WHY A “FACIAL CHALLENGE” ON REPUBLIC ACT NO. 11479 MAY BE PROBLEMATIC
Last month, we discussed in a three-part series the proposed Anti-Terrorism Act of 2020. Last Friday, 03 July 2020, President Rodrigo R. Duterte signed into law Republic Act No. 11479 without exercising his veto powers in any of the provisions thereof. As expected, the President chose to sign the measure six (6) days before it would have lapsed into law pursuant to par. 1, Section 27, Article VI of the 1987 Philippine Constitution. As previously discussed by this legal observer, if the President allowed the enrolled bill to just lapse into law without signing the same, it will further weaken its credibility considering that before its transmittal to the Office of the President, several lawmakers withdrew their votes and support on the said measure. It is expected that the measure will be challenged by several cause-oriented groups and individuals before the Supreme Court.
As previously discussed, there are at least three (3) major features or provisions of RA 11479 which may be the subject of the Supreme Court case, to wit: 1) the process of proscription which grants the Court of Appeals the right to declare a group of persons, organization or association, which commits any of the acts defined and punishable under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Anti-Terrorism Act of 2020, or organized for the purpose of engaging in terrorism, be declared as a terrorist and outlawed group of persons (Sections 26 and 27); 2) the provision allowing a law enforcement agent or military personnel to detain a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Anti-Terrorism Act of 2020 and those proscribed under Section 26, for fourteen (14) calendar days extendible to another ten (10) days before cases may be filed to the proper judicial authorities (Section 29); and 3) the provision which allows the Anti-Terrorism Council (ATC) to designate an individual, groups of persons, organization or association, whether domestic or foreign, upon finding by the council of probable cause, that the individual, groups of persons, organization or association commit, or attempt to commit, or conspire in the commission of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Anti-Terrorism Act of 2020 and the Anti-Money Laundering Council (AMLAC) to freeze their assets ex-parte (Section 25 in relation to Section 36).
The foremost question that the prospective petitioners need to hurdle would be whether RA 11479 is ripe for adjudication even without injury to any and all of the petitioners. Normally, a person who comes to court for him or her to have legal standing must establish that he or she is a party-in-interest or in this case, which involves a challenge against a statute, must show that he or she was injured or about to sustain injury because of the application of the law. An exception to this would be the so-called “facial challenge” which is “allowed to be made to a vague statute and to one which is overbroad because of possible ‘chilling effect’ upon protected speech.” In Estrada vs. Sandiganbayan, G.R. No. 148560 (19 November 2001) and Romualdez vs. Sandiganbayan, G.R. No. 148560 (29 November 2004), which challenged the Plunder Law and Anti-Graft and Corrupt Practices Act, respectively, the Supreme Court held that “the theory is that ‘when 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 justify allowing attacks on overly broad statutes with nor requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.”
However, in both cases, the Supreme Court held that facial challenge does not apply to penal statutes. The Court held that “criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct.” Thus, the Supreme Court, relying on American Jurisprudence held that facial challenge on overbreadth or vagueness are confined to free speech cases, as they are called in American Law – First Amendment cases. In Estrada and Romualdez, the Supreme Court, citing American Jurisprudence, held:
“The task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding consti1tutional questions, whichever way they might be decided.
For these reasons, ‘on its face’ invalidation of statutes has been described as ‘manifestly strong medicine,’ to be employed ‘sparingly and only as a last resort,’ and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.”
From the foregoing, there is a possibility that the Supreme Court will dismiss the petitions on mere technical and procedural ground. The Court might invoke the ratio in Estrada and Romualdez refusing to depart from the “case and controversy” requirement of the Constitution which permits decisions to be made without concrete factual settings and in sterile abstract contexts. The Court may rule that the Anti-Terrorism Act of 2020, being penal in nature or a criminal statute, will not justify a “facial challenge”. Hence, it is a decision that the prospective petitioners must weigh carefully. While this author believes that some of the provisions of R.A. 11479 should be struck down for being constitutionally infirm, the case should not be filed with haste as it will be susceptible to be thrown out without discussing the merits thereof.