REPUBLIC OF THE PHILIPPINESNATIONAL CAPITAL JUDICIAL REGION
Regional Trial CourtQuezon CityBranch _____
ROQUE, Atty. Herminio Harry;MORO CHRISTIAN PEOPLE’S ALLIANCE; DIZON, Fr. Joe; SORIANO, Rodinie; ABIERA, Stephanie; ALCAIN, Maria Lourdes; ALFEREZ, Voltaire; ALTEZ, Czarina May; BALOT, Sheryl; BATACAN, Renizza; CAÑETE, Edan Marri; CARAMOAN, Leana; CAMANCE, Aldwin; DELORINO, Rene; DUMAN, Paulyn May; FAJARDO, Rodrigo III;GO, Anna Marie; JIMENEZ, Anna Arminda; LEE, Mary Ann; MANALAYSAY, Luisa; MUSNGI, Miguel; OCAMPO, Michael; OCANA, Norman Roland III; RAGAMAT, William; RAMOS, Maricar; REYES, Cherry Lou; SICAT, Melissa Ann; TABING, Cristine Mae; and TORNO, Vanessa,
Petitioners,
- versus -
ERMITA, Eduardo, in his capacity as Executive Secretaryand Chairman of the Anti-Terror Council (ATC); GONZALEZ, Raul,in his capacity as Secretary of the Department of Justice and Vice Chairman of the ATC; ROMULO, Alberto, in his capacity as Secretary of the Department of Foreign Affairs and Member of the ATC; PUNO, Ronaldo, in his capacityas Secretary of the Department of Interior and Local Government and Member of the ATC; TEVES, Margarito, in his capacity as Secretary of the Department of Finance and Member of the ATC; GONZALES, Norberto, in his capacity as National Security Adviser, and as Director-General
1
SPECIAL CIVIL ACTION NO. Q-07-60778For: Declaratory Relief (Sections 3, 7, 18, 26 and 27 of Republic Act 9372, otherwise known as the Human Security Act of 2007)
of the National Security Council, Officer-in-Charge of the Department of National Defense, and Member of the ATC; ANDAYA, Rolando, in his capacity as Secretary of the Department of Budget and Management; TAN, Roberto, as Officer-in-Charge of the Bureau of Treasury; ESPERON, Gen. Hermogenes, in his capacity as Chief of Staff of the ArmedForces of the Philippines; CALDERON, Gen. Oscar, in his capacity as Director General of the Philippine National Police;
Respondents.
x-----------------------------------------------------------------------x
PETITION
COME NOW THE PETITIONERS by the undersigned
attorney, and unto this Honorable Court, respectfully allege:
1. Petitioner Prof. Herminio Harry Roque Jr., of legal age,
Filipino citizen, married, taxpayer, is an active law
practitioner and professor of constitutional and public
international law at the University of the Philippines
College of Law. He may be served with pertinent papers
and processes through his undersigned counsel, the
Roque and Butuyan Law Offices, at Unit 1904 Antel 2000
Corporate Centre, 121 Valero Street, Salcedo Village,
Makati City.
2
2. Petitioner Moro Christian People’s Alliance, is a people’s
organization existing under the laws of the Philippines. It
may be served with pertinent papers and processes
through its undersigned counsel, the Roque and Butuyan
Law Offices, at Unit 1904, Antel Corporate Centre, 121
Valero Street, Salcedo Village, Makati City.
3. Petitioner Fr. Joe Dizon, of legal age, Filipino citizen,
single, taxpayer, is a long time activist-priest and an
advocate against abuses of the government. He may be
served with pertinent papers and processes through his
undersigned counsel, the Roque and Butuyan Law
Offices, at Unit 1904 Antel Corporate Centre, 121 Valero
Street, Salcedo Village, Makati City.
4. Petitioner Rodinie Soriano, of legal age, single, Filipino
citizen, taxpayer, is a student of the University of the
Philippines and a member the League of Filipino citizens.
He may be served with pertinent papers and processes
through his undersigned counsel, the Roque and Butuyan
Law Offices, at Unit 1904 Antel Corporate Centre, 121
Valero Street, Salcedo Village, Makati City.
3
5. Petitioners Alcain to Torno, are all of legal age, Filipino
citizens, taxpayers, and students of the evening class of
the University of the Philippines College of Law, Diliman,
Quezon City. They may be served with pertinent papers
and processes through their undersigned counsel, the
Roque and Butuyan Law Offices, at Unit 1904 Antel
Corporate Centre, 121 Valero Street, Salcedo Village,
Makati City.
6. The Respondents are officials of the National
Government, thus;
7. Sec. Eduardo Ermita is Executive Secretary and
Chairman of the Anti-Terrorism Council (ATC), he may be
served with summons and other papers and processes at
the Office of the Executive Secretary, Malacañang
Palace, Manila;
8. Sec. Raul Gonzalez, is Secretary of the Department of
Justice and Vice Chairman of the ATC. He may be served
with summons and other papers and processes at the
Department of Justice, Padre Faura, Manila;
4
9. Sec. Alberto Romulo is Secretary of the Department of
Foreign Affairs and Member of the ATC. He may be
served with summons and other papers and processes at
the Department of Foreign Affairs, Roxas Boulevard,
Pasay City, Metro Manila;
10.Sec. Ronaldo Puno is Secretary of the Department of
Interior and Local Government and Member of the ATC.
He may be served with summons and other papers and
processes at the Department of Interior and Local
Government, Kamias cor. EDSA, Quezon City, Metro
Manila;
11.Sec. Margarito Teves is Secretary of the Department of
Finance and Member of the ATC. He may be served with
summons and other papers and processes at the
Department of Finance, Roxas Boulevard, Pasay City,
Metro Manila;
12.Sec. Rolando Andaya is the Secretary of the Department
of Budget and Management. He may be served with
summons and other papers and processes at the
Department of Budget and Management, Gen. Solano St.,
San Miguel, Manila;
5
13.Hon. Roberto Tan is the Officer-in-Charge of the Bureau
of Treasury. He may be served with summons and other
papers and processes at the Bureau of Treasury, Palacio
del Gobernador Bldg., Intramuros, Manila;
14.Sec. Norberto Gonzales is National Security Adviser and
concurrent Officer-in-Charge of the Department of
National Defense and Member of the ATC. He may be
served with summons and other papers and processes at
Department of National Defense, Camp Aguinaldo,
Quezon City, Metro Manila;
15.Gen. Hermogenes Esperon is Chief of Staff of the Armed
Forces of the Philippines. He may be served with
summons and other papers and processes at Camp
Aguinaldo, Quezon City, Metro Manila;
16.Police Gen. Oscar Calderon is Director General of the
Philippine National Police. He may be served with
summons and other papers and processes at the
Philippine National Police, Camp Crame, Quezon City,
Metro Manila;
6
17.The Public Respondents may also be served with
summons and other processes through the Solicitor-
General, Office of the Solicitor General, 134 Amorsolo
St., Legaspi Village, Makati City, Metro Manila.
18.Petitioners hold that sections 3, 7, 18, 26 and 27 of
Republic Act 9372, or the Human Security Act of 2007,
need judicial determination in relation to the petitioners’
rights as provided by the Bill of Rights, Article III of the
1987 Constitution. Petitioners further hold that due to
the ambiguity or the need for judicial determination of
the aforesaid sections, any disbursement of public funds
for purposes provided for in the law are illegal.
PREFATORY STATEMENT
19.A citizen of the Republic of the Philippines is granted
rights and privileges as well as duties by the 1987
Constitution as embodied in Article III thereof, also
known as the Bill of Rights.
20.As provided for in the 1987 Constitution and as a
signatory of the United Nations Declaration on Human
Rights, the Philippine government is duty-bound to
uphold these rights and to ensure that any action of any
7
entity, private or public, does not infringe upon these
rights.
21.The construction of the 1987 Constitution regarding the
relationship between the government and the citizens of
the Republic ensures that the latter’s rights are
respected above all else. Sec. 5 of the Declaration of
Principles and State Policies, Article II of the 1987
Constitution states that:
“Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment of all the people of the blessings of democracy.”
22.This is reinforced by Sec. 1 of the Bill of Rights, Article
III of the 1987 Constitution, to wit:
“ Sec. 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 laws.”
23.To ensure this, any omission or excessiveness of actions
of any of the three branches of government are checked
and balanced by other branches of the government. This
is an important process in the safeguarding of the rights
of its citizens.
8
24.Particularly, the actions of the legislative as repository of
police power of the state, and the executive as wielder of
the same, are prone to question, especially when they
infringe upon the rights and privileges of the individual
which are protected by the Constitution.
25.And the final arbiter of questions regarding this nature
is the Judiciary, particularly the Supreme Court, as it is
part of its expanded certiorari jurisdiction to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
government. The Supreme Court in Francisco v. House of
Representatives1 emphasized that judicial review is “not
just a power but also a duty” under the 1987 Constitution
.
26.On this aspect, the Supreme Court, in a line of decisions,
has always upheld the rights of the citizens as sacrosanct
in any working democracy. Even in times of crises and
national emergencies, the roles of the branches of
government and government as a whole, has been
limited due to the rights of its citizens. This was what
the Court, in a recent decision, David vs. Arroyo2, 1 Francisco v. House of Representatives, G.R. No. 160261, November 10,
2003.2 David vs. Arroyo, G.R. No. 171396.
9
through Justice Sandoval-Gutierrez meant when it
declared that:
“xxx
“During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.
“Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.”
FACTUAL BACKGROUND
27.At present, a silent threat exists, one that has haunted
the world since the September 11, 2001 terrorist attacks
in the United States.
28.Terrorism or acts of terrorism have become bywords
because of one event that changed the world’s socio- and
geopolitical landscape, the September 11, 2001 attacks
on the World Trade Center in New York City and the
Pentagon in Washington D.C., U.S.A. To the shock of
millions worldwide, terrorists, hijacking and commanding
10
two airplanes, crashed the said aircrafts into the
buildings in New York City and Washington, D.C.
29.The group Al Qaeda, led by Osama bin Laden, was
blamed and later claimed responsibility for the attacks.3
30.In response to the September 11 attacks, US President
George W. Bush, addressed a Joint Session of the U.S.
Congress and called for a “War on Terror”. He called on
all its allies to join the United States in this war. In his
speech, he stated:
“Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.”4
31.The first salvo in this war was directed on Afghanistan,
where the Taliban, a regime that is closely allied with Al
Qaeda, was in control. When the Taliban refused to
negotiate with the U.S. and its allies, war was
commenced. On October 7, 2001, American and British
forces began aerial attacks on Afghanistan, particularly
Kabul.
3 “September 11attacks,” <http://en.wikipedia.org/wiki/September_11,_2001_attacks.html>.
4 “War in Afghanistan (2001-present),” http://archives.cnn.com/2001/US/09/20/gen.bush.transcript.html>.
11
32.On November 12, 2001, Kabul fell. What followed soon
was the establishment of a democratic government
through a nationwide election which put the first post-
Taliban president, Hamid Karzai, in power.
33.In the meantime, as the “War on Terror” was being
waged, Presidents and Prime Ministers of governments
around the world threw their support to the US
campaign. The Philippine President, Gloria Macapagal-
Arroyo, threw in her support. According to Time Asia
website:
“President Gloria Macapagal Arroyo was the first Asian leader to back the U.S. in its war on terror after 9/11—and she has pledged her "general support" for a U.S.-led invasion of Iraq.”5
34. After Afghanistan, the “War on Terror” turned towards
Iraq then being ruled by dictator Saddam Hussein. The
rationale for the Iraq War was that the country under
Hussein is developing weapons of mass destruction. This
was offered by Pres. Bush and Prime Minister Blair to
their allies.
5 “For or against the War on Iraq,” <http://www.time.com/time/asia/covers/501030324/poe/13.html>.
12
35.On 2 March 2003, the US led the coalition forces in the
war in Iraq. Despite the eventual ouster of Saddam
Hussein’s regime, and the election of a democratic Iraqi
government, Iraq currently remains a volatile country
still under U.S. military occupation.
36.Six (6) years into the “War on Terror,” Osama bin Laden
remains at large and Al Qaeda, with its ideological allies
like Jemaah Islamiyah and the Philippines’ Abu Sayyaf,
still threatens world security.
37.In response to Bush’s call to global war on terror, the US
Congress passed The Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 or the USA Patriot Act of
2001. Similarly, other nations followed, such as Great
Britain, whose Houses of Parliament passed the
Prevention of Terrorism Act 2005 and Australia, which
passed the Anti-Terrorism Bill into law in the year 2005.
Other countries also passed their own anti-terror laws.
38.In response to the developments worldwide on anti-
terror legislation, the Houses of Congress initiated two
different bills towards an anti-terror law.
13
39.On 30 June 2004, Sen. Manuel Villar initially filed Senate
Bill No. 735, An Act to Define and Penalize Acts of
Terrorism and For Other Purposes. This was later on
substituted along with other Senate Bills with Senate Bill
No. 2137 on 12 October 2007. Senator(s) Manuel B.
Villar, Jr., Panfilo M. Lacson, Juan Ponce Enrile, Jinggoy P.
Ejercito-Estrada, Ramon B. Magsaysay, Jr. and Alfredo S.
Lim sponsored the bill in substitution.
40.On 11 October 2005, Rep. Imee Marcos, with several
Congressmen and women as co-sponsors, introduced
House Bill No. 4839.
41.On 12 October 2005, these bills were certified by the
President of the Philippines for immediate enactment.
42.The two bills were submitted to Joint Conference
Committee where the Senate members of the Conference
Committee approved it on 08 February 2007, while the
House of Representatives members of the Conference
Committee approved it on 19 February 2007. The
approved bill was transmitted to the President on 27
February 2007.
14
43.On 06 March 2007, the President acted on the submitted
bill and approved and signed it into law which became
Republic Act No. 9372.
44.The effectivity of RA 9372 was scheduled two (2) months
after the May 14, 2007 elections as contained in Sec. 63
of the law thereof. It states:
Sec. 62. Special Effectivity Clause. –
“xxx
After the publication required above shall have been done, the Act shall take effect two months after the elections are held in May 2007.
Thereafter, the provisions of this Act shall be automatically suspended one month before and two months after the holding of any election.”
45.However, a month before the scheduled effectivity, the
Secretary of Justice, Raul Gonzalez, issued statements
that sent chilling effects to the populace. In an interview
with the Philippine Daily Inquirer, stated that the
interviews and sources of media practitioners are
“sacred”. However, he further stated:
“Of course, unless there is sufficient basis or if they are being suspected of co-mingling with terror suspects.”6
6 “DoJ can recommend wiretap on alleged terrorists – Gonzalez,” by Tetch Torres, INQUIRER.net, July 04, 2007, <
15
46.On 05 July 2007, the National Union of Journalists of the
Philippines (NUJP) called on the 14th Congress “to act
posthaste on this potential threat not just to press
freedom but to democracy itself by reviewing or, better
still, repeal altogether this law that is worse than the
disease it purports to cure.”7
They were particularly concerned with Sec. Gonzalez’s
statement quoted above, to which chairman Jose Torres Jr. and
secretary general Rowena Paraan, on behalf of NUJP, issued a
statement stating thus:
“This is a statement as vague and as fraught with danger as many of the anti-terror law's provisions, especially those that supposedly define what terrorism is and who terrorists are, provisions so open-ended they could actually lead to anyone and everyone who government deems fit being tagged a terrorist.”8
47.On the other hand, Ambassador Alistair MacDonald,
head of delegation of the European Commission to the
Philippines said in Bacolod City, “The anti-terrorism law
http://archive.inquirer.net/view.php?db=1&story_id=74741>.
7 “Gonzalez ‘wiretap media’ statement slammed ,” by Nonoy Expina, INQUIRER.net, July 05, 2007, < http://archive.inquirer.net/view.php?db=1&story_id=74992>.
8 Ibid.
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is not an excuse to go out and shoot people… to target
people for matters not provided in the law.”9
48.In relation to the aforementioned, a phenomenon has
arisen in the recent history of our country that is
reminiscent of the Martial Law days when people simply
disappear and probably summarily killed. In addition,
there is a growing number of persons, supposedly or
suspected to be allied with the Left, who are killed in a
pattern that is not unique to our country: motorcycle-
riding and bonnet-wearing hitmen shooting their target
even in broad daylight in the presence of a lot of people.
49.Sec. Eduardo Ermita, in an interview with The Daily
Tribune said that concerned agencies of the government
and the anti-terrorism council are now preparing the
implementing rules and regulations, as well as the
publication of the law for public awareness.10
50.On 15 July 2007, as scheduled, Republic Act 9372
became effective.
9 “Anti-terror law not a license for killings -- EU envoy,” by Carla Gomez, INQUIRER.net, July 05, 2007, < http://archive.inquirer.net/view.php?db=1&story_id=74986>.
10 “Wiretap on journalists possible under anti-terror law — DoJ chief,” by Benjamin B. Pulta, The Daily Tribune, July 5, 2007, < http://www.tribune.net.ph/headlines/20070705hed3.html>.
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51.As with any law, RA 9372 requires that Implementing
Rules and Regulations be developed. Executive Secretary
Ermita has said that concerned agencies of the
government and the Anti-Terrorism Council have begun
the preparation of the law’s IRR, as well as the
publication of the law’s implementation for public
awareness. Ermita likewise parried the possible
postponement of the implementation of the law despite
the absence of the IRR.
52.However, due to the ambiguity of some of its provisions
and given the present state of our system of investigation
and custodial procedure, there is an imminent possibility
of misinterpretation thereby opening the identification of
“terrorists” to any and all citizens who commit acts
within the supposed purview of the definition.
53.Moreover, several provisions of the said law pose a
grave threat to the life, liberty and property of Filipinos
which are held sacrosanct in the Bill of Rights enshrined
in our present Constitution. Hence, this petition.
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NATURE OF THE PETITION
54.This is a Petition for Declaratory Relief under Rule 63 of
the Revised Rules of Court seeking the declaration of the
validity of construction of Republic Act 9372 particularly
sections 3, 7, 18, 26 and 27 in relation to the petitioners’
rights as provided for in Article III of the 1987
Constitution.
LOCUS STANDI
55.Petitioners, lawyer and students, are suing as citizens of
the Philippines and, being a professor and students of
law, aver that it is their responsibility, nay duty, to assert
their public rights when there is a clear and present
danger of these rights being unconstitutionally
restrained by the political branches of government in the
promulgation and execution of the Human Security Act of
2007.
19
56.Petitioner Fr. Dizon is suing as a member of clergy,
stating that the law infringes on the right of the people to
freely exercise their religion, that by not including
confessions made by a person to a priest or minister as
included among the privileged information not subject to
unconstitutional surveillance, the law itself does not
recognize the right of the people to practice their
religion, of which such confession is an integral part.
57.Petitioner Moro Christian People’s Alliance is an
organization that seeks to promote harmonious and just
relationship between the Bangsa Moro people and the
Christian. They allege that due to the vagueness of
definition of terrorism and unless the enforcement of the
statute is restrained, their organization and members
may be classified as a terrorist organization.
58.Petitioner Rodinie Soriano is suing in his personal
capacity and on behalf of the League of Filipino Students
(LFS), an association of activist-students which
represents the Filipino studentry in the fight for their
rights. He alleges that due to the vagueness of the
definition, he and other members of the LFS stand the
20
immediate danger of prosecution under the assailed
statute.
59.The causes of action for this complaint, as outlined
below, assail the encroachment of the law on the
individual’s zone of privacy, the lack of due process in the
taking of liberty and property, and the violation of the
privacy of communication and correspondence without
due process. These violations of the rights enshrined in
Article III of our Constitution are, without a doubt, of
transcendental importance which need to be acted upon
early.
60.The Court has recently sustained the direct injury test in
determining locus standi in our jurisdiction. Citing
People vs. Vera, Justice Sandoval-Gutierrez stated in
David vs. Macapagal-Arroyo that “the person who
impugns the validity of a statute must have a personal
and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result”11.
However, the Court went on to say that it has “adopted a
rule that even when the petitioners have failed to show
direct injury, they have been allowed to sue under the
11 David vs Macapagal-Arroyo. G.R. No. 171396. May 3 2006.
21
principle of transcendental importance”12. Thus, a citizen
may be given locus standi in public suits provided that
“there must be a showing the issues raised are of
transcendental importance which must be settled
early”.13
61.Petitioners are likewise suing as taxpayers, stating that
any funding provided to operationalize the law, being
unconstitutional, is unlawful and is a waste of public
funds. Moreover, the law does not speak where the
funding for day-to-day operations of the Anti-Terrorism
Council will come from, and petitioners assert that it is
their right under Section 7 of the Bill of Rights and as a
taxpayer to know how the ATC and the so-called War
against terror will be funded. Nevertheless, as the law is
unconstitutional, such funds will likewise be illegally
disbursed.
RIPENESS FOR ADJUDICATION
62.Justice Regalado, in his book, Remedial Law
Compendium, enumerates the following requisites for an
action for declaratory relief, to wit:
12 Ibid.
13 Ibid
22
“(a) The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance;
“(b) The terms of said documents and the validity thereof are doubtful and require judicial construction;
“(c) There must have been no breach of the documents in question;
“(d) There must be an actual justiciable controversy or the “ripening seeds” of one between persons whose interests are adverse;
“(e) The issue must be ripe for judicial determination; and
“(f) Adequate relief is not available through other means or other forms of action or proceeding.”
63.Paragraph (a) points to the subject matter of the action.
The present petition’s subject matter is Republic Act
9372, otherwise known as the Human Security Act of
2007, especially sections 3, 7, 18, 26 and 27.
64.Paragraph (b) provides for the issue or cause of the
action. In this petition, the provisions of the aforesaid
sections, read in their pure form, are of doubtful
constitutionality, and their implementation may lead to
arbitrariness; hence, they require judicial construction.
65.Paragraph (c) requires that no damage has yet been
done to the one suing for declaratory relief, since such
occurrence already gives way to an ordinary civil action.
23
66.Paragraph (d) requires ripeness for judicial
determination. As RA 9372 is now in full effect, albeit
awaiting its implementing rules and regulations, this
criterion is met. In this regard, the Court declared in
Ople vs. Torres, to wit:
“xxx [t]he ripeness for adjudication of the petition at bar is not affected by the fact that the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules.” (emphasis supplied)
67.Paragraphs (e) and (f) point to the exhaustion of any and
all available remedies for adequate relief. In the case
when a statute is involved, the principle of presumption
of constitutionality stands; hence, the only remedy for
any questions concerning the constitutionality of the law
lies in the Judiciary.
68.Section 2 of Rule 63 of the Revised Rules of Court states,
to wit:
“All persons who have or claim any interest which would be affected by the declaration shall be made parties xxx”
24
69.The determination of the fitness of the issues for judicial
decision, the hardship to the parties of withholding court
consideration, and even the immediate and substantial
impact upon the respondents of the implementation of
the Human Security Act of 2007 have bases as well on
jurisprudence.
70.Consistent with the controlling doctrine espoused in
Gonzales v COMELEC,14 this instant petition is filed after
the effectivity date of 15 July 2007. In the
aforementioned case, the petitioners therein waited for
the assailed law to become effective before filing the suit;
to avoid the vice of prematurity in their suit, petitioners
herein similarly adopt the same approach.
71.In another decision, the Supreme Court, in Bayantel vs.
Republic, which was a petition for declaratory relief,
stated that “[a]n issue is ripe for judicial determination
when litigation is inevitable or when administrative
remedies have been exhausted.”
14 Gonzales v COMELEC, 9 SCRA 230 (1963).
25
72.Due to the national scope of the law and its application
dependent on the authorities implementing it, any
ambiguity of the definition or concern on the procedural
aspect of the law could lead to breach of rights of any
Filipino citizen suspected as a terrorist.
73.The US Supreme Court in Poe vs. Ullman,15 declared
that “for the Court to adjudicate petitions for declaratory
judgments on state or federal laws, there must exist a
‘realistic fear of prosecution’” must be met. In this
instant petition, this requirement is highly met. The
petitioners, citizens of the country, are indeed
susceptible to prosecution for the effect of the law
extends to any citizen, regardless of affiliation. All could
well be under the definition of terrorist as provided by
the law and be subjected to prosecution. This could have
serious repercussions on the civil liberties of the people
of the Philippines.
74.Subsequently, the Philippines, a staunch ally of the US
global war on terror in Southeast Asia, has manifested its
support of the classification of certain groups as
terrorists. No less than the President herself proclaimed
15 Poe vs. Ullman, 367 U.S. 497 (1961).
26
at the three-day Mindanao Peace and Security Summit at
the Pryce Hotel in Cagayan de Oro that “[i]f you are a
communist terrorist, we will stop you. If you are a
religious terrorist, we will stop you. If you are a
rogue element of our own police or military, we will
stop you.”16 And yet, due to the still undefined word,
“terrorism,” there is still confusion as to who the
President is addressing such remarks.
75.Even before the effectivity of RA 9372, critics and the
political opposition, as well as those who simply earned
the ire of those in power, have been prosecuted or have
been threatened with prosecution as a result of their
criticisms and political leanings. If petitioners have been
subjected to prosecution or threats of prosecution prior to
the effectivity of RA 9372, then the said law now in effect
—with all its attendant unconstitutional provisions as
alleged in the discussion that follows—raises the
possibility of inevitable litigation or prosecution to new
heights.
16 “1st targets: Rogue AFP, red terrorists,” Paolo Romero, The Philippine Star, Vol. XXI, No. 346, Wednesday, July 11, 2007, p. 1.
27
76.Therefore, as stated, a petition for declaratory relief is
the proper and only remedy available to petitioners in this
case.
DISCUSSION
Section 3 of Republic Act No. 9372 is void for being vague since it does not provide for a definition of “terrorism”.
77.Sec. 3 of Republic Act 9372, or the Human Security Act
of 2007, states:
“Sec. 3. Terrorism. – Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:
a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
b. Article 134 (Rebellion or Insurrection);
c. Article 134-a (Coup d’Etat), including acts committed by private persons;
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction);
or under
28
(1) Presidential Decree No. 1613 (The Law on Arson);
(2) Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
(3) Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968);
(4) Republic Act No. 6235 (Anti-Highjacking Law);
(5) Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and,
(6) Presidential Decree No. 1866, as amended (Decree codifying the Law on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives);
thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.”
78.The attempt at defining the word “terrorism” proceeds
from an enumeration of crimes and felonies provided for
by the Revised Penal Code or special laws and qualified
by “thereby sowing and creating a condition of
widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to
an unlawful demand”.
29
79.It is a well-settled principle that a law “must be
sufficiently explicit to inform those who are subject to it
what conduct on their part will render them liable to its
penalties is a well- recognized requirement, consonant
alike with ordinary notions of fair play and the settled
rules of law; and 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.”17
80.The test of whether or not a law is vague is that men of
common intelligence must necessarily guess at its
meaning and differ as to its application.18 Applying once
again the doctrine set in the recent case of David vs
Macapagal-Arroyo19, a litigant may challenge a statute if
it is vague in all its applications.
81.Even though terrorism has been a common term in the
past several years, no definition has been put forth to
which majority of the authorities have agreed. In the
language used by the Court in David vs. Macapagal-
Arroyo, the phrase “acts of terrorism” is still an
17 Connally v General Construction Co., 269 U.S. 385.18 Ermita-Malate Hotel and Motel Operators Association v City Mayor. 20 SCRA 849.
19 David vs. Arroyo, G.R. No. 171396
30
amorphous and vague concept. The extent of this
vagueness can be gleaned from the comment in the same
decision, which deserves to be quoted in full:
“In fact, this “definitional predicament” or the “absence of an agreed definition of terrorism” confronts not only our country, but the international community as well. The following observations are quite apropos:
“In the actual unipolar context of international relations, the “fight against terrorism” has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states “sponsoring terrorism” and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public, but are clearly determined by strategic interests.
“The basic problem underlying all these military actions – or threats of the use of force as the most recent by the United States against Iraq – consists in the absence of an agreed definition of terrorism.
“Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as liberation movements, or by individuals.
“The dilemma can by summarized in the saying “One country’s terrorist is another country’s freedom fighter.” The apparent contradiction or lack of consistency in the use of the term “terrorism” may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally respected statesmen.
“What, then, is the defining criterion for terrorist acts – the differentia specifica
31
distinguishing those acts from eventually legitimate acts of national resistance or self-defense?
“Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate “terrorism” with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned.
“The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India, liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United States, terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way – because of opposing political interests that are at the roots of those perceptions.
“How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of terrorism will
32
“fluctuate” accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a “liberation struggle,” not of “terrorism” when acts of violence by this group are concerned, and vice-versa.
“The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A “policy of double standards” on this vital issue of international affairs has been the unavoidable consequence.
“This “definitional predicament” of an organization consisting of sovereign states – and not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become even more serious in the present global power constellation: one superpower exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United States.
“The absence of a law defining “acts of terrorism” may result in abuse and oppression on the part of the police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them x x x . Obviously, this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding penalty thereon.”20 (citation omitted)
82.In a half-hearted attempt at defining “terrorism”, the
legislature merely enumerated acts already punishable
under the Revised Penal Code, and merely added the
20 David vs. Macapagal Arroyo, ibid.
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phrase “thereby sowing and creating a condition of
widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to
an unlawful demand”. This attempt at defining the
already vague term of terrorism only added confusion
with vague words and phrases like “widespread”,
“extraordinary”, “fear”, “panic”, and “unlawful demand”.
Petitioners contend that this feeble attempt at defining
terrorism only gives the military, police, and other
branches of the executive unbridled discretion in
describing certain acts as “acts of terrorism” without
giving the people the faintest idea of what acts should be
avoided in order to evade persecution for terrorism.
83.Sec. 3 does not provide complete and sufficient
standards to guide the authorities in dealing with an
accused alleged to have committed the offense. In
Estrada v. Sandiganbayan21 citing People v. Nazario, the
Supreme Court said:
“A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two respects:
a) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and
21 Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001
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b) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.” (emphasis supplied)
84.Due to this, there exists a danger of prosecution to
petitioners and to any citizen of the country who may be
branded as a terrorist. The arbitrariness which
unfortunately rocks our bureaucracy poses a real threat
to all citizens.
Section 7 of RA 9372 violates the Right to Privacy of Communication and Due Process
85.Sec. 7 of Ra 9372 provides:
“Sec. 7. Surveillance of Suspects and Interception and Recording of Communications. – The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
“Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.”
35
This is clearly violative of the constitutionally guaranteed right to
privacy of communication:
“Sec. 3. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
“Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
86.Moreover, petitioner Fr. Joe Dizon avers that his rights
as a priest as well as those of his penitents stand to be
violated since priest-penitent relationships are not
included in the exclusions, making confessions made to
priests unconditionally susceptible to Section 7 of the
Human Security Act of 2007.
87.The abovementioned section also violates due process.
It is clear that intrusion is allowable upon an order of the
court or when public safety or order requires otherwise,
as prescribed by law. But if the intrusion is to be done
through wiretaps “for any communication, message,
conversation, discussion, or spoken or written words
between members of a judicially declared and outlawed
terrorist organization, association, or group of persons or
of any person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism” when a
36
definition of terrorism is wanting, it makes the provision
applicable to just any person.
88.Moreover, this provision allows violations of the privacy
of communication of people on mere suspicion of
conspiracy to commit terrorism. Not once in the history
of world jurisprudence has there been a penalty for mere
suspicion of conspiracy to commit a crime. The reason is
very clear: conspiracy, as a state of mind, can only be
proven when there was an agreement between two or
more persons to commit a certain crime and thereafter
decide to commit it. Being a mental act that would only
become manifest. Being a state of mind, the burden to
prove that there was conspiracy lies heavily in the
prosecution. Sec. 7 of RA 9372 attempts to remove this
heavy burden by including persons “suspected of x x x
conspiracy to commit terrorism” together with persons
charged with terrorism. The inclusion of such persons
suspected of conspiracy to commit terrorism in several
provisions of RA 9372 is violative of due process and
therefore, unconstitutional.
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Section 18 of RA 9372 is violative of the Due Process Clause
89.The whole Sec. 18 of RA 9372 smacks of violations to the
Bill of Rights. The first paragraph thereof states, to wit:
“Sec. 18. Period of Detention Without Judicial Warrant of Arrest. – The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy must result from the surveillance xxx.”
90.Sec.18. Period of detention without judicial warrant of
arrest violates Sec. 22 of Article III of the 1987
Constitution which provides, to wit:
“No ex post facto law or bill of attainder shall be enacted” (emphasis supplied)
91.Joaquin Bernas, S.J., in his book, The 1987 Consitution of
the Republic of the Philippines: A Commentary, mentions
that Sec. 22 of the Bill of Rights can be applied to
38
criminal procedural law prejudicial to the accused.22
Clearly, by changing the duration of custody, the law has
prejudiced the accused. This will allow the police or the
military unwarranted access to the suspects thereby
increasing their exposure to torture and intimidation
during the course of the investigation.
92.The acts of terrorism as enumerated under Sec. 3 of RA
9372 are acts punishable under the existing RPC. It has
repealed, in effect, Art. 125 of the RPC in relation to the
felonies described as terrorism as the provision would
not be made to apply to detained persons under this Act.
93.Under Art 125, for crimes or offenses punishable by
capital penalties, the public officer or employee who
detains, on legal ground, an accused for more than 36
hours would be liable for a felony. Under RA 9372, the
police or law enforcement officer is allowed to detain for
a maximum number of three days, a person he has
previously arrested without a warrant. The maximum
length of warrantless arrest and detention is also made 22 Joaquin Bernas, S.J., The 1987 Consitution of the Republic of the
Philippines: A Commentary, (Quezon City: Rex Printing Compnay, Inc., 2003), p. 600 citing Mekin v. Wolfe, 2 Phil. 74, 78 (1903); US v. Jueves, 23 Phil. 100, 105 (1912); Roman Cath. Bishop of Lipa v. Municipality of Taal, 38 Phil. 367 (1918); Province of Camarines Sur v. Director of Lands, 64 Phil. 600(1937); Ongsiako v. Gamboa, 86 Phil. 50, 54 (1950); Tolentino v. Angeles, 99 Phil. 309, 318 (1956); Phil. National Bank v. Ruperto , G.R. No. L-13777, June 30, 1960; Snatos v. Secretary of Public Works and Communications, G.R. No. L-16049, March 18, 1967.
39
applicable to a person suspected for committing a
conspiracy to commit any of the acts of terrorism, which
is not originally punished under the RPC. The said
article states, to wit:
“Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).”
94.It also violates Sec. 2, Article II of the 1987 Constitution
which states:
“Sec. 2. x x x adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, fredom x x x.” (emphasis supplied)
95.As a signatory of the United Nations’ Universal
Declaration of Human Rights which was approved by
the General Assembly of the United Nations of which the
Philippines is a member at its plenary meeting on
40
December 10, 1948 where “the right to life and liberty
and all other fundamental rights as applied to all
human beings” were proclaimed, the Philippines has a
duty to uphold these principles for they are, after all,
“adopted as part of the law of the land.”
96.Furhtermore, the UDHR provides that:
“Article 1.All human beings are born free and equal in degree and rights;
“Article 2.Everyone is entitled to all the rights and freedom set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status;
xxx xxx xxx
“Article 8.Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law;
“Article 9.No one shall be subjected to arbitrary arrest, detention or exile” (emphasis supplied)
97.Sec. 18 of RA 9372 also violates Sec. 1, Article III of the
1987 Constitution stating:
“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 laws”
98.In view of Sec. 2, Article III of the Constitution, the rule
is that no arrest may be made except by virtue of a
41
warrant issued by a judge after examining the
complainant and the witnesses he may produce and after
finding probable cause to believe that the person to be
arrested has committed the crime. The exceptions
when an arrest may be made even without a warrant are
provided in Rule 113, Sec. 5 of the Rules of Criminal
Procedure which reads:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of the facts indicating that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
99.However, in RA 9372, no probable cause is needed to be
determined by the judge. The judicial determination by
the police or law enforcement officers who will make the
arrests is based on or must result from the surveillance
under Sec 7 (recording of communications) and Sec 27 of
the Act (examination of bank deposits). Court
authorization is needed for the conduct of surveillance
but not for the arrests to be made.
42
100.Moreover, RA 9372 violates the International Covenant
on Civil and Political Rights (hereinafter cited as ICCPR).
The UN General Assembly adopted the ICCPR on
December 16, 1966. The Philippines signed the
convention on December 19, 1966 but ratified it only on
October 23, 1986. International Covenant for Civil
and Political Rights (ICCPR) contains the protection
of a citizen(s) from illegal/arbitrary arrest, prolonged
detention, torture and court delay. The Philippine
government is a state party to the ICCPR. It is provided
in Article 9 therein, to wit:
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 procedures 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;
3. Anyone arrested or detained in 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 reasonable time or to release.
4. Anyone who was deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that such court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
43
5. Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.
101.In relation to this, in the case, Roger Posadas et. al., vs
The Hon. Ombudsman,23 the Court declared, to wit:
“The determination of the existence of probable cause that the persons to be arrested committed the crime was for the judge to make. The law authorizes a police officer or even an ordinary citizen to arrest criminal offenders only if the latter are committing or have just committed a crime. Otherwise, we cannot leave to the police officers the determination of whom to apprehend if we are to protect our civil liberties. This is evident from a consideration of the requirements before a judge can order the arrest of suspects. Art. III, §2 of the Constitution provides:
“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.”24
Section 26 of RA 9372 violates the Right of the People to Travel
102.Section 26 of RA 9372 provides:
Sec. 26. Restriction on Travel – In cases where evidence of guilt is not strong, and the person
23 Roger Posadas et. al., vs The Hon. Ombudsman, G.R. No. 131492 September 29, 2000.
24 Ibid.
44
charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court.
He/she may also be placed under house arrest, by order of the court at his or her usual place of residence.
x x x (emphasis supplied)
103.This provision clearly violates Section 6, Article III of
the Constitution, which provides for an inviolable right of
the people to travel shall not be impaired except in the
interest of national security, public safety, or public
health, as may be provided by law. Imposing a restriction
on people charged with terrorism or conspiracy to
commit terrorism when evidence of guilt is not strong
does not fall under the exception provided for in the Bill
of Rights. The inclusion of the phrase “in the interest of
national security and public safety, consistent with
Article III, Section 6 of the Constitution” in Sec. 26 is but
a mere superfluity, invoking the exception provided in
said Constitutional provision without stating the reason
why such persons charged, when evidence of guilt is
45
NOT strong, fall under the exception. In any case, it is
beyond logic and reason to say that a person whose
evidence of guilt is not strong can be the subject of the
State’s interest of national security, public safety, or
public health.
104.This grave violation of Sec. 6 Art. III of the Constitution
must not escape the scrutiny of the Courts. The issue is
of transcendental importance and petitioners invoke
their right as citizens in seeking the nullity of the said
Section 26 of RA 9372.
Section 27 of RA 9372 is violative of Section 2, Article III of the Constitution
105.Section 27 is in violation of right to property and the
right against unreasonable search and seizure inasmuch
as it did not specify the transactions and the period the
deposits, accounts and records to be viewed. It is a
blanket authority to open said accounts. It states, to wit:
Sec. 27. Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. – The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-
46
terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals. (emphasis supplied)
106.While no mention of the words “search and seizure”
can be read from the above section, such examination
and gathering, of deposits, placements, trust accounts,
assets, and records of persons charged or suspected of
the crime of terrorism or conspiracy to commit terrorism
still fall under the term “search and seizure” mentioned
in the Constitution.
107.This provision violates Sec. 2 Art III of the Constitution,
which strictly provides for procedures to follow in cases
of search and seizure. Relevant to the preceding section
47
of RA 9372, the Constitution provides that “x x x no
search warrant shall issue except upon probable cause x
x x and specifically describing the x x x things x x x to be
seized.”
108.By virtue of Section 27 of RA 9372, the legislature has
amended Sec. 2 Art III of the Constitution since it
provides for a different method of obtaining search
warrants as described above.
PRAYER
WHEREFORE, it is respectfully prayed of this Honorable
Court to exercise its power to:
a.) declare the unconstitutionality of Secs. 3, 7, 18, 26
and 27 of Republic Act 9372 ;otherwise known as
the Human Security Act of 2007;
b.) restrain public respondents, members of the ATC,
from discharging their functions under the statute;
c.) restrain the Departments of Budget and
Management, and Finance, and the Bureau of
Treasury from disbursing any funds for the purpose
of implementing such statute;
48
d.) restrain the Armed Forces of the Philippines and the
Philippines National Police from enforcing the
statute.
Quezon City.
17 July 2007.
ROQUE BUTUYAN LAW OFFFICE
Counsel for the PetitionersUnit 1904, Antel Corporate Centre, 121 Valero Street, Salcedo Village,
Makati City, Philippines
By:
H. HARRY ROQUE, JR.PTR No. 0310306/10 Jan
2007/Makati CityIBP Lifetime Member
Roll No. 36976
EXPLANATION
Due to distance and lack of messengers at the Law Office to effect personal service, the foregoing PETITION was sent through registered mail.
H. HARRY ROQUE, JR.Counsel for the Petitioners
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Copy Furnished:
Sec. Eduardo ErmitaExecutive Secretary Office of the Executive SecretaryMalacañang Palace, Manila
Sec. Raul GonzalezSecretary Department of Justice Padre Faura, Manila
Sec. Alberto Romulo SecretaryDepartment of Foreign Affairs Roxas Boulevard, Pasay City
Sec. Ronaldo PunoSecretary Department of Interior and Local Government Kamias cor. EDSA,Quezon City
Sec. Margarito TevesSecretary Department of Finance Roxas Boulevard, Pasay City
Sec. Rolando Andaya SecretaryDepartment of Budget and ManagementGen. Solano St., San Miguel, Manila
Hon. Roberto TanOfficer-in-Charge of the Bureau of TreasuryPalacio del Gobernador Bldg., Intramuros, Manila
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Sec. Norberto GonzalesNational Security Adviser and concurrent Officer-in-ChargeDepartment of National Defense Camp Aguinaldo, Quezon City
Gen. Hermogenes Esperon Chief of StaffArmed Forces of the PhilippinesCamp Aguinaldo, Quezon City
Dir./Gen. Oscar CalderonDirector GeneralPhilippine National PoliceCamp Crame, Quezon City
Hon. Agnes DevanaderaSolicitor-General Office of the Solicitor General 134 Amorsolo St., Legaspi Village, Makati City, Metro Manila.
51