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Before this Court are 37 separate Petitions for Certiorari and/or Prohibition filed under Rule 65 of the Rules of Court (Rules), all assailing the constitutionality of Republic Act (R.A.) No. 11479 or the "Anti-Terrorism Act of 2020" (ATA).

A Brief Discussion on the History of Terrorism

Terrorism is not a new phenomenon; but clue to the lack of a well-accepted definition, even scholars have encountered difficulty in pinpointing its exact origin.^[1] One of the earliest examples is that of the Jewish Zealots known as the Sicari - a group active during the Roman occupation of the Middle East during the first century.^[2] The Sicari would use short daggers to murder Romans and Greeks in broad daylight and in front of witnesses to send a message to the Roman authorities and the Jews who have pledged their allegiance to them.^[3] From 1090 to 1279, the Hashshashin (The Order of Assassins) killed Persians, Turks, and Syrians in the name of spreading pure Islam.^[4]

The the term "terrorism" emerged from the French Revolution's period of terror known as the regime de la terreur.^[5] During this period, the new government performed a series of massacres and public executions^[6] to intimidate counterrevolutionaries and everyone whom it considered as its enemies.^[7] In other words, terrorism was then viewed as a positive and necessary response to the threats faced by the state.^[8]

By the 19^th century, the general meaning of the term was closer to its contemporary understanding — subversive and illegal activities of the opponents of the ruling class performed in an attempt to change the order.^[9] In 1878, the Narodnaya Volya ("People's Will" or "People's Freedom") was organized for the deliberate and methodical killing of selected victims, most of whom were high-ranking Russian government officials, culminating in the assassination of Tsar Alexander II, more commonly known as Alexander the Liberator.^[10]

In the 20^th century, violence was the motivating factor for many contemporary acts of terrorism which added new methods brought about by the technological and social developments of the time.^[11] The 1930's also introduced a wave of political assassinations which led the League of Nations to prevent and punish terrorism and to establish an international criminal court.^[12]

Fast-forward to the 21^st century, terrorism is now associated with a plethora of acts which may be categorized according to the methods and means used, the goals pursued, and the actors behind them.^[13] On September 11, 2001, militants associated with the Islamic extremist group Al-Qaeda committed a series of hijackings which resulted to the death of almost 3,000 people, injuries to several hundred thousands of people, and billions of dollars in damage.^[14] This incident, more commonly known as "9/11", gave rise to a cohesive global response to intensify the fight against terrorism.^[15] However, despite several bombings,^[16] sieges,^[17] and massacres^[18] worldwide, billions worth of damage in infrastructure, and the immeasurable fear instilled in the hearts of innocent people, there is still no single definition of terrorism which all states agree to.

According to scholarly literature, however, four distinctive characteristics are attributed to contemporary terrorism:

First and foremost, terrorism is violence (or its threat) for political effect. Second, terrorism is a planned, calculated, and indeed systematic act. Third, terrorists are not bound by established rule of warfare or codes of conduct, and fourth, terrorism is designed to have far-reaching psychological repercussions beyond the immediate target or victim.^[19] (Citations omitted)

Even if states and experts cannot agree on the definition of terrorism, one thing is clear: "in the modem world, terrorism is considered the most prevalent and the most dangerous form of endangering the security of both national states and the citizens thereof."^[20]

Terrorism in the Philippines

Filipinos are no strangers to acts of terrorism. According to the Global Terrorism Index of 2020, there have been more than 7,000 deaths due to terrorism in the Asia-Pacific region from 2002 to 2019, and over 3,000 of these have occurred in the country.^[21] Some of these incidents include:^[22]

Event/Location	Year	Killed	Wounded
Rizal Day Bombings	2000	22	100-
General Santos City	2002	13	60-
Zamboanga City	2002	23	100-
Davao International Airport	2003	22	143
Koronadal City	2003	10-	42-
General Santos City	2004	14+	70-
SuperFerry 14 bombing	2004	116-	-
Valentine's Day Bombings in Davao, Makati, and General Santos	2005	8-	147-
Mindanao Bombings	2009	13	91
Basilan Raid	2010	0	26
Davao Night Market Bombing	2016	14	60-
Jolo Cathedral Bombing	2019	23-	109

In 2017, pro-Islamic State of Iraq and al-Sham (ISIS) militants forcibly took over Marawi City and displaced 98 percent of the city's total population and residents from nearby areas.^[23] It was considered the most violent urban terrorist attack in the Philippines' recent history.^[24]

Local extremist groups such as the Abu Sayyaf Group (ASG), the Moro Islamic Liberation Front, and the Jemaah Islamiyah have claimed responsibility for the terrorist acts.^[25] Alarmingly, foreign terrorist groups have also made their presence felt in the country. The ISIS has conducted terrorist operations through several local groups such as the Maute group, the ASG, and the Bangsamoro Islamic Freedom Movement.^[26] The Philippines has also been a constant destination for foreign terrorist fighters from Indonesia, Malaysia, Europe, the Middle East, and North Africa.^[27]

As a response to the growing problem of terrorism, R.A. No. 9372, otherwise known as the "Human Security Act of 2007" (HSA), was enacted, on February 8, 2007. However, despite its passage, the prevalence of terrorism in the country not only persisted but even escalated.

On June 18, 2012, R.A. No. 10168 or the "Terrorism Financing Prevention and Suppression Act of 2012" was signed into law. it was passed pursuant to the United Nations Security Council (UNSC) Resolution No. 1373^[28] and other binding terrorism-related resolutions of the UNSC issued under Chapter VII of the UN Charter. In UNSC No. 1373, member states have agreed to undertake several measures to combat terrorism which include inter alia the following:

(a) Prevent and suppress the financing of terrorist acts;

(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;

(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;

(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons[.]^[29]

As with the HSA, R.A. No. 10168 did little to curb incidences of terrorism. The Court notes that out of almost 200 countries surveyed in the 2020 Global Terrorism Index, the Philippines ranked 10^th worldwide, and remains to be the only country in Southeast Asia to be a part of the top 10.^[30]

Even the onslaught of the COVID-19 pandemic was not enough to prevent the commission of these heinous acts. In August 2020, suicide bombers attacked Jolo, Sulu.^[31] This resulted to the death of at least 14 people and the wounding of 75 others.^[32]

Legislative History and Underpinnings of the ATA

On August 13, 2019, the Senate Committees on National Defense and Security, Peace, Unification and Reconciliation, and Finance jointly conducted a hearing on Senate Bill (SB) Nos. 6, 21, and 640, all of which sought to amend certain provisions of the HSA. On September 30, 2019, the Senate Committees jointly submitted Committee Report No. 9, recommending the approval of SB No. 1083 to substitute SB Nos. 6, 21, and 630.

SB No. 1083 was sponsored at the plenary in the Senate on October 2 and November 5, 2019. This was deliberated upon on the floor on December 17, 2019, January 21, 2020, and January 27, 2020. After amendments, on February 26, 2020, the Senate approved on third and final reading SB No. 1083 entitled "An Act to Prevent, Prohibit, and Penalize Terrorism, thereby Repealing Republic Act No. 9372, otherwise known as the 'Human Security Act of 2007.'"^[33]

On May 29, 2020, the Committees on Public Order and Safety and on National Defense and Security adopted the Senate version of the bill as an amendment to House Bill (HB) No. 6875, entitled "An Act to Prevent, Prohibit, and Penalize Terrorism, thereby Repealing Republic Act No. 9372 Otherwise Known as the 'Human Security Act of 2007.'" On May 30, 2020, the House Committees jointly submitted Committee Report No. 340 to the House of Representatives, recommending the approval, without amendment, of HB No. 6875.^[34]

In a letter dated June 1, 2020, President Rodrigo R. Duterte certified the necessity for the immediate enactment of HB No. 6875 "to address the urgent need to strengthen the law on anti-terrorism and effectively contain the menace of terrorist acts for the preservation of national security and the promotion of general welfare."^[35]

On June 2, 2020, HB No. 6875 was sponsored at the plenary for approval on second reading. On the same evening, the plenary approved HB No. 6875 on second reading with no amendments accepted.^[36]

Thereafter, on June 3, 2020, HB No. 6875^[37] passed the third reading with the House voting 173-31 with 29 abstentions.^[38] The final tally of votes was changed the next day to 168-36, in order to reflect the corrections and retractions of several members.^[39]

On June 9, 2020, the enrolled bill signed by then Speaker of the House Alan Peter Cayetano and Senate President Vicente Sotto III was transmitted to the Office of the President for the President's signature. Consequently, on July 3, 2020, President Duterte signed R.A. No. 11479, otherwise known as the ATA. The legislation was published in the Manila Bulletin and the Official Gazette on July 6, 2020, and took effect on July 22, 2020.

According to the ATA's principal author, Senator Panfilo Lacson, only one person has been convicted and only one group has been outlawed under the HSA due to the several difficulties in implementing this law.^[40] The requirement of a predicate crime and the imposition of the P500,000.00 penalty per day of detention without a warrant, in case of the acquittal of the accused, are only some of the hurdles which law enforcement agencies have faced.^[41]

The shortcomings of the HSA, along with other laws on money laundering, have also been noted by international bodies. One of these bodies is the Asia/Pacific Group (APG) on Money Laundering, an inter-governmental organization composed of 41 member jurisdictions in the Asia-Pacific region, including other groups and observers from outside the region.^[42] The Philippines is one of its founding members.^[43]

The APG is a "non-political and technical body committed to the effective implementation and enforcement of the internationally accepted standards against money laundering, financing of terrorism and proliferation financing set by the Financial Action Task Force (FATF)."^[44] Its members undergo a regular mutual evaluation mechanism which culminates in a report containing the suggested measures which must be undertaken to fight money laundering and its related activities such as terrorism, drug trafficking, and kidnapping.^[45]

In its 2019 Mutual Evaluation Report (MER), the APG noted that the Philippines had several deficiencies in relation to the FATF standards. These will be discussed in detail below. These deficiencies cannot simply be disregarded, because non-compliance with the FATF recommendations result to negative effects, the most significant of which are severe regulations such as discouragement of foreign investment and trading from compliant countries and international organizations.^[46]

Current Developments Relative to the 37 Petitions

As aforementioned, 37 separate Petitions for Certiorari and/or Prohibition have been filed before this Court to challenge the ATA and prevent its implementation.

Petitioners primarily assail the validity of Sections 4 to 12 of the ATA due to their perceived facial vagueness and overbreadth that purportedly repress protected speech.^[47] It is argued further that the unconstitutionality of the definition of terrorism and its variants will leave it with "nothing to sustain its existence."^[48]

Petitioners who initiated the now consolidated challenges on the constitutionality of the ATA come from different sectors of society. Petitioners in the consolidated challenges include inter alia members of party-lists,^[49] former and incumbent members of Congress,^[50] members of socio-civic and non-governmental organizations,^[51] members of Indigenous Peoples' (IPs) groups, Moros,^[52] journalists,^[53] taxpayers, registered voters, members of the Integrated Bar of the Philippines, students, and members of the academe.^[54]

Some of the petitioners in G.R. No. 252904 (Longid v. Anti-Terrorism Council) include members of organizations critical of the government and are impleaded in the petition for proscription which the Department of Justice (DOJ) filed in 2018 pursuant to Section 17 of the HSA docketed as R-MNL-18-00925-CV (Department of Justice v. The Communist Party of the Philippines and the New People's Army a.La Bagong Hukbong Bayan) now pending before the Regional Trial Court (RTC) of Manila.^[55]

Apart from the members of the academe and human rights lawyers who are petitioners in G.R. No. 252736 (Carpio. v. Anti-Terrorism Council), two former members of this Court also initiated this petition, former Senior Associate Justice Antonio T. Carpio (Carpio) and former Associate Justice and Ombudsman Conchita Carpio-Morales (Carpio-Morales).

To demonstrate petitioners' standing and how the enactment of the ATA personally affects them, they argue that petitioner Carpio's impassioned activism and criticism on the perceived inability of the Duterte administration to defend the rights of the Philippines over the West Philippine Sea dispute may expose him to prosecution for Inciting to Commit Terrorism under Section 9. They also claim that petitioner Carpio's words may be misconstrued under Section 4(c) as "extensive interference" with "critical infrastructure" intended to provoke or influence the government to take a particular action.^[56] They also brought to the attention of the Court a now deleted Facebook post of presidential son and House of Representative member Paolo Duterte wherein he accused petitioner Carpio of being one of the personalities behind a destabilization plot.^[57]

It is also averred that petitioner Carpio-Morales is exposed to the risk of being prosecuted under Section 4(c) of the ATA after she initiated a complaint with the International Criminal Court (ICC) against People's Republic of China (PROC) President Xi Jinping that may severely damage diplomatic relations between the Philippines and PROC. In a statement, President Duterte branded petitioner Carpio-Morales a "spokesman of the criminals."^[58]

Petitioners point out that the advocacy efforts of petitioners Carpio and Carpio-Morales have earned the ire of President Duterte who blamed them of any violence that may erupt as a result of the rising tension in Palawan. National Security Adviser (NSA) Hermogenes Esperon (Esperon) also described petitioner Carpio as a warmonger over the West Philippine Sea dispute.^[59]

Meanwhile, in G.R. No. 252767 (Pabillo v. Duterte), petitioners comprise of officials of various religious and church groups including petitioner Rey Claro Cera Casambre (Casambre), who is one of the individuals named in the petition for proscription the DOJ initiated in the RTC of Manila.^[60]

Another petitioner, the Rural Missionaries of the Philippines (RMP) alleges that on December 26, 2019, the Anti-Money Laundering Council (AMLC) caused the freezing of five bank accounts belonging to RMP - Northern Mindanao Sub-Region in Cagayan de Oro City, and RMP in Metro Manila for allegedly being connected to terrorism financing under R.A. No. 10168.^[61] Petitioner RMP also claims that it had been described as Communist Party of the Philippines and the New People's Army (CPP/NPA) fronts, recruiters, and has been accused of providing material support to the CPP/NPA on various instances by officials of the government.^[62]

Petitioner Sisters' Association in Mindanao (SAMIN) also asserts that its members experienced harassment due to their critical stand against the militarization of Moro and Lumad communities. Sr. Emma Cupin, MSM, a member of petitioner SAMIN is now allegedly facing trumped-up charges of robbery-arson and perjury. She was allegedly charged with robbery-arson based on a complaint the military filed in relation to a purported NPA attack on a military detachment. Meanwhile, the perjury case was supposedly initiated by NSA Esperon after RMP and other organizations filed a petition for Writ of Amparo to seek protection from the purported red-tagging, harassments, and other attacks on their members.^[63]

It is also claimed that the United Church of Christ in the Philippines (UCCP) faces credible threat of prosecution due to its support for the rights of IPs, particularly, the Lumads. After the arrival of Lumad evacuees in UCCP Haran, arsonists have allegedly set the tents and the dormitories of the evacuees on fire. Anti-riot police were brought to force evacuees to return to their communities, and the paramilitary group "Almara" has allegedly threatened them with violence.^[64]

On various occasions, the National Task Force to End Local Communist Armed Conflict has allegedly identified some of the religious or church groups, who are petitioners in this case, as established by the CPP/NPA in its social media accounts or during the interviews of its officials.^[65] Petitioners suggest that the foregoing instances demonstrate the credible threat of prosecution they face under the ATA.^[66]

Petitioner General Assembly of Women for Reforms, Integrity, Equality, Leadership and Action, Inc. (GABRIELA), its officers, members, and supporters also aver that they have been targets of human rights violations perpetrated by state forces and are constant targets of red-baiting and red-tagging. Trumped-up charges have allegedly been filed against several members and officers due to their affiliation to the organization.^[67]

Petitioners who are members of the academe also maintain that the ATA will have a destructive chilling effect on academic freedom, an aspect of freedom of expression. According to them, their free thoughts and ideas in open debates and academic discussions on various issues about the government and society will expose them to potential prosecution under the ATA.^[68]

In August 2020, the DOJ commenced the crafting of the implementing rules and regulations (IRR) of R.A. No. 11479. The DOJ approved and released the IRR on October 14, 2020.^[69]

On September 23, 2020, respondent Anti-Terrorism Council (ATC) issued Resolution No. 10^[70] automatically adopting the list of designated terrorists by the UNSC as well as directing the concerned agencies to impose and implement the relevant sanctions measures without delay, from the time of designation made by the UNSC and its relevant Sanctions Committee.^[71] In accordance with Section 36 of the ATA, respondent AMLC was also "directed to issue an ex parte order to freeze without delay any funds and other assets that are owned or controlled, directly or indirectly, including funds and assets derived or generated therefrom, by the designated individuals, groups, undertakings, entities included in the aforementioned UN Consolidated List."

On December 9, 2020, the ATC issued Resolution Nos. 12^[72] and 13^[73] designating as terrorists the CPP/NPA, and 16 organizations associated with the Islamic State and "other Daesh-affiliated groups in the Philippines."^[74] Following the issuance of these resolutions, the AMLC issued Sanctions Freeze Orders against the CPP/NPA^[75] and the Daesh-affiliated groups.^[76]

On February 24, 2021, the ATC issued Resolution No. 16^[77] wherein 10 individuals were designated as terrorists for their alleged membership in extremist groups designated under ATC Resolution No. 13 "based on verified and validated information obtained and consolidated by the National Intelligence Commiitee"(NICA).^[78]

On April 21, 2021, the ATC issued Resolution No. 17^[79] designating 19 individuals as terrorists due to their alleged ties with the CPP/NPA. Among the individuals designated in said resolution is petitioner Casambre.^[80]

Incidentally, two Aetas, Jasper Gurung and Junior Ramos, were arrested in August 2020. They were the first individuals to be charged for violating Section 4 of the ATA after allegedly firing at the military which led to the death of one soldier in Crim. Case Nos. 2021-1284 to 1288. In an Order^[81] dated July 15, 2021, the RTC of Olongapo granted the Demurrer to Evidence of the accused and ordered the dismissal of the charges on the ground of insufficiency of evidence.^[82]

Issues

The following are the issues identified by the Court in its Revised Advisory dated January 5, 2021 based on a cursory reading of the petitions:

A. Preliminary issues

1. Whether petitioners have legal standing to sue;
   
   
2. Whether the issues raised in the petitions involve an actual and justiciable controversy;
   
   
3. Whether petitioners' direct resort to the Supreme Court is proper;
   
   
4. Whether facial challenge is proper; and
   
   
5. Whether R.A. No. 11479 should already be declared unconstitutional in its entirety if the Court finds that the definition of terrorism and the powers of the ATC are constitutionally infirm.
   

B. Substantive issues

1. Whether Section 4 defining and penalizing the crime of "terrorism" is void for vagueness or overbroad in violation of the constitutional right to due process, free speech and expression, to be informed of the nature and cause of accusation, and non-detention solely by reason of political beliefs.
   
   
2. Whether Sections 5 to 14 defining and penalizing threats to commit terrorism, planning, training, preparing, and facilitating terrorism, conspiracy, proposal, inciting to terrorism, material support, and other related provisions, are:
   
   
   1. void for vagueness or overbroad in violation of the above-stated constitutional rights, as well as the freedom of religion, association, non-detention solely based on political beliefs, and academic freedom; and
      
      
   2. violative of the prohibition against ex post facto laws and bills of attainder.
      
   
   
3. Whether the uniform penalties for all punishable acts under Sections 4 to 14 violate the constitutional proscription against the imposition of cruel, degrading, or inhuman punishment;
   
   
4. Whether surveillance under Section 16 violates the constitutional rights to due process, against unreasonable searches and seizures, to privacy of communication and correspondence, to freedom of speech and expression, to freedom of religion, and the accused's right to be presumed innocent;
   
   
5. Whether judicial authorization to conduct surveillance under Section 17 violates the constitutional right against unreasonable searches and seizures, and forecloses the remedies under the rules on amparo and habeas data;
   
   
6. Whether the following powers of the ATC are unconstitutional:
   
   
   
   1. power to designate terrorist individuals, groups and organizations under Section 25 for:
      
      
      1. encroaching upon judicial power and the Supreme Court's rule-making power;
          
         
      2. inflicting punishment ex post facto based on the adoption of the UNSC Consolidated List of designated terrorists, and other requests for designation by other jurisdictions or supranational jurisdictions; and
         
         
      3. violating due process and constitutional rights due to the lack of clear parameters for designation, absence of notice and hearing prior to designation, and lack of remedies to contest wrongful designation.
         
      
      
   2. power to approve requests for designation by other jurisdictions or supranational jurisdictions for violating the 1951 Refugee Convention and its 1967 Protocol;
      
      
   3. power to apply for the proscription of terrorist individuals, groups, and organizations under Section 26 for violating due process and constitutional rights;
      
      
   4. power to authorize arrest and detention without judicial warrant based on mere suspicion under Section 29 for violating the separation of powers (executive and judicial), and the constitutional rights to due process, against unreasonable searches and seizures, to bail, to be presumed innocent, and speedy disposition of cases;
      
      
   5. power to adopt security classifications for its records under Section 45 for violating the right to information;
      
      
   6. power to establish and maintain comprehensive database information systems on terrorism, terrorist activities and counterterrorism operations under Section 46(e) for violating the constitutional rights to clue process and privacy of communication and correspondence;
      
      
   7. power to grant monetary rewards and other incentives to informers under Section 46(g) for lack of clear parameters; and
      
      
   8. power to require private entities and individuals to render assistance to the ATC under Section 46(m) for violating the prohibition against involuntary servitude.
      
   
   
7. Whether Section 27 of R.A. No. 11479 on preliminary and permanent orders of proscription violates the prohibition against ex post facto laws and bills of attainder, and unconstitutionally punishes mere membership in an organization;
   
   
8. Whether the detention period under Section 29 of R.A. No. 11479 contravenes the Constitution, the Revised Penal Code (RPC), the Rules of Court, and international obligations against arbitrary detention;
   
   
9. Whether the restriction under Section 34 violates the constitutional rights to travel, against incommunicado detention, to bail and R.A. No. 9745, or the "Anti-Torture Act of 2009;"
   
   
10. Whether Sections 35 and 36, in relation to Section 25, on the AMLC's authority to investigate inquire, and examine bank deposits, and freeze assets, violate the separation of powers (judicial), as well as the constitutional right to due process, and the right against unreasonable searches and seizures;
    
    
11. Whether Section 49 on the extra-territorial application of R.A. No. 11479 violates the freedom of association and the prohibition against ex post facto laws and bills of attainder;
    
    
12. Whether Section 54 on the ATC and DOJ's power to promulgate implementing rules and regulations constitutes an undue delegation of legislative power for failure to meet the completeness and sufficient standard tests;
    
    
13. Whether Section 56 repealing R.A. No. 9372, or the HSA violates the constitutional mandate to compensate victims of torture or similar practices and right to due process;
    
    
14. Whether R.A. No. 11479 violates the IP's and Moros' rights to self-determination and self-governance under the Constitution; and
    
    
15. Whether the House of Representatives gravely abused its discretion by passing HB No. 6875 (consolidated version of the HBs to amend the HSA) in violation of the constitutionally-prescribed procedure.
    

Procedural Issues

Considering the number, variety, and permutation of the issues raised in the 37 petitions which cover almost every conceivable and supposed constitutional violation of the enactment and enforcement of the ATA, some of which are mere hypothetical/theoretical suppositions, the Court finds it necessary and essential to dwell, first and foremost, on the attendant procedural issues upon which respondents are seeking its dismissal, in order to properly frame the substantive issues and to rightly resolve the merits of this case.

Without meaning to pre-empt the full and detailed discussion below, the Court gives the petitions clue course only in part. In reaching this conclusion, the Court has examined the interplay between the procedural issues, beginning with the doctrines on judicial review.
 

The Court takes cognizance of this case under its expanded judicial power.

Under Section 1, Article VIII of the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual controversies involving rights which are legally demandable and enforceable", but also "to determine whether or not there has been grave abuse of discretion amounting to lack of excess of jurisdiction on the part of any branch or instrumentality of the Government," to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The characterization of judicial power in the second paragraph of Section 1 speaks of two essential components, and the first is what is now called the traditional scope of judicial power. This traditional concept of judicial power has existed since the Court was established.^[83]

The 1987 Constitution, however, expanded the concept of judicial power. The development of the expanded scope of judicial power under the 1987 Constitution arose from the use and abuse of the political question doctrine during the Martial Law era under former President Ferdinand E. Marcos. In Kilusang Mayo Uno v. Aquino,^[84] the Court reproduced Chief Justice Roberto Concepcion's explanation on the provision before the Constitutional Commission, viz.:

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political question and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime.

x x x x

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.^[85] (Emphasis and citations omitted)

The Court finds that this case mainly calls for the exercise of the Court's expanded judicial power. This is because the primordial issue animating the 37 petitions is the constitutionality of the ATA, a legislative (and not a judicial/quasi-judicial) act. Moreover, these 37 petitions undoubtedly ascribe grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress in enacting a law that violates fundamental rights.

The Court notes in this regard that petitioners, in seeking to check the grave abuse of discretion of the Congress in enacting the ATA, argue that the constitutional concerns raised by the ATA deserve a proactive judicial response. Relevantly, in Imbong v. Ochoa,^[86] this Court had said:

x x x [U]nlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.^[87]

Respondents on the other hand seek the dismissal of the 37 petitions, inter alia, on the ground that the propriety of the ATA's enactment is a political question that is beyond judicial scrutiny.^[88] Citing Drilon v. Garcia,^[89] the OSG argues that this Court must respect what motivated Congress to enact the ATA and how it wished to accomplish such intention.^[90] In Tañada v. Cuenco^[91] this Court said:

x x x [T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum x x x, it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.^[92]

The Court disagrees with the OSG. In the landmark case Tañada v. Angara,^[93] the Court held that:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld." Once a "controversy as to the application or interpretation of a constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide."

(Article VIII, Section 1) emphasizes the judicial department's duty and power to strike down grave abuse of discretion on the part of any branch or instrumentality of government including Congress. It is an innovation in our political law. As explained by former Chief Justice Roberto Conception, "the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government.^[94] (Citations omitted; emphases supplied)

The political question doctrine, then, cannot be raised by the government as a defense against the constitutional challenges to the ATA. This is in light of the Court's expanded power of judicial review, and more so because the question as to whether any part or instrumentality of the government had authority or had abused its authority to the extent of lacking jurisdiction or exceeding jurisdiction is not a political question.^[95] This is besides the fact that petitioners have complied with the requisites which call for the Court to exercise its power of judicial review, whether under the traditional or under the expanded sense.
 

Petitioners' compliance with the requisites for judicial inquiry

When the issue of the unconstitutionality of a legislative act is raised, it is an established doctrine that the Court may exercise its power of judicial review if the following requisites are present:

(1)	An actual and appropriate case and controversy exists;
(2)	A personal and substantial interest of the party raising the constitutional question;
(3)	The exercise of judicial review is pleaded at the earliest opportunity; and
(4)	The constitutional question raised is the very lis mota of the case.[96]

Actual Case or Controversy

The first requisite of actual case or controversy is complied with when the matter before the court involves a "conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution."^[97] In Falcis III v. Civil Registrar General,^[98] it was explained that the Court does not generally act on petitions which merely allege that the assailed law is unconstitutional:

It is not enough that laws or regulations have been passed or are in effect when their constitutionality is questioned. The judiciary interprets and applies the law. "It does not formulate public policy, which is the province of the legislative and executive branches of government." Thus, it does not - by the mere existence of a law or regulation - embark on an exercise that may render laws or regulations inefficacious. Lest the exercise of its power amount to a ruling on the wisdom of the policy imposed by Congress on the subject matter of the law, the judiciary does not arrogate unto itself the rule-making prerogative by a swift determination that a rule ought not exist. There must be an actual case, "a contrast of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence."^[99] (Citations omitted)

An actual case or controversy exists when there is a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.^[100] The issues presented must be definite and concrete, touching on the legal relations of parties having adverse interests.^[101] There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.^[102] Corollary thereto, the case must not be moot or academic, or based on extra-legal or other similar considerations not cognizable by a court of justice.^[103] All these are in line with the well-settled rule that this Court does not issue advisory opinions,^[104] nor does it resolve mere academic questions, abstract quandaries, hypothetical or feigned problems, or mental exercises, no matter how challenging or interesting they may be.^[105] Instead, case law requires that there is ample showing of prima facie grave abuse of discretion in the assailed governmental act in the context of actual, not merely theoretical, facts.^[106]

Closely linked to this requirement is that the question must be ripe for adjudication.^[107] A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.^[108]

Petitioners argue that the present petitions involve an actual and justiciable controversy as the ATA and its IRR are already being enforced amidst serious allegations of unconstitutionality. They invoke the doctrine of expanded judicial review to convince this Court that an actual and justiciable controversy exists.^[109]

In contrast, respondents allege that at the time the petitions were filed, the IRR of the ATA was not yet issued, nor has the government done any act in furtherance of the law. Moreover, the OSG states that mere theories and possibilities of abuse do not constitute a conflict of legal rights. They argue that petitioners failed to present a prima facie grave abuse of discretion and that the burden is not satisfied by the mere assertion that the law is unconstitutional since all laws are presumed to be valid. Lastly, they assert that the case is not yet ripe for adjudication since the government has yet to do any act which constitutes an immediate threat to petitioners' rights.

The Court agrees with petitioners that the requisite of an actual case or controversy has been complied at least with respect to certain issues falling within the purview of the delimited facial analysis framework as will be herein discussed. This is because the consolidated petitions, in challenging the ATA, have sufficiently raised concerns regarding the freedom of speech, expression, and its cognate rights. As such, the petitions present a permissible facial challenge on the ATA in the context of the freedom of speech and its cognate rights - and it is only on these bases that the Court will rule upon the constitutionality of the law. Further, with respect to certain provisions of the ATA, petitioners have sufficiently shown that there is a credible and imminent threat of injury, as they may be subjected to the potential destructive consequences of designation as well as possible detention and prosecution. In fact, the Court is mindful that several of the petitioners have already come under the operation of the ATA as they have been designated as terrorists.

Locus Standi

The second requisite of personal and substantial interest concerns legal standing. Legal standing or locus standi is the "right of appearance in a court of justice on a given question."^[110] The concept of locus standi calls for more than just a generalized grievance. It requires a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act being challenged.^[111] The test is whether a party alleges such personal stake in the outcome of the controversy as to "assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."^[112] Thus, as a general rule, a party is not permitted to raise a matter in which he has no personal interest.

Where the party challenges the constitutionality of a law, he or she must not only show that the law is invalid, but that he has sustained or is in immediate or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way. He or she must show that he or she has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he or she is about to be subjected to some burdens or penalties by reason of the statute complained of.^[113] This rule is what governs when the constitutionality of a statute is questioned by a party who must, at the very least, show a credible threat of prosecution under the penal statute assailed.

Here, petitioners are suing before this Court as concerned Filipino citizens, members of the Philippine Bar, members of Congress, taxpayers, and victims of terrorist-tagging by State forces, who are under a credible threat of prosecution under the ATA. They also allege that their standing is satisfied due to the transcendental importance of the matters involved in this case and the serious threat the law poses on their sacred constitutional rights.^[114] They maintain that injury to the individual is not the sole basis for the grant or recognition of standing before the Court as injury to a public right is also a sufficient basis.^[115] Lastly, they argue that they are mounting a facial challenge on the grounds of void-for-vagueness and overbreadth, which allow third-party standing.

On the other hand, respondents allege that petitioners have no legal standing because they lack direct, substantial, and personal interest in this case.^[116] The OSG points out that merely alleging motherhood statements such as "transcendental importance" or the violation of their constitutional rights are insufficient since petitioners fail to show any specific injury or suffering which have been brought about by the law.^[117]

Former Chief Justice Reynato S. Puno, who was appointed by the Court as amicus curiae in this case, emphasized the necessity of exempting the present petitions from the strict application of the rule on standing, explaining that:

The ruling case law is that petitioners who assail a law as void on the basis of its vagueness and overbreadth are exempted from the strict rule on standing. A law that is vague and overly broad is considered as an immense evil and destructive of fundamental rights in a democratic regime, it ought to be struck down at the earliest opportunity by anyone in the body politic. It is a threat not just to one but it is a threat to all and anyone can represent all in excising it out from our statute book.^[118] (Emphasis supplied)

The Court adopts the view of Former Chief Justice Reynato S. Puno, which finds support in the following pronouncement in Southern Hemisphere v. Anti-Terrorism Council^[119] (Southern Hemisphere):

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.^[120] (Emphasis and underscoring supplied)

In an attempt to undermine petitioners' legal standing, the OSG cites Southern Hemisphere^[121] where the Court dismissed the petitions challenging the constitutionality of the HSA - the predecessor of the ATA - on the ground that petitioners lacked legal standing, among others.^[122] This Court, speaking through the ponencia of former Associate Justice Carpio-Morales, held that petitioners in that case were unable to show that they have suffered some actual or threatened injury because no case has been filed against them.^[123] The Court also pointed out that there were other parties not before It with direct and specific interests, e.g., the first case of proscription filed against the Abu Sayyaf group.^[124] The OSG now prays that the present petitions be dismissed on the same ground.

The Court is not impressed.

As had already been pointed out earlier in this discussion, petitioner Casambre in G.R. No. 252767 is among the 19 individuals designated as terrorists under ATC Resolution No. 17 due to his purported ties to the CPP/NPA. In addition, petitioner RMP in G.R. No. 252767 reported that its bank accounts had been frozen upon orders from the AMLC for allegedly being used to finance terrorism.^[125]

It also did not escape the Court's attention that on May 12, 2021, respondent NSA Esperon labelled CPP Founding Chairperson Jose Maria Sison as the "number 1 red-tagger" and played an unverified and unauthenticated video where Jose Maria Sison purportedly enumerated organizations supporting armed rebellion. Thereafter, respondent NSA Esperon alleged that the International League of Peoples' Struggle, a formation of international solidarity with links to the CPP, met in Hongkong in 2020. He added that the meeting was attended by "Anakbayan, [Kilusang Mayo Uno], Bagong Alyansang Makabayan, GABRIELA, and several others,"^[126] and the Court notes that these organizations are among those challenging the ATA.

Considering the application of the contested provisions of the ATA and the threat of the imposition of consequences associated with being a terrorist, several petitioners including inter alia petitioners Carpio, Carpio-Morales, Casambre, RPM, Anakbayan, Kilusang Mayo Uno, Bagong Alyansang Makabayan, and GABRIELA have personal interests in the outcome of the consolidated petitions. The Court finds that petitioners have sufficiently alleged the presence of credible threat of injury for being constant targets of "red-tagging" or "truth-tagging." Therefore, they satisfy the requisites of the traditional concept of legal standing.

The above notwithstanding, the Court finds that even if Casambre, RPM, Anakbayan, Kilusang Mayo Uno, Bagong Alyansang Makabayan, and GABRIELA had not come under the actual operation of the ATA, there would still have been no legal standing impediments to grant due course to the petitions because they present actual facts that also partake of a facial challenge in the context of free speech and its cognate rights. It is clear that unlike Southern Hemisphere, the ATA presents a freedom of expression issue, and on this point, the pronouncement in Disini v. Secretary of Justice^[127] (Disini) is now the prevailing authority:

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground - absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.

A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. The rationale for this exception is to counter the "chilling effect" on protected speech that conies from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.^[128] (Emphases supplied)

Besides, petitioners may be treated as non-traditional suitors who may bring suit in representation of parties not before the Court. In Funa v. Villar,^[129] the rule on non-traditional suitors as recognized in David v. Macapagal-Arroyo^[130] was summarized. The legal standing of the following individuals is recognized when specific requirements have been met:

(1)	For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;
(2)	For voters, there must be a showing of obvious interest in the validity of the election law in question;
(3)	For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled at the earliest time; and
(4)	For legislators, there must be a claim that the official action complained of infringes their prerogatives as legislators.[131]

From the foregoing characterizations of the rule on locus standi, it is settled that legal standing is a procedural technicality which this Court may choose to waive or relax in cases involving transcendental importance to allow individuals or groups to sue even though they may not have been personally injured by the operation of the law.^[132] Indeed, procedural barriers should not be allowed to impede this Court's prerogative in resolving serious legal questions which greatly affect public interest.^[133]

Regardless of the type of non-traditional suitor that they allege to be - legislators, concerned citizens, or taxpayers - all petitioners cry foul over the law's grave and imminent threat to their constitutional rights. They are asking this Court to recognize that the ATA infringes on their rights to due process, free speech, expression, association, and academic freedom, to name a few. These petitions involve matters of transcendental importance and constitutional questions which must be addressed by this Court immediately.

Earliest Opportunity

As to the third requisite of "earliest opportunity," this Court held in Arceta v. Mangrobang^[134] that it does not mean immediately elevating the matter to this Court. Earliest opportunity means that the question of unconstitutionality of the act in question should have been immediately raised in the proceedings in the court below. Since the present constitutional challenge against the statute was directly filed with this Court, the third requisite of judicial review of "earliest opportunity" is complied with because the issue of constitutionality is raised at the first instance.

Lis Mota

The fourth requisite of lis mota means that this Court will not pass upon a question of unconstitutionality, although properly presented, if the case can be disposed of on some other ground.^[135] Thus, petitioners must be able to show that the case cannot be legally resolved unless the constitutional question raised is determined.^[136] The lis mota requirement is based on the rule that every law has in its favor the presumption of constitutionality,^[137] and to justify its nullification, there must be a clear and unequivocal breach of the Constitution and not one that is doubtful, speculative, or argumentative.^[138]

The Court finds that the lis mota requirement is complied with by the very nature of the constitutional challenge raised by petitioners against the ATA which deal squarely with the freedom of speech, expression, and its cognate rights. Evidently, freedom of expression and its cognate rights are legally demandable and enforceable, and any violation or perceived violation by the law that chills or restricts the exercise of such rights inescapably involve questions regarding its constitutionality.

Nevertheless, the Court should dismiss the following petitions: Balay Rehabilitation Center, Inc. v. Duterte, docketed as G.R. No. 253118, and Yerbo v. Offices of the Honorable Senate President and the Honorable Speaker of the House of Representatives (Yerbo), docketed as UDK No. 16663.

The Balay Rehabilitation Center, Inc. petition must be dismissed on the ground of lack of merit, as the arguments raised in questioning the validity of the ATA are hinged on existing laws and not the Constitution. While petitioners did claim that they are at extreme risk of being designated as terrorists and suspected of violating Sections 4 to 13 of the ATA and that many provisions of the ATA violate the fundamental right to due process and equal protection under the Constitution, the context of these arguments are based on their claim that the ATA violates and diminishes the protections under R.A. No. 9344 or the Juvenile Justice and Welfare Act; R.A. No. 9745, or the Anti-Torture Act of 2009; and R.A. No. 10353, or the Anti-Enforced or Involuntary Disappearance Act of 2012, which protections they claim are guaranteed by the Constitution. Further, a careful reading of this petition shows no allegation or claim of a supposed violation of the freedom of speech, expression, or their cognate rights.

Meanwhile, the Yerbo petition should be dismissed for being fundamentally flawed both in form and substance. The Yerbo petition has utterly failed to comply with the requirements of form, whether under Rule 56 or Rule 65 of the Rules, and has not raised any substantial argument that would merit this Court's attention. While the petitioner claims that the ATA uses an overbroad definition of terrorism, he does not discuss his specific reasons why he believes it to be so and does not provide arguments in support thereof, stating merely that this claim was "[a]ccording to Human Rights Watch."^[139] He also included a statement that "[t]he new counterterrorism law could have a horrific impact on basic civil liberties, due process, and the rule of law," but attributes the same to a person named "Phil Robertson"^[140] with no proper reference therefor and similarly, no particular reasons why be thinks this is so. The petitioner would go on to cite statements and declarations of the Human Rights Watch and Phil Robertson two more times, seemingly drawing around these sources as the basis of his petition. The foregoing is indicative of what the petitioner will eventually submit as his "arguments" against the ATA, because after an exceptionally terse discussion on why Section 29 runs afoul of Section 2, Article III of the Constitution, the petitioner merely averred that:

As to his other grounds for seeking the nullity of certain provisions and/or sections of RA No. 11479, herein petitioner adopts the legal arguments and diseussions of his co-petitioners for lack of time since he Avas told by LBC and JRS Express that it takes at least two (2) weeks for his documents/mail matter to reach Metro Manila.^[141] (Emphasis supplied)

To the Court's mind, this explanation, and more so the failure to state any substantial argument by merely adopting those in the other petitions, is simply unacceptable and shows utter disrespect to the Court. Considering that this Court is a court of last resort, it should not waste its time and resources in entertaining petitions containing averments such as the one quoted above.

Hierarchy of Courts, Direct Recourse, and the Doctrine of Transcendental Importance

Relative to the exercise of judicial review, this Court must also delve on the propriety of filing these 37 petitions directly with this Court. Case law has shown that this Court may relax procedural requirements, particularly the rule on standing, on account of transcendental importance — the Court will do the same for this case, as the resolution of its merits is of paramount importance since it immediately affects the fundamental rights of the people. For indeed, when those who challenge the official act are able to craft an issue of transcendental significance to the people, this Court can exercise its sound discretion and take cognizance of the suit in the manner necessary for the just resolution of the case.^[142]

Under Section 5(1) of Article VIII, this Court has original jurisdiction over petitions for certioriari, prohibition, and mandamus. In GIOS-SAMAR v. Department of Transportation and Communications^[143] (GIOS-SAMAR), the Court held that:

The 1987 Constitution and the Rules of Court promulgated, pursuant to its provisions, granted us original jurisdiction over certain cases. In some instances, this jurisdiction is shared with Regional Trial Courts (RTCs) and the Court of Appeals (CA). However, litigants do not have unfettered discretion to invoke the Court's original jurisdiction. The doctrine of hierarchy of courts dictates that, direct recourse to this Court is allowed only to resolve questions of law, notwithstanding the invocation of paramount or transcendental importance of the action. This doctrine is not mere policy, rather, it is a constitutional filtering mechanism designed to enable the Court to focus on the more fundamental and essential tasks assigned to it by the highest law of the land.^[144] (Emphasis and underscoring supplied)

In The Diocese of Bacolod v. Commission on Elections,^[145] the Court enumerated the instances where deviation from the strict application of the doctrine of hierarchy of courts is permitted. These include: (1) when there are genuine issues of constitutionality that must be addressed at the most immediate time; (2) when the issues involved are of transcendental importance; (3) in cases of first impression; (4) when the constitutional issues raised are better decided by the Court; (5) when the exigency or time element presented in the case cannot be ignored; (6) when the petition filed reviews the act of a constitutional organ; (7) when petitioners have no other plain, speedy, and adequate remedy in the ordinary course of law; and (8) when the petition includes questions that are dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy.^[146] Under any of these circumstances, a petitioner may be permitted to seek direct resort to this Court through certiorari and/or prohibition under Rule 65 of the Rules.

In the present petitions, there are serious and compelling reasons justifying direct resort to this Court. Genuine issues involving the constitutionality of the ATA are raised in the petitions which must be immediately addressed. Various constitutional provisions safeguarding the right to free speech and its cognate rights have been invoked in challenging the law. The far-reaching implications, which encompass both present and future generations, if these constitutional issues remain unresolved, warrant the immediate action of this Court. While the intention of the legislature in enacting the ATA is noble and laudable, this Court cannot simply brush aside the perceived threats to fundamental rights that petitioners raised. The necessity of resolving these pressing issues affecting fundamental rights is clear.

To be clear, parties cannot acquire direct audience before this Court by merely invoking the doctrine of transcendental importance if the matter they bring raises issues of fact which require the presentation of evidence. As recounted in GIOS-SAMAR, the term "transcendental importance" was first used in Araneta v. Dinglasan,^[147] a case which involved no dispute as to the facts.^[148] Therefore, there was no impediment for a direct recourse to this Court. In similar cases such as Angara v. Electoral Commission^[149] and Chavez v. Public Estates Authority^[150] (Chavez v. PEA), the Court affirmed that it is when there are no factual questions - or when there are extant factual issues but they are not material to the constitutional issue - that direct recourse to this Court under Section 5, Article VIII of the Constitution may be permitted. Otherwise, the hierarchy of courts must be observed. Thus, in Chavez v. PEA, the Court declared:

The principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional issues of transcendental importance to the public. The Court can resolve this case without determining any factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.^[151] (Emphasis supplied)

Consequently, inasmuch as this Court is not a trier of facts, petitions which purport to be facial challenges but are actually riddled with material questions of fact cannot be ordinarily entertained. A loose invocation of transcendental importance is not sufficient. Thus, in GIOS-SAMAR, the Court ruled that:

x x x [T]he transcendental importance doctrine does not clothe us with the power to tackle factual questions and play the role of a trial court. The only circumstance when we may take cognizance of a case in the first instance, despite the presence of factual issues, is in the exercise of our constitutionally-expressed task to review the sufficiency of the factual basis of the President's proclamation of martial law under Section 18, Article VII of the 1987 Constitution.^[152]

Nevertheless, as will be shown, infra, the consolidated petitions present an actual case or controversy concerning the effects of certain provisions of the ATA on the freedom of expression and its cognate rights. As observed, the Court may take up and facially pass upon those questions of constitutionality with no need to delve into extant factual issues. To that extent, the hierarchy of courts need not be strictly observed, permitting direct recourse to this Court.
 

Facial and As-Applied Challenges in Constitutional Litigation

In constitutional litigation, two modes of challenging the constitutionality of a statute have emerged: "as-applied" and "facial." Petitioners came to this Court through the latter mode, seeking to nullify the entirety of the ATA even before it could be enforced.

In an as-applied challenge, the question before the Court is the constitutionality of a statute's application to a particular set of proven facts as applied to the actual parties. It is one "under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiffs particular circumstances."^[153] Put in another way, the plaintiff argues that "a statute cannot be applied to [him or] her because its application would violate [his or] her personal constitutional rights."^[154] Thus, an as-applied challenge is strictly predicated on proven facts particular to an individual and his or her relation to the statute in question. If the facts so warrant, "case severability" may occur, where the Court "severs" or separates the unconstitutional applications of the statute from the constitutional applications of the same statute,^[155] but the statute itself may not be completely struck down. That said, it is conceivable that a case which starts out as an as-applied change may eventually result in the total invalidation of the statute if, in the process, the Court is satisfied that it could never have any constitutional application.^[156] Meanwhile, a facial challenge seeks the entire invalidation of a statute because, in the words of United States v. Salerno^[157] (Salerno) as cited in Estrada v. Sandiganbayan^[158] (Estrada) "no set of circumstances exists under which the [statute] would be valid."^[159]

Philippine jurisprudence has described a facial challenge as "an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities."^[160] As will be demonstrated, the originally American concepts of "as-applied" and "facial" challenges have not, over time, been understood in Philippine jurisprudence in the same way as in American case law.

Scholars point to the 1912 case of Yazoo & Mississippi Valley Railway Co. v. Jackson Vinegar Co^[161] (Yazoo) as one the earliest cases where the U.S. Supreme Court used an "as-applied" analysis. In this case, the railway company argued that a Mississippi statute "imposing a penalty on common carriers for failure to settle claims for lost or damaged freight in shipment within the state within a reasonable specified period" is unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment. The U.S. Court was not convinced, finding that the statute merely provided a "reasonable incentive for the prompt settlement, without suit, of just demands of a class admitting of special legislative treatment." The railway company had also argued that if the statute was void as to them, then it is void in toto or as to all other possible cases where the statute might apply. The U.S. Supreme Court disagreed, opining as follows:

x x x [T]his Court must deal with the case in hand, and not with imaginary ones. It suffices, therefore, to hold that, as applied to cases like the present, the statute is valid. How the state court may apply it to other cases, whether its general words may be treated as more or less restrained, and how far parts of it may be sustained if others fail, are matters upon which we need not speculate now.^[162] (Emphasis and underscoring supplied)

Thus, in Yazoo, the U.S. Supreme Court reaffirmed the traditional principle on standing that it cannot rule upon the rights of individuals not before it. It can only grant relief to a plaintiff for matters that are of interest to him. The case, therefore, upheld the principle that constitutional rights are generally understood to be "personal and may not be asserted vicariously."^[163]

In the 1940 case of Thornhill v. Alabama,^[164] however, the U.S. court first suggested that the traditional rules on standing might be different in the context of the First Amendment.^[165] In that case, one Byron Thornhill, a union member of the Brown Wood Preserving Company, was on strike and was proven to have told Clarence Simpson, a non-union member, that "they were on strike, and did not want anybody to go up there to work." On said facts, Thornhill was found guilty of a misdemeanor under Section 3448 of the 1923 Alabama State Code, which prohibited "go[ing] near to or loiter[ing] about the premises or place of business of [another] person x x x with the intent of influencing, or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association x x x x." The U.S. Supreme Court reversed Thornhill's conviction and ruled that Section 3448 was facially invalid based on the overbreadth doctrine, viz.:

Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.... [The] threat [of censorship] is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press.... An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him.^[166] (Emphases and underscoring supplied)

Thus, it was in Thornhill that the U.S. Supreme Court implicitly recognized the ramifications of the overbreadth doctrine to standing. This was later emphasized in Broadrick v. Oklahoma,^[167] viz.:

x x x [T]he Court has altered its traditional rules of standing to permit - in the First Amendment area - "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Dombrowski v. Pfister, 380 U. S., at 486. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression. (Emphasis and underscoring supplied)

Therefore, in contrast to an as-applied challenge, a facial challenge permits third-party standing before the court.

Later, in Salerno, it was said that "a facial challenge to a legislative Act is the most difficult challenge to mount successfully, since the challenge must establish that no set of circumstances exists under which the [statute] would be valid."^[168] In Salerno, which this Court cited in Estrada, the question before the U.S. Supreme Court was whether the Bail Reform Act of 1985 may be facially invalidated for violating the Fifth and Eight Amendments of the U.S. Constitution. The U.S. Court said: "[t]he feet that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."^[169]

Since Salerno, U.S. jurisprudence took on a trajectory which this Court has not pursued. In 2015, the U.S. Supreme Court clarified in City of Los Angeles v. Patel^[170] that facial challenges are allowed under the First Amendment,^[171] Second Amendment,^[172] the Due Process Clause of the Fourteenth Amendment,^[173] and the Foreign Commerce Clause.^[174] One scholar notes that a facial invalidation even occurred under the Equal Protection Clause in the 1954 case of Brown v. Board of Education.^[175] Another observes that Separation of Powers may also be a basis,^[176] citing INS v. Chadha^[177] and Clinton v. City of New York.^[178]

In Philippine jurisprudence, however, the Court has consistently adhered to the scope of facial challenges relative only to free speech cases.

One of the earliest instances where this Court applied a "facial" analysis of the constitutionality of a statute was the 1969 case of In The Matter Of Petition For Declaratory Relief Re: Constitutionality Of Republic Act 4880.^[179] At issue were the additions made by R.A. No. 4880 to the Revised Election Code prohibiting early nominations of candidates and limiting the campaign period. Petitioners directly resorted to this Court, arguing that the new sections violated the freedoms of speech, assembly, and association. Although a majority of the Court's members viewed R.A. No. 4880 as overly broad, it was not enough to satisfy the 2/3 majority to strike down the law as required by Section 10, Article VIII of the 1935 Constitution. Still, the ponencia made the important point that facial challenges have been permitted only in freedom of speech cases, citing Thornhill, among others, viz.:

x x x [W]e now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In effect what we are asked to do is to declare the act void on its face, no evidence having been introduced as to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed.^[180] (Emphases and underscoring supplied)

The concept of a "facial challenge" did not appear again until Associate Justice Vicente V. Mendoza applied it in his Separate Opinion in the 2000 case of Cruz v. Secretary of Environment,^[181] in which he said:

The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional, but it might be if applied to others not before the Court whose activities are constitutionally protected. Invalidation of the statute "on its face" rather than "as applied" is permitted in the interest of prevcntiim a "chilling" effect on freedom of expression. x x x^[182] (Emphases and underscoring supplied)

Justice Mendoza reiterated his position in his Concurring Opinion in Estrada. In the main opinion of that case, the Court formally adopted the doctrine that facial challenges are limited only to freedom of expression cases. Since then, Philippine jurisprudence has developed to clarify the scope of a facial challenge, but in all cases, the Court has not deviated from the principle that it is permitted only when freedom of expression and its cognate rights are affected. In Romualdez v. Sandiganbayan,^[183] the Court initially declared that penal statutes cannot be the subject of facial invalidation, viz.:

Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of "actual case and controversy" and permit decisions to be made in a sterile abstract context having no factual concreteness. In Younger v. Harris,^[184] this evil was aptly pointed out by the U.S. Supreme Court in these words:

"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative' remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory, for deciding constitutional questions, whichever way they might be decided."
 
For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a "manifestly strong medicine" to be employed "sparingly and only as a last resort." In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged.^[185] (Emphasis sand underscoring supplied, italics in the original)

The above ruling was then reiterated in Spouses Romualdez v. Commission on Elections,^[186] where it was stressed that in Philippine jurisdiction, the Court has not until that point declared any penal law unconstitutional based on the void-for-vagueness the doctrine, which holds "that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application."^[187] Former Senior Associate Justice Antonio T. Carpio dissented, explaining that the overbreadth and vagueness doctrines are indeed inapplicable to penal statutes for purposes of mounting a facial challenge, but only when such penal statutes do not involve free speech.

The applicability of facial challenges of penal statutes was brought up again in Southern Hemisphere,^[188] where this Court said:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. (Citations omitted; emphasis supplied; underscoring in the original)

However, Justice Carpio's dissent in Spouses Romualdez v. Commission on Elections was adopted by the Court in Disini, where the Court categorically stated that "when a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable." Thus, in Disini, the Court applied a facial analysis in invalidating Section 5 of the Cybercrime Prevention Act based on the void-for-vagueness doctrine, viz.:

A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if lie claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence. x x x

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of nelizcns and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny. (Citations omitted; emphasis and underscoring supplied)

Only a few months alter Disini, the Court said in Imbong that facial challenges may be launched to assail the validity of statutes which concern cognate rights to the freedom of speech, viz.:

In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment. These include religious freedom, freedom of the press, and the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. After all, the fundamental right to religious freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While this Court has withheld the application of facial challenges to strictly penal statues, it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights.^[189] (Emphases and underscoring supplied)

On this score, the inclusion of the phrase "other fundamental rights" has been construed by petitioners as including all other rights in the Constitution. Thus, they suppose that the ATA may be facially challenged for violating, inter alia, due process, the right to be presumed innocent, or the right to bail. However, based on its peculiar context (i.e., assertion of religious freedom), it is highly apparent that the phrase "other fundamental rights", as explained in Imbong, was clearly in reference to freedom of expression and its cognate rights (such as religious freedom) in juxtaposition to "strictly penal statutes".

In sum, the prevailing Philippine jurisprudence is that facial challenges on legislative acts are permissible only if they curtail the freedom of speech and its cognate rights based on overbreadth and the void-for-vagueness doctrine. Facial challenges have not been recognized as applicable to other provisions of the Constitution or the separation of powers. On this point, it is worth repeating that Philippine jurisprudence on facial challenges developed in a different trajectory from the American experience since Salerno. And the Court, at this time, finds it improper to expand the scope of facial challenges to all other constitutional rights, as it is not even material, much more necessary for the just disposition of this already complex case. Moreover, it appears that if such position is adopted at this time, the judiciary will be put in a precarious position where it may be inundated with numerous petitions to invalidate statutes as soon as they come into effect.

Furthermore, as a rule, facial challenges are disfavored. As explained by the U.S. Supreme Court in Washington State Grange v. Washington State Republic Party:^[190]

Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of "premature interpretation of statutes on the basis of factually barebones records."^[191] Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither "anticipate a question of constitutional law in advance of the necessity of deciding it" nor "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."^[192] Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people."^[193] (Citations omitted)

Thus, the Court remains cognizant of the dangers of favoring facial challenges that Washington State Grange identified. A contrary judicial policy may affect the balance which the separation of powers seeks to keep and may effectively turn the Court into a "third chamber of Congress".

Considering the above discussion, the Court grants due course to these consolidated petitions as permissible facial challenges only in relation to the provisions of the ATA which involve and raise chilling effects on freedom of expression and its cognate rights in the context of actual and not mere hypothetical facts. These permissible issues for facial analysis are, as adopted from the Court's Advisory dated January 5, 2021 are:

1. Whether Section defining and penalizing the crime of "terrorism" is void for vagueness or overbroad in violation of the constitutional right to x x x free speech and expression;

2. Whether Section [5, 6, 8, 9, 10, and 12] defining and penalizing threats to commit terrorism, [training terrorism], x x x proposal, inciting to terrorism, [training as material support], are:

a. Void for vagueness or overbroad in violation of the [freedom of speech and expression x x x and freedom of association] x x x^[194]

The Court shall also rule upon the following issues which relate to provisions of the ATA that have a chilling effect on speech in the context of the actual facts presented in this case, viz.:

6. Whether the following powers of the ATC are unconstitutional:

a. Power to designate terrorist individuals, groups and organization under Section 25 x x x

b. Power to approve requests for designation by other jurisdictions or supranational jurisdictions x x x

c. Power to apply for the proscription of terrorist individuals, groups, and organizations under Section 26 x x x

d. Power to authorize arrest and detention without judicial warrant based on mere suspicion under Section 29 x x x

7. Whether Section 28 of R.A. 11479 on preliminary and permanent orders of proscription x x x unconstitutionally punishes mere membership in an organization

8. Whether the detention period under Section 29 of R.A. 11479 contravenes the Constitutional, the Revised Penal Code, the Rules of Court, and international obligations against arbitrary detention;

x x x x

11. Whether Section 49 on the extra-territorial application of R.A. 11479 violates the freedom of association x x x x^[195]

Finally, the Court also finds it prudent to discuss the issue of whether the House of Representatives gravely abused its discretion by passing HB No. 6875 (consolidated version of the house bills to amend the Human Security Act) in violation of the constitutionally-prescribed procedure.^[196]

The Court, in its sound discretion, delimits the issues in these cases accordingly, and hence finds it proper to refrain from adjudicating all other issues that do not relate to the freedom of expression and its cognate rights, or those that are too speculative and raise genuine questions of fact that require the submission of concrete evidence, such as:

2. Whether Sections x x x [7, 13] to 14 defining and penalizing threats to commit terrorism, planning, training, preparing, and facilitating terrorism, conspiracy, proposal, inciting to terrorism, material support, and other related provisions, are:
                                      

   a.	x x x
   b.	violative of the prohibition against ex post facto laws and bills of attainder.

   
   
3. Whether the uniform penalties for all punishable acts under Sections 4 to 14 violate the constitutional proscription against the imposition of cruel, degrading or inhuman punishment;
   

x x x x

5. Whether judicial authorization to conduct surveillance under Section 17 x x x forecloses the remedies under the rules on amparo and habeas data;

6. Whether the following powers of the ATC are unconstitutional:

x x x x
b.	power to approve requests for designation by other jurisdictions or supranational jurisdictions for violating the 1951 Refugee Convention and its 1967 Protocol
x x x x
c.	power to adopt security classifications for its records under Section 45 for violating the right to information;
f.	power to establish and maintain comprehensive database information systems on terrorism, terrorist activities and countcrtcrrorism operations under Section 46 (c) for violating the constitutional rights to due process and privacy of communication and correspondence;
g.	power to grant monetary rewards and other incentives to informers under Section 46 (g) for lack of clear parameters; and
h.	power to require private entities and individuals to render assistance to the ATC under Section 46 (m) for violating the prohibition against involuntary servitude.
x x x x

9. Whether the restriction under Section 34 violates the constitutional rights to travel, against incommunicado detention, to bail and R.A. No. 9745 (Anti-Torture Act of 2009);
   

x x x x

13. Whether Section 56 repealing R.A. No. 9372 (Human Security Act of 2007), violates the constitutional mandate to compensate victims of torture or similar practices and right to due process;
    
    
14. Whether R.A. No. 11479 violates the Indigenous Peoples and Moros' rights to self-determination and self-governance under the Constitution;
    

These shall be resolved in the proper actual case entailing the adjudication of questions of feet and the reception of evidence which the Court is institutionally incapable to perform. The Court must emphasize, however, that this holding, does not, will not, and should not preclude subsequent challenges by individuals or groups who may, in the future, eventually come before this Court once again to assail the constitutionality of the unresolved provisions of the law.^[197]
 

R.A. No. 11479 cannot be declared unconstitutional in its entirety.

Petitioners aver that the essential provisions animating the ATA are impaired by constitutionality which would leave the law without any reason to exist since its legislative purpose can no longer be served.^[198] They suggest that without Section 4, the crimes penalized in Sections 5 to 12 will lose their meaning as they are all dependent on its definition of what constitutes terrorism.^[199] Meanwhile, the OSG claims that because of the separability clause of the ATA, the rest of the provisions will survive.^[200] The separability clause of the ATA states that:

If for any reason any part or provision of this Act is declared unconstitutional or invalid, the other parts or provisions hereof which are not affected thereby shall remain and continue to be in full force and effect.^[201]

This issue is resolved by the fact that the Court does not find the essential provisions of the ATA, particularly the definition of terrorism under Section 4 of the ATA, absolutely unconstitutional, as will be explained in full below.

Section 4 and Related Offenses

Having circumscribed the scope of issues that should be the appropriate subjects for decision in this case due to the nature of the petitions filed against the ATA, the standing of petitioners, and the transcendental significance of the matters raised, the Court now turns to resolve the constitutional challenges involving Section 4, as well as those specific to its related offenses.

Petitioners maintain that Section 4 of the ATA, which defines terrorism as a crime, is void for vagueness and overbreadth. They claim that the provision violates due process for failing to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid, and gives law enforcers unbridled discretion in carrying out its provisions, thereby becoming an arbitrary flexing of the government muscle.^[202] The perceived imprecision in the language of Section 4 is allegedly aggravated by the phrase "regardless of the stage of execution", which they interpret as punishing any kind of action including expressions of thought.^[203]

In particular, petitioners contend that Section 4 (a) is vague as the act is punished so long as there is intent to "cause death or serious bodily injury to any person." This allegedly gives law enforcers free rein to charge people as terrorists by simply claiming that an act was committed with intent to cause death or serious bodily injury regardless of the outcome.^[204]

Petitioners also argue that Section 4 (b) is vague, since "extensive damage or destruction" has no ascertainable standards under the ATA, as well as overbroad, because the same phrase is not limited to physical or material damage. Thus, petitioners insist that Section 4 (b) can penalize legitimate criticism as "terrorism" because it may extensively damage the reputation of the government.^[205]

Section 4 (c) is also being assailed for being vague and overbroad. Petitioners aver that it is vague because the terms "extensive" and "interference" are not defined. Without any objective standard to guide police officers, petitioners maintain that these stale agents will have to rely purely on their own instincts, perceptions, or predilections. The provision also allegedly suffers from overbreadth because the failure to define the parameters of the term "interference" may cover any form of dissent, thereby chilling constitutionally protected speech or assemblies expressing grievances against the government.^[206]

Petitioners similarly interpret Section 4 (d) and (e) as vague and overbroad due to the perceived imprecision of certain phrases such as "of biological, nuclear, radiological or chemical weapons" and "weapons, explosives" and the absence of standards in narrowing the scope of prohibited acts. In addition, Section 4 (e) is also deemed to be overbroad because the phrase "dangerous substances" may cover anything harmful to humans, including lawful substances.^[207]

With regard to the proviso of Section 4, petitioners insist that without a clear definition of the phrases "serious risk to public safety" and "serious physical harm", it gives a presumption that any act that can be characterized with "intent" to cause a certain measure of "risk" or "harm" which constitutes as terrorism. Petitioners interpret the argument of the OSG that the proviso is a matter of defense that the accused has the burden to prove as repugnant to the constitutional presumption of innocence.^[208]

Petitioners further argue that the vagueness of Section 4 cannot be remedied by the IRR as this would constitute an undue delegation of legislative power.^[209] They also submit that the vague formulation of Section 4 cannot be saved by invoking international legal instruments.^[210]

Notably, the overarching issue relative to Section 4 before the Court, as summarized in the Court's Advisory for the oral arguments is whether the challenged provision is void for vagueness and overbroad.
 

Section 4 has two distinct ports - the main part provides the actus reus, the mens rea, and the corresponding imposable penalty for the crime of terrorism, while the second part is the proviso.

Section 4 of the ATA provides:

Section 4. Terrorism. - Subject to Section 49 of this Act, terrorism is committed by any person who, within or outside the Philippines, regardless of the stage of execution:

(a) Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person's life;

(b) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;

(c) Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;

(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological or chemical weapons; and

(e) Release of dangerous substances, or causing fire, floods or explosions

when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety, shall be guilty of committing terrorism and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known as "An Act Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, as amended, otherwise known as the Revised Penal Code": Provided, That, terrorism as defined in this section 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. (Emphasis supplied)

When deconstructed, Section 4 of the ATA consists of two distinct parts: the main part and the proviso.

The main part of Section 4 provides for the actus reus, the mens rea, and corresponding imposable penalty for the crime of terrorism; in this regard, the main part is thus subdivided into three components. The first component enumerates the conduct which consists of the actus reus of terrorism, i.e., Section 4(a) to (e), or the overt acts that constitute the crime. The second component enumerates the purposes or intents of any of the actus reus, i.e., to intimidate the general public or a segment thereof; to create an atmosphere or spread a message of fear; to provoke or influence by intimidation the government or any international organization; to seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety. This is the mens rea component of terrorism, which is inferred from the nature and context of the actus reus. The third component provides the imposable penalty for the crime of terrorism, i.e., life imprisonment without the benefit of parole and the benefits of R.A. No. 10592.^[211]

On the other hand, the proviso, if rephrased into its logical inverse, purports to allow for 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."

On the basis of this deconstruction, it is evident that the main part chiefly pertains to conduct, while the proviso, by clear import of its language and its legislative history, innately affects the exercise of the freedom of speech and expression. Hence, considering the delimitation pursuant to the facial analysis as above explained, the Court's ruling shall focus on (albeit not exclusively relate to) the proviso of Section 4 in light of its chilling effect to petitioners in this case.
 

Tests of Constitutionality in Facial Challenges and Guiding Premises in Statutory Construction in the Analysis of Section 4

It is a long-standing principle in statutory construction that every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution.^[212] The grounds for nullity must be clear and beyond reasonable doubt.^[213] Thus, in passing upon the validity of a law, the Court will afford some deference to the statute and places a heavy burden on the party assailing the law to prove the basis for its invalidity by demonstrating that there is a clear and unequivocal breach of the Constitution, and not one that is speculative or argumentative.^[214]

The Constitution, however, abhors prior restraints on speech.^[215] Thus, a law does not enjoy the presumption of constitutionality if it restrains speech.^[216] Instead, a presumption of unconstitutionality arises. This presumption proceeds from the constitutional command under Section 4, Article III that no law shall be passed abridging free speech, expression, and their cognate rights. And this mandate, in turn, is actualized by the Court through the many iterations of the dictum that said rights are accorded preference or a high place in the constitutional scheme that any alleged infringement manifest in the language of the statute cannot be allowed to pass unnoticed.^[217] In such cases, therefore, it becomes the burden of government to establish the law's constitutionality. Instructive on this rule is the separate opinion of Associate Justice Marvic Mario Victor F. Leonen in Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City:^[218]

Fundamental rights which give rise to Strict Scrutiny include the right of procreation, the right to marry, the right to exercise First Amendment freedoms such as free speech, political expression, press, assembly, and so forth, the right to travel, and the right to vote.

Because Strict Scrutiny involves statutes which cither classifies on the basis of an inherently suspect characteristic or infringes fundamental constitutional rights, the presumption of constitutionality is reversed; that is, such legislation is assumed to be unconstitutional until the government demonstrates otherwise. The government must show that the statute is supported by a compelling governmental interest and the means chosen to accomplish that interest are narrowly tailored.^[219] (Emphases and underscoring supplied)

The Court has thus declared that any restriction to the freedom of speech or expression should be treated as an exemption^[220] - any act that chills or restrains speech is presumed invalid and any act that chills or restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows.^[221]

The Court has usually approached the analysis of whether there is an impermissible restraint on the freedom of speech based on the circumstances of each case and, from there, determined the appropriate test with which to evaluate the government issuance or act that constituted such restraint.^[222] In this regard, it should be noted that in Romualdez v. Sandiganbayan^[223] and Spouses Romualdez v. Commission on Elections,^[224] the Court said that "the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases." Thus, the Court shall endeavor to apply these doctrines in light of the facial challenge on the proviso of Section 4 as petitioners themselves raise.

Under the vagueness doctrine, a law is constitutionally defective when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary Hexing of the Government muscle.^[225]

Closely related to the vagueness doctrine^[226] is the overbreadth doctrine, under which a law may be struck down as unconstitutional if it achieves a governmental purpose by means that are unnecessarily broad and thereby invade the area of protected freedoms.^[227] In Philippine jurisprudence, originally, it had special application only to free-speech cases under non-penal laws.^[228] However, the prevailing doctrine, as espoused in Disini, is that penal statues may be facially challenged under the overbreadth doctrine to counter the "chilling effect" on protected speech that comes from statutes violating free speech because a person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime.^[229] As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.^[230]

Meanwhile, the strict scrutiny standard is a two-part test under which a law or government act passes constitutional muster only if it is: (1) necessary to achieve a compelling State interest; and (2) the least restrictive means to protect such interest or narrowly tailored to accomplish said interest.^[231] Unlike the overbreadth doctrine, it is not limited to free speech cases. It is employed by the courts when the law or government act interferes with other basic liberties guaranteed under the Constitution.^[232] When the freedom of speech is involved, strict scrutiny has been applied when the restraint on speech is content-based, i.e., the restriction is based on the subject matter of the utterance or speech.^[233]

In this relation, a content-based prior restraint on speech is constitutionally permissible if it passes the clear and present danger rule, which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil which the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, "extremely serious and the degree of imminence extremely high."^[234] The latest iteration of the clear and present danger rule is the "Brandenburg test", which the U.S. Supreme Court articulated in the case of Brandenburg v. Ohio,^[235]

explaining that "constitutional guarantees of free speech and tree press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."^[236]

Thus, the Court shall proceed from the foregoing analytical framework, as will be seen below.
 

The main part of Section 4 of the ATA cannot be assailed through a facial challenge.

To recall, the issues raised by petitioners against the main part of Section 4, i.e., that it is void for vagueness, that it is overbroad, or that it fails to meet the strict scrutiny test, assume that what are sought to be punished therein is speech. This assumption is inaccurate.

As had been observed above, the main part of Section 4 chiefly pertains to conduct. It is plain and evident from the language used therein that the enumeration refers to punishable acts, or those pertaining to bodily movements that tend to produce an effect in the external world, and not speech. The acts constitutive of the crime of terrorism under paragraphs (a) to (e) are clearly forms of conduct unrelated to speech, in contradistinction with the enumeration in the proviso, which are forms of speech or expression, or are manifestations thereof.

In light of the foregoing considerations, the perceived vagueness and overbreadth of the main part of Section 4 may be inconsistent with the delimited facial challenge framework as herein discussed. Nonetheless, to guide the bench, bar and public, the Court deems it prudent to clarify some of petitioners' mistaken notions on the same. As shown below, none of petitioners have amply demonstrated, even prima facie, its facial unconstitutionality. Hence, the presumption of constitutionality of said main part - being a primarily non-speech provision - must stand. Proceeding therefrom, it is instructive to first examine the general definition of terrorism.
 

Terrorism, as defined in Section 4 of the ATA, is not impermissibly vague.

The Court must reiterate, for purposes of this discussion, that there is no consensus definition of terrorism in the international community. Even the UN Office on Drugs and Crime (UNODC) notes that the 2011 judgment of the Special Tribunal for Lebanon, which had declared that there exists a customary definition of transnational terrorism, has been widely criticized.^[237] Admittedly, this lack of consensus in the international community has presented challenges in the international effort to stop terrorism.

The absence, however, of an internationally-accepted standard definition of terrorism is of no moment and should not concern the Court. The UNODC itself is aware that under the principle of incorporation, "domestic law will prevail in practice, including for constitutional reasons."^[238] For this reason, the Court has approached the definitional issue primarily from the perspective of Philippine constitutional law and criminal law theory. There will, of course, be a time when international law will come into play with some of the other issues of this case. But for purposes of Section 4 of the ATA, what the Court is confronted with is a question involving Philippine constitutional and criminal law.

That said, the Court does not agree that Section 4 deserves total invalidation due to the perceived vagueness and imprecision of the definition of terrorism as a crime, as provided in the main part of Section 4.

As previously demarcated, the main part of Section 4 has three components; with the first component providing the actus reus, and the second component providing the mens rea. It is from these first two components - the actus reus and the mens rea - as expressed in the main part of Section 4, that the crime of terrorism should be construed.

Thus, in the case of Section 4(a), it should be clarified that the crime proven is not terrorism if all that the prosecution is able to prove is that the accused committed an act intended to cause death, serious bodily injury, or danger to a person's life. Section 4(a) does not punish the very act of intending death, serious bodily injury, or danger to a person's life. Such a reading improperly dissects that portion of Section 4, and reads it in a vacuum; one should not be completely impervious to terrorism's overarching concept which is, essentially, to cause or threaten to cause damage or harm of sufficient magnitude in order to achieve the actor's intended result/purpose, such as to intimidate the general public, create an atmosphere or spread a message of fear, or intimidate or destabilize the government. The same observation rings true for the acts mentioned under Section 4(b) to (e). The Court notes in this regard that neither the text nor the congressional records support petitioners' view as to the lack of clarity and preciseness in the definition of terrorism, as borne out by the following exchanges in the Senate:

Senator Drilon. Mr. President, if we read the provision carefully, the acts enumerated in (A) to (E) would be punished when the purpose of such act, by its nature and context, is to intimidate or put fear except an actual bombing because that would be covered by other sections. It is just the purpose to induce government by force to do or to abstain from doing such an act. Our question here, Mr. President, what is the difference between this and the crime of grave threats under the Revised Penal Code?

Senator Lacson. It is the purpose, Mr. President. A simple crime of grave threats without the purpose of sowing terrorism or committing terroristic acts, iba po iyon. We are always bound by the intent and purpose of the act.

Senator Drilon. In other words, it is a national security issue that makes it an act of terrorism or not?

Senator Lacson. Not necessarily, Mr. President.

Senator Drilon. Yes, but...

Senator Lacson. As we defined it and as the gentleman mentioned earlier, ito iyong Section 4, iyong fundamental. Ito po, "The purpose of such act, by its nature and context, is to intimidate, put in fear, force or induce the government or any international organization, or the public to do or to abstain from doing any act, or seriously destabilize or destroy the fundamental political economic or social structures of the country..."

Senator Drilon. So, just in answer to my question, what distinguishes an ordinary crime of grave threat is the purpose of the offender in committing the crime.

Senator Lacson. That is correct, Mr. President.

Senator Drilon. So that, if it is for the purpose of intimidating, put in fear, force or induce the government or any international organization, or the public to do or abstain from doing an act, that is considered a terrorist act.^[239] (Emphases and underscoring supplied)

In Valenzuela v. People of the Philippines,^[240] the Court has stated that "as a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced", for "without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes."

A textual review of the main part of Section 4 shows that its first and second components provide a clear correlation and a manifest link as to how or when the crime of terrorism is produced. When the two components of the main part of Section 4 are taken together, they create a demonstrably valid and legitimate definition of terrorism that is general enough to adequately address the ever-evolving forms of terrorism, but neither too vague nor too broad as to violate due process or encroach upon the freedom of speech and expression and other fundamental liberties.

Petitioners say much about the supposed vagueness of many of the clauses or phrases in Section 4, such as "regardless of the stage of execution", "endangers a person's life", "extensive damage or destruction", "government or public facility, public place or private property", "extensive interference", "weapons and explosives", or "dangerous substances."^[241] Petitioners ground the vagueness of these words and phrases on the fact that the ATA itself does not define them and consequently, deprives persons of "fair notice that his contemplated conduct is forbidden."^[242] They contend that Section 4 is intentionally ambiguous to allow for operational expediency^[243] and "encourages arbitrary and erratic arrests and convictions."^[244]

The Court, once again, disagrees.

In Romualdez v. Sandiganbayan,^[245] the Court said that "the absence of a statutory definition of a term used in a statute will not render the law 'void for vagueness,' if the meaning can be determined through the judicial function of construction."^[246] Furthermore, in Caltex v. Palomar,^[247] the Court said:

Construction, verily, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, amongst others, by reason of the fact that the given case is not explicitly provided for in the law (Black, Interpretation of Laws, p. 1).^[248] (Emphasis and underscoring supplied)

In Estrada v. Sandiganbayan,^[249] this Court explained that:

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. x x x^[250] (Citations omitted; emphases and underscoring supplied)

Based on the foregoing, a law remains valid if the perceived vague terms used therein can be saved by proper judicial construction. After all, the phraseology/wording of penal laws are generally broad in nature. It is well-settled that penal laws, such as the ATA, inherently have an in terrorem effect which is not reason enough to invalidate such laws. Otherwise, the state may be restricted from preventing or penalizing socially harmful conduct.^[251] Moreover, it is likewise settled that "lawmakers have no positive constitutional or statutory duty to define each and every word in an enactment, as long as the legislative will is clear, or at least, can be gathered from the whole act."^[252] In reminding courts to take extra caution before annulling a law on the ground of vagueness or overbreadth, amicus curiae Former Chief Justice Reynato S. Puno explained that:

This extra cautious approach is a recognition of the principle of separation of power where Congress is given the power to make laws, to set the policy of what is protected and unprotected conduct, a policy that is not interfered by the judiciary unless demonstrated as clearly violative of the tenets of the Constitution. Thus, courts set high barriers before allowing these challenges based on vagueness or overbreadth to succeed. In the words of this Court in David v. Arroyo, (G.R. No. 1713, et seq. May 3, 2006), viz: "... a facial challenge on the ground of overbreadth is the most difficult to challenge to mount successfully, since the challenges must establish that there can be no instance when the assailed law may be valid."^[253] (Emphasis in the original)

To be invalidated, the law must be utterly vague on its face, such that it cannot be clarified by cither a saving clause or by construction.^[254]

In Dans v. People,^[255] as reiterated in Romualdez v. Sandiganbayan, the Court used a simpler test which consists merely of asking the question: "What is the violation?" Anything beyond this, the "how's" and the "why's," are evidentiary matters which the law itself cannot possibly disclose in view of the uniqueness of every case.^[256] Based on these tests, petitioners failed to demonstrate that the same is impermissibly vague. To demonstrate, a person of common intelligence can understand that Section 4(a) punishes an "act intended to cause death, serious physical injury, or danger to another person." He cannot, under the guise of "vagueness", feign ignorance and claim innocence because the law had not specified, in exacting detail, the instances where he might be permitted to kill or seriously endanger another person to intimidate the government. The same goes for all the other acts listed in Section 4(b) to (e) in conjunction with the mens rea components. Ultimately, how these terms will be construed will depend on the facts of a given case. In the absence of such facts, the Court cannot now come up with a formulaic understanding of such terms which could then be indiscriminately applied to future cases. Verily, sufficient leeway should be given to the courts for the conduct of judicial construction in relation to actual cases; and, it is in the context of actual cases that our relatively new jurisprudence on the subject of terrorism should be allowed to evolve.
 

The various general terms in Section 4 are not unconstitutionally vague.

In addition to the discussion above, the Court points out that a limiting construction may be imposed on a statute if it is "readily susceptible" to such a construction, such that the "text or other source of congressional intent identified a clear line that this Court could draw."^[257]

A cursory examination of each of the supposedly general terms in the main part of Section 4 betrays no reasonable or justifiable basis to hold them as unconstitutionally vague. A few points to keep in mind:

Firstly, the Court is not without authority to draw from the various aids to statutory construction, such as the legislative deliberations, to narrowly construe the terms used in the ATA and thus limit their scope of application. For example, the phrase "engages in acts intended to" can be construed by the Court to simply refer to acts that cause or result in the specifically listed or enumerated acts (i.e., death, serious bodily injury, etc.). The phrase "endangers a person's life" in subsection (a), on the other hand, can be construed as a restatement of the contemplated scenarios of "death or serious bodily injury" in the same provision. In parallel, the extensive destruction caused to "government or public facility, public place, or private property," as stated in subsection (b), can be construed as contemplating the same severity of damage as that contemplated in critical infrastructure in subsection (c), and which critical infrastructure is in turn defined under Section 3(a). To mention, examples of terrorist acts in recent history are the Marawi siege and the Jolo bombings in 2019. At this juncture, and without precluding the evolution of jurisprudence through actual cases, it is safe to assume that anything less that fails to meet the standard of sufficient magnitude may not be properly categorized as terrorism as defined under the statute, but rather as mere ordinary crimes. Hence, the terms used in the purposes, such as "intimidation," "public emergency," "seriously undermine public safety," and "atmosphere" of fear, must all be understood in this context.

Secondly, the meaning of the other terms used in the main part of Section 4 can be found in jurisprudence as well as in dictionaries. For example, Black's Law Dictionary defines "bodily injury"^[258] as "any physical or corporeal injury; not necessarily restricted to injury to the trunk or main part of the body as distinguished from the head or limbs; physical injury only; localized abnormal condition of the living body; injury caused by external violence;"^[259] and "public place"^[260] as "a place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighbouring public, among others."^[261] Jurisprudence, on the other hand, defines "public safety"^[262] as that which "involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters,"^[263] while the phrase "political structure"^[264] has been used in jurisprudence^[265] in reference or relating to the government, its structure, and/or its administration.^[266]
 

The phrase "regardless of the stage of execution" is not unconstitutionally vague.

In the same vein, it is further observed that Section 4 penalizes any of the enumerated acts under subsections (a) to (e) regardless of the stage of execution, i.e., attempted, frustrated, and consummated. An attempt to commit or the frustrated commission of any of the enumerated acts may be somehow regarded as inchoate crimes, i.e., crimes that were initiated but not completed, or acts that assist in the commission of another crime.^[267] In foreign cases and legal literature, inchoate crimes are regarded as incomplete offences, but which are deemed to have been committed despite the non-completion of the substantive offense, or the target crime or ultimate offense sought to be achieved, and the non-realization of the intended harm.^[268] They are punished as a preventative measure to curtail the occurrence and incidence of harm, particularly in cases "where there is a substantial likelihood of harm occurring, and where that harm is of a particularly egregious nature."^[269]

Petitioners argue that since Section 4 punishes terrorism regardless of the stage of execution, "the mere thought and inception of an idea in a person is criminalized to be already an act of terrorism".^[270] This argument, however, finds no support in criminal law theory and jurisprudence. No law can punish a man for what he thinks, imagines, or creates in his mind. Mental acts are not punishable even if they would constitute a crime had they been carried out. Mere intention producing no effect can never be a crime.^[271]

Since Section 4(a) to (e) is an enumeration of acts, then the phrase "regardless of the stage of execution" that immediately follows can only refer to "external acts" and specifically, the acts of execution,^[272] such as, for example, Hying airplanes into towers, bombing churches, and taking hostages. To illustrate, the acts referred to in Section 4 (a) are similar to murder under Article 248^[273] or serious illegal detention under Article 267^[274] of the RPC. Section 4 (e), which refers to the unlawful manufacture, sale, acquisition, disposition, importation, or possession of an explosive or incendiary device is similar to the offense punished under Section 3 of Presidential Decree No. 1866,^[275] as amended and destructive arson under Section 2 of Presidential Decree No. 1613.^[276]

The assailed phrase itself is likewise not vague. The three stages of execution - attempted, frustrated, and consummated are defined under Article 6 of the RPC. The Court notes that Article 10 of the same Code provides that it shall have supplementary effect^[277] to special penal laws, such as the ATA. It can be reasonably inferred that Congress, by explicitly referring to "stages of execution", intended for terrorism, whether attempted, frustrated, or consummated, to be punished with life imprisonment without parole and the benefits under R.A. 10592. The legislative intent, therefore, is to treat attempted terrorism just as seriously as consummated terrorism. This is in congruence with the preventative thrust of the ATA and provides legal basis to prosecute and convict actors in failed terrorist plots.
 

The qualifying clause "when the purpose of such act, by its nature and context" is not unconstitutionally vague.

Petitioners cite the case of Groot v. Netherlands,^[278] where the UN Human Rights Committee allegedly held that the similar phrase "the purpose of such act, by its nature and context, is to intimidate the general public" is insufficient to satisfy the principle of legal certainty.^[279] This is a bewildering misquotation of the case, because the UN Human Rights Committee actually decided that Groot's communication was inadmissible and ruled that the interpretation of domestic legislation is essentially a matter for the courts of the State concerned, viz.:

4.3 The author has further claimed to be a victim of a violation of article 15 of the Covenant, because he could not have foreseen that article 140 of the Criminal Code, on the basis of which he was convicted, was applicable to his case by virtue of its imprecision. The Committee refers to its established jurisprudence [Sec, inter alia, the Committee's decision in communication No. 58/1979 (Anna Maroufidou v. Sweden), para. 10.1 (Views adopted on 9 April 1981).] that interpretation of domestic legislation is essentially a matter for the courts and authorities of the State party concerned. Since it does not appear from the information before the Committee that the law in the present case was interpreted and applied arbitrarily or that its application amounted to a denial of justice, the Committee considers that this part of the communication is inadmissible under article 3 of the Optional Protocol.

Petitioners additionally argue that "nature" and "context" is vague because "nature" may mean "inherent character" or "instinct, appetite, desire" or "a spontaneous attitude" or "external world in its entirety"; while "context" means either "the interrelated conditions in which something exists or occurs" or "parts of a discourse".^[280] This is a facetious argument and symptomatic of the mischievous wordplay that some lawyers cunningly exploit. Petitioners forget the maxim noscitur a sociis in statutory construction which has been explained as follows:

x x x [W]here a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be made clear and specific by considering the company of words in which it is founded or with which it is associated. This is because a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, thus, be modified or restricted by the latter. The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all its provisions whenever possible. In short, every meaning to be given to each word or phrase must be ascertained from the context of the body of the statute since a word or phrase in a statute is always used in association with other words or phrases and its meaning may be modified or restricted by the latter.^[281]

Thus, "nature" in Section 4 cannot be reasonably interpreted to mean "instinct, appetite, desire," "a spontaneous attitude," "external world in its entirety," because such definitions would render the word "nature" absurd in connection with the other terms in Section 4. Therefore, "nature," as used in Section 4, can only refer to the inherent character of the act committed. By a similar process of elimination, "context" can only refer to the interrelated conditions in which any of the acts enumerated in Section 4(a) to (e) was committed. These are the standards which law enforcement agencies, the prosecution, and the courts may use in determining whether the purpose of or intent behind any of the acts in Section 4(a) to (e) is to intimidate the public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, etc.
 

Terrorism as defined in the ATA is not overbroad.

Likewise, petitioners' claim of overbreadth on the main part of Section 4 fails to impress. A careful scrutiny of the language of the law shows that it is not overbroad since it fosters a valid State policy to combat terrorism and protect national security and public safety, consistent with international instruments and the anti-terrorism laws of other countries.

The Court notes that the ATA's definition of terrorism under the main part of Section 4 is congruent with the UN's proposed Comprehensive Convention on International Terrorism^[282] which defines terrorism under Article 2(l) as follows:

1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or

(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the present article resulting or likely to result in major economic loss;

when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

The ATA definition is also similar to the definition as provided under Title II, Article 3 of Directive (EU) 2017/541^[283] of the European Union:

1. Member States shall take the necessary measures to ensure that the following intentional acts, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation, are defined as terrorist offences where committed with one of the aims listed in paragraph 2:

(a) attacks upon a person's life which may cause death;

(b) attacks upon the physical integrity of a person;

(c) kidnapping or hostage-taking;

(d) causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;

(e) seizure of aircraft, ships or other means of public or goods transport;

(f) manufacture, possession, acquisition, transport, supply or use of explosives or weapons, including chemical, biological, radiological or nuclear weapons, as well as research into, and development of, chemical, biological, radiological or nuclear weapons;

(g) release of dangerous substances, or causing fires, floods or explosions, the effect of which is to endanger human life;

(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;

(i) illegal system interference, as referred to in Article 4 of Directive 2013/40/EU of the European Parliament and of the Council (1) in cases where Article 9(3) or point (b) or (c) of Article 9(4) of that Directive applies, and illegal data interference, as referred to in Article 5 of that Directive in cases where point (c) of Article 9(4) of that Directive applies;

(j) threatening to commit any of the acts listed in points (a) to (i).

2. The aims referred to in paragraph 1 are:

(a) seriously intimidating a population;

(b) unduly compelling a government or an international organisation to perform or abstain from performing any act;

(c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.^[284] (Emphases supplied)

Noticeable patterns from the different definitions of terrorist acts in other international instruments^[285] equally bear similarities to the definition adopted under Section 4 of the ATA.

Anent anti-terrorism laws of other countries, the Court observed that the United Kingdom's Terrorism Act 2000^[286] defined terrorism as follows:

(1) In this Act "terrorism" means the use or threat of action where -

(a) the action foils within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organization or to intimidate the publie or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious racial or ideological cause.

(2) Action falls within this subsection if it -

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.^[287] (Emphases supplied)

While the 2002 Terrorism (Suppression of Financing) Act of Singapore^[288] provides:

(2) Subject to subsection (3), for the purposes of this Act, "terrorist act" means the use or threat of action -

(a) where the action -

(i) involves serious violence against a person;

(ii) involves serious damage to property;

(iii) endangers a person's life;

(iv) creates a serious risk to the health or the safety of the public or a section of the public;

(v) involves the use of firearms or explosives;

(vi) involves releasing into the environment or any part thereof, or distributing or otherwise exposing the public or any part thereof to -

(A) any dangerous, hazardous, radioactive or harmful substance;

(B) any toxic chemical; or

(C) any microbial or other biological agent, or toxin;

(vii) disrupts, or seriously interferes with, any public computer system or the provision of any service directly related to communications infrastructure, banking and financial services, public utilities, public transportation or public key infrastructure;

(viii) disrupts, or seriously interferes with, the provision of essential emergency services such as the police, civil defence and medical services; or

(ix) involves prejudice to public security or national defence; and

(b) where the use or threat is intended or reasonably regarded as intending to -

(i) influence or compel the Government, any other government, or any international organisation to do or refrain from doing any act; or

(ii) intimidate the public or a section of the public, and includes any action specified in the Second Schedule.

As seen from these instruments, the language employed in Section 4 of the ATA is almost identical to the language used in other jurisdictions. Nonetheless, this does not mean that the definitions nor the standards set by others must be followed by the Congress to the letter. It simply shows that Congress did not formulate the definition of terrorism out of sheer arbitrariness, but out of a desire to be at par with other countries taking the same approach, presumably so that they could also take a more proactive attitude in combating terrorism, especially in light of the well-documented variety of modes, targets, and purposes of attacks that have been described as "terroristic".

The present realities point to the conclusion that terrorism is constantly evolving - a matter emphasized by Associate Justice Rodil V. Zalameda during the interpellations:

ASSOCIATE JUSTICE ZALAMEDA:

Now, Counsel, you are saying that the USA or the Human Security Acy is a better law than the ATA because it states [therein] the predicate crimes to constitute terrorism, am I right? One of the reasons why you think it is a better law?

ATTY. CADIZ:

Yes, your Honor, the predicate crimes are enumerated.

ASSOCIATE JUSTICE ZALAMEDA:
 
But would this not restrict the prosecution and deterrence of terrorism, if you state the predicate crimes?

ATTY. CADIZ:

I don't believe so, Your Honor. But let us put this in a proper context. We all live in an imperfect world, there will be imperfections, we could not guarantee a terror-free country, no country will be able to guarantee that, Your Honor, but in balancing our individual right as stated in the Bill of Rights, Your Honor, I think the Human Security Act is the better law, Your Honor.

ASSOCIATE JUSTICE ZALAMEDA:

But you say that terrorism, the concept of terrorism is continuously evolving. If you state in the law the predicate crimes, how about in the future where a future definition of terrorism may encompass other acts or other crimes?

x x x x

ASSOCIATE JUSTICE ZALAMEDA:

x x x When predicate crimes [are] not encompassed by the Human Security Act because terrorism is continuously evolving, what happens now if there is such act?

ATTY. CADIZ:

Your Honor, I could not, at this point in time, think of any other evolving predicate crime which is not covered by the Human Security Act, Your Honor.^[289] (Emphases supplied)

The Court notes that the general wording of the law is a response to the ever-evolving nature of terrorism. The Court recognizes that Congress cannot be expected to enumerate all specific acts which may be resorted to by terrorists in pursuing their goals. Congress should not be compelled to use overly specific terminologies in defining terrorism when, by the normal political processes, it has perceived that the intended results of terrorist acts greatly vary from one attack to another.

The Congress, in enacting the ATA, now allows the government to take a preventative stance against terrorism. Terrorism laws worldwide were not merely enacted for punishment but mainly for prevention.^[290] Not only is it impossible to predict all the means and methods which terrorists may use to commit their dastardly deeds, but it will also be debilitating on the counter-terrorist operations of the State. The Court is well aware of how terrorists can choose to take children as hostages and to kill them at will^[291] or they can simply disseminate a video of a pilot being burned to death, along with a statement that those who have sided with the United States "will be punished."^[292] Thus, government cannot afford to patiently wait for an act of terror to happen because lives are always at stake. Requiring an exhaustive list of predicate crimes from Congress is impractical because of the wide range of possible terrorist acts. As one scholar puts it:

The advent of terrorist attacks designed to cause mass casualties, with no warning, sometimes involving the use of suicide, and with the threat of chemical, biological, radiological or nuclear weapons means that we can no longer wait until the point of attack before intervening. The threat to the public is simply too great to run that risk...the result of this is that there are occasions when suspected terrorists are arrested at an earlier stage in their planning and preparation than would have been the ease in the past.^[293] (Emphasis supplied)

Without a doubt, the discussions on the history of terrorism and the reasons behind the enactment of anti-terrorism laws worldwide unequivocally show that terrorism greatly threatens the safety and security of the people. "In the modern world, terrorism is considered the most prevalent and the most dangerous form of endangering the security of both national states and the citizens thereof."^[294] This Court cannot turn a blind eye to the grim realities brought about by terrorism. Addressing this complex problem is not only essential for physical safety per se but for the genuine enjoyment of human rights. According to the Office of the United Nations High Commissioner for Human Rights:

Terrorism clearly has a very real and direct impact on human rights, with devastating consequences for the enjoyment of the right to life, liberty and physical integrity of victims. In addition to these individual costs, terrorism can destabilize Governments, undermine civil society, jeopardize peace and security, and threaten social and economic development. All of these also have a real impact on the enjoyment of human rights.

Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of Government. States therefore have an obligation to ensure the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice.^[295] (Emphases supplied)

To reconcile the seemingly competing interests of national security and exercise of human rights, it is important to acknowledge that human rights are not absolute. Under a strict scrutiny lens, national security is a compelling state interest that justifies some necessary, proportionate, and least intrusive restrictions on the exercise and enjoyment of particular liberties. The Court finds that the main part of Section 4 of the ATA adopts the necessary, proportionate, and least restrictive means in its implementation to counter the complex issue of terrorism in the country. Again, the general wording of the law is a response to the ever-evolving nature of terrorism. Congress cannot be expected to enumerate all specific acts which may be resorted to by terrorists in pursuing their goals.

In any event, concerned citizens are not left without a remedy since any perceived vagueness or overbreadth of the terms used in the main part of Section 4 may still be assailed in the appropriate actual cases that may be brought before the courts at the proper time beyond the auspices of this delimited facial challenge. Inasmuch as terrorism is an ever-evolving phenomenon, so too must jurisprudence evolve based on actual cases, not speculative theories or ideas.
 

The "Not Intended" Clause of Section 4's proviso is unconstitutional under the strict scrutiny test, as well as the void for vagueness and overbreadth doctrines.

Section 4's proviso, however, is a different story. It states:

x x x x

Provided, That, terrorism as defined in this section 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.^[296] (Emphasis supplied)

The proviso is a proper subject of a facial analysis, because based on its text, it is a provision that innately affects speech and expression as it directly pertains to "advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights". It has been argued that the proviso may be seen as a safeguard on the freedom of expression to the extent that in order to convict an advocate, dissenter, or protester under Section 4, the State must be able to prove that the advocacy, dissent, protests, and other mass actions 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. Instructive on this point is the exchange between Senator Lacson and his colleagues, viz.:

Senator Drilon: Currently, we see a lot of rallies, protests in Hong Kong. That kind of protests has led to the collapse of the economy of Hong Kong practically. The anti-government protests have gone on for six months and have really harmed the economy. Now, assuming for the sake of argument, that something similar happens here, would that act or the act of the protesters be considered as an act of terrorism because they are compelling the government to do something by force or intimidation?

Senator Lacson: No, Mr. President. It will not be included because the fundamental rights are always respected even in this proposed measure.

Senator Drilon: Yes, but supposed as in Hong Kong, there were instances of violence.

Senator Lacson. But we are always bound by the purpose, Mr. President. To allow them to exercise their fundamental rights, their freedom, even to choose their leaders, to exercise suffrage. If that is the purpose, it does not constitute an act of terrorism, Mr. President...that such acts, no matter how violent, if the purpose is not as enumerated under the proposed measure, then those are not acts of terrorism.

For example, even if there is violence on the streets to call for freeing Senator De Lima, that is not terrorism, Mr. President. That is a legitimate exercise of the freedom to assemble. But they may be punished under the Revised Penal Code.

Senator Drilon: After the MOA-AD was rejected as unconstitutional, there was some violence in Mindanao, and the objective was, very clearly, to press for the passage of the Bangsamoro Basic Law. If this measure was law at that time, would the members of the Bangsamoro be liable for terrorism? The purpose, Mr. President, is to compel the government to enact the Bangsamoro Basic Law.

Senator Lacson: Well, I suppose what they are fighting for is their right to self-determination, Mr. President. So, it may not constitute a terrorist act. x x x

Senator Hontiveros: If, for example, a labor group threatens to strike or to conduct work stoppage, and said strike or work stoppage may be argued by some to result in major economic loss, even destroy the economic structure of the country, could members of this labor group be considered terrorists?

Senator Lacson: Mayroon pong proviso rito na basta legitimate exercise of the freedom of expression or mag-express ng dissent, hindi po kasama rito, hindi mako-cover. Explicitly provided po iyan set Section 4, iyong last paragraph po. Nandiyan.

Senator Hontiveros: What if in the process of strike or work stoppage nagkaroon ng dispersal, nagkaroon ng karahasan?

Senator Lacson. Hindi po kasi, unang-una, hindi naman iyon ang intent. Ang intent ng mga nagprotesta, mga laborers ay mag-strike, mag-express ng kanilang sariling dissent o iyong expression ng kanilang pagprotesta sa puwedeng sabihin na naling mga bad labor practices. So, hindi po papasok dito sa probisyong ito. Malinaw po iyon. x x x (senators talking about the ending proviso of Section 4)

Senator Pimentel: Why was there a need to immediately qualify? Is there a danger or a close relationship between exercise of basic rights and some acts which can be mistaken for as terrorist acts?

Pero nag-aalala lamang ako na immediately after defining terrorist acts, we have to clarify that the exercise of fundamental rights will not be covered. So, mayroon palang danger na mapagkamalan ang exercise of basic rights as a terrorist act kasi sinunod kaagad natin.

Senator Lacson: For clarity and for emphasis, Mr. President, para lamang malinaw, this is one of the safeguards. Kasi if we do not include that proviso, I am sure the gentleman will be interpellating along that line. Bakit kulang? That is why we deemed it wise na i-qualify na lamang natin na hindi kasama iyong legitimate exercise of the freedom of expression, et cetera.

Senator Pimentel: So, in the legitimate exercise of a right, can there be an attack?

Senator Lacson. Yes, Mr. President. Puwedeng mag-erupt.

Senator Lacson. Iyong legitimate exercise of the freedom of expression, et cetera, might result in some violence that could result in destruction of properties or loss of lives, hindi po mako-cover iyon, and that is the reason why we included that proviso or that qualification. Para lamang malinaw, Mr. President.

Senator Pimentel. In that scenario where there is a legitimate exercise of fundamental rights, who made the attack?

Senator Lacson. Those expressing dissent in the exercise of their freedom of expression. Kung mag-result regardless of who initiated, that could be initiated by their act of expressing their freedom of dissent or expression na nag-result sa violence, then they should not be covered under the definition of a terrorist act because, again, babalik na naman tayo sa intent and purpose.

Senator Pimentel: Definitely, ang intent niya is legitimate exercise of fundamental rights. So, we just made it doubly clear, Mr. President. (Emphases and underscoring supplied; italics in the original)

During the Oral Arguments, however, the following exchange transpired:

ASSOCIATE JUSTICE CARANDANG:

The [proviso] of Section 4 states: Terrorism shall not include advocacy, protest, dissent, stoppage of work and so on 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. Does this effectively put the burden of evidence on the accused to prove that the exercise of his rights is legitimate?

ASSISTANT SOLICITOR GENERAL RIGODON:

Yes, Your Honor, because this proviso is a matter of defense, Your Honor. x x x Once the prosecution has established the commission of the acts mentioned in the first paragraph and has also established the purpose, then it is incumbent upon the accused to raise as a defense that he is merely exercising his civil or political rights.^[297] (Emphases and underscoring supplied)

Based on the above, the most contentious portion of the proviso is the clause "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". For purposes of brevity, it is henceforth referred to as the "Not Intended Clause."
 

The "Not Intended Clause" under Void for Vagueness and Overbreadth

The OSG's interpretation of the proviso is consistent with Rule 4.4. of the ATA's IRR and therefore accurately represents the government's official position. The OSG is of the view that under Section 4's proviso, the mens rea behind the speech may be attributed or inferred in the same manner as it can be done with the overt acts of terrorism defined under Section 4(a) to (e). During the Oral Arguments, this was made apparent in the following exchange:

ASSOCIATE JUSTICE CARANDANG:

You know that intent is in the mind, how can you...how can you extract intent from the mind of the person?

ASSISTANT SOLICITOR GENERAL RIGODON:

Perhaps is there is...through the overt act, your Honor. We can perhaps apply by analogy the principles developed by the Supreme Court with respect to the crimes under the Revised Penal Code where the intent was gathered from the overt acts committed by the accused.^[298]

This is an unprecedented view and is practically problematic, especially because the proviso's scope of application is indeed very large and contemplates almost all forms of expression. It may be recalled that in Diocese of Bacolod v. Comelec,^[299] the Court held that:

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes referred to as 'symbolic speech[,]' such that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, the communicative element of the conduct may be sufficient to bring into play the [right to freedom of expression]."^[300]

The proviso also applies to "other similar exercises of civil and political rights," which, under constitutional law jurisprudence, refers not only to those guaranteed under the 1987 Constitution, but also those protected under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights.^[301]

The proviso was supposedly included in Section 4 to safeguard and protect said rights. To the Court's mind, it was enough for Congress to state that terrorism as defined in Section 4 "shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights." However, Congress unnecessarily included the "Not Intended Clause," thereby invading the area of protected freedoms. In fact, the government's official understanding of the "Not Intended Clause" achieves the exact opposite of the proviso's supposedly noble purpose. As rightly pointed out by petitioners, it "shifts the burden" upon the accused "to prove that [his] actions constitute an exercise of civil and political rights,"^[302] contrary to the principle that it is the government that has the burden to prove the unconstitutionality of an utterance or speech.

Admittedly, there are existing laws that penalize certain kinds of speech when communicated with a specific intent, but they are not constitutionally defective because the burden of proving said intent lies with the government. For instance, in libel cases, it is the prosecution who must prove that the speaker had a "malicious" state of mind in publishing the defamatory statement.^[303] The courts, of course, may infer "malicious intent" or "actual malice" based on the defamatory nature of the statement,^[304] but in so doing, the accused is not burdened with proving the lack of such intent. The prosecution's burden is not shifted to the accused. In contrast, the "Not Intended Clause" requires a person accused under Section 4 to prove that his advocacy, protest, dissent, or any other exercise of his civil and political rights was not tainted with intent 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.

More significantly, the "Not Intended Clause" causes serious ambiguity since there are no sufficient parameters that render it capable of judicial construction. To demonstrate this ambiguity, one may dangerously suppose that "intent 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" may be inferred from strong public clamor attendant to protests, mass actions, or other similar exercises of civil and political rights. However, by their very definition, these types of speeches are intended to express disapproval against someone else's proposition or stance on a given issue and corollary to that, to advance one's own proposition^[305] and thus, should not be considered as terrorist conduct. Without any sufficient parameters, people are not guided whether or not their impassioned and zealous propositions or the intense manner of government criticism or disapproval 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. Notably, these types of speech essentially refer to modes of communication by which matters of public interest may be discussed truthfully and brought to the attention of the public. They are vehicles by which the core of civil liberties in a democracy are exercised.

On this score, it is thus important to highlight that, more dangerous than the proviso's post-indictment effects are its pre-indictment effects. Even prior to a court action being filed against the protester or dissenter, the proviso creates confusion as to whether the exercise of civil and political rights might be interpreted by law enforcers as acts of terrorism and on that basis, lead to his incarceration or tagging as a terrorist. Such liberties are abridged if the speaker-before he can even speak-must ready himself with evidence that he has no terroristic intent. This is not acceptable under the Constitution. To this extent, Atty. Jose Manuel Diokno's observations ring true:

No other law makes the exercise of constitutional rights a crime when actuated by a certain intent. 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, x x x By including such exercise in its definition of terrorism, the law puts petitioners [and other speakers] smack in the hot zone of proscribed criminal activity. The sword that the law dangles over their heads is real. The chilling effect on their rights is palpcible.^[306]

As such, the Court agrees with petitioners that the proviso's "Not Intended Clause" is void for vagueness as it has a chilling effect on the average person. Before the protester can speak, he must first guess whether his speech would be interpreted as a terrorist act under Section 4 and whether he might be arrested, indicted, and/or detained for it. They will have to contend whether the few hours they would spend on the streets to redress their grievances against the government is worth the prospect of being indefinitely incarcerated, considering that terrorism under Section 4 would be an unbailable offense as per Section 7, Rule 114 of the Rules on Criminal Procedure.^[307] The danger of the clause is made graver by the fact that by shifting the burden to the accused to explain his intent, it allows for law enforcers to take an "arrest now, explain later" approach in the application of the ATA to protesters and dissenters-only that it must be the latter who does the explaining, which makes it even more insidious. The chilling effect created by the aforesaid vague clause is sharply brought to the fore in this case especially when one considers the ATA's provisions on designation, proscription, and arrest and detention. The vagueness of such provision is likely to result in an arbitrary flexing of the government muscle, which is equally aversive to due process.

In this relation, the Court recognizes that a person's reputation influences his capacity and credibility as a speaker. In the 1912 case of Worcester v. Ocampo,^[308] the Court said:

x x x x

The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of human civilization.

x x x x

A good name is to be chosen rather than great riches, and favor is better than silver or gold.^[309]

An ordinary citizen might forego speaking out against the government if only to avoid being branded as a terrorist by the government. Even when a dissenter has successfully defended himself in court, he may never be fully rid of the stigma of having been once labelled a "terrorist" by his own government. Terrorism is a very serious thing - and one may not be inclined to listen to a person's opinion on matters of public interest solely because he is tagged as a terrorist. A person who has never been charged as a terrorist would be more credible. One can preserve his reputation by strictly and cautiously choosing the words he or she would speak regarding public matters - or to be more certain, by choosing not to say anything at all. But that is precisely what is meant to be "chilled".

Moreover, the vagueness is magnified by the fact that there are also threat, proposal, and inciting to terrorism provisions in the ATA. If speech is to be penalized, then threat, proposal, and inciting are not the proper offenses to cover the punishable speech. Therefore, the "Not Intended Clause" only serves to confuse the safeguarding purpose of Section 4's proviso. To the Court, the same cannot be saved by judicial construction, thus rendering it void for vagueness.

Furthermore, the "Not Intended Clause" renders the proviso overbroad. By virtue of the said clause, Section 4 supposes that speech that is "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" is punishable as terrorism. This abridges free expression, since this kind of speech ought to remain protected for as long as it does not render the commission of terrorism imminent as per the Brandenburg standard, which, as will be explained below, is the proper standard to delimit the prohibited speech provisions, such as inciting to terrorism, proposal, and threat. By plainly punishing speech intended for such purposes, the imminence element of the Brandenburg standard is discounted as a factor and as a result, the expression and its mere intent, without more, is enough to arrest or detain someone for terrorism. This is a clear case of the chilling of speech.
 

The Strict Scrutiny Standard vis-a-vis the Brandenburg Test relative to Inciting to Terrorism, etc.

Under its original formulation in Schenck v. U.S.,^[310] the question under the clear and present danger rule is "whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger rule that they will bring about the substantive evils that Congress has a right to prevent."^[311] It has undergone several permutations since Schenck but the rule was fortified by the U.S. Supreme Court into its current form in Brandenburg v. Ohio^[312] (Brandernurg), which states that:

x x x [T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.^[313]

When quizzed on the proviso of Section 4, which punishes offenders with life imprisonment, the OSG always ended up talking about incitement to terrorism,^[314] which is also punished under Section 9. Notably, the Brandenburg standard, with its more stringent formulation, is more in line with the strict scrutiny standard, which equally applies to facial challenges as per Romualdez. In this light, the government has the burden of demonstrating that the speech being restrained was: (1) directed to inciting or producing imminent lawless action; and (2) is likely to incite or produce such action.

For sure, the freedom of speech is not absolute, but it is fundamentally antithetical to the foundational principles of a democratic society if a statute impresses upon the mind of law enforcers that the purpose of the freedom of speech and the exercise of civil and political rights per se is to incite or produce imminent lawless action and that it is likely to produce such action, as per Brandenburg. Therefore, as will be expounded below, so as to guard against any chilling effects on free speech, the Court clarifies that the provisions on inciting to terrorism (Section 9), as well as any possible speech-related terrorist crimes, such as proposal (Section 8), threat (Section 5), and the like, should only be considered as crimes if the speech satisfies the Brandenburg lest based on its nature and context.
 

The "Not Intended Clause" also fails the strict scrutiny test.

Parallel to vagueness and overbreadth analysis, the strict scrutiny test can additionally be used to determine the validity of the "Not Intended Clause", being a government regulation of speech. Thus, applying this test, the government has the burden of proving that the regulation: (1) is necessary to achieve a compelling State interest; and (2) is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest.

Here, the government has not shown that said clause passes strict scrutiny. While there appears to be a compelling state interest, such as to forestall possible terrorist activities in light of the global efforts to combat terrorism, punishing speech 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" is not the least restrictive means to achieve the same. To the Court, for speech to be penalized it must pass the Brandenburg standard, which the "Not Intended Clause" completely discounts. Furthermore, there are already provisions that subsume such standard, such as the provision on Inciting to Terrorism. Thus, as it stands, the "Not Intended Clause" only blurs the distinction between terroristic conduct and speech, and hence, is not narrowly tailored to subserve the aforesaid State interest.

All told, the "Not Intended Clause" fails the void for vagueness, overbreadth, and strict scrutiny tests, because it curtails, as well as obscures, not only certain kinds of protected speech but the very freedom to speak itself. While Congress is constitutionally empowered to restrict certain forms of speech to prevent or deter terrorism, it must do so in a reasonably clear and non-abusive manner narrowly tailored to achieve that purpose, so as not to sweep unnecessarily and broadly towards the protected freedom of speech.

Considering the foregoing disquisition, it is evident that the "Not Intended Clause" in Section 4's proviso impermissibly restrains freedom of speech or expression. With that in mind, however, the Court need not strike down the entirety of the proviso. It is proper for the Court to excise only so much of a statute as is necessary to save it from unconstitutionality. The Court finds that only the "Not Intended Clause", i.e., "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" needs striking down. What precedes it, the phrase "Provided, That, terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights," is hereby retained because it accurately reflects the legislative intent and affirms the Court's view on this issue. Therefore, the Court strikes down the "Not Intended Clause" as unconstitutional and categorically affirms that all individuals, in accordance with Section 4 of Article III of the 1987 Constitution, are free to protest, dissent, advocate, peaceably assemble to petition the government for redress of grievances, or otherwise exercise their civil and political rights, without fear of being prosecuted as terrorists under the ATA.

In this regard, the Court wishes to convey, as a final point on Section 4, that terrorism is not ordinarily the goal of protests and dissents. Such exercises of the freedom of speech are protected, even if they might induce a condition of unrest or stir people to anger. Incitement aside, intimidating the government or causing public unrest is not unlawful per se if the means taken to cause such intimidation or unrest is through speech, discourse, or "expressive conduct". The foundation of democracy, by design, is a populace that is permitted to influence or intimidate its government with words, even those that induce anger or create dissatisfaction.^[315] Thus, in Chavez v. Gonzales,^[316] one of the amici curiae in this case, the Former Chief Justice Reynato S. Puno said:

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well - if not more - to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. (Emphases and underscoring supplied; citations omitted)

The delimited facial challenge as above-discussed likewise permits this Court to address the challenge against the validity of Sections 5 (Threat to Commit Terrorism), 8 (Proposal to Commit Terrorism), 9 (Inciting to Commit Terrorism) and 12 (Providing Material Support to Terrorists) to the extent that they seek to penalize speech based on their content. Additionally, the Court will address the objections against Section 6 (Planning, Training, Preparing, and Facilitating the Commission of Terrorism) in relation to Section 3(k), as well as Section 10 (Recruitment to and Membership in a Terrorist Organization) in the same vein that they purportedly affect free speech as well as its cognate rights of academic freedom and freedom of association.

At the onset, it is important to reiterate that the Constitution abhors prior restraints on speech.^[317] It has been held time and again that the public expression of ideas may not be prohibited merely because the ideas are themselves unconventional or unacceptable to the majority.^[318] The prohibition against restriction on speech "may well include sometimes unpleasantly sharp attacks on government and public officials"^[319] and extends even to mere abstract teaching x x x of the moral propriety or even moral necessity for a resort to force and violence.^[320] Accordingly, the Constitution will not permit proscription of advocacy except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action pursuant to the Brandenburg standard.^[321]

Also, it bears reiteration that any governmental action that restricts speech comes to this Court carrying a heavy presumption against its constitutionality^[322] pursuant to the constitutional command under Section 4, Article III that no law shall be passed abridging free speech, expression, and their cognate rights. In such situations, and whenever appropriate and necessary for the just disposition of the case, the doctrines of strict scrutiny, overbreadth, and vagueness may be used for testing 'on their faces' statutes encroaching on free speech and its cognate rights.
 

Threat to Commit terrorism, as penalized under Section 5, of the ATA is neither unconstitutionally vague nor overbroad.

Section 5 of the ATA provides:

Section 5. Threat to Commit Terrorism. - Any person who shall threaten to commit any of the acts mentioned in Section 4 hereof shall suffer the penalty of imprisonment of twelve (12) years.

Its counterpart provision in the IRR is found in Rule 4.5 which states that:

There is threat to commit terrorism when an intent to commit terrorism as defined in Section 4 of the Act is communicated by any means to another person or entity under circumstances which indicate the credibility of the threat.

Petitioners argue that Section 5 is constitutionally problematic because it deviates from how "threats" are understood in Philippine case law as in Reyes v. People,^[323] where the Court held that a "threat" refers to "the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect"^[324] and is therefore impermissibly vague and overbroad.

Petitioners' claim is untenable. According to Reyes,^[325] cited by petitioners themselves, a statement becomes a threat when the speaker is successful in making the hearer or recipient believe that the threat would be carried out. Since Reyes, the Court decided other seminal cases discussing the circumstances when a statement becomes a "threat" as contemplated by law. In U.S. v. Paguirigan,^[326] the Court said that a threat made in jest or in the heat of anger, under circumstances which show that the intention to which the threat gave utterance was not persisted in, is only a misdemeanor. While in Caluag v. People,^[327] the Court appreciated the hostile events that occurred preceding the threat, as well as the acts of the accused simultaneous to his utterance.

Based on the foregoing, the Court, pursuant to its duty to interpret the law, appears to have consistently interpreted threat to refer only to those "credible" threat statements, the determination of which shall be based on the circumstances under which the statements were made. Notably, Rule 4.5 of the IRR appears to have adopted the "credible" threat standard when it restricts the application of Section 5 only to communications made "under circumstances which indicate the credibility of the threat" consistent with the foregoing judicial interpretation. For these reasons, the Court finds that Section 5 is not impermissibly vague.

The Court is also not convinced that Section 5 suffers from overbreadth. As already explained, the State, under Section 4, is not permitted to create a prima facie case of terrorism against persons who engage in protests, dissents, advocacies, and other exercises of civil and political rights. Consequently, when a statement is uttered in circumstances that would clearly qualify it as political speech, it cannot be punished as a "threat" under Section 5, as illustrated in U.S. v. Watts^[328] (Watts), which petitioners cite. In Watts, the question was whether the following statements of therein petitioner Watts during a political debate at a small public gathering constituted a "threat" under an American statute:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J (referring to then US President Lyndon B. Johnson).^[329] (Emphasis supplied)

The U.S. Supreme Court ruled that Watts' statement was not a "threat" considering its conditional nature and the context in which it was made, opining that it was "political hyperbole" and a "kind of very crude offensive method of stating political opposition to the President."^[330] Proceeding from the Court's holding with regard to Section 4, an analysis similar to Watts is proper under Section 5 of the ATA, so that even the crudest forms of political speech should be differentiated from true or "credible" threats of terrorism in order to be punishable under Section 5. As thus circumscribed, Section 5 does not appear overbroad.

More significantly, in the interpretation and application of the provisions of Sections 5, the Brandenburg standard, which the Court deems incorporated in its reading, should be applied. Thus, statements or communication can only be penalized as threats when they are: (1) directed to producing imminent terrorism; and (2) is likely to produce such action.

All told, as thus construed and circumscribed, Section 5 does not appear to be impermissibly vague and overbroad so as to chill free speech and its cognate rights.
 

Participating "in the x x x training x x x in the commission of terrorism" under Section 6 is neither unconstitutionally vague nor overbroad.

Section 6 of the ATA provides:

Section 6. Planning, Training, Preparing, and facilitating the Commission of Terrorism. - It shall be unlawful for any person to participate in the planning, training, preparation and facilitation in the commission of terrorism, possessing objects connected with the preparation for the commission of terrorism, or collecting or making documents connected with the preparation of terrorism. Any person found guilty of the provisions of this Act shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592.

"Training" under Sections 6 and 3 (k) of the ATA is argued to implicate academic freedom specifically guaranteed under Section 5 (2), Article XIV of the 1987 Constitution and more broadly guaranteed under Section 4, Article III. In Ateneo de Manila University v. Hon. Capulong,^[331] the Court said:

The essential freedoms subsumed by Justice Felix Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New Hampshire, thus: (1) who may teach; (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted to study. x x x "Academic freedom", the term as it evolved to describe the emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought, speech, expression and the press; in other words, with the right of individuals in university communities, such as professors, researchers and administrators, to investigate, pursue, discuss and, in the immortal words of Socrates, "to follow the argument wherever it may lead," free from internal and external interference or pressure. (Emphasis supplied)

Proceeding from the averments in the petitions, the Court deems that Section 6 is susceptible to a facial challenge insofar as it penalizes "training", which refers to the "giving of instruction or teaching" as provided under Section 3(k). Thus, in accordance with the identified delimited parameters of the present permissible facial challenge, the Court passes upon Section 6 with regard to "training" only and withholds judgment as regards the other punishable acts, i.e., "planning," "preparing," and "facilitating" terrorism.

To expound, for petitioners, "training" in Section 6 is vague or overly broad because even though it is defined under Section 3(k), the term "instruction" is nevertheless undefined. Petitioners in G.R. No. 252580, for example, point out that the ATA curtails the academic freedom of professors who teach Marxism or Thomas Aquinas' philosophy on the justification of war. They fear that under this provision, the study or re-enactment of Dr. Jose Rizal's El Filibusterismo, a work which the Spanish colonial government had considered subversive, might be considered as pretext for the state to arrest teachers and students.^[332]

These arguments fail to impress. Section 3(k) defines training as the "giving of instruction or teaching designed to impart a specific skill in relation to terrorism as defined hereunder, as opposed to general knowledge." Properly construed with this definition, training may be penalized under Section 6 only when: (1) the "training" is with the purpose of committing terrorism; (2) the training is intentionally designed to impart a skill in relation to terrorism; and (3) the skill imparted has specific relation to a projected act of terrorism, not mere general knowledge. Thus, in order to be punishable under Section 6, the transfer of knowledge must be demonstrated to have been done knowingly and willfully with the specific aim of capacitating the trainee to commit an act of terrorism.

Accordingly, the foregoing construction should foreclose any interpretation that would include "skill" as ordinarily and broadly understood, especially considering that the teaching of "general knowledge", as in classroom instruction done for purely academic purposes and in good faith, is expressly excluded from the definition of training under Section 3(k). To the Court's mind, the parameters found in Section 3(k) betrays a legislative intent to put a stop to the knowing and deliberate transfer of specific skills in connection with projected terrorist acts, and not the imparting of knowledge in the general and broad sense.

Of course, it is not appropriate for the Court to describe at this time what "specific skill" is as juxtaposed to "general knowledge". Such a distinction is better made in an actual case with proven facts. What is clear at this time is that an educator or trainer may not be convicted under Section 6 if the State fails to prove that the "training" satisfies the parameters outlined above.

Moreover, in the interpretation and application of the provisions of Sections 6 in relation to training, the Brandenburg standard is deemed incorporated. Thus, teaching or the giving of instructions can only be penalized as training within the ambit of Section 6 when they are: (1) directed to producing imminent terrorism; and (2) is likely to produce such action.

Accordingly, as construed under the lens of Brandenburg, Section 6 in relation to Section 3(k) only pertains to "training" which is directed to produce the commission of terrorism and is likely to produce such action. In Brandenburg, the U.S. Supreme Court said that "the mere abstract teaching x x x of the moral propriety or even moral necessity; for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action."^[333] On this understanding of Section 6, the Court does not find Section 6 impermissibly vague or overbroad so as to violate petitioners' academic freedom.
 

Proposal to Commit Terrorism under Section 8 of the ATA is neither unconstitutionally vague nor overbroad.

Section 8 of the ATA provides:

Section 8. Proposal to Commit Terrorism. - Any person who proposes to commit terrorism as defined in section 4 hereof shall suffer the penalty of imprisonment of twelve (12) years.

The foregoing provision must be read together with the definition provided in Section 3(g) which states:

(g) Proposal to Commit Terrorism is committed when a person who has decided to commit any of the crimes defined and penalized under the provisions of this Act proposes its execution to some other person or persons.

and Rule 4.8 of the IRR which provides:

It shall be unlawful for any person to propose to commit terrorism as defined in Section 4 of the Act.

There is proposal to commit terrorism when a person who decided to commit terrorism as defined in Section 4 of the Act proposes its execution to some other person or persons.

Prosecution for this crime shall not be a bar to prosecution for acts of terrorism defined and penalized under Section 4 of the Act.

Any such person found guilty therefor shall sutler the penalty of imprisonment of twelve (12) years.

Petitioners argue that Section 8 is inconsistent with Section 3(g) because the former penalizes "a person who proposes to commit terrorism as defined in Section 4" only, whereas the latter penalizes "a person who has decided to commit ANY of the crimes defined and penalized under the provisions of this Act [(and thus, not only Section 4)] and proposes its execution to some other person or person." Because Section 3(g) is not only broader than Section 8 but also includes the element of "deciding to commit", petitioners argue that Section 8 is unconstitutionally vague.^[334] They also argue that Section 8 is overly broad because its scope is unclear, and it does not consider the intent of the speaker.^[335]

The Court finds that Section 8 is the controlling provision as it is what actually penalizes the act of proposal. According to Article 8 of the Revised Penal Code (RPC), which has supplementary application to special laws,^[336] conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. In this case, Section 8 penalizes proposal only when the crime being proposed are those that are defined in Section 4. It does not provide for a penalty for proposal of the other acts prohibited under the ATA. This reading also appears to be the official understanding of the government because Rule 4.8 of the IRR refers only to Section 4. Therefore, Section 3(g) should not be construed as expanding the scope of the crime of proposal to all the other provisions of the ATA. A contrary construction is not only unreasonable but would also contradict the statutory rule that all parts of a statute are to be harmonized and reconciled so that effect may be given to each and every part thereof, and that conflicting intention in the same statute are never to be supposed or so regarded, unless forced upon the court by an unambiguous language.^[337]

This notwithstanding, Section 3(g) serves an important purpose in clarifying and delineating the punishable speech covered by Section 8. As outlined above, Section 3 (g) provides that proposal to commit terrorism, as penalized under Section 8, is committed when a person who has decided to commit terrorism "proposes its execution to some other person or persons." Notably, this definition is virtually a copy of the definition of "proposal" in Article 8 of the RPC. Evidently, "deciding to commit" is not superfluous. It is an element which the State must prove in prosecuting cases under Section 8 of the ATA. Without this necessary element, the speech does not equally fall within the Brandenburg standard - that is, that the same is directed to producing imminent lawless action and is likely to produce such action. Thus, without the element of "deciding to commit" in Section 3(g), the concept of "proposal" in Section 8 would indeed be overly broad. Of course, the Court cannot at this time speculate how the element of "deciding to commit" would be proven in any given case. Courts can only apply its proper construction with more detail in the context of an actual case. Nonetheless, for guidance, suffice it to say that the Court does not agree with petitioners that Section 8 is vague and overly broad.
 

Inciting to Commit Terrorism under Section 9 of the ATA is not facially unconstitutional.

Section 9 of the ATA provides:

Section 9. Inciting to Commit Terrorism. - Any person who, without taking any direct part in the commission of terrorism, shall incite others to the execution of any of the acts specified in Section 4 hereof by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end, shall suffer the penalty of imprisonment of twelve (12) years.

In relation thereto, Rule 4.9 of the IRRs states:

Rule 4.9. Inciting to commit terrorism

It shall be unlawful for any person who, without taking any direct part in the commission of terrorism, shall incite others to commit the execution of any of the acts specified as terrorism as defined in Section 4 of the Act.

There is incitement to commit terrorism as defined in Section 4 of the Act when a person who does not take any direct part in the commission of terrorism incites others to the commission of the same in whatever form by means of:

i. speeches;
ii. proclamations;
iii. writings;
iv. emblems;
v. banners; or
vi. other representations;

and the incitement is done under circumstances that show reasonable probability of success in inciting the commission of terrorism.
 
In determining the existence of reasonable probability that speeches, proclamations, writings, emblems, banners or other representations would help ensure success in inciting the commission of terrorism, the following shall be considered:

a. Context

Analysis of the context should place the speech, proclamations, writings, emblems, banners, or other representations within the social and political context prevalent at the time the same was made and/or disseminated;

b. Speaker/actor

The position or status in the society of the speaker or actor should be considered, specifically his or her standing in the context of the audience to whom the speech or act is directed;

c. Intent

What is required is advocacy or intent that others commit terrorism, rather than the mere distribution or circulation of material;

d. Content and form

Content analysis includes the degree to which the speech or act was provocative and direct, as well as the form, style, or nature of arguments deployed in the speech, or the balance struck between the arguments deployed;

e. Extent of the speech or act

This includes such elements as the reach of the speech or act, its public nature, its magnitude, the means of dissemination used and the size of its audience;

f. Causation

Direct causation between the speech or act and the incitement.

Any such person found guilty therefor shall suffer the penalty of imprisonment of twelve (12) years.

Petitioners contend that Section 9 fails to distinguish between legitimate dissent and terrorism which leads to the curtailment of their right to freedom of speech. On the other hand, the OSG insists that Section 9 deals with unprotected speech since it involves advocating imminent lawless action which endangers national security.

The Court rules in favor of the government.

Without doubt, terrorism and communication that can directly and unmistakably lead to or aid terrorist activities raise grave national security concerns that would justify government regulation of speech. The State therefore has the right, nay, the duty, to prevent terrorist acts which may result from incitement. As held in Dennis v. United States,^[338] the impending overthrow of the government by force and violence is certainly a substantial enough interest to limit speech, for if the government cannot protect its very structure from armed attack, it must follow that no subordinate value can be protected:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, Ibis is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish.

Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If the government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required. The argument that there is no need for Government to concern itself, for government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly, an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt x x x We must therefore reject the contention that success or probability of success is the criterion.^[339] (Emphases supplied)

Even Chavez v. Gonzales^[340] - one of the main cases that petitioners rely on to support their claim - recognized that matters concerning national security in relation to the freedom of speech are treated differently.

The international community as well recognizes the need for States .to collectively act to punish incitement to terrorism to prevent terrorists from exploiting technology to support their acts.^[341] In UNSC Resolution 1624 (2005), the UNSC expressed its deep concern that "incitement of terrorist acts x x x poses a serious and growing danger to the enjoyment of human rights, threatens the social and economic development of all States, undermines global stability and prosperity, and must be addressed urgently and proactively by the United Nations and all States."^[342] This shows that the fight against the incitement of terrorist acts has been given importance not only in the country but internationally as well.

Notably, aside from a compelling state interest, the strict scrutiny test, which applies to content-based speech restrictions, requires the necessity and proportionality of the means used to curtail the exercise of free speech rights. Under Section 9 of the ATA, inciting is committed by any person who, without taking any direct part in the commission of terrorism, shall incite others to the execution of the acts specified in Section 4. While the terms "inciting" or "incitement" are not themselves defined in the ATA, reference can be made to the Senate deliberations which shows that Section 9 was intended to operate only within a narrow and confined area of speech where restrictions are permitted, and only within the confines of the intent-purposes parameters of Section 4.^[343]

Senator Lacson: Kapag sinabi nating "inciting" directed against the general public, ito iyong puwedeng mag-lead doon sa pag-commit ng terrorist acts. Pero kung wala namang call to commit violence or to commit terrorist activities or terrorist acts, then hindi nainan po siguro puwedeng masaklaw nitong batas.

Senator Hontiveros: No problem, Mr. President. Paano po nalin susukatin iyong panganib? How do we measure danger? How do we determine when the conduct, lalo na kung indirect conduct, actually causes a danger of such acts being committed?

Senator Lacson: Well, it redounds to the violence that will be created. Babalik na naman tayo roon sa intent at saka iyong purpose noong pag-i-incite to commit terrorist acts, Mr. President.

Senator Lacson: We will be guided by the existing jurisprudence in this regard and there are many, Mr. President. Iyong Chavez vs. Raul Gonzales, marami po ito na puwede natin gawing reference at the proper time.^[344] (Underscoring supplied)

Thus, based on this legislative intent, statements may only be penalized under Section 9 if the speaker clearly intended the hearers to perform any of the punishable acts and for the purposes enumerated under Section 4.

The foregoing legislative characterization of incitement appears to reflect the international understanding of "incitement" as "a direct call to engage in terrorism, with the intention that this will promote terrorism, and in a context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist act occurrine."^[345] It also appears to heed the United Nations Secretary General's recommendation for states to prosecute direct incitement to terrorism only if it "directly encourages the commission of a crime, is intended to result in criminal action, and is likely to result in criminal action" in order for states to comply with the international protection of freedoms of expression.^[346] Moreover, they appear to incorporate the imminence (i.e., directed to inciting imminent lawless action) and likelihood (i.e., likely to incite such action) elements of Brandenburg.

Based on the foregoing construction, the Court thus finds that speech or statements can be penalized as inciting under Section 9 only if they are: (1) direct and explicit - not merely vague, abstract, equivocal - calls to engage in terrorism; (2) made with the intent to promote terrorism; and (3) directly and causally responsible for increasing the actual likelihood of terrorist attacks. To the Court's mind, these parameters have been largely incorporated in the detailed guidelines found in Rule 4.9 of the IRR for the prosecution of incitement under Section 9, thus:

There is incitement to commit terrorism as defined in Section 4 of the Act when a person who does not take any direct part in the commission of terrorism incites others to the commission of the same in whatever form by means of:

i. speeches;
ii. proclamations;
iii. writings;
iv. emblems;
v. banners; or
vi. other representations.

and the incitement is done under circumstances that show reasonable probability of success in inciting the commission of terrorism.

In determining the existence of reasonable probability that speeches, proclamations, writings, emblems, banners, or other representations would help ensure success in inciting the commission of terrorism, the following shall be considered:

a. Context

Analysis of the context should place the speech, proclamations, writings, emblems, banners, or other representations within the social and political context prevalent at the time the same was made and/or disseminated;

b. Speaker/actor

The position or status in the society of the speaker or actor should be considered, specifically his or her standing in the context of the audience to whom the speech or act is directed;

c. Intent

What is required is advocacy or intent that others commit terrorism, rather than the mere distribution or circulation of material;

d. Content and form

Content analysis includes the degree to which the speech or act was provocative and direct, as well as the form, style, or nature of arguments deployed in the speech, or the balance struck between the arguments deployed;

e. Extent of the speech or act

This includes such elements as the reach of the speech or act, its public nature, its magnitude, the means of dissemination used and the size of its audience; and

f. Causation

Direct causation between the speech or act and the incitement.^[347] (Emphases supplied)

These guidelines are conspicuously similar to the Rabat Plan of Action which refers to an internationally-recognized high threshold tor defining restrictions on freedom of expression. The six-part threshold test takes into consideration the following factors: (1) the social and political context, (2) status of the speaker, (3) intent to incite the audience against a target group, (4) content and form of the speech, (5) extent of its dissemination and (6) likelihood of harm, including imminence.^[348]

Together, the foregoing guidelines serve as an effective safeguard which ensures that not all forms of provocation or passionate advocacy or criticism against the Government shall be penalized as incitement under the law. The context, speaker, intent, content and form, and the extent of the speech or act shall all be considered to ensure that the incitement is not only grave, but may very well be imminent. For example, when a humble teacher posts on social media that he will give fifty million pesos to the one who kills the President, he may not be punished for inciting to commit terrorism in the absence of a showing that the statements made were clearly directed to inciting an imminent act of terrorism and is likely to lead to terrorism.^[349] The position of the speaker also appears not likely to influence others to commit terrorism.

Accordingly, the Court finds that, as construed, Section 9 is reasonably and narrowly drawn and is the least restrictive means to achieve the declared compelling state purpose.
 

Membership under Section 10 is neither unconstitutionally vague nor overbroad.

Another provision in the ATA of particular concern to the Court is Section 10, which defines and penalizes the crime of recruitment to, and membership in, a terrorist organization. The provision, in full, provides:

Section 10. Recruitment to and Membership in a Terrorist Organization. - Any person who shall recruit another to participate in, join, commit or support terrorism or a terrorist individual or any terrorist organization, association or group of persons proscribed under Section 26 of this Act, or designated by the United Nations Security Council as a terrorist organization, or organized for the purpose of engaging in terrorism, shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592.

The same penalty shall be imposed on any person who organizes or facilitates the travel of individuals to a state other than their state of residence or nationality for the purpose of recruitment which may be committed through any of the following means:

(a) Recruiting another person to serve in any capacity in or with an armed force in a foreign state, whether the armed force forms part of the armed forces of the government of that foreign state or otherwise;

(b) Publishing an advertisement or propaganda for the purpose of recruiting persons to serve in any capacity in or with such an armed force;

(c) Publishing an advertisement or propaganda containing any information relating to the place at which or the manner in which persons may make applications to serve or obtain information relating to service in any capacity in or with such armed force or relating to the manner in which persons may travel to a foreign state for the purpose of serving in any capacity in or with such armed force; or

(d) Performing any other act with the intention of facilitating or promoting the recruitment of persons to serve in any capacity in or with such armed force.

Any person who shall voluntarily and knowingly join any organization, association or group of persons knowing that such organization, association or group of persons is proscribed under Section 26 of this Act, or designated by the United Nations Security Council as a terrorist organization, or organized for the purpose of engaging in terrorism, shall suffer the penalty of imprisonment of twelve (12) years. [Emphasis and underscoring supplied]

Petitioners argue that Section 10 should be nullified for being vague and overbroad. Petitioners point out that the term "support" in the challenged provision has no statutory definition and could thus lead to an interpretation covering a wide range of acts, from mere sympathy to actual ideological support, and even to formal armed support.^[350] They also criticize Section 10 for punishing "mere membership" in an organization "organized for the purpose of engaging in terrorism." They claim that an accusation of membership is easy to fabricate and law enforcers are free to interpret what groups are "organized for the purpose of engaging in terrorism" as Section 10 does not require a prior judicial declaration for this purpose.^[351] They also contend that Section 10 suffers from overbreadth because certain words or phrases in the provision which include inter alia "in any capacity", "facilitating travel", "recruiting", "advertisement", "propaganda", and "support" may cover legitimate forms of expression.^[352]
 

The third paragraph of Section 10 is susceptible to a facial challenge.

As previously discussed, the Court may take cognizance of a facial challenge against the constitutionality of statutes if its provisions involve or target free speech, expression, and its cognate rights, such as freedom of association. The third paragraph of Section 10, which punishes membership in a terrorist organization, is one such provision in the ATA, which the Court finds proper to delve into.

As petitioners assert, Section 10 seems to punish mere membership. Preliminarily, the Court recognizes that membership or the right to freely associate in any organization, association, or group is but one of the many ways by which persons can exercise the right to speak and the right to freely express themselves in order to advance their advocacies, beliefs, and ideas. Hence, there is a manifest link between the exercise of the rights of free expression and association which is "premised on the idea that an individual's [right to free speech and expression] 'could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.'"^[353] As further explained by the U.S. Supreme Court in Roberts v. United States Jaycees:^[354]

According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity, and in shielding dissident expression from suppression by the majority. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. (Citations omitted; emphasis supplied)

The nexus between the freedom of speech and expression and the freedom of association has been recognized by the Court as early as 1969 in Vera v. Hon. Arca^[355] (Vera). While the factual circumstances in Vera are not on all fours with this case, the Court then declared:

x x x [W]hen there is an invasion of the preferred freedoms of belief, of expression as well as the cognate rights to freedom of assembly and association, an affirmative response to a plea for preliminary injunction would indeed be called for. The primacy of the freedom of the mind is entitled to the highest respect. [Emphasis and underscoring supplied]

This interrelation between speech and association, one of two distinct senses of the constitutionally protected freedom of association, is identified in U.S. jurisprudence as the freedom of expressive association.^[356] Adapted to the Philippine context, this is the right or freedom to associate for the purpose of engaging in those activities guaranteed and protected under Section 4, Article III of the Constitution, i.e., speech, assembly, and petition for redress of grievances.

With these in mind, the Court holds that the third paragraph of Section 10 is susceptible to a facial challenge. As presented above, petitioners challenge the perceived chilling effect that Section 10 creates in the people's exercise of the right to association, which, in turn, gravely affects the exercise of the right to free speech and expression.
 

The prohibition to voluntarily and knowingly join proscribed and UNSC-designated organizations are permissible restrictions on the freedom of association.

To be penalized under the third paragraph of Section 10, it is required that a person shall: one, voluntarily and knowingly join an organization, association, or group; and two, have knowledge that the organization, association, or group is (a) proscribed under Section 26 of the ATA, (b) designated by the UNSC, or (c) organized for the purpose of engaging in terrorism. Based on this definition, Section 10 punishes membership under three instances: first, when a person voluntarily and knowingly joins any organization, knowing that such organization is proscribed under Section 26 of the ATA; second, when a person voluntarily and knowingly joins any organization, knowing that such organization has been designated by the UNSC as a terrorist organization; and third, when a person voluntarily and knowingly joins any organization, knowing that such organization has been organized for the purpose of engaging in terrorism.

The Court finds no impermissible vagueness in the first and second instances. The Court observes that under these two instances, persons are sufficiently given fair notice of the conduct to avoid, and law enforcers are not given unbridled discretion to determine who should be prosecuted and penalized. Under the first two instances, only those who voluntarily and knowingly join an organization, association, or group, knowing that the said organization, association, or group is a proscribed organization or has been designated by the UNSC, is in violation of Section 10. The wording of the statute is plain enough to inform individuals what conduct or act is prohibited, and what would make them criminally liable. Moreover, the publication requirement for proscription and designation ensures that the status of the organization, association, or group is readily ascertainable to the general public.

The Court also finds that penalizing membership under the first two instances are not overbroad. The restriction does not sweep unnecessarily and broadly towards protected freedoms, because to reiterate, only those who voluntarily and knowingly join an organization, association, or group despite knowing that the said organization, association, or group is a proscribed organization or has been designated by the UNSC, may be penalized. Given these parameters provided under the law, the Court is therefore not convinced that Section 10 invades the protected freedom of association, which remains sacrosanct only when its exercise is for purposes not contrary to law. Section 8, Article III of the Constitution categorically states:

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.^[357] (Emphasis supplied)

Thus, the right to join, to associate, or to affiliate oneself with a judicially proscribed organization or an organization designated as a terrorist by the UNSC is, for all intents and purposes, not constitutionally protected considering that these organizations have already been determined, after appropriate proceedings, to be in violation of the ATA, R.A. No. 10168 or the Terrorism Financing Prevention and Suppression Act, or the relevant international instruments on terrorism - purposes that are clearly contrary to law. At the risk of repetition, it should once more be noted that proscription and UNSC designation have a publication requirement, ensuring that the status of an organization, association, or group as a terrorist is readily ascertainable.
 

Mere membership is not penalized under the third paragraph of Section 10.

In this light, the argument that mere membership is punished by Section 10, fails. The requirement under the provision is that a person shall voluntarily and knowingly join a judicially proscribed or a UNSC designated organization, despite knowing the status or nature of the organization or group as such. Section 10 unmistakably has a scienter element:^[358] the offender who sought to join an organization, association, or group has an awareness of the status and nature of such organization, association, or group as judicially proscribed or UNSC-designated, but he or she still knowingly and voluntarily joins anyway. Thus, the membership penalized under Section 10 must be a knowing membership, as distinguished from a nominal or per se membership.

The Senate deliberations underscored the importance of establishing the scienter element in the prosecution of the offense, as revealed in the following exchange:

Senator Drilon. For example, I am alleged to be a member of a proscribed organization and, therefore, I am arrested and detained for 14 working days on the allegation that I am a member of an organization which is proscribed, how do we guard against abuses?

Senator Lacson. That is a different matter, Mr. President. To arrest an alleged member of a proscribed organization, it is incumbent upon the government to prove that he is really a member before he can be arrested. Iyon naman pong warrantless arrest, iba naman po iyon. Hindi dahil sa mayroong reasonable ground or mayroong ground iyong police officer to arrest a person just because he is reportedly a member or allegedly a member, hindi siya pupuwedeng basta arestuhin. The government should prove that the person to be arrested is indeed a member of that proscribed organization.

Senator Drilon. Not only he is a member, but he knowingly, under the measure, became a member.

Senator Lacson. That is correct, Mr. President.

Senator Drilon. So that unless there is proof that he knowingly became a member, knowing that it is a terrorist organization, he cannot be arrested.

Senator Lacson. Yes, Mr. President.

Senator Drilon. So, just for the record, it is not mere membership in the proscribe organization, but it must be shown that he knowingly and voluntarily, with full knowledge of the nature of the organization, joined it. In other words, it is not automatic that one who is a member of a proscribed organization could be arrested.

Senator Lacson. Yes, Mr. President. That is correct. That is expressly provided under Section [10].^[359] (Underscoring supplied)

It is clear from the quoted exchange that the challenged provision does not intend to automatically punish members of a proscribed organization. Instead, what the law seeks to criminalize is voluntarily joining an organization despite knowing it to be proscribed under Section 26 of the ATA or designated by the UNSC.

Similarly illuminating on this point, despite the change in circumstances, is the Court's ruling in the 1972 case People v. Hon. Ferrer^[360] (Ferrer). In Ferrer, one of the arguments in assailing the Anti-Subversion Act is that the law punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Communist Party of the Philippines or of any other similar "subversive" organization, in derogation of the freedom of expression and freedom of association. The Court ruled in this wise:

The requirement of knowing membership, as distinguished from nominal membership, has been held as a sufficient basis lor penalizing membership in a subversive organization. For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; and when membership is accepted or retained with knowledge that the organization is engaged in an unlawful purpose, the one accepting or retaining membership with such knowledge makes himself a party to the unlawful enterprise in which it is engaged. [Emphasis and underscoring supplied; citations omitted]^[361]

Ferrer is instructive to the extent of clarifying when membership may be penalized. Since Section 10 of the ATA similarly penalizes membership, the knowing membership requirement, as distinguished from mere nominal membership, laid down in Ferrer should also be applied.

The requirement of a knowing membership in instances when membership in an organization is penalized by statute has also been considered and discussed in U.S. jurisprudence. In Wieman v. Updegraff^[362] (Weiman) the U.S. Supreme Court declared that the "[i]ndiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power." In ruling that an Oklahoma loyalty oath law violated the First Amendment, the High Court elucidated that:

This must be viewed as a holding that knowledge is not a factor under the Oklahoma statute. We are thus brought to the question touched on in Garner, Adler, and Gerende: whether the due process clause permits a state, in attempting to bar disloyal individuals from its employ, to exclude persons solely on the basis of organizational membership, regardless of their knowledge concerning the organizations to which they had belonged. For, under the statute before us, the fact of membership alone disqualifies. If the rule be expressed as a presumption of disloyalty, it is a conclusive one.

But membership may be innocent. A state servant may have joined a proscribed organization unaware of its activities and purposes. In recent years, many completely loyal persons have severed organizational ties after learning for the first time of the character of groups to which they had belonged.

"They had joined, [but] did not know what it was; they were good, fine young men and women, loyal Americans, but they had been trapped into it - because one of the great weaknesses of all Americans, whether adult or youth, is to join something."

At the time of affiliation, a group itself may be innocent, only later coming under the influence of those who would turn it toward illegitimate ends. Conversely, an organization formerly subversive, and therefore designated as such, may have subsequently freed itself from the influences which originally led to its listing.

There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. x x x Yet, under the Oklahoma Act, the fact of association alone determines disloyalty and disqualification; it matters not whether association existed innocently or knowingly. To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief sources. We hold that the distinction observed between the case at bar and Garner, Adler and Gerende is decisive. Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power. The oath offends due process. (Emphases and underscoring supplied; citations omitted)^[363]

Almost a decade after Wieman, the U.S. Supreme Court notably touched on the membership clause of the Federal Smith Act in Scales v. United States^[364] (Scales), a ruling that was cited in Ferrer. In Scales, the assailed statute penalized membership in any society, group, or assembly of persons which teaches, advocates, or encourages the overthrow and destruction of the government by force or violence. In upholding the membership clause and finding that the statute requires active membership, the U.S. Supreme Court ratiocinated:

We find hardly greater difficulty in interpreting the membership clause to reach only "active" members. We decline to attribute to Congress a purpose to punish nominal membership, even though accompanied by "knowledge" and "intent," not merely because of the close constitutional questions that such a purpose would raise, but also for two other reasons: it is not to be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act. Nor can we assume that it was Congress' purpose to allow the quality of the punishable membership to be measured solely by the varying standards of that relationship as subjectively viewed by different organizations. It is more reasonable to believe that Congress contemplated an objective standard fixed by the law itself, thereby assuring an evenhanded application of the statute.

x x x x

In an area of the criminal law which this Court has indicated more than once demands its watchful scrutiny, these factors have weight and must be found to be overborne in a total constitutional assessment of the statute. We think, however, they are duly met when the statute is found to reach only "active" members having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.

x x x x

It was settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the First Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment.

If it is said that the mere existence of such an enactment tends to inhibit the exercise of constitutionally protected rights, in that it engenders an unhealthy fear that one may find himself unwittingly embroiled in criminal liability, the answer surely is that the statute provides that a defendant must be proven to have knowledge of the proscribed advocacy before he may be convicted. x x x If there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause, as here construed, does not cut deeper into the freedom of association than is necessary to deal with "the substantive evils that Congress has a right to prevent." The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must be clear proof that a defendant "specifically intend[s] to accomplish [the aims of the organization] by resort to violence." Thus, the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he lacks the requisite specific intent "to bring about the overthrow of the government as speedily as circumstances would permit." Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal. [Emphases and underscoring supplied; citations omitted]^[365]

Interestingly, the U.S. Supreme Court in Scales declared that the membership clause of the Smith Act, as then construed, did not cut deeper into the freedom of association than is necessary to deal with "the substantive evils that Congress has a right to prevent." This declaration is pertinent for purposes of this discussion, because the Court, in finding that the first and second instances of membership penalized under Section 10 satisfies the strict scrutiny test, makes the same finding that the prohibitions contemplated under the first and second instances are so narrowly tailored and thus, are reasonable counterterrorism measures.

Penalizing membership under the first two instances of Section 10 is a necessary means to achieve a compelling state interest. Without doubt, the State has an inherent right of self-preservation, which was emphasized in Ferrer:

That the Government has a right to protect itself against subversion is a proposition too plain to require elaboration. Sell-preservation is the "ultimate value" of society. It surpasses and transcends every other value, "for if a society cannot protect its very structure from armed internal attack, x x x no subordinate value can be protected". As Chief Justice Vinson so aptly said in Dennis vs. United States:

"Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial governments is without force where the existing structure of government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the government by force and violence."^[366] [Citations omitted]

Moreover, as thoroughly explained in the preceding discussions, the State, to preserve itself and protect its people from terrorism, needs to ensure that possible terrorist activities of foreigners within the Philippine jurisdiction or against Philippine nationals abroad are forestalled.

Therefore, as a reasonable counterterrorism measure, the State is justified in preventing terrorist groups from forming and obtaining any opportunity to gain support through knowing membership. Given the restrictive nature of the membership intended to be punished under the first and second instances of membership under Section 10, the Court finds the same narrowly tailored and the least restrictive means to achieve the compelling State purpose.

Furthermore, the first instance of membership punished under Section 10, i.e., membership in a proscribed organization, association or group of persons under Section 26, recognizes that proscription involves court intervention and fair notice before an organization, association or group of persons is outlawed. Knowingly joining despite the fact that it has been outlawed by the court is precisely the evil sought to be prevented by the ATA. There is no comprehensible justification to knowingly or intentionally join or maintain membership under this instance. Thus, this is not an unreasonable restraint in the exercise of the right to association.

In the same vein, the second instance of membership punished under Section 10, i.e., membership in a designated terrorist organization, association or group of persons, is limited only to those organizations, associations or groups designated under the first mode of Section 25, through the automatic adoption of the designation or listing made by the UNSC. When the third paragraph of Section 10 is taken together with the Court's analysis on Section 25, which will be explained in full in later discussions, it is clear that the law seeks to punish the reprehensible act of knowingly joining an internationally-recognized terrorist organization or association. This is also a permissible restriction on the exercise of the right to association.

The requirement of knowing membership, to emphasize, is evident in the Senate deliberations, Philippine jurisprudence, and even U.S. jurisprudence. The Court stresses once again that the determination of the status of an organization of which the offender is allegedly a member is readily ascertainable in view of the publication requirement in proscription and designation. Hence, the only thing to be determined under the first two instances is whether the offender actually and consciously knew that the organization, association, or group he or she is joining has been proscribed or has been designated by the UNSC as a terrorist, which in turn can be ascertained from the circumstances surrounding the membership of the offender as well as the declaration of the status of an organization as a terrorist.

In all, the Court sees no reason to declare as unconstitutional the first and second instances of membership penalized under the third paragraph of Section 10.

With a vote of 6-9, the succeeding discussion in the ponencia on the issue of the constitutionality of the phrase "organized for the purpose of engaging in terrorism" in Section 10 had been overturned and is not reflective of the opinion of the majority of the members of the Court. On this issue, the majority declared the subject phrase not unconstitutional. Readers are cautioned to read this portion of the ponencia as it holds the opinion of only six (6) members of the Court and not the controlling resolution on the issue. The controlling opinion on this issue is found in the opinion of Chief Justice Gesmundo.^[367]
 

The phrase "organized for the purpose of engaging in terrorism" must be struck down for being vague, overbroad, and for failing to meet the strict scrutiny test.

The Court rules differently as regards the third instance of membership penalized under Section 10, i.e., voluntarily and knowingly joining any organization, knowing that such organization has been organized for the purpose of engaging in terrorism. The latter phrase "organized for the purpose of engaging in terrorism" primarily renders the same unconstitutional.

To expound, the phrase "organized for the purpose of engaging in terrorism" under the third instance is iinpermissibly vague. In the context of penalizing a person's alleged membership in a terrorist organization, association, or group, there is nothing in the law which provides rules or guidelines to determine and verify the nature of said organization, association, or group as one "organized for the purpose of engaging in terrorism". Even the Senate deliberations on the provision fail to provide guidance or standards for this purpose. Without any sufficient or discernible parameters, the third instance of membership penalized under Section 10 would necessarily fail to accord persons fair notice of what conduct they should avoid, and would give law enforcers unrestrained discretion in ascertaining that an organization, association, or group was organized for the purpose of engaging in terrorism. The Court agrees with petitioners that charges under this instance would be very easy to fabricate, since the lack of standards may give law enforcers free rein in determining which groups are so-called "organized for the purpose of engaging in terrorism". This appears to be in stark contrast to the first and second instances, as discussed above (i.e., proscribed or designated terrorist groups), in which information on the status and nature of an organization, association, or group, whether judicially proscribed or designated by the UNSC, is readily ascertainable and available.

Furthermore, while the State remains to have a compelling interest in punishing membership in groups organized for the purpose of engaging in terrorism, the Court finds that the assailed phrase would unnecessarily overreach into innocent and protected membership. Since the determination of the presence of the second element of the violation - the alleged member's knowledge about the organization's status as a terrorist, i.e., that it was organized for the purpose of engaging in terrorism - rests on undetermined and unprescribed parameters, it is not far-fetched that a determination under the third instance will lead to an arbitrary finding of membership. To be sure, there may be instances when the determination of the status or nature can be easily had if in fact, the organization, association, or group has actually committed or has overtly attempted to commit terrorism. But these instances do not rectify the apparent flaw in the provision which permits its unnecessary application and overreach into protected associations. This may certainly, and unreasonably, restrain and chill the people's exercise of the innocent exercise of the freedom of association in order to avoid being charged under Section 10.

The Court, by the same token, finds that the phrase "organized for the purpose of engaging in terrorism" does not meet the second requisite of the strict scrutiny test. To the Court's mind, the phrase is not narrowly tailored and fails to employ the least restrictive means to accomplish the interest of preventing membership in terrorist organizations, associations or groups. Similar to what has been stated above, there are no apparent standards or parameters provided in the law to determine whether the organization, association, or group is indeed organized for the purpose of engaging in terrorism. Without such standards or parameters, the public is left to guess what degree or variant of membership may be punished, which can unjustifiably include within its scope innocent and protected associations.

All told, the phrase "organized for the purpose of engaging in terrorism" in Section 10 should be struck down for violating the freedom of association.
 

Section 12 of the ATA, insofar as it penalizes the provision of "training" and "expert advice" as material support, is neither unconstitutionally vague nor overbroad.

Section 12 of the ATA provides:

Section 12. Providing Material Support to Terrorists. - Any person who provides material support to any terrorist individual or terrorist organization, association or group of persons committing any of the acts punishable under Section 4 hereof, knowing that such individual or organization, association, or group of persons is committing or planning to commit such acts, shall be liable as principal to any and all terrorist activities committed by said individuals or organizations, in addition to other criminal liabilities he/she or they may have incurred in relation thereto.

Meanwhile, Section 3(e) of the ATA considers "training" as "material support," viz.:

(e) Material Support shall refer to any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation; (Emphasis supplied)

Again, "training" is defined in Section 3(k) of the ATA as follows:

(k) Training shall refer to the giving of instruction or teaching designed to impart a specific skill in relation to terrorism as defined hereunder, as opposed to general knowledge;

Consistent with the discussion on Section 6 of the ATA, the Court finds that Section 12 may be subject to a facial challenge only insofar as it regulates certain speech acts. The Court finds that Section 12 implicates freedom of speech only insofar as it regulates the provision of "expert advice or assistance" and "training" as material support. Accordingly, the Court withholds judgment on the constitutionality of providing other types of material support as defined in Section 3(e), without prejudice to future challenges when the proper facts arise.

Petitioners argue that Section 12 is overbroad because it does not specify whether the material support should be given purposely to aid in the commission of terrorism.^[368]

The Court is not convinced.

Per the discussion on Section 3(k) in relation to Section 6, the Court construes "training" under Section 12 as referring only to that which is directed to produce the commission of terrorism and is likely to produce such action. Concurrently, this interpretation should be made to apply to "expert advice or assistance." Consistent with our interpretation of "training" under Section 6, the terms "training" and "expert advice or assistance" under Section 12 requires knowledge on the part of the provider that the individual or organization, association, or group of persons to which he provided such material support is committing or planning to commit an act of terrorism. Without such knowledge, prosecution under Section 12 must necessarily fail. Furthermore, in the interpretation and application of the provisions of Section 12 in relation to training and expert advice or assistance as modes of providing material support, the Brandenburg standard is deemed incorporated. Thus, training and expert advice or assistance can only be penalized as material support within the ambit of Section 12 when they are: (1) directed to producing imminent terrorism; and (2) is likely to produce such action. As construed, this Court does not find Section 12 impermissibly vague or overbroad so as to violate petitioners' freedom of speech and academic freedom.

Designation and Proscription

At first glance, terrorism may appear to share features with crimes against national security and other political crimes already defined under the RPC, e.g., treason, rebellion, sedition, and the like. In the book Fresh Perspectives on the 'War on Terror,' terrorism was described as:

x x x [A]n attack on the state and its exclusive right to the legitimate use of violence. Unlike a murderer or robber, the terrorist or assassin does not just kill: he claims a legitimacy, even a lawfulness, in doing so. Such acts do not break the law, but seek to impose a new or higher law.^[369] (Emphases supplied)

Thus, acts of terrorism are not only pursued to cause injury to people and property, but are motivated by an underlying political objective that distinguishes it from the felonies and other offenses already punished by law. Though objectives of terrorism may have changed over time, certain purposes have remained constant: regime change, territorial change, policy change, social control, and status quo maintenance.^[370]

However, in recent times, acts of terrorism have been perpetrated not only by certain individuals, but increasingly more, they have also been planned and executed by groups or networks of terrorist groups. In response, there has been a need to develop special measures specifically designed to prevent terrorism committed by groups, two of which are designation and proscription.

Designation under the ATA is provided for under Section 25, which states:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. - Pursuant to our obligations under United Nations Security Council Resolution (UNSCR) No. 1373, the ATC shall automatically adopt the United Nations Security Council Consolidated List of designated individuals, groups of persons, organizations, or associations designated and/or identified as a terrorist, one who finances terrorism, or a terrorist organization or group.

Request for designations by other jurisdictions or supranational jurisdictions may be adopted by the ATC after determination that the proposed designee meets the criteria for designation of UNSCR No. 1373.

The ATC may designate an individual, group of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, group of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act.

The assets of the designated individual, group of persons, organization or association above-mentioned shall be subject to the authority of the Anti-Money Laundering Council (AMLC) to freeze pursuant to Section 11 of Republic Act No. 10168.

The designation shall be without prejudice to the proscription of terrorist organizations, associations, or groups of persons under Section 26 of this Act.

Section 25 bestows on the ATC - an administrative body - the power to designate a person or an organization as a terrorist, making the power and the process executive in nature. It has three modes: first, through the automatic adoption by the ATC of the designation or listing made by the UNSC; second, through the ATC's approval of requests made by other jurisdictions or supranational jurisdictions to designate individuals or entities that meet the criteria under UNSC Resolution No. 1373; and third, designation by the ATC itself, upon its own 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.

In addition to designation, Section 26 of the ATA reintroduced proscription, a function and process that was previously present under Section 17 of the HSA.^[371] In contrast to designation which is executive in nature, the process of proscription under the ATA remains judicial in nature, by requiring its application to be filed, this time, with the Court of Appeals (CA), thus:

Section 26. Proscription of Terrorist Organizations, Associations, or Group of Persons. - Any group of persons, organization, or association, which commits any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, or organized for the purpose of engaging in terrorism shall, upon application of the DOJ before the authorizing division of the Court of Appeals with due notice and opportunity to be heard given to the group of persons, organization or association, be declared as a terrorist and outlawed group of persons, organization or association, by the said Court.

The application shall be filed with an urgent prayer for the issuance of a preliminary order of proscription. No application for proscription shall be filed without the authority of the ATC upon the recommendation of the National Intelligence Coordinating Agency (NICA).

Unlike the HSA, however, the ATA augmented the proscription process by empowering the CA to issue a preliminary order of proscription under Section 27, if probable cause exists that its issuance is necessary to prevent the commission of terrorism. The ATA, in addition, also authorized the consideration of requests to proscribe from foreign and supranational jurisdictions, under Section 28. These two provisions state:

Section 27. Preliminary Order of Proscription. - Where the Court has determined that probable cause exists on the basis of the verified application which is sufficient in form and substance, that the issuance of an order of proscription is necessary to prevent the commission of terrorism, he/she shall, within seventy-two (72) hours from the filing of the application, issue a preliminary order of proscription declaring that the respondent is a terrorist and an outlawed organization or association within the meaning of Section 26 of this Act.

The court shall immediately commence and conduct continuous hearings, which should be completed within six (6) months from the time the application has been filed, to determine whether:

(a) The preliminary order of proscription should be made permanent;

(b) A permanent order of proscription should be issued in case no preliminary order was issued; or

(c) A preliminary order of proscription should be lifted. It shall be the burden of the applicant to prove that the respondent is a terrorist and an outlawed organization or association within the meaning of Section 26 of this Act before the court issues an order of proscription whether preliminary or permanent.

The permanent order of proscription herein granted shall be published in a newspaper of general circulation. It shall be valid for a period of three (3) years after which, a review of such order shall be made and if circumstances warrant, the same shall be lifted.

Section 28. Request to Proscribe from Foreign Jurisdictions and Supranational Jurisdictions. - Consistent with the national interest, all requests for proscription made by another jurisdiction or supranational jurisdiction shall be referred by the Department of Foreign Affairs (DFA) to the ATC to determine, with the assistance of the NICA, if proscription under Section 26 of this Act is warranted. If the request for proscription is granted, the ATC shall correspondingly commence proscription proceedings through DOJ.

Notably, a reading of Sections 25 to 28, in relation to the other provisions of the ATA, shows that despite the differentiation - designation being an executive function and process and proscription a judicial one - both seem to have the same primary effects: first, an application for surveillance of "a judicially declared and outlawed terrorist organization as provided in Section 26" and between members of a designated person as defined in Section 3(e) of R.A. No. 10168^[372] may already be filed with the CA by law enforcement agents or military personnel under Section 16; second, the examination of records with banking and other financial institutions and the ex parte freezing of assets may be done by the AMLC under Sections 35 and 36, on its own initiative or at the request of the ATC, upon the issuance of a preliminary order of proscription or in case of designation; and third, there is criminal liability under Section 10 for those who recruit others to participate in, join, or support, or for those who become members of, organizations, associations, or groups proscribed under Section 26 or those designated by the UNSC.

The interplay between Sections 25 to 28 with the other provisions of the ATA, together with its consequent effects, forms the substantive arguments raised against designation and proscription. Specifically, petitioners seek to nullify Sections 25, 26, and 27 for their supposed chilling effect^[373] on the freedoms of speech, expression, assembly, association, and other allied rights.^[374] They argue that a designation or proscription order operates as a prima facie finding that terrorist acts had been committed, and that the designated or proscribed persons are likely guilty thereof. This chilling effect on the exercise of freedom of expression, association, and other allied rights is allegedly aggravated by the fact that both designation and proscription require publication in a newspaper of general circulation, thereby causing irreparable damage and stigma. Petitioners further assert that the threat of being designated and proscribed as a terrorist or a terrorist organization, association, or group - when taken together with its consequences and the publication of the declaration or order in a newspaper of a general circulation - would cow even the staunchest critics of any administration.^[375] This threat or fear is allegedly compounded by the absence of any remedy or relief available for a wrongful designation, the likelihood of which is very high. It is argued that these consequences pose a lethal prior restraint on their exercise of freedom of expression and the right of association.^[376]
 

Similar processes adopted in other jurisdictions show that designation and proscription are accepted preventive and extraordinary forms of counterterrorism measures.

At the outset, the Court notes that the challenged measures are not entirely novel and even, hardly recent. The designation, proscription, listing, blacklisting, outlawing, banning, exclusion, or sanction of individuals or organizations, and such other equivalent terminologies^[377] that broadly refer to the set or series of legal instruments or powers which permit a government agent to prohibit the presence of, or support for, an identified terrorist or terrorist organization within its jurisdiction^[378] have already existed before the enactment of the ATA, and have been adopted and operationalized in many other countries. The succeeding discussion will briefly explore parallel processes adopted in other jurisdictions, which reinforces the intent of the ATA to establish the nature of designation and proscription as preventive and extraordinary counterterrorism measures.

The concept of designation may be traced to the U.S. as early as 1952 in the Immigration & Nationality Act (INA), which was later amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)^[379] and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act). In 1977, the U.S. also enacted the International Emergency Powers Act (IEEPA),^[380] which authorized the U.S. President to designate terrorists in times of armed hostilities, or when the U.S. is under attack by a foreign country or by foreign nationals, or when there is an "unusual and extraordinary threat." In its amended version, the IEEPA permits the President to block an entity's assets during the pendency of an investigation. The authority in the IEEPA, in particular, was invoked by US President George W. Bush when he issued Executive Order (E.O.) No. 13224 on September 23, 2001, in which he authorized the designation of 27 foreign individuals and organizations as terrorists and ordered the Secretary of the Treasury to immediately block their assets.

The concept of designation as a counterterrorism measure was reinforced following two significant terrorist events during the 1990s: (1) the satin gas attack in the Tokyo subway system by the terrorist group Aum Shinrikyo in March 1995; and (2) the detonation of a truck filled with explosives near the Edward A. Murrah Building in Oklahoma City by Timothy McVeigh in April 1995. Prior to the September 11 attacks or 9/11, the attack in Oklahoma City was considered the most destructive terrorist attack in the US as it resulted in the death of 168 people and injured several hundred more. Following these incidents, the US Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),^[381] which now provides the mechanism and procedure to be observed in designating foreign terrorists.^[382] Under this law, the requisites of designation are as follows:

Section 219. DESIGNATION OF FOREIGN TERRORIST ORGANIZATIONS.

(a) DESIGNATION. -

(1) IN GENERAL. - The Secretary is authorized to designate an organization as a foreign terrorist organization in accordance with this subsection if the Secretary finds that -

(A) the organization is a foreign organization;

(B) the organization engages in terrorist activity (as defined in section 212(a)(3)(B)); and

(C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States. [Emphasis supplied]

The State Department, through the Secretary of State, was given the power, in coordination with the Attorney General and the Treasury Department, to designate groups as "foreign terrorist organizations" (FTOs).

Once a designation is made, the AEDPA provides mechanisms for review. Among others, it establishes judicial review, as provided in Section 219 (b) of the AEDPA, which allows a designated FTO to assail the same with the U.S. Court of Appeals for the District of Columbia Circuit not later than 30 days after publication of the designation. Thus, while it is the Secretary of State who begins the process of designation of a purported FTO, courts are not prevented from exercising the power of judicial review to determine the propriety of the subject designation. Section 219 (b) of the AEDPA reads:

(b) JUDICIAL REVIEW OF DESIGNATION. -

(1) IN GENERAL. - Not later than 30 days after publication of the designation in the Federal Register, an organization designated as a foreign terrorist organization may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit.

(2) BASIS OF REVIEW. - Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation.

(3) SCOPE OF REVIEW. - The Court shall hold unlawful and set aside a designation the court finds to be -

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity; or

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right.

The IEEPA, on the other hand, does not provide an explicit standard for judicial review, but safeguards are put in place to ensure proper checks and balances. In the exercise of the powers granted to the U.S. President in the IEEPA, he shall immediately transmit to the Congress a report specifying the following: (1) the circumstances which necessitate such exercise of authority; (2) why the President believes those circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States; (3) the authorities to be exercised and the actions to be taken in the exercise of those authorities to deal with those circumstances; (4) why the President believes such actions are necessary to deal with those circumstances; and (5) any foreign countries with respect to which such actions are to be taken and why such actions are to be taken with respect to those countries. Periodic follow-up reports to the Congress are also required by the IEEPA at least once every six months.
 
On the other hand, proscription as a counterterrorism measure can be seen as early as the 1970s in the U.K.'s Prevention of Terrorism Act 1974^[383] which was enacted to address the terrorist incidents committed during the Northern Ireland conflict.^[384] The Act was originally meant to be effective for only six months as it was supposedly a temporary emergency legislation; however, it was renewed annually by the U.K. Parliament up until 1989.^[385] Under this Act, the government is allowed to "proscribe organizations concerned in terrorism," as well to exercise the "power to exclude certain persons from x x x the U.K. in order to prevent acts of terrorism."^[386]

The current legal basis for proscription in the U.K. is now found in Part II of its Terrorism Act 2000. To note, several of those proscribed under the former law remain listed as proscribed organizations under Schedule 2 of the U.K. Terrorism Act 2000.^[387] Under Sections 3 (3) and 3 (6) of thereof, the power to proscribe is exercised by the Secretary of State for the Home Department by the issuance of an order, if he or she believes that an organization is "concerned in terrorism", or should be treated as one already proscribed:^[388]

3. Proscription.

(1) For the purposes of this Act an organisation is proscribed if -

(a) it is listed in Schedule 2, or

(b) it operates under the same name as an organisation listed in that Schedule.

(2) Subsection (1)(b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule.

(3) The Secretary of State may by order -

(a) add an organisation to Schedule 2;

(b) remove an organisation from that Schedule;

(c) amend that Schedule in some other way.

(4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.

x x x x

(6) Where the Secretary of State believes -

(a) that an organisation listed in Schedule 2 is operating wholly or partly under a name that is not specified in that Schedule (whether as well as or instead of under the specified name), or (b) that an organisation that is operating under a name that is not so specified is otherwise for all practical purposes the same as an organisation so listed, he may, by order, provide that the name that is not specified in that Schedule is to be treated as another name for the listed organisation.

(7) Where an order under subsection (6) provides for a name to be treated as another name for an organisation, this Act shall have effect in relation to acts occurring while -

(a) the order is in force, and (b) the organisation continues to be listed in Schedule 2, as if the organisation were listed in that Schedule under the other name, as well as under the name specified in the Schedule.

(8) The Secretary of State may at any time by order revoke an order under subsection (6) or otherwise provide for a name specified in such an order to cease to be treated as a name for a particular organisation.

An organization is considered "concerned in terrorism" if it commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism, or is otherwise concerned in terrorism,^[389] to wit:

(5) For the purposes of subsection (4) an organisation is concerned in terrorism if it -

(a) commits or participates in acts of terrorism,

(b) prepares for terrorism,

(c) promotes or encourages terrorism, or

(d) is otherwise concerned in terrorism.

(5A) The cases in which an organisation promotes or encourages terrorism for the purposes of subsection (5)(c) include any case in which activities of the organisation -

(a)	include the unlawful glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism; or
(b)	are carried out in a manner that ensures that the organisation is associated with statements containing any such glorification.

(5B) The glorification of any conduct is unlawful for the purposes of subsection (5A) if there are persons who may become aware of it who could reasonably be expected to inter that what is being glorified, is being glorified as -

(a)	conduct that should be emulated in existing circumstances, or
(b)	conduct that is illustrative of a type of conduct that should be so emulated.

(5C) In this section -

"glorification" includes any form of praise or celebration, and cognate expressions are to be construed accordingly;

"statement" includes a communication without words consisting of sounds or images or both.

Similar to a designation made in the U.S. under the AEDPA, the U.K. Terrorism Act 2000 provides for a review mechanism which allows the proscribed organization or a person affected by the organization's proscription to file an application for "deproscription" with the Secretary of State for the Home Department,^[390] and a refusal thereof may be appealed to the three-member panel called the Proscribed Organisations Appeal (POA) Commission.^[391] A further appeal on questions of law may be brought to the courts, subject to the permission of the POA Commission or the discretion of the court to which the appeal will be brought, if permission is refused.^[392]

In Southeast Asia, Singapore mostly takes the lead on proscription from the UN,^[393] as it seems to adopt in toto^[394] the sanctions list of individuals and entities belonging to, or associated with, the Taliban, ISIL (Da'esh), and Al-Qaeda, as maintained by the established committees in accordance with UNSC Resolution No. 1267^[395] and UNSC Resolution No. 1988.^[396] The basis for the adoption, and hence proscription in Singapore, is its United Nations Act of 2000,^[397] which was enacted to enable it to fulfill its obligations respecting Article 41 of the UN Charter.^[398] The UNSC Resolutions 1267 and 1988 sanctions lists, in turn, are expressly referenced and incorporated in Schedule 1 of Singapore's Terrorism (Suppression of Financing) Act of 2003.^[399] While a study has observed that there appears to be no statute in Singapore that specifically provides for domestic listing or one that outlines a listing mechanism,^[400] Section 38(a) of the Terrorism (Suppression of Financing) Act empowers the Minister for Home Affairs of Singapore to amend, add to, or vary Schedule 1 by the issuance of an order to be published in their Gazette,^[401] including the power to specify what other criminal acts should be considered as a terrorist act -

Amendment of Schedules

38. The Minister may, by order published in the Gazette -

(a) amend, add to or vary the First Schedule; and

(b) amend the Second Schedule to specify any act or omission that is punishable under any law that implements any treaty, convention or other international agreement to which Singapore is a party as a terrorist act.

which means an act akin to proscription may be exercised by the Minister for Home Affairs, an executive officer, without need to refer the matter to, or to seek the approval by, Singapore's Parliament.^[402]

From the foregoing, the Court observes that the nature of the designation and/or proscription measures as understood in other jurisdictions bears strong similarities with the designation and proscription measures instituted in the ATA. Firstly, the purpose animating these measures are unambiguously directed towards the prevention or suppression of terrorism, which Section 2 of the ATA has characterized as inimical and dangerous to the national security of the country and to the welfare of the people. Secondly, despite having strong and vibrant democracies, the legal frameworks of these three countries still found it necessary to accommodate such extraordinary measures, owing to the continuously evolving nature of terrorism.

Relative thereto, the Court observes that the key powers, functions, or processes in these statutes were all given to, and exercised by, an executive officer of these governments. Pertinently in this regard, one study has mentioned that "[t]here is a clear consensus across Australia, the U.K., Canada, New Zealand[,] and the U.S. that the executive is the most appropriate body to decide whether an organization satisfies the definition of a terrorist organization" and thus, should be proscribed.^[403]
 
While Congress has seen it wise for the ATA to delineate and distinguish the executive function and process of designation from the judicial function and process of proscription, it is clear to the Court that despite this ostensible distinction, both are preventive and extraordinary counterterrorism measures in the same mold as that contemplated in the functions and processes of the measures adopted in the U.S., U.K., and Singapore. The nature and effects of both measures, like their foreign counterparts, are borne of public necessity, and spring from the same resolve to preserve national security and to protect the public and general welfare from acts of terrorism.
 

Designation and proscription in the ATA are preventive measures enacted in the exercise of the police power of the State.

The Court is mindful that terrorism has a global reach and is not confined to national borders. It is not restricted as to the time and place of actual hostilities nor does it automatically conclude when acts of violence end. The Court is aware that the threat of terrorism today is unprecedented and the use of modern weapons capable of mass destruction has made it impossible to measure the extent of harm that may be caused. Hence, the government has recognized the necessity to constantly develop counterterrorism measures that are responsive to changing times and the developments in technology exploited by terrorists to advance their ideologies and to sow terror. Consideration in forming policies is no longer limited to addressing immediate threats to national security but now necessarily includes anticipating future risks or catastrophes.

With the foregoing in mind, and in consideration of the context upon which other countries' understanding of designation and proscription supported the intent of the ATA to make these processes preventive and extraordinary counterterrorism measures, this Court finds that the adoption or institution of both designation and proscription in the ATA must be viewed as an exercise of poliec power by the State.

The exercise of police power is primarily vested in the legislature through its authority to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, cither with penalties or without, as they shall judge to be for the good and welfare of the country and of the people.^[404] It has been described as the most essential, insistent, and the least limitable of the three great governmental powers, extending as it does to all the great public needs.^[405] The very purpose of the State will be destroyed if it will be deprived, or will allow itself to be deprived, of its competence to promote public safety and the general welfare.^[406] Put another way, police power is that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.^[407]

Earlier cases refer to police power as the power to promote the general welfare and public interest, or the power to enact such laws in relation to persons and property as may promote public health, public morals, public safety, and the general welfare of each inhabitant.^[408] It has also been said to be the power to preserve public order and to prevent offenses against the State, as well as the power to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood calculated to prevent conflict of rights. All these depictions of police power underscore its comprehensiveness to meet all exigencies and to provide enough room for an efficient and flexible response to conditions and circumstances, thus assuring the greatest benefits.^[409]

Based on these characterizations, it cannot be denied that the institution of designation and proscription in the ATA is an exercise of police power. Designation and proscription, as preventive counterterrorism measures, are made necessary because of the pernicious and widespread effects of even one single terrorist act, which can happen anytime, anywhere. As the Court has discussed before in as many words, terrorism is never just an ordinary crime and a terrorist is never just an ordinary criminal - terrorism, very simply, is sui generis, and its extraordinary nature demands extraordinary measures.

Having stemmed from the exercise of police power, the validity of executive designation and judicial proscription must be judged on the basis of the due process clause, particularly substantive due process, which requires the concurrence of a lawful subject or purpose and a lawful means or method.^[410] There is a lawful purpose when the interests of the public generally, as distinguished from those of a particular class, require the exercise of police power.^[411] On the other hand, the means are said to be lawful when the methods employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.^[412] Only when these two requisites concur may the State be considered to have properly exercised police power.^[413] However, considering that the exercise of police power was assailed in the context of a free speech challenge, the Court shall analyze the validity of the provisions on designation and proscription, more specifically under strict scrutiny and overbreadth standards.
 

The provisions on designation and proscription are susceptible to a facial challenge.

As petitioners allege, the results or the outcomes of being designated under Section 25 or proscribed under Sections 26 to 28, when implemented in conjunction with the other provisions of the ATA, have a significant impact on free speech and expression, and present outright freedom of speech and expression restrictions. Though these are not exclusively speech provisions per se, they claim that the chilling effect created by the counterterrorism measures introduced in the challenged provisions intimidates individuals or groups and causes an atmosphere detrimental to the exercise of the freedom of expression.

In this accord, petitioners have thus laid a prima facie basis for the Court to treat Sections 25 to 28 on designation and proscription as appropriate subjects of a facial challenge relative to the context of the actual facts presented in this case. These two extraordinary and preventive measures, when implemented, affect the ability of individuals to speak and to express themselves, as it is alleged that these measures can be wielded in a manner as to invoke fear of state action. Verily, the Court perceives that a looming threat of a potential designation or proscription may indeed effectively chill the exercise of free speech, expression, and their cognate rights under the Constitution. It is also discernible that the prospect of being a victim of an erroneous designation contributes to a pernicious chilling effect. The claim that the ATC under the current formulation of Section 25 can designate whosoever it deems has given reason to be designated tends to intimidate everyone in their free exercise of constitutional rights.

Since the implementation or effects of designation and proscription have implications on the exercise of free speech, expression, and their cognate rights, the Court shall determine the validity of Sections 25 to 28 under a facial analysis lens. In doing so, however, the Court will only utilize two of the three analytical tools (i.e., overbreadth and strict scrutiny, and not void for vagueness) which, according to Romualdez v. Sandiganbayan and Spouses Romualdez v. Commission on Elections as above-discussed, were developed for testing, on their faces, statutes involving free speech and expression. This is because, with respect to void for vagueness, the Court has found that none of petitioners squarely raised any issue as to the ambiguity in the language or terminology in Sections 25 to 28. There being no claim that the wording of Sections 25 to 28 fails to provide fair warning and notice to the public of what is prohibited or required so that one may act accordingly, then perforce the only tests that the Court will employ are the overbreadth and strict scrutiny doctrines.

As have already been discussed, a law may be struck down as unconstitutional under the overbreadth doctrine if it achieves a governmental purpose by means that are unnecessarily broad and thereby invade the area of protected freedoms. Meanwhile, the strict scrutiny standard is a two-part test under which a law or government act passes constitutional muster only if it is necessary to achieve a compelling state interest, and that it is the least restrictive means to protect such interest or narrowly tailored to accomplish said interest. To note, a perfunctory look at these two tests shows that the sweeping facet of the overbreadth doctrine is substantially the same as the second requisite of strict scrutiny. The two are practically of the same essence and import. Therefore, in order to determine whether Sections 25 to 28 sweeps unnecessarily and broadly, and thereby invade the area of protected freedoms, the Court will use strict scrutiny in relation to the overbreadth doctrine to ascertain if the means chosen by the State are narrowly tailored to accomplish its compelling interest. It is within these interrelated analytical tools and the facial analysis framework as herein delimited that the Court shall now proceed to resolve the challenge on these provisions.
 

The first mode of designation is a constitutionally acceptable counterterrorism measure under Section 25.

The first paragraph of Section 25, which contains the first mode of designation, states:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. - Pursuant to our obligations under United Nations Security Council Resolution (UNSCR) No. 1373, the ATC shall automatically adopt the United Nations Security Council Consolidated List of designated individuals, groups of persons, organizations, or associations designated and/or identified as a terrorist, one who finances terrorism, or a terrorist organization or group. x x x

Using the tests identified in the immediately preceding discussion, the Court finds that the first mode of designation as provided under the first paragraph of Section 25 is a legitimate exercise of the State's police power.
 

Compelling state interest exists in enacting the first mode of designation under Section 25.

There exists a compelling state interest in authorizing the automatic adoption of the UNSC Consolidated List. The challenged provision is intended: (1) to forestall possible terrorist activities of foreigners within the Philippine jurisdiction or against Philippine nationals abroad; (2) to cooperate with global efforts against terrorist groups who are known to operate across territorial borders; and (3) to comply with our international obligations under UNSC Resolution No. 1373. Undeniably, law enforcement, national security, and public safety are all compelling state interests As the Court earlier stated, acts of terrorism are not confined to national borders but rather, have a global reach. National security is a compelling state interest, for as Former Chief Justice Reynato S. Puno has declared with commendable foresight in his dissent in Secretary of Justice v. Hon. Lantion:^[414]

The increasing incidence of international and transnational crimes, the development of new technologies of death, and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of our national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against x x x weak constitutional claims x x x. (Emphasis in the original)

The first mode of designation is but an implementation of the country's standing obligation under international law to enforce anti-terrorism and related measures, and the Court is not convinced that the automatic adoption by the ATC of the designation or listing made by the UNSC is violative of the due process clause or an encroachment of judicial power. Further, the adoption of the Consolidated List is in accord with the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, whereby the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.^[415] In this regard, it is important to remember that UNSCR No. 1373 was issued by the UNSC as an act under Chapter VII of the UN Charter and in response to "threats to international peace and security caused by terrorist acts." Under the doctrine of incorporation, the Philippines has committed to the preservation of international peace. As such, the adoption of the UNSCR No. 1373 finds basis in the Constitution.

While the ATA mentions only the country's obligations under UNSCR No. 1373, this reference should be understood as reflecting the country's commitments under the UN Charter, particularly under Articles 24 (1) and 25, Chapter V and Articles 48 and 49, Chapter VII thereof, which provide:

Article 24

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council the primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf;

x x x x

Article 25

The Members of the United Nations agree to accept and carry out decisions of the Security Council in accordance with the present Charter.

x x x x

Article 48

1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall he taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 49

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. (Emphases and underscoring supplied]

For the Court, these commitments lay down sufficient bases in construing that the measures adopted in UNSCR No. 1373, and other supplemental UNSCRs, are generally binding on all member states.

Additionally, UNSCR No. 1373 specifically cites two issuances that buttress its generally binding nature. One is General Assembly Resolution No. 2625 (XXV), adopted on October 24, 1970, and the other is UNSCR No. 1189, adopted by the UNSC on August 13, 1998.

General Assembly Resolution No. 2625 (XXV), or the "Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations" (Declaration),^[416] affirmed the importance of the progressive development and codification of the principles of international law concerning friendly relations and cooperation among States. The Declaration likewise emphasized that its adoption "would contribute to the strengthening of world peace and constitute a landmark in the development of international law and of relations among States, in promoting the rule of law among nations, and particularly in the universal application of the principles embodied in the UN Charter."^[417] In addition to the principle stated in UNSCR No. 1373 that "every State has the duty to refrain from organizing, instigating, assisting, or participating in terrorist acts in another state, or acquiescing in organized activities within its territory directed towards the commission of such acts," the Declaration likewise adopted the principle that States have the duty to cooperate with one another in accordance with the UN Charter.^[418]

The principles declared in United Nations General Assembly Resolution No. 2625 were reiterated in UNSCR No. 1189 (1998), which reaffirmed "the determination of the international community to eliminate international terrorism in all its forms and manifestations", and stressed the need to strengthen "international cooperation between States in order to adopt practical and effective measures to prevent, combat, and eliminate all forms of terrorism affecting the international community as a whole."^[419] UNSCR No. 1189 thereby called upon states "to adopt, in accordance with international law and as a matter of priority, effective and practical measures for security cooperation, for the prevention of such acts of terrorism, and for the prosecution and punishment of their perpetrators."^[420]

The foregoing principles are, not surprisingly, repeated in UNSCR No. 1373 as follows:

3. Calls upon all States to:

(a) Find ways of intensifying and accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or networks; forged or falsified travel documents; traffic in arms, explosives or sensitive materials; use of communications technologies by terrorist groups; and the threat posed by the possession of weapons of mass destruction by terrorist groups;

(b) Exchange information in accordance with international and domestic law and cooperate on administrative and judicial matters to prevent the commission of terrorist acts;

(c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts;

(d) Become parties as soon as possible to the relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999;

(e) Increase cooperation and fully implement the relevant international conventions and protocols relating to terrorism and Security Council resolutions 1269 (1999) and 1368 (2001);

(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts;

(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists[.]^[421] (Emphases and underscoring supplied)

While the Court is not prepared to state here that the practice and process of designation as a counterterrorism measure has ripened to the status of customary international law, it is very obvious from the foregoing and from other issuances emanating from the UN and its organs^[422] that there is an underlying acknowledgment, first, of the need to prevent, and the duty of member States to prevent, terrorism; second, that cooperation between States is necessary to suppress terrorism; and third, that member States should adopt effective and practical measures to prevent its commission. It is not lost on the Court that UNSCR No. 1373 uses such language to the effect that the UNSC has decided that all States shall carry out the actions and implement the policies enumerated therein, which is highly indicative of the generally binding nature of the issuance.

The Court would also venture to say here that the automatic adoption by the ATC of the UNSC Consolidated List is surely not an exercise of either judicial or quasi-judicial power, as it only affirms the applicability of the sanctions under the relevant UNSC resolutions within Philippine jurisdiction, as existing under Philippine law. In automatically adopting the designation pursuant to UNSCR No. 1373, the ATC does not exercise any discretion to accept or deny the listing, and it will not wield any power nor authority to determine the corresponding rights and obligations^[423] of the designee. Instead, it merely confirms a finding already made at the level of the UNSC, and affirms the applicability of sanctions existing in present laws. It is thus in this perspective that the Court finds that the Congress, in enacting the first mode of designation as an acceptable counterterrorism measure, has a compelling state interest to achieve and only implements the obligations the country has assumed as a member of the international community.
 

The first mode of designation is narrowly tailored and the least restrictive means to achieve the objective of the State. There are adequate guidelines in UNSCR No. 1373.

Even if a compelling state interest exists, a governmental action would not pass the strict scrutiny test if the interest could be achieved in an alternative way that is equally effective yet without violating the freedom of expression and its allied rights. Here, it was not shown that there is a less restrictive alternative to comply with the Suite's international responsibility pursuant to UNSCR No. 1373 and related instruments to play an active role in preventing the spread of the influence of terrorists included in the Consolidated List. Neither was it proven that the first mode of designation imposes burdens more than necessary to achieve the State's articulated interest.

The mechanism of automatic adoption of the UNSC Consolidated List is reasonable relative to the underlying purpose of complying with the country's international obligations to cooperate in the efforts to prevent terrorism. To reiterate, the first mode of designation is effectively made not just by a domestic body but by the UNSC itself. Hence, it is necessary and reasonable in light of the country's international obligations.

Furthermore, there are adequate standards and rigorous procedures for listing under UNSCR Nos. 1373, 1989, and 2368, as well as under the guidelines of the Sanctions Committee which require inter alia multilateral acceptance among member states for listing. Together, they provide a sufficient framework in the implementation and execution of the designation process in the UN prior to the automatic adoption of the same by the ATC. Consistent with this finding, the Court does not subscribe to the argument that the due process clause of the Constitution is violated because UNSCR No. 1373 does not provide parameters for designation. Instead, the Court finds that the first mode of designation satisfies the requirement that it must be narrowly tailored and least restrictive.
 
To expound, a close reading of UNSCR No. 1373 shows that it does provide exhaustive factors for designation or listing, as it states the following:

1. Decides that all States shall:

(a) Prevent and suppress the financing of terrorist acts;

(b) Criminalize the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
 
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;

(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;

2. Decides also that all States shall:

(a) Retrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;

(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;
 
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

(d) Prevent those who finance, plan, facilitate or commit terrorist acts from their respective territories for those purposes against other States or their citizens;

(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;

(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;

(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents[.] (Emphases supplied)

The foregoing criteria are not as express or clear-cut as those provided for in UNSCR Nos. 1989 (2011)^[424] and 2368 (2017),^[425] both of which explicitly enumerate the listing criteria which the UNSC uses for its consolidated sanctions list, to wit:

Listing Criteria: Decides that acts or activities indicating that an individual, group, undertaking or entity is associated with ISIL or Al-Qaida and therefore eligible for inclusion in the ISIL (Da'esh) & Al-Qaida Sanctions List include:

(a) Participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of;

(b) Supplying, selling or transferring arms and related material to;

(c) Recruiting for; or otherwise supporting acts or activities of Al-Qaida, ISIL, or any cell, affiliate, splinter group or derivative thereof[.]^[426]

Nonetheless, this will not render the reference to only UNSCR No. 1373 in Section 25, or the basis of designation under the same, as invalid. It can easily be seen that the specific listing criteria in UNSCR Nos. 1989 (2011) and 2368 (2017) merely summarized the exhaustive factors given by UNSCR No. 1373.

It should even be emphasized at this point that the process adopted by the UNSC, prior to the automatic adoption of the Consolidated List by the ATC, is a multilateral one, as it requires the acceptance of all members of the Security Council ISIL (Da'esh) and Al-Qaida Sanctions Committee (Sanctions Committee).^[427] In the Guidelines of the Committee for the Conduct of its Work dated 05 September 2018 (Sanctions Committee Guidelines), the procedure for the decision-making of the Sanctions Committee requires that:

(a) The Committee shall make decisions by consensus of its Members. If consensus cannot be reached on a particular issue, including listing and delisting, the Chair should undertake such further consultations as may facilitate agreement. If after these consultations consensus still cannot be reached the matter may be submitted to the Security Council by the Member concerned. The provisions of this paragraph are without prejudice to the special procedures stipulated in paragraphs 62 and 69 of resolution 2368 (2017).

(b) Decisions will be taken by a written procedure. In such cases, the Chair will circulate to all Members of the Committee the proposed decision of the Committee, and will request Members of the Committee to indicate any objection they may have to the proposed decision within five full working days except as otherwise provided for in the Guidelines or a relevant resolution, or, in urgent situations, such shorter period as the Chair shall determine.

Notably, the procedure for designation or listing under the Sanctions Committee Guidelines provides:

6. Listing

x x x x

(g) When proposing names for inclusion on the ISIL (Da'esh) and Al-Qaida Sanctions List, Member States should use the standard forms for listing available in all official languages on the Committee's website and shall include as much relevant and specific information as possible on a proposed name, in particular sufficient identifying information to allow for the accurate and positive identification of the individual, group, undertaking or entity concerned by competent authorities, and to the extent possible, information required by INTERPOL to issue a Special Notice, including:

(i) For individuals: family name/surname, given names, other relevant names, date of birth, place of birth, nationality/citizenship, gender, aliases, employment/occupation, State(s) of residence, passport or travel document and national identification number, current and previous addresses, current status before law enforcement authorities (e.g. wanted, detained, convicted), location, photographs and other biometric data (where available and in accordance with their national legislation);

(ii) For groups, undertakings or entities: name, registered name, short namc(s)/acronyms, and other names by which it is known or was formerly known, address, headquarters, branches/subsidiaries, organizational linkages, parent company, nature of business or activity, State(s) of main activity, leadership/management, registration (incorporation) or other identification number, status (e.g. in liquidation, terminated), website addresses.

The Monitoring Team shall be prepared to assist Member States in this regard.

(h) Member States shall provide a detailed statement of case in support of the proposed listing that forms the basis or justification for the listing in accordance with the relevant resolutions, including paragraph 51 of resolution 2368 (2017). The statement of case should provide as much detail as possible on the basis(es) for listing, including but not limited to:

(1) specific information demonstrating that the individual/entity meets the criteria for listing set out in paragraphs 2 and 4 of resolution 2368 (2017);

(2) details of any connection with a currently listed individual or entity;

(3) information about any other relevant acts or activities of the individual/entity;

(4) the nature of the supporting evidence (e.g. intelligence, law enforcement, judicial, open source information, admissions by subject, etc.);

(5) additional information or documents supporting the submission as well as information about relevant court cases and proceedings. The statement of case shall be rclcasable, upon request, except for the parts the designating State identifies as being confidential to the Committee, and may be used to develop the narrative summary of reasons for listing described in section 9 below.

x x x x

(p) Upon request of a Committee Member, listing requests may be placed on the Committee's agenda for more detailed consideration. If deemed necessary, the Committee may request additional background information from the Monitoring Team and/or the designating State(s).
 
Following consideration by (he Committee, the Chair shall circulate the listing request under the written decision-making procedure as described in Sections 4 paragraph (b) and section 6 paragraph (n) above.

x x x x

9. Narrative Summaries of Reasons for Listing

x x x x

(b) When a new name is proposed for listing, the Monitoring Team shall immediately prepare, in coordination with the relevant designating State(s), a draft narrative summary for the Committee's consideration which shall be circulated together with the corresponding listing request. The narrative summary shall be made accessible on the Committee's website on the same day a name is added to the ISIL (Da'esh) and Al-Qaida Sanctions List.

(c) Draft narrative summaries should be based on information provided by the designating State(s), Committee members or the Monitoring Team, including the statement of case, the standard form for listing, any other official information provided to the Committee or any other relevant information publicly available from official sources.

(d) The narrative summary should include: the dale of listing; the basis(es) for listing according to the relevant resolutions adopted by the Security Council, i.e. specific information demonstrating that the individual or entity meets the criteria for listing set out in the relevant resolutions; information about any acts or activities of the individual/entity indicating an association with ISIL (Da'esh) and Al-Qaida, pursuant to paragraphs 2 and 4 of resolution 2368 (2017); the names and permanent reference numbers of other entries on the List associated with the listed party; any other relevant information available at the date or after the date of listing such as relevant court decisions and proceedings as provided by the designating State(s) or other Member States concerned; the date(s) when the narrative summary was first made accessible on the Committee's website and when it was reviewed or updated. (Underscoring in the original; citation omitted)

Based on the foregoing, it is evident that the procedure for listing or designation pursuant to UNSCR No. 1373 involves multilateral acceptance among member states. A decision to designate or list a person or entity needs the consensus of the Sanctions Committee members. Further consultation may be had to facilitate an agreement if no consensus can be reached, and there is a possibility that the decision can be elevated to the Security Council proper. More importantly, it also indicates that there must be an agreement as to whether the criteria for designation or listing have been observed or complied with - criteria which are easily discernible from UNSCR No. 1373 and its supplemental resolutions, and which are easily obtainable as all these information are accessible to the general public. All things considered, any determination to be made even before the ATC automatically adopts the designation is not taken lightly.

Finally, the UNSC provides for a delisting process, the procedure for which is detailed in the supplementing resolutions of UNSCR No. 1373. Significantly, Rule 6.9 of the ATA IRR acknowledges that delisting under the first mode of designation can be availed of in two ways: (1) either through the government, the Philippines being a member State, via a delisting request submitted to the Sanctions Committee; or (2) by the designees themselves, via a delisting request submitted to the Office of the Ombudsperson.^[428]

At this point, and relative to the requisite of employing the least restrictive means, the Court notes that petitioners lambast the supposed lack of prior notice and hearing that attends the process of designation. Suffice it to say at this point, however, that this supposed lack of prior notice and hearing is understandably justified by the exigent nature of terrorism, which is a relatively new global phenomenon that must be met with commensurate effective responses by nation-States. It is not farfetched to see that the imposition of the notice and hearing requirement prior to a designation will most likely eliminate a valuable opportunity for law enforcement to prevent an evil that both the ATA and the country's international obligations seek to avoid, in the guise of due process. Verily, this will ultimately frustrate the objectives of the State and compromise its intelligence operations. The Court thus finds that this is a permissible accommodation under the constitutional framework, for not only is it a realistic approach, it also recognizes the inherent and compelling interest to protect its existence and promote the public welfare.^[429] As aptly pointed out by Associate Justice Amy C. Lazaro-Javier in her dissent in People v. Sapla^[430] (Sapla):

[e]ffective law enforcement is a legitimate interest that is not less favored by the law.^[431] (Emphasis in the original)

In any event, the due process requirement is satisfied by an opportunity to be heard - designees will be subsequently notified of their designation in accordance with Rule 6.5 of the IRR. Petitioners ought to be reminded that this will not be the first time where the Court has upheld the satisfaction of due process requirements through subsequent notice and hearing - a case in point is the "Close Now, Hear Later Scheme" under Section 29 of R.A. No. 265, which the Court upheld in Central Bank v. Court of Appeals.^[432] From this ruling, the Court has recognized that there are very exceptional situations wherein public interest can take precedence over the usual procedural due process rights of an individual, in line with the police power of the State.

All told, the Court does not subscribe to petitioners' argument that the first mode of designation is unconstitutional. Instead, the Court finds that the this mode of designation satisfies the requirement that the means employed be narrowly tailored and are the least restrictive. In this accord, it also satisfies the overbreadth doctrine, which "decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."^[433]
 

The second and third modes of designation are constitutionally problematic, and must be struck down.

In contrast to the first mode, the second and third modes of designation, as provided under the second and third paragraphs of Section 25, are constitutionally problematic.
 

While the State has established a compelling interest, the means employed under the second mode of designation is not the least restrictive means to achieve such purpose.

The second mode of designation under Section 25 states:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. - x x x

Request for designations by other jurisdictions or supranational jurisdictions may be adopted by the ATC after determination that the proposed designee meets the criteria for designation of UNSCR No. 1373. (Emphasis and underscoring supplied)

The foregoing mode of designation does not pass the strict scrutiny test and is equally overbroad.

Same as the first mode, there are underlying compelling State interests and purposes for legislating the second mode of designation. These are: (1) to forestall possible terrorist activities of foreigners within the Philippine jurisdiction or against Philippine nationals abroad to prevent foreign terrorism, particularly against individuals not listed by the UNSC; and (2) to foster inter-State reciprocity for the purpose of facilitating mutual assistance in the prevention of terrorist activities.

However, the means employed are not the least restrictive nor narrowly tailored to achieve the State's compelling interest. Under this second mode of designation, unbridled discretion is given to the ATC in granting requests for designation based on its own determination. Likewise, there appears to be no sufficient standard that should be observed in granting or denying such requests. The ATC is left to make its own determination based loosely on "the criteria for designation of UNSCR No. 1373," without any further sufficient parameters for its guidance. This may therefore lead to a quid pro quo designation with the requesting jurisdiction at the expense of the rights of a prospective designee.

Further, there are no proper procedural safeguards and remedies for an erroneous designation in this respect. To compare, the first mode of designation with the UNSC has a process for delisting, the procedure for which is detailed in the supplementing resolutions of UNSCR No. 1373. As mentioned, Rule 6.9 of the ATA IRR acknowledges that delisting under the first mode of designation can be availed of in two ways. Moreover, there is no automatic review provision applicable to designations made under the second mode similar to that provided for under Section 26 (on proscription). In fact, the absence of a remedy is even more glaring when the Court takes into consideration similar counterterrorism measures of other countries, as mentioned above. This, despite the fact that proponents of the law have repeatedly invoked the need to be at par with the rest of the international community in combating terrorism and fulfilling the country's duties under UNSCR No. 1373. They even mentioned the similarities in the language used and the counterterrorism concepts introduced in foreign legislation to support this narrative.

Again, in the U.S., there is an immediate relief or remedy available to designated individuals or entities, since the AEDPA provides two mechanisms for review of a designation. The first is judicial review, as provided in Section 219 (b) as above-cited. While it is the Secretary of State who begins the process of designation of a purported foreign terrorist organization therein, courts are not prevented from exercising the power of judicial review to determine the propriety of the subject designation. The second is through the intervention of the U.S. Congress under Section 219 (a) (5) of the AEDPA, which allows the latter to revoke a designation made by the State Department:

(5) REVOCATION BY ACT OF CONGRESS. - The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1).

Accordingly, the designation procedure of Foreign Terrorist Organizations (FTOs) in the United States under the AEDPA has features that permit the involvement of other branches of government to afford remedies in case of erroneous or wrongful designations and uphold the principle of checks and balances. Although the Court notes that as of September 2020, neither the U.S. Congress nor its courts have removed groups from the FTO list, these remedies exist under the main law. These two avenues for review are integral components of the U.S. law that sets it apart from the second as well as the third (as will be discussed below) modes of designation introduced in the ATA. The review and revocation mechanisms therefore compel the State Department to observe a higher standard given that the evidence against the subject or designee must hold in court.

Also, it deserves reiteration that there are appeal procedures existing in the U.K. against a proscription order issued by the Secretary of State for the Home Department, which go up to the courts after two levels of appeal. Markedly, the second level of appeal is a Commission established and dedicated for the purpose:

4 Deproscription: application.

(1) An application may be made to the Secretary of State For an order under section 3(3) or (8) -

(a) removing an organisation from Schedule 2, or

(b) providing for a name to cease to be treated as a name for an organisation listed in that Schedule.

(2) An application may be made by -

(a) the organisation, or

(b) any person affected by the organisation's proscription or by the treatment of the name as a name for the organisation.

(3) The Secretary of State shall make regulations prescribing the procedure for applications under this section.

(4) The regulations shall, in particular -

(a) require the Secretary of State to determine an application within a specified period of time, and

(b) require an application to state the grounds on which it is made.

x x x x

6 Further appeal.

(1) A party to an appeal under section 5 which the Proscribed Organisations Appeal Commission has determined may bring a further appeal on a question of law to -

(a) the Court of Appeal, if the first appeal was heard in England and Wales,

(b) the Court of Session, if the first appeal was heard in Scotland, or

(c) the Court of Appeal in Northern Ireland, if the first appeal was heard in Northern Ireland.

(2) An appeal under subsection (1) may be brought only with the permission -

(a) of the Commission, or

(b) where the Commission refuses permission, of the court to which the appeal would be brought.

(3) An order under section 5(4) shall not require the Secretary of State to take any action until the final determination or disposal of an appeal under this section (including any appeal to the Supreme Court).

Considering all these existing procedures from other countries which the ATA may draw inspiration from, any form of intervention, judicial or otherwise, is still not explicitly provided therein. The Senate, the House of Representatives, or the Joint Congressional Oversight Committee constituted under Section 50 of the ATA cannot revoke a designation made by the ATC. The utter lack of procedural safeguards and remedies for erroneous designation in the second mode as well as in the third mode, which will be further discussed below, taints such measures with arbitrariness relative to the State purpose sought to be achieved and is thus, problematic.

The lack of a remedy aside, there exists other suitable alternatives which are far less intrusive and potentially injurious to protected rights. These include the adoption of an internal watchlist by law enforcement agencies or the maintenance of a database to monitor potential threats, and judicial proscription under Section 26. As had been pointed out above and as will be further dealt with below, the effects of designation are practically the same as proscription. Since this measure has the effect of impermissibly chilling free speech and its cognate rights, it should not be made through an executive body's determination that lacks proper standards and safeguards.

In fine, for the reasons stated, the second mode of designation fails to pass strict scrutiny and overbreadth and hence, is unconstitutional.

With a vote of 7-8, the succeeding discussion in the ponencia on the issue of the constitutionality of the third mode of designation found in the third paragraph of Section 25 had been overturned and is not reflective of the opinion of the majority of the members of the Court. On this issue, the majority declared the subject phrase not unconstitutional. Readers are cautioned to read this portion of the ponencia as it holds the opinion of only seven (7) members of the Court and not the controlling resolution on the issue. The controlling opinion on this issue is found in the opinion of Chief Justice Gesmundo.^[434]
 

The third mode of designation also fails to meet the strict scrutiny test and is overly broad.

The process for the third mode of designation is as follows:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. —

x x x x

The ATC may designate an individual, group of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, group of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act. x x x (Emphases and underscoring supplied)

This process is highlighted in Rule 6.3 of the ATA's IRR which reads:

Rule 6.3. Domestic Designation by the ATC through a Determination of Probable Cause. - Upon a finding of probable cause, the ATC may designate:

1. an individual, group of persons, entity, organization, or association, whether domestic or foreign, who commit, or attempt to commit, or conspire or who participate in or facilitate the commission of any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the Act;
   
   
2. an entity owned or controlled directly or indirectly by such individual, group of persons, entity, organization, or association under paragraph (a) of this Rule; and
   
   
3. a person or entity acting on behalf of, or at the direction of, the individual, group of persons, entity, organization, or association under paragraph (a) of this Rule.
   
   For purposes of designation under Rule 6.2 and Rule 6.3 and for proposals for designation under Rule 6.8, probable cause shall refer to a reasonable ground of suspicion supported by circumstances warranting a cautious person to believe that the proposed designce meets the requirements for designation.
   
   The ATC shall adopt mechanisms to collect or solicit information from relevant government agencies and other sources in order to identity individuals, groups of persons, organizations, or associations that, on the basis of probable cause, meet the criteria for designation under this Rule. (Emphases and underscoring supplied)
   

Similar to the two previous modes of designation, there is a compelling state interest in introducing the third mode of designation - that is, to aid the State in combating domestic terrorism. However, same as the second mode of designation, the means employed by the State are not narrowly drawn to meet such interest.

To explain, under the third mode, it is the ATC that makes an executive determination of probable cause, and not a judicial court. Same as in the second mode of designation, however, there are no proper procedural safeguards and remedies for an erroneous designation under the third mode, thereby creating a chilling effect on speech and its cognate rights and unduly exposes innocent persons to erroneous designation with all its adverse consequences. The finding in the discussion on the second mode that there exist other suitable alternatives which are far less intrusive and potentially injurious to protected rights, such as the adoption of an internal watchlist by law enforcement agencies and judicial proscription under Section 26, similarly apply to the third mode of designation.

As argued by petitioners, another cause of concern in allowing this mode of designation is the lack of discernible criteria in the statute by which the ATC may determine "probable cause to designate". Note should be taken in this regard that the Court has differentiated two kinds of determination of probable cause in Mendoza v. People of the Philippines^[435] under the current legal framework as follows:

There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.

The difference is clear: The executive determination of probable cause concerns itself with whether there is enough evidence to support an Information being filed. The judicial determination of probable cause, on the other hand, determines whether a warrant of arrest should be issued. (Emphases supplied; citations omitted)

The designation by the ATC per se does not lead to either of the "recognized" determinations of probable cause. It does not result to the filing of an information in court (i.e., the main function of executive determination of probable cause), nor does it give rise to the issuance of a warrant of arrest (i.e., the main function of judicial determination of probable cause). Designation is a peculiar and an extraordinary executive function not akin to these two traditional determinations. As such, easily discernible standards for its implementation, similar to that for the first mode, should have been put in place, but there are none. Accordingly, there is just reason to believe that the third mode confers carte blanche license on the ATC to designate just about anyone that it deems to have met the requirements for designation, dependent as it is on the ATC's own determination of what it deems as sufficient probable cause. In this regard, it is fairly apparent how this third mode of designation may cause a chilling effect on free speech as claimed by petitioners, consistent with the present delimited facial analysis conducted by the Court in this case. As such, the third mode of designation equally fails the strict scrutiny and overbreadth tests and, similar to the second mode, is unconstitutional itself.
 

Designation and Claimed Violation of the Principle of Separation of Powers

Notably, aside from its primarily chilling effect on speech for the reasons above explained, there are also concerns raised by petitioners based on principle of separation of powers. As earlier stated, despite designation being an executive function and process and proscription being a judicial one, petitioners point out that the same effects are triggered upon a finding by either the ATC or the courts of probable cause: surveillance under Section 16 can then be applied for, and the examination of records with banking and other financial institutions and the freezing of assets under Sections 35 and 36 may already be done by the AMLC. Thus, petitioners decry how, in this sense, designation runs afoul of the separation of powers principle.

However, it must be emphasized that a facial challenge under current jurisprudence is limited to constitutional challenges premised on the freedom of speech, expression, and cognate rights, and has yet to be particularly fleshed out to tackle separation of powers claims. Thus, at this point, the Court is hard-pressed to delve into the same.

This observation notwithstanding, the Court is impelled to point out that the argument of petitioners on separation of powers appears will not affect the declared constitutionality of the first mode because, as exhaustively discussed above, in this mode, the ATC will be merely adopting the UNSC Consolidated List. Thus, the ATC does not exercise any form of legislative or judicial power in such instance as the determination of designated persons or groups will be done by the UNSC, a premier international body, itself, in conjunction with the Philippines' own international commitments. In contrast, designation under the second and third modes, are to be determined purely by the ATC, a national executive agency. As petitioners posit, the consequences of designation overlap with proscription, which for its part must be based on a judicial determination of probable cause in accordance with the Constitution. Hence, petitioners' claim of separation of powers are only relevant to the second and third modes, which, to be properly resolved, must be threshed out in the proper case. Practically speaking, however, it is discerned that petitioners need not wait for this proper case to achieve the result they desire since the second and third modes should already be struck down for its abridgement of free speech rights due to its impermissible chilling effect. As such, the issue on the constitutionality of these second and third modes under a separation of powers argument would have been rendered moot and academic by the time that the actual case concerning separation of powers is elevated.
 

Clarification on Effects of Designation (First Mode)

Considering that designation under the first mode is a valid counterterrorism measure and hence, constitutional, the Court finds it prudent, for the guidance of the bench, bar, and public, to clarify the effects that such designation should have once a listing made by the UNSC and its Sanctions Committee is automatically adopted by the ATC.

The Court has noticed that that the OSG has persistently asserted that designation is only a preliminary step to the freezing of the assets of a designee - which is a matter to be determined in a separate proceeding with the AMLC at the helm.^[436] During the oral arguments, the OSG assured that the only consequence of designation is the freezing of accounts, as revealed in the following exchange:

ASSISTANT SOLICITOR GENERAL GALANDINES:

Under Section 25, Your Honor, the designation would trigger the power of the AMLC to freeze the assets of the person or the organization designated as a terrorist group, Your Honor.

ASSOCIATE JUSTICE CARANDNG:

That's the only consequence?

ASSISTANT SOLICITOR GENERAL GALANDINES:

Yes, Your Honor.

ASSOCIATE JUSTICE CARANDANG:

There is no other consequence arising from the designation? Are you sure of that?

ASSISTANT SOLICITOR GENERAL GALANDINES:

Yes, Your Honor, the designation.

ASSOCIATE JUSTICE CARANDANG:

We're not talking of how a person or an organization is designated as a terrorist, I just want to know the effects of designation, And you said, it is only freezing of assets. No other consequences arising from the designation?

ASSISTANT SOLICITOR GENERAL GALANDINES:

It is without prejudice to the eventual filing of an action for proscription.^[437]

However, the Court finds the argument of the OSG on this point, inaccurate. It is clearly apparent that when Section 25 is taken together with the other provisions of the ATA, designation does not only give rise to freezing of assets under Section 36 of the ATA. It may also lead to surveillance under Section 16 and the examination of records with banking and other financial institutions under Section 35. A further discussion on surveillance and examination is perforce instructive.

Surveillance Order

As already mentioned, a careful analysis of the provisions of the ATA would show that designation may trigger the ex parte application for a surveillance order to be issued by the CA under Section 16. When granted, the surveillance order may authorize law enforcement agents or military personnel to:

x x x x

secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record or collect, with the use of any mode, form, kind or type of electronic, mechanical or other equipment or device or technology now known or may hereafter be known to science or with the use of any other suitable ways and means for the above purposes, any private communications, conversation, discussion/s, data, information, messages in whatever form, kind or nature, spoken or written words (a) between members of a judicially declared and outlawed terrorist organization, as provided in Section 26 of this Act; (b) between members of a designated person as defined in Section 3 (c) of Republic Act No. 10168; or (c) any person charged with or suspected of committing any of the crimes defined and penalized under the provisions of this Act

x x x x (Emphases supplied)

The surveillance order may also be issued against: (1) members of judicially proscribed organizations or associations; (2) those designated under Section 3(e) of R.A. No. 10168; and (3) any person who is "suspected of committing any of the crimes defined and penalized under the" ATA. The Court notes that under the first category, individuals of judicially proscribed organizations or associations are indirectly designated due to their membership in those outlawed terrorist organizations, and thus become potential subjects of an ex parte application for surveillance order. Meanwhile, those designated pursuant to the ATC's automatic adoption of the UNSC Consolidated List under Section 25 of the ATA, considering that it is the only surviving provision herein declared as constitutional, can be, by process of logical elimination with the other two categories, considered included in the third category.
 

AMLC Bank Inquiry, Investigation, and Freeze Order

Designation also prompts the AMLC's inquiry and investigation authority. Section 35 of the ATA states:

Section 35. Anti-Money Laundering Council Authority to Investigate, Inquire into and Examine Dank Deposits. - Upon the issuance by the court of a preliminary order of proscription or in case of designation under Section 25 of this Act, the AMLC, either upon its own initiative or at the request of the ATC, is hereby authorized to investigate: (a) any property or funds that are in any way related to financing of terrorism as defined and penalized under Republic Act No. 10168, or violation of Sections 4, 6, 7, 10, 11 or 12 of this Act; and (b) property or funds of any person or persons in relation to whom there is probable cause to believe that such person or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of the aforementioned sections of this Act. x x x (Emphasis supplied; italics in the original)

After designation under Section 25 or the issuance of a preliminary order of proscription under Section 27, any property or funds that may be related to the financing of terrorism under the penalized acts in R.A. No. 10168 may be subject to investigation, upon the initiative of the AMLC or at the request of the ATC.

Moreover, as conceded by the OSG, designation also causes the issuance by the AMLC of a preventive freeze order in the first paragraph of Section 36, and freeze orders under the third paragraph of the same section. The relevant paragraphs of Sections 25 and 36 of the ATA state:

Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations. -

x x x x

The assets of the designated individual, group of persons, organization or association above-mentioned shall be subject to the authority of the Anti-Money Laundering Council (AMLC) to freeze pursuant to Section 11 of Republic Act No. 10168.

x x x x

Section 36. Authority to Freeze. - Upon the issuance by the court of a preliminary order of proscription or in case of designation under Section 25 of this Act, the AMLC, either upon its own initiative or request of the ATC, is hereby authorized to issue an ex parte order to freeze without delay: (a) any property or funds that are in any way related to financing of terrorism as defined and penalized under Republic Act No. 10168, or any violation of Sections 4, 5, 6, 7, 8, 9, 10, 11 or 12 of this Act; and (b) property or funds of any person or persons in relation to whom there is probable cause to believe that such person or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of the aforementioned sections of this Act.

x x x x

Notwithstanding the preceding paragraphs, the AMLC, consistent with the Philippines' international obligations, shall be authorized to issue a freeze order with respect to property or funds of a designated organization, association, group or any individual to comply with binding terrorism-related resolutions, including UNSCR No. 1373 pursuant to Article 41 of the charter of the UN. Said freeze order shall be effective until the basis for the issuance thereof shall have been lifted.

Section 36 authorizes the AMLC, upon its own initiative or at the request of the ATC, to issue ex parte a freeze order on: (1) any property or funds related to financing of terrorism under R.A. No. 10168 or any violation of the punishable acts in the ATA; or (2) property or funds of any person or persons in relation to whom there is probable cause to believe is committing or attempting or conspiring to commit, or participating in or facilitating the finance of the punishable acts in the ATA. The freeze order is effective for a period not to exceed 20 days and may be extended for a period not to exceed six months upon order of the CA.
 

Bank Secrecy in Relation to Bank Inquiry and Freeze Orders Issued by the AMLC

In Republic v. Eugenio,^[438] the Court recognized that there is a right to privacy governing bank accounts in the Philippines. In this case, it was explained that such right is statutory since it is by virtue only of the Bank Secrecy Act of 1955.^[439] Be that as it may, the Court expressed that there is a disfavor towards construing statutory exceptions in such a manner that would authorize unbridled discretion on the part of the government or of anyone seeking to inquire into bank deposits by virtue of such exceptions. The Court stated that:

If there are doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the former.^[440]

In Eugenio, the Court also differentiated the purpose of a bank inquiry and a freeze order issued by the AMLC:

A freeze order under Section 10 on the one hand is aimed at preserving monetary instruments or property in any way deemed related to unlawful activities as defined in Section 3 (i) of the AMLA. The owner of such monetary instruments or property would thus be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the dissipation of such funds even before the order could be issued.

On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical seizure of property of the account holder. What the bank inquiry order authorizes is the examination of the particular deposits or investments in banking institutions or non-bank financial institutions. The monetary instruments or property deposited with such banks or financial institutions are not seized in a physical sense, but are examined on particular details such as the account holder's record of deposits and transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank inquiry order cannot be physically seized or hidden by the account holder. Said records are in the possession of the bank and therefore cannot be destroyed at the instance of the account holder alone as that would require the extraordinary cooperation and devotion of the bank.^[441]          

Terrorism and Terrorism Financing as Exceptions to the Secrecy of Bank Deposits

 
Despite a recognition that the secrecy of bank deposits remains as the general rule, it can be seen that for years, the legislature has carved out certain exceptions for the crime of terrorism.

As early as 2003, the Anti-Money Laundering Act, as amended by R.A. No. 9194^[442] already gave the AMLC the power to issue bank inquiry orders, without the need for prior issuance of a court order, in relation to the crimes enumerated under Section 3(i)(1), (2), and (12) of the law, i.e. kidnapping for ransom; acts punished under the Comprehensive Dangerous Drugs Act of 2002; hijacking and other violations under R.A. No. 6235, destructive arson and murder, as defined by the Revised Penal Codes, as amended, including those perpetrated by terrorists against non-combatant persons and similar targets. Interestingly, this provision already recognized terrorists acts as an exception to the secrecy of bank deposits even before the passage of the HSA - the country's first anti-terrorism statute - four years later.

By 2012, the Anti-Money Laundering Act, as amended by R.A. No. 10167^[443] has explicitly added terrorism and conspiracy to commit terrorism as defined under the HSA to the crimes where no court order is required for bank inquiries. More importantly, in the same year, Congress passed R.A. No. 10168, or the "Terrorism Financing Prevention and Suppression Act of 2012"^[444] which contains provisions almost identical to Sections 35 and 36 of the ATA.

Even in the latest amendment to the Anti-Money Laundering Act of 2001 - R.A. No. 11521 passed on January 29, 2021 - terrorism as an exception to the rule on bank secrecy remains unchanged.

From the genealogy of the AMLC's powers, the legislative intent to make terrorism an exception to the general rule on bank secrecy is clear. Therefore, it behooves the Court to respect the legislature's decision, especially since the rule on secrecy of bank deposits is statutory.

As to freeze orders, the Court reiterates the points under Section 25 and rule that the freezing of assets ex parte is a necessary implication of preventing the financing of terrorist acts. Even as recognized in Republic v. Eugenio:^[445]

To make such freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the dissipation of such funds even before the order could be issued.^[446]

The ex parte freeze order is a preventive measure because it arises from the ATC's order of designation or the CA's preliminary order of proscription. Section 36 itself provides that the ex parte freeze order shall only be effective for 20 days and this period may only be extended for up to six months upon order of the Court of Appeals.^[447] It is also worth pointing out that in the 2019 MER Report, the APG stated that the lack of UNSC Resolution No. 1373 designations, along with a low number of assets and instrumentalities frozen, is not in line with the high risk of terrorism financing in the Philippines.^[448] Notably, due process is satisfied through subsequent notice and hearing to be conducted when a person seeks judicial protection from the Court of Appeals, as explicitly provided under Section 36.

Other Consequences of Designation

It can also be observed that a designation made under Section 25 may potentially affect third persons. First, it can lead to the prosecution of the donors or supporters of the designated individual or organization, association, or groups of persons under Section 12 of the ATA for providing material support or for giving material aid to a designated terrorist even if the determination was only made by the ATC.^[449] Second, it can make bank officials and bank employees liable for refusing to allow the examination of bank records of designated persons, groups, or organizations under Section 39.^[450]

Considering the consequences of designation, the Court emphasizes that any power or authority the ATC may exercise under Section 25 should thus be limited to confirming the designation or listing made by the UNSC and its Sanctions Committee, as well as affirming the applicability of the above-discussed sanctions under the ATA to the designee. Further, the sanctions are to be understood as merely preventive in nature, and should not have penal or criminal consequences. The ATC's function is thus narrowly interpreted to mean that the designation ends with the declaration that a person or group is a terrorist, and no other sanction or consequence may be imposed as a result of the exercise of this function. In this regard, the Court holds that once an automatic adoption is duly made, any consequence of that designation should, as it must, be reposed to the processes and implementation of other agencies - the AMLC with regard to the propriety of the ex parte order for bank inquiry and/or freeze order; the CA with regard to the surveillance and proscription; and the proper courts with regard to the punishment for violations of the pertinent provisions of the law.
 

Proscription under Sections 26, 27, and 28 of the ATA is a valid exercise of police power and passes the strict scrutiny test.

Sections 26, 27, & 28 of the ATA state:

Section 26. Proscription of Terrorist Organizations, Associations, or Group of Persons. - Any group of persons, organization, or association, which commits any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, or organized for the purpose of engaging in terrorism shall, upon application of the DOJ before the authorizing division of the Court of Appeals with due notice and opportunity to be heard given to the group of persons, organization or association, be declared as a terrorist and outlawed group of persons, organization or association, by the said Court.

The application shall be filed with an urgent prayer for the issuance of a preliminary order of proscription. No application for proscription shall be filed without the authority of the ATC upon the recommendation of the National Intelligence Coordinating Agency (NICA).

Section 27. Preliminary Order of Proscription. - Where the Court has determined that probable cause exists on the basis of the verified application which is sufficient in form and substance, that the issuance of an order of proscription is necessary to prevent the commission of terrorism, he/she shall, within seventy-two (72) hours from the filing of the application, issue a preliminary order of proscription declaring that the respondent is a terrorist and an outlawed organization or association within the meaning of Section 26 of this Act.

The court shall immediately commence and conduct continuous hearings, which should be completed within six (6) months from the time the application has been filed, to determine whether:

(a) The preliminary order of proscription should be made permanent;

(b) A permanent order of proscription should be issued in case no preliminary order was issued; or

(c) A preliminary order of proscription should be lifted. It shall be the burden of the applicant to prove that the respondent is a terrorist and an outlawed organization or association within the meaning of Section 26 of this Act before the court issues an order of proscription whether preliminary or permanent.

The permanent order of proscription herein granted shall be published in a newspaper of general circulation. It shall be valid for a period of three (3) years after which, a review of such order shall be made and if circumstances warrant, the same shall be lifted.

Section 28. Request to Proscribe from Foreign Jurisdictions and Supranational Jurisdictions. - Consistent with the national interest, all requests for proscription made by another jurisdiction or supranational jurisdiction shall be referred by the Department of Foreign Affairs (DFA) to the ATC to determine, with the assistance of the NICA, if proscription under Section 26 of this Act is warranted. If the request for proscription is granted, the ATC shall correspondingly commence proscription proceedings through DOJ.

Petitioners argue that although judicial proscription in Section 26 involves a court suit, its punitive sanctions turn it into a criminal action that requires compliance with the strict requirements of chie process. They contend that the provisional declaration of respondent as a proscribed entity under a preliminary order of proscription places a presumption of guilt against respondent, easing the DOJ's burden of proof under paragraph (c) of Section 27. They also point out that Sections 26 and 27 permit the issuance of a preliminary order of proscription though respondent has yet to be informed of the application for proscription.^[451] In the context of a facial analysis, petitioners urge the Court to nullify the assailed provisions due to the chilling effect of judicial proscription and the probable consequences it creates on the exercise of freedom of speech and its cognate rights.

To reiterate, the counterterrorism measure of proscription was enacted in line with the State's efforts to address the complex issue of terrorism in the country, especially since the most egregious terrorist attacks recently made have been planned and carried out by groups. In certain cases, several groups may even form a network where information and resources are shared across jurisdictions. An attack carried out in the Philippines may have been planned by a foreign group. Conversely, an attack to be carried out in a foreign state may be planned here by a domestically grown group. On that basis, the state has as much a reason to impose limits on the freedoms of a group as on the freedoms of an individual, even to the point of outlawing that group altogether. There is, therefore, no question that there is a compelling State interest or lawful purpose behind proscription. Likewise, in satisfaction of strict scrutiny and overbreadth, proscription under Sections 26, 27, and 28 constitutes as a lawful means of achieving the lawful State purpose considering that it provides for the least restrictive means by which the freedom of association is regulated, as will be herein explained.
 

The procedure of proscription instituted under the ATA is a judicial process and is done based on a determination of probable cause by the CA.

In the application for proscription, procedural due process is observed: the group of persons, organization, or association intended to be judicially declared a terrorist is afforded fair notice, as well as an open hearing. The CA's decision on the DOJ's verified petition for proscription is likewise published in a newspaper of general circulation.

But even before a petition for proscription is brought before the CA, there are proper procedural safeguards that the DOJ is required to observe to avoid an erroneous proscription. Based on the language of Section 26, the DOJ, on its own, cannot apply for the proscription of a group of persons, organization, or association. Section 26 specifically requires that the application for proscription shall be with "the authority of the ATC upon the recommendation of the National Intelligence Coordinating Agency (NICA)." Thus, even before an application is filed with the CA, the matter has already passed through three levels of investigation: first, when the DOJ asks for authority from the ATC to file the application; second, when the ATC asks the NICA to give its recommendation to the request made by the DOJ; and finally, the necessary executive determination to be made by the ATC before it gives its imprimatur to the DOJ to file the application.

It is only after compliance with the foregoing steps that judicial intervention will come in. Together, these steps provide layers of protection that may help prevent any arbitrary and erroneous proscription of groups of persons, associations, or organizations as terrorists. In this regard, these layers of protection ensure that the proscription mechanism under the ATA is narrowly tailored and constitutes the least restrictive means to achieve the compelling State interest.
 

Preliminary prescription orders are not unconstitutional.

Noticeably, the preliminary order of proscription is a feature not previously found in the HSA. Section 27 provides that the CA shall issue a preliminary order of proscription within 72 hours from the filing of the application, upon a finding of probable cause based solely on the application of the DOJ to prevent the commission of terrorism. The Court finds that allowing the issuance of a preliminary order of proscription would not cause the premature classification of a group as a terrorist without the benefit of a judicial trial in violation of the prohibition on the enactment of bills of attainder.

It is critical in resolving this issue to determine the nature and objective of a preliminary order of proscription. Section 27 explicitly states that the order is to be issued by the CA and is meant to prevent the commission of terrorism. In this context, it entails a judicial process that recognizes the necessity for effective counterterrorism measures. As discussed above, the consequences of the issuance of a preliminary order of proscription are, as expressly provided, the freezing of assets and/or bank inquiry or investigation by the AMLC pursuant to Sections 35 and 36 of the ATA. Considering the preliminary nature of the order of proscription under Section 27, the consequences of this Order must be necessarily limited to these two. Any other consequence should be subject to the more intricate processes and implementation of the relevant government agencies and bodies.

Furthermore, it is well to note that the procedure for the issuance of a preliminary order of proscription is subsumed in the application for proscription, for which the subject has already been notified. In other words, an application for a preliminary order of proscription under Section 27 is not a separate process from the application referred to in Section 26. This judicial process with the CA will ensure temperance of abuse, as the ATA itself guarantees that subjects of proscription should be given the opportunity to be heard.

The Court finds nothing constitutionally offensive insofar as a textual examination of the provisions on proscription is concerned. The language of Section 26 implies that notice and hearing are afforded to those who may be proscribed under the ATA, and the process is undoubtedly judicial in nature As such, the challenged provision appears to be reasonably circumscribed to prevent an unnecessary encroachment of protected freedoms.
 
Needless to say, the Court's present ruling on the issues raised against the validity of Sections 26 to 28 under the delimited facial analysis should not foreclose future challenges against judicial proscription where actual cases with extant facts are present. Indeed, judicial proscription is such a powerful counterterrorism tool that the safeguards included therein may not absolutely forestall abuse or misapplication. The courts should, therefore, not be precluded from resolving issues affecting the actual and practical operation of these provisions where the Court can intelligently adjudicate the issues.^[452]

On this score, the Court acknowledges that existing procedural rules may not be satisfactorily appropriate for the process of proscription, if and when an application is filed therefor. Hence, the Court considers it an opportune time to formulate some guidelines to be observed in applying for a proscription order under Section 26 to guide the bench, bar, and public. This is consistent with the rule-making authority of the Court under Section 5 (5), Article VIII of the 1987 Constitution, which states:

Section 5. The Supreme Court shall have the following powers:

x x x x

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.^[453] (Emphasis supplied)

Considering that proscription is a judicial process, the Court, in the exercise of its rule-making power, may promulgate the necessary procedural rules to govern such proceedings in the future.

To summarize the foregoing discussion, the following principles shall be observed:

1. After an application for proscription is filed by the DOJ, the authorizing Division of the CA shall, within 24 hours, determine whether said application is sufficient in form and substance.
   

An application shall be sufficient in form if it complies with the following requisites:
 

a)	it is verified or made under oath;
b)	it is accompanied by the recommendation of the NICA and the authorization of the ATC;
c)	it shows proof of service of the application to the group of persons, organization, or association sought to be proscribed.

Meanwhile, an application shall be sufficient in substance if:

a)	it specifically identifies the group of persons, organization, or association sought to be proscribed, including the names and addresses of every member so known at the time the application was made and the inclusive dates of their membership;
b)	it provides a detailed specification of the reasons or grounds relied upon that show the necessity for proscription; and
c)	it states the commitment of the applicant to have the permanent order of proscription, if granted, reviewed within six months prior to the expiration thereof.

Failure to comply with these requisites shall be sufficient cause for the outright dismissal of the application.

2. If the CA is satisfied that the application is sufficient in form and substance, it shall immediately commence and conduct continuous hearings, which should be completed within six months from the time the application was filed. Simultaneous with the commencement and the conduct of the continuous hearings, the CA shall also determine whether there is probable cause to issue a preliminary order of proscription, which should be made within 72 hours from the filing of the application. If it decides to issue the same, the preliminary order of proscription shall emphasize that only the AMLC's authority to freeze assets and to initiate a bank inquiry or investigation pursuant to Sections 35 and 36 of the ATA shall result from its issuance.
   
   
3. Non-appearance of respondent group of persons, organization, or association, as long as there is compliance with the publication of the preliminary order of proscription requirement upon directive of the CA, shall not prevent the CA from proceeding with the proscription hearings.
   
   
4. In-camera proceedings shall be adopted to ensure that sensitive and confidential information affecting national security will not be compromised without sacrificing the right to due process of those subjected to judicial proscription proceedings.
    
   
5. During the hearing, the CA shall determine whether: (a) a preliminary order of proscription should be made permanent; (b) whether a permanent order or proscription should be issued, if no preliminary order of proscription was issued; or (c) whether a preliminary order of proscription should be lifted. The applicant has the burden to show by clear and convincing evidence that a permanent order of proscription should issue.
   
   
6. From the issuance of a permanent order of proscription, the party aggrieved may appeal to the Court by petition for review on certiorari under Rule 45 of the Rules of Court, raising in the appeal all pertinent questions of law and issues. The appeal shall not stay the order of proscription unless the Court orders otherwise.
   
   
7. If the application is denied by the CA, no application shall be filed against the same group of persons, organization, or association within six months from the date of the denial. A subsequent application must be grounded on new evidence that the applicant could not have presented even in the exercise of due diligence or on substantially new circumstances.^[454]
   

Similar to the Court's instruction in Subido Pagente Certeza Mendoza and Binay Law Offices v. Court of Appeals,^[455] the Court directs the CA once again to draft the factual procedural rules based on the foregoing guidelines for submission to the Committee on the Revision of the Rules of Court and eventual approval and promulgation of the Court En Banc.

Detention without Judicial Warrant of Arrest under Section 29

Another contentious provision of the ATA is Section 29. The assailed provision states:

Section 29. Detention without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by the law enforcement agent or military personnel. The period of detention may be extended to a maximum period of ten (10) calendar days if it is established that (1) further detention of the person/s is necessary to preserve evidence related to terrorism or complete the investigation; (2) further detention of the person/s is necessary to prevent the commission of another terrorism; and (3) the investigation is being conducted properly and without delay.

Immediately after taking custody of a person suspected of committing terrorism or any member of a group of persons, organization or association proscribed under Section 26 hereof, the law enforcement agent or military personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest of the following facts: (a) the time, date, and manner of arrest; (b) the location or locations of the detained suspect/s and (c) the physical and mental condition of the detained suspect/s. The law enforcement agent or military personnel shall likewise furnish the ATC and the Commission on Human Rights (CHR) of the written notice given to the judge.

The head of the detaining facility shall ensure that the detained suspect is informed of his/her rights as a detainee and shall ensure access to the detainee by his/her counsel or agencies and entities authorized by law to exercise visitorial powers over detention facilities.

The penalty of imprisonment of ten (10) years shall be imposed upon the police or law enforcement agent or military personnel who fails to notify any judge as provided in the preceding paragraph. (Emphases and underscoring supplied)

Section 29 is implemented by the following pertinent provisions in Rule IX of the ATA IRR:

RULE 9.1. Authority from ATC in relation to Article 125 of the Revised Penal Code

Any law enforcement agent or military personnel who, having been duly authorized in writing by the ATC under the circumstances provided for under paragraphs (a) to (e) of Rule 9.2, has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the Act shall, without incurring any criminal liability for delay in the delivery of detained persons under Article 125 of the Revised Penal Code, deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by the law enforcement agent or military personnel. The period of detention may be extended to a maximum period of ten (10) calendar days if it is established that (a) further detention of the person/s is necessary to preserve the evidence related to terrorism or complete the investigation, (b) further detention of the person is necessary to prevent the commission of another terrorism, and (c) the investigation is being conducted properly and without delay.

The ATC shall issue a written authority in favor of the law enforcement officer or military personnel upon submission of a sworn statement stating the details of the person suspected of committing acts of terrorism, and the relevant circumstances as basis for taking custody of said person.

If the law enforcement agent or military personnel is not duly authorized in writing by the ATC, he/she shall deliver the suspected person to the proper judicial authority within the periods specified under Article 125 of the Revised Penal Code, provided that if the law enforcement agent or military personnel is able to secure a written authority from the ATC prior to the lapse of the periods specified under Article 125 of the Revised Penal Code, the period provided under paragraph (1) of this Rule shall apply.

RULE 9.2. Detention of a suspected person without warrant of arrest

A law enforcement officer or military personnel may, without a warrant, arrest:

a.	a suspect who has committed, is actually committing, or is attempting to commit any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, or 12 of the Act in the presence of the arresting officer;
b.	a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator of any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, or 12 of the Act, which has just been committed; and
c.	a prisoner who has escaped from a penal establishment or place where he is serving final judgment for or is temporarily confined while his/her case for any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, or 12 of the Act is pending, or has escaped while bring transferred from one confinement to another.

RULE 9.3. Immediate notification to the nearest court

Immediately after taking custody of the suspected person, the law enforcement agent or military personnel shall, through personal service, notify in writing the judge of the trial court nearest the place of apprehension or arrest of the following facts:

1. the time, date, and manner of arrest;
   
   
2. the exact location of the detained suspect; and
   
   
3. the physical and mental condition of the detained suspect.
   

For purposes of this rule, immediate notification shall mean a period not exceeding forty-eight (48) hours from the time of the apprehension or arrest of the suspected person.

x x x x

RULE 9.5. Notification to the ATC and CHR

The law enforcement agent or military personnel shall furnish the ATC and the Commission on Human Rights (CHR) copies of the written notification given to the judge in such manner as shall ensure receipt thereof within forty-eight (48) hours from the time of apprehension or arrest of the suspected person.

The primary and substantive arguments raised by petitioners against Section 29 revolve around its supposed violation of the principle of separation of powers and how it permits the ATC to infringe on the exclusive powers of the judiciary by authorizing the issuance of warrants other than by the courts.^[456] Petitioners maintain that the provision carves out an additional exception to Section 5, Rule 113 of the Rules of Court, thereby expanding its scope and encroaching on the Court's exclusive prerogative.^[457] They likewise assert that the assailed provision does not actually contemplate a valid warrantless arrest,^[458] because the wording of the provision requires the prior issuance of a written authority from the ATC to effect a warrantless arrest under Section 5, Rule 113. For petitioners, the requirement for the ATC to issue a written authority defeats the purpose of a warrantless arrest, which applies where the offender is caught in flagrante delicto or after a hot pursuit and where time is of the essence.^[459] Relative to these claims, petitioners also challenge Section 29 for allegedly empowering the ATC to issue arrest orders upon mere "suspicion", thus substituting to a lower legislatively-prescribed yardstick the strict standard of probable cause.^[460]

Petitioners also assail the validity of the supposed inordinately long detention period under Section 29. They insist that there is no factual justification to impose the 14- to 24-day period of detention, as its only basis was simply a conjecture by police officers when asked how long a period is needed to prepare a strong case.^[461] For them, the supposed intent to provide law enforcers additional time to prepare a "strong case" is not a valid reason to delay the delivery of an accused to judicial authorities.^[462] Further, petitioners contend that the 14- to 24-day period violates the 3-day limit for detentions without judicial charge under Section 18, Article VII of the Constitution.^[463]
 

Section 29 is susceptible to a facial challenge.

At this juncture, however, it should be stressed that the arguments against Section 29 shall be passed upon by the Court insofar as they become relevant in determining whether or not the said provision restrains or chills the exercise of the freedom of speech, expression, and their cognate rights, consistent with the overall framework of a facial analysis as earlier exhaustively discussed, and as petitioners themselves duly assert. To be sure, within the context of a facial challenge, the Court gives particular attention to petitioners' claim that the ATA, in authorizing the arbitrary arrest of mere suspects and their prolonged detention without judicial warrant or intervention, infringes on the freedoms of expression, assembly, and association among other constitutional rights.^[464] Petitioners contend in this regard that the ATA suffers a heavy presumption against its constitutional validity for being a prior restraint to protected speech,^[465] in that "the threat of arrest without a judicial warrant and prolonged detention would be more than chilling enough to stifle, suppress, if not totally snuff out, any fire, flame, or even flicker, of indignation or protest against government corruption, oppression, and abuse."^[466] Petitioners also submit that the danger of being arrested without a judicial warrant and the resulting prolonged detention has caused fear among staunch critics of the government that their impassioned activism may result to being subjected to the consequences of Section 29. To put it simply, petitioners aver that the threat of arrest creates a "chilling effect" on speech, expression, and its cognate rights.

The Court, from the immediately preceding arguments, finds sufficient basis to proceed to a facial analysis of Section 29. Similar to the finding on the effects of designation and proscription, petitioners have demonstrated a prima facie case as to the possible restraint and chilling effect that a warrantless arrest to be made under Section 29 may have on speech and expression. Again, although Section 29 is not exclusively a speech provision per se, its implementation - as petitioners themselves allege - has a significant impact in the exercise of the freedom of speech and expression in that it intimidates individuals and groups in the exercise of such rights. The belief of petitioners that the threat of an arrest without a judicial warrant and that the resulting prolonged detention causes undue fear and disquiet even as to those legitimately exercising their right to speak and express is seemingly sensible. The fear of possible physical harm upon arrest and possible duress during prolonged detention may indeed create an unwarranted and unjustified atmosphere that leads to a chilling of speech and expression, if not duly passed upon by the Court.

Since the implementation and effects of Section 29 have grave implications on the exercise of free speech and expression, it is therefore a proper subject of a facial analysis using, once again, the overbreadth doctrine and the strict scrutiny test. To reiterate, these two analytical tools were developed for testing, on their faces, statutes involving free speech and expression according to Romualdez v. Sandiganbayan^[467] and Spouses Romualdez v. Commission on Elections.^[468] The third analytical tool, the void for vagueness doctrine, will not be utilized to test the validity of Section 29 because petitioners have not sufficiently presented any demonstrable claim that the wording or text of the assailed provision is ambiguous, or that it fails to specify what is prohibited or required to be done so that one may act accordingly.
 

Warrants of Arrest and Warrantless Arrests Under the Current Legal Framework

Before the Court proceeds to analyze the validity of Section 29, it is inclined, firstly, to provide a brief overview of the doctrines and rules that have developed relating to the authority of judges to issue warrants of arrest; and secondly, to discuss the conceptual underpinnings of the recognized instances of valid warrantless arrests. The Court believes that both these discussions are essential in order to properly frame the facial analysis of Section 29, as well as to provide a theoretical demarcation point between the existing legal framework and the nature of the arrest and detention envisioned as a counterterrorism measure under Section 29.

Warrants of Arrest

Section 2, Article III of the Constitution protects the right of the people against unreasonable searches and seizures:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The right protected in Section 2, Article III is guaranteed by the well-established rule, also stated in the said provision, that only judges can issue warrants of arrest after a personal determination that there is probable cause to arrest an individual. The rationale behind this rule is the recognition that the Constitution protects the privacy and sanctity of the person, and the right serves as an assurance against unlawful arrests and other illegal forms of restraint on a person's physical liberty.^[469]

An examination of the history of the Constitution's phraseology of the right protected under Section 2, Article III would show a clear intention to limit the authority of issuing warrants of arrests to the courts. Section 1 (3), Article III of the 1935 Constitution categorically stated that only judges can issue warrants of arrest:

Section 1. x x x

x x x x

(3) The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis and underscoring supplied)

A significant shift in this policy was introduced in the 1973 Constitution, wherein "such other responsible officer[s]" were also authorized to issue warrants of arrest:

Section 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis and underscoring supplied)

When asked which officers were authorized by law to issue warrants, Delegate Rodolfo A. Ortiz answered "that the provision contemplated the 'situation where the law may authorize the fiscals to issue search warrants or warrants of arrest.'"^[470] It was not until the most notable use of this provision, however, did the danger of allowing other officers authorized by law was realized; for, this provision became the basis for the issuance of the notorious and the much-abused Arrest, Search and Seizure Orders (ASSOs) by the Secretary of National Defense during Martial Law.

More aware of the dangers of extending the power to issue warrants of arrest to executive officials, and having traumatically experienced its grievous implementation to the detriment of fundamental rights, the framers of the 1987 Constitution decided to discard the phrase "or such other responsible officer as may be authorized by law" from the provision to be adopted under the new Constitution. As remarked by former Associate Justice and Chairperson of the Constitutional Commission Cecilia Muñoz-Palma:

x x x x

The Marcos provision that search warrants or warrants of arrest may be issued not only by a judge but by any responsible officer authorized by law is discarded. Never again will the Filipino people be victims of the much-condemned presidential detention action or PDA or presidential commitment orders, the PCOs, which desecrate the rights to life and liberty, for under the new provision a search warrant or warrant of arrest may be issued only by a judge.^[471]

Eminent constitutionalist Fr. Joaquin Bernas, S.J. explained the intent to limit the authority to issue search and arrest warrants to judges only during the deliberations for the 1987 Constitution, to wit:

The provision on Section 3 [now Section 2] reverts to the 1935 formula by eliminating the 1973 phrase "or such other responsible officer as may be authorized by law," and also adds the word PERSONALLY on line 18. In other words, warrants under this proposal can be issued only by judges.^[472]

That the Constitution only permits a judge to issue warrants of arrest - not an officer of the legislative or the executive department - is not an accident. It is corollary to the separation of powers and the mandate under Section 1, Article III of the Constitution that no person should be deprived of his property or liberty without due process of law. The Fourth Amendment of the U.S. Constitution, on which Section 2, Article III of our Constitution is based, was borne out of colonial America's experience with "writs of assistance" issued by the British authorities in favor of revenue officers, empowering them to search suspected places of smuggled goods based only on their discretion. It has been described as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book" since they placed "the liberty of every man in the hands of every petty officer."^[473] It is because of this that the Court vigilantly guards against any attempt to remove or reallocate the judiciary's exclusive power to issue warrants of arrest.

Jurisprudence under the 1935 and 1987 Constitutions has time and again affirmed the rule that only judges may issue search or arrest warrants. In Salazar v. Achacoso,^[474] the Court declared paragraph (c), Article 38 of the Labor Code unconstitutional. The Court reiterated that the Secretary of Labor, not being a judge, may not issue search or arrest warrants.^[475] The Court reaffirmed the following principles:

1. Under Article III, Section 2, of the 1987 Constitution, it is only judges, and no other, who may issue warrants of arrest and search;

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of deportation.^[476]

Likewise, in Ponsica v. Ignalaga^[477] the Court emphatically declared that:

No longer does the mayor have at this time the power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local Government Code, conferring this power on the mayor has been abrogated, rendered functus officio by the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino people. x x x^[478]

Similarly, in the case Presidential Anti-Dollar Salting Task Force v. Court of Appeals^[479] the Court ruled that a prosecutor has no power to order an arrest under the Constitution. The Court explained that:

x x x [T]he Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is done and not necessarily to secure the conviction of the person accused," he stands, invariably, as the accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of arrest, is to make him both judge and jury in his own right, when lie is neither. That makes, to our mind and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002, unconstitutional.^[480] (Citation omitted)

Warrantless Arrests

As explained above, the general rule is that no arrest can be made without a valid warrant issued by a competent judicial authority.^[481] Warrantless arrests, however, have long been allowed in certain instances as an exception to this rule. Section 5, Rule 113 of the Rules these recognized instances:

Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.

While these are not the only instances under the Rules which allow valid warrantless arrests,^[482] the enumeration in Section 5, Rule 113 is of particular interest because the enumeration is substantially mirrored under Rule 9.2 of the IRR. More specifically, the warrantless arrests allowed under Section 5(a), or arrests in flagrante delicto, and under Section 5(b), or arrests in hot pursuit, are considered mainly in this case, in view of the peculiar mechanics in the implementation of Section 29 of the ATA, as well as the allegations raised against the said provision.

For Section 5(a) of Rule 113 to operate, two elements must concur: first, the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime, and second, such overt act is done in the presence or within the view of the arresting officer.^[483] The Court follows in this regard the long-standing rule that reliable information alone is not sufficient to justify a warrantless arrest under this mode.^[484]

On the other hand, the application of Section 5(b) requires two elements: first, that at the time of the arrest, a crime or an offense had in fact just been committed; and second, the arresting officer has probable cause to believe, based on his or her personal knowledge of facts or circumstances, that the person to be arrested had committed the crime or offense.^[485] For this mode of warrantless arrest, the Court has emphasized that it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime - a crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition, and it is not enough to suspect that a crime may have been committed.^[486] There is also a time element of "immediacy" required under Section 5(b), as explained by the Court in Veridiano v. People^[487]:

Rule 113, Section 5 (b) of the Rules of Court pertains to a hot pursuit arrest. The rule requires that an offense has just been committed. It connotes "immediacy in point of time." That a crime was in fact committed does not automatically bring the case under this rule. An arrest under Rule 113, Section 5 (b) of the Rules of Court entails a time element from the moment the crime is committed up to the point of arrest.

Law enforcers need not personally witness the commission of a crime. However, they must have personal knowledge of facts and circumstances indicating that the person sought to be arrested committed it.^[488]

Note that in both instances, the officer's personal knowledge of the fact of the commission of an offense is absolutely required, the difference being that under paragraph (a), the officer himself or herself witnesses the crime, while under paragraph (b), he or she knows for a fact that a crime has just been committed.^[489]

The personal knowledge required under Section 5 (b) goes into determining whether probable cause exists for the warrantless arrest. As explained by the Court in Pestilos v. Generoso^[490] (Pestilos):

x x x x

x x x [T]he arresting officer's determination of probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure is based on his personal knowledge of feels or circumstances that the person sought to be arrested has committed the crime. 'These facts or circumstances pertain to actual facts or raw evidence, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.

The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged, or an actual belief or reasonable ground of suspicion, based on actual facts. (Emphases and citations omitted)

The probable cause requirement for warrantless arrests under the second mode had been clarified and highlighted in Sapla.^[491] Similar to the long-standing rule under the first mode that reliable information alone is not sufficient to justify a warrantless arrest, Sapla instructed that law enforcers cannot act solely on the basis of confidential or tipped information, since a tip is still hearsay no matter how reliable it may be. Sapla stressed that a tip, no matter how reliable, is not sufficient to constitute probable cause in the absence of any other circumstances that will arouse suspicion. The Court further explained that exclusive reliance on information tipped by informants goes against the nature of probable cause, for a single hint hardly amounts to the existence of such facts and circumstances which would lead a reasonable man to believe that an offense has been committed. Associate Justice Alfredo Benjamin S. Caguioa's ponencia ratiocinated that:

Adopting a contrary rule would set an extremely dangerous and perilous precedent wherein, on the sheer basis of an unverified information passed along by an alleged informant, the authorities are given the unbridled license to [effect warrantless arrests], even in the absence of any overt circumstance that engenders a reasonable belief that an illegal activity is afoot.

This fear was eloquently expressed by former Chief Justice Artemio V. Panganiban in his Concurring and Dissenting Opinion in People v. Montilla. In holding that law and jurisprudence require stricter grounds for valid arrests and searches, former Chief Justice Panganiban explained that allowing warrantless searches and seizures based on tipped information alone places the sacred constitutional right against unreasonable searches and seizures in great jeopardy:

x x x Everyone would be practically at the mercy of so-called informants, reminiscent of the Makapilis during the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed, the majority's ruling would open loopholes that would allow unreasonable arrests, searches and seizures.

It is not hard to imagine the horrid scenarios if the Court were to allow intrusive warrantless searches and seizures on the solitary basis of unverified, anonymous tips.

Any person can easily hide in a shroud of anonymity and simply send false and fabricated information to the police. Unscrupulous persons can effortlessly take advantage of this and easily harass and intimidate another by simply giving false information to the police, allowing the latter to invasively search the vehicle or premises of such person on the sole basis of a bogus tip.

On the side of the authorities, unscrupulous law enforcement agents can easily justify the infiltration of a citizen's vehicle or residence, violating his or her right to privacy, by merely claiming that raw intelligence was received, even if there really was no such information received or if the information received was fabricated.

Simply stated, the citizen's sanctified and heavily-protected right against unreasonable search and seizure will be at the mercy of phony tips. The right against unreasonable searches and seizures will be rendered hollow and meaningless. The Court cannot sanction such erosion of the Bill of Rights.^[492] (Emphasis, italics, and underscoring supplied; citations omitted)

Once a person is validly arrested without a warrant, Article 125 of the RPC will apply and his or her detention should not exceed the periods indicated therein, as follows:

Article 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall tail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by EO No. 272, July 25, 1987. This EO No. 272 shall take effect thirty (30) days following its publication in the Official Gazette).

So as to prevent any undue curtailment of an apprehended suspect's liberty, Article 125 of the RPC renders the detaining officer criminally liable if he does not deliver the detainee to the proper judicial authorities within the given period.
 

Section 29, properly construed, does not provide for an "executive warrant of arrest" nor warrantless arrest on mere suspicion.

Guided by the above discussion, there is an apparent need to clarify the meaning of Section 29 insofar as the parties insist on varying interpretations. On this point, the Court abides by the principle that if a statute can be interpreted in two ways, one of which is constitutional and the other is not, then the Court shall choose the constitutional interpretation. As long held by the Court:

Every intendment of the law should lean towards its validity, not its invalidity. The judiciary, as noted by Justice Douglas, should favor that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality.^[493]

Notably, it has also been stated that "laws are presumed to be passed with deliberation [and] with full knowledge of all existing ones on the subject";^[494] therefore, as much as possible, the Constitution, existing rules and jurisprudence, should he read into every law to harmonize them within the bounds of proper construction.

Accordingly, with these in mind, the Court's construction is that under Section 29, a person may be arrested without a warrant by law enforcement officers or military personnel for acts defined or penalized under Sections 4 to 12 of the ATA but only under any of the instances contemplated in Rule 9.2, i.e., arrest in flagrante delicto, arrest in hot pursuit, and arrest of escapees, which mirrors Section 5, Rule 113 of the Rules of Court. Once arrested without a warrant under those instances, a person may be detained for up to 14 days, provided that the ATC issues a written authority in favor of the arresting officer pursuant to Rule 9.1, upon submission of a sworn statement stating the details of the person suspected of committing acts of terrorism and the relevant circumstances as basis for taking custody of said person. If the ATC does not issue the written authority, then the arresting officer shall deliver the suspected person to the proper judicial authority within the periods specified under Article 125 of the RPC - the prevailing general rule. The extended detention period - which, as will be explained in the ensuing discussions, is the crux of Section 29 - is therefore deemed as an exception to Article 125 of the RPC based on Congress' own wisdom and policy determination relative to the exigent and peculiar nature of terrorism and hence, requires, as a safeguard, the written authorization of the ATC, an executive agency comprised of high-ranking national security officials.

In fact, it is palpable that the subject matter of Section 29 is really the extended detention period, and not the grounds for warrantless arrest, which remains as those instances provided by Section 5, Rule 113. A keen scrutiny of the wording of Section 29 would show that the provision centers on Article 125 of the RPC, which pertains to the period of detention. Consequently, Section 29 primarily evokes the exception to Article 125 by stating that the apprehending/detaining officer does not incur criminal liability for "delay in the delivery of detained persons to the proper judicial authorities", provided that the written authorization of the ATC for the purpose is first secured, which henceforth, allows such delivery within the extended period of 14 calendar days. Again, for ready reference, Section 29 reads:

The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by the law enforcement agent or military personnel. x x x

As a further safeguard, Section 29 provides that the arresting officer is likewise duty-bound under Rule 9.3 to immediately notify in writing, within a period not exceeding 48 hours, the judge of the court nearest the place of apprehension of the details of such arrest. The ATC and CHR must be furnished copies of the written notification given to the judge, which should be received by the said agencies within the same 48-hour period, as provided in Rule 9.5. Section 29, as reflected in Rule 9.1, allows the extension of the detention period to a maximum period of 10 calendar days if the grounds to allow the extension are established.
 

The written authorization of the ATC under Section 29 is not an executive warrant of arrest.

Based on the considerations stated above, it is therefore clear that the arrest and detention contemplated in Section 29 does not divert from the rule that only a judge may issue a warrant of arrest. This is confirmed by Rule 9.2 of the ATA IRR which, again as observed above, replicates the enumeration in Section 5, Rule 113 relative to the crimes defined under the ATA. Without a doubt, when the circumstances for a warrantless arrest under Section 5, Rule 113 or Rule 9.2 are not present, the government must apply for a warrant of arrest with the proper court.

Therefore, contrary to the claim of petitioners, the written authorization contemplated in Section 29 does not substitute a warrant of arrest that only the courts may issue. On this score, the OSG has stressed during the oral arguments that the written authorization in Section 29 is not a judicial warrant, as revealed in the explanation of the government during the oral arguments:

ASSISTANT SOLICITOR GENERAL GALANDINES:

Your Honor, please, may we respectfully disagree. The law enforcers can arrest following...by virtue of a valid warrantless arrest. The ATC will not have a...would have no participation in the arrest. The participation of the ATC would conic after the arrest, the valid warrantless arrest has already been effected and then the ATC would now participate by allowing the detention for more than three (3) days. Your Honor. Pero sa pag-aresto po, wala pong kukunin from the ATC.^[495] (Underscoring and italics in the original)

The OSG's position is consistent with Section 45 of the ATA, which categorically states that the ATC has not been granted any judicial or quasi-judicial power or authority. A textual reading of Section 29 in relation to Rule 9.1 of the IRR also supports this conclusion. The two provisions, taken together, show that the ATC issues a written authorization to law enforcement agents only to permit the extended detention of a person arrested after a valid warrantless arrest is made under Rule 9.2.

To reiterate, the written authorization of the ATC is for the purpose of "deliver[ing] said suspected person to the judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody x x x". Thus, it can only be issued in favor of an officer who had already validly arrested a person with probable cause to believe that Sections 4 to 12 of the ATA was violated. On a practical level, the ATC's written authorization is what determines whether it is the periods of detention under Article 125 or Section 29 that are to be followed. This is because the arresting officer may not have all the information to make that determination at that time. On the ground, the arresting officer may lack the necessary information (such as confidential intelligence reports) to actually determine that Sections 4 to 12 of the ATA was violated at the time of the warrantless arrest. In Pestilos,^[496] the Court recognized that in a warrantless arrest, the arresting officer, public prosecutor, and the judge are all mandated to make their respective determination of probable cause within the spheres of their respective functions, "its existence is influenced heavily by the available facts and circumstances within their possession." While they observe "the same standard of a reasonable man, they possess dissimilar quantity of facts or circumstances, as set by the rules, upon which they must determine probable cause." The foundation for their respective determination of probable cause will vary because:

x x x [T]he arresting officer should base his determination of probable cause on his personal knowledge of facts and circumstances that the person sought to be arrested has committed the crime; the public prosecutor and the judge must base their determination on the evidence submitted by the parties.

In other words, the arresting officer operates on the basis of more limited facts, evidence or available information that he must personally gather within a limited time frame.^[497] (Emphasis supplied)

Section 5, Rule 113 nonetheless gives the officer license to already arrest the offender, since the said provision allows warrantless arrests when an offense was committed or being committed in his presence or that he has probable cause to believe that an offense has just been committed, and that the person to be arrested has committed it based on the arresting officer's personal knowledge of facts or circumstances. If, however, there is probable cause to believe that the crime committed was no ordinary crime, but rather a terrorist act under Sections 4 to 12 of the ATA, a written authorization may be issued by the ATC in order to detain the suspect for a period longer than that which is allowed under Article 125 of the RPC. Without such written authorization duly issued by the ATC itself, the general rule under Article 125 of the RPC operates. On this understanding, which the Court holds is the correct one, the ATC's written authorization does not operate as a warrant of arrest.

To stress, when Section 29 is harmonized with the provisions of the 1RR, it is clear that the contested written authority to be issued by the ATC is not in any way akin to a warrant of arrest. To be operative, there must have been a prior valid warrantless arrest of an alleged terrorist that was effected pursuant to Section 5, Rule 113 of the Rules of Court by the arresting officer applying for the written authority under Section 29. This conclusion is apparent from the substantial similarity between Rule 9.2 and Section 5, Rule 113, though the former may be narrower in scope as it applies only to offenses under the ATA. As discussed, Section 5, Rule 113 enumerates the long-recognized exceptions to the constitutional mandate requiring the issuance of a judicial warrant for the arrest of individuals.

Under Section 29 and Rule 9.2, a person arrested without a warrant may be detained for up to 14 days if the ATC issues a written authorization in favor of the law enforcement officer or military personnel after the arrest is made. The issuance of the authorization after the arrest is implied by the requirement under Rule 9.1 of the IRR for the arresting officer to submit a sworn statement stating the details of the person suspected of committing acts of terrorism and the relevant circumstances as basis for taking custody of the said person without a judicial warrant. If the ATC does not issue any written authorization, then the person arrested should be delivered to the proper judicial authority within 36 hours as provided under Article 125, considering that Sections 4 to 12 of the ATA are "crimes, or offenses punishable by afflictive or capital penalties, or their equivalent". Thus, there is no reason to believe that the "written authorization" that the ATC can issue under Section 29 is equivalent to a warrant of arrest that transgresses a function solely vested with the judiciary and may be abused by the executive to chill free speech. The power to issue warrants of arrest remains with the courts, pursuant to Article III, Section 2 of the Constitution.

The written authorization also cannot be likened to the feared ASSO that was used and abused during the Martial Law era. There are marked differences between the written authorization of the ATC under Section 29 and the ASSO that framers of the Constitution intended to eradicate.

The notorious ASSO originated from General Order No. 2, s. 1972 wherein former President Ferdinand Marcos ordered the Secretary of National Defense to "arrest or cause the arrest and take into x x x custody x x x individuals named in the attached list and to hold them until otherwise so ordered by me [the President] or by my duly designated representative." Me also instructed the arrest of such "persons as may have committed crimes and offenses in furtherance or on the occasion of or incident to or in connection with the crimes or insurrection or rebellion, as well as persons who have committed crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, title, improper use of name, uniform and insignia, including persons guilty of crimes as public officers, as well as those persons who may have violated any decree or order promulgated by me [the President] personally or promulgated upon my direction."^[498] This issuance was later amended by General Order No. 60, s. 1977 and General Order No. 62, s. 1977, and was incorporated in Presidential Decree (P.D.) No. 1836.

In contrast, as explained, the written authority under Section 29 is not an authority to arrest a person suspected of committing acts in violation of the ATA. Instead, there must first be a valid warrantless arrest under Section 5, Rule 113 of the Rules. Therefore, unlike the ASSO, the written authorization does not replace any warrant of arrest that only the courts may issue.

Furthermore, a careful analysis of the purpose of the written authorization in Section 29 reveals that it actually serves as a safeguard to ensure that only individuals who are probably guilty of committing acts punishable under the ATA may be subjected to prolonged detention under Section 29. The pre-requisite of the ATC's written authorization for such prolonged detention serves to spare individuals who may have committed felonies defined under the RPC or offenses made punishable by special penal laws from prolonged detention. As stressed by the OSG, Section 29 provides protection to the detained person because the arresting officer must show proof that facts exist showing the propriety of the 14-day or extended 10-day detention before it may be given effect.^[499]
 

Section 29 does not allow warrantless arrests based on mere suspicion; probable cause must be observed.

Since Section 29 applies to warrantless arrests, the processes, requisites, and rigorous standards applicable to such kind of arrests, as developed by rules and jurisprudence also apply to Section 29. Among other things, these include the requirement of personal knowledge and the existence of probable cause. Thus, it is important to clarify that, contrary to the concerns of petitioners, Section 29 does not allow warrantless arrests for violations of the relevant provisions of ATA based on mere suspicion. Once more, it is settled doctrine that in construing a statute, the Constitution and existing laws and rules are harmonized rather than having one considered repealed in favor of the other. Every statute must be so interpreted and brought in accord with other statutes to form a uniform system of jurisprudence - interpretere et concordare legibus est optimus interpretendi. If diverse statutes relate to the same thing, they ought to be taken into consideration in construing any one of them, as it is an established rule of law that all acts in pan materia are to be taken together, as if they were one law.^[500] Here, the conclusion that the standard to be observed in warrantless arrest under Section 29 remains to be probable cause and not mere suspicion is made clear by Rule 9.2 of the IRR which is patterned after Section 5(a) and (b) of Rule 113 of the Rules. At a glance, Rule 9.2 of the IRR and Section 5, Rule 113 appear almost identical in the sense that they both utilize similar language in introducing the concepts of in flagrante delicto, hot pursuit, and arrest of escapees.

Noticeably, the person to be arrested in Section 5, Rule 113 is referred to as a "person," while in Rule 9.2 of the IRR the individual to be arrested is referred to as a "suspect." However, it does not follow that the two provisions are already different from each other. The use of the word "suspect" in Section 29 cannot be taken to mean that the gauge of evidence has been downgraded from probable cause to mere suspicion. The Court construes the use of the word "suspect" in Section 29 as merely a description of the person who was arrested, and does not alter the probable cause and personal knowledge requirements that must be complied with in carrying out the warrantless arrest. This is consistent with the argument of the OSG^[501] - that is, that the use of the term "suspected" in this case is merely a description of one who has been arrested and detained after a valid warrantless arrest, and who is simply not yet been "charged with" a violation of the ATA before the courts. Simply put, a "suspect" refers to one who has yet to be charged in court, whereas one who is charged is called an "accused". This is the only significance of the word "suspected," which describes the person validly arrested without judicial warrant but who is not yet charged in court, as in fact, Section 29 contemplates an extended detention period within which the person is still bound to be delivered to the proper judicial authority.

Accordingly, any argument relating to the possibility of a "chilling effect" upon protected speech purportedly created by Section 29's use of the term "suspected" is without merit. Section 29 and Rule 9.2 of the IRR does not modify the prevailing standards for warrantless arrests and does not authorize the ATC to issue arrest warrants.

The Court further clarifies that Section 29 must be construed in harmony with prevailing standards for a warrantless arrest. Thus, in making the arrest, no violence or unnecessary force shall be used, and any person to be arrested shall not be subject to a greater restraint than is necessary, as provided under Section 2, Rule 113 of the Rules. The arresting officer must also keep in mind the importance of Section 12(1), Article III^[502] of the Constitution, as the provision guarantees that persons to be arrested have the right to be informed of their right to remain silent, their right to have competent and independent counsel of their choice, and their right to be provided with counsel if they cannot afford the services of one. These Miranda rights, which originated from the landmark ruling of the U.S. Supreme Court in Miranda v. Arizona,^[503] were further elucidated in People v. Mahinay^[504] as follows:

It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments:

1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; [e]very other warnings, information or communication must be in a language known to and understood by said person;

2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;

5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;

6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means [either by] telephone, radio, letter or messenger with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization [and] [i]t shall be the responsibility of the officer to ensure that this is accomplished;

7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure[d] that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist[s] on his waiver and chooses to speak;

9. That the person arrested must be informed that he may indicate in any manner at any time or stage ol the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun;

10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements;

11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.^[505]

The Court notes that the enumeration in Mahinay already covers, under numbers 1 and 6 thereof, Sections 8, Rule 113 of the Rules of court on the method of arrest to be followed by an officer without a warrant,^[506] as well as Section 14, Rule 113 on the right of an attorney or relative to visit the person arrested.^[507] Additionally, Rule 3, Section 113^[508] also makes it the duty of an officer making the arrest, and hence a right on the part of the person arrested, to deliver the person arrested to the nearest police station or jail without unnecessary delay.
 

Section 29 supplements Article 125 of the RPC and is the specific rule applicable for offenses penalized under the ATA.

Section 29 does not amend Article 125 of the RPC, but supplements it by providing an exceptional rule with specific application only in cases where: (1) there is probable cause to believe that the crime committed is that which is punished under Sections 4 to 12 of the ATA; and (2) a written authorization from the ATC is secured for the purpose. As explained above, both requisites must be complied with; otherwise, the arresting officer must observe the periods provided under Article 125, RPC.

As correctly argued by the government, Section 29 does not repeal nor overhaul Article 125 of the RPC. These provisions are not irreconcilably inconsistent and repugnant with each other.^[509] Rather, the proper construction is to consider Article 125 as the general rule that also applies to ATA-related offenses when the conditions under Section 29 are not met. The periods under Section 29 will only become operative once the arresting officer has secured a written authorization from the ATC, in compliance with the requirements of Section 29.^[510]

The foregoing interpretation also finds support when the Court detaches from the first paragraph of Section 29 any reference to the authorization to be issued by the ATC and its only intended consequence, to wit:

The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by the law enforcement agent or military personnel. x x x (Emphases and underscoring supplied)

Since Section 29 applies exclusively to persons validly arrested without a warrant for terrorism and its related crimes under the ATA and written authorization is secured from the ATC, the 14-day detention period under it should then be read as supplementing the periods provided under Article 125 of the RPC. The Court holds that this is the proper interpretation of Section 29. As Section 29 itself declares, the 14-day detention period is applicable, Article 125 to the contrary notwithstanding, provided that the above-stated requisites attend.

On this note, the argument raised that Section 29 is inconsistent with Article 125 of the RPC is hence, unmeritorious. The fact that Article 125 preceded Section 29 by a significant number of years is not a reason to view the validity or invalidity of Section 29 through the lens of Article 125, in the manner that the validity or invalidity of all statutes should be viewed through the lens of the Constitution. Both Article 125 of the RPC and Section 29 of the ATA are penal statutes which may be amended, modified, superseded, or supplemented by subsequent statutes; and if there be any inconsistency between the two, it is well-settled that it is the duty of the courts to harmonize them when the occasion calls. The Court finds no inconsistency in this case.
 

Section 29 of the ATA passes strict scrutiny and is not overly broad.

Considering that Section 29 was introduced in the exercise of police power, its validity must be determined within the context of the substantive due process clause, as have been discussed earlier. This requires the concurrence of lawful purpose and lawful means. Further, in the facial analysis of Section 29, the Court is guided by the parameters similarly observed in resolving the challenges in other provisions of the ATA. As with the Court's discussion on designation and proscription, the Court will test the validity of Section 29 through the doctrines of overbreadth and strict scrutiny. As aforementioned, a law may be struck down as unconstitutional under the overbreadth doctrine if it achieves a governmental purpose by means that are unnecessarily broad and thereby invade the area of protected freedoms, while the strict scrutiny standard is a two-part test under which a law or government act passes constitutional muster only if it is necessary to achieve a compelling state interest, and that it is the least restrictive means to protect such interest or narrowly tailored to accomplish said interest.

The Court finds that Section 29 passes the strict scrutiny standard. It is clear that the state has a compelling interest to detain individuals suspected of having committed terrorism. While Article 125 of the RPC has general application, Congress did not think that it could be effectively applied in cases of terrorism. This is implicit in the fact that even the HSA had provided for a 3-day maximum period in cases of terrorism instead of those set in Article 125 of the RPC. But as can be gleaned from the Senate deliberations, Congress thought that the 3-day maximum period under the HSA was insufficient for purposes of: (1) gathering admissible evidence for a prospective criminal action against the detainee;^[511] (2) disrupting the transnational nature of terrorist operations, with Senator Dela Rosa citing his experiences with Muhammad Reza, who was captured, released for lack of evidence, and then went on to join ISIS in Iraq;^[512] (3) preventing the Philippines from becoming an "experiment lab" or "safe haven" for terrorists;^[513] and (4) putting Philippine anti-terrorism legislation at par with those of neighboring countries whose laws allow for pre-charge detention between 14 to 730 days, extendible, in some cases, for an indefinite period of time.^[514]

There is no question that indefinite detention without a judicial warrant would raise a serious constitutional problem. "Freedom from imprisonment - from government custody, detention, or other forms of physical restraint - lies at the heart of the liberty that the [Due Process Clause] protects."^[515] Section 29 of the ATA, however, does not allow for indefinite detention. It clearly states that the initial detention is only up to a maximum of 14 days and only when the crime involved is that which falls under Sections 4, 5, 7, 6, 7, 8, 9, 10, 11 and 12 of the ATA. This can only be extended for a maximum of 10 days and cannot be repeated. In other words, the absolute maximum that a person may be detained under Section 29 is 24 days. The question then is whether Congress is constitutionally prohibited by the Due Process Clause, in relation to Section 2, Article III, to legislate a period of detention longer than that which is set by Article 125 of the RPC in cases of terrorism. The Court holds that it is not.

It may be noted that the periods in Article 125 have undergone several revisions over time. Article 202 of the Old Penal Code, on which Article 125 of the RPC is based, provided for a maximum detention of 24 hours.^[516] Article 125 initially fixed the maximum period to six hours. It then underwent a series of revisions during the Martial Law period under former President Marcos. On the supposition that "the periods within which arrested persons shall be delivered to the judicial authorities as provided in Article 125 of the Revised Penal Code, as amended, are on occasions inadequate to enable the government to file within the said periods the criminal information against persons arrested for certain crimes against national security and public order", he issued P.D. No. 1404, which set the periods as 'six hours, for crimes or offenses punishable by light penalties, or their equivalent; nine hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and eighteen hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent', but allowing up to 30 days for crimes against national security and public order. Then came P.D. No. 1836 which allowed indefinite detention until the President or his authorized representative orders release. Two years after the formal lifting of Martial Law came P.D No. 1877, amended by P.D. No. 1877-A, which allowed a "preventive detention action" for up to one year for "cases involving the crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes, sedition, conspiracy to commit sedition, inciting to sedition, and all other crimes or offenses committed in furtherance thereof."

P.D. Nos. 1404, 1836, and 1877 were then repealed by President Corazon Aquino by virtue of E.O. No. 59, Series of 1986 (dated November 7, 1986), effectively causing a return to the original provision of Article 125. Less than a year later, she issued E.O. No. 272, Series of 1987 (dated July 25, 1987) in the interest of public safety and order, amending Article 125 into its present form as above-cited.

More recently, under Section 18 of the HSA, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism had up to three days to deliver the latter to the proper judicial authority without incurring criminal liability under Article 125 of the RPC. Clearly, it is within the legislature's discretion to adjust the pre-charge detention periods based on perceived threats to national security and/or public order at any given time in our country's history.

Petitioners maintain that the detention periods in Section 29 have no constitutional justification.^[517] However, the Constitution is silent as to the exact maximum number of hours that an arresting officer can detain an individual before he is compelled by law to deliver him to the courts.^[518] The three-day period in the last paragraph of Section 18, Article VII of the Constitution is irrelevant to terrorism because it is applicable only in cases of invasion or rebellion when the public safety requires it. The fifth paragraph of Section 18 reiterates this by stating that the suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. To add terrorism is not permitted by the text of the Constitution and would indirectly extend the President's powers to call out the armed forces and suspend the privilege of the writ of habeas corpus.

Petitioners have not made out a case that terrorism is conceptually in the same class as rebellion or invasion, which are scenarios of "open war". This is not unexpected, since terrorism - a relatively modern global phenomenon - then may not have been as prevalent and widespread at the time the 1987 Constitution was framed as compared to now. It must be remembered that "rebellion" has an exact definition under Article 134 of the RPC as the act of rising publicly and taking arms against the Government for the purpose of, among others, removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof. The intent of rebellion is categorically different from that provided for under Section 4 of the ATA. Thus, a person may be in rebellion while not committing terrorism and vice versa.

Petitioners, however, argue that giving law enforcement officers 14 or 24 days to detain a person without a judicial warrant for purposes of gathering evidence is absurd because they ought to have had probable cause when they made the arrest.^[519] Further, they argue that the prosecution is not precluded from requesting the trial court a reasonable continuance to prepare its case while the accused remains in detention.^[520] Again, petitioners' argument fails because it assumes that case building in terrorism cases is comparable to case building in ordinary crimes. Based on Congress' finding^[521] and the experience in other jurisdictions, case building in terrorism cases is fraught with unique difficulties. In the UK, for example, the Metropolitan Police Service - Anti-Terrorist Branch (now the Counter Terrorism Command), justified a three-month pre-charge detention on the difficulties unique to case building in terrorism cases. These include the necessity of: making inquiries in other jurisdiction in cases of global terrorism; establishing the true identity of terrorists, who usually use fake or stolen identities; decrypting and analyzing data or communications; securing the services of translators to assist with the interview process in cases of global terrorism; intensive forensic investigations where there is chemical, biological, radiological or nuclear hazards; and obtaining data from data service providers to show linkage between suspects and their location at key times.^[522]

That said, it is worth remembering that the prolonged detention period under Section 29 is not only for gathering the necessary evidence. Congress also intended it to be a practical tool for law enforcement to disrupt terrorism.^[523] In this day and age, terrorists have become more clandestine and sophisticated in executing their attacks and the government is expected to develop preventive approaches to adapt to, and to counter these threats. It must be emphasized that the ATA was enacted with preventive intent. Section 2 of the ATA declared the State policy of protecting life, liberty, and property from terrorism, and recognized that the fight against terrorism requires a comprehensive approach that also encompasses political, economic, and diplomatic measures alongside traditional military and legal methods of combating the same. Consistent therefore with the other enforcement provisions of the ATA like designation and proscription, Section 29 is a counterterrorism measure enacted as a response to the ever-evolving problem of terrorism and should be seen as a measure that aims to prevent and disrupt future terrorist acts. As explained by Senator Panfilo M. Lacson during the Senate deliberations on the ATA:

SENATOR LACSON. Hindi na rin po natin pinapalitan iyong provision sa citizen's arrest in this case. Kaya lamang, ang in-expand natin ay iyong period. In ordinary crimes, hindi puwede iyong nasa planning stage, hindi naman niya ginawa, hindi naman siya nag-commit ng crime. Pero dahil iyong tinatawag nating inchoate offense, hindi pa nangyari, nasa simula pa lamang, puwede na nating arestuhin because we want to be proactive because this is a new phenomenon, Mr. President, which is global in nature, and we are trying to avoid for this phenomenon to become a new normal. Kaya gusto nating bigyan ng special treatment dito sa batas iyong ngipin ng law enforcement agencies natin to really implement the law on terrorism.^[524] (Emphasis and underscoring supplied)

Section 29 is one of many provisions in the ATA that recognizes, as some scholars observed, the need for effective strategies in counter-terrorism frameworks that aim to identify threats and make interventions to prevent the devastating consequences of terrorism from actually taking place.^[525] At its core, the Court finds that Section 29, in allowing prolonged detention after a valid and lawful warrantless arrest, as herein construed, contributes to the disruption and restriction of terrorist operations, and the eventual incapacitation of high-risk individuals, which ultimately facilitates the fair and proper response of the State to the magnitude attendant to the crime of terrorism. Therefore, it cannot be denied that Section 29 has been enacted in the exercise of police power by the State, or that inherent and plenary power which enables the State to prohibit all that is hurtful to the comfort, safety, and welfare of society.^[526]

In light of the above, it is clear to the Court that Section 29 satisfies the the compelling state interest requirement under the strict scrutiny standard. Moreover, the Court finds that the second prong of strict scrutiny, i.e. least restrictive means, has also been complied with by Section 29, if read in conjunction with Sections 30, 31, 32, and 33 of the ATA, because: (1) it only operates when the ATC issues a written authorization; (2) the detaining officer incurs criminal liability if he violates the detainee's rights; and (3) the custodial unit must diligently record the circumstances of the detention.

To recapitulate, detention for up to 14 days cannot be done by the arresting officer without the written authorization of the ATC. In effect, the ATC's written authorization is what narrows the application of Section 29. This must be so because it is the ATC's function under Section 46 (d) to "monitor the progress of the investigation and prosecution of all persons accused and/or detained for any crime defined and penalized under the [ATA]." Moreover, the ATC is expected to be more knowledgeable of terrorist activities than the ordinary law enforcer because under Section 46 (e), it must "establish and maintain comprehensive database information systems on terrorism, terrorist activities, and counter terrorism operations." Had Congress not required the ATC's written authorization, it would be up to any law enforcement officer from any local precinct or any military personnel to decide for himself that a detention of up to 14 or 24 days is necessary. It is not farfetched to see how this power, when merely localized, may be abused to serve personal or parochial interests. Worse, it could result in inordinate detention for crimes not punished under the ATA. Consequently, without the involvement of the ATC - which again is an executive agency comprised of high-ranking national security officials -Section 29 would have a broader scope and may result in inconsistent, if not, abusive application.

After an arrest has been made and the written authorization of the ATC is secured under Section 29, there are safeguards that must be observed during the detention of suspected terrorists. The Court is mindful that a detainee is practically under the mercy of the government. Such a great imbalance between the power of the State and the individual is often the breeding ground for abuses. In 2014, the UN Counter-Terrorism Task Force, under the auspices of the UN Secretary General, published "Guiding Principles and Guidelines"^[527] relating to detention in the context of countering terrorism. It recognized that "[t]he implementation of counter-terrorism measures through the detention of persons leads to interference with individuals' full enjoyment of a wide range of civil, political, economic, social and cultural rights."^[528] In particular, detention may potentially violate, amongst others, the right to personal liberty and the right to personal security and integrity.^[529] For these reasons, the UN guidelines provide that:
 

1)	In the implementation of counter-terrorism measures, no one shall be subject to unlawful or arbitrary deprivation of liberty;
2)	Persons detained or arrested on terrorism charges must be informed of the reasons for arrest;
3)	The circumstances of the arrest and detention must be recorded and communicated;
4)	The detainee must have effective access to legal counsel.
5)	Detention awaiting trial should be an exception and should be as short as possible;
6)	Detainees are entitled to the enjoyment of all human rights, subject to restriction that are unavoidable in a closed environment; they must be treated with dignity and respect and not subjected to torture or other forms of ill-treatment or punishment;
7)	Secret and incommunicado detention may never be used;
8)	The detention must be subject to effective oversight and control by the judiciary and the detainee must have access to independent complaints mechanism and to challenge the legality of their detention, including by way of habeas corpus;
9)	Detention for reasons of national security must in accordance with law and not arbitrary; and
10)	Information obtained using torture shall be inadmissible as evidence. The detainee shall have a right to claim remedies and reparation, including compensation, for the period unlawfully or arbitrarily detained.[530]

It is worth emphasizing that while these are expressed as guidelines, they essentially summarize what the due process clause would minimally require in the prolonged detention of terrorist suspects. On this point, Sections 30, 31, 32, and 33 of the ATA textually provide for safeguards to shield the detainee from possible abuses while he is deprived of his liberty. Section 30 reiterates the rights of a person under custody, which among others, include the right to have competent and independent counsel, preferably of his own choice, and who must have constant access to his client. Section 31 imposes criminal liability on any law enforcement agent or military personnel who violates the rights of the person under custody. Section 32 requires the maintenance of a logbook which records the circumstances of detention, such records being a public document and made available to the detainee's lawyer and his family or relative by consanguinity or affinity up to fourth civil degree. Meanwhile, Section 33 reiterates the prohibition against coercion and torture in investigation and interrogation and imposes the penalties provided for in R.A. 9745. It also provides that any evidence obtained from the detainee through coercion or torture would be inadmissible in evidence.

The Court also clarifies that the writ of habeas corpus is available to a detainee under Section 29 and that the judiciary must be kept abreast with the details of the detention. This is implied by the requirement in Section 29 that the law enforcement agent or military personnel notify in writing the judge of the court nearest the place of apprehension or arrest of the following facts: (a) the time, date, and manner of arrest; (b) the location or locations of the detained suspect/s and (c) the physical and mental condition of the detained suspect/s. And while the ATA removed the entitlement under Section 50 of the HSA to the payment of P500,000.00 of damages for each day of wrongful detention, the right of action of the detainee under Article 32(4) of the New Civil Code^[531] remains.

In sum, the ATA requires that certain conditions be complied with both prior to, during, and after the detention of a suspected terrorist under Section 29. To the mind of the Court, these conditions narrowly tailor the application of Section 29 in accordance with the "least restrictive" prong of strict scrutiny. In this regard, it may thus be said that Section 29 is not overbroad as well, as this government measure does not sweep unnecessarily and broadly and thereby invade the area of protected freedom of speech.

On this latter point, the Court finally finds that Section 29 does not constitute a prior restraint or subsequent punishment on the exercise of the freedom of speech, expression, and their cognate rights. Again, it only operates when a person has been lawfully arrested without a judicial warrant for violating Sections 4 to 12 of the ATA. The Court's discussion on Section 4 above made it clear that protests, advocacies, dissents, and other exercises of political and civil rights are not terroristic conduct. The proper construction of Section 5, 6, 8, 10 and 12 has also been clarified. The operation of Section 29 in relation to such provisions does not result in an impermissible chilling effect. Concurrently, this Court is convinced that Section 29 is not overly broad.

Perforce, under the auspices of this case and the reasoned constructions made by the Court herein, Section 29 should not be struck down as invalid.

Extraterritorial Application of the ATA under Section 49, Implementing
Rules and Regulations under Section 54, and the Procedure Adopted in
Approving HB No. 6875

While this Court has earlier delimited the issues to be resolved under a facial analysis framework, it recognizes other miscellaneous issues that - albeit not exclusively related to free speech per se - nevertheless go into the intrinsic validity and operability of the entire ATA as a whole. Due to such significant relation and if only to placate any doubts on the ATA's implementation, the Court finds it prudent, at this final juncture, to address the same but only within the context of the facts presented in this case. In particular, these miscellaneous issues are: (1) the allegations raised against the extraterritorial application of the ATA under Section 49; (2) the power of the ATC and the DOJ to promulgate rules and regulations under Section 54; and (3) the claims involving non-observance of the constitutional procedure in the enactment of ATA, i.e., the act of the Executive certifying to the urgency of and the subsequent act of the Legislative in passing the ATA into law. These three subjects will be treated below, in seriatim.
 

Extraterritorial Application of the ATA under Section 49

Petitioners make much ado about the seeming effect of the extraterritorial application of the ATA under Section 49 on their right to freely associate under Section 8, Article III of the Constitution.^[532] They maintain that Section 49 makes no distinction and expands the reach of the ATA to any Filipino who commits acts penalized under the law outside of the territorial jurisdiction of the Philippines, specifically citing as an example those who may be prosecuted by mere membership, affiliation, or association with a certain designated group, absent any overt criminal act and regardless when the act was committed or when the membership commenced.^[533] Petitioners further claim that the extraterritorial application of the ATA punishes people abroad for acts that may not even be illegal in their respective countries.^[534] Relative thereto, petitioners contend that there is a "chilling effect" on the right to association because it would effectively deter individuals from joining organizations so as to avoid later being deemed a terrorist if the organization is designated.^[535]

Section 49 of the ATA provides:

Section 49. Extraterritorial Application. - Subject to the provision of any treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application, the provisions of this Act shall apply:

(a) To a Filipino citizen or national who commits any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act outside the territorial jurisdiction of the Philippines;

(b) To individual persons who, although physically outside the territorial limits of the Philippines, commit any of the crimes mentioned in Paragraph (a) hereof inside the territorial limits of the Philippines;

(c) To individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said crimes mentioned in Paragraph (a) hereof on board Philippine ship or Philippine airship;

(d) To individual persons who commit any of said crimes mentioned in Paragraph (a) hereof within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity;

(e) To individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes mentioned in Paragraph (a) hereof against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the commission of the crime; and

(f) To individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes directly against the Philippine government.

In case of an individual who is neither a citizen or a national of the Philippines who commits any of the crimes mentioned in Paragraph (a) hereof outside the territorial limits of the Philippines, the Philippines shall exercise jurisdiction only when such individual enters or is inside the territory of the Philippines: Provided, That, in the absence of any request for extradition from the state where the crime was committed or the state where the individual is a citizen or national, or the denial thereof, the ATC shall refer the case to the BI for deportation or to the DOJ lor prosecution in the same manner as if the act constituting the offense had been committed in the Philippines.

The Court holds, however, that the constitutional challenge against Section 49 is not ripe for adjudication. As stated in the beginning of this discourse, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it and thus, petitioners must show that they have sustained or are immediately in danger of sustaining some direct injury as a result of the act complained of. In this case, the Court sees that the only bases for the supposed unconstitutionality of Section 49 are mere theoretical abstractions of what may happen after a group or organization has been designated or charged under the ATA. However, none of petitioners claim that their constitutional rights have been under any credible or imminent threat of being violated because of the extraterritorial application of the ATA. In fact, none of petitioners allege that they are foreigners, permanent residents abroad, or are in any demonstrable situation that renders them susceptible to any adverse effects by virtue of the extraterritorial application of the ATA. Also, the Court has not been made aware of any pending criminal prosecution based on Section 49 in relation to designation under Section 25.

In any event, the supposed "chilling effect" of Section 49 is more apparent than real. A plain reading of Section 49 shows that it merely provides rules on how jurisdiction over the offense of terrorism is acquired. It is noteworthy, in this regard, that the ATA having extraterritorial application is not peculiar. Section 49 is not the first time the country would extend the application of a penal law to Filipino citizens, even for acts committed outside the country. The enumeration in Article 2 of the RPC is a prime example where the application of a penal law is made to extend outside the territorial limits of the country's jurisdiction. Another - more closely worded to Section 49 - is Section 21 of R.A. No. 10175 or the Cybercrime Prevention Act, which extends the jurisdiction of the courts to any violation committed by a Filipino national regardless of the place of commission.

It must as well be pointed out that Section 49 appears to simply reflect or embody the five traditional bases of jurisdiction over extraterritorial crimes recognized in international law,^[536] i.e., territorial, national, protective, universal, and passive personal. These are, in fact, recognized doctrines in the realm of private international law, more commonly known as "conflict of laws". To expound, the first three, which confers jurisdiction based on the place where the offense is committed, based on the nationality of the offender, and based on whether the national interest is injured, are generally supported in customary law^[537] and are already being applied in various Philippine statutes. Universal jurisdiction, which confers authority unto the forum that obtains physical custody of the perpetrator of certain offenses considered particularly heinous and harmful to humanity, and passive personality jurisdiction, which is based on the nationality of the victim, have been accepted in international law, but apply only in special circumstances (universal jurisdiction)^[538] or in limited incidents (passive personality jurisdiction). Notably, the Philippines adopts both under Section 17 of R.A. No. 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. It is pertinent to state in this regard that Section 2 of the ATA considers terrorism as not only a crime against the Filipino people, but also a crime against humanity and the Law of Nations.

On this note, the Court further agrees with the OSG that Section 49 is a proactive measure.^[539] Surely, no one can deny that the country has a broad interest to protect its citizens and its vessels, wherever they may be, as well as its government and its embassies, in the same way it has an interest to protect itself and its territory from terrorism even against someone who is physically outside the territorial jurisdiction of the country. This Court recognizes that these principles flow from the overarching interest of the State to ensure that crimes do not remain unpunished - interest reipublicae ne maleficia remaneant impunita. Any act which has a deleterious effect on the national security and public safety of the country should be penalized, wherever the malefactor may be located. This notwithstanding, and consistent with the preliminary consideration on ripeness as stated above, it should remain that the constitutional validity or invalidity in the application of these principles remain to be tested in the proper case that is ripe for adjudication.
 

The ATC and the DOJ's Power to Promulgate Implementing Rules and Regulations under Section 54

Petitioners argue that the ATC and the DOJ has been unduly delegated with legislative power by allowing it to promulgate rules and regulations to address the incompleteness of the ATA's terms and insufficiency of its standards.^[540] Meanwhile, the OSG counters that the Constitution recognizes exceptions to the rule on non-delegation of legislative power including delegation to administrative bodies and that Section 54 constitutes a permissible delegation.^[541]

Section 54 provides:

Section 54. Implementing Rules and Regulations. - The ATC and the DOJ, with the active participation of police and military institutions, shall promulgate the rules and regulations for the effective implementation of this Act within ninety (90) days after its effectivity. They shall also ensure the full dissemination of such rules and regulations to both Houses of Congress, and all officers and members of various law enforcement agencies.^[542] (Citations omitted)

At the onset, petitioners' apprehensions on the incompleteness of the ATA's terms and insufficiency of its standards should already be addressed by the Court's extensive judicial construction of the significant provisions of the ATA, which consequently delineates the extent of the rule-making power that the DOJ and ATC may exercise. As case law instructs:

Administrative agencies possess quasi-legislative or rule-making powers and quasi-judicial or administrative adjudicatory powers. Quasi-legislative or rule-making power is the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of non-delegability and separability of powers.

The rules and regulations that administrative agencies promulgate, which are the product of a delegated legislative power to create new and additional legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the law, and be not in contradiction to, but in conformity with, the standards prescribed by law. They must conform to and be consistent with the provisions of the enabling statute in order for such rule or regulation to be valid. Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by an administrative body, as well as with respect to what fields are subject to regulation by it. It may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute. In case of conflict between a statute and an administrative order, the former must prevail.^[543]

Accordingly, the DOJ and ATC must ensure that the implementing rules and regulations conform with the spirt of the law, as herein divined by the Court through its judicial construction. To reiterate, administrative agencies "may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute. In case of conflict between a statute and [the IRR], the former must prevail."

Ultimately, however, it should be pointed out that the facial challenge in this case was directed against the ATA's statutory provisions, and not the rules found in the IRR itself. As such, the Court deems it prudent to refrain from passing judgment on the issue of undue delegation that may be appropriately addressed through an actual case or controversy sharply demonstrating how the ATC and DOJ have broadly construed the provisions of the ATA so as to showcase the alleged incompleteness of the law and its kick of sufficient standards.
 

Procedure in Approving HB No. 6875

Petitioners maintain that the House of Representatives transgressed the requirements under paragraph 2, Section 26, Article VI of the Constitution in enacting the ATA, specifically that the bill did not undergo three readings on separate days, and that no printed copies of the House Bill in its final form were distributed to the members of the House three days before its passage. They also argue that the certification for the immediate enactment of the law did not meet the "public calamity or emergency" exception. Finally, they question the lack of quorum during the session and voting on HB No. 6875 because some members attended through virtual platforms, in contravention of the physical attendance requirement.^[544]

Meanwhile, the government insists that the Congress observed the requirements prescribed by the Constitution in enacting the ATA and that it was not "railroaded".^[545] It argues that the President's certification of the bill as urgent under the "public calamity or emergency" exception dispenses with the requirements of printing, distribution, and going through three readings on separate days.^[546] There was also no clear showing that the members of the House of Representatives were deprived of the opportunity to study the bill or that their votes were erroneously counted.^[547]
 

The President's certification of the bill as urgent justifies non-compliance with the general procedure for enacting laws.

Article VI, Section 26 of the Constitution states:

x x x x

(2) No bill passed by either Mouse shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.^[548] (Emphasis supplied)

The foregoing provision lays down the general procedure to be observed in enacting laws. This general procedure requiring that the readings be made on three separate days and that the bill be printed in its final form and distributed three days before the third reading may, however, be dispensed with when the President certifies a bill as urgent to meet a public calamity or emergency.^[549]

In Tolentino v. Secretary of Finance^[550] (Tolentino), the Court held that:

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because basic rights of individuals may be of hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review.^[551]

Based on the foregoing, it can be surmised that the President's determination of the existence of an "emergency" or "public calamity" is fundamentally dependent on the exigencies of each circumstance.

In Abas Kida v. Senate of the Philippines,^[552] the Court upheld the certification of the President for the immediate enactment of R.A. No. 10153, a law synchronizing the ARMM elections with the national and local elections. In justifying the certification of the urgency of the bill, the Court explained inter alia that:

x x x [W]hile the judicial department and this Court are not bound by the acceptance of the President's certification by both the House of Representatives and the Senate, prudent exercise of our powers and respect due our co-equal branches of government in matters committed to them by the Constitution, caution a stay of the judicial hand.^[553] (Citation omitted)

Therefore, the President's exercise of the power to issue such certification is one that should be accorded with due deference. As such, the Court must refrain from intruding into such matter through the exercise of its judicial power in the absence of grave abuse of discretion, considering that the passage of laws is essentially an affair that falls within the purview of the political branches of government.

In this case, President Rodrigo R. Duterte, through a letter dated June 1, 2020, certified the necessity for the immediate enactment of HB No. 6875 "to address the urgent need to strengthen the law on anti-terrorism and effectively contain the menace of terrorist acts for the preservation of national security and the promotion of general welfare."^[554]

As the Court sees it, there is no grave abuse in deeming that the passage of a law to sufficiently address terrorism in the country falls within the public emergency exception. As already emphasized, the constant threat of terrorism, as one of the biggest menaces to national security, definitely constitutes as an emergency which the State needs to address immediately. Terrorism is not only an ever-present threat but one which brings about potential devastating consequences that should be urgently attended to. Despite the HSA, it is undisputed that the political branches of government both deemed, in their wisdom and expertise, that the former law was not enough to adequately respond to the problem of terrorism. Indeed, every passing day without an adequate counterterrorism framework is an opportunity for a terror act. The potential extensive damage to the country and the prospect of a wide-scale loss of life upon a terror act is indeed a matter of public safety and security which is time-sensitive. The experience of law enforcers reveals the necessity of adopting urgent measures to fill the gaps in the HSA. To demonstrate the gap in the HSA which lawmakers perceive to be a hindrance to the effective and timely apprehension and prosecution of terrorists, the Court notes the experience of a lawmaker when he was still in the police force wherein a known ISIS terrorist was arrested in Davao City but had to be released within 36 hours as the authorities did not have enough evidence to hold him further. Months later, the same terrorist was caught in a video beheading hostages in Raqqa, Iraq.^[555]

In the absence of any grave abuse of discretion, the determination of the President that terrorism is an emergency in order to certify a bill as urgent, which Congress has not seen fit to controvert and has, in fact, accepted such certification as valid similar to the finding in Tolentino, is something which the Court should not disturb. Additionally, the Court recognizes the pressing need for the country to enact more effective counter-measures against terrorism and terrorism financing, the lack of which has been repeatedly flagged by international evaluation groups to which the Philippines belong.
 

Perceived Irregularities in the Implementation of the Internal Rules of the House of Representatives.

The Constitution affords Congress due discretion in determining the appropriate rules in conducting its proceedings. This authority is found in paragraph 3, Section 16, Article of VI of the Constitution which states:

Section 16.

x x x x

(3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

x x x x

In line with the foregoing authority granted to the House of Representatives, it has promulgated its own internal rules. Among others, Sections 89 and 90 of the Rules of the House of Representatives (18^th Congress) states:

Section 89. Conduct of Sessions through Electronic Platforms. - In cases when the attendance of Members in sessions becomes extremely difficult or impossible - such as on occasions of natural calamities, pandemics, strikes, riots, and civil disturbances, whether fortuitous or not - and there is urgent necessity to act on any measure, the Speaker, in consultation with the Majority and Minority Leaders, may authorize the conduct of sessions through electronic platforms like video conference, telecommunications and other computer online technologies.

Section 90. Attendance. - Notwithstanding the provisions of Section 74 hereof, Members shall, as far as practicable, register their attendance by joining the virtual conference. This shall be verified and authenticated by the Secretary General.

Members who are unable to join the virtual conference due to technical reasons or those who are performing official tasks as authorized by the Speaker and subject to Section 71 hereof, may register their attendance through mobile phones or other electronic accounts previously registered with and verified by the Secretary General.

As aptly pointed out by the government, while voting on and approving bills through virtual platforms may be unconventional, this is not prohibited by the internal rules of the House of Representatives.^[556]

Absent any palpable grave abuse of discretion, it is beyond the scope of the Court's jurisdiction to scrutinize the internal procedures of Congress. This is consistent with the Court's ruling in ABAKADA Guro Party List v. Ermita^[557] wherein it was declared that:

x x x [O]ne of the most basic and inherent power of the legislature is the power to formulate rules for its proceedings and the discipline of its members. Congress is the best judge of how it should conduct its own business expeditiously and in the most orderly manner. It is also the sole concern of Congress to instill discipline among the members of its conference committee if it believes that said members violated any of its rules of proceedings. Even the expanded jurisdiction of this Court cannot apply to questions regarding only the internal operation of Congress, thus, the Court is wont to deny a review of the internal proceedings of a co-equal branch of government.^[558]

Consistent with the principle of separation of powers and the Court's pronouncements in ABAKADA Guro Party List, the Court does not find it proper to strike down the internal rules of the Mouse of Representatives allowing virtual hearings relative to quorum. Congress must be given reasonable leeway to adapt to peculiar exigencies and employ available technological means to continue the unimpeded performance of its functions. All in all, there is no grave abuse of discretion committed on this score.

Resume of the Votes Cast and the Court's Resolution

The Court has arrived at clear conclusions on the issues of this case. However, various approaches and views were expressed during the deliberations which necessarily resulted in variance in the voting. Some members of the Court will expound on their individual opinions and elucidate the particular approach or approaches they have taken in their respective separate opinions.

The nine (9) critical questions identified as the core issues involved are the following:

1. Whether to grant due course to 35 out of 37 petitions;
   
   
2. Whether a facial challenge or an as applied challenge should be used in analyzing the ATA;
   
   
3. Whether the "Not Intended Clause" in the proviso of Section 4 is constitutional;
   
   
4. Whether the phrase "organized for the purpose of engaging in terrorism" in the third paragraph of Section 10 is constitutional;
   
   
5. Whether the first mode of designation under Section 25 is constitutional;
   
   
6. Whether the second mode of designation under Section 25 is constitutional;
   
   
7. Whether the third mode of designation under Section 25 is constitutional;
   
   
8. Whether the provisions on proscription in Sections 26 to 28 are constitutional; and
   
   
9. Whether Section 29 on arrest and detention without judicial warrant is constitutional.
   

The votes of the members of the Court are summarized as follows:

1. With a vote of 8-7, eight (8) members of the Court, namely, Senior Associate Justice Perlas-Bernabe, Justices Leonen, Caguioa, Hernando, Carandang, Lazaro-Javier, Rosario, and Dimaampao, voted in favor of granting due course to 35 out of 37 of the petitions. These include the petitions docketed as G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759, 252765, 252767, 252768, 252802, 252809, 252903, 252904, 252905, 252916, 252921, 252984, 253018, 253100, 253124, 253242, 253252, 253254, 254191 (UDK No. 16714), and 253420. The petition docketed as G.R. No. 253118 (Balay Rehabilitation Center, Inc. v. Duterte) is dismissed outright for lack of merit while the petition docketed as UDK No. 16663 (Yerbo v. Offices of the Honorable Senate President and the Honorable Speaker of the House of Representatives) is dismissed for being fundamentally flawed both in form and substance. Seven (7) members of the Court voted to grant due course only to the petitions in G.R. No. 252585, G.R. No. 252767, G.R. No. 252768, and G.R. No. 253242, namely, Chief Justice Gcsmundo, Justices Inting, Zalameda, M. Lopez, Gaerlan, J. Lopez, and Marquez.
   
   
2. As to whether a facial challenge or an as-applied challenge should be used in analyzing the ATA, eleven (11) members of the Court, namely, Senior Associate Justice Perlas-Bernabe, Justices Leonen, Hernando, Carandang, Lazaro-Javier, Inting, Zalameda, Gaerlan, Rosario, J. Lopez, and Dimaampao, voted in favor of applying facial challenge but only with respect to freedom of speech, expression, and cognate rights issues. The majority agrees that this facial review does not preclude future challenges against any of the provisions on the basis of an actual and as-applied case.
   
   Justice Caguioa separately voted to apply facial challenge to all other fundamental freedoms beyond freedom of speech. On this point, while Justice Leonen concurred with the ponencia, he is of the opinion that there can be a facial examination based on other fundamental rights if there is such imminence and [the constitutional violation] is so demonstrably and urgently egregious that it outweighs a reasonable policy of deference.
   
   Three (3) remaining members of the Court, namely, Chief Justice Gesmundo, Justice M. Lopez, and Justice Marquez voted that the ATA cannot be subject to a facial challenge. On one hand, Chief Justice Gesmundo, joined by Justice Marquez, submits that: (a) the ATA only penalizes conducts which includes "speech integral to criminal conduct;" and (b) an as-applied challenge does not foreclose the use of void-for-vagueness and overbreadth tests as tools of judicial scrutiny. On the other hand, Justice M. Lopez submits that only an as-applied challenge against the ATA is proper, it being a penal law.
   
   
3. As to Section 4 of the ATA, twelve (12) members of the Court, namely, Senior Associate Justice Perlas-Bernabe, Justices Leonen, Caguioa, Hernando, Carandang, Lazaro-Javier, Inting, Zalameda, Gaerlan, Rosario, J. Lopez, and Dimaampao, voted to declare the "Not Intended" clause in the said provision as unconstitutional.
   
   Three (3) members of the Court, namely, Chief Justice Gesmundo, Justice M. Lopez, and Justice Marquez voted that the entirety of Section 4 is not unconstitutional.
   
   
4. On the issue of whether the phrase "organized for the purpose of engaging in terrorism" in the last paragraph of Section 10 should be struck down as unconstitutional, the ponencia was outvoted by a vote of 9-6 with nine (9) members of the Court, namely, Chief Justice Gesmundo, Justices Caguioa, Hernando, Inting, Zalameda, Gaerlan, M. Lopez, J. Lopez, and Marquez, agreeing that Section 10 of the ATA is not unconstitutional.
   
   Six (6) members of the Court, namely, Senior Associate Justice Perlas-Bernabe, Justices Leonen, Carandang, Lazaro-Javier, Rosario, and Dimaampao, voted to strike down the subject phrase for being unconstitutional.
   
   
5. Fourteen (14) members of the Court, namely, Chief Justice Gesmundo, Senior Associate Justice Perlas-Bernabe, Justices Caguioa, Hernando, Carandang, Lazaro-Javier, Tnting, Zalameda, M. Lopez, Gaerlan, Rosario, J. Lopez, Dimaampao, and Marquez, voted that automatic adoption of the United Nations Security Council Consolidated List (1st mode of designation) in the first paragraph of Section 25 is not unconstitutional, with Justice Leonen as the lone dissenter.
   
   
6. Nine (9) members of the Court, namely, Senior Associate Justice Perlas-Bernabe, Justices Leonen, Caguioa, Hernando, Carandang, Lazaro-Javier, Rosario, Gaerlan, and Dimaampao, voted that requests for designation by other jurisdictions (2nd mode of designation) in the second paragraph of Section 25 is unconstitutional.
   
   Six (6) members of the Court, namely, the Chief Justice and Justices Inting, Zalameda, M. Lopez, J. Lopez, and Marquez voted in favor of holding the provision not unconstitutional.
   
   
7. On the issue of whether the designation by the ATC upon a finding of probable cause (3rd mode of designation) under Section 25 is constitutional, the ponencia was outvoted by a vote of 8-7. Eight (8) members of the Court, namely, Chief Justice Gesmundo, Justices Hernando, Inting, Zalameda, M. Lopez, Gaerlan, J. Lopez, and Marquez, voted that the third paragraph of Section 25 is not unconstitutional.
   
   Senior Associate Justice Perlas-Bernabe, Justices Leonen, Caguioa, Carandang Lazaro-Javier, Rosario, and Dimaampao, voted to declare the third mode of designation unconstitutional.
   
   
8. The Court unanimously voted that Sections 26, 27, and 28 of the ATA on judicial proscription are not unconstitutional.
   
   
9. Ten (10) members of the Court, namely, Chief Justice Gesmundo, Senior Associate Justice Perlas-Bernabe, Hernando, Carandang, Lazaro-Javier, Inting, Zalameda, M. Lopez, Rosario, Marquez, voted that Section 29, as construed in the ponencia, is not unconstitutional.
   

Three (3) members of the Court, namely, Justices Caguioa, Gaerlan, and Diamaampao voted without qualification that Section 29 is unconstitutional.

Justice Leonen is of the view that even with the framework of overbreadth, the extension without warrant is unconstitutional relative to provisions which impact on freedom of expression and cognate rights. Thus, Justice Leonen voted that Section 29 is unconstitutional only in relation to Sections 5 and 8 of the ATA.

Justice J. Lopez voted that Section 29 is unconstitutional only with respect to the extended detention without warrant.

A Final Note

Terrorism is no ordinary crime. As emphasized, terrorism is not confined to a particular space and time, and is often shrouded by uncertainty and invisibility. Unlike a typical war where armed hostilities are clearly apparent, most terrorist activities, including training, financing, and other forms of preparation, involve months or even years of clandestine planning.

Terrorists have significantly improved their capabilities over time and expanded their vast resources which include, inter alia, sophisticated training and the addition of weapons of mass destruction in their arsenal. The pervasive problem of terrorism requires interventions that not only punishes an act when it is done but also anticipates risks to disrupt and pre-empt a terrorist act before irreversible harm is done, without sacrificing and undermining fundamental freedoms recognized in the Bill of Rights. As a result, there has been a noticeable shift in the approach of the government in suppressing terrorism from criminalization to preventive or precautionary. This has been seen in legislations such as the HSA, R.A. No. 10168, and more recently, in the assailed law in the present petitions.

Bearing in mind the immense responsibility of the government to protect its people and defend the State, the Court cannot simply disregard the realities on the ground and the complex problem of terrorism not only in the Philippines but also across the globe. In striking a carefully calibrated balance between what is constitutionally acceptable and what is not, the Court needed to lean on a little practical wisdom, for as Justice Aharon Barak, President of the Israeli Supreme Court puts it - the Constitution "is not a prescription for national suicide" and "human rights are not a stage for national destruction."^[559] Nonetheless, this Court is ever mindful that hand in hand with its obligation to give due regard to the inevitabilities of national security and public safety, as well as the effectiveness of law enforcement, is its constitutional mandate to safeguard substantive democracy, as expressed in fundamental values and human rights,^[560] and to temper the excesses of the other branches. The Court believes it has faithfully exercised this responsibility in the case.

In the present petitions, this Court painstakingly demonstrated when judicial intervention may be invoked through a facial challenge to assuage the fears of the people who feel threatened by the potential chilling effect of the enactment of a statute before an actual case is brought to the court. Taking into consideration the permissible degree of judicial intervention in a facial challenge, this Court outlined the extent of the power of the executive branch in this campaign against terrorism and has struck down the following provisions of the law that have gone beyond the boundaries set by the Constitution:
 

1)	The phrase in the proviso of Section 4 which states "which are not intended to cause death or serious physical harm to a person, to endanger a person's life, or to create serious risk to public safety";
2)	The second mode of designation found in paragraph 2 of Section 25; and
3)	As a necessary consequence, the corresponding reference/provisions relative to the foregoing items in the IRR of R.A. No. 11479.

The Court has also directed the CA to immediately formulate the rules to be observed for judicial proscription with the objective of upholding the rights of groups of persons, associations or organizations which may be subjected to the proceedings under Sections 26 and 27 of the ATA.

WHEREFORE, the petitions in G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759, 252765, 252767, 252768, 252802, 252809, 252903, 252904, 252905, 252916, 252921, 252984, 253018, 253100, 253124, 253242, 253252, 253254, 254191 (UDK No. 16714), and 253420 are GIVEN DUE COURSE and PARTIALLY GRANTED.

The Court declares the following provisions of Republic Act No. 11479 UNCONSTITUTIONAL:
 

1)	The phrase in the proviso of Section 4 which states "which are not intended to cause death or serious physical harm to a person, to endanger a person's life, or to create serious risk to public safety;"
2)	The second mode of designation found in paragraph 2 of Section 25; and
3)	As a necessary consequence, the corresponding reference/provisions in the Implementing Rules and Regulations of Republic Act No. 11479 relative to the foregoing items.

Moreover, pursuant to the Court's rule-making power, the Court of Appeals is DIRECTED to prepare the rules that will govern judicial proscription proceedings under Sections 26 and 27 of Republic Act No. 11479 based on the foregoing discussions for submission to the Committee on the Revision of the Rules of Court and eventual approval and promulgation of the Court En Banc.

The petitions in G.R. No. 253118 (Balay Rehabilitation Center, Inc. v. Duterte) and UDK No. 16663 (Yerbo v. Offices of the Honorable Senate President and the Honorable Speaker of the House of Representatives) are DISMISSED.

SO ORDERED.
 
Gesmundo, C. J., Please see separate concurring and dissenting opinion.
Hernando, and Rosario, JJ., concur.
Perlas-Bernabe, J., See Concurring and Dissenting Opinion.
Leonen, J., see concurring and dissenting opinion.
Caguioa, J., See Separate Concurring and Dissenting Opinion.
Lazaro-Javier, J., See Separate Opinion.
Inting, J., See Separate Opinion.
Zalameda, J., See Separate Opinion.
M. Lopez, J., see concurring and dissenting opinion.
Gaerlan, J., See Separate Concurring and Dissenting Opinion.
J. Lopez, J., See Separate Concurring and Dissenting Opinion.
Dimaampao, J., See Separate Concurring and Dissenting Opinion.
Marquez, J., I join the Concurring and Dissenting Opinion of C. J. Gesmundo.

---

^[1] Ljupka Petrevska, et al., Plurality of Definitions and Forms of Terrorism Through History, 6 Int'l J. Econ. & L., pp. 71, 72 (2016).

^[2] Mark Burgees, A Brief History of Terrorism, Center for Defense Information, <https://web.archive.org/web/20120511140810/http://www.cdi.org/friendlyversion/printversion.cfm?documentID=1502> accessed on July 2, 2021.

^[3] Id.

^[4] Ljupka Petrevska, et al., Plurality of Definitions and Forms of Terrorism Through History, supra note 1 at 75.

^[5] Id.

^[6] Mark Burgees, A Brief History of Terrorism, Center for Defense Information, supra note 2.

^[7] Ljupka Petrevska, et al., Plurality of Definitions and Forms of Terrorism Through History, supra note 1 at 76.

^[8] Id.

^[9] Id.

^[10] William Shugart II, An Analytical History of Terrorism, 1945-2000, Public Choice at 14, <https://www.jstor.org/stable/30026632> accessed on July 2, 2021.

^[11] Ljupka Petrevska, et al., Plurality of Definitions and Forms of Terrorism Through History, supra note 1 at 76.

^[12] Mark Burgees, A Brief History of Terrorism, Center for Defense Information, supra note 2.

^[13] Ljupka Petrevska, et al., Plurality of Definitions and Forms of Terrorism Through History, supra note 1 at 77.

^[14] September 11 Attacks, History <https://www.history.com/topics/21st-century/9-11-attack> Accessed on July 2, 2021; Peter Bergen, September 11 Attacks, Britannica <https://www.britannica.com/event/September-11-attacks/The-attacks> accessed on July 2, 2021.

^[15] Legal sources and the United Nations Counter-Terrorism Strategy (A Module Made by the UNODC), <https://www.unodc.org/c4j/en/terrorism/module-3/key-issues/legal-sourccs-and-un-ct-strategy.html> accessed on July 2, 2021.

^[16] The Synagogue Bombings in Istanbul: Al-Qaeda's New Front?, The Washington Institute for Near East Policy <https://www.washingtoninstitute.org/policy-analysis/synagogue-bombings-istanbul-al-qaedas-new-front> accessed on July 2, 2021; Kevin J. Strom and Joe Eyerman, Interagency Coordination: A Case Study of the 2005 London Train Bombings, National Justice of Institute <https://nij.ojp.gov/topics/articles/interagency-coordination-case-study-2005-london-train-bombings> accessed on July 2, 2021.

^[17] Artem Krechetnikov, Moscow Theatre Siege: Quastions Remain Unanswered, BBC, <https://www.bbc.com/news/world-europe-20067384> accessed on July 2, 2021; Shanthie D'Souza, Mumbai Terrorist Attacks of 2008, Britannica <https://www.britannica.com/event/Mumbai-terrorist-attacks-of-2008> accessed on July 2, 2021.

^[18] 321 Civilians Killed in 2009 Massacre in Congo, NBC News <https://www.nbcnews.com/id/wbna36068643> accessed on July 2, 2021; IS Camp Speicher Massacre: Iraq Sentences 40 to Death, BBC News <https://www.bbc.com/news/world-middle-cast-35607179> accessed on July 2, 2021.

^[19] Mark Burgees, A Brief History of Terrorism, Center for Defense Information, supra note 2.
 
^[20] Ljupka Petrevska, et al., Plurality of Definitions and Forms of Terrorism Through History, supra note 1 at 72.

^[21] Global Terrorism Index 2020, Institute for Economics & Peace, p. 47 <https://visionofhumanity.org/wp-content/uploads/2020/11/GTI-2020-web-1.pdf> accessed on July 2, 2021.

^[22] Michelle Abad, FAST FACTS: Terrorism in the Philippines, Rappler <https://www.rappler.com/newsbreak/iq/things-to-know-about-terrorism-philippines> accessed on July 2, 2021.

^[23] The UN Refugee Agency, Marawi Crisis <https://www.unhcr.org/ph/marawi-crisis> accessed on July 2, 2021.

^[24] OSG's Memorandum (Vol. I), p. 53.

^[25] Michelle Abad, FAST FACTS: Terrorism in the Philippines, supra note 22.

^[26] Michael Hard, A Year After Marawi, What's Left of ISIS in the Philippines?, The Diplomat <https://thediplomat.com/2018/10/a-year-after-marawi-whats-left-of-isis-in-the-philippines/> accessed on July 2, 2021.

^[27] Global Terrorism Index 2020, Institute for Economics & Peace, supra note 21 at 28.

^[28] UNSC Resolution No. 1373 (2001)

^[29] Id. at 2.

^[30] Global Terrorism Index 2020, Institute for Economics & Peace, supra note 27.

^[31] JC Gotinga, 14 People Killed, 75 Wounded as Twin Blasts Hit Jolo Town Center, Rappler, <https://www.rappler.com/nation/deadly-twin-explosions-jolo-town-center> accessed on July 2, 2021.

^[32] Id.

^[33] Senate Oks bill repealing the Anti-Terrorism Law, February 26, 2020, <http://legacy.senate.gov.ph/press_release/2020/0226_prib5.asp#:~:text=Press%20Release%20%2D%20PRIB%3A%20Senate%20OKs,repealing%20the%20Anti%2DTerrorism%20Law&text=The%20Senate%2C%20voting%2019%2D2,Human%20Security%20Act%20of%202007> accessed on April 15, 2021; OSG's Memorandum (Vol. I), p. 73.

^[34] House Bill/Resolution History, HB No. 6875, <www.congress.gov.ph/legisdocs/?v=billresults#17>.

^[35] Krissy Aguilar, Duterte certifies as urgent anti-terror bill, June 1, 2020, <https://newsinfo.inquirer.net/1284472/duterte-certifies-as-urgent-anti-terror-bill> accessed on April 15, 2021.
 
^[36] House Bill/Resolution History, supra note 33.

^[37] HB No. 6875 (18^th Congress) <https://www.congress.gov.ph/legisdocs/third_18/HBT6875.pdf> accessed on July 2, 2021.

^[38] Filane Mikee Cervantes, House Approves Anti-terror Bill on 3^rd Reading <https://www.pna.gov.ph/articles/1104838> accessed on July 2, 2021.

^[39] DJ Yap, 20 Lawmakers Step Back from Terror Bill <https://newsinfo.inquirer.net/1287797/20-lawmakers-step-back-from-terror-bill> accessed on July 2, 2021.

^[40] Panfilo M. Lacson, Sponsorship Speech for the Anti-Terrorist Act (17th Congress), <legacy.senate.gov.ph/pressrelease/2019/1002lacson1.asp> accessed on May 8, 2020.

^[41] Senate Deliberations dated January 22, 2020.

^[42] Mutual Evaluation Report of 2019, <fatf-gafi.org/media/fatf/documents/reports/mcr-fsrb/APG-Mutual-Evaluation-Report-Philippines.pdf> p. 2, accessed on July 2, 2021.

^[43] APG Members & Observers <http://www.apgml.org/members-and-observers/members/details.aspx?m=63a7bacb-daa2-47ee-9ac31e27a9eff73f> accessed on July 2, 2021.

^[44] Mutual Evaluation Report, supra note 41 at 2.

^[45] Mutual Evaluation Report, supra note 41 at 20.

^[46] Id.

^[47] Rollo (G.R. No. 252904), p. 25; rollo (G.R. No. 252736), pp. 4-8, 29-48; rollo (G.R. No. 252759), pp. 64-67; rollo (G.R. No. 252767), pp. 39-67; rollo (G.R. No. 252580), pp. 27-42; rollo (G.R. No. 252585), pp. 21-29; rollo (G.R. No. 252624), pp. 18-22.

^[48] Rollo (G.R. No. 252736), p. 81.

^[49] Rollo (G.R. No. 252585), pp. 6-8.

^[50] Rollo (G.R. No. 252579), p. 14; rollo (G.R. No. 252585), pp. 6-8; rollo (G.R. No. 252741), pp. 11-12.

^[51] Rollo (G.R. No. 252802), pp. 5-6; rollo (G.R. No. 252733), pp. 7-13; rollo (G.R. No. 252768), pp. 7-9.

^[52] Rollo (G.R. No. 252759), p. 8.

^[53] Rollo (G.R. No. 252741), pp. 10-16; rollo (G.R. No. 252747), p. 9.

^[54] Rollo (G.R. No. 252578), pp. 6-7; rollo (G.R. No. 252904), pp. 5-7; rollo (G.R. No. 252802), pp. 5-6; rollo (G.R. No. 252905), pp. 8-11; rollo (G.R. No. 252736), pp. 10-12; rollo (G.R. No. 252759), p. 11; rollo (G.R. No. 252580), p. 8; rollo (G.R. No. 252613), p. 35; rollo (G.R. No. 252624), pp. 6-7, 11.

^[55] Rollo (G.R. No. 252904), pp. 92-147.

^[56] Rollo (G.R. No. 252736), p. 16.

^[57] Id. at 16-17.

^[58] Id. at 17.

^[59] Id.

^[60] Rollo (G.R. No. 252767), pp. 19, 35.

^[61] Id. at 19, 31.

^[62] Id. at 19-20, 30-31.

^[63] Id. at 31-32.

^[64] Id. at 33.

^[65] Id. at 34.

^[66] Id. at 20-21, 31-32.

^[67] Rollo (G.R. No. 252768), pp. 11-27.

^[68] Rollo (G.R. No. 252736), p. 18; rollo (G.R. No. 252580), pp. 67, 71-72.

^[69] Hallare, Katrina (2020), DOJ releases IRR of anti-terror law, Inquirer.net <https://newsinfo.inquirer.net/1349078/doj-releases-irr-of-anti-terror-law> accessed on July 2, 2021; <https://www.doj.gov.ph/files/2020/news%20articles/IRR%20ATA%202020%20-%20CTC.PDF> accessed on July 2, 2021.

^[70] Anti-Terrorism Council Resolution No. 10 (2020) <https://www.officialgazette.gov.ph/downloads/2020/09sep/20200923-ATC-Resolution-10-RRD.pdf> accessed on July 2, 2021.

^[71] Id.

^[72] Anti-Terrorism Council Resolution No. 12 (2020) <https://www.officialgazette.gov.ph/downloads/2020/12dec/20201209-ATC-12-RRD.pdf> accessed on July 2, 2021.

^[73] Anti-Terrorism Council Resolution No. 13 (2020) <https://www.officialgazette.gov.ph/downloads/2020/12dcc/20201209-ATC-13-RRD.pdf> accessed on July 2, 2021

^[74] Id.

^[75] Anti-Money Laundering Council Resolution No. TF-33 (2020) <http://www.amlc.gov.ph/images/PDFs/TF%20Reso%20No.%2033.pdf> accessed on July 2, 2021.

^[76] Anti-Money Laundering Council Resolution No. TF-34 (2020) <http://www.amlc.gov.ph/images/PDFs/TF%20Reso%20No.%2034.pdf> accessed on July 2, 2021.

^[77] Anti-Terrorism Council Resolution No. 16 (2021) <https://www.officialgazette.gov.ph/downloads/2021/02feb/20210224-ATC-RESO-16-RRD.pdf> accessed on July 2, 2021.

^[78] Id.

^[79] Anti-Terrorism Council Resolution No. 17 (2021) <https://www.officialgazette.gov.ph/downloads/2021/04apr/20210421-ATC-RESO-17-RRD.pdf> accessed on July 2, 2021.

^[80] Id.

^[81] Penned by Presiding Judge Melani Fay V. Tadili.

^[82] Id.

^[83] Arturo D. Brion, The Supreme Court, Manila Bulletin, 27 September 2017, <https://www.pressreader.com/philippines/manila-bulletin/20170927/281736974643720> accessed on August 27, 2021.

^[84] 899 Phil. 492, 513-514 (2019).

^[85] Id., citing Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., 802 Phil. 116, 137-138 (2016).

^[86] 732 Phil. 1 (2014).

^[87] Id. at 126.

^[88] OSG's Memorandum (Vol. I), p. 162.

^[89] 712 Phil. 44 (2013).

^[90] OSG's Memorandum (Vol. I), p. 163.

^[91] 103 Phil. 1051 (1957).

^[92] Id. at 1067.

^[93] 338 Phil. 546 (1997).

^[94] Id. at 574-575.

^[95] See RECORD of the 1986 Constitutional Commission, 439 (July 10, 1986), as cited in Araullo v. Aquino III, 752 Phil. 716 (2014).

^[96] Philippine Constitution Association v. Enriquez, 395 Phil. 546, 562 (1994), as cited in Arceta v. Mangrobang, 476 Phil. 106 (2004).

^[97] Ocampo v. Enriquez, 798 Phil. 227, 627 (2016), Separate Opinion of Justice Jose Mendoza.

^[98] G.R. No. 217910, September 3, 2019.

^[99] Id.

^[100] Ocampo v. Enriquez, supra note 96 at 288.

^[101] Falcis III v. Civil Registrar General, supra note 97.

^[102] Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, 815 Phil. 1067 (2017); Belgica v. Executive Secretary Ochoa, 721 Phil. 416 (2013); Province of North Colabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 589 Phil. 387 (2008); and Didipio Earth Savers' Multi-Purpose Association, Inc. (DESAMA) v. Gozun, 520 Phil. 457 (2006).

^[103] Garcia v. Executive Secretary, 602 Phil. 64 (2009).

^[104] Falcis III v. Civil Registrar General, supra note 97, citing Serrano v. Amores, 159 Phil. 69, 71 (1975).

^[105] Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, 815 Phil. 1067 (2017), citing Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. GCC Approved Medical Centers Association, Inc., 802 Phil. 116 (2016).

^[106] Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. GCC Approved Medical Centers Association, Inc., 802 Phil. 116, 146 (2016).

^[107] Ifurung v. Carpio-Morales, 831 Phil. 135, 152-153 (2018).

^[108] Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, supra note 102, citing Imbong v. Ochoa, supra note 85.

^[109] Petitioners' Memorandum for Cluster I Issues, pp. 77-84.

^[110] Acosta v. Ochoa, G.R. No. 211559, October 15, 2019.

^[111] Ferrer, Jr. v. Bautista, 762 Phil. 233 249 (2015).

^[112] Id.

^[113] Id.

^[114] Petitioners' Memorandum for Cluster I Issues, pp. 50-54.

^[115] Id. at 43-49.

^[116] OSG's Memorandum (Vol. I), pp. 104-109.

^[117] Id. at 110-114.

^[118] Position Paper of Former Chief Justice Reynato S. Puno as amicus curiae p. 5.

^[119] 646 Phil. 452 (2010).

^[120] Id. at 489.

^[121] Supra note 119.

^[122] OSG's Memorandum (Vol. I), p. 114.

^[123] Supra note 119.

^[124] Id.

^[125] Petitioners' Memorandum for Cluster I Issues, p. 65.

^[126] TSN dated May 12, 2021, pp. 100-102.

^[127] 727 Phil. 28 (2014).

^[128] Id. at 121-122.

^[129] Funa v. Villar, 686 Phil. 571, 586 (2012).

^[130] 522 Phil. 705 (2006).

^[131] Funa v. Villar, supra note 129.

^[132] Id. 585.

^[133] Chavez v. Gonzales, 569 Phil. 155, 193 (2008).

^[134] 476 Phil. 106 (2004).

^[135] Garcia v. Executive Secretary, supra note 102 at 82.

^[136] Id., citing People v. Vera, 65 Phil. 56 (1937).

^[137] Id., citing Romualdez v. Sandiganbayan, 479 Phil. 265 (2004).

^[138] Id.

^[139] Rollo (UDK 16663), pp. 7, 8.

^[140] Id. at 8-9.

^[141] Id. at 12.
 
^[142] Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, supra note 102 at 1093, citing Saguisag v. Executive Secretary Ochoa, 777 Phil. 280 (2016).

^[143] 896 Phil. 213 (2019).

^[144] Id.

^[145] 751 Phil. 301 (2015).

^[146] Id. at 331-334.

^[147] 84 Phil. 368 (1949).

^[148] GIOS-SAMAR v. Department of Transportation and Communications, supra note 143 at 261.

^[149] 63 Phil. 139 (1936).

^[150] 433 Phil. 506 (2002).

^[151] Id., as cited in GIOS-SAMAR v. Department of Transportation and Communications, supra note 143.

^[152] Id. at 283-284.

^[153] Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18 Win. & Mary Bill Rts. J. 657 (2010), p. 657, <https://scholarship.law.wm.edu/wmborj/vol18/iss3/4> accessed on August 14, 2021, citing Tex. Workers'Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 236 (1994), p. 236 ("Conventional wisdom holds that a court may declare a statute unconstitutional in one of two manners: (1) the court may declare it invalid on its face, or (2) the court may find the statute unconstitutional as applied to a particular set of circumstances."); Richard II. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1321-22 (2000), p. 1321 <https://www.jstor.org/stable/1342351> accessed on August 14, 2021. Emphasis supplied.

^[154] Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1321-22 (2000), p. 1321 <https://www.jstor.org/stablc/l342351> accessed on August 14, 2021.

^[155] Richard H. Fallon, Fact and Fiction About Facial Challenges, 99 Calif. L. Rev. 915 (2011), pp. 953-959 <http://nrs.harvard.edu/urn-3:HUL.InstRepos:11222673> accessed on August 14, 2021.

^[156] INS v. Chadha, 462 U.S. 919 (1983).

^[157] 481 U.S. 739 (1987).

^[158] 421 Phil. 290, 431 (2001).

^[159] Supra note 154.

^[160] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 119.

^[161] 226 U.S. 217 (1912), as cited in Richard H. Fallon, Fact and Fiction About Facial Challenges, supra note 152.

^[162] Id., citing Hatch v. Reardon, 204 U.S. 152, 160 (1907); Lee v. New Jersey, 207 U.S. 67, 70 (1907); Southern Railway Co. v. King, 217 U.S. 524, 534 (1910); Collins v. Texas, 223 U.S. 288, 295 (1912); Standard Stock Food Co. v. Wright, 225 U.S. 540, 550 (1912).

^[163] McGowan v. Maryland, 366 U.S. 420, 429-430 (1961), as cited in Broadrick v. Oklahoma, 413 U.S. 601 (1973).

^[164] 310 U.S. 88 (1940).

^[165] See also OVERBREADTH AND LISTENERS' RIGHTS, Harvard Law Review Vol. 123 (2010), pp. 1-22. <https://harvardlawreview.org/wp-content/uploads/pdfs/vol123_overbreadth_and_listeners_rights.pdf> accessed on July 2, 2021.
 
^[166] Thornhill v. Alabama, supra note 161, as cited in OVERBREADTH AND LISTENERS' RIGHTS, Harvard Law Review, Vol. 123 (2010) pp 3-4.

^[167] 413 U.S. 601 (1973).

^[168] See also U.S. v. Salerno, as cited in Estrada v. Sandiganbayan, supra note 158.

^[169] U.S. v. Salerno, supra note 154. Emphasis supplied.

^[170] 576 U.S. 409 (2015).

^[171] Id., citing Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

^[172] Id., citing District of Columbia v. Heller, 554 U.S. 570 (2008).

^[173] Id., citing Chicago v. Morales, 527 U.S. 41 (1999).

^[174] Id., Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U.S. 71 (1992).

^[175] 347 U.S. 483, 492 (1954), as cited in Richard H. Fallon, Fact and Fiction About Facial Challenges, supra note 151.

^[176] Meier, Luke (2010) "Facial Challenges and Separation of Powers," Indiana Law Journal: Vol. 85: Iss. 4, Article 13, accessed at <https://www.repository.law.indiana.edu/ilj/vol85/iss4/13>.

^[177] 462 U.S. 919 (1983).

^[178] 524 U.S. 417 (1998).

^[179] 137 Phil. 471 (1969).

^[180] Id., citing Thornhill v. Alabama, 310 US 88 (1940); Near v. Minnesota, 283 US 697 (1913); Lovell v. Griffin, 303 US 444 (1938); Murdoch v. Pennsylvania, 319 US 105 (1943); Saia v. New York, 334 US 558 (1948); Kunz v. New York, 340 US 290 (1951); Staub v. Boxley, 355 US 313 (1958); Smith v. California, 361 US 147 (1959); Talley v. California, 362 US 60 (1960;, Cramp v. Board of Public Instruction, 368 US 278 (1961); Baggett v. Bullitt, 377 US 360 (1964); Aptheker v. Secretary of State, 378 US 500 (1964).

^[181] 400 Phil. 904 (2000).

^[182] Id. at 1092.

^[183] Romualdez v. Sandiganbayan, 479 Phil. 265 (2004).

^[184] 401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971), per Black, J.

^[185] Romualdez v. Sandiganbayan, supra note 183.

^[186] 576 Phil. 357 (2008).

^[187] Id. at 390, citing David v. Macapagal-Arroyo, supra note 130.

^[188] Supra note 119.

^[189] Imbong v. Ochoa, supra note 85.

^[190] 552 U.S. 442 (2008).

^[191] Id., citing Sabri v. United States, 541 U.S. 600, 609 (2004).

^[192] Id., citing Ashwander v. TVA, 297 U.S. 288, 347 (1936), which cited Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885).

^[193] Id., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) citing Regan v. Time, Inc., 468 U.S. 641, 652 (1984).

^[194] Advisory dated January 5, 2021, p. 2.

^[195] Id. at 3-4.

^[196] Id.

^[197] See Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) where the Supreme Court of the United States, on a facial challenge, upheld the Constitutionality of an ordinance passed by Chicago Park District but also ruled that, "Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements (Emphasis supplied)." Therefore, the US Supreme Court recognized that despite the ruling on the merits on a facial challenge, an as-applied challenge may be mounted on the same law or ordinance when the proper facts arise.

^[198] Rollo (G.R. No. 252736), p. 79.

^[199] Petitioners' Memorandum for Cluster II Issues, p. 57.

^[200] TSN dated April 27, 2021, p. 44.

^[201] R.A. No. 11479, Section 55.

^[202] Petitioners' Memorandum for Cluster II Issues, pp. 21-22.

^[203] Id. at 25.

^[204] Id. at 22-23.

^[205] Id. at 24.

^[206] Id.

^[207] Id. at 24-25.

^[208] Id. at 29.

^[209] Id. at 30.

^[210] Id. at 30-31.

^[211] An Act Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, As Amended, Otherwise Known as the Revised Penal Code.

^[212] Council of Teachers and Staff of Colleges and Universities of the Philippines v. Secretary of Education, G.R. Nos. 216930217451, 217752, 218045, 218098, 218123 & 218465, October 9, 2018, citing Basco v. Philippine Amusements and Gaming Corporation (PAGCOR), 214 Phil. 323 (1991).

^[213] Id., citing Basco v. Philippine Amusements and Gaming Corporation (PAGCOR), 274 Phil. 323 (1991).

^[214] Id.; City of Cagayan De Oro v. Cagayan Electric Power & Light Co., Inc. (CEPALCO), G.R. No. 224825, October 17, 2018., 884 SCRA 1, 24.

^[215] Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., 151-A Phil. 656 (1973).

^[216] Chavez v. Gonzales, supra note 133.

^[217] In The Matter Of Petition For Declaratory Relief Re: Constitutionality Of Republic Act 4880, G.R. No. L-27833, April 18, 1969, citing Thornhill v. Alabama, 310 U.S. 88 (1940); Near v. Minnesota, 283 U.S. 697 (1913); Lovell v. Griffin, 303 U.S. 444 (1938); Murdoch v. Pennsylvania, 319 U.S. 105 (1943); Saia v. New York, 334 U.S. 558 (1948); Kunz v. New York, 340 U.S. 290 (1951); Staub v. Boxley, 355 U.S. 313 (1958); Smith v. California, 361 U.S. 147 (1959); Talley v. California, 362 U.S. 60 (1960); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961); Baggett v. Bullitt, 111 U.S. 360 (1964); Aptheker v. Secretary of State, 378 U.S. 500 (1964). See also Vera v. Hon. Arca, 138 Phil. 369 (1969); People of the Philippines v. Hon. Ferrer, 180-C Phil. 551 (1972); and Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., supra note 215.

^[218] Supra note 102 at 1 158, Separate Opinion of Associate Justice Marvic Mario Victor F. Leonen.

^[219] Id. (J. Leonen, concurring opinion).

^[220] ABS-CBN Broadcasting Corporation v. Commission on Elections, 552 Phil. 381, 795 (2000).

^[221] Chavez v. Gonzales, supra note 133.

^[222] Id.

^[223] Romualdez v. Sandiganbayan, supra note 183 at 282, citing Separate Opinion of Associate Justice Vicente V. Mendoza in Estrada v. Sandiganbayan, supra note 158 at 421-450.

^[224] Chavez v. Gonzales, supra note 133 at 390, citing Romualdez v. Sandiganbayan, supra note 183.

^[225] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 119 at 488.

^[226] See Dissenting Opinion of Associate Justice Antonio T. Carpio in Spouses Romualdez v. Commission on Elections, G.R. No. 167011, April 30, 2008, citing John E. Nowak and Ronald D. Rotunda, Constitutional Law, p. 1070, 6^th Edition (2000).

^[227] Romualdez v. Sandiganbayan, supra note 183, citing Separate Opinion of Mr. Justice Vicente V. Mendoza in Estrada v. Sandiganbayan, supra note 158 at 430, which cited NAACP v. Alabama, 371 U.S. 288, 307, 12 L. Ed. 2d 325, 338 [1958] and Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960].

^[228] Id.

^[229] Disini v. Secretary of Justice, supra note 127 at 121.

^[230] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 119 at 488.

^[231] Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, supra note 102 at 1116.

^[232] Id. at 1119-1124, applying the Strict Scrutiny Standard to a question involving Equal Protection.

^[233] Chavez v. Gonzales, supra note 133 at 204-205.

^[234] Id.

^[235] 395 U.S. 444

^[236] Id. Emphasis supplied.

^[237] <https://www.unodc.org/c4j/en/terrorism/moduIc-4/key-issues/defining-terrorism.html> accessed on July 2, 2021.

^[238] Id.

^[239] Senate Deliberations, TSN December 17, 2019, pp. 48-49.

^[240] 552 Phil. 381, 396 (2007).

^[241] Petitioners' Memorandum for Cluster II Issues, p. 22.

^[242] Id.

^[243] Id. at 22-25.

^[244] Id. at 21.

^[245] Supra note 183, citing Caltex v. Palomar, 124 Phil. 763 (1966), Estrada v. Sandiganbayan, supra note 158.

^[246] Id.

^[247] 124 Phil. 763 (1966).

^[248] Id. at 772-773.

^[249] Supra note 158; see also Romualdez v. Sandiganbayan, supra note 183.

^[250] Id.

^[251] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 119 at 486.

^[252] Perez v. LPG Refillers Association of the Philippines, 558 Phil. 177, 180-181 (2007).

^[253] Position Paper of Former Chief Justice Reynato S. Puno as amicus curiae, p. 7.

^[254] Romualdez v. Sandiganbayan, supra note 183, citing People v. Nazario, 247 Phil. 276, 286 (1988).

^[255] G.R. No. 127073 January 29, 1998.

^[256] Id.

^[257] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

^[258] As found in Section 4(a).

^[259] See Black's Law Dictionary, 4^th Ed., p. 221.

^[260] As found in Section 4(b).

^[261] See Black's Law Dictionary, 4^th Ed., p. 1394.

^[262] As found in the enumeration of "purposes" under Section 4.

^[263] See J. Caguioa's Dissenting Opinion in Lagman v. Medialdea, G.R. No. 243522, G.R. No. 243745, and G.R. No. 243797, February 19, 2019, citing Lagman v. Medialdea, 814 Phil. 183 (2017); and Lagman v. Pimentel III, 825 Phil. 112 (2018).

^[264] As found in the enumeration of "purposes" under Section 4.

^[265] See also In the Matter of the Petition for Habeas Corpus of Benigno S. Aquino v. Enrile, 15 8-A Phil. 1 (1974), in relation to the necessity of preserving or ensuring the survival of the political structure that protects the rights of citizens as a justification for the preventive detention of individuals during crisis such as invasion or domestic insurrection; and J. Kapunan's Concurring and Dissenting Opinion in Iglesia ni Cristo (INC) v. The Honorable Court of Appeals, 328 Phil. 893, 949 (1996), stating that "Democratic government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones which relate to its political structure"; and J. Paras' Dissenting Opinion in Laurel v. Misa, 77 Phil. 856 (1947), which stated that allegiance to the U.S. as an essential element in the crime of treason under Article 114 of the RPC in view of its position in our political structure prior to the Philippine independence.

^[266] See Occeña v. The COMELEC, 212 Phil. 368 (1984); De Castro v. Judicial and Bar Council, 629 Phil. 629 (2010, Pascual v. The Secretary of Public Works, 110 Phil. 331 (1960), and J. Hilado's Concurring Opinion in Vera v. Avelino, 77 Phil. 192, 220-239 (1946) on separation of powers and system of checks and balances; Lambino v. the COMELEC, 536 Phil. 1 (2006) on people's initiative as a means of proposing and making amendments to the Constitution; Gandionco v. The Honorable Secretary of Agriculture and Natural Resources, 218 Phil. 54 (1984) and Dimayuga v. Benedicto II, 424 Phil. 707 (2002) on reorganization; and 486 Phil. 398 (2004) on the regional autonomy of Mindanao and their right to self-determination.

^[267] <https://www.justia.com/criminal/offenses/> accessed on July 2, 2021.

^[268] Wibke Kristin Timmermann, Incitement in International Criminal Law, International Review of the Red Cross, Vol. 88, Number 864, December 2006, <https://international-review.icrc.org/sites/default/files/irrc_864_6_0.pdf> accessed on September 3, 2021. See also Seyed Ali Ehsankhah, Incitement in International Criminal Law, International Journal of Humanities and Cultural Studies, January 2016, p. 512, <https://www.ijhcs.com/> and > accessed on September 3, 2021.

^[269] See Wibke Kristin Timmermann, Incitement in International Criminal Law, International Review of the Red Cross, Vol. 88, Number 864, December 2006, <https://international-review.icrc.org/sites/default/files/irrc_864_6_0.pdf> visited on September 3, 2021.

^[270] Petitioners' Memorandum for Cluster II Issues, pp. 25-26.

^[271] J.B.L. Reyes, The Revised Penal Code, Criminal Law, 18^th Edition, Book One, p. 95, citing Albert.

^[272] Id.

^[273] Revised Penal Code, Article 248.

^[274] Revised Penal Code, Article 267.

^[275] Section 3, P.D. No. 1866, as amended by R.A. No. 9516.

^[276] Section 2, P.D. No. 1613.

^[277] Article 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.

^[278] Communication No. 578/1994, U.N. Doc. CCPR/C/54/D/578/1994 (1995).

^[279] Petitioners' Memorandum for Cluster II Issues, p. 27

^[280] Id.

^[281] Chavez v. Judicial and Bar Council, 691 Phil. 173, 200-201 (2012).
 
^[282] accessed on September 3, 2021.

^[283] European Union, Directive (EU) 2017/541, Title II, Art. 3, March 15, 2017.

^[284] Id.

^[285] These observable patterns are:

First, the definitions ("operative" definitions or definitions by implication) require:

(a) the performance or commission of offenses or acts (overt acts) generally considered as offenses under the domestic or national laws;

(b) the performance or commission of specified crimes or specified acts could rightfully be considered as crimes under domestic law or are generally considered as crimes under International Humanitarian Law; or

(c) the intentional performance of acts without lawful authority;

Second, majority of the definitions also require that the acts or offences are coupled with or qualified by any or a combination of the following aim, intent, or purpose:

(a) intimidating a population;

(b) compelling a government or an international organization to do or to abstain from doing any act;

(c) causing substantial damage to properly or to the environment;

(d) causing death or serious bodily injury;

(e) causing extensive destruction of such a place where such destruction results in or is likely to result in major economic loss; and

(f) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization.

^[286] U.K., Terrorism Act 2000, Part 1, Section 1.

^[287] Id.

^[288] <https://sso.agc.gov.sg/Act/TSFA2002> accessed on September 4, 2021.

^[289] TSN dated March 2, 2021, pp. 41-44.

^[290] Jude McCulloch and Sharon Pickering, Pre-Crime and Counter-Terrorism: Imagining Future Crime in the "War on Terror," 49 BR. J. CRIMINOL 628 (2009), <http://www.jstor.com/stable/23639183> accessed on July 9, 2021.

^[291] Beslan School Attack, Britannica <https://www.britannica.com/event/Beslan-school-attack> accessed on July 2, 2021.

^[292] ISIS Video Shows Jordanian Pilot Being Burned to Death, CBS News <https://www.cbsnews.com/video/isis-video-shows-jordanian-pilot-being-burned-to-death/#x> accessed on July 2, 2021.

^[293] Id. at 6.

^[294] Ljupka Petrevska et al., Plurality of Definitions and Forms of Terrorism Through History, supra note 1.

^[295] Human Rights, Terrorism and Counter-Terrorism, Office of the United Nations High Commissioner for Human Rights <https://www.ohchr.org/documents/publications/factsheet32en.pdf> accessed on July 2, 2021.

^[296] R.A. No. 11479, Section 4.

^[297] TSN Oral Arguments dated April 27, 2021, p. 52; See also TSN Oral Arguments dated May 11, 2011, pp. 20-21; OSG's Memorandum (Vol. II), p. 290.

^[298] TSN Oral Arguments dated April 27, 2021, p. 56.

^[299] G.R. No. 205728, January 21, 2015.

^[300] Id., citing Joshua Waldman, Symbolic Speech and Social Meaning, 97 COLUM L. REV. 1844, 1847 (1997).

^[301] Records of the Constitutional Commission, Volume 3, pp. 722-723, 731; 738-739, as cited in Simon Jr. v. Commission on Human Rights, 299 Phil. 124 (1994).

^[302] Petitioners' Memoranda, Cluster II, p. 29.

^[303] U.S. v. Bustos, 13 Phil. 690 (1909).

^[304] Diaz v. People, 551 Phil. 192 (2007).

^[305] Black's Law Dictionary, Revised 4^th Edition. (1968), p. 75, 1387.

^[306] TSN Oral Arguments dated February 2, 2021, p. 18.

^[307] Rule 114. Section 7. Capital offense of an offense punishable by reclusion perpetua or life imprisonment, not bailable. - No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.

^[308] G.R. No. L-5932, February 27, 1912.

^[309] Id. citing Proverbs 22:1

^[310] 249 U.S. 47, 63 Led 470 (1919).

^[311] Iglesia Ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996, citing Schenck v. U.S., supra note 302.

^[312] 395 U.S. 444 (1969).

^[313] Id.

^[314] TSN Oral Arguments dated April 27, 2021, pp. 56-57.

^[315] Gonzales v. Commission on Elections, 137 Phil. 471 (1969), citing Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).

^[316] Chavez v. Gonzales, supra note 133.

^[317] Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co Inc., supra note 215.

^[318] Id.

^[319] See Watts v. U.S., 394 U.S. 705 (1969).

^[320] Brandenburg v. Ohio, 395 U.S. 44 (1969).

^[321] Id.

^[322] Other areas with constitutionally proscribable content are obscenity and libel. See Chavez v. Gonzales, supra note 133, staling that: "Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to constitutional protection and may be penalized."

^[323] 137 Phil. 112, 119 (1969).

^[324] Id.

^[325] Id.

^[326] 14 Phil. 450, 451-452 (1909).

^[327] 599 Phil. 717 (2009).

^[328] 394 U.S. 705 (1969).

^[329] Id.

^[330] Id.

^[331] G.R. No. 99327, May 27, 1993.

^[332] Rollo (G.R. No. 252580), p. 68.

^[333] Id.

^[334] Petitioners'Memorandum, Cluster II, p. 35.

^[335] Id.

^[336] Article 10, REVISED PENAL CODE:

Article 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.

^[337] People v. Madrigal, 85 Phil. 651 (1950).

^[338] Dennis v. United States, 71 S. Ct. 857 (1951).

^[339] Id.

^[340] Supra note 133.

^[341] United Nations Security Council Resolution No. 1624 (2005) <http://unscr.com/en/resolutions/doc/1624> visited on August 15, 2021.

^[342] Id.

^[343] See Senate Deliberations dated January 22, 2020 and January 28, 2020.

^[344] Senate Deliberations dated January 22, 2020 pp. 15-17.

^[345] See Office of the United Nations High Commissioner for Human Rights, Human Rights, Terrorism and Counter-Terrorism Fact Sheet No. 32, pp. 43, citing "International mechanisms for promoting freedom of expression", joint declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression (December 21, 2005). See also UN Secretary-General's Report on The Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN DOc. A/63/337, paragraph 61, available at <https://unispal.un.org/UNISPAL.NSF/0/549DE4D8937F3459852574DE0052C973> accessed on July 2, 2021.

^[346] See UN Secretary-General's Report on The Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN DOc. A/63/337, paragraph 62, <https://unispal.un.org/UNISPAL.NSF/0/549DE4D8937F3459852574DE0052C973> accessed on July 2, 2021.

^[347] Id.

^[348] United Nations Human Rights Office of the High Commissioner. Freedom of expression vs incitement to hatred: OHCHR and the Rabat Plan of Action, <https://www.ohchr.org/en/issues/freedomopinion/articles19-20/pages/index.aspx#:-:text=The%20Rabat%20Plan%20of%20Action%20on%20the%20prohibition%20of%20advocacy,Bangkok%20and%20Santiago%20de%20Chile).>
accessed on May 20, 2021.

^[349] TSN dated April 27, 2021, p. 61.

^[350] Petitioners Memorandum for Cluster II Issues, p 37.

^[351] Id.

^[352] Id. at 38.

^[353] Peter G. Berris, Michael A. Foster, and Jonathan M. Gaffney, Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues, United States Congressional Research Service, July 2, 2021, pp. 57-58, citing Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). Available at , accessed 19 August 2021.

^[354] 468 U.S. 609, 622 (1984).

^[355] 138 Phil. 369 (1969). See also People v. Hon. Ferrer, 180-C Phil. 551 (1972), Ferrer cited Vera in declaring that "freedom of expression and freedom of association are so fundamental that they are thought by some to occupy a 'preferred position' in the hierarchy of constitutional values."

^[356] See Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). See also National Association for the Advancement of Colored People v. Patterson, 357 U.S. 449 (1958). The freedom of expressive association can be distinguished from the second sense of the freedom of association, which is the freedom of intimate association or the freedom to enter into and maintain certain intimate human relationships (also in Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984).

^[357] Phil. Const., Article III, Section 8.

^[358] Similar to the scienter requirement considered by the U.S. Supreme Court in Wieman v. Updegraff, 344 U.S. 183 (1952). Black's Law Dictionary defines scienter as the degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission, or the fact of an act having been done knowingly (Black's Law Dictionary, 9^th ed., p. 1463). Ballentine's Law Dictionary, on the other hand, defines scienter simply as knowledge, particularly knowledge which charges with guilt or liability (Ballentine's Law Dictionary, 3^rd ed., p. 1143).

^[359] Senate Deliberations dated February 3, 2020, p. 31.

^[360] 150-C Phil. 531 (1972).

^[361] Id. at 577-578.

^[362] 344 U.S. 183 (1952).

^[363] Garner v. Board of Public Works, 341 U.S. 716 (1951); Adler v. Board of Education, 342 U.S. 485 (1952); Gerende v. Board of Supervisors, 341 U.S. 56 (1951).

^[364] 367 U.S. 203 (1961).

^[365] Dennis v. United States, 341 U.S. 494 (1951).

^[366] People v. Hon. Ferrer, 180-C Phil. 551, 577 (1972), citing Dennis v. United States, 341 U.S. 494, 509 (1951).

^[367] Chief Justice Alexander G. Gesmundo's Concurring and Dissenting Opinion.

^[368] Petitioners' Memorandum, Cluster II, p. 40.

^[369] Manderson, Desmond. Another Modest Proposal: In Defence of the Prohibition against Torture. Fresh Perspectives on the 'War on Terror', edited by Miriam Gani and Penelope Mathew, ANU Press, 2008, pp. 27-44. <http://www.jstor.org/stable/j.ctt24hf7j.10> accessed on July 15, 2021.

^[370] Kydd, Andrew H., and Barbara F. Walter. The Strategies of Terrorism. International Security, vol. 31, no. 1 (2006), pp. 52. <http://www.jstor.org/stable/4137539> accessed on, 2021.

^[371] Section 17. Proscription of Terrorist Organizations, Association, or Group of Persons. - Any organization, association, or group of persons organized Tor the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

^[372] Section 3(e) of R.A. No. 10168 provides:

Section 3. Definition of Terms. - As used in this Act:

x x x x

(e) Designated persons refers to:

(1) any person or entity designated and/or identified as a terrorist, one who finances terrorism, or a terrorist organization or group under the applicable United Nations Security Council Resolution or by another jurisdiction or supranational jurisdiction;

(2) any organization, association, or group of persons proscribed pursuant to Section 17 of the Human Security Act of 2007; or

(3) any person, organization, association, or group of persons whose funds or properly, based on probable cause are subject to seizure and sequestration under Section 39 of the Human Security Act of 2007.

^[373] Petitioners' Memorandum (Cluster 3), p. 41; Petitioners' Memorandum (Cluster 4), p. 24.

^[374] Petitioners' Memorandum (Cluster 2), p. 46.

^[375] Petition (G.R. No. 252580), p. 44; Petitioners' Memorandum (Cluster 3), p. 31.

^[376] Lee Jarvis and Tim Legrand, The Proscription or Listing of Terrorist Organisations: Understanding, Assessment, and International Comparisons, Terrorism and Political Violence 30:2, 199-215 (2018), at p. 204, <https://www.tandfonline.com/doi/full/10.1080/09546553.2018.1432199> accessed September 4, 2021.

^[377] Lee Jarvis and Tim Legrand, The Proscription or Listing of Terrorist Organisations: Understanding, Assessment, and International Comparisons, Terrorism and Political Violence 30:2, 199-215 (2018), p. 204, <https://www.tandfonline.com/doi/full/10.1080/09546553.2018.1432199>, accessed on September 4, 2021.

^[378] Lee Jarvis and Tim Legrand, The Proscription or Listing of Terrorist Organisations: Understanding, Assessment, and International Comparisons, Terrorism and Political Violence 30:2, 199-215 (2018), p. 201, <https://www.tandfonline.com/doi/full/10.1080/09546553.2018.1432199>, accessed September 4, 2021.

^[379] This was later amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), <https://www.govinfo.gov/content/pkg/PLAW-104pub1132/html/PLAW-104pub1132.htm> accessed on September 4, 2021.

^[380] Enacted on October 28, 1977 (Pub. I, 95-223, 91 Stat. 1625, 50 U.S.C. 1701).
 
^[381] <https://www.govinfo.gov/content/pkg/PLAW-104pub1132/html/PLAW-104pub1132.htm> accessed on September 4, 2021.

^[382] Loertscher, Seth, et al. (2020). The Terrorist Lists: An Examination of the U.S. Government's Counterterrorism Designation Efforts, p. 5 <http://www.jstor.org/stable/resrep26666.5> accessed on July 10, 2021.

^[383] <https://www.legislation.gov.uk/ukpga/2000/11/part/II> accessed 10 September 2021.

^[384] Keith Syrett, The United Kingdom, in Comparative Counter-Terrorism Law Cambridge University Press (2015), p. 168.

^[385] Id.

^[386] Prevention of Terrorism (Temporary Provisions) Act 1974, 1974 CHAPTER 56, <https://www.legislation.gov.uk/ukpga/1974/56/enacted> accessed 10 September 2021.
 
^[387] Keith Syrett, The United Kingdom, in Comparative Counter-Terrorism Law Cambridge University Press (2015), p. 179.

^[388] and <https:/www.gov.uk/government/publications/proscribed-terror-groups-or-organisations-2/proscribed-terrorist-groups-or-organisations-accessible-version> accessed 10 September 2021.

^[389] Section 3(5), U.K. Terrorism Act 2000; see <https://www.legislation.gov.uk/ukpga/2000/11/part/II> accessed on September 10, 2021.

^[390] Section 4, U.K. Terrorism Act 2000; see <https://www.legislation.gov.uk/ukpga/2000/11/part/II> accessed September 10, 2021.

^[391] Section 5, U.K. Terrorism Act 2000; see <https://www.legislation.gov.uk/ukpga/2000/11/part/II> accessed September 10, 2021.

^[392] Section 6, U.K. Terrorism Act 2000; see <https://www.legislation.gov.uk/ukpga/2000/11/part/II> accessed September 10, 2021.

^[393] Eugene K. B. Tan, Singapore, in Comparative Counter-Terrorism Law, Cambridge University Press (2015), p. 628.

^[394] Id. at 628.

^[395] <http://unscr.com/en/resolutions/doc/1267> accessed on September 10, 2021.

^[396] <http://unscr.com/en/resolutions/doc/1988> accessed on September 10, 2021.

^[397] Eugene K. B. Tan, Singapore, in Comparative Counter-Terrorism Law, Cambridge University Press (2015), p. 628; see also <https://sso.agc.gov.sg/Act/UNA2001> accessed on September 10, 2021.

^[398] <https://www.un.org/en/about-us/un-charter/full-text> accessed on September 10, 2021.

^[399] <https://sso.agc.gov.sg/Act/TSFA2002> accessed on September 10, 2021.

^[400] Eugene K.B. Tan, Singapore, in Comparative Counter-Terrorism Law, Cambridge University Press (2015), p. 628.

^[401] Id. at 629; see also <https://sso.agc.gov.sg/Act/TSFA2002> accessed on September 10, 2021.

^[402] Id. at 629.

^[403] Andrew Lynch, Nicola McGarrity, and George Williams, The Proscription of Terrorist Organisations in Australia, p. 23, <http://classic.austlii.edu.au/au/journals/FedLawRw/2009/1.pdf> accessed on September 10, 2021.

^[404] Carlos Superdrug Corporation v. Department of Social Welfare and Development, 552 Phil. 120, 132 (2007).

^[405] Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 127 Phil. 306, 316 (1967).

^[406] Id.

^[407] Id.

^[408] Morfe v. Mutuc, 130 Phil. 415 (1968).

^[409] Carlos Superdrug Corporation v. Department of Social Welfare and Development, supra note 404.

^[410] Social Justice Society (SJS) v. Atienza, 568 Phil. 658 (2008).

^[411] Id. 702.

^[412] Id.

^[413] Id.

^[414] 379 Phil. 165, 241-242 (2000).

^[415] Bayan Muna v. Romulo, 656 Phil. 246, 267-268 (2011).

^[416] <https://www.un.org/ruleoflaw/files/3ddalfl04.pdf> accessed on August 12, 2021.
 
^[417] Declaration on Principles of International Law Friendly Relations and Co-operation Among States, United Nations General Assembly Resolution No. 2625, October 24, 1970. <https://www.un.org/ruleoflaw/files/3ddalfl04.pdf> accessed on August 12, 2021.

^[418] Id.

^[419] UNSCR No. 1189, August 13, 1998 <http://unscr.com/en/resolutions/doc/1189> visited on August 12, 2021.

^[420] Id.

^[421] UNSCR No. 1373, September 28, 2001 <https://undocs.org/S/RES/1373(2001)> visited on August 12, 2021.

^[422] UNSCR No. 1368 (2001), which recognized the inherent right of States to individual or collective self-defense in accordance with the UN Charter; UNSCR No. 1269 (1999), which condemned all acts of terrorism, irrespective of motive, wherever and by whomever committed; the 1999 International Convention for the Suppression of the Financing of Terrorism, which the Philippines ratified on 07 January 2004; General Assembly Resolution No. 52/164, or the International Convention for the Suppression of Terrorist Bombings, adopted on 15 December 1997 and which entered into force for the Philippines on 06 February 2004; and General Assembly Resolution No. 49/60, or the Declaration on Measures to Eliminate International Terrorism, adopted on 17 February 1995.

^[423] Secretary of Justice v. Hon. Lantion, supra note 414 at 198, citing Ruperto v. Hon. Torres, G.R. No. L-8785, 100 Phil. 1098 (1957).
 
^[424] United Nations Security Council Resolution No. 1989 (2011).

^[425] United Nations Security Council Resolution No. 2368 (2017).

^[426] United Nations Council Resolution No. 2253 (2015).

^[427] Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011), and 2253 (2015) Concerning ISIL (Da'esh), Al-Qaeda and Associated Individuals, Groups, Undertakings and Entities.

^[428] UNSCR No. 2368 (2017) and Section 7 of the Guidelines of the Committee for the Conduct of its Work (September 5, 2018).

^[429] Dissenting Opinion, Justice Mario V. Lopez, People v. Sapla, G.R. No. 244045, June 16, 2020.

^[430] G.R. No. 244045, June 16, 2020.

^[431] Id. Dissenting Opinion, Justice Amy C. Lazaro-Javier

^[432] 292-A Phil. 669, 679-771 (1993).

^[433] See Southern Hemisphere v. Anti-Terrorism Council, supra note 119 at 488.

^[434] Chief Justice Alexander G. Gesmundo's Concurring and Dissenting Opinion.
 
^[435] 733 Phil. 603, 610 (2014), citing People of the Philippines v. Castillo, 607 Phil. 754 (2009).

^[436] OSG's Memorandum, p. 301.

^[437] TSN of the Oral Arguments dated April 27, 2021, pp. 85-86.

^[438] Republic v. Eugenio, G.R. No. 174629, February 14, 2008.

^[439] Id.

^[440] Id.

^[441] Id.

^[442] R.A. No. 9194, Section 8.

^[443] R.A. No. 10168, Section 2.

^[444] See Sections 10 and 11 of R.A. No. 10168. The only difference of these the R.A. No. 10168, provisions with Sections 35 and 36 of the ATA is that the latter already recognize designation and proscription as the procedures which trigger the issuance of an ex parte bank inquiry and/or freeze order.

^[445] G.R. No. 174629, February 14, 2008.

^[446] Id.

^[447] ATA, Section 36.

^[448] APG, supra note 80 at 85.

^[449] Section 12. Providing Material Support to Terrorists. — Any person who provides material support to any terrorist individual or terrorist organization, association or group of persons committing any of the acts punishable under Section 4 hereof, knowing that such individual or organization, association, or group of persons is committing or planning to commit such acts, shall be liable as principal to any and all terrorist activities committed by said individuals or organizations, in addition to other criminal liabilities he/she or they may have incurred in relation thereto.

^[450] Section 39. Bank Officials and Employees Defying a Court Authorization. — An employee, official, or a member of the board of directors of a bank or financial institution, who after being duly served with the written order of authorization from the Court of appeals, refuses to allow the examination of the deposits, placements, trust accounts, assets, and records of a terrorist or an outlawed group of persons, organization or association, in accordance with Section 25 and 26 hereof, shall suffer the penalty of imprisonment of four (4) years (Emphasis supplied).
 
^[451] Petitioners' Memorandum, Cluster II, p. 46.

^[452] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 119 at 481.

^[453] CONSTITUTION, Article VIII, Section 5(5).

^[454] Rule 7.9, Implementing Rules and Regulations of the R.A. No. 11479.

^[455] 802 Phil. 314, 375 (2016).

^[456] Petitioners' Memorandum for Cluster II Issues, p. 49.

^[457] Id. at 50.

^[458] Id. at 51.

^[459] Id.

^[460] Id. at 50-51.
 
^[461] Id. at 53-54.
 
^[462] Id. at 56-57.

^[463] Id. at 54.

^[464] Petitioners' Memorandum for Cluster V Issues, p. 5.

^[465] Id. at 6.

^[466] Rollo (G.R. No. 252580), p. 54.

^[467] Estrada v. Sandiganbayan, supra note 158.

^[468] G.R. No. 167011, April 30, 2008, citing Romualdez v. Sandiganbayan, supra note 183 at 285.

^[469] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 ed.), p. 168.

^[470] Id. at 168, citing Meeting of the 166-Man Special Committee, November 16, 1972.

^[471] Records of the Constitutional Commission No. 109, October 15, 1986.

^[472] Records of the Constitutional Commission No. 032, July 17, 1986.

^[473] Boyd v. United States, 116 U.S. 616 (1886), citing Cooley's Constitutional Limitations, 801-303 (5th ed. 368, 369), which quoted James Otis.

^[474] 262 Phil. 160 (1990).

^[475] Id. at 170.

^[476] Id. at 171.

^[477] 236 Phil. 691 (1987).

^[478] Id. at 709.

^[479] 253 Phil. 344, 362 (1989).

^[480] Id.

^[481] People v. Pardillo, 810 Phil. 911, 915 (2017), citing People v. Breis, 766 Phil. 785 (2015).

^[482] RULES OF COURT, Section 13, Rule 113 and Section 23, Rule 114.

^[483] People v. Villareal, 706 Phil. 511, 518 (2013), citing People v. Cuizon, 326 Phil. 345 (1996).

^[484] People v. Tudtud, 458 Phil. 752, 773 (2003).

^[485] People v. Cuizon, G326 Phil. 345 (1996).

^[486] Id., citing People v. Burgos, G.R. No. L-68955, September 4, 1986.

^[487] 810 Phil. 642 (2017).

^[488] Id. at 659-660.

^[489] People v. Villareal, supra note 483; see also People v. Cuizon, G.R. No. 109287, April 18, 1996.

^[490] 746 Phil. 301, 325 (2014).

^[491] Supra note 430.

^[492] Id.

^[493] San Miguel Corp. v. Avelino, 178 Phil. 47, 53 (1979).

^[494] Mecano v. Commission on Audit, 290-A Phil. 272, 283 (1992).

^[495] TSN of the Oral Arguments dated April 27, 2021, p. 94.

^[496] 746 Phil. 301, 326 (2014).

^[497] Id.

^[498] <https://www.officialgazette.gov.ph/1972/09/22/general-order-no-2-s-1972> accessed on August 21, 2021.

^[499] OSG's Memorandum (Volume I), p. 146.

^[500] Philippine International Trading Corporation v. Commission on Audit, 635 Phil. 447, 458 (2010).

^[501] OSG's Comment dated July 17, 2020, pars. 448-450.

^[502] Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

^[503] 384 U.S. 436 (1966).

^[504] 362 Phil. 86 (1991).

^[505] Id. at 116-117.

^[506] Section 8. Method of arrest by officer without warrant. - When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest.

^[507] Section 14. Right of attorney or relative to visit person arrested. - Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

^[508] Section 3. Duty of arresting officer. - It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay.

^[509] Id. at 147.

^[510] Id.

^[511] Senate Deliberations, TSN dated January 22, 2020, p. 30.

^[512] Id. at 28-29.

^[513] Id. at 33.

^[514] Id. at 31.

^[515] Id., citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

^[516] Sayo v. Chief of Police, 80 Phil. 859, 886 (1948).

^[517] Petitioners' Memorandum, Cluster II, p. 53.

^[518] Zadvydas v. Davis, 533 U.S. 678 (2001).

^[519] Petitioners' Memorandum, Cluster II, p. 56.

^[520] Id. at 57.

^[521] Senate Deliberations, TSN dated January 22, 2020, p. 30.

^[522] Metropolitan Police Service Anti-Terrorist Branch (SO13). Three Month Pre-Charge Detention (05 October 2005). Submission to the Mouse of Lords and House of Commons Joint Committee on Human Rights, Session 2005-06. Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, Third Report, Volume II, at 58. See also McCulloch, Jude and Pickering, Sharon. Pre-Crime and Counter-Terrorism: Imagining Future Crime in the 'War on Terror'. BRIT. J. CRIMINOL. (2009) 49, 628-6245, at 632.

^[523] Senate Deliberations, TSN dated January 22, 2020, pp. 28-30.

^[524] Id. at 56.

^[525] Jude McCulloch and Sharon Pickering, Pre-Crime and Counter-Terrorism: Imagining Future Crime in the 'War on Terror', BRIT. J. CRIMINOL (2009) 49, 678-6245, at 628.

^[526] Id. at 401.

^[527] United Nations Counter-Terrorism Implementation Task Force, CTITF Working Group on Protecting Human Rights while Countering Terrorism, Basic Human Rights Reference Guide: Detention in the Context of Countering Terrorism, October 2014, <https://www.ohchr.org/EN/newyork/Documents/DetcntionCounteringTerrorism.pdf> accessed on August 21, 2021.

^[528] Id., citing General Assembly resolution 64/168 (2009), para. 6(f); and Address by Ms. Navanethem, Pillay, United Nations High Commissioner for Human Rights, to the Counter-Terrorism Committee of the Security Council, New York, October 29, 2009, p. 3.

^[529] Id., citing Committee against Torture, General Comment No. 2 (Implementation of article 2 by States Parties), UN Doc CAT/C/GC2/CRP.I/Rev.4 (2007), para. 13.

^[530] Id. at 1-3.

^[531] Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, detents, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: x x x (4) Freedom from arbitrary or illegal detention. x x x The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

^[532] Petitioners' Memorandum of Arguments for Cluster IV Issues, p. 25.

^[533] Id. at 26.

^[534] Id.

^[535] Id. at 24.

^[536] Joaquin G. Bernas, S.J., An Introduction to Public International Law (2002 ed.), p. 141.

^[537] Id.

^[538] Id.

^[539] OSG's Memorandum, p. 402.

^[540] Petitioners' Memorandum on Cluster III Issues, p. 66.

^[541] OSG's Memorandum Volume II, pp. 417-418, 421-422.

^[542] R.A. No. 11479, Section 54.

^[543] 456 Phil. 143, 155-156 (2003).

^[544] Rollo (G.R. No. 254191, formerly UDK 16174), pp. 30-37.

^[545] OSG's Memorandum (Vol. I), p. 140.

^[546] Id. at 152-154.

^[547] Id. at 161.

^[548] CONSTITUTION, Article VI, Section 26.

^[549] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 ed.), p. 786.

^[550] G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 & 115931, August 25, 1994.

^[551] Id.

^[552] 675 Phil. 316 (2011).

^[553] Id. at 352.

^[554] Krissy Aguilar, Duterte certifies as urgent anti-terror bill, supra note 35.

^[555] Senate Deliberations, TSN dated January 22, 2020, p. 28.

^[556] OSG's Memorandum (Vol. I), p. 155.

^[557] 506 Phil. 1, 89 (2005).

^[558] Id.

^[559] Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 19, 153 (2002-2003), citing C.A. 2/84, Neiwan v. Chairman of Central Elections Committee for Eleventh Knesset, 39 (2) P.D. 225, 310, and Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., Dissenting) <https://core.ac.uk/download/pdf/72831741.pdf> accessed on August 13, 2021.

^[560] Id. at 26.

---

GESMUNDO, C.J.:

"[T]he possibility of abuse is not argument against the concession of the power as there is no power that is not susceptible of abuse.... All the possible abuses of the government are not intended to be corrected by the judiciary.... All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions."


I submit this Concurring and Dissenting Opinion to reflect my views, perspectives, and conclusions on the rich yield of petitions, all of them challenging the constitutionality of the Anti-Terrorism Act of 2020 (R.A. No. 11479, or the "ATA," for brevity).^[2]

I respectfully dissent from the majority vote on the following procedural issues, to wit:

1. That thirty-five (35) petitions are admissible for judicial review as facial challenges and cases of transcendental importance. I respectfully vote only to admit four (4) petitions - G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768 - as as-applied challenges; and
   
   
2. That strict scrutiny is the appropriate level of the judicial review of the ATA.

The reasons for my dissent on the procedural issues are set out in this Opinion.

I concur with the following majority vote on the substantive issues, to wit:

1. That Sections 4(a), (b), (c), (d), (c); the phrase "organized for the purpose of engaging in terrorism" in Section 10; Sections 26 to 28; and Section 29 of the ATA are not unconstitutional; and

2. That the first and third modes of designation as set out in Section 25 of the ATA are not unconstitutional.

I respectfully dissent from the following majority vote on the substantive issues, to wit:

1. That the proviso "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 safely" in Section 4 of the ATA is unconstitutional; and

2. That the second mode of designation in Section 25 of the ATA is unconstitutional.

The reasons for my concurrence and dissent on the substantive issues are set out in this Opinion.

My personal views on the above-mentioned provisions, as well as other assailed provisions of the ATA, in the context of the as-applied challenges presented by the four previously stated petitions, are contained in this Concurring and Dissenting Opinion.

PREFATORY STATEMENT

Thirty-seven (37) petitions (filed by 15 individuals, 7 organizations, and 15 combinations of individuals and organizations) are now before Us, challenging the constitutionality of the ATA - the government's most recent response to terrorism. This response and renewed will to light terrorism come almost two (2) decades after the horrific World Trade Center bombing in New York City on September 11, 2001,^[3] and almost three (3) years after our country's prolonged terrorism experience in Marawi City from May 23 to October 23, 2017.^[4]

The Marawi carnage was no less gruesome than the World Trade Center terror attack: a 5-month long siege; the destruction of Marawi City; and multiple deaths: 150 security forces, 47 civilians, and more than 800 militants; with more than 1,780 hostages rescued and 400,000 residents of Marawi displaced.^[5] It was also only one of the many terrorist attacks that the country suffered.

Before Marawi, terror attacks took place on November 27, 2011 at Zamboanga City;^[6] on March 3, 2012 at Jolo;^[7] and on September 2, 2016 at Davao City,^[8] among others. After Marawi, other terrorist attacks came in varying levels of intensity and notoriety but all of them taking their toll on innocent Filipino lives. Among these attacks were: the January 27, 2019 Jolo Cathedral suicide bombing;^[9] the June 28, 2019 Indanan suicide bombing perpetrated by the first known Filipino suicide bomber;^[10] the September 8, 2019 bombing also in Indanan, Sulu,^[11] and the August 24, 2020 Jolo suicide bombing.^[12]

Because of these developments, I am not surprised that even some of the present petitioners acknowledge the need to fight terrorism. Interestingly, the consolidated petitions are not the first opposition to the country's anti-terrorism responses. The country's earliest response, R.A. No. 9372, or the Human Security Act of 2007^[13] (HSA), was similarly challenged but the Court significantly upheld its constitutionality albeit under the ponencia of a magistrate who now stands as a petitioner opposing the ATA.^[14]

Since Marawi, times have changed but terrorism still exists. It has not only flourished; it has worsened.^[15] Thus, Congress thought it best, in the exercise not only of police power but also of collective and individual preservation, to craft another anti-terrorism law — the Anti-Terrorism Act (ATA) of 2020 that the petitioners now challenge. The legislative decision involved a policy issue that lies within the prerogative of Congress; policy-wise and under the separation of powers principle, this law and its measures lie outside the reach of this Court, save only when grave abuse of discretion or unconstitutionality intervenes.

In the present round of ATA challenges, the petitioners focus their objections on the means and measures that Congress has chosen to use in fighting terrorism. They claim that these are constitutionally unpalatable for exceeding established constitutional limits; the government, too, allegedly took unjustified liberties for its own private purposes in crafting the ATA.

The petitioners allege that the following constitutional provisions have been violated: the due process clause; the equal protection clause; the right against unreasonable searches and seizures; the right to privacy of communication and correspondence; the freedom of speech clause, along with its contingent rights; the free exercise clause; the right to travel; the right to information; the right of association; the right against incommunicado detention; the right to bail; the right to be presumed innocent; the rights of a person under custodial detention; the privilege of the writ of habeas corpus; the right to speedy disposition of cases; the prohibition against involuntary servitude; the right against cruel, degrading or inhuman punishment; the right against ex post facto laws and bills of attainder; the right to self-determination; the separation of powers among the three departments of the government; the principle of academic freedom; and the constitutionally prescribed procedure in passing legislation.

The petitioners likewise posit, along libertarian lines, that the Court should strictly adhere to constitutional terms in reading, interpreting, and applying the text of the Constitution to their challenges. They apparently expect the Court, under this norm, to conclude that the ATA is ridden with constitutional infirmities and should be declared wholly invalid.

I am fully aware of the level of scrutiny that must be observed in resolving the consolidated petitions, as no less than blood and guts issues are involved, pitting individual and collective claims of constitutional transgressions against the government's bid to protect national sovereignty, our people's security, and their right to life. It is undeniable that the highest individual and collective interests are at stake. This situation alone renders Us aware of the care and sensitivity that must be observed in acting and ruling on these cases.

For the sake of clarity, it must be remembered that our laws carry the disputable presumption of validity and their implementation is similarly presumed regular.^[16] Thus, the petitioners carry the burden of showing that the disputed ATA violates the Constitution.^[17] This has been this Court's starting premise from its earliest days in examining the validity of laws, regulations and governmental acts, and shall be the norm that this Court should now follow.^[18]

Everyone should likewise remember, as a matter of established law, that any Constitution-based challenge to governmental actions is undertaken through constitutional litigation, a process that may not at all be easy to undertake: the process is not as simple as many people think it to be, nor is it as permissive as some of the petitions appear to suggest.

Another point that is best raised now - a mix of the legal and the practical - is that the Court's disquisition today is not and cannot be a complete solution to all the hidden and expressed woes on terrorism, whether from the government side or from those of the petitioners. Considering terrorism's complexity, as will amply be shown below, there is no magic wand to get all the attendant conflicts and problems immediately resolved.

Thus, the Court's ruling, although final on the litigated issues, may only be a beginning, an initial illumination to lighten the darkness that both parties predict will engulf the country should their respective causes fail. For this Court, I implore that We recognize that the country has a long way to go in its battle against terrorism; whichever way the present dispute might go, the fight against terrorism must proceed and should be as continuous as the efforts of the terrorists in sowing chaos for their nefarious aims. Only by continued and comprehensive efforts on everybody's part can we address the menace facing us. In the meanwhile, we need to address and resolve the doubts and misgivings hindering our national effort against terrorism.

What assumes importance for now is the airing and the resolution of all existing problems, disagreements and misgivings, and our continuing efforts to address them, either by the legislation that today is disputed and those that are yet to come; by the implementation that follows every legislative act; or by the adjudication, such as the current one, through which the country avoids festering disputes.

The gravity of the issues before us - national sovereignty and national security (that translates, at the individual level, to the protection of the right to life of innocent victims of terrorism) versus the protection of individual legal and constitutional rights and of democratic ideals - cannot but play a big part in our actions on the consolidated petitions. We are assisted in this task, in no small measure, by the very enlightening counsel of our amici curiae - former Chief Justice Reynato Puno and former Associate Justice Francis Jardeleza.

Our former Chief Justice impressed upon us, after walking us through the evolution of terrorism, that what we see today are new developments in man's history of threats to peace and security.^[19] Former Associate Justice Jardeleza, on the other hand, candidly outlined - through his Gios-Samar v. Department of Transportation and Communications^[20] (Gios-Samar, for brevity) ruling - the fate that awaits this Court and the country if We would wholly and solely be swayed by idealism in conducting our adjudication; if We disdain concerns for practicality; and if We fail to show a firm hand in applying the brakes on the current and potential influx of cases from the litigating public.

Terrorism is destructive and deadly and is at the same time a more resilient and cunning foe: it is clandestine, swift, elusive and is difficult to immediately detect, deter, and apprehend.^[21] It does not recognize front lines nor respect national boundaries; it can be anywhere and at the least expected places, and can change its face seemingly at will, as it mutates as actors, means, methods, and targets change. We cannot thus view terrorism as an act of violence alone that we can deal with in the manner we handle other criminal acts involving violence. We cannot simply act in the way the police and the prosecutors handle murder, or the rebellion that, at its worst, we can address through martial law.^[22]

In dealing with terrorism, we should utilize all possible kinds of legally available measures and approaches - pre-emptive, preventive, proactive, remedial, and rehabilitative. Lives saved through prevention are as important as the injured ones saved from death in the terrorism that we failed to prevent. We should similarly tread carefully in considering the merits of the present cases lest we defeat the legislative purpose and the objectives of our Constitution through overzealous legalism, imaginative speculation, or very narrow perspectives.

We should likewise be reminded that our anti-terrorist authorities cannot act alone in protecting the public whose physical safety as well as constitutional rights may be at risk in the fight against terrorism. Either way, we cannot allow our authorities to engage in their protective duties while ill-equipped. They need and must be given ample support by all our people and by government, from the lowest to the highest levels. With everybody's support, we can win and in fact have won many times under our chosen democratic ways.

To cite a notable past example, albeit a foreign one, the air-riding public must be aware that the airport authorities are now very strict in the regulation of airport pre-boarding procedures. What they may not know is the reason why air passengers' personal belongings, even their cosmetics and liquid personal effects, are now subjected to highly restrictive inspections and cannot simply be brought on board.

The reason arose from a highly successful but unheralded operation in 2006 against terrorists who sought to blow up planes coming from the United Kingdom to the United States. The plot sought to use liquid explosives to destroy the United States-bound aircrafts.^[23]

According to news accounts concerning the incident, the terrorists, guided by the Al-Qaeda had been able to prepare bombs from materials commonly bought over the counter in our malls and groceries - hydrogen peroxide, a common orange drink, and AA batteries. It was further reported that the authorities in Britain believed that hydrogen peroxide was the liquid explosive component, the orange juice was the fuel component, and the AA batteries were intended to conceal the hexamethylene triperoxide diamine (HMTD), which constituted the detonator component.^[24]

News accounts also recounted that the terrorists planned to bring these innocuous materials on board; mix them during flight; and set them to explode mid-flight. It was further reported that, as planned, 7 planes going to American and Canadian cities would have exploded at about the same time over the Atlantic Ocean, killing all those on board and at the same time obliterating traces of how the explosion happened.^[25]

Counter-operations against these types of terrorism take time, open and covert efforts, substantial resources, political will, and a very significant amount of coordination and cooperation among nations at the international level.

As in any war, operations of this nature often translate to loss of lives of both friends and foes alike, and, at times, may cause the temporary loss or suspension of highly prized individual rights during unavoidable covert operations. When searches, seizures, surveillance, arrests, and detentions take place, lives may temporarily be disrupted and properties damaged or lost, with or without the strict observance of the legal niceties that normal times absolutely require.^[26]

These realities are mentioned, not to justify any attendant or consequent illegalities nor to defend restrictive laws or regulations, but simply to recognize that they do happen and to emphasize how vicious terrorism is and how urgent it needs to be adequately checked.

We bury our heads in the sand if we say that these kinds of realities should now prevent us from passing laws requiring strict measures, both preventive and remedial, to address terrorism. We irresponsibly put the nation at risk when we say that we should not pass these laws because of the attendant and consequent illegalities and abuses that could take place.

To fully do our duty to protect the nation and the lives of our people, we must embrace reality and do what We must and can do, simply because terrorism, an intrinsic evil, exists and must be prevented and fought. Abuses are realities in the light against terrorism, but these are separate problems which should not be confused with terrorism.

While there can be built-in, or the possibility of added, counter-abuse measures in the ATA to guard against or respond to the possibility of abuses, our role as a Court is not to inject these kinds of wisdom into, or second guess Congress which formulated these measures; Our role is simply to test the ATA against the requirements of our Constitution.

One guiding principle this Court observes in the exercise of judicial power and judicial review is to exercise restraint in recognition of the democratic mandate of the executive and legislative branches, as well as the vast resources and expertise that they contribute in the formulation of police power measures. Judicial restraint is not deference but simply a measured response in considering challenges to a law that has been forged for a public purpose by two co-equal branches of government.^[27]

For now, practicality and the urgency of thwarting terrorism soonest demand that We rule on the ATA as We find it today and let Congress and the nation approach any possible abuses separately and differently; they constitute another kind of menace that require and are best met with separate and different approaches and counter-measures.

What We should not do or allow to be done, as a Court, is to consciously allow the passage or the interpretation of laws and measures that would and could foreseeably and unreasonably disregard the legal and constitutional rights and guarantees afforded citizens and the public in our normal lives under normal times.

If we stoop to this level, we would be no different from the terrorists who simply look to their objectives and disregard the legality or morality of their means. We must not, and we cannot, light at this self-defeating level. If we do, we may temporarily save lives or notch temporary victories, but at the cost of our chosen way of life and, ultimately, even our basic and foundational values and beliefs as a people and as a nation. Real victory can only come if we fight terrorism under our own democratic and constitutional terms although we know that these approaches, at times, may not be the most expedient and the most immediately effective.

Like any other Filipino institution, the Court is obligated to join the nation's fight against terrorism. A measure it can undertake now, on Its own and as part of Its obligations under the Constitution, is to fully recognize and adjust to the new realities that terrorism poses, without however bowing to and using terrorism's unlimited and ignoble goals, means, and methodologies. In so doing, We must ensure that the national effort is undertaken in a principled way, in the way of the Constitution that We are sworn to defend.

As We adjudicate today, the Court must be strict but it must - above all - be fair; it must be sensitive to the plight of the individual and his rights under the Constitution, but it must also be conscious of the State and of the State's own needs and purposes under the same Constitution. This is the sense of fairness the Court extends to the parties, and, most especially, to the Filipino people whose interests, though not fully articulated, should be foremost in our minds.

Our most available equalizer in undertaking our judicial duty is the keen awareness and the careful analysis we can give when we appreciate the facts and when we read and interpret our laws. We must remember the past; the evolution that terrorism has undergone; our previous encounters with terrorism inside and outside our courts (such as in our Southern Hemisphere ruling); and the developments that have transpired since then, nationally and internationally.

Moreover, this Court must never lose sight of the attributes and characteristics of the terrorism menace now facing the country. To its negative attributes, We must apply the full rigors of our laws while being sensitive to the rights and needs of individuals and the ideals that our democratic life imposes on us.

From a defensive perspective, this Court cannot and must not be tied to the remedial measures the country has applied in the past and which measures have failed us. Our approaches and rulings must also evolve in order to be ahead, or at the very least, be at pace with, terrorism's evolution. The Court cannot - as in simple mathematics - simply substitute and apply its Southern Hemisphere ruling to our present circumstances. Most of all, the Court must be very discerning and sensitive to changes and attendant nuances, and accept this awareness to be part of being strict and of being fair.

Lastly, the Court needs a grand view of the conflicting interests of the State and of individual citizens, and be ready to address their respective interests, if possible, without one fully negating the other. If this kind of choice is not possible, then the Court should not shirk from doing its sworn duty; It must then weigh and choose from among the open options to achieve the policy that the law seeks to put in place while protecting the nation and citizens' rights to the utmost. It must undertake this task while being sensitive and sufficiently prescient to the consequences of Its choices.
 
This approach is the balancing approach that, as applied to terrorism and the constitutional challenges now before the Court, considers the need to combat terrorism effectively but in a way that does not fully negate the individual constitutional rights of citizens if such ideal medium can be found.

This means that the Court shall not simply fully focus on one side or the other in the present dispute. It cannot give full protection to the interests of the State at the expense of the protection of individual constitutional rights, or vice versa. The Court must have all interests in mind - individual as well as collective, properly weighed and considered - in resolving the pending disputes.

The alternative to this balancing approach, to our mind, is to play into one of the unstated aims of the terrorists - to indirectly and by slow accretion destroy our society as a community existing under the rule of law, justice, and democracy. The terrorists would be one step closer to destroying our national sovereignty and security, if and when they achieve this unexpressed aim. I need not stress that our society cannot exist for long if terrorism triumphs, nor exist as a democracy without the respect for the Constitution and the individual rights it embodies.

Another aspect of judicial review that this proposal seeks to address is that, in the exercise of judicial power, a currently noticeable tendency in court rulings is to veer away from their sworn duty of settling rights and obligations or determining the presence of grave abuse of discretion on the part of the government by unwittingly determining policies themselves, an exercise of power reserved for the political branches. This anomaly has come to be known as "judicial legislation" where a court "engraft[s] upon a law something that has been omitted which [the court] believes ought to have been embraced," as opposed to finding a statute's true meaning by way of liberal construction.^[28]

In cases that could give rise or lead to murky complications (as in counter-terrorism), courts often run the danger of judicially legislating their interpretations into the Constitution or into statute books in an attempt to balance civil liberties with compelling or legitimate State interests, albeit made with no intention to favor one side or the other. An alarming danger posed by this kind of move in situations ridden with complexities is either the exposure of civil liberties to State abuses, or the exposure of the People's safety and health to lawless elements. Both scenarios do not favor the People who should not be forced or be expected to choose between either ends of this spectrum. Thus, the courts should now recognize the need to refine judicial review tools to allow them to be used surgically to carve out the constitutionally offending parts of a penal or regulatory statute and preserve the compelling State interest component of an offending statute. This manner of judicial review is achieved by adopting the method of narrow construction or tailoring.^[29]

A well-settled rule is that the Constitution, being the "fundamental paramount and supreme law" is deemed written in every statute.^[30] Thus, all laws are invalidated or modified accordingly when the need or the occasion arises. In the exercise of its interpretative powers, the Court should always remember that It cannot and should not tread outside the bounds of Its judicial power by encroaching on the people's power to amend or revise the Constitution, or on the Legislative's plenary power to legislate and to determine the subjects of legislation. For the Court to exercise these powers is almost a fraud on the people by effectively changing the Constitution outside the prescribed constitutional modes of amendment or revision, or by determining policy in the guise of interpretation that amounts to judicial legislation.

An alternative for the Court - in feet, a new approach to judicial review - is through narrow construction. As opposed to judicial legislation, narrow construction does not add to the law; it merely recognizes the inherent limitations of an assailed statute as outlined in the Constitution that is deemed an integral part of every law. The Court, in other words, merely recognizes the bounds of an assailed law by pointing out the governing or applicable constitutional provisions and defining its scope in the exercise of the Court's power to interpret the Constitution. In effect, it is the Constitution itself, not the Court (itself a mere constitutional creature) which tailors the law into one that protects both civil liberties and the general welfare. Thus, instead of nullifying a penal statute containing a compelling and legitimate State interest in its entirety on the ground of being vague or overbroad, the Court merely sets out constitutional boundaries that are anyway deemed written into the laws.

Likewise, instead of "returning" nullified statutes to Congress, which then second-guesses the calibration of the statute to the level acceptable to the Court's sensibilities, the latter simply draws the outer limits of assailed statutes according to what the Constitution itself provides. In this manner, while the Court does not pre-empt the exclusive prerogative of the people and the Legislative Branch to choose policy directions and the subjects of governance or regulation, it still provides clear directions or guidance according to principles recognized by or institutionalized in the Constitution. Stated more succinctly, narrow construction is a method of enforcing constitutional provisions affecting the validity or implementation of a statute or its parts by limiting a statute's ostensible reach, thereby emphasizing constitutional—not judicial—supremacy.

To implement this concept of judicial review, the US Supreme Court in New York v. Ferber^[31] suggested that, when an overbroad criminal statute is sought to be applied against a protected conduct, the proper recourse for the courts is "not to invalidate the law in toto, but rather to simply reverse the particular conviction." This course of action implies two things: (1) that there must first be a characterization of or determination whether a conduct is protected or not; and (2) that courts should only allow an as-applied challenge of overbroad penal statutes. These implications require courts to weigh unique factual circumstances and determine whether the act or acts of the accused constitute protected conduct or speech.

JURISDICTIONAL CONSIDERATIONS

I. Separation of Powers

Governmental power is generally divided into the powers exercised by the three great departments of government - the executive, the legislative and the judicial departments. The recognition of the Judiciary as a branch of government separate from the Legislative and the Executive started out when the Founding Fathers of the United States (US) of America proposed a system of checks-and-balances. In proposing the creation of the Judiciary as a separate branch, James Madison (one of the Founding Fathers) took the cue from Baron de Montesquieu's book (The Spirit of the Laws) where the latter pointed out that: (1) violence and oppression would result if judicial power is combined with executive power; and (2) life and liberty would be subjected to arbitrary control if judicial power is combined with legislative power.^[32] In other words, the point of separating judicial power from legislative and executive power and of making it passive in the first place, is to prevent state abuses with the aid of magisterial powers.

For its part, the Philippine Constitution situates judicial power (Article VIII) vis-a-vis legislative power (Art. VI) and executive power (Art. VII). Constitutional law refers to this rule as the separation of powers principle. Accordingly, each branch of government is generally supreme in its constitutionally assigned tasks and cannot intrude into the tasks or powers of the others; an essence of the principle of separation of powers.^[33]

II. Definition and Inclusions of Judicial Power

A. Judicial Power Proper

Section 1, Art. VIII of the Constitution defines "judicial power" as follows:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Traditionally, judicial power is confined to settling actual controversies involving legally demandable and enforceable rights.^[34] However, it comes in two modes, i.e., in the regular "enforceable and demandable rights-based" mode under the first clause of the 2nd paragraph (judicial power proper); and in the "expanded" and "grave abuse of discretion-based" mode of the 2nd clause which empowers courts to resolve complaints involving "grave abuse of discretion" on the part of any branch or instrumentality of government (judicial review).

B. Jurisdictional Requisites and Limitations

The Court in Francisco v. House of Representatives^[35] laid down the limitations of judicial review which have since been recognized as its requisites, viz.:

1. There must be an actual case or controversy calling for the exercise of judicial power;
   
   
2. The person challenging the act must have legal "standing" or locus standi (demonstrated by a personal and substantial interest in a case which the challenger has sustained, or will sustain, direct injury as a result of an invalid statute or executive issuance's enforcement) to challenge;
   
   
3. The question of constitutionality must be raised at the earliest possible opportunity; and
   
   
4. The issue of constitutionality must be the very lis mota of the case.
   

The presence or absence of any of these elements determines whether the judicial review petition filed with the Court shall proceed for consideration on its merits, or be dismissed outright for not being justiciable, i.e., for being inappropriate for the Court's consideration on the merits.

C. Exceptions to the Requirement of Legal Standing

A first exception provided by jurisprudence is the transcendental importance of the issue that the petition raised. By this exception, the Court recognized the primacy of issues raised that, in the Court's view, stand at a higher plane of constitutional importance than locus standi as a requirement in determining the justiciability of a petition.

While the term "transcendental importance" may carry a dictionary definition, the questions of "when," "how," "why," and the "extent of its application" could be problematic, as importance may vary from individual to individual; views on the importance of an issue and the level of its importance may not be uniform even within a small group.

Transcendental importance, to be considered in constitutional litigation, must be understood in the constitutional law sense and is not satisfied by the dictionary meaning, either of the term "transcendental importance" or of the issue involved. Neither will an unsubstantiated claim of transcendental importance in the petition suffice; the petitioner must identify and explain to the Court the issue involved and the reasons for its importance. Unless so explained, the Court would have no basis to justify its primacy over the required locus standi.

The Court, fortunately, has provided guidelines through the decided cases, in the form of listed determinants that the Court or the parties may use as standards, tests, or comparators in considering whether an issue is sufficiently important to be accepted for the Court's consideration. These determinants are: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in the questions being raised.^[36]

This enumeration, of course, is not exclusive but the nature of the listed items and the underlying reason for their inclusion in the list already suggest the filters and the levels of importance that the Court considers for recognition.

In Pimentel, Jr. v. Aguirre,^[37] the Court set a very low threshold for the existence of a justiciable controversy when it held that "by the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act"^[38] (violating the disputed law) and that "when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws . . settling the dispute becomes the duty and the responsibility of the courts." Bluntly stated, the Pimentel ruling - if followed - would allow the immediate judicial review of a disputed law once it is signed by the President; there would be no need for a petitioner to wait for the violation of the law or a regulation before the petitioner can bring a petition before the Court for recognition as a justiciable controversy and adjudication on the merits. Pimentel's trigger point, to be sure, is not difficult to appreciate and to apply. Its formulation, considered together with the transcendental importance of the issue raised, has been reiterated in several cases, among them, the recent Pimentel v. Legal Education Board.^[39]

Moving beyond the mere executive approval that Pimentel required, the Court, in Tatad v. Secretary of the Department of Energy,^[40] focused on the issue raised and injected its transcendental importance as basis for the petition's justiciability, explaining that its flexibility as a Court to admit cases with issues of this nature derives from the second strand of judicial review under the ruling that:

Judicial power includes not only the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, but also the duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. Where a statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act as unconstitutional and void.^[41] (citations omitted)

On this reasoning, the Court considered the Rule 65 petition for certiorari and prohibition in Tatad to be justiciable. Tatad, however, may not be as jurisprudentially significant when applied to the "actual controversy" and "transcendental importance" perspectives; transcendental importance is far from the grave abuse of discretion which the Constitution expressly recognizes under Art. VIII, Sec. 1, par. 2 as basis for justiciability. By this recognition, the Constitution effectively equated the presence of grave abuse of discretion to an "actual" controversy over which judicial power may be exercised.

Notably, other cases where transcendental importance also played a prominent role in considering justiciability pertained to issues on controls on housing rentals (1949);^[42] the conduct of constitutional referendum (1975);^[43] synchronization of elections (1991);^[44] the distribution of election districts (1992);^[45] limitation of election campaign airtime (1998);^[46] the validity of the Visiting Forces Agreement (2000);^[47] the bidding of infrastructure projects (2016);^[48] compromise agreements on ill-gotten wealth (1998);^[49] and an ordinance on oil depots (2007).^[50] Parenthetically, the statutes involved in these cases are all non-penal, i.e., they do not provide penalties for their violation. This characteristic is stressed at this point as jurisprudence has made an increasingly pronounced distinction between penal and non-penal statutes in determining the justiciability of cases whose issues are claimed to be transcendentally important, as the discussions below will show. Despite the number of these cited cases, the Court also notes that these cases do not appear to have established any clear and consistent guidelines on how and why the issues raised came to be recognized as transcendentally important and why such recognition became the determinative consideration in concluding that the petitions were fit for the Court's exercise of judicial power.

Interestingly, as early as 1994, an approach had already been made in a case, albeit in a Concurring Opinion, where locus standi and transcendental importance of the issues raised were major considerations in determining justiciability. In Kilosbayan v. Guingona,^[51] Justice Florentino P. Feliciano sought to answer in his Concurring Opinion the question of "x x x when, or in what types of cases, the Court should insist on a clear showing of locus standi understood as a direct and personal interest in the subject matter of the case at bar, and when the court may or should relax that apparently stringent requirement and proceed to deal with the legal or constitutional issues at stake in a particular case."^[52] Furthermore, he opined that "it is not enough for the Court simply to invoke 'public interest' or even 'paramount considerations of national interest,' and to say that the specific requirements of such public interest can only be ascertained on a 'case to case' basis."^[53] Hence, he proposed three determinants that the Court could consider when the principle of transcendental importance is invoked as basis for a petition's justiciability. In short, he met head-on the issue of when the principle of transcendental importance may be invoked and be given primacy.^[54]

The Feliciano Opinion, unfortunately, did not find its way into a main Court ruling until Senate of the Philippines v. Exec. Sec. Ermita,^[55] These guidelines likewise later appeared in the Court's ruling in CREBA v. Energy Regulatory Commission.^[56] The Court took another view of and approach to justiciability in Gios-Samar v. Department of Transportation and Communications,^[57] when it held, among others, that to qualify as a case of transcendental importance, the question raised must be purely constitutional. Similar to a facial challenge, a case of transcendental importance is an exception to the general rule that the parties must have legal standing and raise an actual controversy.

In Parcon-Song v. Parcon,^[58] on the other hand, the Court focused its attention on the "demonstrably and urgently egregious" character of the constitutional violation that it said must clearly be alleged and discussed in order to bring the case to the level of justiciability. This line of consideration is akin to one of the Feliciano determinants, with the added requirement that the plea for recognition of transcendental importance be clearly explained to the Court.

Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City,^[59] (a challenge to curfew ordinances filed by the parents of the minors being subjected to the ordinance) made its own contribution to the justiciability issue via the prism of the Court's expanded jurisdiction, thus hewing to the Court's ruling in Tatad v. Secretary of the Department of Energy^[60] mentioned above. In recognizing that an actual controversy existed and is thus justiciable, the Court said:

Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case given the evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair the minors' and parents' constitutional rights, and whether the Manila ordinance goes against the provisions of RA 9344. Based on their asseverations, petitioners have — as will be gleaned from the substantive discussions below — conveyed a prima facie case of grave abuse of discretion, which perforce impels this Court to exercise its expanded jurisdiction. The case is likewise ripe for adjudication, considering that the Curfew Ordinances were being implemented until the court issued the TRO enjoining their enforcement. The purported threat or incidence of injury is, therefore, not merely speculative or hypothetical but rather, real and apparent.^[61]

This statement, as in Tatad, confirms that a case raising a question of transcendental importance must clearly state the acts of grave abuse of discretion giving rise to the question.

The need to show direct injury to the petitioner as a factor in determining justiciability when transcendental importance is likewise invoked, was definitively recognized in Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council^[62] — the Court's first decided case on terrorism, an issue whose importance even then was undisputed. The Court ruled in said case that to justify direct recourse based on the transcendental importance of the issue of the constitutionality of a penal law, the petitioner must show personal and direct injury. The Court said:

While Chavez v. PCGG holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling state and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372 [HSA].

x x x x

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.^[63] (citations omitted, emphases supplied)

Notably in this cited case, the disputed law, the HSA, is a penal legislation; hence, the ruling should particularly apply when the disputed law is penal, as distinguished from the other transcendental importance cases cited above,^[64] which all involved non-penal statutes.

The Court considered the direct injury requirement satisfied in Estipona v. Lobrigo,^[65] where the petition was filed by the person directly charged under the impugned law, R.A. No. 9165 (the Dangerous Drugs Act), even though the petition suffered from other technical delects, such as the failure to implead Congress and the collateral nature of the constitutional attack. In recognizing justiciability, the Court also cited the transcendental importance of the issues raised.^[66]

In Fuertes v. Senate of the Philippines,^[67] the Court allowed direct recourse to it by a person charged under the impugned law after, likewise, considering the transcendental importance of the issue raised.

In contrast, in Private Hospitals Association of the Philippines, Inc. v. Medialdea,^[68] the Court gave no weight and disregarded transcendental importance as justification and disallowed the constitutional challenge to the penal provisions of R.A. No. 10932 (or Anti-Hospital Deposit Law) that the Association raised on the ground that the owners and managers of private hospitals (who were to bear the penalty) did not expressly authorize the Association to bring the case.

The cases of transcendental importance which the Court recognized despite the absence of a party with direct and immediate injury, have been outlined in David v. Macapagal-Arroyo.^[69] The Court specifically said: "(2) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question x x x and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators."^[70]

In Tañada v. Tuvera^[71] and Joya v. PCGG,^[72] the Court required a citizen suit for "mandamus to procure the enforcement of a public duty for the fulfilment of a public right recognized by the Constitution."^[73] Thus, although the damage is not direct and immediate, for a case to be declared justiciable, there must nevertheless be a discernible conflict of interest traceable to the allegedly unconstitutional law for a case to be declared justiciable.

To articulate the implication from the trends that the above line of cases suggests, it seems that while the transcendental importance of the litigated issue may do away or lessen a party's need to establish direct legal standing to sue, such importance does not completely remove the need to clearly show the justiciability of a controversy through the existence of conflicting interests even if only remotely, as well as the ripeness of the issues raised for adjudication.^[74] A separate class unto itself would be cases involving penal laws, where the rule is that the transcendental importance of the question must be accompanied by a prim a facie showing of locus standi.

From the above analysis, it is clear that when the disputed law is non-penal, transcendental importance must be invoked as basis for justiciability through the Feliciano determinants first mentioned in Kilosbayan and later cited by the Court in its Senate v. Ermita and CREBA v. Energy Regulatory Commission rulings.

The second exception to locus standi, rooted in American jurisprudence and merely transplanted to Philippine jurisprudential soil, relates to the mode of challenge a petition undertakes. Direct damage or injury to the petitioner (and therefore his direct "standing" to sue) does not need to be actually shown in a facial challenge as the injury contemplated in this mode of challenge is potential, and it may affect third parties who are not before the Court.

The Court, under this situation, recognizes - as a consideration higher than locus standi (and the actual case or controversy of which is a part) - that a petitioner may sue under a statute potentially implicating fundamental freedom of expression, on behalf of parties not before the Court (third parties), whose exercise of these rights could be "chilled."

Initially developed based on the right to freedom of speech, the Court sought to avoid the situation when parties would refrain from engaging in constitutionally protected speech (i.e., which would be chilled) due to the fear that their speech would violate a statute regulating speech. Whether and to what extent this Court would adopt the American facial challenge rule is a matter for the Court to definitively rule upon in light of the actual case or controversy provision of our Constitution which expressly requires the existence of an "actual" controversy, in contrast with the American Constitution which does not have a similar requirement and which relics merely on jurisprudence, Marbury v. Madison,^[75] for its power of judicial review. Facial challenge and its complexities in the Philippine setting shall be discussed at length at its proper place below.

D. Hierarchy of Courts

One of the Constitution's built-in rules (by implication and by jurisprudence) in the exercise of judicial review is the application of the hierarchy of courts principle, i.e., that cases falling within the concurrent jurisdiction of courts of different levels should be filed with the lowest court with jurisdiction over the matter.

In Vergara, Sr. v. Suelto,^[76] a 1987 case, the Court already stressed that:

The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ's procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe.^[77] (emphases supplied)

This ruling has been repeated in a long line of cases, among them: People v. Cuaresma^[78] in 1989; in Ouano v. PGTT International Investment Corporation^[79] in 2002; in Bañez, Jr. v. Concepcion in 2012;^[80] and most recently in Gios-Samar v. Department of Transportation and Communications^[81] in 2019, where the Court pointedly mentioned that one reason is to control its docket by preventing the filing of cases before the Court when these same cases also fall within the jurisdiction of the lower courts.

A deeper reason for the application of this principle, however, relates to the differing powers of the Court and the lower courts with respect to the trial of facts.

Cases involving questions of fact are filed and tried before the lower courts because these courts are fully equipped by law to receive evidence during the trials conducted before them. The Court, on the other hand and by the nature of its powers and structure, is not a trial court and is not a trier of facts. It is not, in other words, designed to handle the reception of evidence in the way that the trial courts can. If no evidence has been presented before the lower courts and as this Court is not equipped to receive evidence or factual support for the petitions, there would therefore be no facts to support a decision on the merits at the level of the Court. Thus, petitions riddled with factual issues that are directly filed with the Court deserve outright dismissal.

As pointed out by the amicus curiae Justice Francis H. Jardeleza, not one of the petitions passed through the lower courts; they were all filed directly with this Court, although a few did satisfactorily explain the reasons for such. For the petitioners who violated the hierarchy of courts principle through their direct filing with this Court and who failed to explain the reasons for their move, the warning of dire consequences made by Gios-Samar should not be forgotten:

Accordingly, for the guidance of the bench and the bar, we reiterate that when a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case. Such question must first be brought before the proper trial courts or the CA, both of which are specially equipped to try and resolve factual questions.^[82]

I likewise note that a few of the petitioners are also involved in existing actual or potential controversies where they can raise or potentially plead the constitutional concerns they now bring before this Court.^[83] More importantly, they could have or still can, if they wanted to or now want to, introduce evidence of their interest/s and the damage or injuries these interests suffered. These petitioners have no excuse to directly file their petitions with this Court.

As in Gios-Samar (where the petitioners sought direct recourse to Us to prohibit the bidding process of allegedly illegally bundled projects that, to them, involved matters of public interest and transcendental importance), We have to fall back on the general rule that We cannot hear factual issues at the first instance. The only instance when the Court is constitutionally allowed to take cognizance of factual issues in the first instance is in the exercise of its constitutionally mandated task to review the sufficiency of the factual basis of the President's proclamation of martial law under Sec. 18, Art. VII of the 1987 Constitution - a far different case from the present petitions. The Court likewise would not dare to risk the possibility of denying litigants their right to due process by depriving them of the opportunity to completely pursue or defend their causes of actions through a premature and uncalled for intervention on factual issues.

I explain these operational concepts and interactions in the present dispute to allow our people to appreciate how the different governmental branches, all of them within one government and one system, check, balance, and interact with one another, to have a harmonious and unified whole acting together for the interest of the people. These constitutional rules likewise explain the limits and extent of this Court's adjudicative powers so that the people themselves can be sure that the Court, when adjudicating, acts within the limits of Its constitutional powers. The Court owes the people this explanation as It acts in the people's name and for their individual and collective interests; It must thus always act within the scope of the power the people granted It through the Constitution.

Thus, judicial review is framed by three basic principles. The first principle is that under Sec. 1, Art. VIII of the 1987 Constitution, judicial power is, all at once, vast and limited. Judicial power includes the power to strike down a legislative or executive act that contravenes the Constitution. However, the Court may exercise that power only after it has satisfied itself that a party with legal standing raised an actual controversy in a timely manner and after recourse to the hierarchy of the courts, and that resolution of the case pivots on the constitutional question. The second principle is that judicial power is activated only when the Court assumes jurisdiction over a petition that has passed through a well-defined procedural screening process. The third principle is that judicial power is exercised through judicial review by applying long established standards and levels of judicial scrutiny and/or tools of constitutional interpretation and statutory construction. I call these procedural filters and substantive standards of constitutional litigation.

I adhere to the foregoing parameters of the Court's discretion by observing judicial restraint. Judicial restraint is not deference but simply a measured response in considering constitutional challenges to a law that has been forged for a public purpose by two co-equal branches of government.^[84] It adopts a measured response by admitting into its jurisdiction only those cases that meet certain requirements and, having assumed jurisdiction, conducting judicial review using standardized methods of scrutiny and interpretation.

E. Types of Constitutional Challenges

i. Modes of Challenging the Constitutionality of Statutes

The judicial review of statutes, treaties (as well as other forms of international agreements), and quasi-legislative administrative issuances is wielded in cases where: (1) a statute assailed in view of underlying facts that are either substantiated before trial courts or presented to and admitted by the reviewing court at first instance; or (2) the face of an assailed statute contains provisions that patently contravene protected speech and separation of powers. The first is called an "as-applied" challenge; the second is referred to as a "facial" challenge.

a. As-Applied Challenge

An as-applied challenge calls for the determination of how the law measures up to the established constitutional limits when these limits are applied to the petitioner's conduct under the disputed law. The court declares the offending part of the law, if severable, to be unconstitutional without affecting the totality of the law.^[85] In this kind of challenge, the language of the statute itself does not show an apparent hint of any fundamental (law; the flaw, if one exists, only emerges when the statute is tested through the crucible of real-world circumstances.

The Court notably allowed the "as-applied" challenge in People v. Nazario,^[86] People v. Dela Piedra,^[87] Estrada v. Sandiganbayan,^[88] People v. Siton,^[89] and Celdran v. People.^[90] It expounded on this challenge in Disini, Jr. v. The Secretary of Justice^[91] but opted to accept the facial challenge under the unique circumstances of this case.

People v. Nazario^[92] involved the charge of violating Ordinance No. 4, series of 1955, of Pagbilao, Quezon, for Nazario's failure to pay municipal taxes as a fishpond operator. Nazario averred, among others, that the ordinance is null and void for being ambiguous and uncertain.^[93]

The Court considered the application of the ordinance and found Nazario to be within its coverage. As actual operator of the government-owned fishpond, he was the "manager" who should shoulder the tax burden since the government never shared in the profits. The Court further found no vagueness in the dates of payment since the liability for tax accrued on January 1, 1964 for fishponds in operation prior to Ordinance No. 12, and for new fishponds, three (3) years after their approval by the Bureau of Fisheries (October No. 15). The Court concluded that while the standards in the ordinances were not apparent from the faces, they were apparent from their intent.^[94]

In People v. Dela Piedra^[95] Carol M. dela Picdra (dela Piedra) was indicted for and convicted of illegal recruitment in large scale under Sec. 13(b) of Presidential Decree (P.D.) No. 442, as amended. On appeal to the Court, she assailed the constitutionality of the law for its supposed vagueness and overbreadth. The Court's review treated the petition as an as-applied challenge since dela Pieda had been charged with the crime and had alleged violation of her own right.

The Court denied the challenge as it did not find the law - as applied to dela Piedra - to be vague; it was merely couched in imprecise language that could be salvaged by proper construction. Additionally, the Court denied that the law is overbroad as dela Pieda failed to specify the constitutionally protected freedoms embraced by the definition of "recruitment and placement."

In Romualdez v. Sandiganbayan^[96] the Presidential Commission on Good Government (PCGG) charged Alfredo T. Romualdez (Romualdez) for violation of Sec. 5, Republic Act No. 3019, as amended. After the Sandiganbayan's denial of his motion to dismiss, Romualdez questioned the denial through a petition for certiorari (under Rule 65 of the Rules of Court) filed with this Court. He assailed the denial on the ground, among others, that the provision under which he was charged, Sec. 5 of Republic Act No. 3019, was vague and impermissibly overbroad.

The Court held that an "as-applied" challenge, not a facial challenge, was appropriate as conduct, not speech, was the object of the penal statute. The Court thereafter declared that the disputed Sec. 5 is not vague; it adequately answers the question of "What is the violation?" and that the term "intervene" should be understood in its ordinary and common meaning.

Another "as-applied" challenge was allowed in People v. Siton.^[97] Evangeline Siton (Siton) and Krystal Kate Sagarano (Sagarano), charged with vagrancy under Art. 202(2) of the Revised Penal Code, filed a petition for certiorari and prohibition before the trial court, assailing the provision's constitutionality on the ground, among others, that it is vague as the definition of vagrancy includes persons otherwise performing ordinary peaceful acts. In support of their contention, they cited the U.S. case of Papachristou v. City of Jacksonville,^[98] where the U.S. Supreme Court declared a Jacksonville vagrancy ordinance unconstitutional. The trial court sustained the petitioners' averments and declared Art. 202(2) unconstitutional.^[99]

The Court, on appeal, reversed the trial court and upheld the constitutionality of Art. 202(2), ruling that the underlying principles in Papachristou (failure to give fair notice of what constitutes forbidden conduct, and the promotion of discriminatory law enforcement) are inapplicable in our jurisdiction.^[100]

It held that, under our legal system, ignorance of the law is not an excuse for non-compliance - a principle of Spanish origin that governs and limits legal conduct. This principle is in contrast with its American counterpart where ignorance of the law is merely a traditional rule that admits of exceptions.^[101]

The Court further distinguished the Jacksonville ordinance from our Art. 202(2), and likewise declared that our probable cause requirement is an acceptable limit on police or executive authority in enforcing Art. 202(2). Any claimed unfettered discretion given to enforcing bodies is checked by this constitutional requirement.^[102]

In Celdran v. People,^[103] the Court of Appeals (CA) found Carlo Celdran guilty of offending religious feelings under Art. 133 of the Revised Penal Code (RPC). The Court reversed the CA ruling on motion for reconsideration after considering that Art. 133 regulates the content of speech and its overbreadth and vagueness have resulted in a chilling effect on free speech. Notably, the Court resolved the case as an as-applied challenge and discussed the application of facial and as-applied challenges in its ruling.

The Court rejected the use of a facial challenge made on the basis of vagueness and overbreadth, holding that Art. 133 of the RPC does not encroach on freedom of expression because it regulates conduct, not free speech. It observed that "[t]he gravamen of the penal statute is the disruption of a religious ceremony and/or worship by committing acts that are notoriously offensive to the feelings of the faithful inside a place devoted to religious worship or during the celebration of a religious ceremony. There is nothing in the provision that imposes criminal liability on anyone who wishes to express dissent on another religious group. It does not seek to prevent or restrict any person from expressing his political opinions or criticisms against the Catholic church, or any religion."

The Court also held that a facial challenge on the basis of overbreadth is impermissible because Art. 133 does not regulate only spoken words. It covers all acts notoriously offensive to the religious feelings, which is within the State's authority to regulate.

The Court likewise declared that the terms "notoriously offensive" and "religious feelings" are not utterly vague as they are words in common use. Hence, any person of ordinary intelligence may understand the words in their ordinary and usual meaning. The Court also noted that jurisprudence contains sufficient examples of acts considered notoriously offensive to religious feelings.

To summarize, Romualdez and Celdran make it clear that Art. III, Sec. 4 of the Constitution cannot serve as refuge for the use of facial challenge to claim free speech protection on the basis of alleged vagueness and overbreadth when the implicated statute involves acts or conduct, not speech.

b. Facial Challenge

The general mode of challenge of constitutionally-challenged statutes in our jurisdiction is through the "as-applied" mode, i.e., by examining the statute through the prism of a concrete and discrete set of facts showing the substantial and direct impairment that the statute's enforcement has caused a petitioner's constitutional rights.^[104] Under this mode, the petitioner can claim a violation of his constitutional rights such as abuse of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness, but can only do so only if he asserts the violation of his own right; he cannot assert the right of a third party who is not before the Court.^[105]

For the most part, disputes that give rise to situations calling for an as-applied analysis of statutes often involve a complex interplay and occasional conflict between "legitimate and compelling" governmental interest in preventing crime and individual civil liberties guaranteed by the Bill of Rights;^[106] the text of the law is always scrutinized in relation to actual facts experienced and presented as evidence by the parties to the dispute.

A facial challenge, in contrast with and as an exception to an as-applied challenge, can be made - as jurisprudence has established - even prior to the enforcement of a disputed law, based solely on alleged "vagueness" or "overbreadth" of what the law, on its face, provides. It can be made by a petitioner for himself or on behalf of third parties not before the court. Pursuant to the same line of jurisprudence, the challenge - if successful - can result in the invalidity of the entire law.^[107]

In other words, the constitutional infirmities appear in the text or "face" of the statute itself even without considering surrounding facts, i.e. even before evidentiary facts have been presented before the court for consideration. The burden is for the challenger to show that no set of circumstances exists under which the assailed legislation could be valid.^[108] In this kind of situation, the reviewing court must be careful not to go beyond the statute's face and speculate about "hypothetical" or "imaginary" scenarios.^[109]

In the Philippine setting, facial challenge has been notably considered in the following cases:

First, in Quinto v. COMELEC,^[110] the Court initially held that the right to run for public office and the right to vote are protected rights under Sec. 1 and Sec. 4 of Art. III. The Comelec resolution and the law it implements impair the protection by being overly broad in that they fail to distinguish between partisan and non-partisan appointive officials who will be deemed resigned by merely filing for candidacy.

On motion for reconsideration, however, the Court reversed itself and held that Sec. 4 is not implicated for there is no "fundamental right to express one's political views through candidacy."

Moreover, it found no overbreadth even as the resolution/law applies to both partisan and non-partisan employees. Citing Broadrick v. Oklahoma,^[111] the Court held that as the disputed resolution/law regulates conduct rather than protected speech,^[112] overbreadth must be substantial rather than merely real. The Court, moreover, adopted the following measure of the substantiality of a law's overbreadth:

[It] would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e., the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.^[113]

In addition to this measure of substantiality of overbreadth, the Court adopted the rule that there must be no countervailing weight against such substantiality. Otherwise, and as it ultimately concluded, the proper remedy is an as-applied challenge in which the Court may adopt a limiting interpretation.

Second, in Adiong v. COMELEC,^[114] the Comelec resolution (implementing the Omnibus Election Code) was challenged for violation of Sec. 4 of the Bill of Rights, for prohibiting the posting of decals and stickers in mobile places like cars and other moving vehicles. The Court held that such prohibition implicates "freedom of expression ... not so much that of the candidate or the political party ... [but] of an individual to express his preference and, by displaying it on his car, to convince others to agree with him."

Overbreadth was also alleged as the restriction on "where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property." The Court allowed the facial challenge and, after subjecting the law to an intermediately level of scrutiny, concluded thus:

[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.^[115]

The Court ultimately found the resolution unreasonable for being overly broad vis-a-vis the governmental purpose.

Third, in Ople v. Ruben Torres,^[116] the Court allowed a facial challenge against an administrative order issued by the President instituting the national identification system on the ground that it was patently ultra vires and implicated Sec. 3(1) of the Bill of Rights on the right to privacy. Here, it reiterated the ruling in Morfe v. Mutuc^[117] that privacy is constitutionally protected. There is impairment through overbreadth as there exists a wide range of technologies for obtaining biometrics, with some of them more intrusive than others. Yet, the administrative order does not specify the biological characteristics and biometric technology that shall be used.

Fourth, in Biraogo v. Philippine Truth Commission,^[118] the Court allowed a pre-enforcement facial challenge against an executive order creating a truth commission. The order implicated Sec. 1 on equal protection. However, the impairment of Sec. 1, Art. III of the Constitution is not through overbreadth or vagueness but through an invalid classification that targeted the previous administration. It is notable that the parties here were part of the previous administration; hence, they stood to be prejudiced by the executive order.

Fifth, in Disini, Jr. v. The Secretary of Justice,^[119] the Court allowed the pre-enforcement facial challenge on Sec. 5 of the Cybercrime Law.

The Court noted the Solicitor General's position that "the plain, ordinary, and common usage" of the terms "aiding and abetting" is sufficient to guide law enforcement agencies in enforcing the law and that the "legislature is not required to define every single word contained in the laws they craft." Their meaning is easily discernible through common sense and human experience.

Nonetheless, the Court held that such common understanding and application are incongruous in cyberspace where persons post, tweet, like, comment, share privately, or publicly. However, as other persons can repost or retweet these texts, images or videos, the original parties to the communication no longer have control over the subsequent dissemination. Hence, in this context, with respect to materials offending the Cybercrime Law, the terms aiding, abetting, and attempting would need to be more precisely defined.

The relevance of Disini to the current petitions, however, relates to the petitioners' recourse to facial challenge when the disputed law is penal, a position that I disagree with because terrorism involves acts or conduct and, hence, is not subject to facial challenge. If it involves speech at all, it is not speech protected by the freedom of speech in the same way that obscenity and defamation are not protected speeches.

Sixth, in Nicolas-Lewis v. Commission on Elections,^[120] the Court allowed a pre-enforcement facial challenge against a Comelec resolution implementing a law on overseas voting. The resolution prohibited "partisan political activities" abroad during the 30-day overseas voting and was deemed to implicate protected speech under Sec. 4, Art. III of the Constitution.

Moreover, it impairs protected speech through overbreadth for the prohibition applies "abroad" rather than to well-defined premises where elections are conducted. As the mischief sought to be addressed by the resolution is the risk of threat to the integrity and order in the conduct of overseas voting, such mischief is likely to take place only in voting premises, such as Philippine embassies, rather than the vast area termed "abroad."

A facial challenge was found appropriate because a protected right and an overextended statute were involved.

Seventh, in Inmates of the New Bilibid Prison v. De Lima,^[121] the main and concurring Opinions agreed that a pre-enforcement facial challenge is viable against the implementing rules that prospectively applied the availability of good conduct time allowance under a new law. The implementing rules were found to impair equal protection under Sec. 1, Art. III of the Constitution through the adoption of an invalid classification system.

Lastly, We come to Southern Hemisphere v. Inc. v. Anti-Terrorism Council.^[122] This case is most significant in considering the present petitions as it ruled on the constitutionality of the earlier anti-terror law — the HSA. The Court emphasized the rationale for the use of facial challenge and its non-availability in penal status, stating that:

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech x x x [T]his rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.

x x x If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible x x x A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it.^[123]

In my view, no less weighty than an alleged violation of a fundamental right in a facial challenge is the consideration of the State's interest involved in a disputed legislation. The ATA is not an ordinary legislation but a very weighty one that by nature is comprehensive; it encompasses both preventative and punitive interests and approaches. In direct conflict are both individual and collective interests that should be properly considered and weighed.

From another perspective, collective interests cannot be any less important than the individual interests that a facial challenge places and holds sacred in the altar of constitutional rights. Let it not be forgotten that individual rights can only be enjoyed if society continues to viably exist. A contrary view could be blind idealism that disregards the reality of how life operates. The Constitution and its guaranteed rights will all be for naught if the State itself - that the Constitution supports - is extinguished. Survival is the law of life; where the life of the State is at stake, everything else takes secondary precedence.

Thus, the primary question in considering legislation like the ATA, whose aim is the defense of the State against those who threaten its survival, is or should be - should the Court maintain the current jurisprudence on the non-availability of facial challenge to penal laws such as the ATA?

The first consideration, as Associate Justice Mendoza fully explained in Estrada, is that the unavailability of a facial challenge cannot at all be equated to the denial or the non-recognition of an aggrieved individual's fundamental rights. Violation can still be alleged and proven, but these will have to be undertaken based on concretely adduced facts showing the prejudicial effect of a disputed statute on the individual, not on the basis of assumed facts that can border on speculation. In this manner, fairness prevails between the individual and the society in whose behalf and in whose defense the legislation was formulated and passed.

Let it not be forgotten in this regard that terrorism is a socially harmful conduct. Terrorism, like Covid-19, affects not only individuals but the nation as a whole^[124] or at least a very substantial number of our citizens.^[125] By undisputed world experience, it is no longer a purely local concern that can be treated as an ordinary police matter. It has become a worldwide problem that has drawn the attention of no less than the United Nations.^[126] It has been proven to cross borders into nations that have not properly or seasonably applied their anti-terrorism preventive measures.^[127]

At its ugliest, terrorism can affect the sovereignty and security of a nation when terrorists aim for political power outside the limits that the Constitution narrowly allows. Unlike rebellion that is usually undertaken in the open, terrorism works insidiously and clandestinely.^[128] A nation could thus fall incrementally in a long agonizing descent into chaos, or in one blow even before the government realizes what it is up against.^[129]

The last and most important consideration, again taking cues from Justice V.V. Mendoza's Opinions, is that terrorism involves acts and conduct, not speech (except where speech integral to criminal conduct is involved, which is unprotected);^[130] thus, any challenge to the ATA should be "as-applied."

This course of action offers the advantage of being fully consistent with the actual case or controversy that the Constitution requires. It is, at the same time, closer to the congressional intent of having a comprehensive anti-terrorism law. Respecting the wisdom of Congress when it passed the ATA would not at all signify the Court's subservience to a co-equal body; it is in fact its bow to the primacy of the Constitution.^[131]

JUDICIAL REVIEW PARAMETERS

II. Judicial Review

A. Nature of Judicial Review

The power of the judicial department (or the judiciary) is "expanded" under the grant of judicial power because it allows the courts to resolve disputes and to nullify actions involving "grave abuse of discretion" committed by the two other great branches of government - the executive and the legislative. From the constitutional perspective, actions undertaken with "grave abuse of discretion" are actions outside of the actor's constitutionally or statutorily allowed limits, and, hence, are nullities that courts can so declare pursuant to constitutional command.^[132] In other words, judicial review is simply the exercise of judicial power, the objective of which is to review the constitutionality of the act or acts of the other co-equal branches of government or the offices and agencies under them.

However, the courts, when they so act, do not thereby cross constitutional boundary lines and are not, in fact, rendered more powerful than the other two branches of government. Their authority merely confirms that in our governmental system, the Constitution is supreme and all three branches of government must keep within the limits of their respective powers.^[133] Even the judicial branch must keep within the constitutional limits of its power to check grave abuse of discretion. Accordingly, the Constitution circumscribes judicial power in two ways: first, it imposes certain requisites and conditions before a court may activate its judicial power and assume jurisdiction to resolve a case; and second, it requires the courts to apply specific methods of judicial review, including the appropriate level of judicial scrutiny and tools of constitutional interpretation and/or statutory construction. As such, judicial power has been described as the "distinguished but delicate duty of determining and defining constitutional meaning, divining constitutional intent, and deciding constitutional disputes."^[134] Nonetheless, unlike legislative and executive powers, judicial power is passive; meaning, it is initiated only in the filing of a petition in an appropriate proceeding.^[135]

Corollary, in the traditional exercise of judicial power, the right on which a petition is based must be identified with particularity, together with allegations on how this right has been violated. This same rule applies with equal force to the "expanded" mode: the grave abuse of discretion committed by the governmental agency, office, or officer must likewise be properly alleged through prima facie showing of the abusive act and of the manner the abuse was committed. These allegations constitute the "case or controversy" requirement for the exercise of judicial power under Art. VIII, Sec. 1 of the Constitution. Without these allegations, the Court shall dismiss a petition for failure to show the required grave abuse of discretion.

After the Court's examination, It then decides whether the disputed law complies with or violates the terms of the Constitution. In the latter case, the Court ultimately decides whether the law, found to be flawed, must be struck down in its entirety, or saved through a limiting construction that does not rewrite but merely aligns the law with the Constitution, or partly saved through a separability interpretation.^[136] In rare instances, the Court urges the executive and legislative branches to fine tune their implementing rules in order to forestall the excesses that would render the law's enforcement unconstitutional.^[137]

B. Approaches to Judicial Review

i. Effect of Nature of Challenge Admitted on Choice of Judicial Scrutiny

Prior to enforcement means that a challenge could be launched even before the law is applied and before the petitioner or parties who are not before the Court suffer any actual or direct damage or injury (thus, even without showing the locus standi or actual case or controversy that the Constitution expressly requires).^[138]

Without a clearly pleaded and defined actual controversy, a facial challenge is a very sensitive aspect of constitutional litigation as the court runs the risk of ruling on hypothetical situations unless it strictly adheres to the "facial" description of the challenge. To be "facial," the law must show, based solely on its wording or its direct and immediate implication, that a constitutional violation exists through vagueness or overbreadth.^[139]

Assuming that the challenge is admitted, its nature—that is, whether it be an as-applied challenge, a facial challenge, or a case of transcendental importance—does not pre-determine the level of judicial scrutiny to be employed.

ii. Proposed Judicial Scrutiny

a. Gradations of Scrutiny

Judicial review proper proceeds by determining whether the law, as it operated on the petitioner, falls within constitutional parameters, using the appropriate lens of scrutiny and its necessary gradations. The levels of scrutiny are discussed at length below.

A critical analytical tool considered together with the mode of challenge in reviewing the constitutionality of a disputed law is the level of scrutiny that the Court shall apply in considering the case.^[140] The level of scrutiny depends on the level of protection accorded by the Constitution to the fundamental right allegedly affected by the law;^[141] the gravity of the governmental objective sought through the law; and the degree of the law's interference on the affected fundamental right.^[142] Thus, the Court often makes a textual and jurisprudential re-examination of the scope of the right implicated. For example, the lowering of society's expectations of the right to privacy at airports,^[143] as well as the legal context in the formulation of the law,^[144] (such as when its adoption is in compliance with a binding treaty obligation)^[145] affect the Court's level of scrutiny.

Jurisprudence has provided us three levels or gradations of scrutiny through the years.

The rational-basis scrutiny is appropriate where the law is merely regulatory rather than prohibitive, it is narrowly targeted and it does not impact protected rights.^[146] In general, a rational-basis scrutiny ascertains whether the law is rationally related to a legitimate government purpose.^[147] A soft rational-basis scrutiny accords a presumption of validity to a law of longstanding application, such as on vehicle registration.^[148] A hard rational-basis scrutiny suspends any presumption of validity and weighs the public interest sought to be advanced by the law vis-a-vis any countervailing interest which is peculiar to a party, such as the right to private property.^[149]

Both intermediate or means-end scrutiny and strict scrutiny are appropriate where the law implicates a right that is protected by the Constitution,^[150] or a right that is enjoyed by persons who are protected by the Constitution, such as Overseas Filipino Workers.^[151] However, intermediate scrutiny shall be employed if the law is content-neutral in that it is aimed merely at the time, place, or manner of exercise of a protected right.^[152] In that event, the Court ascertains whether the law (1) serves an important government interest; (2) it is reasonably appropriate for the purpose of advancing said government interest; and (3) it narrowly tailors the burden on protected rights only to the extent necessary to advance the government interest.^[153]

Strict judicial scrutiny shall be employed where the core content of the protected right or the right of a protected person is burdened by the law,^[154] or where a suspect classification based on race, sex, or religion is adopted.^[155] However, intermediate review is sufficient where the core of a protected right to speech is merely unnecessarily burdened by a law through overbreadth.^[156] When engaging in strict scrutiny, the Court suspends the presumption of regularity of official conduct and, by extension, the presumption of constitutionality of the law.^[157] It inquires whether the government has established that (1) there is a distinctly compelling governmental interest; and (2) the law is narrowly designed to achieve said governmental interest.^[158]

b. Proposed Level of Scrutiny

The aforementioned considerations, to my mind, cannot be applied in a plain and mechanistic way; application must be attended by the discretion appropriate to the subject under consideration. For example, when the importance of the government's interest weighs heavily (as the compelling interest that terrorism does), the third element of a narrow focus may appropriately be adjusted and widened to ensure that the government's interest is properly and thoroughly addressed. Failure to make this adjustment may spell the difference in the effectiveness of the law.

The fight against terrorism is indisputably a compelling government interest in light of the nature and background of this menace and its continuing threat to the country. Whether and to what extent the government measure should focus should depend on the nature and extent of the interest at stake and on the character of the measure the law prescribes, considered in relation with the constitutional right involved. A material question on this point is whether the abuse of constitutional right is patent or immediately threatened, or whether it is only considered possible. The element of pervasiveness of the violation should likewise not be forgotten.

After its scrutiny, the Court then decides whether the disputed law violates the Constitution and declares whether it must be struck down in its entirety, saved through a narrow construction that would align it with the Constitution, or partly save it through an existing separability clause or through the narrow interpretation and application already suggested elsewhere in this Opinion.^[159]

In rare instances, the Court may urge the executive and legislative branches to fine tune their implementing rules in order to forestall excesses in enforcement of a measure that has been found to be constitutional.^[160] But in no case can the Court question the policies or measures that Congress adopts on the basis of their wisdom, nor can the Court delve into the adequacy under existing conditions of the enacted measures.^[161]

In essence, the power of the Court to pass upon the constitutionality of laws, regulations or other acts of the legislature and the executive is awesome but is a reserved power that may be used only when and as may be appropriate; to our mind, the Court should only exercise the power when it must, not because it can. On the occasions when it must, the Court should still have the discretion to adjust the application of its conclusions based on its balancing approach, as discussed above.

By laying down the foregoing principles and mapping out the stages of constitutional judicial review, the Court provides a guide to the disposition of each disputed constitutional issue in the surviving petitions. Every stage and level of review and the resulting application shall be discussed in full in the course of their consideration.

C. Tests on the Constitutional Validity of Statutes

i. Approaches to Testing the Scope of Statutes

a. Void-for-Vagueness and Overbreadth Doctrines

As mentioned above, "vagueness" exists when the law is so unclearly or loosely framed that a person cannot reasonably know what the law exactly provides or commands; it prevents a person from reasonably knowing whether he acts within or outside the law.^[162] Through vagueness the law transgresses the due process requirements of the Constitution by not giving a fair notice of what the law penalizes.^[163] Vagueness also leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the government's muscle.^[164]

An "overbreadth" exists when the means employed to achieve a governmental purpose are unnecessarily broad and, thus, invades constitutionally guaranteed rights.^[165] In speech terms, facial challenge may be allowed if the disputed law prohibits not only speech that the legislature may regulate, but also speech protected under the Constitution,^[166] in the U.S., if it prohibits a substantial amount of protected speech.^[167]

Where conduct and not merely speech is involved, the statute's alleged overbreadth must be both real and substantial, judged in relation with the statute's plainly legitimate sweep.^[168] The concept of "substantial overbreadth," however, cannot readily be reduced to an exact definition; the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render the statute susceptible to an overbreadth challenge.^[169]

In sum, "vagueness" is concerned with the clarity of the law; while "overbreadth" is concerned with the precision of a law.^[170]

b. Chilling Effect of Speech Restriction

The "chilling effect" reasoning applies with full force to freedom of speech and expression cases as the Court may, out of concern for this effect, decide in favor of a challenged law's invalidity and allow the law's targeted speech to go unregulated to avoid any deterrent effect on citizens who might otherwise lawfully speak.^[171]

In balancing terms, this means that the Court is choosing to allow the existence of some unregulated speech so that citizens may enjoy the salutary effect of their full speech rights.^[172] The Court thus accords preference, primacy, and full constitutional protection to citizens' right to speak.

In my view, this liberal approach outweighs the risk the community may run from the speech that remains unregulated. Note in this regard that certain types of speech such as those involving obscenity and defamation lie outside constitutional protection and are, thus, subject to statutory regulation without intruding into the Constitution's freedom of speech guarantee.^[173]

A chilling effect, however, when recognized outside the factual circumstances of a case could raise a host of questions that ultimately boils down to one of fairness: the who, what, when, where, why, how, and whether or not a chill intervened are always hanging questions whose answers - in the absence of concrete facts — are largely assumed from the nature of the constitutional right involved.

Unfortunately, this assumption is at times made without considering the State's own interests.^[174] In the context of terrorism, these interests are the constitutional duties of the State to maintain its own viability and survival; and its duties to protect and promote the interests of the governed, including the interests of potential victims among the governed who are not also before the court.

The chilling effect line of thought likewise glosses over the nature of the disputed law that, when penal by nature, is intended to send signals to the governed that the prohibited action should not be committed without running the risk of the law's penalty whose purpose is to deter behaviour against the interests of society. In other words, a chilling effect is built-in and is part and parcel of every penal legislation.

These concepts are not at all new in our jurisdiction as Associate Justice V.V. Mendoza, years ago, eloquently summed up the basic underlying principles in his Concurring Opinion in Estrada v. Sandiganbayan:^[175]

x x x x

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

and dwelt as well on these challenges' characteristics and limits of use:

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an overbreadth doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the Conduct of the others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

x x x x

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, ... ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged, (citations in the original omitted.)

The Associate Justice supplemented these thoughts in the Court's Resolution denying petitioner Estrada's Motion for Reconsideration when he added:^[176]

"Indeed, it has been pointed out that "procedures for testing the constitutionality of a statue 'on its face'... are fundamentally at odds with the function of courts in our constitutional plan." When an accused is guilty of conduct that can constitutionally be prohibited and that the State has endeavored to prohibit, the State should be able to inflict its punishment. Such punishment violates no personal right of the accused. Accordingly, as the enforcement of the Anti-Plunder Law is not alleged to produce a chilling effect on freedom of speech or religion or some "fundamental rights" to be presently discussed, only such of its provisions can be challenged by petitioner as are sought to be applied to him. Petitioner cannot challenge the entire statute on its face. A contrary rule would permit litigation to turn on abstract hypothetical applications of a statute and disregard the wise limits placed on the judicial power by the Constitution. As Justice Laurel stressed in Angara v. Electoral Commission, "the power of judicial review is limited to actual cases and controversies ... and limited further to the constitutional question raised or the very Us mot a presented." (emphasis supplied)

Subsequent to its Estrada ruling, the Court ruled on the merits of Southern Hemisphere v. Inc. v. Anti-Terrorism Council on the issue of the validity of the country's first anti-terrorism legislation, the HSA.

The Court significantly declared the HSA valid, again drawing heavily on Associate Justice V.V. Mendoza's Separate Opinions in Estrada. It thus reinforced the strength of the Court's pronouncements, first made in Estrada, on facial challenge, and also established the unavailability of facial challenge in reviewing penal laws.

Consistent with these positions, the Court has subsequently limited the application of a facial challenge to cases clearly involving the freedom of speech and other fundamental rights and showing that these rights had been at risk. Except for its ruling in Disini, mentioned below, it also limited the application of facial challenge to non-penal statutes that do not involve violations of fundamental rights.

Thus, aside from an equal protection clause violation (that the Court allowed in Biraogo v. Philippine Truth Commission based on the invalid classification made in the disputed law),^[177] jurisprudence has allowed a facial challenge only for violation of the freedom of speech and expression under Art. III, Sec. 4 of the Constitution;^[178] the right to privacy of communication and correspondence under Sec. 3(l);^[179] and the right to form association under Sec. 8.^[180]

Justice V.V. Mendoza's 2001 Concurring Opinion in Estrada v. Sandiganbayan, cited above, was made a part of the main opinion in that case and likewise became part of the main opinions in Romualdez v. Sandiganbayan (2004); Spouses Romualdez v. Commission on Elections (2008); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council (2010); Spouses Imbong v. Ochoa, Jr. (2014); Lagman v. Medialdea (2017) and Madrilejos v. Gatdula (2019), among others.

The Court (and the U.S. Supreme Court whose "facial challenge" approach became this Court's initial model)^[181] has allowed a facial challenge in the past to address the "chilling effect" that the challenged law could bring to third parties who are not before the Court even prior to the law's implementation,^[182] thus, based solely on what the law provides "on its face" and without the benefit of factual context or concrete evidence of the actual circumstances of the alleged violation of rights.^[183]

In this sense, facial challenge is an approach that the Court allows in an excess of caution to prevent situations where citizens are prevented from acting, in a manner otherwise protected under the Constitution, due to their uncertainty on the meaning and scope of the law and their fear that the law could cover and penalize them. This is the "chilling effect" that compelled the Court to immediately act, without waiting for the law's implementation, on overbroad or vague laws affecting fundamental rights.

In plainer terms, because of a statute's vagueness or overbreadth, a person might stay away from doing anything that could possibly fit the uncertain wording of the law, thereby limiting what he could otherwise legitimately do. Invalidity arises because the wording of the challenged law may cover both protected and unprotected speech, thus preventing people from speaking due to their fear or concern that they would overstep into unprotected territory and thereby violate the law.

c. Speech v. Criminal Conduct

Speech, as a fundamental right, is constitutionally protected.^[184] Thus, the U.S. Supreme Court has only recognized limited categories of speech that the government may regulate because of their content and for as long as the regulation is even-handed.^[185] Content-based restrictions on speech, i.e., laws that "appl[y] to particular speech because of the topic discussed or the idea or message expressed," are thus presumptively unconstitutional and subject to strict scrutiny.^[186]

Likewise, it has been held that an utterance or other mode of expression is said to be "unprotected" if it is "of such slight social value as a step to truth that any benefit that, may be derived from them is clearly outweighed by the social interest in order and morality."^[187] The U.S. Court has recognized various categories of unprotected speech, albeit these characterizations have remained live and open, largely depending on the character and context of the speech.^[188] Under the unprotected category are: obscenity, defamation, fraud, incitement, speech integral to criminal conduct, and child pornography.^[189]

In the Philippines, this Court has issued its own line of rulings on the protection of free speech pursuant to Sec. 4 of Art. III (our Bill of Rights). Our early decisions were largely guided by U.S. doctrines on the extent of speech protection, the kind of scrutiny to be applied, as well as on the categories of speech that fall outside constitutional protection. This Court adopted the clear and present danger rule as early as the case of Cabansag v. Fernandez^[190] and explained the doctrine and its roots in Soriano v. Laguardia.^[191] Chavez v. Gonzales^[192] further instructs Us that the clear and present clanger test is used when the governmental action that restricts freedom of speech or of the press is based on content.

Another criterion for permissible limitation on freedom of speech and of the press, which includes vehicles of the mass media such as radio, television, and the movies, is the "balancing-of-interests test." The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation." Lagunzad v. Vda. de Gonzales elaborated on the justification for this test in these words:

The right of freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties." It is not, however, without limitations. As held in Gonzales vs. Commission on Elections:

From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however, a literal interpretation, freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition.^[193]

In SWS v. COMELEC,^[194] former Chief Justice Reynato Puno opined that "the dangerous tendency test [...] now commands little following" owing to the preferred status of freedom of speech and of the press. Justice Melo in Iglesia Ni Cristo v. CA^[195] went to say that the dangerous tendency rule has long been abandoned and that "the sole justification for a given restraint or limitation [...] is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest that the state has the right and duty to prevent."

We likewise began to develop our own line of rulings on unprotected speech, taking our cue from Gitlow v. New York.^[196] In Philippine Journalists, Inc. (People's Journal) v. Theonen, this Court held that lewd, obscene, profane, libelous, and insulting or "fighting words" are unprotected speech:

But not all speech is protected. "The right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."^[197]

The U.S. Supreme Court has likewise recognized that "fighting words" (i.e., words or speech "likely to provoke the average person to retaliation, and thereby cause a breach of the peace") are not protected speech. It drew the line, however, in Chaplinsky v. New Hampshire (315 U.S. 568, 574) when it stated that "speech cannot be restricted simply because it is upsetting or arouses contempt."^[198] And although the Court continues to cite "fighting words" as an example of speech that the government may proscribe, it has not upheld a government action on the basis of that doctrine since Chaplinsky.

The U.S. Supreme Court has similarly ruled that the constitutional free speech guarantee does not bar the government from prohibiting some form of intimidation such as "true" threats.^[199] True threats—as distinguished from "political hyperbole"—occur when the speaker "means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."^[200]

Along these lines of speech and of particular interest and relevance under the ATA, given the objections made in the present consolidated petitions, is "speech integral to criminal conduct." The U.S. Supreme Court recognized that, in general, the free speech guarantee affords no protection to speech "used as an integral part of conduct in violation of a valid criminal statute," citing Giboney v. Empire Storage & Ice Co.^[201]

The U.S. Court cited this case as one reason the government may prohibit, for example, conspiracy or solicitation to commit a crime, offers or requests to obtain illegal material or impersonating a government officer and thereby recognized "speech integral to criminal conduct" as an exception to the First Amendment guarantee of free speech under the U.S. Constitution.

Giboney, decided in 1949, was not cited in U.S. Supreme Court rulings from 1991 to 2005.^[202] However, since 2006, it has been cited six times.^[203] It has also been observed that the Giboney ruling has later been extensively cited in the US.^[204]

In the Philippines, Giboney has been cited twice. The first citation was in Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,^[205] a ponencia of Justice Carpio-Morales; the second was in Senior Associate Justice Carpio's Concurring Opinion in Spouses Imbong v. Ochoa, Jr.^[206]

The object of the ATA is to criminalize and penalize terrorism, which should include speech integral to this criminal conduct. This is evident from the provisions of the ATA that petitioners Justices Carpio-Morales and Carpio now assail through their own petition, Antonio T. Carpio v. Anti-Terrorism Council (G.R. No. 252736).

After due consideration, I submit that there is wisdom and patent practicality in following the U.S. Supreme Court lead on unprotected speech. Speech integral to criminal conduct (along the lines of the Giboney ruling) should receive the attention of this Court as aspects of speech that Arts. 4 to 12 of the ATA and other terrorism-related acts proscribed by law can regulate without necessarily running against the protection guaranteed by Art. III, Sec. 4 of our Constitution.

D. Speech-Related Standards of Review

In the usual understanding, speech is oral or written communication of ideas from one person to another. Numerous activities that do not involve the use of words, however, have been held to be speech, while in some cases, the use of language, both written and oral, was not considered as speech. For example, the wearing of black armbands by high school students to protest the Vietnam War was characterized as akin to pure speech in Tinker v. Des Moines^[207] while the burning of a U.S. flag was deemed communicative conduct warranting protection under the First Amendment in Texas v. Johnson.^[208] Meanwhile, slander or libel, despite involving spoken or written words, are punishable.

i. Reviewing Restrictions as to Time of Speech

Speech or expression may be restrained as to time or manner. On the one hand, restrictions, or burdens on speech as to time are classified into two types: (1) prior restraint; and (2) subsequent punishment. Prior restraint refers to official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.^[209] Subsequent punishment, on the other hand, is the imposition of liability (penal, civil, or administrative) to the individual exercising his freedom. It may be in any form - penal, civil, or administrative.^[210]

ii. Reviewing Restrictions as to Manner of Speech

Restrictions on speech based on the manner of regulation come in two categories: (1) content-based; and (2) content-neutral. Content-based regulations are those based on the subject-matter of the utterance or speech; while content-neutral regulations are merely concerned with the incidents of speech, or one that merely involves the time, place, manner, or means and circumstances of communication.^[211]

Restraints on free speech as to content are generally evaluated on one of or a combination of three tests: (1) the dangerous tendency doctrine; (2) the balancing-of-interest test; and (3) the clear-and-present danger rule.^[212] First, the "dangerous tendency" doctrine simply means that, "[i]f the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable."^[213] Second, the "balancing-of-interest" test operates "[w]hen particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, [courts are duty-bound] to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented."^[214] Last, the "clear-and-present danger" rule "is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."^[215]

To date, Philippine courts adhere to the clear-and-present danger rule in testing the constitutionality of statutes that regulate speech.^[216]

E. Proposed Judicial Review Approach to Anti-Terrorism Statutes

The appropriate level of judicial scrutiny in the instant case is the intermediate level of judicial scrutiny.

The Court enjoys a margin of discretion in the selection of the appropriate level of judicial scrutiny. Nonetheless, the Court must not cherry pick and rely solely on the petitioners' allegations of impairment of constitutional rights while completely ignoring the arguments of public respondents on other material factors justifying the scope and mode of criminalization of terrorism. In The Nature of Constitutional Rights : The Invention and Logic of Strict Judicial Scrutiny, Professor Richard Fallon examines the practice of US courts in jurisdictions and argues that levels of judicial scrutiny are inventions of judges designed to enable them to apply words that are fixed in time (the constitution) to realities that are constantly changing, including the very nature of rights.^[217] It follows that the choice of level of scrutiny is determined not just by the nomenclature of the rights affected but also by the changing social perceptions about the values sought be protected by the exercise of such rights vis-a-vis the values sought to be promoted by a law that regulates or restricts the exercise of such rights.^[218]

Terrorism is an evolving target. Accordingly, efforts to criminalize it have shifted towards the prevention of terrorism before acts of violence are committed. Prevention is carried out through the suppression of acts that, hitherto innocuous and innocent, enable the commission of violent acts of terrorism. The use of the internet for radicalization, recruitment and movement of warm bodies and logistical resources leading to the Marawi siege serve as concrete context for the necessity to adopt the preventative criminalization of terrorism in the Philippines.^[219] The ATA is the government response to this need.

There are at present 19 universal/multilateral international legal instruments as well as several resolutions issued by the United Nations Security Council (UNSC) that make up an international legal regime on terrorism. Inter-state, bilateral and regional instruments on designation and proscription of terrorist persons and entities have been concluded.^[220] This regime creates certain binding state obligations regarding the criminalization of terrorism.^[221] The consequences for non-compliance with these binding obligations range from chokepoints in financial services, trade, and investment to designation as a state sponsor of terrorism.^[222]

The foregoing history of the criminalization of terrorism and crystallization of an international legal regime governing counter-terrorism justify recourse to an intermediate level of judicial scrutiny.

Moreover, even assuming that freedom of expression is incidentally implicated by any provision of the ATA, whether by Sec. 4 or Sec. 10 or Sec. 25, these measures are merely regulatory of the manner rather than content of the expression. In fact, Sec. 4 insulates "advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights" from criminalization, without qualifying that such expression must contain a particular perspective or ideology. Rather, Sec. 4 criminalizes the manner of exercising freedom of expression that amounts to acts intended to cause death or serious bodily injury. The established rule is that content-neutral regulations that implicate protected speech are more appropriate for an intermediate level rather than strict level of judicial scrutiny.^[223]

Thus, even if a penal law is subjected to a facial challenge, if said law affects only the time and manner but not the content of the exercise of free speech, such law shall be not be subjected to strict judicial scrutiny. A penal law proscribing unprotected speech is also not subject to strict judicial scrutiny.

There is nothing in the ATA, much less in the allegations of the petitions or the findings in the Decision, indicating that a provision thereof targets a particular ideology or belief In particular, the proviso in Sec. 4 proscribes speech as an integral part of an overt act of terrorism. Hence, it regulates the manner of exercising freedom of speech, specifically that said right be not exercised as an integral part of terrorism. More importantly, the proviso regulates unprotected speech; that is, speech as an integral part of an overt act of terrorism. As mentioned already, the proviso would validly apply to an advocacy for the Islamic State or for cultural-religious cleansing as integral parts of a terrorist attack.

Thus, even assuming that the ATA regulates speech, it does so with respect to the manner of its exercise and covers unprotected speech as an integral part of a criminal act. Strict judicial scrutiny is not appropriate. Rather, intermediate judicial scrutiny is.

III. Allowance of Petitions

A. Presence of Grave Abuse of Discretion

A common feature present in the consolidated petitions before this Court is the remedy they seek - the nullification of the ATA, the official act of a separate co-equal body, pursuant to Sec. 1, paragraph 2 of Art. VIII when grave abuse of discretion exists, or under Sec. 5 of Art. VIII.

Recourse through a petition for certiorari or prohibition means that there must at least be the prima facie allegation of grave abuse of discretion,^[224] not simply by claiming that grave abuse of discretion intervened, but by briefly describing how it intervened. Short of these, the Court will dismiss the petition for failure to show the case or controversy that the exercise of judicial power requires.

Despite repeated warnings from this Court and many previous outright dismissals of petitions for failure to properly plead and allege grave abuse of discretion, some lawyers - it seems - have not learned the lesson that it is not sufficient to simply state that "grave abuse of discretion" had been committed, without more. The abusive act must always be alleged with particularity, together with allegations on why and how the act constituted grave abuse of discretion. This ground, too, yielded not a few dismissals among the consolidated petitions.^[225]

To briefly recall the roots of this, power of the Court, the Court was confronted with cases during the martial law days involving the martial law administration, which cases the Court dismissed for involving "political questions" that the judiciary could not entertain because they involved the actions of other co-equal branches of government. This Court position, based on the terms of the 1935 Constitution, was not at all without basis because of the separation of powers principle existing under the 1935 Constitution (and which still exists under our present Constitution).

In refraining a new Constitution after the martial law regime fell, no less than former Chief Justice Roberto Concepcion sponsored the present Art. VIII, Sec. 1 and its "expanded jurisdiction" provision in order to avoid the future recurrence of the country's (and the Court's) pre-martial law experiences;^[226] thus, the history-dictated and unique wording of the current 2^nd par. of Art. VIII, Sec. 1.

A significant decided case on the Court's expanded jurisdiction was Araullo v. Aquino III,^[227] which pointed to certiorari and prohibition (under Rule 65 of the Rules of Court) as the appropriate remedies for the review of cases even against the branches or instrumentalities of government which do not exercise the judicial, quasi-judicial or ministerial functions that Rule 65 requires. The primary marker to recognize, according to this case, is the presence of "grave abuse of discretion," not strictly the nature of the function exercised.

Umali v. Judicial and Bar Council restated the Araullo ruling by zeroing in on the nature of the certiorari and prohibition that may be used under the Court's expanded jurisdiction:

But, the remedies of certiorari and prohibition are necessarily broader in scope and reach before this Court as the writs may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. Thus, they are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.^[228]

Kilusang Mayo Uno v. Aquino III^[229] reiterated Araullo in a similar manner.

Hence, as matters now stand, the Court is now empowered by the combined application of the second paragraph of Sec. 1 of Art. VIII of the 1987 Constitution and Rule 65 of the Rules of Court to determine whether a branch of government or agency or its officials has committed any error of jurisdiction. This error of jurisdiction arises from a grave abuse of discretion.

Any claim of grave abuse of discretion in constitutional litigation has two (2) components, the procedural and the substantive. It is important not only to point in the petition to the "grave abuse of discretion" committed, and to briefly explain how grave abuse of discretion came to exist, but also equally important to prove and argue in detail in the petition why the grave abuse came to exist.

The term "grave abuse of discretion" carries a specific and technical meaning - an act done in a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction."^[230] The abuse of discretion must be so patent and gross as to amount to an "evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility."^[231] Furthermore, a petition for certiorari is restricted only to "truly extraordinary cases wherein the act of the lower court or quasi-judicial body is wholly void,"^[232] or if the petitioner can manifestly show that such act was patent and gross.^[233]

These are the parameters that the Court looks for and considers when resolving the issues raised under the grave abuse of discretion part of Art. VIII, Sec. 1 of the Constitution. To point out a subtle distinction, mere violation of the law or of the Constitution is not per se grave abuse of discretion. Without the element of action outside of jurisdiction, a plain error is not the appropriate subject of petition for certiorari but more properly of an appeal to this Court.

A charge of grave abuse of discretion necessarily implies that there is an act on the part of the respondent which exceeds or goes beyond the parameters outlined above. Whether an excess in fact exists constitutes the "actual case or controversy" that the Court resolves in the exercise of judicial power and its complementary remedy, judicial review.

B. Application of Constitutional Litigation Standards

In the present case, Our examination of the petitions and the proceedings shows that while claims of locus standi have commonly been alleged, some of the parties failed to provide details on the personal injury they allegedly suffered or stand to suffer due to the ATA and its enforcement;^[234] others failed to support their allegations through prima facie proof stated or attached to their petitions;^[235] and still others even failed to claim that their interest or standing should be recognized or accorded "judicial notice" by this Court.^[236]

In Southern Hemisphere, the Court outlined the judicial notice that the petitioners can avail of to effectively claim interests and injury to their interests. The Court said:

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries, or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the Court has no constructive knowledge.^[237] (emphasis supplied)

Thus, jurisprudence is not lacking in guidelines and directions on what petitioners can do to claim the personal interests and the injury that locus standi requires to enable them to seek redress through the courts. They have only themselves to blame if and when they fail to heed these directions. Hopefully, this Opinion, read together with Gios-Samar, would lend enough certainty to guide future petitioners in preparing their petitions.

Among the petitions that failed the actual controversy / locus standi filters are those suing as taxpayers and citizens^[238] and who, by their generalized statements as such taxpayers or citizens, failed to show the direct personal injury or prejudice they would suffer through the enforcement of the ATA.^[239] Specifically, they failed to show the tax collection and spending involved, and how and why they - as plain citizens - would be prosecuted under the ATA. Their claims, thus, never left the realm of speculation.

There, too, are those who claim that their professional interests, either as lawyers,^[240] lawmakers,^[241] or human rights advocates,^[242] necessarily or inevitably lay them open to damage or injury, either to themselves personally or to their activities.^[243] Their petitions, though, show claims that are generalized and, for this reason, fall short of the established jurisprudential standards necessary to rise to the required level of damage or injury.^[244]

Membership in the Bar, to be sure, makes one an officer of the Court in the administration of justice. But short of an actual appointment as a specially designated or deputized court officer or counsel actively appearing before the Court, a lawyer bears no specific responsibility for the constitutional interests of the citizenry in general that is specifically separate and distinct from that which he/she carries as a citizen.^[245]

In Galicto v. H.E. President Aquino III,^[246] the Court held that the injury is not something that everyone with some grievance or pain may assert. It has to be direct and substantial to make it worth the Court's time, as well as the effort of inquiry into the constitutionality of the acts of another department of government.^[247]

Obviously lacking in evidence of imminent prosecution under the ATA are the petitioners who merely claim that they had been tagged as "terrorists" in the past or who are now under imminent threat of being so labelled.^[248]

Tagging almost always requires governmental actions that leave documentary and other trails behind. These documentary evidence, to be considered by the Court, must be validly introduced into evidence pursuant to with the Rules of Court or must at least be attached in the petition as prima facie proof of the petitioner's claim. Without these trails or clear indicators of enforcement intents, the claim of imminent damage or injury must likewise fail.^[249]

Nor are lawmakers such as petitioners Lagman, Pangilinan, and De Lima, Belmonte, Sangcopan, and Hataman specially identified in our country as citizens carrying the specific responsibility of serving as guardians of the constitutional welfare of the citizenry outside of their functions as lawmakers.^[250]

While indeed they carry out important public functions, any threat or the imminence of danger or threat related to the enforcement of a disputed legislation must specifically be related to their roles and functions as lawmakers. Without these distinctive circumstances, they speak as plain citizens subject to the direct personal injury test to show personal interest or stake in a constitutional litigation exercise.

From the grave abuse of discretion filtration end, of the thirty-seven (37) petitions before us, fifteen^[251] (15) impleaded officials purely from the Executive branch, twenty-one^[252] (21) impleaded a mixture of officials from the Executive and Legislative branches, and only one (1) petition impleaded only the Legislative branch of the government.^[253] As already mentioned above, these petitions must necessarily allege the respondents' actions that constitute grave abuse of discretion and must briefly explain the reason/s for the allegation. Failing in these regards means failure to pass through one of the Court's constitutional filters.

Fourteen^[254] (14) out of the fifteen (15) petitions which impleaded officials purely from the Executive branch failed to point to some actual act on the part of the Executive branch or its officials that constitutes grave abuse of discretion. This is obvious since no enforcement action has yet been taken against the petitioners in these 14 petitions. Meanwhile, eighteen^[255] (18) out of the twenty-one (21) petitions, which impleaded a mixture of officials from the Executive and Legislative branches, also failed to point to actions by the Executive or the Legislative branches which constituted grave abuse of discretion or the reasons why their actions should be characterized as grave abuse of discretion. The latter reason is also true for the one^[256] (1) petition that exclusively impleaded the Legislative branch.

Based on the foregoing, I submit that the following petitions - G.R. No. 252578, G.R. No. 252579, G.R. No. 252580, G.R. No. 252613, G.R. No. 252623, G.R. No. 252624, G.R. No. 252646, G.R. No. 252702, G.R. No. 252726, G.R. No. 252733, G.R. No. 252736, G.R. No. 252741, G.R. No. 252747, G.R. No. 252755, G.R. No. 252759, G.R. No. 252765, UDK 16663, G.R. No. 252802, G.R. No. 252809, G.R. No. 252903, G.R. No. 252904, G.R. No. 252905, G.R. No. 252916, G.R. No. 252921, G.R. No. 252984, G.R. No. 253018, G.R. No. 253100, G.R. No. 253118, G.R. No. 253124, G.R. No. 253252, G.R. No. 253254, G.R. No. 253420, and G.R. No. 254191 [Formerly UDK 16714] - be dismissed outright.

C. The Surviving Petitions

Left for the Court's consideration on the merits are the following petitions:

• Coordinating Council for People's Development and Governance, Inc., represented by Vice-President Rochelle M. Porras, et al. v. President Rodrigo R. Duterte, et al., G.R. No. 253242;

• Bayan Muna Party-List Representatives Carlos Isagani T. Zarate, Ferdinand Gaite, and Eufemia Cullamat, et al. v. President Rodrigo R. Duterte, et al., G.R. No. 252585;

• Bishop Broderick S. Pabillo, et al. v. President Rodrigo R. Duterte, et al., G.R. No. 252767; and

• GABRIELA, Inc., et al. v. President Rodrigo R. Duterte et al., G.R. No. 252768.

Before proceeding to discuss their substantive merits, however, We reflect for the record the reasons that justified the survival of these petitions for consideration on the merits.
 

i.	Coordinating Council for People's Development and Governance, Inc., represented by Vice-President Rochelle M. Porras, et al. v. President Rodrigo R. Duterte, et al., G.R. No. 253242

The petitioners base their legal standing on the actual as well as the imminent impairment of their rights as a result of the ongoing and the foreseeable future application of the ATA against them.

In their sworn statements and reports,^[257] the petitioners allege that the inter-agency body National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) issued an official report containing their photographs; displaying the names and logos of their organizations; and referring to them as communist terrorists^[258] or fronts, officials, and members of the Communist Party of the Philippines (CPP), New People's Army (NPA) and National Democratic Front (NDF).^[259]

They further allege that, based on personal knowledge and third-person accounts at around the time of the adoption of the ATA, one of their leaders was summarily executed;^[260] that their members and offices were subjected to surveillance and threats of raids; and that during a peaceful protest in August 2020, some of their members were arrested and their publications confiscated.^[261]

As others would likely be arrested and prosecuted under the ATA, they have contacted their network of legal groups and coordinated with the Commission on Human Rights.
 

ii.	Bayan Muna Party-List Representatives Carlos Isagani T. Zarate, Ferdinand Gaite, and Eufemia Cullamat, et al. v. President Rodrigo R. Duterte, et al., G.R. No. 252585.

The petitioners claim legal standing as "victims of terrorist-tagging by State forces ... [which puts them] immediately in danger of sustaining some direct injury as a result of the implementation of the assailed law," which threat of injury is both real and immediate, not merely conjectural or hypothetical."^[262]

They attached the official report of NTF-ELCAC where Chapter 6, Annex "A" and Annex "B" contain photographs of the petitioners, their statements and activities, and the names and logos of their party-list organizations, labelling these as communists-terrorists.^[263]

The official report issued by the government using public funds establish that the petitioners face a real and immediate danger of prosecution under the ATA and a substantial prejudice as taxpaying citizens. They also aver that this kind of red-tagging is in direct violation of their rights and authority as a legitimate and duly elected party-list organizations, which the Commission on Elections (COMELEC) itself affirmed in Resolution No. 19-006 dated January 30, 2020.^[264]
 

iii.	Bishop Brodcrick S. Pabillo, et al. v. President Rodrigo R. Duterte, et al., G.R. No. 252767

The petitioners allege that, on December 26, 2019, their bank accounts were placed under a freeze order per Anti-Money Laundering Council (AMLC) Resolution TF-18, issued pursuant to R.A. No. 10168, based on National Security Council (NSC) allegations that they are part of communist-terrorist groups and have been engaged in terrorist financing.^[265]

The Court of Appeals extended the freeze order to include other accounts.^[266] As their accounts have been frozen "for alleged financing of terrorism," they face a credible threat of prosecution under the ATA. Moreover, government officials have formally reported the petitioners to be terrorist organizations.

In particular, National Security Council (NSC) Deputy Director General Vicente Agdamag has filed a complaint, currently pending, with the Philippine Permanent Representative to the United Nations (UN) and with other international organizations in Geneva, Switzerland claiming that the petitioners are fronts of communist-terrorist organizations.^[267]

As the NSC is part of the ATC, there is a real and imminent risk that petitioners shall be subjected to the designation and proscription powers of the ATC under the ATA.

These submissions - whether by attachments or allegations supported by arguments - taken together, are enough to give the petitioners the locus standi that the Constitution requires.
 

iv.	GABRIELA, Inc., et al. v. President Rodrigo R. Duterte, et al. (G.R. No. 252768)

Petitioner GABRIELA argues that it is the target of human rights violations and has been tagged as a communist front,^[268] citing several instances where it or its members have been red-tagged. Petitioner De Jesus has been the target of red-tagging and red-baiting while petitioner Wilson was also terrorist-tagged.^[269] It attached Annexes "D" to "Y" in support of this averment. Petitioner GABRIELA itself has been tagged as a communist-front by National Security Adviser (NSA) Hermogenes C. Esperon, Jr. in his PowerPoint presentation which they attached as their Annex "Z."^[270]

Petitioner GABRIELA claims that NTF-ELCAC itself filed a verified petition for the cancellation of its registration before the Comelec. It attached a copy of the verified petition as Annex "AA."^[271] Its finances, on the other hand, were investigated by the Anti-Money Laundering Council (AMLC), as requested by the National Intelligence Coordinating Agency (NICA).

It cited the following as supporting documents: (1) AMLC's Initial Financial Investigation Report on GABRIELA, Inc. (Annex "AA-1"); (2) March 7, 2019 letter from NICA requesting the AMLC to conduct financial investigation on the subject foreign and domestic non-government organization (NGOs) reported to have been providing financial support to the CPP-NPA through its front organizations and/or NGO (Annex "AA-2"); (3) Letter from ASG Angelita Villanueva Miranda, Chairperson, Legal Cooperation Cluster of the NTF-ELCAC, requesting the AMLC to conduct financial investigation of the financial transactions of Gabriela, Inc./ Gabriela Women's Party List (GABRIELA) (Annex "AA-3"); and (4) May 3, 2019 letter from NICA regarding information received from the Kingdom of Belgium (Annex "AA-4").^[272] It is notable that the AMLC's Initial Financial Investigation Report on GABRIELA, Inc. (Annex "AA-1") concluded that "there is likelihood that the funds in the bank accounts of GABRIELA/GAWR may have been used for, or related to terrorism and/or terrorism financing."^[273]

Based on these submissions, petitioner GABRIELA sought to establish that it is within the radar of the NTF-ELCAC as an alleged communist-front. Its financial transactions were or are under investigation due to its supposed ties with the CPP. They, thus, face credible threat of prosecution under the ATA.

RESPONSE TO THE MAJORITY VOTE ON PROCEDURAL ISSUES

I respectfully dissent from the majority vote that thirty-five (35) petitions are admissible for judicial review as facial challenges and cases of transcendental importance. I respectfully vote only to admit four (4) petitions - G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768 - as as-applied challenges, not facial challenges, insofar as they are directed at Sec. 4, Secs. 5-14, Secs. 16-20, Secs. 22-24, Sec. 25, Secs. 26-28, Sec. 29, and Sec. 34 of the ATA.

My dissent is based on three grounds.

First, the constitutional principle of separation of powers, the constitutional procedural requirements for the exercise of judicial review, and well-established doctrine behoove the Court to dismiss all facial challenges and cases of transcendental importance against the ATA where there are four as-applied challenges against said law.

Second, being a penal law that regulates conduct rather than speech, the ATA is not susceptible to a facial challenge. Even if the Court were to consider the proviso of Sec. 4 of the ATA as a regulation on speech, such proviso would not make the ATA susceptible to a facial challenge, for the speech being regulated is an integral part of an overt act of terrorism and therefore unprotected.

Third, Disini, Jr. v. The Secretary of Justice is not applicable.
 

I.	Admission of G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768 as justiciable as-applied challenges is proper

The petitions docketed as G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768 are justiciable and admissible as as-applied challenges.

The petitioners in G.R. No. 253242 cited the official report of NTF-ELCAC, in which their organization and members are clearly identified as part of the CPP-NPA-NDF. Proclamation No. 374 designated the CPP-NPA-NDF as a terrorist organization.^[274] Similarly, petitioners in G.R. No. 252585 attached the NTF-ELCAC official report where their groups and members are identified as terrorists and lined up for arrest and prosecution. Some of their members who are identified in the official report as terrorists are elected party-list representatives whom the Comelec affirmed as legitimate.^[275] Meanwhile, petitioners in G.R. No. 252767 alleged that their bank accounts were placed under a freeze order under AMLC Resolution TF-18. With respect to petitioners in G.R. No. 252768, their financial accounts are under AMLC formal investigation for being alleged sources of terrorist financing.^[276]

The foregoing four petitions constitute as-applied challenges to the ATA. They involve parties with legal standing and raise actual controvery. As such, they comply with the general requirements for the exercise by the Court of its power of judicial review.

The presence or absence of any of these requisites determines whether the judicial review petition filed with the Court shall proceed for consideration on its merits, or shall be dismissed outright for not being justiciable, i.e., for being inappropriate for the Court's consideration on the merits. Compliance with these requisites is jurisdictional and mandatory. Even as the Constitution recognizes that the Court has jurisdiction over justiciable political questions, such jurisdiction shall be exercised only after the Court has satisfied itself that the party before it has legal standing and raise an actual controversy. In Private Hospitals Association of the Philippines, Inc. v. Medialdea, We held:

[w]hile the remedies of certiorari and prohibition are proper legal vehicles to assail the constitutionality of a law, the requirements for the exercise of the Court's judicial review even under its expanded jurisdiction must nevertheless first be satisfied.^[277]

The Court has characterized these requisites as mandated by the Constitution itself. As held in Board of Optometry v. Colet:

[T]he unbending rule in constitutional law [is] that courts will not assume jurisdiction over a constitutional question unless the following requisites are first satisfied: (1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination; (2) the constitutional question must be raised by a proper party; (3) the constitutional question must be raised at the earliest opportunity; and (4) the resolution of the constitutional question must be necessary to the resolution of the case.^[278]

The foregoing jurisdictional requirements are not dispensed with through mere consolidation or clustering of petitions. In Republic v. Court of Appeals, the Court declared that "[an] essential requisite of consolidation is that the court must have jurisdiction over all the cases consolidated before it."^[279] Thus, notwithstanding the preliminary consolidation or clustering of the 37 petitions in this case, the admission of the four as-applied challenges does not open the back door for the admission of all the other petitions. The Court must satisfy itself that each of the petitions complies with the requirements before it assumes jurisdiction over their challenges to the ATA.^[280]

Therefore, I find that the petitions docketed as G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768 satisfy all the requisites for the exercise of judicial review by this Court. I vote to admit these petitions for review on the merits.

However, based on the facts alleged and official documents presented in the petitions docketed as G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768, only their challenges to Sec. 4, Secs. 5-14, Secs. 16 to 20, Secs. 22-24, Sec. 25, Secs. 26 to 28, Sec. 29, and Sec. 34 are ripe for adjudication. As to these provisions, there is prima facie showing that petitioners have the legal standing to raise a constitutional challenge as they have been subjected to the actual enforcement of said provisions or face a direct exposure to such enforcement.
 

II.	Admission of the other petitions as facial challenges and cases of transcendental importance is not proper

The majority, with due respect, incorrectly admitted the other petitions.

To illustrate, it admitted G.R. No. 252736 on the ground that the "ATA personally affects" petitioner former Senior Associate Justice Antonio T. Carpio, whose public criticisms of the inability of the President "to defend the rights of the Philippines over the West Philippine Sea x x x may expose him to prosecution x x x for inciting to commit terrorism through extensive interference with critical infrastructure intended to provoke or influence the government to take a particular action."^[281] In a social media post of the son of the President, Justice Carpio is linked to a destabilization plot.^[282] Petitioner former Associate Justice and Ombudsman Conchita Carpio-Morales also "is exposed to the risk of being prosecuted under Sec. 4(c) of the ATA after she initiated a complaint with the International Criminal Court (ICC) against People's Republic of China (PROC) President Xi Jinping."^[283]

It also allowed the petition docketed as G.R. No. 252904^[284] for petitioners Beverly Longid, Windel B. Bolinget, Joanna K. Cariño and the organizations they respectively work for were impleaded in a petition for proscription (DOJ v. CCP and NPA Petition dated February 21, 2018).^[285]

Yet, in Southern Hemisphere v. ATC, the Court declared that parties lack legal standing when they merely peg their case against a "double contingency, where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized."^[286] Fear of prosecution is insufficient to lend a petitioner legal standing when said fear is engendered merely by "remarks of certain government officials which were addressed to the general public."^[287] The same can be said of the specter of prosecution alleged by the petitioners in the other petitions: it is too obscure and remote, unlike the documented actual enforcement or real exposure to enforcement faced by the petitioners in G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768.

These other petitions allege controversies that, in the words of the majority opinion, "are mere hypothetical/theoretical suppositions."^[288] To illustrate, the social media post and contingent reprisal alleged in G.R. No. 252736 do not amount to concrete and direct or imminent but real enforcement of the ATA as would cloth the petitioners therein with legal standing and categorize the controversy they raise as actual. Moreover, petitioners' fear of prosecution is unfounded. The views expressed by my esteemed former colleague Justice Carpio are not wholly opposed to that of the President, who has officially and repeatedly declared before the United Nations General Assembly (UNGA) and the Association of Southeast Asian Nations (ASEAN) that the Philippines considers China bound by the Arbitral Award in the South China Sea arbitration.^[289] The ICC complaint of Justice Carpio-Morales was dismissed as early as 2019.^[290] The dismissal was for lack of jurisdiction, and such dismissal is not subject to appeal.^[291] With respect to petitioners Beverly Longid, Windel B. Bolinget, and Joanna K. Cariño in G.R. No. 252904, the Court takes judicial notice of court records indicating that petitioners have been dropped as respondents in the amended petition for proscription.^[292]

In other words, there is no tactual basis to hold that the foregoing petitioners, as well as the petitioners in the other petitions, are facing an actual or imminent enforcement of the ATA as would qualify them as parties with legal standing and that there exists an actual controversy.

Therefore, I respectfully dissent from the majority vote in its admission of these other petitions. I vote to dismiss these petitions outright.

It is respectfully submitted that the majority incorrectly adopted an alternative mode of admitting the other petitions as facial challenges and cases of transcendental importance.

It is basic doctrine that the presence before the Court of as-applied challenges precludes the admission of any facial challenge^[293] or case of transcendental importance.^[294]

In our jurisdiction, the general mode of constitutional challenge is through the "as-applied" mode, i.e., by examining the statute through the prism of a concrete and discrete set of facts showing the substantial and direct impairment that the statute's enforcement has caused a petitioner's constitutional rights.^[295] Under this mode, the petitioner may claim a violation of its constitutional rights such as abuse of due process, kick of fair notice, lack of ascertainable standards, overbreadth, or vagueness, but only if petition asserts the violation of its own right; the latter cannot assert the right of a third party who is not before the Court.^[296] In other words, the petitioner has legal standing and raises an actual controversy.

A facial challenge, in contrast with and as an exception to an as-applied challenge, can be made even prior to the enforcement of a disputed law, based solely on alleged "vagueness" or "overbreadth" of what the law, on its face, provides. It can be made by a petitioner for himself or on behalf of third parties who are not before the court.^[297] In other words, the constitutional infirmities appear in the text or "face" of the statute itself even without considering surrounding facts, i.e., even before evidentiary facts of the enforcement of the law have been presented before the court. The petitioner need not establish legal standing or allege an actual controversy.

Being an exceptional mode of challenge, a facial challenge is not admissible if there is a petition before the Court that complies with all the procedural requirements, qualifies as an as-applied challenge and, more importantly, cite concrete facts upon which the constitutionality of the assailed law can be ascertained. Logic itself dictates that when the Court has occasion to apply the general rule, recourse to the exception would be arbitrary. Otherwise, the purpose of an as-applied challenge as the general rule, and a facial challenge as a rare exception, would be defeated.

In this case, there are four as-applied challenges alleging facts on the actual and concrete or imminent but real enforcement of the ATA. Moreover, these as-applied challenges raised the same issues that the other petitions raised, albeit situated in their respective factual settings. There is no danger, as the majority opinion imagined, that the dismissal of the other petitions would lead to the marginalization of the public interest.

The principle of separation of powers behooves the Court to decide these challenges on the basis of the facts alleged in the four as-applied challenges rather than on the abstract scenarios conjured in the facial challenges. In Executive Secretary v. CA,^[298] the trial court's facial invalidation of a penal law was reversed, as the case before it and a number of other decided and pending cases elsewhere were all as-applied challenges. In Board of Optometry v. Colet,^[299] the mere availability of an as-applied challenge would bar admission of a facial challenge. In that case, public respondent Judge Colet had issued a preliminary injunction restraining the implementation, in its entirety, of Republic Act No. 8050 (Revised Optometry Law) and its implementing rules, on the grounds that, among others, it is facially invalid for violating the public rights to health.^[300]

Petitioner Board of Optometry filed with this a Court a special civil action for certiorari against public respondent Judge Colet for grave abuse of discretion. Among the grounds cited by the petitioner board were:

I. Respondent judge gravely abused his discretion and/or acted without or in excess of jurisdiction in finding that private respondents have locus standi to file the petition a quo.

II. Respondent judge gravely abused his discretion and/or acted in excess of jurisdiction in decreeing that prima facie evidence of unconstitutionality/invalidity of RA 8050 exists which warrant the enjoinment of its implementation.^[301]

The Court granted the petition and annulled the preliminary injunction on the ground that the private respondents lacked legal standing to question the law. The Court added that the general rule is that a constitutional challenge must be as-applied in that there must be an existing controversy:

Civil Case No. 95-74770 must fail for yet another reason. As a special civil action for declaratory relief, its requisites are: (1) the existence of a justiciable controversy; (2) the controversy is between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue invoked is ripe for judicial determination. On this score, we find no difficulty holding that at least the first and fourth requisites are wanting.

Then there is the unbending rule in constitutional law that courts will not assume jurisdiction over a constitutional question unless the following requisites are first satisfied: (1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination; (2) the constitutional question must be raised by a proper party; (3) the constitutional question must be raised at the earliest opportunity; and (4) the resolution of the constitutional question must be necessary to the resolution of the case.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory.^[302]

Moreover, the Court noted that while the petitioners had alleged potential impairment of public rights, there was yet no impairment resulting from the actual enforcement of the law:

It cannot be disputed that there is yet no actual case or controversy involving all or any of the private respondents on one hand, and all or any of the petitioners on the other, with respect to rights or obligations under R.A. No. 8050. This is plain because Civil Case No. 95-74770 is for declaratory relief.^[303]

Similar to Executive Secretary v. CA, Board of Optometry v. Colet cautioned against the facial invalidation of statutes without awaiting the emergence of an actual controversy. The Court warned:

The conclusion then is inevitable that the respondent Judge acted with grave abuse of discretion when he issued a writ of preliminary injunction restraining the implementation of R.A. No. 8050, as well as of the Code of Ethics promulgated thereunder, if one has been issued. Even if there was before him a case involving the law, prudence dictated that the respondent Judge should not have issued the writ with undue haste, bearing in mind our decision, penned by Mr. Justice Isagani A. Cruz, in Drilon vs. Lim.^[304] (citation omitted, emphasis supplied)

In Drilon v. Lim,^[305] the Court held that there must be an actual infraction of the Constitution in order to overcome the presumption of the constitutionality of a law.

Thus, Executive Secretary v. CA and Board of Optometry v. Colet are unassailable authorities in support of the view that where an as-applied challenge actually or potentially exists, no facial challenge may be entertained against the same law.

The nature of the ATA as a penal law has profound consequences on the applicable mode of constitutional challenge for the case at bar. It is proper to remind petitioners of this court's ruling in Estrada v. Sandiganbayan,^[306] which still reflects the applicable doctrines in constitutional litigation cases. In that case, the Court mentioned that the rationale for facial challenges - which allows for the application of void-for-vagueness and overbreadth doctrines - does not apply to penal statutes, thus:

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.^[307] (emphases supplied.)

Accordingly, the ATA, as a penal statute, cannot simply be challenged in its entirety following an "on-its-face" approach by merely alleging that it is vague or overbroad. On the contrary, the general rule for constitutional challenges should govern in this case: only the provisions in the ATA that are sought to be applied to the petitioner may be challenged and not the entire statute. Justice Mendoza's opinion on the applicability of "as-applied" challenges as compared to facial challenges is on point:

"Facial" challenges are the exceptions. They are made whenever it is alleged that enforcement of a statute produces a chilling or inhibitory effect on the exercise of protected freedoms because of the vagueness or overbreadth of the provisions of such statute. Put in another way, claims of facial overbreadth alone, when invoked against ordinary criminal laws like the Anti-Plunder law, are insufficient to move a court to examine the statute on its face. It can only be reviewed as applied to the challenger's conduct. The same rule applies to claims of vagueness. It is equally settled that "a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."

In free speech or First Amendment cases, the rule is different because of the chilling effect which enforcement of the statute might have on the exercise of protected freedoms. This reason is totally absent in the case of ordinary penal laws, like the Anti-Plunder law, whose deterrent effect is precisely a reason for their enactment. Hence, we declared in this case that "the doctrines of strict scrutiny, overbreadth and vagueness are analytical tools for testing 'on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases [and therefore] cannot be made to do service when what is involved is a criminal statute."^[308] (emphases supplied)

In deference to a co-equal branch of government, this Court does not favor a wholesale destruction of legislation when only specific provisions of law may be examined for its validity on an as-applied basis. Otherwise, public order can break down and the survival of the State will be endangered when laws can be invalidated on its face for every challenge in that regard. The same is true for legislating measures to combat terrorism. Our Congress has deemed it proper to penalize acts related to terrorism, and parties whose rights may be affected on as-applied basis may seek recourse from courts on actual cases or controversies. This Court is not tasked to resolve hypothetical cases, nor provide advisory opinions, if it is to uphold the essential mandate given to the judiciary under our present Constitution.

The presence before the Court of four petitions whose parties have legal standing and raise an actual controversy likewise prevents the 33 other petitions from gaining admission as cases of transcendental importance. From 2003 through 2021, this Court has imposed three minimum conditions in order for an invocation of the transcendental importance of the issue raised in a case to exempt the parties therein from establishing legal standing: (1) the public character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) there is no other party having a more direct and specific interest in the case.^[309] In Anak Mindanao Party-List Group v. Executive Secretary Ermita,^[310] the Court, through the ponencia of one of the petitioners in this case, former Associate Justice Conchita Carpio-Morales, declared these minimum conditions mandatory. As it were, the four surviving petitions involve parties with a direct and specific interest in the constitutionality of the ATA.

The majority relaxed the minimum conditions in order so as not to "clip the wings of the Court." The rationale for its libertarian approach is to enable the Court to "exercise x x x some discretion on significant issues that may not yet be anticipated now but may be brought to the Court in the future."

I respectfully beg to differ from the majority.

To discard the minimum conditions is to transform an exception into a general rule. It should be borne in mind that the general rule of justiciability and admissibility is that a party must have legal standing. One exception is when a case raises an issue of transcendental importance, in which event the case may be admitted even if the party involved lacks legal standing. Being an exception to the general rule, the same must be delineated; that is, the conditions giving rise to such exception must be defined. Otherwise, there would be no point in adopting a general rule and carving out an exception.

An unrestrained use of the "transcendental importance" doctrine goes against the presumption of constitutionality as regards the acts of other branches and constitutional bodies of government. The Court would be arrogating unto itself the power of determining policies which rightly belong to the political branches of government. As eloquently pointed out in Vera v. Avelino:^[311]

Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for all political and social ills. We should not forget that the Constitution [had] judiciously allocated the powers of government to three distinct and separate compartments; and that judicial interpretation has tended to the preservation of the independence of the three, and a zealous regard of the prerogatives of each, knowing full well that one is not the guardian of the others and that, for official [wrongdoing], each may be brought to account, either by impeachment, trial or by the ballot box.^[312]

Adherence to the mandatory conditions is all the more imperative when the act being questioned is an exercise by the executive branch or legislative branch of their inherent powers or even their core constitutional powers. As the preceding discussion in the section entitled "Exceptions to the Requirement of Legal Standing" would show, the trajectory of Philippine jurisprudence indicates a narrowing avenue for cases of transcendental importance directed against penal statutes.

I pointed out in my ponencia in Joint Ship Manning Group, Inc. v. Social Security System^[313] that:

x x x [T]he Court, through the years, has allowed litigants to seek from it direct relief upon allegation of "serious and important reasons." Diocese of Bacolod v. Commission on Elections summarized these circumstances in this wise:

(1) when there are genuine issues of constitutionality that must be addressed at the most immediate time;

(2) when the issues involved are of transcendental importance;

(3) cases of first impression;

(4) the constitutional issues raised are better decided by the Court;

(5) exigency in certain situations;

(6) the filed petition reviews the act of a constitutional organ;

(7) when petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of law that could free them from the injurious effects of respondents' acts in violation of their right to freedom of expression; [and]

(8) the petition includes questions that are "dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy."

It must be clarified, however, that the presence of one or more of the so-called "serious and important reasons" is not the only decisive factor considered by the Court in deciding whether to permit the invocation, at the first instance, of its original jurisdiction over the issuance of extraordinary writs. Rather, it is the nature of the question raised by the parties in those "exceptions" that enables us to allow the direct action before the Court.

Notwithstanding that petitioners in said case did not allege enforcement of the law against them, their petitions were admitted because of the "existence of two of the exceptions, particularly: (1) that this case is of first impression; and (2) that the present issue involves public welfare and the advancement of public policy, or demanded by the broader interest of justice [for the] assailed law concerns the welfare of OFWs."

In the present case, the majority has foisted Joint Ship Manning Group, Inc. v. Social Security System as authority in support of the view that the mandatory conditions for the admission of cases of transcendental importance should be relaxed and that the 33 other petitions admitted as such.

It is respectfully submitted that the majority's reliance on Joint Ship Manning Group, Inc. v. Social Security System may be misplaced.

To begin with, the admission of four as-applied challenges precludes the Court from entertaining mere facial challenges and cases of transcendental importance. A doctrine embedded in the principle of separation of powers is that the Court may not accept a mixed bag of as applied challenges, facial challenges and cases of transcendental importance. If the Court must resolve the constitutionality of an act of a co-equal branch of government, it should base its judgment on actual controversies affecting real parties and within the context of concrete facts.

Further, in the foregoing instances where there appears to be no clear parameters for the admission of cases of transcendental importance, the legislations involved were non-penal, i.e., they did not provide penalties resulting in restrictions on liberty for their violation. In contrast, as the following cases involving penal legislations would demonstrate, the Court has tracked an increasingly defined trajectory towards a more stringent application of the rules of justiciability vis-a-vis claims to exceptions from said rules on the ground that the question being raised is of transcendental importance.

Unlike in Joint Ship Manning Group, Inc. v. Social Security System^[314] where a labor legislation was involved, Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council^[315] and Republic v. Roque^[316] involved the HSA, a penal law. Direct recourse based on the transcendental importance of the issues failed for lack of showing that petitioners were facing any charges under the HSA. Mere possibility of abuse of the HSA was found to be too speculative and theoretical.

On the other hand, in Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City,^[317] the Court allowed a challenge to curfew ordinances filed by the parents of the minors being subjected to the ordinance, as the same was already being enforced until restrained by the Court.^[318]

In Estipona v. Lobrigo,^[319] as the petitioner was facing charges under the impugned law (R.A. No. 9165), the technical defects in his petition did not obstruct the resolution of the transcendental issue raised. The Court also allowed direct recourse to it in Fuertes v. Senate of the Philippines,^[320] as the petitioner had been charged under the impugned law.

Thus, while the transcendental importance of the litigated issue may do away or lessen a party's need to establish direct legal standing to sue, such importance does not completely remove the need to clearly show the justiciability of a controversy through the existence of conflicting interests even if only remotely, as well as the ripeness of the issues raised for adjudication.^[321] A separate class unto itself would be cases involving penal laws, for then the rule is that the transcendental importance of the question must be accompanied by a prima facie showing of locus standi. This requirement, which is peculiar to cases involving penal laws, reinforces the mandatory condition that there be no other party having a more direct interest in the issue. Together, they effectively bar the admission of the petitioners in the 33 other petitions, for it so happens that the petitioners in G.R. No. 253242, G.R. No. 252585, G.R. No. 252767, and G.R. No. 252768 have legal standing, clear and solid.

At this juncture, the undersigned respectfully points out that there appears to be a confusion of as-applied challenges with petitions that raise factual issues. The former is perfectly within the jurisdiction of the Court while the latter must be initiated before the lower court. In fact, an as-applied challenge, such as the four surviving petitions, is the general rule for it alleges and establishes prima facie that there has been an enforcement of the law being assailed. This does not involve the resolution of a factual issue, which would require the reception of evidence before the lower courts. There are public and official documents indicating that the petitioners have been subjected to an actual and concrete, if not an imminent but real, enforcement of the ATA. These public and official documents are within the judicial notice of the Court. Moreover, public respondents have not denied any of said documents.

Contrast this with G.R. No. 252904, where the petitioners alleged that some of them (Beverly Longid, Windel B. Bolinget, Joanna K. Cariño and the organizations they respectively work) have been imp leaded in a petition for proscription (DOJ v. CCP and NPA Petition dated February 21, 2018). The public respondents countered in page 66 of their Supplemental Comment that these 3 petitioners have been dropped as respondents from the amended petition for proscription. For this reason, this petition has been dismissed outright.

It must be emphasized that the undersigned voted to dismiss outright those petitions which merely relied on affidavits concerning the enforcement of the ATA. This is due to the fact that such allegations would require the reception of evidence, which the Court is not equipped to handle.

Therefore, I respectfully dissent from the majority vote that the 33 other petitions are admissible as facial challenges and cases of transcendental importance. I vote to dismiss outright these 33 other petitions.
 

III.	The majority vote that the ATA is susceptible to a facial challenge is incorrect

The majority is of the view that the 33 other petitions properly subject the ATA to a facial challenge.

I respectfully disagree.

In Southern Hemisphere v. ATC, the Court emphasized the rationale for the general rule that a penal is not susceptible to a facial challenge:

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech x x x [T]his rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.

x x x If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. x x x A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it.^[322]

As previously mentioned, it is the view of the undersigned that no less weighty than an alleged violation of a fundamental right in a facial challenge is the consideration of the State's interest involved in a disputed legislation. The Constitution and its guaranteed rights will all be for naught if the State itself - that the Constitution supports - is extinguished.

Thus, it is imperative for the Court to maintain the general rule on the non-availability of facial challenge against a penal legislation like the ATA, whose aim is the defense of the State against those who threaten its very survival. This general rule is grounded on reasons stated earlier, particularly on the fact that the ATA penalizes conduct, not speech. Where speech is involved, such speech is unprotected because it is speech integral to criminal conduct.

Therefore, I respectfully dissent from the majority vote that the 33 other petitions can subject to a facial challenge a penal law like the ATA.

The majority further holds that the ATA is susceptible to a facial challenge for it regulates not just conduct but also speech, specifically through the proviso in Sec. 4. The majority included in the coverage of freedom of speech the exercise of cognate rights.

On the contrary, this Court has consistently held that the source and scope of its authority to admit facial challenges are confined to Sec. 4 on freedom of speech and Sec. 5 on freedom of religion under Art. III of the Constitution. Only these provisions expressly and categorically permit a challenge to the mere enactment of a law impairing or threatening to impair the rights guaranteed therein. All other provisions of the Bill of Rights expressly recognize limitations or regulations by law of the exercise of rights protected therein.

The plain meaning of Sec. 4 of the ATA is that, as a general rule, terrorism is committed through well-defined overt acts which manifest the criminal intent and purpose, taking into account the nature and context. Terrorism is not committed through the exercise of the right to freedom of speech and expression. This general rule is qualified by the proviso that terrorism can be committed through, and criminal intent manifested in, specific overt acts enveloping forms of speech or expression. In both, criminalization is directed at specific conduct equivalent to overt act of and manifestation of intent to commit terrorism, not at speech or expression in and of itself. This may be seen in Sec. 4(a): that is, "engag[ing] in acts intended to cause death or serious bodily injury to any person, or endanger[ing] a person's life" for the purpose of, among others, "seriously undermin[ing] public safety." To illustrate, advocacy per se for the Islamic State would be protected speech but if enveloped within a terrorist attack similar to the Marawi attack, such advocacy would be unprotected speech. Advocacy for cultural-religious cleansing per se would be protected speech but if enveloped within a genocidal campaign similar to the Marawi attack, the same is unprotected speech. Hence, the last proviso of Sec. 4 is directed at the attacks rather than the advocacy per se.

Even assuming that the ATA regulates speech, such speech or advocacy is an integral part of an overt act of terrorism and therefore unprotected. It is axiomatic that unprotected speech is beyond the scope of Sec. 4 of Art. III of the 1987 Constitution.^[323] Consequently, a law regulating unprotected speech is not subject to a facial challenge.

At this juncture, it must also be respectfully stated that the oft-quoted phrase "the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech cases"^[324] have led some members of the Court to erroneously conflate, on the one hand, the preliminary stage of ascertaining whether a law is susceptible to a facial challenge on the ground of overbreadth or vagueness with, on the other hand, the main stage of scrutinizing whether said law serves a public purpose and adopts measures that are reasonable in that they do not suffer from overbreadth or vagueness.^[325]

An as-applied challenge does not foreclose a facial review of the entire ATA. There is no test of overbreadth or vagueness independent of or separate from the conduct of judicial scrutiny in an as-applied challenge. Rather, the overbreadth and vagueness tests are components of judicial scrutiny, and are employed to ascertain whether, as applied to the petitioners, the means adopted by the law are reasonable. Whether applying a strict level of judicial scrutiny or an intermediate level of judicial scrutiny of a law that imposes a prior restraint on a protected right, such as the content of or the time and place of an exercise of freedom of expression, reasonableness is measured according to whether the "restrictions imposed are neither overbroad nor vague."^[326] Overbreadth and vagueness render the means employed by the law too sweeping and pervasive as to foreclose every avenue of expression, rather than be narrowly tailored to achieve the governmental purpose.

Thus, it is respectfully submitted that there is no inherent incongruity in the admission of the four surviving petitions as as-applied challenges and the facial review of the ATA.

Based on the foregoing, I respectfully dissent from the majority vote that the ATA is a penal law that regulates speech and that, as such, it is susceptible to the facial challenges raised by the 33 other petitions. I vote only to admit the four above-mentioned petitions as as-applied challenges.
 

IV.	Disini, Jr. v. The Secretary of Justice is not applicable

The majority opines that Disini, Jr. v. The Secretary of Justice has paved the way for a facial challenge of a penal law that implicates speech, including unprotected speech.

A closer examination of Disini, Jr. v. The Secretary of Justice reveals the contrary.

The relevant provisions in Disini, Jr. v. The Secretary of Justice were Sec. 4(c)(2) on Child Pornography, Sec. 4(c)(3) on Unsolicited Commercial Communications, Sec. 4(c)(4) on Libel, and Sec. 5 on Aiding and Abetting of the Cybercrime Law. Undoubtedly, speech associated with child pornography and libel are unprotected speech. The question is whether the Court allowed a facial challenge against these provisions.

The Court addressed the issues relating to Sec. 4(c)(2) and Sec. 4(c)(3) without stating that it was entertaining a facial challenge. Rather, it directly upheld the constitutionality of Sec. 4(c)(2) and Sec. 4(c)(4) with respect to the original author. The Court was silent on whether it was reviewing these provisions facially. In fact, the discussion of the Court on these provisions makes no reference to overbreadth or vagueness. Thus, by the time the Court attended to the facial challenge against Sec. 5, it had already upheld the constitutionality of Sec. 4(c)(2) and Sec. 4(c)(4) as regulations on unprotected speech.

Sec. 5 on aiding and abetting refers to several provisions including Sec. 4(c)(2) and Sec. 4(c)(4). However, Sec. 5 was aimed at the act of aiding and abetting certain forms of communications that have earlier been declared constitutional. Thus, when the Court facially invalidated Sec. 5 in relation to Sec. 4(c)(2) and Sec. 4(c)(4), the invalidation was confined to the speech-related acts of aiding and abetting. In fact, the Court also facially invalidated Sec. 5 in relation to Sec. 4(c)(3) on spam, which is clearly not unprotected speech.

In sum, the facial invalidation in Disini, Jr. v. The Secretary of Justice was of a provision (Sec. 5) of the Cybercrime Law regulating a speech-related act rather unprotected speech. Such facial invalidation has no relevance to the ATA, not even to the last proviso of Sec. 4 as the speech regulated therein, if at all, is an integral part of an overt act of terrorism and therefore unprotected. Rather than Disini, Jr. v. The Secretary of Justice, the general rule, that a facial challenge is not available against a penal law in general or a penal law that regulates unprotected, is the law of the present case.

Therefore, I respectfully dissent from the majority view that Disini, Jr. v. The Secretary of Justice paved the way for the facial challenge raised by the 33 other petitions against the ATA as a penal law.

ISSUES RAISED BY THE SURVIVING PETITIONS

The surviving petitions ask the Court to undertake a facial challenge of the ATA and to invalidate the entire law even before its enforcement, based on the allegations and positions summarized below.
 

I.	G.R. No. 253242 - Coordinating Council for People's Development and Governance, Inc., represented by Vice-President Rochelle M. Porras, et al. v. President Rodrigo R. Duterte, et al.

A. Vagueness of Section 4 and Section 9

The petitioners argue that the ATA's Secs. 4 and 9 are facially invalid for vagueness since they fail to provide standards that ordinary persons can use to determine whether their speech and conduct violate ATA, or that law enforcers can use to determine if speech or conduct is legal or illegal.^[327] On this basis, they conclude that they can challenge these provisions for themselves and for other persons whose rights are impaired.^[328] They consider the following phrases too abstract to qualify as useful guides for law enforcers: "undermine public safety," "create a public emergency," "seriously destabilize or destroy," "fundamental political, economic or social structure of the country."^[329]

Given the deficiency, the petitioners posit that the Anti-Terrorism Council (ATC) and law enforcers can characterize any act as terroristic by merely attributing to the person a terroristic intent, despite the absence of any outward manifestation of terroristic or criminal intent.^[330] The deficiency, in their view, violates the fundamental criminal law precept that no crime exists in the absence of any criminal act or a criminal mind.^[331] Specifically, these provisions violate the right to a presumption of innocence under Sec. 14 (2), Art. III of the Constitution.^[332]

The petitioners further argue that Sec. 9 punishes as incitement to terrorism a person who does not participate in terrorism but whose speeches, writings, and other public expressions have content that incites another person to commit an act enumerated in Sec. 4. The provision disregards the need to establish criminal intent and, thus, similarly violates the principles of criminal law.^[333] According to them, in view of the vagueness of Sec. 4 and Sec. 9, Secs. 5, 6, 7, and 8 can punish individuals based on the content of their speech, in violation of the express prohibition under Sec. 4, Art. III of the Constitution, which provides that no law shall be enacted impairing freedom of expression.^[334]

They further argue that given the lack of clear standards, an ordinary law enforcer can conclude that a politically charged speech violates the ATA.^[335] They claim that these provisions, being overly broad, have the effect of forcing a person to muzzle himself lest he violates the ATA through his speech.^[336]

B. Prohibition on development and humanitarian work and advocacy

The petitioners argue that Secs. 12 and 13 curtail humanitarian and advocacy work for no apparent legal reason.^[337] They object to Sec. 13 which, to them, limits the organizations that can undertake humanitarian work to only the Red Cross and to those authorized by ATC. Since the NTF-ELCAC has declared the petitioners as communist-terrorist organizations,^[338] petitioners argue that there is unreasonable curtailment not only of their freedom of association but also of the constitutional policy on the promotion of civic organizations.^[339] It also endangers communities facing natural disasters and environmental threats.^[340]

C. Proscription of legitimate socio-economic and cultural organizations

According to the petitioners, Secs. 25, 26, 27, 29, and 34 on proscription likewise suffer from lack of standards so that legitimate socio-economic and cultural organizations like theirs can be labelled as terrorists despite the Constitution's declaration that their formation and function serve an important public interest.^[341] Under these disputed provisions, they argue that the ATC can subject any organizations to proscription without any clear basis. The ATC, the petitioners contend, is not a judicial or quasi-judicial body that is required to determine probable cause as basis for its actions.^[342]

The petitioners also contend that while proscription can be issued within two days, the hearing for a proscribed organization to challenge the proscription can be delayed for up to six months.^[343] They claim that, in the meantime, their organization, its members, and the communities they serve are deprived of their freedom of association and their right to represent their socio-economic and cultural identities.^[344]

D. Warrantless arrest and detention - Section 29

Finally, the petitioners argue that Sec. 29 is both an unreasonable and an unnecessary infringement of the right to due process and freedom from unreasonable search and seizure. Further, they object to the extension of the period of warrantless detention and the removal of the protection afforded by the HSA as they believe that these acts cannot be justified by any overwhelming government interest.^[345]

Based on these grounds and arguments, the petitioners ask the Court to declare the ATA unconstitutional in its entirety.^[346]
 

II.	G.R. No. 252585 - Bayan Muna Party-List Representatives Carlos Isagani T. Zarate, Ferdinand Gaite, and Eufemia Cullamat v. President Rodrigo R. Duterte.

The petitioners are party-list representatives and officers of party-list organizations^[347] who cite the following arguments to support their petition:

A. Vagueness and overbreadth of Section 4

The petitioners argue that Sec. 4, together with Secs. 5 to 12, are facially invalid. They claim that, through vagueness and overbreadth, the ATA infringes on the right to due process and smothers protected speech without any valid and compelling government interest.^[348] They maintain that Sec. 4 is overly broad such that it can smother protected speech. According to them, Sec. 4 enumerates specific terroristic intents but does not identify the outcomes or outward indicators that would enable the ATC or a law enforcer to objectively attribute such terroristic intents to any specific act. The petitioners allege that Sec. 4 likewise declares that such terroristic intent can be attributed to any act regardless of the stage of execution. In effect, petitioners argue that a law enforcer can point to any act, including speech, and declare it as a terrorist act based on their subjective belief, rather than based on any objective criteria, that the act or speech is animated by one of the enumerated terroristic intents.^[349] Even protected speech can be declared by a law enforcer to be a terroristic act if, in the enforcer's subjective assessment, a terroristic thought is behind the utterance.^[350]

The petitioners add that Sec. 4 is vague in many of its material aspects.

First, they argue that Sec. 4 refers to the "nature and context" of the act as basis for a law enforcer to deduce a terroristic intent. The relevant "nature and context" of the act, according to petitioners, would depend on the subjective assessment of the law enforcer who can then be influenced by the government's public labelling of persons and organizations (such as the petitioners) and their speeches and activities as terroristic.^[351]

Second, they claim that Sec. 4 describes a terroristic intent according to the likelihood of "extensive damage," "extensive destruction," "extensive interference," or "debilitating impact," all of which would depend on the subjective assessment of the ordinary law enforcers who can hardly be expected to make a consistent assessment in the absence of any standard to determine what effects are considered extensive or debilitating.^[352]

The petitioners further contend that the phrase "endanger a person's life" is equally vague and can be interpreted to include the violation of quarantine restrictions.^[353] According to them, such vagueness is pervasive because other crimes defined in the ATA arise from an act of terrorism under Sec. 4, which can activate the ATC's wide range of powers.^[354] Moreover, they claim that vagueness is pernicious because it can lead to abuses even against children and the elderly.^[355] Similar to overbreadth, they argue that vagueness can lead to self-repression of thought and expression.^[356]

Third, petitioners point out that while Sec. 4 ostensibly places the burden on the government to prove that an advocacy is terroristic, the ATA still enables the government to easily attribute to an act any of the abstract purposes enumerated as terroristic.

Thus, they conclude even the people's revolution in EDSA can be treated as terroristic given the likelihood and actual occurrence of some form of violence.^[357] As further example, they claim that the lyrics of songs celebrating the revolution would also be terroristic.^[358] They also allege that humanitarian work during this pandemic or any calamity would be terroristic if undertaken by organizations that have been merely labelled as terrorists by the government.^[359]
 
B. Violation of the right to privacy

The petitioners cite the Ople v. Torres ruling to contend that when a vague law places in a person or in a group of persons the possession of privileged information, the law poses a clear and present danger to the right to privacy and, by extension, to protected speech (both public and private) and to the freedom from unreasonable search and seizure.^[360] They argue that Secs. 16, 17, 18, 19, 20, and 22 of ATA invade privacy without any compelling reason,^[361] in violation of the affected person's right to due process since the latter has no means of opposing the intrusion.^[362] According to them, in view of the vagueness of Sec. 4, the intrusions into privacy under Sec. 16, through Sec. 20 and Sec. 22, would have the effect of inhibiting legitimate dissent.^[363]

C. Violation of due process

The petitioners argue that, under Sec. 25 of ATA,^[364] in relation to Sec. 11 of R.A. No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012 or the Terrorism Financing Act),^[365] private property and funds can be taken without due process of law.^[366] They object to the fact that though not a judicial or quasi-judicial body, the ATC can initiate seizure without notice and hearing.^[367] They also allege that no remedy is available against the ATC.^[368]

D. Violation of presumption of innocence

The petitioners point out that under Secs. 25 and 27, a preliminary order of proscription (POP) can be obtained from the Court of Appeals (CA) even without probable cause as no act of terrorism has been or is being committed. They attribute this legal defect to the preventative rather than the punitive purpose of the POP. They claim that the CA, moreover, would have no other basis to decide except the DOJ's factual recitation in its application for proscription and POP.^[369]

E. Violation of separation of powers

The petitioners argue that the authority of the ATC under Sec. 29 to order the warrantless arrest and detention of persons on mere suspicion of being terrorists amounts to a usurpation of judicial powers by the executive department, in violation of the express prohibition under the 1987 Constitution that "no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce."^[370]

Petitioners lament that detention, which can last up to 24 days, too, can transpire on mere suspicion and even without any crime being committed. According to them, no justification exists for such prolonged detention period.^[371] In effect, petitioners claim that, without complying with the constitutional requirements on the suspension of the privilege of the writ of habeas corpus, the President, acting through the ATC, can effectively suspend the writ for longer than the three (3) days that the Constitution allows.^[372]

F. Deprivation of the right to bail

The petitioners posit that if a person is charged under Secs. 5, 8, 9, or 10, the offense would be punishable by 12 years imprisonment. Notably, Sec. 13, Art. III of the Constitution grants a person so charged the right to bail.

Yet, petitioners point out that Sec. 34 of ATA provides that, even if a bail is granted as a matter of right, the court, upon the prosecutor's application, may - in the interest of national security - limit the right of the accused to travel within the municipality or city where he/she resides or where the case is pending.^[373] In effect, they conclude that an accused out on bail will be denied provisional liberty.^[374]

Based on these grounds and arguments, the petitioners ask the Court to declare the ATA null and void in its entirety.^[375]

III.	G.R. No. 252767 - Bishop Broderick S. Pabillo, et al. v. President Rodrigo R. Duterte, et al.

The petitioners are priests, religious and lay persons and organizations.^[376] The arguments they raised to support their petition are outlined below.
 
A. Vagueness of Section 4

The petitioners argue that, except for Sec. 4(d), Sec. 4 is vague as it deprives a targeted person the right to due process; he is not given "fair notice of the conduct to avoid" whereas the law enforcer is given "unbridled discretion in carrying out its provisions."^[377]

They point out that the phrase "endangering a person's life" is susceptible to a range of interpretation in terms of the degree of danger and the number of lives endangered, to the point that a protest action that erupts into some form of violence could be interpreted by law enforcers as terrorism.^[378] According to the petitioners, the phrase "extensive interference" of a critical infrastructure, which includes a cyber infrastructure, is open to various interpretations and an ordinary law enforcer would not have the means to analyze the nuances of a particular interference.^[379]

As the law does not draw the line between criminal and non-criminal act, they claim that the ATA can end up criminalizing even innocent acts.

B. Overbreadth of Section 6 and Section 9

The petitioners likewise argue that Sec. 6 is so general and abstract that it penalizes the "collecting or making of documents connected with the preparation of terrorism." The petitioners point out that this can cover the making of statements or posters in pursuit of an advocacy work that might be critical to the government and in support of certain legitimate sectors, such as the Lumads.^[380] According to them, such protected speech can be implicated simply because the Lumads have been labelled as terrorists.^[381]

The petitioners also object to Sec. 9 on speeches and writings whose content incite others to terrorism as it allegedly "intrudes into the area of protected speech and expression because it targets bare messages ... regardless of the actual role of the speaker in the commission of terrorism."^[382] The requirement that the speech must "tend to the same end," petitioners claim, is puzzling considering that the person making the incitement is not supposed to take a direct part in the commission of terrorism.^[383] They conclude that the expansive scope of Sec. 9 has the effect of stultifying the freedom of speech and conduct of individuals and organizations.^[384]

C. Violation of the right of association

To the petitioners, Sec. 12 on providing support is so broad that it could criminalize legitimate advocacy work, which involves training local and indigenous communities in peace-building^[385] and in providing sanctuary to internal refugees fleeing military operations or natural calamities.^[386]

D. Impairment of freedom against unreasonable search and seizure, right to privacy and right to due process

The petitioners argue that Sec. 5, Rule 113 is the Court's authoritative interpretation of the scope of the freedom against unreasonable search and seizure under Sec. 2, Art. 3 of the Constitution.^[387] The petitioners posit that it specifies the instances when warrantless search and seizure are legitimate.

Petitioners also object to Sec. 29 of the ATA as it allegedly violates Sec. 2, Art. 3 of the Constitution by authorizing warrantless search, arrest, and detention even on mere suspicion rather than on probable cause.^[388]

They further claim that it violates the right to privacy under Sec. 3, Art. 3 of the Constitution as Sec. 29 allows a roving warrantless surveillance and does not require any specificity or even relevance to the crime for which the search is being conducted.^[389]

The petitioners conclude that the ATA violates the right to due process and the right to question an unlawful detention since a person - even on mere suspicion - can be deprived of liberty for up to 24 days without any means to question the basis of his detention.^[390]

E. Deprivation of presumption of innocence

The petitioners argue that Sec. 25 of the ATA on the power of the ATC to designate terrorist individuals and groups violate the right to be presumed innocent. For petitioners, the ATC can issue a designation based on mere suspicion.

They also allege that even assuming that the ATC could only issue designations based on probable cause, the ATC's impartiality is doubtful since it is composed of the NSC and other security and law enforcement agencies, all of which have been labelling petitioners and other organizations as communist-terrorists. In any case, petitioners claim that the designation by the ATC under Sec. 25 disregards the presumption of innocence and right to due process that individuals enjoy under the Constitution.^[391]
 

IV.	G.R. No. 252768 - GABRIELA, Inc., et al. v. President Rodrigo R. Duterte, et al.

The petitioners are comprised of the General Assembly of Women for Reforms, Integrity, Equality, Leadership, and Action (GABRIELA), Inc., along with its officers and members.^[392] The arguments they allege in support of their petition are listed below.

A. Impermissibly vague definition of terrorism violates due process

The petitioners contend that the definition of terrorism under Art. 4 of the ATA is impermissibly vague and lacks sufficient comprehensible standards for persons of common intelligence to know what conduct to avoid. Further, they claim that the ATA affords the implementor unbridled discretion in its implementation. Accordingly, petitioners claim that this impermissible vagueness violates the due process clause of the Constitution.^[393]

They also assert that it is left to the discretion of the implementors of the law to determine what (1) acts may be considered as intended to cause death or serious bodily injury to any person, or danger to a person's life, (2) acts may be considered as intended to cause extensive damage or destruction to a government or public facility, public place or private property, and (3) acts may be considered as intended to cause extensive interference with, damage or destruction to critical infrastructure.^[394] Further, once the acts have been determined by the implementors, the petitioners allege that it is also up to them to determine, by their sole discretion, the existence of listed purposes since there is no reasonable standards set for "nature and context."^[395]

The petitioners further contend that the acts penalized do not need to even result to any of the prohibited conduct as it is enough that the acts penalized are intended to cause such end result. Hence, they conclude that the definition is overbroad as it can cover even legitimate activities and conduct.^[396]

They also do not find comfort in the exclusion provided in Sec. 4 because it appears to be an apparent veiled warning due to the qualification of "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." Further, they contend that the determination of whether the qualification is present is left to the sole discretion of the ATC.^[397]

Correlatively, petitioners now claim that the other provisions in the ATA dependent on the definition of terrorism (Secs. 5, 6, 7, 8, 9, 10, and 14) are necessarily void for also being vague. The petitioners also call particular attention to Sec. 12 on material support, which covers any type of support — monetary or otherwise.^[398]

Due to the alleged impermissibly vague definition of terrorism, the petitioners conclude that a facial challenge of the ATA is proper, and thus, the ATA must be struck down as unconstitutional.^[399]

The petitioners also posit that the ATC is the law enforcer, the prosecutor, and the judge at the same time under the ATC. They point out that the ATC acts as a law enforcer because it gathers evidence against persons or associations it suspects of being terrorists under Sec. 16 of the ATA. The ATC is also the prosecutor because, according to petitioners, the ATC conducts investigations to determine probable cause under Sec. 25. Finally, petitioners argue that the ATC acts as a judge because it (a) designates terrorists at its own discretion, with finality and without judicial imprimatur under Sec. 25, (b) authorizes law enforcers to arrest and detain without judicial warrant and order the freezing of assets of any suspected person it designates as terrorist.^[400] This, according to petitioners, is violative of the due process clause.

B. Violation of the principle of separation of powers

The petitioners argue that Sec. 29 empowers the ATC to authorize the law enforcement agents or the military to arrest a person without a judicial warrant of arrest through a written authority. This written authority, according to petitioners, takes the place of a warrant of arrest issued by a judge after judicial finding of probable cause. In this manner, they claim that the ATA allows the ATC to intrude into an exclusive judicial function, which is violative of the principle of separation of powers.^[401]

C. Violation of the right against warrantless arrest, to liberty, to freedom of speech and expression, and to freedom of association

The petitioners contend that Sec. 29 authorizes law enforcement officers and military personnel to arrest on mere suspicion without judicial warrants and without personal knowledge. According to them, this is in violation of the constitutional protection against unreasonable searches and seizures.^[402]

They also allege that Sec. 29 violates the right to liberty. They point out that the state has no power to detain a person for more than thirty-six (36) hours without delivering him/her to proper judicial authorities. The petitioners then conclude that Sec. 29 unduly extends the period of detention beyond 36 hours without the law enforcement or military personnel incurring any criminal liability. This is allegedly in violation of Art. 125 of the Revised Penal Code. The petitioners point out that even the waiver of the effects of Art. 125 does not give the government the right to detain a person indefinitely.^[403]

The petitioners further assert that the vagueness of the ATA allows its implementors to target critics of the government. Hence, they argue that "it will quash legitimate dissent and quell the people's constitutionally-protected rights and freedom."^[404]

Lastly, the petitioners allege that the vagueness of the ATA impedes the exercise of the right to freedom of association. They argue that any legitimate group of persons, organization, or association may be suspected of terrorism under the vague definition of the law. According to the petitioners, the ATA has a chilling effect on the people's right to form associations, "especially if the purpose of such association is to monitor government performance and advocate for improvements or to fight for the rights of the marginalized sectors in society."^[405] The petitioners object to branding them as terrorists and communist front organizations or communist-terrorist groups as it violates their right to freely associate. The petitioners explain that their militant orientation and affinity to progressive groups are not contrary to law. Hence, they argue that the ATA must be struck down as void for being unconstitutional.^[406]

COMMENTS OF PUBLIC RESPONDENTS

The public respondents responded through the arguments outlined below.

They first urged the Court to apply the preliminary rules on the worthiness of the petitions for judicial review,^[407] and the application of the "as-applied" challenge rather than a facial challenge because the ATA is a penal law.^[408]

According to the public respondents, since none of the petitioners has established that the ATA provisions had been directly applied to them or that they had suffered a concrete impairment of their rights, the Court must find that the petitioners lack legal standing and that the issues they raised are not proper for adjudication.^[409] They claim that no petitioner has established any concrete evidence of impairment of their rights,^[410] nor of any real threat to these rights.^[411]

The public respondents also posit that the mantra of transcendental importance should not replace the fundamental rule, under the principle of separation of powers, that the Court must reserve its exercise of constitutional judicial review for only those acts of the legislative or executive branches of the government that directly and concretely impair the constitutional rights of individuals.^[412]

The public respondents add that Rule 65 is not the proper remedial rule to challenge the ATA's constitutionality as its enactment was well within the jurisdiction of the legislative and executive branches of government; thus, no possible grave abuse of discretion or lack of jurisdiction can be attributed to them.^[413]

The wisdom of enacting an expanded anti-terrorism law, according to the public respondents, is a political question.^[414] The proper recourse is therefore to follow the hierarchy of courts by bringing an actual controversy to the trial court as the latter has the power to decide both the factual and the constitutional^[415] questions the petitioners raised.^[416] The public respondents argue that the petitions should be dismissed, especially as against the President who enjoys immunity from suit.^[417]

The public respondents likewise find the petitions wanting in substance. They posit that a rational basis scrutiny is appropriate for a police power measure like the ATA, whereas an intermediate scrutiny is fit only for economic regulations, and a strict scrutiny is reserved for measures that burden fundamental rights.^[418]

Assuming that a strict scrutiny is applied, the public respondents claim that the ATA can withstand the challenge as it serves a compelling government interest, i.e., to ensure the safety and security of the people from terrorism.^[419] The ATA too, according to them, employs the least intrusive means and preserves existing safeguards, such as the prohibition against torture.^[420]

While the public respondents admit that the ATA is not a perfect law, they nevertheless claim that the mere possibility of abuse or flawed application does not render it constitutionally infirm.^[421] To them, the ATA specifically states that its definition of terrorism is based on the best international legislative practices in criminalizing terrorism.^[422]

The public respondents likewise argue that the ATA does not suffer from overbreadth and should not be facially invalidated. The public respondents posit that, being a penal law, the ATA is necessarily broad in its application in the sense that it shall be given general territorial effect against socially harmful conduct,^[423] except against speech or any other freedoms of expression, including academic freedom.^[424] Thus, they argue that the ATA is not facially invalid for overbreadth.^[425]

The public respondents cite Disini, Jr. v. The Secretary of Justice as involving a one-of-a-kind ruling as the provisions involved in that case apply particularly to a communication hub: cyberspace.^[426] According to public respondents, Disini has no relevance to the ATA for this law expressly excludes advocacy and speech from its coverage.^[427]

Even assuming that the ATA burdens protected speech, the public respondents claim that any attempt to facially invalidate it should fail for lack of any submitted allegation or evidence that no circumstance exists under which the ATA would have a valid application.^[428]

The vagueness challenge should also fail according to the public respondents. Like the test of overbreadth, the public respondents point out that the test of vagueness "[applies] only to speech and not to conduct."^[429] To them, the ATA punishes conduct, not speech.^[430]

Moreover, the public respondents explain that the reason for the void-for-vagueness doctrine is the deprivation of fair notice of what constitutes criminal conduct; no crime is committed where there is no law punishing it.^[431] Thus, no intrinsic vagueness exists if the law draws the line by which an ordinary person of common sense can distinguish between permissible and impermissible conduct.^[432]

The public respondents likewise posit that the text of Sec. 4 is plain to anyone of common understanding. It describes four acts, the corresponding intent for each act, and the purpose common to all four intentional acts. According to the public respondents, taken together, the four intentional acts and their common purpose constitute acts of terrorism as distinguished from ordinary innocent acts, and as further distinguished from ordinary innocent acts.^[433]

The respondents recall the petitioners' argument that the text defining the element of intent can be cherry-picked as one law enforcer can differ from another law enforcer on the degree of the damage, destruction, interference, and debilitating effect wrought by any of the four acts under Sec. 4.

The public respondents disagree with this position as the qualifying term "extensive" has an ordinary meaning of total if not nearly total, and clearly signals the terroristic intent.^[434] Moreover, the public respondents point out that the purpose of intimidation can be revealed by the nature and context of the intentional acts.^[435]

The public respondents acknowledge that the ATA shifted from an effects-based to a purpose-based approach in criminalizing terrorism.^[436] They explain that the shift was dictated by the reality that to merely react to the effects of a terroristic act is no longer enough to guarantee people's safety and security. As the siege of Marawi demonstrated, terrorists could use seemingly innocent network building that, although long detected, could not be stopped for lack of proper legislation.^[437]

The public respondents further explain that the shift was also driven by the issuance of United Nations Security Council decisions and the adoption of treaty instruments requiring states to adopt preventative criminalization of normally innocent acts that enable terrorism.^[438] Nonetheless, they explain that the expansion from punishment to prevention does not result in penalizing a mere act without any criminal intent or a mere intent, such as a threat, without any criminal act.^[439]

Since the definition of terrorism under Sec. 4 is allegedly clear, the public respondents argue that the section effectively illuminates the other acts constituting terrorism under Secs. 5, 6, 7, 8, 9, 10, 11 and 12, as well as the necessary factual basis by which the ATC can exercise its power to cause the designation and proscription of terrorist individuals and organizations under Secs. 25, 26, and 27.^[440]

Moreover, the public respondents posit that the authorization and conduct of search and surveillance under Secs. 16 and 17 would necessarily be based on probable cause of the commission of the acts defined under Secs. 4 to 12.^[441] Thus, the person subjected to search or surveillance may have the order quashed for lack of probable cause.^[442]

Further, the public respondents claim that whatever intrusion into privacy that may occur in instances of secret wiretapping is justified by the highest exigency of public safety and reinforced by presumption that the public has only a reasonable expectation of privacy rather than an absolute right.^[443] In addition, they argue that the law itself provides safeguards and remedies against abuse.^[444]

To them, although Sec. 29 uses the term "suspected," probable cause would still be the basis for the detention of a suspected individual.^[445] The public respondents explain that the term "suspected" simply refers to a person who has not been charged or subjected to a court process.^[446] The public respondents submit that:

"Taken in this light, simply because Section 29 uses the word "suspected" does not mean that the "probable cause" threshold has been supplanted and that arrest can now be undertaken under mere suspicion when the entirety of the Act is in fact geared toward protecting the same fundamental rights."^[447]

The public respondents point to the need for probable cause prior to the detention of a suspected person to reassure the public that the law carries sufficient safeguards and reiterate that:

455. Contrary to petitioners' interpretation, therefore, the use of "suspected" in Section 29 does not at all signify an abandonment of probable cause as threshold in warrantless arrest under Section 5(b), Rule 113 of the Revised Rules of Court. Neither does Section 29 seek to carve out a new exception to the rules governing valid warrantless arrests. Instead, consistent with the context of the entire law, the provision must be construed to contemplate warrantless arrest under the circumstances mentioned in Section 5(b), Rule 113 of the same Rules [as] in Remegio v. People.^[448]

Notwithstanding the need for probable cause as basis for the order of the detention of suspected person under Sec. 29 or the designation of a terrorist person or organization under Sec. 25, the public respondents maintain that the ATC remains a purely executive body. Thus, no violation of separation of powers exists.^[449]

Unlike proscription, which is a judicial process, the public respondents allege that the designation of a terrorist person or organization under Sec. 25 is a purely executive law enforcement function that "entails a determination of facts constituting an infraction," such that "[o]nce the factual background has been ascertained based on probable cause, the ATC can utilize the tools within its disposal to prevent the proliferation of terrorist acts."^[450]

The public respondents clarify that the ATC does not issue a warrant of arrest to cause the detention of a person under Sec. 29. Rather, they explain that the detention is only for the purpose of giving "law enforcement agencies adequate time to obtain sufficient evidence that will hold against judicial scrutiny."^[451] For this reason, they claim that the detention requires a mere ATC written order rather than a warrant of arrest.^[452]

To them, upon arrest on the basis of a formal charge, a person may avail of provisional liberty on bail, although the extent of that liberty is restricted to the area where the person can travel and his access to mobile communications is likewise restricted. The public respondents believe that these are valid measures, however, to ensure public safety and security, according to the public respondents.^[453]

Relying on these positions and arguments, the public respondents seek the dismissal of the petitions and the affirmation of the constitutionality of the ATA.^[454]

PRELIMINARY SUBSTANTIVE CONSIDERATIONS

I. Basic Premises

Disputes, in the usual course, arise from the application of the law on human conduct and interactions. The petitioners object to the law, the ATA, on constitutional grounds, among others.

To be clear in its rulings and to avoid any misunderstanding in reviewing the ATA based on the petitioners' allegations of unconstitutionality, it is prudent to first define the basic premises for its review based on the character of the ATA and the constitutional litigation concepts and principles discussed above.

A. First Basic Premise - ATA is an exercise of police power

I have, to some extent, recited above some of the notorious incidents of terrorism in the world and in the country.^[455] The recital is by no means complete and covers only the more notorious examples. I mention these incidents merely as an introduction, to show the reader and the public at the outset the type of evil that confronts the government. These recitals are reiterated here for the same purpose - to gauge the extent of the government's interest in considering the constitutionality of the ATA as the government's response to terrorism.

Underlying the Constitution are three inherent powers of state - police power, eminent domain, and the power of taxation. They are underlying powers because they need not be expressly granted under the Constitution; they are inherent in the State and must necessarily be there to ensure the survival of the society that the Constitution governs and supports.^[456] Rather than being granted, the Constitution provides limits to these powers for the protection of the governed.^[457]

Eminent domain is the power to take private property for public use upon payment of just compensation.^[458] This power does not need to concern us in the present case as no taking of private property, directly or indirectly, is involved. The power of taxation, on the other hand, is the power to assess and collect taxes pursuant to a public purpose and in accordance with due process requirements.^[459] It is based on the principle that taxes are the lifeblood of the government and, without it, the government cannot provide for the general welfare of the people.^[460] Again, this is not a power at issue in the present case.

What the consolidated petitions bring to the fore is the police power of state or the inherent power of a government to exercise reasonable control over persons and property within its jurisdiction in the interest of general security, health, safety, morals, and welfare. It is an awesome power limited only by the terms of the Constitution that the people established and approved.

The ATA, by its own express statement, was passed by Congress pursuant to its policy "to protect life, liberty, and property from terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against The Law of Nations."

Thus, the ATA, an exercise of the police power of state, is strictly a response that a State takes to defend itself. From this perspective, it is a power that expands or contracts depending on the nature, extent, and circumstances of the needs to be addressed or the aggression that it is repelling.^[461] When the State's needs are serious, severe or pervasive, the power that it exercises through Congress may similarly be so.

An anti-terror law is effectively a State's self-defense response to terrorism, an unlawful aggression that attacks the very life of a State despite the lack of any sufficient provocation by the State; and which justifies the reasonable necessity for the State repel it, by law and other legal measures. Under these terms, a State does not only have the right but the duty and the justification to pass an anti-terror law like the ATA.^[462]

Art. II, Sec. 4 of the Constitution provides that:

The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.

In turn, to protect citizens and guard against excesses that may present themselves when the State so acts, the Constitution requires that its exercise must have an objective that is within the authority of Congress to address, and that the means that Congress takes must be reasonably proportionate to the harm sought to be avoided or prevented.^[463]

Thus viewed, the balancing that the Court ought to consider should be between the chilling effect that citizens who are not before the Court would suffer, as against the paralyzing effect on the nation's capability to defend itself against the invasive menace of terrorism.

This is embodied in the concept of due process under Art. III, Sec. 1 of our Constitution, which provides - "No person shall be deprived of life, liberty, or properly without due process of law, nor shall any person be denied the equal protection of the laws."

By established jurisprudence, due process requires the reasonableness of the objective that Congress seeks to address; it must be a concern that lies within the authority of Congress to address and there must be proportionality between the objective that Congress seeks to achieve and the means that Congress adopts to achieve its desired end.^[464] Procedurally, due process requires notice and hearing by an impartial and competent tribunal before a citizen could be deprived of life, liberty or property.^[465]

Terrorism, even in common understanding, is the unlawful use of force or violence, or threat of force or violence, against persons and property, to intimidate, coerce or secure objectives that the terrorists aim for.^[466] This definition, incidentally, is not peculiar to the ATA but is a definition and a concept of terrorism widely shared the world over.^[467]

It is therefore a concern that the State, given its objective of securing peace, order, security, and harmony within its borders, can legitimately address. If it is to be effectively addressed, its measures should be as wide and as deep as the evil that it seeks to remedy. The background facts and evolution of terrorism will show these.

If the ATA will violate the people's right to due process at all, the violation could only be due to its coverage of matters outside of Congress' authority to act upon, or with respect to the means and measures that Congress has taken, which are subject to tests of reasonableness and proportionality that the Court can decide upon as constitutional issues.

Even the petitioners, in fact, do not contest that the State can combat terrorism.^[468] This means that they do not dispute that the ATA is a police power measure. Dean Jose Manuel I. Diokno, the counsel of one of the petitioners, even admitted during the February 9, 2021 Oral Arguments that the ATA is a piece of legislation enacted pursuant to the State's exercise of police power:

ASSOCIATE JUSTICE GESMUNDO:
Thank you. Atty. Diokno, would you agree lo the proposition that the Anti-Terrorism Law was enacted by the legislature in the exercise of police power?

ATTY. DIOKNO:
Yes, Your Honor.

They only claim that the State's methods violate the rights guaranteed to them by the Constitution.^[469] From the due process perspective, the parties merely diverge in their views on the reach or limits of the measures that the ATA contains.

In this light and considering the nature of the power that Congress exercises in passing the ATA, this law should carry the strongest presumption of validity and regularity.^[470] Relatedly, the Court had previously held that a statute enacted pursuant to a valid exercise of the police power enjoys the presumption of constitutionality.^[471]

Likewise, the level of our scrutiny should, at most, be at the intermediate level, not the strict scrutiny that the petitioners demand.

This too is the position most consistent with the balancing exercise We have adopted all along in our review of the ATA. I find it significant that none of the surviving petitions has given lie to the reality that the State has a compelling interest to prevent and combat terrorism as an evil endangering the nation and its people.

I note too that the petitioners challenge the ATA for the vagueness and overbreadth they discern from its wording, brought on apparently by its comprehensive scope and its departure from the MSA approach. The respondents, on the other hand, defend a law whose measures are drawn from lessons from the country's past MSA, which Congress now seeks to improve on by supplementing the measures that the MSA started and which Congress found wanting.

These are important perspectives that cannot be left out or glossed over as yardsticks in ruling on the ATA measures' reasonableness in this case or in future challenges to ATA. With these as background, the question to ask in a case properly brought to the Court is - are the ATA measures reasonable or are they in excess of what the country needs to contain terrorism?

All these shall be covered in our discussions in this Opinion.

B. Second Basic Premise: The ATA is in compliance with the Philippines' international obligations

One of the basic premises of this Opinion is the recognition that Congress passed the ATA to comply with our country's international obligation on peace and security. In this regard, it is noted that our country adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.^[472]

There is no doubt that the ATA is a police power measure that addresses a social problem and serves the public interest. However, unlike other police power measures, the ATA is not merely punitive or regulatory but also preventative, and the public interest it serves is not merely individual protection but collective self-preservation.

Terrorism has been in our statute books since 1970-1971. Yet, it was only in 2007 that its punishment as a distinct crime was adopted through the HSA. Recently, by the growing local and global threats of terrorism and the state obligations of the Philippines under international instruments, necessitated the prevention of terrorism through the regulation, if not restriction, of hitherto innocuous acts. This process is detailed in the discussion that follows.

Under Sec. 17, R.A. No. 6132 (Constitutional Convention Act) dated August 24, 1970 and Secs. 10 and 11, R.A. No. 6388 (Election Code) dated September 2, 1971, acts of terrorism that prevent the holding of a free and honest election are a ground for the Comelec to constrain the right of suffrage through postponement or declaration of failure of a constitutional convention or regular election.^[473] Even as the Comelec measures against acts of terrorism resulted in a degree of curtailment of the right to vote,^[474] these were sustained by the Court as a valid exercise of police powers to ensure orderly elections under the 1973 Constitution^[475] and 1987 Constitution.^[476] It is notable that R.A. No. 6132 and R.A. No. 6388 were adopted upon the Court's previous suggestion for Congress to address the recurring problem of terrorist acts tainting the electoral process or causing disenfranchisement.^[477]

R.A. No. 6132 and R.A. No. 6388 did not define terrorism as a distinct crime; rather, they punished specific acts that were purposely intended to engender fear but were already defined as criminal or electoral offenses under other existing laws.^[478] In 1980, terrorism was identified in P.D. No. 1736, dated September 12, 1980, as one of the "illegal means" by which a subversive political party or organization would seek to overthrow the government. Those terroristic means were not identified or declared a crime, whereas the other "illegal means," such as arson or assassination, are already well-defined criminal acts.^[479] P.D. No. 1835 cited P.D. No. 1736 as the basis for declaring the CPP as a subversive organization.^[480] This Court held that P.D. No. 1835 is a valid restriction on freedom of association.^[481]

Terrorism also has been invoked to justify increased airport security checks for firearms and explosive devices. In People v. Johnson, this Court sustained the legality of warrantless body and luggage checks, as such temporary suspension of "the protection of the search and seizure clause" is demanded by the exigencies of public safety against terrorist bombings.^[482] At the time of the search, terrorism itself had not yet been defined as a crime, although possession of unlicensed firearms or explosives was already penalized.^[483]

Thus, throughout the foregoing period, the mere specter of terrorism was sufficient to warrant police power measures that constrained the right to vote, right to privacy, freedom to associate and freedom to travel. There was no urgent necessity to criminalize terrorism itself for existing penal laws provided the government with adequate means to punish specific acts of terror.

The necessity to criminalize terrorism was high-lighted in David v. Macapagal-Arroyo,^[484] where the lack of legislation defining terrorism as a criminal act was raised as a ground to nullity General Order No. 5. This measure called upon the "Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism." The Court declared that as "Congress has yet to enact a law defining and punishing acts of terrorism," the phrase "acts of terrorism" in General Order No. 5 is vague and unconstitutional.^[485]

As early as 1937, there was already an initiative to adopt a transnational definition of terrorism. Under the auspices of the League of Nations, twenty-four states signed the Convention for the Prevention and Punishment of Terrorism.^[486] Art. 1 defined acts of terrorism as "criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public." However, the convention did not come into force as only one state ratified it and the League of Nations was dissolved.

Sixty years later in 1996, another attempt at drafting an international convention on terrorism was started at the level of the UN General Assembly (UNGA).^[487] By 2002, the UNGA ad hoc committee had adopted a working definition of terrorism committed through predicate crimes,^[488] and at various degrees of participation and stages of execution, except planning and preparation.^[489] Thereafter, at the UNSC, Resolution No. 1566 (2004) defined terrorism as

[C]riminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism x x x

It is notable that both UNGA and UNSC definitions do not include acts of planning, preparation, and recruitment.^[490]

The 2007 HSA defined terrorism as the commission of predicate crimes under the Revised Penal Code^[491] and special penal laws^[492] but whose purpose is to sow a "condition of widespread and extraordinary fear and panic x x x among the populace to coerce the government to give in to an unlawful demand."^[493] By referring to existing penal laws, the definition covers various stages and degrees of participation. However, it does not criminalize the planning, preparatory, and recruitment stages.

Meanwhile, as early as 1997, the UNGA urged members-states to ratify eleven international conventions and protocols to combat international terrorism,^[494] and to "enact x x x domestic legislation necessary to implement the provisions."^[495] This was followed in 2003 by UNSC Resolution No. 1456 reiterating the call for member-states to ratify the conventions. However, neither UNGA nor UNSC imposed on member-states a binding obligation to incorporate the provisions of the conventions into the domestic legal system.

The Philippines had ratified seven of these conventions but did not adopt implementing legislations.^[496] R.A. No. 9497 or Civil Aviation Authority Act of 2008 incorporates some of the provisions of the instruments on aviation safety but imposes only a penalty of six months to one year imprisonment for acts that jeopardize aircraft safety.^[497] HSA itself provided for financial forfeiture as a penalty but did not punish terrorist financing as a distinct crime.^[498] It did not punish incitement to or preparation for the commission of terrorism^[499] or civil aviation and maritime-related offences as distinct crimes of terrorism.^[500]

By 2012, the Philippines further expanded the definition of terrorism to include acts that violate international conventions. While the Terrorism Financing Prevention and Suppression Act of 2012^[501] (TFPSA) retained the definition of terrorism under Sec. 3 and Sec. 4 of HSA, it added two other categories of acts of terrorism. Under Sec. 3(j)(3), provides:

Sec. 3. Definition of terms - As used in this Act:

xxxx
(j)	Terrorist acts refer to the following:
xxxx
(3)	Any act which constitutes an offense under this Act, that is within the scope of any of the following treaties of which the Republic of the Philippines is a State party:
	(a)	Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970;
	(b)	Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971;
	(c)	Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973;
	(d)	International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979;
	(e)	Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980;
	(f)	Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988;
	(g)	Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988;
	(h)	Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988; or
	(i)	International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

Under the TFPSA, the acts defined as terrorism under the foregoing international conventions are considered as acts of terrorism in the Philippines. This particular formulation of the definition of terrorism by reference to existing conventions is consistent with the International Convention for the Suppression of the Financing of Terrorism (ICSFT), to which the Philippines is a party.^[502] The ICSFT obliged states to penalize the financing of any act of terrorism, such as "[a]n act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex."^[503]

But then the TFPSA is of limited scope. As the title suggests, its subject matter is the criminalization of the financing aspects of terrorism. The HSA, as the only other existing domestic law at that time, punished terrorism committed through predicate crimes. Thus, the effect of TFPSA was the express incorporation of nine international conventions into the Philippine domestic system, without, however, penalizing their violation, except the financing aspect thereof.

In 2019, the International Court of Justice (ICJ) rendered a Judgment in Ukraine v. Russia^[504] in which it declared the binding nature of state obligations under the ICSFT:

[A]ll States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person. Should a State breach such an obligation, its responsibility under the Convention would arise.^[505]

In the same judgment, the ICJ declared that, by reason of UNSC Resolution No. 1373, whereby the UNSC, "acting under Chapter VII of the Charter, decided that all States shall x x x [r]efrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts," the financing by a State of acts of terrorism is not lawful under international law.

All this time, terrorism itself has been evolving in nature and scope. Back then, acts of terrorism were acts of violence for economic opportunism, specifically the taking of hostages for ransom^[506] or the coercion of election officials to manufacture votes favoring a particular candidate.^[507] Since then, terrorism has taken an increasingly horrific and ideological turn, such as the remote-control bombing in 2005 of a passenger transport in the middle of the financial district, allegedly to "show x x x anger towards the Christians."^[508] In 2016, homegrown and foreign terrorists laid siege to Marawi City^[509] in order to transform it into a satellite of the Islamic State.^[510]

As early as 1999, the shifting form of terrorism was already apparent. As pointed out earlier, the ICSFT, through the UNGA, obliges states to penalize the financing of any act of terrorism. It is significant that under Art. 2.1 of the ICSFT, the term "act of terrorism" takes two forms:

Article 2

1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

The same definition found in the ICSFT was presented at the UNGA by the Secretary General,^[511] to wit:

any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council Resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.^[512]

Under the foregoing definitions, terrorism is committed by any act which is in violation of a treaty instrument, whether or not penalized by a domestic law, or any act of violence, whether or not constituting a predicate crime, provided there is intent to cause death and serious bodily injury and the purpose, "by its nature or context," is to stoke fear and terror.

The foregoing new formulations were in response to "two new dynamics:" 1) the rise of "armed non-state networks with global reach and sophisticated capacity;" and 2) the pronounced aim of these networks to cause random mass casualties by any means.^[513] The increasingly random nature of terrorism means that predicate crimes with predetermined targets are no longer the sole means of committing it.

Accordingly, R.A. No. 10168 further expanded the definition of terrorism by adopting the following third category of acts:

(2) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

The phrase "any act" is not qualified by the condition that it be in violation of an existing penal law. However, the provision does not state whether all stages of any of said act is being criminalized, including the stages of planning and preparation.

The constitutionality of the foregoing definition of terrorism under the TFPSA has not been questioned. It has not been repealed by the ATA. However, as pointed out earlier, the TFPSA is limited in scope to the punishment of the financing aspect of terrorism.^[514]

While it repealed the HSA, the ATA, specifically Sec. 4, is broad enough to cover terrorism committed through predicate crimes. Moreover, as it did not repeal the TFPSA, the ATA covers in Sec. 4 the two categories of terrorist acts in the TFPSA which, as discussed earlier, are: first, acts in violation of the nine international conventions on terrorism; and second, any overt act, even if not constituting a predicate crime. However, while the ATA filled the gap in the TFPSA by imposing penalties on any overt acts of terrorism, the ATA did not prescribe penalties on acts in violation of international conventions. The penalties for these would have to be imposed by legislation incorporating the conventions, such as Republic Act No. 101697 on weapons of mass destruction.^[515]

In addition, Sec. 5 to Sec. 12 of the ATA criminalize all stages of execution and degrees of participation, including mere planning, preparation, and recruitment.

Using its Chapter VII powers,^[516] the UNSC issued resolutions requiring member-states to punish as terroristic acts the (1) planning, preparation and facilitation of acts of terrorism;^[517] (2) incitement to or glorification of terrorism;^[518] (3) attacks critical infrastructure;^[519] and (4) entry or transit of foreign terrorist fighters (FTF).^[520] These UNSC resolutions acknowledge that it is naive to await the horrific outcome of terrorism before punishing the same; rather, it is imperative to suppress terrorism through preventative measures.^[521]

To illustrate the extent to which measures to prevent terrorism have been adopted, the European Union issued Directive (EU) 2017/541 obliging members states to criminalize public expressions that provoke others to commit terrorism,^[522] including the glorification of past and present acts of terrorism.^[523] The need to criminalize glorification has been heightened by the use of the internet for radicalization and recruitment.^[524]

For this purpose, the UNSC built a regime of binding sanctions through resolutions issued in exercise of its Chapter VII powers.^[525] The most important are UNSC Resolution No. 1267 and UNSC Resolution No. 1373. The substance of these resolutions and their binding nature are discussed hereunder.

UNSC Resolution No. 1267 created a committee that designates the airerafts and assets of the Taliban to be subjected to sanctions. It imposed the obligation on all states that beginning on 4 November 1997, no designated Taliban aircraft may land or take off from any territory and no designated Taliban person or entity may access financial resources or assets from or through another territory.^[526] The resolution expressly states that these measures are adopted to enforce a decision of the UNSC in its exercise of its Chapter VII powers.^[527]

According to UNSC Resolution No. 1373, the 9/11 attack has shown that terrorism is not merely a territorial but already an international crime.^[528] Individual and collective self-defense require all states to punish as a serious crime acts of financing, planning, or preparation that enable the perpetration of terroristic acts.^[529] Moreover, all states must apply sanctions on persons and entities designated as terrorists by the UNSC.^[530] In this resolution, the UNSC reiterated its decision to declare terrorism as a "threat to international peace and security" and invoked its Chapter VII powers to enforce this decision through the foregoing preventative measures.

UNSC Resolutions No. 1267, No. 1373, and succeeding related resolutions impose binding obligations on states.

The UNSC may issue resolutions that are either binding or non-binding.^[531] As a general rule, resolutions invoking Art. 25, Chapter V or Art. 39 and Art. 41, Chapter VII of the United Nations Charter (UNC) are considered decisions that are binding on all States and prevail over other international instruments.^[532] Chapter V is about the powers and functions of the UNSC, and Art. 25 thereof states:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Chapter VII is about the powers of the UNSC to address threats to or breaches of the peace and acts of aggression. Under Art. 39 thereof, the UNSC can declare the existence of such situation and "decide what measures shall be taken x x x to maintain or restore international peace and security." Under Art. 41, it "may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures." In the Congo case and Occupied Palestine case, the ICJ interpreted the use of the term "decide"^[533] or an express proscription against a particular state behaviour^[534] as a signal that the UNSC intended its resolution to be binding, even if the resolution itself did not invoke Chapter V or Chapter VII. Ukraine v. Russia is the nearest to a categorical declaration by the ICJ that an act in violation of a Chapter VII UNSC resolution is not lawful under international law.^[535]

In the Lockerbie case, Libya filed with the ICJ a request for an advisory opinion that the bombing of the Pan Am aircraft is governed by the Montreal Convention on the Suppression of Unlawful Acts and that, under the convention, Libya does not have an obligation to surrender the two Libyan bombers to any foreign jurisdiction.^[536] The U.S. objected to the jurisdiction of the ICJ on the ground that the dispute had been mooted by UNSC Resolution No. 748 (1992) and Resolution No. 883 (1998) prohibiting Libya from giving safe haven to the bombers and enforcing the prohibitions with sanctions.^[537] The case was discontinued when Libya complied with the UNSC resolutions.^[538]

The action taken by the UNSC and the ICJ against Libya demonstrates the effects of non-compliance with binding UNSC resolutions on terrorism. In 1992, UNSC issued Resolution No. 731 directing the government of Libya to respond to questions regarding the terroristic bombing of Pan Am Flight 103 and Union de Transports Aeriens Flight 772.^[539] As Libya failed to comply, UNSC issued Resolution No. 748 obliging all States to prohibit flights to and from Libya; to impose an arms embargo; and to deny entry of Libyan nationals who have been expelled from other states for involvement in terrorism.^[540] Moreover, it set up a Committee of the Security Council to monitor compliance by all states and "recommend appropriate measures" for non-compliance. As explained in the Lockerbie case, Libya eventually complied with the resolutions.

With respect to enforcement of UNSC Resolution No. 1267 and No. 1373, the ISIL (Da'esh) and Al-Qaida Sanctions Committee as well as the Counter-Terrorism Committee identify possible cases of non-compliance and recommend to the UNSC the appropriate course of action to be taken.^[541] For non-compliance with counter-terrorism sanctions, the U.S. government has designated Syria, Iran, and Sudan as state sponsors of terrorism.^[542] Such designation by the US comes with economic sanctions relating to funds, assets, trade, and investments.^[543]

Since the 9/11 terrorist attack in 2001 to the present, the UNSC has issued fifty-one (51) Resolutions on terrorism.^[544] In its state practice, the Philippine government has acknowledged the binding nature of UNSC resolutions.^[545] This Court has held that the Philippines is bound by "enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter."^[546] It went so far as to declare that a "directive by the Security Council" can create a "non-derogable duty" on the part of the Philippines.^[547] The Philippine Congress has enacted laws implementing UNSC resolutions, especially on terrorism.^[548]

The ATA itself declares under Sec. 3(b), (h), (m), Sec. 10, Sec. 25, and Sec. 36 that it is implementing UNSC Resolution No. 1373 and "any binding terrorism-related resolutions x x x pursuant to Art. 41 of the [UN] charter." Sec. 43(i) authorizes the ATC to take appropriate "action on relevant resolutions issued by the UN Security Council acting under Chapter VII of the UN Charter." These provisions adopt preventative measures against terrorism, consistent with the requirements of the UNSC. Sec. 27 on the preliminary order of proscription and Sec. 29 on detention are avowedly preventative in purpose. Sec. 16 to Sec. 20 prescribe rules on surveillance for the purpose of prevention.

The Senate deliberations on the ATA reveal that the turning point in counter-terrorism legislation in the Philippines was the 2017 Marawi siege.^[549] The necessity to regulate, if not criminalize hitherto, innocuous acts in order to prevent violent acts of terrorism was highlighted by the Marawi siege where foreign terrorists beefed up the ranks of local terrorist and radicalized resident. Access to funding and equipment allowed them to hold off the government for several months.^[550]

It should be borne in mind that, at this stage, these findings are limited to the binding effect of resolutions issued by the UNSC in exercise of its Chapter V and Chapter VII powers. These findings are not conclusive on the issue of whether the ATA, as a legislation giving effect to UNSC resolutions, violates the Constitution.

Based on these additional international law perspectives, I add to my earlier conclusions (on the presumptions of validity and regularity that the ATA enjoys, and the level of scrutiny it deserves) that this Court should adopt not only a balanced approach but a flexible one within the limits of the law, to allow the ATA to achieve its aims and objectives and thereby comply in good faith with its international obligations.

It is significant that none of the surviving petitions has denied that the State has a compelling interest to prevent and combat terrorism as an evil endangering the nation and its people. In terms of compliance with our international anti-terrorism obligations, I add as a last point on this topic the consequences should we be remiss in our compliance.

Well-enshrined in public international law is the principle of pacta sunt servanda expressed as a treaty obligation under Sec. 26 of the Vienna Convention on the Law of Treaties, which was ratified by the Philippines on 15 November 1972. Accordingly, the Philippines must comply with its international obligations in good faith.^[551] We have emphatically held in a long line of jurisprudence that treaties are binding on the Philippines further to Sec. 2, Art. II of the 1987 Constitution, which provides that the country "adopts the generally accepted principles of international law as part of the law of the land."^[552] Sec. 21, Art. VI further provides a constitutional mandate on the validity of treaties or international agreements concurred in by at least two-thirds of all the Members of the Senate.

In Bayan v. Zamora,^[553] the Court explained the import of compliance with international law obligations, thus:

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty."^[554] (emphasis in the original)

A state, by act or omission, which breaches an international obligation, also incurs state responsibility due to the existence of an internationally wrongful act. This much is provided under the Articles for the Responsibility of States for Internationally Wrongful Acts, which is a work of codification of international law by the International Law Commission under the auspices of the United Nations.^[555]

As fully discussed above, the Philippines has an international obligation to accept and carry out the decisions of the Security Council, including taking all necessary steps to prevent the commission of terrorist acts and punishing acts related to terrorism such as financing; support, facilitation, participation, or attempt to participate in the financing, planning, preparation or actual commission of terrorism; incitement to or glorification of terrorism; and entry or transit of foreign terrorist fighters, among others. The provisions of the ATA show the country's good faith compliance to the UN Charter and related instruments as a member of the international community.

Terrorist organizations do not respect geographical boundaries and territorial limits, precisely why no less than a collective effort of the whole international community is needed to combat it. Declaring ATA as unconstitutional has transcendental consequences not just for the country, but on other states as well. Of equal import are the consequences, legal and socio-economic, of invalidating an act of Congress, which is essential to the country's compliance with its international obligations.

Further to the legal implications of a breach of international law obligation, this Court recognizes the devastating consequences of not taking all necessary steps in the fight against terrorism. Not only are we endangering the state's preservation, but we also become complicit in the furtherance of terrorist goals if we allow their ignoble goals to fester within our shores. This, in turn, affects international relations and our ability to contribute to international peace and security.

C. Third Basic Premise: the ATA is a Penal Law

A third premise for us is the nature of the ATA as a penal law.

This Opinion has already detailed the development of the criminalization of terrorism in the Philippines in the preceding paragraphs, specifically in the section entitled "Second Basic Premise: The ATA is in compliance with the Philippines' international obligations." Nonetheless, to stress what terrorism is and how it is continuously evolving, We draw attention, too, to its development over the years, both in its nature and scope.

Before terrorism was highlighted nationally and internationally, acts of terrorism in the Philippines were confined to armed individuals coercing election officials to manufacture votes favoring particular candidates,^[556] or taking hostages for ransom.^[557]

By the turn of the current century, terrorism in the country had taken an increasingly horrific and ideological turn, such as the remote-controlled bombing in 2005 of a passenger transport in the middle of the financial district, allegedly to "show x x x anger towards the Christians."^[558]

Other notorious incidents are mentioned above and need not be repeated here. Suffice it to say that terrorism's notoriety in our country peaked in 2016 when homegrown and foreign terrorists laid siege to Marawi City in order to transform it into a satellite of the Islamic State.^[559]

The recent fall of Afghanistan to the Taliban is of note - a Middle East development that could have ripple effects on our country, in the way that developments in that part of the world before had affected our terrorist situation.

As previously mentioned, David v. Macapagal-Arroyo^[560] stressed the need to criminalize terrorism because, in said case, the lack of legislation defining terrorism as a criminal act was raised as a ground to nullify General Order No. 5, a police power measure. General Order No. 5 called upon the "Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) to prevent and suppress acts of terrorism." Responding to the objection raised, the Court declared that "Congress has yet to enact a law defining and punishing acts of terrorism," and, on this premise, declared the phrase "acts of terrorism" in General Order No. 5 to be vague and unconstitutional.^[561]

Consequently, when the HSA^[562] defined terrorism, it sought to avoid vagueness by referring to acts that were then defined criminal offences under the Revised Penal Code and under special penal laws, and added as an element that the purpose of these crimes is to sow a "condition of widespread and extraordinary fear and panic ... among the populace to coerce the government to give in to an unlawful demand."^[563] In effect, the government still relied on existing penal laws as the principal means to punish acts of terror.

The penal character of the ATA appears as early as its subtitle which states that it "prohibit(s) and penalize(s) terrorism." This intent is made clear and express under its Sec. 2 which makes it a policy of the State "to make terrorism a crime..."

Clear and established legal implications arise from the ATA's penal character, the first of which is that the ATA is not subject to a facial challenge (as this challenge is described and discussed above). Thus, the ATA - because it regulates acts and conduct - can only be examined through an as-applied challenge. Inasmuch as it applies to speech, such speech is integral to criminal conduct. Hence, it is not subject to a facial challenge but to an as-applied challenge.

II. The ATA - its objectives and approaches

The ATA - by intent and by what it provides - has been an effort to address the HSA's weaknesses and its deficiencies and is our country's direct response to our international obligation to address terrorism within our borders.

It defined "terrorism" in more concrete and far stronger terms. Its Declaration of Policy (Sec. 2) provides the lenses from which terrorism and the ATA's terms can be viewed and understood. It provides:

SECTION 2. Declaration of Policy. — It is declared a policy of the State to protect life, liberty, and property from terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against The Law of Nations.

In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.

The State recognizes that the light against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military, and legal means duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorist and/or criminal activities. Such measures shall include conflict management and post-conflict peace building, addressing the roots of conflict by building state capacity and promoting equitable economic development.

Nothing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government. It is to be understood, however, that the exercise of the constitutionally recognized powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times.

This Declaration unequivocally lays down the purpose and the very spirit or raison d'etre behind the ATA as the congressional response to terrorism. This, in fact, is the government's response that the Executive branch must implement and the Judiciary must observe and respect in interpreting any ambiguity.^[564]

The Court explained the rationale behind the use of a policy declaration as an interpretative tool in Sarcos v. Castillo,^[565] where the Court said:

It is fundamental that once the policy or purpose of the law has been ascertained, effect should be given to it by the judiciary. From Ty Sue v. Hord, decided in 1909, it has been our constant holding that the choice between conflicting theories falls on that which best accords with the letter of the law and with its purpose. The next year, in an equally leading decision, United States v. Toribio, there was a caveat against a construction that would tend "to defeat the purpose and object of the legislator." Then came the admonition in Riera v. Palmaroli, against the application so narrow "as to defeat the manifest purpose of the legislator." This was repeated in the latest case, Commissioner of Customs v. Caltex, in almost identical language.^[566] (citations omitted)

In numerous cases,^[567] the Court considered a statute's Declaration of Policy to determine the purpose of, or the legislative intent behind, the law. The declaration of policy reflects the essence of the law; it is the statement of its guiding principle, the purpose and necessity for its enactment.^[568]

A close examination of the ATA's Declaration of Policy readily reveals the State's three-fold aims and its policy against terrorism:

1. To protect life, liberty, and property from terrorism;

2. To condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people; and

3. To make terrorism a crime against the Filipino people, against humanity, and against The Law of Nations.

Thus, disclosing the congressional intent to fight terrorism through a comprehensive approach that nevertheless must uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution. This comprehensive approach takes into account a wide range of activities in Philippine society - political, economic, diplomatic, military, and legal means - while decreeing in unmistakable terms that "human rights x x x shall be absolute and protected at all times,"^[569] even in the exercise by the executive department of its constitutionally recognized powers.

Under these terms, the ATA is clear on -

(1) what it means and what it covers;

(2) the aims it intends to achieve;

(3) the areas of its operations; and

(4) the limits it imposes in its implementation.

It, thus, aims to protect life, liberty, and property by following and fighting terrorism to the extent it defined in the areas it listed. It further characterizes terrorism for what it is - inimical and dangerous to national security and to the welfare of the people; and identifies it as a crime not only against the Filipino people, but against humanity and the Laws of Nations.

As written, therefore, the ATA uses a comprehensive approach that covers practically all aspects and stages of terrorism - before it takes place (prevention, deterrence, planning, and preparation); the tools and measures to address terrorism (international linkages, regulation of foreign fighters, designation, proscription, surveillance, and investigation); the act of terrorism itself (that includes its definition, the liability of persons who may be involved in terms of conspiracy, proposals, inciting to terrorism, recruitment and membership, and all stages of its commission from attempt to consummation); as well as the post-terrorism stage (that includes investigation, arrest and detention, retribution, and rehabilitation).

The ATA, significantly, has incorporated safeguards against abuses that could be committed in the course of enforcement, and for the protection of constitutional rights. The ATA, therefore, while proceeding against terrorism, at the same time takes pains to ensure that its terms shall be properly used by those empowered to enforce it.

From these perspectives - as shown and confirmed by its own provisions - the ATA is a very comprehensive statute that covers terrorism from its inception and preparatory stage, all the way to its punitive post-consummation stage.

Given the ATA's professed objective of covering all incidents of terrorism, this law should be read and understood in its totality rather than isolating its various parts and considering them as stand-alone provisions; every part should be related to the whole to fully understand the law's thrusts and objectives.

In particular, the ATA's definition of terrorism in its Sec. 4 should be read and understood in its totality, not in terms of specific terms or provisos dissociated from the whole. Its Implementing Rules and Regulations (IRR)^[570] should be considered as executive directives to the executive branch, particularly to law enforcers, for the implementation of the ATA. They are there as well for the guidance of the public - as ATA companion reading materials to fully understand how the government seeks to combat terrorism.

This IRR, incidentally, is not being questioned before Us in the present petitions. The Court, therefore, does not need to pass upon the validity of any of its provisions. For now, it is simply evidence of how the government understands and interprets the ATA for purposes of implementation. Sufficient occasions and opportunities should exist in the future for this Court to pass upon this IRR in the future cases where concrete facts are before Us, to which the ATA and its IRR have been applied.

The ATA's wide coverage is a policy choice that Congress has made and is not for this Court to question for as long as it does not intrude into areas that are outside of the concerns of Congress in battling terrorism.

None of the petitioners appear to have any active concerns in this regard although there are some faint echoes of objections to the preventative measures made available even before an actual attack materializes.^[571]

These echoes should not be heard for obvious reasons and in light of the lessons the country has learned so far from the HSA — when the bombs explode, the government might have already been remiss in its duties; terrorism has struck and people could already be dead or dying. Like the government, We choose to assume the risks that prior preparation entails and, accordingly, read the Constitution with these thoughts in mind.

On the whole, I do not see any intrusion into the ATA of extraneous matters not reasonably linked to terrorism and that the government has no reason to include within its terms. Thus, the objections I shall focus on - from the prism of police power and due process - relate only to the reasonableness of ATA's measures in battling terrorism.

What the Declaration of Policy and the terms of the ATA clearly disclose is that it is a penal law that addresses and penalizes terrorism. As discussed above, the ATA is therefore not subject to a facial challenge, only to an as-applied challenge based on actual violations of its provisions.

III. The ATA definition of terrorism

A. The origin of the ATA definition of terrorism

Terrorism, as the ATA presents it, is not a canned definition simply lifted from other terrorism laws.^[572] Like obscenity that, in the words of one U.S. Supreme Court Justice is hard to define but is obvious when seen,^[573] everyone knows and can recognize terrorism for what it is, but its definition has so far eluded universal unanimity. National interests, circumstances, and views vary among nations such that no one specific definition has been universally accepted.^[574]

The ATA (like other national laws on terrorism) gravitates around the UN Security Council issuances as this body has taken the lead in fighting terrorism at the international level and has cascaded its efforts to the different national jurisdictions.^[575] Prevention, control, and action against terrorism and terrorists, however, are largely up to the various national jurisdictions to undertake through their own local laws, with significant assistance now from the international community.^[576]

This is the reality that we and all other countries should recognize: although the international community provides assistance, the initiative, focus, and continued maintenance of vigilance and efforts against terrorism are our own as a sovereign nation.

B. The Influence on the ATA of Past Experience

The ATA, though taking cues from the UN lead, is the result of our own past sad experiences that were partly due to the weakness of our initial effort - the HSA. Thus, the terms of the present ATA are driven by the need to remedy the HSA's defects and deficiencies that, as our law enforcers bitterly remember, only produced only one conviction and one proscription in the 13 years that it was in effect.^[577]

C. Removal of Predicate Crime as Foundation

The first to go in re-formulating the approaches to terrorism under the ATA were the predicate crimes that the HSA recognized as the means to commit terrorism.^[578]

Under the ATA, Congress saw no point and no need to go to the process of proving predicate crimes as basis to secure a terrorism conviction. It thus opted to directly define the acts that constitute terrorism without any reference to established predicate crimes. The change is conceptual one; the old thinking was initially focused on predicate crimes to which the element of fear and terror were added to constitute the crime of terrorism. This was the punitive approach that focused on identifying the act of terrorism and mainly penalizing the terrorists after they have done their worst, i.e., after the attack had happened and deaths, injuries, and damages had been sown. The big conceptual leap under the ATA is to bypass these predicate crimes and to define terrorism directly by stating what it is and what Congress seeks to address and prohibit. Another significant step is to view terrorism preventively, i.e., to give primacy to the prevention of terrorist attacks from happening and to grapple with terrorism even before an attack happens to every extent possible.

D. Criminalizing all terrorism-related acts

The ATA, therefore, considers terrorism from all angles and from all its stages - from inception to post-consummation, from anywhere around the world, and by all terrorists whether Filipinos or foreigners. The ATA thus covers terrorism-related acts that happen way before an attack takes places; acts on or about the time an attack is happening; and acts after the attack happens.

Another way of putting it is that the ATA covers all activities that may contribute to, attend, facilitate, hasten, aggravate, or intensify a terrorist attack by addressing them separately from the terrorist attack itself. These are the reasons behind the present ATA Arts. 5 to 12 criminalizing preparatory, contemporaneous, and subsequent acts: they prevent future attacks from happening by nipping them in the bud, so to speak.