Listen to this afternoon’s resumption of oral arguments on the petitions vs Anti-Terrorism Act starting at 2pm:

Solicitor General Jose Calida will defend govt position.

1st virtual oral arguments and 1st time for CJ Alexander Gesmundo as top magistrate.

It’s all quiet outside the Supreme Court, with an hour left until the resumption of oral arguments on the Anti-Terrorism Act. All magistrates, lawyers and parties will be participating via Zoom for the first time in PH history.

Fifth day of the oral arguments on the Anti-Terrorism Act has just started. Counsels for petitioners and Solicitor General Jose Calida present.

Justice Mario Lopez has requested time to address petitioners. He points out dichotomy of terrorism from other crimes. Says add'l element of self-defense in terrorism sets it apart. Asks petitioners to clarify in their memorandum applicability of Southern Hemisphere, Disini cases

Solicitor General Jose Calida now making his case in defense of the Anti-Terrorism Act: "Terrorism must be outlawed in all civilized nations, not explained or rationalized...," quoting a Nobel laureate.

Calida says every second counts in the fight against terrorism. Says 37 "frivolous" petitions deserve outright dismissal. Among his bases: there are other parties like 2 Aetas in Zambales and other cases in Negros not before the Court who have direct, specific interests.

Calida says those who have pending terrorism cases have direct and personal injury while petitioners before the SC cannot make the same claim. "Any resolution in this case will be purely academic and hypothetical, clear waste of Court's time and resources."

Calida cites the political question doctrine as 2nd reason for junking the petitions vs Anti-Terrorism Act. Says the wisdom of passing an anti-terrorism law is a political question within the prerogative of Congress.

Calida's 3rd ground for junking ATA petitions: nullification of ATA would compromise international economic commitments and endangers economic survival as a nation.

Calida: If PH fails to comply with obligations to Financial Action Task Force (on Money Laundering), it would be treated as a "leper" either blacklisted or graylisted, which would lessen investor and lending confidence.

Calida: Graylisting would seriously affect country's international trade, remittances and humanitarian financial flows that support the country's economic growth and development.

Calida claims petitions vs ATA are insufficient in form and substance, another ground for moving for their dismissal. Some petitions, he said, lacked verification and certification against forum shopping or are defective while others did not state required attestation.

Still on formal defects of some petitions, Calida says some petitions do not have special power of attorney and some have unnumbered paragraphs.

Calida raises the issue of lack of locus standi among petitioners. Says petitioners do not have material and present, substantial interest in the case. Adds petitions violate rule on hierarchy of courts. Most of the petitioners invoked transcendental importance of the case.

Calida: Unlike Aetas who lost their liberty, petitioners did not suffer any direct injury.

Calida: Petitions do not present a justiciable controversy -- conflict of legal rights and assertion of opposite legal claims susceptible of judicial resolution. Says Court will decline passing upon constitutional issues through advisory opinions.

Calida rejects future surveillance and red-tagging as credible threats of prosecution to justify exercise of judicial power. Calida says SC not trier of facts and petitioners' direct resort to SC is not justified, quoting amicus curiae ret. SC Justice Francis Jardeleza.

Calida says facial challenge against ATA is improper. Cites cases saying penal statutes cannot be subjected to facial challenge. Constitutionality of ATA presumed, may only be assailed in actual criminal trial, he adds.

Calida says ATA is a valid exercise of police power, the inherent and plenary power of the State to prohibit acts for the safety and welfare of the society.

Calida claims ATA adopted restrictive means and narrowly-drawn mechanisms to avoid conflict with constitutional rights. Says there are checks and safeguards in the law to make sure grave abuse by implementers will be penalized.

Calida: Individual interest must give way to compelling State interest.

Calida says definition of terrorism is complete and is not vague nor overbroad. Cites overt act and criminal intent in the definition of terrorism.

Calida says nothing in ATA eradicates probable cause in warrantless arrest. Use of "suspected" in section 29 does not do away with probable cause standard.

Calida says ATA has sufficient safeguards to ensure data are lawfully acquired and properly handled. Surveillance, he says, requires court order.

Calida says ATA regulates conduct, not speech. Says essence of the Act is to regulate conduct; regulation of utterances only incidental and does not alter intent of the law. Thus, freedom of expression and free speech not violated, he says.

Calida: ATA doesn't violate right to speedy trial and speedy disposition of cases. Right to speedy trial attaches only during start of trial, not during detention under Sec. 29. Right to speedy disposition cases is flexible. Peculiarity of terrorism justifies period of detention.

Calida: Anti-Terrorism Council exercises only purely executive powers, including designation. Says designation is an administrative and executive function to facilitate financial actions like freeze orders; does not inflict punishment and is not ex post facto.

Calida: Anti-Terrorism Council cannot designate on the basis of suspicion but guided by standard of probable cause.

Calida: The government is not the enemy. Cites alleged incidents with CPP-NPA in Mindoro and Sta. Rosa, Laguna and with Abu Sayyaf in Sulu.

Witnesses have contested recovery of weapons in Sta. Rosa, Laguna but Calida cites "subversive" documents.

Calida faults petitioners for not speaking out against acts of terrorism and accuses them of complicity for their silence.

Calida quotes Duterte:
"Huwag kayong matakot kung hindi kayo terorista."

Calida calls on his associates to handle interpellation.
Supreme Court Associate Justice Rosmari Carandang now interpellates Calida's ASG Marissa Dela Cruz-Galandines. Galandines insists constitutional issues should be decided by the trial courts; SC not trier of facts.

Carandang to Galandines: You are mixing factual issues with constitutional issues. Asks if constitutional issues have been resolved by trial courts in criminal cases. Galandines could not cite particular case. She cites De Lima case which has not yet been resolved.

Carandang to Galandines: Should each of petitioners be charged first before they can go to SC for relief?
Galandines: Yes.
Carandang: Notwithstanding constitutional issues?
Galandines. Yes.
Carandang: Before trial courts?
Galandines: Yes (invokes locus standi).

ASG Raymund Rigodon differentiates definition of terrorism under the Human Security Act and Anti-Terrorism Act. HSA enumerates predicate crimes while ATA enumerates acts which, if committed for specific purposes, constitute terrorism.

Carandang: Can we not say more general definition puts petitioners under credible threat of prosecution?
Rigodon disagrees: Definition of terrorism is limited by specific intent and purpose.

Carandang: Why does govt say facial challenge not proper in this case?
Rigodon: ATA proscribes conduct, not speech. And it's a penal law which does not allow facial challenge.

Carandang asked about the ruling in Imbong which allowed facial challenge to cover statutes involving fundamental rights. Not satisfied with the answer, she advises Rigodon to address these in their memorandum.

Rigodon says Court cannot use tests other than void-for-vagueness test in facial challenges.

Carandang cites Imbong which applied strict scrutiny test in a facial challenge. Tells Rigodon to review case.

Rigodon says that even if section 4 on definition of terrorism is struck down, other provisions will survive because of the separability clause.

Maintains answer despite Carandang pointing out that other sections are based on definition in section 4.

Rigodon given time to confer with Anti-Money Laundering Council Secretariat Executive Director Mel Georgie Racela to explain what more can be done by PH to upgrade intl status. Tells Carandang PH already upgraded partly because of ATA passage, waiting for FATF to confirm status.

Carandang asking for specifics as to what needs to be proven to charge anyone under section 4. Rigodon cites overt acts, specific intent and unlawful purpose.

Carandang cites example: man holding a grenade around a church while a mass was being held.

Rigodon says facts not sufficient to constitute terrorism since no evidence as to his intent and purpose.

If man throws grenade, Rigodon says case is murder or homicide.

Carandang asks Rigodon, can police officer at the time of the arrest distinguish between terrorism and other crime. Rigodon says no because intent is a mental state of mind, unless police can secure special knowledge on specific intent.

Carandang to Rigodon: You are in effect admitting that from the example given that enforcement officers are given wide discretion based only on his perception of terrorism?

Rigodon insists need for personal knowledge on intent; says man can be apprehended only for common crime.

Carandang quizzes Rigodon on safeguards under HSA removed under the ATA. Carandang ended up enumerating the safeguards deleted.

Carandang cites another example -- riot during EDSA revolution, someone died, is this terrorism?

Rigodon: If intention was to harm people or to cause death or serious physical injury and the purpose is to sow fear.

Carandang cites riot at the US Capitol. How can you say there is no terrorism or the act done is an act of terrorism?

Rigodon: Depends on intent.

Carandang: Intent is in the mind. How can you extract intent?

Rigodon: Look at intent through overt acts.

On Marawi siege, Carandang asks how those responsible will be charged if committed after the passage of ATA.

After a short pause, Rigodon answers they can be charged with terrorism.

Carandang: Since "inciting" is not defined under ATA, can we use "inciting" under Revised Penal Code to "inciting to terrorism"?

Rigodon says no because terrorism is different from rebellion.

Asks Rigodon to study a certain publication.

Carandang asks about parameters in determining reasonable probability of incitement under IRR, not in the law.

Rigodon says this is valid implementation of law.

Carandang: Is this not delimitation?

Rigodon: It can prevent law enforcers from arbitrary implementation

Carandang: Does this not amount to undue delegation? (determining reasonable probability of incitement under IRR)

Rigodon: I think this is one example of proper implementation of the law.

Carandang cites case of public school teacher offering P50M to one who kills the president. Inciting to terrorism?

Rigodon: No.

Carandang: Politically powerful defeated presidential candidate gave speech in Congress claiming fraud.

Rigodon: No.

Carandang cites example of 2 men who planted a bomb and planned an attack but were caught.

Rigodon: Attempted act of terrorism, separately prosecuted for conspiracy to commit terrorism.

Carandang asks what if bomb exploded?

Rigodon cites other possible charges.

Carandang points out overlap in crimes that may be charged. Will this not be unconstitutional?

Rigodon says possible case of double jeopardy may only be cited as a defense in the second case. Insists rationale of punishing conspiracy is to deter attacks.

On section 10 of ATA on membership, Carandang asks how to deal with inactive members?

Rigodon: Says it will depend on situation, citing "sleeper cells" of activists.

Carandang asks what a former member of a terrorist org 20 years ago can do to relieve himself of effects of being listed as a member.

Rigodon says public renunciation or before govt agency.
Admits not aware about DOJ's move to formulate rules on delisting.

Carandang: Is writ of amparo a remedy? (on being listed as part of a terrorist org)

Rigodon: Writ of habeas data is proper remedy.

Rigodon says ATA is not ex post facto law because it only punishes new or continuing membership in a terrorist organization.

How to define active membership? Rigodon says continued membership even after knowledge that organization has been proscribed by courts or designated as terrorists.

On material support, Rigodon says that if humanitarian assistance is not recognized by the State, it might be considered material support to terrorism.

Who are recognized so far? ICRC, PRC and other state-recognized partners.

Carandang: State is not recognizing the church?

Carandang cites issue of community pantries, asks what is the basis of govt, some govt officials in associating "people with good heart" with NPA?

Rigodon: No personal knowledge. Asks if National Security Adviser can answer.

Carandang says she'll ask Gen. Esperon later.

On surveillance, Carandang asks Galandines if strict scrutiny test should be used in surveillance?

Galandines says no because surveillance envisioned under section 16 has gone through Court of Appeals and there's a written order.

Carandang points out that before govt can obtain written order, they rely on intelligence reports. What is basis for intel reports?
Galandines eventually admits they conduct informal surveillance.
Carandang: Isn't govt violating right to privacy?
Galandines: National security

Carandang: Govt is amenable to SC prescribing rules for the issuance by CA of an order for surveillance?

Galandines: Yes.

Carandang asks why the privilege of the priest-penitent communication was excluded as exception in the ATA?

Galandines initially says it's not excluded. But later says it's for Congress to answer.

Carandang: Takot sila sa mga priests?

Galandines: Siguro po.

Carandang asks for quantum of evidence for CA to allow a person to be surveilled?

Galandines: Probable cause.

Carandang: Which type? For search warrant? Arrest warrant? Filing of criminal info?

Galandines: Probable cause under ATA. Higher or maybe it is a low standard.

Galandines says designation is not needed for surveillance but surveillance may lead to designation.

Carandang: What is the first step?

Galandines: Designation not a prerequisite for surveillance. Surveillance is not a prerequisite for designation.

Carandang: If surveillance comes first before designation, what would be the basis for the surveillance?

Galandines: Intelligence reports, operational surveillance.

Galandines: A Court of Appeals authorization is a condition precedent for the conduct of surveillance.

Carandang: Govt position that no surveillance without CA authorization?

Galandines: Yes. (clarifies this is communication surveillance)

Galandines says the consequence of designation is the freezing of assets of the organization.

Carandang: Are you not compromising position of govt? That is the only effect?

Galandines: It is without prejudice to eventual filing of action for proscription.

Galandines insists designation is not a judicial function. Under ATA, Anti-Terrorism Council does not exercise judicial function. Designation is an administrative procedure that would trigger freezing of assets.

Carandang: This would not lead to arrest?

Galandines: No.

Carandang now asking procedure for obtaining proscription. Are you at liberty to give information?

Galandines says NICA to answer, represented by Gen. Esperon.

Pressed for details on preliminary proscription, she asks for chance to think about proscription.

Galandines agrees that SC can promulgate rules and regulations regarding proscription.

On section 29, the controversial section on warrantless arrest and extended detention, Carandang asks what would be personal knowledge of ATC to authorize arrest?
Galandines says ATC does not issue warrants of arrest.
Carandang: Isn't auth to detain equivalent to auth to arrest?

Carandang points out one is arrested before detained?
Galandines disagrees, saying ATC only authorizes extended detention. Law enforcers make the arrest.

Carandang: Law enforcers would not do it without auth from ATC.

Galandines insists ATC has nothing to do with arrests.

Galandines insists law enforcers would make arrests based on valid warrantless arrest and could secure permission from ATC to detain person beyond period under Art. 125 of Revised Penal Code.

Carandang: Is that position of govt? That's not written in the law.

Carandang asks if extended period for detention under ATA of up to 24 days violates Constitution?

Galandines says the limits of periods of detention in Constitution for detention limited only to specific crimes, which does not include terrorism.

Galandines says designation does not lead to arrest nor detention. Designation only leads to freezing of assets without prejudice to filing of proscription case.

Carandang: I think you are not ready to answer this but the question of the Court is very clear. You clarify that in the memorandum that the government will submit.

On petitioners' claim that passage of ATA was railroaded and attended with grave abuse of discretion, Galandines disagrees. Says it took several months before law was passed; believes law went through careful deliberations by Congress.

Before adjourning, Supreme Court allows Atty. Neri Colmenares to make a manifestation to respond to Calida's mention of his name and his election paraphernalias in the raid in Laguna. Colmenares says that even if true, that does not constitute a crime.

Colmenares says Calida's imputation of a crime is uncalled for. The action of a person supporting a candidate cannot be imputed to the candidate. Calls this red-tagging. Says red-tagging is a deadly offense. It is a threat to life, liberty and security...This is dangerous.

Colmenares: The fact that our paraphernalia, if true, were found there does not mean we're terrorists and mentioning us in the opening statement implicates us in that crimes and that is very dangerous for us, Your Honor, and another type of red-tagging.

Supreme Court adjourns oral arguments on Anti-Terrorism Act, to resume on May 4, 2021.