Ex SC justices speak: Jardeleza wants Anti-Terror law petitions junked; Puno flags ‘bothersome’ provisions

Mike Navallo, ABS-CBN News

Posted at May 18 2021 05:31 AM | Updated as of May 18 2021 05:53 AM

Ex SC justices speak: Jardeleza wants Anti-Terror law petitions junked; Puno flags ‘bothersome’ provisions 1
Members of different progressive groups hold a protest outside the Supreme Court along Padre Faura in Manila on February 2, 2021 hours before the scheduled oral arguments on the constitutionality of the Anti-Terror Act. Jonathan Cellona, ABS-CBN News/file

MANILA — Two former Supreme Court justices on Monday gave differing views on what to do with the 37 petitions challenging the constitutionality of the Anti-Terrorism Act: one advocated for outright dismissal while the other called for a balancing act between individual liberties and national security while pointing out “bothersome” provisions.

Retired Chief Justice Reynato Puno and retired Associate Justice Francis Jardeleza spoke as amicus curiae or friends of the court at the conclusion of the oral arguments.


Jardeleza was categorical in his position: “I humbly submit that, following this Court’s ruling in Southern Hemisphere Network vs. the Anti-Terrorism Council, all 37 petitions should be dismissed.”

He was referring to a 2010 Supreme Court ruling which junked petitions challenging the constitutionality of Republic Act 9372 or the Human Security Act, the law which the Anti-Terrorism Act replaced.

In a decision penned by former Associate Justice Conchita Carpio-Morales, the Supreme Court said “petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372,” in justifying the dismissal of the cases.

Petitioners’ locus standi or legal standing to bring the suit has been one of the key issues throughout the 9-day oral arguments which spanned 4 months. 

Legal standing means a person must be able to show personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of a governmental action.

It is one of 4 requisites for judicial review that must be satisfied before the Supreme Court steps in to look into the constitutionality of a case.

Applying the standard to the petitions against the Anti-Terrorism Act, Jardeleza noted that the very persons who have suffered direct injury, such as the 2 Aetas in Zambales, 13 in Sulu and 1 in Sorsogon who are all facing terrorism charges, or the Communist Party of the Philippines and the New People’s Army who were designated by the Anti-Terrorism Council as terrorist organizations in December, are not parties to the petitions before the Supreme Court.

The petition for intervention by the 2 Aetas was junked by the high court in February citing the need to determine factual issues which a trial court can better look into.

“…[N]one of the petitioners in these cases has claimed direct, personal, or constitutional injury, or has alleged actual prosecution under the ATA as to be entitled to relief,” Jardeleza said Tuesday.

He added, the petitioners also did not resort to “pre-enforcement review” of a criminal statute soley on the ground of vagueness.

Jardeleza stressed the importance of following the doctrine of hierarchy of courts which requires cases — even those involving the constitutionality of a law — to go through the trial courts and the Court of Appeals first before they could be considered by the high court.

Jardeleza penned the 2019 decision dismissing the petition filed by GIOS-SAMAR Inc., a non-government organization composed of farmers and fisherfolk from Samar, which questioned the then DOTC’s and CAAP’s bundling of several airports in the bidding of rehabilitation projects.

The decision was unanimous in requiring that “when a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental importance or paramount importance of the case.”

Only then-Senior Associate Justice Antonio Carpio and Associate Justice Marvic Leonen shared the view that the Supreme Court should not abandon the “doctrine of transcendental importance.”

Anti-Terrorism Act petitioners are relying on the transcendental importance argument to justify direct resort to the Supreme Court invoking later cases which they said modified the strict ruling in GIOS-Samar.

But Jardeleza on Monday underscored the importance of the ruling in the Anti-Terrorism Act petitions, citing statistics of clogged SC dockets with more than 14,000 pending cases in 2016 and 2019. 

“Judges of the RTC and Justices of the Court of Appeals are not only equipped to receive and ascertain the facts for this Court, they also, in their own right, make constitutional law. I think it is time we start hearing from them by giving them the first crack at cases such as these,” he explained.

Jardeleza also invoked the presumption of the constitutionality in favor of laws passed by Congress.

“[G]iven the complete absence of facts on this case record, how can the Court decide against the ATA’s presumed constitutionality at this time?,” he asked.

He also justified the Department of Justice’s move to “narrow the definitions” of the Anti-Terrorism Act through its implementing rules and regulations to save the law: “What is so wrong in allowing the DOJ to do its share in defining constitutional law?”

Petitioners have objected to the addition of provisions in the IRR which are not found in the text of the Anti-Terrorism Act, characterizing it as undue delegation of legislative powers. 


Unlike Jardaleza, Puno did not offer a straightforward advice to magistrates. 

Instead, he acknowledged the difficulty of ruling on terrorism when not even the United Nations itself could provide a single definition acceptable to all its member-States. 

He recognized the shift in the approach of Philippine authorities in addressing common crimes and dealing with terrorism under the new law.

“The Anti-Terrorism Act has changed the legal approach of the government to check the particular crime of terrorism. Heretofore, our laws towards crime is essentially punitive, i.e., prosecute violations of our criminal laws and penalize the violators,” he told magistrates.

“ATA’s approach is more radical when the crime involved is terrorism. The government is allowed to take preventive measures to stop the violation from happening and for this purpose the government is given new tools such as detention and surveillance of suspects,” he added.

What Puno did not read before the Court is his position on several provisions of the Anti-Terrorism Act contained in a position paper submitted to the Supreme Court, a copy of which was obtained by the media. 

Unlike Jardeleza, Puno believes petitioners have standing to challenge the law based on existing rulings that exempt those who question the law as being “vague and overbroad” from the strict application of the legal standing rule. 

A law will be struck down for being “vague” if the conduct it prohibits is “unclearly defined” that the average person has to guess its meaning.

It is overbroad if its coverage is sweeping that it also forbids speech or conduct protected by the Constitution. It will be struck down because of its chilling effect on speech and the high possibility of selective enforcement.

Petitioners who claim a law regulating speech is “vague and overbroad” need not wait for an actual injury and can file what is called “facial challenge” before the court — questioning the constitutionality of the law solely based on its language.

But Puno said petitioners failed to discharge the heavy burden of proving, in facial challenges, that “there can be no instance when the assailed law may be valid.”

“With due respect to the petitioners, I respectfully submit that their valiant efforts fall short to justify striking down the Anti-Terror Law as unconstitutional on its face on the ground of vagueness or overbreadth,” he said, clarifying that new challenges may still be filed in the future.

Puno also raised concerns over several provisions of the Anti-Terrorism Act, particularly on designation and proscription of terrorists, detention and surveillance of terrorists.

In designation, the Anti-Terrorism Council, composed of Executive officials, without hearing determine who can be designated as terrorists or terrorist organizations based on intelligence reports for the purpose of freezing their assets.

In proscription, law enforcers seek a Court of Appeals declaration that a group is being outlawed for being a terrorist organization. The organization is given the chance to present its side in a hearing.

Puno pointed at the secretive nature of the Anti-Terrorism Council’s designation of terrorists which, he said, could mean that the finding of probable cause may lack sufficient evidentiary basis and the lack of a meaningful remedy to contest it.

He asked why proscription is only for terrorist organizations and not for individuals as well, unlike designation.

The former top magistrate also noted how the Anti-Terrorism Council’s issuance of arrest warrants under the ATA bypasses a prosecutor’s and judge’s determination of probable cause in ordinary crimes.

The Office of the Solicitor General has maintained the ATC will not authorize arrests but Puno said, under the ATA, “the ATC can order the arrest on mere suspicion that a person is committing terrorism” instead of probable cause.

He noted the longer period of detention under the ATA of up to 24 days even without charge as opposed to 36 hours under the Revised Penal Code.

Puno also highlighted some “bothersome” points in the provisions on surveillance, including:

  • Surveillance on persons already charged with terrorism to gather evidence for conviction
  • If surveillance order is issued by the Court of Appeals, it might be difficult for lower courts to rule against admissibility of evidence
  • Surveillance allowed through means still unknown to science is “overkill”
  • Gaps in the law on how the subject of surveillance could gain access to classified information or means to block use of information as evidence 

But in the end, Puno left the determination of the constitutionality of the law in the hands of SC magistrates.

“The balance should not reduce individual rights into insignificance for they are inherent to human dignity. Neither should the balance put an end to the security of the people for they did not enter into a suicide pact when they ratified the Constitution,” he said. 

“The ideal is for us to be both free and safe.”

Both petitioners and respondents to the consolidated petitions are given 30 days to submit their memoranda. 

It could take months more before the Supreme Court finally settles the issue of the constitutionality of the Anti-Terrorism Act.


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