Had it wanted to, the Supreme Court could have dismissed at sight the many petitions assailing the constitutionality of the Anti-Terrorism Act of 2020 (ATA) on legalistic, procedural grounds. Instead, it ordered the respondent officials (who are mandated to enforce the ATA) to file their “Comment” on, but without necessarily giving due course to, the said petitions.
The Court could have made short shrift of them, as it had, of many past petitions which, on their face, were procedurally defective. An example of these was cited in my piece last Sunday: “[P]rematurity of the suits given that though the President signed the ATA on July 3, 2020, the law — by its own Section 58 — ‘shall take effect [15] days AFTER its complete publication in the Official Gazette or in at least two… newspapers…’”
In other words, legally, there was no law to be enforced by the respondents at the time the petitions were filed because the 15-day period will fall only AFTER July 18, the 15th day after the ATA was posted in the Official Gazette on July 3, 2020, the same date it was signed by the President.
Other procedural grounds, like the lack of an actual controversy, of clear legal right, of cause of action, or of locus standi, could have been invoked, given that none of the petitioners have actually been prejudiced or injured by alleged violations of the ATA.
The essence of an “actual controversy” can be exemplified, thus: Only those who suffered “direct injury,” like being arrested, investigated, or detained due to a law imposing the death penalty can challenge the constitutionality of the said law. Those who have not been so arrested, investigated, or detained have no legal standing or cause of action to challenge the constitutionality of the law.
These legalistic arguments were recently used by the Court in De Leon v. Duterte (May 8, 2020) to dismiss “outright,” without requiring any “Comment,” the suit to disclose the health records of the President because, “on its face,” the petition failed “to establish a legal right that was violated by the respondents.”
To overturn these procedural deficiencies sourced from the analytical school of jurisprudence, the Court often veered to the sociological school of jurisprudence and invoked the “transcendental importance” or the “far-reaching implications” of the issues as held in many public interest cases like David v. Arroyo (May 3, 2006, superbly penned by Justice Angelina Sandoval-Gutierrez during my term as CJ).
The petitions challenging the ATA unquestionably raise novel and transcendental issues that, I think, need to be resolved clearly. Three of them are:
Whether the war on the new crime of terrorism, which afflicts the Philippines and many other countries, could justify an innovative interpretation of the constitutional guarantee that “… no search warrant or warrant of arrest shall issue except upon PROBABLE CAUSE to be determined PERSONALLY BY THE JUDGE…” (caps supplied) vis-à-vis the ATA’s provisions authorizing, per the petitions, the new Anti-Terrorism Council—composed only of executive officials, not judges—to order the arrest of, and detain, suspects for a maximum of 24 days.
Whether the ATA modifies or amends the Rules of Court provisions governing warrantless arrests; and if so, whether the Congress has the authority to do so, given that the Constitution expressly grants to the Supreme Court the power to “promulgate rules concerning the protection and enforcement of constitutional rights, pleadings, practice and procedure…”
Whether the acts constituting terrorism offend due process because they allegedly “intimidate the general public” or “are so vague and so overbroad that persons of common understanding” cannot grasp them.
The Constitution and the Rules were composed when terrorism was not yet born and, therefore, could not have been contemplated by the Framers and the Justices who crafted them. Neither were cybercrimes and money laundering conceived at the time. Yet, the Court was able to resolve the challenges against the laws governing them on their merit with minimal resort to esoteric legalese.
In sum, I fervently hope the Court will speedily decide the petitions head-on, on their merit, in clear and simple language; and deliver substantial justice understandable by ordinary citizens, free of legal gobbledygook intelligible only to lawyers.
Comments to chiefjusticepanganiban@hotmail.com