A look at petitioners' appeal vs SC historic ruling on Anti-Terrorism Act of 2020
MANILA, Philippines (Updated 4:42 p.m.) — Petitioners against the Anti-Terrorism Act of 2020 on Wednesday filed an appeal to partly reverse the Supreme Court’s historic ruling that mostly kept the law intact in the face of 37 legal challenges.
Twenty-six groups of petitioners, through their lawyers, filed a joint motion for partial reconsideration and asked the SC to “partially reconsider” its December 7 ruling and declare the Republic Act 11479 or ATA as unconstitutional.
Petitioners represented by the Free Legal Assistance Group filed a supplemental motion for reconsideration that also sought for the issuance of a temporary restraining order.
FLAG said that during the period to file an appeal, the Anti-Terrorism Council designated 16 new groups as terrorists.
“Unless restrained by the Court, Petitioners and others similarly situated stand to suffer great and irreparable injury, as the various groups subject of the ATC designation have already suffered. The issuance of a TRO is necessary to preserve their rights pending the Court’s adjudication of the Motion for Reconsideration and Clarification,” they said.
“With the Respondents’ hasty implementation of R.A. No. 11479’s dangerous provisions despite its non-finality, Petitioners thus come before this Court to seek the issuance of the TRO pending its final disposition on the consolidated Petitions,” FLAG’s motion added.
The SC in December voted 12-3 and struck down the “killer proviso” on Section 4 of the law that defines terrorism for being “overbroad and violative of freedom of expression.”
The court also voted 9-6 that allowing the Anti-Terrorism Council to adopt requests for designation by other jurisdictions or supranational jurisdictions is unconstitutional, the second method of designation under the law.
Petitioners, however, said the ruling was merely a consolation, as the SC still mostly upheld contentious provisions of the law and vowed to appeal it.
READ: SC leaves Anti-Terrorism Act of 2020 mostly intact
Section 9: Inciting to Commit Terrorism
Petitioners represented by the FLAG also filed their supplemental motion that challenged the SC’s upholding of Section 9 of the law that discusses inciting to commit terrorism.
They said that the SC ruled that speech and statements can be penalized if it is direct and explicit; made with the intent to promote terrorism; and directly and casually responsible for increasing the actual likelihood of terrorist attacks.
But the petitioners noted the SC stated that the parameters are not found in the law but in its Implementing Rules and Regulation.
They also pointed out that the SC’s reference to the law’s IRR is a “direct recognition of the insufficiency and defects of the law.”
They added that lack of standards of Section 4 “authorizes, if not encourages” arbitrary enforcement of law enforcers and prosecutors of Section 9.
“These dangerous provisions, therefore, allow the State to simply presume the existence of intent from the citizen’s acts, even if the acts themselves– posting on social media or hanging a physical poster, for instance, that contain statements which may be interpreted to incite others to commit any act perceived to satisfy the “purposes” under Section 4– do not constitute a crime,” they continued.
Section 10: Recruitment to and Membership in a Terrorist Organization
Now-retired Associate Justice Rosmari Carandang, ponente of the case, was outvoted 6-9 on the “vague” phrase in the section on recruitment, with Chief Justice Alexander Gesmundo’s opinion became the prevailing one.
Petitioners zeroed in on the third instance of membership to punish which seeks to punish a person who “shall voluntarily and knowingly join any organization, association or group of persons knowing that such organization, association or group of persons is… organized for the purpose of engaging in terrorism.”
Carandang held that the third paragraph of Section 10 is susceptible to a facial challenge. She pointed out that the third instance, “without any sufficient or discernible parameters,” would fail to give persons due notice on what they should avoid and give law enforcers unrestrained restriction in determining which group was organized for the purpose of engaging in terrorism.
But Gesmundo’s Opinion, backed by eight votes, said that in the case at hand, “the ‘rules or guidelines’ that some of my colleagues claim to be missing are explicitly provided in Sec. 4 of the ATA.”
“Accordingly, the last paragraph of Sec. 10 should be read in pari materia (upon the same subject) with Sec. 4 in order to give effect to the Legislature’s intent,” he said.
Petitioners, however, argued that the controlling view (Gesmundo’s) on Section 10 is inconsistent with the ruling as enunciated in the Decision.
The petitioners pointed out that the Opinion came from the characterization that the ATA is a penal law, and its analysis of Section 10 also came from this intermediate approach.
“Petitioners submit that this is a substantial inconsistency inasmuch as the controlling view was reached after a much less strict analysis than that used in the Decision for the rest of the issues in this case, and an analysis that places a heavier burden upon the Petitioners to prove unconstitutionality,” the motion read.
They said that Gesmundo used an intermediate approach, under which constitutionality is upheld upon showing important government interest.
Under strict scrutiny, which they said was used in other issues, the Court “would have delved into the submissions of the Respondents for the absence of less restrictive means and their efforts to ensure that preventing recruitment to and membership in groups “organized for the purpose of engaging in terrorism” is the “sole effective means.”
Petitioners said this is frightening at a time when organizations, even though not proscribed or designated, are red-tagged. They noted that actions of some groups, although legitimate, have been characterized in official statements or documents “as intended to cause death or extensive interference to critical infrastructure.”
Third mode of designation under Section 25
Petitioners asserted that the strict scrutiny test is the applicable standard for reviewing for the third mode of designation, which authorizes the Anti-Terrorism Council executive determination of probable cause to designate terrorists.
The ponente held that there are “no proper procedural safeguards and remedies for an erroneous designation under the third mode, and it “fails to meet the strict scrutiny test and is overly broad.”
“Thereby creating a chilling effect on speech and its cognate rights and unduly exposes innocent persons to erroneous designation with all its adverse consequences,” Carandang continued.
But Carandang again was outvoted, 7-8, on analyzing the third mode of designation under Section 25. Gesmundo’s Opinion was the controlling view in the issue.
Petitioners raised that Gesmundo again used the intermediate level of judicial scrutiny in analyzing the third mode of designation.
“The Honorable Court has consistently held that strict scrutiny is the governing level of judicial scrutiny ‘for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms,’” their motion read.
They argued that adopting the intermediate level of judicial scrutiny for preventive counterterrorism measures, “has become a talisman in the presence of which our fundamental rights and liberties wither away and disappear.”
The petitioners also refuted the Gesmundo that delisting is an “expedient administrative recourse” since once published, the designation is already fait accompli (a thing that already happened).
They also pointed out that the Office of the Solicitor General itself stated that the correct remedy is to file an appeal before the Office of the President, which would mean the designee would have to exhaust administrative remedies within the Executive branch before they can run to courts through a petition for a writ of certiorari.
Section 29: Prolonged detention
The SC stressed that the construction of the section holds that law enforces may arrest a person for acts defined or penalized under Sections 4 to 12 — which defines terrorism and other crimes — but only under instances contemplated in Rule 9.2 of the law’s Implementing Rules and Regulation.
And the said rule mirrors instances under Section 5 Rule 113 of the Rules of Court, which only allows warrantless arrest in flagrante delicto, arrest in hot pursuit, and arrest of escapees.
The petitioners, however, disagreed with the ponencia that held that the written of authority of the ATC does not authorize arrest but only prolongs his detention.
“Section 29 destroys the two safeguards in the Constitution to guarantee the protection against unreasonable arrests: first, that only a judge can issue warrants of arrests, and second, that warrants of arrest must be issued only upon probable cause,” their motion read.
They also took exception to the position that Section 29 contemplates a situation of warrantless arrest, as they pointed out that a written confirmation is not required to enforce such.
Petitioners also argued that the “corrective” provisions of the law’s Implementing Rules and Regulations on Section 29 cannot be invoked as it is ultra vires (beyond power or authority). “The IRR of the ATA cannot add into the law and cannot make constitutional a law that is unconstitutional to begin with,” they stressed.
Petitioners also said that the rationalization of the ponencia that the three-day rule under Section 18, Article VII of the Constitution — or on Martial Law — is “unconvincing.”
“[I]f during an extreme emergency a suspect can only be detained for not more than three days, with more reason during ordinary times no one should be under custody for more than three days at the most, unless he is judicially charged,” they added.
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