Fear is always legitimate as no one has the right to invalidate a feeling. However, when is fear lawful? When does fear constitute an actual controversy for a law to be annulled?

Outrageously, one may say, there has been a power consolidation in Duterte’s administration. The Anti-Terrorism Law (ATL) is the latest in a “series of power grabs,” as the opposition would label it, passed under the guise of national security. The dissenter of this administration vehemently opposed the same because it poses a severe threat to Filipino democracy. Repealing the Human Security Act of 2007, the new law criminalizes an ambiguous new offense, among others: the incitement of terrorism “by means of speeches, proclamations, writings, emblems, banners or other representations . . . without taking any direct part in the commission of terrorism.”

There are many aspects of the law that are being challenged by their constitutionality.  The 37 petitioners argue that 15 items in the Bill of Rights under the 1987 Constitution that the ATL violated. These are free speech, freedom of religion, freedom of assembly, freedom of association, freedom of the press, due process of law, freedom from unreasonable searches and seizures, right to privacy, right to travel, right to bail, the presumption of innocence, freedom of information, right against ex post facto laws, right against torture and incommunicado detention and academic freedom. However, in this writing, I deliberately selected the issue of the overbreadth of the law and the issue of freedom of speech and expression since these freedoms are vital in a democracy. Free speech, in particular, is so essential in pursuing the truth. That is why regulating speech requires a heavy burden on the part of the government.

On the overbreadth of Anti-Terrorism Law

The definition of terrorism under Sec. 4 of Anti-Terrorism Law is expanded from its previous definition under Human Security Law. To wit: Terrorism is committed by any person who, within or outside the Philippines, regardless of the stage of execution: (a) Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life; (b) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property; (c) Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure; (d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological or chemical weapons; and (e) Release of dangerous substances, or causing fire, floods or explosions. When the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety, shall be guilty of committing terrorism and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known as “An Act Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, as amended, otherwise known as the Revised Penal Code”.Provided, That, terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a severe risk to public safety.

One may argue that Terrorism, as defined under Sec. 4 of ATL and inciting terrorism under section 9, has yielded to the overbreadth doctrine, thus creating a chilling effect. Indeed acts intended to cause death or serious bodily injury, extensive damage, extensive interference, etc., is an overbreadth as it encompasses all possible acts including protected freedoms such as freedom of expression and speech.

As defined in the case of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, overbreadth doctrine provides that a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms, in this case, freedom of expression and speech. Regulation tends to create what we call a “chilling effect,” a term described by the Supreme Court in Disini vs. Secretary of Justice (2014) as that which “creates a tendency to intimidate the free exercise of one’s constitutional rights.”

All penal laws, like Anti-Terrorism Law, have, of course, an inherent chilling effect or the fear of possible prosecution that hangs on the heads of citizens who are minded to obey what is ‘considered proper.’ Corollary, innate in dissent, is discomfort. However, to prevent the State from legislating criminal laws because they instill such kind of fear or discomfort – fear to speak and express opinions and ideas contrary to the majority –  is to render the state powerless in addressing and penalizing socially and internationally harmful conduct such as terrorism. Here, the chilling effect that results in paralysis is an illusion because Sec 4 of ATL has provided a proviso: Provided, That, terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a severe risk to public safety.

On freedom of expression and of speech

Freedom of expression has gained recognition as a fundamental principle of every democratic government and given a preferred right that stands on a higher level than substantive economic freedom or other liberties (Gonzalez v. Chavez). [Because freedom of speech is part of the expression] and the ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and the press should allow and even encourage the articulation of the unorthodox view, though it is hostile to or derided by others; or through such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger (Gonzalez v. Chavez; citing Gonzalez et al. v. COMELEC)

Anti-Terrorism Law punishes inciting to commit terrorism. Section 9 thereof provides that any person who without taking any direct part in the commission of terrorism, shall include others to the execution of any of the acts specified in Section 4 hereof by means of speeches, proclamations, writings, emblems, banners, or other representations tending to the same end, shall suffer the penalty of imprisonment of twelve (12) years. Simply, speech alone is punishable when it incites to commit terrorism. And arguably, the left-winged would assail that that is violative of free speech. Consequently, this builds on existing cases of arrests for social media posts made during the pandemic, blatant attacks on the right to freedom of speech and expression, as well as the appalling red-tagging of civilians and activists. Hence, as a result thereof, quite a few times, the #ActivismIsNotTerrorism trended on Twitter and other social media platforms and still is one of the relevant topics in the political correctness online community.

Truly, advocacy, by all means, is protected and shall not be punished. However, if such advocacy produces incitement, it may be punished, as in the case of ATL. Further, incitement to terrorism is internationally recognized, Security Council Resolution 1624 punishes incitement to terrorism.

In Brandenburg v. Ohio, it ruled thatadvocacy of violence is constitutionally protected. The U.S. Supreme Court held that the government could not punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Moreover, this is adapted in our jurisprudence by the cases judged by the SC, citing such decisions such in the case of  Iglesia ni Cristo v. CA and The Diocese of Bacolod v. COMELEC.

We can argue, therefore, that Section 9 contains such exceptions. That speech or expression that incites imminent lawless action, in this case, terrorism, and is likely to incite or produce such action may be curtailed, and it is not a violation of freedom of expression or speech. Thus, Sec. 9 does not violate freedom of expression and speech.

On no actual controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy. During the oral arguments of ATL, Justice Leonen and other high magistrates had tediously asked the petitioners what facts and evidence may give rise to actual controversy in order for the Court to draw its sword – to exercise judicial review. But even how creative the counsels of the petitioners cannot objectively state an actual case that showed that indeed the law violates fundamental constitutional rights.

Unyielding, the petitioners invoke facial challenge to annul the law. However, there are many previous cases decided by the Court that iterates that facial challenge is availing only when there is no other way for the law in question but to infringe rights and protected freedoms. In this case, the guarantees given to the accused by the Constitution cannot be totally said that they are not applicable. For instance, it cannot be said that the Writ of Habeas Corpus is not applicable in the context of Sec. 29 of ATL, where it allows detention without a judicial warrant.

Borrowing the words of SC in the case of Chavez v. Gonzalez, perhaps, “A blow too soon struck for freedom is preferred than a blow too late.”  However, is there a blow if all we have is a theory of both stances, against and in favor, and no actual case?

If we are going to put our trust in the legislature and give them, under the law, the question on wisdom solely as they enacted the law to curb, prevent and stop terrorism – that killed many innocent lives and undermine peace and stability –  under the name of national security and nothing else, then noble is the intention of the law. However, the noble intention of the law is clouded by the contemporary behavior of the Duterte administration of silencing dissent. If we quite that cloud perhaps, and I would argue, the law is constitutional in textualist and any other mode of interpreting the law. Perhaps we confused ourselves and equated ATL to the contemporary behavior of this administration. Perhaps our disgust and despise against the law are the bitter fruits of this administration’s behavior of muting loud dissent. Maybe our fear against the effects and implication of Anti-Terrorism Law is an illusion created by the contemporary behavior of this administration, i.e., blatantly disregarding human rights, including protected freedoms such as speech and expression.