BASTION OF RIGHTS The Supreme Court building in Ermita, Manila. INQUIRER file photo / EDWIN BACASMAS
MANILA, Philippines–Two retired magistrates gave opposing views on the petitions questioning the legality of the Anti-Terrorism Act of 2020 (ATA).
For retired Chief Justice Reynato Puno, the Supreme Court should resolve the case by striking a balance between protecting individual rights and national security but for retired Associate Justice Francis Jardeleza, the petitions should be dismissed for violating the hierarchy of courts.
Puno and Jardeleza have been designated by the Supreme Court to the “amici curiae” or “friends of the court” whose point of views will be taken into consideration by the tribunal in deciding on the 37 petitions against ATA.
“Your Honors, we are to seek the right balance between individual liberty and national security. This is not the case of all or nothing matter but a matter of more or less,” Puno told the High Tribunal.
“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 both free and safe,” Puno said.
The retired magistrate said there were provisions in the ATA that he considers as a matter of “constitutional concern.”
On Designation
Among these provisions are Sections 25, 35, 36, 38, and 41 with respect to the designation of terrorists and the power of the Anti-Money Laundering Council (AMLC) to order the freezing of their assets.
He questioned the Anti-Terrorism Council’s automatic adoption of the list of terrorists that comes from the UN Security Council (UNSC).
“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 former Chief Justice told the Court.
“The standard of fairness in the listing process should be our legitimate concern. The criteria that guided the Security Council in preparing the blacklist 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,” Puno elaborated.
Another concern raised by Puno dwells on ATC’s authority to determine the person or organization to be designated as terrorists based on probable cause.
Puno’s concern was anchored on the lack of express provision in the ATA that allows aggrieved parties to question the factual basis of the designation made by ATC.
On arrest and detention
Under Section 29 of the ATA, or the arrest without judicial warrant and detention for up to 24 days, Puno said: “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.”
Puno said for a person to be arrested, there has to be a probable cause established first by the prosecutor and second, by the judge.
“These two (2) levels of protection appear to have been taken away and given to the Anti-Terror Council, a body that cannot exercise judicial power,” said Puno.
“Under the Anti-Terror Act, the alleged terrorist appears to have lost all these levels of protection,” said Puno.
Government’s new tools vs terrorism
Puno said through the ATA, the government’s “radical approach” towards terrorism is boosted with new tools in dealing with the crime.
The retired chief magistrate is referring to Sections 16 to 24 on conducting surveillance operations against terrorists.
He said, the provisions are “bothersome” because of the continued surveillance even if the suspect has already been charged.
“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,” Puno said.
Jardeleza’s point of view
Meanwhile, for Jardeleza, the petitions should be dismissed on the grounds of lack of legal standing, the Court is not a trier of facts and there was a violation of hierarchy of courts.
“While a case for ‘pre-enforcement review’ of a criminal statute is possible, the same is allowed solely on grounds of vagueness. Since none of the petitioners has sought to avail of this exception, I humbly submit that …37 petitions should be dismissed,” Jardeleza said.
He added that cases presenting factual issues, such as the alleged torture of Aetas Japer Gurung and Junior Ramos, should be tried first under the doctrine of hierarchy of courts – before the lower court first, then the Court of Appeals before reaching the Supreme Court.
“Petitioners cannot short-circuit this process by simply invoking the ‘transcendental or paramount’ importance of their case,” he explained.
While Jardeleza admitted that there are civil liberties involved in the petitions, he said the facts given are insufficient to make a ruling.
“My point: Judges of the RTC and justices of the Court of Appeals are not only equipped to receive and ascertain the facts for this Court, they also, in their own right, make constitutional law,” the former magistrate said.
“I think it is time we start hearing from them by giving them the first crack at cases such as these,” he added.