Unayan - Stat Con Legal Opinion Finals New

Unayan, Mohammad Haqim L.
(JD-1A)
Legal opinion in the constitutionality of Anti-Terror Act of 2020
December 20 2022
Atty. Nadine Karim-Barrat

Professor
Statutory Construction
Dear Maam:
This legal opinion seeks to answer your question as to whether or not

the Anti-Terror Act of 2020 is unconstitutional or partially
unconstitutional.
The same will construct the opinion as well in relation to the lessons
we have conducted in Statutory Construction.
THE FACTS:
On 9 December, the Supreme Court of the Philippines announced that

Justices voted to strike down two portions of the Anti-Terrorism Act of
2020.
The qualifier under Section 4(e) – that terrorism as defined by the law
does not include advocacy, protest, dissent and similar actions “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”
– is declared unconstitutional “for being overbroad and violative of
freedom of expression”, according to the Supreme Court. With this
decision, this part now reads: “Provided, that terrorism as defined in
this section shall not include advocacy, protest, dissent, stoppage of
work, industrial or mass action, and other similar exercises of civil and
political rights.”
The Supreme Court also declared unconstitutional the power of the

Anti-Terrorism Council to designate a person or a group as terrorists
based on a request by another country and upon determination that it
meets the criteria of relevant United Nations Security Council
Resolutions.
1
On 3 July 2020, Philippine President Rodrigo Duterte signed into law
the “Anti-Terrorism Act of 2020”, which replaced the Human Security
Act of 2007. Amnesty International had called on the Philippine
government to reject the law on the basis that it contained dangerous
provisions and risked further undermining human rights in the country.
What is its description?
The Anti-Terrorism Bill of 2020 was passed by the Senate to “prevent

and stop” terrorist attacks in the country by directly targeting individuals
who are profiled to be most likely to join considered terrorist groups or
perform such acts.
If this bill is passed into law, the executive branch of the government
and its forces will have the absolute power in defining what constitutes
the definition of terrorism, who are to be considered terrorists, and what
to do with these individuals. The bill empowers an appointed Anti-
Terror Council to assume judicial power to indict citizens not just based
on commitment of the act of terrorism but also the intent. Therefore,
any suspicion by state institutions such as the PNP (Philippine National
Police) and the AFP (Armed Forces of the Philippines) is enough basis
for being considered terrorists.
The terror bill also allows police, law enforcement, and military
personnel duly authorized by the Anti-Terrorism Council (ATC) a
council that the state or president will select or appoint to designate
groups and individuals as "terrorists” and carry out warrantless arrests
without incurring liability under Article 125, or the Revised Penal Code.
Also, the allowable period of detention has been extended to 14
working days, extendable by 10 days, which is against the Philippine
Constitution.
With this bill the government is in full position to kill dissent and
opposition.
The impact of Due Process:
Butch Olano, Amnesty International Philippines Section Director

said:
2
“The decision by the Supreme Court highlights key dangers of the Anti-
Terrorism Act of 2020 – its overbroad definition of terrorism and the
overreaching powers it grants the Anti-Terrorism Council. However,
only two portions of the law were declared unconstitutional, and it
remains deeply flawed and open to abuse by government authorities.”
“Even with the Supreme Court’s decision, the law still allows the police
and military to detain suspects without a warrant or charge for up to 24
days, which violates international law and standards. It grants
overbroad powers to security forces to conduct surveillance, and to the
Anti-Terrorism Council to designate groups and individuals as
‘terrorists’ without due process and without clear procedures to remove
such designation. Other dangerous provisions also remain.”
“We reiterate our call for the government to amend the Anti-Terrorism
Act to ensure it is consistent with international human rights law and
standards. Until this happens, the law will continue to pose a threat to
human rights defenders, activists as well as members of marginalized
groups and others wrongly accused of terrorism by granting the
government excessive and unchecked powers and being susceptible
to arbitrary and discriminatory enforcement.”
Due process is one of the important factors in constitution as it

clearly stipulates in the Constitution that Article III Section 1 provides
that no person shall be deprived of life, liberty, or property without due
process of law, nor any person be denied the equal protection of the
laws.
I cannot personally ignore the fact that section 4(e) of the Act in
a sense, overlapped the provisions of the Constitution by merely
describing an act of terrorism by releasing of dangerous substance, or
causing fire, or explosions, a mere act of any of those mentioned “acts”
are not supposed to define terrorism as we are actually experiencing
those “acts” in this point of time without resulting to a mass destruction
or mass effect in the public.
The implications of that bill is tagging of an individuals or groups

that the government accuses to have been participated in terror acts
can be detained or jailed without the chance to appeal. As well as any
individual who is suspected to be a terrorist can be imprisoned with a
life sentence without bail. It doesn’t give them an opportunity to defend
themselves from accusation as it clearly violates the provisions of the
3
Bill of Rights which is the “equal protection clause” which is clearly
“verba legis” .
Absolute power for state institutions like the PNP-AFP, permitting

violations of the constitution and human rights
Despite the tainted reputation of the AFP-PNP in terms of

intelligence, credibility, and intention, the bill still assumes that they are
the most rational institution to handle definitions such as terrorism,
terrorist acts, etc. Practically, they'll become the "judge, jury and
executioner."
No check and balance for the AFP-PNP. There is an absolute

monopoly of power in the hands of Duterte, just like what happened
during Martial Law.
Surveillance of suspects and interception and recording of

communications will be allowed for 60 days, even on the basis of mere
suspicion. The person wiretapped need not be informed.
Proscription of any individual, organization, association, or group

of people shall proceed ex parte. This means that the person/group
involved need not be informed of a petition proscribing them as
"terrorists," and they would have no realistic means to challenge this in
the courts.
THE APPLICABLE JURISPRUDENCE:
In this case, with due respect to the proper court, The Anti-Terror Act
of 2020, is partially UNCONSTITUTIONAL. It partially violates some of
the important provisions in the constitution and principles of statutory
construction.
Due process is one of the most important right of a citizen

because it protects them from any way of depriving them of their rights.
As the Philippines is a democratic country, it will never be a subject of
condition because it defines the purpose of democracy.
Residual power and faithful execution clause was the only

stronghold that it stood to be constitutional partially. As it withholds the
4
President to protect the country at all costs from the dangers of mass
destruction such as treason, rebellion and invasion.
ANALYSIS AND CONCLUSION:
I personally cannot state that the Anti-Terror Act (ATA) is not fully
unconstitutional as it the law in its form subjects that it prevents acts of
terrorism in any way to suppress grave violence and stop the uprising
of rebellion, treason or invasion. It is the duty of the President to protect
the country at all costs, as President Duterte’s character as a protector
will do everything for the purpose of the well-being and safety of the
citizen of the Philippines. But even though the intention was to prevent
terrorism, the law doesn’t concur totally for it strictly observes due
process.
I conclude that this act is partly unconstitutional because the

Act’s provisions specifically section 4(e) is promoting red-tagging that
automatically labeled as a terrorist by the government to whom they
suspect to be one of them by merely exercising the specified acts that
it postulates terror acts. It doesn’t give the persons suspected a chance
to defend themselves but rather they are automatically be deprived of
their right to bail and they can be imprisoned for life without exercising
due process.
In the light of its constitutionality, this Act also, with the stronghold of
the faithful execution clause of the President, will not take this Act as a
double-edged sword. The President has to critically observe and
execute the act carefully because easily, it can be subjected to a grave
abuse of discretion. It is an Act that must be observed by the three
branches of the government. It is hard to agree and disagree to the
statute but if the President will execute this carefully and strictly, I have
to agree to disagree.

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Unayan, Mohammad Haqim L.

Atty. Nadine Karim-Barrat

This legal opinion seeks to answer your question as to whether or not

On 9 December, the Supreme Court of the Philippines announced that

The Supreme Court also declared unconstitutional the power of the

What is its description?

The Anti-Terrorism Bill of 2020 was passed by the Senate to “prevent

The impact of Due Process:

Butch Olano, Amnesty International Philippines Section Director

Due process is one of the important factors in constitution as it

The implications of that bill is tagging of an individuals or groups

Absolute power for state institutions like the PNP-AFP, permitting

Despite the tainted reputation of the AFP-PNP in terms of

No check and balance for the AFP-PNP. There is an absolute

Surveillance of suspects and interception and recording of

Proscription of any individual, organization, association, or group

THE APPLICABLE JURISPRUDENCE:

Due process is one of the most important right of a citizen

Residual power and faithful execution clause was the only

ANALYSIS AND CONCLUSION:

I conclude that this act is partly unconstitutional because the

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