‘Not red-tagging but truth-tagging’

The Office of the Solicitor General on Tuesday defended the constitutionality of Republic Act 11479 or Anti-Terrorism Act of 2020 even as it debunked insinuation that the government is involved in red-tagging.

During the continuation of the oral arguments on the 37 petitions seeking to declare the anti-terrorism law as unconstitutional before the Supreme Court, Assistant Solicitor Marissa de la Cruz-Galandines stressed that the state security forces are not involved in so-called “red-tagging” but only on “truth-tagging”.

Galandines assured SC justices that the government is not involved in red-tagging and that the term was coined by the leftist groups.

“What the government is doing is truth tagging and not red-tagging,” Galandines told SC magistrates.

Galandines was responding to the query made by Associate Justice Ricardo Rosario who raised the issue of red-tagging of organizers of community pantries during the oral argument.

Rosario noted that the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) recently red-tagged the organizer of Maginhawa community pantry Patricia Non without sufficient evidence.

“How will the government ensure that the ATA will unduly and unlawfully identify any person as a suspect of terrorism merely on the basis of suspicion?” Justice Rosario asked Galandines.

“Does this incident support the petitioners’ allegation of future surveillance and red tagging?” he added.

In his interpellation, Associate Justice Jhosep Lopez grilled Galandines on Section 29 of the ATA, which allows enforcement agents or military personnel, who have been duly authorized in writing by the Anti-Terrorism Council to arrest persons suspected of committing terrorism or any of the acts defined and penalized under the ATA without the need of a warrant issued by the court.

“Suspected, does this mean the quantum of evidence enough to take a person into custody is only based in suspicion and not on probable cause as required under Rule 113 on warrantless arrest,?” Justice Lopez asked.

But Galandines argued that the written order from the ATC would only be for the continued detention of the suspect who was arrested following a valid warrant of arrest.

“We did look into the intent and it was very clear from the interpellation of Senator Panfilo Lacson [proponent of the law] that the intention of the law was for the ATC to issue a written order for the continued detention and not the issuance of an arrest order,” Galandines pointed out.

Justice Lopez also asked Galandines on the power of the ATC to authorize the detention of suspected terrorists for as long as 24 days.

The magistrate noted that Article 7, Section 18 of the Constitution limits the period of detention without filing any charges to only three days and only in two conditions – suspension of the privilege of the writ of habeas corpus and in cases of rebellion and invasion when public safety requires.

“What makes you think that under ordinary times, you can detain a person to as many as 24 days when the constitution limits it to three days inly at maximum during suspension of the privilege of the writ of habeas corpus?” Justice Lopez asked.

“Under extraordinary circumstances the maximum is only three days and yet under ordinary times like what we are having right now, no emergency, no rebellion or anything, no invasion and yet the maximum period of detention is 24 days,” he pointed out.

Galindines argued that Section 18, Article 17 came about because of fear that martial will again be proclaimed by a sitting President.

“This is actually an answer, to the fear brought about by the previous governtment prior to the presidency of [the late] President Corazon Aquino,” she noted.

She noted that terrorism has evolved from 1987 to the present.

Apparently unconvinced by Galandines argument, Justice Lopez urged the government lawyer to look into the transcript of the deliberations of the framers of the Constitution to determine their real intent in including the said provision in the Constitution.

Justice Lopez also grilled Galandines on the constitutionality of Section 25 of the ATC, which allows it to designate an individual or organization as a terrorist or engaged in terrorism.

The SC justice noted that Galandines stated in the previous oral argument that the designation is merely for purposes of applying for a freeze order against suspected terrorist organizations or individuals.

However, Justice Lopez questioned the need to designate a person or a group a terrorist in order to file a freeze order.

“During my time as an associate justice of the Court of Appeals, we have AMLAC (Anti-Money Laundering Council) cases against perhaps terrorists, there was never any kind of designation. You can file it with the Court of Appeals and get a freeze order without having to designate anybody or any organization as terrorist,” Justice Lopez stressed.

“Is designation by itself a penalty because in the eyes of the law you are already designated a terrorist. In fact, in the eyes of your family, of your friends, of your relatives, your neighbors? In fact, of the entire country, know and they will know that you are already a designated terrorist. So don’t you think that this ... need not be put into the law?” the magistrates asked.

In defending the provision on designation, Galandines stressed that it is a prerogative measure of the ATC and that “the process of designation does not amount to indictment or conviction.”

Justice Lopez insisted that designation as a terrorist itself is already tantamount to a penalty.

The Court has yet to hear amici curiae’s legal opinions of former Chief Justice Reynato Puno and former SC Associate Justice and Solicitor General Francis Jardeleza on the issue. Puno and Jardeleza have been designated by the Court as amici curiae to give their expert opinion on the matter.

Topics: Anti-Terrorism Act of 2020 , Red-tagging , Marissa de la Cruz-Galandines , Ricardo Rosario , Community pantries
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