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195 views130 pagesGR 252578
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/ 130
EN BANC
G.R. No. 252578 — ATTY. HOWARD M. CALLEJA, ET AL.,
petitioners, v. EXECUTIVE SECRETARY, ET AL., respondents;
G.R. No. 252579 — REP. EDCEL C. LAGMAN, petitioner, v.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, ET AL.,
respondents;
G.R, No. 252580 - MELENCIO S. STA, MARIA, et al., petitioners, v.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, ET AL.,
respondents;
GR. No. 252585 - BAYAN MUNA PARTY-LIST
REPRESENTATIVES CARLOS ISAGANI T. ZARATE, ET AL.,
petitioners, y. PRESIDENT RODRIGO DUTERTE, ET AL.
respondents;
G.R. No. 252613 — RUDOLF PHILIP B. JURADO, petitioner, v. THE
ANTI-TERRORISM COUNCIL, ET AL., respondents;
G.R. No. 252623 — CENTER FOR TRADE UNION AND HUMAN
RIGHTS (CTUHR), ET AL., petitioners, v. HON. RODRIGO R.
DUTERTE, ET AL., respondents;
G.R. No. 252624 — CHRISTIAN S. MONSOD, ET AL., petitioners, v.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, ET Al
respondents;
G.R. No. 252702 - FEDERATION OF FREE WORKERS (FFW-
NAGKAISA) HEREIN REPRESENTED BY ITS NATIONAL
PRESIDENT ATTY. JOSE SONNY MATULA, ET AL., petitioners, v-
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, ET AL., respondents;
G.R. No. 252726 — JOSE J. FERRER, JR., petitioner, v. EXECUTIVE
\CRETARY SALVADOR C. MEDIALDEA, EF AL., respondents;
G.R. No. 252733 — BAGONG ALYANSANG MAKABAYAN (BAYAN)
eCRETARY GENERAL RENATO REYES, JR., ET AL., petitioners,
y. ILE. RODRIGO R. DUTERTE, ET AL., respondents;
GR. No. 252736-— ANTONIO T. CARPIO, Ef AL., petitioners, v.
ANTI-TERRORISM COUNCIL, ET AL., respondents;
GR. No. 252741 — MA. CERES P. DOYO, ET AL., petitioners, v.
SALVADOR MEDIALDEA, IN WIS CAPACITY AS EXECUTIVE
SECRETARY, ET AL., respondents; Concurring and Dissenting Opinion 2 GR. Nos. 252578, et al.
G.R. No. 252747 — NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES, ET AL., petitioners, v. ANTI-TERRORISM COUNCIL,
ET AL., respondents;
G.R. No. 252755 - KABATAANG TAGAPAGTANGGOL Nt
KARAPATAN REPRESENTED BY ITS NATIONAL CONVEI
BRYAN EZRA C. GONZALES, ET AL., petitioners, v. EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, ET AL., respondents;
G.R. No. 252759 — ALGAMAR A. LATIPH, ET AL., petitioners, v.
SENATE, REPRESENTED BY ITS PRESIDENT, VICENTE C.
SOTTO I, ET AL., respondents;
G.R. No. 252765 — THE ALTERNATIVE LAW GROUPS, INC. (ALG),
petitioner, v. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, ET AL., respondents;
GR. No. 252767 — BISHOP BRODERICK S. PABILLO, ET AL.,
petitioners, v. PRESIDENT RODRIGO R. DUTERTE, ET AL.,
respondents;
GR. No. 252768 — GENERAL ASSEMBLY OF WOMEN FOR
REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION
(GABRIELA), INC., ET AL., petitioners, v. PRESIDENT RODRIGO
ROA DUTERTE, ET AL., respondents;
UDK 16663 — LAWRENCE A. YERBO, petitioner, vy. OFFICES OF
THE HONORABLE SENATE PRESIDENT, ET AL., respondents;
GR. No. 252802 - HENDY ABENDAN OF CENTER FOR YOUTH
PARTICIPATION AND DEVELOPMENT INITIATIVES, ET AL.
petitioners, ¥. HON. SALVADOR C. MEDIALDEA, ET AL.
respondents;
G.R. No. 252809 - CONCERNED ONLINE — CITIZENS
REPRESENTED AND JOINED BY MARK L. AVERILLA, ET AL.,
petitioners, vy. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, ET AL., respondents;
G.R. No. 252903 — CONCERNED LAWYERS FOR CIVIL
LIBERTIES (CLCL) MEMBERS RENE A.V. SAGUISAG, ET AL,
petitioners, ¥. PRESIDENT RODRIGO ROA DUTERTE, ET AL.,
respondents;
G.R. No. 252904 — BEVERLY LONGID, ET AL., petitioners, v. ANTI-
TERRORISM COUNCIL, ET AL., respondents; Concurring and Dissenting Opinion 3 GR. Nos. 252578, ef al.
G.R. No. 252905 — CENTER FOR INTERNATIONAL LAW
(CENTERLAW), INC., ET AL., petitioners, v. SENATE OF THE
PHILIPPINES, ET AL., respondents;
G.R. No. 252916 — MAIN T. MOHAMMAD, ET AL., petitioners, v.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, ET AL.,
respondents;
G.R. No. 252921 — BRGY. MAGLAKING, SAN CARLOS CITY,
PANGASINAN SANGGUNIANG KABATAAN (SK) CHAIRPERSON
LEMUEL GIO FERNANDEZ CAYABYAB, ET AL., petitioners, v.
RODRIGO R. DUTERTE, ET AL., respondents;
G.R. No. 252984 — ASSOCIATION OF MAJOR RELIGIOUS
SUPERIORS IN THE PHILIPPINES (REPRESENTED BY ITS CO-
CHAIRPERSONS, FR. CYELITO R. ALMAZAN OFM AND RSR
MARILYN A. JAVA RC AND ITS CO-EXECUTIVE SECRETARIES,
FR. ANGELITO A. CORTEZ OFM AND SR. CRISVIE T.
MONTECILLO, DSA), ET AL., petitioners, vy. EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, ET AL., respondents;
G.R. No. 253018 — UNIVERSITY OF THE PHILIPPINES (UP)-
SYSTEM FACULTY REGENT DR. RAMON GUILLERMO, ET AL.,
petitioners, v. ELE. RODRIGO R. DUTERTE, ET AL., respondents;
G.R. No. 253100 — PHULIPPINE BAR ASSOCIATION, petitioner, v.
THE EXECUTIVE SECRETARY, ET AL., respondents;
GR. No. 253118 — BALAY REHABILITATION CENTER, INC.
(BALAY), ET AL., petitioners, v- RODRIGO R. DUTERTE, IN HIS
CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, ET AL., respondents;
G.R. No. 253124 — INTEGRATED BAR OF THE PHILIPPINES, ET
AL., petitioners, v. SENATE OF THE PHILIPPINES, ET AL.,
respondents;
GR. No. 253242 — COORDINATING COUNCIL FOR PEOPLE’S
DEVELOPMENT AND GOVERNANCE, INC. (CPDG), ET A)
petitioners, ¥. RODRIGO R. DUTERTE, ET AL., respondents;
G.R. No. 253252 PHILIPPINE MISEREOR PARTNERSHIP, INC.,
ET AL., petitioners, y. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, ET AL., respondents;
G.R. No. 253254 — PAGKAKAISA NG KABABAIHAN PARA SA
KALAYAAN (KAISA KA) ACTION AND SOLIDARITY FOR THE
/ Concurring and Dissenting Opinion 4 GAR. Nos. 252578, ef al.
EMPOWERMENT OF WOMEN (ASSERT-WOMEN), ET AL.,
petitioners, v. ANTI-TERRORISM COUNCIL, ET AL., respondents;
G.R. No. 254191 (UDK 16714) - ANAK MINDANAO (AMIN) PARTY-
LIST REPRESENTATIVE AMIHILDA SANGCOPAN, ET AL.,
petitioners, vy. THE EXECUTIVE SECRETARY HON. SALVADOR C.
MEDIJALDEA, ET AL., respondents;
No. 253420 — HAROUN ALRASHID ALONTO LUCMAN, JR.,
r AL., petitioners, vy. SALVADOR C. MEDIALDEA IN HIS
CAPACITY AS EXECUTIVE SECRETARY, ET AL., respondents.
G.
Promulgated:
December 7, 2021
CONCURRING AND DISSENTING OPINION
“The challenge to our liberties comes frequently
not from those who consciously seck to destroy
our system of government, but from men of
goodwill—good men who allow their proper
concerns to blind them to the fact that what they
complish involves an impairment of
iam O. Douglas,
Bill of Rights!
CAGUIOA, J:
‘This case involves a statute that unapologetically encroaches on
protected freedoms. Unlike most laws that_were previously challenged
before the Court, Republic Act (R.A.) No. 11479, or the Anti-Terrorism Act
of 2020 (ATA), unabashedly breaches fundamental liberties — as these
breaches are plainly written in the law itself. Respondents do not refute this.
‘They argue only that without the requisite intent to commit terrorism,* the
exercise of civil and political rights remain unburdened.*
From the numerous and voluminous submissions of the parties, the
issues in this case can be distilled down to the following questions:
' Cited in the Dissenting Opinion of then Associate Justice Claudio S, Teehankee in dn Re: Hagan v.
Envile, No. L-70748, October 21, 1985, 139 SCRA 349, 391. Emphasis supplied; italies omitted
2° AN ACT'TO PREVENT, PROJIINTT AND PENALIZE TERRORISM, THERERY REPEALING REPUBLIC ACT NO.
19372, otherwise known as the “HUMAN SECURITY ACT OF 2007," approved on July 3, 2020.
3 Memorandum for Respondents (Vol. 1), p. 285.
4 Memorandum for Respondents (Vol. 11), p. 288-291; Memorandum for Respondents (Vol. 11D, p.
634-635, GR. Nos. 252578, et al.
Concurring and Dissenting Opinion
(1) Whether petitioners present an actual or justiciable controversy;
(2) Whether a penal statute, such as the ATA, may be facially
challenge
(3) Whether the ATA infringes fundamental rights guaranteed
under the Constitution; and
(4) Whether the ATA violates the principle of separation of
powers.
‘The majority partially grants the petitions and declares as
unconstitutional the following provisions of the ATA: (1) the qualifying
clause (denominated as the “Not Intended Clause” in the ponencia) in
Section 4° that carved out an exception to the exercise of civil and political
rights:” and (2) the second mode of designation in Section 25.* At the same
time, the majority declares as constitutional a portion of Section 4° (as
delineated by the ponencia), Sections 5, 6,"' 8, 9, 10," 12," the first!
and third! modes of designation in Section 25, and Section 29.!*
join the majority in declaring unconstitutional the foregoing provisions
of the ATA. I write this Separale Opinion to expound on my reasons for
agreeing with the majority, my objections to the constitutionality of the third
mode of designation and Section 29, and to dispute the unwarranted narrow
application of facial challenges to cases involving free speech.
L
The issues raised in the consolidated
petitions warrant review under the Court's
expanded certiorari jurisdiction.
Foremost, I agree with the ponencia that except for two (2) petitions
challenging the ATA," the requirements for judicial review were met.”°
Ponencia, p. 229.
[Definition of] Terrorism.
"The proviso reads: *x x x which are not intended to cause death or serious physical hartn to a person,
to endanger a person’s life, or to create a serious risk to publie safety.” The ponencia describes this as
the “Not Intended Clause.”
+ Designation of Terrorist Individual, Groups of Persons, Organizations or Associations,
° [Definition of] Terrorisin
© Threat to Commnit Terrorism.
1! Planning, Training, Preparing, and Facilitating the Commission of Terrorism.
"2 Proposal to Commit Terrorisin.
> Inciting to Commit Terrorism,
“Recruitment to and Membership in a Terrorist Organization,
© Providing Material Support to Terrorists.
1 Automatic adoption of tne United Nations Security Council Consotidated List.
Designation by the Anti-Terrorism Council
| Detention Without Judicial Warrant of Arrest.
\ “The ponencia dismisses Yerbo ¥. Offices of the Honorable Senate President (UDK 16663) and Balay
Rehabilitation Center Ine. v. Duterto (G.R. No. 253118) Concurring and Dissenting Opinion 6 G.R. Nos. 252578, ef al.
Petitioners invoke the ‘Court's expanded certiorari jurisdiction under
Section 1, Article VIII, of the 1987 Constitution, which, although more
expansive in scope, is still, in itself, an exercise of judicial power. As such,
the following requirements of justiciability must still apply: (1) the existence
of an actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have legal standing or locus standi; (3)
the question of ‘constitutionality must be raised at the carliest possible
opportunity; and (4) the issue of constitutionality must be the very lis mota
of the case! As stated at the outset, | agree that all four requirements have
been established.
In the recent case of Pangilinan v. Cayetano,” the Court reiterated that
“t]he clause articulating expanded certiorari jurisdiction requires a prima
facie showing of grave abuse of discretion in the assailed governmental act
which, in essence, is the actual case or controversy.” Thus, it is unnecessary
for petitioners to, as the OSG submits, establish both a prima facie case of
grave abuse of discretion and an actual case of controversy. Here, the
opposing claims of petitioners and the OSG on whether the ATA violates the
provisions of the Constitution, ie, the provisions on fundamental rights,
separation of powers, and undue delegation of legislative power, among
others, constitute a prima facie case of grave abuse of discretion, which
impels the Court to exercise its expanded certiorari jurisdiction.
The controversy before the Court is also ripe for adjudication. As held
in Francisco, Jr. v. House of Representatives™ (Francisco, Jr.) to satisfy the
requirement of ripeness, “it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into
the picture.” Here, the enactment of the law which contains provisions that
contravene the Constitution is enough for the Court to exercise judicial
review.
The invocation of the political question doctrine is also unavailing. A
political question is still justiciable when there are constitutional limits on
the powers or functions conferred upon the political bodies, as with the
Congress in this case. Thus, although the Court may not inquire upon the
wisdom or policy behind the enactment of the ATA, it nevertheless has a
beholden duty to ensure that the limits on the power of Congress have not
been exceeded and the sanctity of the Constitution is upheld. This is
1 fully agroe with the reasons of the ponencia as regards the dismissal of the Yerbo petition,
which is completely lacking not only in form, but in substance. Likewise, | concur with respect to the:
dismissal of the Balay Rehabilitation Center petition, as petitioners therein anchor their arguments on
essentially factual matters that are beyond the purview of this Court’s power of judicial reviow. Thus,
‘my concurrence with the ponencia in relation wo the requirements for judicial review pertains to the
thirty-five consolidated petitions.
% Ponencia, pp. 55-61
See Association of Medical Clinies for Overseas Workers, Inc. v. GOC Approved Medical Centers
Association, Inc, G-R. Nos. 207132 & 207205, Decomber 2016, 812 SCRA 452, 492; Francisco, J. v
House of Represematives, G.R. Nos. 160261, eic., November 10, 2003, 415 SCRA 44, 133
GR Nos. 238875, 239483 & 240954, March 16, 2021
3 4d, at 61. Italics supplied.
Supra note 21 Concurring and Dissenting Opinion 7 GR. Nos. 252578, et al.
accomplished through the Court’s exercise of its expanded certiorari
jurisdiction.
As well, petitioners have legal standing.
‘A party must generally show that (1) he will personally suffer some
actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and
(3) the injury is likely to be redressed by a favorable action.* Moreover, the
injury claimed must be real, and not imagined, superficial, or insubstantial.
I fully agree with the ponencia that petitioners were able to establish
an actual or threatened injury as a result of the ATA’s implementation.” The
‘Anti-Terrorism Council (ATC), one of the respondents in several of the
petitions, issued numerous resolutions’ in the exercise of its authority to
designate terrorist individuals, groups, organizations, or associations under
Section 25. Among those designated by the ATC as a terrorist individual is
Rey Claro Cera Casambre, a petitioner in G.R. No. 252767, who the ATC
considers a member of the Communist Party of the Philippines (CPP). This
evidently demonstrates that the ATA is in full force and effect, and its
consequences are neither imaginary nor speculative.
Furthermore, since the enactment of the ATA, several spokespersons
of the National Task Force to End Local Communist Armed Conflict (NTE-
ELCAC) have issued statements that affiliate certain individuals —
particularly, those who came before the Court to challenge the ATA — as
‘members of a designated terrorist organization. Lt. Gen, Antonio Parlade, Jr.
(General Parlade), prior to his resignation as spokesperson of the NTF-
ELCAC,. called petitioner Carlos Zarate”! (Zarate) and several others in his
Roy Iilv. Herbosa, GR. No. 207246, November 22, 2016, 810 SCRA t, 35.
Id, at35,
Ponencia, pp. 63-64.
[ATC Resolution No. 12 (2620), Designating the Communist Party of the Philippinos and the New
People's Amy also known as Bagong Hukbong Bayan (CPP/NPA) as Terrorist Organizations,
wee
‘Associations, and/or «Groups of Persons (December 9, 2020) available at
hlaps:!/www.officialgazerte,gov ph/downloads/2020/12dec/20201209-ATC-12-RRD.pdt>; ATC
Resolution No. 13 (2020), Designation of islamic State East Asia, Maute Group, Daulah Islamiyah,
and Other Associated Groups as Terrorist Organizations, Associations, and/or Groups of Persons
(December °% 2020) available at
; ATC
Resofution No. 20 (2021), Designating the 20 Individuals Affiliated with the Local Terrorist Groups,
which are Designated under Anti-Terrorism Council Resolution No. 13 (2020), as Terrorists. (June 23,
2021), available at
3 Petitioner in G.R. No, 252585. Concurring and Dissenting Opinion 8 G.R. Nos. 252578, ef al.
Facebook post as “CPP representatives and colleagues, including NUPL.”?
In the same Facebook post, he stated that “individuals, groups, and
organizations opposing [the ATA]”® have an agenda, and that while
activism should be welcomed, only “legitimate activists” should be
protected.3>
‘Another spokesperson of the NTF-ELCAC, Undersecretary Lorraine
Badoy (Undersecretary Badoy), was likewise reported to have identified
petitioner Zarate and the other representatives from the Makabayan Bloc as
“high ranking party members of the [CPP].”° She even posted this
statement on the Facebook page of the NTF-ELCAC.” She also called the
League of Filipino Students®* a “known front” of the CPP.**
The National Security Adviser, General Hermogenes Esperon, Jr.,
appears to share the same sentiments as the spokespersons of the NTF-
ELCAC when he identified the “members from the Alliance of Concemed
Teachers, Anakbayan, [Kilusang Mayo Uno], Bagong Alyansang Makabayan,
GABRIELA, and several others” as allies of Jose Maria Sison.? Even
Solicitor General Calida, in his opening statement during the oral arguments,
insinuated that several of the petitioners are affiliated with the CPP.!
To reiterate, both General Esperon and Undersecretary Badoy were
spokespersons of the NTF-ELCAC at the time they issued these
statements? The NTF-ELCAC, while a distinct and separate agency from
the ATC, is mainly composed of the same members constituting the ATC —
3 Antonio Parlade, ‘Facebook Post dated January 16,2021 at
‘nips:/www-fucebook.com/antonio parladejr/posts/3605232892888246> see also Manifestation and
Motion [Re: Possible Intimidation Prior to Oral Arguments] dated January 22, 2021, filed by
petitioners in G.R, No. 252736,
» i
Td
25 Memorandum for Petitioners (Cluster 1), pp. 61-62.
36 Gabriel Pabico Lalu, Inquirer.net, “Badoy Insists Makabayan Reps aro CPP NPA Execs: Gaile says
explain pork barrel” available at ; sce also Petition of Bayan v. Durerie GR. No.
252733, pp. 25-39.
4 TSN, Oral Arguments, May (2, 2021, p. 101
8 OSG Opening Statement, p. 16, par. $3: “On March 30, 2021—tess than a month ago—a PNP
‘contingent raided a CPP-NPA annory in Sta. Rosa, Laguna. Like in Mindoro, the police offers, too,
ound a cache of high-powered firearms and explosives, which included improvised anti-personnel and
claymore mines, Likewise discovered inthe armory were subversive documents, steamers, campaign
paraphernalia of Congressman Colmenares, Bayan Muna and Gabriela, and training materials on
advanced revolutionary warfare.” (emphasis supplied)
2 Sco Office of the Presi cutive Order (E.0.) No. 70, INSTTTUTIONALIZING THE WHO
[NATION APPROACILIN ATTAINING INCLUSIVE AND SUSTAINABLE PEACE, CREATING A NATIONA
or
TASK
FORCE ‘to END LOCA, COMMUNIST ARMED CONFLICT, AND DIRECTING tHE ADOPTION OF A NATIONAL
PEACE FRAMEWORK, December 4, 2018 available at