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June 18, 2020

Retired SC Justice Carpio Ready To Challenge New Anti-Terror Act, Calls It Worse Than Martial Law

Retired SC Justice Carpio Ready To Challenge New Anti-Terror Act, Calls It Worse Than Martial Law Former Supreme Court senior associate justice Antonio Carpio speaks at a forum in Makati City on Feb. 28, 2020. Photo by KJ Rosales, The Philippine STAR

The proposed Anti-Terrorism Act is a “very defective” measure with “many unconstitutional provisions” and will place the Philippines “permanently under a situation worse than martial law,” retired Supreme Court senior associate justice Antonio Carpio said.

Carpio, usually described as the “best chief justice we never had,” bared that he would be among the petitioners who would challenge the proposed measure before the SC should President Duterte sign the anti-terrorism bill or allow it to lapse into law.

“With the Anti-Terrorism Act as part of the law of the land, it is as if the Philippines is permanently under a situation worse than martial law,” Carpio said in an online forum organized by the Management Association of the Philippines on Wednesday, June 17, citing various reasons.

The bill has drawn condemnation for granting sweeping powers that usually belong to the courts to the Anti-Terrorism Council or ATC, a nine-member body chaired by the executive secretary and composed of Cabinet officials and the executive director of the Anti-Money Laundering Council.

Critics also fear that the vague wording of the bill’s provisions may be used to crack down on dissidents and activists.

Carpio specifically objected to the following provisions for going against the Constitution or for being too vague and broad:

  • Section 29 allows the ATC to authorize the arrest of persons who are merely “suspected” of committing terrorism, in violation of the Constitution’s requirement that a warrant of arrest be issued by a judge upon finding of probable cause.
  • Section 29 allows the detention of a suspect for as long as 24 days without being charged with any crime before the courts, eight times longer than the three-day maximum period provided by the Constitution.
  • Section 25 empowers the ATC to designate persons or organizations as “terrorist” without being required to conduct hearings where they can air their side and rebut the allegations. Recruitment to or membership in such organizations is penalized under Section 10.
  • Section 34 provides for the house arrest of suspects even if they are entitled to bail as a matter of right in non-grave felonies or by reason of weak evidence in nonbailable offenses.
  • Section 4(a) vaguely defines terrorism as committed by a person who “engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life.”

Overstepping on the court’s functions

Carpio mostly focused on Section 29, the section concerning “detention without judicial warrant of arrest.”

The section provides for law enforcement agents or military personnel to take custody of “a person suspected of committing” terrorism if they are “duly authorized in writing by the ATC.”

But under Article 3, Section 2 of the Constitution, a warrant of arrest may only be issued “upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”

Carpio explained that this provision puts up “two fortresses” against unreasonable arrests – the requirement that the warrant be issued by a judge and the requirement that the warrant be based on the existence of probable cause.

Notably, the framers of the 1987 Constitution deleted the provision in the 1973 Constitution that also empowers “such other responsible officer as may be authorized by law” to issue a warrant of arrest. In other words, Congress lost its Marcos-era option to give the executive branch of government the power to order arrests.

Carpio noted that only judges can now order arrests, because the framers vowed to “never again” allow the horrors inflicted by the “notorious arrest, search and seizure orders (ASSOs)” issued by the secretary of national defense under the bloody regime of dictator Ferdinand Marcos to happen.

Critics of the bill say the ATC seems poised to overstep on the functions of the court, as the bill allows it to issue a written authority for making warrantless arrests.

“This first fortress must be inviolable. Now what has the Anti-Terrorism Act done? The Anti-Terrorism Act has demolished the first fortress and reinstated the ASSOs of the martial law period,” Carpio said.

Warrantless arrests may be reasonably carried out by a peace officer or a private person under Rule 113, Section 5 of the Revised Rules of Criminal Procedure.

But the rule allows this only for three scenarios:

  • The person has committed, is committing or is about to commit an offense in the presence of the officer;
  • The person has just committed an offense and the officer has probable cause to believe it based on personal knowledge;
  • The person escaped from detention or confinement.

In these urgent cases where the crime is happening almost at the moment of an arrest, written authority is no longer required.

“Clearly, the written authority under Section 29 is not for the purpose of effecting warrantless arrest under Rule 113. The written authority of the ATC is necessary to arrest the person suspected of terrorism outside the situations wherein the warrantless arrests are allowed under Rule 113,” Carpio said.

Carpio found this reasoning to be “senseless,” unless Congress intended to give the executive branch the power of the courts.

“This is obviously unconstitutional since the present Constitution allows only a judge to issue a warrant of arrest,” he added.

Arrests based on mere suspicion

The “second fortress” against unreasonable arrests is the requirement for the warrant to be based on a finding of probable cause. The Constitution requires judges to personally examine the complainant and the witnesses to find out if there is a reasonable ground to believe that the suspect probably committed the crime.

“In short, if the judge believes that no crime has been committed, he cannot issue a warrant of arrest,” Carpio said.

He then contrasted this with the reasoning of Sen. Panfilo Lacson, who during deliberations in the Senate said he wanted authorities to be “proactive” in arresting terrorism suspects even if they have not committed a crime yet. Lacson has argued that successful counterterrorism involves preventing the crime from being carried out.

Lacson said: “In ordinary crimes, hindi puwede iyong nasa planning stage, hindi naman niya ginawa, hindi naman siya nag-commit ng crime. Pero dahil iyong tinatawag nating inchoate offense, hindi pa nangyari, nasa simula pa lamang, puwede na nating arestuhin (In ordinary crimes, you cannot [make arrests] in the planning stage and he has not done it yet, he has not committed the crime. Because we call [terrorism] an inchoate offense, even if it has not happened, it is only beginning, we can make arrests) because we want to be proactive, because this is a new phenomenon.”

Carpio interpreted Lacson’s statement to mean “the ATC is authorized to order the arrest of any person even if he or she has not committed any act of terrorism.”

Carpio noted that Section 29 “does not provide standards of limitations to the power of the Anti-Terrorism Council to issue arrest orders.” The section only mentions that the person to be arrested is just “suspected to be committing any of the acts” criminalized by the bill.

“Clearly, the Anti-Terrorism Council can issue an arrest order even without probable cause, demolishing completely the second fortress erected by the Constitution to ensure the guarantee against unreasonable arrests is inviolable,” Carpio argued.

24-day warrantless arrest

Section 29 also allows authorities to keep detainees for 14 days, extendible by another 10 days, before they are required to file charges before the court.

Under Article 7, Section 18 of the Constitution, the President may suspend the privilege of the writ of habeas corpus in case of invasion or rebellion and when required by public safety. In this case, an arrested or detained person “shall be judicially charged within three days, otherwise he shall be released.”

In other words, the Anti-Terrorism Act provides for a period of detention without charges that is “longer than the three days under martial law.” This prompted Carpio to declare that the Philippines will be “permanently under a situation worse than martial law” if the bill is enacted.

Carpio pointed out that even martial law or the suspension of the privilege of the writ of habeas corpus only has a limited lifespan. It may last for a period of 60 days, subject to extension or revocation by Congress.

The Anti-Terrorism Act is much worse, he said, because the measure, “once enacted into law, remains in the statute books forever, until repealed by the Congress or invalidated by the Supreme Court.”

Even the writ of habeas corpus would not be of much help if the Anti-Terrorism Act is in force.

The courts may require the custodian of a suspect to justify his detention, but all the custodian needs to do is show the written authority of the ATC. “Then the judge will be compelled to dismiss the petition because he is being detained upon lawful order pursuant to law,” Carpio stressed.

Assuming that authorities could not gather enough evidence within the 24-day period of warrantless detention, there is no provision in the Anti-Terrorism Act regarding re-arrest. “After a few days, he can be arrested again and the 24-day cycle will repeat and keep on repeating,” Carpio warned.

Currently, the Rules of Court require that when a person is ordered released by the court upon the grant of the privilege of the writ of habeas corpus, “he cannot be arrested again for the same charge unless there is an express order by the court.”

Designation without due process

For Carpio, another cause for concern is the power of the ATC under Section 25 to designate individuals or groups as terrorist “upon a finding of probable cause” that they have committed, are attempting to commit, or are conspiring to commit terrorist acts.

Carpio noted that under the section, “probable cause does not require a hearing where an individual can be heard or rebut witnesses of the government.”

The consequence of being tagged a terrorist, without being given the chance to explain, can be dire, considering that recruitment to a terrorist organization is punishable with life imprisonment and even mere membership can lead to a 12-year sentence.

Carpio said Section 25 would be unconstitutional for going against both the right to form associations for purposes not contrary to law and the right against deprivation of liberty without due process of law.

“The only time they will know is when they will be arrested. Due process means a hearing where the organization can present their side to rebut the allegation that they are engaged in terrorism,” he pointed out.

House arrest

As for other contentious provisions, Carpio flagged Section 34 for allowing suspects to be placed under house arrest even if they are entitled to bail as a matter of right in non-grave felonies or by reason of weak evidence in non-bailable offenses.

Section 34 provides for several restrictions to the right to travel. A unique restriction for a terrorism suspect is that even if the evidence is not strong enough for grave offenses, the court shall limit his movement to the municipality or city where he resides or where he faces the case. Going outside the municipality or city will then be used as a ground to forfeit the bail.

The same section also gives the courts the option to place the suspect entitled to bail under house arrest, where the use of gadgets and any means of communication may be prohibited. For Carpio, this negates “his constitutional right to bail.”

Carpio found even the very definition of “terrorism” in the Anti-Terrorism Act questionable. Section 4(a) of the measure vaguely defines terrorism as committed by a person who “engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life.”

He wondered if this loose definition could be used against reckless drivers or college students holding protests amid the coronavirus disease 2019 pandemic. He said the gathering of rallyists could even be construed as creating an “atmosphere of fear” that could count as an act of terrorism.

Should have abided by the Constitution

Proponents of the bill, as well as presidential spokesperson Harry Roque, argued that the proposed Anti-Terrorism Act was modeled after the anti-terrorism laws of other countries. But Carpio reminded them: “We’re bound by our Constitution and all our laws must abide by that Constitution.”

Carpio said the bill could have been saved “if only this can be discussed by everyone” and not rushed by the House of Representatives without amendments. The House had adopted the measure passed by the Senate in February.

“We’re stuck with this now, and I think this is a very defective law and there are many unconstitutional provisions,” Carpio bewailed.

If Duterte proceeds to sign the Anti-Terrorism Act or let it lapse into law by next month, Carpio said “there can be a two-pronged attack – one in the Supreme Court and one in Congress” in order to solve the problem.

“The House or the Senate can pass a bill to correct the Anti-Terrorism Act. They can introduce amendments right there after it becomes a law, they can start the ball rolling,” Carpio said. “We can draft a law that protects the country against terrorism within the bounds of the Constitution.”

If the national security officials really do not find the three-day detention to be enough to gather evidence against suspects, Carpio suggested that a law be passed, allowing them to file a “preliminary” charge of terrorism and “prove to the judge that there is probable cause already, but the evidence is not strong enough or you want to gather more evidence, but the evidence is strong enough for the charge to stick.”

In other words, this could work as a court-sanctioned “extended time to gather the evidence and file the final charge within 24 days.”

Another point for improvement is to tighten the definition of the crime of “inciting to commit terrorism” under Section 9, which critics have denounced as a looming crackdown on dissidents. Carpio proposed that incitement be punished only when it “invites immediate lawless action,” so that journalists would not be covered by the law.

“With what we have now, the judge will look at it, look at what you’ve written as a columnist and say, ‘oh, this is inciting to terrorism,’ and that means you can be arrested already,” he noted.

The bill was approved on third and final reading by the Senate on Feb. 26 by a vote of 19-2. The senators who voted in favor, apart from Lacson, were Senate President Vicente Sotto III, Majority Leader Juan Miguel Zubiri, Minority Leader Franklin Drilon as well as Sonny Angara, Nancy Binay, Pia Cayetano, Ronald dela Rosa, Grace Poe, Imee Marcos, Manuel Lapid, Joel Villanueva, Cynthia Villar, Manny Pacquiao, Sherwin Gatchalian, Bong Go, Richard Gordon, Bong Revilla and Francis Tolentino. Only Francis Pangilinan and Risa Hontiveros dissented.

After Duterte certified the measure as urgent, the House adopted the Senate version on June 3 after barely a week of deliberations, with the leadership refusing to entertain any amendment to address constitutionality issues. Even as some congressmen withdrew their votes in favor of the bill, the leadership of the House and the Senate submitted an enrolled bill to Malacañang on June 9.

In sponsoring the measure, Lacson had said: “We need a strong legal structure that deals with terrorism to exact accountability, liability and responsibility. Those who have committed, are about to commit, or are supporting those who commit terroristic acts should be prosecuted and penalized accordingly.”

For Carpio, there is a lesson that the proponents of the Anti-Terrorism Act should learn: “All of these can really be done if we look at it carefully.”

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