RECAP: Free speech is core in Day 2 of anti-terror law oral arguments

The issue of free speech was front and center during Day 2 of the oral arguments on the anti-terror law held by the Supreme Court on Tuesday, February 9.

Petitions argued that the anti-terror law would restrict free speech for fear that expressing dissent would make people vulnerable to prosecution under a vague law. The addition of inciting to terrorism as a crime was seen to have a chilling effect on freedom of expression.

Associate Justice Marvic Leonen scrutinized the claim of a "chilling effect" in interpellating University of the Philippines (UP) Constitutional and Political Law Professor John Molo, who represented the petition filed by retired justice Antonio Carpio.

Chilling effect

Leonen's grilling of Molo pursued this main thought: how can there be chilling effect when all of the critics are continuing to voice out their dissent?

Leonen started this line of argument with a coy question of when Carpio stopped advocating for the West Philippine Sea, to which Molo had to ask the justice to repeat – stop or start? Because Carpio didn't stop, Molo said.

"He did not stop? I thought that he was so afraid that he already stopped," Leonen began his grilling.

"When did Professor Jay Batongbacal [Carpio's co-petitioner] stop teaching? He did not. In fact he even went to the frontlines in the UP-DND accord rally, and therefore he was not actually chilled or feared," said Leonen.

Molo responded by saying: "Your honor chilling effect within the concept of constitutional law does not refer to an absolutely chilled population. It refers to that pause in the writer as he composes his words, it is the hesitation inside the mind of the speaker because of a vague and overly broad law. He doesn’t know whether the next word that he will say will be criminal or in this case, mark him as a terrorist."

"Justice Carpio is not afraid, that is true. He will never be afraid. I concede that your honor, but it would be another thing to suggest that there is no pause, there is no hesitation," Molo added.

Leonen said "that doesn’t seem logical."

 "He is not afraid but he is chilled. To me that doesn't seem logical but I am sure you will find a way to explain that in your memoranda," Leonen said, ending his grilling of Molo.

Void for vagueness

Most of the petitions relied on the "void for vagueness" doctrine, saying the law must be struck out for being overbroad. In essence, petitions argued that because of the vague wording, any kind of critical speech could be punished for inciting to terrorism if the government wanted to do so.

Associate Justice Alexander Gesmundo, who would be 4th most senior justice once Chief Justice Diosdado Peralta retires, said "void for vagueness" would not apply.

Gesmundo connected "void for vagueness" with the "right to be informed," saying that the Constitution provides all suspects have the "right to be informed" what he is being accused of. That was why lawyers are always required to explain the charges to their clients. 

In fact, Gesmundo said, if the suspect alleged that the accusation was not clear, he or she can move to quash the charges or even demand a bill of particulars.

"In other words, the "right to be informed" or to notice is given at the time the accused is arraigned. You will not violate this right to be informed because you explained to him. The "void for vagueness" will disappear because the lawyer explained to him," said Gesmundo.

Free Legal Assistance Group (FLAG) chairman Chel Diokno, a veteran in free speech cases, said "void for vagueness" and "right to be informed" were different.

"I believe the "void for vagueness doctrine" is a different concept than the "right to be informed" because [void for vagueness] has 2 different elements – one is fair notice to the citizen, and the 2nd is proper standards for law enforcement. That is not found in the "right to be informed,'" said Diokno.

Simply put – the "right to be informed" is a right to know what you are on trial for, while "void for vagueness" requires that citizens know exactly what acts are being punished, and that law enforcement have clear standards what they will be punishing, in order for people to precisely avoid doing them.

The oral arguments adjourned after 3 hours just like in Day 1. It will resume next Tuesday, February 16, where justices expect to finish interpellation of all petitioners, so Solicitor General Jose Calida can be interpellated that day too.

Calida dropped a bombshell at the start of the oral arguments by saying that Aetas have withdrawn their petition for intervention, but it was defused by the Supreme Court saying they had junked the petition anyway.

It's not clear yet what effect the junking had on the anti-terror law petitions, which was confronted by potential problems in legal standing. The Aetas case, the first known case of anti-terror law, was seen as cure to that problem.

At the end of Day 2, Peralta asked lawyers to refrain from giving interviews to the media about the case. – 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.

image