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Notes on the Anti-Terrorism Act of 2020 (R.A. No.11479) based on Calleja vs Executive Secretary (GR No. 252578) - Politixxx Today
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Thursday, September 29, 2022

Notes on the Anti-Terrorism Act of 2020 (R.A. No.11479) based on Calleja vs Executive Secretary (GR No. 252578)

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Emil Samaniego
Emil Samaniego is Chief Content Officer and one of the founders of Politixxx Today.

Summary of the petitions and the legislative history of Republic Act No. 11479 or the Anti-Terrorism Act

This case involves 37 separate petitions for certiorari and/or prohibitions under Rule 65 of the Rules of Court, all assailing the constitutionality of Republic Act No. 11479 or the Anti-Terrorism Act of 2020.

Before the enactment of RA No. 11479, the Philippine Congress passed RA No. 9372 or the Human Security Act of 2007 (HAS). However, despite its passage the prevalence of terrorism in the country not only persisted but also escalated. On June 18, 2012, the R.A. No. 10168 or the “Terrorism Financing Prevention and Suppression Act of 2012 was signed into law. As with the HSA, R.A. No. 10168 did little to curb incidences of terrorism in the Philippines. Thus, on July 03, 2020, President Rodrigo Duterte signed R.A. No. 11479 otherwise known the Anti-Terorism Act (ATA).

According to Sen. Panfilo Lacson, the principal author of the Anti-Terrorism Act, only one person has been convicted and only one group has been outlawed under the HSA due to the several difficulties in implementing the law. The requirement of a predicate crime and the imposition of P500,000 penalty per day of detention without a warrant, in case of the acquittal of the accused, are only some of the hurdles which law enforcement agencies have faced. 

On the other hand, the shortcomings of the HSA along with other laws on money laundering were noted by international bodies such as the Asia Pacific Group on money laundering. In its 2019 Mutual Evaluation Report, the APG noted that the Philippines had several deficiencies in relation to the Financial Action Task Force (FATF) standards. Non-compliance with the Financial Action Task Force (FATF) results to negative effects, the most significant of which are severe regulations such as discouragement of foreign investment and trading from compliant countries and international organizations. This also compelled Congress to enact the ATA to fight against terrorism financing. 

In this consolidated petition, petitioners primarily assail the validity of Sections 4 to 12 of the ATA due to their perceived facial vagueness and overbreadth that purportedly repress protected speech. They argued that the unconstitutionality of the definition of terrorism and its variants will render the law void in its entirety or will leave the ATA “nothing to sustain its existence.”

Petitioners include members of party-list, former and incumbent members of Congress, members of socio-civic and non-governmentals organizations, members of Indigenous People’s groups, Moros, journalists, taxpayers, registered voters, members of Integrated Bar of the Philippines, students and members of the academe. 

On September 23, 2020, the Anti-Terrorism Council, issues resolution No. 10, automatically adopting the list of terrorist organizations by the UNSC as well as directing the concerned agencies to impose and implement the relevant sanctions measures without delay, from the time of designation made by the UNSC and its relevant Sanctions Committee. In accordance with Section 36, AMLC was also directed to issue an ex parte freeze order to freeze the funds and assets of those designated groups, individuals, undertakings and entities under UN Consolidated List. 

The ATC also issued various resolutions designating as terrorist the CPP-NPA and 16 organizations affiliated with the Islamic State and other Daesh-affiliated groups in the Philippines,. The ATC also designating several individuals as terrorists based on verified and validated information obtained and consolidated by the National Intelligence Committee (NICA) which include petitioner Casambre. 

Incidentally, two Aetas were arrested in August 2020. They were the first individuals to be charged for violating Section 4 of the ATA for allegedly firing at the military which led to the death of one soldier. This case was subsequently dismissed by the RTC of Olongopa for insufficiency of evidence. 

  1. What are the issues raised in consolidated petitions that were given due course by the Court?

A. Procedural Questions:

1. Whether petitioners have legal standing to sue?

2. Whether the issues raised in the petition involved an actual and justiciable controversy?

3. Whether petitioners’ direct resort to the Supreme Court is proper?

4. Whether facial challenge is proper?

5. Whether the ATA should be declared unconstitutional in its entirety if the Court finds that the definition of terrorism in ATA is unconstitutionally infirm?

B. Substantive Questions:

1. Whether Section 4 defining and penalizing the crime of terrorism is void for vagueness or overbroad in violation to constitutional right to due process, free speech and expression, to be informed of the nature of the cause and accusation against the accused, and non-detention solely on political belief?

2. Whether Section 5 to 14 defining and penalizing threats to commit terrorism, planning, training, preparing and facilitating terrorism, conspiracy, proposal, inciting to terrorism, material support and other related provisions, are:

a. Void for vagueness or overbroad in violation of the above-stated constitional rights as well as freedom of religion, association, non-detention solely based on political beliefs, and academic freedom; and

b. Violative of the prohibition against ex-post facto laws and bill of attainders.

3. Whether the powers of ATC are unconstitutional?

a. Power to designate terrorist individuals, groups and organizations under Section 25,

b. Power to approve request for designation or supranational jurisdictions for violating the 1951 Refugee Convention and its 1976 Protocol

c. Power to apply for proscription of terrorist individuals, groups and organizations

d. Power to authorize arrest and detention without judicial warrant based on mere suspicion under Section 29

e. Power to adopt security classifications for its records under Section 45

f. Power to establish and maintain comprehensive database information systems on terrorism, terrorist activities and counterterrorism operations under Section 46 (e)

g. Power to grant monetary rewards and other incentives to informers under Section 46 (g) for lack of clear parameters

h. Power to require private entities and individuals to render assistance to the ATC under Section 46(m) for violating provisions on voluntary servitude

4. Whether the detention period under Section 29 of ATA contravenes the constitution, the Revised Penal Code, the Rules of Court, and international obligations against arbitrary detention;

5. Whether Section 49 on the extraterritorial application of ATA violates the freedom of association and the prohibition against ex post facto laws and bill of attainder;

6. Whether the House of Representatives gravely abused its discretion by passing HB No. 6875 in violation of the constitutionally-prescribed procedures?

2. What are the provisions of the ATA that were declared unconstitutional by the Court?

The Court declared unconstitutional the following provisions:

1) The phrase in the proviso of Section 4 which states “which are not intended to cause death or serious physical harm to a person, to endanger’s a person’s life, or to create a serious risk of public safety”

2) The second mode of designation found in paragraph 2 of Section 25; and

3) As a necessary consequence, the corresponding reference/provision relative to the foregoing items in the IRR of the ATA

3. Was the petition for certiorari and/or prohibition the proper remedy to assail the constitutionality of the ATA even if it is a legislative act?

Yes, the Court partly gave due course to the petition for certiorari and/or prohibitions by invoking the expanded power of judicial review under Section 5 Article VIII of the Constitution. The Court explained that although what is assailed by the petitions for certiorari and/or prohibitions are legislative act not judicial or quasi-judicial act as required under Rule 65 of the ROC, the petitions for certiorari and/or prohibition remain the proper remedy under the expanded definition of judicial review particularly to determine whether there is grave abused of discretion amounting to lack or excess of jurisdiction on the part of Congress for passing RA No. 11479.



4. Is the facial challenge applicable against the ATA?

Yes, the consolidated petitions sufficiently raised concerns regarding the possible impairment of freedom of speech, of expression and other cognate rights.

5. Whether the petitions complied with the requisites for the exercise of power of judicial review?

A. Was there an actual case or controversy?

Yes, there is actual case or controversy with respect to certain issues falling within the delimited facial analysis framework. In other words, the consolidated petitions presents a permissible facial challenge on the ATA in the context of possible impairment of freedom of speech, of expression and other cognate rights.

B. Do the petitioners have locus standi?

Yes, the Court finds that petitioners have sufficiently alleged the presence of credible threat of injury for being constant targets of “red-tagging” or “truth-tagging.” Therefore, they satisfy the requisites of the traditional concept of legal standing based on direct injury test.

The Court also mentioned that even if petitioners Cassambre, RPM, Anakbayan, Kilusang Mayo Uno, Bagong Alyansang Makabayan and GABRIEL had not come under the operation of the ATA, there would have still been no legal standing impediment to grant due course to the petition because they also present actual facts that also partake of a facial challenge in the context of free speech and cognate rights.

As held in the case of Disini vs Secretary of Justice, the Court noted that a petitioner may mount a facial challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on the grounds of overbreadth or vagueness of the statute.

Besides, the Court also ruled that petitioners may also be treated as non-traditional suitors who may bring suit in representation of parties not before the Court (taxpayers, voters, concerned citizens or legislators).

Lastly, the Court recognized that the petitions which asked the Court to declare that the ATA infringes on their right to due process, free speech, of expression, association and academic freedom, involved matters of transcendental importance that merit the relaxation of procedural rules on standing.

C. Was the question on constitutionality of the law raised at an earliest opportunity?

Yes, since the present constitutional challenge against the statute was directly filed with the Supreme Court, the third requisite of judicial review of “earliest opportunity” is complied with because the issue of constitutionality is raised at the first instance.

D. Is the lis mota requirement for the exercise of power of judicial review complied with?

Yes, the Court finds that the lis mota requirement is complied with by the very nature of the constitutional challenged raised by petitioners against the ATA which deal squarely with freedom of speech, expressions and its cognate rights.

6. If a law violates the doctrine of Separation of Powers, can the Court invalidate it on its face or through the use of facial challenge?

No. based on prevailing Philippine jurisprudence, facial challenge on legislative acts are permissible only if they curtail the freedom of speech and its cognate rights (ie. freedom of religion and freedom of association) based on overbreadth and void-for-vaguness doctrine. In short, facial challenges have not been recognized as applicable to other provisions of the Constitution or the separation of powers.

7. Can future cases assailing the constitutionality of the Anti-Terrorism Act be filed even after the Court resolved the issues in the present case?

Yes, the Court held that since only the issues involving violation of freedom of speech, expression and other cognate rights are resolved under the present case, future petitions can be filed assailing the constitutionality of the unresolved provisions of the Anti-Terrorism Law.

8. Should the ATA be declared unconstitutional in its entirety if the Court finds that the definition of terrorism in ATA is unconstitutionally infirm?

No. Section 4 of the ATA reads:

Section 4. Terrorism.– Subject to Section 49 of this Act, terrorism is committed by any person who, within or outside the Philippines, regardless of the stage of execution:

(a) Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life;

(b) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;

(c) Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;

(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological or chemical weapons; and

(e) Release of dangerous substances, or causing fire, floods or explosions. when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety, shall be guilty of committing terrorism and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known as “An Act Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, as amended, otherwise known as the Revised Penal Code”. Provided, That, terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, 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.

Section 4 of the ATA consists of two parts, the main part and the provision. The main part includes the actus reus, the mens rea and the imposable for the crime of terrorism. The main part is further subdivided into three components. The first component enumerate the conducts which consists of the actus resus of terrorism ie. Section 4 a to e or the overt acts that constitute the crime. The second components enumerates the purposes or intents of any of the actus reus i.e. to intimidate the general public or a segment thereof; to create an atmosphere or spread a message of fear; to provoke or influence by intimidation the government or any international organization; to seriously destabilize or destroy the fundamental political, economic or social structures of the country, or create a public emergency or seriously undermine public safety. This is the mens rea component of terrorism, which is inferred from the nature and context of the actus reus. The third component provides the imposable penalty for the crime of terrorism ie. life imprisonment without the benefits of parole and the benefits of R.A. No. 10592.

On the other hand, the proviso, if rephrased into its logical inverse, purpose to allow for advocacies, protests, dissents, stoppages of work, inductrial or mass actions, and other similar exercises of civil and political rights to be punished as acts of terrorism if they are “intended to cause death or serious physical harm to a person, to endager a person’s life, or to create a serious risk to public safety.

9. Can penal statutes be invalidated using facial challenge?

Yes provided it involves violation of freedom of speech. The Court held that penal statutes may be facially challenged under the overbreadth doctrine to counter the “chilling effects” on protected speech that comes from statutes violating free speech because a person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime.

10. Can facial challenge be used to invalidate the main part of Section 4 of the ATA?

No. Since the main part of Section 4 chiefly pertains to “conducts” and not speeches, the delimited facial challenge framework is not applicable to assail these provisions. In other words, the Courts noted that the acts constitutive of the crime of terrorism under paragraphs a to e of Section 4 are clearly forms of conducts unrelated to speech, in contradistinction with the enumeration on the proviso, which are forms of speech or expression, or are manifestations thereof. Hence, the presumption of constitutionality of the main part of Section 4—being a primarily non-speech provision—must stand.

11. Is the definition of terrorism void for being vague?

No. A textual review of of the main part of Section 4 shows that its first component (the conducts which consists of the actus reus of terrorism ie. Section 4 a to e or the overt acts that constitute the crime) and the second components (the enumeration of the purposes or intents of any of the actus reus i.e. to intimidate the general public or a segment thereof; to create an atmosphere or spread a message of fear; to provoke or influence by intimidation the government or any international organization; to seriously destabilize or destroy the fundamental political, economic or social structures of the country, or create a public emergency or seriously undermine public safety) provide a clear correlation and a manifest link as to how or when the crime of terrorism is produced. In other words, when the two components of the main part of Section 4 are taken together, they create a demonstrably valid and legitimate definition of terrorism that is general enough to adequately address the ever-evolving forms of terrorism, but neither too vague nor too broad as to violate due process or encroach upon the freedom of speech, expression and other fundamental liberties.

The Court further held that the supposed vague terms found in Section 4 are not sufficient to invalidate the statute since these can be clarified either by a saving clause or by construction. “To be invalidated, the law must be utterly vague on its face, such that it cannot be clarified by either a saving clause or construction,” the Court stated.

12. Is the definition of terrorism overbroad?

No, the Court noted that the language employed in Section 4 of the ATA is almost identical to the language used in other jurisdiction. Nonetheless, this does not mean that the definitions nor the standards set by others must be followed by Congress to the letter. It simply shows that Congress did not formulate the definition of terrorism out of sheer arbitrariness, but out of desire to be at par with other countries taking the same approach, presumably so that they could also take a more proactive attitude in combating terrorism, especially in light of the well-documented variety of modes, targets, and purposes of attacks that have been described as terroristic.

The Court notes that the general wording of the law is a response to the ever-evolving nature of terrorism. The Congress in enacting the ATA now allows the government to take a preventive stance against terrorism.

13. Does the definition of terrorism pass the Strict Scrutinity Test?

Yes. The Court held that in order to reconcile the seemingly competing interests of national security and exercise of human rights, it is important to acknowledge that human rights are not absolute. Under a Strict Scrutiny lens, national security is a compelling state interest that justifies some necessary, proportionate, and least intrusive restrictions on the exercise and enjoyment of particular liberties. The Court finds that the main part of Section 4 of the ATA adopts the necessary, proportionate and least restrictive means in its implementation to counter the complex issue of terrorism in the country. Again, the general wording of the law is a response to the ever-evolving nature of terrorism. Congress cannot be expected to enumerate all specific acts which may be resorted to by terrorist in pursuing their goals. However, in any event, concerned citizens are not left without a remedy since any perceived vagueness or overbreadth of the terms used in the main part of Section 4 may still be assailed in the appropriate actual cases that may be brought before the Courts at the proper time beyond the auspices of the present delimited facial challenge.

14. Is the proviso or the Not Intended Clause found in Section 4 of the ATA constitutional?

No, the provo “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” or the Not Intended Clause in Section 4 of ATA is unconstitutional under the strict scrutiny test as well as void for vagueness and overbreadth doctrines.

To the Court’s mind, it was enough for Congress to state the terrorism is as defined in Section 4 shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights.

However, Congress unnecessarily included the “Not Intended Clause,” thereby invading the area of protected freedom. The not intended clause also shifts the burden upon the accused to prove that his actions constitute an exercise civil and political rights contrary to the principle that it is the government that has the burden to prove the unconstitutionality of an utterance or speech.

More significantly, the “Not Intended Clause” causes serious ambiguity since there are no sufficient parameters that render it capable of judicial construction. To demonstrate this ambiguity, one may dangerously suppose that the “intent to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk of public safety” may be inferred from strong public clamor attendant to protest, mass actions, or other similar exercises of civil and political rights. By their very definition, these types of speeches are intended to express disapproval against someone else’s proposition or stance on a given issue and corollary to that, to advance one’s own proposition, and thus, should not be considered as terrorist conduct.

The “Not Intended Clause” is void for vagueness as it has a chilling effect on the average person. Before the protester can speak, he must first guess whether his speech would be interpreted as a terrorist act under Secton 4 and whether he might be arrested, indicted, and/or detained for it. They will have to contend whether the few hours they would spend on the streets to redress their grievances against the government is worth the propsect of being indefinitely incarcerated, considering that terrorism under Section 4 would be an unbailable offense as per Section 7 Rule 114 of the Rules on Criminal Procedure.

The Not Intended Clause also allows law enforcers to take an “arrest now, explain later” approach in the application of the ATA to protesters and dissenters. The vagueness of the provision is likely to result in an ordinary flexing of the government muscle, which is equally aversive to due process. An ordinary citizen might forego speaking out against the government if only to avoid being branded as terrorist by its own government. Even when a dissenter has successfully defended himself in court, he may never fully rid of stigma of having been once labeled a “terrorist” by his own government. The Not Intended Clause is also overbroad since it creates a chilling effect to speech. Speech that is 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 should remain protected as long as it does not render the commission of the terrorism imminent as per the Branderburg Standard or the Clear and Present Danger Test.

The proviso does not pass the Strict Scrutiny Test because although there appears to be a compelling state interest, such as to forestall terrorist activities in light of global efforts to combat terrorism, punishing speech intended to “cause death or serious physical harm, to endanger a person’s life, or to create a serious risk to public safety” is not the least restrictive means to achieve the same.

15. Is Threat to Commit Terrorism as penalized under Section 5 of the ATA unconstitutional?

No. The IRR of ATA used the Credible Threat Standard which restricts the application of Section 5 only to communications made under circumstances which indicate the credibility of threat. Also, in the interpretation and application of the proviso of Section 5, the Branderburg Standard, should be applied. Thus, statements or communications can only be penalized as threats when they are 1) directed to producing imminent terrorism, and 2) it is likely to produce such actions.

16. Is Section 6 of the ATA “participating in the planning, training, preparing and facilitating the Commission of terrorism” unconstitutional for being vague or overbroad?

No. Under Section 6 of the ATA, training may only be penalized under Section 6 only when 1) the training is with the purpose of committing terrorism, 2) the training is intentionally designed to impart a skill in relation to terrorism, and 3) the skill imparted has a specific relation to a projected at of terrorism, not mere general knowledge.

17. Is Inciting to Commit Terrorism under Section 9 of the ATA facially unconstitutional?

No, the Court finds that speech or statements can be penalized as inciting under Section 9 only if they are 1) direct and explicit- not merely vague, abstract or equivocal- calls to engage in terrorism; 2) made with intent to promote terrorism, and 3) directly and causally responsible for increasing the actual likelihood of terrorist attacks. Thus, as construed, the Court finds that Section 9 is reasonably and narrowly drawn and it is the least restrictive means to achieve the declared compelling state purpose.

18. What is the Rabat Plan of Action?

It is an internationally-recognized high threshold for defining restriction on freedom of expression, The six-part threshold test takes into considerations the following factors: 1) the social and political context, 2) status of the speaker, 3) intent to incite the audience against a target group, 4) content and form of the speech, 5) extent of its dissemination, 6) likelihood of harm, including imminence.

19. Is Section 10 or recruitment to and membership to terrorist organization unconstitutionally vague or overbroad?

No, the Court held that the prohibition to voluntarily and knowingly join organization and association proscribed under Section 26 of the ATA, those UNSC-designated organizations and those organized for the purpose of engaging in terrorism are permissible restrictions on the freedom of association.

To be penalized under the third paragraph of Section 10, it is required that a person shall 1) voluntarily and knowingly join an organization, association or group, and 2) have knowledge that the organization, association, or group is a) proscribed under Section 26 of the ATA, b) designated by the UNSC, and c) organized for the purpose of terrorism.

Based on this definition, punishes membership under Section 10 in three instances:

1. When a person voluntarily and knowingly joins any organization, knowing that such organization is proscribed under Section 26 of the ATA;

2. When a person voluntarily and knowingly joins any organizations, knowing that such organization has been designated by the UNSC as a terrorist organization;

3. When a person voluntarily and knowingly joins any organizations, knowing that such organization has been organized for the purpose of engaging in terrorism.

Note: what is penalized under Section 10 is “knowing membership” or “active membership” not mere “nominal membership”

20. Is Section 12 of the ATA in so far as it penalizes the provisions of “training” and “expert advice” as material support unconstitutionally vague and/or overbroad?

No. Under Section 12, training or expert advice or assistance can only be penalized as material support when they are 1) directed to producing imminent terrorism, and 2) is likely to produce such action. The terms “training” and “expert advice or assistance” under Section 12 requires knowledge on the part of the provider that the individual or organization, association or group of persons to which he provided such material support is committing or planning to commit an act of terrorism.

21. What is the nature of designation under Section 25 of the ATA?

Section 25 bestows on the ATC- an administrative body- the power to designate a person or an organization as a terrorist, making the power and process executive in nature.

22. What are the modes of designation under Section 25 of the ATA?

Designation under Section 25 of the ATA has three modes: 1. Through the automatic adoption by the ATC of the designation or listing made by the United Nation Security Council (UNSC); 2. Through the ATC’s approval of request made by other jurisdictions to designate individuals or entities that meet the criteria under UNSC resolution No. 1373; 3. Designation by the ATC itself, upon its own finding of probable cause that the person or organization commits, or is attempting to commit, or conspired, in the commission of the acts penalized under Section 4 to 12 of the ATA.

23. What is proscription? How does it differ from designation?

Proscription is a judicial process of declaring a group of person, organization or association as terrorist upon the application of the DOJ before the authorizing division of the Court of Appeals and after due notice and hearing. Unlike designation which is an executive process, proscription is judicial in nature. The ATA empowers the CA to issue preliminary order of proscription if probable cause exists that its issuance is necessary to prevent the commission of terrorism.



24. What are the effects of proscription or designation?

The effects of proscription are:

1. An application of for surveillance of a judicially declared and outlawed terrorist organization as provided in Section 26 and between members of a designated person as defined in Section 3(e) of RA No. 10168 may already be filed with the CA by law enforcement agents or military personnel under Section 16;

2. The examination of records with banking and other financial institutions and the ex parte freezing of assets may be done by the AMLC under Section 35 and 36, on its own initiative or at the request of the ATC, upon the issuance of preliminary order of proscription or designation;

3. There is criminal liability under Section 10 for those who recruit others to participate in, join, or support or for those who become members of, organizations, associations, or groups proscribed under Section 26 or those designated by the UNSC.

25. Is designation under the ATA constitutional?

The Court held that the first and third mode of designation are valid Police Power measures. However, the second mode of designation is constitutionally problematic and must be struck down.

In particular, the Court noted that the first mode of designation is narrowly tailored and the least restrictive means to achieve the objective of the State. The mechanism of automatic adoption of of the UNSC Consolidated List is reasonable relative to the underlying purpose of complying with the country’s international obligation to cooperate in the efforts to prevent terrorism. The lack of prior notice and hearing in the process of designation is understandably justified by the exigent nature of terrorism, which is a relatively new global-phenomenon that must be met with commensurate effective response of the Nation-State. Nonetheless, due process is satisfied by an opportunity to be heard- designees will subsequently be notified about the designation. The Court, however, notied that the UNSC provides delisting process for those who are designated as terrorist.

For the second mode of designation, the Court held that while the State has established compelling interest, the means employed under the second mode of designation is not the least restrictive means nor narrowly tailored to achieve the State’s compelling interest. Under this mode, unbridled discretion is given to the ATC in granting requests for designation, the ATC in granting requests for designation based on its own determination. There also appears no sufficient standard that should be observed in granting or denying such request. Furthermore, there are also no proper procedural safeguards and remedies for erroneous designation.

For the third mode of designation, the Court held that it is constitutional. First, the Court noted that in the case of terrorism, an extraordinary situation where some valid governmental interest is at stake, postponing hearing until after deprivation is justified. Second, the Court noted that power to determine probable cause is not only limited to magistrates in Courts (ie. law officers determining probable cause in in flagrante arrest and summary abatement of nuisance per se).

Lastly, there are remedies available to parties such as request for delisting and exemption in addition to judicial guarantees of aggrieved parties’s right to due process.

26. Is proscription constitutional?

Yes. The Court held that proscription under Section 26, 27 and 28 is a valid exercise of Police Power and passes the strict scrutiny test.

27. Discuss the process of proscription under the ATA?

The Court held the following principles that will govern the rules on proscription:

1. After an application for proscription is filed by the DOJ, the authorizing division of the CA shall within 24 hours, determine whether said application is sufficient in form and substance;

An application shall be sufficient in form if it complies with the following requisites:

A) It is verified or made under oath

B) It is accompanied by the recommendation of the NICA and the authorization of the ATC

C) It shows proof of service of the application to the group of persons, organization or association sought to be proscribed

Meanwhile, an application shall be sufficient in substance if:

A) If it specifically identifies the group of persons, organization or association sought to be proscribed, including the names and addresses of every member so known at the time the application was made and the inclusive dates of membership;

B) It provides detailed specifications of the reasons or ground relied upon that show the necessity for proscription; and

C) It states the commitment of the applicant to have permanent order of proscription, if granted, reviewed within six months prior to the expiration of thereof. Failure to comply with the requisites shall be sufficient cause for the outright dismissal of the application.

2. If the CA is satisfied that the application is sufficient in form and substance, it shall immediately commence and conduct continuous hearings, which should be completed within six months from the time the application is filed. Simultaneous with the commencement and the conduct of the continuous hearings, the CA shall also determine whether there is probable cause to issue a preliminary order of proscription, which should be made within 72 hours from the filing of the application. If it decides to issue the same, the preliminary order of proscription shall emphasize that only the AMLC’s authority to freeze assets and to initiate a bank inquiry or investigation pursuant to Section 35 and 36 of the ATA shall result from its issuance.

3. Non-appearance of respondent group of persons, organizations, or association, as long as there is compliance with the publication of the preliminary order of proscription requirement upon directive of the CA, shall not prevent the CA from proceeding with the proscription hearings.

4. In camera proceedings shall be adopted to ensure that sensitive and confidential information affecting national security will not be compromised without sacrificing the right to due process of those subjected to judicial proscriptions proceedings.

5. During the hearing, the CA shall determine whether:

a) a preliminary order of proscription should be made permanent,

b) whether a permanent order or proscription should be issued, if no preliminary order of proscription was issued; or

c) whether a preliminary order of proscription should be lifted.

The applicant has the burden to show by clear and convincing evidence that a permanent order of proscription should issue.

6. From the issuance of a permanent order of proscription, the party aggrieved may appeal to the Court by petition for review on certiorari under Rule 45 of the Rules of Court, raising in the appeal all pertinent questions of law and issues. The appeal shall not stay the order of proscription unless the Court orders otherwise.

7. If the application is denied by the CA, no application shall be filed against the same group of persons, organization or association within six months from the date of denial. A subsequent application must be grounded on new evidence that the applicant could have not presented even in the exercise of due dilingence or on substantially new circumstances.

28. Is detention without warrant of arrest under Section 29 of the ATA unconstitutional for being an executive warrant of arrest?

No. Section 29 of the ATA properly construed does not provide for an executive warrant of arrest nor warrantless arrest on mere suspicion. Under Section 29, a person may be arrested without a warrant by law enforcement officers or military personnel for acts defined or penalized under Section 4 to 12 of the ATA but only under any of the instances contemplated in Rule 9.2 ie. arrest in flagrante delicto, arrest in hot pursuit, and arrest of escapees, which mirrors Section 5 of Rule 113 of the Rules of Court. Hence, when the circumstances for a warrantless arrest under Section 5 of Rule 113 or Rule 9.2 are not present, the government must apply for a warrant of arrest with the proper court. The participation of the ATC only comes after the valid warrantless arrest is made; the ATC could issue a written authorization to law enforcement agents only to permit the extended detention (14-day or 24-day period) of a person arrested after a valid warrantless arrest is made under Rule 9.2.

29. Does the 14-day or 24-day period violate the 3-day limit for detention without judicial charge under Article 125 of the Revised Penal Code and Section 18, Article VII of the Constitution?

No. Section 29 of the ATA is an exception to Article 125 of the Revised Penal Code based on Congress’ own wisdom and policy determination relative to the exigent and peculiar nature of terrorism and hence, requires as a safeguard, the written authorization of the ATC, an executive agency comprised of high-ranking national security officials.

Section 29 does not amend Article 125 of the RPC but supplements it by providing an exceptional rule with specific application only in cases where: 1) there is probable cause to believe that the crime committed is that which is punished under Section 4 to 12 of the ATA; and 2) written authorization is secured for that purpose.

Moreover, the three-day period in the last paragraoh of Section 18, Article VII of the Constitution is irrelevant to terrorism because it is applicable only in cases of invasion or rebellion when the public safety requires it.

30. Did Section 29 of the ATA pass the test of overbreadth and strict scrutiny?

Yes. The Court finds that Section 29 passes the strict scrutiny standard. It is clear that the State has a compelling interest to detain individuals suspected of having committed terrorism. Moreover, Section 29 also satisfied the second prong of strict scrutiny test for being narrowly tailored and the least intrusive means to achieve compelling state interest. Section 29 if read in relation to Sections 30, 31, 32 and 33 of the ATA is narrowly tailored and least restrictive means to achieve the compelling state interest because 1) it only operates when the ATC issues a written authorization, 2) the detaining officer incurs criminal liability if he violates the detainees’ rights and 3) the custodial unit must diligently record the circumstances of detention.

31. What is the remedy of a detainee under Section 29?

Writ of Habeas Corpus

32. Does the territorial application (Section 49) of the ATA which punishes people abroad for acts that may not be illegal in their respective countries (ie. membership, association or affiliation with designated terrorist organizations) have chilling effects on the right of association?

The Court holds that the constitutional challenge against Section 49 is not ripe for adjudication. In any event, the supposed chilling effect is more apparent than real. A plain reading of Section 49 shows that it merely provides rule on how jurisdiction over the offense of terrorism is acquired.

It is noteworthy that the ATA having extraterritorial application is not peculiar. Section 49 is not the first time the country would extend the application of penal law to Filipino citizens, for acts committed outside the country.

33. What is the nature of the crime of terrorism?

Section 2 of ATA considers terrorism as not only a crime against Filipino people but also a crime against humanity and the Law of Nations.

34. Did the House of Representatives gravely abuse their discretion in enacting HB No. 6875 since 1) the bill did not undergo three readings on separate days, 2) no printed copies of the bill in its final form were distributed to the members of the House three days before its passage, 3) that the certification for the immediate enactment of the law did not meet the “public calamity or emergency exception”, and 4) there is lack of quorum in the session because some members attended through virtual platforms in contravention of physical attendance requirement?

No, the Court held that the President’s certification of the bill as urgent justifies non-compliance with the generl procedure in enacting laws. There is no grave abuse of discretion in deeming that the passage of a law to sufficiently address terrorism in the country falls within the public emergency exception. On the other hand, absent of any palpable grave abuse of discretion, the perceived irregularities in the implementation of the Internal Rules of the HOR is beyond the scope of the Court’s jurisdiction. In other words, the Court does not find it proper to strike down the internal rules of the HOR allowing virtual hearings relative to quorum.

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