Justices grill petitioners on defining terror

Two magistrates of the Supreme Court on Tuesday cast doubts on the assertions of the petitioners that the definition of terrorism under Republic Act 11479 or the Anti-Terrorism Act of 2020 is vague and thus violative of the people’s constitutional rights, such as freedom of speech and expression.

Chief Justice Diosdado Peralta and SC Associate Justice Ramon Paul Hernando disagreed with the petitioners’ contention on that vagueness of the definition of the terrorism under Section 4 of the anti-terrorism law and that it penalizes dissent unless the protesters go on a rampage.

Peralta also hinted on the necessity of amending Article 125  of the Revised Penal Code, which gives arresting officers a maximum of 36 hours to file a case against a person arrested and being detained without an arrest warrant.

During the continuation of the oral arguments on the 37 petitions seeking to declare as unconstitutional the anti-terror law, petitioners insisted on the unconstitutionality of Section 25 of the law, among other provisions,  which allows detention of a suspected terrorist without a judicial warrant up to 14 days from the time of detention which may be extended for 10 days.

They  argued that  Section 4 of the ATA has expanded the definition of terrorism by removing predicate crimes and instead listed five offenses with vague wordings such as “acts intended to cause extensive interference with critical infrastructure.”

The petitioners maintained that this would make it  easy for the government to penalize any form of dissent, putting activists at most risk.

However, Peralta noted that there are provisions in existing laws that also punish preparatory acts of crime, such as crime of proposal and conspiracy to commit a crime of treason, a crime of proposal and conspiracy to commit a crime of coup d’ etat and crime of conspiracy of sedition

“All these acts are preparatory acts and these are not new. These have been there since 1932 when the Revised Penal Code was crafted. If the ATA  now provides as preparatory acts as crimes are these provisions now void?” Peralta asked human rights lawyer Jose Manuel Diokno, one of the counsel and petitioners in the case, during the interpellation.

Diokno argued that the ATA “does not employ the terminology preparatory acts  as it simply says acts intended to “and that gives us  a whole broad possible interpretation.”

With regard to the longer detention of persons arrested under the ATA without an arrest warrant,  Peralta indicated that  such provision might now be necessary since Article 125 of the RPC was introduced as early as 1932.

“When the 36 hour or the periods provided for in the Article 125, this provision was introduced as early as 1932 and probably the population of the country was even less than one million.  So it was very easy to deliver a person arrested without a warrant within the period of 36 hors, there was no traffic then,” the Chief Justice said.

The top magistrate also noted that based on experience cases are filed hastily before the courts because of the  restrictive period of 36 hours. 

 

But Rep. Edcel Lagman, also a counsel-petitioner in the case, emphasized that the 36-hour period to detain a person without a warrant  remains “a good law” which is consistent with the country’s undertaking under international  conventions that mandates the prompt delivery to a judiciary authority of any person taken into custody.

“Protection of fundamental rights should not be capsulized in the time-frame. Such guarantees are immutable and it should be respected under all regimes and under all eras,” Lagman argued.

For Peralta, even if there is no 14-day provision under Section 29 of the ATA,  Article 125 of the RPC  should still be  amended because it is already obsolete.

“That has never been amended  since 1932, and you can just imagine a person arrested without a warrant, for murder, what are the requirements that should be filed? There is the autopsy, witnesses accounts, if there were objects recovered from the scene of the crime they will be referred to examiners…How can they file the case within 36 hours?,” Peralta pointed out.

For his part, Hernando disagreed with the petitioners that the Anti-Terrorism Act penalizes dissent unless the protesters go on a rampage.

This came after former Bayan Muna Rep. Neri Colmenares, as lawyer for one of the 37 petitioners seeking to declare the anti-terrorism law as unconstitutional, argued that Section 4 of RA 11479 may be used to penalize dissent as an act of terrorism.

Section 4 of RA 11479 exempts “advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights” from the definition of terrorism, but with caution that these “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.”

“We allege that the purpose is to actually include dissent and chill people from dissenting because the moment you exercise your civil and political rights we can impute intention of harm to you and you can be detained for 24 days, which is a punishment in itself,” Colmenares told SC justices during the resumption of the oral arguments on the anti-terrorism law.

“I don’t know if the Congress intended this, but they actually admitted in the law that the exercise of civil and political rights can become a terrorist act. Instead of a safeguard, Your Honor, they expressly included that,” Colmenares warned.

Hernando disagreed with Colmenares’ interpretation, saying the law expressly excluded dissent, protest, and advocacy from acts that constitute terrorism.

“I don’t think it should be construed that way because the proviso uses the word ‘not.’ So, it’s exclusive, not inclusive,” Hernando stressed.

“That’s a warning to a law enforcer that he should not interfere with [a] group’s advocacy, dissent, et cetera, except when the law enforcer would see that the act transitions into something more sinister like already setting on fire the houses, killing people, et cetera,” the magistrates said.

But Colmenares insisted that the provision was problematic.

“The fact that it can be used against people setting fire and it can be used against people not setting fires, that’s the problem with this law,” the former lawmaker pointed out.

The petitioners have argued that the absence of standards gives law enforcement wide discretion to determine whether advocacy, protest, and mass actions are intended to cause death or harm to a person, among others, as defined by the law.

Meanwhile, Lagman reiterated their plea for the high court’s action on the issuance of a temporary restraining order to enjoin the implementation of the ATA, citing the arrest of 26-year-old activist Chad Booc, one of the petitioners in the case.

Booc was arrested last February 15 along with five others during a police raid on the retreat house hosting Lumad children at the University of San Carlos in Cebu.

Booc and his companions are being accused of training 19 minors in their custody to be “child warriors” for the communist group.

Lagman informed the tribunal that petitioners and their counsels are seriously threatened with prosecution under the ATA.

“All this would underscore the chilling effect of the ATA, which cows citizens into silence and are restrained or precluded from exercising their freedom of expression,” Lagman said.

Because of this, Peralta directed Lagman to put into writing his reiteration of the issuance of the TRO in order for the Court to give the Office of the Solicitor General comment on the motion.

At the end of the oral argument, Peralta decided to give the OSG 10 days to  submit its comment on the plea. 

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