A Concurring Opinion

on the Anti-Terrorism Act in

CALLEJA v. EXECUTIVE SECRETARY

G.R. No. 252578

Submitted by:

ANGELES, AUSTIN LAMBERT L.

JD I-2
“While we must remain determined to defeat terrorism, it isn’t only terrorism we are
fighting. It’s the beliefs that motivate terrorists. A new ideology of hatred and intolerance
has arisen to challenge America and liberal democracy.”
- Senator John Kerry

Terrorism is a grave challenge to security and the human rights of individuals; it

leaves destruction of societies and lives in its wake. The Philippines acknowledges that
full repercussions of terrorism on the human rights of individuals and communities can
only be fully understood by those who have actually suffered and continue to suffer from
it. 1

Sen. Panfilo Lacson, the principal author of the Anti-Terrorism Act, said that the
rate of person being convicted is low with only one being really convicted by the said act
and only one group has been outlawed under the Human Security Act due to the
several difficulties in implementing the law.

In this joint petition, the petitioners primarily question the legality of Sections 4 to
12 of the ATA because they are thought to be overbroad and facially ambiguous, which
they claim to stifle protected speech. They claimed that the definition of terrorism and its
variations are illegal, rendering the law completely invalid or leaving the ATA with
"nothing to maintain its existence."

Free speech encompasses more than just the ability to publicly endorse political
and economic systems that are already in place. To enjoy additional rights, such as the
right to vote, freedom to peacefully assemble, and freedom of association, one must
first have the freedom of expression, which includes the freedom to speak "the notion
we despise, no less than the thinking we agree with.

Armed combat and common crimes are not like terrorism. It might take
advantage of the widespread disillusionment caused by the prevailing economic,
cultural, ideological, and political systems. Its techniques can also be more covert.
Recruitment is as simple as watching online movies, amplified by algorithms created to
increase dopamine rush and optimize advertising for people who control these
platforms.

It simu ltaneously benefits the majority that won't listen while defending minority
against majoritarian abuses committed inside the framework of democratic rule. When it
"induces a condition of discontent, produces dissatisfaction with conditions as they are,
or even stirs people to wrath," it will best achieve its lofty goal.

I concur with the ponencia.

Indeed, Terrorism is not a new phenomenon. It is also true that the perception
towards it has changed through time. It has produced several outcomes, good and bad.
Although it was seen as an attack to several rights of a person stated in the
Constitution, it cannot be denied that the intent of it can really be beneficial to the
majority. Especially, if it can be imposed properly and appropriately. This leads to the
guidelines and IRR of the said act and on how it will be discussing further in this
opinion.

As to whether to grant due course to 35 out of 37 petitions, the court voted in

favor of it to grant it due course for it shows merit as to its petitions. It has a great weight
on how the Anti-Terrorism Act will affect the lives of every person. The rights of every
person. How their rights will be severely violated. The petitions were meritorious. The
question of constitutionality of the said act should be construed as to its provisions,
implementing rules and regulations, penalties to be imposed, and generally how it will
be treated and applied to every person.

Under Section 1, Article VIII of the 1987 Philippine Constitution:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.2

According to the case of Pangilinan v. Cayetano3:

Separation of powers is fundamental in our legal system. The Constitution delineated the powers
among legislative, executive, and judicial branches of the government, with each autonomy and
supremacy within its own sphere.This is moderated by a system of checks and balances “carefully
calibrated by the Constitution to temper the official acts’ of each branch.

II

Eleven (11) members of the court, including Senior Associate Justice Perlas-
Bernabe, Justices Leonen, Hernando, Carandang, Lazaro-Javier, Inting, Zalameda,
Gaerlan, Rosario, J. Lopez, and Dimaampao, voted to apply a facial challenge to the
ATA, but only with regard to freedom of speech, expression, and cognate rights issues.
The majority agrees that future challenges against any of the provisions based on a real
and applicable case are not barred by this facial review.

A facial challenge contends that a government law, rule, regulation, or policy is

unconstitutional as written — that is, on its face. This challenge differs from an as-
applied challenge in that it invalidates a law for everyone — not just as that law is
applied to the particular litigant challenging it.4

In this case, several provisions of Republic Act No. 11479 were alleged to be
unconstitutional for it violate the rights of a person under the Bill of Right of the
Constitution. And whether the provision should be omitted and be treated as void.

III

Section 4 of Republic Act No. 11479 provides that:

Terrorism – Subject to Section 49 of the aforementioned act, terrorism is committed by any person who,
within or outside the Philippines, regardless of the stage of execution:

(a) Engages in acts intended to cause death or serious bodily injury to any person, or endagers a
person’s life;

(b) Engages in acts intended to cause extensive damage or destruction to a government or public facility,
public place or private property;

(c) Engages in acts intended to cause extensive interference with, damage or destruction to a critical
infrastructure;

(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of
biological, nuclear, radiological or chemical weapons; and

(e) Release of dangerous substances, or causing fire, floods or explosions

When the purpose of such act, by its nature and context, is to intimidate the general public or a
segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by
intimidation the government or any international organizations 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 and shall suffer the penalty of life
imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known
as “An Act Amending Articles 29, 94, 97, 98, and 99 of Act No. 3815, as amended, otherwise known as
the “Revised Penal Code”.

Provided, that, terrorism as defined in this section shall not include advocacy, protest, dissent,
stoppage or 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.

The main body of Section 4 is broken into three parts because it specifies the
actus reus, the mens rea, and the appropriate imposable penalty for the crime of
terrorism. Sections 4(a) to (e), or the overt acts that form the offense, are listed in the
first component as the conduct that makes up the actus reus of terrorism. The second
element lists the objectives or intents of any actus reus, including intimidating the
general public or a segment of it, inciting fear among people or spreading a fear-based
message, provocation of or influence over the government or any international
organization through intimidation, seriously undermining public safety, and seriously
destabilizing or destroying the fundamental political, economic, or social structures of
the nation. The nature and circumstances of the actus reus suggest that this is the
mens rea element of terrorism. The third element outlines the punishment that can be
imposed for the crime of terrorism, which is life in prison without the possibility of parole
and the availability of R.A. No. 10592.

I agree.

The “not intended” clause as provided to the said section is indeed

unconstitutional for it shows ambiguity on its coverage and has a weak way of
determining whether said clause is really present or not. It qualifies the proviso.

The exercise of civil and political rights is excluded from the scope of the law only
if it is "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".

Thus, prior restraints on the exercise of one's civil and political rights were
established by Congress. It is necessary to demonstrate that there was no deliberate
attempt to jeopardize the life of another person, give them great bodily harm, or
endanger the safety of the general public.

IV

As to the Section 10 of the same act should be treated as unconstitutional, it is not.

In a decision, the court analyzed whether the DOJ’s argument was able to
establish sufficient evidence the definitional elements of terrorism:

As to its organization, according to the ruling, the CPP-NPA must "indubitably" meet
the requirements of an organization. The court's ruling noted that the organization's
members include "farmers, workers, students, intellectuals, professionals, and
politicians."

The court noticed that the communist organization has members spread out across the
nation. "Likewise, evident is a nationwide membership strengthened by a well-
established, hierarchical and organizational structure," the ruling continued.

As to the organization in engaging in terrorism, the court cited section 3 of the

human security act, which provided a definition of terrorism, in the second component.
The court analyzed this further and questioned whether the "objective" of the CPP-
establishment NPA's was to engage in terrorism.

Acts created for widespread and extraordinary fear. Another element is the acts are
committed to sow and create a condition of widespread and extraordinary fear and
panic among the populace.” The court noted that “widespread” and “extraordinary” are
vague.

The court emphasized that "fear" and "panic" were qualified by the two words in the
security act, where "population" is the receiving noun. Crimes must significantly impact
the public in order to be considered both remarkable and widespread.

The court identified at least nine alleged atrocities committed by the CPP-NPA and
stated that, according to eyewitness testimonies, the episodes constitute crimes under
the Revised Penal Code and some provisions of the Human Security Act. On the side,
the court noted "authorship of the acts."5

Coerce the government. One of the criteria for defining terrorism is whether the
activities are carried out with the intent to force the government or to comply with an
unlawful demand. The nine occurrences in question, according to the court, had a
negligible impact on the general populace.

Under Section 25 of the same act (R.A. No. 11479) particularly the first paragraph,
provides that:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organization or

Associations – Pursuant to our obligations under United Nations Security Council
Resolution (UNSCR) No. 1373, the Anti-Terrorism Council shall automatically adopt the
United Nations Security Council Consolidated List of designated individuals, group of
persons, organizations, or associations designated and/or identified as a terrorist, one
who finances terrorism, or a terrorist organization or group.

In which majority of the justices agreed with the provision. And as for me, it is indeed
the right way. As a compliant to the UNSCR and for better identifying which is which.
And since ATC has been the one who’s in charge of the said matter, it is just right to
assign it to them for their expertise on the matter.

VI

Although the preceding ruling has declared the first paragraph of the same
section of the Anti-Terrorism Act not unconstitutional, the next paragraph was voted
unconstitutional.

Significant repercussions follow designation, including surveillance, bank

inquiries, investigations, and freezing orders. Before the group designated as a terrorist
could even use its right to free speech and related freedoms, all of these restrictions
would be enforced. This is equivalent to expressing oneself without restriction before
expressing dissent. Dissent is already barred from the hegemony of the majority by its
very character. Prior restraint will only serve to further quiet the marginalized.

VII

According to Chief Justice Gesmundo, the third paragraph in section 25 of the

ATA, as well as section 3(e)(3) of the TFPSA, empowers the ATC to: (a) adopt the list of
terrorist's provided by the United nations security council pursuant to its terrorism-
related resolutions; and (b) designate as terrorist, based on probable cause, individuals,
associations, organizations, and groups.

In the case of terrorism, an extraordinary situation where some valid

governmental interest is at stake, postponing the hearing until after deprivation is
justified. Self-deprivation is the first law of nature.6 Moreover, parallel to individual
liberty, is the natural and illimitable right of the state to self-preservation.7 On the part of
the state, protecting public welfare by way of police power is an act of self-
preservation.8 This is justified by the realization that some individual liberties must give
way to general welfare or public interest.9

I concur with the ponencia. Terrorism is rampant nowadays. Although it is, in

different forms, the life of people at stake should be protected and be preserved.

In essence, the public interest is basically an aggregate or collection of

everyone's private rights. this is also the essence of majority rule which is a neccessary
principle in this democrative governance.10

VIII

In an article, the DOJ lodged its RTC proscription case under Section 17 of the
Human Security Act (HSA) of 2007. It was replaced by ATA, which provides that
proscription proceedings should be handled by the Court of Appeals (CA).

“The law used in the RTC is already a law repealed by the Anti-Terror Act of 2020.
Appealing the case will not serve us any good or even filing an MR kasi walang batas
talaga na dapat pag-usapan dito,” Remulla said on CNN Philippines.

“The law covered by the case is a repealed law. Under the new law, the jurisdiction for
proscription of terrorist organizations will lie in the CA. We are now preparing for the
proscription of the CPP-NPA,” he added.

As defined, proscription or proscribe is to condemn or forbid as harmful or

unlawful.
 It was unanimously voted that Section 26, 27, and 28 of the ATA on judicial
proscription are not unconstitutional.

I agree. Sections 26 to 28 of the ATA adopt a system of proscription wherein the

CA declares a group of people, organization, or association to be a terrorist organization
and an outlaw. Proscription only applies to groups, in contrast to designation, which
refers to individuals. Proscription unambiguously applies to associations or groups
whose objectives are prohibited by Sections 4 through 14 of the ATA and other anti-
terrorism statutes. Therefore, it is legal to restrict, if not outright prohibit, the right to
establish or maintain such an association in order to combat and prevent terrorism. The
strategy used to achieve that goal is proscription.

If probable cause is proven through a "verified application which is sufficient in

form and substance," the burden of establishing probable cause for the purposes of
granting a preliminary proscription order is discharged.

Because the respondent "commits any of the acts defined and punished under
section 4 to 12 of the ATA., or is organized for the purpose of engaging in terrorism,"
section 26 and section 27 expressly state that "it shall be the burden of the applicant to
prove that the respondent is a terrorist and an outlawed organization or association
within the meaning of section 26."

IX

Section 20 of the aforementioned act (Republic Act No. 11479) provides that:
Custody of Intercepted and Recorded Communications – All tapes, discs other storage devices,
recordings, notes, memoranda, summaries, excerpts, and all copies thereof obtained under the judicial
authorization granted by the Court of Appeals shall, within forty-eight (48) hours after expiration of the
period fixed in the written order or the extension or renewal granted thereafter, be deposited with the
issuing court in a sealed envelope or sealed package, as the case may be, and shall be accompanied by
a joint affidavit of the applicant law enforcement agent or military personnel and the members of his/her
team.

In case of death of the applicant or in case he/she is physically disabled to execute the required
affidavit, the one next in rank to the applicant among the members of the team named in the written order
of the authorizing division of the Court of Appeals shall execute with the members of the team that
required affidavit.

It shall be unlawful for any person, law enforcement agents or military personnel or any custodian
of the tapes, discs, other storage devices, recordings, notes, memoranda, summaries, excerpts and all
copies thereof to remove, delete, expunge incinerate, shred, or destroy in any manner the items
enumerated above in whole or in part under any pretext whatsoever.

Any person who removes, deletes, expunges, incinerates, shreds or destroys the items
enumerated above shall suffer the penalty of imprisonment of ten (10) years.
 Indeed, penalties imposed to the future violators of this section shall be
penalized. It is still humane in form as this shows trust on safekeeping a document.

FINAL NOTE

Terrorism is a special kind of crime. It has been underlined that terrorism is not
isolated to a specific place or period of time and is frequently shrouded in mystery and
invisibility. Most terrorist efforts, including training, funding, and other forms of
preparation, entail months or even years of covert planning, in contrast to a traditional
conflict when military battles are visibly present.

The capabilities of terrorists have substantially increased over time, as have their
resources, which now include, among other things, highly developed training. The
widespread issue of terrorism necessitates interventions that do not only penalize an act
after it has been committed but also foresee dangers to disrupt and prevent a terrorist
attack before irreparable harm is done, all while maintaining the fundamental liberties
guaranteed by the Bill of Rights. As a result, the government's strategy for combating
terrorism has changed significantly from criminalization to preventive or precautionary
measures. This may be observed in laws like the PISA, R.A. No. 10168, and more
recently, the law that is being contested in the current petitions.

The Court cannot simply ignore the realities on the ground and the complex
problem of terrorism, not only in the Philippines but also around the world, given the
enormous responsibility of the government to protect its citizens and defend the State.
Since the Constitution "is not a prescription for national suicide" and "human rights are
not a stage for national destruction," as Justice Aharon Barak, President of the Israeli
Supreme Court, puts it, the Court needed to rely on a little practical wisdom in order to
strike a carefully calibrated balance between what is constitutionally acceptable and
what is not.

However, this Court is constantly conscious of its constitutional mandate to

safeguard substantive democracy, as expressed in fundamental values and human
rights, and to restrain the excesses of the other branches, which go hand in hand with
its obligation to give due regard to the inevitabilities of national security and public
safety as well as the effectiveness of law enforcement. The Court feels that it has
faithfully carried out this duty in this matter.

This Court painstakingly showed in the current petitions when judicial intervention
may be used to allay the concerns of those who feel frightened by the potential chilling
effect of enacting a statute before a real case is presented before the court. This Court
described the scope of the executive branch's authority in the fight against terrorism,
taking into account the permitted level of judicial intervention in a facial challenge, and
has invalidated the following legal measures for exceeding the Constitution's limitations:
1) The term "which are not intended to inflict death or significant physical harm to a
person, to jeopardize a person's life, or to create substantial risk to public safety" in
Section 4's proviso;

2) The second method of designation given in Section 25's Paragraph 2; and

3) The corresponding reference/provisions pertaining to the aforementioned items in the

IRR of R.A. No. 11479.

Terrorism is a serious and intricate problem. To address and battle its ever-
growing threat to lives, property, freedoms, and our way of life, it requires a multi-
sectoral and balanced strategy. Law enforcement actions are simply one strategy to
solve this issue. While some of its terms are upheld, subject to the court's prudent
interpretation, it is hoped that the rule of law would prevail in the ATA's implementation.
Indeed, maintaining respect for human rights must always be a priority. Otherwise,
courts will not be reluctant to use the heavy hand of justice against any abusive
enforcement in order to fulfill the constitutional role of the judicial branch.

Terrorism is a serious and intricate problem. To address and battle its ever-
growing threat to lives, property, freedoms, and our way of life, it requires a multi-
sectoral and balanced strategy. Law enforcement actions are simply one strategy to
solve this issue. While some of its terms are upheld, subject to the court's prudent
interpretation, it is hoped that the rule of law would prevail in the ATA's implementation.
Indeed, maintaining respect for human rights must always be a priority. Otherwise,
courts will not be reluctant to use the heavy hand of justice against any abusive
enforcement in order to fulfill the constitutional role of the judicial branch.

Footnotes:

(1)
https://www.ohchr.org/sites/default/files/Documents/Issues/Terrorism/SR/GA75/Philippin
es-GA75CT.docx
(2) Section 1, Article VIII, 1987 Philippine Constitution

(3) G.R. No. 238875 https://sc.judiciary.gov.ph/20238/

(4) https://www.mtsu.edu/first-amendment/article/954/facial-challenges

(5) https://www.rappler.com/nation/manila-court-junks-doj-petition-seeking-declare-cpp-
npa-terrorists/

(6) Soplente v. People, 503 Phil 241, 242 (2005), citing Samuel Butler.
(7) Estada v. Sandiganbayan

(8) See Dissenting Opinion of Justice Antonio T. Carpio in Southern Luzon Drug
Corporation v. Department of Social Welfare and Development, citing City Government
of Quezon City v. Hon. Judge Ericta. (1983)

(9) See Serrano v. Gallant Maritime Services (2009)

(10) Estrada v. Escritor (2003)