Justice Carpio vs. Senator Lacson

By Modesto P. Sa-onoy

In the middle of our fears for survival against the pandemic, we were suddenly awakened to the passage of an anti-terrorism bill in the Senate and as quickly the same version was adopted in the House of Representatives. For such a measure of grave importance there was hardly any debate in both Houses of Congress and much less in the public fora.

However, the recent exchanges between a learned critic and the strong defense of the bill’s author give us at least a clearer and better understanding of this proposal. There had been voices of dissent but the criticisms of retired Supreme Court senior associate Justice Antonio Carpio as reported by the Philippine Star on June 18  carries a heavier weight in addition to the many opposition from the legal luminaries of the country.

The published positions of the author the bill and the critic will educate the layman and open the mind to the ramifications of this proposal on their lives. They can support or oppose it.

Let us begin with the points of Justice Carpio and then those of Senator Lacson. Our side comments are tiny voices of an ordinary Filipino.

Offhand, retired Justice Carpio says he will file a petition against a “very defective” measure with “many unconstitutional provisions” if President Duterte signed the anti-terrorism bill into law. The bill is now with the President and while we are still presenting the pros and cons, the President may have already signed the bill. That in fact should heighten public discussion.

According to Justice Carpio, the infirmities of proposed Anti-Terrorism Act will place the Philippines “permanently under a situation worse than martial law.” Thus, he would challenge the proposed measure before the SC should President Duterte sign the bill or allow it to lapse into law.

He cited the reasons for his assessment. One of these is the “sweeping powers granted to the Anti-Terrorism Council that usually belong to the courts.” The ATC is a body composed of nine members chaired by the executive secretary, members of the Cabinet and the executive director of the Anti-Money Laundering Council. The Council members are all presidential appointees and beholden to the President. In effect the power behind them is the President.

Carpio specifically objected to the following provisions for going against the Constitution or for being too vague and broad. For instance Section 29 allows the ATC to authorize the arrest of persons who are merely suspects of committing terrorism, in violation of the constitutional  requirement that warrants of arrests can be issued only by a judge and upon finding probable cause.

He said that the same section authorizes the detention of a suspect for as long as twenty-four days without being charged with a crime before the courts, eighth times longer than the three-day maximum period provided by the Constitution.

Justice Carpio pointed out that Section 25 of the proposed law “empowers the ATC to designate persons or organizations as ‘terrorists’ without being required to conduct hearings where they can air their side and rebut allegations. Recruitment to or membership in such organizations is penalized under Section 10 of the bill.

This is a dangerous provision as it gives the government, especially the President who controls the ATC to determine who is a terrorist and could be arrested and detained. Our only hope is that the President will be more circumspect, but what if he is not and strikes against his personal or political enemies? Although the targeted person or organization might be proven innocent, how could he be recompensed for his days in jail?

Under our present laws a person is entitled to bail for non-grave offenses. However, Justice Carpio pointed out that under Section 34 of the proposed Anti-Terrorism Act, a person can be kept under house arrest (like our lockdown) even if they are entitled to bail “as a matter of right in non-grave felonies or by reason of weak evidence in nonbailable offenses.”

Well, even if we were all innocent and not suspected or charged of a crime we had been kept under “house arrest” because of the pandemic. That “house arrest” was for all, but under the proposed law it is individual restriction on a person’s right to liberty.

Let us continue tomorrow with Justice Carpio showing more the constitutional defects of the proposed measure.