[ATA Summary for Benchmark] Calleja v. Executive Secretary, et. al., G.R. Nos. 252578, 252579, et. al., December 5 2021 Justice Carandang’s ponencia in Calleja—covering as it does many subjects that are relevant to constitutional, criminal, and remedial law—is a landmark ruling that is expected to shape Philippine jurisprudence in the years to come. The ponencia, more than being Justice Carandang’s legacy to all students of the law, is representative of her ethos, legal adroitness, and judicious attention to case work. The case involved 37 consolidated petitions assailing the constitutionality of Republic Act No. 11479, or the controversial Anti-Terrorism Act of 2020 (ATA). The petitioners, who hail from a diverse range of sectors of Philippine society, challenged the validity of several provisions of the ATA due to their perceived facial vagueness and overbreadth that allegedly repress protected speech and undermine other fundamental rights guaranteed under the Constitution. Preliminarily, the ponencia determined that 35 of the 37 petitions should be granted due course. In so ruling, the ponencia found that these 35 petitions have sufficiently raised concerns regarding the freedom of speech, expression, and its cognate rights. These cases thus presented a permissible facial challenge to the ATA. The ponencia also found that the petitioners therein have sufficiently shown a credible and imminent threat of injury as they may be subjected to the grave consequences attendant to the implementation of the ATA, such as designation under Section 25 or detention without judicial warrant of arrest under Section 29. Seven members of the Court joined Justice Carandang on this point. Next, the ponencia delimited the scope of the constitutional challenge against the ATA only to those involving and raising chilling effects on the freedom of speech, ~~ expression, and its cognate rights, and in the context of the actual facts as presented ~ in the petitions. The ponencia found it improper at the time to expand the scope of facial challenges to all other constitutional rights, recognizing that Philippine jurisprudence on the matter has consistently adhered to the scope of facial challenges relative only to free speech cases. The ponencia also recognized that several of the issues raised against the ATA are too speculative afid raise genuine issues of fact that require the submission of concrete evidence.fen members of the Court agreed with this delimitation, emphasizing nonetheless that this facial review should not preclude future challenges against any of the provisions of the ATA on the basis of an actual and as-applied case. Having limited the scope of the case, the ponencia then proceeded to examine Section 4 of the ATA. The ponencia deconstructed the provision into two distinct parts: the main part, which defines and penalizes the crime of terrorism; and the proviso, which provides that the definition of terrorism under Section 4 “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.”[ATA Summary for Benchmark] Considering that the main part of Section 4 chiefly pertains to conduct—and moreover, conduct unrelated to speech or expression—the ponencia held that it cannot be assailed through a facial challenge and the presumption of its constitutionality stands. The ponencia acknowledged, however, that it is prudent to initially clarify mistaken notions against the main part of Section 4,since it provides the baseline for all succeeding provisions of the ATA. In this regard, the ponencia pointed out that, first, there is no impermissible vagueness in the definition of terrorism in the provision, since the actus reus and mens rea are clearly provided therein; and second, that the various general terms used in Section 4 are not a unconstitutionally vague, as these can be clarified or saved by proper judicial construction. Consequently, the ponencia held that the main part of Section 4 creates a demonstrably valid and legitimate definition that is general enough to adequately address the concem that terrorism is constantly evolving. Section 4’s proviso, on the other hand, deserved closer scrutiny since it innately affects the exercise of the freedom of speech and expression. The ponencia found that the “not intended clause” of the proviso is unconstitutional, because if the Proviso is rephrased into its logical inverse, it allows advocacies, protests, dissents, stoppages of work, industrial or mass actions, and other similar exercises of civil and political rights, to be punished as acts of terrorism if they are 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. Therefore, the burden is now placed upon the accused to provide that his or her actions constitute a just exercise of his or her civil and political rights, contrary to the principle that it is the government that has the burden of proving the unconstitutionality of the utterance, speech, or expression, As a result, the “not intended clause” creates confusion because a person’s exercise of his or her civil or political rights might be interpreted as acts of terrorism by law enforcement agents and on that basis, lead to a possible incarceration or tagging as a terrorist. The “not intended clause” of the proviso thereby creates a substantially demonstrable chilling effect on the people’s exercise of speech and expression, making it unconstitutional. 11 members of the Court concurred with these findings. The delimited facial challenge likewise permitted the ponencia to address the. challenges against the validity of the following provisions, all of which were declared not unconstitutional: (1) Section 5 on threats to commit terrorism; (2) Section 6 on planning, training, preparing, and facilitating the commission of terrorism; (3) Section 8 on proposals to commit terrorism; (4) Section 9 on inciting to commit terrorism; and (5) Section 12 on providing material support to terrorists. The ponencia found that these provisions are neither impermissibly vague nor overbroad as to infringe on the right to free speech and expression. Particularly for Section 9, the ponencia held that the provision operates only within a narrow and confined area of speech where restrictions are permitted, as the offense is circumscribed by the confines of the intent-purposes parameters of Section 4. Thus, — speech can be penalized as inciting to terrorism only when it is: (1) a direct and explicit call to engage in terrorism, and not merely vague, abstract, or equivocal appeals for action; (2) made with the intent to promote terrorism; and (3) directly and causally responsible for increasing the likelihood of terrorist attacks.[ATA Summary for Benchmark] The ponencia also passed upon the constitutionality of Section 10 on membership in terrorist organizations, specifically the third paragraph thereof, since the freedom of association is a cognate right of the freedom of speech and expression. Under this provision, there are three instances when membership in a terrorist organization is penalized. The ponencia, in finding the first two instances of membership provided in the third paragraph of Section 10 as permissible restrictions on the freedom of association, emphasized the scienter element of the membership—it is thus a membership made voluntarily and knowingly and with the knowledge that the organization is either proscribed under Section 26 of the ATA or has been designated by the United Nations Security Council (UNSC) as a terrorist organization. In these two (2) instances, the people are therefore clearly given notice of what conduct to avoid. The same, however, cannot be said for the third instance of membership under Section 10, i.e., voluntarily and knowingly joining any organization that the prospective offender knew was organized for the purpose of engaging in terrorism, because there are no sufficient or discernible parameters in the ATA, its rules, or in the legislative deliberations to ascertain whether indeed, an organization, association, or group was organized for the purpose of engaging in terrorism. The phrase likewise unnecessarily overreaches into innocent and constitutionally-protected expressive association, However, only five (5) members of the Court joined Justice Carandang in holding that the phrase “organized for the purpose of engaging in terrorism” in the third paragraph of Section 10 renders the third instance of membership unconstitutional. The majority believes that Section 10 should be read with Section 4, and thus there are clear and sufficient standards by which a person can determine whether an organization, association, or group is organized for the purpose of engaging in terrorism. Another provision of the ATA that the petitioners challenged is Section 25 which adopted the extraordinary measure of “designating” terrorist individuals or organizations. Designation under Section 25 has three modes: first, through the automatic adoption of the designation or listing made by the UNSC; second, through the approval by the Anti-Terrorism Council (ATC) of requests made by other jurisdictions or supranational jurisdictions to designate individuals ot entities that meet the criteria under UNSC Resolution No. 1373, and third, through designation made by the ATC itself, upon a finding of probable cause that the person or organization commits, or is attempting to commit, or conspired in the commission of, the acts defined and penalized under Sections 4 to 12 of the ATA. Similar to previous discussions, Section 25 is susceptible to a facial challenge because of its grave effects on those designated when implemented in conjunction with the other provisions of the ATA. The ponencia held that the first mode of designation is constitutionally acceptable because there are compelling state interests in authorizing the automatic adoption of the UNSC Consolidated List, such as forestalling possible terrorist activities of foreigners within Philippine jurisdiction or against Philippine nationals abroad. Furthermore, the automatic adoption of the UNSC Consolidated List is intended to facilitate the State’s commitment to cooperate with global efforts against cross- border terrorism and terrorist groups, in compliance with its international obligations[ATA Summary for Benchmark] under the United Nations Charter and UNSC Resolution No. 1373. The ponencia observed as well that the automatic adoption of the UNSC Consolidated List is the least restrictive means to achieve the objectives of the State, there being sufficient guidelines and procedural safeguards and remedies in the relevant UNSC Resolutions for this purpose. Thirteen members of the Court assented to the holding that the first mode of designation is not unconstitutional. In contrast to the first mode, the ponencia found both the second and third modes of designation unconstitutional. While the ponencia observed that there is a compelling state interest in adopting the second mode of designation, the means employed are not the least restrictive, nor narrowly tailored to achieve the State’s compelling interest. Under the second mode of designation, there is no sufficient standard that the ATC should observe in evaluating a request for designation. While the provision alludes to the criteria for designation under UNSC Resolution No. 1373, the ATC is still given unbridled discretion in determining how the request will be considered as sufficiently meeting, or is not in compliance with, the said criteria. What is more, there are no proper procedural safeguards and remedies for an erroneous designation made under this mode. Eight (8) members of the Court joined Justice Carandang in declaring the second mode of designation unconstitutional. As mentioned, the ponencia ruled that the third mode of designation is also unconstitutional. In similar fashion, the ponencia held that the means employed are not narrowly drawn to meet the compelling State interest of preventing terrorism, not only because there are no procedural safeguards and remedies for an erroneous designation similar to the second mode, but also due to the lack of any discernible criteria in the statute by which an executive body like the ATC may determine probable cause to designate. However, only six (6) members of the Court agreed with this holding. The majority believes that designation under the third mode is not unconstitutional. Closely related to designation under Section 25 is proscription under Sections 26 to 28. All members of the Court concur with the ponencia that proscription under these provisions are not unconstitutional, it being essentially judicial in nature and thus, subject to various judicial processes. The belief is that a judicial process would lessen, if not totally eliminate, the arbitrary or erroneous proscription of organizations, associations, or group of persons as terrorists. Lastly, the ponencia likewise held that the contentious provision in Section 29 on detention without judicial warrant of arrest is susceptible to a facial challenge because of the threat that a warrantless arrest and extended detention can possibly restrain and chill free speech and expression. Subject to this analysis, the ponencia held that the provision is not unconstitutional. The ponencia firstly clarified that Section 29 should be read with Rule 9.2 of the ATA’s implementing rules and regulations (IRR), which mirror the warrantless arrests already contemplated under our current legal framework in Section 5, Rule 113 of the Rules of Court, The requirements, therefore, to effect a warrantless arrest[ATA Summary for Benchmark] under Section 5, Rule 113 and in pertinent jurisprudence—such as the officer’s personal knowledge of the facts of the commission of an offense to determine whether probable cause exists for the warrantless arrest—are deemed read into and are equally applicable to determine the necessity and validity of warrantless arrests made under Section 29. Hence, Section 29 does not allow a warrantless arrest based on mere suspicion, and it should not be read as modifying the prevailing standards for a warrantless arrest. The ponencia also clarified that the authority issued by the ATC comes into play only after a valid warrantless arrest is made and upon submission by the arresting officer of the documentary requirements under Rule 9.1 of the IRR, and is necessary only to determine whether a person may be detained for up to 14 days as provided in Section 29, If no authority is issued by the ATC, the prevailing rule applies: the arresting officer is obligated to deliver the suspected person to the proper judicial authority within the periods specified under Article 125 of the Revised Penal Code (RPC). Thus, Section 29 does not authorize the ATC to issue executive warrants of arrest, and the written authority issued by the ATC is not a substitute for a judicial warrant of arrest in the proper cases. This extended detention period should then be considered as an exception to Article 125 of the RPC. Section 29 of the ATA, in effect, supplements Article 125 of the RPC and should be considered the specific rule applicable for offenses penalized under the ATA. Anent the claim that the extended periods under Section 29 have no constitutional justification, the ponencia noted that the Constitution is silent as to the exact number of hours or days that an arresting officer can detain an individual before he or she is compelled by law to deliver the said person to the courts. Thus, the argument that the three-day period in Section 18, Article VII is the maximum period contemplated for detention in all instances is misplaced as the provision applies only in cases of invasion or rebellion and when the public safety requires it. Congress is not prohibited from legislating a longer detention period, if necessary. On this score, the ponencia notes that the extended period is an acknowledgment that terrorism is not comparable to an ordinary crime—it is a recognition of the experience of law enforcement and of other jurisdictions how case building in terrorism charges is fraught with many difficulties. More than anything, the extended period should also be viewed as a practical tool for law enforcement to aid in the prevention or disruption of terrorism. Nine (9) members of the Court agreed with Justice Carandang that Section 29, as properly construed, is not unconstitutional. As a final word, the ponencia made reference to the need to strike a calibrated balance between what is constitutionally acceptable and what is not. The Court cannot simply disregard the realities on the ground and the complex problem that terrorism presents not only to the Philippines, but also across the globe. Hence, the Court should be ever mindful that at times, it may need to lean on a little practical wisdom to balance the demands of national security, public safety, and effective law enforcement with its constitutional mandate to safeguard the people’s substantive democracy.