Judicial activism to suppress terrorism

In Calleja v. Executive Secretary (Dec. 7, 2021), the Supreme Court upheld, in a “facial challenge,” the constitutionality of the entire Anti-Terrorism Act (ATA) except for two provisions: (1) the PROVISO in Section 4 and (2) the “second mode of designation” found in paragraph 2 of Section 25.

THE 235-PAGE DECISION (with 560 footnotes) expertly penned by now-retired Justice Rosmari D. Carandang together with the separate opinions of 11 other justices totaling 640 pages is, IMHO, the most intensely deliberated case in the Gesmundo Court.

CJ Alexander G. Gesmundo’s opinion alone had 199 pages with 762 footnotes (202 more than the ponencia); now retired Senior Associate Justice (SAJ) Estela M. Perlas-Bernabe, 48 pages; incumbent SAJ Marvic M. V. F. Leonen, 65; JJs Alfredo Benjamin S. Caguioa, 130; Amy C. Lazaro-Javier, 41; Henri Jean Paul B. Inting, 21; Rodil V. Zalameda, 44; Mario V. Lopez, 25; Samuel H. Gaerlan, 20; Jhosep Y. Lopez, 34; and Japar B. Dimaampao, 13.

Nonetheless, being merely a “facial determination” of constitutionality, the Carandang ponencia is still subject to “as applied” cases involving the actual violations of constitutional rights in the ATA’s implementation.

GIVEN THE NEED TO SUPPRESS TERRORISM as a sui generis crime and to PREVENT its commission, more than merely to punish its perpetrators, the Court has laudably promulgated the new “Rules on the Anti-Terrorism Act of 2020 and Related Laws” to take effect next Monday, Jan. 15. Verily, the Rules carefully specified the “How” in the ATA’s implementation: How to tiptoe the terror chasm to preserve constitutional rights, ensure privacy, and defend the presumption of innocence.

Clearly, the ATA gives the Anti-Terrorism Council (ATC) the power to “designate” an individual or group of individuals as “terrorists,” and the Anti-Money Laundering Council (AMLC) the power to issue “freeze orders” to “effectuate the designation.” To be fair, the Rules ipso facto grant the affected individuals or groups the right to petition the Court of Appeals (CA) “to remove [them] from the list of designated terrorists” on the ground of “grave abuse of discretion.”

On the other hand, the Secretary of Justice (SOJ) may petition the CA for a judicial “Order of Proscription” to declare as “outlawed terrorist” any individual or group of individuals who commits any of the terrorist acts defined in Sections 4 to 12 of the ATA. Within 72 hours from receipt of the petition, the CA may issue ex-parte (without notice to the respondents), based on “probable cause,” a “Preliminary Order of Proscription” to prevent “the commission of terrorism.”

This order will authorize the AMLC to issue, also ex-parte, a “preventive freeze order” on (a) “any property or funds, based [also] on probable cause, that are in any way related to financing of terrorism … or (b) property or funds of any person or persons … facilitating the financing of the … prohibited acts …”

Thereafter, the CA may issue—after hearing and upon “clear and convincing evidence,” no longer of probable cause, showing that the respondent is “a terrorist [or] an outlawed organization”—a “Permanent Order of Proscription,” effective for three years, unless shortened or extended by another order.

MOREOVER, UPON THE PETITION OF LAW ENFORCEMENT AGENTS, the CA may—again, ex-parte—issue “Surveillance Orders” to secretly wiretap with devices and technologies, now known or subsequently known, any private conversation or communication by and/or among suspected terrorists, and to compel “service providers to produce customer information … and call and text data records …” of such suspects. Additionally, “Data Preservation Order” may also be issued by the CA, again ex-parte, to compel service providers to preserve the data surveilled.

The ATA may issue arrest and detention orders without any judicial warrants “within the context” of the existing Rules of Court for a maximum of 14 days, which may be extended by the proper Regional Trial Courts (RTCs) for a maximum of 10 days upon a verified motion of the SOJ.

The RTCs are also authorized, upon proper petition, to issue—again ex-parte based on probable cause—“Precautionary Hold Departure Orders” to the Bureau of Immigration to prevent the exit of terror suspects.

IN SUM, the Rules recognize the awesome powers given by the ATA to the ATC and AMLC to preempt possible terrorist acts, and ipso facto grant the CA and the RTCs extraordinary ex-parte authority. (Normally, under our adversarial system, judges are passive and rely mainly on the rapiers of the contending counsels to ferret out the truth and to protect their clients.) Implicit in these ipso facto powers is the mandate of our magistrates to be “activists” in protecting basic rights while helping prevent or suppress terrorism and ensuring the legal requirements are met, the documents scrutinized minutely, and the witnesses examined personally by them. Judicial activism—imposed by our Constitution as the solemn duty of our judiciary to strike down grave abuse of discretion—is a unique and indispensable characteristic of the system of checks and balances in our democracy.

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