cra Bain Bond a 1 Joe! Villaseran Position Paper of Chief Justice Reynato S. Purro (ret.) as annasicmpe Opening Statement 7 We are all students of the history of threats to peace and soeulll We know how these threats have evolved... the changes in the nature of the threats, the metamorphosis of the acts constituting the threats, the mutation of actors driving the change, etc. We saw all these changes in the different tools and techniques used by man to fight despots, to resist tyrannicides that led to WWI and WWII and we observed their refinements during the Cold War. Terrorism is the latest variant of these threats to peace and security. The world saw how deadly and destructive terrorism is in the September 11, 2011 attack of the United States and in the siege of Marawi. The longitude of injury spawned by terrorism has mothered the call for all states to stage a war on terrorism. The dilemma is that we are called to fight a war that is not a war, as defined in international law. In a traditional war under international law, the rights and obligations of the warring states, the combatants and the non-combatants are defined with precision. But terrorism is not a conventional war yet we label it as a war, fight it like a war and that breeds turmoil to the protection of human rights. Given their desire to understand and contain terrorism, states have isolated the distinctive characteristics of terrorism, to wit: (1) it is difficult to detect and deter because (a) it is done in the most clandestine manner and “Hearing on Anti-Terror Law, March 9, 2021, Supreme Court.(b) it is executed swiftly; (2) the magnitude of the death and destruction it can cause is unimaginable given that the perpetrators may have access and can use biological and chemical weapons and other weapons of mass destruction; and (3) the difficulty of catching the perpetrators considering the porous boundaries of states and the globalization of the world into a village. Prescinding from these expert studies, the United Nations, itself thru its General Assembly and the Security Council, have called on its member- states to criminalize terrorism in their domestic laws and impose news sanctions, ranging from the penal, political, economic and financial. The internationalization of the fight against terrorism will breed novel legal problems as it will require, among others, an in-depth study of the rights and obligations of member states of the United Nation under its charter and an examination of the applicability of certain norms of public international law and humanitarian law in domestic disputes. It is difficult to capture the different dimensions of these problems as more probably than not, issues that are sui generis in nature have to be resolved. A hint to these difficulties is the continuing failure of the United Nations Security Council to craft a definition of terrorism that its member-states can accept without any asterisk of reservations. As a consequence, different models on how to combat terrorism in compliance with the call of the UN Security Council have been developed. The US has created its own model, the European Union formed its own, the Commonwealth countries modified their own and so did various Asian countries. This lack of consensus on the definition of terrorism willcontinue to be a pestering problem considering the irreconcilable philosophy ‘on human rights of its member-states and the design of their Constitutions. Further, anti-terror law models will demand a hard look on the new disruptions its enforcement will inflict on individual rights protected in its state constitutions. In the petitions at bar, Petitioners allege that just about all the rights in our Bill of Rights will be illicitly compromised by the ATA, from due process, freedom of speech and expression, freedom of association, freedom of religion, freedom against unreasonable search and seizure, right to privacy, right against ex post factor law and bills of attainder, right against cruel, degrading or inhuman punishment, academic freedom, etc. Petitioners also allege that the Anti-Terror Act wrecks the principle of separation of power and checks and balances which is a touchstone of the rule of law. Upon the other hand, the government contend that the new restrictions on liberty imposed by the ATA are benign, demanded by national security and indispensable to insure the continuing exercise of individual rights. These are the cases that pose the greatest challenge to judicial wisdom for in collision course is not a right versus wrong, at odds are not the forces of good versus the axis evil but on loggerheads is the push of a right versus the pull of another right ... the right of individual rights to be protected and the right of national security to be upheld, both values recognized by the architecture of our Constitution. The dangers that lie ahead all of us who covet a Solomonic solution to these contending values of liberty and security are well expressed by Fernando Reinares, a Spanish terrorism expert. Forhim the competing interests of safeguarding rights and increasing the effectiveness of law enforcement in fighting terrorism... generate quite important tensions that impact the overall governmental policy regarding anti-terrorism. Therefore, the governmental response may oscillate ... between excesses and defects. On the one hand, there is a tendency to trivialize terrorism, reducing it to just another criminal offense and thus neglecting or minimizing the links of the crime to political conflicts and therefore avoiding specific ways of dealing with the issue that depart from the standard responses to crime. On the other hand, there are approaches that tend to exaggerate the dimensions of terrorists acts and thus justify a disproportionate use of state force to control such violence. Your Honors, we are to seek the right balance between individual liberty and national security. This is not case of “all or nothing matter but a matter of more or less.” With your leave, let me discuss the major issues in these 37 petitions assailing the constitutionality of the Anti-Terror Act. Standing: Petitioners have standing We are familiar with our rule on standing. It is spelled out in Anak Mindanao Party List Group v. Executive Secretary (531 SCRA 583, 591- 592), to wit: XxX Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of thequestion on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues which the court depends for illumination of difficult questions. The question is whether this rule on standing should be strictly applied against the various petitioners given the fact that they are espousing the legal interest of 3 parties who are not parties to the cases at bar. More specifically, the question is: will the fact that the petitioners are assailing RA 11478 (Anti-Terrorism Act) as void for vagueness and void for overbreadth give them the requisite standing as an exemption to the general rule. In Southern Hemisphere Engagement Network v. Anti-Terrorism Council (639 SCRA 16 [2010]), this Court held: “Criminal statutes have general in terrorem effect resulting from their very existence, and if facial challenge is allowed for this reason alone, the State may well be prevented from enacting !aws against socially harmful conduct.” Well to note, the petitioners in the cases at bar are challenging the constitutionality of the Anti- Terrorism Act not only because it is a penal law but because on its face, it infringes freedom of speech due to its vagueness and overbreadth. The ruling case law is that petitioners who assail a law as void on the basis of its vagueness and overbreadth are exempted from the strict rule on standing. A law that is vague and overly broad is considered as an immense evil and destructive of fundamental rights in a democratic regime, it ought to be struck down at the earliest opportunity by anyone in the body politic. It is a threat not just to one but it is a threat to all and anyone can represent all in excising it out from our statute book.More than any other law, the Anti-Terror Act has attracted so many petitions assailing it as void on its face. The petitions come from across all sectors of society especially the bar and the academe. The petitioners raise serious constitutional issues heretofore unresolved by this High Court. | respectfully submit that it is best that the petitions at bar be resolved on the merit and not outrightly dismissed on the technical ground of lack of standing of the petitioners, because they are challenging a penal law that is allegedly void on its face. I. Anti-Terror Act is not void for vagueness or overbreadth We borrowed the void for vagueness and for overbreadth principle from American jurisprudence. There are two principal reasons why an overly broad law should be struck down: (1) it has a chilling effect on speech, that is, people may be intimidated or may fear exercising their right to speak, and (2) it is highly susceptible to selective enforcement, i.e., enforcement that discriminates against certain classes of people or certain points of view. By definition, a statute is overly broad if in addition to proscribing activities which may constitutionally be forbidden, it also sweeps within its coverage speech or conduct which is protected by the guaranties of free speech or free association. The doctrine of vagueness is similar but not identical to that of overbreadth. The principal reasons why a law will be struck down for vagueness are (1) the conduct it forbids is so unclearly defined that personsof common intelligence have to guess at its meaning and differ as to its application. The proscription against vagueness is demanded by the due process requirement that people should be given fair notice of what conduct is prohibited When a law is struck down because on its face, it is void for vagueness or overbreadth, the entire law is annulled. This is different in the usual situation when a court declares a law unconstitutional, and the court just excises the law's unconstitutional application and leave the law in force in cases where its application would be constitutional. | stress this difference in effect because it counsels courts to take extra-caution before it annuls a law on the ground of vagueness or overbreadth. This extra cautious approach is a recognition of the principle of separation of power where Congress is given the power to make laws, to set the policy of what is protected and unprotected conduct, a policy that is not interfered by the judiciary unless demonstrated as clearly violative of the tenets of the Constitution. Thus, courts set high barriers before allowing these challenges based on vagueness or overbreadth to succeed. In the words of this Court in David v. Arroyo, (G.R. No. 1713, et seq. May 3, 2006), viz: “... a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenges must establish that there can be no instance when the assailed law may be valid.” The petitioners failed to discharge this heavy burden. As arule, therefore, courts disfavor challenges on the constitutionality of a law grounded on vagueness or overbreadth. Such challenges offer too“strong a medicine” to cure an imagined malignancy in a law duly passed by Congress and approved by the President. With due respect to the petitioners, | respectfully submit that their valiant efforts fall short to justify striking down the whole Anti-Terror Law as unconstitutional on its face on the ground of vagueness or overbreadth. Let me add posthaste, however, that there can be subsequent challenges to the constitutionality of the law on an applied basis, where the enforcement of the law on specific individuals and specific acts can be better inquired into by the courts. Again with your leave, Your Honors, allow me to point out other areas of constitutional concern on the Anti-Terror Act. Designation of Terrorists Sections 25, 35, 36 38 and 41 Let me discuss the designation of terrorists under Section 25 and the power of AMLC to order the freezing of their assets. Under Section 25, there are three ways by which a person or organization can be designated as a terrorist by the ATC. First is thru the designation or listing made by the UN Security Council. This designation made by the UN Security Council is “automatically adopted” by the ATC. The second is thru designation by “other jurisdictions or supranational jurisdictions” like the European Union that meets the criteria set by UN Security Council Resolution No. 1373 and approved by the ATC. And the third is the designation made by the ATC itself upon a finding of probable cause that the person or organization “commit or attempt to commit or conspire in the commission of the acts defined and penalized under sections 4 to 12 of the Act.”| respectfully submit that there are some areas of concern in the process of designation of terrorists. One, it is disquieting that the ATC “automatically adopts” the list of terrorists that comes from the UN Security Council. | am not sure whether UN Security Council Resolution No. 1375. mandatorily ordered member-states to automatically adopt its list of terrorists. The process followed by the UN Security Council in arriving at the list may not conform with our Constitution. We are not aware how much of the process is open and how much is in camera. The standard of fairness in the listing process should be our legitimate concern. The criteria that guided the Security Council in preparing the black list can be changed from time to time. The change may be demanded by the lay of the legal landscape which will vary from country to country. The change in criteria may not always be in accord with our fundamental law and automatically adopting the UN list may not give us any wiggle room to avoid unconstitutional difficulties. Secondly, the ATC itself can determine the person or organization to be designated as terrorists. The ATA requires the ATC to find a probable cause that the person or organization concerned “commit or attempt to commit or conspire in the commission of the acts defined and penalized under sections 4 to 12 of the Act.” The process here, | assume, is secret, ex- parte, unbeknown to the person or organization under investigation. My apprehension is that the finding of probable cause may lack sufficient evidentiary basis. The finding of probable cause may critically hinge on intelligence information of doubtful admissibility or it may depend on classified information. The disconcerting question is whether there is a10 meaningful remedy on the part of person or organization designated by ATC as a terrorist when its finding of probable cause rest on erroneous ground. It is interesting to study whether under the ATA, the remedy of an aggrieved person or organization against an erroneous designation by the AML is nil or if not nil, is nevertheless meaningless. | say nil because there is no express provision in the ATA that allows an aggrieved party to assail the factual basis of the designation made by ATC. A deep dive at the second paragraph of Section 36 will reveal that the AMLC has the power to issue freeze order of assets and its lifetime is 20 days. If there is a need to extend the life of the freeze order which cannot be more than 6 months, the extension must be granted by the Court of Appeals. It seems that the only role of the Court of Appeals is to determine whether the lifetime of the freeze order should be extended. It is doubtful if it has the power to determine the basis of the exercise of the power of AMLC to freeze assets and that basis is none other than the listing of the aggrieved party as a terrorist made by the ATC. But even assuming arguendo that the aggrieved party has a remedy to assail the basis of his designation as a terrorist by the ATC, still, the remedy may be meaningless, ineffective and an ineffective remedy is no remedy at all. It may be ineffective because the finding of probable cause may be principally based on inadmissible intelligence information or based on classified information. It will be extremely difficult for an aggrieved party to compel the declassification of classified information which he needs to examine to prove an erroneous finding of probable cause by the ATC. Under Section 15 of the ATA, all records of the ATC are subject to security" classification as it may adopt. To be sure, the IRR in its Sections 6.5, 6.6, 6.7, 6.9, 6.10 attempted to remedy this defect of lack of remedy of the aggrieved party against an unlawful designation. These sections, however, are arguably ultra vires and beyond the power of the DOJ to make rules implementing the ATL. They are substantive in character, hence, change the complexion of the ATA. This is the power of lawmaking itself, a power that is non-delegable to the DOJ. There is another area of concern with respect to the freeze orders of AMLC. | call your attention, Your Honors, to the 3rd Paragraph of Section 36. This paragraph deals with freeze order issued by AMLC on assets of persons or organizations which it itself designated as terrorists. The freeze order has a lifetime of 20 days, extendible for a period not exceeding 6 months, the extension to be done by the Court of Appeals. In checkered contrast, the case of freeze orders involving terrorists determined by the UN Security Council and adopted by the ATC has no lifetime. It is good “until the basis for the issuance thereof shall have been lifted.” | cannot plumb the reason for the difference in the lifetime of these two (2) freeze orders. They involve the assets of persons or organizations who are common in the sense that they are all terrorists. When a law makes a distinction when there is no difference, there is a violation of the equal protection clause of the Constitution. Proscription of Terrorists (Sections 26, 27, 28, 36)12 Proscription is the second method by which an organization or group of persons may be listed as a terrorist. Compared with listing by designation, listing by proscription satisfies more the requirements of due process if only for the reason that it is the Court of Appeals that determines whether the listing shall be done. The process of proscription requires the DOJ to file a verified petition, due notice to be given to an affected party, open hearing, and publication of the decision in a newspaper of general circulation. The order granting the petition for listing is valid for three (3) years, subject to automatic view after the lapse of said period. | note, however, that proscription is used only for terrorist organizations, association or group of persons. It is not utilized for individual persons who are listed as terrorists by designation. In listing individual persons by designation under section 25, the process is ex parte and the courts have no checking power to stop abuses or correct wrong designations. Yet more probably than not, the ATA will be used more to brand as terrorist individual persons than organizations or groups of persons. The use of proscription may not be the favored method by the executive authorities considering they have to hurdle the checking power of the judiciary. Indeed, even within the Executive Department, the decision to use proscription has to pass several levels. First, it has to be recommended by the NICA (National Intelligence Coordinating Agency). Second, the recommendation has to be approved by the ATC. By himself, the Secretary of the DOJ cannot resort to this method of proscription. Again, the question may be asked why the disparity in treatment? Should not the ATA treat alikes13 as alike and the unalikes as unalike, otherwise there is breach of the principle of equal protection? Detention Without Judicial Warrant Under Section 29 of the ATA, the ATC authorizes in writing any law enforcement agent or military personnel to take to custody: (a) any person suspected of and (b) any member of proscribed group committing any of the acts defined under sections 4 to 12 of ATA. By virtue of this warrant by the ATC, a suspect can be detained for a period of 14 days which can be extended for a maximum of 10 more days if it is established: (1) it is necessary to preserve evidence related to terrorism or complete the investigation; (2) is necessary to prevent the commission of another terrorism, and (3) the investigation is being conducted properly and without delay. The ATA also enumerates the rights of the detainee such as notice of his arrest to be given to the nearest judge, ATC and CHR, right to counsel, to Miranda warnings, visitation, etc. The question that confronts us is whether the ATA erodes the protection of existing rights of arrested persons. Consider the following: 1. The warrant is issued by the ATC, an executive functionary Under present legal regime, a warrant of the arrest is issued by a judge. And it is issued by a judge, upon application by a prosecutor who has independently evaluated the evidence of14 guilt of the respondent in the exercise of quasi-judicial function. These two (2) levels of protection appear to have been taken away and given to the ATC, a body that cannot exercise judicial power. Under present law, an accused has a more effective way of assailing the validity of a warrant of arrest. First, he can do so while under investigation by an arresting policeman. If he is able to convince the police investigator that there is no legal reason to arrest him, he goes scot free. If he fails, his next remedy is before an independent prosecutor. He can present proof before the independent prosecutor that he did not commit any crime and should not be detained. If he succeeds, again he is released. If he fails, he has a third chance. He can convince the judge with jurisdiction over the case not to issue a warrant of arrest against him for lack of probable cause that he committed the crime charged. His chance with the judge is better because the judge can look at the case with more impartiality. Under the ATA, the alleged terrorist appears to have lost all these levels of protection. The law enforcement agent or military personnel has no power to investigate for his exclusive order is to arrest the suspect. Likewise, the prosecutor and the judge have no role to Play in the arrest of the suspect. Indeed, how can a prosecutor have a role when the Secretary of Justice is a member of the ATC that ordered the arrest.3. a 15 Under existing law, the process of investigation by the police, as well as the proceedings before the prosecutor and the judge are open and adversarial in character. Under ATA, the proceedings are ex parte, secret and inquisitorial in nature. A suspect will not know how the ATC arrived at the conclusion that he is a terrorist. Under existing law, an accused will be issued a warrant of arrest only upon a finding of probable cause against him as established by evidence admissible under the Rules of Court. Under the ATA, the ATC can order the arrest on mere suspicion that a person is committing terrorism. As a standard, suspicion is different from probable cause. Under existing law, the period of detention is set in Section 125 of the Revised Penal Code (RPC): 36 hours when the penalty for the crime is afflictive, or capital penalties, or their equivalent, 18 hours when the penalty is correctional and 12 hours when the penalty is light. The period of detention therefore varies and escalates according to the seriousness of the crime committed. Under the ATA, the period of detention is longer —-- 14 days and extendible for a maximum of 10 more days. The length of detention is uniform regardless of the act committed as constituting terrorism. The detention will most probably be extended considering the grounds that may be relied upon: i.e., to preserve the evidence, to complete the investigation, and to prevent the commission of another terrorism. The extension will16 also be decided by the same ATC that issued the warrant of arrest. 2 Under present law, an accused who has been charged in court and issued a warrant of arrest by a judge, can still prevent his detention during the trial of his case by posting bail. Under Art. IL, Sec. 13 of the Constitution, this right to bail is denied only to persons charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. The Constitution also provides that the right to bail shall not be impaired even when the writ of habeas corpus is suspended. Under the ATA, there is no provision giving this remedy to a person detained by virtue of a warrant issued by the ATC. Undeniably, there will be cuts on the rights of detainees under our present law. Again, the difficult constitutional question to resolve is how deep can these cuts be allowed on detainees without destroying the essence of their rights. Surveillance of Terrorists (Sections 16, 17, 18, 19, 20, 21, 22, 23 and 24) Let me now go to another major and controversial aspect of ATL... the surveillance of terrorists. The ATA provides three (3) classes of persons who can be the subject of surveillance: (a) between members of a judicially declared and outlawed terrorists organization under Section 26 of the law; (b) between members of a designated person as defined in Section 3(e) of7 RA No. 10168; or (c) any person charged with or suspected of committing any of the crimes penalized under the law. The ATA also provides the scope of the surveillance, i.e., any private communications, conversation, discussion, data, information, messages in whatever form, kind or nature, Excluded from the surveillance are communications between lawyers- clients, doctors and patients, journalists and their sources, and confidential business correspondence. The ATA also provides how the surveillance can be conducted, i.e., secret wiretap, overhear, intercept, read, record or collect thru the use of any type of electronic, mechanical or other device now known or may hereafter known to science or with the use of any other suitable way and means for the purpose. The ATA also provides the procedure how the surveillance order can be given by the Court of Appeals. A law enforcement agent or military personnel authorized in writing by the ATC can file an application ex-parte with the CA, examination under oath or affirmation of the applicant and his witnesses; and CA issues the order ifit finds probable cause to believe based on personal knowledge of facts and circumstances that: (a) the crime defined in the ATL has been committed, or is being committed or is about to be committed or (b) based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for or to the solution or prevention of any such crimes will be obtained. The Order of the CA granting the surveillance is good for 60 days and renewable for another period not exceeding 30 days on ground of public interest. The Order of the CA and the application are deemed classified information. The ATA also provides the procedure when such classified information can be used as evidence against18 the person who was the subject of the surveillance. The DOJ has to file a written application with the CA with notice to the subject person and the CA will act on the application. The ATL also provides that information gathered in violation of the law shall be inadmissible. There are some bothersome points in the surveillance provisions. First, it appears that persons already charged with terrorism can still be the subject of surveillance. The purpose is to gather evidence essential to his conviction. This runs against the conventional thinking that when a person is charged, the State has already the quantum of evidence to convict the person beyond reasonable doubt. For the State to charge a person without that kind of evidence is plain and simple malicious prosecution or harassment, at the very least. Also, such a surveillance done without the knowledge or consent of the court trying the case may violate its jurisdiction over the person of the accused. The violation gets more complicated since the order of surveillance is issued by a superior court. It may be difficult for a trial court to rule against the admissibility of evidence procured by such surveillance when it is a superior court that ordered its taking. Does the taking of such evidence thru surveillance while the case is ongoing, give any undue advantage to the prosecution? Second, the subject information can be taken “with the use of any mode, form, kind or type of electric, mechanical or other equipment or device or technology now known or may hereafter be known to science or with the use of any other suitable ways and means...” It appears to me that to allow surveillance by means still unknown to science or by any other suitable way19 and meansis an overkill. Such unknown means may completely ruin the right to privacy but the ATA is allowing it in advance. Yet under the Internal Rules made by the DOJ, the processing of personal data for the purpose of surveillance shall adhere to the principle of proportionality which eschews undue severity in the use of means to gather information. (Rule 5:25) Second, the ATA allows the Prosecution to use the information gathered thru surveillance as evidence against the subject person. The subject person is given notice of the application made by the DOJ. However, the ATA is silent on the procedure that should be followed by the CA to resolve the application. It is also silent as to the grounds that can be used by the subject person to block the use of the information as evidence except that the information was secured in violation of the Act. It is silent on whether the subject person can be given access to classified information used by the CA in issuing the Order granting the application for surveillance. These gaps in the law may render ineffective whatever remedy is given to the subject person to exclude as evidence the information gathered against him. CONCLUSION The resolution of the 37 petitions at bar will certainly lead to the adjustment of the existing balance between the rights of an individual against the right of the state to safeguard the security of our people. The ATA has changed the legal approach of the government to check the particular crime of terrorism. Heretofore, our laws towards crime is essentially punitive, i.e., prosecute violations of our criminal laws and penalize the violators. ATA's approach is more radical when the crime involved is terrorism. The20 government is allowed to take preventive measures to stop the violation from happening and for this purpose the government is given new tools such as detention and surveillance of suspects. To complicate the problem, the United Nation Security Council has passed binding resolutions on its member-states on how to contain terrorism imposing sanctions that carry legal, political, economic and diplomatic dimensions. How to move the balance between individual rights and national security in light of the threats of terrorism will not be a walk in the park. The new balance should take into account the architecture of our democratic government laid down in our Constitution, its pillars of separation of powers, checks and balances, inviolability of fundamental rights, the rule of law, the right of the minority against the tyrannicide of the majority, etc. The new balance should also consider the interplay between our Constitution and public international law, including the developing international humanitarian law. At the moment, the point of the balance may remain an incertitude. In due time, however, | have no doubt that given its collective wisdom, the court can capture all the fugitive ideas necessary to fix the point of the needle that will correctly balance the needs of individual rights and the necessities of national security. The balance should not reduce individual rights into insignificance for they are inherent to human dignity. Neither should the balance put an end to the security of the people for they did not enter into a “suicide pact” when they ratified the Constitution. The ideal is for us to be ) Cc) D> ---000--- Ke WV \ Vw both free and safe.