The Supreme Court in some cases would require an actual injury to happen before laws are challenged before them, but for the contested anti-terror bill, retired senior associate justice Antonio Carpio said it can be challenged "on its face" or right away.
"Facial challenge is allowed because the law touches on fundamental constitutional rights, like the right against arrests without court warrants, and provides penalties for its violation," Carpio told Rappler on Thursday, June 4.
The House of Representatives passed the anti-terror bill on 3rd and final reading Wednesday night, June 3. Because the House and Senate versions are similar, it no longer needs to pass through the bicameral committee, and can instead be immediately sent to Malacañang for President Rodrigo Duterte's signature.
The Supreme Court in 2013 junked a petition questioning the constitutionality of the 2007 human security act, partly because the Court said that the possibility of abuse was merely speculative, thus ruling that a facial challenge was not allowed.
Carpio said the 2020 anti-terror bill's new provisions are different in that facial challenge is now allowed.
Carpio cited Section 29 of the anti-terror bill which authorizes the anti-terror council, made up of unelected executive officials, to order the arrest and detention of suspected terrorists. It means law enforcement no longer needs to hurdle the probable cause of a prosecutor and a judge to arrest and detain a suspect.
A similar provision existed in the 2007 human security act – Section 18 – which petitioners led by now Presidential Spokesperson Harry Roque also challenged before the Supreme Court for violations of due process and universal laws on human and civil rights.
"Neither can it be inferred that the controversy at hand is ripe for adjudication since the possibility of abuse, based on the above-discussed allegations in private respondents’ petition, remain highly-speculative and merely theorized," said the Supreme Court then in a decision penned by Senior Associate Justice Estela Perlas Bernabe, and which Carpio concurred in.
But Carpio said Section 18 of the 2007 human security act and Section 29 of the 2020 anti terror bill are different.
The justice pointed out that in the 2007 human security act, arrest and detention without a court warrant should result "from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act."
"The new Anti-Terror Law does not provide for this limitation. This limitation under the 2007 Human Security Act is akin to the crime being committed in the presence of the police officer, for which warrantless arrests are allowed," said Carpio.
The rules on criminal procedure allow for warrantless arrests under 3 conditions:
Carpio said that in the 2007 human security act, warrantless arrest and detention must be a result of either surveillance – under which the agent would have already caught the suspect committing the alleged crime – or a valid condition for warrantless arrest.
The Supreme Court also denied the petition against the 2007 human security act because Roque and group had no legal standing.
Carpio said facial challenge was also not allowed back then because "there was no provision penalizing freedom of speech in the 2007 Human Security Law."
He also said, "In the 2020 Anti-Terror Law, inciting to terrorism is penalized. So freedom of speech is involved, and thus facial challenge should be allowed."
Section 29 of the 2020 anti terror bill casts a wider net in that warrantless arrests and detention may be done with or without prior surveillance on any person supected of doing terrorism.
In the new law, terrorism now also includes inciting to, planning, training, preparing and facilitating a terror act. These acts were not included in the 2007 human security act.
Under the old law, Section 41 provides that a person tried for terrorism, but who is acquitted, gets to be paid P500,000 for every day that his or her assets were seized, to be charged to the law enforcer.
In an earlier message, Justice Secretary Menardo Guevarra said Section 41 was the reason why complaints and prosecution under the 2007 human security act were "minimal."
The 2020 anti-terror bill deletes that provision.
It also lowers the punishment on erring law enforcers. For example, penalty for unauthorized and malicious surveillance was lowered from a maximum 12 years of jailtime to 10 years at the most. – Rappler.com