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DOJ uses wrong law to justify charging Maria Ressa with cyber libel beyond the one year prescriptive period

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By Raïssa Robles

TRO - Lady justiceJournalist Maria Ressa was hauled off to detention yesterday, based on a Department of Justice resolution which said the period for filing a cyber libel complaint has not lapsed.

The DOJ resolution clearly stated that: “Under R.A. No. 3326, which governs the prescription of offenses punished by special laws, such as RA No. 10175, the prescriptive period of the offense charged is twelve (12) years (Sec. L (d), R.A. No. 3326, as amended). Clearly the 19 February 2014 publication has not prescribed.”

Now let us dissect this piece of legal shorthand. What the DOJ wrote in its resolution is that Republic Act No 3326 lays out the period during which criminal complaints have to be filed after an offense is committed. Claiming that the Cybercrime Prevention Act of 2012 (RA No. 10175) is a “special law”, it stated that 12 years is the prescriptive period during which the charge of cyber libel has to be filed, as found in RA 3326.

Since the article which is the cause of the criminal complaint was revised on February 19, 2014, “clearly” [this] has not prescribed, the DOJ said.

Sounds impressive, right?

Except that RA No. 3326 IS THE WRONG LAW TO CITE when it comes to prescriptive periods of crimes. RA 3326 is a 1961 law creating additional posts for fiscals or prosecutors.

Here is the wording below:

REPUBLIC ACT NO. 3326

AN ACT CREATING FOUR ADDITIONAL POSITIONS OF ASSISTANT PROVINCIAL FISCAL IN THE PROVINCE OF ORIENTAL MISAMIS, AMENDING FOR THIS PURPOSE Sec. SIXTEEN HUNDRED SEVENTY-FOUR OF THE ADMINISTRATIVE CODE, AS AMENDED

Section 1. The provisions of Section sixteen hundred seventy-four of the Administrative Code, as amended, relative to the number of assistant provincial fiscals in the Province of Oriental Misamis, is further amended to read as follows:

“Oriental Misamis, six assistant provincial fiscals;”

Sec. 2. This Act shall take effect upon its approval.

Enacted, without Executive approval, June 18, 1961.

And here is the link to the law in my favorite online library, Chanrobles.com

So what law was the DOJ resolution, which justified Maria Ressa’s arrest, referring to?

It was referring to Commonwealth Act 3326:

AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL ORDINANCES AND TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO RUN

Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) after a year for offenses punished only by a fine or by imprisonment for not more than one month, or both; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) after eight years for those punished by imprisonment for two years or more, but less than six years; and (d) after twelve years for any other offense punished by imprisonment for six years or more, except the crime of treason, which shall prescribe after twenty years. Violations penalized by municipal ordinances shall prescribe after two months.

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceeding for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of the law not included in the Penal Code.

Sec. 4. This Act shall take effect on its approval.

ChanRobles forgot to say when this law was approved. However, a Senate Bill filed by Senator Leila de Lima states that CA 3326 was dated December 4, 1926. Here is the link.

Aha, so what’s the problem?

Two things.

First, I asked University of the Philippine constitutional law professor Antonio La Viña the implications of citing the wrong law to justify Maria Ressa’s arrest.

Prof. La Viña told me: “It makes the arrest even more unlawful.”

I mean, Section 14 of our Bill of Rights in the 1987 Constitution guarantees that:

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him…

Second, CA No. 3326 was enacted on December 4, 1926 when the Philippine Islands were a US colony. Nothing wrong with that. Our “Revised Penal Code” dates back to 1930.

However, on June 18, 1966, Congress passed RA 4661. It specified that  “The crime of libel or other similar offenses shall prescribe in one year.”

REPUBLIC ACT NO. 4661

AN ACT SHORTENING THE PRESCRIPTIVE PERIOD FOR LIBEL AND OTHER SIMILAR OFFENSES, AMENDING FOR THE PURPOSE ARTICLE NINETY OF THE REVISED PENAL CODE

Section 1. Article ninety of the Revised Penal Code is hereby amended to read as follows:

“Art. 90. Prescription of crimes. — Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years.

“Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

“Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years.

“The crime of libel or other similar offenses shall prescribe in one year.

“The offenses of oral defamation and slander by deed shall prescribe in six months.

“Light offenses prescribe in two months.

“When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article.”

Sec. 2. The provision of this amendatory Act shall not apply to cases of libel already filed in court at the time of approval of this amendatory Act.

Sec. 3. This Act shall take effect upon its approval.

Approved: June 18, 1966

In effect, RA 4661 amended CA 3326.

It’s only common sense to think that a later law on prescription periods amends or scraps or revises an earlier law.

So, that IS a problem. Under RA 4661, even the revised article of Rappler should no longer be the subject of libel litigation by February 19, 2015.

And yet, Maria Ressa was arrested yesterday, her arrest justified by citing the wrong law and not taking into account that the prescription period for the crime she is accused of has already lapsed.

Meanwhile, please also read my story in South China Morning Post entitled:

‘BE SILENT OR YOU’RE NEXT’: MARIA RESSA POSTS BAIL, BUT ARREST ‘PUTS ALL FILIPINOS AT RISK’

Read what the lawyer of complainant Wilfredo Keng and Prof. La Viña told me.

Happy Valentine. ♥

Comments

  1. Another TOPIC – the Pork barrel in the Budget for 2019

    Sen. Lacson says: “‘Yan ang mga insertions na ginawa. I do not know who is from Lubao, Mr. President,” he said during the budget deliberations on the proposed 2019 budget.” INSERTIONS of money for 1 congressional District – Lubao, Pampanga. Is this ‘insertion’ legal?
    .
    How much money is ‘inserted’? for Lubao? – ‘a P500-million project for farm to market roads alone just in one district.’ The Senator says ‘My point is there is grave abuse of discretion tapos sasabihin nila walang pork,” Lacson said.’ GRAVE ABUSE OF DISCRETION? Unlawful pork barrel?

    ‘May congressman na nagkaroon ng additional P1.5 billion. May isang congressman o sabihin nating congresswoman na nagkaroon ng P1.6 billion additional. So puwede ba pabayaan namin nang ganoon yan?” Lacson told reporters Monday night.’ Why should ‘insertions’ be complained of is such are IN THE BUDGET? Complained as unconstitutional under the Poke Barrel cases the SC ruled in 2013?

    Sen. Lacson says: ‘x x x let the public judge.’ How am I to know if ‘insertions’ in the Budget here is illegal and unconstitutional? Maybe to know it would bring me to what the SC said about Pork Barrel issues. The COURT said:

    On PAGE 43: – ‘Thus, for all the foregoing reasons, the Court
    hereby declares the 2013 PDAF Article as well as all other provisions
    of law which similarly allow legislators to wield any form of post
    -enactment authority in the implementation or enforcement of the
    budget, unrelated to congressional oversight, as violative of the separation
    of powers principle and thus unconstitutional.Corollary thereto,
    informal practices, through which legislators have effectively intruded
    into the proper phases of budget execution, must be deemed as
    acts of grave abuse of discretion amounting to lack or excess of jurisdiction
    and, hence, accorded the same unconstitutional treatment.
    That such informal practices do exist and have, in fact, been
    constantly observed throughout the years has not been substantially
    disputed here.’

    Thus, is it unconstitutional that a legislator getting an ‘insertion’
    ‘wields any form of post-enactment authority in the implementation
    or enforcement of the budget unrelated to congressional
    oversight’ is violative of the separation of power principle in his/her
    congressional District?

    On Page 42 of the Decision, a legislator must be able
    to identify the project which ‘his PDAF can be tapped
    as a funding source’. Now, the Budget for 2019 with ‘insertions’
    are ably identified to projects. Constitutionlly valid?

    Hindi ko mahusga. Supreme Court mag husga.

  2. On February 11, 2014 the SC ruled portions of R.A. No. 10175:

    xxx Valid and constitutional;

    xxx Void and unconstitutional.

    DISPOSITIVE portion:
    Valid and constitutional – g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with the use of information and communications technologies; h. Section 8 that prescribes the penalties for cybercrimes;

    x x x 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

    x x x Lastly, 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, WITH THE EXCEPTION of the crimes of:

    1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy x x x

    So, far, there is no case-ruling yet on ‘republication’ in Libel cases, whether a ‘statement’ was added or not; or only ‘dots, marks, etc.’ were made in the republication – [DOJ’s resolution that there was in the republication by accused Ressa, et. al.] This issue maybe be important whether the crime of libel under the first publication ‘lapsed’ or not [ prescribed ].

    https://www.lawphil.net/judjuris/juri2014/feb2014/gr_203335_2014.html

    • 1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy x x x

      Proscription and Prescription terms get me curious and confused. I heard Noynoy utter this Prescription Period in reference to Gloria Arroyo’s attempt to evade the law by sneaking out of the country. So as senators and congressmen, the media as well, even some Supreme Court Justices, but mostly, the SC in their rulings used PROSCRIPTION.. With my Funk & Wagnalls dictionary, says the two words are not the same. I am not sure still.

      I just thought that in legal parlance, accuracy in wordings is a must.

      Maybe Leona has an idea?

        • uhm, may pork din yata ang ruling ng rtc at may insertion pa gani, one year prescription period dinagdagan and made it 12 years. may pork lagi, he, he, he.

      • rolly, may coffee break yata si leona, begging your pardon if I jump in.

        para sa akin po, prescription is much like what the doctor ordered, agreed by governing body and recommended thusly. a guideline for pharmacists and patients to follow.

        yong proscription naman po is like veto.the right to reject, denounce or overrule as commonly practiced by higher authority.

        maybe law has similar pattern: prescription and proscription being at opposite end of the spectrum, magkasalungat baga. where prescription is recommendation, proscription narrows it down and sometimes overrules the recommendation all together and nullifies it.

        our resident lawyer leona can explain this better. cheers.

  3. “MARIA RESSA ARREST TESTS THE BOUNDS OF PHILIPPINE CYBER LIBEL LAW”

    “This is a legal point that perhaps I think is something that we can bring up all the way to the Supreme Court.” says leading cyber lawyer and Rappler counsel JJ Disini

    “The cyber crime law in the Philippines, young in itself and which underwent intense scrutiny even after its enactment, will again be tested by the arrest of Rappler CEO Maria Ressa

    “Ressa was arrested and detained overnight on Wednesday, February 13, by the NBI by virtue of an arrest warrant by Judge Rainelda Estacio-Montesa of Manila Regional Trial Court Branch 46

    “A copy of the charge sheet as well as the court resolution are not yet available to both the media and Ressa’s lawyers as of press time, but the warrant means the judge found initial probable cause to proceed with the case

    “Ressa’s counsel and leading cyber lawyer, JJ Disini said that the case will have implications on other online publications

    “The first contention is the prescriptive period. In ordinary libel, which is Article 355 of the Revised Penal Code, the crime of libel or other similar offenses shall prescribe in one year

    “The article in question – a story that links the late former Chief Justice Renato Corona to the businessman and complainant Wilfredo Keng – was published in May 2012

    Under the Revised Penal Code, the complaint should have been filed before May 2013. It was filed only in October 2017

    In the resolution of the DOJ indicting Ressa, prosecutors cited Section 1(d) of Act 3326 in saying that special acts such as the Cybercrime Law prescribe ‘after twelve years’

    Disini, who had challenged the cybercrime law’s constitutionality before the SC, said that “the interpretation taken by the DOJ is wrong.”

    https://www.rappler.com/nation/223447-maria-ressa-arrest-tests-cyber-libel-law-philippines

    • kaya nga po sa korte magkaka alaman…sa aming mga masa,dapat sagutin ni madam ressa ng derecho ung isyu…na d nman daw totoo ung paratang nia..at d nga sana un mag dedemanda kung inalis na ung naisulat…mali ba ung nasulat ni madam ressa o tama?un lang un….

      • What a simple mind you have. Un lang un is not yun lang yun,eh. ETO O, 6 TIMES ALMOST successful arrests AND ONE recent successful but wrongful ARREST that’s 6 BAILS IN TWO MONTHS, YUN LANG YUN EH?

        I DON’T KNOW WHY I am even responding to you, simple minded man.

        Comprehend Raissa’s s article.To tell you the truth that arrest was hugely wrong and complicated. Read more and use your reading comprehension…. and

        Learn your rights.

        https://news.abs-cbn.com/news/02/16/19/maria-ressa-6-arrest-warrants-in-2-months-not-regular?fbclid=IwAR0T6inEzOjIgIyTiFDJI6AfkD9dqDvXVJtdB8zVuuBhSNfAzBmKjS9i5C0

        You wanted her to delete, withdraw her articles, news.
        Oh boy, no credible respected bemedalled journalist would ever back off on her articles even under fire.

        • so tama ang akusasyon ni write up ar article ni madam ressa?.SANA MASABI UN SA masa..sa mga interview…na tama cia sa pag akusa kay keng at mali lahat pati ang DOJ /ang NBI/si panelo/ang mga judges na nag isyu ng warrant of arrest etc…puro may problem djn cla sa reading comprehension at pag intindi sa bataa?stick lang tayo sa debate o kuro2 at wag na mag name calling o maging sarcastic…

      • jc, sinadya mo bang ibahin ang pangalan ng complainnant (keng) upang hindi ka makasuhan ng cyber libel?

      • Hindi obligado ang Rappler na tanggalin sa website nila ang isang storya na sinulat galing sa legitimate sources. Karapatan yun ng media, guaranteed by the constitution.

        • very true, very true. rappler stood its ground. kudos to rappler for exposing the truth that hurts. kaso, bakit ang tagal namang inupuan ni keng ang hurt niya at hindi kaagad sinita ang rappler? plodded baga siya from the powers that be at sa 2017 lang kumilos at saka nagsampa ng kaso? ay naku, build build build questions.

          inquirer removed sotto’s pepsi paloma article.

          and rappler is certainly not inquirer.

        • anyhow, we cannot be all cowards! kudos, kudos, kudos talaga to rappler for standing up to what is right, and did what is right.kudos for being so brave and true at heart.

    • kalahari, I hate to say this, but I’ll say it anyway: disini should take extra care!

      lawyers are being killed ngayon lalo na yong mga dumidepensa sa mga ginigipit like farmers, journalists, parents, students, etc. so far ang alam ko 36 lawyers na yata killed sa rehimon ni digong.

      methink, ressa was cased the 24hrs before her arrest, shadowed and observed both at home and at work. unlike trillanes who has military background and knows a casing when he sees one, ressa who is only a journalist and heads down at work was sitting duck, trapped with nowhere to go.

      alert building sekyu knew ressa was being cased, and duly opened the door and welcomed nbi men on thier arrival. heeyah, felllers, have a nice day, this one’s on me! he, he, he.

  4. Section 30. Repealing Clause. — All laws, decrees or rules inconsistent with this Act are hereby repealed or modified accordingly. Section 33(a) of Republic Act No. 8792 or the “Electronic Commerce Act” is hereby modified accordingly. [ R. A. No. 10175 including LIBEL as cyber-crime. ]

    So, as to PENALTIES and ACTS which are criminal under the Revised Penal Code, as Amended and SPECIAL LAWS – inconsistent to R.A. No. 10175 SEC. 30, with use of a COMPUTER device or system, are REPEALED or MODIFIED accordingly. Necessarily this Cyber Crime law refers to INTERNET use.

    One QUESTION on Ms. Rezza’s libel case, an RTC Court BRANCH 46 in Manila, issued a warrant of arrest and NBI took her into custody – arrested. Is this court designated as a Cyber Crime court under
    Section 21 Chapter V of R.A. No. 10175 – There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.?

    What is R.A. No. 10175 on libel and to all other acts as crimes? It is to SUPPRESS. Where do you find this word?

    ‘ REPUBLIC ACT NO. 10175:

    AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES ‘?

    So, it looks like no defense in arguments for an accused of libel can be made except by petitioning to declare libel provision as cyber-crime as unconstitutional for being in violation of the 1987 Constitution BILL OF RIGHTS – Art. III Section 4: “Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

    So, clearly SECTION 4 is a BULL. . . one bull of the rights!

    A bull to be killed. bull-bull nga!

    he he

    • begging your pardon po, my teacher once said we should not read too much into the bill of rights, dahil it will only be the rights of one vs the rights of another. and there can only be one winner.

      anyhow po, I am waiting for the outcome of trillanes libel case vs mocha uson, she being relentless sa kapaninira kay trillanes time and time again. methink, si jover din po of pinoy ako blog also has libel case coming up vs one of duterte’s diehard supporters.

      cyber libel law maybe an ass but it’s a law and we all have to obey it, damn!

      I so admire po those that are not fazed by cyber libel and goes on to expose what should be exposed at the expense of their personal freedom.

      and it is only fair, fairer, fairest po that prescription period of cyber law is strictly adhered and taken into account, or else. suck it! bull na bull!

      • punctuality yan po ang sagot ko sa section 4, bill of rights. kung agrabyado, pls dont wait years and years after the incident has happened to address grievances vs a person dahil baka patay na po yang person. be prompt and show umbrage early on, and file cybel libel case roughly a month after the incident, strike while the iron is hot baga. wait too long and that would be rido, walang hanggan yang rido at walang prescription period. pintakasi!

        sorry po kung taliwas ang isip ko.

  6. I never got mistaken following you, I lam learning ” lawyering” issues. 2019 na Raissa, nandyan ka pa rin. Don’t ever get tired of being a good person and a smart one in your blessed field. Good and bad presidents come and go, but you remain to be loyal to your profession and became sharper and patient. HAVE A GOOD HAPPY HEART’S DAY OR BELATED.

    Sabi nga ni Aga’ng laos, nakakapagod na … ang politica ni dutz. Kailan kaya sya mag re-rest…<<, :) Amen!

    OCHO DERECHO na po tayo,, no one left behind pls… eight years warranty. Isama nyo na si ROXAS. pls. Nothing wrong with that.

  7. what in the name of the blighted durian is wrong with doj? sa palas, panelo said ressa is not above the law, wrong statement yata to; dapat ressa is victim of the law whereas complainant deng is above the law. deng was allowed to operate outside the law, given basbas by doj that conveniently pick and chose the wrong law, twisted that law and resulted with ressa being dinampot.

    doj’s guevarra is not wearing wig, but he might as well wear wig, the way he carried on doj chief pa naman siya. lest he has reason to be distracted and kamot his ulong makati, his wig askew, his thinking on vacation sa manila bay, he, he, he.

    duterte said he has nothing to do with ressa’s arrest kuno; yeah right, naunahan yata si duterte by his own spokesman, the ever postulant panelo so quick to jump into the fire. so deny na lang gyud si duterte, nothing to do with ressa’s arrest, to panelo’s ressa is not above law, por dyos po santo, it’s only panelo who said ressa is not above the law while hilong talilong pa ang karamihan, shock, shock, shock sa nangyari. doj got the wrong person, at dapat si deng ang binanggit ni panelo, for trying to be above the law, reach ni deng ought to be capped. expired na pala at outside the statute of limitation ang complain ni deng.

  8. Hmmm.. even in 1930, our RPC already set the prescription period to 1 year. Hindi na inform c judge at Guevarra?

  10. I never doubted Maria’s innocence with this shenanigan. Let’s just hope she will stay safe under these dangerous circumstances. Thank you for this very insightful article as always…

    • exercise yata yon sa resolve ni maria ressa. she was metaphorically put in the washing machine on full cycle pa. and she was supposed to come out shaken to the bone; broken in mind, body and spirit, small woman that she is. buti na lang at hindi siya nanlaban! bang!bang!