G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759, 252765, 252767, 252768, 16663, 252802, 252809, 252903, 252904, 252905, 252916, 252921, 252984, 253018, 253100, 253118, 253124, 253242, 253252, 253254, 254191 & 253420.

CARANDANG, J.

Rule Synopsis

Facial challenge to a statute. A law or governmental regulation is susceptible to a facial challenge as it involves or targets free speech, expression, and its cognate rights. The doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing ‘on their faces’ statutes in free speech cases.

Under the vagueness doctrine, a law is constitutionally defective when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and diﬀer as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

Under the overbreadth doctrine, a law may be struck down as unconstitutional if it achieves a governmental purpose by means that are unnecessarily broad and thereby invade the area of protected freedoms.

The strict scrutiny standard is a two-part test under which a law or government act passes constitutional muster only if it is: (1) necessary to achieve a compelling State interest; and (2) the least restrictive means to protect such interest or narrowly tailored to accomplish said interest. It is not limited to free speech cases, and is employed by the courts when the law or government act interferes with other basic liberties guaranteed under the Constitution. In free speech cases, it is applied when the restraint is content-based. A content-based prior restraint on speech is constitutionally permissible if it passes the clear and present danger rule, i.e. the speech may be restrained only if there is substantial danger that the speech will likely lead to an evil which the government has a right to prevent. Using the Branderbug test, constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is (a) directed to inciting or producing imminent lawless action and is (b) likely to incite or produce such action.

Facts

Thirty-seven (37) separate Petitions for Certiorari and/or Prohibition were ﬁled before the Supreme Court to challenge the constitutionality of various provisions of R.A. No. 11479 or the Anti-Terrorism Act of 2020 (ATA), and to prevent its implementation.

Petitioners primarily assail the validity of Sections 4 to 12 of the ATA due to their perceived facial vagueness and overbreadth that purportedly repress protected speech. It is argued further that the unconstitutionality of the deﬁnition of terrorism and its variants will leave it with “nothing to sustain its existence.”

The petitioners alleged, among others, that they are under the risk of prosecution under the law for their criticisms of the government and their support of IP groups. Some of them alleged that their bank accounts were frozen for supposedly being connected to terrorism. They also claimed being harassed and terrorist-tagged. Petitioners who are members of the academe allege that the law will have a chilling effect on academic freedom.

The implementing rules of the law was approved on October 14, 2020, and the Anti-Terrorism Council (ATC) was created. ATC then designated the CPP/NPA and 16 other organizations as terrorists. The Anti-Money Laundering Council (AMLC) issued freeze orders against the bank accounts of said groups. Several individuals were likewise designated as terrorists, and two Aetas have so far been arrested and charged of violation of Section 4 of the law.

Issues

Should R.A. No. 11479 be declared unconstitutional on its entirety?
Is Section 4 of R.A. No. 11476, defining the crime of terrorism, and providing for the penalties and exceptions therefore unconstitutional?
Should the Court strike down the entirety of the proviso in Section 4 of R.A. No. 11476 as unconstitutional?
Is the Threat to Commit Terrorism, as penalized under Section 5, of the ATA unconstitutionally vague or overbroad?
Is Participating “in the x x x training x x x in the commission of terrorism” under Section 6 unconstitutionally vague or overbroad?
Is Proposal to Commit Terrorism under Section 8 of the ATA unconstitutionally vague or overbroad?
Is Inciting to Commit Terrorism under Section 9 of the ATA is facially unconstitutional?
Is Recruitment to and Membership in a Terrorist Organization under Section 10 unconstitutionally vague or overbroad?
Is Section 12 of the ATA, insofar as it penalizes the provision of “training” and “expert advice” as material support, unconstitutionally vague or overbroad?
Are the designation and proscription provisions in ATA unconstitutional?
Are the provisions on designation violative of the doctrine of separation of powers?
Is the “inordinately long detention period” under Section 29 unconstitutional?

Ruling and Discussion

No. R.A. No. 11479 should not be declared unconstitutional on its entirety.

The ATA provides for a separability clause that holds as constitutional the other parts or provisions not affected by the other provisions which may be declared unconstitutional by the court. Furthermore, does not ﬁnd the essential provisions of the ATA, particularly the definition of terrorism under Section 4 of the ATA, absolutely unconstitutional.
In part. The proviso of Section 4 of R.A. No. 11476 is unconstitutional, while the other portions thereof are not unconstitutional.

Section 4 of R.A. No. 11476 consists of two parts: the main part provides for the actus reus, the mens rea, and the imposable penalty; the second part is the proviso.

The main part is not unconstitutional.

(a) It cannot be assailed through a facial challenge since the acts constitutive of the crime of terrorism under paragraphs (a) to (e) of Section 4 are clearly forms of conduct unrelated to speech. The constitutionality of the main part — being a primarily non-speech provision — must stand.

(b) Terrorism, as defined in Section 4 of the ATA, is not impermissibly vague. The offense consisting of the two components of the main part (actus reus and mens rea) taken together, create a demonstrably valid and legitimate deﬁnition of terrorism that is general enough to adequately address the ever-evolving forms of terrorism, but neither too vague nor too broad as to violate due process or encroach upon the freedom of speech and expression and other fundamental liberties. The absence of a statutory deﬁnition of a term used in a statute will not render the law ‘void for vagueness,’ if the meaning can be determined through the judicial function of construction. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a suﬃciently deﬁnite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the “vagueness” doctrine merely requires a reasonable degree of certainty for the statute to be upheld — not absolute precision or mathematical exactitude. To be invalidated, the law must be utterly vague on its face, such that it cannot be clariﬁed by either a saving clause or by construction.

(c) The various general terms in Section 4 are not unconstitutionally vague. A limiting construction may be imposed on a statute if it is “readily susceptible” to such a construction, such that the “text or other source of congressional intent identiﬁed a clear line that this Court could draw.” First, the Court is not without authority to draw from the various aids to statutory construction, such as the legislative deliberations, to narrowly construe the terms used in the ATA and thus limit their scope of application. Second, the meaning of the other terms used in the main part of Section 4 can be found in jurisprudence as well as in dictionaries.

(d) The phrase “regardless of the stage of execution” is not unconstitutionally vague. While inchoate crimes¹ are punished as a preventative measure, Section 4 does not punish “the mere thought and inception of an idea in a person” as an act of terrorism”. No law can punish a man for what he thinks, imagines, or creates in his mind. Mental acts are not punishable even if they would constitute a crime had they been carried out. Mere intention producing no effect can never be a crime. The phrase “regardless of the stage of execution” that immediately follows can only refer to “external acts” and speciﬁcally, the acts of execution. Furthermore, the three stages of execution — attempted, frustrated, and consummated are deﬁned under Article 6 of the RPC.

(e) The qualifying clause “when the purpose of such act, by its nature and context” is not unconstitutionally vague. Applying the maxim noscitur a sociis in statutory construction, “nature,” as used in Section 4, can only refer to the inherent character of the act committed. Meanwhile, “context” can only refer to the interrelated conditions in which any of the acts enumerated in Section 4 (a) to (e) was committed. These are the standards which law enforcement agencies, the prosecution, and the courts may use in determining whether the purpose of or intent behind any of the acts in Section 4 (a) to (e) is to intimidate the 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 organization, etc.

(f) Terrorism as defined in the ATA is not overbroad. The main part of Section 4 fosters a valid State policy to combat terrorism and protect national security and public safety, consistent with international instruments and the anti-terrorism laws of other countries. It shows that Congress did not formulate the deﬁnition of terrorism out of sheer arbitrariness, but out of a desire to be at par with other countries taking the same approach, presumably so that they could also take a more proactive attitude in combating terrorism. The general wording of the law is a response to the ever-evolving nature of terrorism. The Court recognizes that Congress cannot be expected to enumerate all speciﬁc acts which may be resorted to by terrorists in pursuing their goals. Terrorism laws worldwide were not merely enacted for punishment but mainly for prevention. Requiring an exhaustive list of predicate crimes from Congress is impractical because of the wide range of possible terrorist acts. The Court also finds that the main part of Section 4 of the ATA adopts the necessary, proportionate, and least restrictive means in its implementation to counter the complex issue of terrorism in the country. Finally, concerned citizens are not left without a remedy since any perceived vagueness or overbreadth of the terms used in the main part of Section 4 may still be assailed in the appropriate actual cases that may be brought before the courts at the proper time beyond the auspices of this delimited facial challenge.

The proviso is unconstitutional.

The “Not Intended” Clause² of Section 4’s proviso is unconstitutional under the strict scrutiny test, as well as the void for vagueness and overbreadth doctrines. The proviso 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, 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.”

(a) The proviso is a proper subject of a facial analysis, because based on its text, it is a provision that innately aﬀects speech and expression as it directly pertains to “advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights.”

(b) The “Not Intended Clause” is Void for Vagueness and Overbreadth. It was enough for Congress to state that terrorism as deﬁned in Section 4 “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights.” Congress unnecessarily included the “Not Intended Clause,” thereby invading the area of protected freedoms. By doing so, it “shifts the burden” upon the accused “to prove that [his] actions constitute an exercise of civil and political rights,” contrary to the principle that it is the government that has the burden to prove the unconstitutionality of an utterance or speech. The “Not Intended Clause” requires a person accused under Section 4 to prove that his advocacy, protest, dissent, or any other exercise of his civil and political rights was not tainted with intent 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.

Furthermore, the “Not Intended Clause” causes serious ambiguity since there are no suﬃcient parameters that render it capable of judicial construction. By their very deﬁnition, protests, mass actions, or other similar exercises of civil and political rights, are intended to express disapproval against someone else’s proposition or stance on a given issue and corollary to that, to advance one’s own proposition and thus, should not be considered as terrorist conduct. One may dangerously suppose that “intent 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” may be inferred from strong public clamor attendant to these types of speeches.

“Not Intended Clause” is void for vagueness as it has a chilling eﬀect on the average person. Before the protester can speak, he must ﬁrst guess whether his speech would be interpreted as a terrorist act under Section 4 and whether he might be arrested, indicted, and/or detained for it. The chilling effect created by the aforesaid vague clause is sharply brought to the fore in this case especially when one considers the ATA’s provisions on designation, proscription, and arrest and detention. In addition to these, an ordinary citizen might forego speaking out against the government if only to avoid being branded as a terrorist by the government in order to protect his reputation.

The “Not Intended Clause” renders the proviso overbroad. By virtue of the said clause, Section 4 supposes that speech that is “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 punishable as terrorism despite the speech no rendering the commission of terrorism imminent. the expression and its mere intent, without more, is enough to arrest or detain someone for terrorism. This is a clear case of the chilling of speech. (d) The “Not Intended Clause” also fails the strict scrutiny test. Under the strict scrutiny test, the government has the burden of proving that the regulation: (1) is necessary to achieve a compelling State interest; and (2) is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest. While there appears to be a compelling state interest, such as to forestall possible terrorist activities in light of the global eﬀorts to combat terrorism, punishing speech 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 not the least restrictive means to achieve the same. The clause also completely discounts the Bradenburg standard (see Other questions and important information).
No. The Court should not strike down the entirety of the proviso as unconstitutional.

The Court ﬁnds that only the “Not Intended Clause,” i.e., “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” needs striking down. What precedes it, the phrase “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,” is hereby retained because it accurately reﬂects the legislative intent and aﬃrms the Court’s view on this issue. Therefore, the Court strikes down the “Not Intended Clause” as unconstitutional and categorically aﬃrms that all individuals, in accordance with Section 4 of Article III of the 1987 Constitution, are free to protest, dissent, advocate, peaceably assemble to petition the government for redress of grievances, or otherwise exercise their civil and political rights, without fear of being prosecuted as terrorists under the ATA.
No. The Threat to Commit Terrorism, as penalized under Section 5, of the ATA is not unconstitutionally vague or overbroad.

The provision is not impermissively vague. Rule 4.5 of the IRR appears to have adopted the “credible” threat standard when it restricts the application of Section 5 only to communications made “under circumstances which indicate the credibility of the threat.” This is in line with the Court’s consistent interpretation that threat to refer only to those “credible” threat statements.

The provision is also not overbroad. The State is not permitted to create a prima facie case of terrorism against persons who engage in protests, dissents, advocacies, and other exercises of civil and political rights. Consequently, when a statement is uttered in circumstances that would clearly qualify it as political speech, it cannot be punished as a “threat” under Section 5. Furthermore, in the interpretation and application of the provisions of Section 5, the Brandenburg standard, which the Court deems incorporated in its reading, should be applied. Thus, statements or communication can only be penalized as threats when they are: (1) directed to producing imminent terrorism; and (2) is likely to produce such action.
No. Participating “in the x x x training x x x in the commission of terrorism” under Section 6 is not unconstitutionally vague or overbroad?

Section 3 (k) deﬁnes training as the “giving of instruction or teaching designed to impart a speciﬁc skill in relation to terrorism as deﬁned hereunder, as opposed to general knowledge.” Properly construed with this deﬁnition, training may be penalized under Section 6 only when: (1) the “training” is with the purpose of committing terrorism; (2) the training is intentionally designed to impart a skill in relation to terrorism; and (3) the skill imparted has speciﬁc relation to a projected act of terrorism, not mere general knowledge. Thus, in order to be punishable under Section 6, the transfer of knowledge must be demonstrated to have been done knowingly and willfully with the speciﬁc aim of capacitating the trainee to commit an act of terrorism. Teaching of “general knowledge,” as in classroom instruction done for purely academic purposes and in good faith, is expressly excluded from the deﬁnition of training under Section 3 (k).
No. Proposal to Commit Terrorism under Section 8 of the ATA is not unconstitutionally vague or overbroad.

According to Article 8 of the Revised Penal Code (RPC), which has supplementary application to special laws, 336 conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. In this case, Section 8 penalizes proposal only when the crime being proposed are those that are deﬁned in Section 4. It does not provide for a penalty for proposal of the other acts prohibited under the ATA.
No. Inciting to Commit Terrorism under Section 9 of the ATA is not facially unconstitutional.

Terrorism and communication that can directly and unmistakably lead to or aid terrorist activities raise grave national security concerns that would justify government regulation of speech. The State therefore has the right, nay, the duty, to prevent terrorist acts which may result from incitement. While the terms “inciting” or “incitement” are not themselves deﬁned in the ATA, reference can be made to the Senate deliberations which shows that Section 9 was intended to operate only within a narrow and conﬁned area of speech where restrictions are permitted, and only within the confines of the intent-purposes parameters of Section 4. The international understanding of “incitement” as “a direct call to engage in terrorism, with the intention that this will promote terrorism, and in a context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist act occurring,” appears to be reflected in the legislative characterization. The Court ﬁnds that speech or statements can be penalized as inciting under Section 9 only if they are: (1) direct and explicit — not merely vague, abstract, equivocal — calls to engage in terrorism; (2) made with the intent to promote terrorism; and (3) directly and causally responsible for increasing the actual likelihood of terrorist attacks.
In part. Recruitment to and Membership in a Terrorist Organization under Section 10 is unconstitutionally vague or overbroad in part. The phrase “organized for the purpose of engaging in terrorism” must be struck down for being vague, overbroad, and for failing to meet the strict scrutiny test.

The questioned provision is found in the third paragraph of Section 10 which reads:

“Any person who shall voluntarily and knowingly join any organization, association or group of persons knowing that such organization, association or group of persons is proscribed under Section 26 of this Act, or designated by the United Nations Security Council as a terrorist organization, or organized for the purpose of engaging in terrorism, shall suﬀer the penalty of imprisonment of twelve (12) years.”

(a) Membership under Section 10 is neither unconstitutionally vague nor overbroad. The third paragraph of Section 10 is susceptible to a facial challenge as it involves or targets free speech, expression, and its cognate rights, such as freedom of association. Nonetheless, the prohibition to voluntarily and knowingly join proscribed and UNSC-designated organizations are permissible restrictions on the freedom of association. Section 10 punishes membership under three instances: first, when a person voluntarily and knowingly joins any organization, knowing that such organization is proscribed under Section 26 of the ATA; second, when a person voluntarily and knowingly joins any organization, knowing that such organization has been designated by the UNSC as a terrorist organization; and third, when a person voluntarily and knowingly joins any organization, knowing that such organization has been organized for the purpose of engaging in terrorism. The Court ﬁnds no impermissible vagueness in the ﬁrst and second instances as the persons are suﬃciently given fair notice of the conduct to avoid, and law enforcers are not given unbridled discretion to determine who should be prosecuted and penalized. Moreover, the Court also ﬁnds that penalizing membership under the ﬁrst two instances are not overbroad. The restriction does not sweep unnecessarily and broadly towards protected freedoms, because to reiterate, only those who voluntarily and knowingly join an organization, association, or group despite knowing that the said organization, association, or group is a proscribed organization or has been designated by the UNSC, may be penalized. Thus, the right to join, to associate, or to aﬃliate oneself with a judicially proscribed organization or an organization designated as a terrorist by the UNSC is, for all intents and purposes, not constitutionally protected considering that these organizations have already been determined, after appropriate proceedings, to be in violation of the ATA, R.A. No. 10168 or the Terrorism Financing Prevention and Suppression Act, or the relevant international instruments on terrorism — purposes that are clearly contrary to law.

Furthermore, the mere membership is not penalized under the third paragraph of Section 10. The requirement under the provision is that a person shall voluntarily and knowingly join a judicially proscribed or a UNSC designated organization, despite knowing the status or nature of the organization or group as such. Thus, the membership penalized under Section 10 must be a knowing membership, as distinguished from a nominal or per se membership.

However, the third instance of membership, as embodied by the phrase “organized for the purpose of engaging in terrorism,” must be struck down for being vague, overbroad, and for failing to meet the strict scrutiny test. It is impremissively vague as there is nothing in the law or the Senate deliberations which provides rules, guidelines or parameters to determine and verify the nature of said organization, association, or group as one “organized for the purpose of engaging in terrorism.” The third instance of membership penalized under Section 10 would necessarily fail to accord persons fair notice of what conduct they should avoid, and would give law enforcers unrestrained discretion in ascertaining that an organization, association, or group was organized for the purpose of engaging in terrorism. Hence, charges under this provision would be very easy to fabricate. The provision is also overbroad for while the State remains to have a compelling interest in punishing membership in groups organized for the purpose of engaging in terrorism, the Court ﬁnds that the assailed phrase would unnecessarily overreach into innocent and protected membership. Moreover, the phrase “organized for the purpose of engaging in terrorism” does not meet the second requisite of the strict scrutiny test. The phrase is not narrowly tailored and fails to employ the least restrictive means to accomplish the interest of preventing membership in terrorist organizations, associations or groups.
No. Section 12 of the ATA, insofar as it penalizes the provision of “training” and “expert advice” as material support, is not unconstitutionally vague or overbroad.

Section 12 may be subject to a facial challenge only insofar as it regulates certain speech acts. The Court ﬁnds that Section 12 implicates freedom of speech only insofar as it regulates the provision of “expert advice or assistance” and “training” as material support. However, the terms “training” and “expert advice or assistance” under Section 12 requires knowledge on the part of the provider that the individual or organization, association, or group of persons to which he provided such material support is committing or planning to commit an act of terrorism. Without such knowledge, prosecution under Section 12 must necessarily fail.
In part. The designation and proscription provisions in ATA unconstitutional in part.

(a) Designation. Section 25 bestows on the ATC — an administrative body — the power to designate a person or an organization as a terrorist, making the power and the process executive in nature. It has three modes: first, through the automatic adoption by the ATC of the designation or listing made by the UNSC; second, through the ATC’s approval of requests made by other jurisdictions or supranational jurisdictions to designate individuals or entities that meet the criteria under UNSC Resolution No. 1373; and third, designation by the ATC itself, upon its own ﬁnding of probable cause that the person or organization commits, or is attempting to commit, or conspired in the commission of, the acts defined and penalized under Sections 4 to 12 of the ATA.

(b) Proscription. In contrast to designation which is executive in nature, the process of proscription under the ATA remains judicial in nature, by requiring its application to be ﬁled, this time, with the Court of Appeals (CA). Proscription was previously present under Section 17 of the Human Security Act. Unlike the HSA, however, the ATA augmented the proscription process by empowering the CA to issue a preliminary order of proscription under Section 27, if probable cause exists that its issuance is necessary to prevent the commission of terrorism. The ATA, in addition, also authorized the consideration of requests to proscribe from foreign and supranational jurisdictions, under Section 28.

(c) Both Designation and Proscription have the same primary effect. first, an application for surveillance of “a judicially declared and outlawed terrorist organization as provided in Section 26” and between members of a designated person as deﬁned in Section 3 (e) of R.A. No. 10168 372 may already be filed with the CA by law enforcement agents or military personnel under Section 16; second, the examination of records with banking and other ﬁnancial institutions and the ex parte freezing of assets may be done by the AMLC under Sections 35 and 36, on its own initiative or at the request of the ATC, upon the issuance of a preliminary order of proscription or in case of designation; and third, there is criminal liability under Section 10 for those who recruit others to participate in, join, or support, or for those who become members of, organizations, associations, or groups proscribed under Section 26 or those designated by the UNSC.

(d) Similar processes adopted in other jurisdictions show that designation and proscription are accepted preventive and extraordinary forms of counterterrorism measures. Furthermore, these are preventive measures enacted in the exercise of the police power of the State. Nonetheless, the provisions on designation and proscription are susceptible to a facial challenge. The results or the outcomes of being designated under Section 25 or proscribed under Sections 26 to 28, when implemented in conjunction with the other provisions of the ATA, have a signiﬁcant impact on free speech and expression, and present outright freedom of speech and expression restrictions.

Designation

(e) The first mode of designation is a constitutionally acceptable counterterrorism measure under Section 25. It complies with the strict scrutiny test, and is a legitimate exercise of the state’s police power.

First, compelling state interest exists in enacting the first mode of designation, i.e. authorizing the automatic adoption of the UNSC Consolidated List, under Section 25. The challenged provision is intended: (1) to forestall possible terrorist activities of foreigners within the Philippine jurisdiction or against Philippine nationals abroad; (2) to cooperate with global eﬀorts against terrorist groups who are known to operate across territorial borders; and (3) to comply with our international obligations under UNSC Resolution No. 1373. In automatically adopting the designation pursuant to UNSCR No. 1373, the ATC does not exercise any discretion to accept or deny the listing, and it will not wield any power nor authority to determine the corresponding rights and obligations 423 of the designee. Instead, it merely conﬁrms a ﬁnding already made at the level of the UNSC, and aﬃrms the applicability of sanctions existing in present laws. Second, the first mode of designation is narrowly tailored and the least restrictive means to achieve the objective of the State. There are adequate guidelines in UNSCR No. 1373. Here, it was not shown that there is a less restrictive alternative to comply with the State’s international responsibility pursuant to UNSCR No. 1373 and related instruments to play an active role in preventing the spread of the inﬂuence of terrorists included in the Consolidated List. Neither was it proven that the ﬁrst mode of designation imposes burdens more than necessary to achieve the State’s articulated interest. Moreover, the mechanism of automatic adoption of the UNSC Consolidated List is reasonable relative to the underlying purpose of complying with the country’s international obligations to cooperate in the eﬀorts to prevent terrorism. Furthermore, there are adequate standards and rigorous procedures for listing under UNSCR Nos. 1373, 1989, and 2368, as well as under the guidelines of the Sanctions Committee which require inter alia multilateral acceptance among member states for listing. Together, they provide a suﬃcient framework in the implementation and execution of the designation process in the UN prior to the automatic adoption of the same by the ATC.

(f) The second and third modes of designation are constitutionally problematic, and must be struck down.

While the State has established a compelling interest, the means employed under the second mode of designation, i.e. adoption by the ATC of request for designations by other jurisdictions or supranational jurisdictions after determination that the proposed designee meets the criteria for designation of UNSCR No. 1373, is not the least restrictive means to achieve such purpose. Under this second mode of designation, unbridled discretion is given to the ATC in granting requests for designation based on its own determination. Likewise, there appears to be no suﬃcient standard that should be observed in granting or denying such requests. The ATC is left to make its own determination based loosely on “the criteria for designation of UNSCR No. 1373,” without any further suﬃcient parameters for its guidance. This may therefore lead to a quid pro quo designation with the requesting jurisdiction at the expense of the rights of a prospective designee. There are also no proper procedural safeguards and remedies for an erroneous designation in this respect. There are no remedies provided under the second mode. There is no process for delisting, nor any automatic review provision. The lack of a remedy aside, there exists other suitable alternatives which are far less intrusive and potentially injurious to protected rights. These include the adoption of an internal watchlist by law enforcement agencies or the maintenance of a database to monitor potential threats, and judicial proscription under Section 26.

(g) The third mode of designation also fails to meet the strict scrutiny test and is overly broad.

The means employed by the State under the third mode, i.e. designation on the basis of finding of probable cause, are not narrowly drawn to meet such interest. Same as in the second mode of designation, however, there are no proper procedural safeguards and remedies for an erroneous designation under the third mode, thereby creating a chilling eﬀect on speech and its cognate rights and unduly exposes innocent persons to erroneous designation with all its adverse consequences. Another cause of concern in allowing this mode of designation is the lack of discernible criteria in the statute by which the ATC may determine “probable cause to designate.”

The designation by the ATC per se does not lead to either of the “recognized” determinations of probable cause (executive ³ or judicial⁴). Designation is a peculiar and an extraordinary executive function not akin to these two traditional determinations. As such, easily discernible standards for its implementation, similar to that for the ﬁrst mode, should have been put in place, but there are none. There is just reason to believe that the third mode confers carte blanche license on the ATC to designate just about anyone that it deems to have met the requirements for designation, dependent as it is on the ATC’s own determination of what it deems as suﬃcient probable cause.

Proscription

(h) Proscription under Sections 26, 27, and 28 of the ATA is a valid exercise of police power and passes the strict scrutiny test.

The procedure of proscription instituted under the ATA is a judicial process and is done based on a determination of probable cause by the CA. In the application for proscription, procedural due process is observed: the group of persons, organization, or association intended to be judicially declared a terrorist is aﬀorded fair notice, as well as an open hearing. The CA’s decision on the DOJ’s verified petition for proscription is likewise published in a newspaper of general circulation. Furthermore, even before an application is ﬁled with the CA, the matter should pass through three levels of investigation: first, when the DOJ asks for authority from the ATC to ﬁle the application; second, when the ATC asks the NICA to give its recommendation to the request made by the DOJ; and finally, the necessary executive determination to be made by the ATC before it gives its imprimatur to the DOJ to file the application. These steps provide layers of protection that may help prevent any arbitrary and erroneous proscription.

Preliminary prescription orders are also not unconstitutional. The Court ﬁnds that allowing the issuance of a preliminary order of proscription would not cause the premature classiﬁcation of a group as a terrorist without the benefit of a judicial trial in violation of the prohibition on the enactment of bills of attainder. The objective of this order is to prevent the commission of terrorism. Its consequences are limited those provided by law, namely: the freezing of assets and/or bank inquiry or investigation by the AMLC. Also, the procedure for the issuance of a preliminary order of proscription is subsumed in the application for proscription, for which the subject has already been notiﬁed.
No. The provisions on designation are not violative of the doctrine of separation of powers.

The first mode is not. The questions as to the second and third modes are rendered moot by the declaration of their unconstitutionality.

Under the first mode, the ATC does not exercise any form of legislative or judicial power in such instance as the determination of designated persons or groups will be done by the UNSC, a premier international body, itself, in conjunction with the Philippines’ own international commitments. In contrast, designation under the second and third modes, are to be determined purely by the ATC, a national executive agency. Furthermore, the consequences of designation overlap with proscription, which for its part must be based on a judicial determination of probable cause in accordance with the Constitution. Nonetheless, the second and third modes should already be struck down for its abridgement of free speech rights due to its impermissible chilling eﬀect.
No. The “inordinately long detention period” under Section 29 is not unconstitutional.

Section 29 is susceptible to a facial challenge. “The threat of arrest without a judicial warrant and prolonged detention would be more than chilling enough to stiﬂe, suppress, if not totally snuﬀ out, any ﬁre, ﬂame, or even ﬂicker, of indignation or protest against government corruption, oppression, and abuse.” Although Section 29 is not exclusively a speech provision per se, its implementation has a signiﬁcant impact in the exercise of the freedom of speech and expression in that it intimidates individuals and groups in the exercise of such rights.

Section 29, properly construed, does not provide for an “executive warrant of arrest” nor warrantless arrest on mere suspicion. under Section 29, a person may be arrested without a warrant by law enforcement oﬃcers or military personnel for acts deﬁned or penalized under Sections 4 to 12 of the ATA but only under any of the instances contemplated in Rule 9.2, i.e., arrest in ﬂagrante delicto, arrest in hot pursuit, and arrest of escapees, which mirrors Section 5, Rule 113 of the Rules of Court. Once arrested without a warrant under those instances, a person may be detained for up to 14 days, provided that the ATC issues a written authority in favor of the arresting oﬃcer pursuant to Rule 9.1, upon submission of a sworn statement stating the details of the person suspected of committing acts of terrorism and the relevant circumstances as basis for taking custody of said person. If the ATC does not issue the written authority, then the arresting oﬃcer shall deliver the suspected person to the proper judicial authority within the periods speciﬁed under Article 125 of the RPC —the prevailing general rule. The extended detention period is deemed as an exception to Article 125 of the RPC.

The written authorization of the ATC under Section 29 is not an executive warrant of arrest. When the circumstances for a warrantless arrest under Section 5, Rule 113 or Rule 9.2 are not present, the government must apply for a warrant of arrest with the proper court. The written authorization contemplated in Section 29 does not substitute a warrant of arrest that only the courts may issue. It can only be issued in favor of an oﬃcer who had already validly arrested a person with probable cause to believe that Sections 4 to 12 of the ATA was violated. On a practical level, the ATC’s written authorization is what determines whether it is the periods of detention under Article 125 or Section 29 that are to be followed.

Section 29 does not allow warrantless arrests based on mere suspicion; probable cause must be observed. Since Section 29 applies to warrantless arrests, the processes, requisites, and rigorous standards applicable to such kind of arrests, as developed by rules and jurisprudence also apply to Section 29. Among other things, these include the requirement of personal knowledge and the existence of probable cause. Section 29 and Rule 9.2 of the IRR does not modify the prevailing standards for warrantless arrests and does not authorize the ATC to issue arrest warrants. The Court further clariﬁes that Section 29 must be construed in harmony with prevailing standards for a warrantless arrest. Thus, in making the arrest, no violence or unnecessary force shall be used, and any person to be arrested shall not be subject to a greater restraint than is necessary, as provided under Section 2, Rule 113 of the Rules. The arresting oﬃcer must also keep in mind the importance of Section 12 (1), Article III 502 of the Constitution, as the provision guarantees that persons to be arrested have the right to be informed of their right to remain silent, their right to have competent and independent counsel of their choice, and their right to be provided with counsel if they cannot aﬀord the services of one.

Section 29 supplements Article 125 of the RPC and is the specific rule applicable for offenses penalized under the ATA. Section 29 does not amend Article 125 of the RPC, but supplements it by providing an exceptional rule with speciﬁc application only in cases where: (1) there is probable cause to believe that the crime committed is that which is punished under Sections 4 to 12 of the ATA; and (2) a written authorization from the ATC is secured for the purpose. Both requisites must be complied with; otherwise, the arresting officer must observe the periods provided under Article 125, RPC.

Section 29 of the ATA passes strict scrutiny and is not overly broad. Section 29 passes the strict scrutiny standard. It is clear that the state has a compelling interest to detain individuals suspected of having committed terrorism. While Article 125 of the RPC has general application, Congress did not think that it could be eﬀectively applied in cases of terrorism. The Congress is not constitutionally prohibited by the Due Process Clause, in relation to Section 2, Article III, to legislate a period of detention longer than that which is set by Article 125 of the RPC in cases of terrorism. It is within the legislature’s discretion to adjust the pre-charge detention periods based on perceived threats to national security and/or public order at any given time in our country’s history. The Constitution is silent as to the exact maximum number of hours that an arresting oﬃcer can detain an individual before he is compelled by law to deliver him to the courts. Consistent with the other enforcement provisions of the ATA like designation and proscription, Section 29 is a counterterrorism measure enacted as a response to the ever-evolving problem of terrorism and should be seen as a measure that aims to prevent and disrupt future terrorist acts. The second prong of strict scrutiny, i.e., least restrictive means, has also been complied with by Section 29, if read in conjunction with Sections 30, 31, 32, and 33 of the ATA, because: (1) it only operates when the ATC issues a written authorization; (2) the detaining oﬃcer incurs criminal liability if he violates the detainee’s rights; and (3) the custodial unit must diligently record the circumstances of the detention.

Other Principles

What are the two essential components of judicial power as embodied in Section 1 of Article 8 of the 1987 Constitution?

First is the traditional scope of judicial power. Second is the expanded concept of judicial power. The traditional scope of judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. Meanwhile, the expanded concept of judicial power includes the duty of the courts 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.
Can the court take cognizance of the present case in the exercise of its judicial power? – YES.

The Court can take cognizance of this case under its expanded judicial power. The primordial issue animating the 37 petitions is the constitutionality of the ATA, a legislative act. Moreover, these 37 petitions undoubtedly ascribe grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress in enacting a law that violates fundamental rights.
What is the political question doctrine?

The term “political question” connotes a question of policy. It refers to “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government.” It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.
Is the propriety of the enactment of ATA a political question that is beyond judicial scrutiny? – NO. The question posed is judicial rather than political.

In cases where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question as to whether any part or instrumentality of the government had authority or had abused its authority to the extent of lacking jurisdiction or exceeding jurisdiction is not a political question.
Are the requisites for judicial inquiry complied with in this case? – YES.

(a) The requisite of an actual case or controversy has been complied at least with respect to certain issues falling within the purview of the delimited facial analysis framework. The petitions present a permissible facial challenge on the ATA in the context of the freedom of speech and its cognate rights. Further, with respect to certain provisions of the ATA, petitioners have suﬃciently shown that there is a credible and imminent threat of injury, as they may be subjected to the potential destructive consequences of designation as well as possible detention and prosecution. In fact, some of the petitioners have already been designated as terrorists under the ATA.

(b) The requisite of an actual case or controversy has been complied with. First, the petitioners had come under the actual operation of the ATA. Some individuals were designated as terrorists by the ATC. Some have reported their banks accounts frozen upon orders of the AMLC for allegedly being used to finance terrorism. They also raised legitimate threats of the imposition of consequences associated with being a terrorist. Second, the petitioners present actual facts that also partake of a facial challenge in the context of free speech and its cognate rights. Last, the petitions also involve matters of transcendental importance and constitutional questions which must be addressed by this Court immediately.

(c) The requisite of judicial review of “earliest opportunity” is complied with because the issue of constitutionality is raised at the first instance, the present constitutional challenge against the statute having been directly ﬁled with the Supreme Court. In this regard, direct resort to the Supreme Court is justified given that genuine issues involving the constitutionality of the ATA are raised in the petitions which must be immediately addressed. (d) The lis mota requirement is complied with by the very nature of the constitutional challenge raised by petitioners against the ATA which deal squarely with the freedom of speech, expression, and its cognate rights. Evidently, freedom of expression and its cognate rights are legally demandable and enforceable, and any violation or perceived violation by the law that chills or restricts the exercise of such rights inescapably involve questions regarding its constitutionality.
In constitutional litigation, what are the two modes of challenging the constitutionality of the statute? – “AS-APPLIED” AND “FACIAL” CHALLENGES.

In an as-applied challenge, the question before the Court is the constitutionality of a statute’s application to a particular set of proven facts as applied to the actual parties. It is one “under which the plaintiﬀ argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiﬀ’s particular circumstances. Meanwhile, a facial challenge seeks the entire invalidation of a statute because “no set of circumstances exists under which the [statute] would be valid.”
What is the difference between the “as-applied” and “facial” challenges in terms of the requirement of legal standing?

In contrast to an as-applied challenge, a facial challenge permits third-party standing before the court. In the latter, litigants are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
In the Philippine jurisdiction, when is facial challenge to a statute allowed?

Only in freedom of speech cases. Facial challenge is permitted only when freedom of expression and its cognate rights are aﬀected. Invalidation of the statute “on its face” rather than “as applied” is permitted in the interest of preventing a “chilling” eﬀect on freedom of expression. Facial challenges have not been recognized as applicable to other provisions of the Constitution or the separation of powers. A facial challenge is generally not applicable to penal statutes which have general in terrorem effect resulting from their very existence. It’s application to penal statutes is limited such that “when a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable.” (J. Carpio dissent in Sps. Romualdez v. COMELEC, adopted by the Supreme Court in Disini, Jr. v. Secretary of Justice).
What is the presumption regarding the validity of law allegedly imposing prior restraint on speech?

A law does not enjoy the presumption of constitutionality if it restrains speech. Instead, a presumption of unconstitutionality arises. This presumption proceeds from the constitutional command under Section 4, Article III that no law shall be passed abridging free speech, expression, and their cognate rights. Any restriction to the freedom of speech or expression should be treated as an exemption — any act that chills or restrains speech is presumed invalid and any act that chills or restrains speech is hobbled by the presumption of invalidity. In such cases, therefore, it becomes the burden of government to establish the law’s constitutionality. The government must show that the statute is supported by a compelling governmental interest and the means chosen to accomplish that interest are narrowly tailored.
What are three analytical tools developed for testing “on their faces” statutes in free speech cases? (a) Vagueness doctrine; (b) Overbreadth doctrine; and (c) Strict scrutiny.

(a) Under the vagueness doctrine, a law is constitutionally defective when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and diﬀer as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

(b) Under the overbreadth doctrine, a law may be struck down as unconstitutional if it achieves a governmental purpose by means that are unnecessarily broad and thereby invade the area of protected freedoms. penal statues may be facially challenged under the overbreadth doctrine to counter the “chilling eﬀect” on protected speech that comes from statutes violating free speech because a person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.

(c) The strict scrutiny standard is a two-part test under which a law or government act passes constitutional muster only if it is: (1) necessary to achieve a compelling State interest; and (2) the least restrictive means to protect such interest or narrowly tailored to accomplish said interest. It is not limited to free speech cases. It is employed by the courts when the law or government act interferes with other basic liberties guaranteed under the Constitution. When the freedom of speech is involved, strict scrutiny has been applied when the restraint on speech is content-based, i.e., the restriction is based on the subject matter of the utterance or speech. A content-based prior restraint on speech is constitutionally permissible if it passes the clear and present danger rule, which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil which the government has a right to prevent. “Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg Test, Brandenburg v. Ohio).
What is the Brandenburg standard with respect to regulating free speech?

The Brandenburg test in regulating free speech is a fortification of the clear and present danger rule⁵ originally formulated in Schenk v. US. It states that:

“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Brandenburg test is more in line with the strict scrutiny standard adopted in the Philippine jurisdiction, and places upon the government the burden of demonstrating that the speech being restrained was: (1) directed to inciting or producing imminent lawless action; and (2) is likely to incite or produce such action. Applying in the present case, to guard against any chilling eﬀects on free speech, the Court clariﬁes that the provisions on inciting to terrorism (Section 9), as well as any possible speech-related terrorist crimes, such as proposal (Section 8), threat (Section 5), and the like, should only be considered as crimes if the speech satisfies the Brandenburg test based on its nature and context.

dispositive

WHEREFORE, the petitions in G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759, 252765, 252767, 252768, 252802, 252809, 252903, 252904, 252905, 252916, 252921, 252984, 253018, 253100, 253124, 253242, 253252, 253254, 254191 (UDK No. 16714), and 253420 are GIVEN DUE COURSE and PARTIALLY GRANTED.

The Court declares the following provisions of Republic Act No. 11479 UNCONSTITUTIONAL:
1) The phrase in the proviso of Section 4 which states “which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create serious risk to public safety”;
2) The second mode of designation found in paragraph 2 of Section 25; and
3) As a necessary consequence, the corresponding reference/provisions in the Implementing Rules and Regulations of Republic Act No. 11479 relative to the foregoing items.

Moreover, pursuant to the Court’s rule-making power, the Court of Appeals is DIRECTED to prepare the rules that will govern judicial proscription proceedings under Sections 26 and 27 of Republic Act No. 11479 based on the foregoing discussions for submission to the Committee on the Revision of the Rules of Court and eventual approval and promulgation of the Court En Banc.

The petitions in G.R. No. 253118 (Balay Rehabilitation Center, Inc. v. Duterte) and UDK No. 16663 (Yerbo v. Oﬃces of the Honorable Senate President and the Honorable Speaker of the House of Representatives) are DISMISSED.

Footnotes

Crimes that were initiated but not completed, or acts that assist in the commission of another crime. An attempt to commit or the frustrated commission of any of the enumerated acts may be somehow regarded as inchoate crimes. ↩︎
“… 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.” ↩︎
Leading to the filing of Information in court. ↩︎
Leading to the issuance of warrant of arrest. ↩︎
“whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger rule that they will bring about the substantive evils that Congress has a right to prevent.” ↩︎