WHAT'S FRIGHTENING ABOUT CYBERCFRIME LAW?

My relaxation reading these past few days has been Winter of the World, Ken Follet’s Book 2 of his “The CenturyTrilogy.”  The first few chapters are about the gradual rise of Fascism and Nazism amidst an unsuspecting world lulled by the idea that the government knows what is best for the people.  Meanwhile, within our midst there is debate going on about how to teach the facts and the lessons of martial law in schools.  I find this to be an opportune moment to talk about the new Cybercrime Law or RA 10175 to see what shades of Nazism, Fascism and martial rule they might contain. 

The new law is   getting to be the talk of the town these days in legal circles and has signaled hackers of government websites into action.  Inevitably the controversy on the subject will reach the Supreme Court  and the decision should tell us more about the mind of  the new Chief Justice.  Meanwhile, let me just put down a number of preliminary observations.

The title of the law is “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES.” 

The intention of the law, partly good and partly chilling, is set down in its  Declaration of Policy.  The good intention is to acknowledge the important role of communication technology can play for the nation’s overall social and economic progress.  The chilling part is the empowerment of the executive arm  “to effectively prevent and combat [cyber] 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.”

As can easily be seen, the law deals not only with the most delicate rights of freedom of expression, freedom of communication, and the privacy of communication but also with the equally sacred right of the people “to be secure in their persons, houses, papers and effects” against government intrusion.  These rights suffered during the period of martial rule. Their suppression or impairment are usually  the targets of governments who have dark intensions.  When criticized, the facile answer to critics given by those with dark intentions is that these rights are not absolute.  That defense is already being repeated by Palace mouthpieces.  It is therefore a good time to look into the disturbing aspects of the law.  We might begin by taking at least a preliminary look at some of the provisions which are now under attack. 

Section 6 of the law says: “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.”

 Libel has been decriminalized in other civilized jurisdictions.  Our legislature, instead, will throw us back to the dark ages by imposing a higher penalty for libel.  In effect, advance in communication technology is being treated not as a boon but as bane.

Section 7 says: “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.”  This is a clear invitation, if not to double jeopardy, at least to harassment through threat of a second prosecution.  If you are thinking that second prosecution for the same offense is just an invention of American jurisprudence, guess again. Even under Spanish law it was already prohibited by the Fuero Real and the Siete Partidas.  Secion 7 is once again a throwback to the era even before Fuero Real and Siete Partidas were born.

But what is most disturbing to many is section 19 which says: “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.” 

There are very valid reasons for being frightened by this.   I for one recall the law on search and seizure in effect during the past martial law period.  Whereas now no search warrant or warrant of seizure may issue except upon probable cause to be determined by a judge, Section 19, now popularly called the “takedown provision,” does not require probable cause but only prima facie evidence determined not by a judge but by the Department of Justice.  This is a throwback to the provision under martial rule when warrants for the search and seizure of persons, houses, papers and effects could be issued by a “responsible officer as may be authorized by law.”  Not only that; whereas under the draconian rule of martial law warrants could issue only after “examination under oath of the complainants and witnesses he may provide,” no such safeguard is found in Section 19.

It will not do to say that whatever shortcomings there are in RA 10175 will be remedied by Rules and Regulations.  Rules and regulations cannot cure defects in a law.  Moreover, RA 10175 is a penal law that commands obedience under pain of punishment.  Fundamental fairness demands that those commanded should be able to understand what the command says simply by reading the law.

1 October 2012

BISHOPS IN DIALOGUE

Vatican II was a gathering of bishops from all over the world.  But it did not happen that only bishops talked while all others merely listened.  Non-bishops were there too, both cleric and lay, and also women, acting as experts or periti.  The voices that found a place in the final documents were not just those of bishops.  Notably, for instance, the decree on religious liberty owed much to the teaching of John Courtney Murray, S.J. whose freedom to write and lecture had been restricted by the Church before Vatican II.

The experience of bishops in dialogue at the Council, I believe, is part of the reason why after Vatican II there has been a growing number of people who do not think of the Church mainly as Hierarchy but as the Body of Christ and the People of God, cleric and lay, men and women.

Among the bishops themselves dialogue was intense. In an article entitled “Conversation Starters” Richard Gaillardetz made the observation that  “some of the most important work of the council was accomplished at the coffee bars (nicknamed after two Gospel characters, Bar-Jonah and Bar-Abbas) kept open behind the bleachers in the aula. Bishops, after struggling to stay awake during one mind-numbing Latin speech after another, found respite at these coffee bars and often engaged in frank conversation about a variety of topics. It was the sustained, face-to-face conversation and sharing of diverse experiences that opened episcopal eyes to new possibilities.” 

One dynamic emphasized in the article of Gaillardetz was the commitment of the Vatican II bishops to humble learning. “In the century before the council it had become common to divide the church into two parts: a teaching church (ecclesia docens) made up of the clergy and a learning church (ecclesia discens) consisting of the laity. This way of imagining the church dangerously overlooked the fact that bishops do not have a monopoly on divine truth.”  Historians also “point out the remarkable willingness of so many of the council bishops to become students once again. It is easy to forget that a good number of bishops, then as now, found that their pastoral responsibilities made it difficult for them to keep up with current historical, biblical and theological scholarship.”  (Not to mention related secular sciences.) Even Bishop Albino Luciani (the future Pope John Paul I) admitted feeling during the Council that everything he had learned from the Jesuit Gregorian University had become practically useless.  He said that fortunately he had an African bishop as a neighbor in the bleachers in the council hall, who gave him the texts of the experts of the German bishops. That helped him prepare better. 

Another dynamic in the Council was openness to the world.  “Pope John XXIII was convinced that Christians must be willing to read ‘the signs of the times’ and enter into a more constructive engagement with the world. Indeed the history of the council can be read as a long struggle among the council bishops to acquire a form of balanced engagement in which the church could preach the Gospel of Jesus Christ with a humble confidence, challenging the forces of hate and greed even as it affirmed the signs of God’s reign already present in the world. Over the course of the council the bishops became convinced that the times demanded a church that lived in vulnerable and open mission to the world, effecting a transformation from within as leaven. The council thereby turned its back on that pre-conciliar tendency to stand in severe judgment of the world from some privileged Olympian heights.”

The importance of dialogue  in the Church remains today.  New problems have arisen.  The RH Bill problem is perhaps the simplest.  But the church is struggling with others such as ordination of women, married clergy, what to say about gay people, opening communion to the divorced, stem cell debate, etc.  Benedict has recognized this and has put a priority on dialogue with the unbelieving world. He has expanded the Pontifical Council for Culture to improve communication between believers and nonbelievers, “which is often impaired, in his words, by ‘mutual ignorance, skepticism or indifference.’” To lead that dialogue, he appointed Cardinal Gianfranco Ravasi, whose leadership has met with widespread praise.   Let me end with a quote on the subject:

“When controversies broke out lately over invitations by the Pontifical Academy for Life and the Council for Culture to scientists whose research, especially on stem cells, was thought to contravene Catholic teaching, the cardinal rose to give a vigorous defense of dialogue with the church’s ideological opponents. ‘It’s a shaky or fundamentalist grasp of faith that sparks suspicion or fear of the other,’ Catholic News Service reported the cardinal saying. ‘When you are well formed, you can listen to other people’s reasons,’ he added. Solid, serious catechesis is compatible with respectful dialogue.

“At a time when it seems that rote repetition of catechetical formulae is more and more expected of even the most educated Catholics, the cardinal’s openness to dialogue and his trust in Catholics of mature faith and learning to carry on such dialogue are reassuring.  In the modern world, the scandal is not that Vatican officials would engage scientists who disagree with church teaching, but rather that such engagement is regarded as taboo.”

17 September 2012

CONVERSATION WITH A BISHOP

A couple of days ago Bishop Gabriel Reyes of Antipolo diocese, writing under the stationary of the Catholic Bishops Conference, published an ad in the Inquirer and Philippine Star, expressing his disagreement with the views of an unnamed columnist on the merits and demerits of the RH Bill.  The regular readers of my columns in the Inquirer immediately recognized that the Bishop was referring to me. I too recognized it immediately as referring to me.

Not that I object to the reference to me nor to being quoted.  In fact I welcome the bishop’s ad and take it as an invitation to dialogue.  Dialogue among Christians, high and low, is highly encouraged by the Church today.  “In the modern world, the scandal is not that Vatican officials would engage scientists who disagree with church teaching, but rather that such engagement is regarded as taboo.”

The Bishop takes exception to my statement that “the state should not prevent people from practicing responsible parenthood according to their religious beliefs nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious beliefs.”  The Bishop says that he “would be happy if the (non-abortifacient contraceptives) were banned” but that the Church is only against the state promoting contraceptives and providing free contraceptives to people. 

From the bishop’s ad, I gather three points for dialogue. First, the bishop says that now “anyone can buy contraceptives from drugstores or even from ‘convenient stores.’”  Second, (but this is implicit) the state should not use public money to make contraceptives freely available.  Third, the Church teaching on contraception is based not only on Faith or revelation but also on natural law. 

Let’s converse about these. 

First, on easy availability of contraceptives in drugstores.  The clear implication is that the world is free and anyone can buy these.  This is simply not true.  Only those who have the money can buy them.  Legislators, however, are thinking of the vast majority of poor people who need help to be able to practice responsible parenthood.

It is good to remember that responsible parenthood means the exercise of freedom.  The exercise of freedom is only possible if one has the capacity to choose.  A person in shackles is not free to move even if he wants to.  The government is thinking of the vast majority of poor and uninstructed people who do not know what the choices are or who cannot afford to make their free choice and are sometimes driven to abortion.  What the government hopes to do is not to compel them to use contraceptives but to capacitate them to make their free choice and perhaps even save them from abortion.

This, brings me to what I call the bishop’s second point.   I say that the government can only capacitate the poor to make their choice by using public money.  Some would claim that the use of public money or tax money for purposes contrary to some religious beliefs is an illicit use of tax money.  The bishop does not say this in his ad but it is implicit in his desire that the government should not distribute free contraceptives.  Can tax money be used for this purpose?

One must distinguish between tax money and donated money. The use of donated money is limited by intentio dantis or the intention of the donor.  Tax money, on the other hand, can be used for any legitimate public purpose authorized by Congress.  Tax money has no religious face.  Whether or not its use is licit can ultimately be decided by the Court.

But, and this is the bishop’s third point, natural law prohibits contraception and natural law binds everyone because “By studying through correct reasoning the nature of the human person, we arrive at this teaching regarding contraception.” 

One might flippantly answer by asking whose correct reasoning are we talking about?  Plato, Aristotle, Aquinas, Grisez, Chapell, Finnis, etc.? But the statement deserves more than just a flippant answer.  And it is not flippant to say that many serious thinkers have also studied the human person and have not arrived at the conclusion that contraception is evil.  Serious thinkers of other religions have not arrived at such conclusion and for that reason the various religions in the Philippines are not of one mind on the subject.

This necessarily brings us to the matter of free exercise of religion and pluralism which are constitutionally protected.  The bishop argues that by opposing the RH Bill “the Church is not imposing its religious belief on others.  She is trying to stop a bill which is against  natural law, a law which all human beings, Catholic or not, should follow.”  What he is saying is that pluralism should not include what the natural law, as the Church sees it, prohibits.

I do not intend to dispute the meaning of natural law as the bishop or the Church, to which I also belong, teaches.  But  I believe that the bishop’s view is a very narrow understanding of the pluralism which is part of our constitutional system.  Pluralism, which flows from freedom of religion,  is not just about the plurality of theistic religions.  Neither is it merely a matter of which God or god to worship.  Constitutionally protected pluralism includes non-theistic religions such as Budhism, ethical culture, secular humanism and a variety of ethical philosophies.  Of course, it also includes the bishop’s understanding of natural law.  But his understanding is just one of the many including those which do not arrive at the bishop’s conclusion. 

10 September 2012

UNDERSTANDING CATHOLIC UNIVERSITIES

Understanding Catholic Universities

 Joaquin G. Bernas, S.J.

In discussing Catholic Universities one must  begin with Canon 808 of the Code of Canon Law which says: “Even if it really be Catholic, no university may bear the title or name Catholic university without the consent of the competent ecclesiastical authority.”  In that technical juridical sense, the Ateneo and almost all other institutions in the Philippines, save one perhaps, which are publicly regarded as Catholic, are not in juridical terms Catholic.  But are they Catholic in any other sense?

Even Canon 808 suggests that institutions which do not have the ecclesiastical title of Catholic can in fact be “really Catholic.”  The appellation of Catholic can come from various sources.  It can come, for instance, from its origins as founded by various religious orders of men and women.  That in fact is how most Catholic institutions in the Philippines started.  The appellation also comes from what in fact they do.  For this reason these institutions are recognized as affiliated with the Church even if not “canonically Catholic.”

It must also be said that a canonical title is not the litmus test for being truly Catholic. Pope John Paul II in fact looks for more in a Catholic university.  In a speech before Catholic universities in the United States, both canonically recognized and not, he said: 

“A Catholic university or college must make a specific contribution to the Church and to society through high quality scientific research, in depth study of problems, and a just sense of history, together with the concern to show the full meaning of the human person regenerated in Christ, thus favoring the complete development of the person.  Furthermore, the Catholic university or college must train young men and women of outstanding knowledge who, having made a personal synthesis of faith and culture, and both capable and willing to assume tasks in the service of the community and of society in general, and to bear witness to their faith before the world.  And finally, to be what it ought to be, a Catholic college or university must set up, among its faculty and students, a real community which bears witness to a living and operative Christianity, a community where sincere commitment to scientific research and study goes together with a deep commitment to authentic Christian living.

“This is your identity.  This is your vocation. . . .  The term ‘Catholic” will never be a mere label, either added or dropped according to the pressures of varying factors.”

Briefly, a Catholic university is not just an institute for teaching catechism..

Further, in the same speech, John Paul II emphasized the importance of academic freedom:  “As one who for long years have been a university professor, I will never tire of insisting on the eminent role of the university, which is to instruct but also to be a place of scientific research.  In both these fields, its activity is deeply related to the deepest and noblest aspiration of the human person: the desire to come to the knowledge of truth.  No university can rightfully deserve the esteem of the world of higher learning unless it applies the highest standards of scientific research, constantly updating the methods and working instruments, and unless it excels in seriousness, and therefore in freedom of investigation.”

It is in this context that Father Jose “Jett” Villarin has defended what the Ateneo professors have been doing.  At the same time, this is the measuring rod according to which Ateneo professors, and other professors of Catholic universities, must examine their individual consciences.  Similarly, those who criticize them must meet them in the context of the field of expertise from which they write and not only in the limited context of the Baltimore Catechism.

One might also ask, is Father Jett being faithful to the teachings of the Society of Jesus?  We Jesuits tend to disagree among ourselves about almost everything.  As an Italian saying goes, Tre Jesuiti, quattro opinioni.  Perhaps cinque or even more.  But I think if we surveyed the opinion of Jesuits in school work we will find them overwhelmingly in agreement with the words of the Superior General of the Jesuits, Father Peter-Hans Kolvenbach in an address entitled “The Jesuit University in the Light of Ignatian Charism.”  He said:  “Far be it from us to try to convert the university into a mere instrument of evangelization, or worse still, for proselytizing.  The university has its own purposes which cannot be subordinated to other objectives.  It is important to respect institutional autonomy, academic, freedom, and to safeguard personal and community rights.” Father Kolvenbach goes on to insist that there is no inherent schizophrenia in the identity of a Jesuit college or university.  “In a Catholic university, or one of Christian inspiration, under the responsibility of the Society of Jesus, there does not exist – nor can there exist – incompatibility between the goals proper to the university, and the Christian and Ignatian inspiration that should characterize any apostolic institution of the Society of Jesus.

Father “Jett” told me at supper that Archbishop Chito Tagle, at the wake for Jesse Robredo, condoled and commiserated with him (probably with a wink!) as he parries the slings and arrows coming his way from “loyal Catholics catechists.”  Jett can take it.   He is young and was Valedictorian of the same Ateneo college batch as Chief Justice Maria Lourdes Sereno.

3 September 2012