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In anti-terrorism law debates, OSG lawyers asked: What is fear? What is 'to provoke' gov't?
Associate Justice Rodil Zalameda interpellated Assistant Solicitor General Raymund Rigon on May 11 setting of oral arguments on petitions against the Anti-Terrorism Act of 2020.
Screenshot from the Supreme Court Public Information Office livestream

In anti-terrorism law debates, OSG lawyers asked: What is fear? What is 'to provoke' gov't?

Kristine Joy Patag (Philstar.com) - May 11, 2021 - 9:34pm

MANILA, Philippines — In oral arguments on the petitions against Anti-Terrorism Act of 2020 on Tuesday, government lawyers admitted that the law contained undefined terms in the law's section defining the very crime it seeks to deter.

On Tuesday, Associate Justice Rodil Zalameda opened the oral arguments on Tuesday by drawing up a scenario where an actress puts up a community pantry where social distancing was not observed therefore endangering the lives of people amid a pandemic. She then announces that the aid is for those neglected by the government. “Is that provoking the government?”

Section 4 of the anti-terrorism law states that acts listed on the provision, with the purpose to “intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidated the government… or serious destabilize or destroy political or economic or social structures of the country to create a public emergency or seriously undermine public safety.”

Zalameda zeroed in on the phrase “to provoke.” He asked: “How do you measure provocation of the government as to constitute an act of terror under the ATA, can it be merely the slightest provocation?”

The justice pressed: Why was there no modifier in the word provocation such as “seriously” like the other listed purposes? Why did the Congress use the phrase “provoke” and not enforce or compel the government as with other anti-terrorism measures?

Assistant Solicitor General Raymund Rigodon said this goes into the wisdom of the law, as crafted by the Congress — the doctrine of political question is used to refer to questions beyond judicial questions.

Rigodon also said since not all terrorist groups may have demands from the government, such as what was provided for in the Human Security Act of 2007, “Congress enumerated purposes that are not as limiting as under HSA.”

But Zalameda raised: What I fear about is that the phrase “provoke the government” is so vague so as to include any kind of provocation. It did not say that to provoke the government to do or to abstain from doing an act. Just it stated that to provoke the govt.

What is fear?

Still on the definition of terrorism under Section 4, Associate Justice Alfredo Benjamin Caguioa asked what is the ordinary meaning of atmosphere of fear? How many people does it involve?

Rigodon said: “You can refer to the definition in the Merriam-Webster dictionary.”

But what about the phrase “segment” of the public, how many people does that cover?

Caguioa pressed: “If two people are fighting and in his [arresting officer] that is a segment he can arrest the person for terrorism?… Two people are marching against the government for redress of grievances, who determines that that is a segment?”

Rigodon said it will be up to the police officer or arresting officer.

But Caguioa pointed out that the police would arrest a person committing a crime that has no standards on what is “a message of fear or an atmosphere of fear.”

Rigodon said that jurisprudence holds that “the absence of a standard or definition of certain term will not render that statute as unconstitutional.”

Under Caguioa’s grilling, Rigodon also acknowledged that there is no definition of the atmosphere of fear, a segment of general public, extensive interference and extensive damage.

The justice stressed: “Remember, you are depriving a person of a fundamental liberty, a fundamental right to be free and are you saying that that can be done even if there is no standard? Or if the standard is susceptible to different tin interpretations as many as policemen as there are who have different interpretation of what a segment is what an atmosphere of fear is.”

Is lip service enough?

Associate Justice Amy Lazaro-Javier noted that anti-terrorism law faces legal challenges from various sectors, including two former members of the SC Bench.

Asked about what the government has done to allay the fears of the people on the anti-terrorism law, Rigodon noted that Solicitor General Jose Calida said the government is not the enemy and that President Rodrigo Duterte said those who are not terrorists have nothing to fear.

READ: In defending ATA, Calida references Duterte: Nothing to be afraid of if you're no terrorist

But Lazaro-Javier continued: “The ATA triggers fears of massive rights abuses in view of what petitioners refer to as the grant of excessive and unchecked powers to the state under the law,” she noted.

Rigodon responded that the petitioners’ allegations are merely speculation and “jurisprudence teaches us that assuming that there is a possibility is not a ground to invalidate the law.”

The justice continued: “Is that enough to allay the fears, the apprehension, suspicion and repugnance of the public towards ATA? Is lip service enough?”

Rigodon referred to Section 2 of the law that states that the State recognizes that the fight against terrorism requires a comprehensive approach, but Lazaro-Javier said: “Please pardon me but I think the answer is not responsive to my question. So please I have no time to debate with you on this so please present this in your memorandum.”

Associate Justice Marvic Leonen, in his interpellation, asked Assistant Solicitor General Marissa Galandines what would be the feeling of someone jailed.

She surmised, fear.

Leonen continued that someone who is jailed, though you are a chief justice or a lawyer, would helpless. There will also be psychological trauma with even one hour spent in detention center.

“If the accusation was merely on the basis of suspicion and later on you are released, it is not true that there is no damage. There is fundamental damage correct?” Leonen asked, to which Galandines answered in the affirmative.

Leonen stressed that for persons mistakenly accused and detained, “all these becomes moot for them… the Constitution for them leaves when the Supreme Court tells them sorry ‘you’re collateral damage. Sorry we cannot take care of you.’”

The justice continued: “That’s why were very careful with this particular case, to make the right pronouncement, that if we proceed with it, that we are careful that we do not hold the hands of government for something that we do not truly understand, there are many kinds of terrorism.”

The oral arguments will continue on Wednesday, May 12.

ANTI-TERRORISM LAW JOSE CALIDA SUPREME COURT
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