Lawyers to fight for nullification of 24-day warantless arrest under anti-terrorism law
MANILA, Philippines — Petitioners have hurdled questions on mounting a facial challenge against the Anti-Terrorism Act of 2020 as the Supreme Court struck down parts of the law in its historic vote on Tuesday.
But they still face an uphill battle against most parts of the law, including the contentious section that allows prolonged detention of up to 24 days of suspected terrorists without judicial charge.
Lawyer Howard Calleja, counsel to petitioners, said they are pleased with the ruling of the Supreme Court that declared as unconstitutional the qualifier to the proviso of Section 4, which defines terrorism, that read "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" for being "overbroad and violative of freedom of expression."
For lawyer Howard Calleja, counsel to petitioners, they take this as a time to “celebrate the fact that we have hurdled procedural issues.”
“We are grateful that the court recognized our legal standing in this case and discussed it on the merits instead of dismissing it outright on alleged technicalities,” Calleja continued.
One of the strongest arguments of the Office of the Solicitor Genaral for the dismissal of all 37 petitions is their supposed lack of legal standing to sue. Petitioners mounted a facial challenge against the law, arguing that the ATA infringes on freedom of expression and creates a chilling effect on the public.
This argument was also raised by retired SC Associate Justice Francis Jardeleza who was invited as amicus curiae (friend of court) in the resolving the case.
But the SC declaring as unconstitutional the “dangerous qualifier” in Section 4 for being overbroad and violative of freedom of expression, is an “indication that facial challenge” on the provision was accepted, lawyer Theodore Te told reporters.
A facial challenge is a petition contending the assailed law is unconstitutional on its face.
Hope
The SC also ruled, voted 9-6, that allowing the Anti-Terrorism Council to adopt requests for designation by other jurisdictions or supranational jurisdictions is unconstitutional, the second method of designation under the law.
But the high court, in its advisory, continued: "On the basis of the current petitions, all the other challenged petitions of R.A 11479 are not unconstitutional."
The wording of the advisory leaves some hope for petitioners who are fighting for the nullification of the entire Republic Act 11479 or ATA in its entirety, law professors from the Far Eastern University, also counsels to petitioners, said.
“While we hoped for the declaration of unconstitutionality of the Anti-Terror Act in its entirety, we respect the Supreme Court’s decision to exercise judicial restraint when it said ‘on the basis of the current petitions, all the other challenged provisions of RA 11479 are not unconstitutional,’” they said.
“This certainly leaves the door open for a challenge of constitutionality on ‘as applied cases,” they continued.
Calleja said they still “feel strongly about having other questionable provisions declared unconstitutional as well.” Other petitioners and their counsels have also said they will be preparing to file a motion for reconsideration.
FEU lawyers, led by Dean Mel Sta. Maria, in particular, cited Section 29 of the law that allows up to 24 days of warrantless arrest of suspected terrorists as one of the provisions that should be struck down by the SC.
“The threat of arrest without a judicial warrant and prolonged detention would be more than chilling enough to stifle suppress, if not totally snuff out, any fire, flame, or even flicker, of indignation or protest against government corruption, oppression and abuse,” they added.
Rep. Edcel Lagman (Albay), a petitioner to the case, also said that the SC’s upholding of Section 29 of the law “is a blatant violation of the Constitution.”
“When a suspect is unlawfully detained outside of the court’s jurisdiction, coerced confessions and torture are bound to be committed by police authorities in violation of the Bill of Rights,” Lagman, who argued for the nullification of this provision during the oral arguments, added.
Urgency
As parties wait for the release of the SC’s ruling, the National Union of Peoples’ Lawyers said “disquiet will hang heavy with the continuing specter of red-tagging and de facto terrorist designation, notwithstanding the nuancing of Section 4.”
“If the Bill of Rights is to be truly upheld, protected and fulfilled, we respectfully submit that it is not enough to affirm that activism is not terrorism, even as this is a huge and welcome step in that direction. It is our humble opinion that measures which suppress fundamental freedoms and liberties must be rejected without qualification, ambivalence and reluctance,” they said.
As it stands, most parts of the feared law, including the controversial powers of the Anti-Terrorism Council to designate terrorists, was affirmed by the SC. This is amid continuing red-tagging of dissenters and critics of the government.
For environmental defenders from the Kalikasan People’s Network for the Environment and Center for Environmental Concerns-Philippines, the SC upholding the ATC is a manifestation of “systemic challengers of authoritarianism and impunity” they continue to face.
“We will not forget how the SC solicited our documentation of these human rights abuses we petitioners faced and yet still ended up with a decision that allows the ATC's wolves to hunt us as prey, whether or not we are designated or proscribed as terrorists,” they added.
Petitioner Karapatan also raised that the ATC’s “power to designate is a virtual hitlist.”
Coupled with the upholding of prolonged warrantless detention in Section 29, this “would only engender the commission of human rights violations including torture and enforced disappearances under the cover of implementing the terror law,” Karapatan Secretary General Cristina Palabay added.
Progressive groups said they will continue to call for the junking of the Anti-Terrorism Act of 2020 in protests on Human Rights Day on Friday.
President Rodrigo Duterte signed the Anti-Terrorism Law on July 3 despite opposition from rights groups and civil society groups that it could be used to stifle human rights.
A petition against the law has been filed at the Supreme Court and other groups are preparing pleadings of their own.
Follow this page for updates. Photo courtesy of The STAR/Michael Varcas
National Security Adviser Hermogenes Esperon moves to block access to several websites, including news sites of alternative news orrganizations Bulatlat.com and Pinoyweekly.org.
In his letter to the National Telecommunications Commission, he only says the websites are "affiliated to and are supporting these terrorists and terrorist organizations."
No other basis to back up his allegation was cited in the letter.
Citing the designation of the CPP-NPA-NDF as terrorists, NSA Hermogenes Esperon moves to block access to several sites.
— Kristine Patag (@kristinepatag) June 22, 2022
In Esperon's letter to the NTC, he included news sites @bulatlat and @pinoyweekly; sites of other progressive groups RMP and Save our Schools. @PhilstarNews pic.twitter.com/nAzMITJFsS
The Commission on Human Rights says it "partly welcomes" the Supreme Court decision that some parts of the controversial Anti-terrorism Law are unconstitutional.
CHR spokesperson Jacqueline de Guia says the commission remains hopeful that the remaining contentious provisions of the law will be clarified by the high cour in the full text of the decision.
"At the same time, our commitment remains in guarding against possible human rights violations arising from the implementation of the anti-terror law. We steadfastly remind the government that countering terrorism and protecting human rights are not competing values but are, in fact, mutual and complementary," De Guia says in a statement.
The Supreme Court has deliberated and voted on the controversial Anti-Terrorism Act but the decision will be released "at the soonest time possible."
"However, considering that there were numerous issues resolved in the case, as well as the fact that each Justice had to vote on each issue, there is a need to accurately confirm and tally the vote of each Justice in order to ensure the correct resolution of the Court per issue," SC spokesperson Brian Hosaka says.
The Anti-Terrorism Council designates the National Democratic Front of the Philippines, the panel that negotiates for communist rebels during peace talks a terrorist organization.
Previous designation of the Communist Party of the Philippines and New People's Army led to the designation of supposed members of the CPP's Central Committee. Among those designated as terorrists were peace consultants.
Designation gives the Anti-Terrorism Council the authority to investigate and freeze the accounts of designated persons.
The Anti-Terrorism Council has designated 29 people, including alleged members of the Communist Party of the Philippines-New People's Army, as terrorists in two resolutions.
Designation allows the Anti-Money Laundering Council to freeze the assets of those on the list.
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