Petition To Declare Unconstitutional - ATC
Petition To Declare Unconstitutional - ATC
Petition To Declare Unconstitutional - ATC
SUPREME COURT
Manila
Petitioner,
G.R. No. ______________
- versus -
[FOR: CERTIORARI AND
PROHIBITION]
EXECUTIVE SECRETARY
SALVADOR C. MEDIALDEA,
Respondent.
x-----------------------------------------x
PETITION
(with Application for Writ of Preliminary Injunction)
1
I. NATURE OF THE PETITION
2
adequate remedy, administrative or otherwise, in the ordinary
course of law.
2 Board of Trustees
3
8.01. Ateneo Human Rights Center (AHRC), one of the first
university-based institutions engaged in the promotion of
peace, development and human rights in the Philippines.
Established in October 1986, the Center seeks to realize its
mandate of protecting and promoting human rights advocates
among lawyers, law students and grassroots leaders, the
monitoring of the human rights situation in the Philippines
and abroad, research and publication, public education on
peace, development and human rights, legal assistance to
indigent victims of human rights abuses, law school
curriculum development and values formation.
4
programs. ERDA continues to advocate for inclusive
education and juvenile justice.
5
mission is to facilitate agrarian reform implementation and
sustainable rural development with various stakeholders at
the national and local level, especially farmers, farm workers
toward the formation of sustainable integrated area
development (SIAD) communities.
6
justice and actively pushing for the full implementation of
Philippine environmental laws, accountability of public
officials, and capacity building for citizens for the enjoyment
of the fundamental right to a balanced and healthful ecology
by the current generation and the generations to come. It is
an organization established to provide legal assistance to
victims of environmental injustice, conduct policy research on
the environment, advocate policy reforms, assist in building
local capacities for environmental protection and promote
sustainability and protection of human rights.
7
8.16. Tanggol Kalikasan, Inc. (TK), a public interest
environmental law office which envisions an empowered
society that relates with its environment in a just and
sustainable manner for the equitable benefit of all Filipinos.
Tanggol Kalikasan’s mission is to facilitate the empowerment
of communities and institutions to manage their ecosystems
through law and other creative mechanisms. Conscious of the
power of an organized and informed citizenry, TK’s programs
are aimed at encouraging greater citizen’s participation in
environmental law enforcement and policy-making in
resource allocation.
8
9. With the exception of the Ateneo Human Rights Center
(AHRC), all ALG member organizations are also duly registered
organizations. The AHRC does not have legal personality separate
from the Ateneo de Manila University, but it enjoys autonomy in
its programs and operations.
9
V. TIMELINESS AND URGENCY OF THE PETITION
10
20. On June 1, 2020, President Rodrigo Roa Duterte
(President Duterte), in a letter to House Speaker Alan Peter
Cayetano, certified House Bill No. 6875, amending the Human
Security Act of 2007, as urgent.
11
26.02. ARTICLE III, SECTION 2, WHICH GUARANTEES
THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, AND EFFECTS AGAINST
UNREASONABLE SEARCHES AND SEIZURES;
VIII. DISCUSSION
12
review under paragraph 2, Section 1 of Art. VIII. Hence,
jurisprudence effectively allows resort to certiorari and prohibition
for cases raising constitutional issues and calling for the review
and/or nullification of the acts of the legislative and executive
officials committed with grave abuse of discretion amounting to
lack or excess jurisdiction, even if said acts are neither judicial nor
quasi-judicial.
13
The present Rules of Court uses two special civil actions
for determining and correcting grave abuse of discretion
amounting to lack or excess of jurisdiction. These are the
special civil actions for certiorari and prohibition, and
both are governed by Rule 65. A similar remedy of
certiorari exists under Rule 64, but the remedy is
expressly applicable only to the judgments and final
orders or resolutions of the Commission on Elections
and the Commission on Audit.
14
of grave abuse of discretion amounting to lack or excess
of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. Thus, petitions
for certiorari and prohibition are appropriate remedies
to raise constitutional issues and to review and/or
prohibit or nullify the acts of legislative and executive
officials.”6
6 Agcaoili v. Fariñas, G.R. No. 232395, July 3, 2018, citing Judge Villanueva v. Judicial
and Bar Council, supra note 5.
7 Dueñas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 191550, May 4,
2010.
15
33.06. It impinges on judicial rule-making power relating to
procedure before courts;
8Private Hospitals Association of the Philippines, Inc. (PHAPI) v. Medialdea, G.R. No.
234448, November 6, 2018.
16
By grave abuse of discretion is meant simply capricious
or whimsical exercise of judgment that is patent and
gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason
of passion or hostility. Under this definition, a court is
without power to directly decide matters over which full
discretionary authority has been delegated. But while
this Court has no power to substitute its judgment for
that of Congress or of the President, it may look into the
question of whether such exercise has been made in
grave abuse of discretion. A showing that plenary power
is granted either department of government, may not be
an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable
controversy.”9
9Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000.
10Associationof Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical
Centers Association, Inc., G.R. Nos. 207132 & 207205, December 6, 2016.
17
or affected parties. The Court has been thereby entrusted expressly
or by necessary implication with both the duty and the obligation
of determining, in appropriate cases, the validity of any assailed
legislative or executive action. This entrustment is consistent with
the republican system of checks and balances.
11Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No. 225442,
August 8, 2017.
18
reviews an act of a constitutional organ; (g) when there is no other
plain, speedy, and adequate remedy in the ordinary course of law;
(h) the petition includes questions that are dictated by public
welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy.12
19
A. Actual controversy.
15 Province of North Cotabato vs. Government of the Republic of the Philippines, G.R. No.
183591, October 14, 2008.
16 Tañada v. Angara, G.R. No. 118295, May 2, 1997.
17 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998.
18 Imbong v. Ochoa, G.R. No. 204819, April 8, 2014.
20
taken effect, even if no one had yet been charged for violating any
of its provisions. Neither is the ripeness of the Petition affected by
the fact that the Implementing Rules and Regulations of R.A. No.
11479 have not yet been promulgated. In Ople vs. Torres, the Court
held that Petitioner’s action of assailing A.O. No. 308 as invalid and
infirm on its face was not premature, for the rules yet to be
promulgated cannot cure its fatal defects.19 Similarly, the
constitutional infirmities of R.A. No. 11479 and its contravention of
fundamental rights cannot be cured by the rules to be drawn up for
its implementation.
21
48. In Holder v. Humanitarian Law Project, the U.S.
Supreme Court allowed the pre-enforcement review of a similar
statute criminalizing “material support” to terrorism, on the basis
that plaintiffs faced a “credible threat of prosecution” and “should
not be required to await and undergo a criminal prosecution as the
sole means of seeking relief.”24 Considering that R.A. No. 11479
contains provisions effectively regulating the activities of civil
society and non-government organizations, and prescribing
allowable conduct that would not constitute “material support to
terrorists” as defined under Section 12 of the said law, Petitioner is
thus constrained in carrying out constitutionally protected
activities as set out in its mandate and purpose. The requirement
in Section 13 in effect transforms such activities into criminal
conduct in the absence of recognition from the state. To avoid being
charged for the crime of “providing material support to terrorists”
under Section 12, NGOs and organizations essentially need to seek
prior government clearance and recognition for their projects.
22
51. In Disini vs. Secretary of Justice, the Court declared
certain provisions of R.A. No. 10175, a penal statute,
unconstitutional, because of their chilling effects on free speech. 26
R.A. No. 11479, while purporting to regulate terrorist conduct,
actually has several provisions proscribing speech:
23
correspondence28, as provided in Article III, Section 3 of the 1987
Constitution.
24
“sufficiently imbued with elements of communication to implicate
the First Amendment.”33 In Buckley v. Valeo, the Court ruled that
money (in the form of campaign donations or expenditures) can be
considered speech.34 In Doe v. Reed, signing a petition for a state
referendum was found to be “speech” within the meaning of the
First Amendment.35 In fact, in Brandenburg v. Ohio, it was held
that even incitement can be protected speech: the U.S. Supreme
Court ruled that the First Amendment protects advocating the use
of force or lawbreaking “except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite
or produce such action.”36
25
protected speech. This, along with the vagueness of the said law,
renders it constitutionally infirm and justifies a facial invalidation
of the statute.
58. While the Court has in the past declined to take the
recourse of an on-its-face invalidation of penal statutes,
emphasizing the “in terrorem” effect of such laws, the line between
criminal statutes and laws imposing a priori limitations on
constitutionally protected speech are, more often than not, blurred.
As in the instant case, the Anti-Terrorism Law’s in terrorem effect
extends and overreaches into a chilling effect on free speech. In
addition, the law enables State exercise of police power in curbing
terrorism in a manner that would also violate due process,
constitutionally guaranteed rights to freedom of assembly and
association, and equal protection of the law. Such a penal statute
must necessarily be open to facial invalidation, especially one so
blatantly violative of the fundamental protections afforded by the
Constitution. This ultimately falls under the power of the Court to
determine grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government, and the Court cannot shirk this duty.
26
vigilant with its duty to maintain the supremacy of the
Constitution.”37 (emphasis supplied)
60. Since R.A. No. 11479 impacts not only freedom of speech
but other fundamental rights such as due process, the right to
liberty, privacy of communication and correspondence, freedom of
association, and freedom of assembly, a facial challenge to its
validity on constitutional grounds is proper. Based on the above,
the instant Petition fulfills the requisite of an actual case or
controversy involving the constitutional validity of the Anti-
Terrorism Law of 2020, affecting the fundamental rights both of
petitioner ALG as well as of the general public.
B. Legal Standing
27
communities all over the Philippines, the members of the latter
groups, its partner-organizations, persons associated with
Petitioner, its members or partners, as well as the public at large,
run the imminent risk of being victims of grave human right
violations by reason of the Constitutional infirmities that plague
R.A. No. 11479. The injury is not speculative nor imagined; it is
real, direct, and serious, as will be explained later.
40 UN Human Rights Council Report, Impact of measures to address terrorism and violent
extremism on civic space and the rights of civil society actors and human rights defenders
- Report of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, A/HRC/40/52 (Mar. 1, 2019).
41 Id.
28
• National legal provisions that restrict rights that are
key to civil society: freedom of expression and
opinion, freedom of association, freedom of assembly,
and freedom of religion.
• Limiting civil society access to financial services,
refusal to open or arbitrary closure of bank accounts,
inordinate delays or termination of transactions, and
onerous administrative requirements.
• Instances of verbal criticism of and disagreement
with the State, the government, or its authorities
being considered as an act of terrorism.
• Governmental smear campaigns, through State-
controlled media or through statements by public
officials whose objective is to delegitimize civil society
and tarnish their reputation, by loosely
characterizing them as “terrorists,” implying that
they are “threats to national security” or “enemies of
the State.”
• Many activities of civil society, human rights
defenders, journalists, bloggers, and political
opponents falling under laws whose stated purpose is
to counter-terrorism, prevent and counter violent
extremism, and protect national security.
29
Art. II, State Policies, Sec. 23. The State shall encourage
non-governmental, community-based, or sectoral
organizations that promote the welfare of the nation.
30
hence, civil society must be given legal standing as part of political
participation in government.
31
human rights, and promotion of social justice. In the performance
of this institutional paradigm, legitimate and innocent activities
that delve into the interpretations of the context and the
application of laws to the situations of the partners, clients or
beneficiaries of the services of ALG, where the ultimate outcome is
the empowerment of the communities, may be determined by
enforcers of R.A. No. 11479 to fall under the definition of “terrorism”
in light of issues concerning its legality, overbreadth and
vagueness.
32
must be written with precision and clarity to inform any person
what is lawful or unlawful conduct under the law. This legal
infirmity can lead to the prosecution of activities being conducted
by Petitioner, and other activities which are not terrorist acts, as
understood in the international community and identified in the
UN Security Council Resolution 1566 (2004) 45, including some of
the activities in pursuit of capacitating and empowering the
communities.
33
of persons committing any of the acts punishable under
Section 4 hereof, knowing that such individual or
organization, association, or group of persons is
committing or planning to commit such acts, shall be
liable as principal to any and all terrorist activities
committed by said individuals or organizations, in
addition to other criminal liabilities he/she or they may
have incurred in relation thereto.47
34
To make it easy for military and paramilitary units to
silence or cause untold human rights abuses on vocal
dissenters, government agents usually resort to
stereotyping or caricaturing individuals. This is
accomplished by providing witnesses who, under
coercive and intimidating conditions, identify the
leaders of organizations critical of the administration as
masterminds of ordinary criminal acts. Not only does
this make these leaders’ lives and liberties vulnerable, a
chilling effect on dissent is also generated among
similar-minded individuals.
49 Zarate v. Aquino III, G.R. No. 220028, November 10, 2015. (J. Leonen, dissenting
opinion).
50 A.M. No. 09-6-8-SC, April 13, 2010.
51 A.M. No. 09-6-8-SC, Sec. 4 (g).
35
enforcement of environmental laws, protection of the environment
and assertion of environmental rights, the concept of SLAPP and
the possibility of bringing a legal action to harass or stifle any legal
recourse that a person or group has taken applies to legitimate
actions and assertions of rights outside the sphere of environmental
protection.
Public Right
36
“Going by the petition, petitioner’s representatives
pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for the
Republic and the citizenry as a whole.
Xxx
37
“In filing their respective petitions, Chavez, the ALG
which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and
the IBP in behalf of its lawyer members, invoke their
constitutional right to information on matters of public
concern, asserting that the right to information,
curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights and to
the maintenance of the balance of power among the
three branches of the government through the principle
of checks and balances.
38
constitutional rights. As part of the constituency of the Philippines,
Petitioner is also filing this action to assert a public right by reason
of serious breaches of the Constitution and the rule of law.
58 Association of Medical Clinics for Overseas Workers, Inc., supra note 10.
39
This same case further explained that “the prima facie showing of
grave abuse of discretion in constitutional cases also implies that
the injury alleged is actual or imminent, and not merely
hypothetical.”
40
Taxpayer’s Suit
60 Pascual v. Secretary of Public Works, G.R. No. 71977, February 27, 1987.
41
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng
94.
Pilipinas, Inc. vs. Tan, reiterated in Basco vs. Philippine
Amusements and Gaming Corporation, the Supreme Court also
stated:
Transcendental Importance
42
97. While it is true that “transcendental importance” is not
defined in our jurisprudence, the Court stated in the case of In the
Matter of: Save the Supreme Court Judicial Independence and
Fiscal Autonomy Movement v. Abolition of Judiciary Development
Fund (JDF) and Reduction of Fiscal Autonomy, citing Francisco v.
House of Representatives, that:
Overbreadth
63In the Matter of: Save the Supreme Court Judicial Independence and Fiscal Autonomy
Movement v. Abolition of Judiciary Development Fund (JDF) and reduction of Fiscal
Autonomy, UDK - 15143, January 21, 2015, citing Francisco v. House of Representatives,
G.R. No. 160261, November 10, 2003.
43
“In overbreadth analysis, challengers to government
action are in effect permitted to raise the rights of third
parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies
when a statute needlessly restrains even
constitutionally guaranteed rights. In this case, the
petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients.”64
D. Lis mota
64 White Light v. City of Manila, G.R. No. 122846, January 20, 2009.
65 Disini, supra note 28.
44
such as the application of the statute or the general law. The
petitioner must be able to show that the case cannot be legally
resolved unless the constitutional question raised is
determined. This requirement is based on the rule that every law
has in its favor the presumption of constitutionality; to justify its
nullification, there must be a clear and unequivocal breach of
the Constitution, and not one that is doubtful, speculative, or
argumentative.”66
105. The rule that penal statutes must be precise and clear in
defining the proscribed conduct goes into the heart of the due
process guarantee. In People v. Dela Piedra, the Court said:
45
offense, the nature of which he is given no fair
warning.”67
46
107. The Inter-American Court of Human Rights (IACHR)
has passed upon issues involving anti-terrorism definitions and the
proceedings involved in its criminal proceeding, particularly
looking into both the formal and substantive legality of any conduct
that a State will criminalize. The IACHR “considers that crimes
must be classified and described in precise and unambiguous
language that narrowly defines the punishable offense, thus giving
full meaning to the principle of nullum crimen nulla poena sine lege
praevia in criminal law.”72 In Cantoral-Benavides v. Peru (2000),
citing Petruzzi and others v Peru (1999), the IACHR passed upon
the legal effect of the similarity of the newly decreed crimes of
terrorism and “treason against the fatherland” and held that:
72 Inter-American Court of Human Rights (IACHR), Case of Castillo Petruzzi et al. v. Peru
(May 30, 1999), para 121. available at
http://www.corteidh.or.cr/docs/casos/articulos/seriec_52_ing.pdf.
47
with non-criminal measures. Ambiguity in the
definition of the crime creates doubt and gives
authorities discretion, which is particularly undesirable
when establishing the criminal liability of individuals
and imposing sentences that have a serious impact on
fundamental rights such as life or liberty.”73
48
so vague that law enforcers - the police and prosecutors - can
arbitrarily or selectively enforce it?
Sections 4 and 5
49
any of its international organization, or seriously
destabilize or destroy the fundamental political,
economic, or social structures of the country, or create a
public emergency or seriously undermine public safety,
shall be guilty of committing terrorism.
116. The first three items in the enumeration have the same
phraseology. Each starts with the clause, “engages in acts intended
to cause”. The difference among the three items lies in the intended
effect or result of the “acts”. The first item refers to death, bodily
injury, or seriously endangering a person’s life. The second item
refers to damage or destruction to property. The third item refers
to extensive interference with, or damage or destruction to, critical
infrastructure.
50
118. What then is prohibited by the law as “terrorism”? The
law does not specify, insofar as the first three sub-paragraphs of
Section 4 are concerned. R.A. 11479 merely uses the nebulous term
“acts”. As to what types of “acts” are contemplated, the law does not
identify. Is the definition limited only to violent acts? The law does
not distinguish. Under the law, “terrorism” is committed simply by
“engaging in acts”.
51
123. How then is the purpose of the “acts” determined? The
definition gives an answer – “by its nature and context” – which
does not really mean anything. It begs the question. It gives a
tenuous basis for the determination of an abstract concept. In
making the purpose an essential element of the offense, the law
makes the fallacious assumption that the purpose is evident from
the nature of the unspecified “acts” committed.
52
number of cars in the opinion of one judge may be
regarded as insufficient by another. * * * There is a total
absence of any definition of what shall constitute a
crowded car. This important element cannot be left to
conjecture, or be supplied by either the court or the jury.
It is of the very essence of the law itself, and without it
the statute is too indefinite and uncertain to support an
information or indictment. * * * The dividing line
between what is lawful and unlawful cannot be left to
conjecture. The citizen cannot be held to answer charges
based upon penal statutes whose mandates are so
uncertain that they will reasonably admit of different
constructions. A criminal statute cannot rest upon an
uncertain foundation. The crime, and the elements
constituting it, must be so clearly expressed that the
ordinary person can intelligently choose, in advance,
what course it is lawful for him to pursue. Penal statutes
prohibiting the doing of certain things, and providing a
punishment for their violation, should not admit of such
a double meaning that the citizen may act upon the one
conception of its requirements and the courts upon
another.”77
53
and other government officials, as the case may be. Specifically,
although the word threaten means “an expression of intention to do
something”, this provision does not contain any objective threshold
that would guide officers in conducting arrests.
54
ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.”78 (emphasis supplied)
Section 6
55
preparation for the commission of terrorism, or
collecting or making documents connected with the
preparation of terrorism. Any person found guilty of the
provisions of this Act shall suffer the penalty of life
imprisonment without 4 the benefit of parole and the
benefits of Republic Act No. 510592.
56
terrorism”. Again, in consistent fashion, the law adopts an all-
encompassing generic term. Even the act of eating (and
consequently, the possession of food) could be preparation for the
commission of terrorism.
Section 10
57
association or group of persons proscribed under Section
26 of this Act, or designated by the United Nations
Security Council as a terrorist organization, or
organized for the purpose of engaging in terrorism, shall
suffer the penalty of life imprisonment without the
benefit of parole and the benefits of Republic Act No.
10592.
58
engaging in terrorism, shall suffer the penalty of
imprisonment of six (6) to twelve (12) years.
143. It must be pointed out that the law does not define the
term “organized for the purpose of engaging in terrorism” nor
provide standards or procedure for the identification of such
organizations. While such groups may be subjected to the
proscription provided for under Section 26, the enumeration in
Section 10 of three separate categories signify the intent to ave a
category of organizations that are not proscribed under Section 26,
or designated by the UN Security Council as a terrorist
organization, but which, nevertheless, will be considered a terrorist
organization. Such mysterious category applies for both
59
recruitment and membership under Section 10. The same category
appears in the definition of “Terrorist Organization” under Section
3 (m).
Section 12
60
147. Material support is further defined under Section 3 as
“as any property, tangible or intangible, or service, including
currency or monetary instruments or financial securities, financial
services, lodging, training, expert advice or assistance, safehouses,
false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (one or
more individuals who may be or include oneself), and
transportation.”84
61
THE ANTI-TERRORISM ACT (RA
11479) IS NULL AND VOID FOR
DIRECTLY CONTRAVENING
ARTICLE III, SECTION 1, OF THE
CONSTITUTION, IN RELATION TO
SECTION 2 AND SECTION 14;
RIGHT AGAINST UNREASONABLE
SEIZURE; RIGHT TO SPEEDY
TRIAL
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, G.R.
86
No. L-24693, July 31, 1967.
62
152. It is a guarantee that is meant to "prevent governmental
encroachment against the life, liberty and property of individuals;
to secure the individual from the arbitrary exercise of the powers of
the government, unrestrained by the established principles of
private rights and distributive justice; to protect property from
confiscation by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary mode of
judicial procedure; and to secure to all persons equal and impartial
justice and the benefit of the general law."87
87 City of Manila vs. Hon. Laguio, Jr., G.R. No. 118127, April 12, 2005.
88 CONST. Art. III, Sec. 1.
89 People vs. Dramayo, G.R. No. L-21325, October 29, 1971
90 See People vs. Galvez, G.R. No. 157221, March 30, 2007; Torralba vs. People, G. R.
No. 153699, August 22, 2005; Dela Cruz vs. People, G.R. No. 150439, July 29, 2005
63
precisely by the person on trial under such an
exacting test should the sentence be one of
conviction. It is thus required that every
circumstance favoring innocence be duly taken
into account. The proof against him must survive
the test of reason; the strongest suspicion must not
be permitted to sway judgment.” (emphasis
supplied)
155. It is the courts that are tasked with the duty of judging
the guilt or innocence of the accused "based on facts and not on mere
conjectures, presumptions, or suspicions."91 To overcome the
presumption of innocence, prosecutors have to present convincing
proof of guilt beyond reasonable doubt in court. So high is the
respect for a person's fundamental right to life and liberty that the
Court has ruled that an "acquittal based on reasonable doubt will
prosper even though the accused’s innocence may be doubted, for a
criminal conviction rests on the strength of the evidence of the
prosecution and not on the weakness of the defense. And, if the
inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence
does not fulfill the test of moral certainty and is not sufficient to
support a conviction, and, thus, that which is favorable to the
accused should be considered."92
64
finances terrorism, or a terrorist organization or
group.
65
custody by the law enforcement agent or military
personnel. The period of detention may be
extended to a maximum period of ten (10) calendar
days if it is established that (1) further detention
of the person/s is necessary to preserve evidence
related to terrorism or complete the investigation;
(2) further detention of the person/s is necessary to
prevent the commission of another terrorism; and
(3) the investigation is being conducted properly
and without delay.
66
Terrorism Financing Prevention and Suppression Act of 2012.93
The AMLC is now authorized to freeze the assets of 'designated
terrorists' under the Anti-Terrorism Act—persons who would not
otherwise be covered by The Terrorism Financing Prevention and
Suppression Act of 2012. Moreover, the property and funds of
persons or groups designated as terrorists under Section 25 are
subject to authority granted to the AMLC under Section 35 to
investigate, inquire into, and examine bank deposits.
67
authority to arrest any person who is suspected by the ATC or by
the arresting officer.
95 People v. Gungon, G.R. No. 119574, March 19, 1998, citing People v. Domasian,
96 REV. PEN. CODE, art. 27.
68
without judicial warrant and the subsequent prolonged detention
without delivering the detainee to the proper court, constitute a
direct violation of the Constitutional provision against
unreasonable seizures of whatever nature.
166. The law does not provide for the right of a designated or
suspected person to be heard: to question the designation by the
Anti-Terrorism Council or dispute the matters that gave rise to the
suspicion leading to arrest and detention.
69
person, faced by the awesome power of the State,
is entitled to "the law of the land," which Daniel
Webster described almost two hundred years ago
in the famous Dartmouth College Case, as "the law
which hears before it condemns, which proceeds
upon inquiry and renders judgment only after
trial." It has to be so if the rights of every person
are to be secured beyond the reach of officials who,
out of mistaken zeal or plain arrogance, would
degrade the due process clause into a worn and
empty catchword.” 99 (citations omitted; emphasis
supplied)
99 Ynot v. Intermediate Appellate Court, G.R. No. 74457, March 20, 1987.
100 Biraogo vs. Philippine Truth Commission, G.R. No. 192935, December 7, 2010.
70
THE ANTI-TERRORISM ACT IS
NULL AND VOID FOR DIRECTLY
CONTRAVENING ARTICLE III,
SECTION 2 AND 3 OF THE
CONSTITUTION; RIGHT AGAINST
UNREASONABLE SEARCHES AND
SEIZURES; RIGHT TO PRIVACY
71
the Matter of the Petition for Issuance of Writ of Habeas Corpus of
Sabio v. Senator Gordon,” the Supreme Court held that “the
meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a "constitutional right" and
"the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary interference
with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."106
106 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon, G.R. No. 174340, October 17, 2006.
107 Disini, supra note 28.
108 CONST., Art. III, Sec. 2.
109 CONST., Art.III, Sec. 3.
110 In re Sabio, supra note 106.
111 CIVIL CODE, art. 26.
112 CIVIL CODE, art. 32.
113 CIVIL CODE, art. 723.
114 REV. PEN. CODE, art. 229.
72
industrial secrets,115 and trespass to dwelling.116 Invasion of privacy
is an offense in special laws like the Anti-Wiretapping Law,117 the
Secrecy of Bank Deposits Act118 and the Intellectual Property
Code.119 Recent laws protecting informational privacy and imposing
stiff penalties for breaches are the Data Privacy Act of 2012120 and
the Cybercrime Prevention Act of 2012.121
73
178. As the right to privacy is a fundamental right, any
legislation, rule or regulation curtailing said fundamental right
must show that it is justified by a compelling state interest and that
it is narrowly drawn.126 It must also contain sufficient protection
and parameters. As articulated in the case of Ople v. Torres:
74
181. First, R.A. No. 114799 failed to show any compelling
interest to allow the unbridled intrusion in the right to
informational privacy. The governmental interests to be protected
must not only be reasonable. They must be compelling. Certainly,
the promotion of public safety is compelling enough to restrict
certain freedoms. It is not sufficient, however, to make a generic,
sweeping averment of public safety.129
75
especially negatively affect certain groups. All these have a direct
impact on the enjoyment of fundamental human rights.”131
186. Second, R.A. 11479 does not apply the least restrictive
means to achieve its aim of protecting life, liberty and property from
terrorism, nor does it provide narrowly tailored enforcement
measures that foreclose abuse by law enforcers.
76
strict compliance with their human rights obligations. In doing so,
they must abide by conditions that would make the restrain of
rights permissible. The limitations on the exercise of rights should
be: a) prescribed by law; b) in the pursuance of a legitimate purpose;
and c) necessary in a democratic society.134
77
a person must be authorized by law. The extent to which
this occurs must not be arbitrary, which in turn requires
that the legislation must not be unjust, unpredictable or
unreasonable. The law authorizing interference with
privacy must specify in detail the precise circumstances
in which the interference is permitted and must not be
implemented in a discriminatory manner. This does not
mean, however, that States enjoy an unlimited
discretion to interfere with privacy, since any limitation
on rights must be necessary to achieve legitimate
purposes and be proportionate to those purposes.
Regard must also be had to the obligation of States to
protect against the arbitrary exercise of such
authorizations. Thus, in Klass v. Germany for example,
the European Court of Human Rights stated that it
must be satisfied that any system of secret surveillance
conducted by the State must be accompanied by
adequate and effective guarantees against abuse.”138
(emphasis supplied)
191. R.A. No. 11479 does not apply the least restrictive
means to achieve its purpose, nor does it provide narrowly tailored
enforcement measures that foreclose abuse by law enforcers.139
78
intercept, screen, read, surveil, record or collect, with
the use of any mode, form, kind or type of electronic,
mechanical or other equipment or device or technology
now known or may hereafter be known to science or
with the use of any other suitable ways and means for
the above purposes, any private communications,
conversation, discussion/s, data, information, messages
in whatever form, kind or nature, spoken or written (a)
between members of a judicially declared and outlawed
terrorist organization, as provided in Section 26 of this
Act; (b) designated person as defined on Section (E) of
Republic Act No. 10168; or (c) any person charged with
or suspected of committing any of the crimes defined
and penalized under the provisions of this Act; xxx”140
79
offense was committed, specifically, whether a person “committed,
is actually committing, or is attempting to commit an offense.”144
Yet, this law allows intrusion on mere suspicion that an act “is
about to be committed.” Thus, it is plain to see that mere suspicion
only emboldens law enforcement and the military to spy on whoever
they desire, whether real or imagined.
80
Security Act, the law fails to create an obligation of notification,
those subject to surveillance will be left in the dark of what the
State has on them. Instead, law enforcement may create dossiers
on everyone.
81
has been duly authorized by the Anti-Terrorism
Council (ATC); and
(2) After examination under oath or affirmation of
the applicant and the witness he may produce, the
issuing court determines:
(a) that there is probable cause to believe
based on personal knowledge of facts or
circumstances that the crimes defined and
penalized under Sections 4,5,6,7,8,9,10,11,
and 12 of this Act has been committed, or is
being committed, or is about to be
committed; and
(b) that there is probable cause to believe
based on personal knowledge of facts or
circumstances that evidence, which is
essential to the conviction of any charged or
suspected person for, or to the solution or
prevention of, any such crimes, will be
obtained.”
82
law enforcer, he/she communicated with either a person charged
with an offense or under suspicion of being a terrorist. In this
instance, his/her communication, spoken or written, including
computer and network information will be open to scrutiny by the
law enforcer applicant.
83
identities.”147 Though there was no communication, this Honorable
Court concluded that the right to privacy protects information, not
necessarily within the ambit of communication or correspondence.
Rather, this Honorable Court recognized that the right to privacy
extends to the sheer amount of information combined in bulk which
may reveal aspects of a person’s life, beyond what she may have
ever intended. The Court stated to wit:
84
evidently threatens the right of individuals to privacy.”149
(emphasis supplied)
85
(a) between members of a
judicially declared and outlawed
terrorist organization, as provided
in Section 26 of this Act; (b)
between members of a designated
person as defined in Section 3(e) of
Republic Act No. 10168; or (c) any
person charged with or suspected
of committing any of the crimes
defined and penalized under the
provisions of this Act: Provided,
That, surveillance, interception
and recording of communications
between lawyers and clients,
doctors and patients, journalists
and their sources and confidential
business correspondence shall not
be authorized.
86
granted upon written application division of the Court of Appeals
and the examination under oath shall issue a written order to
or affirmation of the applicant and conduct the acts mentioned in
the witnesses he may produce and Section of this Act upon:
the showing: (1) that there are (1) Filing an ex parte written
reasonable grounds to believe that application by a law
any of the crimes enumerated enforcement agent or
hereinabove has been committed, military
or is being committed, or is about personnel, who has been duly
to be committed; (2) that there are authorized in writing by the
reasonable grounds to believe that Anti-Terrorism Council
evidence that will be obtained is (ATC); and
essential to the conviction of any (2) After examination under
person for, or to the solution of, or oath or affirmation of the
to the prevention of, any such applicant and the witnesses
crimes; and (3) that there are no he may produce, the issuing
other means readily available for court determines:
obtaining such evidence. (a) That there is probable
cause to believe based
on personal knowledge
of facts or
circumstances that the
crimes defined and
penalized under
Sections 4, 5, 6, 7, 8, 9,
10, 11 and 12 of this Act
has been committed, or
is being committed, or
is about to be
committed; and
(b) That there is probable
cause to believe based
on personal knowledge
of facts or
circumstances that
evidence, which is
essential to the
conviction of any
charged or suspected
person for, or to the
solution or prevention
of, any such crimes, will
be obtained.
87
216. Significantly, both Section 12 of the Cybercrime Law
and Section 17 of R.A. No. 11479 have similar provisions providing
for broad standards in the issuance of a warrant or order
authorizing intrusion into the right to privacy of individuals.
88
offense committed or alleged to have been committed by
such person, the disposal of such proceedings, or the
sentence of any court in such proceedings;
(3) Issued by government agencies peculiar to an
individual which includes, but not limited to, social
security numbers, previous or cm-rent health records,
licenses or its denials, suspension or revocation, and tax
returns; and
(4) Specifically established by an executive order or an
act of Congress to be kept classified.151
89
the difference between a democratic and a totalitarian
society."153 (emphasis supplied)
222. Under the ever-watchful eye of the State, what can not
be construed as a crime? Section 16 authorizes government to
compel telecommunication service providers (TSP) internet service
providers (ISP) to produce all customer information and
identification records as well as call and text data records, content
and other cellular or internet metadata of any person suspected of
any of the crimes defined and penalized under the provisions of this
Act. Doing so skirts the constitutionally protected presumption of
innocence. The nature of the information collected and recorded by
these service providers needs no affirmative action on the user.155
153 Id.
154 Ople, supra note 11.
155 Carpenter v. US, Docket No. 16-402 (2018).
156 Id.
90
224. Law enforcement must not rely on surveillance alone to
obtain evidence. While criminals become more sophisticated, the
law cannot give blanket authority to law enforcement with
complete disregard of a concentration of power and potential of
abuse. We strongly reiterate that searches must be treated as an
exception and must strictly comply with the constitutional and
legal safeguards.
225. Not only can the government gather any and all
information about a person from the surveillance, but they can also
compel service providers to provide all information about the person
being surveilled.
229. The intent of the law was to secure our State against
acts of terrorism. But national security is not a blanket authority
91
to spy on private citizens. National security must be intended for
the security of all citizens, rather than authority of the State to
intrude and violate the guarantees of the Constitution. “For the
proper defense and protection of freedom, however, a political
institution must possess power. Hence, the government becomes
the delicate art of balancing the power of government and the
freedom of the governed.”158 We must not be afraid of our
governments.
158 Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary 1195 (2009 ed.).
159 REVISED RULES ON CRIMINAL PROCEDURE (2000), rule 126, Sec. 10.
92
information that will persuade the court that there is
probably cause to issue a WDCD.160 (emphasis supplied)
160 RULE ON CYBERCRIME WARRANTS, A.M. No. 17-11-03-SC, §4.3 (July 3, 2018).
161 People v. Tee, G.R. Nos. 140546-47, Jan. 20, 2003.
162 People vs. Nuñez, 591 SCRA 394, 405 (2009).
163 People vs. Go, G.R. No. 117148, June 30, 2009.
93
searches, which might be violative of the Bill of Rights.”164 It is clear
from jurisprudence that the evidence seized must be specifically on
the warrant and that seizure of evidence cannot be subject to the
discretion of law enforcement agents.
164 People vs. Tee, G.R. No. 144639, Sept. 12, 2003.
165 Human Security Act of 2007 (REPUBLIC ACT No. 9372), SEC. 18. Period of Detention
Without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal
Code to the contrary notwithstanding, any police or law enforcement personnel, who,
having been duly authorized in writing by the Anti-Terrorism Council has taken custody of
a person charged with or suspected of the crime of terrorism or the crime of conspiracy to
commit terrorism shall, without incurring any criminal liability for delay in the delivery of
detained persons to the proper judicial authorities, deliver said charged or suspected
person to the proper judicial authority within a period of three days counted from the
moment the said charged or suspected person has been apprehended or arrested,
detained, and taken into custody by the said police, or law enforcement personnel:
Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to
commit terrorism must result from the surveillance under Section 7 and examination of
bank deposits under Section 27 of this Act. xxx
166 Carpenter, supra note 155.
167 Id.
168 Id.
94
“In light of the deeply revealing nature of CSLI, its
depth, breadth, and comprehensive reach, and the
inescapable and automatic nature of its collection, the
fact that such information is gathered by a third party
does not make it any less deserving of Fourth
Amendment protection. The Government’s acquisition
of the cell-site records here was a search under that
Amendment.”169
95
241. Although R.A. No. 11479 has specified penalties for
violations in relation to Custody of Intercepted and recorded
Communications,174 Disposition of Deposited Materials175and
Unauthorized or Malicious Interceptions,176 no remedies have been
detailed under the law in cases where the surveilled person would
like to challenge the legality of the infringement on his/her right.
96
The written application, with notice to the party
concerned, for the opening, replaying, disclosing, or
using as evidence of the sealed package or the content
thereof, shall clearly state the purpose or reason for its
opening, replaying, disclosing or using as evidence of
the sealed package or the contents thereof, shall clearly
state the purpose or reason for its opening, replaying,
disclosing, or its being used as evidence.
97
person acknowledged in R.A. No. 11479 is the right to be notified of
the opening, disclosing, replaying and/or using of the evidence
gathered during the surveillance activity.180
98
diminished, if not defeated, even when the government
does not act irrationally. They must satisfactorily show
the presence of compelling state interests and that the
law, rule or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect
human rights and to prevent authoritarianism. In case
of doubt, the least we can do is to lean towards the
stance that will not put in danger the rights protected
by the Constitutions.”182
99
251. With such a broad undertaking of surveillance, the
Petitioner submits that the grant of power in R.A. No. 11479 is a
blatant violation of the right to privacy and the right against
unreasonable searches. As explained above, the law grants broad
authority to the law enforcement agents to implicate persons
including mere suspects, for acts which are vaguely described, and
subject them to surveillance on all forms of communication, for a
period far too long to be necessary for the purposes of filing a case.
253. Searches are the exception and it is for the law to ensure
that stringent, clear, and exact language guide those that are
empowered to perform such acts. The constitution forbids fishing
expeditions. Where the law fails to meet even the minimum
standards of protection of constitutional rights, it is the incumbent
duty of courts to disregard and exclude all the evidence obtained
with such means, because such searches violate the constitutional
guarantees. The duty of lawmakers is to ensure that their intent is
captured by the specificity and exacting language. It is not for us to
rely on the Court’s good judgement, but rather to create laws that
are complete in and of itself.
254. The uproar and the dissent against R.A. No. 11479
reveal that this law instills a fear of the State. Its complete
disregard of constitutional promises, sow terror and fear, rather
than preventing these acts. Yet in stark contrast, a respect for
human rights, promotion of fundamental freedoms, and the
adherence to rule of law do not weaken the fight against terrorism.
In fact, the United Nations Security Council itself states that these
are complementary, mutually-reinforcing, and constitute an
essential part of successful counter-terrorism efforts.185 The
Council, in several other resolutions, reiterates that failure to
comply with these and other international obligations fosters a
sense of impunity and is one of the factors contributing to increased
radicalization.
185United Nations Security Council, Resolution 1456 on High Level Meeting of the Security
Council: Combatting Terrorism (January 20, 2003), available at
https://www.un.org/ruleoflaw/files/UNSCR1456.pdf (last accessed July 13, 2020).
100
255. The Petitioner understands the horrors of brutal and
senseless attacks on human lives, but Petitioner also argues that
granting favors to law enforcement without due regard for
fundamental rights and freedoms, is a form of terrorism, in its own
right. Who then is the terrorist this law seeks to punish?
186 Alfredo Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004.
101
cases teach us that the Court has not applied the said tests in
invalidating penal statutes.187 However, in the case of Disini v.
Secretary of Justice,188 the majority has adopted the view of Justice
Carpio that overbreadth doctrine and void for vagueness may be
applied to a penal statute when said law affects the right to free
speech.189
102
262. The Supreme Court acknowledged that a statute may be
challenged as vague or overbroad because of a ‘chilling effect.’ As
pointed out by Justice Mendoza in Estrada, “[t]he possible harm to
society in permitting some unprotected speech to go unpublished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
the possible inhibitory effects of overly broad statutes.”194
103
cybercrime.198 The Court explained that if such an interpretation is
adopted pursuant to the overbroad definition and understanding of
what “aiding” or “abetting” is, internet users will be suppressed
from openly discussing public issues online.199 In the words of the
Supreme Court, “democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear guidelines for
law enforcement officials and triers of facts to prevent arbitrary and
discriminatory enforcement.”200 As such, the Court struck down Sec.
5 of RA 10175 as unconstitutional for generating a “chilling effect”
on internet users who seek to openly discuss or express their
opinions in social media or the cyberspace in general by providing
a broad definition or interpretation of what may constitute “aiding
or abetting in the commission of cybercrime.”201 Stated differently
by the Supreme Court, the said provision’s “vagueness raises
apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the
crime of aiding or abetting ensnares all the actors in the cyberspace
front in a fuzzy way.”202
104
constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based solely
on the violation of the rights of third persons not before
the court. This rule is also known as the prohibition
against third-party standing.
203 Disini, supra note 28, (citing Romualdez v. COMELEC, G.R. No. 167011, April 30, 2008
(J. Carpio, Dissenting Opinion).)
105
substantial danger that the speech will likely lead to an
evil the government has a right to prevent.”204
268. It was also established in the same case that the Court
has generally adhered to the clear and present danger test. In this
test, the question that must be scrutinized is whether the words
used are in “such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.”205 Indeed, it
pertains to a question of proximity and degree. 206
106
would paralyze the right and the capacity of the people to speak out
and be heard. Moreover, there’s no sufficient standard in the said
definition. The phrase “acts intended” is too vague to leave the law
enforcers unbridled discretion in classifying the alleged acts as
falling under the said definition. A person of common intelligence
will likewise be clueless as to what acts should be avoided since the
determination of what acts that may fall under the said definition
is subject to the interpretation of law enforcers with the possible
“intent” of the person.
208 On June 26, 2020, police arrested 20 protesters during a lesbian, gay, bisexual,
transgender and queer (LGBTQ+) community-organized protest against the Anti-Terror
Bill in Manila.
209 Gonzales v. Commission on Elections, G.R. No. 192856, March 8, 2011.
210 Id.; Chavez v. Gonzales, G.R. No. 168338, February 15, 2008.
211 Soriano v. Laguardia, G. R. No. 164785, March 15, 2020; Soriano v. MTRCB, G. R.
No. 165636, March 15, 2010.
107
freedom of expression is so broad that it extends protection to
nearly all forms of communication, including speech, print or
publications, film, television, radio broadcasting, and assembly
pertaining to secular or political causes.212 The subject matter of
protection concerns a myriad of topics, from matters of public
interest embracing all issues, to any other political, economic,
scientific, or informational issue.213
108
before publication can be made, commits an infringement of the
constitutional right, and remedy can be had at the courts.220
109
unconstitutionality.225 Unless the government can overthrow this
presumption, the content-based restraint will be struck down.226
225 Chavez, supra note 205. (Citing Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893
(1996). In this case, it was found that the act of respondent Board of Review for Motion
Pictures and Television of rating a TV program with “X”—on the ground that it “offend[s]
and constitute[s] an attack against other religions which is expressly prohibited by law”—
was a form of prior restraint and required the application of the clear and present danger
rule.)
226 Chavez, supra note 205. (Citing Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893
(1996); Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v.
COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R. No.
147571, May 5, 2001, 357 SCRA 496.
227 Id.
228 Id. (Citing Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996).)
229 Id. (Citing Schenke v. United States, 249 U.S. 47, 52 (19191), cited in Cabansag v.
Fernandez, 102 Phil. 151 (1957); and ABS-CBN Broadcasting Corp. v. COMELEC, 380
Phil. 780, 794 (2000).
230 Id. (Citing Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712,
cited in ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).
231 Id. (Citing Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712).
232 Id. (citing Osmeña v. COMELEC, 351 Phil. 692 (1998).
110
is justified by a compelling reason, and the restrictions imposed are
neither overbroad nor vague.233
285. Later on, the Court has adopted the clear and present
danger test in determining whether the Government restriction on
free speech is allowed. Another influential and persuasive case is
the case of Dennis v. United States,236 In the said case, the Court
held convicting a defendant of a non-speech related offense based
on speech is permissible only if the speech created a clear and
present danger that the crime would be attempted or perpetrated.237
286. The reason behind this rule is that “free speech and free
press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the
communication of views or subsequent liability whether in libel
suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent.”238
233 Id. (Citing Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v.
COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil.
780 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357
SCRA 496.)
234 People v. Perez, G.R. No. 21049, December 22, 1923.
235 Id.
236 Dennis v. United States, 341 U.S. 494, 1951.
237 Id.
238 Newsounds Broadcasting v. Dy G.R. Nos. 170270 & 179411, April 2, 2009].
111
287. The same test has been applied to the right to peaceable
assembly. In Bayan v. Ermita,239 the Court held that the right to
peaceably assemble may be limited upon showing a clear and
present danger to public order, public safety, public convenience,
public morals, or public health. As such, in denying or modifying
rally permits, it is an indispensable condition the clear and present
danger test be the standard for the decision reached.240
288. When the Court was confronted with the question of the
possible restrictions on the right to association, the Court held that
clear and present danger rule must likewise be applied.241 In
Gonzales v. Comelec,242 the Court quoted Douglas and held,
239 Bayan vs. Ermita, G.R. No. 169838, April 25, 2006.
240 Id.
241 Gonzales v. Commission on Elections, L-27833, April 18, 1969.
242 Id.
243 Id. (Citing Douglas, The Right of Association, 63 Col. Law Rev. pp. 1374-1375.(1963).
244 Gonzales, supra note 242.
112
matter even if it is being asked to declare the said statute void on
its face.245 Such fundamental liberties are accorded so high a place
in our constitutional scheme that any alleged infringement
manifest in the wording of statute cannot be allowed to pass
unnoticed.246
292. The right to free speech and free expression is one of the
rights that is of the most difficult rights to restrict under the Bill of
Rights. This argument is bolstered by the settled rule that any
attempt to restrict it must be met with an examination so critical
that only a clear and present danger would be allowed to curtail
it.247
245 Id.
246 Id. (Citing Near v. Minnesota, 283 US 697 (1931); Lovell v. Griffin, 303 US 444 (1938);
Thornhill v. Alabama, 310 us 89 (1940); Murdock v. Pennsylvania, 319 US 105 (1943);
Saia v. New York, 334 US 558 (1948); Kunz v. New York, 340 US 290 (1951); Staub v.
Boxley 355 US 313 (1958); Smith v. California, 361 US 147 (1959); Talley v. California,
362 US 60 (1960); Cramp v. Board of Public Instruction, 368 US 0278 (1961); Baggett v.
Bullitt, 377 US 360 (1964); Aptheker v. Secretary of State, 378 US 500 (1964).
247 Chavez, supra note 205.
248 CONST., art. III, sec. 4.
113
promote a “uninhibited robust and wide-open” discussion of public
issues.249
114
membership in a terrorist organization, the law suffers infirmity.
While it may appear that the provisions do not expressly prohibit
speech or conduct, the mere fact that the definitions are not clearly
crafted bolsters the fear that the State will have an unbridled
discretion in interpreting the said law and may cover legitimate
exercise of free speech, press, assembly and association.
115
validity of statutes regulating fundamental liberties under the Bill
of Rights such as free speech and the freedom of assembly.255
303. In using this test, the question that shall be asked is:
whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree. 256 The substantive
evil sought to be prevented must be “extremely serious” and the
degree of imminence “extremely high” before any utterance is
punishable.257 The words used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that the lawmaker has a right to
prevent.258
255 ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, January 28,
2000.
256 Schenke v. United States, 249 U.S. 47 (1919).
257 Bridges v. California, 314 U.S. 252 (1941).
258 Eastern Broadcasting Corporation v. Minister of Transportation & Communications, L-
59329, July 19, 1985.
259 Whitney v. California, 274 U.S. 357 (1927).
116
safety, public morals, public health, or any other legitimate public
interest.260
117
State. While a court order restraining the appellant from violating
the statute was in force, he made a speech during a workers’
assembly and urged his hearers generally to join a union. The Court
held that:
118
311. In Buckley v. Valeo264 as quoted in Ejercito v.
COMELEC, the Court held: “[i]n view of the fundamental nature of
the right to associate, governmental "action which may have the
effect of curtailing the freedom to associate is subject to the closest
scrutiny… Even a "significant interference” with protected rights of
political association" may be sustained if the State demonstrates a
sufficiently important interest and employs means closely drawn to
avoid unnecessary abridgment of associational freedoms.”265
119
Government has to prove that it has compelling state interest in
curtailing political thought and association in the name of national
security and whether or not it has used narrowly tailored means in
achieving such interest.
120
expression or association would be impaired.”267 (emphasis
supplied)
267 People v. Ferrer, L-32613-4, December 27, 1972 (citing Scales v. United States, 367
U.S. 203 (1961).
268 Rep. Act No. 11479 (2020), Sec. 10.
269 Scales v. United States, 367 U.S. 203 (1961).
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that the member shares the unlawful aims of the organization ... It
rests on the doctrine of 'guilt by association' which has no place here
... Such a law cannot stand.”270
270 Ferrer, supra note 268 (J. Teehankee, separate opinion), (citing Elfbrandt v. Russel,
384 U.S. 11, 1966).)
271 See Yates v. U.S., 354 U.S. 298 (1957); Communist Party v. Subversive Activities
Control Board 367 U.S. 1 (1961); Seales v. U.S. 367 U.S. 203 (1961); Aptheker v.
Secretary of State, 378 U.S. 500 (1964); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)
272 United Nations Office on Drugs and Crime. Digest of Terrorist Cases.
https://www.unodc.org/documents/terrorism/Publications/Digest_of_Terrorist_Cases/Eng
lish.pdf.
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for the purpose of engaging in terrorism, shall suffer the penalty of
imprisonment of six to 12 years.”273
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329. Material support in Section 8 is also ridden with the
same problem, it is not narrowly fitted to allow political
associations to survive. Association dues, active participation in
discussions, setting up meetings, providing refreshment and
allowing resources for basic necessities of members of a political
association absent specific intent to concretely further illegal aims
are essential for political associations to survive.276 As already
established, political associations work on a conglomeration of
ideas, some may be construed as illegal under Section 4 of R.A.
11479.
xxx
276See Buckley v. Valeo, 424 US 1 (1976); Roberts v. United States Jaycees, 468 US
609; Citizens Against Rent Control v. Berkeley, 454 US 290, 295–6 (1981); Service
Employees Int’l Union v Fair Political Practices Comm’n, 955 F.2d 1312, 1316 (9th Cir)
cert, denied, 505 U.S. 1230 (1992); ; In re Asbestos Litig, 46 F.3d 1284, 1290 (3rd Cir,
1994)
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Nations Security Council as a terrorist
organization, or organized for the purpose of
engaging in terrorism, shall suffer the penalty of
imprisonment of twelve (12) years.
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which commits any of the acts defined and
penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and
12 of this Act, or organized for the purpose of
engaging in terrorism shall, upon application of
the DOJ before the authorizing division of the
Court of Appeals with due notice and opportunity
to be heard given to the group of persons,
organization or association, be declared as a
terrorist and outlawed group of persons,
organization or association, by the said Court.
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333. These processes of classifying an individual or
organization as terrorist are repugnant to the constitutional
prohibition against bills of attainder because any individual or
organization falling under the Consolidated List will be considered
as a criminal under this jurisdiction without the benefit of judicial
due process.
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337. The lack of due process in the process of designating and
proscribing a terrorist individual or organizations has serious
implications in making recruitment and membership activities as
punishable under the questioned law. Without full determination
that an individual or group to which a respondent is accused of
being a member or having recruited persons therewith is organized
for terrorism purposes, there would be no reasonable basis to
curtail corresponding acts in the exercise of freedom of association
and assembly on the basis of clear and present danger.
282Tuason v. Register of Deeds, G.R. No. 70484, January 29, 1988 (J. Feliciano,
concurring opinion).
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ARGUMENTS IN SUPPORT OF THE APPLICATION
FOR A WRIT OF PRELIMINARY INJUNCTION
341. If not enjoined while the claims in the main case have not
yet been adjudicated, the implementation of the law would certainly
cause and/or threaten to cause grave and irreparable injuries to
Petitioner, in not only facing an actual credible threat of prosecution,
but also, in being subjected to rights violations without the
Petitioner knowing it, especially as regards the surveillance aspect.
342. If not enjoined while the claims in the main case have not
yet been adjudicated, the implementation of the law would entail the
appropriation and expenditure of public funds, which would amount
to illegal expenditures of money raised through taxation and
misapplication of public funds.
343. There are two (2) essential requisites for the issuance of
a TRO and/or a preliminary injunction: (a) the showing of a clear and
positive right especially calling for judicial protection or a right in
esse; and (b) the violation and proof of violation of an actually
existing right.
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345. Given that the government is poised to proceed with the
implementation of the law, and continue to cause violations of
Petitioner’s rights, causing and threatening to cause imminent,
grave and irreparable injury on the Petitioner, a preliminary
injunction is in order. Petitioner is clearly entitled to the relief
prayed for, which relief consists of restraining the commission or
continuation of the acts complained of, i.e., the enforcement of the
unconstitutional law.
130