SC showdown seen over anti-terror law

The Supreme Court looms as the final battleground where legal titans will clash over the Anti-Terrorism Act that President Duterte is expected to approve despite warnings that the law would place the country in a martial law-like setting and kick up more unrest.

The anti-terrorism bill is awaiting action by the President, who according to his spokesman is likely to sign it before his 30-day deadline on July 9. When that happens, the debate will shift to the Supreme Court away from the streets and the generally critical media.

With the President having shown his desire for a tighter security law by certifying the urgency of the bill, we now expect him to keep the psychological momentum by signing it into law without delay.

If Duterte pretends to keep a disinterested distance from the contentious measure and just lets it lapse into law, it will still end up being challenged in the high court.

That won’t be a problem to Duterte, considering that all but three of the 14 incumbent SC magistrates, including Chief Justice Diosdado M. Peralta, are his appointees – although that detail has nothing to do with the resolution of the issues.

Only associate justices Estela Perlas-Bernabe, Mario Victor F. Leonen, and Alfredo Benjamin Caguioa are appointees of former President Aquino. The 15th seat in the tribunal is still vacant since the retirement last May 11 of Andres Bernal Reyes Jr., another Duterte appointee.

Many sectors, including the Integrated Bar of the Philippines, the Church and the academe, have warned that the proposed law contains provisions that run counter to the Constitution and stifle dissent.

One notable objector is retired SC senior associate justice Antonio T. Carpio, who said that if Duterte signs the bill, he would question it before the Supreme Court. He zeroed in on these sections of the ATA that he described as unconstitutional:

• Section 29 allows the Anti-Terrorism Council to authorize the arrest of persons who are “suspected” of committing terrorism, in violation of the Constitution’s requirement that an arrest warrant be issued by a judge upon finding of probable cause.

• Section 29 allows the detention of a suspect for as long as 24 days without being charged with any crime before the courts, eight times longer than the three-day maximum period provided by the Constitution.

• Section 25 empowers the ATC to designate persons or organizations as “terrorists” without hearings where they can give their side and rebut the allegations. Recruitment to or membership in such organizations is penalized under Section 10.

• Section 34 provides for the house arrest of suspects even if they are entitled to bail as a matter of right in non-grave felonies or by reason of weak evidence in nonbailable offenses.

• Section 4(a) gives a vague definition of terrorism as being committed by anyone when he “engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life.”

Carpio hit Section 29 which allows law enforcement agents or military personnel to arrest any “person suspected of committing” terrorism as long as they are “duly authorized in writing by the ATC.”

Under Article 3, Section 2, of the Constitution, a warrant of arrest may only be issued “upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”

Carpio explained that this provision puts up “two fortresses” against unreasonable arrests – that (1) the warrant be issued only by a judge and (2) the warrant be based on the existence of probable cause.

During the Senate deliberations on the bill, Sen. Panfilo Lacson, the principal author, explained:

“Hindi na rin po natin pinapalitan iyong provision sa citizen’s arrest. Ang in-expand natin ay iyong period. In ordinary crimes, hindi puwede iyong nasa planning stage, hindi naman niya ginawa, hindi naman siya nag-commit ng crime. Pero dahil iyong tinatawag nating inchoate offense, hindi pa nangyari, nasa simula pa lamang, puwede na nating arestuhin because we want to be proactive, because this is a new phenomenon.”

But Section 29 does not provide standards or limitations on the power of the ATC to issue arrests orders, just like the ASSOs under Marcosian martial law. It does not require “probable cause” for the issuance of an arrest order.

Under Section 25 of the ATA, the ATC is authorized to “designate an individual, groups of persons, organizations or associations whether domestic or foreign, upon a finding of probable cause, that the individual xxx commits, or attempts to commit or conspires in the commission of the acts defined and penalized under Sections 4 to 12” of the ATA.

The individual so designated can be arrested upon order of the ATC because he is deemed to be engaged in terrorism. Any members of the organization so designated can also be arrested upon order of the ATC based on Section 10 which says:

“Any person who shall voluntarily and knowingly join any organization, association or group of persons knowing that such organization is xxx organized for the purpose of engaging in terrorism shall suffer the penalty of imprisonment of 12 years.”

For those who recruit members to such an organization, the penalty is life imprisonment. If evidence of guilt is strong, it is a non-bailable offense with no possibility of parole. This life imprisonment is different from the reclusion perpetua in the Revised Penal Code, the duration of which is 20 years and one day to 40 years, after which one is released from prison.

The ATC makes such designation “upon probable cause” which does not require a hearing where the individual or organization can challenge government witnesses. The designation is made ex parte, without hearing the side of the person or organization.

This is against the Constitution which provides that “the right of the people xxx to form associations xxx for purposes not contrary to law shall not be abridged.”

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Nota Bene: All Postscripts are archived at manilamail.com. Author is on Twitter as @FDPascual. Feedback can be emailed to [email protected]