A challenge to the constitutionality of the (would-be) anti-terrorism law?

The controversial anti-terrorism bill has been the talk of the town for the past week. Some reporters and editors, possibly carried away by their passion, unwittingly wrote fake news. ABS-CBN and the Philippine Star, for example, reported that Taylor Swift joined the call for junking the proposed law, only to discover hours later that the American singer never talked about it. They have since taken down these articles, but not after some vigilant netizens took and posted screenshots.

Most criticisms of the proposed measure are motherhood statements that do not even cite which clauses of the bill they’re complaining about, so I guess it’s time to find out which is which.

We are talking about House Bill No. 6875 and its counterpart, Senate Bill 1083, both of which passed third reading.

Both houses eventually adopted the Senate version, and the bill is on President Duterte’s table, waiting for his signature. The Palace, however, said he is not in a rush to sign it as he will review the document first.

The most specific criticisms come from House Minority Leader Bienvenido Abante, who plans to challenge the prospective law’s constitutionality “the Supreme Court. More specifically, Abante said (1) warrantless arrests are against the Constitution, and (2) detention for 14 to 24 days without charges is unreasonable.

But then, warrantless arrests are not inherently unconstitutional as the Supreme Court itself approved warrantless arrests under Rule 113 of the Revised Rules of Criminal Procedure, which all 15 justices approved in 2000.

Some may argue that SB 1083-based warrantless arrests may not always fall under Rule 113, as SB 1083 Section 25 allows the Anti-Terrorism Council (ATC) to designate persons and groups as terrorists. And when you’re a designated terrorist, you get arrested.

The next problem, however, is that none of the current critics have legal standing to request judicial review.

The Supreme Court, citing the Anak Mindanao Party-list v. Executive Secretary, said, “a party who assails the constitutionality of a statute… must show … that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement.”

Unless the petitioner is a self-proclaimed member of Abu Sayyaf, ISIS, or the New People’s Army, all of whom are in the Department of Foreign Affairs’ List of Terrorists, such a petition for judicial review will likely fail.

As for the supposedly unconscionable 14- to 24-day detention without charges, the issue of legal standing persists. The government has not detained anybody using SB 1083 just yet.

Only one exception to this legal standing requirement exists, and that’s the Facial Challenge Doctrine.

The Supreme Court in Romualdez v. Comelec said,

“[a] facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible ‘chilling effect’ upon protected speech.”

That is, an outright facial challenge of SB 1083 is possible if it tramples on free speech, a view that former Supreme Court Associate Justice Antonio Carpio recently raised.

However, Senate President Vicente “Tito” Sotto aptly pointed out that SB 1083 provides clear limits to the definition of terrorism.

SB 1083 Section 4(e) states: “Terrorism… shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar 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.”

This clause very clearly excludes the exercise of free speech if it doesn’t intend to cause serious physical harm. Hence, it appears that anybody who will challenge SB 1083’s constitutionality will have to argue that utterances that intend to cause serious physical harm or serious risk to public safety fall under Protected Speech, and that’s absurd.

Online libel intends to harm a person’s reputation, and the Supreme Court in Disini v. Justice Secretary ruled that online libel is constitutional. Given this, what would the High Court say about speech that may cause serious physical harm or serious risk to public safety? Surely, death is worse than a tarnished reputation, right?

Despite all these, I admit that SB 1083 may still be abused just like any other penal statute. However, the Supreme Court itself taught us that we can’t complain about abuse even before abuse happens.

As for the lengthened detention period? SB 1083’s predecessor, the Human Security Act of 2007, allows for a shorter detention period of 72 hours (3 days) without charges, and that’s a significant flaw.

If a person is arrested and detained a little before 8 a.m. on a Friday, then the 72-hour limit means law enforcement will have only the 8 hours on Friday to build a case and submit it to a court, as most government offices are closed on weekends. If the government fails, the guy walks free on Monday morning.

Chargeless detention for up to 24 days is too long? That’s best decided by collecting empirical data. There’s no way to compute for the optimal grace period right now. Hence, in the interest of national security, and in light of the 2017 devastation of Marawi City, I feel that I should give the government the benefit of the doubt for now.

My stance on the Anti-Terrorism Bill will likely change as soon as I see actual abuses happen.

I will not succumb to paranoia.

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