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July 24, 2020

Petitions Versus Anti-Terror Law Now 16: ‘It Will Terrorize Our People, Not the Terrorists’

Petitions Versus Anti-Terror Law Now 16: ‘It Will Terrorize Our People, Not the Terrorists’ From left: former Quezon 4th District congressman Lorenzo Tañada III, human rights lawyer Chel Diokno and Quezon City 6th District Rep. Jose Christopher Belmonte show a copy of the petition they filed against the Anti-Terrorism Act before the Supreme Court on July 23, 2020. Photo by KJ Rosales, The Philippine STAR

As soon as the Supreme Court (SC) opened for the first time on Thursday, July 23, since the Anti-Terrorism Act took effect, four more petitions were filed against the law by opposition senators, human rights lawyers, journalists, student organizations, activists and Bangsamoro people.

This brings the total number of pending legal challenges to 16 – more than the 15 justices sitting in a high tribunal composed mostly of appointees of President Duterte.

Duterte signed Republic Act No. 11479 into law on July 3; it was uploaded to the Official Gazette website on the same day but published in the print version only on July 6. Contrary to the Department of Justice’s pronouncement that the law took effect on July 18, there are lawyers who consider July 22 – the day after the 15-day period counted from publication – to be the true date of its effectivity.

Activists led by Bagong Alyansang Makabayan secretary-general Renato Reyes and former social welfare secretary Judy Taguiwalo electronically sent their petition on July 19, while retired SC associate justices Antonio Carpio and Conchita Carpio-Morales, along with faculty members of the University of the Philippines College of Law, filed theirs on July 22.

Both petitions were physically filed before the SC on Thursday, after it closed down for three working days since Monday this week for disinfection.

On July 23, UP Law released a statement regarding the Carpio petition. It said: “This is UP Law at its best: women and men who UP Law is privileged to call alumni, faculty, and students joining together to safeguard vital constitutional precepts and protecting the citizenry from potential excesses of the executive and the legislature.”

“The Petitioners are placing their class-room learning where it belongs: before a Court of law. In doing this, they do what comes naturally to the UP Law constituency: help ‘shape the law’ as another alumnus, (SC) Justice (Marvic) Leonen, recently called upon lawyers to do,” the UP Law statement added.

Besides the two electronically filed petitions, four new legal challenges were brought on July 23.

In sum, the petitions question what they describe as the vague and overbroad provisions concerning the definition of “terrorism” and the provision of new crimes such as “threat,” “planning,” “conspiracy,” “proposal” and “inciting” to commit terrorism, “recruitment to or membership in” a terrorist organization, and giving “material support” to terrorists.

 These crimes are feared to attack the freedom of speech by scaring ordinary people into silence and making them refuse to speak out of fear of prosecution by authorities wielding too much power.

 Another main point of contention is the creation of the Anti-Terrorism Council (ATC), which has the power to issue written authorizations for the detention of persons merely “suspected” of committing terrorist acts, without the need for a judge to issue a warrant of arrest as required by the Constitution.

 Such suspects may be detained for a maximum of 24 days, which is eight times longer than the three-day period allowed by the Constitution during the suspension of the privilege of the writ of habeas corpus in cases of rebellion or invasion.

 Pangilinan, De Lima, Rappler execs’ petition

 The 13th case was filed by minority Senators Francis Pangilinan and Leila de Lima; former senator Sergio Osmeña III; Quezon City 6th District Rep. Jose Christopher Belmonte; former Quezon 4th District congressman Lorenzo Tañada III; Rappler officers Maria Ressa, Maria Rosario Hofileña, Lilibeth Frondoso and Marites Vitug; and journalists Ma. Ceres Doyo, Jo-Ann Maglipon-Marcelo and Rachel Khan, among others.

 This law violates the Constitution and threatens our rights. It will terrorize our people, not the terrorists,” said Free Legal Assistance Group chair Chel Diokno, who represented the 13th set of petitioners.

 In an online press conference, Pangilinan recalled that he cast one of the only two Senate votes against the measure in February because “we believe a number of provisions in the Constitution have been violated, particularly in the Bill of Rights.”

 “The Liberal Party is one of the opposition parties today in the country, and our fear is that this law will be used to stifle dissent and those in opposition,” Pangilinan said.

 A framer of the 1987 Constitution – professor Ed Garcia – stressed that he has always considered the Bill of Rights as the “bedrock of our democracy” as it enshrines freedom of speech and the right of the people to peaceably assemble.

 In a statement, Garcia said the Anti-Terrorism Act (ATA) undermines these “sacred freedoms.”

 As one of those who struggled during the Marcos dictatorship, Garcia also pointed out that Section 2 of the Bill of Rights “stated in no uncertain terms that ‘no search warrant or warrants of arrest shall be issued except upon probable cause to be determined personally by the judge after examination under oath.’ ”

 “Examples abound today on how flawed the implementation of the law can be, how weak our institutions, how our system lacks accountability and how the enforcers of the law at times are the first to break the law,” Garcia declared.

 Ressa – whom the Duterte administration has charged with multiple offenses from tax evasion and violation of the Securities Regulation Code, and faces a cyber libel case filed by a businessman – said that to fight “tyranny… do not voluntarily give up your rights.”

 She described the ATA, as well as the Bayanihan to Heal as One Act that expired in June, as “the codification into law of the random abuses of power that we have felt in the last few years.”

 “Forget chilling, we’re in Siberia. And if we’re not taking the temperature, we won’t react in the right way,” she said.

 Ressa said Duterte “didn’t have to declare martial law to get the same results” as dictator Ferdinand Marcos. She called the Duterte regime “a dictatorship masquerading as a democracy with rule of law.”

 Tañada echoed that the enactment of the ATA “is a clear indication that the President and his cohorts would not want to follow constitutional provisions leading to the declaration of martial law.

 ‘People power would not have been possible’

 Although no prosecution has taken place yet under the newly enacted law, the 13th petition seeks to get the SC to take a look into its constitutionality by citing “rampant terrorist-tagging by government officials.”

 This includes statements by the National Task Force to End the Local Communist Armed Conflict (NTF-ELCAC) tagging Sister Mary John Mananzan as “a long-time ally of the National Democratic Front” or NDF and Rappler managing editor Glenda Gloria as “a friend of the NDF.”

 The 73-page petition also cites the rant of Overseas Workers Welfare Administration deputy executive director Mocha Uson against students who protest against the ATA: “Galit na galit na mga terorista nagtipon tipon na sila (The terrorists are getting mad, they are joining forces).”

 Meanwhile, several police stations have tagged various groups as “terrorists.” ACT-CIS party-list Rep. Rowena Niña Taduran has also labeled Black Lives Matter protesters in the United States as “terrorists.”

 The petition zeroes in on the prohibition against inciting to commit terrorism – defined as committed “by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end.”

 Under this vague provision, the petition argues that the 1986 people power uprising that toppled the Marcos dictatorship would have been illegal.

 “By calling on the people to mass up in the main thoroughfare of Metro Manila, (then Manila archbishop Jaime) Cardinal Sin would be inciting the people to engage in acts intended to cause extensive interference with or damage to critical infrastructure as defined by Section 3(a),” the petition reads.

 Proponents argue that the statement that terrorism “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises” should suffice as an assurance.

 But the petition questions the caveat that these exercises of the freedom of speech will only be permitted if they are “not intended to cause death or serious physical harm… or to create a serious risk to public safety.”

 If it had been applied to the people power uprising, “Cardinal Sin or his counterpart would not have been saved” by such caveat since “there are no standards in the definition that would prevent law enforcers from simply determining that the call to action is intended for those purposes.”

 The petition flags the failure of the ATA to “provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and discriminatory enforcement.”

 The vagueness of the definition and the lack of qualifications “unduly delegate to the (ATC) the legislative power to criminalize an act without any discernable standards specified in the law,” the petition adds.

 The petition also argues that the ATA’s provision for 24-day detention periods without judicial charges “profoundly expands the otherwise heavily restricted commander-in-chief powers of the President, and further enables his enforcement agents to sweep unnecessarily broadly against protected speech and speech-related conduct.”

 It also questions the “uncircumscribed mobilization of the military” to enforce the law, in “clear breach of the constitutional principle of civilian supremacy.”

 NUJP, CAP, LODI, Rappler staffers’ petition

 Gloria and other Rappler staffers and writers – Lian Buan, Mara Cepeda, Bea Cupin and Raisa Serafica – joined the 14th petition against the ATA.

 The 14th petition was spearheaded by the National Union of Journalists of the Philippines, Concerned Artists of the Philippines (led by chairman emeritus and National Artist Bienvenido Lumbera), Let’s Organize for Democracy and Integrity convenor Joselito Saracho, former UP College of Mass Communication deans Luis Teodoro and Roland Tolentino, and ANCX executive editor Ces Oreña-Drilon, among others.

 In a press statement, NUJP said the ATA should “rightly be called the Terror Law (and) struck down for being unconstitutional and a clear danger to all our rights and liberties.”

 “We contend that the law’s vague definition of what constitutes terrorism, and its inordinate focus on ‘intent’ instead of actual acts leaves open its application to practically anything and everything anyone might say or do,” NUJP explained.

 “It is clear that the Terror Law is anathema to democracy. For all Filipinos who cherish liberty, there can only be one response: Resistance!” it added.

 Alternative media outfit Bulatlat threw its support behind the petition of NUJP, LODI and CAP, having been accused – without proof – by the NTF-ELCAC of being a “communist front” for criticizing the Duterte administration’s shutdown of ABS-CBN.

 We believe that the newly enacted law will be used as another weapon to intimidate and silence truth-tellers,”  Bulatlat said.

 The 31-page petition comes on the heels of the NTF-ELCAC’s “stance that people and groups are guilty of terrorism (which it equates with communism), sans evidence, legal charges, or court judgments, simply because the Task Force says so.”

 It contends that the violation of the Constitution by the “very text” of the law constitutes an actual controversy that the SC should review.

 Like the 13th petition led by Doyo, the NUJP case questions the lack of clarity regarding the crime of inciting to commit terrorism.

 The vagueness of the definition of terrorism is worsened by the phrase “regardless of the stage of execution,” the petition states. Thus, the enforcement and implementation of the ATA “will encroach on basic rights and fundamental freedoms, particularly freedom of speech and of expression.”

 Addressing the caveat of lack of intent to cause physical injury or create serious risk to public safety, the NUJP petition asks: “How do law enforcers or even judges determine that intent or lack thereof? Ascertaining intent becomes an arbitrary exercise that inevitably will lead to abuse.”

 The petition also points out that the targeting of actions in the exercise of the freedom of speech “threatens petitioners’ rights not just sporadically but continuously given the nature of their work.”

 In the case of CAP chair Leonilo Doloricon or red-tagged Mindanaoan filmmaker Arnel Barbarona, the petition notes that the former’s editorial cartoons or the latter’s movie Tu Pug Imatuy (A Right to Kill) could be claimed “to be intended to cause serious physical harm to some public official, or to create a serious risk to public safety, or to create an atmosphere or spread a message of fear, or to provoke or influence by intimidation the government.”

 The petition notes that the law also fails to specify which acts constitute terrorism that offenders could incite others into committing.

 “As formulated, Section 9 clearly proscribes any and all speech and expression, including legitimate forms, given that there are no clearly defined overt acts that would differentiate legitimate speech and expression from harmful ones,” the petition reads.

 “While both Sections supposedly seek to stop the evil of terrorism, their scope is so sweeping that their prior restraint on free speech and expression cannot be justified,” it adds.

 The petition also questions the lack of due process surrounding the ATC’s power to order the warrantless arrest and detention of terrorism suspects. This is said to violate the separation of powers, especially as the Constitution requires that a warrant of arrest be issued by a judge upon finding of probable cause.

 Youth groups, student councils’ petition

 The 15th petition was filed by youth groups and university student governments represented by lawyer Dino de Leon, whose petition to compel the disclosure of Duterte’s health condition was thrown out by the SC without government lawyers being directed to comment.

 The youth groups are Kabataang Tagapagtanggol ng Karapatan, Youth for Human Rights and Democracy, Youth Act Now Against Tyranny, Millennials PH, Samahan ng Progresibong Kabataan, Good Gov PH, Youth Strike 4 Climate Philippines, Liberal Youth of the Philippines, Aksyon Kabataan, La Salle Debate Society, Student Council Alliance of the Philippines, and National Union of Students of the Philippines.

 The De La Salle University Student Government, Sanggunian ng mga Mag-aaral ng Paaralang Loyola, UP Diliman University Student Council and University of Santo Tomas Central Student Council are also petitioners.

 The name of Samahan ng mga Progresibong Kabataan may ring a bell for law practitioners and students – it successfully challenged the curfew ordinances imposed against minors by the governments of Manila and Navotas City, making it one of the few cases in which the SC agreed to review a law even without the parties being prosecuted first.

 But this was because one of the petitioners, at the time a minor, alleged that her routine of traveling from Manila to Quezon City at night placed her in “imminent danger” of apprehension.

 In this case, however, the youth groups did not attempt to show how they specifically would be in imminent danger of prosecution under the ATA.

 What apparently matters to the youth groups is avoiding the fate of Southern Hemisphere Engagement Network, whose petition against the now-repealed Human Security Act (HSA) was thrown out by the SC on Oct. 5, 2010 because of its failure to establish an actual justiciable controversy.

 The youth groups argue that it is now different with the ATA – even if no one has been prosecuted yet, the law can be challenged for being unconstitutional “on its face” for violating the freedom of speech, without waiting for it to be applied in a real-life case.

 This is unlike the HSA, which did not penalize speech-related acts like “inciting,” “threat,” “proposal” or “membership,” and could not be subjected to a facial challenge.

 The youth groups’ petition said “nowhere in the Anti-Terror Law does it provide any example or metric by which any person may reasonably calibrate the tendency of speech or speech-related conduct to create a serious risk.”

 “Neither is there any definition or simple qualifier as to the definition of serious risk, nor a measurement for the intent of the person expressing such speech,” the youth groups said.

 To recap, legal challenges have been brought by the following sets of petitioners. The petition led by Carpio and Carpio-Morales was initially reported to be the 11th, but it turned out to be the 12th.

The Office of the Solicitor-General on July 17 filed its comment on the first eight petitions that were consolidated before the law actually took effect.

Read more: Do Not Read The Provisions Literally: How The Solicitor General Defends The Anti-Terrorism Act

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