Chief Justice Alexander G. Gesmundo declared that in resolving cases involving the anti-terrorism law, the courts must strike a balance between the right of the government to protect itself and the fundamental rights of the people.
“Thus, it becomes imperative that in responding to threats of terrorism, the state cannot be overzealous and casually disregard these rights. On the other hand, our courts cannot be overcautious and allow unrestricted exercise of rights which can easily cover and disguise terroristic acts,” the Chief Justice stressed.
Gesmundo’s declarations were contained in his keynote address to members of the judiciary who attended the Training and Capacity-Building for the Implementation of the Rules on Anti-Terrorism Act of 2020 and Related Laws in Pasay City.
The rules on Anti-Terrorism Act (ATA) of 2020 and related law issued by the SC became effective last Jan. 15.
Among the salient provisions of the rules state that law enforcers cannot legally conduct online surveillance like wiretapping of conversations, intercepting social media accounts, and collecting and reproducing images and photographs of suspected terrorist groups or individuals without an order from the Court of Appeals (CA).
The CA order, if issued within 72 hours from the termination of the summary proceedings on the surveillance petition, may also require telecommunication firms and internet providers to provide the needed data sought by law enforcers.
Also, suspected members of terrorist groups and individuals who are arrested without judicial warrants cannot be detained for more than 36 hours from the time of arrest without written authority from the Anti-Terrorism Council (ATC).
Before the lapse of the 14-day extension which is counted from the day of arrest, the ATC through the Department of Justice (DOJ) should file before the regional trial court (RTC) a motion for extension of detention of the suspected terrorist for not more than 10 days. The motion should contain the justification for the continued detention of a suspect.
If the RTC finds no evidence for further detention, the detained suspected terrorist should be released immediately.
Reviewed by the SC committee in the drafting of the rules were the constitutional provisions on dignity of every human person and respect for human rights, Anti-Terrorism Act of 2020 under Republic Act No. 11479, Terrorism Financing Prevention and Suppression Act under RA 10168, Anti-Money Laundering Council law under RA 9160, Anti-Wire Tapping Act under RA 4200, and other anti-terrorism laws.
Gesmundo cited the issuance of the rules “as a significant achievement of the Supreme Court in striking this balance.”
He acknowledged the extraordinary nature of terrorism and terrorism financing cases where justices and judges are presented with peculiar pieces of evidence which require specialized knowledge and expertise.
He thus emphasized the need for sufficient training and capacity-building activities to implement the ATA Rules.
He then expressed the SC gratitude to development partners The Asia Foundation (TAF) and the Australian Government for their support. He cited a study visit in Australia in June 2023, where the Philippine magistrates participated in knowledge-sharing on the best practices in handling anti-terrorism cases.
The SC’s Public Information Office (PIO) said on the first day of the training last April 23, discussed were International Framework and Perspectives on Terrorism, Human Rights Perspective in Counter Terrorism Cases in the Philippines, Provisions of the Anti-Terrorism Act, Evidence in Anti-Terrorism Cases/Treatment of Confidential Information, and Proscription.
On Wednesday, April 24, tackled were Overview of the Anti-Money Laundering Act in Relation to Terrorist Financing Cases; Aspects of Probable Cause in Anti-Terrorism Cases and Terrorism Financing; Fundamentals of Intelligence by the National Intelligence Coordinating Agency (NICA), Counter Terrorism Information Center; Discussion on Intelligence Reports and Forensic Evidence; Judicial Authorization to Conduct Surveillance; Restriction on the Right to Travel (Rule 6 of the Rules of Procedure; Sec. 34 of the ATA); and Arrest (Section 29), Preventive Detention, Judicial Warrants.
On April 26, 2022 in Baguio City, the SC declared final its Dec. 7, 2021 decision which ruled as constitutional almost all the provisions of the anti-terrorism law.
Thirty-seven petitions were filed challenging the constitutionality of ATA which was enacted on July 3, 2020 and enforced starting July 18, 2020. Despite the Covid-19 pandemic, the SC conducted online oral arguments on the petitions.
Declared unconstitutional in its Dec. 7, 2021 decision 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’ is declared unconstitutional by a vote of 9-6.”
The SC ruled that “on the basis of the current petitions, all the other challenged provisions of RA 11479 are not unconstitutional.”
The SC decision considered 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 declared: “The pervasive problem of terrorism requires interventions that not only punishes an act when it is done but also anticipates risks to disrupt and preempt a terrorist act before irreversible harm is done, without sacrificing and undermining fundamental freedoms recognized in the Bill of Rights.”
It also said: “Nonetheless, this Court is ever mindful that hand in hand with its obligation to give due regard to the inevitabilities of national security and public safety, as well as the effectiveness of law enforcement, is its constitutional mandate to safeguard substantive democracy, as expressed in fundamental values and human rights and to temper the excesses of the other branches.”
Under the rules on ATA, members of organizations and individuals suspected of being terrorists can file before the CA their petition against their designation as “terrorists” and the freeze order on their assets issued by AMLC.
The CA should render its decision on the petition within one month from the time the case is submitted for resolution.
Also, the designation of an organization and its members and individuals as “terrorists” should be filed by the Department of Justice before the CA which is authorized to issue a preliminary order of proscription based on probable cause established in the petition.
The proscription petition should be decided by the CA within three months from the date the case is submitted for decision. The CA’s permanent order of proscription is valid for three years from the date of the publication of the order in a newspaper of general circulation and in the official website of the ATC, DOJ, AMLC, NICA (National Intelligence Coordinating Agency), and the Official Gazette.
“The permanent order of proscription shall automatically lapse upon the expiration of the three-year period provided that there is no order extending or continuing the proscription,” the rules state.