Part II
As a legal practitioner who is not really specialized in political science but science and business, I will try to write about this subject matter in a very simple and simplified manner which a layman can easily understand.
The constitution serves as the fundamental law on which our laws should be based. This serves as limitations as to what our lawmakers should enact as laws, and government officials’ actions in their public capacity. The Supreme Court held in the case of Biraogo vs. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, that the “the Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.”
1987 Constitution of the Philippines
The provisions of the Constitution that are pertinent to the proposed law are the following:
Article III
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it.
SECTION 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.
(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
Supreme Court’s Decision on Due Process
The first case that immediately comes into my mind when I think about due process is Ichong vs. Hernandez, G.R. No. L-7995 May 31, 1957. The Constitution of the Philippines has been written in 1987 but the provisions of the previous constitution as regards due process are exactly the same. Hence, this case is also applicable in the given situation. To quote the words of the Supreme Court, which I cannot give proper justification if I use my own for their beauty and purity:
“It has been said the police power is so far – reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be coextensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause.
b. Limitations on police power. — The basic limitations of due process and equal protection are found in the following provisions of our Constitution: SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution) These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)……
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature’s purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process test is applied. The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction.”
This decision is full of wisdom that sounds like a gong that reverberates up to the recent times. It is like a heart that beats up to this moment- very beautiful.
To go further with the decision of the Supreme Court, the latest decision that is akin to House Bill 6875 as regards the creation of ATC which can authorize warrantless arrest under Section 29, is the previously mentioned case Biraogo vs. The Philippine Truth Commission of 2010. In this case, the government during the time of Aquino, tried to form The Philippine Truth Commission of 2010 which has the power to investigate and make a recommendation to the Sandiganbayan which has been declared by the Supreme Court as unconstitutional as being violative of the Constitution. This, however, covers graft and corruption committed by past and present government officials while the Anti-Terrorism Council, the investigation of suspected terrorists.
Cases on terrorism are not new in the Philippines, to mention a few which have been joined in one decision, G.R. No. 178552 October 5, 2010: SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs. ANTI-TERRORISM COUNCIL et al; G.R. No. 178554 KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, et al; G.R. No. 178581 BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE vs. GLORIA MACAPAGAL-ARROYO et al.; G.R. No. 178890 KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE’S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE’S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, vs.GLORIA MACAPAGAL-ARROYO, et al.; G.R. No. 179157 THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA, vs. EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC); G.R. No. 179461 BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA’T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, vs. GLORIA MACAPAGAL-ARROYO, et al., the Supreme Court held that Human Security Act of 9371 is not violative of the Constitution. The Supreme Court decided that the petitioners lack locus standi, fail to present an actual case or controversy, and the law is not violative of freedom of speech as it regulates not speech but actions. It is worthy to note however, that the Supreme Court in these cases has tackled the issue on red tagging.
The Supreme Court stated that, “While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America (US) and the European Union (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations. Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372.”
Well, I believe that until now, there is no so such judicial petition or application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372, yet. Nonetheless, “on December 5, 2017, President Rodrigo Duterte declared the CPP and NPA as terrorist organizations after several attacks by the NPA against the government. The NDFP, the political wing of the communist rebellion is not included on the proclamation.”
It is interesting to write about the anti-terrorism measures implemented by other countries and I will try to write about it when I have time as my specialty is international business law particularly registration and protection of Intellectual Property Rights such as Patents, Trademarks, Industrial Design, Geographical Indications, Copyrights and related rights, and I feel compelled to write about the importance of registration and protection of these rights.
FiPa Legal Consulting 