SC Justice Caguioa: Terror law assumes court’s authority on arrest warrants

MANILA, Philippines — The Anti-Terrorism Act of 2020 practically usurped the exclusive authority of the courts to issue an arrest warrant by allowing a body composed of Cabinet members to order the detention of a suspected terrorist up to 24 days, Supreme Court Associate Justice Benjamin Caguioa said on Tuesday.

On the third day of oral arguments on the 37 petitions assailing the terror law, Caguioa said the controversial measure would also necessitate a discussion on the separation of powers of the three coequal branches of government as enshrined in the Constitution.

In his interpellation of lawyer Alfredo Molo III, the magistrate noted that Section 29 of Republic Act No. 11479, or the Anti-Terrorism Act of 2020, authorized the Anti-Terrorism Council (ATC) to issue a “piece of paper” to arrest an alleged terrorist for 10 days and prolong the detention for another 14 days even without approval from a court.

“On one hand, you have a Constitution that says only judges can issue warrants of arrest. But here, this law says that ATC can issue a piece of paper that effectively operates as a warrant of arrest,” Caguioa said.

He said the high tribunal had previously reiterated that Article 3, Section 2 of the Charter declares that only a judge can order the arrest of an individual accused of committing a crime.

“But here [in this law] we have Section 29, which grants the ATC—which is not a court—the power to issue a piece of paper that will effect a deprivation of liberty,” he said.

“In terms of effect, it’s the same. The effect is the same, there’s deprivation of liberty, correct?” he continued. “So if it walks like a duck, quacks like a duck, then it must be a duck.”

Molo, the lawyer for a group of petitioners that included retired Supreme Court Senior Associate Justice Antonio Carpio and former Ombudsman Conchita Carpio-Morales, answered in the affirmative, pointing out that they had actually raised this argument in their petition.

“That’s actually the odious aspect of the law,” Molo told Caguioa.

The lawyer added that the implementation rules drawn up by the Department of Justice actually made this worse as these allowed state forces to detain a person pending the release of a written authority from the ATC.

Petitioners against the antiterrorrism law decried the danger of the law being used against them.

“For the first time in history, petitioners and their counsels are seriously threatened with prosecution under the challenged statute by no less than a military general who is part of the state enforcing the controverted Anti-Terrorism Act,” Albay Rep. Edcel Lagman said.