Metro Manila (CNN Philippines) — The Anti-Terrorism Act, a law that sparked debate and controversy in the pandemic-stricken Philippines, will finally be discussed at the Supreme Court on February 2, seven months after its enactment.
Thirty-seven sets of petitioners have chosen 13 representatives to argue why the law should be junked for constitutional violations. The petitions were filed by framers of the Constitution, law experts, and human rights advocates, as well as individuals who claim to have been victims of authorities’ terrorist-tagging.
Solicitor General Jose Calida and three other lawyers will defend the measure President Rodrigo Duterte signed in July 2020.
For orderly proceedings, the high court gave each side 45 minutes to present their case and ordered them to limit the discussion to six preliminary issues and 15 substantive issues. This will be subject to interpellation by the justices.
All in all, the law has 56 sections. At least 23 will be specifically challenged during the oral arguments, while other matters can be argued through written memoranda.
CNN Philippines breaks down some of the key issues against the most challenged law in Supreme Court’s recent history.
Void for vagueness, overbreadth?
In repealing the Human Security Act of 2007, the Anti-Terrorism Act expanded the definition of terrorism. Under the previous law, an act of terrorism is committed when crimes such as piracy, rebellion, and murder are done to sow “widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.”
The Anti-Terrorism Act makes no mention of any predicate crime. Instead, under Section 4, a person commits terrorism when engaging in acts that intend to endanger someone or to damage public or private property, and certain other actions when the purpose is any of the following:
— intimidate the public, the government, or any international organization
— create an atmosphere of or spread a message of fear
— seriously destabilize or destroy the fundamental political economic or social structures of society
— create a public emergency or seriously undermine public safety
“Without standards to limit their boundaries, these phrases suffer from serious ambiguity and overbreadth that enables malicious criminal prosecution of innocent rights-holders,” according to a group of petitioners led by former Supreme Court Associate Justice Antonio Carpio. Citizens may now second-guess whether their actions could be considered by the state as terrorism, producing a chilling effect that violates constitutional rights to due process, free speech, and expression, Carpio and other petitioners agreed.
READ: Aetas ‘tortured’ by soldiers also seek scrapping of Anti-Terrorism Act
Sections 5 to 14 also penalize individuals or groups that threaten to commit terrorism; plan, train, prepare, or facilitate the commission of terrorism; conspire, propose, and incite to commit terrorism, as well as those who provide “material support” to terrorists. These are all too vague, the petitions say.
Officials have repeatedly dismissed allegations the law would be used to run after government critics, even saying that “activism is not terrorism.” However, the implementing rules and regulations explain that advocacy, protest, dissent, and similar exercises of civil and political rights will not be considered terrorism only when these are not intended to endanger a person or create a serious risk to public safety. This shifts the burden of proof to the accused, the petitioners argued.
READ: IRR explains: When can protests be considered terrorism?
The petitioners will also discuss whether the law should be struck down as unconstitutional in its entirety for its ambiguous definition of terrorism as well as the expansion of powers of the Anti-Terrorism Council, an office under the executive department.
Too much executive power?
The Anti-Terrorism Council, currently headed by Executive Secretary Salvador Medialdea, can now designate individuals and organizations as terrorists without any hearing, as long as it sees “probable cause” that they commit, attempt to commit, or are part of a conspiracy to commit acts defined and penalized as terrorism under Sections 4 to 12 of the law.
While authorities stressed that designation does not automatically warrant an arrest, the lists of designated terrorists are published, giving those tagged 15 days to file an appeal.
Petitioners say this encroaches on judicial power, particularly the Supreme Court’s rule-making power. It also violates due process due to lack of parameters for designation.
The designation allows the Anti-Money Laundering Council to freeze the assets of the individuals or organizations, violating a person’s right against unreasonable searches and seizures, according to the petitions.
In December, the AMLC said it has issued a freeze order on accounts “related” to the Communist Party of the Philippines and its armed wing New People’s Amy, following their designation as terrorist organizations. Duterte and his men have been calling the communist rebels terrorists ever since the peace talks broke down in 2017.
The CPP, which has waged a five-decade insurgency, maintained it has a “legitimate” national cause.
Meanwhile, applications for an individual or group’s proscription are filed with the Court of Appeals, upon the authorization of the Anti-Terrorism Council. Another contested provision is Section 27, which allows the appellate court to issue a preliminary order of proscription within three days if it finds probable cause to declare a suspect as terrorist or an organization as outlawed. It has six months to conduct hearings and decide whether to lift the order or make it permanent.
Arbitrary detention?
Section 29 allows the warrantless arrest and detention without charges of suspected terrorists for up to 24 days – as long as the law enforcement agent or military personnel are authorized in writing by the Anti-Terrorism Council. The Human Security Act previously allowed a pre-trial detention of up to three days only.
Petitioners will discuss if extending this period contravenes the Constitution, the Revised Penal Code, the Rules of Court, and international obligations against arbitrary detention. Under Article 7, Section 18 of the Constitution, even if martial law is declared and the privilege of the writ of habeas corpus is suspended, detention without trial should only last for three days. This is further cut to only 36 hours under the Revised Penal Code.
Law enforcement officials earlier said extending the detention period would allow them to build up the case against the suspected terrorists, but petitioners warned it would lead to abuses and rights violations.
“In the deliberations of the Constitutional Commission, the Commissioners emphasized the dangers of leaving detained persons in the custody of arresting officers for extended periods of time,” said one of the petitions led by Christian Monsod and Felicitas Arroyo, members of the commission that drafted the 1987 Constitution.
Pretrial punishment?
Surveillance of proscribed, designated, and suspected terrorists could last up to 90 days under the new law, compared to the 60 day-period in the previous legislation. The Court of Appeals shall allow the surveillance upon the application of a law enforcement agent or military personnel authorized by the Anti-Terrorism Council.
The petitions argue that the sections on surveillance violate the people’s rights to due process and to privacy of communication and correspondence, rights to freedom of speech, expression, and religion, right against unreasonable searches and seizures, and the accused’s right to presumption of innocence. The authorization from the Court of Appeals also blocks remedies available to the accused, petitioners said.
Petitioners said this is tantamount to an ex post facto law, which penalizes an act that was not considered a crime when it was committed, and also punishes the detained without trial.
Meanwhile, Section 34, which retains the old provision allowing house arrest and limiting the accused’s movement within the city or municipality he resides upon the order of a regional trial court, is also being questioned for violating the person’s right to travel, right against incommunicado detention, and right to bail. This could be considered torture, according to petitioners.
Despite dozens of petitions urging the high court to stop the implementation of the Anti-Terrorism Act due to the “grave and irreparable injury” red-tagged groups and individuals stand to suffer, no temporary restraining order or status quo ante order was issued by the high court. This will be part of the preliminary discussion during the much-anticipated oral arguments.