Ex-SC justices Antonio Carpio and Conchita Carpio-Morales, UP law profs challenge anti-terrorism law
This composite photo shows former Supreme Court Senior Associate Justice Antonio Carpio and retired Ombudsman Conchita Carpio Morales.
The STAR/Michael Varcas, Boy Santos

Ex-SC justices Antonio Carpio and Conchita Carpio-Morales, UP law profs challenge anti-terrorism law

Kristine Joy Patag (Philstar.com) - July 22, 2020 - 11:52am

MANILA, Philippines (Updated 12:47 p.m.) — Retired Supreme Court justices, Antonio Carpio and Conchita Carpio-Morales—also former chief graft-buster—led the 11th group of petitioners asking the tribunal to strike down the much-feared Anti-Terrorism Act (ATA) of 2020 as unconstitutional.

Carpio and Morales returned to the SC to challenge the new anti-terrorism law in an 86-paged Petition for Certiorari and Prohibition filed on Wednesday. They are joined by the University of the Philippines College of Law.

They asked the SC to issue a temporary restraining order of a status quo ante order to restrain the implementation of the law, and urge the conduct of oral arguments. They also prayed to declare the entire Republic Act 11479 as unconstitutional.

The Carpios asserted: “The ATA heavily burdens protected speech by the vagueness and overbreadth that permeate its text, creating a chilling effect that suppresses the expressive freedom in violation of Article III, Section 4 of the Constitution.”

They also said that the law curtails many other liberties enshrined in our Constitution, and transgresses the principle of separation of powers.

This is the second petition filed since the law had taken effect on July 19—as Malacañang has insisted—and the 11th overall against Republic Act 11479.

West Philippine Sea advocacies may be construed as terrorist act

In asserting their legal standing in filing the petition, at least three of the petitioners raised the point that their advocacy and activism in the upholding the Philippines’ rights over the West Philippine Sea may be perceived as a call to withdraw support from the Duterte administration.

Antonio Carpio, Conchita Carpio-Morales and maritime expert Jay Batongbacal did not mince their words in criticizing the Duterte government’s handling of the WPS arbitration award.

The petition said that Antonio Carpio may be prosecuted for inciting to terrorism. “Further, his words may be construed under Section 4(c) of the ATA as ‘extensive interference’ with ‘critical infrastructure’ (ie. the diplomatic machinery of the country) intended to ‘provoke or influence’ the government to take a particular action.”

READ: Carpio warns: Situation 'worse than martial law' under anti-terrorism law

The retired ombudsman’s filed communication before the International Criminal Court against Chinese President Xi Jinping, may fall under terrorism, in an interpretation of the law’s text on Section 4.

Overbroad definition of terrorism

The petitioners also argued that the ATA “deters protected speech and other fundamental rights thus enabling a facial challenge.”

The petition stated that attendees of protests during this time of pandemic may be deemed as persons endangering the lives of others due to possibility of transmitting the coronavirus in a mass gathering.

“Such conduct—an otherwise legitimate exercise of the freedoms of expression and peaceful assembly—can be penalized under the broad scope of Section 4(a),” it read.

The petitioners also noted that no less than National Security Adviser Hermogenes Esperon Jr. had publicly labelled critics of ATA as supporters of terrorists.

They also said that the creation of the Anti-Terrorism Council, composed of Cabinet members, is invalid as it “infringes the basic principle of separation of powers and... vests [it] with powers that far exceed those Constitutionally-granted to the President.”

The petitioners also noted that the ATA “has demolished [the] Constitutional guarantee and reinstated the (Arrest, Search and Seizure Orders) of the Martial Law era,” as it allows detention without judicial warrant for up to 24 days. ASSO was used by the regime of the late dictator Ferdinand Marcos Sr. to round up government dissenters.

Sec. 29 not premised on rules on warrantless arrest

Sen. Panfilo Lacson, sponsor of the bill, said that the “legislative intent” of Section 29 was premised on warrantless arrests under Rule 113 Section 5 of the Revised Rules of Criminal Procedure.

Under the rules, a warrantless arrest may be done if a person has committed, is actually committing, or is attempting to commit an offense; if a crime has just been committed; or if the person is an escaped prisoner.

The petitioners rejected this defense saying that an arrest authorized by the ATC do not fall under rules Lacson cited.

RELATED: In reply to Palace request for comment on anti-terrorism bill, IBP urges veto

“If a law enforcer needs written authority from the ATC and to effect a warrantless arrest under Rule 113...then that will defeat the purpose of a Warrantless Arrest which applies where the offender is caught in flagrante delicto or after a hot pursuit and time is of the essence,” they said.

The legal luminaries stressed that under Rule 113, there is no need for longer period to conduct further investigation to charge a person since the arrest was made on personal knowledge of the law enforcers. If, under the ATA, the law enforcer can conduct a warrantless arrest since he has personal knowledge of a person’s offense, then it is “pointless to detain a person for 14 or 24 days without a charge in court.”

This section also opens for the possibility of endless warrantless detention. “On the 25th day, the ATC may order the re-arrest of the designated individual or member of an organization that remains designated/proscribed as a ‘terrorist’ since the designation or proscription order is still valid.”

RELATED: Roque: Duterte OK with pre-trial detention up to 24 days under anti-terrorism bill

As It Happens
LATEST UPDATE: January 15, 2021 - 4:25pm

President Rodrigo Duterte signed the Anti-Terrorism Law on July 3 despite opposition from rights groups and civil society groups that it could be used to stifle human rights.

A petition against the law has been filed at the Supreme Court and other groups are preparing pleadings of their own.

Follow this page for updates. Photo courtesy of The STAR/Michael Varcas 

January 15, 2021 - 4:25pm

The Supreme Court resets oral arguments on anti-terrorism law petitions to February 2, after Solicitor General Jose Calida said his assistant solicitor general and some staff tested positive for COVID-19. — Philstar.com/Kristine Joy Patag

October 14, 2020 - 2:35pm

The Anti-Terrorism Council has aproved the Implementing Rules and Regulations for the Anti-Terrorism Law, Justice Secretary Menardo Guevarra confirms.

The implementing guidelines were crafted by a technical working group led by the DOJ, he also says.

"We will disseminate copies to the Congress and to law enforcement agencies as required under the law, and will publish the IRR online and in a newspaper of general circulation in the next few days," he says.

August 30, 2020 - 12:47pm

Desaparecidos, an organization made up of families of victims of enforced disappearances, is worried that more may go missing under the anti-terrrorism law.

"We fear that Duterte's terror law will enable State forces to resort to extraordinary measures such as abductions and enforced disappearances like what they did to my daughter to instill fear on its critics and activists as the government spins out of control because of the pandemic and the ailing economy," Erlinda Cadapan, Desaparecidos chairperson and mother of missing University of the Philippines student Sherlyn Cadapan, says in a statement.

She says that Section 29 of the Anti-Terrorism Act allows detention without charges for up to 24 days "practically opens up the option for State forces to resort to enforce disappearance rather than complying with legal requirements to detain suspects."

August 25, 2020 - 9:30am

The Free Legal Assistance Group, which represents senators and media practitioners in a petition against the Anti-Terrorism Act, urges the Supreme Court to issue a temporart restraining order against the new law.

The group says the statement of Armed Forces of the Philippines chief Gilbert Gapay to regulate social media is "repression in broad daylight."

"At the very least, the foregoing statements of the AFP Chief of Staff confirm that the ATA is both so overbroad and vague that it is susceptible to being used for an unconstitutional end, that is a weapon against free speech and dissent," the motion read.

August 24, 2020 - 12:57pm

Solicitor General Jose Calida asks the Supreme Court to cancel the oral arguments on the petitions against the anti-terrorism law.

Calida cites logistical restrictions and health threats posed by the COVID-19 pandemic, noting that oral arguments would entail the presence of members of the Court, at least 300 petitioners and their counsels, 16 OSG lawyers and support staff.

"Further, the sheer number of participants will make it difficult, if not impossible, to maintain social distancing within the En Banc Session Hall. In this regard alone, even puttig the matter of the age and health vulnerabilities of some of the participants aside, it is submitted that their physical presence for in-court oral arguments is inadvisable," Calida says in his urgent motion.

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