. In fact there can be no guarantee that double jeopardy—if one’s counsel indeed happens to raise it as a procedural defense—can be raised at all at the trial level. In like manner there can be no guarantee that a constitutional challenge, if at all fielded precisely on that ground, can be brought to the Supreme Court in due time. Thus if any court, including the Honorable Court, were to pass upon the constitutionality of Section 7 in relation to Section 6, then the instant case is propitious. Section 7 also violates equal protection and substantive due process for causing absurdity. In the felony of “E-Revelation of Secrets” for example, while Advocate A and B who revealed classified documents via TV and print are prosecuted once under Art. 229 for revelation of secrets, Advocate C is not only prosecuted for “qualified revelation of secrets” under Art. 229 as required under Section 6, but also prosecuted under Article 7 which requires that he be prosecuted for simple revelation of secrets under the same Art. 229. Worse, while the maximum imposable penalty for Advocates A and B is six years’
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imprisonment, Advocate C will get a maximum penalty of 12 years as a result of being prosecuted for the same act, for the same offense, under the same article, and in the same Revised Penal Code. The situation becomes more absurd if Advocate C reveals the classified documents via fax, in which case he will be prosecuted and penalized twice for using an outmoded technology. It ought to be noted that the elements of the offense of revelation of secrets are the same in both prosecutions—the elements of a public official, custody of documents classified as secret or confidential, and publication or revelation. Section 7 under RA 10175 is a violation of the equal protection rights of internet and/or ICT users, because under this law one who commits an offense using an ICT device will be prosecuted twice while those who use a different device or medium are only prosecuted once, when in fact there is no substantial distinction among them. This absurdity is more pronounced if the accused used a fax machine, considering that there is no substantial distinction between, for example, libel or revelation of secrets through ICT and those who use other means to publish the defamatory statement or reveal classified information. This in turn violates substantive due process considering that triggering another prosecution and imposing another penalty will be unreasonable and oppressive to internet and/or ICT users. The internet, unlike an unfunded cheque or unlicensed firearm, is not a proscribed or evil technology per se, but a neutral technology that has to be encouraged. It is not an inherently evil technology. In fact, the Constitution provides in Section 24, Article II: “The State recognizes the 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 for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country’s productive systems and national life. Section 2 of R.A. 10175 (Declaration of Policy) provides: Sec. 2. Declaration of Policy. The State recognizes the vital role of information and communications industries such as content production,
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telecommunications, broadcasting, electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access 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 the very Policy Declaration of the Cybercrime Law itself. Petitioners submits that there is a dissonance between means and ends under R.A. 10175 within the meaning of substantive due process. A violator shall be prosecuted twice as Section 7 requires, considering that the elements required to prove the qualified offense under Section 6 are practically and actually the same 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 of punishment for the same offense”. Under the Cybercrime Prevention Act, the prosecution of an offender using ICT under both Sections 6 and 7 for the commission of the same act and offense is not a mere possibility, but a certainty, because the law declares it so. A violator, under the Cybercrime Law, shall be prosecuted twice as Section 7 requires, considering that the elements required to prove the qualified offense under Section 6 are practically and actually the same under Section 7. It is as if one is prosecuted twice for qualified rape and simple rape under the Revised Penal Code in relation to RA 8353 and penalized twice for the same act and the same elements in the same offense. Under Section 6 and Section 7, one who commits an offense under a special law using a computer (ICT device) shall suffer a penalty of one degree higher than that imposed under the Penal Code or special law. However, one who violates the E-Commerce Act,38 a special law, will not suffer an increase in penalty even if he uses a computer to commit an offense therein, because the use of a computer or the internet is already factored in the penalty imposed
Republic Act No. 8792.
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under the E-Commerce Act.39 On the other hand, another person who similarly resorts to an ICT device but violates another special law, where the use of ICT is not an element, will suffer an increase in penalty. The penalty increase mandated by the law will apply only, if by chance, to one who is prosecuted under a special law which does not happen to consider the use of an ICT device as an element of the crime in that special law. Under the Data Privacy Act,40 certain offenses, such as that found in Sec. 29,41 which names the use of a computer system as an element of the offense, will not merit the increased penalty under Section 6, through the application of Section 7, yet another who uses a computer in violating Sec. 32 of the very same Data Privacy Act which does not contain the use of a computer as an element of the offense, will merit an increase in penalty.42 “Information and Communications Technologies” under Section 6, read with Section 7, is a term undefined under R.A. 10175 and is therefore void for being vague within the meaning of substantive due process.
Section 33(b) of the e-Commerce Act provides: “Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recording or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years . . .” (emphasis supplied) 40 R.A. 10173. 41 SEC. 29. Unauthorized Access or Intentional Breach. – The penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored. (emphasis supplied) 42 SEC. 32. Unauthorized Disclosure. – (a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).
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A note that needs stressing, if only to show how badly crafted and constitutionally infirm RA 10175 is. While the entire law speaks of cyberspace, computer crimes and cyber offenses obviously referring to the “Internet,” Section 6 and, as a result, Section 7, suddenly insert the broad field of Information and Communications Technologies (ICT), which includes telephone systems and the old technology of fax machines. “Information and Communications Technologies” is not defined under the law. While definitions of “ICT” can strike one as straightforward or similar across the board through any easy online search, they do open up the question of vagueness,43 since a trier of fact would have to turn to a moving empirical definition outside the face of the statute. If this is true, then the greater the need then for the CyberCrime Prevention Act to make a clear and manageable statutory definition for “ICT”, especially if prosecutors were to resort to “ICT”, as a means for an offense, in framing the Information. In what follows, Petitioners suggests some distinctions and nuances in ongoing attempts to define “ICT,” which is a moving definition depending on time, place, supplier or service provider, audience, user, and regulator: Software vs. hardware. Applications vs. systems. For example: ICT most often refers to the unified system of linking up telecommunications (phones, radios) and computer systems, but it could also include software and applications associated with ICT hardware (VOIP, instant messaging, etc.). Understandings of ICT differ across professions. One might argue 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-à-vis a systems administrator (Cisco).
See Southern Hemisphere Engagement Network, Inc., vs. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010. Here the Court held:
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and 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.
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ICT as catch-all. A reading of the statute gives the impression that the proponent of the proviso – whoever it was – wanted to use “ICT” as an umbrella term encompassing all levels of ICT systems. This is constitutionally impermissible for criminal statutes if one were to consider substantive due process (due notice to the public), ex post facto doctrine, and specificity of crimes; a narrow definition of ICT ought to have been in place, especially for purposes of Section 6, since Section 6 assigns criminality to a universe of putative offenses and because the empirical definition of “ICT” depends on time and place. In fact the Bicameral Conference Minutes affirm this, and yet proceeded to pass the law even with these sweeping dangers in mind.44 The absurdity which Section 6 introduces throws the entire criminal system into chaos. This is because Section 6 was never the subject of a thorough deliberation or consultation and, in fact the “one degree higher” proviso cannot be found either on the House Bill and the Senate Bill passed on third reading. The Section 6 proviso was merely inserted by the Bicameral Conference Committee. The same can be said for the “one degree higher” provisos found under Section 4(c)(2) on child pornography, and Section 8 of the law. The Majority Opinion was silent on Petitioner’s argument about the allowable boundaries of Bicameral Conference Committee actions. This Petitioner asserts that it is high time for the Honorable Court to recalibrate the boundaries for impermissible if not unconstitutional acts of an unaccountable amorphous ad hoc body called the Bicameral Conference Committee whenever a challenge is raised that the body inserted provisions not found in either the Senate or House versions, especially if those provisions, as in this case, are in fact beyond what was contemplated by the policy, intent, spirit and substance of bills passed by both Houses of Congress after three readings. Unilateral insertions are unconstitutional acts which trample upon the spirit and intent of Section 26, Art. VI of the Constitution, which requires extended congressional deliberative scrutiny in passing a statute, viz: “No bill passed by either House shall become a law unless it has passed three readings on separate days xxx Upon the last reading of a bill, no amendment thereto shall be allowed xxx”. The insertion of the “one degree higher” penal provision of Section 6 never passed through three readings, committee hearings, and stakeholder participation, and yet the bicameral committee’s insertions increase the penalties and qualify a
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 and Special Laws. VIII THE INSERTIONS OF THE BICAMERAL CONFERENCE COMMITTEE, ESPECIALLY THOSE PROVISIONS WHICH INCREASED PENAL SANCTIONS AND CREATED WHOLE CLASSES OF CRIMES AFFECTING FUNDAMENTAL RIGHTS, THAT ARE FOUND NEITHER IN THE SENATE VERSION (SBN-2796) NOR IN THE HOUSE VERSION (HBN-5808) BUT ARE FOUND IN R.A. 10175, ARE UNCONSTITUTIONAL. THIS IS AN HISTORIC OPPORTUNITY FOR THIS HONORABLE COURT TO PROSCRIBE THE ABHORENT PRACTICE OF BICAMERAL INSERTIONS.
It is high time that the “enrolled bill doctrine” so far depicted under Tolentino vs. Secretary of Finance ought to be reviewed, if not qualified, by the Honorable Court, to prevent recurring structural constitutional violations at the bicameral committee level. Should the Honorable Court make the constitutional choice to review Tolentino elsewhere, Petitioner respectfully submits that the CyberCrime Prevention Act still fails under judicially determinable standards set forth in Abakada Guro Party List v. Ermita. It is about time, Petitioner respectfully submits, that this Honorable Court en banc review Tolentino vs. Secretary of Finance45 and modify our enrolled bill doctrine so far as that rule is depicted under the Tolentino Court to check recurring abuses at the bicameral
235 SCRA 630 (1994).
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level, especially in the instant case where Respondents practically admit the assertion of Petitioners that Section 6 was merely inserted during the Bicameral Conference, and when Respondents did not deny but merely, if not lamely claimed as a negative pregnant answer that this Honorable Court is precluded from considering this issue because of the “enrolled bill doctrine”46 so far couched under Tolentino. While the constitutional and congressional procedures for lawmaking require a first reading, a second reading, a series of committee hearings to consult stakeholders, periods of amendments and interpellation to allow Congress at the plenary level to deliberate on a bill, and a third reading with yeas and nays entered into the Journal if only to ensure rigorous consultation and congressional scrutiny, “bicameral insertions” bypass these procedures and effectively allow one or a handful of legislators to pass substantive legislative provisions, if not revamp an entire criminal code, through mere insertions that do not rise to the level of a “bill” required to be catalogued for deliberation at either House of Congress. At the very least, the Court en banc should strike down insertions which criminalize certain acts or inserted provisions which are penal in nature, because penal laws decisively require substantive and serious adherence to congressional procedure of consultation and deliberation under our system of checks and balances. Considering that there is no requirement for deliberation, amendment, or interpellation over the Bicameral Committee Report save for a viva voce yeas/ayes and nays for “ratification”, no Senator or Congressman should be given the opportunity, on the ground that there had been a perfunctory post-third-reading fiat, to endanger the liberty of the people through nontransparent unilateral insertions in bicameral conferences. At any rate, if the Court en banc makes the constitutional choice to reserve a review of Tolentino elsewhere, Petitioner submits that the CyberCrime Prevention Act still fails under Abakada Guro Party List v. Ermita.47 The Rules of both Houses which are relevant to the bicameral conference committee provide:
See pp. 100-101 of Respondents’ Comment. G.R. No. 168056, September 1, 2005, 469 SCRA 1. Available http://sc.judiciary.gov.ph/jurisprudence/2005/sep2005/168056.htm
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Rules of the House RULE X: Bills, Resolutions, Messages, Memorials and Petitions Section 61. Conference Committee. – In cases where the House does not agree with the Senate on any amendment to any House bill or joint resolution, or where the Senate has approved a similar bill to a Houseapproved bill, and these measures have conflicting provisions, differences may be settled by conference committees composed of representatives from both chambers. In resolving the differences between the two measures with the Senate, the House panel shall, as much as possible, adhere to and support the House bill. If the differences with the Senate bill are so substantial that they materially impair the House bill, the panel shall report such fact to the House for the latter’s appropriate action. The Speaker shall appoint the Members of the House panel in a conference committee whose names shall be manifested in open session and entered in the Journal: Provided, That the chairperson of the committee that endorsed the approval of the bill that is subject to conference committee action and the principal author(s) thereof shall be members of the House panel; and Provided, further, That equitable representation of the Majority and the Minority in the panel shall be ensured. Section 62. Conference Committee Reports. The conference committee shall finalize a report within sixty (60) session days from the date of its organization. Otherwise, the Members of the House panel shall submit a report to the House explaining why the conference committee is unable to prepare a report. A conference committee report shall be signed by the majority of the conferees on the last page and every page thereof. The report shall contain a clear and detailed statement of the changes in or amendments to the subject measures. Copies of the original measures approved by the House and the Senate shall be attached to the report. The report shall be transmitted to the Secretary General together with an electronic copy thereof.
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The consideration of conference committee reports shall always be in order, except when the Journal is being read, while the roll is being called, or the House is dividing on any question. The consideration of such report shall not be in order unless copies thereof are distributed to the Members: Provided, That in the last fifteen (15) days of each session period, it shall be deemed sufficient that three (3) copies of the report, signed as above provided, are, together with an electronic copy thereof, deposited in the office of the Secretary General. A conference committee report shall be ratified by a majority vote of the Members of the House present, there being a quorum. Section 63. Enrolling Bills. – The Speaker shall order the enrollment of approved bills within three (3) days after final approval by both Houses. The Bills and Index Service and the secretariat of the committee(s) that recommended the approval of the bill shall ensure that the bill is in the form and contains the provisions approved by both Houses. The enrolled bill shall be signed within five (5) working days by the Speaker and the Secretary General. The Secretary General shall report to the House the time of presentation of the bill to the President and the record thereof shall be entered in the Journal. Upon the lapse of thirty (30) days from receipt of the bill by the Office of the President, and no communication of a veto made thereon by the President is received by the House within the same period, the Secretary General shall certify to this fact which shall be recorded in the Journal. Rules of the Senate RULE XII: Reports Of Conference Committees SEC. 35. In the event that the Senate does not agree with the House of Representatives on the provision of any bill or joint resolution, the differences shall be
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settled by a conference committee of both Houses which shall meet within ten (10) days after their composition. The President shall designate the members of the Senate panel in the conference committee with the approval of the Senate. Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the changes in, or amendments to the subject measure, and shall be signed by a majority of the members of each House panel, voting separately. A comparative presentation of the conflicting House and Senate provisions and a reconciled version thereof with the explanatory statement of the conference committee shall be attached to the report. The consideration of such report shall not be in order unless the report has been filed with the Secretary of the Senate and copies thereof have been distributed to the Members. The presentation of reports of conference committees shall always be in order when available, except when the Journal is being read or a question of order or a motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum; and when received, the question of proceeding to the consideration of the report shall be determined without debate. In the case of Abakada Guro Party List v. Ermita,48 which is perhaps the leading case today on questions over the workings of the bicameral conference committee, the Honorable Supreme Court, , held that: Under the provisions of both the Rules of the House of Representatives and Senate Rules, the Bicameral Conference Committee is mandated to settle the differences between the disagreeing provisions in the House bill and the Senate bill. The term “settle” is synonymous to “reconcile” and “harmonize.” To reconcile
G.R. No. 168056, September 1, 2005, 469 SCRA 1. Available http://sc.judiciary.gov.ph/jurisprudence/2005/sep2005/168056.htm
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or harmonize disagreeing provisions, the Bicameral Conference Committee may then (a) adopt the specific provisions of either the House bill or Senate bill, (b) decide that neither provisions in the House bill or the provisions in the Senate bill would be carried into the final form of the bill, and/or (c) try to arrive at a compromise between the disagreeing provisions.49 (emphasis supplied) The foregoing holding is dispositive over what Petitioner submits to be constitutionally impermissible insertions made by the Bicameral Conference Committee when it acted upon SBN-2796 and HBN-5808. The operative phrases in Abakada are “settling” or “compromising” “disagreeing” “specific provisions” between the House version and the Senate version. Abakada posits three outcomes, as stated above: (i) adopt one version or the other, (ii) decide that neither ought to go to the final draft bound for enrollment, or (ii) arrive at a “compromise” between two polar opposites. It is Petitioner’s submission that Abakada’s parameters presuppose: (A)A confined debate over disagreeing provisions under a preexisting continuum set forth by the three-reading-rule, where the outer bounds of a debated norm are fixed and where the proposals on the table are polar opposites from both Houses; (B)If a compromise is arrived at, the Bicameral Committee, ought to give its reasons for the compromise or set of compromises in the form of an “explicit statement”, “explanatory statement”, or a “clear and detailed statement of the changes in or amendments to the subject measures” in a “Conference Committee Report.”50 (C)All compromises ought to be “germane to the purpose of the subject”51 of the debated provision or provisions and should “not inject any idea or intent that is wholly foreign to the subject embraced by the original provisions.”52 With respect to (C), or the test of germaneness, this particular reading of Abakada requires the bicameral committee to stay within the deliberative space carved out by both Houses of Congress post
469 SCRA 1, 102 Taken from the aforequoted Senate and House Rules. 51 See Abakada v. Guro Party List v. Ermita, 469 SCRA 1, 103-104 (2005) (“Thus, all the changes or modifications made by the Bicameral Conference Committee were germane to subjects of the provisions referred to it for reconciliation.”) 52 Id. at 102.
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third reading. The agents of either House cannot step out of that deliberative space which, as Petitioner wishes to emphasize, is a product of three readings strictly required by Section 26(2), Art. VI of the Constitution (“three-reading rule”). If bicameral conference committees, usually composed of negotiating panels of legislators from both Houses of Congress, stray out of predetermined policy boundaries – the outcome of three readings – then any insertion or new matter introduced by the committee ought to be strictly construed by the courts under the grave abuse clause of Section 1, Art. VIII, read in light of ultra vires and public agency principles. If courts choose to take a path of near-absolute judicial deference to bicameral committee action, then bicameral committees will functionally act, if not in name, as the anecdotal “third Houses.” In fact, the Abakada Court looked upon the bicameral conference committee as a standalone branch or instrumentality of government within the meaning of Section 1, Article VIII, when it held that “all the changes or modifications made by the Bicameral Conference Committee were germane to subjects of the provisions referred to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee.”53 (emphasis supplied) The changes and insertions of the Bicameral Conference Committee being challenged by Petitioner, - “Provided, That the penalty to be imposed shall be one degree higher than that provided for in Republic Act No. 9775.” (referring to the Anti-Child Pornography Act of 2009) - “Provided, That the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code and special laws.” (Section 6) - “Provided, That the penalty to be imposed shall be one degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.” do not meet the aforequoted tests in Abakada and are ultra vires acts which rise to the level of unconstitutionality. Deploying Abakada, the foregoing provisions do not “(a) adopt the specific provisions of either the House bill or Senate bill,” nor did the bicameral committee “(b) decide that neither provisions in the House bill or the provisions in the Senate bill would be carried into the final form of the
Id. at 103-104.
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bill,” nor yet did the bicameral committee “(c) try to arrive at a compromise between the disagreeing provisions”. All the insertions to which Petitioner refers, are those raising, if not creating, penal sanctions by “one degree higher” for the corpus of criminal law found in the Revised Penal Code or Special Laws. In effect, it was the Bicameral Conference Committee alone which raised by one degree the penalties for a whole universe of crimes in the Philippine criminal justice system. The question of raising (or lowering) the severity of a penalty was never introduced by either legislative chamber and cannot be located in any bill or debate whose parameters ought to be reasonably confined to a conceptual continuum within the meaning of Abakada.54 By inserting such provisions, the bicameral committee strayed out of constitutionally permissible boundaries of what ought to be a confined debate according to judicially determinable standards set forth by the Abakada Court. The aforequoted insertions, most especially the penal provisions, are an outcome of unbridled and unconstrained unilateral action on the part of the bicameral committee done beyond pre-existing standards set by the three reading rule, for allowable policy consensus post three readings. In this case, there were no “disagreeing provisions” to begin with, because ‘disagreement’ presupposes the existence of competing proposals which are polar opposites fielded by both Houses post third reading. The requirement to stay within the bounds of a rationally constrained continuum is a requirement of Abakada, which states that resulting compromises must be “germane to the purpose of the subject”. Raising by “one degree” the penal provisions referred above are not “germane to the purpose of the subject” put to the table, because, in fact, there had been no such “subject” raised by any House. The hypothetical “subject” here refers to whether heftier penal provisions should be crafted which are specific to the “Anti-Child Pornography Act of 2009”, the “Revised Penal Code, or “Special Laws”, or, for that matter, whether it was the real will of either House of Congress, post third reading, to raise by “one degree” the entire universe of substantive criminal law if committed through the use of “information and communications technologies,” an idea never conceived nor introduced by either House, nor was that “subject” even suggested in the text of SBN-2796 and HBN-5808.
Petitioner is not prepared to put in issue whether the insertion which states “(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; . . .”, referring to the offense of “Unsolicited Commercial Communications” meets the constitutional parameters of Abakada.
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In fact, the Abakada Court chose to look behind the enrolled bill in that case and effectively treated the enrolled bill rule as a disputable presumption and not a conclusive presumption of the constitutionality of a law’s due enactment: “Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of the bicameral conference committees, the Court deems it necessary to dwell on the issue. The Court observes that there was a necessity for a conference committee because a comparison of the provisions of House Bill Nos. 3555 and 3705 on one hand, and Senate Bill No. 1950 on the other, reveals that there were indeed disagreements.”55 The Court then flagged the points of disagreement between the House and Senate versions as follows: (1) what rate of VAT is to be imposed; (2) whether only the VAT imposed on electricity generation, transmission and distribution companies should not be passed on to consumers, as proposed in the Senate bill, or both the VAT imposed on electricity generation, transmission and distribution companies and the VAT imposed on sale of petroleum products should not be passed on to consumers, as proposed in the House bill; (3) in what manner input tax credits should be limited; and (4) and whether the NIRC provisions on corporate income taxes, percentage, franchise and excise taxes should be amended. With respect to (1), the Court noted that the bicameral conference committee report bridged the gap between the 10% VAT rate proposed by the Senate, on one end of the continuum, and the 12% rate proposed by the House. With respect to (2), the Court noted that the bicameral conference committee chose to settle the disagreement by deleting the “no pass-on” provision. With respect to (3), the Court noted that the committee adopted the position of the House but crafted its own language as to the amount of the limitation on input tax credits and their computation. With respect to (4), the Court noted that the committee adopted the Senate version. Abakada thus sets forth judicially manageable standards, within the meaning of Baker v. Carr56 supportive of the exercise of judicial review over bicameral conference committee actions and insertions, as follows: (i) adopt one version or the other, (ii)
Abakada, 469 SCRA 1, at 97. Baker v. Carr, 369 U.S. 186 (1962).
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decide that neither ought to go to the final draft, or (ii) arrive at a “compromise” between two polar opposites. The CyberCrime Prevention Act fails under the standards of Abakada. But in the Bicameral Conference Committee Report leading to the final text of the Cybercrime Prevention Act, there was no proposal to raise penalty provisions by one, two, or three degrees, or to lower penalties. Even then, any proposal of this kind would presuppose a nexus between the penalty in question and the particular crime or crimes put to the table, but certainly not a universe of crimes now qualified as “cybercrimes.” If only to stress the point, Petitioner restates the changes and insertions of the bicameral committee:
PROVISION Sec. 4. Cybercrime Offenses (c) Content-related Offenses (2) Child Pornography DESCRIPTION OF CHANGES AND INSERTIONS The following proviso was added after the word “system”: “Provided, That the penalty to be imposed shall be one degree higher than that provided for in Republic Act No. 9775.” The following subparagraph (ii) was added: “(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or” The proviso “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.” was separated into a new Section 6, and the following proviso was added: “Provided, That the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code and special laws.” The following proviso was added after the phrase, “Anti-Child Pornography Act of 2009”:
Sec. 4. Cybercrime Offenses (c) Content-related Offenses (3) Unsolicited Commercial Communications
Sec. 8. Penalties
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“Provided, That the penalty to be imposed shall be one degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.”
The foregoing insertions were unilaterally made and cannot be found in any continuum of polar opposites, with a House proposal at one end of the spectrum, and the Senate version, at the other end. There had been no contesting polarity that could place the bicameral committee in an engagement of quid pro quo between a House bill and a Senate bill. Instead, penal provisions were inserted “qualifying” or otherwise aggravating a universe of crimes. To quote Abakada, “In the present case, the changes introduced by the Bicameral Conference Committee on disagreeing provisions were meant only to reconcile and harmonize the disagreeing provisions for it did not inject any idea or intent that is wholly foreign to the subject embraced by the original provisions.”57 The insertions in the instant case will not pass muster under Abakada, because they are injections of ideas “wholly foreign to the subject embraced by the original provisions. In fact, the Abakada Court inquired into the records, transcripts, and journals of the proceedings when it held: “The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the Bicameral Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate Panel, explained the reason for deleting the no pass-on provision in this wise ...“ Abakada then held, “Thus, all the changes or modifications made by the Bicameral Conference Committee were germane to subjects of the provisions referred to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee.” Bicameral conference committees, borrowing from Fr. Joaquin G. Bernas, are “extra-constitutional creation[s] of Congress”58 composed of agents normally appointed by the Speaker of the House
Abakada, 469 SCRA 1, at 102. JOAQUIN G. BERNAS, S.J., THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 262 (2011). See also Abakada v. Ermita, 469 SCRA 1, 94 (2005) (“The creation of such conference committee was apparently in response to a problem, not addressed by any constitutional provision, where the two houses of Congress find themselves in disagreement over changes or amendments introduced by the other house in a legislative bill.”) (emphasis supplied).
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and the Senate President under the Rules of both Houses. These agents are charged with the strict mandate and narrow authority to resolve sundry differences which may arise from a comparison of two legislative measures arising after three readings. Because bicameral conference committees are extra-constitutional bodies created to meet the exigency and necessity to bridge policy gaps in a bicameral system of lawmaking after three readings, the speaking authority with which the Speaker or Senate President endows them ought to be strictly construed by the courts. It is expected of the panel of agents of both Houses to advocate the position of their respective House and shall, by way of illustration and in the words of the House Rules “as much as possible, adhere to and support the House bill. If the differences with the Senate bill are so substantial that they materially impair the House bill, the panel shall report such fact to the House for the latter’s appropriate action.”59 Despite bicameral committees being clearly ‘extraconstitutional’ creations, the Honorable Court in prior cases made strong associations of bicameral conference committees with “coequal branches,” thus it would not be unexpected that a court would accord great judicial deference to questions concerning the enforcement of internal rules of either House of Congress,60 or the manner in which either chamber conducts the business of passing legislation61 which courts apparently tend to routinely consider as internal matters. In short, the Court in prior cases would hold Congress accountable to putatively impermissible acts of its own creature, the bicameral committee. Discussions in case law implicate judicial hesitation, if not constitutional avoidance, of “internal acts” of Congress. Strong judicial deference can especially be the outcome when “the issue [raised] is not whether provisions of the rules of both houses creating the bicameral conference committee are unconstitutional, but whether the bicameral conference committee has strictly complied with the rules of both houses, thereby remaining within the jurisdiction conferred upon it by Congress.”62 Because the various petitions challenging the constitutionality of RA 10175 do not
See Section 61, Rule X, House Rules, quoted supra in the body text of this petition. 60 Article VI, Section 16 (3) of the Constitution provides that “each House may determine the rules of its proceedings.” 61 See, e.g., Mabanag v. Lopez Vito, No. L-1123, 78 Phil. 1 (March 5, 1947); Casco Philippine Chemical Co., Inc.v. Gimenez, No. L-17931, 7 SCRA 347 (February 28, 1963); Morales v. Subido, No. L-29658, 27 SCRA 131 (February 27, 1969); and Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993); among others. 62 Abakada, 469 SCRA 1, at 94-95.
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explicitly contest the facial validity of the Rules of either House, nor do they raise issues of enforcement of internal rules, then courts, understandably, may be inclined to find the acts of bicameral committees, though putatively ultra vires, to be constitutionally permissible for reasons of courtesy and respect towards a co-equal branch. That said, the rules of either chamber notwithstanding, there is no question under case law that governmental action arising from any great department can and ought to be subject to judicial scrutiny, if not strict scrutiny whenever fundamental rights are impaired or constitutional structures are disrupted. For instance, Santiago v. Guingona holds that “It is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or gravely abused their discretion in the exercise of their functions and prerogatives.”63 If the Court in Abakada were to look upon bicameral committees as stand-alone instrumentalities of government, then there ought to be no reason for the Court to avoid passing upon whether there can be “any grave abuse of discretion amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee.”64 If bicameral committees are examples of ‘extra-constitutional creations’, with greater reason then should the Honorable Court bring to bear its review powers under Section 1, Article VIII upon these committees, the validity or enforceability of any House or Senate Rule – which are internal rules – notwithstanding. No matter how thick or how thin the substance of internal Rules of the House or of the Senate may be, internal rules carry only probative weight, and not conclusive weight, in assessing the constitutionality of governmental action. To hold otherwise would be to make internal rules of the legislature, conclusively and constitutionally self-justifying, no matter how wrong the output, which is a classic case of undue delegation of judicial powers to the legislature. In short, a legislator’s accountability to internal rules is one thing, and the constitutionality of government action affecting the public at large, quite another. Consider Section 61, Rule X (Bills, Resolutions, Messages, Memorials and Petitions) of the Rules of the House of Representatives where “If the differences with the Senate bill are so substantial that they materially impair the House bill, the panel shall report such fact to the House for the latter’s appropriate action.” Suppose that the panel found material impairments but did not report such fact to the House for “appropriate action.” The outcome here, as case law and legislative practice may suggest,
G.R. No. 134577, Nov. 18, 1998, at 18. (emphasis supplied) Abakada, 469 SCRA 1, at 104.
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would be for the House to discipline its members. Farinas v. Executive Secretary65 essentially held that if bicameral conference committee action breaches Congress’s internal rules, Congress is the best judge; that it is the sole concern of Congress to instill discipline if it believes that its members violated any of its rules of proceedings; and, if read with Abakada, even the expanded jurisdiction of the Court cannot apply to questions regarding the internal operation of Congress which is a “co-equal branch” of government.66 To Petitioner, there is no question that Congress has the inherent power to discipline its members, with or without the Rules, but the mechanism of internally sanctioning its own ranks is no cure for substantive constitutional externalities that issue out of those very acts or omissions. To say therefore that it is “up to Congress” to sanction its erring committee members is a form of constitutional avoidance that effectively preempts a substantive disposition of important constitutional questions precisely raised by litigants who may not be privy to the internal wrongs of the legislature. Sanctioning committee behavior is one thing, and passing upon the constitutionality of congressional output, quite another. With utmost respect, Petitioner implores this Honorable Court en banc to review the constitutional interpretation of Tolentino and its successor cases in ways that would preempt constitutional avoidance of important issues. Petitioner shall offer a summation of the basic points of Tolentino, below. If the Honorable Court can find plausibility in Petitioner’s distinction between, on one hand, internal rules and their internal effects, and, on the other, the constitutionality of congressional output, then it will be propitious to re-examine contemporary understandings of the “enrolled bill doctrine” in Philippine jurisprudence. Tolentino’s variant of the enrolled bill rule ought to be reviewed, if not qualified by the Honorable Court. The enrolled bill rule has generally been affirmed in a long line of cases, though with some variations.67 At its core, the enrolled bill
G.R. No. 147387, December 10, 2003, 417 SCRA 508 (2003). Abakada, 469 SCRA 1, at 96. 67 See, e.g., Central Bank Employees Associatoin v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004; Santiago v. Guingona, G.R. No. 134577, November 18, 1998; Tatad v. Secretary of the Department of Energy, G.R. No. 124360, November 5, 1997; Arroyo v. De Venecia, G.R. No. 127255, August 14, 1997; Astorga v. Villegas, G.R. No. L-23475, April 30, 1974; Javellana v.
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rule states that the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of Congress that it was passed, are conclusive of its due enactment.68 The Abakada Court, citing the text of Arroyo v. De Venecia,69 held that “the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals.”70 (emphasis in original) For one, Petitioner respectfully puts in issue the assertion that “cases, both here and abroad . . . all deny to the courts the power to inquire . . . in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals.” One may find that this dictum under Arroyo has both a “general rule” and an “exception.” Petitioner shall discuss this below through a comparative analysis of various state practices and the manner in which state and federal courts, including British courts, consider what they understand to be the “enrolled bill doctrine.” Petitioner respectfully defers to the Honorable Court as to the degree to which it may wish endow these state practices and court rulings with persuasive or controlling authority in Philippine law. The foregoing holding of Arroyo v. De Venecia can be dispositive of breaches of “mere” procedural rules of Congress, but once a breach of a rule, no matter how “internal” courts think them to be, implicates a greater violation of substantive if not structural “constitutional provisions”, or if internal breaches violate the “rights of private individuals”, then the enrolled bill rule is relaxed, if not wholly inapplicable. If, say, an inquiry in aid of legislation violates fundamental liberties (e.g., torture), then that congressional action will be constitutionally infirm. Now, in the case of the Cybercrime Prevention Act, there was an insertion by the bicameral committee now found as a proviso in Section 6 of the Act: “Provided, That the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code and special laws.” As stated, this insertion effectively qualifies a whole universe of crimes by “one degree higher” if committed through “ICT”. Is this a violation of a “mere” “internal” procedural rule and no more? Will the enrolled bill
Executive Secretary, G.R. No. L-36142, March 31, 1973; Morales v. Subido, G.R. No. L-29658, February 27, 1969; Mabanag v. Lopez Vito, G.R. No. L-1123, March 5, 1947. 68 Abakada, 469 SCRA 1, at 95. See also Farinas v. Executive Secretary, 417 SCRA 508 (2003). 69 G.R. No. 127255, August 14, 1997. 70 Abakada, 469 SCRA 1, at 95-96, quoting Arroyo v. De Venecia.
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rule preempt all constitutional inquiry into an insertion of a penal provision, perfunctorily done by some unknown genius in an extraconstitutional committee composed after the third reading of bills coming from both Houses, on the sole reason that the bill was physically signed or certified by their presiding officers ? Can their signatures be deemed as complete and unimpeachable evidence that a bill has been properly adopted in accordance with the Constitution? Beyond acts of authentication, will a post-third-reading fiat by either House – usually referred to as a “ratification” or “approval” of the bicameral committee report – be likewise deemed as complete and unimpeachable evidence that a bill has been properly adopted in accordance with the Constitution? Jurisprudence, including separate opinions, is suggestive of the requirement that the pleader ought to make a searching inquiry for evidence about this unknown “surreptitious” genius in the bicameral committee before judicial review over the constitutionality of the substance of the law can proceed.71 This however can lead to some tautology, if not question-begging: Aren’t “surreptitious” insertions and badges of fraud occurring at the committee level, violations of internal house rules? If they are, then, following Tolentino, courts have no business reviewing the outcome of “co-equal branches”, no matter how severe the disruption of the lawmaking process may have been, even if what is precisely raised before the courts are events arising after third reading, a constitutional proscription designed precisely to place boundaries over otherwise unbounded deliberative space of the legislature. Insofar as Tolentino legitimizes otherwise ultra vires bicameral committee insertions through post-third-reading fiats, then that reading of Tolentino should be qualified by the Honorable Court. It appears that cases which discuss the enrolled bill rule irreducibly turn to the text of Tolentino vs. Secretary of Finance,72 which says, “[i]f a change is desired in the practice [of the Bicameral Conference Committee] it must be sought in Congress since this question is not covered by any constitutional provision but is only an internal rule of each house.” (emphasis supplied). Cases following the line of Tolentino backslide into near-absolute judicial
See, e.g., the Separate Opinion of C.J. Narvasa in Tolentino v. Secretary of Finance, G.R. No. 115455 August 25, 1994. 72 235 SCRA 630 (1994).
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deference for reasons of “respect for internal house rules” strongly associated with “respect towards a co-equal branch.” Tolentino also holds, in varying degrees of relevance leading to the disposition of issues before it: - “conference committees are not expected to make any material change in the measure at issue, either by deleting provisions to which both houses have already agreed or by inserting new provisions. But this is a difficult provision to enforce.” - “The versions are now altogether different, permitting a conference committee to draft essentially a new bill . . .” - “The result is a third version . . . the only requirement for which being that the third version be germane to the subject of the House and Senate bills.” - “After all, [the bicameral committee] report was not final but needed the approval of both houses of Congress to become valid as an act of the legislative department. The charge that in this case the Conference Committee acted as a third legislative chamber is thus without any basis.” - Citing Philippine Judges Association v. Prado, 227 SCRA 703 (1993), “the jurisdiction of the conference committee is not limited to resolving differences between the Senate and the House. It may propose an entirely new provision. What is important is that its report is subsequently approved by the respective houses of Congress.” - “[C]onference committees here are no different from their counterparts in the United States whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under Art. VI, §16(3) each house has the power ‘to determine the rules of its proceedings,’ including those of its committees. Any meaningful change in the method and procedures of Congress or its committees must therefore be sought in that body itself.” - “If a change is desired in the practice [of the bicameral committee] it must be sought in Congress since this question is not covered by any constitutional provision
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but is only an internal rule of each house. Thus, Art. VI, § 16(3) of the Constitution provides that "Each House may determine the rules of its proceedings. . . ." - “[T]his Court is not the proper forum for the enforcement of these internal Rules. To the contrary, as we have already ruled, ‘parliamentary rules are merely procedural and with their observance the courts have no concern.’ Our concern is with the procedural requirements of the Constitution for the enactment of laws. As far as these requirements are concerned, we are satisfied that they have been faithfully observed in these cases. - “Nor is there any reason for requiring that the Committee’s Report in these cases must have undergone three readings in each of the two houses. If that be the case, there would be no end to negotiation…” - “Art. VI, § 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either house of Congress, not to the conference committee report. - “[T]he Conference Committee Report was thereafter approved by the House and the Senate, presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee usurped the legislative power of Congress is, in our view, without warrant in fact and in law.” - “Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but also of its due enactment.” - “To disregard the ‘enrolled bill’ rule in such cases would be to disregard the respect due the other two departments of our government.”
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The Enrolled Bill Doctrine was first adopted in the U.S. federal system in the 1892 decision of Marshall Field & Co. v. Clark.73 According to Field, the Enrolled Bill Doctrine provides that if the enrolled bill is authenticated by the Speaker of the House and President of the Senate, courts are required to accept the signatures as “complete and unimpeachable” evidence that a bill has been properly adopted in accordance with the Constitution.74 In Field, the plaintiffs challenged the validity of the Tariff Act of October 1, 1890, arguing that the enrolled version of the Act differed from the bill actually passed by Congress. However, the Court held that courts may not question the validity of the enrolled bill and may not look beyond it to the Congressional Record or other evidence.75 It stated: The signing by the speaker of the house of representatives, and by the president of the senate... of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress.... And when a bill, thus attested, receives [the President’s] approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.... The respect due to coequal and independent departments requires the judicial department to...accept, as having passed congress, all bills authenticated in the manner stated....76 The Field Court outlined a number of reasons for adopting the doctrine, including: (1) the view that the enrolled bill is required by the “respect due to coequal and independent departments”; (2) the fear that allowing courts to look behind the enrolled bill would produce uncertainty and undermine public reliance on statutes; and (3) the reliability of the enrolled bill over legislative journals and other evidence; among others.77 Field was never expressly reversed by the US Supreme Court. Thus, the doctrine is still consistently applied in the U.S. federal system, mostly by lower courts, as well as in a number of states. As early as 1947 and as reiterated in subsequent cases, the Philippines
143 U.S. 649, 672 (1892). Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892). 75 Id. at 672-80. 76 Id. at 672. 77 See Ittai Bar-Siman-Tov, Legislative Supremacy in the United States: Rethinking the “Enrolled Bill” Doctrine, 97 GEO. L.J. 323 (2009), citing, inter alia, Marshall Field & Co. v. Clark, 143 U.S. 649, 670-673 (1892).
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has also consistently adhered to the doctrine78 as understood in Field, including Tolentino in 1994/1995 and, more recently, Abakada. Petitioner respectfully submits that the dictum in Tolentino ought to be reviewed, with perhaps Abakada as an important progressive lead for such review, in the Honorable Court’s application of the enrolled bill doctrine in this case and for future controversies involving bicameral committee actions which are putatively ultra vires. In particular, Petitioner offers the following objections to the enrolled bill doctrine so far enunciated in Tolentino: (1) Tolentino entails an impermissible delegation of both judicial and lawmaking authority to the presiding officers of Congress; (2) the Tolentino Court deployed the enrolled bill doctrine in ways closely related to the concept of “parliamentary supremacy” understood under British law, which is immune from judicial review and thus inconsistent with the Philippine Constitution; (3) while Field’s holding, followed by Tolentino, may have made sense in 1892 when legislative journals and records were done by hand and clerical error was the rule rather than the exception, a different approach may be in order today. Tolentino, applied without further qualification, is an impermissible delegation of judicial authority to the presiding officers of Congress, following a perfunctory postthird-reading fiat by either House. Under congressional practice, two acts normally follow the submission of the Bicameral Committee Report: (a) nominal vote to “approve” or “ratify” the Report, usually by yeas and nays; and (b) signature and certification by legislative officers. Petitioner wishes to discuss the latter topic first, because this act is the operative act which converts the bill into an “enrolled bill.” Authentication. In essence, it is the Tolentino Court’s understanding that the enrolled bill doctrine requires complete judicial deference to the signatures of the Speaker of the House and the President of the Senate, and their Secretaries, in the enrolled bill, which signatures and certification is conclusively dispositive of the
See Mabanag v. Lopez Vito, No. L-1123, 78 Phil. 1 (March 5, 1947); Casco Philippine Chemical Co., Inc.v. Gimenez, No. L-17931, 7 SCRA 347 (February 28, 1963); Morales v. Subido, No. L-29658, 27 SCRA 131 (February 27, 1969); and Philippine Judges Association v. Prado, G.R. No. 105371, 227 SCRA 703 (November 11, 1993); among others.
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fact that the statute has been validly and constitutionally enacted. The practical result, according to scholarship, “is that the Court has de facto relinquished its power to interpret and enforce the constitutional provisions of lawmaking and its authority to determine the validity of legislation” not to Congress as a whole, but to the authority of the presiding officers of Congress.79 Since the enrolled bill has been signed by these legislative officers, the doctrine provides that courts may conclusively presume that the bill has been passed in accordance with the procedural requirements of the Constitution. However, the questions “What are the procedural requirements set forth in Article VI?” and “What constitutes compliance with these requirements?” are questions of constitutional and legal interpretation rather than questions of fact. The enrolled bill doctrine thus delegates the authority to determine what the Constitution means from the courts to the presiding officers of Congress. Presiding officers of the legislature are elected or appointed following basic majoritarian principles, which are no guarantee of any legal or constitutional expertise over questions of procedure under either House of Congress. Following this reasoning, the doctrine, as framed in Tolentino, requires courts to accept as conclusive the presiding officers’ determination that the enrolled bill does not violate the Constitution. If Tolentino will continue to be construed by courts as one treating an enrolled bill, signed by the presiding officers of Congress, as “conclusive” upon courts that the bill so certified is “authentic”80, then the fact of authentication by these officers will be constitutionally dispositive of substantive questions which foreclose any review of errors preceding the fact of signing, even if those errors implicate serious violations of constitutional structure and constitutional design. By signing and certifying a bill as an enrolled bill, the presiding officers such as the Senate President and House Speaker go no more than authenticate the fact that the bill purports to be the bill of “Congress” as opposed to another body or individual. Authentication is a formal issue, not a substantive one, much less a constitutionally self-dispositive one. Authentication is a rule designed to locate the source and author of a pronouncement, but authentication by presiding officers was never conceived to preempt questions which arise in the process of lawmaking which, needless to say, is constitutionally constrained.
Ittai Bar-Siman-Tov, Legislative Supremacy in the United States: Rethinking the “Enrolled Bill” Doctrine, 97 Geo. L.J. 323, 358-362 (2009). 80 See also Arroyo v. De Venecia, 227 SCRA 268 (1997).
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On post-third-reading fiat. But Tolentino would hold that any changes introduced by the bicameral committee, “surreptitious” or “underhanded” or not, would still be subject to the approval of the House and the Senate, presumably after “appropriate study by their members.” To illustrate, under the Rules of the House of Representatives, the approval would usually be termed as a “ratification” by “majority vote” of a quorum.81 That the bicameral report had been “acted upon” by both houses seems to be a convenient doctrinal cure by the Tolentino Court for insertions which are putatively ultra vires, or insertions done beyond the boundaries of deliberative space of either House following the foreclosure of that space after three readings. Petitioner submits that at the point between the organization of the bicameral committee to the point of “approval” of either House of the committee report, the lawmaking process is at its most vulnerable stage. “Approval” at that point over the bicameral committee report by either house would be nominal and perfunctorily cast as “yeas” and “nays” – indeed perhaps rightly so, because the Constitution forbids further deliberation after third reading. The Constitution prohibits any further meaningful deliberation during any “ratification” or “approval” of the bicameral committee report. In fact, any “approval” or “ratification” by either House of any legislative measure after three readings had taken place, should per se be constitutionally suspect, because Section 26(2), Art. VI of the Constitution prohibits amendments after the last reading, which is a point where any meaningful policy deliberation is at an end. When the bicameral committee meets and makes changes at a time when all meaningful deliberation by both Houses is at an end, it is here where lawmaking is at its most vulnerable point where small bodies like the bicameral committee may make substantive changes unreflective of the real will of either house of Congress, and whose bicameral committee members, incidentally, have all the right to meet in executive session precluding access by the plenary. Ratification through ayes and nayes of substantive insertions by the ultra powerful bicameral committee does not offer a cure. Members of both houses have been deprived of their right, nay duty, to participate in committee deliberations, to debate and deliberate during second readingafter the Sponsors defend the pproposed bill, to propose amendments to the proposal and to vote and explain his vote on the same. Even a presidential certification as to the urgency of a bill which allows the suspension of the rule requiring at least three session days from second reading before a bill is passed on
See Section 63, Rule X, Rules of the House of Representatives, 15th Congress.
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third reading is not as powerful. The bicameral committee has practically “certified urgent” their proposed bill and acted more than the the constitutional powers of the President to certify a bill urgent. This abominable practice cannot be allowed to persist any longer. In dealing with Tolentino’s curing effect of congressional fiats passed off by the Tolentino Court as “ratification” or “approval” post three readings, over putatively infirm bicameral action, Petitioner invites this Honorable Court to analogous cases on ultra vires found under the general law on agency and corporation law. The ultra vires doctrine would have courts declare acts of ratification by corporate boards as having no curing effect over acts and contracts which are per se illegal. If the ultra vires act does not affect third parties, then the act can be cured by ratification by the governing board or by the stockholders. Under Montelibano v. Bacolod-Murcia Milling Co., Inc.82, read with Pirovano v. De la Rama Steamship,83 an act that is illegal per se are acts which are contrary to law, morals, public order, or contravenes some rules of public policy or public duty, and are, like similar transactions between individuals, void. Such acts or contracts cannot serve as basis of a court action, nor acquire validity by performance, ratification, or estoppel. On the other hand, ultra vires acts or those which are not illegal and void ab initio but are within the scope of the articles of incorporation, are merely voidable and may become binding and enforceable when ratified by stockholders. The foregoing cases, Petitioner submits, are good law which may have analogous or persuasive force in the resolution of putatively ultra vires acts of collegial bodies such as Congress, whenever it chooses to act, if only by necessity, through bicameral committees, which, as stated, are extra-constitutional creatures. Petitioner is not prepared to question the holding, “Nor is there any reason for requiring that the Committee’s Report in these cases must have undergone three readings in each of the two houses. If that be the case, there would be no end to negotiation since each house may seek modification of the compromise bill. . . . Art. VI. § 26 (2) must, therefore, be construed as referring only to bills introduced for the first time in either house of Congress, not to the conference committee report.”84 This rule arises by legislative necessity. Akin to res judicata, there must come a point where all controversies and debates must end. What Petitioner is raising before this Court, for purposes of reviewing Tolentino, is to set forth parameters, perhaps with Abakada as a good lead, to constrain the discretionary space of bicameral conference committees in ways that would preempt
82 83 84
5 SCRA 36 (1962). 96 Phil. 335 (1954) Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994
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insertions of substantive provisions not contemplated by either House – especially penal provisions not suggested by either chamber – under the standard of grave abuse of discretion as in Abakada. Petitioner is precisely questioning the impropriety of the insertions of the Bicameral Conference Committee which affected – and now happen to form – the very substance of the challenged law. In fact, a bill considered to be an ‘enrolled bill’ only requires whether the Act in question was duly issued by the Body, and that Body alone, and no other. For a court to assure itself that an act was a formal act of a legislature, judges need only look to the signature of the heads of both Houses holding speaking authority, to verify that the bill indeed originated from the correct source of lawmaking, much like inquiring whether a will or a codicil was duly executed by a testator with sound mind, and not by his clerk. And if the holders of speaking authority of both Houses say that this is the act of our Houses, then the courts will respect those pronouncements because those pronouncements issue from what judges think to be co-equal branches of government. The enrolled bill rule should go no further than being a test of whether the purported measure is sourced correctly, much like whether a president or chief executive of a body corporate had authority to issue corporate statements on behalf of his corporation. Thus the Court in Astorga v. Villegas,85 inquired into whether the holders of speaking authority repudiated their signatures (due execution) of what purported to be the enrolled bill, which was a contested fact and which questions of fact were precisely subjected to judicial scrutiny. Astorga may have rightly disposed of the question of whether a bill rises to that of an “enrolled bill” absent the signatures of presiding officers. But the enrolled bill rule so far framed by Tolentino was never meant to be a test of the constitutionality of the substantive provisions or the substantive norms found in the enrolled bill which may have been shaped in no small part by constitutionally infirm procedures nor by constitutionally suspect insertions by an extra constitutional committee formed after three readings. Any enrolled bill rule is not a rule that should be used to conclusively preempt inquiry into the constitutionality of legislative processes, to the extent that there can be judicially manageable standards under Baker v. Carr, and, more in point, Abakada. So, if the enrolled bill, even if duly authenticated, signed, and duly transmitted by the heads of both Houses to the President, and even if the President signs it into law, questions of substantive constitutional law can be raised after enrollment and after passage, which is really the case in all constitutional challenges. Petitioner is
56 SCRA 714 (1974)
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precisely seeking an inquiry into the substantive norms of the Act, which are infirm because of the insertions of an unbridled unilateral action on the part of the bicameral committee, and it is Petitioner’s contention that no “enrolled bill” should preempt that inquiry. A clear cut, if not uncritical application of Tolentino will thus result in an abdication of the inherent authority of courts to interpret and enforce the Constitution in procedural challenges to the validity of legislation. This is especially true for insertions made by the bicameral conference committee, which, without explicit constitutional text regulating its workings, is functionally a law-unto-its-own. This abdication of judicial authority is in sharp contrast with the dominant view that this authority is “emphatically the province and duty of the judicial department”86 following Marbury v. Madison,87 Lopez v. Roxas88 and its successor cases decided under the expanded review powers set forth under Section 1, Art. VIII of the Constitution. Although the executive and legislative branches may also play an important role in constitutional interpretation, the enrolled bill doctrine so far phrased and deployed under Tolentino inevitably designates the presiding legislative officers as the only interpreters and enforcers of the lawmaking provisions of the Constitution, and then uses a House’s perfunctory yeas and nays even if done post third reading, as a curing effect. Though the Constitution requires that every bill pass both houses of Congress must abide by the three-reading rule (save for Presidential certificates based on urgency), an unconstrained intervention of the bicameral conference committee makes this an empty constitutional promise. Recall that after each bill has undergone three readings, the deliberative space is constitutionally foreclosed after three readings within the meaning of Section 26(2), Art. VI,89 and thus any textual intervention or insertion, surreptitious or not, by any body, including the bicameral committee, ought to come under judicial scrutiny, even if legislative output were authenticated
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also, e.g., City of Boerne v. Flores, 521 U.S. 507, 519, 529 (1997); United States v. Munoz-Flores, 495 U.S. 385, 391 (1990); Powell v. McCormack, 395 U.S. 486, 549 (1969); Cooper v. Aaron, 358 U.S. 1, 18 (1958). 87 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). 88 17 SCRA 756 (1966). 89 “Section 26…(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.”
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by the presiding officers of the legislature. If courts continue to go by the dictum of the enrolled bill rule so far couched under Tolentino, then any signature or authentication by the Senate President, the Speaker of the House, and their Secretaries, and a nominal vote of yeas and nays, can be construed to be incontrovertible proof that the law was validly passed. There is scholarship pointing to the fact that courts and scholars have recognized that traditional understandings of the enrolled bill rule can be “conducive to fraud, forgery, corruption and other wrongdoings in connection with legislation.”90 Tolentino, applied without further qualification, is an impermissible delegation of lawmaking authority to the presiding officers of Congress, even if armed with a perfunctory post-third-reading fiat of yeas and nays. Tolentino’s version of the enrolled bill doctrine is also an impermissible delegation of lawmaking of authority of Congress to its presiding officers. Although the US Court in Marshall Field & Co. v. Clark acknowledged that “[t]here is no authority in the presiding officers...to attest by their signatures...any bill not [duly] passed by congress,”91 in practice, especially in Philippine practice, Tolentino does permit this authority to the presiding officers. In the United States, the doctrine received renewed interest amidst widely reported allegations that the Deficit Reduction Act of 2005 (DRA) was enacted in violation of the bicameral requirement of Article I, Sections 1 and 7 of the U.S. Constitution. Several lawsuits challenged the constitutionality of the DRA, but district and appellate federal courts perfunctorily cited the enrolled bill doctrine, as laid down in Field, to dismiss the cases.92
David Sandler, Forget What You Learned in Civics Class: The "Enrolled Bill Rule" and Why It's Time to Overrule Field v. Clark, 41 COLUM. J.L. & SOC. PROBS. 213 (2007), citing Bull v. King, 286 N.W. 311, 313 (Minn. 1939). 91 Marshall Field & Co. v. Clark, 143 U.S. 649, 669 (1892). 92 E.g., Public Citizen II, 486 F.3d at 1355; Zeigler v. Gonzales, No. 06-0080-CGM, 2007 WL 1875945, at 1 (S.D. Ala. June 28, 2007); Public Citizen I, 451 F. Supp. 2d at 128; Conyers v. Bush, No. 06-11972, 2006 WL 3834224, at 5 (E.D. Mich. Nov. 6, 2006); Cal. Dep’t of Soc. Servs. v. Leavitt, 444 F. Supp. 2d 1088, 1096 (E.D. Cal. 2006); Cookeville Reg’l Med. Ctr. v. Leavitt, No. 04-1053 (JR), 2006 WL 2787831, at 4 (D.D.C. Sept. 26, 2006); OneSimpleLoan v. U.S. Sec’y of Educ., No. 06 Civ. 2979 (RMB), 2006 WL 1596768, at 9 (S.D.N.Y. June 9, 2006), aff’d, 496 F.3d 197 (2d Cir. 2007).
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According to the allegations in the DRA cases, the doctrine permitted lawmaking authority to the presiding officers of Congress. The officers were aware that the bill presented to the President reflected the Senate bill but was never passed in the same form by the House. Although the difference may have only been a matter of clerical error, the presiding officers (and in fact, a Senate clerk) corrected the error themselves, thereby in a sense determining the “real will” of both Congressional houses on their own. This constitutes a violation of Senate and House rules, which aim to ensure that the real will of both houses, rather than the will of legislative officers or mere enrolling clerks, is enacted into law. Furthermore, this violation amounts to an assumption of authority that the Court in Field emphasized the legislative officers may not assume.93 Tolentino, applied without further qualification, is incongruent with the 1987 Constitution. The view that the enrolled bill doctrine is dependent upon the English principle of parliamentary (or legislative) supremacy seems to be widely accepted in England and the Commonwealth. This view further holds that the doctrine is consequently not justified in legal systems that have a written constitution, as evidenced by the development of judicial review of the legislative process in civil-law countries. Historically, European countries such as Germany and Spain had doctrines that viewed the legislative enactment process and other parliamentary proceedings as immune from judicial scrutiny.94 However, as part of their transition into constitutional democracies following World War II, these countries began to favor constitutional supremacy and “constitutional parliamentarianism,” which heretofore required reconsideration of the doctrines that viewed legislative and parliamentary proceedings as nonjusticiable.95 Legislative supremacy according to the English principle is entirely foreign to the 1987 Philippine Constitution. Meanwhile, it is acknowledged that the Framers of the U.S. Constitution viewed that the existence and powers of a legislative body in the American system of limited government are subject to the higher law of the
Ittai Bar-Siman-Tov, Legislative Supremacy in the United States: Rethinking the “Enrolled Bill” Doctrine, 97 GEO. L.J. 323, 362-364 (2009). 94 Suzie Navot, Judicial Review of the Legislative Process , 39 ISR. L. REV. 182, 192-94 (2006). 95 Suzie Navot, The “Sarid” Test After Twenty Years: Revisiting Judicial Review of Parliamentary Proceedings, 19 MEHKAREI MISHPAT (BAR ILAN STUD. L.) 721, 733-65 (2002) [Isr.].
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Constitution.96 Marbury v. Madison holds that constitutional supremacy over the legislature requires judicial enforcement of the Constitution, or judicial review.97 Field may be interpreted as holding that courts must act upon the assurance of the presiding legislative officers that the bill was enacted in full accordance with the Constitution, and may not independently determine the constitutionality of enactment. However, this argument was rejected in United States v. Munoz-Flores, which held that “such congressional consideration of constitutional questions does not foreclose subsequent judicial scrutiny of the law’s constitutionality. On the contrary, this Court has the duty to review the constitutionality of congressional enactments.”98 Compliance with the constitutional requirements for lawmaking should not be seen as a matter of “internal” process much in the way Tolentino does, which would consistently require judicial deference. Judicial deference cannot extend to legislative proceedings that have substantial external legal and political effects, or to constitutional violations as in the case of Sections 6 and 7 of the Cybercrime Prevention Act. This is also the well-established rule in the jurisprudence of the Rulemaking Clause of the U.S. Constitution (Art. 1, § 5, cl. 2). Judicial deference to the power of either the Senate or the House to determine its rules of proceedings does not extend to cases where the rules violate constitutional restraints or affect rights of persons outside Congress.99 Hence, in the Philippine context, judicial deference to internal legislative proceedings cannot apply to violations of Article VI of the Philippine Constitution. In several countries, judicial review of the legislative process has preceded substantive judicial review and is considered much less intrusive.100 Since lawmaking inevitably entails external effects, judicial review of the legislative process should not be understood to be an intrusion into the purely internal legislative proceedings of
1 Norman J. Singer, Sutherland Statutes and Statutory Construction § 2:1, at 17 (6th ed. 2002 & Supp. 2006). 97 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). 98 Munoz-Flores, 495 U.S. at 391. 99 See Yellin v. United States, 374 U.S. 109, 114, 143 (1963); Christoffel v. United States, 338 U.S. 84, 87-90 (1949); United States v. Smith, 286 U.S. 6, 33 (1932); United States v. Ballin, 144 U.S. 1, 5-7 (1892). 100 Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197, 243 (1976); see also Gottfried Dietze, Judicial Review in Europe, 55 MICH. L. REV. 539, 541 (1957); William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 20-21.
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Congress. Furthermore, judicial review of the lawmaking process has key features that make it less intrusive than substantive judicial review, and less problematic in terms of separation of powers. For judicial review of the enactment process does not involve any intervention in the policy choices of the legislature, and only seeks to determine whether Congress has indeed spoken according to its real will. Second, the Honorable Court, as in Abakada, may check the bicameral committee under the grave abuse clause of Section 1, Art. VIII of the Constitution under the test of stricter scrutiny (and away from near-absolute judicial deference) precisely because the bicameral committee is unbounded by textual constitutional constraints. Unlike the United Kingdom where English courts base the enrolled bill rule on the theory of parliamentary supremacy, the United States and the Philippine constitutional structures require courts to treat the legislature as “co-equal branches”, for courts under this theory are “servants” of the Constitution. But the principle of co-equality and courtesy towards “co-equal branches” cuts both ways: cursory adherence to this principle can lead to judicial disrespect for the Constitution. If Tolentino were to be carried forth by future Courts without tempering its holding of a “manifest firm adherence” to the rule that the enrolled bill is “conclusive” “not only of its provisions” but also “of its due enactment,” and, because, at any rate, the bicameral committee report received a post-three-reading “approval” of both houses of Congress, then Tolentino can be used as a curing effect over any constitutional infraction in the lawmaking process, no matter how severe. If courts were to defer to the enrolled bill on the ground that the enactment was from a “co-equal branch of government” as in Tolentino, the co-equality principle may be used as a proxy for constitutional avoidance of great constitutional questions, if not deliberate avoidance of constitutional violations by future courts. While Tolentino, applied without further qualification, may make sense in a time when legislative journals and records were done by hand and clerical error was the rule rather than the exception, a different approach may be in order today. When the US Supreme Court adopted the enrolled bill rule in 1892, the questions posed before the Justices in Field had been raised in the first instance at the federal level, but the same questions had been raised much earlier at the state level. The position taken
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by the Field Court is one that had been in place in England since 1616.101 In 1617, a British court justified the conclusiveness of the enrolled document as the original record of enactment, and the “best evidence rule” prohibits challenging the contents of an original record with extrinsic evidence. As such, the legislative journals and any other evidence about the proceedings were inadmissible at trial.102 In fact, resort to the enrolled bill rule, originally conceived by British authorities, had been predicated on expedience, because at that time, laws and their proceedings were hand copied . British Courts, and later, the Field Court in 1892, had been concerned that the process of hand copying hundreds of laws, records, and minutes, would be logistically problematic. Thus, Field’s holding was grounded on considerations of expediency and resource constraints and, for these reasons, Field required courts to simply rely on the face of the enrolled bill, endow that bill with a conclusive presumption that it had been duly enacted, and preclude any resort to extrinsic evidence such as the journals and records of the proceedings.103
See David Sandler, Forget What You Learned in Civics Class: The "Enrolled Bill Rule" and Why It's Time to Overrule Field v. Clark, 41 COLUM. J.L. & SOC. PROBS. 213, 217 (2007).
According to one scholar: The rule in England stemmed from that country’s monarchical system of government. Acts that had passed Parliament would receive the King’s assent and be marked with the great seal.19 As John Wigmore explains, this was not merely a certification that a bill had been passed, it was the “effective legal act of enactment.” Enrollment, J.G. Sutherland counsels, was “a regal act and no official might dispute the king’s word.” Whatever might have happened during parliamentary deliberations was meaningless. Moreover, the enrolled document was the original record of enactment, and the “best evidence rule” prohibits challenging the contents of an original record with extrinsic evidence. As such, the legislative journals and any other evidence about the proceedings were inadmissible at trial. Id. at 217, citing Chicot County, 40 Ark. at 209; 4 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1350, at 816 (Aspen 1998); J.G. SUTHERLAND, SUTHERLAND STATUTORY CONSTRUCTION § 15:3 (Norman J. Singer ed., West 6th ed. 2000); Sherman v. Story, 30 Cal. 253, 257 (1866) (parliamentary deliberations have “no power to satisfy, destroy or weaken the act”); The modern version of this is codified at Federal Rule of Evidence 1002; Sherman, 30 Cal. at 256 (quoting The King v. Arundel, 80 Eng. Rep. 258 (K.B. 1617)). 102 Sherman v. Story, 30 Cal. 253, 256 (1866)) (quoting The King v. Arundel, 80 Eng. Rep. 258 (K.B. 1617)): 103 See David Sandler, Forget What You Learned in Civics Class: The "Enrolled Bill Rule" and Why It's Time to Overrule Field v. Clark, 41 COLUM. J.L. & SOC. PROBS. 213, 222-223 (2007).
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But even in 1892 when Field was promulgated, the propriety of the enrolled bill, then traditionally conceived as a concept which migrated from England to US states, had been reviewed by at least twenty-two States and in over fifty cases.104 States adopted variations of the enrolled bill rule selectively, and at least thirteen states rejected it as inconsistent with their constitutional frameworks.105 A parallelism can be made between the enrolled bill doctrine set forth in Tolentino and the political question doctrine in Baker v. Carr.106 There are strong associations between the two. Functionally and operationally, Tolentino and the political question doctrine result in very similar constitutional outcomes. But Abakada introduced judicially determinable parameters for bicameral committees whenever “insertions” are alleged. Moreover, in the 1990 case of United States v. Munoz-Flores,107 the US Supreme Court effectively rejected the idea that a court can be accused of “lack of respect for co-equal branches” whenever it reviews a procedural validity leading to the passage of a law. In Munoz-Flores, the court recognized that its duty to review the constitutionality of congressional enactments outweighs any “conflict that such an adjudication may cause. And, in INS v. Chadha,108 the Court, despite citing Field, held that reviewing procedural violations as justiciable questions should not be construed as a show of disrespect. Judicial review within the meaning of Section 1, Art. VIII of the Philippine Constitution is designed to review “co-equal” branches of government. Tolentino’s assertion of the “co-equal” branch rationale in justifying its variant of the enrolled bill rule should be construed as an exhortation of inter branch courtesy, no more, but judicial courtesy was never meant to be a self-dispositive rule for constitutional avoidance, especially when an issue is raised that there were unilateral insertions by an extraconstitutional body known as the bicameral conference committee. Tolentino is also at odds with Munoz-Flores, and both involve what ought to be a contemporary application of the enrolled bill doctrine. The Tolentino holding will allow courts to turn to “mere”
See id. at 218, citing In re Roberts, 5 Colo. 525, 528 (1881). See In re Roberts, 5 Colo. 525, 528 (1881). States having adopted the enrolled bill rule were: California, Connecticut, Indiana, Iowa, Louisiana, Mississippi, Nevada, New Jersey, and New York. Those instead adopting the “American doctrine” (that enrollment is not conclusive) were: Alabama, Arkansas, Illinois, Maryland, Michigan, Minnesota, Missouri, New Hampshire, Ohio, Pennsylvania, South Carolina, Vermont, and West Virginia. Id. 106 369 U.S. 186 , 217 (1962) 107 495 U.S. 385 (1990). 108 462 U.S. 919, 943 (1983).
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“internal” rules of either House to be irrelevant and constitutionally outcome-determinative of how that House, or Congress as a whole, arrived at the Act. What ought to be the rule, Petitioner respectfully submits, is that the question should not be framed as one implicating a breach of “mere” “internal” “procedure” whose consequences expectedly go no further than disciplinary action among a House’s ranks, but one which, if on the face of an enrolled bill there can be found provisions whose insertions are inconsistent with the entire constitutional structure for lawmaking, then that insertion is unconstitutional. The point really is that if a state act, emanating from any instrumentality or branch of government, including a body called the bicameral committee, infringes constitutional principles and disrupts constitutional structure, then that act should be declared void by the courts. The operative phrase in Tolentino, borrowed from Philippine Judges Association v. Prado, points to the ability of the bicameral conference committee to insert an “entirely new provision.” Petitioner respectfully submits that the phrase “entirely new” must be tempered or interpreted by the Honorable Court in ways that would preempt unbridled lawmaking authority on the part of the bicameral committee – ‘lawmaking’ in the functional sense, though not in name – because its insertions must stay within the boundaries of the deliberative space carved out by the upper and lower chambers, whose interests are championed by their respective agents and representatives in their respective ‘negotiating panels’ in the bicameral conference committee. Like any negotiation, negotiating parties shouldn’t stray too far from the proposals fielded by their principals, that is, the House of Representatives and the Senate, precisely to arrive at a solomonic take inherent in political consensus building. Staying within the boundaries of deliberative space is another way of staying within the meaning of the “germane to the subject” rule in Abakada. We do not think that raising the penalties of the whole universe of crimes, special laws and RPC, by “one degree”, was ever conceived to be “germane to the subject” of any of the bills which turned out to be the Cybercrime Law . Potentially viable alternatives of the enrolled bill doctrine are available for the Honorable Court to consider, other than Tolentino. Petitioner respectfully submits a number of potentially viable alternatives for the Honorable Court to consider if it so chooses to review Tolentino.
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Tolentino follows the relic of the English system. While Petitioner argues that the continued reliance on Tolentino, as such, seems unjustified, the question therefore ought to be, are there better alternatives?109 Modified Enrolled Bill Rule While many states adopted the enrolled bill rule in various forms, still many states make one or more exceptions based on specific journal entry requirements under their statutes or constitutions.110 These state courts treat the enrolled bill as conclusive evidence of the bill’s passage, except where the state constitution requires that certain prerequisites to passage be recorded in the legislative journals. The journal is conclusive evidence of those acts. This is known as the “modified enrolled bill rule.”111 In fact, the Abakada Court looked into the records and journals when it sought to dispose of the question of undue “insertions” by the bicameral committee. If Abakada were interpreted to mean that journal entries can be considered as evidence whenever the bicameral committee is alleged to have made undue insertions, then contemporary jurisprudence can now said to be one resorting to the “modified enrolled bill rule,” and not the enrolled bill rule within the meaning of Tolentino. Pure Journal Entry Rule
For a consideration of alternatives, see, e.g., David Sandler, Forget What You Learned in Civics Class: The "Enrolled Bill Rule" and Why It's Time to Overrule Field v. Clark, 41 COLUM. J.L. & SOC. PROBS. 213 (2007); Ittai Bar-Siman-Tov, Legislative Supremacy in the United States: Rethinking the “Enrolled Bill” Doctrine, 97 GEO. L.J. 323 (2009). 110 See, e.g., Barnsdall Ref. Corp. v. Welsh, 64 S.D. 647 (1936) (discussing alternative rules and adopting the modified enrolled bill rule). See also David Sandler, Forget What You Learned in Civics Class: The "Enrolled Bill Rule" and Why It's Time to Overrule Field v. Clark, 41 COLUM. J.L. & SOC. PROBS. 213, 251 et seq. (2007). 111 See State ex rel. McTaggart v. Middleton, 28 P.2d 186, 187 (Mont. 1933) (”[T]his court can look behind the enrolled bill for one purpose only, and that is to see whether the constitutional mandate requiring that on the final passage of a measure the vote has been taken by ayes and noes, and the names of those voting have been entered on the journal.”). Cf. Indep. Cmty. Bankers Ass’n v. State, 346 N.W.2d 737, 742 (S.D. 1984) (The legislative journals showed that a bill had not been “read twice, by number and title, once when introduced, and once upon final passage,” as required by the state’s constitution, but the constitution did not require that procedure be recorded in the journals so the enrolled bill controlled.).
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Some states have gone so far as to reverse the conclusive presumption of the enrolled bill rule as traditionally defined. In these states, proof of a bill’s passage and due enactment are to be found in legislative journals, which “must affirmatively show that the provisions of the constitution in regard to the passage of any law were substantially followed by the Legislature in the passage of an act.” The failure of the journal to show that each step was taken is conclusive evidence that it was not taken.112 Abakada also can be interpreted to have adopted this rule, beginning with its comparative analysis of the Senate and House versions and the insertions of the bicameral committee report. Mixed Rule Some states have adopted a mixed rule: if the constitution requires a journal entry, the absence of this entry is prima facie evidence that the law is invalid; but where the constitution is silent as to whether a required act must be recorded in the journals, courts presume that the act was done unless the journal affirmatively shows otherwise.113 The fact that the Abakada Court inquired into the records, transcripts, and journals of the proceedings when it held: “The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the Bicameral Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate Panel, explained the reason for deleting the no pass-on provision in this wise . . .”
David Sandler, Forget What You Learned in Civics Class: The "Enrolled Bill Rule" and Why It's Time to Overrule Field v. Clark, 41 COLUM. J.L. & SOC. PROBS. 213, 252-253 (2007), citing Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. PITT. L. REV. 797, 820 (1987); In re Drainage Dist. No. 1, 143 P. 299, 301 (Idaho 1914) (citing Cohn v. Kingsley, 49 P. 985 (Idaho 1897)). 113 Sandler, supra, at 255-256. Louisiana is one such state. In Wall v. Close, the Louisiana Supreme court explained: Some acts performed in the passage of laws are required by the constitution to be entered on the journals, in order to make them valid, and among these are the entries of the ayes and nays on the final passage of every bill [W]here the journal did not show this, the act never became a law. But where the constitution is silent as to whether a particular act which is required to be performed shall be entered on the journals, it is then left to the discretion of either house to enter it or not, and the silence of the journal on the subject ought not to be held to afford evidence that the act was not done. In such a case we must presume it was done, unless the journal affirmatively shows that it was not done. 14 So. 2d 19, 24 (La. 1943).
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Probative Evidence Rule The foregoing rules thus far, are conclusive presumption rules. Under these rules, either the enrolled bill or the journal is admissible to the exclusion of all other evidence. But under modern evidentiary rules, conclusive presumptions are disfavored.114 Conclusive presumptions still exist (e.g., parole evidence rules), but the trend in modern evidence is to allow the trier of fact to determine the weight to be given to each item in relation to the circumstances of the case.115 As such, a probative evidence rule can be an attractive alternative. A handful of states have adopted extrinsic or probative evidence rules.116 Rather than affording any one type of evidence a conclusive presumption, a probative evidence rule “accords to the enrolled bill a prima facie presumption of validity but permits attack by clear, satisfactory, and convincing evidence establishing that the constitutional requirements which the court deems mandatory have not been met.”117 While laws must be given a strong presumption of validity, “[w]hen the doubt is established in uncontrovertible manner, there appears to be no good reason why the act should be enforced.”118
IX REQUIREMENTS FOR COLLECTION, SEIZURE OR DISCLOSURE OF OTHER DATA VIOLATE THE CONSTITUTION The collection, seizure or disclosure of other data (i.e., content, identity) under Section 12 of R.A. 10175 requires a court warrant therein but the requirements used by said provision for the issuance or grant thereof are deficient of the constitutional requirements, in
Sandler, supra, at 256-257, citing D&W Auto Supply v. Dep’t of Revenue, 602 S.W.2d 420, 423 (Ky. 1980); J.G. SUTHERLAND, SUTHERLAND STATUTORY CONSTRUCTION § 15:3 (Norman J. Singer ed., West 6th ed. 2000); William Lloyd, Judicial Control of Legislative Procedure, 4 SYRACUSE L. REV. 6, 17 (1952). 115 See William Lloyd, Judicial Control of Legislative Procedure, 4 SYRACUSE L. REV. 6, 17 (1952); United States v. Munoz-Flores, 495 U.S. 385, 405 (1990) (Stevens, J., concurring). 116 SUTHERLAND, supra, at § 15:6. 117 Id. 118 Id.
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violation of Section 2, Article III of the Constitution. Section 12 of R.A. 10175 states that: SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities. All other data to be collected or seized or disclosed will require a court warrant. Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. (Emphasis supplied) The foregoing requirements for the issuance of a court warrant do not comply with the constitutional requirements under Section 2, Article III of the Constitution, thus: Article III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever 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
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the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) Columbia Pictures, Inc. v. Court of Appeals,119 through then Associate Justice Florenz D. Regalado, exhaustively discussed these constitutional requisites: Of course, as a general rule, constitutional and statutory provisions relating to search warrants prohibit their issuance except on a showing of probable cause, supported by oath or affirmation. These provisions prevent the issuance of warrants on loose, vague, or doubtful bases of fact, and emphasize the purpose to protect against all general searches. Indeed, Article III of our Constitution mandates in Sec. 2 thereof that no search warrant shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized; and Sec. 3 thereof provides that any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding. These constitutional strictures are implemented by the following provisions of Rule 126 of the Rules of Court: Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to
G.R. No. 110318, August 28, 1996.
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the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. The constitutional and statutory provisions of various jurisdictions requiring a showing of probable cause before a search warrant can be issued are mandatory and must be complied with, and such a showing has been held to be an unqualified condition precedent to the issuance of a warrant. A search warrant not based on probable cause is a nullity, or is void, and the issuance thereof is, in legal contemplation, arbitrary. It behooves us, then, to review the concept of probable cause, firstly, from representative holdings in the American jurisdiction from which we patterned our doctrines on the matter. Although the term “probable cause” has been said to have a well-defined meaning in the law, the term is exceedingly difficult to define, in this case, with any degree of precision; indeed, no definition of it which would justify the issuance of a search warrant can be formulated which would cover every state of facts which might arise, and no formula or standard, or hard and fast rule, may be laid down which may be applied to the facts of every situation. As to what acts constitute probable cause seem incapable of definition. There is, of necessity, no exact test. At best, the term “probable cause” has been understood to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances as would excite an honest belief in a reasonable mind acting on all the facts and circumstances within the knowledge of the magistrate that the charge made by the applicant for the warrant is true. Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The
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determination of the existence of probable cause is not concerned with the question of whether the offense charged has been or is being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable grounds for his belief. The requirement is less than certainty or proof, but more than suspicion or possibility. In Philippine jurisprudence, probable cause has been uniformly defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. It being the duty of the issuing officer to issue, or refuse to issue, the warrant as soon as practicable after the application therefor is filed, the facts warranting the conclusion of probable cause must be assessed at the time of such judicial determination by necessarily using legal standards then set forth in law and jurisprudence, and not those that have yet to be crafted thereafter. As already stated, the definition of probable cause enunciated in Burgos, Sr. vs. Chief of Staff, et al., supra, vis-a-vis the provisions of Sections 3 and 4 of Rule 126, were the prevailing and controlling legal standards, as they continue to be, by which a finding of probable cause is tested. Since the proprietary of the issuance of a search warrant is to be determined at the time of the application therefor, which in turn must not be too remote in time from the occurrence of the offense alleged to have been committed, the issuing judge, in determining the existence of probable cause, can and should logically look to the touchstones in the laws therefore enacted and the decisions already promulgated at the time, and not to those which had not yet even been conceived or formulated. It is worth noting that neither the Constitution nor the Rules of Court attempt to define probable cause, obviously for the purpose of leaving such matter to the court’s discretion within the particular facts of each case. Although the Constitution prohibits the issuance of a search warrant in the absence of probable cause, such constitutional inhibition does not command the legislature to establish a definition or formula for determining what shall constitute probable cause. Thus, Congress,
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despite its broad authority to fashion standards of reasonableness for searches and seizures, does not venture to make such a definition or standard formulation of probable cause, nor categorize what facts and circumstances make up the same, much less limit the determination thereof to and within the circumscription of a particular class of evidence, all in deference to judicial discretion and probity. (Emphasis supplied) Clearly, the requirements stated under Section 12 for the issuance or grant of a court warrant do not fully reflect the constitutional requirements, in patent violation of Section 2, Article III of the Constitution. This transgression should not be countenanced by the Honorable Court. As such, the collection, seizure or disclosure of other data through a court warrant under Section 12 using requirements that are not pursuant to the Constitution must be stricken down by the Honorable Court.
X SECTION 15 DOES NOT “MERELY ENUMERATE THE DUTIES OF LAW ENFORCEMENT AUTHORITIES” WHICH “SUPPLEMENTS” EXISTING SEARCH AND SEIZURE RULES; RATHER, SECTION 15, ON ITS FACE, UNDULY EMPOWERS LAW ENFORCEMENT AUTHORITIES TO “ORDER ANY PERSON” WHO HAPPENS TO HAVE “KNOWLEDGE” OVER THE SUBJECT OF THE WARRANT, WHICH IS A POWER FUNCTIONALLY EQUIVALENT TO A SUBPOENA AGAINST SUCH “ANY PERSON” WHO LIES OUTSIDE THE SCOPE AND DESCRIPTION OF THE WARRANT.
Section 15 gives every law enforcement officer subpoena powers against such “any person” who lies outside the scope and description of the warrant. Section 15 therefore allows, if not mandates, unreasonable searches and seizures.
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At a minimum, Section 15 gives subpoena powers to every law enforcement officer holding a prior warrant, which is a constitutionally impermissible statutory grant. Section 15 empowers the law enforcer to issue “orders”, equivalent, at a minimum, to a subpoena, over an extremely broad range of sensitive information implicating a whole range of fundamental rights. Petitioners submit that the Majority Opinion’s ruling that “Section 15 merely enumerates the duties of law enforcement authorities” in the seizure of data by virtue of a court warrant, ought to be reconsidered by the Court en banc. This because Section 15, on its face, unduly empowers law enforcement authorities to “order any person” who happens to have “knowledge” over the subject of the warrant, which is a power functionally equivalent to a subpoena against such “any person” who lies outside the scope and description of the warrant. Section 15 provides in part: SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties. Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: (a) To secure a computer system or a computer data storage medium; (b) To make and retain a copy of those computer data secured; (c) To maintain the integrity of the relevant stored computer data; (d) To conduct forensic analysis or examination of the computer data storage medium; and
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(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network. Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination. Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court. (emphasis supplied) The Majority Opinion treats “computer data” as one referring to “property” subject to the rule of unreasonable searches and seizures.120 In the same breadth, however, the Majority Opinion concedes that “[t]he content of the computer data can also constitute speech.”121 State regulation over computer data can therefore affect both property rights and speech, if not other fundamental rights that are closely associated with computer data (e.g., right to privacy and correspondence). Because computer systems and computer data contain speech and correspondence, Section 15 can be subjected to a preenforcement facial challenge. And, like the disposition and reasoning over Section 19 by the Majority Opinion,122 the aforequoted provisions of Section 15, being a roving subpoena power, if not an unbridled extension of the scope of the court-issued warrant, these provisions ought to be likewise declared unconstitutional. Because, in effect, Section 15 makes a prior or pre-existing warrant, even if validly issued, extendible into roving general warrants. Section 15, at the very
Majority Opinion, p. 44. Id. See also Section 3(e) of RA 10175: “(e) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online.” 122 See Majority Opinion, pp. 44-45.
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minimum, also grants the law enforcement officer real-time and ad hoc subpoena powers against “any person”. Should “any person” refuse or fail to heed the “order” defined by Section 19, that person can be subject to criminal contempt proceedings. Being a broad, if not an unduly broad grant of subpoena powers to the law enforcer even if armed with an existing warrant, Section 15 is constitutionally objectionable. “Any person” who “has knowledge” over the subject “computer system” are not standards which are “tailored to a particular purpose”, which is a requirement for subpoenas. Section 15 enables discovery and fishing expeditions unsupervised by the courts against “any person” who is presumed to hold high expectations of privacy that may not be related at all to the proponent of Section 15’s “order”. US case law would require this finding. Subpoena may command a person to produce at taking of depositions designated books, papers, documents or tangible things constituting or containing evidence relative to any of the matters in the scope of existing rules of procedure, so that the scope of request may be very broad. See, e.g., Miller v. Sun Chemical Corp., D.C.N.J.1952, 12 F.R.D. 181. There are strict procedural and substantive norms governing the exercise of subpoena powers. These are not found in Section 15. It has been held that subpoenas duces tecum that an employer served on the employee’s previous employers were both overbroad and not tailored to a particular purpose, and, thus imposed an undue burden, requiring that the subpoenas be quashed, in employee’s action alleging violations of the FLSA, as well as a claim for breach of contract, where the subpoenas commanded production of employee’s complete employment file, including application, evaluations, payroll records, correspondence, notes, and records, and could lead to production of medical information, social security numbers, payroll information, income tax information, information
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about family members, and other documents completely extraneous to the litigation. Singletary v. Sterling Transport Co., Inc., E.D.Va.2012, 289 F.R.D. 237. Considerations must be given governing the necessity of protection of persons subject to subpoenas generally. Section 15 lacks safeguards for the “order”, which lack of standards will make such “orders” unreasonable, oppressive, annoying, or embarrassing. Cf. Covey Oil Co. v. Continental Oil Co., C.A.10 (Utah) 1965, 340 F.2d 993, certiorari denied 85 S.Ct. 1110, 380 U.S. 964, 14 L.Ed.2d 155. A determination of a subpoena’s reasonableness requires the court to balance interests served by complying with the subpoena against the interest served by quashing it; balancing of benefits against burdens calls for the court to consider, inter alia, whether the information is necessary and unavailable from any other source. In re Duque, S.D.Fla.1991, 134 B.R. 679, on remand 154 B.R. 93. Regrettably Section 15 fails in setting forth such reasonable standards as to constrain the discretion of the law enforcer. Because the subpoena power under Section 15 specifically targets “any person” who may not fall within the description of a pre-existing search warrant, Section 15 imposes an undue burden upon that person who happened to be the subject to the “order” of the officer under Section 15 and should by that reason alone be unconstitutional. Section 15 is a circumvention of a court-issued civil discovery subpoena. Third party subjects of subpoenas are given extra consideration by courts here and elsewhere. For instance, it was held that in the context of evaluating subpoenas issued to third parties, the court will give extra consideration to objections of a non-party, a non-fact witness in weighing burdensomeness versus relevance. Schaaf v. SmithKline Beecham Corp., E.D.N.C.2005, 233 F.R.D. 451. It was also held that subpoenas issued by alleged infringer in a patent infringement lawsuit to a nonparty heating, ventilation, and airconditioning (HVAC) business violated the rule providing a duty to take reasonable steps to avoid imposing undue burden or expense upon a person subject to a subpoena, and thus HVAC business was entitled to reimbursement for attorney fees it incurred in
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defending against the subpoenas, where subpoenas sought an extremely broad range of sensitive information, business estimated compliance would cost more than $150,000 and would reveal proprietary trade secrets, and alleged infringer forced the issue by moving to compel compliance with the subpoenas. Huntair, Inc. v. Climatecraft, Inc., N.D.Okla.2008, 254 F.R.D. 677. In a US federal case concerning the Electronic Communications Privacy Act, there the Court held that governmental entities are prohibited from using civil discovery subpoenas to circumvent the Electronic Communications Privacy Act’s protections. In re Subpoena Duces Tecum to AOL, LLC, E.D.Va.2008, 550 F.Supp.2d 606. For the “Order” under Section 15 to be valid under First Amendment privacy interest norms, inter alia, Section 15 should have set forth less intrusive alternative methods of discovery and should have considered the necessity of protection of persons subject to subpoenas generally. Section 15 fails under this standard. For a ruling applying the foregoing test, see, e.g., John Wiley & Sons, Inc. v. Doe Nos. 1-30, S.D.N.Y.2012, 284 F.R.D. 185.
RESERVATION Petitioner respectfully manifests his reservation to file supplemental pleadings and briefs to further develop his theory of the case. —o— MOTION FOR CLARIFICATION Petitioners are likewise respectfully moving for a clarification on the Decision with respect to the assailed Section 12 of R.A. 10175, on whether the entire Section 12 has been declared void and unconstitutional considering that, as stated hereunder, the dispositive portion of the Decision on the matter appears to have declared as void and unconstitutional the entire Section 12 and merely describes the title of said provision, but the Decision’s discussion on Section 12 refers only to the real-time collection of traffic data, and there is no discussion regarding the second part of Section 12 pertaining to the
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collection or seizure or disclosure of other data (i.e., content and identity data) that requires a court warrant but uses “reasonable grounds” as a standard and constitutionally-deficient requirements for the issuance or grant thereof under said provision, thus: WHEREFORE, the Court DECLARES: 1. VOID for being UNCONSTITUTIONAL: xxxx b. Section 12 that authorizes the collection or recording of traffic data in real-time; and (Emphasis originally supplied) Herein petitioners are likewise respectfully moving for a reconsideration of the Decision concerning Section 12, with respect only to the second part thereof, on the use of the standard of reasonable grounds―not probable cause―and constitutionallydeficient requirements in the issuance or grant of a court warrant, should the Honorable Court clarifies that the Decision declaring Section 12 as void and unconstitutional covers only the first part thereof, that is, the warrantless collection or recording of traffic data in real-time. —o—
NOTICE OF CHANGE OF ADDRESS OF UNDERSIGNED COUNSEL Petitioner BAYAN MUNA REPRESENTATIVE J.COLMENARES, by counsel, respectfully states: NERI
1. The undersigned counsel has recently moved out his place of business for public interest practice. 2. It is respectfully requested that, henceforth, the undersigned counsel be furnished with copies of all forthcoming notices, orders, official papers, and process, regarding the instant cases, at his new address123 indicated thus:
Former address: 41-B N. Romualdez St., BF Homes Subdivision, Quezon City 1120. Tel. No. (02) 4306544
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A. EDSEL C. F. TUPAZ Counsel for Petitioner BAYAN MUNA REPRESENTATIVE NERI J.COLMENARES Unit 502 Hudson Bldg, Riverfront Residences Dr. Sixto Antonio Avenue, Brgy. Caniogan, Pasig City 1606 [e] firstname.lastname@example.org . T. +63 2 368 5606. F. +63 2 368 5656
PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioners pray that the Honorable Court: 1) DECLARE Section 4(c)(4) on libel of Republic Act No. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification; 2) DECLARE Articles 353, 354 and 355 of the Revised Penal Code, as amended, VOID for being UNCONSTITUTIONAL; 3) DECLARE Section 4(c)(1) on cybersex of R.A. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification 4) DECLARE Section 5(a)(b) of R.A. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification; 5) DECLARE Section 6 of R.A. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification; 6) DECLARE Section 7 of R.A. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification; 7) DECLARE Section 12 of R.A. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification; 8) DECLARE Section 15 of R.A. 10175 VOID for being UNCONSTITUTIONAL in all respects and without qualification; Furthermore, it is respectfully prayed that the Honorable Court: 1) NOTE the undersigned counsel’s recent change of address and
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2) FURNISH the undersigned counsel with all copies of all forthcoming notices, official papers, and court process, regarding the instant case, at his new address, Unit 502 Hudson Bldg, Riverfront Residences, Dr. Sixto Antonio Avenue, Brgy. Caniogan, Pasig City 1606. Respectfully submitted. Quezon City for the City of Manila, 12 March 2014. By:
A. EDSEL C. F. TUPAZ Counsel for Petitioner BAYAN MUNA REPRESENTATIVE NERI J.COLMENARES Unit 502 Hudson Bldg, Riverfront Residences Dr. Sixto Antonio Avenue, Brgy. Caniogan, Pasig City 1606 [e] email@example.com . T. +63 2 368 5606. F. +63 2 368 5656 IBP No. 962589 - 02/07/2014 – Pasig City PTR No. 9143293 - 01/13/2014 – Quezon City Roll of Attorneys No. 49482 MCLE Compliance No. IV-0016290, 10 April 2013
NATIONAL UNION OF PEOPLES’ LAWYERS Counsel for the Petitioners in G.R. No. 203407 3/F Erythrina Building No. 1 Matatag cor Maaralin Sts. Central District, Quezon City Telefax No. (632) 9206660 Email: firstname.lastname@example.org By:
GREGORIO T. FABROS IBP No. 956492 – 02/04/2014 – Quezon City PTR No. 9323042 - 02/04// 2014 Roll of Attorneys No. 26072 MCLE Compliance No. IV - 0007924; October 17, 2011
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MARIA CRISTINA P. YAMBOT IBP No. 961187 - 02/04/2014 - Rizal PTR No. 1273808 - 1/06/2014 - Rizal Roll of Attorneys No. 59700 MCLE Compliance No. IV – 0016616; April 11, 2013
MINERVA F. LOPEZ IBP LRNo. 011325 - 01/04/13- Pangasinan PTR NO. 9032377/01-02-14/Quezon City Roll of Attorneys No. 60637 MCLE Compliance No. IV -0015617; April 11, 2013
EXPLANATION This Joint Motion for Partial Reconsideration was served to parties and filed with the Honorable Court through registered mail due to resource constraints and lack of personnel to effect personal service.
MINERVA F. LOPEZ COPY FURNISHED: Attys. Louis "Barok C. Biraogo and Victor C. Avecilla No. 115 Mariveles Street, San Jose Village 3 Barangay Binan, City of Binan, Laguna Attys. Berteni Cataluna Causing, Cirilo P. Sabarre, .Jr., and Dervin V. Castro Renta Pe Causing Sabarre Castro & Associates Unit 1, 2368 JB Roxas Street corner Leon Guinto Street Malate, Marila Attys. Jose Jesus M. Disini, Jr., Rowena S. Disini and Lianne Ivy Pascua-Medina Disini & Disini Law Office 320 Philippine Social Science Center Commonwealth Avenue, Diliman, Quezon City
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Attys. Dante Xenon B. Atienza, AIex O. Avisado, Jr., Raymond M. Cajucom, Ronald Michel R. Ubana, Maria Cristina B. Garcia-Ramirez and Rose Anne P. Rosales Gana Atienza Avisado Law Offices 3rd Floor HPL Building No. 60 Sen. Gil Puyat Avenue, Makati City Attys. H. Harry L. Roque, Jr., Romel Regalado Bagares and Gilbert Teruel Andres Roque & Butuyan Law Offices 1904 Antel 2000 Corporate Center 12l Valero St., Salcedo Village, Makati City Atty. James Mark Terry L. Ridon 89 K-7 St., Kamias, Quezon City Attys. Melencio Sta. Maria, Sedfrey M, Candelaria, Amparita delos Santos-Sta, Maria, Gilbert V. Sembrano, Ryan Jeremiah D. Quan, Maria Patricia R. Cervantes, Ray Paolo J. Santiago and Nina Patricia D. Sison-Arroyo Ateneo Human Rights Center G/F Ateneo Professionals Schools Building 20 Rockwell Drive, Rockwell Center, Makati City Atty. Sheryl L. Olano Unit 1409 East Tower, Philippine Stock Exchange Center Ortigas Business Center, Pasig Center Atty. Ricardo Sunga Free Legal Assistance Group (FLAG) Room 201, Malcom Hall, University of the Philippines Diliman, Quezon City Atty. Kristoffer James E. Purisima 6/F LTA Building, 118 Perea Street Legaspi Village, Makati City Attys. Rico A. Limpingco, Arthur Anthony S. Alicer and Michelle Anne S. Lapuz Solis Medina Limpingco and Fajardo Law Offices 1106 East Tower, Phillipine Stock Exchange Centre Exchange Road, Ortigas Commercial Center Pasig City
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Attys. Paul Cornelius T. Castillo and Ryan D. Andres 6th Floor, Tuscan Building 1 14 V.A. Rufino Street, Makati City Atty. Rodel A. Cruz Suite 347 Valero Plaza 124 Valero Street, Salcedo Village Makati City 1200 Atty. Michael J. Mella Santillan-Felix Magbanua and Mella Law Office Unit 1106, Prestige Tower F. Ortigas Jr. Road, Ortigas Center Attys. John Paolo A. Villasor and Renecio Espiritu Jr. Guevarra Mendoza and Espiritu Law Offices Suite 602 Richmonde Plaza Hotel 21 San Miguel Avenue, Ortigas Center Pasig City Attys. Renecio S. Espiritu, Jr. and Kelvin Lester K. Lee San Juan Tayag Lee and Vergara Law Office Unit 804 Xavierville Square, Xavierville Avenue Quezon City Dean John Paolo Robert L. A. Villasor University of Negros Occidental-Recoletos St. Augustin Hall, 51 Lizares Avenue Bacolod City 6100 Atty. Juan Alfonso P. Torrevillas No. 36-B Madasalin St., Barangay Sikatuna Diliman, Quezon City Solicitor General Francis H. Jardeleza ASG Rex Bernardo Pascual ASG Sarah Jane Fernandez Senior State Solicitor Marsha C. Recon Senior State Solicitor Raymund Rigodon Assoc. Solicitor Samantha Camitan Office of the Solicitor General 134 Amorsolo St., Legaspi Village 1229 Makati City Secretary Leila M. de Lima Department of Justice DOJ, Padre Faura, Manila
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Director Nonnatus Casear R. Rojas National Bureau of Investigation NBI, Taft Avenue, Manila Secretary Manuel A. Roxas III Department of Interior and Local Government A. Francisco Gold Condominium I EDSA, Diliman, Quezon City Director Gen. Alan Purisima Chief, Philippine National Police PNP National Headquarters, Camp General Crame, EDSA, Quezon City House of Representatives c/o Speaker Feliciano Belmonte Jr. House of Representatives, Batasang Pambansa Complex Batasan Hills, Quezon City Senate of the Philippines c/o Senate President Franklin Drilon GSIS Building, Financial Center, Roxas Boulevard Pasay City Executive Director Louis C. Casambre Chairperson, Cybercrime Investigation and Coordinating Center Information and Communications Technology Office National Computer Center Building C.P. Garcia Avenue, Diliman, Quezon City Secretary Florencio B. Abad Department of Budget and Management Malacanang, Manila Secretary Mario Montejo Department of Science and Technology DOST Building, Gen. Santos Avenue Bicutan, Taguig City Executive Secretary Paquito N. Ochoa Jr. Premier Guest House, Malacanang J. P. Rizal St., San Miguel., Manila His Excellency Benigno Simeon C. Aquino III Office of the President Malacanang, Manila
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