CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
21 June 2017
from : http://dict.gov.ph
DICT Secretary Rodolfo Salalima was in the news lately as he said his Department may use the Cybercrime Act to arrest individuals for posting seditious materials online, and the crime is cyber sedition. Is there such a crime?
A basic rule in criminal law is encapsulated in the Latin maxim “nulla poena sine lege” or what is commonly translated as “no penalty without a law” which means one cannot be punished for doing something that is not prohibited by law. Is Sec. Salalima correct in what he was saying recently?
First thing we have to examine is the Cybercrime Act itself or Republic Act 10175 and it there says in sec. 6 and also sec. 7 :
All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
Section 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
The DICT Secretary is correct in saying that the crime of sedition, being a crime penalized under the Revised Penal Code, in sec. 139, if committed through and with the use of information and communications technologies, may come under sec. 6 of the Cybercrime Act, thus his term cyber sedition, minus the hypen, or that may be the editorial judgment of the newspaper editors who wrote up such news report.
But let’s examine further if posting seditious material online can really be considered seditious. Let’s look at the elements of the crime of sedition and per our handy Revised Penal Code hornbook Luis B. Reyes (2012 18TH ed.) indicates, they are the following :
1. That the offenders rise (1) publicly and (2) tumultuously;
2. That they employ force, intimidation, or other means outside legal methods
3. That the offenders employ any of these means to attain any of the following objectives:
a) To prevent the promulgation or execution of any law or the holding of any popular election;
b) To prevent the national government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any executive order;
c) To inflict any act of hate or revenge upon the person or property of any public officer or employee
d) To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and
e) To despoil, for any political or social end, any person, municipality or province, or the national government, of all its property or any part thereof.
The immediate problem from this enumeration is that, can the element of rising publicly and tumultuously be done, using the key operative verbs of the Cybercrime Act, “by through and with the use of” online methods ? We believe it cannot be done in such manner, thus any criminal prosecution for cyber sedition will most likely fail because of the failure to prove this key first element of the crime of sedition.
The remedy for the lawyers of the DICT here may be to cite instead art. 142 of the Revised Penal Code, the crime of inciting to sedition, which has the following elements :
1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.
2. Uttering seditious words or speeches which tend to disturb the public peace;
3. Writing, publishing or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb the public peace.
What the lawyers of the DICT may also invoke is that when the words uttered or speeches delivered or scurrilous libels published have the tendency to disturb any lawful officer in executing the functions of office, etc., it is not necessary, to constitute a violation of art. 142, that the purpose of the offender is to accomplish any of the acts of sedition. This is because, according to Luis B. Reyes, the second part of art. 142, which defines other modes of committing the crime of inciting to sedition, does not require it.
But looking further at the big picture regarding the Cybecrime Act, the Supreme Court in the case of Disini, et.al. v. The Secretary of Justice, et.al. G.R. No. 203335, February 11, 2014, actually nullified some of its provisions and in the case of sec. 7, one of the legal anchor of DICT Sec Salalima for filing cyber sedition or cyber inciting to sedition, the Supreme Court has this to say about this provision:
the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
For those who may now be prosecuted for cyber inciting to sedition, one approach for the defense may be to use the same argument as what the Supreme Court said in this case cited above on the constitutionality of the Cybercrime Act, in declaring as unconstitutional the cybercrime acts of online libel in art. 353 of the Revised Penal Code and child pornography on the ground of double jeopardy, the prohibition stated by the Constitution against being prosecuted twice for the same acts.
It is all up to the trial court though, to decide and perhaps, if the defense counsel is determined, to see whether the Supreme Court may agree.