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The controversial ATA decision (1)

The decision of the Supreme Court (Calleja v. Executive Secretary, Dec. 7, 2021 but released on Feb. 15, 2022) on the constitutionality of the Anti-Terrorism Act (ATA) is one of the longest and most-discussed in our judicial history.

THE PONENCIA OF JUSTICE ROSMARI D. CARANDANG consists of 235 single-spaced pages with 560 footnotes while the separate opinions total 640 pages (CJ Alexander G. Gesmundo’s had 199 pages; Justices Estela M. Perlas-Bernabe, 48; Marvic M. V. F. Leonen, 65; Alfredo Benjamin S. Caguioa, 130; Amy C. Lazaro-Javier, 41; Henri Jean Paul B. Inting, 21; Rodil V. Zalameda, 44; Mario V. Lopez, 25; Samuel H. Gaerlan, 20; Jhosep Y. Lopez, 34; and Japar B. Dimaampao, 13).

While critics may disagree with the whole or parts of the decision and of the separate opinions, they cannot deny, much less denigrate, the superb scholarship and research poured into them, thereby transforming them into a doctoral dissertation on constitutional law.

Indeed, the decision capped the storied judicial career of Justice Rori. Nonetheless, she will continue her service as the new chancellor of the Philippine Judicial Academy to train incumbent and aspiring members and personnel of our beloved judiciary.

The ponencia began with a short history of terrorism leading to its generally understood meaning during the 19th century as “subversive and illegal activities of the opponents of the ruling class performed in an attempt to change the order.”

I FULLY CONCUR WITH THESE FIVE RULINGS: (1) The 37 petitions (except two) cannot be summarily dismissed due to their alleged procedural and substantive deficiencies (2) given that they are encompassed by the expanded constitutional duty of the judiciary to determine grave abuse of discretion. (3) However, the “facial challenge” used by the petitions to nullify the ATA cannot invalidate the entire law because a facial challenge can be used only in “free speech” cases. (4) Hence, the law cannot be declared unconstitutional in its entirety, only in its parts involving free speech, and (5) new cases need to be filed in the appropriate trial courts to test the ATA’s provisions “as applied” in specific cases involving factual and actual violations of constitutional rights in the ATA’s implementation.

GIVEN ITS LENGTH AND COMPLICATED NATURE, the ATA decision (and separate opinions) cannot be discussed in one go. Today, let me just take up the most basic provision of ATA, its Section 4. For easy comprehension, the Court divided this Section into two distinct parts: the MAIN PART and the PROVISO.

The MAIN PART, in turn, has three components: the first enumerates the overt acts of terrorism (like those causing death; or serious injury; or extensive damage to property; or interference to critical infrastructures; or those involved in possessing, supplying or using biological, nuclear, radiological or chemical weapons; and those releasing dangerous substances or causing fire, floods or explosives). The second component discusses the purposes or intents of any of the foregoing overt acts, (like to intimidate the general public; or to create or spread a message of fear; or to provoke or influence the government by intimidation; or to seriously destabilize or destroy the fundamental structures of the country; or to foment public emergencies; or to seriously undermine public safety). The third component refers to the imposable penalty, i.e. life imprisonment without parole.

Not punished as terror acts by the PROVISO are advocacies, protests, dissents, mass actions, and other exercises of civil and political rights “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.”

Based on this deconstruction, the Court held that the MAIN PART pertains to conduct or “bodily movements” which cannot be ruled upon in the facial challenge posed by the petitions. However, the PROVISO, particularly the portion in quotation marks, involves free speech. As such, the Court determined, and I agree, that the quoted portion cannot pass any of the three tests of free speech, namely, “strict scrutiny, overbreadth and vagueness” because the said portion has a “chilling effect” on speech and shifts the burden of proof to the accused to show their lack of intent.

These three tests constitute some of the most controversial grids of constitutional law that even the most seasoned constitutionalists rarely agree on their correct application.

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