MANILA — Petitioners against the Anti-Terrorism Act on Wednesday and Thursday filed separate motions urging the Supreme Court to reconsider its December 2021 ruling on key provisions of the controversial measure.
Twenty-six of the 37 groups of ATA petitioners filed a joint motion for reconsideration before the high court on Wednesday morning, challenging specifically sections 10, 25, and 29 of the Anti-Terrorism Act, but stopped short of challenging the very definition of terrorism itself.
Section 10 punishes recruitment and membership in a terrorist organization. Section 25 is on designation of terrorists by the Anti-Terrorism Council (ATC) while section 29 is on detention without judicial warrant.
Meanwhile, the Free Legal Assistance Group, on behalf of journalists, lawmakers and constitutional framers, filed a supplemental motion for reconsideration on Wednesday afternoon, additionally questioning section 9 on inciting to commit terrorism.
The group of retired Supreme Court justices Antonio Carpio and Conchita Carpio-Morales, on Thursday afternoon, filed their own motion for partial reconsideration questioning not just sections 10, 25 and 29 of the law but also section 12 on providing material support to terrorists and section 4 on the definition of “terrorism.”
These sections are just among the provisions of the Anti-Terrorism Act whose constitutionality were upheld by the Supreme Court in its December 7, 2021 ruling.
In its December ruling, SC magistrates only voted to strike down two portions of the Anti-Terrorism Act.
The first is a qualifier to a proviso in section 4 which placed the burden on the suspects to prove that an advocacy, protest, work stoppage and similar actions are not intended to cause death or serious physical harm to a person or create serious risk to public safety. Magistrates voted 12-3 to declare this unconstitutional.
The second portion declared unconstitutional by a vote of 9-6 is the power granted to the Anti-Terrorism Council to adopt requests for designations from other jurisdictions or supranational jurisdictions. This is the second mode of designation under section 25.
The most contentious among the provisions petitioners are challenging is section 25 providing for the third mode of designation, which narrowly passed scrutiny of magistrates with an 8 to 7 vote.
Now-retired Associate Justice Rosmari Carandang, who penned the majority decision, voted to declare this portion of the provision unconstitutional but got outvoted by her fellow magistrates.
The third mode allows the Anti-Terrorism Council to designate an individual, groups of persons, organization or association as terrorists on the basis of the ATC’s finding of probable cause.
Under the law, this can lead to freezing of assets by the Anti-Money Laundering Council.
But petitioners led by lawyer Howard Calleja, in their joint motion for reconsideration, pointed out that the Anti-Terrorism Act does not provide for a “discernible criteria” for the designation of individuals and organizations, and there are no procedural safeguards in cases of wrongful designation.
Petitioners said the ATC is unduly performing court functions and quasi-judicial powers as the mere act of designation imposes penalties which could affect rights to property and liberty.
“The ATC is exercising judicial powers in designation because it is ‘determining what the law is and what the legal rights of the parties are with respect to the matter in controversy.’ The ATC ascertains the presence of probable cause based on their interpretation of the ATA, which is actually a factual determination of the designees’ alleged wrongdoing. This, perforce, results in an adjudication of their rights and obligations. But the ATC is not a court of law with the jurisdiction and competence to decide such questions,” they said.
Citing incidents of red-tagging which ended with deadly consequences, petitioners asked the high court to apply a stricter test in assessing the constitutionality of the third mode of designation.
They raised, among others, the death of teacher and ATA petitioner Chad Errol Booc during a supposed military encounter with the New People’s Army, which was recently designated a terrorist group by the ATC.
Booc’s lawyer, former Ateneo School of Government Dean Tony La Viña, said Booc is not a member of the NPA.
“Isa siyang martyr, isa siyang bayani, isa siya yung tinatawag naming the best and the brightest, pinakamatalino at pinakamahusay, talino at karangalan at dala-dala niya. At tinawag siyang terorista,” he said.
(He is a martyr, he is a hero. He was one of the best and the brightest, very intelligent and very competent, always showcasing intelligence and honor. And yet he was called a terrorist.)
“At ngayong tinawag siyang terorista, pinatay siya. Kaya’t napakahalaga na tingnan ulit ng Supreme Court yung deadly consequences,” he said during a press conference held shortly after the filing of the joint motion.
(Now that he was called a terrorist, he was killed. That’s why it’s very important that the Supreme Court should look into the deadly consequences of red=tagging.)
The ATC recently designated 16 alleged underground organizations of the Communist Party of the Philippines-New People’s Army (CPP-NPA). It earlier tagged the CPP-NPA as organizations and 19 of its alleged members as terrorists.
In its separate motion for reconsideration, FLAG raised the continued designation by the ATC as basis to ask the high court to issue a temporary restraining order.
The Carpio group flagged the danger of abuse under this provision if hearings challenging the designation were postponed until after those designated as terrorists have already been deprived of access to their bank accounts and assets.
Chief Justice Alexander Gesmundo, in his concurring and dissenting opinion, justified the delay by pointing to the “extraordinary situation” in cases of terrorism, where some valid governmental interest is at stake.
But for petitioners, this violates the due process guarantee under the Constitution.
“The ‘minimum requirements of due process are notice and hearing’ and these ‘may not be dispensed with because they are intended as a safeguard against official arbitrariness.’ Thus, it must be so to place the rights of every person ‘beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword’,” they said.
They also pointed out, the delisting process itself is not in the law but only in the implementing rules and regulations (IRR) of the Anti-Terrorism Act.
Petitioners reiterated their arguments that section 29 of the Anti-Terrorism Act is unconstitutional for allowing the ATC to authorize the arrest of a suspected terrorist even in the absence of an arrest warrant and for extending the period of detention to up to 24 days.
Ten magistrates voted to declare section 29 “not unconstitutional” with only justices Alfredo Benjamin Caguioa, Samuel Gaerlan and Japar Dimaampao declaring the whole section as unconstitutional.
Justices Marvic Leonen and Jhosep Lopez meanwhile considered the application of the provision in certain cases unconstitutional.
In justifying the ruling, the decision cited the IRR which limited arrests under section 29 to warrantless arrests allowed under the Rules of Court.
The decision also said that what the ATC will be issuing is not a warrant of arrest but a written authorization only to allow law enforcers to extend the detention of a terror suspect.
But petitioners parsed the language of section 29 and concluded that the phrase “having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts…” means that the taking into custody or arrest of a suspected terrorist came after or pursuant to the written authorization of the ATC.
“Consequently, the written authorization of the ATC partakes of a warrant of arrest, which the ATC has no authority to issue since only judges can issue warrants of arrest,” they said.
They also argued the IRR cannot cure the defects and save an unconstitutional law.
Even assuming that the ATC’s written authorization is only meant for the extended detention period, petitioners said this may be considered a commitment order, which only a court can issue.
“As it stands, the proper interpretation is to set the period of detention proportionately with the gravity of the offense or the exigencies of the circumstances. To extend the maximum period of detention to 24 days, which is eight times the constitutional limitation, is to state that terrorism goes beyond even the constitutionally-recognized extraordinary circumstances of rebellion or invasion, which the OSG itself expressly declared to be not the case,” the Carpio group said.
Another provision petitioners want the Supreme Court to strike down is section 10 which punishes recruitment and membership in a terrorist organization.
Magistrates voted 9 to 6 to uphold its constitutionality.
Under the provision, terrorist organizations are determined by proscription by the Court of Appeals or by designation by the United Nations Security Council or if they are “organized for the purpose of engaging in terrorism.”
Petitioners stressed the vagueness of the last phrase, quoting the ponente, Carandang herself, who called the phrase “impermissibly vague” because of “undetermined and unprescribled parameters.”
For petitioners, this means there is “no sufficient fair notice” of what conduct to avoid” and could give law enforcers “unbridled discretion” on how to implement the law.
FLAG, for its part, raised concerns over section 9 of the ATA on inciting to commit terrorism, which punishes those who may not have taken part in committing terrorism but incited others to do so through writings, emblems, banners or other representations.
The decision justified upholding the constitutionality of the provision by again citing the IRR which lays down a six-part threshold test which includes the context, the intent and the likelihood of harm.
But FLAG said that given the vague definition of terrorism, section 9 is not narrowly drawn enough and is not the least restrictive means to regulate speech — the standards in evaluating speech based on its content.
“The qualifying phrase ‘by its nature and context’ is an outright invitation to the beat cops to substitute their individual judgments for the legislative will and to determine for themselves what constitutes inciting to commit terrorism. Consequently, each law enforcer is authorized to determine on his own devices what protected speech is,” it said.
But while the 26 groups of petitioners who filed the a joint motion on Wednesday skipped discussion on section 4 defining terrorism, the Carpio group devoted almost a third of its 37-page motion on the issue.
All 37 petitioners had challenged the definition as being vague and overbroad.
But in resolving the petitioners’ objections, the SC decision said it could not declare unconstitutional the provision through a facial challenge — or just by looking at the language of the law — because the main text of the provision primarily deals with conduct and not with speech.
A facial challenge, according to the court, is allowed only in laws regulating speech because of the chilling effect it produces in the mind of the speaker.
But the decision went on to discuss how the definition of terrorism and other terms used in defining it are “not impermissibly vague” nor overbroad.
The ATA’s definition differs from its predecessor, the Human Security Act, in that it did away with “predicate” crimes or crimes already recognized under Philippine laws and replaced them with acts coupled with intent.
But the high court justified the flexibility of the definition, to be able to adjust to the “ever-evolving nature of terrorism.”
“The Court recognizes that Congress cannot be expected to enumerate all specific acts which may be resorted to by terrorists in pursuing their goals,” SC said, pointing out that ATA’s definition is comparable to those in other jurisdictions like the European Union, United Kingdom, Singapore and the United Nation’s proposed Comprehensive Convention on International Terrorism.
But for the Carpio group, the fact that the definition prohibits certain forms of speech and could cover conduct that may be considered “symbolic speech” which should prompt the Supreme Court to apply a facial review and subject to it to a strict scrutiny.
Petitioners pointed out the wide latitude given to law enforcers to determine which acts are prohibited, which could be prone to abuse.
For indeed, how will they measure the damage or harm as being of ‘sufficient magnitude’? When is an act calculated ‘to intimidate the general public, create an atmosphere or spread a message of fear, or intimidate or destabilize the government’? Given its loose ends, Section 4 is manifestly free-willing, serving as a fiat for law enforcers to decide on gut feeling. This exposes Section 4 as a provision of law that readily lends itself to ‘arbitrary and discriminatory enforcement’ to the grave detriment of the People,” the Carpio group said.
The group also noted that what awaits those who are suspected of terrorism is the possible of detention without bail with the absence of some judicial remedies like the writ of habeas corpus and amparo.
“[I]f sustained, Section 4 will hang as a Sword of Damocles over every Filipino, threatening arrest and indefinite detention pending criminal conviction. For this reason, Petitioners implore the Honorable Court to reconsider its ruling. Time spent in wrongful incarceration is irretrievable and the trauma beyond recompense,” it said, arguing that the whole provision should be voided.
In addition, the Carpio group also claimed section 12 of the law on providing material support to terrorists is also overbroad and vague as it supposedly “lacks an objective standard” to inform a person of common intelligence of what he can or cannot do.
“The ‘unbridled discretion’ vested on law enforcers67 to impute knowledge on the part of persons who wish to give material support would deter them from freely training or giving advice or assistance to otherwise innocent persons,” it said.
Three groups have so far filed their motions while other petitioners are not precluded from filing their own motions for reconsideration within 15 days from receipt of a copy of the SC ruling.
Of the 37 petitions, SC partly gave due course to 35 petitions but dismissed outright 2 petitions for either lack of merit or fundamental flaws in both form and substance.
The SC ruling did not foreclose the possibility of future challenges to the constitutionality of the Anti-Terrorism Act once it is applied to specific cases.
CONFIGURATION OF THE COURT
No date has been announced yet as to when a resolution of the motions for reconsideration may be expected but an important factor is the change in the composition of the high court, which could affect the voting.
Carandang, the ponente of the majority opinion, has retired as of January 9 this year and was recently replaced by former Comelec commissioner Antonio Kho, Jr.
Carandang sided with petitioners in at least 5 issues:
- in allowing facial challenge of the Anti-Terrorism Act with respect to freedom of speech, expression and cognate rights issues;
- in declaring the “not intended” clause of section 4 unconstitutional;
- in holding that the phrase “organized for the purpose of engaging in terrorism” is unconstitutional, where she was outvoted 9-6 by other magistrates;
- in declaring the second mode of designation under section 25 unconstitutional; and
- in holding that the third mode of designation under section 25 is unconstitutional, where she was outvoted 8-7 by other justices.
Twelve of the 15 Supreme Court justices are appointees of President Rodrigo Duterte, with the possibility of one more appointment once Senior Associate Justice Estela Perlas-Bernabe retires in May.
Perlas-Bernabe had a similar voting pattern as Carandang in all the issues.
Given the tight vote in some issues, petitioners are hopeful that two new justices could tip the scale in their favor and have more provisions, if not the entire Anti-Terrorism Act, voided by the high court.