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Cheat sheet on the looming legal battle on the anti-terrorism law
Activist groups marched from University of the Philippines Diliman to the Commission on Human Rights on June 4, 2020 to protest the passage of the "Anti-Terrorism Act of 2020."
AFP/Ted Aljibe

Cheat sheet on the looming legal battle on the anti-terrorism law

Kristine Joy Patag (Philstar.com) - August 11, 2020 - 8:37pm

MANILA, Philippines (Update 2: February 1, 10:34 a.m.) — The Anti-Terrorism Act of 2020 has become one of the most challenged laws before the Supreme Court with 37 petitions filed against it.

The first petition, by professors and religious brothers of the De La Salle University, was filed — albeit electronically— less than 24 hours since Malacañang announced that President Rodrigo Duterte had signed the anti-terrorism bill into law.

More petitions came shortly after: From Framers of the Constitution, a former acting chief justice and ombudsman, the law academe, lawmakers, religious leaders and civil society and progressive groups, even social media personalities and the Filipino youth.

Since the law’s enactment, two Aetas have been charged for supposed violation of the law and the Anti-Money Laundering Council has been empowered to freeze assets related to the Communist Party of the Philippines and New People's Army, which the Anti-Terrorism Council has designated as terrorists.

Here is a cheat sheet for a preview of the looming legal battle at the high court:

THE ORAL ARGUMENTS

Initially set on January 19, the oral arguments on the 37 petitions against the Anti-Terrorism Act of 2020 on February 2.

The petitioners have designated seven lawyers who will present their positions on issues raised against the law for the oral arguments.Former Solicitor General Jose Anselmo Cadiz will lead the petitioners’ panel.

Joining him are veteran rights lawyers Chel Diokno, Evalyn Ursua and Neri Colmenares; constitutional law professor Alfredo Molo II; Rep. Edcel Lagman (Albay) and Moro lawyer Algamar Latiph.

READ: Lawyer to amplify long unheard Moro, IP voices at anti-terrorism law debate

The petitioners had clustered the issues they raised in their legal challenges into six, which the seven lawyers will present to the SC.

Solicitor General Jose Calida will represent Duterte government officials named as respondents. He will be flanked by Assistant Solicitors General Marissa Dela Cruz-Galandines, Bernard Hernandez and Rex Bernardo Pascual.

Calida had sought the cancellation of the oral arguments at least twice. Once in August, citing COVID-19 risk and then in January, again citing the coronavirus and the “trauma” their staff suffered when one assistant solicitor general contracted the disease.

Each party is given 45 minutes to present their opening statements, then interpellation by the justices will follow.

THE ARGUMENTS

Most of the petitions asked the SC to strike down Republic Act 11479 entirely for being unconstitutional, while some asked the court to strike down certain provisions of the law. Here are some of the arguments cited by the petitioners in making their case to the high court:

Void for vagueness

In the petitions filed, the groups assailed what they said is vagueness and overbreadth in Section 4 — which defines terrorism — that give law enforcers "unbridled discretion" on how to interpret its provisions.

The succeeding penal provisions of the law anchored on the said section suffer the same vagueness, the petitioners said.

Past actions of State forces, who have a history of red-tagging and abuses, does not inspire confidence of the law’s fair implementation too, the petitioners added.

The Free Legal Assistance Group petition said if the law were applied in 1986, Archbishop Jaime Cardinal Sin, who urged the public to go to Camp Crame and protect military officials who had withdrawn support for the Marcos regime, could have easily been charged and arrested.

The law also fails to give ordinary citizens fair notice that what they may be doing is prohibited for inciting to terrorism. This would drive even journalists to self-censorship to avoid being arrested as terrorists.

Due to the “sheer amount of guesswork, qualification, mincing and moderation,” a good number of journalists may opt to not write at all, the FLAG petition said.

In a separate petition, the National Union of Peoples' Lawyers said: "It deters or discourages people from freely exercising their constitutionally-guaranteed freedoms of speech, expression, assembly, and association...permitting the government to treat [these] as terrorism based on the speaker’s or actor’s purported intent is an extremely dangerous proposition."

At a loss to defend what criminal act

As the national organization of lawyers, the Integrated Bar of the Philippines is tasked to provide legal assistance to persons charged with or suspected of violations. But with the overbroad and vague definition of what constitutes terrorism, they too are at a loss in defending those who may be arrested of prosecuted.

Noting that the Anti-Terrorism Council can designate a person or organization as terrorists, “not by the law itself,” then IBP cannot adequately inform the person suspected of the nature of charges against them, “much less defend the rights of the accused during trial.”

If the legal counsels were to challenge the arrests made under RA 11479, they would be “gravely prejudiced” as the vagueness of the law “prevents them from doing so even to the best of their ability.”

Warrantless detention

Among the widely assailed provisions of the law in the petitions is Section 29, on Detention Without Judicial Warrant of Arrest. Under this provision, law enforcers, upon authorization by the Anti-Terrorism Council, may take custody of a suspected terrorist for up to 14 days, extendible for another 10 days, before judicial authorities are informed.

The petition filed by legal luminaries led by retired SC Justice Antonio Carpio rejected the defense that the legislative intent of this section is based on Rule 113 , Section 5 of the Revised Rules of Criminal Procedure, which discusses warrantless arrests.

“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 (in the act) or after a hot pursuit and time is of the essence,” the Carpio petition read.

They also stressed that under Rule 113, there is no need for a 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 the possibility of endless warrantless detention, petitioner said. “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.”

The Concerned Lawyers for Civil Liberties, also said that the use of the phrase “take into custody” and the proponents’ defense that this does not give the Anti-Terrorism Council the power to “arrest suspected terrorists” is just a ruse.

The Anti-Terrorism Council

The same petition from CLCL—a broad consortium of lawyers formed during the Arroyo administration that reconvened again to assail ATA at the SC—questioned the powers vested upon the ATC.

The ATC is composed of the executive secretary (chairperson), national security adviser (vice chairperson), and as members: sectaries of foreign affairs, national defense, the interior and local government, finance, justice and information and communications technology and the executive director of the Anti-Money Laundering Council.

They may designate an individual or groups, upon finding a probable cause, “commit or attempt to commit or conspire in the commission” of terrorism and other prohibited acts of the law. They may also authorize law enforcers to take into custody suspected terrorists.

CLCL noted the “authority or power to arrest as a legitimate derogation of the right to life and liberty partakes of judicial power.”

“It is clear from both the Rules of Court and the Supreme Court that the power to take into custody of suspected terrorists under Section 29 is a form of arrest. There is no question under this law that the ATC is empowered through its police and military agents to ‘take into custody’ or to ‘arrest’ suspected terrorists,” the lawyers said.

Bangsamoro experience, prejudice against Muslims

At least four petitions were filed by groups in Mindanao. even before the law was passed, Bangsamoro leaders had warned that their communities are the hardest hit by terrorism—which the law seeks to fight—and are also at most risk from the anti-terrorism bill.

The Latiph petition cited several instances as recorded in jurisprudence that petitioners said would show “arbitrariness in the determination of ‘suspected person.’”

"Section 29 is not a mere abstract assembly of words. When it operates in the real world: It can put innocent men and women into jail based on personal preference, stereotyping, and prejudiced of arresting and detaining officers without legal accountability for a period of 24 days," the petition, filed by four Bangsamoro lawyers, said.

The lawyers also cited dozens of cases of mistaken identity involving Moros. “It is also a manifestation of systematic arrest and detention of innocent Bangsamoro and gross disregard of constitutional rights to liberty and personal security,” the Latiph petition also said.

The petition filed with Deputy Speaker Mujiv Hataman (Basilan) meanwhile cited growing Islamophobia, as it pointed out that exclaiming “Allahu Akbar,” meant to praise Allah; pointing an index finger to testify oneness with Allah and even possessing the Quran may be seen as indoctrination or even as allegiance to the Islamic State of Iraq and Syria — bases which can be used to designate them as terrorists.

Representatives of indigenous peoples groups, in a petition prepared by law professor Tony La Viña, said the law should be struck down for violating their right to self-determination.

"Inextricably and inexplicably linked to the right to self-determination is the right to oppose, criticize and dissent from development aggression and the policy of militarization that comes with it," the petitioners said.

Academic freedom

Law professors from the Far Eastern University Institute of Law, led by its dean Mel Sta. Maria, also argued that the new law interferes with and restricts academic institutions on what and how to teach.

Due to the vagueness and overbreadth of the definition of terrorism, “it will inevitably result to the persecution and prosecution of free thoughts and ideas, including academic teachings and learnings, on constitutional rights, freedoms, and democracy as being indispensable components of the exercise of sovereignty,” the Sta. Maria petiiton read.

The professors said that academic institutions “should be able to teach that dissent and activism are part of democracy” but with the new law, this may be deemed as constituting terrorism.

They questioned the inclusion of the Commission on Higher Education and the Department of Education as support agencies of the ATC, as these offices may be called on to “facilitate the power and ability of the Government to dictate upon academic institutions on what it and cannot teach and how faculty members should conduct their teaching.”     

IN GOVERNMENT’S DEFENSE

Solicitor General Jose Calida will again return to the SC, where he has had a winning streak, to defend the highly-contentious law. On July 17, Calida filed a 233-paged petition, addressing the allegations of at least the first eight petitions filed.

Here are some of the points Calida raised in the government’s defense of the law:

On legal standing

Calida said that the petitions only raised “hypothetical scenarios of possible abuses,” adding that “it is clear that petitioners’ slights are merely imagine.” He argued that the petitioners failed to allege any injury sustained.

They also failed to substantiate their allegations on terrorist-tagging with a government-issued official document or judicial order.

The IP’s petition, the 26th filed, pointed out that the “wholesale proscription” of state prosecutors in 2019 is proof that the executive branch also engages in red-tagging. They cited the petition for proscription of more 649 individuals—including UN experts and rights workers—which was later amended to include only eight names.

On Section 29, pre-trial detention

Calida said that the law’s section on pre-trial detention is not a totally new provision as this was also included in the Human Security Act. The only difference is the period of detention allowable: In HSA, it’s up to three days but in ATA, it’s up to 14 days, extendible by another ten days.

“It provides for a specific situation where an arresting officer is allowed to detain a person, who was previously lawfully arrested without a judicial warrant, for a period of fourteen days without incurring any criminal liability for arbitrary detention under Article 125 of the Revised Penal Code,” the OSG said.

The HSA was also questioned at the Supreme Court, but the court ruled that petitioners had no legal standing to bring the matter to court since they had not been charged under it. 

Calida also said that petitioners alleging that an arrest on suspicion, instead of probable cause as held in the Constitution, is based on their “literal and truncated reading of the law.”

“Petitioners concluded that the law abrogated ‘probable cause’ as threshold and supplanted it with ‘suspicion’ just because Section 29 uses the latter instead of the former,” the Comment read.

“The use of ‘suspected’ in Section 29 does not at all signify an abandonment of probable cause as threshold in warrantless arrest,” the solicitor general also said.

On abuses

Calida argued that since the petitions are anchored on speculative situations, they “will certainly not warrant the invalidation of the law.”

“Well settled is the rule that courts are not at liberty to declare statutes invalid, although they may be abused or misabused, and may afford an opportunity for abuse in the manner of application,” he added.

The solicitor general also said the petitioners “hardly mentioned” a case were law enforcers were convicted for abusing the HSA. He also said that State agents “should be presumed to perform their sworn duty in a regular manner.”

READ: Amid promised oversight of anti-terror law, how has the Senate probed past abuses?

In 2010, farmer Edgar Candule was acquitted and released from detention after being held since 2008 for alegedly being a member of the New People's Army. ABS-CBN News reported that Candule had been charged with illegal possession of firearms and violation of the Human Security Act.

He sued the government for P480.5 million in damages based in a provision in the HSA to provide compensation P500,000 per day of imprisonment for any accused acquitted of the crime of terrorism, ABS-CBN News reported in Decemner 2010.

There have been no updates on compensation for Candule and there is no similar provision for compensation in the anti-terrorism law. 

"Lumad leader Jomorito Goaynon and peasant organizer Ireneo Udarbe, meanwhile, were arrested on January 28, 2019 and charged with violations of the HSA, among other fabricated cases," alternative media website Bulatlat pointed out in an editorial in June.

"The charges were dismissed in August of the same year but Goaynon remains in detention for trumped-up charges of kidnapping, robbery and arson."

On regulation of speech of Section 4

Calida argued that Section 4 of the law, which petitioners argued violates the freedom of speech and expression, seeks to regulate conduct. Citing the US Supreme Court, he stressed that when a person’s speech “is likely to engender violent conduct,” even uttered verbally, as part of a dialogue, “such speech is more akin in nature to conduct, because it is more likely to provoke conduct, than dialogue." 

"Therefore, it may be restricted as fighting words without regard to the message being communicated," the solicitor general said.

EX-JUSTICE JARDELEZA AS ‘FRIEND OF COURT’

Retired SC Justice Francis Jardeleza has been chosen as the amicus curiae or “friend of court” in resolving the complex issues raised against the anti-terrorism law.

Under the Rules of Court, the court may invite “experienced and impartial attorneys” to appear as amici curiae to help in disposition of issues submitted to it.

Jardeleza retired from the SC in September 2019. Prior to joining the high court, Jardeleza served as the country’s solicitor general. Former President Benigno Aquino III appointed him to the SC in August 2014.

Martial law-era Solicitor General Estelito Mendoza had also sought the court’s permission to allow him to stand as amicus curiae.

In his motion, Mendoza cited his “experience on issues relevant to the instant cases” and asked the SC to admit his comment seeking the dismissal of the petitions.

But at least two of the 37 petitioners blocked Mendoza’s move. Former SC Justices Antonio Carpio and Conchita Carpio-Morales pointed out that with a bid to junk the petitions, Mendoza is approaching not as “friend of court” but as “friend of the Respondents.”

The SC in an en banc session on January 26 said it would “note without action” Mendoza’s bid.

ANTI-TERRORISM LAW COVER STORY EXPLAINER JOSE CALIDA SUPREME COURT
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