Forty-four leaders of various organizations appealed to the high court to declare the law unconstitutional, for it “insidiously encroaches upon fundamental and constitutional rights, such arbitrary deprivation of the right to life, liberty and property and the non-observance of the right to due process and to presumption of innocence.”
By ANNE MARXZE D. UMIL
MANILA – Progressive organizations and human rights defenders labeled the Anti-Terrorism Act of 2020 or Republic Act 11479 as “worse than Martial Law.”
In a petition filed with the Supreme Court, Thursday, July, 23, the 44 leaders of various organizations appealed to the high court to declare the law unconstitutional, for it “insidiously encroaches upon fundamental and constitutional rights, such arbitrary deprivation of the right to life, liberty and property and the non-observance of the right to due process and to presumption of innocence.”
The petitioners, assisted by the National Union of Peoples’ Lawyers (NUPL) said that Section 29 of the law, “in essence and in effect, is even worse than Martial Law.”
Sec. 29 allows detention without warrant of arrest of persons suspected of terrorism or members of any organization declared as terrorist. The Anti-Terror Council (ATC) can authorize law enforcement agents or military personnel to arrest and detain suspects for up to 24 days.
It also directly violates Article 7, Section 18 of the Constitution which is “intended to limit the power of the Executive to detain persons without charges and only under the certain limited and specific circumstances: 1) only when there is a declaration of Martial Law and the privilege of the writ of habeas corpus is suspended, and 2) only in cases of rebellion and offenses involving invasion and for a limited period of three days.”
Article 7, Section 18 states that the Constitution is not suspended under a state of martial law nor automatically suspend the privilege of the writ of the habeas corpus.
“The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion,” the petition read, adding that any person arrested or detained should be charged within three days, otherwise he shall be released.
“The assailed law granted unto the Executive, through the ATC, the power to detain persons longer than what is allowed under the Constitution,” the petitioners said.
Under the Revised Penal Code, a suspect of grave offenses may be detained for a maximum of 36 hours or three days without charges.
The petitioners argued that the longer period of detention up to a maximum of 24 days without being judicially charged under Section 29 of RA 11479 “is akin to a criminal penalty.”
Sec. 29 of RA 11479, they said, violates Article 3 Section 1 of the Philippine Constitution, which prohibits deprivation of life, liberty and property without due process of law and denial of equal protection of the law.
The law gives the Anti-Terrorism Council (ATC) the power to impose a penalty “for an act without fair and impartial trial.” “The detention under Section 29 is a disproportionate and an excessive penalty imposed on a person whose guilt has yet to be established in a full scale criminal trial,” they said.
Super powers = abuse
The petitioners further pointed out that Anti-Terrorism Council’s power of designation of terrorists “violates due process clause, the right to be presumed innocent, and freedom of association.”
The ATC’s power of designation, they added, is a violation of the principle of separation of powers and a usurpation of judicial prerogatives.
The petitioners argued that Sec. 25 of the law, which allows ATC to designate as terrorist persons or groups or associations is similar to a bill of attainder. Bill of Attainder means that one is prosecuted without a trial and it is explicitly prohibited under Sec. 22 of the Philippine Constitution.
Criminalizing free speech
The petitioners also said that Section 9 of RA 11479, which penalizes both speech and non-speech elements that incite others to commit acts of terrorism, violates the clear and present danger rule.
The clear and present danger rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”
The petitioners said, “Expressions of dissent and advocacy of disobedience, the use of force, the commission of illegal acts, or even the overthrow of government — by themselves — do not create any grave or imminent danger warranting censorship or punishment. The presence or absence of said danger, as well as the inevitability thereof, are matters entirely different from the content of the speech or other forms of expression, as well as the intent or purpose behind it.”
“By including exercises of constitutional rights in its definition of terrorism, Section 4 of RA 11479 focuses on the intent of the speaker or actor. In defining Inciting to Commit Terrorism, Section 9 focuses on the message, i.e. whether or not it incites others into the commission of prohibited acts or if tends to do so,” they said.
The Bayan et.al petition argues that the acts of terrorism under Section 4 have not been defined or enumerated. It ambiguously refer only to “acts.”
“This failure to define the particular act(s) that would constitute the crime makes the penal law utterly vague and, perforce invalid, even if there is a qualification as to the intent behind it,” they said.
Thus, Section 4 of the law is invalid as it violates the due process.
According to the petitioners, the vague definition of terrorism is dangerous as it “leaves law enforcers unbridled discretion in carrying out its provisions. It allows law enforcers to intentionally or recklessly, or even mistakenly allege that a person – intended to cause death or serious physical harm’ to another person, — ‘to endanger a person‘s life, or to create a serious risk to public safety’ even while exercising a civil or political right.”
Contrary to the claims of the government that the RA 11479 does not violate the people’s right to freedom of expression, the petitioners assert that it does.
“Viewed in a different light, instead of providing a concrete and specific definition of terrorism — one which particularizes the conduct being proscribed — Section 4 expands its already vague definition to include legitimate exercises of free speech and other constitutional rights based solely on the ?intent of the speaker or the actor.”
“This was admitted by (former Gen. Hermogenes) Esperon, would be Vice Chairperson of the ATC, when he selectively yet misleadingly insisted that Section 4 does not prohibit free speech and expression, but said in the same breath: ‘Kung tahimik naman sila, huwag sila mababahala.’” (If they keep mum, they have nothing to worry about) the petition read.