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SC: Petitioners constantly red-tagged alleged 'credible threat of injury' vs anti-terror law

Kristine Joy Patag - Philstar.com
SC: Petitioners constantly red-tagged alleged 'credible threat of injury' vs anti-terror law
On July 23, 2020, the National Union of Journalists of the Philippines, together with other media workers; members of the Concerned Artists of the Philippines, led by their chairman Neil Doloricon and chairman emeritus and National Artist Bienvenido Lumbera, artists and cultural workers filed a petition for certiorari and prohibition before the Supreme Court against Republic Act 11479, or the Anti-Terrorism Act of 2020.
National Union of Journalists of the Philippines, Facebook release

MANILA, Philippines — The Supreme Court saw that the fears of red-tagging that petitioners feared in the implementation of the Anti-Terrorism Act of 2020 are a credible threat of injury they can raise against the contentious law.

The SC, in resolving the more than 30 legal challenges filed against the ATA, invoked its expanded judicial power in addressing the procedural issue whether or not petitioners have legal standing.

One of the main arguments of the government, represented by the Office of the Solicitor General, for the dismissal of the 37 petitions is their lack of legal standing to sue, lack of actual case or controversy.

It argued against the facial challenge that petitioners mounted against the law, noting that there is no actual case yet as pleas were filed even before the ATA even took effect, had its Implementing Rules and Regulation promulgated or an actual case reached the prosecution or court.

In moving for the dismissal of the petitions, the OSG said the fears raised by the petitioners over abuses of the law are mere theories and possibilities that do not constitute a conflict of legal rights.

But the SC, in its 235-page ruling made public on Tuesday, said it found that petitioners met the requisite of an actual case or controversy as they presented a permissible facial challenge in the context of freedom of speech and its cognate rights.

Do the parties have a personal and substantial interest in raising their case? The SC noted that peace consultant Rey Casambre, petitioner in the case, has been designated as a terrorist. Another petitioner, the Rural Missionaries of the Philippines also reported that their accounts were frozen for allegedly being used to finance terrorism.

RELATED: A year into Anti-Terror Law, kin of terror-tagged peace consultant left with frozen assets, constant anxiety

It also noted that National Security Adviser Hermogenes Esperon Jr.  even played an unverified video where the CPP founding chairperson supposedly named organizations allegedly supporting rebellion—and some of these groups are petitioners in the case.

"The Court finds that petitioners have sufficiently alleged the presence of a credible threat of injury for being constant targets of ‘red-tagging’ or ‘truth tagging.’ Therefore, they satisfy the requisites of the traditional concept of legal standing," it added.

The SC also said that legal standing is a procedural technicality that the Court may waive in cases of transcendental importance.

"Indeed, procedural barriers should not be allowed to impede this Court’s prerogative in resolving serious legal questions which greatly affect public interest," it added.

The SC on Dec. 7, 2021 voted 12-3 to strike down the "killer" qualifier in the proviso on acts defining terrorism that petitioners said upheld that activism and protesting is not a crime. The second method of designation, or the adoption of the United Nations Security Council criteria on designated terrorists, was also declared unconstitutional in a vote of 9-6.

The vote however left most of the feared law intact, and petitioners raised that they were only given a "consolation," as the extraordinary powers of the Anti-Terrorism Council remain.

READ: Future 'scary and depressing' with SC upholding anti-terrorism law — lawyers

Political question

The SC also held that the 37 petitions "undoubtedly ascribe grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress in enacting a law that violates fundamental rights."

Solicitor General Jose Calida, who defended the government, told the SC that challenging the anti-terrorism law is a political question, which means it is beyond judicial scrutiny.

Citing the separation of powers, he said: "The determination on this matter exclusively rests upon Congress. Due deference from the Courts, including this Honorable Court, is expected."

But the SC said it disagreed with the OSG, citing Tañada v. Angara which held that "where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute."

The high court held that political question doctrine cannot be raised as defense because the question of “whether any part or instrumentality of the government had authority or had abused its authority to the extent of lacking jurisdiction or exceeding jurisdiction is not a political question.”

"The Court finds that this case mainly calls for the exercise of the Court’s expanded judicial power. This is because the primordial issue animating the 37 petitions in the constitutionality of the ATA, a legislative (and not a judicial/quasi-judicial) act," the ruling penned by now-retired Associate Justice Rosmari Carandang read.

Two petitions dismissed

The SC however dismissed two of the 37 petitions.

The petition filed by Balay Rehabilitation Center and other non-profit organizations were dismissed as the SC held that the context of their arguments are based on claims that the law diminishes protections under laws—protections already guaranteed under the Constitution.

The high court added that the petitioners also failed to allege supposed violation of freedom of speech, expression or their cognate rights.

They also junked the petition filed by a certain Lawrence Yerbo for "being fundamentally flawed both in form and substance." Yerbo, who said he is a resident of Cebu City, claimed the Section 29 of the ATA, which discusses prolonged warrantless arrest of suspected terrorists, "runs afoul" to Section 2 Article III of the Bill of Rights, but the SC found his discussion as "exceptionally terse."

"To the Court’s mind, this explanation and more so the failure to state any substantial argument by merely adopting those in the other petitions, is simply unacceptable and shows utter disrespect to the Court," the SC added.

ANTI-TERRORISM LAW

EXPLAINER

RED-TAGGING

SUPREME COURT

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