FOR IMMEDIATE RELEASE 22 July 2020 On 22 July 2020, former Senior Associate Justice Antonio T. Carpio and former Associate Justice and former Ombudsman Conchita Carpio Morales filed an 86-Page Petition for Certiorari and Prohibition asking the Supreme Court to declare the AntiTerrorism Act unconstitutional. They are joined by Constitutional Law professors from the University of the Philippines, College of Law: Associate Dean and Institute for Maritime Affairs and Law of the Sea Director Jay L. Batongbacal, Institute for the Administration of Justice Director Dante B. Gatmaytan, former Supreme Court Public Information Office chief Theodore Te, and Senior Professorial Lecturers Victoria V. Loanzon and Anthony Charlemagne C. Yu. Also joining the Carpio Petition are former Magdalo Party-list Representative and Security Analyst Francisco Ashley L. Acedillo and incumbent UP University Student Council councilor Tierone James M. Santos. They are represented by Profs. Luisito Liban, John Molo and Gwen de Vera and assisted by Atty. Darwin Angeles. Prof. Liban is a former Senior Partner of Sycip Salazar Hernandez and Gatmaitan, who previously argued the constitutional challenge against the Reproductive Health Law. Prof De Vera has appeared in several Supreme Court cases and is a former Dean of the Manuel L. Quezon School of Law. Prof. John Molo has argued several landmark cases before the Supreme Court, including Belgica v. Ochoa which declared the Pork Barrel unconstitutional. The Petition prays for the issuance of a Temporary Restraining Order or a Status Quo Ante Order to restrain the implementation of the law, as well as the conduct of Oral Arguments. Former Ombudsman and Justice Carpio Morales says: “In its fight against terrorism, the government must not be the source of terror and impunity itself. We must never let reason continue to escape us.” Justice Carpio adds: “The Constitution declares that the right of the people “to be secure in their persons xxx against unreasonable xxx seizures of whatever nature and for any purpose” shall be “inviolable.” To guarantee this, the Constitution erected two fortresses : the first fortress is that only a judge can issue warrants of arrests; the second fortress is that warrants of arrest must be issued only upon probable cause. What has the ATA done? The ATA has demolished both and reinstated the ASSOs of the Martial Law era. Section 29 of the ATA begins with the tell-tale heading “Detention Without Judicial Warrant of Arrest.” Professor Batongbacal notes that “in the past few days since its approval by Congress, we have already seen examples of how over-eager government agents have erroneously invoked the ATA to support attempts to suppress dissent and disapproval, or claimed more powers than the ATA actually grants.” “PNP units arrested people for simply protesting the ATA, officials referred to those who disagree with the ATA as possible supporters of terrorism, PNP stations have tagged protestors of the ABS-CBN shutdown as terrorists, a Senator erroneously argued that people should ignore what the ATA plainly says and instead listen to how other Senators interpret its spirit; and even the President has claimed the sole power to designate terrorist groups contrary to the ATA's express provisions. The certainty of misinterpretation and abuse of the ATA is thus proven even before the
law has become effective. The ATA itself represents a clear and present danger that the Supreme Court is duty bound to protect the public from,” Professor Batongbacal says. John Molo, one of the counsels for the petitioners explains: “We are concerned with how the ATA affects judicial independence. Through this law, Congress took a core Judicial power and gave it to the Executive branch. Is this acceptable? And can Congress keep taking powers away from the Judiciary by passing other laws? We believe the Supreme Court will protect the constitutional role of judges and justices and ensure they do not become rubberstamps in procedures designed to protect our freedoms.” The Petition questions the ATA’s “intrusion” into exclusive Judicial prerogatives by the political branches of government. Both former Justices and their co-petitioners who are all Constitutional law professors maintain that the Judiciary’s power to uphold the Constitution must not be diminished by laws that slowly chip away the boundaries between the 3 branches of government. As former jurists, Carpio and Carpio Morales also emphasize the delicate balance of power between the 3 branches of government as essential to a truly democratic system. The Petition also questions the ATA for its vague and overbroad definition of “terrorism,” which may result in erratic and arbitrary application by law enforcers and may chill the people into silence. Although Section 4 provides that terrorism “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action and other similar exercises of civil and political rights,” this qualifier is rendered pointless by the succeeding 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.” Unsuspecting citizens would second-guess whether their actions would result in “extensive interference” or “endanger” the life of another in some shape or form. For one, Justice Carpio’s advocacy of advancing the country’s claims in the West Philippine Sea may be construed as meant to “provoke the government” into changing its foreign policy and endanger lives by escalating tensions with the Chinese. President Rodrigo Duterte, in a July 5, 2019 speech, even accused Justice Carpio and Justice Carpio Morales of causing the tension with China to escalate and placing Palawan at risk of violence.1 The other Petitioners, in their exercise of academic freedom, have also critiqued past and current government action, which now seemingly falls within the ATA depending on what reading it is given. The Petition argues that mere suspicion or being “proactive,” as Senator Panfilo Lacson puts it, may not substitute the requirement of probable cause to justify a warrantless arrest, as it is settled that it may be done only if there is an overt act that constitutes a crime. If the purported legislative intent is only to reiterate Rule 113, Section 5 of the Rules of Court, then the requirement for a written authority from the ATC defeats the purpose of a warrantless arrest in in flagrante delicto or hot pursuit situations where time is of the essence. Transcript of Speech of President Rodrigo Duterte during the Inauguration of the Chen Yi Agriventures Rice Processing Complex, 5 July 2019, available at: https://pcoo.gov.ph/wp-content/uploads/2019/07/Speech-ofPresident-Rodrigo-Roa-Duterte-during-the-inauguration-of-Chen-Yi-Agventures-Rice-Processing-Complex.pdf (last accessed 2 July 2020): “Itong, itong, itong si Carpio, si Albert, sila si --- pati isang Carpio, si Morales… Now he wants us to tickle China at kapag pumutok itong --- ang masakripisyo, papasabugin nila ‘yung Palawan kasi nandiyan ‘yan sila lahat ngayon eh because it’s facing the China Sea.” 1
In such cases, there will have been no need to extend the period of detention to 14 to 24 days to strengthen the charges because personal knowledge by the arresting officer is already strong evidence. The vagueness of the statute allows law enforcement officials to make the law as they enforce it, and the lack of parameters makes the ATA a loose cannon that threatens a wide spectrum of protected liberties. This early, the ATA’s principal author, Senator Lacson, is already contesting the President’s interpretation of regarding the designation of terrorist organizations, while other top officials have issued statements considering the critics of the law to be “supporters” of terrorists. Aside from the issue of freedom of speech, the Petition assails the creation of the Anti-Terrorism Council with its integral power to order the warrantless arrest of persons merely “suspected” of committing terrorist acts. This allows an executive body to encroach on a judge’s exclusive prerogative to issue arrest warrants, substitute its “suspicion” in place of the constitutional requirement of probable cause, and usurp the Supreme Court’s rule-making power by illegitimately carving out an additional exception to justify warrantless arrests. Moreover, the Constitution also sets a maximum limit of three days for detentions without judicial charge for all kinds of crimes and under the exceptional circumstances that could prompt the suspension of the privilege of the writ of habeas corpus. The ex-parte “designation” of terrorist individuals or groups under the ATA—which means that the ATC is not required to hear the side of the respondents to rebut the government witnesses—unduly infringes upon the constitutional rights to criminal due process, bail and presumption of innocence, as well as the prohibitions against bill of attainder and ex post facto laws and against incommunicado detention. Individuals or members of designated organizations may be stripped of access to their bank accounts by the Anti-Money Laundering Council even without a court order. The ATA also makes individuals terrorists by mere association, even as they are left guessing at the proper procedure and quantum of proof required in the proceedings. This easily turns the ATA into a vehicle for vindictiveness and selective retribution. Lastly, the Petition assails the overbroad discretionary powers to wiretap private communication based on mere suspicion and in violation of the right against unreasonable searches and seizures, as well as the grant of unbridled discretion to the ATC to impose security classifications on all its records. Since its operational provisions are unconstitutional for failing the “strict scrutiny” test—whether the law chose the least restrictive means or narrowly tailored the means to protect the compelling State interest— the ATA cannot be implemented and must be voided in its entirety.#
FACT SHEET July 22, 2020 Subject Matter: • Constitutionality of Republic Act No. 11479, or the Anti-Terrorism Act. • Signed into law by President Rodrigo R. Duterte on July 3, 2020 and published in the Official Gazette and the Manila Bulletin on July 6, 2020. Petition: • Nature: Certiorari and Prohibition under Rule 65 of the Rules of Court • Number of Pages: 86 pages plus Annexes. • When Filed: o Electronic filing: July 22, 2020 o Physical filing: July 23, 2020 • Prayer: o Conduct a special raffle because of the urgency of the matter and the imminent deprivation of life, liberty and property faced by the Petitioners; o Issue a Temporary Restraining Order or a Status Quo Ante Order to restrain the effectivity and implementation of the ATA; o Give due course to this Petition; o Direct the conduct of oral arguments to determine the merits of the multiple arguments against the constitutionality of the ATA; and o Declare the entire ATA null and void as unconstitutional, or declare Sections 3(a), 3(b), 3(g), 3(h), 3(i), 3(k), 3(m), 4, 5 to 12, 16, 25, 26, 27, 29 and 30, 34, 35 and 36, 45, 46, and 49 null and void as unconstitutional. Petitioners (9): • Antonio T. Carpio is a retired Senior Associate Justice of the Supreme Court and, the country’s pre-eminent advocate for Philippine maritime rights. He has openly criticized the Duterte administration for favoring the interests of the People’s Republic of China over our own. • Conchita Carpio Morales is a retired Associate Justice of the Supreme Court, former Ombudsman, and a staunch advocate of the rule of law who has defied the Duterte administration’s pro-PROC policy by filing a Complaint with the International Criminal Court against PROC President Xi Jinping. • Francisco Ashley L. Acedillo served as the representative of Magdalo Party-list in the 16th Congress, was an officer of the Philippine Air Force, and is a graduate of the Philippine Military Academy. He writes analyses and commentaries on issues of national defense and security. • Jay L. Batongbacal is the Associate Dean of the University of the Philippines College of Law and the Director of the UP Institute for Maritime Affairs and Law of the Sea, in which capacity he has consistently contradicted the Duterte administration’s WPS policies. • Dante B. Gatmaytan is a Professor of Law at UP Law, where he teaches Constitutional Law; he is the Director of the UP Institute for the Administration of Justice and a writer of various publications, some of which were critical of government action.
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Theodore O. Te is the former chief of the Supreme Court Public Information Office, a human rights lawyer, and a Professor of Law at UP Law, where he teaches Criminal Law and provokes discussions of government policies and actions among his students. He was previously charged with inciting to sedition by the Philippine National Police. Victoria V. Loanzon is a Senior Professorial Lecturer at UP Law, where she teaches Constitutional Law and provokes discussions of government policies and actions among her students. Anthony Charlemagne C. Yu is a Senior Professorial Lecturer at UP Law, where he teaches Constitutional Law and provokes discussions of government policies and actions among his students. Tierone James M. Santos is a student of the UP Diliman School of Statistics, a member of the Student Alliance for the Advancement of Democratic Rights in UP (STAND UP) and an incumbent Councilor of the University Student Council, in which capacity he had helped coordinate anti-ATA protest actions dubbed the “June 12 Grand Mañanita.”
Respondents (12) • Anti-Terrorism Council is a government entity created by virtue of the ATA to enforce and implement the law. • The Senate of the Philippines and the House of Representatives of the Philippines are the two chambers of the Congress of the Philippines. • Executive Secretary Salvador Medialdea is the chairperson of the ATC. • National Security Adviser Hermogenes C. Esperon, Jr. is the Vice-Chairperson of the ATC. • Foreign Affairs Secretary Teodoro L. Locsin, Jr., Defense Secretary Delfin N. Lorenzana, Interior Secretary Eduardo M. Año, Finance Secretary Carlos G. Dominguez III, Justice Secretary Menardo I. Guevarra, Information and Communications Technology Secretary Gregorio B. Honasan II, and AntiMoney Laundering Council Executive Director Mel Georgie B. Racela are members of the ATC. Counsels: • Luisito V. Liban is a former Senior Partner at Sycip Salazar Hernandez & Gatmaitan. He teaches Constitutional Law at UP Law. He specializes in employment, labor relations and immigration, and has appeared before the Supreme Court in oral arguments on the Responsible Parenthood and Reproductive Health Act of 2012. • John Molo is a litigator and Professor (Constitutional Law). He is the Chairperson of UP Law’s Political Law cluster. Among his significant Supreme Court victories include the unconstitutionality of the PDAF (Priority Development Assistance Fund), electoral/partylist reform, and landmark doctrine for international trademarks. • Gwen B. Grecia-de Vera teaches Constitutional Law at UP Law. She previously served as the Philippine Competition Commission’s first Executive Director and as Dean of the Manuel L. Quezon School of Law. She has argued several Supreme Court cases and led the legal team that advised the Philippine government in several public-private partnership projects.
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Darwin P. Angeles is listed as a Next Generation Lawyer for Dispute Resolution by the Legal 500 Asia-Pacific for three consecutive years. This is his 3rd public interest case before the Supreme Court.
Quotes: Justice Antonio Carpio: “The Constitution declares that the right of the people “to be secure in their persons xxx against unreasonable xxx seizures of whatever nature and for any purpose” shall be “inviolable.” To guarantee this, the Constitution erected two fortresses : the first fortress is that only a judge can issue warrants of arrests; the second fortress is that warrants of arrest must be issued only upon probable cause. What has the ATA done? The ATA has demolished both and reinstated the ASSOs of the Martial Law era. Section 29 of the ATA begins with the tell-tale heading “Detention Without Judicial Warrant of Arrest.” Former Ombudsman and Justice Carpio Morales: “In its fight against terrorism, the government must not be the source of terror and impunity itself. We must never let reason continue to escape us.” John Molo, counsel for the petitioners: “We are concerned with how the ATA affects judicial independence. Through this law, Congress took a core Judicial power and gave it to the Executive branch. Is this acceptable? And can Congress keep taking powers away from the Judiciary by passing other laws? We believe the Supreme Court will protect the constitutional role of judges and justices and ensure they do not become rubberstamps in procedures designed to protect our freedoms.” Professor Jay Batongbacal: “In the past few days since its approval by Congress, we have already seen examples of how over-eager government agents have erroneously invoked the ATA to support attempts to suppress dissent and disapproval, or claimed more powers than the ATA actually grants. PNP units arrested people for simply protesting the ATA, officials referred to those who disagree with the ATA as possible supporters of terrorism, PNP stations have tagged protestors of the ABS-CBN shutdown as terrorists, a Senator erroneously argued that people should ignore what the ATA plainly says and instead listen to how other Senators interpret its spirit; and even the President has claimed the sole power to designate terrorist groups contrary to the ATA's express provisions. The certainty of misinterpretation and abuse of the ATA is thus proven even before the law has become effective. The ATA itself represents a clear and present danger that the Supreme Court is duty bound to protect the public from” Summary of arguments • Its pervasive overbreadth and vagueness chill a substantial amount of protected speech, and only a facial invalidation can permanently prevent this from happening. • The engine that is supposed to run the ATA (i.e., the ATC) is a no-starter. The ATC is an invalid entity because: (i) it is born out of a brazen violation of the rule on separation of powers, and (ii) it is outrageously vested with powers greater than what the Constitution has given to the President in extraordinary cases of invasion and rebellion, without the yoke of restrictions to which the President is subject. • The key provisions that animate the ATA—primarily the definitions of terrorism and its variants—are burdened by unconstitutionality. Arguments why the Petition should be given due course
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Petitioners are in imminent danger of prosecution. o Justice Carpio was accused by Presidential son Paolo Duterte in a nowdeleted Facebook post about an alleged “Oust Duterte Movement.” He and Atty. Batongbacal were accused of “warmongering” by Presidential Spokesperson Harry Roque. Justice Carpio Morales was called a “spokesman of criminals” by President Duterte, who accused her and Justice Carpio of stoking tensions with the PROC (China). o Petitioners from UP Law conduct law classes that require discussions of the history, roots and motivations of past and present societal movements like the Communist Party of the Philippines and past rebellions. Their jobs also require them to discuss divisive and socially controversial issues from the West Philippine Sea to extrajudicial killings, which may be misconstrued as “advocacy” or “inciting” under the vague and overbroad provisions of the ATA. o The National Task Force to End Local Communist Armed Conflict and several police stations have made several social media posts conflating legitimate activism and criticism with acts of terrorism. o Petitioners invoke Southern Hemisphere v. Anti-Terrorism Council which only requires “a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge.” Aside from their individual standing, Petitioners collectively have standing as citizens, jurists and academics. There is an actual controversy ripe for adjudication because the mere enactment of the ATA poses an unconstitutional curtailment of civil liberties and an invalid intrusion into judicial prerogatives by the other branches of government. Unlike the older Constitutions, under the 1987 Constitution, the Supreme Court has the “duty” to act against grave abuse of discretion on the part of any branch or instrumentality of the Government. The vague and overbroad provisions of the ATA deter protected speech, enabling a facial challenge even before the enforcement of a penal statute which infringes upon free speech, religious freedom and other fundamental rights.
Arguments against the powers of the Anti-Terrorism Council • The ATA allows an executive body, the ATC, to encroach on a judge’s exclusive prerogative to issue arrest warrants. o The 1987 Constitution vowed never again to allow the notorious Arrest, Search and Seizure Orders issued during Martial Law; hence, it provides that only judges can issue warrants of arrest upon his personal determination of probable cause. • The title of Section 29 itself is the clue: “Detention Without Judicial Warrant of Arrest” • If the legislative intent is to require a law enforcement agent to secure written authority from the ATC to effect a warrantless arrest in in flagrante delicto or hot pursuit situations under Rule 113, Section 5 (as alleged by the bill proponents), this will defeat the purpose since time is of the essence. Besides, there will have been no need to extend the period of detention without charges since the very circumstances of warrantless arrests permitted by Rule 113, Section 5 already furnish valuable evidence for the filing of an information.
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o Clearly, the written authority is envisioned to arrest suspects outside of the situations allowed under Rule 113, Section 5. o The ATA substitutes the ATC’s determination of “suspicion” in place of the constitutional requirement of probable cause for issuing an arrest warrant. The plain meaning of the term “suspicion” is where one is suspected of committing “something wrong without proof or on slight evidence.” o Jurisprudence is settled that where no crime has been committed or is about to be committed, there can be no justification for an arrest. This is contrary to Senator Lacson’s pronouncement “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.” Being “proactive” is not a substitute for “probable cause.” The Supreme Court’s rule-making power is usurped by illegitimately carving out an additional exception to warrantless arrests. o Only a judge may issue a warrant of arrest. Jurisprudence has repeatedly held that the Secretary of Labor, mayors and prosecutors have no power to order arrests. o The ATA is a direct attack on the independence of the Honorable Court by negating its duty to “promulgate rules concerning the protection and enforcement of constitutional rights.” Section 29 of the ATA impermissibly denies the remedy of habeas corpus beyond the three-day maximum period permitted under extreme circumstances under Article VII, Section 18 of the Constitution. It also short-circuits the 60-day limit for the suspension of the privilege of the writ, since the ATC is allowed to exercise its power to detain suspects for 24 days for as long as the ATA remains a law. Court proscription of terrorist individuals or groups merely becomes a simultaneously available relief as Section 26 of the ATA makes no effort to clarify the difference between designation and proscription.
Arguments on how the ATA suppresses protected speech • The vagueness of the provisions vests law enforcers with unbridled discretion to interpret the law and result in arbitrary and discriminatory enforcement as the wording of the law could be used for any hypothetical scenario. • The lack of standards in the wording of the ATA enables malicious criminal prosecution of innocent right-holders. Unsuspecting citizens would second-guess their actions, chilling them into silence. • A law that “would give law enforcers such latitude that they could arbitrarily or selectively enforce the law” is void. • In Romualdez v. COMELEC, the Honorable Court En Banc clarified that the inapplicability of facial challenges to penal laws cannot be invoked when a penal statute infringes upon “free speech, religious freedom, and other fundamental rights”. • The deadly combination of vagueness and overbreadth and the unrestrained threat of subsequent punishment constitute effective prior restraint. Vague and overbroad provisions • The broad and all-encompassing language of Section 4 of the ATA casts too wide a net that it puts a substantial amount of constitutionally protected activities at risk of
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being classified as acts of “terrorism”. Sections 5 to 12 of the ATA, which rely on the shifty definition of terrorism in Section 4, suffer from the same vice of overbreadth. Section 4, on the definition of terrorism, contains a qualifier that supposedly protects advocacy and protests but is actually diluted by the succeeding 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.” The interpretation of the said exception is surrendered to the discretion of law enforcers. The law fosters an “arrest now, explain later” mentality. Section 5 neglects to define which utterances constitute a “threat.” Section 6, regarding “participation” in the planning of the commission of terrorism, may even include any meeting. Section 7, regarding “conspiracy,” suffers from serious ambiguity due to the nebulous characterizations of terrorism under Section 4. Section 8 punishes utterances that may sound like a “proposal” but are actually expressions of an opinion. Section 9 does not define what constitutes “incitement.” It also punishes mere incitement without regard to whether it would be successful in its advocacy, giving license to arrest student activists who criticize the government. The qualifying phrase “tending to the same end” does not afford enough safeguard because speeches for advocacy are inherently directed towards a specific purpose. Section 10 contains no standards to limit the definition of “recruiting” a person to join or support a terrorist organization. There is also no definition of the word “support,” which means even lawyers who assail the constitutionality of arrests would be silenced, lest they be misconstrued as expressing support. Legitimate activities by advocacy groups can be punished as “training.” Section 11 punishes the mere act of traveling upon a mere showing of a “purpose” that the government disapproves of, based only on suspicion. The lack of narrow tailoring renders it void. Section 12 punishes regardless whether the actor agrees with the recipients of socalled “material support.”
Arguments against “designation” of terrorist individuals or groups • The ex parte “designation” proceedings of the ATC infringe upon the constitutional right to due process. The freezing of assets is a deprivation of property that cannot be done without at least an opportunity to be heard. It also strips bank accounts belonging to designated individuals or groups of confidentiality without a court order. o When read in relation to Section 10 (recruitment and membership), designation imposes the penalty of life imprisonment without the benefit of parole. Section 26 makes an individual a terrorist by mere association. o Section 26 does not define the nature of the proceedings. o Section 27 allows the Court of Appeals to proscribe a terrorist organization merely on the basis of a verified application and does not afford the respondent any chance to refute it. • Although the penalty for mere membership is 12 years and the offense is bailable, the designated person may still be subjected to severe restraints on liberty by being placed under indefinite house arrest. This impairs the right to bail and runs roughshod of the right to be presumed innocent until proven guilty.
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Designation partakes of the nature of bills of attainder and ex post facto laws. Membership in organizations designated by the United Nations Security Council, which is not a judicial body, serves as the basis for punishment on the basis of legislative enactment without the benefit of a judicial trial. Sections 10 and 12 punish anyone for mere membership and giving material support, regardless of when either act took place. The provisions of the ATA punish mere association with a certain group absent any overt criminal act and regardless of when the act of affiliation was committed.
Other arguments • Section 3(i), in relation to Section 16, grants law enforcers overbroad discretionary powers to wiretap private communication, without distinction and based on mere suspicion. This creates a chilling effect that deters protected speech and disregards an individual’s right against unreasonable searches and seizures, right to privacy of communications, and right to be presumed innocent. • Section 36, which permits the AMLC and the ATC to issue an “Ex Parte Order to Freeze,” amounts to an unlawful search and seizure, and a deprivation of property without due process of law. • Section 45 grants to the ATC unbridled discretion to impose security classifications on all its records, effectively undermining the right of citizens to access such records pursuant to their right to public information. • Since its operational provisions are unconstitutional for constituting restrictions to liberty that fail Strict Scrutiny, the ATA cannot be implemented and must be voided in its entirety. o Any attempt to contravene constitutional freedoms is presumed unconstitutional. To overcome this presumption, the State must prove by overwhelming evidence that the law (1) is necessary to achieve a compelling State interest; and (2) is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest.