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.
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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.