MANILA, Philippines — In four hours-long debates, seven noted lawyers stood as oralists for the 37 petitioners against the Anti-Terrorism Act of 2020 and addressed questions by Supreme Court magistrates on their legal challenges.
The first day of debates started on February 2, and continued in the succeeding Tuesdays, except on March 2, which was suspended due to COVID-19 threat. Solicitor General Jose Calida, on March 9, will finally present the government’s defense of the anti-terrorism law.
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In the past four sessions, 14 SC justices interpellated the seven oralists. It is unclear why Associate Justice Henri Jean Paul Inting did not pose questions to the petitioners, although this is a choice given to magistrates.
Associate Justice Rosmari Carandang was the first to ask questions. Traditionally, the member-in-charge of the case is first to interpellate parties.
Among the issues discussed in the past four sessions are leeway for the government to address “new” crime of terrorism, discretion to Congress to legislate, overbroad powers of the Anti-Terrorism Council and whether an actual case is present.
Here is a rundown of what transpired in the past four sessions of the oral arguments:
Terrorism: A crime that developed over time
- Punishing intent: Free Legal Assistance Group chair Chel Diokno, in his opening statement, told the tribunal that even social media users merely exercising their basic rights on platforms such as Facebook and Twitter may be put at risk because of the anti-terrorism law.
- Terrorism as a “new crime.” Justices pressed the petitioners on whether the terrorism, “a new phenomenon” that affects national security, should allow the Congress to legislate longer periods of detention.
Petitioners asserted no. Rep. Edcel Lagman (Albay) told the court: “Congress cannot pass a law against terrorism by derogating civil and political rights safeguarded in the Constitution. But in the case of the ATA, it has put the war against terrorism in a pedestal while it has demoted civil liberties to a footstool.” - More crimes penalized under ATA. Terrorism is a crime that developed over time and its impact is much worse than simpler crimes. Associate Justice Lopez said that the legislature should be given leeway in addressing offenses that develop quickly over time and the discretion to anticipate crimes to be committed in the future.
Ex-SC spokesperson Theodore Te, also a criminal law expert, said a preparatory act is not punishable “because it may not be clear on intent or what the resulting felony or crime.” He added that while it is lawmakers can exercise their powers to legislate, “it does not, by that token, survive constitutional review.”
Prolonged detention of suspected terrorism
- Three days too short to file case against suspected terrorist? Chief Justice Diosdado Peralta questioned the petitioners: The time periods in Article 125 of the Revised Penal Code for delivery of persons arrested without warrant to judicial authorities were crafted decades ago. Times have changed and new crimes were identified since.
The ATA gives law enforcers up to 24 days, which Lagman said is “inordinately long.” He added: “What should be important is not the prolongation of detention but the efficiency of police and military operatives and also that intelligence should be professional and accurate.” - Overbroad powers of the Anti-Terrorism Council. Central to Associate Justice Alfredo Benjamin Caguioa’s interpellation is the overbroad powers of the ATA. He asked: Is a person subjected to a written authority of the ATC to law enforcers, detained and in turn deprived his or her liberty, also under arrest even though only judges can issue a warrant?
Molo said the separation of powers is one of their arguments “because the real proposition of the ATA is: Can Congress by simply citing a national security concern get a core function of the judiciary and turn it over to the executive branch?” - Not as helpless. NUPL’s Neri Colmenares told justices that law enforcers and the military are not helpless against in their fight against terrorists without the ATA. He asserted the Human Security Act, even “draconian,” and the Revised Penal Code are enough.
Ex-Solgen Cadiz also said that with “good intelligence work and with good police work,” the government can stop terrorism.
Actual case against terrorism law
- Petitioners assert: We have an actual case against the anti-terrorism law. UP Constitutional Law professor John Molo asserted that the legal challenges against the anti-terrorism is not a question on policy best left to the wisdom of the legislature, or for even under the discretion of the executive branch.
Were the petitioners right to immediately run to high court? Were their issues they raised ripe or should they have waited for an actual case, like the two Aeta farmers charged under the law? Associate Justice Marvic Leonen and Molo discussed it, but the exchange was cut short due to time constraints. - The SC, in the end, rejected the petition-in-intervention filed by Aeta farmers, noting the ongoing trial case in the regional trial court. The National Union of Peoples' Lawyers, whom Solicitor General Calida accused of coercion, was since dropped as their legal counsels, while the proceedings on the case filed by the military continue.
Chilling effect, habeas corpus
- State interest vs fundamental interest. Associate Justice Mario Lopez, a criminal law expert, raised that the anti-terrorism law involves crimes against national security and in the SC jurisprudence, “never did we use that void for vagueness use in crimes involving national security.” A “higher level of scrutiny more than strict scrutiny test” may be needed.
But Molo said that under strict scrutiny, the state is put under test, especially when it chose unconstitutional means. He tried to elaborate, but Lopez cut him and just told him that he would be given a chance to rebut.
Not, as it turned out, in the oral arguments, but in a written memorandum they will file after the debates. - But where is the chilling effect? Associate Justices Leonen and Alexander Gesmundo have grilled the petitioners on how Section 4 of the law, assailed for being overbroad and vague, have affected them.
Have they been chilled to silence? But protests have continued, and retired SC Justice Antonio Carpio is not, and will not to be mum on his advocacies on the West Philippines Sea.
Molo explained that the “chilling effect” does not necessarily mean an entire population chilled to silence, but to “that pause, in the writer as he composes his words, it is the hesitation inside the mind of the speaker because of a vague and overly broad law, he doesn’t know whether the next word that he will say will be criminal or in this case, mark him as a terrorist.” - Petitioners fear rejection of habeas corpus pleas with ATA. NUPL’s Neri Colmenares raised fear that while a person detained under the reviled Section 29 of the law, which allows up to 24 days pre-trial detention, can file a petition for habeas corpus, this may easily be dismissed due to the wording of the law.
Outside the Supreme Court. Throughout the oral arguments that extend to over a month, there have been threats against, and arrests of, petitioners; violent attack on a counsel; rampant and erroneous red-tagging and a continuing prosecution of two Aeta farmers.
In a Joint Reiterative Motion for Temporary Restraining Order, the petitioners cited SC’s own landmark ruling in Chavez v. Gonzales and pleaded: “[A] blow too soon struck for freedom is preferred than a blow too late.”
But in the latest advisory from the SC, the court said it resolved to wait for Calida’s comment, as required in open court on the February 16, before it acts on the petitioners’ prayer for TRO.