SC petitioners hit ‘fatally flawed’ IRR of anti-terror law in pushing for TRO

Mike Navallo, ABS-CBN News

Posted at Oct 29 2020 02:59 PM | Updated as of Oct 29 2020 05:36 PM

SC petitioners hit ‘fatally flawed’ IRR of anti-terror law in pushing for TRO 1
Protesters hold a rally in UP Diliman on July 4, 2020 as they condemn the recently signed Anti-Terror Law. Mark Demayo, ABS-CBN News/File

MANILA— A group of petitioners against the anti-terror law led by veteran journalist Ma. Ceres Doyo, and senators Leila de Lima and Francis Pangilinan asked the Supreme Court Thursday yet again to act on their plea to stop the implementation of the law.

In a very urgent motion to resolve application for TRO filed by the Free Legal Assistance Group, Doyo and the other petitioners argued the issuance of the implementing rules and regulations (IRR) of the Anti-Terrorism Act has only made restraining its enforcement “doubly urgent” since the law affects free speech and expression.

“This Honorable Court has repeatedly held that a law that restricts speech on the basis of content is, in fact, presumed to be unconstitutional, and such presumption warrants the Supreme Court’s immediate issuance of a TRO to preserve sacrosanct constitutional rights,” the petitioners said. 

Calling the IRR “as fatally flawed as the ATA,” petitioners said the IRR could only exacerbate violations of constitutional rights.

“In Rule 4.9 of the IRR, for instance, the government dug itself deeper in its unconstitutional hole by adding circumstances that must be considered in determining ‘reasonable probability of success’: context, speaker/actor, intent, content and form, extent of the speech or act, and causation,” they said.

“Hence, the law, as the government itself expressly admits through the IRR, restricts free speech on the basis of content,” they added.

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The petitioners also argued the IRR usurped the legislative power reserved by the Constitution to Congress by introducing new provisions not in the law such as employing the “reasonable probability of success” test, lowering the threshold of probable cause from the standard of a “reasonable man” to “cautious person” and a procedure and the grounds for delisting a person or group designated as terrorists by the Anti-Terrorism Council.

“In the guise of providing for mere enforcement guidelines, the IRR extends and amplifies the constitutional violations inherent in the ATA. An unconstitutional law may not be enforced, and neither may it be cured by equally unconstitutional rules adopted by an overeager, overstepping executive. If the stream may not rise higher than its source, so too must the fetid water remain at the bottom of the swamp,” the group said.

Citing “clear and imminent danger to free speech,” they filed a petition challenging the constitutionality of the Anti-Terrorism Act in July, asking for a temporary restraining order to stop not just the implementation of the law but the issuance of the IRR as well.

They urged the high court to act on their plea in August, citing the statements of Armed Forces of the Philippines Chief of Staff Gilbert Gapay that they intend to include social media in the regulation under the ATA.

Gapay would later clarify he meant regulating social media firms, not users.

There are no provisions under the ATA IRR specifically on social media but critics have pointed out that the vague provisions of the law and the IRR alone would allow their application to posts on social media.

Petitioners claimed allowing the enforcement of the ATA through the IRR “can only lead to the actual and pervasive curtailment by the state of the constitutional right to free speech and expression.”

“Only the injunctive power of the Honorable Court stands between the people and the imminent terror heralded by the ATA and its IRR. Petitioners pray the Court to wield the power,” they said.

Thirty-seven groups of petitioners have challenged the Anti-Terrorism Act before the Supreme Court.

Chief Justice Diosdado Peralta earlier said they should be able to announce the date for the oral arguments by mid-November.