Journalist Maria Ressa was hauled off to detention, 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.