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Cheat sheet: Key issues raised at SC oral arguments on anti-terrorism law

Kristine Joy Patag - Philstar.com
Cheat sheet: Key issues raised at SC oral arguments on anti-terrorism law
Anti-riot policemen block protesters wearing face masks and face shield against COVID-19, during a protest outside the supreme court in Manila on Feb. 2, 2021, as the tribunal prepares to hear a case asking the court to declare the law as unconstitutional.
AFP / Ted Aljibe

MANILA, Philippines — After nine settings in nearly four months, the Supreme Court on May 17 wrapped up the oral arguments on the 37 consolidated petitions against the Anti-Terrorism Act of 2020.

Thirty-seven groups of petitioners are pinning their hopes on the 15 sitting justices to strike down the law, or parts of it, as unconstitutional for violating the protected freedoms of the Filipino people and due to its vague and overbroad provisions make it prone to abuse.

President Rodrigo Duterte signed Republic Act 11479 or the Anti-Terrorism Act of 2020, in July, as the Philippines was grappling with the debilitating effects of the COVID-19 pandemic and despite broad opposition to the bill.

The law has been in effect for ten months and has at least three ATA cases are pending in lower courts. Peace consultants have also since been designated as terrorists, while the red-tagging of progressives and dissenters continued as justices interpellated petitioners and government lawyers on the law.

READ: SC wraps up anti-terrorism debates: No halt order, but with order for petitioner to explain tweets

Here is a rundown of some of the key arguments in the debates:

Legal standing, facial challenge

One of Solicitor General Jose Calida’s central arguments for the dismissal of the legal challenges is the petitioners’ lack of legal standing, citing Southern Hemisphere v. Anti-Terrorism Council, where petitions were dismissed as the SC held that there was no actual charge or credible threat of prosecution.

A facial challenge is mounted against a law for being unconstitutional "on its face" and is filed even without direct charges against the petitioner.

Referring to the case of two Aeta farmers charged with alleged ATA violations, Associate Justice Marvic Leonen asked: “Isn’t that the actual case?”

Calida cited the same case in his opening statement: “Unlike the Aetas who lost their liberty, the Petitioners did not suffer any direct or indirect injury that will vest them with locus standi.”

Counsel to petitioners and oralist John Molo told the court: “Your honor there is already a clear conflict. There are two dimensions in this case, the civil liberties dimension which can be met by a facial challenge even within the parameters of Gios-Samar and Southern Hemisphere.”

What the amici curiae said: Retired Associate Justice Francis Jardeleza cited Southern Hemisphere and said the 37 petitions should be dismissed. But retired Chief Justice Reynato Puno said the cases must be resolved based on merits because the petitioners have legal standing.

Outside the SC debates: A petitioner has been designated a terrorist, and his lawyers said this boosts their case against the law as they now have proof of credible threat of prosecution.

READ: Work with poor leaves activists on ATC list few assets to freeze — kin

Political question

Calida defended the anti-terrorism law saying it is a political question. In the 1957 case of Tañada vs Cuenco, the SC said “political question” is frequently used to refer to questions beyond judicial questions.

Calida told the court: “The doctrine of separation of powers barricades it from judicial scrutiny. The determination on this matter exclusively rests upon Congress. Due deference from the Courts, including this Honorable Court, is expected.”

Under Senior Associate Justice Estela Perlas-Bernabe’s interpellation on Section 29 of the law, Molo asserted that the political question doctrine does not apply to the anti-terrorism law because in Section 29, “the textual commitment is to the judges, to the judiciary, warrants must be determined by the judge, so the reverse actually applies.”

State interest vs fundamental rights

Associate Justice Mario Lopez, a known criminal law expert, stressed that the ATA involves crimes against national security. “[T]he main issue is not the presence of that right of freedom of expression but rather the compelling state interest to justify that freedom of expression that you are now invoking before this court.”

But Molo said that when compelling state interest is involved, narrow tailoring should be considered. This is part of the strict scrutiny test, which applies when the challenged law results in “suspect classification.”

In his interpellation of government lawyers on terms defining “terrorism,” Associate Justice Alfredo Benjamin Caguioa pointed out: “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?

Red-tagging

Community pantry organizers were not excluded from red-tagging, but when this issue was asked in the interpellation, government lawyers asserted they only do  “truth-tagging” and deferred to National Security Adviser Hermogenes Esperon to explain.

When Esperon finally faced the SC bench on the eighth setting, he asked to be allowed to play two videos of CPP founder Joma Sison supposedly naming “front” organizations, including some of the petitioners. Sison has long disputed this claim, saying the military spliced the video. ABS-CBN News quotes him as saying in 2020 that "as a matter of fact, I differentiated the legal forces of the national democratic movement from the armed revolutionary movement."

Petitioners assailed Esperon’s statements and asked for these to be stricken from court records.

In a pending omnibus motion, they told the court: “[T]he supreme irony is that Secretary Esperon was able to engage in red-tagging before this very Court, when red-tagging was one of the grave dangers that impelled petitioners to come to this Court in the first place.”

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

Section 4: On defining terrorism

Petitioners assailed Section 4 of the law, citing its vagueness and overbreadth that give law enforcers "unbridled discretion" on how to interpret its provisions.

Under tense interpellation by justices, government lawyers admitted the law contained undefined terms in the section defining terrorism, the very crime it seeks to deter.

Neri Colmenares of the National Union of Peoples' Lawyers also told justices that the State is not helpless in their fight against terrorists without the ATA, as even the “draconian” Human Security Act and the Revised Penal Code are enough.

Ex-Solicitor General Anselmo Cadiz said that with “good intelligence work and with good police work,” the government can stop terrorism.

Section 25: On designation of suspected terrorists

Government lawyers asserted that designation is an executive and administrative function of the Anti-Terrorism Council. Assistant Solicitor General Marissa Galandines said designation only triggers the freezing of bank accounts and not arrests.

But Chief Justice Alexander Gesmundo noted that designation “affects the reputation both of person and property of designate." He pressed: Is designation under Section 25 not covered by Section 1 Article III of the Constitution or the due process clause?

Associate Justice Rosmari Carandang pointed out to counsel and oralist Evalyn Ursua that the prosecutor, an official under the executive branch, can make a determination of probable cause.

But Ursua answered: A prosecutor only makes a finding of probable cause for the purpose of filing Information or charges before a court. “A prosecutor cannot arrest, cannot detain, cannot authorize freezing of assets,” she added.

Associate Justice Edgardo Delos Santos also noted that those who have been designated suffer consequences such as freezing of assets and detention which means deprivation of liberty. He asked: “Is it not indispensable that due process requirements should be complied with such as notice and opportunity to be heard?” 

RELATED: 'Mother of red-tagging': No process yet to remove names from terror list

Outside SC debates: In December, the ATC designated the CPP and NPA as terrorist groups. Nearly five months later — just as the oral arguments were wrapping up — 19 supposed central committee members of the CPP, including peace consultants, were designated as terrorists.

Section 29: On prolonged detention

ASG Galandines said the ATC’s written authority under this section is only for extending the detention period — up to 24 days — as the suspect would first have to be arrested under Section 5, Rule 113 of the Revised Rules on Criminal Procedure that lists down only three instances when a warrantless arrest is lawful.

Senior Associate Justice Estela Perlas-Bernabe flagged ASG Galandines’ response that a suspected terrorist’s companion found to illegally possess firearms may be detained up to 24 days, despite non-terrorism charges, as “dangerous.”

Justice Caguioa asked Molo whether the written authority is similar to a warrant of arrest, and Molo answered in the affirmative. “So if it walks like a duck, quacks like a duck, it must be a duck,” the magistrate pointed out.

Associate Justice Jhosep Lopez pointed out that under martial law, authorities must bring a detained person to judicial authorities within three days. He asked: “What makes you think that violation of ATA law is even higher than rebellion or invasion when rebellion or invasion ... life of the nation itself it is at stake?” 

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

Colmenares also said they fear the applications for writ of habeas corpus, as remedy, may immediately be junked following the law’s wording on the ATC’s written authority.

WHAT HAPPENS NEXT?

Prior to the oral arguments, the petitioners made a collective plea to the SC to issue a temporary restraining order on the enforcement of the law. This is a plea again reiterated in February, as the red-tagging became rampant, a petitioner was arrested while a counsel was violently attacked.

But the SC decided to wait for Calida’s comment on the latest motion before they resolve it — court records however showed the solicitor general have asked, at least two times, to extend the period of filing, delaying the resolution of the petitioners’ urgent motion for TRO.

Petitioners have brought to the SC’s attention Lt. Gen. Antonio Parlade’s Facebook post that they deemed a “clear threat” to petitioners, which Calida defended as a post made in the military general’s personal capacity.

Petitioners also moved to expunge from court records Esperon’s oral statements and video presentation where he red-tagged groups in open court, but the SC opted to order the military official to respond to the motion before it resolves it.

In the last setting, the court also issued a show-cause order on petitioner and counsel Theodore Te over tweets commenting on Esperon’s red-tagging in open court.

Both parties are given 30 days to submit their respective memoranda. The petitioners will file it based on the clustering of issues they decided early on while the SC will issue a resolution on its questions for Esperon which will be answered in the memorandum the OSG will file.

ANTI-TERRORISM LAW EXPLAINER JOSE CALIDA RED-TAGGING SUPREME COURT
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