The Supreme Court (SC) declared that in resolving cases on the anti-terrorism law, the judicial rules must be “responsive to the need of protecting individual fundamental freedoms while allowing the State effective law enforcement for the protection of the public.”
Thus stressed the SC through Chief Justice Alexander G. Gesmundo on Wednesday, May 3, in his speech before the participants in the dialogue on the proposed judicial rules on anti-terrorism and counter-terrorism financing cases.
The dialogue until Friday, May 5, is being held in Mandaue City in Cebu. It is conducted with the help of the Australian Embassy, the United Nations Office on Drugs and Crime (UNODC) and the Asia Foundation.
Retired Chief Justice Reynato S. Puno is the chairperson of the Ad Hoc Committee for the Formulation of the Special Rules of Procedure on Anti-Terrorism Cases. The committee drafted the rules.
Thirty-seven petitions were filed challenging the constitutionality of Republic Act No. 11479, the Anti-Terrorism Act (ATA) of 2020. ATA was enacted on July 3, 2020 and enforced starting July 18, 2020.
On Dec. 7, 2021, the SC handed down a decision which ruled as constitutional almost all the provisions of ATA. The decision became final on April 22, 2022.
Declared unconstitutional by the SC were:
1. “The qualifier to the proviso in Section 4 of RA 11479, i.e., ‘... 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’ by a vote of 12-3 is declared as unconstitutional for being overbroad and violative of freedom of expression.
2. “The second method for designation in Section 25 paragraph 2 of RA 11479, i.e., ‘Request for designation by other jurisdictions or supranational jurisdictions may be adopted by the ATC (Anti-Terrorism Council) after determination that the proposed designee meets the criteria for designation of UNSCR (United Nations Security Council Resolution) No. 1373.’”
The SC ruled that “on the basis of the current petitions, all the other challenged provisions of RA 11479 are not unconstitutional.”
It stressed the “immense responsibility” of the government to defend the country against terrorism as well as the noticeably improving capabilities of terrorists to wreak havoc through weapons of mass destruction.
The SC has drafted the rules of procedure in the handling of anti-terrorism case. It decided to hold a dialogue to get feedbacks from various stakeholders.
In his message, Chief Justice Gesmundo said “it became imperative to provide for a set of procedural rules to protect the fundamental rights of persons and entities from the ill effects brought about by abuses in the implementation of inherently overbroad penal statutes.”
He said the SC “found it necessary to promulgate a procedural framework both to demarcate a zone of legitimacy for acts by law enforcers as well as to delineate judicial reliefs against potential abuses of state agents.”
“Creating a procedural framework to balance effective law enforcement and protection of fundamental rights is akin to walking on a legal tightrope,“ he said.
He pointed out: “Procedures that lean heavily in favor of law enforcement will expose the fundamental rights of persons to the danger of abuses; while those that lean intensely in favor of liberties will expose the population’s lives and safety to the devastating effects of terrorism.”
“In this context, the ‘Rule of Law,’ as expressed in the proposed judicial rules on anti-terrorism cases, aims to protect the public’s right to life and safety and the individual civil liberties – both essential for the enjoyment of the blessings of democracy as espoused by the Constitution. After all, public interest is but an aggregate of private interests – all of which deserve equal protection,” he stressed.
At the same time, Gesmundo pointed out that “terrorism, as a crime with varying definitions, is commonly understood as a systematic attack with the use of fear and violence tending to undermine the stability of established governments, usually with the appearance of spontaneity that produces widespread and devastating effect on the populace and vital institutions.”
Due to terrorism’s “cataclysmic effect and unpredictability, the United Nations Security Council issued several resolutions calling for preventive measures, he said.
The Philippine Congress, he said responded by updating the Human Security Act (HSA) of 2007 and enacting the Anti-Terrorism Act of 2020.
Gesmundo said the SC “encountered compelling concerns on the protection of due process rights in some sections of the ATA which provide for ex parte proceedings such as surveillance authorizations, designations, bank inquiries, and freeze orders.”
“In these proceedings, the rights of those in absentia are vulnerable to unjustified State intrusions – especially privacy rights. This is the reason why the principle of ‘effective judicial protection’ has been made to apply in ex parte proceedings of the ATA to afford adequate protection of the absentee’s fundamental rights. Consistent with the previous concern on perceived absence of remedies in some parts of the ATA, the proposed rules on anti-terrorism cases provide various reliefs against wrongful ex parte actions, either by the State or by the courts themselves,” he said.
He also said that with the rapid advancement of technology, “we recognize the need to allow a more proactive approach to security to prevent terrorist activities.”
But he said that “while we accept the necessity for urgent and enhanced security measures, these must be done within the confines of the law, with proper checks and balances, to guarantee that there is no undue or excessive intrusion to our rights and freedoms.”
He stressed that “true to its mandate, the Supreme Court is here to ensure that any measure in this regard will be based only on clear legal authority and must adhere strictly to proper procedure.”
He expressed hopes that “the members of the judiciary as well as other stakeholders invited in this activity will share their concerns on the substantive laws and their suggestions on judicial procedures so that the proposed ATA Rules can, all the more, achieve its objective of protecting fundamental rights under the backdrop of effective law enforcement.”