REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

CENTER FOR INTERNATIONAL LAW

(CENTERLAW), INC., represented by its
President, JOEL R. BUTUYAN, who is also
suing in his own behalf; and members ROGER R.
RAYEL, GILBERT T. ANDRES, CRISPIN
FRANCIS M. JANDUSAY, KIMBERLY
ANNE M. LORENZO, GELIE ERIKA P.
ESTEBAN, ELREEN JOY O. DE GUZMAN,
NICOLENE S. ARCAINA, and SHAWN
DUSTIN B. COSCOLUELLA;

FOUNDATION FOR MEDIA

ALTERNATIVES, INC., represented by its
Executive Director, LIZA GARCIA;
DEMOCRACY.NET.PH, INC., represented by
its Trustee, CARLOS ADRIAN A.
NAZARENO; VERA FILES, INC.,
represented by its President, ELLEN T.
TORDESILLAS, who is also suing in her own
behalf, and its journalists MEEKO ANGELA R.
CAMBA, ANTHONY L. CUAYCONG,
REIVEN C. PASCASIO, MERINETTE A.
RETONA, ROSALIA C. REVALDO,
ELIJAH J. RODEROS, CELINE ISABELLE
B. SAMSON, IVEL JOHN M. SANTOS, and
ESTRELITA C. VALDERAMA; and

Professors of the Lyceum of the Philippines

University College of Law, namely, DEAN MA.
SOLEDAD DERIQUITO-MAWIS,
PROFESSOR CARLO L. CRUZ,
PROFESSOR MARILYN P. CACHO-
DOMINGO, PROFESSOR SENEN
AGUSTIN S. DE SANTOS, PROFESSOR
MARLA A. BARCENILLA, PROFESSOR
ROMEL REGALADO BAGARES,
PROFESSOR JUAN CARLOS T. CUNA, and
PROFESSOR JOHN PAUL ALZATE DELA
PASION,

Petitioners, G.R. No. 252905

 -versus-

SENATE OF THE PHILIPPINES; HOUSE

OF REPRESENTATIVES OF THE
PHILIPPINES; ANTI-TERRORISM
COUNCIL; EXECUTIVE SECRETARY as
represented by SALVADOR C.
MEDIALDEA; ANTI-MONEY
LAUNDERING COUNCIL as represented
by Executive Director Atty. Mel Georgie B.
Racela; DEPARTMENT OF JUSTICE as
represented by Secretary Menardo I.
Guevarra; DEPARTMENT OF BUDGET
AND MANAGEMENT as represented by
Secretary Wendel E. Avisado;
PHILIPPINE NATIONAL POLICE as
represented by General Archie Francisco
F. Gamboa; ARMED FORCES OF THE
PHILIPPINES as represented by
Lieutenant General Gilbert Capay, and;
NATIONAL BUREAU OF
INVESTIGATION as represented by
Director Eric Bito-on Distor;
Respondents.
x------------------------------------------------------x

MOTION FOR PARTIAL RECONSIDERATION

PREFATORY STATEMENT

xxx In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and among
the integral or constituent units thereof.

-Angara v. The Electoral Commission (G.R. No. L-45081, July 15, 1936)

When the issue of the constitutionality of laws is brought into

question, the task of the judiciary has always been one of balance --
how to balance the powers of the State with the liberties of individuals.
It is in this balancing that the Constitution, the text central to our
democracy, freedom and way of life, truly becomes a living document.
In doing so, the Supreme Court affects not only the law but also the
lives of everyday people. It is with these people in mind that the Court
must make its decision. The State is, after all, a collection of people.
And without these people, the State cannot exist.

2
 It is on this premise of people, specifically lawyers, academics,
and journalists, that this Motion asks this most Honorable Court to
reconsider its decision as to the constitutionality of certain provisions
of the Anti-Terrorism Act of 2020. The Petitioners in this Motion for
Partial Reconsideration argue along the lines of the freedom of speech
and its cognate rights as well as the broader network of international
laws and obligations that the state is bound to fulfil.

The arguments forwarded in this Motion for Reconsideration are

not new. This is not the first time they are being made before this
Honorable Court within the context of questioning the
constitutionality of the Anti-Terrorism Act. Petitioners are, through
this Motion for Partial Reconsideration, respectfully pray that this
Honorable Court strike down the following provisions of the Anti-
Terrorism Act for being repugnant to the Constitution and the
Philippines’s obligations under International Law.

Ultimately, Petitioners respectfully pray that the High Court

uphold its sacred constitutional duty to protect the institutional
independence and integrity of the Judicial Department by striking
down provisions of the Anti-Terrorism Act that unconstitutionally
empower the Executive Department, acting through the Anti-
Terrorism Council, to exercise the judicial power and authority solely
vested by the 1987 Constitution upon the Judiciary.

TIMELINESS AND JUSTIFICATION

1. On 15 February 2022, Petitioners, through counsel,

received the Decision of this Honorable Court dated 07 December
2021.

2. Petitioners have fifteen (15) days or until 02 March 2022, to

file a motion for reconsideration. Thus, this Motion for Partial
Reconsideration is filed on time.

ISSUES FOR RECONSIDERATION

(B.1) Whether Section 4 defining and penalizing the crime of

“terrorism” is void for vagueness or overbroad in violation of the
constitutional right to due process, free speech and expression, to be
informed of the nature and cause of accusation, and non-detention
solely by reason of political beliefs.

3
(2) Whether Sections 5 to 14 defining and penalizing threats to
commit terrorism, planning, training, preparing, and facilitating
terrorism, conspiracy, proposal, inciting to terrorism, material
support, and other related provisions, are:
a. void for vagueness or overbroad in violation of the above-
stated constitutional rights, as well as the freedom of religion,
association, non-detention solely based on political beliefs,
and academic freedom; and

(6.) Whether the following powers of the ATC are unconstitutional:

a. Power to designate terrorist individuals, groups, and
organizations under Section 25 for:
i. encroaching upon judicial power and the Supreme
Court’s rule-making power;
ii. xxx
iii. Violating due process and constitutional rights due to
the lack of clear parameters for designation, absence of
notice and hearing prior to designation, and lack of
remedies to contest wrongful designation.
b. xxx
c. xxx
d. power to authorize arrest and detention without judicial
warrant based on mere suspicion under Section 29 for
violating the separation of powers (executive and judicial),
and the constitutional rights to xxx;

(8.) Whether the detention period under Section 29 of RA No. 11479

contravenes the Constitution, the Revised Penal Code (RPC), the Rules
of Court, and international obligations against arbitrary detention;

(10.) Whether Sections 35 and 36, in relation to Section 25, on the

AMLC’s authority to investigate, inquire, and examine bank deposits,
and freeze assets, violate the separation of powers (judicial), as well as
the constitutional right to due process, and the right against
unreasonable searches and seizures;

(11.) Whether Section 49 on the extra-territorial application of RA No.

11479 violates the freedom of association and the prohibition against
ex post facto laws and bills of attainder

4
 ARGUMENTS
FOR THE PARTIAL RECONSIDERATION OF THE
07 DECEMBER 2021 DECISION

I. The “main part” of Section 4 of the ATA violates the right

to free speech. A facial challenge can therefore be assailed and a
presumption of unconstitutionality must arise in dissecting Section 4.

II. Sections 5, 6, 8 and 9 of the ATA are facially vague and

cannot be cured by legal standards beyond the four corners of the law.

III. The IRR cannot cure the inadequacies of the law it

implements.

IV. The ATA fails to satisfy the three-part test of the

International Covenant on Civil and Political Rights.

V. Section 10, in its entirety, is the proper subject of a facial

challenge.

VI. Sub-paragraphs (b) and (c) of the second paragraph of

Section 10 are unconstitutional for being vague and overbroad.

VII. The first and third paragraphs of Section 10 must be struck

down for being vague, overbroad and failing to meet the strict scrutiny
test.

VIII. Section 12 of the ATA on providing material support and

training encompasses professional advice.

IX. The extraterritorial application of the ATA under Section

49 cannot be taken separately as Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of
the ATA.

X. There is no international obligation to automatically adopt

the United Nations Security Council Consolidated List.

XI. The Philippines’ compliance with its established

international obligations, including core human rights treaties, remain
paramount to a purported international obligation of automatically
adopting the Consolidated List.

XII. The third mode of designation fails to meet the strict

scrutiny test and is overly broad.

5
 XIII. Detention without judicial warrant of arrest under Section
29 is not the “least restrictive means” under the Strict Scrutiny
framework.

DISCUSSION

THE “MAIN PART” OF SECTION 4 OF THE

ATA VIOLATES THE RIGHT TO FREE SPEECH.
A FACIAL CHALLENGE CAN THEREFORE BE
ASSAILED AND A PRESUMPTION OF
UNCONSTITUTIONALITY MUST ARISE IN
DISSECTING SECTION 4.

3. With all due respect to this Honorable Court, the totality of

Section 4 of the ATA defining acts of terrorism abridges the right to
freedom of speech thus the doctrines of strict scrutiny, overbreadth,
and vagueness must be applied as the incomprehensible definition of
terrorism is touched upon both in the main part and the proviso.

4. Since the whole of Section 4 violates the right to freedom

of speech, a presumption of unconstitutionally arises against it as
correctly pointed out by the Court citing Chavez v. Gonzales1 noting that
it becomes the burden of the government to establish the assailed law’s
constitutionality.

5. A facial challenge can likewise be assailed pertaining to the

main part of Section 4 since it still touches upon the right to free speech
even excluding the proviso portion.

6. In its Decision, the Court established that Section 4

defining the acts of terrorism can be broken into two parts; first
containing the main part pertaining to conduct and the second one
containing the proviso. The court further defined that the main part
provides for the actus reus, the mens rea, and the corresponding
imposable penalty.

7. Petitioners submit that the Honorable Court partially

reconsider its Decision and declare the main part of Section 4 to be
unconstitutional as it did so with the “not intended clause” of the
proviso portion thereof.

8. The Court declared in its Decision that the main part of

Section 4 could not be assailed through a facial challenge because it

1 Chavez v. Gonzales, G.R. No. 168338, February 15, 2008.

6
only pertained to conduct and that taken separately, the definition as
described in the main part did not affect free speech.

9. The Honorable Court is mistaken in its position that the

main part does not touch upon free speech.

10. Petitioners maintain their position that the term “acts”

defined under Section 4 of the ATA are incomprehensible and
overbroad. The acts as worded in the ATA can necessarily include all
actions.

11. In its common meaning, an act refers to “a thing done”

which by logic includes all forms of action including speech.

12. In its discussion, the Court noted that the term “regardless
if the stage of execution” as worded in Section 4 could not be taken to
mean that it includes thoughts and mere inceptions of ideas. This is
well taken by Petitioners; however, a stringent examination of the
word “act” must also be applied given that the term act is so broad as
to include everything including speech as already emphasized.

13. The Court did not agree in the Decision that Section 4
deserved a total invalidation due to a perceived vagueness of how
terrorism is defined under the ATA and noting that the crime of
terrorism must be construed by taking together both the actus reus and
the mens rea.

14. Assuming arguendo that we take into consideration both

the actus reus and mens rea as described in the “main part” of Section 4,
it is still incomprehensible to a person with common intelligence and
the application thereof is so vague and overbroad that it can still
include all actions of free speech.

15. This Court explained both doctrines in the case of Estrada

v. Sandiganbayan2, to wit:

The void-for-vagueness doctrine states that "a

statute which either forbids or requires the
doing of an act in terms so vague that men of
common intelligence must necessarily guess at
its meaning and differ as to its application,
violates the first essential of due process of
law." The overbreadth doctrine, on the other
hand, decrees that "a governmental purpose
2 Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001.

7
 may not be achieved by means which sweep
unnecessarily broadly and thereby invade the
area of protected freedoms.3

16. The definition of terrorism in Section 4 of the ATA does not

pass the test laid out in Estrada even when taking into consideration
the mens rea of the main part precisely because the wordings as used
in the actus reus are incomprehensible, especially when highlighting
the word “acts.”

17. In the Court’s discussion on Section 4 of the ATA, it

referred to Dans v. People4 wherein a simple test can be used to
determine the invalidity of a law through the question “What is the
violation?” and that the whys and hows to follow up are evidentiary
matters that must be proven due to the uniqueness of each case.

18. The same question is thus projected to would-be supposed

violators of the ATA in that when they are faced with the question of
“What is the violation?” in correlation to the word “acts”, and in
general, how Section 4 defines terrorism? Taking that into
consideration, it then confuses citizens on what acts would constitute
a violation defined as terrorism.

19. As discussed correctly by the Court in its declaration that

the proviso portion is unconstitutional, the same must be applied
when analyzing the wording of the word “acts.”

20. There is no clear definition in Section 4 of the ATA as to

what “acts” constitute terrorist acts. If taken in the basic meaning, all
forms of acts including speech and communication will be
criminalized under Section 4. This means that any manifestation of
speech or forms of speech will qualify as criminal acts under the
statute.

21. “Acts” can include any physical overt actions not

including those that have been excluded under the proviso portion
which are acts of advocacy, protest, dissent, stoppage of work,
industrial or mass action, and other similar exercises of civil and
political rights. Actions that have not specifically been included in the
proviso are still protected acts under free speech that must be taken
into consideration by the Court.

3 Id.
4 Dans v. People, G.R. No. 127073, January 29, 1998.

8
 22. There must be a presumption of unconstitutionality over
the use of the catch-all word “acts” as used in the ATA.

23. Though the “not intended clause” of the proviso was

declared as unconstitutional by the Court in its Decision, there must
be clarification as to what the word “acts” particularly mean and
include particularly because speech is encompassed by the word
“acts” in general.

24. Petitioners disagree with the holding of the Court that a

person of common intelligence could understand Section 4(a) of the
ATA and the other relevant portions of the main part of Section 4.

25. The main part of Section 4 by itself still confuses a person

of common intelligence precisely because “acts” is so broad a term it
necessarily includes all form of actions.

26. As illustrated by Petitioners in their Petition, Section 4 of

the ATA punishes the assembly or acts of advocacy of persons even
when there is no outward manifestation of violence.

27. Even without considering the proviso, the above-

mentioned example can be confused to be integrated with the word
“acts” as stated in Section 4.

28. Assuming arguendo that the proviso exempts the

assembly as illustrated above, other “acts” that are not enumerated
under the proviso but are linked to free speech such as writing,
artwork, social media, mass media, and many other actions or
mediums can also be intertwined with what is being punished under
Section 4 without being exempted.

29. This is precisely because the word “acts” in itself is so

broad that it needs a clarification from this Honorable Court. Even
though it was discussed by the Court that the main part of Section 4
pertains to conduct and not mental acts or thought and that the “act”
must be taken in total with the purpose or intent, it is still not obvious
how the act can be subjected to a clear definition when it is up to an
arresting officer to presume the intent or purpose of the act being done.

30. If any action under Section 4 is to be taken together with a

presumed intent or purpose, then it will yet leave unbridled discretion
on the part of the arresting officer to claim that any form of action,
including free speech acts, is qualified to be an act of terrorism.

9
 31. Further, not only is the term “acts” vague and broad but it
is also coupled with “intended to cause” in Section 4(a), 4 (b), and 4(c)
which makes the phrase “acts intended to cause” as punishable acts
under Section 4.

32. Although the Court ruled that mental actions are not
punishable, statutory analysis would reveal that “acts intended to
cause” necessarily include preparatory acts which have not resulted in
violence or any of the effects listed in the actus reus of Section 4.

33. Not only does this encompass all actions protected under
the Constitution, it should also be presumed to be unconstitutional for
being too broad as a catch-all phrase the law enforcement are hoping
to utilized and most probably abuse when enforcing the ATA.

34. The Court further averred that the terms under the ATA
must be construed depending on the given case that has been assailed
as an act of terrorism and that in the absence of such facts, a formulaic
understanding of the terms could therefore not be established.

35. Taking into consideration that there is a presumption of

unconstitutionality, the wordings of penal laws must be strictly
scrutinized against the government seeking to enforce the ATA. Thus,
the doctrines of void for vagueness and overbreadth must still be
applied to the main part of Section 4.

36. The law is so vague that it will have an in terrorem effect

and it will deter persons from engaging in protected activities. Due to
the vague definition of terrorism in Section 4 of the ATA, there exists
the danger of arbitrary prosecution against any citizen of the country
who merely exercises his/her right to freedom of speech and of
expression.

37. As pointed out by Petitioners in their Petition, an

important aspect of the vagueness doctrine aside from actual notice is
the requirement that legislatures place reasonably clear guidelines for
law enforcement officials and triers of fact in order to prevent arbitrary
and discriminatory enforcement.5

38. This has not been done under the ATA, the discretion is
still left upon the arresting officers of what “acts intended to cause”
harm mean when taking into consideration actions that are interpreted
to be acts of terrorism.

5 See Smith v. Goguen 415 U.S. 566 (1974).

10
 39. Clearly, the law should have a well-defined classification
of specific actions or conduct that need to be punished. A bold and
sweeping statement that all “acts” for as long as they are intended to
cause harm are already acts of terrorism is not acceptable under the
microscope of the presumption of unconstitutionality. Such violates
both the void for vagueness doctrine and the overbreadth doctrine.
40. The ATA lacks the basic guidelines that would guide law
enforcers to actually clearly distinguish what actions or conducts could
be considered as acts of terrorism. It should not be left to law enforcers
to decide on a case-to-case basis what these acts are especially since the
law itself does not define the “acts” being punished.

41. In comparison, the definition of terrorism in other

international sources of obligation do not merely use “acts” in
describing what terrorism is.

42. In the UN’s proposed Comprehensive Convention on

International Terrorism6, the word “offence” is used instead of “acts”
to define terrorism and that offence should cause death, serious bodily
injury, or damage to property.

43. On the other hand, Title II, Article 3 of Directive (EU)

2017/541 of the European Union7 makes use of the term “intentional
acts” to defined terrorism coupled with a very detailed list of aims that
should accompany the intentional act in order for the act to be
classified as terrorism.

44. Additionally, The UK Terrorism Act of 20008 defined acts

of terrorism as “the use of threat or action” along with a detailed list
of actions that comprise terroristic acts but excluding acts coupled with
just mere intent.

45. The 2002 Terrorism Act of Singapore9 likewise defines acts

of terrorism as “the use or threat of action” without taking into account
acts with mere intent.

46. The afore-mentioned definitions of acts of terrorism where

all mentioned by this Court in its Decision where they were pertained
to and stated to be congruent with how “acts of terrorism” is defined
in the ATA.

6 <https://undocs.org/en/A/59/894> accessed on 01 March 2022.

7 European Union, Directive (EU) 2017/541, Title II, Article 3, March 15, 2017.
8 U.K. Terrorism Act 2000, Part 1, Section 1.
9 <https://sso.agc.gov.sg/Act/TSFA2002> accessed on 01 March 2022.

11
 47. Petitioners disagree. The big difference with how terrorism
is defined under the main part of Section 4 is that the ATA criminalizes
“any kind of action” that is “intended to cause” the qualifiers listed
such as serious bodily injury, death, or endangerment to a person’s
life.

48. In that regard, how terrorism is defined by our foreign

contemporaries are wholeheartedly different because they do not
include “acts intended to cause” as part of terroristic acts. Rather,
specific wordings such as “offences” or “intentional acts” were used
and were notably coupled with qualifiers that such actions need to
have caused or resulted in violence or endangerment.

49. In how terrorism is defined under the ATA, any kind of

action for as long as the intent is to cause any of the negative results
listed will already be considered to be acts of terrorism which means
that actions involving free speech even in their preparatory stage is
included.

50. It must be noted that even though the international

community has yet to adopt a uniform definition of terrorism, the one
that is being presented before us through the ATA violates the basic
fundamental right to free speech since “acts intended to case” which
are not listed as exempted under the proviso will necessarily be
touched upon by the main part of Section 4.

51. The Court’s notion that the definition of terrorism in

Section 4 is not overbroad since it fosters a valid state policy to combat
terrorism and protect national security and public safety is unfitting
since under the presumption of unconstitutionality, the rights of the
country’s citizens, as enshrined in the Constitution, must be at the
forefront when adapting laws that affect their basic human rights,
including free speech.

52. The Court also mentioned that the main part of Section 4
of the ATA is not overbroad and that it was created by Congress not
out of sheer arbitrariness but rather to be at par with other countries
taking the same approach, as well as to be at par with what
international standards and definitions have established.

53. Additionally, it was also pointed out in the Decision that

Congress could not be expected to enumerate all specific acts which
may be resorted to by terrorists in pursuing their goals and because of
that, Congress should also not be compelled to use overly specific
terminologies in defining terrorism.

12
 54. Although Petitioners somewhat agree with the notion that
Congress cannot reasonably be expected to include specific acts that
might comprise what is being punished under the ATA, it is also a
reasonable expectation that certain guidelines and definitions must
still be put into place in order to avoid confusion as well as to do away
with any arbitrary application of the law.

55. For example, the main part of Section 4 talks about acts that
endanger a person’s life. This provision lacks the sufficient guidelines
to clearly indicate which acts and to what extent cover endangering
another person’s life and could also be intertwined with other
punishable acts under the Revised Penal Code such as attempted
homicide.

56. To reiterate, the reckless liberality in defining what acts

will amount to terrorism will be left in the hands of law enforcement
which violates the right to substantive due process and which will
result in the unlawful application of the law. This will give law
enforcement officers the unbridled discretion in carrying out the
provisions of the statute.

57. The main part of Section 4 is unconstitutional in as much

as the “not intended clause” proviso is unconstitutional for
transgressing the constitutional right to free speech.

58. The curtailment of freedom of speech through the

vagueness and overbreadth of the penal statute results into a chilling
effect. Hence, a facial challenge must be allowed to be mounted against
the main part of Section 4, or else, persons are silenced into inaction
for not knowing whether their speech constitutes a crime under an
overbroad or vague law.

59. The evolving nature of terrorism is no reason to trample on

the protected rights of individuals enshrined under the Constitution.
Rather, in coming up with an effective law to combat modern
terrorism, the government must ensure that the first thing to consider
is the protection of basic human rights.

60. In view of the foregoing, a facial challenge upon the main

part of Section 4 of the ATA consequently requires that the same be
declared to be unconstitutional since the definition of terrorism therein
necessarily includes free speech as part of the punishable acts.

13
SECTIONS 5, 6, 8
AND 9 OF THE ATA ARE
FACIALLY VAGUE AND CANNOT BE CURED
BY LEGAL STANDARDS BEYOND THE FOUR
CORNERS OF THE LAW.

61. This Court has previously laid down the test for
determining whether a statute is vague, as follows:

[A] statute establishing a criminal offense must

define the offense with sufficient definiteness
that persons of ordinary intelligence can
understand what conduct is prohibited by the
statute. It can only be invoked against that
species of legislation that is utterly vague on its
face, i.e., that which cannot be clarified either
by a saving clause or by construction.10

62. In its 07 December 2021 Decision, this Honorable Court

upheld various provisions of the ATA by narrowly construing broad
brushstrokes through legal standards that the ATA itself does not
provide for. This is aptly illustrated in the Court’s discussion on
Section 5 the ATA, to wit:

[T]he Court, pursuant to its duty to interpret the law,

appears to have consistently interpreted threat to refer only
to those “credible” threat statements, the determination of
which shall be based on the circumstances under which the
statements were made. Notably, Rule 4.5 of the IRR
appears to have adopted the “credible” threat standard
when it restricts the application of Section 5 only to
communications made “under circumstances which
indicate the credibility of the threat,” consistent with the
foregoing judicial interpretation. For these reasons, the
Court finds that Section 5 is not impermissibly vague.

10 Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 29 2004.

14
 63. Similar rationales were echoed for Sections 6,11 8,12 and 9,13
and 29 all of which relied on legal standards that go beyond the face of
the ATA.
64. Respectfully, the Court’s approach runs counter to the
nature and scope of a facial challenge which, as the doctrine nominally
entails, impugns the constitutional violation on the face of the
statute. The judicial invocation of standards that are not found within
the ATA is thus misplaced.

65. Rather than speaking to the ATA’s specificity, the

invocation of third-party standards exposes the law’s obscurity. It
reveals that the ATA has indeed left gaps that remain to be filled, and
that the Honorable Court itself has attempted to fill in its 07 December
2021 Decision. But in so doing, the High Court looked beyond the
contours of the ATA and implicitly and effectively acknowledged that
Sections 5, 6, 8, and 9 of the ATA are broadly worded and require
further qualifications that the ATA, on its own, simply failed to
provide.

11 In upholding Section 6 of the ATA, the Honorable Court ruled:

Accordingly, the foregoing construction should foreclose any interpretation

that would include “skill” as ordinarily and broadly understood, especially
considering that the teaching of “general knowledge,” as in classroom
instruction done for purely academic purposes and in good faith, is expressly
excluded from the definition of training under Section 3 (k).
xxx xxx

Moreover, in the interpretation and application of the provisions of Section 6 in

relation to training, the Brandenburg standard is deemed incorporated. Thus,
teaching or the giving of instructions can only be penalized as training within
the ambit of Section 6 when they are: (1) directed to producing imminent
terrorism; and (2) is likely to produce such action.

12 In upholding Section 8 of the ATA, the Honorable Court ruled:

Section 8 penalizes proposal only when the crime being proposed are those that
are defined in Section 4. It does not provide for a penalty for proposal of the
other acts prohibited under the ATA. This reading also appears to be the official
understanding of the government because Rule 4.8 of the IRR refers only to
Section 4. Therefore, Section 3 (g) should not be construed as expanding the
scope of the crime of proposal to all the other provisions of the ATA.

13 In upholding Section 9 of the ATA, the Honorable Court ruled:

Based on the foregoing construction, the Court thus finds that speech or
statements can be penalized as inciting under Section 9 only if they are: (1)
direct and explicit — not merely vague, abstract, equivocal — calls to engage in
terrorism; (2) made with the intent to promote terrorism; and (3) directly and
causally responsible for increasing the actual likelihood of terrorist attacks. To
the Court’s mind, these parameters have been largely incorporated in the
detailed guidelines found in Rule 4.9 of the IRR.

15
THE IRR
CANNOT CURE THE
INADEQUACIES OF THE LAW IT
IMPLEMENTS.

66. In upholding the constitutionality of the ATA, the

Honorable Supreme Court relied heavily on the qualifications made in
the IRR. Yet it has long been recognized in jurisprudence that IRR
cannot remedy statutory defects. After all, rules and regulations—in
line with the separation of powers—merely implement the law.14
An IRR does not re-create law.

67. It must be kept in mind that it is not simply that the

implementing rules are barred from violating the provisions of the
implemented law.15 Neither may the former extend or expand the
letter and spirit of the latter.16 In Regidor, Jr. v. Chiongbian, this
Honorable Court ruled:

No rule or regulation issued by the Secretary

of Local Government may alter, amend, or
contravene a provision of the Local
Government Code. The implementing rules
should conform, not clash, with the law that
they implement, for a regulation which
operates to create a rule out of harmony with
the statute is a nullity. A rule or regulation that
was issued to implement a law may not go
beyond the terms and provisions of the law.17

68. Looking now specifically to the subject law, the fact that
the IRR qualifies the broad strokes of the ATA provides it no safe
haven. Indeed, an IRR that goes beyond the contours of the law that it
purports to implement is an IRR that actually attempts to legislate
anew without authority of law. Thus, by adding qualifications not
provided by the ATA, the IRR is effectively an executive amendment
to a legislative act.

69. Thus, the provisions of the IRR cannot be relied on in order

to support the constitutionality of the ATA. Indeed, as has been shown,
the validity of the IRR is in itself highly questionable. But what is more,
the fact that executive-created rules and regulations are necessary to

14 Ople v. Torres, G.R. No. 127685, 23 July 1998.

15 Miranda v. Aguirre, G.R. No. 133064, 16 September 1999.
16 Tayug Rural Bank vs. Central Bank of the Philippines, G.R. No. L-46158, 28 November 1986; Iglesia ni

Kristo v. Court of Appeals, G.R. No. 119673, 26 July 1996.

17 Tayug Rural Bank vs. Central Bank of the Philippines, G.R. No. L-46158, 28 November 1986; Iglesia

ni Kristo v. Court of Appeals, G.R. No. 119673, 26 July 1996.

16
delimit statutory provisions reveals that the ATA, on its face, is vague
and overbroad.

70. In passing such a broadly-termed law, the Philippine

legislature effectively delegated to the executive branch unfettered
discretion as to the manner in which the ATA will be enforced. That
very notion of “unfettered discretion” delegated from the legislative to
the executive branch has no place in the Philippine constitutional
order. Indeed, it swims contrary to the twin tests of completeness and
sufficiency:

The first test is called the “completeness test.”

A law is complete when it sets forth therein the
policy to be executed, carried out, or
implemented by the delegate. The second test
is called the “sufficient standard test.” A law
lays down a sufficient standard when it
provides adequate guidelines or limitations in
the law to map out the boundaries of the
delegate’s authority and prevent the delegation
from running riot. To be sufficient, the
standard must specify the limits of the
delegate’s authority, announce the legislative
policy, and identify the conditions under which
it is to be implemented.18

71. The ATA fails these tests. Nowhere in Sections 5, 6, 8, and

9 of the ATA do these provisions provide for adequate guidelines or
limitations to map out the boundaries of the delegate’s authority. That
the implementing rules supposedly fill in the gaps left by the
implemented law does not cure the ATA’s constitutional infirmities.
72. When all is said and done, the qualifications introduced by
the IRR remain the product of unfettered executive discretion, albeit
self-restrained.

THE ATA FAILS TO SATISFY THE

THREE-PART TEST OF THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL
RIGHTS (ICCPR).

18 Belgica v. Executive Secretary, G.R. No. 210503, 08 October 2019.

17
 73. The right to free of expression is codified in Article 19 of
the International Covenant on Civil and Political Rights (ICCPR):

Article 19
1. Everyone shall have the right to hold
opinions without interference.

2. Everyone shall have the right to freedom of

expression; this right shall include freedom to
seek, receive and impart information and ideas
of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art,
or through any other media of his choice.

3. The exercise of the rights provided for in

paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall
only be such as are provided by law and are
necessary:

(a) For respect of the rights or reputations of

others;
(b) For the protection of national security or
of public order (ordre public), or of public
health or morals.
74. The right to free expression may not be absolute, but
neither does that mean that it may be unduly restrained. Indeed, the
United Nations Human Rights Committee (UNHRC) identifies a
three-part test that restrictions must hurdle in order to be valid:

Paragraph 3 lays down specific conditions and

it is only subject to these conditions that
restrictions may be imposed: the restrictions
must be “provided by law”; they may only be
imposed for one of the grounds set out in
subparagraphs (a) and (b) of paragraph 3; and
they must conform to the strict tests of necessity
and proportionality. Restrictions are not
allowed on grounds not specified in paragraph
3, even if such grounds would justify
restrictions to other rights protected in the
Covenant.19

19 UN Human Rights Committee, General comment no. 34, Article 19, Freedoms of opinion and
expression, 12 September 2011, CCPR/C/GC/34, para. 22.

18
 75. The first of the three-part test is the legality threshold,
which requires the restrictions to free expression must be provided by
law. This test must be understood in its substantive, rather than formal
sense.20 Thus, the mere fact of legislation would not suffice. Said
legislation must likewise be qualitatively sufficient.

For the purposes of paragraph 3, a norm, to be

characterized as a “law”, must be formulated
with sufficient precision to enable an
individual to regulate his or her conduct
accordingly and it must be made accessible to
the public. A law may not confer unfettered
discretion for the restriction of freedom of
expression on those charged with its
execution. Laws must provide sufficient
guidance to those charged with their
execution to enable them to ascertain what
sorts of expression are properly restricted and
what sorts are not.21

76. Similar to the Philippine domestic legal order, the ICCPR

is clear: To guard against unfettered discretion, the law restraining free
speech must provide sufficient guidance to those charged with its
execution.

77. The ATA fails this standard. As already shown, it is not

legislation that provides guidance to the executive arm but the IRR
itself. Its standards therefore are not limitations provided by law unto
those charged with their execution in any proper sense, but are
self-imposed standards by the executive branch on the executive
branch, there being no statutory restrictions in the ATA to the contrary;
and the executive may very well change these self-imposed standards
as a matter of unfettered discretion.

78. Therefore, the ATA fails the legality threshold of the

ICCPR and is consequently invalid.

SECTION 10, IN ITS ENTIRETY, IS THE

PROPER SUBJECT OF A FACIAL CHALLENGE.

79. In the 7 December 2021 Decision, the Supreme Court

limited the application of a facial challenge to the third paragraph of
20Ekin Association v. France, Application No. 39288/98, 17 July 2001, para. 46.
21 UN Human Rights Committee, General comment no. 34, Article 19, Freedoms of opinion and
expression, 12 September 2011, CCPR/C/GC/34, para. 25.

19
Section 10, recognizing that membership is one of the many ways that
persons can exercise their freedom of expression. In doing so, the
Supreme Court ruled that “the Court may take cognizance of a facial
challenge against the constitutionality of statutes if its provisions
involve or target free speech, expression, and its cognate rights, such
as freedom of association.”

80. However, it is respectfully submitted that the first and

second paragraphs are also the proper subjects of a facial challenge.

81. The first paragraph of Section 10 refers to the recruitment

of another to join, commit or support terrorism or a terrorist individual
or any terrorist organization, association or group of persons proscribed
under Section 26, or designated by the UNSC a terrorist organization,
or organized for the purpose of engaging in terrorism. It is submitted
that the first paragraph, similar to the third paragraph, is the proper
subject of a facial challenge, as the first paragraph points to acts
relating to membership, which involves the freedom of association,
where a person allegedly recruits another into a terrorist organization,
association or group of persons.

82. On the other hand, sub-paragraphs (b) and (c) of the

second paragraph of Section 10 explicitly refer to speech when it
penalizes publication of an advertisement or propaganda, to wit:

Section 10.xxx
The same penalty shall be imposed on any
person who organizes or facilitates the travel of
individuals to a state other than their state of
residence or nationality for the purpose of
recruitment which may be committed through
any of the following means:

xxx
(b) Publishing an advertisement or
propaganda for the purpose of recruiting
persons to serve in any capacity in or with such
an armed force;
(c) Publishing an advertisement or propaganda
containing any information relating to the place
at which or the manner in which persons may
make applications to serve or obtain
information relating to service in any capacity

20
 in or with such armed force or relating to the
manner in which persons may travel to a
foreign state for the purpose of serving in any
capacity in or with such armed force; or
xxx

83. The above-quoted sub-paragraphs refer explicitly to

“publishing an advertisement or propaganda,” which regulate
conduct related to speech, or the exercise of free expression and the
freedom of the press.

84. Thus, it is respectfully submitted that the entirety of

Section 10 is susceptible to a facial challenge as it regulates speech in
violation of the Constitution.

SUB-PARAGRAPHS (B)AND (C) OF THE

SECOND PARAGRAPH OF SECTION 10 ARE
UNCONSTITUTIONAL FOR BEING VAGUE
AND OVERBROAD.

85. Sub-paragraphs (b) and (c) are not narrowly crafted as

their texts do not differentiate whether the “armed force” refers to that
of a terrorist-sponsoring state or to an ally state.

86. Citizens are not presented with any concise definition of

what “armed forces” pertain to. It is not entirely out of the realm of
possibility that Filipinos with connections to foreign militaries, such as
the United States Armed Forces, post links to a recruitment page on
their social media.
87. Furthermore, where for example, the media publishes in
the news an advertisement released by terrorist organization, such
may already be subsumed and penalized under sub-paragraphs (b)
and (c) of the second paragraph of Section 10 of the ATA. There is no
clear standard under the law on the prohibited conduct sought to be
penalized, as the prohibited conduct is too broad, and may be
construed differently by law enforcers. Thus, it must be struck down
as unconstitutional.

THE FIRST AND THIRD PARAGRAPHS OF

SECTION 10 MUST BE STRUCK DOWN FOR
BEING VAGUE, OVERBROAD AND FOR
FAILING TO MEET THE STRICT SCRUTINY
TEST.

21
 88. In the 7 December 2021 Decision, the Honorable Court
recognized that the third paragraph of Section 10 proscribes
membership when a person voluntarily and knowingly joins any
organization, under three instances: (1) knowing that such
organization is proscribed under Section 26 of the ATA; (2) knowing
that such organization has been designated by the UNSC as a terrorist
organization; and (3) knowing that such organization has been
organized for the purpose of engaging in terrorism.

89. The Honorable Court found that membership in any of the

three instances is not overbroad, as the restriction does not sweep
unnecessarily and broadly towards protected freedoms, with the
elements requiring that one voluntarily and knowingly joins a
proscribed organization, a UNSC-designated organization, or an
organization organized for the purpose of engaging in terrorism in
order to be punished under the law. According to the Supreme Court,
mere membership is not penalized under the third paragraph of
Section 10, but a knowing membership.

90. However, we respectfully submit that the Honorable

Court erred in failing to strike down the first and third paragraphs of
Section 10 for being vague, overbroad, and for failing to pass the strict
scrutiny test.

91. First, unlike the third paragraph of Section 10, the first
paragraph on recruitment does not contain the element of voluntary
and knowing recruitment. The failure of the law to include this element
exposes persons who are deemed to recruit others to join, commit or
support terrorism or a terrorist individual or organization to be subject
to penalty even without clearly knowing that the organization that the
alleged recruiter is recruiting another into is a terrorist organization.

92. Second, both the first and third paragraphs of Section 10 fail
to surpass the strict scrutiny test. Under the strict scrutiny test, the law
is considered as constitutional where: (1) it is necessary to achieve a
compelling State interest; and (2) it is the least restrictive means to
protect such interest.22 While it is conceded that Section 10 achieves a
compelling State interest, the first and third paragraphs of Section 10
are not the least restrictive means to protect such State interest.

93. The first and third paragraphs both punish the recruitment
to, and the knowing and voluntary membership in an organization,
association or group, under the three types of organizations, namely:
22 Biraogo v. Philippine Truth Commission, G.R. No. 192935, 7 December 2010.

22
(1) an organization proscribed under Section 26 of the ATA, (2) an
organization designated by the UNSC as a terrorist organization; and
(3) an organization organized for the purpose of engaging in terrorism.

94. The first and third paragraphs violate the right to freedom
of association, as it punishes mere acts of recruitment and membership
even in the absence of overt acts of terrorism.

95. Moreover, as will be further argued below, the first and

third paragraphs are also violative of the due process clause, where it
penalizes recruitment for and membership in organizations
designated by the UN Security Council as terrorist organizations.
These designations by the UNSC are merely administrative in nature
and do not amount to any adversarial process before a court of law.

96. Mere lists from other bodies cannot be the basis for
Philippine domestic courts to convict persons to life imprisonment
without parole for recruitment and twelve years in prison for
membership. Such lists, if not supported by evidence establishing guilt
beyond reasonable doubt, are not sufficient to deny individuals,
groups, and associations their constitutional right to life, liberty, and
property, which are all zealously protected by the Bill of Rights. Such
lists also violate the UN Charter itself and International Human Rights
Law, in particular the UDHR and ICCPR, which are considered as
customary international law by our courts.23 The incorporation clause
and the doctrine of transformation binds our country to comply with
these human rights protections.24

97. In the absence of judicial proceedings in a court of law

within this jurisdiction, no due process is granted to the accused by the
mere fact that “these organizations have already been determined, after
appropriate proceedings, to be in violation of the ATA, R.A. No. 10168 or the
Terrorism Financing Prevention and Suppression Act, or the relevant
international instruments on terrorism — purposes that are clearly contrary
to law.”25

98. Thirdly, the first and third paragraphs of Section 10 must

be struck down as the phrase “organized for the purpose of engaging
in terrorism,” is vague and overbroad, and is not narrowly construed.

99. In the Concurring and Dissenting Opinion of Chief Justice

Alexander G. Gesmundo, which is the controlling opinion on the issue
23 Mejoff v. Director of Prisons, 90 Phil. 70 (1951).
24 see Romel Regalado Bagares, “Philippine Chapter,” in Oxford Handbook of International Law in Asia
and the Pacific (2019) 406-432.
25 Calleja v. Executive Secretary, G.R. No. 252578, 7 December 2021.

23
of whether or not the phrase “organized for the purpose of engaging
in terrorism,” is vague and overbroad, the Court explains that “the
‘standards’ or ‘guidelines’ for which the purpose (of an organization
suspected of being formed in view of terrorism) is to be determined
are provided in the very definition itself which is found in Sec. 4 of the
ATA.”

100. However, as submitted, Section 4 of the ATA does not

provide sufficient standards, as the acts enumerated under Section 4
encompass a wide range of “acts” that extend to conduct which cannot
and should not be deemed a crime. Any organization may be
subsumed under this type of prohibited organization, as it will be
made the burden of the recruiter or the member to prove that the
organization was not organized for the purpose of the acts enumerated
under Section 4. There is even more danger in the fact that a person
may be penalized under Section 10 even without any showing that an
overt act of terrorism has been committed, as opposed to the “acts”
punishable under Section 4, where these acts must be committed
before it is penalized.

101. It is respectfully submitted that the element of voluntary

and knowing membership does not cure the broadness of the third
paragraph of Section 10, as persons cannot sufficiently determine
whether joining a specific organization would already violate Section
10 of the ATA. The phrase “organized for the purpose of engaging in
terrorism” does not require any finding by public authorities or the
courts that an organization is a terrorist organization. As Justice Perlas-
Bernabe puts it in her Concurring and Dissenting Opinion, “a mere
purposed intent to commit terrorism in the future is already sufficient
to consider a group as having been ‘organized’ for purpose of
engaging in terrorism.”
102. Section 8, Article III of the 1987 Constitution provides that
“The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes
not contrary to law shall not be abridged.” However, with the vague
phraseology of Section 10, persons of common intelligence are unable
to determine whether the organization they are recruiting members
into or are joining are contrary to law.

103. As set forth by Justice Rosmari D. Carandang in the

Decision, the law does not contain rules or guidelines to determine
whether or not an organization is “organized for the purpose of
engaging in terrorism.” Such phrase fails to provide fair notice to
persons of the conduct or type of organization to be avoided, which
ultimately overreaches into the rights of persons to freedom of

24
association. Section 10 thus fails to be narrowly construed, and must
be struck down for being vague and overbroad.

SECTION 12 OF THE ATA ON PROVIDING

MATERIAL SUPPORT AND TRAINING
ENCOMPASSES PROFESSIONAL ADVICE.

104. As declared by the Honorable Court, “training” in Section

12 of the ATA must be construed to apply to “expert advice or
assistance.”

105. Section 12 of the ATA, specifically its provision on

“providing material support to terrorists,” if construed in relation to the
definition of material support in Section 3(e), criminalizes even the
giving of professional advice to suspected terrorists, who have not
proven or clearly shown to be terrorists. Professional advice given by
lawyers, doctors, and/or accountants may be construed as criminal
acts, as these would constitute expert advice or assistance.

106. Thus, Section 12 of the ATA cannot be considered as

narrowly construed, as there is no clear definition of material support
under Section 12.

THE EXTRATERRITORIAL APPLICATION OF

THE ATA UNDER SECTION 49 CANNOT BE
TAKEN SEPARATELY AS SECTIONS 4, 5, 6, 7,
8, 9, 10, 11 AND 12 OF THE ATA.

107. Section 49 of the ATA provides for the extraterritorial

application of Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the ATA. As
Petitioners argue, Section 4, 5, 6, 7, 8, 9, 10, 11, and 12 are
unconstitutional for being vague, overbroad and failing to be narrowly
construed. Due to this, Section 49 must also be struck down, as Section
49 is not separable from the criminal acts penalized in the ATA.

IN RELATION TO SECTION 25 OF THE ATA,

THERE IS ACTUALLY NO INTERNATIONAL
OBLIGATION TO AUTOMATICALLY ADOPT
THE UNITED NATIONS SECURITY COUNCIL
CONSOLIDATED LIST.

THE TEXT OF UNSC NO. 1373 DOES NOT

EVEN MAKE IT OBLIGATORY ON UN
MEMBER STATES TO AUTOMATICALLY
ADOPT UNSC DESIGNATED INDIVIDUALS,

25
GROUP OF PERSONS, ORGANIZATIONS, OR
ASSOCIATIONS, ETC.

THE WORDS “DESIGNATION” AND

“PROSCRIPTION” DO NOT EVEN APPEAR IN
THE TEXT OF UNSC RESOLUTION NO. 1373.

108. To recall, the first mode of designation under Sec. 25 of the

law is the automatic adoption of the United Nations Security Council
Consolidated List of designated individuals, groups of persons,
organizations, or associations designated and/or identified as a
terrorist, one who finances terrorism, or a terrorist group or
organization.

109. The ponencia cites UN Security Council Resolution 1373 as

the source of the international obligation that mandates the Philippines
to adopt the Consolidated List.

110. However, the words “designation” and “proscription”

do not appear in the text of UNSC Resolution No. 1373. The text of
UNSC No. 1373 does not even make it obligatory on UN Member
States to automatically adopt UNSC designated individuals, group of
persons, organizations, or associations, etc.

111. To the mind of the majority voting on the issue, UNSC

Resolutions such as UNSC Resolution No. 1373 are generally binding
on all member states. With all due respect, this reasoning
mischaracterizes what the International Court of Justice has said about
UNSC Resolutions in general. The ICJ has previously stated the “The
language of a resolution of the Security Council should be carefully
analysed before a conclusion can be made as to its binding effect.”26
Automatically adopting the contents of UNSC No. 1373 and the
Consolidated List skips this important step of carefully analysing its
language and contents to determine its binding effect.

112. The relevant part of UNSC Resolution No. 1373 is the third
part, which calls on States to conduct certain measures in relation to
combatting terrorism. This call should be taken for what it is on its
face—an exhortation upon states, as opposed to a clear international
obligation.

113. Even granting that UNSC Resolution No. 1373 was

adopted by the Security Council under Chapter VII of the UN Charter,

26Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970), Adv. Op., ICJ Rep. (1971), para. 114 at 53.

26
however, the text of UNSC Resolution No. 1373 does not call for the
automatic adoption of the UNSC Consolidated List of designated
individuals, group of persons, organizations, or associations, etc. In
fact, the words “designation” and “proscription” are totally absent
from the text of UNSC Resolution No. 1373.

114. It is the position of the majority in this issue that UNSC

Resolution No. 1373’s automatic adoption finds basis under the
doctrine of incorporation. While indeed the 1987 Constitution declares
that the State adopts the generally accepted principles of international
law as part of the law of the land, jurisprudence provides that these
“generally accepted principles” actually refer to customary norms of
international law.

115. Poe-Llamanzares v. COMELEC, in particular, states that

“Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized nations.”27
Customary international law necessitates two elements to be accepted
as binding: (1) established, widespread, and consistent state practice
and (2) opinio juris.28

116. UNSC No. Resolution 1373 neither contains generally

accepted principles nor has it ripened into custom. The ponencia
admits plainly that “the Court is not prepared to state here that the
practice and process of designation as a counterterrorism measure has
ripened to the status of customary international law.” Thus, there is no
basis to even invoke the doctrine of incorporation. Examined in this
light, the automatic adoption of UNSC Resolution No. 1373 has no
constitutional anchor.
117. The automatic adoption chills speech insofar as persons
and groups who experience a credible threat of injury are concerned,
as they would not be allowed any room to challenge the automatic
designation by the UNSC. And while the ponencia has reached the
conclusion that the first mode of designation in not constitutionally
infirm as UNSC Resolution No. 1373 “does provide exhaustive factors
for designation or listing” persons or groups who commit or finance
terrorist activities, the same does not even define what acts constitute
terrorism.

THE PHILIPPINES’ COMPLIANCE WITH ITS

ESTABLISHED INTERNATIONAL OBLIGATIONS,
INCLUDING CORE HUMAN RIGHTS TREATIES ,

27 Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 08, 2016.

28 Id.

27
REMAIN PARAMOUNT TO A PURPORTED
INTERNATIONAL OBLIGATION OF
AUTOMATICALLY ADOPTING THE UNSC
CONSOLIDATED LIST.

118. On the realm of international obligations, what is well-

established is the Philippines’ international obligation as a state-party
to core human rights treaties including the International Covenant on
Civil and Political Rights (ICCPR). The Philippines also voted for the
UN General Assembly resolution that adopted the Universal
Declaration of Human Rights (UDHR). The UDHR is widely acclaimed
as establishing customary norms of international human rights law.

119. Allowing the legislation and enforcement of laws

repugnant to these core obligations are doubly repugnant to the
Philippines’ well-established duties under international law and the
Bill of Rights in the 1987 Constitution. These rights include freedom of
speech and expression and its cognate rights.

120. To emphasize, there is no international obligation to

automatically adopt the UNSC Consolidated List of designation under
UNSC Resolution No. 1373 as the text of said resolution does not even
contain the words “designation” and “proscription”.

121. Thus, for Section 25 of the ATA to automatically adopt the

UNSC Consolidated List of designation without paying heed to the
Philippines’ other, more well-established international obligations, is
a simplistic solution in defiance of the duties owed by the Philippine
State to the international community.

122. This Court has, time and time again, ruled on the
relationship between international law and obligations owed by the
State in view of such laws and how these interact with domestic law
and the rights of individuals.

123. Notably, in Republic v. Sandiganbayan,29 this Honorable

Court ruled that the de jure government of the Philippine State cannot
escape responsibility for the State’s good faith compliance with both
the ICCPR and the UDHR. Similarly, in Simon v. Commission on Human
Rights,30 this Honorable Court emphasized how international human
rights obligations are integrated into the present constitutional
framework.

29 G.R. No. 104768, July 21, 2003.

30 G.R. No. 100150, January 5, 1994.

28
 124. In light of these decisions, Petitioners argue that Section 25
of the ATA, must be analysed in accordance with the text of UNSC
No. 1373—the text of which does not even make it obligatory on UN
Member States to automatically adopt UNSC designated individuals,
group of persons, organizations, or associations, etc.—and, more
importantly, with the Due Process clause of the 1987 Constitution and
the Philippines’ international obligations under International Human
Rights Law.

125. It also cannot be reasonably interpreted that a resolution

by the UN Security Council, being a political body, may infringe on
fundamental rights enshrined in the 1987 Constitution and in
international human rights covenants. This simply is an absurd
outcome that transgresses the Due Process Clause of the 1987
Constitution.

126. Thus, the automatic adoption of UNSC Consolidated List

of designations under Section 25 of the ATA should be declared
unconstitutional as such automatic adoption runs afoul of the
Due Process Clause of the 1987 Constitution and violates fundamental
rights under the Constitution, as well as render the Philippines in
violation of its international obligations under International Human
Rights Law.

THE THIRD MODE OF DESIGNATION FAILS

TO MEET THE STRICT SCRUTINY TEST AND IS
OVERLY BROAD.

127. The prevailing ruling as to the constitutionality of the third

mode of designation under Section 25 of the ATA is not discussed in
the main decision penned by Justice Carandang but is instead found
in the opinion of Chief Justice Gesmundo.

128. In the discussion of this third mode of designation, the

prevailing ruling anchors itself on three ideas: first, that due process is
not limited to the presence of judicial protection; second, that the
power to determine probable cause is not solely a judicial function; and
third, that publication under Section 15 of the TFPSA guarantees the
compliance with due process rights of aggrieved parties.

129. However, the analysis of the third mode of designation

under Section 25 and its relationship to constitutionally-guaranteed
rights is limited only to the freezing of assets of designated persons
under the fourth paragraph of Section 25. As the prevailing ruling
writes:

29
 It can be clearly deduced from the foregoing
provision that the effect of designation is to
subject an individual, group, organization, or
association to the AMLC's authority to freeze
according to Sec. 11 of the TFPSA.

130. It is in this limited view of the effects of designation that

Petitioners find issue and ask this Honorable Court to reconsider its
position and adopt the opinion of Justice Carandang.

131. A holistic reading of the law reveals that the effects of

designation are not limited to the freezing of assets, as the prevailing
opinion seems to believe. Rather, it affects a host of rights that,
together, create a chilling effect on the freedom of speech. The main
decision by Justice Carandang properly articulates this as:

[...] the results or the outcomes of being

designated under Section 25 [...], when
implemented in conjunction with the other
provisions of the ATA, have a significant
impact on free speech and expression, and
present outright freedom of speech and
expression restrictions. Though these are not
exclusively speech provisions per se, they claim
that the chilling effect created by the
counterterrorism measures introduced in the
challenged provisions intimidates individuals
or groups and causes an atmosphere
detrimental to the exercise of the freedom of
expression. (emphasis supplied.)

132. Specifically, designation has the following effects, together

which produce a chilling effect on the freedom of speech and
expression:

a. It causes an arrest or detention of a person suspected as a

terrorist under Section 29, directly affecting the right to
liberty;
b. It causes surveillance, directly affecting the right to privacy
and correspondence; and
c. It causes the freezing of assets or bank inquiry into the
assets of a designated individual or organization under
Section 25 and Section 36, directly affecting the right to
property.

30
 d. Prosecution of donors or supporters of the designated
individual or organization under Section 12 for providing
material support or for giving material aid to a designated
terrorist
e. Make bank officials and bank employees liable for refusing
to allow the examination of bank record of designated
persons, groups, or organizations under Section 39.

133. Included in this list is Section 29 -- which this Honorable

Court has also ruled as not unconstitutional – which affects the rights
of individuals, specifically the right to liberty, without judicial
intervention.

134. Thus, designation has real legal consequences involving

rights; not only of those designated but also of donors and bank
personnel not directly involved in the organization. Therefore, without
proper procedural safeguards and remedies against erroneous
designation under the third mode, a chilling effect on speech and
related rights is created.

135. Designating requires the “finding of probable cause.” This

designation exercised by the ATC is accepted to be a finding of
probable cause by the executive branch of government. To this, there
is no argument.

136. However, contrary to the discussion provided by the

prevailing decision on the third mode of designation, it is not enough
to say that just because the concept of an executive determination of
probable cause is not new to our legal system, the third mode of
designation is thereby valid and constitutionally sound. There must be
a scrutiny of the scope and effects of such executive determination of
probable cause and who exercises it.

137. On this front, the case of Mendoza v. People of the Philippines,

as cited by Justice Carandang, is indispensable. This case illustrates the
accepted legal framework of executive determination of probable
cause within our jurisdiction. It says:

The executive determination of probable cause

is one made during preliminary investigation.
It is a function that properly pertains to the
public prosecutor who is given a broad
discretion to determine whether probable
cause exists and to charge those whom he
believes to have committed the crime as

31
 defined by law and thus should be held for
trial. Otherwise stated, such official has the
quasi-judicial authority to determine
whether or not a criminal case must be filed
in court.

[...]

The difference is clear: The executive

determination of probable cause concerns
itself with whether there is enough evidence
to support an Information being filed. The
judicial determination of probable cause, on
the other hand, determines whether a warrant
of arrest should be issued.

138. As discussed in the Carandang decision, the designation by

the ATC is not a recognized determination of probable cause by either
the executive (as it does not result in the filing of an information in
court) nor the judiciary (as it does not give rise to the issuance of a
warrant of arrest).

139. Rather, designation under the third mode is “peculiar and

extraordinary.” As such, standards for its implementation should have
been put in place, especially considering that designation carries with
it the deprivation of rights to liberty and property.

140. To hinge the constitutionality of the third mode of

designation on merely one of the effects of designation is to
deliberately ignore the others as well as the chilling effect of these to
the freedoms of speech and expression.

141. Thus, Petitioners pray that this Honorable Court adopt the
opinion of Justice Carandang and declare the third mode of
designation under Section 25 as unconstitutional for being overbroad
and for being void due to its vagueness.

DETENTION WITHOUT JUDICIAL WARRANT

OF ARREST AS PROVIDED IN SECTION 29 OF
THE ATA IS NOT THE “LEAST RESTRICTIVE
MEANS” UNDER THE APPLICABLE STRICT
SCRUTINY TEST.

32
 142. With all due respect to the Honorable Court, detention
without judicial warrant of arrest is not the “least restrictive” means
under the Strict Scrutiny Test because it violates core constitutional
principles and fundamental rights.

143. Specifically, the provision on detention without judicial

warrant of arrest violates the following:

a. Separation of powers under the Constitution;

b. Three-day maximum limit for detention and
suspension of the privilege of habeas corpus under the
Constitution; and
c. The binding ICCPR on arbitrary detention.

144. Petitioners emphasize that no compelling state interest

can ever be compelling enough to justify the violation of
fundamental constitutional principles and rights.

145. Following the Honorable Court’s analysis using the strict

scrutiny test, this framework requires that State interference is
permissible only if (1) there is a compelling State interest sought; and
(2) the least restrictive means is employed.

146. In this case, violation of fundamental constitutional

principles – regardless of their relation to the right of free speech and
its “cognate rights” as interpreted by the ponencia – cannot be and must
not be the “least restrictive means” to pursue a supposedly
“compelling state interest.”

Violation of Separation of powers

147. Petitioners submit that Section 29 violates the separation of

powers in several ways. First, by authorizing law enforcement and the
military officers with written authorization of the ATC to arrest and
detain mere suspects without a judicial warrant; second, by
encroaching upon the rule-making power of the Supreme Court by
legislating another instance of a warrantless arrest; and third, even by
the Honorable Court’s current characterization of Section 29, by
essentially allowing the ATC to issue orders akin to commitment
orders, which are within the domain of the Judiciary alone.

148. At the outset, Petitioners emphasize that a plain reading of

Section 29 is in order. If indeed this Honorable Court deems Section 29
proper for a facial challenge analysis, then resort to provisions external

33
to the law - in this case the counterpart provision of the IRR - is
unnecessary, if not erroneous.

149. Thus, a plain - facial analysis - reading of the provision

renders the ‘arrest-detention’ distinction nugatory. Under Section 29,
a law enforcer responsible for taking a ‘suspect’ custody may be
authorized prior to or after the taking of custody.

150. Further, had the lawmakers intended this distinction and

the reference to Rule 113, Section 5 of the Rules of Court, then the law
- not simply the IRR - should have expressly stated this. As discussed
above, the IRR cannot cure the law.

151. From this, clearly, the authorization by an executive body

that deprives a person of his or her liberty is an unlawful and
unconstitutional exercise of Judicial Power.

152. The written authorization by the ATC - as correctly

pointed out by Justice Alfredo Benjamin S. Caguioa in his Concurring
and Dissenting Opinion - is a disguised warrant.

Arrest and detention without

judicial warrant

153. Article III, Section 2 of the Constitution provides, as

follows:

SECTION 2. The right of the people to be

secure in their persons, houses, papers, and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except
upon probable cause to be determined
personally by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce, and
particularly describing the place to be searched
and the persons or things to be seized.
(emphasis supplied)

154. Under Section 29, the ATC can simply authorize in writing
a law enforcement agent or military to take custody of a person merely

34
suspected of committing any of the penalized acts. This supplants the
requirement of a judicial warrant.

155. Further, the Judiciary is at the mercy of the ATC, an

executive body. The Judiciary, in essence, waits, for the ATC to wield
its power, without rhyme or reason, and only based on the latter’s
executive discretion. Petitioners emphasize that the law provides no
basis or standard for the initial 14-day detention period for the ATC to
follow.

156. The ATC is not a judicial body – not even a quasi-judicial

body as admitted in the law itself31 – which can authorize the arrest of
a person.

157. Thus, any written “authorization” by the ATC is

repugnant to the constitutional requirement of a warrant of arrest that
can be issued only by a judge.

Rule-making power of the Supreme

Court

158. Under Article VIII, Section 5(5) of the Constitution gives

the Supreme Court the power to “Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts xxx” As such, the Revised Rules
of Criminal Procedure provides for the specific instances when a
warrantless arrest can be made.

159. Therefore, by legislating another instance of a warrantless

arrest, Congress brazenly encroached upon the Supreme Court’s
rule-making power, contrary to the Constitution. Congress committed
grave abuse of discretion in encroaching upon the judiciary’s powers
and jurisdiction.

The current interpretation of the

ATC authorization is akin to a
Commitment Order under the
Rules of Court.

160. Even assuming we adopt and follow the interpretation of

this Honorable Court of the written authorization as merely extending

31 Anti-Terror Act, Section 45, last paragraph, which states that: “Nothing herein shall be
interpreted to empower the ATC to exercise any judicial or quasi-judicial power or authority.”

35
the period of detention, the same operates similarly to a commitment
order under the Rules of Court. Again, Petitioners agree with Justice
Caguioa’s Opinion, citing Rule 112, Section 6 of the Rules of Court.

161. This Honorable Court has consistently held that a

commitment order may only be issued by a court, and no other person
has the authority to do so, not even a clerk of court, as in the cases of
Escañan and Carandang.32

162. Thus, clearly, even under the current interpretation of this

Honorable Court, the written authorization of the ATC still violates
the separation of powers by usurping an exclusive judicial function.

Violation of the maximum 3-day

detention period under Article VII,
Section 18 of the Constitution

163. Even during the President’s exercise of his/her

extra-ordinary power pertaining to the suspension of the privilege of
the writ of habeas corpus under Article VII of the Constitution, the
Constitution still provides that any person thus arrested and detained,
is required to be judicially charged within three days, otherwise he
must be released.

164. This maximum 3-day period for law enforcers to judicially

charge an arrestee – during the most exigent circumstance that
necessitates the suspension of the privilege of the writ of habeas corpus
– is a limitation introduced in the 1987 Constitution to correct the
abuses during the Marcos Regime. Constitutional Commissioner
Ambrosio Padilla explained this period of limited detention as follows:

The purpose …is to prevent a situation similar

to the past regime when innocent persons were
arrested, detained, and confined in prison
sometimes for one month, one year, or even
more, without any criminal charge filed
against them who oftentimes did not even
understand why they had been arrested or
detained.33

32 Escañan vs. Monterola II, A.M. No. P-99-1347, Feb. 6, 2001; Carandang vs. Base, A.M. No. P-08-
2440, Mar. 28, 2008, as cited in J. Caguioa’s Concurring and Dissenting Opinion.
33 JOAQUIN G. BERNAS, S.J., 1987 Constitution of the Republic of the Philippines: A Commentary 555

(2009 ed.).

36
 165. Clearly, not only does Section 29 of the ATA allow
warrantless arrests to be done based on mere suspicion alone. It also
extends the maximum period within which suspected “terrorists”
must be charged or delivered to judicial authorities.

166. If a maximum 3-day detention period is only allowed by

the Constitution in seriously exigent circumstances, then the
maximum 24-day detention period under Section 29 is clearly
repugnant to the Constitution.

167. The Decision, with all due respect, misconstrues the silence
in this constitutional provision. The Decision in essence says that
terrorism is worse than invasion or rebellion, and justifies the disregard
of this time limit and safeguard.

168. Further, the Court cannot simply resort to comparison of

pre-trial detention periods with other jurisdictions to justify this
violation of the 1987 Constitution. Another layer must be kept in mind.
Do these jurisdictions’ constitutions likewise limit detention periods to a
maximum of three (3) days?

169. This assailed law attempts to resurrect the evils sought to

be curbed and eliminated by the 1987 Constitution, and to erode all
safeguards erected to protect liberty.

Violation of ICCPR on arbitrary

detention

170. The ICCPR again is instructive as to the prohibition against

arbitrary detention. The relevant portion of Article 9 states that:

Article 9
1. Everyone has the right to liberty and security
of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds
and in accordance with such procedure as are
established by law.

2. Anyone who is arrested shall be informed, at

the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges
against him.

37
 3. Anyone arrested or detained on a criminal
charge shall be brought promptly before a
judge or other officer authorized by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release. It
shall not be the general rule that persons
awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear
for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for
execution of the judgement.

xxxx34

171. The United Nations Working Group on Arbitrary

Detention (WGAD) has opined that:

[T]he prohibition of arbitrary deprivation of

liberty is part of treaty law, customary
international law and constitutes a jus cogens
norm. Its specific content, as laid out in this
deliberation, remains fully applicable in all
situations"35

172. Further, “arbitrariness” has been explained as follows:

[T]he notion of 'arbitrariness' is not to be

equated with 'against the law', but must be
interpreted more broadly to include elements
of inappropriateness, injustice, lack of
predictability and due process of law, as well
as elements of reasonableness, necessity and
proportionality." (General Comment No. 35
CCPR/C/GC/35, para. 12). Therefore, for
instance, a violation of legality occurs if "an
individual is arrested or detained on grounds
which are not clearly established in domestic
legislation" (Human Rights Committee views
A/52/40, p. 231, para. 5.5). Domestic law
must be precise in order for the affected
individual to foresee the circumstances of

34Emphasis supplied.
35 UNODC, available at https://www.unodc.org/e4j/en/terrorism/module-10/key-
issues/international-human-rights-instruments.html (last accessed Mar. 1, 2022), citing General
Assembly, Human Rights Council report A/HRC/22/44, para. 51).

38
 lawful arrest and detention and the remedies
for the deprivation of liberty. Even where the
legal basis for detention is clear, the law must
not confer overbroad discretion on police
officers or other public officials as to the way
in which it can be exercised. (For such
concerns see e.g. Human Rights Committee
concluding observations
CCPR/CO/70/TTO).36

173. In this case, clearly, the law can be weaponized to

legitimize otherwise illegal and unconstitutional deprivations of
liberty. This must not be countenanced by this Honorable Court.

174. In sum, the detention without judicial warrant under

Section 29 clearly fails the strict scrutiny test because the means
employed are not the least restrictive. It is not the least restrictive
because it brazenly disregards fundamental constitutional principles
and rights.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioners

respectfully pray that the Honorable Court:

1. PARTIALLY REVERSE the Decision dated 7 December

2021 and DECLARE THE MAIN PART OF SECTION 4, SECTIONS
5, 6, 8, 9, 10, 12, THE ENTIRETY OF SECTION 25, SECTIONS 29
AND 49 OF “THE ANTI-TERRORISM ACT OF 2020” and their
corresponding counterpart provisions under its IMPLEMENTING
RULES AND REGULATIONS as UNCONSTITUTIONAL; and

2. In the alternative and without prejudice to the above-

stated prayer, assuming that Sections 25 and 29 of the ATA are found
to be not unconstitutional, ISSUE AND PROMULGATE rules that
will govern the designation of terrorist individuals, groups and
organizations under Section 25, and detention without judicial warrant
under Section 29 pursuant to the Honarable Court’s rule-making
power under Article VIII, Section 5 of the 1987 Constitution.

Other relief that are just and equitable under the premises are
likewise prayed for.

36 UNODC, available at https://www.unodc.org/e4j/en/terrorism/module-10/key-

issues/international-human-rights-instruments.html (last accessed Mar. 1, 2022),

39
Makati City for the City of Manila. 02 March 2022.

BY THE COUNSEL FOR THE PETITIONERS IN

G.R. NO. 252905:

CENTER FOR INTERNATIONAL LAW, INC.

1105 Antel Corporate Center
121 Valero Street, Salcedo Village
Makati City 1227
Email: centerlaw@protonmail.com
Tel. Nos. 887-4445/887-3894;
Fax No: 887-3893

By:
JOEL RUIZ BUTUYAN
Roll No. 36911
PTR No. 8855842| Jan. 5, 2022 | Makati
IBP No. 01742 | Lifetime
MCLE Compliance No. VI-0010026 | July 4, 2018

ROGER R. RAYEL
Roll No. 44106
PTR No. 8855843| Jan. 5, 2022 | Makati
IBP No. 02159 / Lifetime
MCLE Compliance No. VI-0010071 |July 4, 2018

GILBERT TERUEL ANDRES

Roll No. 56911
PTR No. 8855844| Jan. 5, 2022 | Makati
IBP No. 181601| Jan. 6, 2022 | Negros Occ.
MCLE Compliance No. VI-0018609|Feb. 18, 2019

NICOLENE S. ARCAINA
Roll No. 73826
PTR No. 8855847| Jan. 5, 2022 | Makati
IBP No. 181590| Jan. 6, 2022|Pampanga
MCLE Compliance No. N/A
(Admitted to the Philippine Bar in 2019)

SHAWN DUSTIN B. COSCOLLUELA

Roll No. 64068

40
 PTR No. 8855848| Jan. 5, 2022 | Makati
IBP No. 181597| Jan. 6, 2022| Negros Occidental
MCLE Compliance No. VI-0028704 | Sept. 10, 2019

SABRINA VICTORIA M. DAYAO

Roll No. 75555
PTR No. 8855846| Jan. 5, 2022 | Makati
IBP No. 181599| Jan. 6, 2022 | Manila IV
MCLE Compliance No. N/A
(Admitted to the Philippine Bar in 2020)

RAPHAEL LORENZO AGUILING

PANGALANGAN
Roll No. 68075
PTR No. 8855849| Jan. 5, 2022 | Makati
IBP No. 016247 | Lifetime
MCLE Compliance No. VI-0028688 | Sept. 9, 2019

RUBY ROSSELLE L. TUGADE

Roll No. 69036
PTR No. 8855950| Jan. 6, 2022 | Makati
IBP No. 016525 | Lifetime |Isabela
MCLE Compliance No.VII-0001967|Dec. 05 2019

BY THE CO-COUNSEL FOR PETITIONERS IN G.R. NO. 252905:

c/o 2/F Office of the College Secretary

Lyceum Philippines University
College of Law
Email: College of Law <law@lpu.edu.ph>
Landline: +632 8-893 9299

ROMEL REGALADO BAGARES

Roll No. 49518
PTR No. 8857468|January 7, 2022|Makati City
IBP No. 181598 |January 6, 2022|So. Cotabato
MCLE Compliance No. VI-0010021|July 4, 2018

COPY FURNISHED:

OFFICE OF THE SOLICITOR GENERAL

41
Counsel for the Respondents
134 Amorsolo Street, Legaspi Village,
Makati City, Metro Manila
<osgatateam@osg.gov.ph>

EXPLANATION

This Motion for Partial Reconsideration is served to all the Parties

by registered mail and/or by electronic mail due to lack of personnel
to effect personal service to each and every one of them.

SABRINA VICTORIA M. DAYAO

42