Column: ABOVE THE LAW

By: ATTY. AYIN DREAM D. APLASCA

Is the law facially invalid?

Yes, you read the title of this article right. However, it’s not what you think. Let
me refer you to a case I came across when I was reviewing for the Bar exams. The case is
entitled Alfredo T. Romualdez vs. The Honorable Sandiganbayan and the People of the
Philippines (G.R. No. 152259, July 29, 2004).

The Supreme Court ruled that: “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. The theory is that '[w]hen statutes regulate or proscribe speech and
no readily apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad statutes with
no requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity.' “

We now have a new anti-terror law. The fuss got stronger when the President
signed the bill making it into law. Human rights lawyers wanted to strike it down for
being unconstitutional because of technicalities and even more dangerous provisions.

The law may be challenged on its face or right away without having to wait for
an actual injury. Every law is presumed valid unless there is a clear and unequivocal
breach of the Constitution.

A thorough analysis of the new anti-terror law exposes several provisions in the
law that are unconstitutional. It penalizes freedom of speech and because it is involved,
and thus facial challenge should be allowed.

The law also provides provision on one of the fundamental constitutional rights
which is the right against arrests without court warrants. Additionally, it provides
penalties for its violation.

Section 4 of the Anti-Terrorism Act of 2020 gives us a broad and vague definition
of “terrorism.” It at least discourages legal activity and exercise of freedom of speech
and association in any form or platform whether inside or outside of the country.
 The last part of the said section gives the government the discretion in
determining who are suspected terrorists based on how legitimate the act of dissent or
opposition. Individuals posting or expressing their complaints and criticism against the
government on social media may fall within this context.

Section 9 of the same Act penalizes individuals that incite terrorism by means of
speeches, proclamations, writings, emblems, and banners. Thus, freedom of speech is
directly involved.

Section 16 allows secret surveillance. Thus, before a person knows that there is an
action against him, he is already in jail with a maximum of 14 days detention with an
extension of another 10 days for a total of 24 days. Moreover, Section 34 provides that
the government can restrict travel even when the suspect has not yet been charged.

Section 27 provides for the preliminary order of proscription that can come as
fast as 72 hours. It allows the courts to declare preliminarily groups as terrorists even
without a full blown trial.

Lastly, Section 29 allows detention without judicial warrant of arrest. The law
authorizes the Anti-Terrorism Council (ATC) to order arrest of any person even if he or
she has not committed any crime of terrorism.

However, it is noteworthy that Rule 113, Section 5 of the Rules Court provides
for circumstances for a warrantless arrest. And a warrant of arrest can only be issued by
a judge. Under Section 2, Article III of the 1987 Constitution, warrant of arrest shall be
issued “upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complaint and the witnesses he may
produce.”

In his article “Why only judges may issue warrants of arrest”, former president
of the Integrated Bar of the Philippines (IBP), Atty. Abdiel Dan Elijah Fajardo,
mentioned that “only the cold neutrality of an impartial judge can balance the scales of
justice between operatives who have with them a plethora of state power and ordinary
citizens who can only rely on the bundle of rights accorded them by the Constitution.”

To invalidate the law needs the interpretation and decision of the Supreme Court. It
could also be repealed by Congress. We should think of the public good that would
prevail.

The Anti-Terrorism Act of 2020 will take effect 15 days after its publication in the
Official Gazette or in at least 2 newspapers of general circulation.