Challenges to terror law will continue before SC

With a caveat to the public and the contending parties in the case, the Supreme Court announced on Thursday that it had stricken down as unconstitutional only two provisions of the Anti-Terrorism Act of 2020 that various groups had challenged, through 37 petitions filed last year.

“On the basis of the current petitions, all the other challenged provisions of RA 11479 are not unconstitutional,” the announcement said.

The 37 petitions urged the high court to declare unconstitutional – either entirely or its numerous challenged provisions – RA 11479, which President Duterte signed on July 4 and took effect on July 18, 2020. The tribunal ignored the petitioners’ collective pleading – a usual step taken – to temporarily stop the implementation of the law pending its ruling. Oral hearings on the case were held from February to May this year.

The caveat: “The parties and the public are advised to await the publication and read the decision and separate opinions for the explanation of votes.”

Reportedly having lengthily deliberated and voted on each of the major issues in the case, the SC appears to send the message that its written decision is complicated, and every one of its 15 members may have varied stands that ought to be taken into account to properly appreciate the ruling.

The tribunal hasn’t released the numbers in the final voting – whether it’s a close vote or with a wide margin.

Declared as unconstitutional are these two provisions in the terror law:

• The qualifying phrase, “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,” tacked on a provision in Section 4 of the law that says terrorism “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action and other similar exercises of civil and political rights.”

Voting overwhelmingly, 12-3, the SC says the qualifying phrase is unconstitutional “for being overbroad and violative of freedom of expression.”

• A provision in Section 25 that allows the Anti-Terrorism Council (composed of executive officials) to adopt automatically terrorist designations made by foreign governments or “supranational” entities like the United Nations Security Council. The vote: 9-6.

Practically all the petitioners and their lawyers who have spoken up welcomed these two rulings. However, they found these inadequate, arguing that other provisions that would similarly curtail civil and political rights should be declared unconstitutional as well.

Motions for reconsideration of the SC ruling are being contemplated for filing after the full decision and the separate opinions of the magistrates shall have become available and subjected to close scrutiny and analysis.

Among the earliest statements issued since Thursday were those of petitioners Bagong Alyansang Makabayan and Karapatan, and of the National Union of People’s Lawyers (NUPL), Free Legal Assistance Group (FLAG) and individual lawyers acting as counsels for various petitioners. They all welcomed the first of the two rulings cited above, as “it corrects the erroneous and dangerous view of the law’s proponents that equates activism with terrorism” – which has already inflicted harm on several organizations, groups and individuals.

NUPL chairperson Neri Colmenares, however, said the SC should also have struck down as unconstitutional “other provisions that allow the following: authorities to detain people for up to 24 days without charges; the ATC to designate ‘terrorists’ at will and freeze their assets; authorities to detain incommunicado persons already out on bail, in the guise of house arrest; and other draconian measures.”

Still, FLAG, headed by Jose Manuel Diokno, called the ruling “an important win for the protection of our civil liberties.” The group reserved further comments pending its receipt of the full decision.

The NUPL, through its president, Edre Olalia, stated its stance as follows:

• “We will certainly regroup and close ranks and file a motion for reconsideration of the ruling. We will not allow the dying of the flickering light of our basic rights.”

• “We regret that the rest of the perilous provisions… have been passed upon as ‘not unconstitutional.’” This means – based on practice and the “realities on the ground” – “people will still remain in the dark as to what conduct is precisely proscribed [banned], while the law’s enablers and law enforcers can nevertheless still spin, repackage and relabel advocacy and dissent as terrorism.”

In this regard, note the remark of DILG Secretary Eduardo Año that the SC ruling would not affect the overall implementation of the terror law. “The declared unconstitutional provisions are minimal and won’t affect the ATA 2020,” he told reporters Thursday. “Appropriate adjustments” would be made by the DILG, he added without elaboration.

• But the NUPL pointed out that the ATC, a “non-judicial politicized entity, retains its vast and draconian powers undisturbed, among them the authority to examine bank accounts and freeze assets, unilaterally designate individuals and organizations as terrorists and apply for broad surveillance powers – all without notice and hearing.”

• Disquiet will hang heavily with the continuing specter of red-tagging and de-facto terrorist designation despite the nuancing of Section 4.

• To truly uphold, protect and fulfill the [1987 Constitution’s] Bill of Rights, “we respectfully submit that it is not enough to affirm that activism is not terrorism,” even as it is a huge and welcome step in that direction.” Moreover, “measures that suppress fundamental freedoms and liberties must be rejected without qualification, ambivalence and reluctance.”

While awaiting the the full decision “to complete a more-studied take on (it),” NUPL said, “we will join the people on Dec. 10, International Human Rights Day, in asserting our basic rights and reclaiming civic space.” It referred to yesterday’s “United People’s Action” rally by various groups at the UP Diliman campus in Quezon City.

“We will march into the streets and amplify our voices against the perils of this terrifying law,” the NUPL vowed, “as well as against the resurgence of any form or variant of authoritarianism.”

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Published in Philippine Star
December 11, 2021

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