Retired Supreme Court Justice Antonio T. Carpio and former Ombudsman Conchita Carpio Morales led a group of constitutional law professors from the University of the Philippines to file the 11th petition against the Anti-Terrorism Act of 2020, asking the Supreme Court to declare it unconstitutional.
The petitioners also asked the 15-member bench to issue a temporary restraining order to stop the law from being carried out, and to conduct oral arguments so they could explain why the law was unconstitutional.
Joining Carpio and Morales as co-petitioners were constitutional law professors from the UP College of Law, namely 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.
Carpio’s counsel, John Molo, who had argued several landmark cases before the Supreme Court, said the petitioners sought to strike down the anti-terrorism law in its entirety.
“Since ATA’s 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,” Molo said.
Also serving as counsels for the petitioners are UP law professors Luisito Liban, a former senior partner of Sycip Salazar Hernandez and Gatmaitan; Gwen de Vera, former dean of the Manuel L. Quezon School of Law; and Darwin Angeles.
“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,” Morales said.
Carpio argued that the Constitution declares the right of the people to be secure in their persons against unreasonable seizures of whatever nature and for any purpose is 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,” Carpio said.
Instead, the law reinstates the arrest, search and seizure orders (ASSOs) of the martial law era, he said, noting that Section 29 of the ATA begins with the “tell-tale” heading: “Detention Without Judicial Warrant Arrest.”
In the past few days since its approval by Congress, Batongbacal said they 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,” Batongbacal said.
Carpio’s counsel, Molo, expressed serious concern on 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 rubber stamps in procedures designed to protect our freedoms,” Molo said.
The 11th petition against RA 11479 questioned the ATA’s “intrusion” into exclusive Judicial prerogatives by the political branches of government.
Both former SC 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 three branches of government.
As former jurists, Carpio and Carpio Morales also emphasized the delicate balance of power between the three branches of government as essential to a truly democratic system.
The petition also assailed the anti-terrorism law for its vague and over-broad 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,” the petitioners said.
The petitioners said 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, the petition said, 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.
The petitioners recalled that President Rodrigo Duterte, in a July 5, 2019 speech, even accused Justice Carpio and Morales of causing the tension with China to escalate and placing Palawan at risk of violence. 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 petitioners argued that mere suspicion of being “proactive,” as Aenator 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.