MANILA - The Supreme Court has struck down portions of 2 provisions of the highly contested Anti-Terrorism Act following a “complicated” vote on Tuesday, but ultimately upheld the constitutionality of the rest of the measure, the high court announced Thursday.
The Supreme Court, by a vote of 12-3, declared unconstitutional “for being overbroad and violative of freedom of expression” a qualifier to a proviso in section 4 defining terrorism which reads:
“Provided, That, terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”
The justices also voted 9 to 6 to declare unconstitutional the second method for designation under section 25 of the Anti-Terrorism Act which allows the Anti-Terrorism Council to adopt “request for designations by other jurisdictions or supranational jurisdictions” following a “determination that the proposed designee meets the criteria for designation of UNSCR No. 1373.”
All other provisions of Republic Act 11479 are declared “not unconstitutional” without indicating the magistrates’ votes.
No explanations for the vote have so far been released by the high court, which advised the public to wait for the publication of the main decision and separate opinions.
Supreme Court sources have indicated on Tuesday that the vote was “complicated” with separate voting on several issues instead of a solitary vote on whether the entire law was constitutional or not.
“KILLER” CAVEAT IN SECTION 4
The proviso under section 4 defining terrorism is one of the more contentious provisions of the anti-terrorism measure with government lawyers pointing out that the fact that the law expressly exempts advocacy, protest, dissent, stoppage of work, industrial or mass action and similar exercises of civil and political rights is proof that the law does not violate freedom of expression and other constitutionally-protected rights.
But petitioners have pointed out that the “killer” caveat shifts the burden on the suspected terrorists to prove that these activities “are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”
Petitioners have argued that this qualifier, along with the definition of terrorism in general under section 4, punishes intent which would supposedly give law enforcers leeway to arbitrarily enforce the measure given the difficulty of determining intent.
In contrast, the repealed Human Security Act punished certain crimes as falling within the category of terrorism.
What the ruling means, according to petitioners and various groups, is that legitimate actions such as protests and work stoppage are now clearly excluded from the definition of terrorism.
“It corrects the erroneous and dangerous view of the law’s proponents that equate activism with terrorism,” said senatorial aspirant and former Rep. Neri Colmenares in a statement.
“Our main win from the SC ruling on the terror law is that ACTIVISM IS NOT TERRORISM. This is a partial victory for petitioners as protests and advocacy are not acts of terror, period,” Bagong Alyansang Makabayan secretary general Renato Reyes, Jr. added.
Professors and the dean of the Far Eastern University, who were among those who challenged the law, considered the SC ruling striking down the qualifier as a “victory for human rights and civil liberties.”
But why only the qualifier was declared unconstitutional by the Supreme Court while the rest of section 4 was upheld is unclear for some of the petitioners.
“I’d be curious to read the reasoning of the Court on that portion and bakit hindi siya applicable sa main provision on section 4 because if the Court considered the last portion of that qualifier to the proviso, “intended to cause…,” yun din naman ang language ng main provision sa section 4. So I’d be curious to see kung paano nila i-distinguish. But as of now, mahirap magsabi,” lawyer Ted Te told reporters in an online interview Thursday.
His organization, the Free Legal Assistance Group, considers this aspect of the ruling an “important win” for the protection of civil liberties but he cautions that the uncertainty remains.
“For an ordinary person as you put it, ganun pa rin yung pangamba niya, yung sinasabi nating chilling effect as to the exercise of rights could still be there. The definition still remains unclear. Hindi pa rin malinaw kung ano yung sakop ng definition,” he added.
Also unclear for petitioners is why the second mode of designating terrorists which would use as basis the criteria laid down under a United Nations Security Council resolution, was declared unconstitutional while the first one, adopting entirely the UNSC’s list was not.
Under section 25 of the Anti-Terrorism Act, designation of terrorists and terrorist groups could come in three ways:
-The Anti-Terrorism Council can automatically adopt the United Nations Security Council’s consolidated list of designated individuals or groups
-The ATC may adopt the UNSC’s criteria in processing requests for designation by other jurisdictions or supranational jurisdictions
-The ATC may make its own designations
“We don’t know the reason and the advisory does not tell us the reason for striking it down as unconstitutional and how the first part of that provision could remain constitutional when the second part was unconstitutional. So mahirap mag-speculate on that,” Te said.
“We don’t know yet eh. Yun ang mahirap sa part na yun. In hindsight, it would have been much clearer if the dispositive had been released, if the dispositive has been ready because the dispositive is the judgment,” the former SC spokesperson added.
Current SC spokesperson Brian Keith Hosaka told reporters this information is still not available.
“Surely there is an explanation on this by the Supreme Court. It will be part of the text of the decision as well as separate opinions of the Justices, if there are any. However, I cannot provide the details yet since I have not been provided with a copy of the actual decision,” he told reporters in a message exchange.
“What we can provide you in the meantime is only the information mentioned in the media advisory we released this morning.”
Petitioners have challenged the entire section on designation for being contrary to the constitutional provision that only a judge may issue a warrant of arrest based on a personal determination of probable cause.
In addition, they claimed violation of the right to due process because the designated groups or individuals are not informed of the basis for their designation and neither are they given the opportunity to address the allegations until after they have been designated through a process called delisting.
Delisting was only included in the implementing rules and regulations of the law.
As a consequence of the designation, the assets of designated individuals and groups can be frozen “without delay” by the Anti-Money Laundering Council and they can still be subject to the court-sanctioned procedure of proscription where the Court of Appeals can declare them as terrorists.
A key question is on the authority of the Anti-Terrorism Council, composed of members of the Executive to designate terrorists, which they argue, should be a judicial function.
Defending the ATA during the oral arguments at the Supreme Court early this year, lawyers from the Office of the Solicitor General said designation is an executive and administrative function similar to what prosecutors do.
One of the petitioners, lawyer Evalyn Ursua, however argued that prosecutors can only determine probable cause for filing charges in court, not to arrest, detain or authorize freezing of assets.
Government lawyers said designation only leads to freezing of bank accounts and not arrests.
The ATC in December last year designated the Communist Party of the Philippines and the New Peoples’ Army as terrorists groups while 19 alleged central committee members of the CPP were also designated in May.
Cristina Palabay, secretary general of rights coalition KARAPATAN, called the ATC’s power to designate a “virtual hitlist.”
“The ATC’s power to designate is a virtual hitlist. Being designated as a ‘terrorist’ is essentially a death warrant. This arbitrary power along with the retention of the 14-day period of warrantless detention in Section 29 are dangerous provisions that would only engender the commission of human rights violations including torture and enforced disappearances under the cover of implementing the terror law,” she said in a statement.
Another power of the Anti-Terrorism Council to authorize detention without judicial warrant of arrest and prolonged detention was also not struck down.
Under section 29 of the ATA, a law enforcement agent or military personnel, who, having been duly authorized by the Anti-Terrorism Council, takes custody of a person accused of committing terrorism and terrorism-related acts, can extend the period of detention up to 14 to 24 days.
Petitioners have pointed out that a body composed of members of the Executive cannot take on the judicial function of issuing arrest warrants.
They also argued the 24-day detention goes beyond the maximum three-day detention under the 1987 Constitution in cases of rebellion and invasion, considered extreme cases because the life of the government is at stake.
But the Office of the Solicitor General, in defending the ATA, claimed the provision does not mean the ATC can issue warrants of arrest but merely contemplates cases of valid warrantless arrests under section 5, Rule 113 of the Revised Rules on Criminal Procedure like caught in the act or hot pursuit cases.
The real goal, the OSG said, is to just extend the period of detention in order to allow authorities to secure sufficient evidence to file a complaint before prosecutors.
Some justices, like member-in-charge Associate Justice Rosmari Carandang, did not buy the OSG’s explanation, expressly pointing out that “that is not what is written in the law” while other justices like Justice Ramon Hernando pointed to other countries whose anti-terror laws provide much longer periods of detention in dealing with a “different” crime that is terrorism.
“The other provisions which we thought should have been struck down — powers of the ATC particularly on the power to issue orders of arrest, to keep people detained indefinitely, for extended periods. We thought that during the oral argument, malinaw naman yata yung dahilan kung bakit sa tingin namin ay unconstitutional but again we don’t know why the Court did not strike it down,” Te said.
Other controversial provisions which were “not declared unconstitutional” by the Supreme Court according to the media advisory Thursday include the very definition of terrorism itself under section 4 which all 37 petitioners have contested for being vague and overboard.
Others are section 9 on inciting to terrorism which media groups challenged for including “speeches, proclamations, writings, emblems, banners or other representations” that supposedly incite the commission of terrorism and section 16 on surveillance of suspects and interception and recording of communications.
Various groups have expressed dismay that the entire Anti-Terrorism Act was not struck down.
"We are dismayed and furious. The Supreme Court has forsaken the public clamor against the infamous anti-terror law. It should have been no-brainer for the SC to declare unconstitutional this entire repressive measure as it has been contested by a total of 37 petitioners who came from different sectors and advocacies upholding democratic rights and civil liberties,” fisherfolk group PAMALAKAYA said in a statement.
“Voiding the so-called 'killer' provision of the anti-terror law is no consolation to Filipinos because the entire law is a killer law. It should have been struck down totally and in its entirety. As the law stands after the SC voided Section 4, it still has so many fangs and claws that anti-democratic forces can use to defeat the right to life, the right to be secured in their persons, the right to assumption of innocence and other rights necessary for the free enjoyment of our liberties as citizens,” it added.
Petitioner Edcel Lagman said “[t]he declaration of unconstitutionality of only two provisions of the 2020 Anti-Terrorism Act (ATA) fails to fully uphold and protect due process, human rights, and fundamental freedoms which are derogated by the controversial statute.”
Rights groups coalition iDefend warned of the “deadly consequences” of the ruling.
“The Executive branch-appointed Anti-Terrorism Council now has the power to order warrantless arrests on mere suspicion, and prolong detention periods without formal charges; it has unbridled discretion to select the targets including those from among critics and the opposition, because of the very broad and vague definition of ‘terrorist acts’; it can designate groups and individuals as ‘terrorists’ without due process and without clear procedure to remove such designation; and will not be accountable for wrongful designations, or for the perpetration of human rights violations as a result of the law’s implementation,” it said in a statement.
“The Muslim population are specially threatened by the Anti-Terrorism Law in the light of historical discrimination and persecution against them; the Bangsamoro Transitional Authorities opposed the enactment of the law, saying Muslims are particularly targeted because of their religion. The United Nations also raised an alarm that the new law was worse than what it replaced, because the potential for human rights violations outweigh the benefits of counter-terrorism measures,” it added.
Colmenares vowed to file a motion for reconsideration, saying “the fight is not yet over.”
National Security Adviser and Anti-Terrorism Council vice chairman Hermogenes Esperon, Jr. welcomed the SC ruling but refused to comment on the details while waiting to receive a copy of the SC’s media advisory.
“I’m happy that it is out, hindi naman dineclare yung law na unconstitutional but some, two portions which is okay but we're waiting,” he said.
Interior Secretary Eduardo Año said they respect the SC’s ruling and sees “minimal” impact on the implementation of the law.
“The declared unconstitutional provisions are minimal and it won’t affect at all the ATA 2020. We’ll make appropriate adjustment but we strictly implement Anti Terrorism Law strictly in order to protect the people against all acts of terrorism,” he said.