(FINAL) Hendy Abendan Et Al. Vs Exec. Secretary - ATL Draft Petition

ORIGINAL COPY
REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Padre Faura St., Ermita, 1000 Manila
HENDY ABENDAN of Center for

Youth Participation and
Development Initiatives, CALVIN
DHAME LAGAHIT of Cebu
Normal University – Student
Democratic Party, CHRISTIAN
LOUIE ILUSTRISIMO of Cebu
Normal University – Students G.R. No. ________________
Republic Party, BENNA LYN
RIZON of Cebu Normal University – For: PETITION FOR
Reformative Leaders (ReLead) Party, CERTIORARI AND
LYRNIE REGIDOR of UP Cebu – PROHIBITION (with Urgent
Union of Progressive Students, Prayer for Preliminary
HANNSON KENT J. NAMOC of Injunction and/or Temporary
UP Cebu – Nagkahiusang Kusog sa Restraining Order)
Estudyante, GILBERT G. APURA,
JR. of University of San Carlos –
Student Power Party, DAVID C.
SUICO of University of San Carlos –
Student Alliance for Nationalism and
Democracy, and MARY THERESE
T. MAURIN of University of Cebu
Law Student Society,
Petitioners,
-versus-
HON. SALVADOR MEDIALDEA,

in his capacity as Executive Secretary
and Chairperson of the Anti-
Terrorism Council; All members of
the ANTI-TERRORISM
COUNCIL namely: HON.
HERMOGENES ESPERON,
National Security Adviser; HON.
TEODORO LOCSIN, JR.,
Secretary of Foreign Affairs; HON.
DELFIN N. LORENZANA,
Secretary of National Defense; HON.
EDUARDO AŇO, Secretary of
Interior and Local Government;
HON. CARLOS DOMINGUEZ,
Secretary of Finance; HON.
MENARDO GUEVARRA,
Secretary of Justice; HON.
Petition for Certiorari and Prohibition
Hendy Abendan, et al. vs. Exec. Secretary, et al.
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GREGORIO B. HONASAN II,

Secretary of Information and
Communications Technology; and
HON. MEL GEORGIE B.
RACELA, Executive Director of the
Anti-Money Laundering Council
(AMLC) Secretariat,
Respondents.
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PETITION FOR CERTIORARI AND PROHIBITION

(With Urgent Prayer for Preliminary Injunction and/or
Temporary Restraining Order)
Petitioners, through undersigned counsels, unto this Honorable
Court, most respectfully state:
PREFARATORY STATEMENT
“Those who begin coercive elimination of dissent soon find themselves

exterminating dissenters. Compulsory unification of opinion achieves only the
unanimity of the graveyard. xxx We set up government by consent of the governed,
and the Bill of Rights denies those in power any legal opportunity to coerce that
consent. Authority here is to be controlled by public opinion, not public opinion by
authority.
If there is any fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion, or force citizens to confess by word or act
their faith therein.”1
- U.S. Supreme Court Justice Robert H. Jackson
“Even as we reiterate the need for all freedom loving citizens to assist the
military authorities in their legitimate efforts to maintain peace and national
security, we must also remember the dictum in Morales vs. Enrile (121 SCRA
538, 569) when this Court stated:
‘While the government should continue to repel the

communists, the subversives, the rebels, and the lawless
with all the means at its command, it should always be
remembered that whatever action is taken must always be
within the framework of our Constitution and our laws.’
Violations of human rights do not help in overcoming a rebellion. A

cavalier attitude towards constitutional liberties and protections will only fan the
increase of subversive activities instead of containing and suppressing them.”2
- Supreme Court Justice Hugo E. Gutierrez, Jr.

1 West Virginia State of Board Education v. Barnette, 319 U.S. 624 (1943).
2 People of the Philippines v. Burgos, G.R. No. L-68955, September 4, 1986.
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NATURE OF THE PETITION
This is a Petition for Certiorari and Prohibition under Rule 65 of the

Rules of Court, with a Prayer for Preliminary Injunction and/or Temporary
Restraining Order, asking the Honorable Court to declare Republic Act
(R.A.) No. 11479 entitled, “An Act to Prevent, Prohibit and Penalize Terrorism,
Thereby Repealing Republic Act No. 9372” or the “Anti-Terrorism Act”
(“ATA”), unconstitutional and to invalidate the creation and organization of
the Anti-Terrorism Council (“ATC”), the executive body tasked to
implement the said law.
Petitioners likewise ask the Honorable Court, pending a final

resolution on this petition, to issue a Preliminary Injunction and/or
Temporary Restraining Order, prohibiting the Public Respondents, and
anyone acting under their authority, stead or behalf, from implementing R.A.
No. 11479 and any subsequent orders, memoranda, or regulations issued in
relation to the implementation of the Anti-Terrorism Law.
THE PARTIES
Petitioner HENDY ABENDAN, Filipino, of legal age and with

residential address at Cebu City, Cebu, is a member of Center for Youth
Participation and Development Initiatives (CYPD), a non-profit, non-
governmental organization which aims to provide the youth an avenue to
participate in solving social issues through volunteerism.
Petitioners CALVIN DHAME LAGAHIT, CHRISTIAN LOUIE

ILUSTRISIMO and BENNA LYN RIZON, Filipinos, of legal age and with
school addresses at Cebu Normal University, Osmeňa Blvd., Cebu City,
Cebu, are student-members of the three (3) student political parties at the
Cebu Normal University (CNU) namely, Students Democratic Party (SDP),
Students Republic Party (SRP) and Reformative Leaders (ReLead) Party,
respectively.
Petitioners LYRNIE REGIDOR and HANNSON KENT J. NAMOC,

Filipinos, of legal age and with school addresses at Gorordo Avenue, Lahug,
Cebu City, Cebu, are student-members of two (2) student political parties at
the University of the Philippines Cebu (UP-Cebu) namely, Union of
Progressive Students (UPS) and Nagkahiusang Kusog sa Estudyante (NKE),
respectively.
Petitioners GILBERT G. APURA, JR. and DAVID C. SUICO,

Filipinos, of legal age and with school addresses at University of San Carlos
– Talamban Campus, Talamban, Cebu City, Cebu, are student officers of two
(2) student political parties at the University of San Carlos namely, Student
Power Party (SPP) and Student Alliance for Nationalism and Democracy
(STAND), respectively.
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Petitioners MARY THERESE T. MAURIN, Filipino, of legal age and

with school address at University of Cebu School of Law, Banilad, Cebu City,
Cebu, is a current law student and Vice President of the University of Cebu
Law Student Society (UCLASS) which is the official organization of the
students of the University of Cebu School of Law.
Petitioners may be served with court notices, summons and other

pleadings at the office of their lead counsel, Atty. Abraham Rey Montecillo
Acosta of Free Legal Assistance Group (FLAG) – Cebu, at A. Acosta &
Associates, 11th Floor AppleOne Equicom Tower, Mindanao Avenue corner
Biliran Road, Cebu Business Park, Ayala Center, Cebu City, Cebu 6000.
Respondent HONORABLE SALVADOR MEDIALDEA is the

incumbent Executive Secretary and Chairperson of the Anti-Terrorism
Council with office address at 2nd Floor, Mabini Hall, Malacaňang, J.P.
Laurel St., San Miguel, Manila where he may be served with summons and
other court processes.
Respondents HONORABLE HERMOGENES ESPERON (National

Security Adviser) with office address at NICA Compound, V. Luna Road cor.
East Avenue, Diliman, Metro Manila 1110; HONORABLE TEODORO
LOCSIN, JR. (Secretary of Foreign Affairs) with office address at DFA
Building, Roxas Boulevard, Pasay, Metro Manila; HONORABLE DELFIN
N. LORENZANA (Secretary of National Defense) with office address at
Camp Aguinaldo, Quezon City, Metro Manila 1110, HONORABLE
EDUARDO AŇO (Secretary of Interior and Local Government) with office
address at DILG Napolcom Center, Quezon City, Metro Manila 1110;
HONORABLE CARLOS DOMINGUEZ (Secretary of Finance) with office
address at DOF Building, Roxas Boulevard cor. Pablo Ocampo St., Pasay,
Metro Manila; HONORABLE MENARDO GUEVARRA (Secretary of
Justice) with office address at DOJ Building, Padre Faura St., Ermita, Manila
1000; HONORABLE GREGORIO B. HONASAN II (Secretary of
Information and Communications Technology) with office address at DICT
Building, C.P. Garcia Avenue, Diliman, Quezon City, Metro Manila 1110;
and HONORABLE MEL GEORGIE B. RACELA (Executive Director of
the Anti-Money Laundering Council – AMLC Secretariat) with office
address 5th Floor, EDPC Building, BSP Complex, Roxas Boulevard cor.
Pablo Ocampo St., Malate 1004, are all members of the Anti-Terrorism
Council and they may be served with summons and other court processes at
their respective offices indicated above.
The Office of the Solicitor General, with address at No. 134 Amorsolo
St., Legaspi Village, Makati City, is furnished with a copy of this petition as
the counsel for government agencies and pursuant to Section 3, Rule 63 of
the Rules of Court.3
3 Rule 63, Section 3. Notice on Solicitor General – In any action which involves the validity of a
statute, executive order or regulation, or any other governmental regulation, the Solicitor
General shall be notified by the party assailing the same and shall be entitled to be heard upon
such question.
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STATEMENT OF FACTS
On February 26, 2020, the Senate of the Philippines approved on third

and final reading Senate Bill (S.B.) No. 1083, otherwise known as the “Anti-
Terrorism Bill”. The bill aimed to repeal Republic Act No. 8372 or the
Human Security Act of 2007 (“HSA”) and to provide “more teeth” to the law
against terrorism.
Subsequently, the Committees on Public Order and Safety, and on

National Defense and Security of the House of Representatives adopted the
Senate version of the bill and approved House Bill (H.B.) No. 6875 on May
30, 2020 despite growing opposition on the dangers posed by the said
measure to the fundamental freedoms of expression and liberty.
On June 3, 2020, the House of Representatives approved on third and

final reading H.B. 6875 after the bill was certified “urgent” by the Office of
the President. On June 9, 2020, the enrolled bill was then transmitted to the
Office of the President for signature.
On July 3, 2020, President Rodrigo Roa Duterte signed Republic Act

No. 11479 entitled, “AN ACT TO PREVENT, PROHIBIT AND
PENALIZE TERRORISM, THEREBY REPEALING REPUBLIC ACT
NO. 9372, OTHERWISE KNOWN AS THE ‘HUMAN SECURITY ACT
OF 2007’”, otherwise known as the “Anti-Terrorism Act” (“ATA”). The
President’s signing of the bill into law came as the number of confirmed
COVID-19 cases in the Philippines breached the 40,000 mark and a daily
record-high of 1,531 cases announced by the Department of Health (DOH)
on the same day.4
The Anti-Terrorism Law, particularly Section 45 thereof, provided for

the creation of the Anti-Terrorism Council (“ATC”) – a purely executive
body composed of the following members: (a) the Executive Secretary, who
shall act as the Chairperson of the ATC; (b) the National Security Adviser;
(c) the Secretary of Foreign Affairs; (d) the Secretary of National Defense; (e)
the Secretary of the Interior and Local Government; (f) the Secretary of
Finance; (g) the Secretary of Justice; (h) the Secretary of Information and
Communications Technology; and (i) the Executive Director of the Anti-
Money Laundering Council (AMLC) Secretariat.
As the lead agency that is tasked to assume the responsibility for the
implementation of the counterterrorism policies in the country, the law
provided the following powers and functions of the ATC:
“SEC. 46. Functions of the Council. – In pursuit of its mandate in

the previous Section, the ATC shall have the following functions with
due regard for the rights of the people as mandated by the Constitution
and pertinent laws:
4 Darryl John Esguerra (2020, July 3). PH COVID-19 caseload tops 40K with record-high 1,531 new
cases.Inquirer.net. Retrieved from https://newsinfo.inquirer.net/1301398/ph-covid-19-caseload-
tops-40k-with-record-high-1531-new-cases, date accessed on 3 July 2020.
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(a) Formulate and adopt plans, programs, and preventive and

counter-measures against terrorists and terrorism in the country;
(b) Coordinate all national efforts to suppress and eradicate

terrorism in the country and mobilize the entire national against
terrorism prescribed in this Act;
(c) Direct the speedy investigation and prosecution of all persons

detained or accused for any crime defined and penalized under this Act;
(d) Monitor the progress of the investigation and prosecution of

all persons accused and/or detained for any crime defined and penalized
under the provisions of this Act;
(e) Establish and maintain comprehensive database information

systems on terrorism, terrorist activities, and counterterrorism
operations;
(f) Enlist the assistance of and file the appropriate action with the
AMLC to freeze and forfeit the funds, bank deposits, placements, trust
accounts, assets and property of whatever kind and nature belonging (i)
to a person suspected of or charged with the alleged violation of any of
the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and
12 of this Act; (ii) between members of a judicially declared and outlawed
terrorist organization or association as provided in Section 26 of this Act;
(iii) to designated persons defined under Section 3(e) of R.A. No. 10168;
(iv) to an individual member of such designated persons; or (v) any
individual, organization, association or group of persons proscribed
under Section 26 hereof;
(g) Grant monetary rewards and other incentives to informers

who give vital information leading to the apprehension, arrest, detention,
prosecution, and conviction of person or persons found guilty for
violation of any of the acts defined and penalized under Sections 4, 5, 6,
7, 8, 9, 10, 11 and 12 of this Act: Provided, That no monetary reward shall
be granted to informants unless the accused’s demurrer to evidence has
been denied or the prosecution has rested its case without such demurrer
having been filed;
(h) Establish and maintain coordination with and the cooperation

and assistance of other states, jurisdictions, international entities and
organizations in preventing and combating international terrorism;
(i) Take action on relevant resolutions issued by the UN Security

Council acting under Chapter VII of the UN Charter; and consistent with
the national interest, take action on foreign requests to designate
terrorist individuals, associations, organizations or group of persons;
(j) Take measures to prevent the acquisition and proliferation by

terrorists of weapons of mass destruction;
(k) Lead in the formulation and implementation of national

strategic plan to prevent and combat terrorism;
(l) Request the Supreme Court to designate specific divisions of

the Court of Appeals or Regional Trial Courts to handle all cases
involving the crimes defined and penalized under this Act;
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(m) Require other government agencies, offices and entities and

officers and employees and non-government organizations, private
entities and individuals to render assistance to the ATC in the
performance of its mandate; and
(n) Investigate motu proprio or upon complaint any report of

abuse, malicious application or improper implementation by any person
of the provisions of this Act.”
In addition to the above-mentioned powers under Section 46 thereof,

the ATC may also authorize in writing the Department of Justice (DOJ) to
file an application with the Court of Appeals for the opening, replaying,
disclosing, or using as evidence of the sealed package and deposited materials
containing the intercepted and recorded communications of persons
suspected of committing terrorist acts.5
Section 25 of the ATA also grants the ATC the power to “designate
individuals, groups of persons, organizations, or associations” as terrorist/s, to
wit:
“SEC. 25. Designation of Terrorist Individual, Groups of Persons,

Organizations or Associations. – xxx
The ATC may designate an individual, groups of persons,

organizations, 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. xxx
Moreover, Section 29 of the ATA grants the ATC the authority to

order the arrest of any person suspected of committing the terrorist acts
defined in the law without securing a judicial warrant of arrest.
Apart from the broad powers exercised by the ATC under the ATA,
the same also introduced new provisions which were not penalized under
the former HSA, which include: (a) proposal to commit terrorism;6 (b) threat
to commit terrorism;7 (c) planning, training, preparing, and facilitating the
commission of terrorism;8 (d) inciting to commit terrorism;9 (e) recruitment
to and membership in a terrorist organization;10 (f) foreign terrorist;11 and
(g) providing material support to terrorists.12
Significantly, substantial revisions and/or amendments on the

provisions under the former HSA were also included in the ATA, e.g.
5 Sec. 22, R.A. No. 11479.

6 Sec. 3(g) in rel. to Sec. 8, R.A. No. 11479.
7 Sec. 5, R.A. No. 11479.
8 Sec. 6, R.A. No. 11479.
9 Sec. 9, R.A. No. 11479.
10 Sec. 10, R.A. No. 11479.
11 Sec. 11, R.A. No. 11479.
12 Sec. 12, R.A. No. 11479.
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definition of “terrorism”;13 surveillance of suspects and interception and

recording of communications;14 effectivity period of the judicial authorization
relative to the surveillance, interception and recording of communications of
suspected terrorists;15 penalty for unauthorized or malicious interceptions
and/or recordings;16 proscription of terrorists organizations, associations or
group of persons;17 and detention with judicial warrant of arrest.18
GROUNDS RELIED UPON IN SUPPORT OF THE

PETITION
A. Procedural Issues
I. THE PRESENT PETITION IS AN APPROPRIATE RECOURSE TO

ASSAIL THE CONSTITUTIONALITY OF THE ANTI-TERRORISM
ACT.
A. Propriety of the remedies of Certiorari and Prohibition under

the ‘Expanded’ Jurisdiction of the Supreme Court.
B. There is a prima facie existence of grave abuse of discretion in

the passage of the Anti-Terrorism Act and direct resort to the
Supreme Court is justified.
II. THE PRESENT PETITION COMPLIES WITH ALL THE

REQUIREMENTS FOR THE SUPREME COURT’S EXERCISE OF
JUDICIAL REVIEW.
A. As a matter of exception to the requirement that there be an

actual case or controversy, the present Petition involves a “Facial
Challenge” as basis for a pre-enforcement judicial review of the
Anti-Terrorism Act.
B. Petitioners, being concerned citizens and taxpayers, have locus

standi on account of the transcendental importance of the
issues raised in the Petition.
C. The question of the constitutionality of the Anti-Terrorism

Act is raised at the earliest opportunity.
D. The question of constitutionality is the lis mota of the present

Petition.
13 Sec. 4, R.A. 11479.

14 Sec. 16, R.A. 11479.
15 Sec. 19, R.A. 11479.
16 Sec. 24, R.A. 11479.
17 Sec. 26, R.A. 11479.
18 Sec. 29, R.A. 11479.
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B. Substantive Issues
I. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT TO DUE

PROCESS.
A. The definition of “terrorism” and the provisions on acts of

terrorism punishable under Sections 4, 5, 6, 7, 8, 9, 10, 11 and
12 of Republic Act No. 11479 are facially invalid under the
void-for-vagueness and overbreadth doctrines.
B. The provision on the power of the ATC to designate

individuals or organizations as terrorists under Section 25 in
relation to Section 3(b) of Republic Act No. 11479 violate due
process.
C. The provision on proscription of terrorist organizations,

associations or group of persons under Section 26 and 27 of
Republic Act No. 11479 violates due process, constitutional
presumption of innocence, and the constitutional prohibition
against the passage of a bill of attainder and an ex post facto
law.
II. THE ANTI-TERRORISM ACT VIOLATES THE FREEDOM OF

SPEECH AND OF EXPRESSION, THE RIGHT TO PEACEABLY
ASSEMBLE AND PETITION THE GOVERNMENT FOR REDRESS OF
GRIEVANCES, AND NON-DETENTION BY REASON OF ONE’S
POLITICAL BELIEFS OR ASPIRATIONS.
A. The provision on inciting to commit terrorism under Section 9

in relation to Section 4 of Republic Act No. 11479 constitutes
prior restraint on freedom of speech and expression.
B. The provisions on threat to commit terrorism, conspiracy or

proposal to commit terrorism, providing material support to
terrorists, and planning, training, preparing and facilitating to
commit terrorism under Sections 5, 6, 7, 8 and 12 in relation to
Section 4 of Republic Act No. 11479 violate free speech and
the right to petition the government for redress of grievances.
C. The provision on recruitment to and membership in terrorist

organizations under Section 10 in relation to Section 4 of
Republic Act No. 11479 violates freedom of association,
freedom of expression and the constitutional guarantee against
non-detention by reason of political beliefs or aspirations.
III. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES.
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A. The provision on arrests based on suspicion under Section 29

of Republic Act No. 11479 violates the right against
unreasonable searches and seizures.
B. The number of days of detention under Section 29 of Republic

Act No. 11479 exceeds the allowable detention time limits
provided under the Constitution.
IV. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT TO PRIVACY

OF CORRESPONDENCE.
A. The provision on surveillance of suspects and interception and

recording of communications under Section 16 of Republic Act
No. 11479 allows dragnet surveillance casting a very wide net
that affords state agents a fishing expedition for information
without regard to the type of data that they obtain.
B. The Anti-Terrorism Act allows a circumvention of the Rule on

the Writ of Habeas Data by presumably obtaining a court
authorization first to allow unlimited surveillance and data
gathering operation.
V. ON THE BASES OF UNDUE DELEGATION OF LEGISLATIVE

AUTHORITY AND USURPATION OF JUDICIAL PREROGATIVE, THE
ANTI-TERRORISM ACT VIOLATES THE PRINCIPLE OF
SEPARATION OF POWERS.
A. The power to order the arrest of persons by the Anti-

Terrorism Council under Section 29 of Republic Act No.
11479 constitutes undue delegation of legislative authority and
usurpation of judicial prerogative; thereby violating the
principle of separation of powers.
VI. THE ANTI-TERRORISM ACT VIOLATES THE CONSTITUTIONAL

PROHIBITION AGAINST INVOLUNTARY SERVITUDE.
A. The power of the Anti-Terrorism Council to require non-

government organizations, private entities and individuals to
render assistance to the ATC in the performance of its
mandate under Section 46(m) of Republic Act No. 11479
violates the constitutional prohibition against involuntary
servitude.
ARGUMENTS AND DISCUSSION
A. Procedural Arguments
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I. THE PRESENT PETITION IS AN APPROPRIATE RECOURSE TO

ASSAIL THE CONSTITUTIONALITY OF THE ANTI-TERRORISM
ACT.
Petitioners submit that the procedural remedies of certiorari and

prohibition are availing in the instant case to assail the constitutionality of
Republic Act No. 11479 or the Anti-Terrorism Act.
A. Propriety of the remedies of

Certiorari and Prohibition under
the ‘Expanded’ Jurisdiction of the
Supreme Court.
Judicial power, as embodied in Section 1, Article VIII of the 1987

Constitution, expressly vests on the courts the duty “to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.”
Indeed, the Court’s “expanded” power of judicial review allows it to

pass upon the constitutionality of acts of other branches of government
should the same be tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction. Thus, the High Court held in Francisco, Jr. v.
Nagmamalasakit ng mga Manananggol ng mga Manggagawang Pilipino, Inc.:19
that “the Supreme Court as the final arbiter, effectively checks other
departments in the exercise of its power to determine the law, and hence to
declare the executive and legislative acts void if violative of the
Constitution.” In a similar vein, petitions for certiorari20 and prohibition21
under Rule 65 of the Rules of Court also delve into questions whether a
tribunal, corporation, board, officer or person, exercising judicial or quasi-
judicial functions, has acted “with grave abuse of discretion amounting to
lack or excess of jurisdiction”.
19 G.R. No. 160261, November 10, 2003.

20 RULES OF COURT, Rule 65, Sec. 1, provides:
Sec. 1. Petition for certiorari – When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.
21 Id. at Sec. 2. Petition for Prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.
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In view thereof, petitioners submit that a Rule 65 petition for certiorari

and prohibition can be used as procedural vehicle to invoke the Court’s
‘expanded’ jurisdiction as applied in the present case. This is supported by
this Honorable Court’s pronouncement in Araullo v. Aquino22 which held that:
“With respect to the Court, however, the remedies of certiorari

and prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officers
exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting
to lack or excess of jurisdiction by any branch or instrumentality of
Government, even if the latter does not exercise judicial, quasi-
judicial or ministerial functions. xxx
Thus, petitions for certiorari and prohibition are appropriate

remedies to raise constitutional issues and to review and/or
prohibit or nullify acts of legislative and executive officials.”23
(Emphasis and underscoring supplied)
Moreover, this Honorable Court has affirmed in the recent en banc

cases of Samahan ng mga Progresibong Kabataan (SPARK), et al. v. Quezon City,
et al.24 (2017) and Oscar B. Pimentel, et al. v. Legal Education Board25 (2019) that
the procedural devices under Rule 65 may be used as a medium for petitions
invoking the Court’s ‘expanded’ jurisdiction.
B. There is a prima facie existence of

grave abuse of discretion in the
passage of the Anti-Terrorism Act
and direct resort to the Supreme
Court is justified.
At the crux of a petition for certiorari and prohibition is the

controversy of whether or not a governmental act or function is exercised or
performed with grave abuse of discretion amounting to lack or in excess of
jurisdiction. Grave abuse of discretion has been defined as a “capricious or
whimsical exercise of judgment that is patent and gross as to amount to an
evasion or positive duty or a virtual refusal to perform a duty enjoined by
law.”26
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC

Approved Medical Centers Association, Inc.,27 this Honorable Court has allowed
the direct filing of petitions for certiorari and prohibition under its
22 G.R. No. 209287, July 1, 2014.

23 Ibid.
24 G.R. No. 225442, August 8, 2017.
25 G.R. No. 230642, September 10, 2019.
26 Marvin Cruz and Francisco Cruz v. People of the Philippines, G.R. No. 224974, July 3, 2017.
27 G.R. No. 207132 & 207205, December 6, 2016.
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‘expanded’ jurisdiction, provided that there is a prima facie showing of

grave abuse of discretion in the exercise of the governmental act.28
In this case, petitioners submit that a prima facie case of grave abuse
of discretion exists with respect to the passage of the ATA in view of its
serious encroachments on petitioners’ fundamental rights and freedoms
guaranteed under the Constitution, which include the freedom of expression,
assembly and to petition the government for redress of grievances, the right
to due process and the right against unreasonable searches and seizures,
among others. Moreover, the existence of grave abuse of discretion is further
amplified by the vagueness and clear overbreadth of the several provisions
of the ATA, which include Sections 429, 530, 631, 732, 833, 934, 1035, 1136 and
1237 of the said law. The ambiguity and sheer overbreadth of these provisions
in the ATA run afoul of the Due Process Clause in the 1987 Constitution as
these do not provide a “fair notice” of what can be considered as criminal acts
and what are lawful acts. Accordingly, petitioners submit that the remedies
of certiorari and prohibition are availing, although the assailed
governmental action was not made pursuant to any judicial or quasi-
judicial function.
While the prevailing doctrine of hierarchy of courts require that

“recourse must first be made to the lower ranked court exercising concurrent
jurisdiction with a higher court”,38 petitioners’ direct resort to this
Honorable Court is justified by the issues of transcendental importance set
out in this petition. In Samahan ng mga Progresibong Kabataan (SPARK), et al.
v. Quezon City, et al.,39 the Supreme Court acknowledged that direct invocation
of this Court’s jurisdiction is allowed when the Court is “tasked to resolve
the constitutionality of a law or regulation at the first instance [if it]
is of paramount importance and immediately affects the social,
economic, and moral well-being of the people.”40 This Court’s
pronouncement in Diocese of Bacolod v. Commission of Elections41 likewise
recognized the ‘transcendental importance’ exception to the doctrine of
hierarchy of courts where “the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence.”42
28 Ibid.
29 Sec. 4, R.A. No. 11479 – Definition of “Terrorism”.
30 Sec. 5, R.A. No. 11479 – Threat to Commit Terrorism.
31 Sec. 6, R.A. No. 11479 – Planning, Training, Preparing and Facilitating the Commission of
Terrorism.
32 Sec. 7, R.A. No. 11479 – Conspiracy to Commit Terrorism.
33 Sec. 8, R.A. No. 11479 – Proposal to Commit Terrorism.
34 Sec. 9, R.A. No. 11479 – Inciting to Commit Terrorism.
35 Sec. 10, R.A. No. 11479 – Recruitment to and Membership in a Terrorist Organization.
36 Sec. 11, R.A. No. 11479 – Foreign Terrorist.
37 Sec. 12, R.A. No. 11479, - Providing material support to terrorists.
38 Virginia Dio v. Subic Bay Marine Exploratorium, Inc., G.R. No. 189532, June 11, 2014.
39 G.R. No. 225442, August 8, 2017.
40 Ibid.
41 G.R. No. 205728, January 21, 2015.
42 Ibid.
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It cannot be gainsaid that the instant case raises constitutional issues

of transcendental importance to the public. Here, there is a clear threat to
the paramount rights of free speech, freedom of expression, freedom of
assembly and petition for redress of grievances, and freedom from arbitrary
arrest and detention. The assailed statute sweeps unnecessarily broadly both
prohibited and protected conduct which, therefore, offends due process. The
far-reaching implications of the ATA to the lives of millions of Filipinos, not
to mention its ‘chilling effect’ to free speech and freedom of expression,
warrant the immediate resort to this Court in order to prevent the law’s
horrific impact on basic civil and political liberties, due process and rule of
law in the country. On account of the instant suit’s transcendental nature,
petitioners assert that there is no other plain, speedy and adequate remedy
in the ordinary course of law except this instant petition.
II. THE PRESENT PETITION COMPLIES WITH ALL THE

REQUIREMENTS FOR THE SUPREME COURT’S EXERCISE OF
JUDICIAL REVIEW.
It is hornbook rule that “the constitutionality of a statute [or act] will

be passed upon only if, and to the extent that, it is directly and necessarily
involved in a justiciable controversy and is essential to the protection of the
rights of the parties concerned.”43 Essentially, a justiciable controversy
requires the concurrence of the following requisites for judicial review,
namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have
standing to question the validity of the subject act or issuance; (c) the
question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the very lis mota of the case.44
Petitioners submit that the requisites of judicial review are present in

the instant petition which now render the issues at hand justiciable.
A. As a matter of exception to the

requirement that there be an actual
case or controversy, the present
Petition involves a “Facial”
Challenge as basis for a pre-
enforcement judicial review of the
Anti-Terrorism Act.
Foremost of the requisites for the Court’s exercise of its powers of

judicial review is the presence of an actual case or controversy which
necessitates “a conflict of legal rights, an assertion of opposite claims,
43 Brother Mariano Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004.
44 Belgica v. Ochoa, G.R. No. 208566, November 19, 2013.
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susceptible of judicial resolution as distinguished from a hypothetical or

abstract difference or dispute.”45
HOWEVER, this Court, in several instances, has allowed an “on-its-

face” invalidation of statutes as a matter of exception to the usual
requirement of an actual case or controversy on the ground of void-for-
vagueness and overbreadth. Here, petitioners submit that a facial challenge
can be mounted to assail the constitutionality of the ATA.
The dissenting opinion of Justice Carpio in the en banc case of Sps.

Romualdez v. COMELEC46 is illuminating on the concept of a “facial”
challenge vis-à-vis an “as applied” challenge as a ground to attack the
constitutionality of a statute.
“Petitioners challenge the constitutionality of Section 45(j) “as

applied” to them in a live case under which they face prosecution. This is
the traditional “as applied” approach in challenging the constitutionality
of any statute. In an “as applied” challenge, the petitioner who claims a
violation of his constitutional right can raise any constitutional ground
– whether absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness.
The “as applied” approach embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation of
his own rights. The rule prohibits one from challenging the
constitutionality of the statute based solely on the violation of the rights
of third persons not before the court. This rule is known as the prohibition
against third-party standing.
The U.S. Supreme Court has created a notable exception to the

prohibition against third-party. Under the exception, a petitioner may
mount a “facial” challenge to the constitutionality of a statute even if he
claims no violation of his own rights under the assailed statute. To mount
a “facial” challenge, a petitioner has only to show violation under the
assailed statute of the rights of third parties not before the court. This
exception allowing “facial” challenges, however, applies only to
statutes involving free speech. The ground allowed for a “facial’”
challenge is overbreadth or vagueness of the statute. Thus, the U.S.
Supreme Court declared:
x x x the Court has altered its traditional rules of standing

to permit – in the First Amendment area – ‘attacks on overly broad
statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute
drawn with the requisite narrow specificity.’ x x x Litigants,
therefore, are permitted to challenge a statute not because their own
rights of free expression are violated, but because a judicial prediction
or assumption that the statute’s very existence may cause others not
before the court to refrain from constitutionally protected speech or
expression. (Emphasis supplied)
The rationale for this exception allowing a “facial” challenge is to

counter the “chilling effect” on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech
45 Ibid.
46 G.R. No. 167011, April 30, 2008, see dissenting opinion of J. Carpio.
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constitutes a crime under an overbroad or vague law may simply refuse

to speak to avoid being charged of a crime. The overbroad or vague law
chills him into silence.”47 (Emphasis and underscoring supplied)
The dissenting opinion of Justice Carpio in the Romualdez case was later
adopted by this Honorable Court in the February 2014 en banc case of Jose
Jesus M. Disini, et al. v. Secretary of Justice.48 In that case, a “facial”
challenge was mounted in the Supreme Court to assail the constitutionality
of the Cybercrime Prevention Act (Republic Act No. 10175). In allowing a
“facial” challenge of R.A. No. 10175, particularly on Section 5 thereof on
aiding or abetting the commission of cybercrime, this Honorable Court held
that “when a penal statute encroaches upon the freedom of speech, a
facial challenge grounded on the void-for-vagueness doctrine is
acceptable”.49 Thus, the Court in the Disini case held that Section 5 with
respect to Section 4(c)(4) of R.A. No. 10175 is unconstitutional since its
vagueness has an “obvious chilling effect on the freedom of expression.”50
Justice Leonen’s dissenting and concurring opinion in the Disini case

likewise lends credence to the concept of a “facial” invalidation of a statute,
to wit:
“The only instance when a facial review is permissible is when

there is a clear showing that the provisions are too broad under any
reasonable reading that it imminently threatens expression. In these
cases, there must be more of a showing than simply the in terrorem effect
of a criminal statute. It must clearly and convincingly show that there
can be no determinable standards that can guide interpretation.
Freedom of expression enjoys a primordial status in the scheme of our
basic rights. It is fundamental to the concept of the people as a sovereign.
Any law – regardless of stage of implementation – that allows vague and
unlimited latitude for law enforcers to do prior restraints on speech must
be struck down on its face.”51 (Emphasis and underscoring supplied)
Thus, in his opinion, Justice Leonen set out the following

requirements that must be established for an allowable “facial” review of a
statute, viz:
“In my view, the prevailing doctrine now is that a facial

challenge only applies to cases where the free speech and its
cognates are asserted before the court. While as a general rule penal
statutes cannot be subject to facial attacks, a provision in a statute
can be struck down as unconstitutional when there is a clear showing
that there is an imminent possibility that its broad language will
allow ordinary law enforcement to cause prior restraints of free
speech and the value of that speech is such that its absence will be
socially irreparable.
This, therefore, requires the following:
47 Ibid.
48 G.R. No. 203335, February 11, 2014.
49 Ibid.
50 Id.
51 G.R. No. 203335, February 11, 2014, see dissenting and concurring opinion of J. Leonen.
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First, the ground for the challenge of the provision in the statute
is that it violates the freedom of expression or any of its cognates;
Second, the language of the statute is impermissibly vague;
Third, the vagueness in the text of the statute in question allows

for an interpretation that will allow prior restraints;
Fourth, the “chilling effect” is not simply because the provision is

found in a penal statute but because there can be a clear showing that
there are special circumstances which show the imminence that the
provision will be invoked by law enforcers;
Fifth, the application of the provision in question will entail prior

restraints; and
Sixth, the value of the speech that will be restrained is such that
its absence will be socially irreparable. This will necessarily mean
balancing between the states interests protected by the regulation and the
value of the speech excluded from society.”52
Albeit the concept of a “facial” challenge has been largely and

traditionally confined to speech regulating legislations, this Court, by virtue
of its April 2014 pronouncement in the landmark case of James M.
Imbong, et al. v. Ochoa,53 in effect, “expanded” the scope of the “facial”
challenge principle as “to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental
rights”.54 The Court held in that case:
“In United States (U.S.) constitutional law, a facial challenge,

also known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected speech,
but also all other rights in the First Amendment. These include
religious freedom, freedom of the press, and the right of the people to
peaceably assembly, and to petition the Government for a redress of
grievances. After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component
rights of the right to one’s freedom of expression, as they are modes
which one’s thoughts are externalized.
In this jurisdiction, the application of doctrines originating from

the U.S. has been generally maintained, albeit with some modifications.
While this Court has withheld the application of facial challenges to
strictly penal statutes, it has expanded its scope to cover statutes
not only regulating free speech, but also those involving freedom,
and other fundamental rights. The underlying reason for this
modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law not
only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there
has been grave abuse of discretion amounting to lack of excess of
52 Ibid.
53 G.R. No. 204819, April 8, 2014.
54 Ibid.
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jurisdiction on the part of any branch or instrumentality of the

Government. Verily, the framers of our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the supremacy
of the Constitution.”55 (Emphasis and underscoring supplied)
Petitioners are not unaware of this Court’s rulings in the cases of

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council56 and Republic of the Philippines v. Roque57 where the Court
upheld the constitutionality of the HSA and dismissed the petitions therein
primarily on the absence of an “actual case or controversy” and the
petitioners’ lack of legal standing to sue. It is significant to note that in both
cases, owing to the petitioners’ failure to show any direct and personal
interest in the case, the Court was unable to rule on the constitutionality of
the assailed provisions in the HSA.
Petitioners, however, submit that the issues raised in the instant

petition should be differentiated from the abovementioned cases. In the
Southern Hemisphere case, the Court rejected the application of a “facial”
challenge against the HSA since it found that the HSA “regulated conduct,
not speech”.58 This is because under the HSA, the existence of a predicate
crime actually committed is a condition sine qua non before a charge of
terrorism may be filed under R.A. No. 9372.59
In juxtaposition, the ATA which repealed the HSA removed the

predicate crimes formerly required under the old law as an element of the
crime and replaced it with overt acts which are more vague and broader
in scope in terms of acts that are penalized.60 Moreover, the ATA
introduced entirely new offenses like threat to commit terrorism;61
planning, training, preparing and facilitating to commit terrorism;62 inciting
to commit terrorism;63 recruitment to and membership in a terrorist
organization;64and providing material support to terrorists65 - all of which
have a palpable bearing on the exercise of an individual’s
constitutionally protected freedoms of speech, expression, association,
peaceful assembly and the right to petition the government for redress
of grievances. Undeniably, a “facial” challenge of the assailed law is,
therefore, appropriate.
Following the pronouncements of this Honorable Court in the Disini

and Imbong cases, petitioners submit that this Honorable Court has the
authority to take cognizance of the present petition in light of the
55 G.R. No. 204819, April 8, 2014.

56 G.R. No. 178552, October 5, 2010.
57 G.R. No. 204603, September 24, 2013.
58 G.R. No. 178552, October 5, 2010.
59 Sec. 3, R.A. No. 9372.
60 See Sec. 4, R.A. No. 11479.
61 Sec.5, R.A. No. 11479.
62 Sec. 6, R.A. No. 11479.
63 Sec. 9, R.A. No. 11479.
64 Sec. 10, R.A. No. 11479.
65 Sec. 12, R.A. No. 11479
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constitutional rights to free speech, peaceful assembly, association and to

petition government for redress of grievances, due process, and freedom
from arbitrary arrest and detention which are alleged to have been seriously
violated by the assailed legislation. To reiterate this Court’s ruling in Imbong:
“To dismiss these petitions on the simple expedient that there exist no
actual case or controversy, would diminish this Court as a reactive
branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino People.”66
B. Petitioners, being concerned

citizens and taxpayers, have locus
standi on account of the
transcendental importance of the
issues raised in the Petition.
On the question of locus standi, jurisprudence requires that one must

show “personal and substantial interest” in the case, such that he/she has
sustained or is in immediate danger of sustaining some direct injury as a
consequence of the enforcement of the challenged governmental act.67
However, this Court recognized that a strict application of the “direct injury”
test in determining the legal standing of a petitioner may hamper public
interest and, therefore, can be relaxed in cases of “transcendental
importance” or with “far reaching implications”.68
This liberal attitude on legal standing has been adopted by this Court
in numerous cases, particularly when the petitioners invoke a public right
allegedly violated by the assailed governmental act. In David v. Macapagal-
Arroyo,69 the Court recognized the exceptions to the “direct injury” test in
according petitioners the legal standing to sue, to wit:
“xxx However, being a mere procedural technicality, the

requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, where the “transcendental
importance” of the cases prompted the Court to act liberally. Such
liberality was neither a rarity nor accidental. In Aquino v. Comelec, this
Court resolved to pass upon the issues raised due to the “far-reaching
implications” of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing
ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.
Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been allowed to sue under the
66 Ibid.
67 Saguisag v. Ochoa, Jr., G.R. No. 212246 & 212444, January 12, 2016.
68 Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008.
69 G.R. No. 171396, May 3, 2006.
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principle of “transcendental importance”. Pertinent are the following

cases:
(1) Chavez v. Public Estates Authority, where the Court ruled that the
enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, wherein the Court held

that “given the transcendental importance of the issues involved, the
Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking judicial
review” of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary, while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that “Balikatan 02-01”” involves the exercise of Congress’ taxing or
spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora, that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be
relaxed.
By way of summary, the following rules may be culled from the

cases decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of

public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the

validity of the election law in question;
(4) for concerned citizens, there must be a showing that the

issues raised are of transcendental importance which must be settled
early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.”70
In this case, petitioners assert that, being concerned citizens and

taxpayers, they are clothed with the legal personality to assail the
constitutionality of the ATA in light of the transcendental importance of
the issues raised in the instant petition as well as the far-reaching
implications of the petition. The instant case raises constitutional issues on
the alleged violations of the ATA to the petitioners’ constitutionally
guaranteed rights to freedom of expression, to peaceably assembly and
petition the government for redress of grievances, the right to due process,
privacy of correspondence, and the right against unreasonable searches and
seizures. Evidently, these matters are “of transcendental importance, of
overreaching significance to society, or of paramount public interest”.71
70 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006.

71 Social Justice Society v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008.
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Significantly, petitioners take cognizance of the recent spate of arrests

of student protesters who have been vocal in expressing their dissent on the
passage of the ATA.
On June 5, 2020, three (3) students along with members of progressive

groups and a bystander were violently arrested by law enforcement officials
from the Cebu City Police Office during a protest rally against the anti-
terrorism bill held at premises of the University of the Philippines (UP) Cebu
campus.72
On June 12, 2020, sixteen (16) student protesters were also arrested
by police officers in Iligan City, Lanao del Norte for gathering at a barangay
rotunda to call for the junking of the anti-terrorism bill, among other issues
raised during the said protest.73
As students, youth activists and members of cause-oriented groups

and student organizations, petitioners stand to be greatly affected by the
implementation of the ATA. If at all, the abovementioned arrests of student
protesters already offer a terrifying glimpse to the petitioners where their
right to express their dissent and to speak out against government excesses
are effectively curtailed due to the fear of being labelled as “terrorists”, or
worse, due to fear of arrest and prosecution.
It cannot be denied that the issues raised herein have a potentially

pervasive impact on the basic fundamental civil and political liberties of the
Filipino people, most especially the youth which is herein represented by the
petitioners; hence, the adjudication of these essential matters by this Court
is an imperative need. Petitioners, thus, submit that the transcendental
importance of the issues raised in this petition renders it obligatory for this
Honorable Court to allow the direct invocation of its ‘expanded’ judicial
review powers and the relaxation of the strict application of procedural
requirements.74
C. The question of the

constitutionality of the Anti-
Terrorism Act is raised at the
earliest opportunity.
Petitioners also submit that the question of constitutionality of the

ATA is raised at the earliest opportunity, the same being interposed in the
instant petition before this Honorable Court. As previously mentioned,
direct recourse to this Honorable Court is justified by the transcendental
72 Mayol, Ador Vincent & Nestle Semilla (2020, June 6), Terror bill protests: Cebu cops arrest 8 inside
UP campus. Inquirer.net. Retrieved from https://newsinfo.inquirer.net/1287133/terror-bill-
protests-cebu-cops-arrest-8-on-up-campus, date accessed on 13 July 2020.
73 CNN Philippines (2020, June 12). 16 student protesters released after arrest in Iligan City on
Independence Day. Retrieved from https://www.cnnphilippines.com/regional/2020/6/12/iligan-

city-protesters-arrested-independence-day.html, date accessed on 13 July 2020.
74 Araullo v. Aquino, G.R. No. 209287, July 1, 2014, see separate opinion of J. Brion.
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issues raised in the petition and the fact that the issues involved pertain to
pure questions of law which this Honorable Court can take cognizance
thereof.
D. The question of constitutionality is

the lis mota of the present Petition.
Finally, petitioners submit that the issue of constitutionality of the

ATA is the very lis mota of the present petition. The issues raised in the
instant case cannot be disposed of on some other ground, such as the
application of the statute or the general law. There is no other way in
determining whether the implementation of the ATA encroaches on the
constitutional rights of the petitioners except by resolving the issues raised
in this petition.
B. Substantive Arguments
I. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT TO DUE

PROCESS.
Petitioners assail Sections 4, 5, 6, 7, 8, 9, 10, 11 & 12 of the ATA as
unconstitutional as it violates the due process clause of the Constitution by
failing to provide a “fair notice” of what is a criminal act and what is a lawful
act. Petitioners likewise assail Sections 25, 26 and 27 of the ATA as
unconstitutional for being violative of the right to due process, presumption
of innocence, and the constitutional prohibition against bill of attainders and
ex post facto laws.
A. The definition of terrorism and the

provisions on the acts of terrorism
punishable under Sections 4, 5, 6, 7,
8, 9, 10, 11 and 12 of Republic Act
No. 11479 are facially invalid under
the void-for-vagueness and
overbreadth doctrines.
The due process clause, which guarantees that no person shall be

deprived of life, liberty or property without due process of law, requires that
citizens are given sufficient notice of warning of what is lawful and unlawful
conduct under a penal statute.75 In this vein, the Court has developed the
“void-for-vagueness” and “overbreadth” doctrines to “facially” invalidate a
statute.
Under the “void-for-vagueness” doctrine, “a law is facially invalid if

men of common intelligence must necessarily guess at its meaning and differ
75 Sps. Romualdez v. Comelec, G.R. No. 167011, April 30, 2008, see dissenting opinion of J. Carpio.
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as to its application.”76 In Estrada v. Sandiganbayan,77 this Court had a chance

anew to discuss the test for determining whether a statute is vague, thus:
“xxx a statue establishing a criminal offense must define the offense

with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It can only be
invoked against that specie of legislation that is utterly vague on its face,
i.e., that which cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it lacks

comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2)
respects – it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle. xxx
The test in determining whether a criminal statute is void for

uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice. It must be stressed, however, that the
“vagueness” doctrine merely requires a reasonable degree of certainty for
the statute to be upheld – not absolute precision or mathematical
exactitude, as petitioners seem to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of
the statute are clearly delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings or detailed in its
provisions, especially where, because of the nature of the act, it would be
impossible to provide all the details in advance as in all other statutes.”78
The application of the void-for-vagueness doctrine in our jurisdiction as

a means to invalidate penal statutes can be traced to our courts’ application
of American jurisprudence owing to the fact that the due process clauses
found in the American and Philippine Constitutions “are not only worded in
exactly identical language, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the
provisions are informed and impressed, the elasticity in their interpretation,
their dynamic and resilient character xxx and their having been designed
from earliest time to present to meet the exigencies of and undefined and
expanding future”.79
Thus, in Kolender v. Lawson,80 the U.S. Supreme Court, in declaring

unconstitutional a California criminal statute which required persons who
loiter or wander on the streets to provide a credible and reasonable
identification and to account for their presence when requested by a peace
76 Sps. Romualdez v. Comelec, G.R. No. 167011, December 11, 2008.

77 G.R. No. 148560, November 19, 2001.
78 Ibid.
79 Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000.
80 461 U.S. 352 (1983).
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officer under circumstances that would justify a valid stop, held that the
subject statute was unconstitutionally vague on its face within the meaning
of the due process clause of the Fourteenth Amendment because it
encourages arbitrary enforcement by failing to clarify what is contemplated
by the requirement that a suspect provide a “clear and reasonable
identification”. Similarly, in the earlier case of Connally v. General Construction
Co.,81 the U.S. Supreme Court held:
“That the terms of a penal statute creating a new offense must

be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties is a well-
recognized requirement, consonant alike with ordinary notions of fair
play and the settled rules of law; and a statute which either forbids or
requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.”82 (Emphasis
supplied)
In this regard, petitioners find the discussion in Justice Kapunan’s

dissenting opinion in Estrada enlightening and especially applicable in the
present case, to wit:
“The Constitution guarantees both substantive and procedural due

process as well as the right of the accused to be informed of the nature and
cause of the accusation against him. A criminal statute should not be so
vague and uncertain that ‘men of common intelligence must necessarily
guess as to its meaning and differ as to its application’.
There are three distinct considerations for the vagueness doctrine.

First, the doctrine is designed to ensure that individuals are properly
warned ex ante of the criminal consequences of their conduct. This
‘fair notice’ rationale was articulated in United States v. Harris:
The constitutional requirement of definiteness is

violated by a criminal statute that fails to give a person of
ordinary intelligence fair notice that his contemplated conduct
is forbidden by the statute. The underlying principle is that no
man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed.
Second, and viewed as more important, the doctrine is intended

to prevent arbitrary and discriminatory law enforcement. Vague laws
are invariably ‘standardless’ and as such, they afford too great an
opportunity for criminal enforcement to be left to the unfettered discretion
of police officers and prosecutors. Third, vague laws fail to provide
sufficient guidance to judges who are charged with interpreting
statutes. Where a statute is too vague to provide sufficient guidance, the
judiciary is arguably placed in the position of usurping the proper function
of the legislature by ‘making the law’ rather than interpreting it.
While the dictum that laws be clear and definite does not require
Congress to spell out with mathematical certainty the standards to which
an individual must conform his conduct, it is necessary that statutes
81 269 U.S. 385 (1926).

82 Ibid.
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provide reasonable standards to guide prospective conduct. And where a

statute imposes criminal sanctions, the standard of certainty is
higher. xxx”83 (Emphasis and underscoring supplied)
It is, therefore, petitioners’ submission that a void-for-vagueness

challenge to a penal law, such as in this case, may be sustained to strike down
the ATA for being violative of the constitutional guarantee of due process.
In this case, the vagueness of the ATA is primarily rooted in its definition of
“terrorism” as can be found in Section 4 of the law which provides, 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 state of execution:
(a) Engages in acts intended to cause death or serious bodily injury

to any person, or endangers a person’s life;
(b) Engages in acts intended to cause extensive damage or

destruction to a government or public facility, public place or private
property;
(c) Engages in acts intended to cause extensive interference with,

damage or destruction to critical infrastructure;
(d) Develops, manufactures, possesses, acquires, transports,

supplies or uses weapons, explosives or of biological, nuclear, radiological
or chemical weapons; and
(e) 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 of
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 the 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.”
Gleaning from its definition of what constitutes as “terrorism”,

Section 4 of the ATA is clearly vague and too broad. It bears stressing
that, unlike its former counterpart provision in the HSA, the overt acts
mentioned in Sec. 4(a) to (4(e) as well as the purpose/s of these acts
UNNECESSARILY EXPAND the definition of “terrorism”. To
illustrate, the following are the differences between the elements of
83Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, see dissenting opinion of J.
Kapunan.
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“terrorism” under the HSA versus the elements of “terrorism” under the
ATA:
Elements of “Terrorism” under Elements of “Terrorism under

Sec. 3 of Republic Act No. 9372 Sec. 4 of Republic Act No. 11479
(Human Security Act) (Anti-Terrorism Act)
1. The offender commits an act 1. The perpetrator commits any

punishable under any of the of the overt acts listed in Sec.
cited provisions of the 4(a) to 4(e); and
Revised Penal Code, or under
any of the enumerated special
penal laws;
2. The purpose of the 2. The purpose of the overt

commission of the predicate act/s must be any of the
crime is to sow and create a following:
condition of widespread and a. to intimidate the
extraordinary fear and panic general public or a
among the populace; and segment thereof;
b. to create an
atmosphere or spread a
message of fear;
3. The intent of the offender is c. to provoke or influence
the desire to coerce the by intimidation the
government to give in to an government or any
unlawful demand. international
organization;
d. to seriously destabilize
or destroy the
fundamental political,
economic, or social
structures of the
country;
e. to create a public
emergency; or
f. to seriously undermine
the public safety.
It is important to note that under the former HSA, the predicate acts
which constitute the crime of “terrorism” are already existing criminal
offenses which are penalized under the Revised Penal Code or under the
special penal laws enumerated. Thus, the commission of these acts can easily
be referenced to their definition and respective elements under the Penal
Code or the particular special penal law. Contrastingly, the overt acts
under Sec. 4(a) to 4(e) of the ATA expresses NO CRITERION OF
DEFINITENESS as these are broadly phrased which could encompass
even acts that are not considered criminal under the law.
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Take for example the case of the Panday Sining members who were
arrested by the police last November 30, 2019 for allegedly vandalizing the
streets in Manila by painting messages like “Biguin ang de facto martial law”
and “Anong sagot ng supremo sa martial law”, which the group said referred to
President’s Duterte’s Executive Order No. 70 in 2018.84 Under the former
HSA, the crime of vandalism would not constitute as a “terrorist” act since
vandalism is not one of the predicate crimes mentioned under the HSA.
However, under the ATA, the vandalism committed by the Panday Sining
members could easily be tagged by the police enforcers as a “terrorist” act
since they may be considered as “engaging in acts intended to cause extensive
damage or destruction to a government or public facility, public place or private
property.”
In the same way that the students of Polytechnic University of the

Philippines (PUP) who burned chairs and extensively destroyed university-
owned properties in protest to the almost 200% tuition fee increase85 may
now be charged for “terrorism” under the ATA. Police officials can simply
allege that the acts of burning the chairs and extensively damaging
university-owned properties already constitute the first element of the crime
of terrorism and they can allege that these acts of the student protesters were
intended to achieve any of the very broad and ambiguous purposes under
Section 4 of the law in order to justify the arrest of the protesters as
“terrorists”.
Furthermore, the purposes mentioned in Section 4 of the ATA to

constitute as an element of “terrorism” are so WORDED IN A
STANDARDLESS WAY that the same invites arbitrary enforcement
of the law. Phrases like “to create an atmosphere or spread of message of fear”;
“to provoke or influence by intimidation the government”; and “to seriously
destabilize or destroy fundamental political, economic, or social structure of the
country” are highly subjective and relative terms that are susceptible to
multiple interpretations especially by law enforcement officials. Indubitably,
the metes and bounds of the statute are not clearly delineated.
In the same vein, petitioners submit that the ATA also suffers of
overbreadth. Related to the principle of void-for-vagueness, the
“overbreadth” doctrine decrees that “a governmental purpose may not be
achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms.”86
Justice Tinga, in his separate opinion in the case of Romualdez v.

Sandiganbayan87 citing Justice Kapunan’s dissenting opinion in Estrada v.
84 Adonis, Meg (2019, December 2). 4 Panday Sining members nabbed for vandalism. Inquirer.net.
Retrieved from https://newsinfo.inquirer.net/1196747/4-panday-sining-members-nabbed-for-
vandalism, date accessed 15 July 2020.
85 ABS-CBN News (2010, March 24), Enraged PUP students burn chairs in tuition hike protest.
Retrieved from https://news.abs-cbn.com/video/nation/youth/03/23/10/enraged-pup-

students-burn-chairs-tuition-hike-protest, date accessed 17 July 2020.
86 Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001.
87G.R. No. 152259, July 29, 2004, see separate opinion of J. Tinga.
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Sandiganbayan, differentiated the concepts of “vagueness” and “overbreadth”,

to wit:
“A view has been proffered that “vagueness and overbreadth are

not applicable to penal laws”. These two concepts, while related, are
distinct from each other. On one hand, the doctrine of overbreadth
applies generally to statutes that infringe upon freedom of speech.
On the other hand, the “void-for-vagueness” doctrine applies to
criminal laws, not merely those that regulate speech or other
fundamental constitutional right. The fact that a particular criminal
statute does not infringe upon free speech does not mean that a facial
challenge to the statute on vagueness grounds cannot succeed.”88
At bar, petitioners posit that the definition of “terrorism” under

Section 4 of the ATA and its related provisions under Sections 5, 6, 7, 8, 9,
10, 11 and 12 sweeps unnecessarily broadly as to include acts which are
protected under the constitutional right on freedom of expression. It
has the effect of criminalizing acts which, absent the broad definition of the
law, are confined to mere exercise of the people’s constitutionally guaranteed
freedom of speech and other protected rights.
For one, Section 12 in relation to Section 3(e) penalizes the act of

providing material support to terrorists. “Material support” as defined in
Sec. 3(e) of the law consists of “any property, tangible or intangible, or
service, including currency or monetary instruments or financial securities,
financial services, lodging, training, expert advice or assistance, safehouses,
false documentation or identification, communications equipment, facilities,
weapons, lethal substances, explosives, personnel (one or more individuals
who may be or include oneself), and transportation”. By this very ambiguous
and expansive definition, the mere act of providing placards or other
paraphernalia to rallyists from leftist organizations and cause-oriented
groups would already be penalized under Sec. 12 of the ATA especially if
these organizations are designated as “terrorists” by the ATC. Lawyers who
render legal service to suspected “terrorists” may also be penalized under the
provision considering that “material support” can also consist of “expert
advice or assistance”.
Section 6 in relation to Section 3(h) and (k) which penalizes the

planning, preparing and facilitating the commission of terrorism also
dangerously covers the mere possession or collection of objects or
documents deemed connected to acts of terrorism. Thus, possessing items
like Anti-Duterte materials or emails or text correspondences containing
rally or protest information may already be considered as punishable under
the ATA. In the same way that a person residing abroad who comes to the
Philippines to participate in the “planning, training or preparing” for
activities which may be deemed by the State as “terrorist” activities may be
punished under Section 11 as a foreign terrorist. It is important to
consider that these preparatory acts of planning, preparing, facilitating or
training were not previously penalized under the HSA; worse, these
88 Ibid.
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punishable acts under the ATA carry with them the penalty of life
imprisonment without the benefits of parole or Good Conduct and Time
Allowance (GCTA) under Republic Act. No. 10592.
Section 5 on the threat to commit terrorism likewise provides a

very ambiguous concept as to what constitutes a “threat to commit
terrorism”, which could, therefore, give rise to several interpretations and
may as well proscribe a wide range of acts which are not prohibited under
the law. In the same manner, Sections 7 and 8 in relation to Section 3(g)
on conspiracy and proposal to commit terrorism are also broad and vague
considering that the definitions of these crimes are largely dependent on
what constitutes “terrorism” under Section 4 thereof.
Finally, Sections 9 and 10 in relation Section 3(h), (l) and (m) on

inciting to commit terrorism and recruitment to and membership in a
terrorist organization intrude into areas of protected expression and
freedom of association. Even the mere act of “supporting” an organization
without necessarily becoming member thereof is already penalized. The term
“terrorist organization” as defined in Section 3(m) is also very vague in
light of the powers granted to the ATC to designate individuals, groups or
organizations as suspected terrorists under Sections 25 of the law.
Although Section 4 of the ATA seemingly excludes from the definition

of the “terrorism” acts consisting of “advocacy, protest, dissent, stoppage of work,
industrial or mass action, and other similar exercises of civil and political rights”,
this “safeguard proviso” is but a futile and mocking disguise to save
freedom of expression from the chilling effects of such vague and broad
definition of “terrorism”. It bears stressing that this proviso is further
qualified that these acts “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”. These words are but camouflage statements placed in Section
4 of the law in order to appease a questioning public and, thus, offer no real
protection against an arbitrary enforcement of a vague statute.
A deeper study and understanding of the “safeguard proviso” in

Section 4 thereof would show that this does not at all make any difference to
the dangers presented by the vague and broad definition of “terrorism” under
the ATA. In fact, it makes Section 4 thereof more dangerous and “chilling”
to freedom of expression because now, to take away an act from the cloak of
free speech and deliver it to the dungeons of terrorism, law enforcement only
has to allege “intent”. As “intent” is made an element of the crime of
terrorism, the acts described therein can now be presumed “done or made
with intent to commit acts of terrorism”. In effect, the burden of proof to
prove lack of intent is now shifted to the suspected terrorist. And while the
suspected terrorist proves the lack of intent, he/she is first subjected to the
horrors of Section 16 (on surveillance of suspects and interception and
recording of communications), Section 25 (on designation of terrorist
groups/individuals) and Section 29 (on detention without judicial warrant of
arrest for 14 to 24 days) of the law.
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In sum, petitioners argue that by its definition of “terrorism”, the ATA

sweeps unnecessarily broadly and thereby invades areas of protected
freedoms. The vagueness of the punitive provisions in the law clearly violate
due process as (1) it does not give fair notice or warning to ordinary citizens
as to what is criminal conduct and what is lawful conduct; (2) it prescribes
no ascertainable standard of guilt to guide courts in judging those charged
of its violations; and (3) it is so vague that law enforcers – the police and
prosecutors – can arbitrarily or selectively enforce it.
B. The provision on the power of the

ATC to designate individuals or
organizations as terrorists under
Section 25 in relation to Section 3(b)
of Republic Act No. 11479 violate
due process.
Petitioners likewise submit that Section 25 of the ATA is

unconstitutional because it violates due process. This section provides:
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, 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 meets the criteria for the designation of the UNSCR
No. 1373.
The ATC may designate an individual, groups 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,

organizations 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.
Corollary thereto, Section 3(b) of the ATA provides the definition of a

“designated person” as follows:
SEC. 3. Definition of Terms - as used in this Act:
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(b) Designated Person shall refer to:
Any individual, group of persons, organizations, or associations

designated and/or identified by the United Nations Security Council, or
another jurisdiction, or supranational jurisdiction as a terrorist, one who
finances terrorism, or a terrorist organization or group; or
Any person, organization, association, or group of persons

designated under paragraph 3 of Section 25 of this Act.
For purposes of this Act, the above definition shall be in addition

to the definition of designated persons under Section 3(e) of Republic Act
No. 10168, otherwise known as the “Terrorism Financing Prevention and
Suppression Act of 2012”.
Of particular significance in this case is the third paragraph of Section

25 which grants the ATC the power to “designate an individual, groups of
persons, organization, or association, whether domestic or foreign” as
terrorists “upon finding of probable cause”. Section 25 is an entirely new
provision under the ATA as the same is not found under the HSA.
As worded, the third paragraph of Section 25 gives a unilateral and

unbridled discretion on the part of the ATC, a purely executive council, to
decide who is considered a “terrorist”. This provision smacks of arbitrariness
as it does not lay down specific standards that the ATC should follow in
determining who they can consider as “terrorists”, leading to fears that the
same could be abused and weaponized by the current administration to brand
its political opponents and critics as enemies of the State. There is nothing
in Section 25 which provides that the individual, group of persons or
organization is accorded by the ATC the requisite notice and hearing
before he/she or the organization is designated as a terrorist.
Due process is comprised of two components – substantive due process

which requires the intrinsic validity of the law in interfering with the rights
of the person to his life, liberty, or property, and procedural due process
which consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal.89 As
this Court held in Secretary of Justice v. Lantion:90
“True to the mandate of the due process clause, the basic rights of
notice and hearing pervade not only in criminal and civil proceedings, but
in administrative proceedings as well. Non-observance of these rights
will invalidate the proceedings. Individuals are entitled to be notified of
any pending case affecting their interests, and upon notice, they may claim
the right to appear therein and present their side and to refute the position
of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).91
89 Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000.

90 Ibid.
91 Id.
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In Ynot v. Intermediate Appellate Court,92 the Supreme Court declared as

unconstitutional Executive Order 626-A, which banned the transportation
and slaughter of carabaos, on the ground that the owner of the carabaos
confiscated was denied the right to be heard in his defense and immediately
condemned and punished.
Similarly, the individual, group of persons or organizations that may

be subject to the designation proceedings by the ATC under Section 25 are
denied of their opportunity to be heard. There is nothing in Section 25 which
grants the individual, group of persons or organizations the opportunity to
present controverting evidence before the ATC. In effect, this would put the
subject individuals, group of persons or organizations practically ‘at the
mercy’ of the ATC as they are effectively denied of any opportunity to refute
any claims, whether unfounded or not, that they are terrorist individuals or
terrorist organizations. If at all, Section 25 evinces a despotic and strong-
arm approach by which the government can label any person or organization
as an “enemy of the State”.
Thus, the dangerous consequences of Section 25 are palpable. It is

important to consider that as a consequence of the ATC’s designation of an
individual, a group of persons or an organization as terrorists, the latter’s
assets can be frozen by the AMLC. Pursuant to Section 36, the AMLC, either
upon its own initiative or request of the ATC, is authorized to issue an ex
parte order to freeze without delay any property or funds of the designated
person. Thus, an unsuspecting individual, group of persons or organization
who may be designated by the ATC sans any notice or hearing run the risk
of having his/her or their assets frozen by the AMLC without his/her or
their knowledge. Worse, the ATA provides no judicial or administrative
remedy for the designated person to challenge or seek the lifting of the
designation order of the ATC.
Another consequence of Section 25 is that the designated persons

under Section 25 may also be subjected to state surveillance pursuant to
Section 16 as a “person charged with or suspected of committing any of the
crimes defined and penalized” under the ATA. Furthermore, nothing
prevents the ATC from ordering the warrantless arrest and detention of the
designated persons under Section 29 considering that the person only needs
to be “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”.
Undeniably, Section 25 poses a real danger to the life, liberty and

property of the designated persons as the same is repugnant to the due
process clause.
C. The provision on proscription of

terrorist organizations, associations
or group of persons under Section
92 G.R. No. L-74457, March 20, 1987.

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26 and 27 of Republic Act No. 11479

violates due process, constitutional
presumption of innocence, and the
constitutional prohibition against
the passage of a bill of attainder and
an ex post facto law.
Criminal due process requires that an accused has in his favor the
presumption of innocence until the contrary is proved.93 As held in People v.
Ganguso:94
“An accused has in his favor the presumption of innocence which the
Bill of Rights guarantees. Unless his guilt is shown beyond reasonable
doubt, he must be acquitted. This reasonable doubt standard is demanded
by the due process clause of the Constitution which protects the accused
from conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged. The burden of
proof is on the prosecution, and unless it discharges the burden the accused
need not even offer evidence in his behalf, and he would be entitled to an
acquittal. xxx”95
In this case, petitioners submit that Sections 26 and 27 relative to the

proscription of terrorist organizations, associations or group of persons are
unconstitutional because these provisions subvert due process and the
constitutional guarantee of presumption of innocence by partaking the
nature of a bill of attainder and an ex post facto law.
Section 26 of the ATA provides:
SEC. 26. Proscription of Terrorist Organizations, Association, or Group

of Persons. – Any group or persons, organizations, or association, which
commits any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9,
10, 11 and 12 of this Act, or organized for the purpose of engaging in
terrorism shall, upon application of the DOJ before the authorizing division
of the Court of Appeals with due notice and opportunity to be heard given
to the group of persons, organization or association, be declared as a
terrorist and outlawed group of persons, organization or association, by the
said Court.
The application shall be filed with an urgent prayer for the issuance
of a preliminary order of proscription. No application for proscription shall
be filed without the authority of the ATC upon the recommendation of the
National Intelligence Coordinating Agency (NICA).
Section 27, on the other hand, provides for the preliminary order of
proscription, to wit:
SEC. 27. Preliminary Order of Proscription. – Where the Court has

determined that probable cause exists on the basis of the verified application
which is sufficient in form and substance, that the issuance of an order of
93 SEC. 14, ART. III, 1987 CONSTITUTION.

94 G.R. No. 115430, November 23, 1995.
95 Ibid.
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proscription is necessary to prevent the commission of terrorism, he/she

shall, within seventy-two (72) hours from the filing of the application, issue
a preliminary order of proscription declaring that the respondent is a
terrorist and an outlawed organization or association within the meaning
of Section 26 of this Act.
The court shall immediately commence and conduct continuous

hearings, which should be completed within six (6) months from the time
the application has been filed, to determine whether:
(a) The preliminary order of proscription should be made

permanent;
(b) A permanent order of proscription should be issued in case no

preliminary order was issued; or
(c) A preliminary order of proscription should be lifted.

It shall be the burden of the applicant to prove that the respondent
is a terrorist and an outlawed organization or association within the
meaning of Section 26 of this Act before the court issues an order of
proscription whether preliminary or permanent.
The permanent order of proscription herein granted shall be

published in a newspaper of general circulation. It shall be valid for a period
of three (3) years after which, a review of such order shall be made and if
circumstances warrant, the same shall be lifted.
Foremost, it is important to point out that when the above provisions

are read with Section 25 which provides for the designation of individuals,
group of persons, or organizations as terrorists, there is no clear distinction
between designated individuals or terrorist organizations under Section 25
and proscribed terrorist organizations under Section 26 in terms of
implications and consequences. As previously discussed, a designated
individual or organization under Section 25 may have their assets frozen by
the AMLC. They can also be subjected to state surveillance pursuant to
Section 16 and detained without a warrant for 14-24 days under Section 29.
By implication thereof, proscribed organizations under Section 26 may also
be subject to the similar consequences as that of designated persons under
Section 25.
Another issue to consider is with respect to the preliminary order of

proscription found in Section 27. Under the new anti-terrorism law, the
court is authorized to issue two (2) types of proscription orders: (a) the
preliminary order of proscription; and (b) the permanent order of
proscription. The former is issued by the court within 72 hours from the
filing of the application by the Department of Justice (DOJ) upon
determining that probable cause exists on the basis of the verified application
which is sufficient in form and substance, that the issuance of the order of
proscription is necessary to prevent the commission of terrorism. The latter,
on the other hand, is only issued by the court upon conducting continuous
hearings within 6 months from the time the application for proscription has
been filed.
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The provision on preliminary proscription order under Section 27,

however, gains greater significance when read with penal provision in
Section 10 pertaining to recruitment to and membership in a terrorist
organization. It is worthy to note that Section 10 already penalizes
membership in a terrorist organization, association or group of persons
proscribed under Section 26. Section 10 does not distinguish whether the
same refers to those issued with a preliminary order of proscription or
a permanent order of proscription. Thus, once an organization,
association or group of persons is declared to be a terrorist organization by
virtue of a preliminary order of proscription under Section 27, membership
in the said outlawed organization, association or group of persons ipso facto
becomes illegal under Section 10 which penalizes mere membership in a
terrorist organization. This, in effect, makes the ATA a bill of attainder
which is prohibited under the 1987 Constitution.
Section 22, Art. III of the 1987 Constitution expressly prohibits the
passage of an ex post facto law or a bill of attainder. In People of the Philippines
v. Ferrer,96 the Supreme Court defined the nature of a bill of attainder as
follows:
“xxx A bill of attainder is a legislative act which inflicts punishment without

trial. Its essence is the substitution of a legislative for a judicial
determination of guilt. The constitutional ban against bills of attainder
serves to implement the principle of separation of powers by confining
legislatures to rule-making and thereby forestalling legislative usurpation of
the judicial function. xxx”
In the case at bar, the ATA constitutes a bill of attainder because it has
expressly created a presumption of organizational guilt over members of
these organizations, associations or group of persons proscribed under
Section 26, which the latter can never hope to overthrow. Considerably, once
an organization, association or group of persons is proscribed as a terrorist
organization under Section 26, the members thereof consequently and
automatically become guilty of the offense under Section 10 (membership in
a terrorist organization) even if they became members of such organization
prior to it being outlawed as such by the court.
Moreover, the members of these proscribed organizations are already

deemed as “terrorists” even though that fact still has to be judicially
established. A cursory reading of the first paragraph of Section 10 which
penalizes membership in a terrorist organization shows that it does not
require the government to prove at the trial that the accused voluntarily and
knowingly joined the said organization knowing that such organization was
proscribed under Section 26 or was organized for the purpose of engaging in
terrorism. It should be noted that the first paragraph in Section 10 on the
membership of a terrorist organization prescribes a penalty of life
imprisonment without the benefit of parole and the benefits of Republic Act
No. 10592.
96 G.R. No. L-32613-14, December 27, 1972.

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This, however, should be differentiated from the last paragraph of

Section 10 which penalizes a separate offense when one voluntarily and
knowingly joins any organization knowing that such organization is
proscribed under Section 26, or designated by the UN Security Council as a
terrorist organization, or organized for the purpose of engaging in terrorism.
Ironically, the last paragraph of Section 10 prescribes a lesser penalty of
imprisonment of twelve (12) years compared to the first paragraph in Section
10.
Similarly, the ATAt is unconstitutional because of its ex post facto

features. The Supreme Court in In re: Kay Villegas Kami. Inc.97 defined an ex
post facto law, viz:
“An ex post facto law is one which:

(1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when
committed;
(3) changes the punishment and inflicts a greater punishment than
the law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction upon
less or different testimony than the law required at the time of the
commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect
imposes penalty or deprivation of a right for something which when
done was lawful; and
(6) deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.”
Once a court issues a preliminary order of proscription declaring a

particular organization or association as a terrorist organization, the
members of such organization, ispo facto, are deemed as terrorists and are,
therefore, liable under Section 10 for membership in a terrorist organization.
Essentially, the Anti-Terrorism Act makes criminal an act done (i.e.
membership in an organization) which was innocent when done, and
punishes such an act (under Section 10) once the court declares the said
organization as a terrorist organization by virtue of a preliminary order of
proscription under Section 26.
II. THE ANTI-TERRORISM ACT VIOLATES THE FREEDOM OF

SPEECH AND OF EXPRESSION, THE RIGHTTO PEACEABLY
ASSEMBLE AND PETITION THE GOVERNMENT FOR REDRESS OF
GRIEVANCES, NON-DETENTION BY REASON OF ONE’S POLITICAL
BELIEFS OR ASPIRATIONS.
Section 4, Article III of the 1987 Constitution enshrines the

fundamental freedom of speech and of expression:
97 G.R. No. L-32485, October 22, 1970.

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SEC. 4. No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
Considered to be one of the primordial rights protected under the

Constitution and a vital component of the democratic framework, the
freedom of speech and of expression occupy a preferred status in our
fundamental law. This preferred status accorded to the rights of speech and
of expression is supported by this Court’s pronouncement in Philippine
Blooming Mills Employment Organization et al. v. Philippine Blooming Mills
Inc.,98 which held that:
In the hierarchy of civil liberties, the rights of free expression
and of assembly occupy a preferred position as they are essential to
the preservation and vitality of our civil and political institutions; and
such priority “gives these liberties the sanctity and the sanction not
permitting dubious intrusions.
The superiority of these freedoms over property rights is

underscored by the fact that a mere reasonable or rational relation between
the means employed by the law and its object or purpose – that the law is
neither arbitrary not discriminatory nor oppressive – would suffice to
validate a law which restricts or impairs property rights. On the other
hand, a constitutional or valid infringement of human rights requires
a more stringent criterion, namely existence of a grave and
immediate danger of a substantive evil which the State has the right
to prevent. So it has been stressed in the main opinion of Mr. Justice
Fernando in Gonzales v. Comelec, supra, like Justice Douglas, Black and
Goldberg in N.Y. Times Co. v. Sullivan, believe that the freedoms of
speech and of the press as well as of peaceful assembly and of petition
for redress of grievances are absolute when directed against public
officials or “when exercised in relation to our right to choose the men
and women by whom we shall be governed,” even as Mr. Justice Castro
relies on the balancing-of-interests test. Chief Justice Vinson is partial to
the improbable danger rule formulated by Chief Judge Learned Hand, viz
– whether the gravity of the evil, discounted by its improbability, justifies
such invasion of free expression as is necessary to avoid the danger.”99
Harkening back to the prior discussion on “facial” challenge, a penal

statute may be invalidated “on its face” if it produces a “chilling effect” on
protected speech.100 A central tenet to freedom of expression and closely
related to the overbreadth doctrine, the concept of a “chilling effect”
presupposes that a certain governmental act which appears to target
expression constitutes ‘prior restraint’ or deters free speech and its other
cognate rights protected under the Constitution.
Justice Brennan, in his dissenting opinion in the U.S. case of Walker v.

City of Birmingham,101 elucidated the Court’s use of the concept of “chilling
effect” vis-à-vis the First Amendment rights:
98 G.R. No. L-31195, June 5, 1973.
99 Ibid.
100 Jose Jesus M. Disini, et al. v. Secretary of Justice, G.R. No. 203335, February 11, 2014.
101 388 U.S. 307 (1967).
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“xxx Special considerations have time and again been deemed by

us to attend protection of these freedoms in the face of state interests the
vindication of which results in prior restraints upon their exercise, or their
regulation in a vague or overbroad manner, or in a way which gives
unbridled discretion to limit their exercise to an individual or group of
individuals. To give these freedoms the necessary “breathing space to
survive”, the Court has modified traditional rules of standing and
prematurity. We have molded both substantive rights and procedural
remedies in the face of varied conflicting interests to conform to our
overriding duty to insulate all individuals from the “chilling effect”
upon the exercise of First Amendment freedoms generated by
vagueness, overbreadth and unbridled discretion to limit their
exercise.”102
Applying the same in our jurisdiction, this Court, in Chavez v.

Gonzales,103 used the “chilling effect” doctrine in ruling that the warning
issued by the National Telecommunications Commission (NTC) on the
airing or broadcasting of the Garci tapes by radio and television stations
constitutes a ‘prior restraint’; thereby producing a “chilling effect” on a
protected expression:
“We rule that not every violation of a law will justify

straitjacketing the exercise of freedom of speech and of the press. Our
laws are of different kinds and doubtless, some of them provide norms of
conduct which even if violated have only an adverse effect on a person’s
private comfort but does not endanger national security. There are laws of
great significance but their violation, by itself without more, cannot
support suppression of free speech and free press. In fine, violation of law
is just a factor, a vital one to be sure, which should be weighed in
adjudging whether to restrain freedom of speech and of the press. The
totality of the injurious effects of the violation to private and public
interest must be calibrated in light of the preferred status accorded by the
Constitution and by related international covenants protecting freedom of
speech and of the press. In calling for a careful and calibrated measurement
of the circumference of all these factors to determine compliance with the
clear and present danger test, the Court shall not be misinterpreted as
devaluing violations of law. By all means, violations of law should be
vigorously prosecuted by the State for they breed their own evil
consequence. But to repeat, the need to prevent their violation cannot
per se trump the exercise of free speech and free press, a preferred
right whose breach can lead to greater evils. For this failure of the
respondents alone to offer proof to satisfy the clear and present danger
test, the Court has no option but to uphold the exercise of free speech and
free press. There is no showing that the feared violation of the anti-
wiretapping law clearly endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We

slide to the issue of whether the mere press statements of the Secretary
of Justice and of the NTC in question constitute a form of content-based
prior restraint that has transgressed the Constitution. In resolving this
issue, we hold that it is not decisive that the press statements made
by respondents were not reduced in or followed up with formal orders
102 Walker v. City of Birmingham, 388 U.S. 307, 344-45 (1967), see dissenting opinion of J. Brennan.
103 G.R. No. 168338, February 15, 2008.
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or circulars. It is sufficient that the press statements were made by

respondents while in the exercise of their official
functions. Undoubtedly, respondent Gonzales made his statements as
Secretary of Justice, while the NTC issued its statement as the regulatory
body of media. Any act done, such as a speech uttered, for and on
behalf of the government in an official capacity is covered by the rule
on prior restraint. The concept of an "act" does not limit itself to
acts already converted to a formal order or official circular.
Otherwise, the non-formalization of an act into an official order or
circular will result in the easy circumvention of the prohibition on
prior restraint. The press statements at bar are acts that should be struck
down as they constitute impermissible forms of prior restraints on the
right to free speech and press.
There is enough evidence of chilling effect of the complained acts

on record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio
and broadcast media. They also came from the Secretary of Justice, the
alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the
warnings, the KBP inexplicably joined the NTC in issuing an ambivalent
Joint Press Statement. After the warnings, petitioner Chavez was left alone
to fight this battle for freedom of speech and of the press. This silence on
the sidelines on the part of some media practitioners is too deafening to be
the subject of misinterpretation.”104
Petitioners submit that the following provisions in the ATA produce

a palpable “chilling effect” on freedom of expression and its cognate rights
and should be struck down as unconstitutional: (a) Section 9 in relation to
Section 4 (Inciting to Commit Terrorism); (b) Section 5, 6, 7, and 8 in
relation to Section 4 (Threat to Commit Terrorism, Planning, Training,
Preparing and Facilitating the Commission of Terrorism, Conspiracy
to Commit Terrorism, and Proposal to Commit Terrorism); (c) Section
10 in relation to Section 4 (Recruitment to and Membership in Terrorist
Organizations); and (d) Section 12 in relation to Section 4 (Providing
Material Support to Terrorists).
It is significant to consider that the penalties attached to the said

provisions in the law provide for grave penalties ranging from twelve (12)
years of imprisonment to life imprisonment without benefit of parole and
Good Conduct and Time Allowance (GCTA) under Republic Act. No. 10592;
thereby, magnifying the “chilling effect” of these provisions which stifle
protected expression.
A. The provision on inciting to commit

terrorism under Section 9 in
relation to Section 4 of Republic Act
No. 11479 constitutes a prior
restraint on freedom of speech and
expression.
104 Ibid.
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Petitioners submit that Section 9 in relation to Section 4 of Republic

Act No. 11479 is unconstitutional because it clearly allows prior restraint on
freedom of speech and of expression. This section provides:
SEC. 9. Inciting to Commit Terrorism. – Any person who, without

taking any direct part in the commission of terrorism, shall incite others to
the execution of any of the acts specified in Section 4 hereof by means of
speeches, proclamations, writings, emblems, banners or other
representations tending to the same end, shall suffer the penalty of
imprisonment of twelve (12) years.
Prior restraint has been defined as official government restrictions on

any form of expression in advance of actual dissemination.105 However, the
mere prohibition of government interference before words are spoken is not
an adequate protection of the freedom of expression if the government could
arbitrarily punish after the words have been spoken. The threat of subsequent
punishment itself would operate as a very effective prior restraint.106
In his dissenting opinion in Soriano v. Laguardia,107 Justice Carpio

opined that “any form of prior restraint bears a presumption against its
constitutional validity”. Moreover, a governmental action that restricts
freedom of speech based on content is given the strictest scrutiny in light
of its inherent and invasive impact. Thus, it is only when the challenged act
has overcome the clear and present danger rule will it pass constitutional
muster, with the government having the burden of overcoming the presumed
constitutionality.108
In Gonzalez v. Chairman Katigbak,109 Chief Justice Fernando expounded

on the concept of the “clear and present danger” test as limit to freedom of
expression, to wit:
“The test, to repeat, to determine whether the freedom of expression

may be limited is the clear and present danger of an evil of a substantive
character that the State has the right to prevent. Such danger must not
only be clear but must also be present. There should be no doubt that what
is feared may be traced to the expression complained of. The causal
connection must be evidence. Also, there must be reasonable apprehension
about its imminence. The time element cannot be ignored. Nor does it
suffice if such danger be only probable. There is a requirement of its being
well-nigh inevitable.”110 (Emphasis and underscoring supplied)
Thus, in Chavez v. Gonzalez, the Supreme Court, applying the “clear

and present danger” test, struck down as unconstitutional the NTC’s
warning to television and radio stations on the airing or broadcast of the
“Garci” tapes under pain of revocation of their licenses.111
105 Chavez v. Gonzales, G.R. No. G.R. No. 168338, February 15, 2008.
106 Soriano v. Laguardia, G.R. No. 164785, March 15, 2010, see dissenting opinion of J. Carpio.
107 Ibid.
109 G.R. No. L-69500, July 22, 1985.
110 Ibid.
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In this case, Section 9 of the ATA provides an arbitrary standard by

which law enforcement officials can penalize any person for merely
expressing his/her dissatisfaction on governmental acts “by means of
speeches, proclamations, writings, emblems, banners or other
representations”. Owing to its overbroad definition of “terrorism” under
Section 4 of the law, this provision is nothing but an attempt to silence
political dissent based on a weak justification that the speech or expression
itself already constitutes as an act of terrorism.
What makes Section 9 even more pernicious is that, as it is worded,

this provision makes it possible for the government to penalize any speech
or expression which tend to “incite” others to commit any of the acts
mentioned in Section 4 of the law even though the speech or expression is
not intended to achieve any of the purposes cited in Section 4, most especially
that the crime of inciting to commit terrorism does not require the offender to
directly participate in the commission of terrorism. Thus, a mere post on
Facebook or on Twitter stating the words “#AbolishGovernment” or
“#OustDuterte” can already be construed as inciting to commit terrorism as
it may be interpreted by law enforcement officials as inciting others to
“engage in acts intended to cause extensive damage or destruction to government” or
to “engage in acts intended to cause extensive interference with, damage or
destruction to critical infrastructure”.
At its core, Section 9 aims to criminalize a specie of speech known as

“political speech”. As Justice Leonen mentioned in the case of Diocese of
Bacolod, et al. v. Comelec,112 political speech is defined as “both intended and
received as a contribution to public deliberation about some issue,
foster[ing] informed and civicminded deliberation”.113
Indeed, in Citizens United v. Federal Elections Commission,114 the U.S.

Supreme Court held, in effect, that political speech, being the most protected
form of speech under the First Amendment, warrants the highest level of
scrutiny against the laws that regulate it:115
“xxx Because speech is an essential mechanism for democracy – it is

the means to hold officials accountable to the people – political speech
must prevail against laws that would suppress it by design or
inadvertence. Laws burdening such speech are subject to strict
scrutiny, which requires the Government to prove that the restriction
“furthers a compelling interest and is narrowly tailored to achieve that
interest. xxx Premised on mistrust of governmental power, the First
Amendment stands against attempts to disfavor certain subjects or
viewpoints or to distinguish among different speakers, which may be a
means to control content. The Government may also commit a
112 G.R. No. 205728, January 21, 2015.

113 Ibid.
114 558 U.S. 310 (2010).
115 National Communication Association (1 October 2015), Political Speech Protection and the
Supreme Court of the United States, Retrieved from https://www.natcom.org/communication-

currents/political-speech-protection-and-supreme-court-united-states, date accessed 17 July
2020.
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constitutional wrong when by law it identifies certain preferred speakers.

There is no basis for the proposition that, in the political speech context,
the Government may impose restrictions on certain disfavored speakers.
Both history and logic lead to this conclusion.”116 (Emphasis and
underscoring supplied)
Thus, in Diocese of Bacolod, et al. v. Comelec, this Court ruled that the
Comelec’s notice and letter effectively abridged petitioners’ meaningful
political speech:
“xxx The message of petitioner, taken as a whole, is an advocacy of

a social issue that it deeply believes. Through rhetorical devices, it
communicates the desire of Diocese that the positions of those who run for
a political position on this social issue be determinative of how the public
will vote. It primarily advocates a stand on a social issue; only secondary –
even almost incidentally – will cause the election or non-election of a
candidate.”
Applying the “clear and present danger” test to Section 9, petitioners

submit that Government failed to show any compelling and substantial state
interest that the State has the right to prevent by criminalizing political
dissent. To emphasize it more, there is no shortage of instances, both in the
past and present, when the current Duterte administration has engaged in a
spree of “red-tagging”117 against activists and individuals who are critical of
the government.
On July 5, 2020, National Security Adviser and member of the Anti-

Terror Council, Sec. Hermogenes Esperon Jr. suggested that critics of the
ATA could be “supporters” of terrorists.118 Meanwhile, President Duterte,
himself, publicly stated that communists are “terrorists” because he “declared
them to be so”.119
Worse, our existing police force has exhibited, time and time again, a
penchant to indiscriminately label activists as “terrorists”. Last June 2020,
the Police Regional Office at Butuan City, on its official Facebook page,
posted images accusing activist organizations as “communists” and
“terrorists” despite promises that the anti-terrorism bill would not target
116 538 U.S. 310 (2010).

117 In his dissenting opinion in Zarate v. Aquino (G.R. No. 220028, November 10, 2015), Justice
Leonen defined “red-tagging” as the “act of labelling, branding, naming and accusing individuals
and/or organizations of being left-leaning, subversives, communists or terrorists (and is used as)
a strategy…by State agents, particularly law enforcement agencies and the military, against those
perceived to be ‘threats’ or ‘enemies of the State’.”
118 Colcol, Erwin (5 July 2020). Esperon: Anti-terrorism law critics could be supporters of terrorists,
GMA News Online. Retrieved from

https://www.gmanetwork.com/news/news/nation/745538/esperon-anti-terrorism-law-
critics-could-be-supporters-of-
terrorists/story/?utm_source=GMANews&utm_medium=Facebook&fbclid=IwAR35hk41i1Rq
n_t7pmdXBgZmQAVQ6NhZtEjmJsde4pOeClHhCOKPb7s42yo, date accessed 17 July 2020.
119 Toledo, Efigenio IV (8 July 2020). Duterte tells communists ‘you are terrorists because I declared you
to be one’, PhilStar News. Retrieved from

https://www.philstar.com/headlines/2020/07/08/2026470/watch-duterte-tells-communists-
you-are-terrorists-because-i-declared-you-be-one, date accessed 17 July 2020.
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critics and activists.120 Shortly after the anti-terrorism bill was passed into
law, the police were at it again when the Malaybalay City Police Station in
Bukidnon put out an infographic on July 16, 2020 which depicts those
advocating for press freedom as “rebels” and “terrorists”.121 If at all, these
recent ‘red-tagging’ activities by the police force operate as an imminent
threat on the exercise of freedom of speech and of expression in light of the
fact that these are the very same officials who are tasked to enforce the ATA.
The “chilling effect” of Section 9 is not simply because the provision is

found in a penal statute but because there is a clear showing that there are
special circumstances which show the imminence that the provision will be
invoked by the law enforcers. It cannot be gainsaid that the above
pronouncements made by President Duterte and his National Security
Adviser, as well as the several ‘red-tagging’ activities made by law
enforcement officers against activists and critics, are already telltale signs of
what is to come when the ATA is weaponized to suppress dissent and
freedom of expression. Undeniably, the right to free speech is centered on
the value of political thought and that the right to free speech must be
protected since every person plays a role in the democratic polity.122As it is
best explained in Justice Holmes’s dissenting opinion in U.S. v. Schwimmer:123
“xxx but if there is any principle of the Constitution that more imperatively
calls for attachment than any other, it is the principle of free thought – not
free thought for those who agree with us, but freedom for the thought that
we hate”.
The foregoing considered, there is no question that Section 9 is, thus,

unconstitutional.
B. The provisions on threat to commit

terrorism, conspiracy or proposal to
commit terrorism, providing
material support to terrorists, and
planning, training, preparing and
facilitating to commit terrorism
under Sections 5, 6, 7, 8 and 12 in
No. 11479 violate free speech and
120 Luna, Franco (8 June 2020). PNP ‘art’ tags activists as terrorists amid debate on anti-terrorism bill,
PhilStar News. Retrieved from
https://www.philstar.com/headlines/2020/06/08/2019480/pnp-art-tags-activists-terrorists-
amid-debate-anti-terrorism-bill, date accessed 18 July 2020.
121 Jerusalem, Jigger J. (17 July 2020). Bukidnon town police logic: If you fight for press freedom, you’re
communist or terrorist. Inquirer.Net. Retrieved from

https://newsinfo.inquirer.net/1308343/bukidnon-town-police-logic-if-you-fight-for-press-
freedom-youre-communist-or-terrorist, date accessed 18 July 2020.
122 Bagares, R. Manoloto, R., & Salo, R. (2004). Beyond Liberty versus Equality: Reconfiguring the
Libertarian Egalitarian Debate on Free Speech in the Philippine Setting. Philippine Law Journal, 90-
159, at 12-13.
123 279 U.S. 644 (1929).
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the right to petition the government

for redress of grievances.
Also unconstitutional are Sections 5, 6, 7, 8 and 12 when read in

relation to Section 4, which provide:
SEC. 5. Threat to Commit Terrorism. – Any person who shall threaten

to commit any of the acts mentioned in Section 4 hereof shall suffer the
penalty of imprisonment of twelve (12) years.
SEC. 6. Planning, Training, Preparing and Facilitating the Commission

of Terrorism. – It shall be unlawful for any person to participate in the
planning, training, preparation and facilitation in the commission of
terrorism, possessing objects connected with the preparation for the
commission of terrorism, or collecting or making documents connected
with the preparation of terrorism. Any person found guilty of the provisions
of this Act shall suffer the penalty of life imprisonment without the benefit
of parole and the benefits of Republic Act No. 10592.
SEC. 7. Conspiracy to Commit Terrorism – Any conspiracy to commit

terrorism as defined and penalized under Section 4 of this Act shall suffer
the penalty of life imprisonment without the benefit of parole and the
benefits of Republic Act No. 10592.
There is conspiracy when two (2) or more persons come to an

agreement concerning the commission of terrorism as defined in Section 4
hereof and decide to commit the same.
SEC. 8. Proposal to Commit Terrorism. – Any person who proposes to

commit terrorism as defined in Section 4 hereof and decide to commit the
same.
xxx
SEC. 12. Providing Material Support to Terrorists. – Any person who
provides material support to any terrorist individual or terrorist
organization, association or group of persons committing any of the acts
punishable under Section 4 hereof, knowing that such individual or
organization, association, or group of persons is committing or planning to
commit such acts, shall be liable as principal to any and all terrorist
activities committed by said individuals or organizations, in addition to
other criminal liabilities he/she or they may have incurred in relation
thereto.
The lack of judicially determinable parameters under these provisions

already endanger the rights to free speech and to petition the government
for redress of grievances. Considering that the above provisions are all
anchored on Section 4 which defines the crime of “terrorism” that is, in itself,
suffers ambiguity and overbreadth, the said provisions are also facially
invalid.
For one, there is nothing in the ATA which defines what constitutes
as a “threat” to commit terrorism under Section 5. This provision is
susceptible to various interpretations by law enforcement as it could cover
both verbal or physical threats. Without any ascertainable standard, even the
most benign acts could be punished under the law. On the other hand, the
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preparatory acts of planning, preparing and facilitating the commission of

terrorism under Section 6 are also not narrowly defined under the law. The
definition of “training” under Section 3(k) is couched in a very vague and
general manner as to cover the “giving of instruction or teaching designed
to impart a skill in relation to terrorism”. Worse, Section 6 seeks to penalize
the mere possession of “objects connected with the preparation for the
commission of terrorism”. Unfortunately, the law is apparently silent as to
what or who determines when an “object” is connected with the preparation
for the commission of terrorism. The crimes of proposal to commit terrorism
(Sec. 8 in relation to Sec. 3(g)) and conspiracy to commit terrorism (Sec. 7)
are also not fully and specifically defined as both offenses are anchored on
the vague definition of terrorism under Section 4. In the same manner that
“material support” under Section 12 in relation to Section 3(e) covers a wide
array of acts and services that can be broadly interpreted by law enforcers as
to cover even non-criminal acts; thus, rendering the said provision
susceptible to abuse.
These provisions likewise seek to curtail the citizens from exercising

their constitutional right to petition the government for redress of
grievances. In U.S. v. Bustos,124 the Supreme Court spoke of the importance of
criticism in the conduct of public affairs:
“The interest of society and the maintenance of good government

demand a full discussion of public affairs. Complete liberty to comment
on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the wound
can be assuaged with the balm of a clear conscience. A public officer must
not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and the dignity of the individual be exalted.
xxx
xxx
The right to assemble and petition is the necessary consequence of
republican institutions and the complement of the part of free speech. xxx
Petition means that any person or group of persons can apply, without
fear of penalty, to the appropriate branch or office of the government
for redress of grievances. xxx”125 (Emphasis supplied)
As a cognate right to free speech, the right of people to express their

grievances and dissent “means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be something worth hearing from
the dissenter”.126
Here, the above provisions in the ATA only serve to deter the free
exercise of the people’s right to free speech and to petition government for
redress of grievances. The sweeping scope of these provisions produces a
“chilling effect” on constitutional freedoms. Equally so, these provisions
should also be struck down as unconstitutional.
124 G.R. No. L-12592, March 8, 1918.
125 Ibid.
126 Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983.
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C. The provision on recruitment to and

membership in terrorist
organizations under Section 10 in
No. 11479 violates freedom of
association, freedom of expression
and the constitutional guarantee
against non-detention by reason of
political beliefs or aspirations.
Petitioners also submit that Section 10 in relation to Section 4 is

unconstitutional as it infringes the freedom of association,127 another cognate
right of freedom of expression, as well as the constitutional guarantee on
non-detention by reason of political beliefs or aspirations128.
Section 10 provides as follows:
SEC. 10. Recruitment to and Membership in a Terrorist Organization. –

Any person who shall recruit another to participate in, join, commit or
support terrorism or a terrorist individual or any terrorist organization,
association or group of persons proscribed under Section 26 of this Act, or
designated by the United Nations Security Council as a terrorist
organization, or organized for purpose of engaging in terrorism, shall suffer
the penalty of life imprisonment without the benefit of parole and the
benefits of Republic Act No. 10592.
The same penalty shall be imposed on any person who organizes or

facilitates the travel of individuals to a state other than their state of
residence or nationality for the purpose of recruitment which may be
committed through any of the following means:
(a) Recruiting another person to serve in any capacity in or with an

armed force in a foreign state, whether the armed force forms part of the
armed forces of the government of that foreign state or otherwise;
(b) Publishing an advertisement or propaganda for the purpose of

recruiting persons to serve in any capacity in or with such an armed force;
(c) Publishing an advertisement or propaganda containing any

information relating to the place at which or the manner in which persons
may make applications to serve or obtain information relating to service in
any capacity in or with such armed force or relating to the manner in which
persons may travel to a foreign state for the purpose of serving in any
capacity in or with such armed force; or
(d) Performing any other act with the intention of facilitating or

promoting the recruitment of persons to serve in any capacity in or with
such armed force.
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

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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.
Under this Section 10, recruitment to and membership in any the

following organizations, association or group of persons is penalized:
1. Any terrorist organization, association or group of persons

proscribed under Section 26; or
2. Those that are designated by the United Nations Security
Council as a terrorist organization; or
3. Those that are organized for the purpose of engaging in
terrorism.
Corollary thereto, Section 3(m) vaguely defines a “terrorist

organization, association or group of persons” as referring to: (a) an entity
organized for the purpose of engaging in terrorism; (b) those proscribed
under Section 26; or (c) those designated as terrorist organizations by the
United Nations Security Council.
Petitioners argue that Section 10 in relation to Section 3(m) provides

a VERY VAGUE DEFINITION of a “terrorist organization, association
or group of persons xxx organized for the purpose of engaging in
terrorism”. There is nothing in the law which states the parameters as to
when is an organization, association or group of persons considered to be
“organized for the purpose of engaging in terrorism”. Neither is there any
clear indication in the law whether the third classification mentioned above
pertains to organization, association or group of persons designated under
paragraph 3 of Section 25. At the same time, Section 3(b) which defines a
“designated person” only pertains to the following organizations or
associations: (a) those identified by the United Nations Security Council or
another jurisdiction or supranational jurisdiction as a terrorist organization;
(b) those that are designated under paragraph 3 of Section 25; and (c) those
that are considered as designated persons under Section 3(e) of Republic Act
No. 10168 (Terrorism Financing Prevention and Suppression Act of 2012).
Evidently, this lack of a clear definition of what can be considered

as an organization or association “organized for the purpose of engaging in
terrorism” by which recruitment to or membership thereof can be penalized
under Section 10 produces a very dangerous and “chilling” effect on the
freedom of association and threatens to undermine the constitutional
guarantee against detention by reason of one’s political beliefs or aspirations.
In effect, Section 10 gives an unbridled discretion to the law enforcement
officials to profile any political organization as one that is “organized for the
purpose of engaging in terrorism”.
It is also worthy to note that the same provision penalizes the mere
act of “supporting” terrorism or a terrorist organization without being a
member of the same and without clearly delineating what “supporting
terrorism or a terrorist individual or any terrorist organization” means.
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Surely, by penalizing the same in a separate provision under Section 10, the
lawmakers intended that the offense in Section 10 be treated differently from
the offense penalized in Section 12 on providing material support to
terrorists.
Thus, the ambiguity in Section 10 is a clear abridgment of the

constitutional right to freedom of speech, freedom of assembly, the right to
form associations and societies for purposes not contrary to law, and the
constitutional guarantee on non-detention by reason of his political beliefs
or aspirations. Evidently, this provision ensnares legitimate organizations or
associations that may be labelled by the government as “terrorist
organizations”. When read together with the third paragraph of Section 25,
this provision gives an absolute discretion on the ATC and the law
enforcement officials to designate any organization or association they deem
to be as suspected terrorists. In the absence of any clear definition of a “those
that are organized for the purpose of engaging in terrorism”, Section 10
cannot stand scrutiny.
In sum, Sections 4, 5, 6, 7, 8, 9, 10 and 12 result in a “chilling effect”

on the freedom of speech and its cognate rights. As such, these provisions
should be stricken down by the Court for being unconstitutional.
III. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES.
In our jurisdiction, in order to deprive a person of his/her liberty,

there must be due process of law.129 The arrest of a person falls under the
term “seizure”130 and any arrest made by agents of the state must satisfy the
test of reasonableness131 in order to uphold the constitutional right of the
people to be secure in their persons against unreasonable seizures. Thus, the
general rule is that the arrest of persons must be pursuant to a warrant of
arrest. As an exception, warrantless arrest is allowed but only in very
circumscribed cases.
Section 29 of the ATA departs significantly from the established

procedure to lawfully arrest and detain persons. By deviating from the
traditional law enforcement process in our criminal law system, the ATA
violates several fundamental and cherished rights enshrined in the 1987
Constitution.
A. The provision on arrest based on

suspicion under Section 29 of
Republic Act No. 11479 violates the

130 Pestilos et. al v. Generoso, G.R. No. 182601, November 10, 2014.
131 Id. citing Finkelman, ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES, 2006 Ed., p.
82.
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right against unreasonable searches

and seizures.
The right of a person to be secure against any unreasonable seizure of

his body and any deprivation of his liberty is a most basic and fundamental
one.132 The right against unreasonable searches and seizure has been
characterized as belonging "in the catalog of indispensable freedoms."133
According to Justice Jackson in the U.S. Supreme Court case Brinegar v.
United States:
“Among deprivation of rights, none is so effective in cowing a

population, crushing the spirit of the individual and putting terror in every
heart. Uncontrolled search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government. And one need only
briefly to have dwelt and worked among a people know possessed of many
admirable qualities but deprived of these rights to know that the human
personality deteriorates and dignity and self-reliance disappear where
homes, persons and possessions are subject at any hour to unheralded
search and seizure by the police.”134
Despite the clear categorization by the Supreme Court of the

constitutional value of the right against unreasonable seizure and the right
to liberty, the enactment of the ATA, and in particular, Section 29 thereof,
constitutes a most malevolent violation of these rights.
The Supreme Court requires a strict construction of any law which

provides for warrantless arrests. A strict construction of Section 29 shows
that it does not comply with the requirements for valid warrantless arrests.
In People v. Burgos,135 this Court explained that “[t]he statute or rule

which allows exceptions to the requirement of warrants of arrests is strictly
construed. Any exception must clearly fall within the situations when
securing a warrant would be absurd or is manifestly unnecessary as provided
by the Rule. We cannot liberally construe the rule on arrests without
warrant or extend its application beyond the cases specifically provided by
law. To do so would infringe upon personal liberty and set back a basic right
so often violated and so deserving of full protection.”
Petitioners submit that Section 29 fails the strict construction required

in People v. Burgos. There is no showing why securing a warrant would be
absurd or manifestly unnecessary. Section 16 (Surveillance of Suspects and
Interception and Recording of Communications) of the ATA allows
monitoring of suspects only after a Court of Appeals authorization is
obtained. If, after obtaining evidence on the basis of the Court of Appeals
authorization, the law enforcer who has built up a case can easily seek a
judicial warrant to arrest the suspect. In fact, the law requires the Court of
Appeals to determine probable cause in issuing a judicial authorization for
132 People v. Burgos, G.R. No. L-68955 September 4, 1986

133 Lacson v. Perez, G.R. No. 147780, May 10, 2001, see dissenting opinion of J. Kapunan.
134 Brinegar v. United States, 338 U.S. 160 (1949).
135 Id.
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the surveillance of a suspect and interception of communications.136 There is

no reason then why it would be impossible or absurd to obtain a judicial
warrant to arrest the same suspect.
Moreover, unlike the HSA which qualified137that only those suspected

of the crime of terrorism or conspiracy to commit terrorism resulting from
the surveillance and examination of bank deposits could be arrested without
a judicial warrant, Section 29 of the ATA has dispensed with the courts and
have relegated judges as mere recipients of a notice from the arresting
officers that they have already effected a warrantless arrest. The deletion of
the safeguard found in the HSA signifies that the ATA has the free rein in
adjudging persons as suspected terrorists without need of facing judicial
scrutiny.
Worst, mere suspicion of having committed or attempting to commit

any of the offenses in the ATA already suffices as a ground for arrest.
However, getting arrested on mere suspicion is offensive to Section 2, Article
III of the 1987 Constitution which requires determination of probable
cause by a judge before a person may be deprived of liberty and anything
short of probable cause already constitutes as an unreasonable seizure.
While law enforcers ought to be able to prevent the commission of

offenses, case law has not developed any exception that persons can be
arrested without a warrant only upon mere suspicion of criminal activity.
Warrantless arrests authorized under Rule 113, Section 5 of the Rules of
Court do not dispense with the requirement that there must be probable
cause. It must be borne in mind that the standard of probable cause, as
provided in case law, requires the existence of facts which are “sufficient to
engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof”.138
When there is deprivation of liberty by virtue of warrantless arrests,

it is required that either a crime is committed in the presence of the law
enforcer (in flagrante) or the law enforcer has “probable cause” to believe that
a person has committed or is committing the crime (hot pursuit). For in
flagrante cases, there must be an overt act done in the presence of the law
enforcer.139 In hot pursuit, the arresting officer did not witness the
commission of the crime but has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has
committed it.
It is worthy to emphasize that the standard of probable cause

incorporated in Section 5(b) of Rule 113 of the Rules of Criminal Procedure
was revised in 2000 to “objectify” the previously subjective determination of
the arresting officer in order to minimize arrests based on mere suspicion or
hearsay. The incorporation of the standard of probable cause is the very
136 Sec. 16, R.A. No. 11479.
137 Sec. 19, R.A. No. 9372.
138 Eliseo Aguilar v. Department of Justice, G.R. No. 197522, September 11, 2013.
139 Veridiano v. People, G.R. No. 200370, June 07, 2017.
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reason that a hot pursuit is considered as valid and compliance with the
constitutional mandate against unreasonable arrests:
“In light of the discussion above on the developments of Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure and our jurisprudence on
the matter, we hold that the following must be present for a valid
warrantless arrest: 1) the crime should have been just committed; and 2) the
arresting officer’s exercise of discretion is limited by the standard of
probable cause to be determined from the facts and circumstances within
his personal knowledge. The requirement of the existence of probable
cause objectifies the reasonableness of the warrantless arrest for
purposes of compliance with the Constitutional mandate against
unreasonable arrests.”140 (Emphasis and underscoring supplied)
However, the ATA has regressed into a subjective determination of

the cause to arrest persons suspected of terrorism. As Section 29 is written,
a law enforcer can immediately arrest and detain a suspected person even
though no ground exists other than suspicion. There is no requirement
under Section 29 for the law enforcer to have (1) a reasonable ground to
believe that the person to be arrested has committed a crime, and (2) a crime
has in fact or actually have been committed. The only requirement is that a
person is “suspected”. Thus, there is a clear disregard for the safeguard
instituted with respect to warrantless arrests.
Even worse, Section 29 allows arresting officers to gather damning

evidence after the arrest of the suspected terrorist and gives them fourteen
(14) days extendible up to ten (10) days within which to complete their
investigation contrary to Section 2, Article III of the 1987 Constitution.
In Pestilos v. Generoso,141 this Court had an exhaustive discussion on

Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure and how
the Rules of Court has developed in light of the prohibition against
unreasonable seizures in Section 2, Article III of the 1987 Constitution. This
Honorable Court explained that under the rule, there must be a “large
measure of immediacy between the time the offense was committed and the
time of the arrest”. The element of immediacy “acts as a safeguard to ensure
that the police officers have gathered the facts or perceived the circumstances
within a very limited time frame” and “guarantees that the police officers
would have no time to base their probable cause finding on facts or
circumstances obtained after an exhaustive investigation”. This Court held
that the reason for the element of immediacy is that “as the time gap for the
commission of the crime to the arrest widens, the pieces of information
gathered are prone to become contaminated and subjected to external
factors, interpretations and hearsay.”142
In short, law enforcement officers must already have probable cause at

the time of the arrest and the element of immediacy between the time of
commission of the crime and the time of the arrest ensures that law
140 G.R. No. 182601, November 10, 2014.

141 Ibid.
142 Id.
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enforcement officers would have no time to contaminate or fabricate

evidence.
Unfortunately, this case cannot be said with respect to the Anti-

Terrorism Act. Under Section 29, law enforcement agents and military
personnel are not bound by the standard of probable cause in effecting
warrantless arrests and are given free license to embark on a fishing
expedition for evidence in the twenty-four (24) days of protracted
investigation sanctioned under Section 29 all while the person arrested is
already languishing in detention. The time gap between the arrest and
delivery of the arrested person to judicial authorities furnishes an
opportunity for contamination or fabrication of evidence similar to what may
happen when there is a significant lapse of time between the commission of
the crime and the time of arrest in a hot pursuit situation.
In fact, the ATA provides more than ample opportunities for abuse by
the police and military. Two crucial safeguards in the HSA have been excised
out of the ATA: (1) the safeguard in Section 50 of R.A. No. 9372 that a
wrongfully accused person whose charge for terrorism was unproven would
be entitled to damages in the amount of Five Hundred Thousand Pesos
(P500,000.00) for every day of detention; and (2) the safeguard in Section 18
of R.A. No. 9372 that the person suspected of the crime of terrorism must be
presented before a judge prior to his detention.
The deletion of these safeguards is a chilling indication that the State

is avoiding accountability and relaxing judicial control on the arrest and
detention process and is increasing the risk of ill-treatment of arrested
persons in the custody of the police and military.
B. The number of days of detention

under Section 29 of Republic Act
No. 11479 exceeds the allowable
detention limits provided under the
Constitution.
In cases where the privilege of the writ of habeas corpus is suspended,

the Constitution mandates that a person under detention be judicially
charged within three (3) days from his arrest.143 In Lacson v. Perez,144 the
Supreme Court explained that:
“Not even the suspension of the privilege of the writ of habeas corpus or the
declaration of martial law authorizes the President to order the arrest of
any person. The only significant consequences of the suspension of the writ
of habeas corpus is to divest the courts of the power to issue the writ whereby
the detention of the person is put in issue. It does not by itself authorize the
President to order the arrest of a person.”
143 SEC. 18, ART. VII, 1987 CONSTITUTION.

144 G.R. No. 147780, May 10, 2001
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Under Section 29, a law enforcer may arrest a suspect based on

suspicion and without a judicial warrant. This is a draconian measure that
not even martial law or the suspension of the privilege of the writ of habeas
corpus allows. As stated in Lacson, a President is not allowed to order the
arrest of any person even during the suspension of the privilege of the writ
of habeas corpus or the declaration of martial law. Yet, an ordinary law
allows a mere law enforcer to arrest any person based on suspicion even
during normal times. If the motive behind the ATA is to allow a warrantless
arrest and detention without bail and skirt constitutional safeguards for the
citizens’ civil and political liberties, then it becomes ironic that an anti-
terrorism law would allow an effect worse than the suspension of the
privilege of the writ of habeas corpus or martial law.
Aside from arrests based on suspicion, essentially, the ATA would

allow the detention of individuals for more than the three (3) days detention
limit set for those arrested while the privilege of the writ of habeas corpus is
suspended. It becomes unjust and oppressive considering that the safeguards
in detention limits imposed on an extraordinary writ such as habeas corpus,
are absent in an ordinary law. The safeguards concerning detention with
respect to the privilege of the writ of habeas corpus comes into effect when
the privilege of the writ is suspended; under the ATA, only a notification
requirement is imposed despite its clearly more burdensome effect on civil
and political liberties.
The selection of the detention limits under Section 29 is also arbitrary,

capricious and whimsical. There is no indication why and how the fourteen
(14) days extendible to another ten (10) days was selected. The 1987
Constitution already allows at most a three (3)-day detention without judicial
review in habeas corpus cases. Section 29 of the ATA exceeds this.
The only time wherein a person is allowed to be detained without

judicial review beyond the three (3)-day period under the Constitution is
when the accused waives his rights under Article 125 of the Revised Penal
Code. However, Section 29 allows the detention of up to 24 days, even
without any waiver. This is clear from the opening phrase of Section 29
which states: “The provisions of Article 125 of the Revised Penal Code to the
contrary notwithstanding…”
The HSA had imposed a specific penalty for failure of the law
enforcement personnel to deliver the suspect to the proper judicial authority
within the prescribed period, viz:
SEC. 20. Penalty for Failure to Deliver Suspect to the Proper

Judicial Authority within Three Days. - The penalty of ten (10) years and
one day to twelve (12) years of imprisonment shall be imposed upon any
police or law enforcement personnel who has apprehended or arrested,
detained and taken custody of a person charged with or suspected of the
crime of terrorism or conspiracy to commit terrorism and fails to deliver
such charged or suspected person to the proper judicial authority within the
period of three days.
xxxx
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This safeguard, however, was removed. Under the ATA, the law
enforcer will not incur any criminal liability for delay in the delivery of
detained persons to the proper judicial authorities if he delivers the detained
person within 14 days from arrest or detention or within 24 days if the
detention has been extended. The law enforcer is only penalized if he fails in
notifying in writing the judge of the court nearest to the place of arrest or
detention. There is no specific time to notify, except that the law enforcer
“immediately” notifies the judge. There is also no requirement of physically
delivering the suspect to a judge to ascertain if the detention is warranted.
The United Nations Human Rights Committee (UNHRC) has also

viewed long detentions without judicial review as violations of Paragraph 3,
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR), which the Philippines adheres to. Paragraph 3, Article 9 of the
ICCPR provides that in criminal cases any person arrested or detained has
to be brought “promptly” before a judge or other officer authorized by law
to exercise judicial power.
Members of the UNHRC have expressed the view that detention for
more than forty-eight (48) hours without judicial review is unreasonably
long.145 The Members of the UNHRC have also viewed legislation allowing
a five-day period before judicial review did not conform with Article 9(3) of
the ICCPR.146 The European Court of Human Rights (ECHR) has also held
that a detention of four days and six hours did not fulfil the requirement of
promptness.147
While not binding, these views and judicial decisions of international

tribunals may help guide the Supreme Court as to the state of international
law on the matter of prompt judicial review over detained persons. Certainly,
if we follow international law, a 14-day detention without judicial review will
not pass the test of “promptness” under the ICCPR.
IV. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT TO PRIVACY

OF CORRESPONDENCE.
The right to privacy is enshrined in Section 3(1), Article III of the

Constitution, which provides that the right to privacy of communication and
correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise, as prescribed by law.
The right to privacy, or the “right to be left alone” has been described
as the “most comprehensive of rights and the rights most valued by civilized
men”.148 According to Justice Douglas in Public Utilities Commission v.
145 Human Rights and Pre-Trial Detention: A Handbook of International Standards relating to
Pre-trial Detention, United Nations (1994), Page 12.
146 Id.
147 Id. Page 13.
148 Olmstead v. United States, 277 U.S. 438, 478 (1928), see dissenting opinion of J. Brandeis.
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Pollak:149 “Liberty in the constitutional sense must mean more than freedom
from unlawful governmental restraint; it must include privacy as well, if it is
to be a repository of freedom. The right to be let alone is indeed the
beginning of all freedom.” The right to be let alone has led to the recognition
of a zone of privacy which is explained by Justice Douglas in Griswold v.
Connecticut150 as follows:
“Various guarantees create zones of privacy. The right of association

contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers
'in any house' in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the 'right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth
Amendment provides: 'The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people.”151
The Supreme Court also recognizes this zone of privacy and has
always upheld privacy rights of individuals. Ople v. Torres152 traces the roots
of the right to privacy as follows:
“Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights:
“Sec. 3. (1) The privacy of communication and correspondence shall

be inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
“Other facets of the right to privacy are protected in various

provisions of the Bill of Rights, viz:
“Sec. 1. No person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be denied the equal
protection of the laws.
“Sec. 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
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, and particularly describing
the place to be searched and the persons or things to be seized.
xxx xxx xxx
“Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the interest
149 343 U. S. 451, 467 (1952).
150 381 U. S. 479, 484 (1965).
151 Ibid.
152 354 Phil. 948 (1998).
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of national security, public safety, or public health as may be provided by

law.
xxx xxx xxx
“Sec. 8. The right of the people, including those employed in the

public and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
“Sec. 17. No person shall be compelled to be a witness against himself.
“Zones of privacy are likewise recognized and protected in our laws.

The Civil Code provides that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons"
and punishes as actionable torts several acts by a person of meddling and
prying into the privacy of another. It also holds a public officer or employee
or any private individual liable for damages for any violation of the rights
and liberties of another person, and recognizes the privacy of letters and
other private communications. The Revised Penal Code makes a crime the
violation of secrets by an officer, the revelation of trade and industrial
secrets, and trespass to dwelling. Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and
the Intellectual Property Code. The Rules of Court on privileged
communication likewise recognize the privacy of certain information.”
In Vivares v. St. Theresa’s College,153 the Supreme Court cited Chief

Jsutice Renato S. Puno’s speech The Common Right to Privacy, where he
explained the three strands of the right to privacy: (1) locational or
situational privacy, (2) informational privacy, and (3) decisional privacy.
Locational or situational privacy refers to the privacy that is felt in physical
space, such as that which may be violated by trespass and unwarranted
search and seizure.154 Informational privacy is usually defined as the right of
individuals to control of information about themselves. Decisional privacy is
the right of individuals to make certain kinds of fundamental choices with
respect to their personal and reproductive autonomy.155
Acknowledging the right to privacy, the Philippine Supreme Court

has crafted the Writ of Habeas Data which is a remedy available “to any
person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or
of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and
correspondence of the aggrieved party.”
Even the legislature enacted a Data Privacy Act (Republic Act No.
10173) which requires consent of data subjects with respect to the
information that they provide third parties.
All these privacy developments have been set aside by the enactment
of the ATA.
153 G.R. No. 202666, September 29, 2014.

154 Id., footnote 21.
155 Id., footnote 22.
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The ATA, particularly Section 16 thereof, invades the zones of privacy

afforded all citizens in two (2) ways: (1) it allows dragnet surveillance by
casting a very wide net that affords state agents a fishing expedition for
information without regard to the type of data that they obtain, and (2) it
allows a circumvention to the Rule on the Writ of Habeas Data by
presumably obtaining a court authorization first to allow unlimited
surveillance and data gathering operation.
A. The provision on surveillance of

suspects and interception and
recording of communications under
Section 16 of Republic Act No.
11479 allows dragnet surveillance
casting a very wide net that affords
state agents a fishing expedition for
information without regard to the
type of data that they obtain.
Section 16 does not discriminate as to its subjects and objects of

surveillance. It is a form of dragnet surveillance that fishes for information
from anyone by collecting all forms of data about them, even data not related
to alleged ATA activities. The subject of surveillance, aside from members
of designated or proscribed organizations, includes those who are merely
suspected of committing crimes defined in the ATA.
Section 16 does not limit what conversations or communications are

collected and retained. In fact, Section 16 allows surveillance of any “private
communications, conversations, data, information, messages in whatever
form, kind or nature, spoken or written words”. This very Orwellian “Big
Brother” type of surveillance is a pervasive and invasive violation of
protected zones of privacy of suspected persons. Again, even those merely
suspected of committing any of the listed crimes under the ATA may have
their private lives spied into by government agents, in the guise of
implementing the ATA.
In order to be granted a court order, Section 16 in relation to Section

17 only requires that “(1) that there is probable cause to believe based on
personal knowledge of facts or circumstances that the crimes defined and
penalized under Sections 4,5, 6, 7, 8, 9, 10, 11 and 12 of this Act has been
committed or is being committed or is about to be committed; and (2) that
there is probable cause to believe based on personal knowledge of facts or
circumstances that evidence which is essential to the conviction of any
charged or suspected person for, or to the solution or prevention of, any such
crime will be obtained.” Because of the vagueness and overbreadth of
Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12, any person who are merely suspected
can be subjected to surveillance.
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The dragnet surveillance extends to Internet Service Providers (ISPs)

and telecommunication companies, which can now be compelled to produce
all customer information and identification records as well as call and text
data records, content and other cellular or internet metadata of any person
suspected of any of the crimes under the ATA. This pervasive and invasive
method of obtaining evidence has no place under our Bill of Rights. It
constitutes unreasonable search for evidence.
As stated in People v. Francisco:156 “A search warrant is not a sweeping

authority empowering a raiding party to undertake a fishing expedition to
seize and confiscate any and all kinds of evidence or articles relating to a
crime”. More so, in this case, an Order to Compel an ISP or
telecommunication company should not empower a law enforcer to
undertake a fishing expedition to look into private records of even those who
are mere suspects. Mere suspicion as a ground for surveillance means anyone
can be a target. The ATA is, thus, an indiscriminate and arbitrary invasion
of privacy through the use of systematic and high-tech collection and
retention of personal data on virtually every single citizen for purposes of
querying and analyzing it.
B. The Anti-Terrorism Act allows a

circumvention of the Rule on the
Writ of Habeas Data by presumably
obtaining a court authorization first
to allow unlimited surveillance and
data gathering operation.
The Writ of Habeas Data is a remedy available “to any person whose
right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data
or information regarding the person, family, home and correspondence of the
aggrieved party.” It is an independent and summary remedy designed to
protect the image, privacy, honor, information, and freedom of information
of an individual, and to provide a forum to enforce one’s right to the truth
and to informational privacy.157 It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve
unlawful ends.158
The Writ of Habeas Data was issued pursuant to the Exclusive Rule-
Making power of the Supreme Court to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated
bar, and legal assistance to the underprivileged.
156 G.R. No. 129035, August 22, 2002.

157 Vivares v. St. Theresa’s College, id.
158 Gamboa v. Chan, G.R. No. 193636, July 24, 2012.
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In Bautista v. Salucon,159 the Supreme Court granted the Writ of

Habeas Data to a lawyer who was “Red-Tagged” as a “Red Lawyer” by state
agents. According to the Supreme Court:
“There was no question that the civilian asset of the PNP Intelligence
Section relayed to the respondent that there was a standing order issued by
the PNP Isabela Provincial Police Office to the PNP office in Burgos, Isabela
to conduct a background investigation in order to confirm if she was a "Red
Lawyer." She was also under actual surveillance by different individuals who
looked like they were members of the military or police establishments. The
objective of these moves taken against her was unquestionably to establish
a pattern of her movements and activities, as well as to obtain the records of
the cases she was handling for her various clients. These and other
established circumstances fully warranted within the context of the Rule on
the Writ of Habeas Data the directive of the CA for the handing over and
destruction of all information and data on her in order to protect her privacy
and security.”
It is important to point out that under the Writ of Habeas Data, state
agents may be obligated to suppress or destroy information and data of a
person in order to protect that person’s privacy and security. With the Writ
of Habeas Data, state agents are required to show to the Court the following:
(i) a disclosure of the data or information about the petitioner, the nature of
such data or information, and the purpose for its collection; (ii) the steps or
actions taken by the respondent to ensure the security and confidentiality of
the data or information; and (iii) the currency and accuracy of the data or
information held.
In the ATA, there is no requirement for collection of information for

a specific nature and purpose. There is no requirement of a showing of
currency and accuracy of the data or information held. Thus, even data that
is not even related to alleged crimes defined in the ATA may be collected
and retained. There is also no requirement as to the currency and accuracy
of the data or information to be collected. What matters in the ATA is that
data per se is collected and gathered.
The reliefs under the Writ of Habeas Data of requiring state agents to
update, rectify, suppress or destroy the database or information or files kept
by the respondent, and to enjoin the act complained of will also be no longer
applicable under the ATA because the data will be deposited and kept
confidential by the court. However, even before the deposit, the harm that
private data has already been collected and looked into has already been
done.
Petitioners in this case have a valid and credible fear that their zones
of privacy will be invaded by the unwarranted issuance of any orders for the
surveillance of their communications and correspondences. As student
leaders and activists, petitioners are the forefront of mass action programs,
rallies and other activities in the exercise of their right to assembly and
159 G.R. No. 221862, January 23, 2018.

Page 59 of 70
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petition government to seek redress of grievances. However, there is already

a threat to include mass action activities with the recent pronouncement of
respondent National Security Adviser that they will come up with a list that
potentially could include those who are against the ATA.
In Gamboa v. Chan,160 the Supreme Court reminds us of the importance

of the right to privacy. This reminder becomes more apt in the context of
increasing Orwellian surveillance requested by the State. Thus, we are
reminded of the Supreme Court’s words:
“The right to privacy as such is accorded recognition independently

of its identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The concept
of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute state. In contrast, a system of
limited government, safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state
can control. Protection of this private sector — protection, in other words,
of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological
age — industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms,
the capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society.”
Thus, petitioners aver that Section 16 of the ATA be declared

unconstitutional for violation of the constitutional right to privacy.
V. ON THE BASES OF UNDUE DELEGATION OF LEGISLATIVE

AUTHORITY AND USURPATION OF JUDICIAL PREROGATIVE, THE
ANTI-TERRORISM ACT VIOLATES THE PRINCIPLE OF
SEPARATION OF POWERS.
Section 2, Article III of the 1987 Constitution is unequivocal in stating

that only a judge may validly issue a warrant. Thus:
Section 2. The right of the people to be secure in their persons, houses,

papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
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,
particularly describing the place to be searched, or the persons or things to
be seized. (Emphasis supplied)
Petitioners submit that the written order of the ATC to arrest and
take into custody an individual suspected of committing acts of terrorism as
160 G.R. No. 193636, July 24, 2012.

Page 60 of 70
x-----------------------------------------x
sanctioned under Section 29 of the ATA cannot substitute for a warrant of

arrest that only a judge may issue under the Constitution.
A. The power to order the arrest of

persons by the Anti-Terrorism
Council under Section 29 of
Republic Act No. 11479 constitutes
undue delegation of legislative
authority and usurpation of judicial
prerogative; thereby violating the
principle of separation of powers.
Section 29 of the ATA authorizes arrest without a judicial warrant and

sanctions the arrest of suspects upon authority of the Anti-Terrorism
Council contrary to the provisions of Section 2, Article III of the 1987
Constitution, Section 5, Rule 113 of the Rules of Court and Section 1, Article
VIII of the 1987 Constitution.
The Anti-Terrorism Council created by the ATA, which is a purely

executive body, has for its members the following officials: (1) (1) the
Executive Secretary as Chairperson; (2) the National Security Adviser as the
Vice-Chairperson; (3) the Secretary of Foreign Affairs; (4) the Secretary of
National Defense; (5) the Secretary of the Interior and Local Government;
(6) the Secretary of Finance; (7) the Secretary of Justice; (8) the Secretary of
Information and Communications Technology; and (9) the Executive
Director of the Anti-Money Laundering Council Secretariat.161
Section 29 grants the ATC the authority to order the arrest of

“persons suspected of committing any of the acts defined and penalized under
Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the ATA”. The ATC can cause an
arrest by giving a written authority to law enforcement agents and military
personnel to take custody of persons that the ATC deems as terrorists.
This power granted to the ATC to issue a written authority to arrest

a suspected terrorist is clearly taken straight from the Marcosian playbook.
In Philippine history, it was only in the dark times of martial law rule under
former President Ferdinand Marcos that an executive official could cause the
arrest of persons by virtue of orders like the Arrest, Search and Seizure Order
(ASSO)162, Presidential Commitment Order (PCO)163 and the Preventive
Detention Action (PDA)164 These arrest orders were used by the Marcos
dictatorship to conduct warrantless arrests of dissenters and critics of the
administration for offenses ranging from rebellion, insurrection, subversion
and conspiracy. However, the Philippines is supposed to be democracy
governed by the rule of law and in our scheme of government, it is the
Judicial Department and not the Executive Department which has the
161 Sec. 45, R.A. No. 11479
162 General Order No. 60, s. of 1977
163 Letter of Instruction No. 1211, s. 1982
164 Presidential Decree No. 1877 dated July 21, 1983
Page 61 of 70
x-----------------------------------------x
power to order the arrest of persons. Preventing and countering terrorism

or any of the purposes of the ATA do no justify supplanting the role of the
judiciary with that of an executive council.
The members of the ATC are appointees of the Chief Executive and
are alter egos of the President who carry out executive policies. By
empowering the ATC to cause the arrest of suspected terrorists, the ATC is
engaged in a judicial function in violation of the principle of separation of
powers.
It is well-settled that the issuance of a warrant of arrest is the exclusive

function of a judge. If the courts cannot interfere with the executive
determination of probable cause by the prosecutor, the same rule of non-
interference obtains with respect to the judicial function of determination of
probable cause of the issuance of a warrant of arrest, viz:
During preliminary investigation, the prosecutor determines the existence of

probable cause for filing an information in court or dismissing the criminal
complaint. As worded in the Rules of Court, the prosecutor determines during
preliminary investigation whether "there is sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial." At this stage, the
determination of probable cause is an executive function. Absent grave abuse
of discretion, this determination cannot be interfered with by the courts. This
is consistent with the doctrine of separation of powers.
On the other hand, if done to issue an arrest warrant, the determination

of probable cause is a judicial function. No less than the Constitution
commands that “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.”165
More so that in a line of cases, this Court has ruled that members of
the Executive Department cannot usurp a judicial function such as the
issuance of a warrant of arrest.
In Salazar v. Achacoso,166 the Honorable Court struck down as

unconstitutional Art. 38 of the Labor Code of the Philippines which granted
the Secretary of Labor the authority to issue orders of arrest, search and
seizure. Also, in Republic v. Sandiganbayan,167 the Supreme Court held that
Presidential Commission on Good Government (PCGG) has no authority to
issue an order directing the respondent to submit the bank documents
necessary for its investigation since only a judge is empowered to do that
under the Constitution.
In Disini, et al. v. Sandiganbayan,168 this Court, likewise, struck down as

unconstitutional Section 19 of Republic Act No. 10175 (Anti-Cybercrime
165 Maza et. al v. Hon. Turla, G.R. No. 187094, February 15, 2017
166 G.R. No. 81510, March 14, 1990.
167 G.R. Nos. 112708-09, March 29, 1996.
168 G.R. No. 203335, February 11, 2014
Page 62 of 70
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Act) since the Department of Justice cannot seize the computer data under
its control without a warrant. In that case, this Court held:
“The content of the computer data can also constitute speech. In such
a case, Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected
without any judicial warrant, it is not enough for him to be of the
opinion that such content violates some law, for to do so would make
him a judge, jury, and executioner all rolled into one.”169 (Emphasis
supplied)
Thus, the power to order the arrest of persons is lodged exclusively

with the courts and Congress cannot legislate to apportion judicial power to
an executive council like the ATC without violating Section 1, Article VIII
of the 1987 Constitution which mandates that judicial power shall be vested
only in the Supreme Court and in the lower courts.
The separation of powers is a fundamental principle in our system of

government. It obtains not through express provision but by actual division
in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere.170 Section 29 is, thus, an encroachment by the Executive Department
on the functions of the Judicial Department contrary to the principles of
separation of powers.
VI. THE ANTI-TERRORISM ACT VIOLATES THE CONSTITUTIONAL

PROHIBITION AGAINST INVOLUNTARY SERVITUDE.
A. The power of the Anti-Terrorism

Council to require non-government
organizations, private entities and
individuals to render assistance to
the ATC in the performance of its
mandate under Section 46(m) of
Republic Act No. 11479 violates the
constitutional prohibition against
involuntary servitude.
The 1987 Constitution in no uncertain terms provides in its Section

18(2), Article III that “No involuntary servitude in any form shall exist except as
a punishment for a crime whereof the party shall have been duly convicted”.
In James M. Imbong, et al. v. Ochoa,171 the Supreme Court held, to wit:
169 Id.
170 Angara v. The Electoral Commission, G.R. No. L-45081, July 15, 1936
171 G.R. No. 204819, April 8, 2014.
Page 63 of 70
x-----------------------------------------x
“Moreover, as some petitioners put it, the notion of involuntary

servitude connotes the presence of force, threats, intimidation or other similar
means of coercion and compulsion, A reading of the assailed provision,
however, reveals that it only encourages private and non-government
reproductive healthcare service providers to render pro bono service. xxx”172
In other words, when a provision of a law does not merely encourage

but compels a private individual to render some sort of service, that provision
can be considered as a violation of the constitutional prohibition on
involuntary servitude.
However, Section 46(m) of the ATA gives the ATC the power to
require not only government agencies, offices and entities and officers and
employees but also non-government organizations, private entities and
individuals to render assistance to the ATC in the performance of its
mandate. Certainly, said provision of the law is unconstitutional insofar as it
grants the ATC the power to compel private persons to render some sort of
service to it in order to assist in the performance of its mandate since it
would be a form of involuntary servitude when private individuals
would be rendering service not out of their own volition but because of
state compulsion.
While government officials and employees can be required to render

assistance to another office of government unless and until they resign or
retire, private individuals, on the other hand, cannot be ordered around by
any government office because the people are the “bosses” of the government.
It is government that serves the public, not the other way around. In
fact, the only time a private individual can be compelled to perform an act is
when a case has been filed against him and the court can do so because the
Constitution vests upon the courts the judicial power, which includes the
duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable.
Therefore, Section 46(m) of the ATA should be struck down for being
unconstitutional as it violates the prohibition against involuntary servitude
encapsulated under Section 18(2), Article III of the 1987 Constitution.
GROUNDS IN SUPPORT OF THE PRAYER FOR THE

ISSUANCE OF A TEMPORARY RESTRAINING ORDER (TRO)
AND/OR WRIT OF PRELIMINARY INJUNCTION
Petitioners replead and incorporate all the foregoing allegations and

further state that –
Section 3, Rule 58 of the 1997 Rules of Civil Procedure on preliminary

injunction provides the requirements for the issuance of a temporary
restraining order (TRO) or a writ of preliminary injunction:
172 Id.
Page 64 of 70
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SEC. 3. Grounds for issuance of preliminary injunction. – A preliminary

injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole
or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act

or acts complained of during the litigation would probably work
injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is

attempting to do, or is procuring or suffering to be done, some act or
acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding and tending to render judgment
ineffectual.173
Thus, a writ of preliminary prohibitory or mandatory injunction may

be issued upon the concurrence of the following essential requisites: (a) the
invasion of a right sought to be protected is material and substantial; (b) the
right of the plaintiff is clear and unmistakable; and (c) there is an urgent and
paramount necessity for the writ to prevent serious damage. While a clear
showing of the right is necessary, its existence need not be conclusively
established. Hence, to be entitled to the writ, it is sufficient that the plaintiff
shows that he has an ostensible right to the final relief prayed for in his
complaint.174
In the present case, that their fundamental constitutional rights and
freedoms are materially affected by the unconstitutionality of the ATA. The
constitutional rights violated by the provisions of the ATA include the right
to due process, freedom of speech and expression, the right to peaceably
assemble and petition the government for redress of grievances, freedom of
association, non-detention by reason of one’s political beliefs or aspirations,
the right to privacy of communications and correspondence, right against
involuntary servitude and the right against unreasonable searches and
seizures. Moreover, the ATA encroaches upon the judicial functions of a
judge in violation of the principle of separation of powers.
There is clearly a pressing and urgent necessity for a TRO and/or

injunctive relief to enjoin the respondent members of the Anti-Terrorism
Council from implementing the ATA as the same threatens to undermine the
basic civil and political liberties guaranteed by the Constitution.
Furthermore, the urgent need of a TRO and/or writ of preliminary
injunction to enjoin the implementation of Republic Act No. 11479 is
highlighted by the recent statements made by the Secretary Hermogenes
Esperon, the National Security Adviser and a member of the ATC. In an
online news report published by ABS CBN news, Sec. Esperon was quoted
saying that the ATA can be the basis in identifying who are terror
173 China Banking Corporation v. Ciriaco, 676 SCRA 132 (2012).

174 Lukang v. Pagbilao Development Corporation, G.R. No. 195374, March 10, 2014.
Page 65 of 70
x-----------------------------------------x
suspects.175 He has also made a similar statement to the effect that critics of
the ATA could be “supporters” of terrorists.176
CONCLUSION
As a final word, petitioners wish to emphasize that they are not

discounting the dangers of terrorism; it is, in fact, a menace to society that
must be quashed. However, there has to be effective mechanisms in place to
prevent despicable acts from taking place in the country or elsewhere.
Contrary to its aim, the provisions of the ATA create a chilling effect on the
many freedoms guaranteed no less by our Constitution.
The ATA is akin to a sword of Damocles constantly hanging over the

heads of this country’s freedom-loving citizens and for the generations to
come, unless the same is expunged from the annals of our statute books. The
law, in itself, carries an evil that threatens to destroy the democratic fabric
that binds our institutions and society together. Protection of national
security and public welfare must not be, and should never be, at the expense
of our basic civil and political liberties.
In filing this petition before the highest court of the land, petitioners
wish to respond to Jose Rizal’s call to the youth, echoed through the
character of Padre Florentino in his novel El Filibusterismo: “Where are the
youth who will consecrate their golden hours, their illusions, and their
enthusiasm to the welfare of their native land? Where are the youth who will
generously pour out their blood to wash away so much shame, so much
crime, so much abomination?”
Petitioners, therefore, humbly implore this Honorable Court to be on

the ‘right side of history’ – to uphold fidelity to our Constitution and to
safeguard the rights and welfare of the Filipino people by striking down
Republic Act No. 11479, otherwise known as the Anti-Terrorism Act for
being unconstitutional.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court that:
a) Pending resolution of the case on the merits, a Temporary

Restraining Order (TRO) and/or Writ of Preliminary Injunction
be issued enjoining the respondent members of the Anti-
Terrorism Council and its coordinating law enforcement agencies
175 Punzalan, Jamaine (4 July 2020). Who’s a terrorist? Social media can be basis under new law but no
immediate arrests, says Esperon. ABS-CBN News. Retrieved from https://news.abs-
cbn.com/amp/news/07/04/20/whos-a-terrorist-social-media-can-be-basis-under-new-law-but-
no-immediate-arrests-says-esperon, date accessed 22 July 2020.
176 Colcol, Erwin (6 July 2020). Opposition solons slam Esperon for saying anti-terror law critics
‘support’ terrorists. GMA News. Retrieved from https://www.msn.com/en-

ph/news/national/oppositions-solons-slam-esperon-for-saying-anti-terror-law-critics-support-
terrorists/ar-BB16nMtS, date accessed 22 July 2020.
Page 66 of 70
x-----------------------------------------x
from implementing Republic Act No. 11479, otherwise known as

the Anti-Terrorism Act;
b) After due hearing, a Final Injunction be issued making the TRO

and/or Writ of Preliminary Injunction permanent; and
c) After consideration of this Petition, a decision be rendered

declaring null and void Republic Act No. 11479, otherwise known
as the Anti-Terrorism Act for being unconstitutional.
d) In the alternative, a decision be rendered declaring null and void

the following provisions of Republic Act No. 11479, otherwise
known as the Anti-Terrorism Act for being unconstitutional:
i. Section 4 of Republic Act No. 11479 for being facially

invalid under the void-for-vagueness and overbreadth
doctrines, and being violative of the freedom of
expression and its cognate rights;
ii. Section 5 of Republic Act No. 11479 for being facially
doctrines, and being violative of the freedom of
expression and its cognate rights;
iii. Section 6 in relation to Section 3(h) and (k) of Republic
Act No. 11479 for being facially invalid under the void-
for-vagueness and overbreadth doctrines, and being
violative of the freedom of expression and its cognate
rights;
iv. Section 7 and Section 8 in relation to Section 3(g) of
Republic Act No. 11479 for being facially invalid under
the void-for-vagueness and overbreadth doctrines, and
being violative of the freedom of expression and its
cognate rights;
v. Section 9 of Republic Act No. 11479 for being facially
doctrines, and being violative of freedom of expression
and its cognate rights;
vi. Section 10 in relation to Section 3(h), (l) and (m) of
Republic Act No. 11479 for being facially invalid under
the void-for-vagueness and overbreadth doctrines, and
being violative of the freedom of expression, freedom of
association, and the constitutional guarantee against non-
detention by reason of political beliefs or aspirations;
vii. Section 11 of Republic Act No. 11470 for being facially
doctrines;
viii. Section 12 in relation to Section 3(e) of Republic Act
No. 11479 for being facially invalid under the void-for-
vagueness and overbreadth doctrines, and being violative
of freedom of expression and its cognate rights;
Page 67 of 70
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ix. Section 16 of Republic Act No. 11479 for being violative

of the right to privacy of correspondence and
circumventing the Rule on the Writ of Habeas Data;
x. Section 25 in relation to Section 3(b) of Republic Act
No. 11479 for being violative of the right to due process;
xi. Section 26 and 27 of Republic Act No. 11479 for being
violative of the right to due process, constitutional
presumption of innocence, and the constitutional
prohibition against the passage of a bill of attainder and
ex post facto law;
xii. Section 29 of Republic Act No. 11479 for being violative
of the right against unreasonable searches and seizures,
exceeding the allowable detention limits under the
Constitution, and violating undue delegation of
legislative authority and usurpation of judicial
prerogative and the principle of separation of powers; and
xiii. Section 46(m) of Republic Act No. 11479 for being
violative of the constitutional prohibition on involuntary
servitude
Other reliefs just and equitable under the circumstances are likewise
prayed for.
Cebu City, Cebu, Philippines. July 27, 2020.
ATTY. ABRAHAM REY MONTECILLO ACOSTA

Free Legal Assistance Group (FLAG) – Cebu
Counsel for Petitioners
A. Acosta & Associates,
11th Floor AppleOne Equicom Tower,
Mindanao Avenue corner Biliran Road, Cebu Business Park,
Ayala Center, Cebu City, Cebu 6000
Roll of Attorneys No. 54441
IBP Lifetime No. 010415; Cebu City
PTR No. 408228; 01/02/2020; Cebu Province
MCLE Compliance No. VI-0016152, valid until 04/14/2022
Email: abraham@acostalaw.ph
ATTY. JAY P. PUJANES

Collaborating Counsel for Petitioners
Pujanes Law Office
Door 2, Elizabeth’s Happy Corner, Remedio Compound,
826 Nasipit, Talamban, Cebu City, Cebu 6000
Tel. No. (032) 415-4753
IBP Lifetime No. 858654; 04/19/2011; Cebu City
PTR No. 408033; 12/23/2019; Cebu
Page 68 of 70
x-----------------------------------------x
MCLE Compliance No. VI-0023707; 04/10/2019

Email: jaypujanes@yahoo.com
ATTY. KARLA MARIE T. TUMULAK

Collaborating Counsel for Petitioners
Office of Legal Affairs, 2nd Flr., New High School Building,
University of Cebu – Main Campus, Sanciangko St., Cebu City, Cebu
Tel. No. (032) 255-7777 local 173
IBP No. 106935; 01/06/2020, Cebu
PTR No. 406713; 12/12/2019, Cebu
MCLE Compliance No. VI-0014454, valid until 04/14/2022
Email: karlamarie.tumulak@gmail.com
Copy Furnished:
HON. SALVADOR MEDIALDEA

Executive Secretary and Chairperson of ATC
2nd Floor, Mabini Hall, Malacaňang,
J.P. Laurel St., San Miguel, Manila
HON. HERMOGENES ESPERON

National Security Adviser
NICA Compound, V. Luna Road cor. East Avenue,
Diliman, Metro Manila 1110
HON. TEODORO LOCSIN, JR.

Secretary of Foreign Affairs
DFA Building, Roxas Boulevard,
Pasay, Metro Manila
HON. DELFIN N. LORENZANA

Secretary of National Defense
Camp Aguinaldo, Quezon City,
Metro Manila 1110
HON. EDUARDO AŇO

Secretary of Interior and Local Government
DILG Napolcom Center, Quezon City,
Metro Manila 1110
HON. CARLOS DOMINGUEZ

Secretary of Finance
DOF Building, Roxas Boulevard cor.
Pablo Ocampo St., Pasay, Metro Manila
Page 69 of 70
x-----------------------------------------x
HON. MENARDO GUEVARRA

Secretary of Justice
DOJ Building, Padre Faura St., Ermita,
Manila 1000
HONORABLE GREGORIO B. HONASAN II

Secretary of Information and Communications Technology
DICT Building, C.P. Garcia Avenue, Diliman,
Quezon City, Metro Manila 1110
HON. MEL GEORGIE B. RACELA

Executive Director of AMLC
5th Floor, EDPC Building, BSP Complex,
Roxas Boulevard cor. Pablo Ocampo St.,
Malate 1004
OFFICE OF THE SOLICITOR GENERAL

No. 134 Amorsolo St., Legaspi Village, Makati City
efile@osg.gov.ph
EXPLANATION
The foregoing Petition is being served upon the Respondents and the
Office of the Solicitor General by registered mail, personal service not being
practicable due to distance and lack of office personnel.
KARLA MARIE T. TUMULAK
Page 70 of 70

(FINAL) Hendy Abendan Et Al. Vs Exec. Secretary - ATL Draft Petition

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ORIGINAL COPY

REPUBLIC OF THE PHILIPPINES

HENDY ABENDAN of Center for

HON. SALVADOR MEDIALDEA,

GREGORIO B. HONASAN II,

PETITION FOR CERTIORARI AND PROHIBITION

“Those who begin coercive elimination of dissent soon find themselves

If there is any fixed star in our constitutional constellation, it is that no

- U.S. Supreme Court Justice Robert H. Jackson

‘While the government should continue to repel the

Violations of human rights do not help in overcoming a rebellion. A

- Supreme Court Justice Hugo E. Gutierrez, Jr.

NATURE OF THE PETITION

This is a Petition for Certiorari and Prohibition under Rule 65 of the

Petitioners likewise ask the Honorable Court, pending a final

Petitioner HENDY ABENDAN, Filipino, of legal age and with

Petitioners CALVIN DHAME LAGAHIT, CHRISTIAN LOUIE

Petitioners LYRNIE REGIDOR and HANNSON KENT J. NAMOC,

Petitioners GILBERT G. APURA, JR. and DAVID C. SUICO,

Petitioners MARY THERESE T. MAURIN, Filipino, of legal age and

Petitioners may be served with court notices, summons and other

Respondent HONORABLE SALVADOR MEDIALDEA is the

Respondents HONORABLE HERMOGENES ESPERON (National

On February 26, 2020, the Senate of the Philippines approved on third

Subsequently, the Committees on Public Order and Safety, and on

On June 3, 2020, the House of Representatives approved on third and

On July 3, 2020, President Rodrigo Roa Duterte signed Republic Act

The Anti-Terrorism Law, particularly Section 45 thereof, provided for

“SEC. 46. Functions of the Council. – In pursuit of its mandate in

(a) Formulate and adopt plans, programs, and preventive and

(b) Coordinate all national efforts to suppress and eradicate

(c) Direct the speedy investigation and prosecution of all persons

(d) Monitor the progress of the investigation and prosecution of

(e) Establish and maintain comprehensive database information

(g) Grant monetary rewards and other incentives to informers

(h) Establish and maintain coordination with and the cooperation

(i) Take action on relevant resolutions issued by the UN Security

(j) Take measures to prevent the acquisition and proliferation by

(k) Lead in the formulation and implementation of national

(l) Request the Supreme Court to designate specific divisions of

(m) Require other government agencies, offices and entities and

(n) Investigate motu proprio or upon complaint any report of

In addition to the above-mentioned powers under Section 46 thereof,

“SEC. 25. Designation of Terrorist Individual, Groups of Persons,

The ATC may designate an individual, groups of persons,

Moreover, Section 29 of the ATA grants the ATC the authority to

Significantly, substantial revisions and/or amendments on the

5 Sec. 22, R.A. No. 11479.

definition of “terrorism”;13 surveillance of suspects and interception and

GROUNDS RELIED UPON IN SUPPORT OF THE

I. THE PRESENT PETITION IS AN APPROPRIATE RECOURSE TO

A. Propriety of the remedies of Certiorari and Prohibition under

B. There is a prima facie existence of grave abuse of discretion in

II. THE PRESENT PETITION COMPLIES WITH ALL THE

A. As a matter of exception to the requirement that there be an

B. Petitioners, being concerned citizens and taxpayers, have locus

C. The question of the constitutionality of the Anti-Terrorism

D. The question of constitutionality is the lis mota of the present

13 Sec. 4, R.A. 11479.

I. THE ANTI-TERRORISM ACT VIOLATES THE RIGHT TO DUE

A. The definition of “terrorism” and the provisions on acts of

B. The provision on the power of the ATC to designate

C. The provision on proscription of terrorist organizations,