“No other law empowers the state to arrest its people for exercising rights guaranteed by the Constitution, based solely on a law enforcer’s subjective opinion of their state of mind,” lawyer Jose “Chel” Diokno of the Free Legal Assistance Group told the Supreme Court on Feb. 2.
The High Court began oral arguments on the Anti-Terrorism Act of 2020, which faced 37 petitions questioning the constitutionality of certain provisions.
The oral arguments will resume on Feb. 9.
OPENING STATEMENT FOR CLUSTER II-A
Atty. Jose M. I. Diokno
May it please the Court.
This is a case of first impression. The Anti-Terrorism Act or ATA is novel in many ways, but what makes it stand out is the fact that it is the only law in our country that includes the exercise of fundamental rights in its definition of a crime.
While Section 4 of the Act provides that “…terrorism…shall not include advocacy, protest… and…similar exercises of civil and political rights,” it quickly adds “which are not intended to cause death or serious physical harm…, to endanger a person’s life, or… create a serious risk to public safety.” As the Anti-Terrorism Council recognized in the law’s IRR, [basic rights may still be liable for terrorism if he or she is impelled by the requisite intent and Exh. “A”] one who exercises purpose.
No other law empowers the State to arrest its people for exercising rights guaranteed by the Constitution, based solely on a law enforcer’s subjective opinion of their state of mind.
Petitioners actively engage in the exercise of civil and political rights. By including such exercise in its definition of terrorism, the law puts petitioners smack in the hot zone of proscribed criminal activity. The sword that the law dangles over their heads is real. The chilling effect on their rights is palpable.
Being directly aggrieved by the ATA, petitioners urge the Court to strike it down. It is impermissibly vague and overbroad, and fails the strict scrutiny test. It also tramples on our fundamental rights and freedoms.
First. The ATA punishes speech based on its content. Section 4 defining terrorism mentions advocacy, protest, and mass actions, which are all forms of expression. Section 9 punishes inciting others, by means of speech, to commit terrorism. Sections 5, 6, 8 and 10 punish threats and proposals to commit terrorism, training and recruitment of terrorists, and membership in a terrorist organization—which all involve speech.1
Second. As a content-based regulation of speech, the ATA comes to court with a heavy presumption of unconstitutionality and a heavy burden on Government to prove otherwise.2 To discharge that burden, Government must prove both a compelling state interest and the least restrictive means to protect that interest.3
Third. Government has not met its burden. The law’s definition of terrorism is not narrowly drawn and unnecessarily sweeps protected speech and conduct into its domain.
The ATA’s definition of terrorism has two essential elements. The first essential element occurs when a person engages in any of the acts shown on the left column of Exh. “B”.4
The second essential element occurs “when the purpose of such act, by its nature and context,” is any of those shown on the right column of Exh. “B”.5
The ATA offers a smorgasbord of acts, intents, and purposes. But what makes the law unpalatable is the fact that it dispenses with the requirement of a predicate crime—which appears to be the norm among nations6—and replaces it with “acts intended to cause death, etc….” Since intent is generally inferred from a person’s acts,7 the law gives State agents the power to arrest any citizen based on their subjective impression of his or her intent. Worse, it allows the State to simply presume the existence of intent from the citizen’s acts, even if the acts themselves do not constitute a crime.
Anyone, therefore, who tweets for people to attend a peaceful rally could be arrested for engaging in acts intended to endanger a person’s life due to the danger of COVID infection. [Exh. “C”] Anyone who posts on Facebook for the people to boycott a digital services company owned by someone close to the President, or who engages in a transport strike, could be arrested for engaging in acts intended to cause extensive interference with critical infrastructure, [Exh. “D”] since the term includes “…system[s] affecting telecommunications…and transportation…”8
If this law had existed in 1986, Cardinal Sin’s call for People Power would easily qualify as inciting to terrorism. [Exh. “E”] By exhorting the people to gather at EDSA, Cardinal Sin incited them to engage in acts intended to cause extensive interference with critical infrastructure and to endanger people’s lives. People power brought Metro Manila to a standstill, disrupted essential public services and had a debilitating impact on national defense, security and public safety. Cardinal Sin’s call would also qualify as seriously destabilizing the country’s fundamental political structure and creating a public emergency. These are but some examples of how the law invades areas protected by the Constitution.
In closing, to borrow the words of an esteemed member of this Court, “rather than a scalpel to precisely remove a specific evil,” the ATA “carelessly wields a wayward machete, striking…blows on the fundamental rights of Filipinos…”9 We implore the Court to strike down this law before it inflicts a mortal wound on the rights and freedoms that give life to our cherished democracy.