The ABCs of the Anti-Terror Law of 2020 (Part 2)

By Atty. Eduardo T. Reyes III

This is part 2 of the series that deals with the discussion on the legal implications of the decision of the Philippine Supreme Court on the constitutionality of the Anti-Terror Law of 2020 as embodied in Republic Act No. 11479.  Calleja v. Executive Secretary, G.R. No. 252578, et al. which was handed down by the Philippine Supreme Court on December 7, 2021 but was uploaded on its official website only on 15 February 2022, copiously discussed the nuances of the said law from another perspective which is known as  FACIAL AND AS-APPLIED CHALLENGE and VAGUENESS AND OVERBREADTH DOCTRINES.

Especially when what confronts Philippine courts are constitutional issues on free speech and expression, we often look to US jurisprudence to serve as guide to illumination.

Courts in the U.S. classify lawsuits that challenge the constitutionality of a statute into two categories: “facial challenges” and “as-applied challenges”. These modes of legal attack have been adopted in our jurisdiction, especially in cases involving free speech and expression.

Southern Hemisphere Engagement Network Inc. v. Anti-Terrorism Council et al., 2010, is the landmark jurisprudence that navigated the interrelated principles of overbreadth, vagueness, facial and as-applied challenge. This is the case which tackled the constitutionality of Republic Act No. 9372 which is the precursor of Republic Act No. 11479. Petitioners therein assailed for being intrinsically vague and impermissibly broad the definition of the crime of terrorism under RA 9372 in that terms like “widespread and extraordinary fear and panic among the populace” and “coerce the government to give in to an unlawful demand” are nebulous, leaving law enforcement agencies with no standards to measure the prohibited acts. Respondents, through the Office of the Solicitor General (OSG), countered that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases;  while RA 9372 regulates conduct, not speech.

To stress, the doctrines of “vagueness” and “overbreadth” do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess as to its meaning and thus would likely vary in their 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 flexing of the Government muscle. The overbreadth doctrine, meanwhile, 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. 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. (Southern Hemisphere Engagement Network Inc. v. Anti-Terrorism Council et al., 2010).

The doctrines of overbreadth and vagueness are analytical tools which were first developed under American Law for testing “on their faces” statutes in free speech cases or, as they are called in American law, First Amendment cases. These analytical tools may also be used in testing the validity of vague statutes “as-applied” to a party litigant. (Southern Hemisphere Engagement Network Inc. v. Anti-Terrorism Council et al., 2010).

The proper invocation of the doctrines of overbreadth and vagueness will also depend on whether the litigant, in seeking to declare a law unconstitutional, employs a facial or an as-applied challenge. Courts in the U.S., and as adopted in our jurisdiction, often classify lawsuits that challenge the constitutionality of a statute into two categories: facial challenges and as-applied challenges.

A “facial challenge” would involve 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. By its nature, it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts cast away the unconstitutional aspects of the law by invalidating their improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In (facial) overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face”, not merely “as applied for” so that the too general law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling”; deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.” (Southern Hemisphere Engagement Network Inc. v. Anti-Terrorism Council et al., 2010).

A facial challenge is allowed on a vague statute or one which is overbroad because of possible “chilling effect” upon protected speech. In essence, this doctrine affords a citizen that opportunity to question the constitutionality of a law because of “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”. (Southern Hemisphere Engagement Network Inc. v. Anti-Terrorism Council et al., 2010).

In a “facial challenge”, therefore, the proper subjects are those laws or other government regulations which clamp down certain restrictions or impose a burden on the freedom of speech (and other rights found in the First Amendment under American Law).

However, the rationale, as mentioned above, 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. With these in mind, therefore, under no case may ordinary penal statutes be subjected to a facial challenge. (Southern Hemisphere Engagement Network Inc. v. Anti-Terrorism Council et al., 2010).

On the other side of the plane, an “as-applied challenge” deals with extant facts affecting real litigants. Mounting a successful as-applied challenge to a law, which is alleged to be vague, will only result to the narrowing of the circumstances in which the statute may constitutionally be applied but without the necessity of striking it down entirely. For it seeks to invalidate a particular application of a statute only as regards persons specially or directly affected. This calls for the application of the rule that a court cannot take cognizance of a case unless the petitioner can show a personal and substantial interest. Here, the petitioner must clearly show that he/ she has sustained or is immediately in danger of sustaining some direct injury as a result of the enforcement of the statute.

Another distinction, while a facial challenge may be brought soon after a statute’s passage in the legislature, an as-applied challenge cannot be invoked to invalidate a law unless the same has been enforced. The law subject to a facial challenge is usually aimed at proscribing or regulating unprotected conduct but unnecessarily and potentially proscribes or burdens protected rights, which is the inevitable result of a nebulous and vague crafting of the law’s provisions. The petitioner, in a facial challenge, will question the statute not only as applied to him/her but as well as to third parties with the requirement of an allegation that the enforcement of the law infringes on their freedom of expression, or other First Amendment Rights, and that under no set of circumstances  shall the law be valid.

Facial challenges, therefore, recognize that injury to the individual is not the sole basis for the grant or recognition of standing before the courts as injury to a public right, or simply “third-party” standing, is an equally sufficient basis.

In a sense, a petition challenging the constitutionality of a statute under the “facial challenge” doctrine, is borne of altruism in that while the petitioner himself/ herself can speak, others may be too afraid to open their mouths, write an article, post a comment, or air out their thoughts in any way,  simply because of the chilling effect that the law creates on the people.

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).