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

Kristine Joy Patag - Philstar.com
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

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: July 19, 2021 - 8:33am

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 

July 19, 2021 - 8:33am

The Anti-Terrorism Council designates the National Democratic Front of the Philippines, the panel that negotiates for communist rebels during peace talks a terrorist organization.

Previous designation of the Communist Party of the Philippines and New People's Army led to the designation of supposed members of the CPP's Central Committee. Among those designated as terorrists were peace consultants.

Designation gives the Anti-Terrorism Council the authority to investigate and freeze the accounts of designated persons.

May 13, 2021 - 9:06am

The Anti-Terrorism Council has designated 29 people, including alleged members of the Communist Party of the Philippines-New People's Army, as terrorists in two resolutions.

Designation allows the Anti-Money Laundering Council to freeze the assets of those on the list. 


April 27, 2021 - 2:59pm

Solicitor General Jose Calida tells the Supreme Court that the Philippines must have an Anti-Terrorism Act because of international obligations. 

Calida says "supervening events warrant ouright dismissal of petitions." He notes there are already cases involving ATA, such as case against farmers Japer Gurung and Junior Ramos, and three individuals in Negros Occidental.

He says petitioners do not have standing to question the law since they are not directly affected by it.

April 21, 2021 - 5:53pm

Oral arguments on petitions against the Anti-Terrorism Act will resume on April 27 at 2:30 p.m..

According to a Supreme Court advisory, the arguments will be carried out through videoconferencing due to the pandemic.

March 22, 2021 - 3:11pm

Oral arguments on the Anti-Terrorism Act of 2020 scheduled on March 23 is suspended due to the "alarming increase of COVID cases."

Supreme Court Clerk of Court Edgar Aricheta says the oral arguments will resume on April 6 at 2:30 p.m.

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