The petitioners against the Anti-Terror Act said the striking down of a "killer caveat" in the law was an “important win for the protection of civil liberties” but said the Supreme Court upheld “the draconian powers of the Anti-Terrorism Council that arrests, harasses, and murders with zero regard of your legal standing."
The Anti-Terrorism Council, comprised of members of Duterte's Cabinet, can order the warrantless arrest of anyone they deem a terrorist.
Suspects can be detained for up to 24 days without charge.
Cristina Palabay, secretary general of rights group Karapatan, said other sections of the law remained "largely vague and susceptible to subjective interpretations and therefore, abuse."
Senatorial candidate and former Party-list Rep. Neri Colmenares, said the Court decision “corrects the erroneous and dangerous view of the law’s proponents that equate activism with terrorism.”
Renato Reyes, secretary general of the militant Bagong Alyansang Makabayan, said the decision recognized that activism is not terrorism.
“This is a partial victory for petitioners as protests and advocacy are not acts of terror, period,” Reyes said.
Law professors, who were among those who assailed the constitutionality of the RA 11479, considered the high court’s ruling striking down the qualifier as a “victory for human rights and civil liberties.”
Lawyer Theodore Te, who served as spokesperson of the Supreme Court, asked why only the qualifier was declared unconstitutional by the Supreme Court while the rest of section 4 was affirmed. Te said the SC ruling on this matter is unclear.
"I'd be curious to read the reasoning of the Court on that portion and why it is not applicable to the main provision on section 4 because if the Court considered the last portion of that qualifier to the proviso, “intended to cause…, " it's also the language of the main provision in section 4. So I'd be curious to see how they distinguish. But as of now, it's hard to say,” Te said, in a virtual interview.
Te’s organization, the Free Legal Assistance Group, considered this aspect of the ruling an “important win” for the protection of civil liberties but said uncertainty remains.
“For an ordinary person as you put it, his fears are still the same, the chilling effect we say as to the exercise of rights could still be there. The definition still remains unclear. It is still not clear what the definition covers,” he added.
Te also said it is unclear why the second mode of designating terrorists which would use as basis the criteria laid down under a United Nations Security Council resolution, was declared unconstitutional, while the first one, adopting entirely the UNSC’s list was not.
Under section 25 of the Anti-Terrorism Act, designation of terrorists and terrorist groups could come in three ways: The Anti-Terrorism Council can automatically adopt the United Nations Security Council’s consolidated list of designated individuals or groups; the ATC may adopt the UNSC’s criteria in processing requests for designation by other jurisdictions or supranational jurisdictions; and the ATC may make its own designations.
“We don’t know the reason and the advisory does not tell us the reason for striking it down as unconstitutional and how the first part of that provision could remain constitutional when the second part was unconstitutional. So it’s really hard to speculate on that,” Te said.
Petitioners have assailed the entire section on designation for being contrary to the constitutional provision that only a judge may issue a warrant of arrest based on a personal determination of probable cause.
In addition, they claimed violation of the right to due process because the designated groups or individuals are not informed of the basis for their designation and neither are they given the opportunity to address the allegations until after they have been designated through a process called delisting.
Delisting was only included in the implementing rules and regulations of the law.
As a consequence of the designation, the assets of designated individuals and groups can be frozen “without delay” by the Anti-Money Laundering Council and they can still be subject to the court-sanctioned procedure of proscription where the Court of Appeals can declare them as terrorists.
A key question is on the authority of the Anti-Terrorism Council, composed of members of the Executive to designate terrorists, which they argue, should be a judicial function.
Defending the ATA during the oral arguments at the Supreme Court early this year, lawyers from the Office of the Solicitor General said designation is an executive and administrative function similar to what prosecutors do.
One of the petitioners, lawyer Evalyn Ursua, however argued that prosecutors can only determine probable cause for filing charges in court, not to arrest, detain or authorize freezing of assets.
Government lawyers said designation only leads to freezing of bank accounts and not arrests.
The ATC in December last year designated the Communist Party of the Philippines and the New Peoples’ Army as terrorists groups while 19 alleged central committee members of the CPP were also designated in May.
Palabay called the ATC’s power to designate a “virtual hit list.”
“The ATC’s power to designate is a virtual hit list. Being designated as a ‘terrorist’ is essentially a death warrant. This arbitrary power along with the retention of the 14-day period of warrantless detention in Section 29 are dangerous provisions that would only engender the commission of human rights violations including torture and enforced disappearances under the cover of implementing the terror law,” she said in a statement.
Another power of the Anti-Terrorism Council to authorize detention without judicial warrant of arrest and prolonged detention was also not struck down.
Petitioners have pointed out that a body composed of members of the Executive cannot take on the judicial function of issuing arrest warrants.
They also argued the 24-day detention goes beyond the maximum three-day detention under the 1987 Constitution in cases of rebellion and invasion, considered extreme cases because the life of the government is at stake. With AFP
