TWENTY-SIX petitioners yesterday asked the Supreme Court to reconsider its December 7 ruling upholding the constitutionality of the controversial Anti-Terrorism Act of 2020.
In their joint motion, the petitioners highlighted clauses in the law that were decided narrowly by the justices in their ruling, including the so-called ambiguous recruitment clause under Section 10 and the arbitrary mode of designation in Section 25.
The SC voted 12-3 to strike down the “killer proviso” on Section 4 of the ATA that defines terrorism for being “overbroad and violative of freedom of expression.”
The 26 petitioners, out of the 37 groups that originally questioned the ATA, said it was a small consolation considering that the justices upheld most of the contentious provisions of the ATA such as Section 10 and Section 25.
The justices also affirmed Section 29 which deals with warrantless arrest and prolonged detention of up to 24 days.
The 26 filed the motion for reconsideration through their lawyers led by Antonio Laviña, Howard Calleja, Virginia Suarez and Neri Colmenares,
Calleja told reporters in a virtual press briefing they are hoping the justices would reconsider its decision.
“That is why we are citing our jurisprudence, the law, and our rights to knock on the good senses of the justices that they would take a second look not for any other reason, but for the benefit of the Filipino nation, and the institution,” Calleja said though he and the other petitioners did not identify the justices who they think might switch votes.
Laviña asked the justices to “consider the deadly consequences”of the law as he cited the case of one of his clients, Chad Booc, who was killed in an alleged encounter with Army troopers in Davao de Oro province. He said Booc, a Lumad teacher, has been consistently “red-tagged” by the authorities for years.
He stressed that the “baseless” designation as terrorists have deadly consequences and could be abused by authorities on the ground.
“He was among the best and brightest pero tinawag siyang terorista at ngayon ay patay na. There is a need for the SC to look at the deadly consequences of this,” Lavina said.
Colmenares also cited Booc’s death as well as the arrest of activist Agnes Mesina.
“We have seen so many victims of red-tagging who have made the supreme sacrifice,” Colmenares said, adding that there is no need for the ATA as there are many laws to deal with terrorism.
He added that the ATA was passed to deal with dissenters and those who opposed the government.
“The ruling granted the government and the Anti-Terrorism Council extremely horrible powers that makes the latter a very dangerous body especially under this intolerant administration,” Colmenares said.
The petitioners, on Section 10, want the SC to reverse its ruling upholding the provision, particularly on the third instance of membership which seeks to punish a person who “shall voluntarily and knowingly join any organization, association or group of persons knowing that such organization, association or group of persons is organized for the purpose of engaging in terrorism.”
It was the opinion of Chief Justice Alexander Gesmundo which prevailed on the said provision with a 9-6 voting.
Then Associate Justice Rosmari Carandang, the ponente of the decision, held that the third paragraph of Section 10 failed to give persons due notice on what they should avoid while giving law enforcers wide latitude, even unrestrained restrictions, in determining which group was organized for the purpose of engaging in terroristic activities, thereby making it susceptible to abuses on the ground.
On Section 25, the petitioners said Gesmundo again did not use the strict scrutiny test to analyze the third mode of designation which authorizes the Anti-Terrorism Council (ATC) to designate groups or persons as terrorists. The ATC is composed of officials from the Executive branch of the government.
They said the court “has consistently held that strict scrutiny is the governing level of judicial scrutiny for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.”
Carandang was again outvoted on this 7-8 with Gesmundo’s opinion again prevailing on the matter.
On Section 29, the petitioners disagreed with Carandang’s ponencia that the written authority of the ATC does not authorize law enforcers to apprehend a person but only prolong his or her detention for up to 24 days.
They said aside from being overbroad, the ATCs power is also violative of the Constitution as only the courts can issue a warrant of arrest or order the arrest and detention of a person.
“However, Section 29 of the ATA destroys the two safeguards in the 1987 Constitution to guarantee the protection against unreasonable arrests: first, that only a judge can issue warrants of arrests, and second, that warrants of arrest must be issued only upon probable cause,” they added.
They also said that if in an extreme emergency situation, the Constitution only allows the detention of a suspect for not more than 72 hours, then the more that no person should be arrested and detained under the ATCs designation for up to 24 days unless they are charged in court.
Carandang has already retired from the SC with her post taken by former Comelec commissioner Antonio Kho Jr.
The Free Legal Assistance Group also filed a supplemental motion focusing on additional questions related to Section 9 on inciting to commit terrorism.
