Calleja vs.

Executive Secretary
G.R. No. 252578. December 07, 2021

On July 3, 2020, President Duterte signed R.A. No. 11479, otherwise known as the Anti-Terrorism Act (ATA) where 37 separate Petitions for
Certiorari and/or Prohibition have been filed before the Supreme Court to challenge the ATA and prevent its implementation.

The nine (9) critical questions identified as the core issues involved are the following:
1. Whether to grant due course to 35 out of 37 petitions;
2. Whether a facial challenge or an as applied challenge should be used in analyzing the ATA;
3. Whether the "Not Intended Clause" in the proviso of Section 4 is constitutional;
4. Whether the phrase "organized for the purpose of engaging in terrorism" in the third paragraph of Section 10 is constitutional;
5. Whether the first mode of designation under Section 25 is constitutional;
6. Whether the second mode of designation under Section 25 is constitutional;
7. Whether the third mode of designation under Section 25 is constitutional;
8. Whether the provisions on proscription in Sections 26 to 28 are constitutional; and
9. Whether Section 29 on arrest and detention without judicial warrant is constitutional.

Justice Rosmari Carandang (Ponente)

Issue 1: There are serious and compelling reasons justifying direct resort to this Court. Genuine issues involving the constitutionality of the ATA are
raised in the petitions which must be immediately addressed. Various constitutional provisions safeguarding the right to free speech and its cognate rights
have been invoked in challenging the law. The far-reaching implications, which encompass both present and future generations, if these constitutional
issues remain unresolved, warrant the immediate action of this Court. While the intention of the legislature in enacting the ATA is noble and laudable, this
Court cannot simply brush aside the perceived threats to fundamental rights that petitioners raised. The necessity of resolving these pressing issues
affecting fundamental rights is clear.

Issue 2: In constitutional litigation, two modes of challenging the constitutionality of a statute have emerged: "as-applied" and "facial." Petitioners came
to this Court through the latter mode, seeking to nullify the entirety of the ATA even before it could be enforced.
In an as-applied challenge, the question before the Court is the constitutionality of a statute's application to a particular set of proven facts as applied to
the actual parties. While, Philippine jurisprudence has described a facial challenge as "an examination of the entire law, pinpointing its flaws and defects,
not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before
the court to refrain from constitutionally protected speech or activities.

In the case at bar, the Court grants due course to these consolidated petitions as permissible facial challenges only in relation to the provisions of the ATA
which involve and raise chilling effects on freedom of expression and its cognate rights in the context of actual and not mere hypothetical facts.

Issue 3: Petitioners' claim of overbreadth on the main part of Section 4 fails to impress. A careful scrutiny of the language of the law shows that it is not
overbroad since it fosters a valid State policy to combat terrorism and protect national security and public safety, consistent with international instruments
and the anti-terrorism laws of other countries.

Section 4. Terrorism. - Subject to Section 49 of this Act, terrorism is committed by any person who, within or outside the Philippines, regardless of
the stage of execution:

(a) Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person's life;

(b) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;

(c) Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;

(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological or chemical
weapons; and

(e) Release of dangerous substances, or causing fire, floods or explosions

xxxx

Section 4's proviso, however, is a different story. It states:

Provided, That, terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other
similar exercises of civil and political rights, 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.296 (Emphasis supplied)
As such, the Court agrees with petitioners that the proviso's "Not Intended Clause" is void for vagueness as it has a chilling effect on the average person.
Before the protester can speak, he must first guess whether his speech would be interpreted as a terrorist act under Section 4 and whether he might be
arrested, indicted, and/or detained for it. They will have to contend whether the few hours they would spend on the streets to redress their grievances
against the government is worth the prospect of being indefinitely incarcerated, considering that terrorism under Section 4 would be an unbailable offense
as per Section 7, Rule 114 of the Rules on Criminal Procedure.307 The danger of the clause is made graver by the fact that by shifting the burden to the
accused to explain his intent, it allows for law enforcers to take an "arrest now, explain later" approach in the application of the ATA to protesters and
dissenters-only that it must be the latter who does the explaining, which makes it even more insidious. The chilling effect created by the aforesaid vague
clause is sharply brought to the fore in this case especially when one considers the ATA's provisions on designation, proscription, and arrest and detention.
The vagueness of such provision is likely to result in an arbitrary flexing of the government muscle, which is equally aversive to due process.

Issue 4: The phrase "organized for the purpose of engaging in terrorism" under Section 10 must be struck down for being vague, overbroad, and for
failing to meet the strict scrutiny test. It also violates the freedom of association.

To expound, the phrase "organized for the purpose of engaging in terrorism" under the third instance is impermissibly vague. In the context of penalizing
a person's alleged membership in a terrorist organization, association, or group, there is nothing in the law which provides rules or guidelines to determine
and verify the nature of said organization, association, or group as one "organized for the purpose of engaging in terrorism". Even the Senate
deliberations on the provision fail to provide guidance or standards for this purpose. Without any sufficient or discernible parameters, the third instance of
membership penalized under Section 10 would necessarily fail to accord persons fair notice of what conduct they should avoid, and would give law
enforcers unrestrained discretion in ascertaining that an organization, association, or group was organized for the purpose of engaging in terrorism. The
Court agrees with petitioners that charges under this instance would be very easy to fabricate, since the lack of standards may give law enforcers free rein
in determining which groups are so-called "organized for the purpose of engaging in terrorism".

NOTE: On this issue, the majority declared the subject phrase not unconstitutional. This portion of the ponencia holds the opinion of only six (6) members
of the Court and not the controlling resolution on the issue. The controlling opinion on this issue is found in the opinion of Chief Justice Gesmundo.

Issue 5: The first mode of designation is a constitutionally acceptable counterterrorism measure under Section 25.

The first paragraph of Section 25, which contains the first mode of designation, states:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. - Pursuant to our obligations under United Nations
Security Council Resolution (UNSCR) No. 1373, the ATC shall automatically adopt the United Nations Security Council Consolidated List of designated
individuals, groups of persons, organizations, or associations designated and/or identified as a terrorist, one who finances terrorism, or a terrorist
organization or group. x x x
The first mode of designation is but an implementation of the country's standing obligation under international law to enforce anti-terrorism and related
measures, and the Court is not convinced that the automatic adoption by the ATC of the designation or listing made by the UNSC is violative of the due
process clause or an encroachment of judicial power. 

Issue 6, 7: In contrast to the first mode, the second and third modes of designation, as provided under the second and third paragraphs of Section 25,
are constitutionally problematic, and must be struck down.

While the State has established a compelling interest, the means employed under the second mode of designation is not the least restrictive means to
achieve such purpose.

The second mode of designation under Section 25 states:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. - x x x

Request for designations by other jurisdictions or supranational jurisdictions may be adopted by the ATC after determination that the proposed designee
meets the criteria for designation of UNSCR No. 1373. (Emphasis and underscoring supplied)

The means employed are not the least restrictive nor narrowly tailored to achieve the State's compelling interest. Under this second mode of designation,
unbridled discretion is given to the ATC in granting requests for designation based on its own determination. Likewise, there appears to be no sufficient
standard that should be observed in granting or denying such requests. The ATC is left to make its own determination based loosely on "the criteria for
designation of UNSCR No. 1373," without any further sufficient parameters for its guidance. This may therefore lead to a quid pro quo designation with the
requesting jurisdiction at the expense of the rights of a prospective designee.

The third mode of designation also fails to meet the strict scrutiny test and is overly broad.

The process for the third mode of designation is as follows:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. —

xxxx
The ATC may designate an individual, group of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that
the individual, group of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the acts defined and
penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act. x x x (Emphases and underscoring supplied)

Similar to the two previous modes of designation, there is a compelling state interest in introducing the third mode of designation - that is, to aid the
State in combating domestic terrorism. However, same as the second mode of designation, the means employed by the State are not narrowly drawn to
meet such interest.

To explain, under the third mode, it is the ATC that makes an executive determination of probable cause, and not a judicial court. Same as in the second
mode of designation, however, there are no proper procedural safeguards and remedies for an erroneous designation under the third mode, thereby
creating a chilling effect on speech and its cognate rights and unduly exposes innocent persons to erroneous designation with all its adverse
consequences.

Issue 8: Proscription under Sections 26, 27, and 28 of the ATA is a valid exercise of police power and passes the strict scrutiny test.

Section 26. Proscription of Terrorist Organizations, Associations, or Group of Persons. - Any group of persons, organization, or association, which commits
any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, or organized for the purpose of engaging in terrorism shall,
upon application of the DOJ before the authorizing division of the Court of Appeals with due notice and opportunity to be heard given to the group of
persons, organization or association, be declared as a terrorist and outlawed group of persons, organization or association, by the said Court.

The application shall be filed with an urgent prayer for the issuance of a preliminary order of proscription. No application for proscription shall be filed
without the authority of the ATC upon the recommendation of the National Intelligence Coordinating Agency (NICA).

Section 27. Preliminary Order of Proscription. - Where the Court has determined that probable cause exists on the basis of the verified application which is
sufficient in form and substance, that the issuance of an order of proscription is necessary to prevent the commission of terrorism, he/she shall, within
seventy-two (72) hours from the filing of the application, issue a preliminary order of proscription declaring that the respondent is a terrorist and an
outlawed organization or association within the meaning of Section 26 of this Act.

The court shall immediately commence and conduct continuous hearings, which should be completed within six (6) months from the time the application
has been filed, to determine whether:

(a) The preliminary order of proscription should be made permanent;

(b) A permanent order of proscription should be issued in case no preliminary order was issued; or
(c) A preliminary order of proscription should be lifted. It shall be the burden of the applicant to prove that the respondent is a terrorist and an outlawed
organization or association within the meaning of Section 26 of this Act before the court issues an order of proscription whether preliminary or permanent.
The permanent order of proscription herein granted shall be published in a newspaper of general circulation. It shall be valid for a period of three (3) years
after which, a review of such order shall be made and if circumstances warrant, the same shall be lifted.

Section 28. Request to Proscribe from Foreign Jurisdictions and Supranational Jurisdictions. - Consistent with the national interest, all requests for
proscription made by another jurisdiction or supranational jurisdiction shall be referred by the Department of Foreign Affairs (DFA) to the ATC to
determine, with the assistance of the NICA, if proscription under Section 26 of this Act is warranted. If the request for proscription is granted, the ATC
shall correspondingly commence proscription proceedings through DOJ.

To reiterate, the counterterrorism measure of proscription was enacted in line with the State's efforts to address the complex issue of terrorism in the
country, especially since the most egregious terrorist attacks recently made have been planned and carried out by groups. In certain cases, several groups
may even form a network where information and resources are shared across jurisdictions. An attack carried out in the Philippines may have been planned
by a foreign group. Conversely, an attack to be carried out in a foreign state may be planned here by a domestically grown group. On that basis, the state
has as much a reason to impose limits on the freedoms of a group as on the freedoms of an individual, even to the point of outlawing that group
altogether. There is, therefore, no question that there is a compelling State interest or lawful purpose behind proscription. Likewise, in satisfaction of strict
scrutiny and overbreadth, proscription under Sections 26, 27, and 28 constitutes as a lawful means of achieving the lawful State purpose considering that
it provides for the least restrictive means by which the freedom of association is regulated.

Issue 9: Section 29 of the ATA passes strict scrutiny and is not overly broad.

Section 29. Detention without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any
law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of
committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, shall, without incurring any criminal liability for
delay in the delivery of detained persons to the proper judicial authorities, deliver said suspected person to the proper judicial authority within a period of
fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by
the law enforcement agent or military personnel. The period of detention may be extended to a maximum period of ten (10) calendar days if it is
established that (1) further detention of the person/s is necessary to preserve evidence related to terrorism or complete the investigation; (2) further
detention of the person/s is necessary to prevent the commission of another terrorism; and (3) the investigation is being conducted properly and without
delay.

It is clear that the arrest and detention contemplated in Section 29 does not divert from the rule that only a judge may issue a warrant of arrest. This is
confirmed by Rule 9.2 of the ATA IRR which, again as observed above, replicates the enumeration in Section 5, Rule 113 relative to the crimes defined
under the ATA. Without a doubt, when the circumstances for a warrantless arrest under Section 5, Rule 113 or Rule 9.2 are not present, the government
must apply for a warrant of arrest with the proper court.

Therefore, contrary to the claim of petitioners, the written authorization contemplated in Section 29 does not substitute a warrant of arrest that only the
courts may issue. On this score, the OSG has stressed during the oral arguments that the written authorization in Section 29 is not a judicial warrant, as
revealed in the explanation of the government during the oral arguments.
 HOW OTHER JUSTICES DECIDE?
[DECISION MATRIX]

Chief Justice Justice Justice Justice

Alexander Alfredo Marvic Mario Estela
Gesmundo Benjamin Victor Leonen Perlas-
Caguioa Bernabe

CONCURRING OPINION A. R.A No. 11479 Section 4, which defines CONCURRING OPINION
Section 4: and identifies what
1. That Sections 4(a), (b), compromises terrorism 1. The act sought to be
(c), (d), (c); the phrase Unconstitutional penalized under main part
"organized for the purpose  Main part- of section 4 of the ATA
of engaging in terrorism" Overbroad and violative of constitutional must be indispensable
in Section 10; Sections 26 freedom of speech;  Proviso- accompanied by any of
to 28; and Section 29 of Unconstitutional the six (6) listed purpose.
the ATA are not As a vague statute,
unconstitutional; deemed primarily Section 10, which 2. While not all of the
offensive to the right of punishes the recruitment terms used in the main
2. That the first and third due process because to and membership in a part of section 4 of the
modes of designation as persons are not apprised terrorist organization, ATA have been defined in
set out in Section 25 of of what conduct to avoid. must again be the law, their meaning
the ATA are not implemented in deference can be discerned from
unconstitutional. It encourages arbitrary to the intent of the law as common usage, as well as
and erratic arrest and provided in Section 2, case law.
DISSENTING OPINION convictions which by paragraph 2.
nature party could 3. The ATA's definition of
PROCEDURAL ISSUE/s: possibly involve has given  rd
3 paragraph terrorism is consistent
no fair warning. constitutional, with international
1. CJ Gesmundo only to
admit four (4) petitions - Violates the doctrine of Moreover, Leonen instrument.
G.R. No. 253242, G.R. No. Separation of powers; finds it necessary to
252585, G.R. No. 252767, discuss the first two DISSENTING OPINION
and G.R. No. 252768 - as Facially challenged in the paragraphs of
applied challenges; account of issuance of Section 10 as well. Plainly, the contentious
warrants and by this phrase "organized for the
2. The majority vote that means the regular Section 25, which purposes of engaging in
the ATA is susceptible to a enforcer of the law could provides the three modes terrorism" is unreasonably
facial challenge is pursue arrest without due of designation. vague since it fails to
incorrect; process. provide sufficient
That strict scrutiny is the Vague statute;  Unconstitutional, all guidance, on its face,
appropriate level of the 3 modes should whether or not the group
judicial review of the ATA. A vague statute is have been declared covered by the third
unacceptable because it unconstitutional, not instance of membership
SUBSTANTIVE gives law enforcers only the 2nd and 3rd. needs to first commit or
ISSUE/S: unbridled discretion in first attempt to commit
carrying out its provisions Section 26-28, any terrorist act to be
1. That the proviso "which and becomes an arbitrary proscription deemed as "organized" for
are not intended to cause flexing of the Government  Constitutional such purpose.
death or serious physical muscle.
harm to a person, to “Not intended Clause” of Section 29, which There are other suitable
endanger a person's life, its proviso of Section 4; provides for: (a) alternatives which may
or to create a serious risk warrantless arrest and equally aid law
to public safely" in Section Aside for its vagueness detention of persons enforcement agencies in
4 of the ATA is and for being overbroad, suspected of committing the apprehension of
unconstitutional it also fails the strict acts of terrorism under suspected terrorists and
2. That the second mode scrutiny test. Sections 4 and 12; (b) the terrorist groups that are
of designation in Section On the other hand, authority of Anti- far less intrusive and
25 of the ATA is without it - constitutional Terrorism Council to issue potentially injurious to
unconstitutional. written authorizations to protected rights.
B. R.A No. 11497 extend the periods of
Section 25: detention up to 14 days Third mode of designation
 Unconstitutional for a person suspected of is not narrowly tailored to
the acts under Section 4 achieve its compelling
The second and third to 12.) State interest. It is also
modes of designation is plagued with the absence
vague and overbreadth;  Unconstitutional of reasonable safeguards
Anti-Terrorism Council against misuse and abuse
(ATC) issued numerous due to its failure to specify
resolutions in the exercise the proper evidentiary
of its authority to standard upon which a
designate terrorist valid designation under
individuals, groups, this mode may rest.
organizations, or
associations. RE: RED
TAGGING

C. R.A No. 11497

Section 9:
Constitutional –
Agrees with the
Majority

By inciting to Commit
Terrorism follows the
unconstitutionality of
Section 4 of the provision
of R.A. No. 11497, being
mere product of the latter.

D. R.A No. 11497

Section 29:
Unconstitutional
Infringes on the exclusive
power of the judges to
issue warrants, in
violation of the principle of
separation of powers.
Article III, Section 2 of
1987 Constitution;
provides that only judges,
and no one else, may
validly issue warrants of
arrest and search, viz.
Evidently incomplete in all
its essential terms and
condition. It speaks of a
detention without a
judicial warrant of arrest
or, otherwise stated, a
detention effected after
warrantless arrest.