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Cyber law TRO: A face-saving gesture?

Publication Date : 12-10-2012

 

The temporary restraining order issued by the Philippine Supreme Court, “enjoining the [government] from implementing and/or enforcing Republic Act No. 10175 (Cybercrime Prevention Act of 2012),” is a welcome decision. We join the many who think it was the right legal call, considering the new law’s immediate chilling effect on fundamental rights such as free speech. We also share the view of a few, who think it was the right political call.

The notice the Supreme Court released after it met en banc on Tuesday consolidated all the 15 petitions filed against the law, ordered the parties and the government’s chief lawyer to respond within 10 days, set oral arguments for Jan. 15—and issued a TRO effective for 120 days. The vote, we understand from various sources, was unanimous.

All of this explains the swift and powerful impact the Court’s action had on the political discourse. (The legal impact, naturally, was equally immediate.) The unanimity of the vote sent an unmistakable signal that the issues at bar were of paramount importance, and that there was strong support among the justices for the course of action they had chosen.

The deliberate pace with which the Court decided on its course of action (it did not issue the TRO last week, when it had its first opportunity) suggests that the Court managed its decision-making process precisely to make that unanimity in view possible. We get the same sense of careful process management in the Court’s scheduling of oral arguments: over three months after the TRO took effect, about a month before the TRO expires. That leaves the Court enough time to write an opinion that will both attract a solid majority and come out before the TRO lapses.

We must also consider that the unusual TRO period of 120 days has had what amounts to a diplomatic effect on the members of the houses of Congress, the very people who passed the law. Many have been persuaded to see it not so much as a slap on the wrist but as a face-saving gesture.

We firmly believe that the cybercrime law’s provisions on libel and the so-called takedown clause are unconstitutional, and continue to trust that the Supreme Court will, if push comes to shove, find that these same provisions violate the Constitution. But the Court’s course of action seems to have been designed to allow Congress itself enough time to find its own remedy. This is what we mean when we say the Court’s decision was politically wise.

The other day, broadcast journalist Ted Failon asked on his radio programme: Why schedule the oral arguments for January? Isn’t the matter important? Why the lack of a sense of urgency? Failon may have temporarily forgotten the lessons he must have learned as a one-term congressman, but if he were back in Congress, wouldn’t he welcome the Court’s impressive restraint? The TRO’s suspension of the law removes much of the issue’s urgency, but the fact that the suspension is only temporary leaves the issue’s importance in place.

And four months: That’s enough time for Congress to defang the cybercrime law on its own; the Court must have taken notice of the ongoing attempts by at least six legislators in both chambers to file amendatory bills. There is even another alternative. The Senate and the House of Representatives can use the reprieve as an opportunity to finally decriminalise libel. Objections to the current libel regime have always revolved around its criminal nature. They have never been about evading responsibility, but only about removing the onerous, dangerously outmoded criminal liability imposed by the 8-decade-old Revised Penal Code.

If Congress responds the way we think it is being invited to do so, then the Court’s 5-page notice released on Tuesday may mark a true milestone in the developing maturity of our political institutions. The Supreme Court acted surefootedly to protect the public from a wildly denounced menace, and yet allowed Congress to undo the damage it had caused without needing to judge the lawmakers’ own, original lapse in judgement.

 

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