Anti-terror law oral arguments: 'No other law punishes our state of mind'

There is no other law that punishes a person's state of mind apart from the feared anti-terror law, human rights lawyer Chel Diokno told the Supreme Court during the long-awaited oral arguments on Tuesday, February 2.

"No other law empowers the State to arrest its people for exercising rights guaranteed by the Constitution, based solely on a law enforcer’s subjective opinion of their state of mind," Diokno said in his opening statement.

Diokno was among the 7 oralists for the petitioners who were interpellated by the justices on Tuesday.

Senior Associate Justice Estela Perlas-Bernabe extended this discussion when she asked Diokno if the contentious Section 4 – which lays down the definitions of terror – was a "novel creation of Congress or if it’s just patterned on or inspired by the existing international instruments."

Diokno said that according to Solicitor General Jose Calida, the anti-terror law's definitions were patterned after the Comprehensive Convention on International Terrorism initially submitted by India.

"However, your honor, when we compared the provisions of that proposed convention with the law itself here, there are significant differences. First, the convention mentions acts that cause death, damage to property, and so forth. It does not include that they’re intended to. In other words, it requires actual death, actual destruction, and so forth," Diokno said.

But Bernabe pointed out that the convention also mentioned the words "act intended to."

The draft comprehensive convention on international terrorism.

Predicate crimes

Diokno explained that the convention, as well as other international resolutions, mentioned the words "criminal acts" or "offense" that have an intent to cause death or serious harm. Diokno was making the point that there must be a proven crime first, before that crime was assessed for its intent.

These are called predicate crimes. In the repealed Human Security Act, there were predicate crimes – or common crimes such as murder or rebellion – that, if committed to sow extraordinary fear, became terrorism.

In the anti-terror law, there are no more predicate crimes, but 5 offenses with the phrase "intended to." 

Bernabe continued a line of questioning that aimed to get Diokno to argue why the Supreme Court should void the law for vagueness, instead of upholding it if "the legislative will is clear."

Diokno reiterated that the law "allows the State to simply presume the existence of intent from the citizen’s acts, even if the acts themselves do not constitute a crime."

"Anyone, therefore, who tweets for people to attend a peaceful rally could be arrested for engaging in acts intended to endanger a person’s life due to the danger of COVID infection," Diokno said. (READ: Cheat sheet: Supreme Court anti-terror law oral arguments)

Bernabe also pointed out that some of the crimes under the anti-terror law may overlap with each other.

"So a single act can now be penalized under Section 6, or facilitation, Section 7, or conspiracy to commit terrorism, and Section 12, or providing material support," Bernabe said.

Diokno agreed, and said "if I may add Section 4 your honor."

Probable cause

Some of the law's contentious powers were designation, surveillance, and preliminary proscription.

Ordinarily, a court could only declare someone a terrorist after a full proscription trial. In the law, a preliminary proscription can happen within only 72 hours without a single hearing.

The law also authorized the Anti-Terror Council, made up of every Cabinet secretary and headed by Executive Secretary Salvador Medialdea, to designate someone a terrorist.

Designation is a distinct power from proscription which is done only after ex parte hearings, or hearings that are kept secret from the subject.

In her interpellation, Associate Justice Rosmari Carandang – the member-in-charge of the case – pointed out that when government wants to put someone under surveillance, it must get authorization from the Court of Appeals (CA).

The CA, Carandang pointed out, would have to find probable cause to issue that authorization, meaning there was a threshold to be exceeded. 

"Are you not comfortable that the Court of Appeals will issue the order on a probable cause?" Carandang asked.

"Not in that sense, your honor, because the Court of Appeals will ask what act was committed that is intended...it's an intention your honor," said former Bayan Muna representative Neri Colmenares.

Asked by Carandang to provide a safe standard, Colmenares said: "For us your honor, Section 4 cannot be cured by a reasonable standard, even an IRR (Implementing Rules and Regulations)."

Tuesday's session ended at 5:30 pm sharp, and will resume 2 pm on February 9. A recap of oral arguments can be read here. – Rappler.com

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 lian.buan@rappler.com or tweet @lianbuan.

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