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DOJ starts review of constitutionality of anti-terror bill

Lian Buan

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DOJ starts review of constitutionality of anti-terror bill
'You appear to be a decent and honorable man, unlike many. Your principal will not be there forever, but your reputation and integrity will outlive you,' human rights lawyer Edre Olalia pleads to fellow Atenean lawyer Justice Secretary Menardo Guevarra


MANILA, Philippines – The Department of Justice (DOJ) will start its review of the constitutionality of the highly-contested anti-terror bill, Justice Secretary Menardo Guevarra said on Saturday, June 6.

Guevarra confirmed that as of Saturday, Congress has not sent yet the enrolled anti-terror bill to Malacañang for President Rodrigo Duterte’s signature. Various groups and some lawmakers have urged Congress not to transmit the bill to Malacañang unless its questionable provisions have been removed.

“The Congress has not sent the enrolled bill for the President’s signature. So our comments have not yet been requested by the Office of the President. Nonetheless, the DOJ will already start its own review of the bill,” Guevarra told reporters Saturday.

Guevarra said that the DOJ will look at the constitutionality of the bill’s provisions. The DOJ will have to write the implementing rules and regulations (IRR) of the law, if and when the bill is enacted into law.

The justice secretaty will also sit in the powerful Anti-Terror council (ATC) proposed under the measure.

“The DOJ’s task is not to interfere with governmental policy but to determine if the provisions of any enrolled bill are in accordance with the Constitution,” said Guevarra.

“I would like to believe that we have consistently and objectively discharged this duty,” added the justice secretary.

Crucial man

According to Guevarra, who was a former senior deputy executive secretary, the Office of the President has to ask for the comments of concerned agencies if an enrolled bill is transmitted to the OP for the President’s approval and signature.

Enrolled bills are those like the anti-terror bill which did not have to go through more debates at the bicameral committee because both houses of Congress passed the same version. 

Guevarra said it will be Executive Secretary Salvador Medialdea who will study the comments of the agencies, and who will make the recommendation to the President on whether to sign or veto the bill. If Duterte does not act in 30 days upon receipt of the bill, it will lapse into a law.

As a Palace insider, Medialdea’s longtime friend and colleague, and being the justice secretary, Guevarra’s review will be crucial.

“You appear to be a decent and honorable man unlike many. Your principal will not be there forever, but your reputation and integrity will outlive you,” National Union of Peoples’ Lawyers (NUPL) president Edre Olalia, who is among the human rights lawyers opposing the bill, said in a tweet on Saturday addressed to Guevarra.

Olalia pleaded with his fellow Atenean lawyer: Do your duty, SOJ, both as a lawyer and as a human being. Put sense and reason in public service. History, your peers, and your family will judge you for what you will do for the bigger picture and greater future for the vast many.”

On Twitter, Ateneo Law Professor Mickey Ingles also appealed to his former law teacher, “Praying our former teacher sees the unconstitutional provisions of the anti-terror bill.” 

Ateneo leaders have co-signed a petition with the La Salle brothers calling for the junking of the anti-terror bill.

Constitutional issues

Among the constitutional questions is the authorization of the ATC, an executive body, to order the arrest and detention of suspected terrorists as opposed to obtaining warrants from the courts.

The 2007 Human Security Act also authorizes the ATC to do this, but under the existing law, the warrantless arrest and detention must be a result of prior surveillance. The proposed anti-terror bill does not impose the same requirement. (READ: EXPLAINER: Comparing dangers in old law and anti-terror bill)

Retired Supreme Court Associate Justice Antonio Carpio said that the prior surveillance requirement of the current law means the warrantless arrest will fall under caught in the act, one of the 3 valid grounds for a warrantless arrest under the rules of criminal procedure.

“The new Anti-Terror Law does not provide for this limitation,” said Carpio who added that it means the bill, if passed, can be challenged before the courts right away.

In the anti-terror bill, the period of detention of suspects was extended from 3 days to as long as 24 days.

Under the constitutional provision authorizing the president to declare martial law, the privilege of the writ of habeas corpus can be suspended but all people arrested without warrants must be brought to court in 3 days. 

The new bill also added more crimes, to include inciting to terrorism. 

“In the 2020 Anti-Terror Law, inciting to terrorism is penalized. So freedom of speech is involved, and thus facial challenge should be allowed,” said Carpio.

“Facial challenge” means not waiting for a direct injury to happen to someone before that person can challenge the constitutionality of the law. –

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.