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Justice Antonio T. Carpio (Ret.)

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No need for martial law

Hindi na kailangan ng martial law kapag napasa namin itong anti-terror bill,” Senate President Vicente Sotto III told media. I agree with Senator Sotto that under the Anti-Terrorism Act of 2020 (ATA2020), martial law will be superfluous.

Under the Constitution, when martial law is declared and the privilege of the writ of habeas corpus is suspended, a person arrested for rebellion must be charged in court within three days from arrest, otherwise he shall be released. Upon being charged, the court shall determine if there is “probable cause” for his arrest, that is, whether the crime of rebellion has been committed and he probably committed it.

If the court finds that the arrested person probably committed the crime of promoting rebellion, the court shall determine if there is strong evidence of guilt against him. If there is strong evidence, he shall remain in detention. If there is no strong evidence, he is entitled to mandatory bail as a matter of constitutional right, and upon posting such bail, he shall be released.

Under the ATA2020, the acts constituting terrorism may also be the same acts constituting rebellion, the only difference being the intent. In terrorism, the acts are committed with the intention to intimidate the general public or the government, or to destabilize the political, economic, or social structure of the country. In rebellion, the acts are committed with the intention of removing from the allegiance of the government or its laws any part of Philippine territory or its armed forces, or to deprive the President or Congress of their powers.

The ATA2020 authorizes the Anti-Terrorism Council (ATC), an executive body controlled by the President, to order the arrest of any person suspected of committing any act of terrorism. There is no need of a judicial warrant, and no need of probable cause as the suspect can be arrested even if he has not committed any act of terrorism. Mere suspicion is enough as there are no standards for the ATC’s issuance of an arrest order. The suspect can be detained for a total of 24 days without any judicial charge. These are all in blatant violation of the Constitution.

Under the ATA2020, once a judicial charge is filed, the court shall either hold the suspect in detention if there is probable cause he committed an act of terrorism punishable with life imprisonment and evidence of guilt is strong, grant him bail for lesser offenses or if evidence of guilt is not strong, or release him if there is no probable cause he committed terrorism. However, even if the arrested person is entitled to bail as a matter of constitutional right, the arrested person can be placed under “house arrest” instead of being granted bail. This “house arrest” violates the constitutional right of the accused to mandatory bail for offenses not punishable with reclusion perpetua or if evidence of guilt is not strong in offenses punishable with reclusion perpetua.

Under the Constitution, the President can declare martial law and suspend the writ of habeas corpus for not more than 60 days. Congress by majority vote can revoke such declaration within 48 hours from its declaration. In contrast, the ATA2020, once enacted into law, remains in the statute books forever until repealed by Congress or invalidated by the Supreme Court.

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The ATA2020 gives the President far greater powers than martial law with suspension of the writ of habeas corpus. Under the ATA2020, the entire country is in a permanent state of emergency more restrictive than martial law. Citizens have lesser protection of their civil liberties than under martial law.

Finally, the ATA2020 punishes speech that incites others to commit terrorism. The ATC, without a judicial warrant, can order the arrest of anyone for inciting to terrorism even before the incitement is made because the ATC is a “proactive” body as explained by Senator Panfilo Lacson, the principal author of ATA2020. This will have a devastating effect on freedom of speech and freedom of the press in the May 2022 presidential elections. The Human Security Act of 2007 (HSA2007) is automatically suspended one month before and two months after any election. In contrast, the ATA2020, which repeals and replaces the HSA2007, is not suspended during any election.

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