Atty. Julius Gregory Delgado

SUPREME COURT DECLARES PORTIONS OF ANTI-TERRORISM ACT OF 2020 AS UNCONSTITUTIONAL

Last year, this author discussed the Enrolled Bill which would become Republic Act No. 11479, otherwise known as the Anti-Terrorism Act of 2020. As predicted, most of the challenged provisions of the law were sustained and held as valid with only two provisions struck down for being unconstitutional. Among the two is the portion of Section 4, to wit:

Sec. 4. Terrorism. – Subject to Section 49 of this Act, terrorism is committed by any person who, within or outside the Philippines, regardless of the stage of execution:

  1. Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life;
  1. Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;
  1. Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;
  1. Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or biological, nuclear, radiological or chemical weapons; and
  1. 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 organization, 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 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. (Italics, underscoring, and emphasis supplied)

Based on reports quoting the Public Information Office of the Supreme Court, the above-emphasized and underscored qualifier was declared to be unconstitutional for being overbroad and violative of freedom of expression by a vote of 12-3. The other provision struck down by the Supreme Court is the second manner of proscription or declaration of an individual, entity or organization as terrorist, particularly in the second (2nd) paragraph of Section 25 of the Anti-Terrorism Act of 2020, to wit:

“Sec. 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. – Pursuant to our obligations under United Nations Security Council Resolution (UNSCR) No. 1373, the ATC 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.

Request for designations by other jurisdictions or supranational jurisdictions may be adopted by the ATC after determination that the proposed designee merits the criteria designation of UNSCR No. 1373.

The ATC may designate an individual, group of persons, organization, or association, whether domestic or foreign, upon a finding 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 this Act. 

The assets of the designated individual, groups of persons, organization or association above-mentioned shall be subject to the authority of the Anti-Money Laundering Council (AMLC) to freeze pursuant to Section 11 of Republic Act No. 10168.

The designation shall be without prejudice to the proscription of terrorist organizations, associations, or groups of persons under Section 26 of this Act. (Italics, underscoring, and emphasis supplied)

Based on reports quoting the Public Information Office of the Supreme Court, the qualifier “meets the criteria for designation of UNSCR No. 1373” was declared to be unconstitutional by a vote of 9-6. The Supreme Court has yet to publish the ponencia or extended Decision as well as the separate opinions of the Justices. This author will discuss why that portion of Section 4 of the Anti-Terrorism Act of 2020 was declared to be overbroad and how it violates the Constitutional guarantee to freedom of expression. Also, it is interesting to know why the Supreme Court held as unconstitutional the qualifier as to criteria set by the United Nations Security Council in connection with requests for proscription of other jurisdictions or supranational jurisdictions.