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Government engaged in truth tagging, not red-tagging–OSG exec

THE Supreme Court on Tuesday held its 6th  argument on the 37 petitions seeking to declare as unconstitutional the controversial Anti-Terrorism Act (ATA) of 2020.

During the oral argument conducted virtually due to pandemic curbs, the magistrates continued their interpellation of the arguments offered by representatives of the Office of the Solicitor General (OSG) in seeking the dismissal of the petitioners.

Associate Justice Jhosep Lopez grilled Assistant Solicitor Marissa de la Cruz-Galandines on Section 29 of the ATA, which allows enforcement agents or military personnel, who have been duly authorized in writing by the Anti-Terrorism Council (ATC), to arrest persons suspected of committing terrorism or any of the acts defined and penalized under the ATA without the need for a warrant issued by the court.

“Suspected, does this mean the quantum of evidence enough to take a person into custody is only based in suspicion and not on probable cause as required under Rule 113 on warrantless arrest?” Lopez asked.

Galandines, however, stressed that the written order from the ATC would only be for the continued detention of the suspect who was arrested following a valid warrant of arrest.

“We did look into the intent and it was very clear from the interpellation of Senator Panfilo Lacson [proponent of the law] that the intention of the law was for the ATC to issue a written order for the continued detention and not the issuance of an arrest order,” Galandines explained.

Lopez also questioned Galandines on the power of the ATC to authorize the detention of suspected terrorists for as long as 24 days.

Lopez noted that Article 7, Section 18 of the Constitution limits the period of detention without filing any charges to only three days and only in two conditions—suspension of the privilege of the writ of habeas corpus and in cases of rebellion and invasion when public safety so requires.

“What makes you think that under ordinary times, you can detain a person to as many as 24 days when the Constitution limits it to three days only at maximum during suspension of the privilege of the writ of habeas corpus?” Lopez asked.

“Under extraordinary circumstances, the maximum is only three days and yet under ordinary times like what we are having right now, no emergency, no rebellion or anything, no invasion and yet the maximum period of detention is 24 days,” he pointed out.

Galandines argued that Section 18, Article 17 came about because of fear that martial law will again be proclaimed by a sitting President.

“This is actually an answer to the fear brought about by the previous government prior to the presidency of [the late] President Corazon Aquino,” she noted.

She added that terrorism has evolved from 1987 to the present.

Seemingly unconvinced by Galandines’s argument, Lopez urged the government lawyer to look into the transcript of the deliberations of the framers of the Constitution to determine their real intent in including the said provision in the Constitution.

Lopez also grilled Galandines on the constitutionality of Section 25 of the ATC, which allows the designation of an individual or organization as a terrorist or engaged in terrorism.

The magistrates noted that Galandines stated in the previous oral argument that the designation is merely for purposes of applying for a freeze order against suspected terrorist organizations or individuals.

But Lopez questioned the need to designate a person or a group a terrorist in order to file a freeze order.

“During my time as an associate justice of the Court of Appeals, we have AMLAC [Anti-Money Laundering Council] cases against perhaps terrorists, there was never any kind of designation. You can file it with the Court of Appeals and get a freeze order without having to designate anybody or any organization as terrorist,” Lopez said.

“Is designation by itself a penalty because in the eyes of the law you are already designated a terrorist. In fact, in the eyes of your family, or your friends, of your relatives, your neighbors? In fact, of the entire country, know and they will know that you are already a designated terrorist. So don’t you think that this…need not be put into the law?” the magistrates asked.

In defending the provision on designation, Galandines stressed that it is a prerogative measure of the ATC and that “the process of designation does not amount to indictment or conviction.”

Lopez insisted that designation as a terrorist itself is already tantamount to a penalty.

On the other hand, Associate Justice Ricardo Rosario brought the issue of red-tagging of organizers of community pantries during the oral argument.

Rosario noted that the National Task Force to End Local Communist Armed Conflict recently red-tagged the organizer of Maginhawa community pantry organizer Patricia Non without sufficient evidence.

“How will the government ensure that the ATA will unduly and unlawfully identify any person as a suspect of terrorism merely on the basis of suspicion?” Rosario asked Galandines.

“Does this incident support the petitioners’ allegation of future surveillance and red-tagging?” he added.

Galandines, however, assured the Court the government is not involved in red-tagging and that the term was coined by leftists.

“The government is firm that what it does is the submission of the government is that what it does is truth tagging and not red-tagging,” Galandines said.

The Court has yet to hear legal opinions of amici curiae  former Chief Justice Reynato Puno and former  SC Associate Justice and Solicitor General Francis Jardeleza  on the issue.

Puno and Jardeleza have been designated by the Court as amici curiae (friends of the court) to give their expert opinion on the matter.

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