The controversial ATA decision (2)

Last Sunday, I took up the 235-page ponencia (with the 560 footnotes) of Justice Rosmari D. Carandang in Calleja v. Executive Secretary (Dec. 7, 2021 but released on Feb. 15, 2022). I agreed with its five rulings plus a sixth that upheld the constitutionality of the MAIN PART of Section 4 of the Anti-Terrorism Act (ATA) but thrashed the PROVISO.

MASTERFULLY-CRAFTED AND DELIGHTFUL TO READ also are the Separate Opinions of 11 justices totaling 640 pages. Due to space limits, I can discuss today only that of Chief Justice Alexander G. Gesmundo consisting of 199 pages with 762 footnotes (202 more than the ponencia). In contrast to the libertarian leanings of the ponencia, CJ Gesmundo firmly upheld the constitutionality of ATA, because, to quote him:

“In dealing with terrorism, we should utilize all possible kinds of legally available measures and approaches—pre-emptive, preventive, proactive, remedial, and rehabilitative… We should similarly tread carefully in considering the merits of the present cases lest we defeat the legislative purpose and the objectives of our Constitution through overzealous legalism, imaginative speculation, or very narrow perspectives.” (bold types in original)

TOGETHER WITH SIX JUSTICES, HE VOTED TO ADMIT ONLY FOUR OF THE 37 PETITIONS and to “DISMISS OUTRIGHT” the 33 others “for failure to satisfy the requirements of judicial review.” Moreover, after using “strict scrutiny as the appropriate level of judicial review…” and without resorting to “overbreadth and vagueness,” he firmly concluded that the assailed provisions in these four petitions were “NOT UNCONSTITUTIONAL,” and dismissed the four petitions anyway “for lack of merit.” (bold types and caps in original)

Joined by Justice Jose Midas P. Marquez, he opined that (a) the ATA only penalizes overt acts which include the “speech integral to criminal conduct; and (b) an ‘as-applied’ challenge does not foreclose the use of the vagueness and overbreadth tests as tools of judicial scrutiny.”

While the CJ was outvoted many times, he was nonetheless able to win in two instances. The first instance is in persuading the Court, by a vote of 9-6, to declare “not unconstitutional” the last paragraph of Section 10 of ATA.

This last paragraph states: “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.” (all caps supplied)

FOR BEING “IMPERMISSIBLY VAGUE,” the ponente wanted to declare as unconstitutional the capitalized phrase. She argued that the phrase did not have any discernible parameters showing what conduct to avoid; it gave police officers unbridled discretion in ascertaining whether an organization was organized for the purpose of engaging in terrorism.

In this instance, I agree with the Chief Justice because the acts to be penalized in Section 4 (as discussed last Sunday) are clear and not subject to a facial challenge (which can be applied only to free speech and its cognate rights). Consequently, anyone could know that these proscribed organizations were organized for the purpose of engaging in terrorism.

The second victory of the Chief Justice is in getting the Court to declare as constitutional, by a vote of 8-7, the “third mode of designation” in Section 25, under which the Anti-Terrorism Council may “designate” an individual or organization, “upon a finding of probable cause,” as committing or attempting to commit acts of terrorism. By such designation, such individual or organization “shall be subject to the authority of the Anti-Money Laundering Council,” inter alia, to freeze their bank accounts.

AT BOTTOM, after a frontal and well-fought legal clash, the government, IMHO, emerged the clear winner. The ATA remains intact though a little scathed, with only two portions of its provisions declared unconstitutional: (1) the PROVISO in Section 4 and (2) the “second mode of designation” found in paragraph 2 of Section 25.

With due respect, I am afraid the 71-page Joint Motion for Reconsideration of the petitioners pales in comparison with the exhaustive ponencia and Separate Opinions. Henceforth, however, they can and should wage low-intensity, libertarian “as applied” challenges in the implementation of the ATA.

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