‘Worse than martial law’ if anti-terror bill becomes law —Carpio

The Philippines will "permanently" be in a situation "worse than martial law" if the anti-terror bill becomes law, retired Supreme Court justice Antonio Carpio said Wednesday.

Saying he agreed with Senate President Vicente Sotto III, who earlier claimed that martial law will be unnecessary if the bill is signed into law, Carpio said martial law will be "superfluous" upon its enactment.

At a webinar hosted by the Management Association of the Philippines, the former justice called the proposed law "very defective" and said that several provisions in it are unconstitutional.

“Under the Constitution, the right against unreasonable arrests is an inviolable, fundamental right. The Constitution uses a word: inviolable. The Anti-Terrorism Act demolishes this inviolable fundamental constitutional right,” Carpio said.

The bill allows up to 24 days of detention of terrorism suspects before they have to be charged in court—longer than the three-day period within which arrested persons must be charged during martial law.

Carpio also said that under the current law, the president can declare martial law and suspend the privilege of the writ of habeas corpus for not more than 60 days, an act that can be revoked by Congress within 48 hours. In contrast, he said, the anti-terrorism law "remains in the statute books forever until repealed by Congress or invalidated by the Supreme Court."

"In short, with the anti-terrorism act as part of the law of the land, it is as if the Philippines is permanently under a situation worse than martial law," Carpio said.

Anti-Terrorism Council

Carpio cited the provision supposedly allowing the Anti-Terrorism Council to authorize arrests of terrorism suspects and said the Constitution allows only judges to issue arrest warrants.

“Under the Anti-Terrorism Act, an executive body composed of cabinet secretaries are now allowed to issue warrants of arrest,” he said.

“Only a judge can issue warrants of arrest. Section 2 Article III of the Constitution, the present Constitution, mandates and I quote: 'No warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,' end of quote,” Carpio added.

While a person arrested for terrorism can file a petition for the writ of habeas corpus questioning his detention, Carpio said that under the bill the judge would be "compelled to dismiss the petition" once the custodian presents the "written authority" from the Anti-Terrorism Council, as this would show "the person is being detained upon lawful order pursuant to law."

The Anti-Terrorism Council would also have the power to proscribe a group for being involved in acts of terrorism.

“Once so designated, the individual can now be arrested upon order of the Anti-Terrorism Council. Under the Anti-Terrorism Act, the penalty is life imprisonment. You will be imprisoned throughout your physical life. The question is, how will the Anti-Terrorism Council make such designation? How will it designate you a terrorist or [determine that] your organization is engaged in terrorism? Is a hearing required where the individual or organization is represented? The only requirement under Section 25 is upon probable cause. Probable cause doesn’t require a hearing,” Carpio warned.

Carpio says this violates another Constitutional right.

“This, I consider, is unconstitutional. Now the Constitution provides, and I quote, the right of the people to form associations for purposes not conflict to law shall not be abridged, end of quote,” he said.

Arrest and seizure

Carpio said that the Anti-Terrorism Act “demolishes the first fortress” in the Constitution against unreasonable arrest and reinstates the arrest, search and seizure orders (ASSOs) of the Martial Law period.

“Section 29 of the Anti-Terrorism Act—with the telltale heading 'Detention Without Judicial Warrants of Arrest'—provides any law enforcement agent or military personnel who, having been duly authorized in writing by the Anti-Terrorism Council, has taken custody of a person suspected committing any of the acts defined and penalized under Sections 4 to 12 under Acts of Terrorism of the Anti Terrorism Act shall not be liable if he detains a person for a total of 24 days without filing a [criminal case]. This will be the situation unless Section 29 of the bill, if it is signed into law, is invalidated by the Supreme Court."

Section 29 of the bill allows law enforcement or military personnel to detain terrorism suspects for 14 days, extendable by another 10 days, without a court-issued warrant of arrest, before bringing them before a judge.

Carpio also cited a provision in the bill that allows for the issuance of an arrest warrant even without probable cause, which the retired justice says is also unconstitutional.

“Probable cause means the judge has reasonable grounds to believe, based on affidavits of the complainant and his witnesses, that a crime has been committed and the person to be arrested probably committed the crime. In short, if the judge believes that no crime has been committed, he cannot and should not issue a warrant of arrest. The Anti-Terrorism Council can issue an arrest order even without probable cause, demolishing completely the second fortress erected by the constitution to ensure that the guarantee against unreasonable arrests is inviolable,” Carpio explained.

He also said the house arrest provision in the bill "negates" a person's constitutional right to bail.

Definition of terror 'too broad'

Carpio believes the bill should be refined in order to clarify certain provisions that may have varied interpretations.

For instance, he said, one of the definitions of terrorism in the bill is "so broad" that if it were already a law, students protesting against it could be considered to be committing an act of terrorism because they are "endangering the lives of other people" and "creating an atmosphere of fear" by conducting a mass event in the time of COVID-19.

Section 4(a)—the provision Carpio called "very broad"—says an act of terrorism is committed by a person who "engages in acts intended to cause death or serious bodily injury to any person, or endangers a person's life."

The definition of terrorism exempts "advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights"—if they 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."

2022 presidential elections

Carpio also warned that the bill if it becomes law will have a "devastating effect" on freedom of speech and press freedom in the May 2022 elections. Unlike the Human Security Act of 2007, the bill has no provision for suspension during the election period, he said.

"If we do not want to experience a contraction of our civil liberties, we must all work to have the objectionable provisions in the Anti-Terrorism Act invalidated by the Supreme Court or repealed by Congress," Carpio said.

He said that the Philippines can draft a law that both complies with the Constitution and "satisfies the requirements" of the government's security forces.

Carpio earlier said the law if enacted may immediately be challenged before the SC. On Wednesday, he said he plans to be a petitioner who will question its constitutionality.

The National Union of Peoples' Lawyers, for its part, said it is poised to file the appropriate petition "at the earliest possible time."

The Department of Justice, which reviewed the bill, is set to submit its comments to the Office of the President on Wednesday. If signed by President Rodrigo Duterte, the bill becomes law. — BM, GMA News