Lagman: Anti-Terrorism Act is irremediably unconstitutional

By Mavic Conde

Six-clustered memoranda have been filed with the Supreme Court as consolidated petitions from the 37 groups of petitioners seeking the declaration of unconstitutionality of the Anti-Terrorism Act of 2020 (ATA).

Among the petitioners, Rep. Edcel C. Lagman prepared the memorandum for cluster 5, which reiterated the petitioners’ appeal to void Section 29 of the ATA on detention without judicial warrant of arrest. This, in addition with the other challenged provisions of the ATA, and the ATA itself on the whole as unconstitutional.

In a news release, Lagman pointed out the following reasons why said Section 29 is irredeemably unconstitutional:

"No less than its subtitle, which reads “Detention without Judicial Warrant of Arrest”, is an express admission that the written authorization of the Anti-Terrorism Council (ATC) for the arrest and detention of a terrorist suspect is a violation of Section 2 of Article III of the Bill of Rights, which mandates that no person can be arrested without a warrant of arrest solely issued by a judge upon finding of probable cause," the news release read.

Moreover, Lagman emphasized that the ATC is a purely executive agency; thus, cannot be vested with the power to issue a warrant of arrest, or seize a suspect via a written authorization since only a judge can order the latter.

He pointed out that arrest based merely on suspicion violates the constitutional requirement that there must be probable cause before a person can be arrested. Likewise, he said "prolonged detention is against the limited periods of detention of a person under Article 125 of the Revised Penal Code" which prohibits the detained person to be suspended or cast aside, particularly if the detention is arbitrary (or in this case based on mere suspicion).

Also, he reasoned out that the arrest and detention under Section 29 are not among the three limited instances of warrantless arrest under Section 5 of Rule 113 of the Rules of Court. Only the Supreme Court can amend it, not legislation like the ATA. Even with the Implementing Rules and Regulations (IRR) on the ATA to cure the constitutional infirmities of Section 29, according to him, such an attempt is an exercise in futility. Because "the IRR as a mere administrative issuance cannot supplement, modify, amend, or cure the substantive law, which it seeks to implement."

Furthermore, Lagman said that the inordinately long detention period of a maximum of 24 days authorized under Section 29 violates the constitutional guarantees, which include the right to due process, right against unreasonable seizures or arrests, right to presumption of innocence, right to bail, right to speedy disposition of one’s case, right against torture, and right to secure the writs of habeas corpus and amparo, where time is of the essence in the effective exercise of said rights.

"Moreover, the long detention without judicial warrant, intervention and oversight violates the international covenants, of which the Philippines is a State party, prohibiting arbitrary arrests and arbitrary detention," Lagman said.