Republic of the Philippines

SUPREME COURT
Manila

En Banc

ALGAMAR A. LATIPH,
BANTUAS M. LUCMAN, MUSA
I. MALAYANG, DALOMILANG
N. PARAHIMAN,
Petitioners,

vs. G.R. NO. ……….

Petition for Certiorari and

Prohibition with Prayer for
SENATE, represented by its Status Quo Ante Order.
President, VICENTE C. SOTTO Alternatively, Petition
III, HOUSE OF under Section 4, Par. 2
REPRESENTATIVES, represented Article VIII in relation to
by its Speaker, ALAN PETER S. Section 1, Article VIII of the
CAYETANO, OFFICE OF THE Constitution.
PRESIDENT, and ANTI-
TERRORISM COUNCIL (ATC),
both represented by EXECUTIVE
SECRETARY SALVADOR C.
MEDIALDEA, respectively, as
alter ego of the President and
Chairperson of the ATC,
Respondents.
x------------------------------------------x

PETITION
(With Application For The
Issuance Of Status Quo Ante Order)
 Petitioners, unto this Honorable Court, most respectfully state:

PROLOGUE

It cannot be denied that most government actions are inspired

by noble intentions, all geared towards the betterment of the nation
and its people. No matter how noble and admirable the purpose of an
act, if the means to be employed in accomplishing it are irreconcilable
with constitutional parameters, it cannot still be allowed. The Court
cannot simply turn a blind eye and let it pass. It must continue to
uphold the Constitution and its enshrined principles.

The Constitution must ever remain supreme. All must

bow to the mandate of this law. Expediency must not be allowed
to sap its strength nor greed for power debase its rectitude.1

The intention of the RA 11479 is laudable. However, it has

provisions that undermine the safety and interest of the people that it
seeks to protect from terrorism. The assailed law is characterized by
vague provisions susceptible to multiple interpretations. This is where
the danger lies. The vague provisions would victimize innocent
people; they will be at the mercy of the preconceived notion of the law
enforcers in interpreting the provisions of RA 11479. Ordinary people
would not have sufficient guidance from the law on what specific acts
are prohibits.

Nothing can destroy, in one case,2 a government more quickly

than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence. That disregard is apparent with the
enactment of Republic Act No. 11479 (RA 11479) otherwise known as
Anti-Terrorism Act of 2020 (“ATA” for short).

This Honorable Court have resolved, in many cases, upholding

liberty and acquitting accused after showing that there were violation
of constitutional protection and abuse of power in the enforcement of
our criminal laws.

1 Biraogo v. Philippine Truth Commission of 2010, 651 Phil 374.

2 Mapp v. Ohio, 367 US 643 [1961].

2
 The evolution of threats to humanity has progressed rapidly in
the 21st century. Terrorism is a detestable act as it is repugnant to
humanity. Terrorism and its by-product should be punished to the
full extent of the law.

We, as Bangsamoro, Muslims and natives of Mindanao, have

been at the heart of the struggle against terrorism. The destruction of
Marawi is a living testament of the atrocities of terrorism. We are the
most affected. We were forced out of our homes, our relatives
displaced, abused, or murdered. In the end, our people and
communities are the chief victims of terrorism committed by the
violent extremist groups in the Bangsamoro.

We, want nothing more but peace in our native land. To attain
that, the laws against terrorism should stand the scrutiny of
constitutionality so that innocent people are protect; sot that terrorism
is effectively suppressed; so that terrorists are punished; and, so that
justice and rule of law prevailed. But with the passage of the Anti-
Terrorism Act, the Sword of Damocles hangs over the head of the
ordinary Filipino citizen especially the Muslims. And the verbal
assurances of the government cannot guarantee that no abuses in its
enforcement shall be committed.

While we express our gratefulness to the President when it

pushed and caused the approval of Bangsamoro Organic Law,
recognizing our right to self-determination, and publicly
acknowledging historical injustices of the Bangsamoro, this petition is
nothing else than our care for the Bangsamoro who will likely to be the
victims of injustices and abuses in the enforcement of RA 11497.

RA 11479 intrudes into the exclusive realm of this Honorable

Court. It runs counter to the co-equal principle and separation of
powers doctrine underlying the distribution of powers in the
government the executive, the legislature, and the judiciary. This
Court is the last bastion of democracy in the administration of the rule
of law and dispensation of justice.

Thus, we are invoking this power to protect the Filipino people.

3
 NATURE OF THE PETITION

This is a petition for certiorari under Section 1 of Rule 65 of the

1997 Rules of Court which seeks to declare unconstitutional Sections 4,
15, 16, 17, 18, 19, 20, 22, 25, 29, 30, 34, 38 and 56 of Republic Act
No. 11479 entitled An Act To Prevent, Prohibit And Penalize Terrorism,
Thereby Repealing Republic Act No. 9372, Otherwise Known As The Human
Security Act Of 2007 otherwise known as Anti-Terrorism Act of 2020.

A prohibition under Section 2 of Rule 65 is a corollary relief herein

sought, that upon declaring unconstitutional the assailed provisions, to
prohibit public respondent ATC to desist in implementing RA 11479.

In Imbong v Ochoa3, the Court pronounced:

As far back as Tanada v. Angara, the Court has unequivocally

declared that certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative
and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was
later on applied in Macalintal v. COMELEC, Aldaba v.
COMELEC, Magallona v. Ermita, and countless others.

Pending the resolution of this petition, we pray for the issuance

of Status Quo Ante Order to enjoin public respondents from enforcing
the assailed unconstitutional provisions of the law.

The Honorable Court can take judicial notice of the publication of

RA 11479 on 7 July 2020 which shall take effect on 22 July 2020. Hence,
petitioners dispenses with the attachment of its certified true copy.

Petitioners directly filed this case before this Honorable Court

dispensing the doctrine hierarchy of courts because of the urgency in
resolving the constitutional issues; and, being the court of last resort, it is
the only court which can decide the case conclusively and
authoritatively. Finally, there is no appeal available to petitioners from
the final act of the President and the Congress in the enactment of RA
11479.

3 G.R. No. 204819, 8 April 2014.

4
 II

There were similar petitions filed, in the past, which resorted to

Section 1, Rule 65 of the Rules of Court, with this Honorable Court
impugning constitutional validity of many laws. One of which was
Republic Act No. 9372 otherwise known as An Act to Secure the State
and Protect our People from Terrorism. Unfortunately, it ruled in these
cases that certiorari under Rule 65 is not applicable against
respondents, the executive and the legislative departments, as they do
not exercise judicial or quasi-judicial functions.4

Petitioners are now in a quandary whether certiorari and

prohibition will prosper given the foregoing jurisprudence. We cannot
either file declaratory relief under Rule 63 because it is not an
appropriate, just and speedy remedy.

We found no rules that would determine this present

controversy which legislative function of the Congress, and executive
function role of the President in the legislative process. As this
involved the constitutionality of legislative acts which is not judicial,
quasi-judicial or ministerial function, certiorari and prohibition under
Rule 65, strictly, inapplicable.

Thus, in the alternative, petitioners directly invoke the expanded

judicial power of this Honorable Court under Section 1, Article VIII in
of the Constitution to “settle actual controversies involving rights
which are legally demandable and enforceable, and 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” in relation to Section 4, Par. 2 (a),
Article VIII which specifically provides that in ”[all cases involving the
constitutionality of a treaty, international or executive agreement, or
law, [it] shall be heard by the Supreme Court en banc.”

The foregoing encompass all legal controversies including the

exercise of legislative and executive functions.

Hence, this Petition.

4 Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, G.R. No. 178552, 5 October 2010.

5
 PARTIES

Petitioners BANTUAS M. LUCMAN, MUSA I. MALAYANG,

DALOMILANG N. PARAHIMAN, and ALGAMAR A. LATIPH,
Filipinos, Bangsamoro, are of legal age, Filipino, they can be notified
5

at Door 3 2nd Floor, 484 Del Mundo Bldg., Sagitarious St. corner
Quirino Highway, Talipapa, Novaliches, Quezon City.

Public respondent Senate, is herein represented by its President,

Senator VICENTE C. SOTTO III, upper house of the Congress vested
by the Constitution with legislative power. It may be served with
notice at its official address at: Senate of the Philippines, GSIS Building,
Financial Center, Diokno Boulevard, Pasay City.

Public respondent House Of Representatives, represented by its

Speaker Alan Peter S. Cayetano, is the lower house of the Congress. It
may be served with notice at its official address at: Batasan Building,
Batasan Avenue, Constitution Hills, Quezon City.

Public respondent Office of the President is herein represented

by Executive Secretary Salvador C. Medialdea, the alter ego of the
President. He may be served with notices and other process of this
Honorable Court at Ground Floor, Premier Guest House, JP Laurel St.,
San Miguel, Manila.

Respondent Anti-Terrorism Council (“ATC”) is herein

represented by the above public respondent. ATC is a government
agency created by Section 45 of RA 11479 vested with administrative
powers to implement the provisions of the assailed statute. Notice to
latter may be sent to the above as he represents the ATC as its
Chairperson.

The Senate and the House of Representatives are sued in their

official capacities in the enactment of RA 11479 while the Office of the
President is sued in his capacity in signing the law. Finally, respondent
ATC is sued in its capacity as implementor of the assailed.

5 Sec. 1, Article II, RA 11054 provides:

Section 1. Bangsamoro People. – Those who, at the advent of the Spanish colonization, were considered
natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands, whether
of mixed or of full blood, shall have the right to identify themselves, their spouses and descendants, as
Bangsamoro.

6
 The Office Of The Solicitor General is served with a copy of this
petition being the foregoing respondent’s statutory at its address at 134
Amorsolo St., Legaspi Villa, Makati City.

JUDICIAL REVIEW

Judicial review requires: (1) the existence of an actual and

appropriate case; (2) the existence of personal and substantial interest
on the part of the party raising the constitutional question; (3) recourse
to judicial review is made at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.6

This petition is compliant with the foregoing requirements.

Actual Controversy

An actual controversy is one which "involves a conflict of legal

rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference
or dispute.7 In other words, "there must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and
jurisprudence."8

The requirement of an actual case or controversy is the

requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication.” 9

Here, the Senate and the House of the Representatives enacted

the assailed law followed by the signature of the President on 7 July
2020 which will take effect on 17 July 2020.

Petitioners also submit that a facial challenge may be applied in

the present case since there are many provisions that transgress free
speech and other fundamental rights.

The Court reiterated that there are "critical limitations

by which a criminal statute may be challenged" and

6 Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, 15 August 2000, 338 SCRA 81.
7 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP),
568 SCRA 402.
8 Id.

9 Belgica Vs Honorable Executive Secretary Paquito N. Ochoa, G.R. No. 208566, 19 November 2013.

7
 "underscored that an 'on-its-face' invalidation of penal statutes
. . . may not be allowed."

[T]he rule established in our jurisdiction is,

only statutes on free speech, religious freedom, and
other fundamental rights may be facially challenged.
Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge
in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy
before judicial power may be appropriately
exercised. A facial challenge against a penal statute is,
at best, amorphous and speculative. It would,
essentially, force the court to consider third parties
who are not before it. As I have said in my opposition
to the allowance of a facial challenge to attack penal
statutes, such a test will impair the State's ability to
deal with crime. If warranted, there would be nothing
that can hinder an accused from defeating the State's
power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or
overbroad, notwithstanding that the law is clear as
applied to him.

It is settled, on the other hand, that the application of

the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases10.

The above decision in the Southern Hemisphere case was decided

in 2010. In Imbong, though, which was promulgated four years after,
the Honorable Court made it clear that while it has withheld the
application of facial challenges to strictly penal statues, it has
expanded its scope to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental
rights.

The underlying reason for this modification is simple. For unlike

its counterpart in the U.S., this Court, under its expanded jurisdiction,
is mandated by the Fundamental Law not only to settle actual

10Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554, 178581,
178890, 179157 & 179461, 5 October 2010.

8
controversies involving rights which are legally demandable and
enforceable, but also 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.
11 Verily, the framers of Our Constitution envisioned a proactive

Judiciary, ever vigilant with its duty to maintain the supremacy of the
Constitution.12
Locus Standi

Locus standi or legal standing requires a personal stake in the

outcome of the controversy.13

Petitioner Latiph is a former Chairperson of the Regional Human

Rights Commission. Up to present, he handles cases, involving
protection of human rights especially the vulnerable people. Petitioner
Lucman is the grandnephew of the late Congressman Haroun Al
Rashid Lucman who founded a liberation organization in the assertion
of right to self-determination. He also represents many clients, pro
bono, who are victims of human rights violations. Petitioner Malayang
is the Secretary General of the Muslim Legal Assistance Foundation,
Inc (MUSLAF), petitioners are officials of the MUSLAF, an institution
that renders free legal assistance to Muslim and Bangsamoro whose
constitutional rights are violated. Petitioner Parahiman is a former
Regional Director and of the Legal Affairs of the National Commission
on Muslim Filipino and advocate of rights and welfare of Bangsamoro.

Apart from the foregoing, petitioners most respectfully submit

that the unconstitutionality of the provisions of RA 11479 is of
“transcendental importance, of overreaching significance to society, or
of paramount public interest."14 As such, petitioners, in their capacity
as concerned citizens, are clothed with legal standing.

As lawyers, being members of the Integrated Bar of the

Philippine, we took oath “to support the Constitution.” Taxpayers, like
petitioners, are allowed to sue when there is assertion that there is
wastage of public funds through the enforcement of an invalid o
unconstitutional law.15

11 Imbong v Ochoa, G.R. No. 204819, 8 April 2014.

12 Imbong v Ochoa, G.R. No. 204819, 8 April 2014.
13 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr, 369 U.S. 186 (1962).

14 Biraogo v. Philippine Truth Commission of 2010, supra.

15 Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).

9
 In The Province of North Cotabato vs. Republic,16 petitioners Latiph
and Malayang, as lawyers and petitioners of Muslim Legal Assistance
Foundation Inc., were recognized to have legal standing in a case
involving the constitutionality of Memorandum of Agreement on
Ancestral Domain, thus:

Muslim Legal Assistance Foundation Inc., a non-government

organization of Muslim lawyers, allege that they stand to be
benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such legal interest suffices
to clothe them with standing.

In Kida vs. Senate,17 a petition on the constitutionality of the

Synchronization of Act on the Autonomous Region in Muslim Mindanao
(RA 10153), both as counsel and as petitioner, petitioner Latiph was
permitted to intervene.

In any case, this Honorable Court has discretion to relax the

procedural technicality on locus standi, given the liberal attitude it has
exercised in a long line of cases.18

In those capacities, as aggrieved parties, citizens, taxpayers, and

members of the Integrated Bar of the Philippines, petitioners hereby
filed this suit.

Earliest Opportunity

We filed this petition at the earliest opportunity just two days

before its effectivity.

Lis Mota

Lis mota means that this Honorable Court will not pass upon a
question of unconstitutionality of law unless it can be shown that the
case cannot be legally resolved unless the constitutional question
raised is determined.19 Here, there is no other collateral issues except

16 G.R. No. 183591, 14 October 2008.

17 GR No. 196271, 18 October 2011.
18 David v. Macapagal-Arroyo, G.R. No. 171396, 3 May 2006, 489 SCRA 160.

19 People v. Vera, 65 Phil. 56 (1938).

10
this main petition to determine unconstitutionality of the provisions of
RA 11479.

STAMENT OF THE FACTS

I
The Assailed Law

On 3 July 2020, the Anti-Terrorism Act or Republic Act No. 11479

was signed into law by the President of the Republic of the Philippines,
His Excellency Rodrigo Roa Duterte.

It took effect on 18 July 2020.

RA 11479 is poised to violate the constitutional rights of the

people enshrined in the 1987 Philippine Constitution.

II
Our Humane Society

We all know that government is created to serve and protect the

people.20 This protection pertains to protection to life, liberty, and
property21 which according to the Constitution in a democracy, they
must be enjoyed by all the people.22

By stroke of a pen of each of the participating magistrates will

cast their votes based on their individual conscience. The prevailing
collective majority conscience, of at least eight votes, will define what
liberty and freedom mean to the more than 100 Million Filipinos.

This case, therefore, do not only require the ultimate resolution

of the competing legal constitutional issues presented by the
numerous petitions; the resolution of this case will define the identity
of this nation as it affirms what values should be upheld in respect to
protection of liberty and freedom. A new history will unfold in the
offing, and we hope that this Honorable Court is on the right side of
the history as we build a just and humane society.

20 Sec. 4, Art. II. Const.

21 Sec. 5, id.
22 Sec. 5, id.

11
 III
Root Cause

Section 2 of RA 11479 took into “account the root cause of

terrorism without acknowledging these as justifications for terrorist or
criminal activities.” We agree with this provision, violent extremism
has no place in our society it destroys our lives, our way of living. And
as we have stated at the outset, it is a crime against humanity.

Section 2 provides:
SEC. 2. Declaration of Policy.—xxx.

The State recognizes that the fight against terrorism requires

a comprehensive approach, comprising political, economic,
diplomatic, military, and legal means duly taking into account the
root causes of terrorism without acknowledging these as
justifications for terrorist and/or criminal activities. Such measures
shall include conflict management and post-conflict peacebuilding,
addressing the roots of conflict by building state capacity and
promoting equitable economic development.

The law mentioned the root cause. Here, we will discuss

narratives which may not constitute the root cause, and some may
appear irrelevant to the constitutional issues at hand, but it may be
helpful in putting context on the issues on violent extremism; and
present the context of the environment where violent extremists, Abu
Sayaaf Group and others, were born.

III
Moro Moro

Bangsamoro fought for freedom and liberty for more than three
centuries against the tyranny of Spain that began when it was a world
super power in the 16th century.

Being unsuccessful for centuries, the colonial Spain demonized

Bangsamoro. One of its efforts were instilling consciousness of its
subjects. In a week-long fiesta, social-religious and cultural festivities
in barrios, Moro Moro were played depicting the barbarity of the
Bangsamoro.

12
 Nestor Pacana in his research on the topic shows numerous traits
of Moro character, topping the list is “evil.” The table show: 23

Interviews with Cebuano senior citizens who witnesses these

plays in their youth confirm their commonly negative recollections of
the Moros, many of them believing that the theatrical depictions they
saw on stage were indictive of who the Moro really were, and
presently are.24 There were 194 University of San Carlos students
interviewed in the year 2000 shared a similar attitude towards the
Moros, but not including those Christians students who came from
places predominantly inhabited by Muslims.25 A sad result of the
negative representation given life in linambay plays of Cebu in both
distant and recent past, which had the official sanction of Church and
State, is that they continued over very long period of time and in every
may places to reinforce a paranoid feeling held by a dominant
Christian population against Filipino Muslims that even today refuses
to go away. 26 Even in recent rulings, this Honorable Court proved that
it did not go away. It found its new meaning in our judicial literature:

A "moro-moro" could not possibly result in a just or valid decision.27

23 Pacana, N.R., The Moro In The Moro Moro: Hegemonic Representation In The Linambay Plays In Cebu, Philippine
Quarterly of Culture and SocietyVol. 35, No. 1/2, Special Issue: Critical Heritage (March/June 2007), pp. 87-99.
(accessed 14 July 2020) < https://www.jstor.org/stable/29792610?read-
now=1&refreqid=excelsior%3A44a57007f49bddb389b14a18ab2ec3b0&seq=11#page_scan_tab_contents>
24 Id.

25 Id.

26 Id.

27 Saturnina Galman v. Sandiganbayan, GR No. 72670, 12 Sep 1986. Justice Guitieriez, Concurring.

13
 In addition: “brought about by a moro-moro or mock
trial;” “referring to it as "moro-moro" or "kangaroo;"29 “He felt that the
28

hearing was a "moro-moro" investigation;”30 “to his mind, they were

making a "moro-moro" out of the proceedings;”31 “to rectify a travesty
of justice brought about by a moro-moro or mock trial;”32 and, “to
handle and rig (moro-moro) the trial.’33

President Marcos was also quoted:

"The testimony of Justice Herrera that, during the conference,

and after an agreement was reached on filing the case and
subsequently acquitting the accused, President Marcos told them
'Okay, mag moro-moro na lamang kayo.”34

IV
Remote Colonization

When the First Congress promulgated the unratified Malolos

Constitution in 1899, the Bangsamoro were represented by men from
Luzon. Yet the Bangsamoro has nothing to do with the war waged by
the Katipunero against the US colonizer. At that time, the Bangsamoro
had Bates Treaty35 with the Americans. And there is no bellum justum
to wage war.36 And only recently, petitioners discovered the fake
representation of the Bangsamoro perpetrated by the concerted efforts
of the delegates of Malolos Congress.

The following impostors, mostly businessmen and lawyers,

namely: Sotero Laurel, represented, Bongao (Tawi-Tawi),Businessman
Lorenzo del Rosario represented Malabang (Lanao), Benito Legarda,
lawyer-businessman, represented Jolo, Juan Tuazon, represented
Basilan, Jose M. Lerma represented Cotabato, and Jose Florentino
Fernandez, represented Siasi.37

28 Pimentel, GR No. 223099, 11 Jan 2018.

29Visayan Electric Company Employees Union vs. VECO, G.R. No. 205575, 22 July 2015.
30 De Castro vs. Liberty Broadcasting Network, Inc., G.R. No. 165153, 23 September 2008.

31 Juan de la Cruz v. Judge Ruben B Carretas, AM No. RTJ-07-2043, 05 Sep 2007.

32 Miguel Argel v. Judge Herminia M. Pascua, AM No. RTJ-94-1131, Aug 20, 2001

33 Ceferino A. Soriano vs. Adoracion C. Angeles, GR No. 109920, 31 Aug 31, 2000.

34 Saturnina Galman v. Sandiganbayan, GR No. 72670, 12 Sep 1986.

35
It was latere disowned by US that it is a treaty.
36
Later in 1902, Bangsamoro revived its assertion against the colonial US that lasted up to 1913.
37
The Malolos Congress, A Centennial publication on the inauguration of the Philippine Republic
(January 23, 1899 - January 3, 1999).
<https://ia800507.us.archive.org/12/items/TheMalolosCongress/The%20Malolos%20Congress.pdf> (accessed
14 July 2020)

14
 At the time, the Bangsamoro were freemen and freewomen who
fought against Spanish colonizers for three centuries in the name of
freedom, liberty and love. Unbeknownst to Bangsamoro, they are
being colonized remotely by the Malolos Congress who without being
physically present occupied and colonized the Bangsamoro by stroke
of pen in the Malolos Constitution. The Malolos Congress in those
moments, were still coming to terms to be freed from the US, their new
colonizer.
V
Inclusion

When Spain relinquished its power to the American in a Treaty

of Paris in 10 December 1898, it included only “those subjects and
property of Spain.”38 The Bangsamoro people were not subjects of
Spain.

When the American came to the Philippines, they made peace

with the Bangsamoro in 20 August 1899 thru Bates Treaty;39 there are
similar agreements entered with other Bangsamoro tribes albeit not in
the form of treaty. And wage war with the Katipunan.

On 1 July 1902, the US Congress enacted Philippine Organic Act

of 1902 which provided the political structure of the Philippines
excluding the Moro, as subjects, because during that time the US
waged war against the Moro for its refusal to be conquered when
Bangsamoro renewed their right to self-determination against the new
colonizer, US-Moro War that lasted from 1902 to 1913. Then the
Philippine Commission enacted Act No. 787 on 01 June 1903 creating
the Government of the Moro Province under military government,
providing for a separate autonomous government for the Moro and
Indigenous People.

The Moro Province was later renamed to Department of

Mindanao And Sulu by Act No. 2309, 20 December 1913. But was
abolished by Act No. 2878 on 05 February 1920 by Congress
participated by only two congressmen from Cotabato and Lanao40
without representation from the islands of Sulu.41

38
see Treaty of Paris 1898
39
It was unilaterally abrogated by the Americans because of continued resistance of the Bangsamoro.
40
Datu Piang of Cotabato and Datu Tampugaw of Lanao.
41
< http://www.congress.gov.ph/legislators/?v=province> (accessed on 15 July 2020)

15
 Preceding the acts of inclusion of the Bangsamoro in the
Philippine body politic, there were no other forms of solicitation of
sovereign consent from them. And while the above two congressmen
were Bangsamoro, they were not elected by the Bangsamoro. they
were appointed by a foreigner, Governor General Harrison Ford
Burton.

It was the first time in 1920 that the Bangsamoro became part of
the Philippine body politic after nearly 400 years of struggle. The worn
out Bangsamoro finally became part of the Philippine body politic.

VI
Exclusion

When President Manuel L. Quezon, the new President of the

Commonwealth, declared that there would be no place for sultans and
datus in the new regime and that the national laws would apply to
Muslims and Christians equally, he was surprised at their reactions.42
He was unaware that the Bangsamoro had their own cherished code
of ethics and system of laws that governed virtually every aspect of
their lives for hundreds of years. The Bangsamoro survived the
onslaught of foreign colonial domination due to an efficient and
effective political structure and military system.

He failed to realize that the national laws, which were enacted

without representation of the Bangsamoro constituency, upheld
standards drawn from Christian ethics and western social history.
These laws were therefore alien to the Bangsamoro, whose cultural
heritage was drawn largely from ancient Malay societies. The
Bangsamoro increasingly saw themselves alienated from the
government which they perceived as that of government of “the
others” or saruang a tao.

VII
State-sponsored Massive Land Grabbing

42Letter of President Quezon on Three-point Policy for Mindanao and Sulu, October 8, 1937.
https://www.officialgazette.gov.ph/1937/10/08/letter-of-president-quezon-on-three-point-policy-for-mindanao-and-
sulu-october-8-1937/> (accessed 12 July 2020)

16
 From 1902 onwards, the Philippine Commission, National
Assembly, Philippine Commonwealth, and Philippine Congress
enacted public laws dispossessing the native lands of Bangsamoro and
other indigenous inhabitants of Mindanao.43

43 The following are the laws enacted that disposed Bangsamoro as well as IPs from their ancestral land.

1902 Land Registration Act No. 496: the American colonial government institutionalized in the country the
Torrens System. No room for the indigenous concept of communal property as Regalian Doctrine was
adopted and suddenly all of the land owned and possessed by the Bangsamoro and IPs are all vacated.

1903 Act No. 718: declaring null and void all land grants made by Moro Datus/Sultans and chiefs of non-
Christian tribes when made without prior governmental authority or consent. Even the Datus/Sultans
and other IPs heads became landless.

1903 Public Land Act of 926: allowing individuals to acquire homesteads not exceeding 16 hectares each,
and corporations 1, 024 hectares each of “unoccupied, unreserved, unappropriated agricultural public
lands.” Where even occupied lands of the IPs were taken over by the settlers from Luzon.

1913 Act Nos. 2254 and 2280: Creates "agricultural colonies” awarding settlers 16 hectare land tracts in
Pikit, Silik, Peidu-Pulangui (North Cotabato); Dulawan and Talitay (Maguindanao); Buayan (Gen.
Santos); Glan, Kiamba and Malungon (Sarangani); Momungan or Nonungan (Baloi).

1919 The Public Land act of 2874, amending Public Land Act No. 926: increasing to 24 the 16 hectares
allowed earlier to individuals while non-Christians were only allowed 10 hectares. Corporations were
allowed 1,024 hectares.

1920 Provincial colonies Act No. 2206 open in Lamitan (Basilan), Sulu, Tawi-Tawi; Bukidnon, Marilog
(Davao), and Salunayan and Maganoy (Maguindanao).

1936 Commonwealth Act No. 141: withdrew the privilege earlier granted to the settlers of owning more
than one homestead at 24 hectares each and reverted to only one not exceeding 16 hectares. But the
non-Christians who were earlier allowed maximum of 10 hectares were now permitted only 4
hectares.

1939 Commonwealth Act Creates a National Land Settlement Administration (NLSA) that opens No. 441
resettlement sites in in Koronadal (Lagao, Tupi, Marbel and Polomok), and Allah Valleys (Banga,
Norallah and Surallah) in South Cotabato

1949 Executive Order No. 355: Establishes the Rice and Corn Production Administration (RCPA), which in
turn sets up new agricultural settlements in Buluan (Maguindanao), and areas straddling Maramag
(Bukdinon) and Wao (Lanao del Sur).

1950 Executive Order No. 355 The Land Settlement Development Corporation (Lasedeco) takes over the
NLSA and RCPA functions, spurring the opening of resettlement sites in Tacurong and Isulan,
Bagumbayan (Sultan Kudarat); Buluan, Sultan sa Barongis, and Ampatuan (Maguindanao)

1951 Establishment of the Economic Development Corporation (EDCOR) replacing Lasedeco. EDCOR
manages the resettlement of landless farmers including a contingent of Central Luzon peasant rebels
who moved to sites in Sapad (Lanao del Norte); Alamada (North Cotabato), and Buldon
(Maguindanao)

1954 Republic Act No. 1160: opening new sites in Ala and Koronadal Valleys (South Cotabato); Bongao-
Balimbing (Tawi-Tawi); Carmen, Columbio, and Tulunan (North Cotabato); Cotabato
(Maguindanao), Daguman (Sultan Kudarat); Maramag-Pangantukan, Bukidnon; Sto. Tomas (Davao);
and Wao (Lanao del Sur)

17
 It was a state-sponsored land grabbing.

It was massive.

The unabated dispossession of the Bangsamoro and indigenous

people in Mindanao led to irreversible demographic shift in favor of
the incoming population from Luzon and Visayas. For the
Bangsamoro, and any people for that matter, land ownership is sacred
to human dignity: they are essential to satisfy freedom from want and
freedom from fear.

From being the majority of the population, the Bangsamoro

population became a marginalized minority, driven away from their
land. They were permanently displaced. They were depopulated. And
minoritized. 44

1963 Agricultural Land Code: Establishes the Land Authority (LA) and, through the Bureau of Reform
Resettlement, accelerates the implementation of the resettlement program. The code awards about
500,000 hectares of lands in the then undivided Cotabato and Lanao provinces from 1963 to 1975

1971 RA 6389 The Department of Agrarian Reform (DAR) replaces the Bureau of Resettlement and assumes
all resettlement tasks. The agency administers 18 resettlement sites in 10 Mindanao provinces.

44 To decrease land dispute in central Luzon and to reduce population of congested areas of some provinces,
to increase agricultural productivity and discourage Japanese colonial ambitions in the South, the
Commonwealth Government launched a program to send thousands of Christian settlers to Mindanao, the
Land of Promise. The government even simplified the application process for land ownership titles to make
it easier for settlers to acquire lands.

For instance, in Cotabato Valley a pioneer homesteader named Paulino Santos was able to secure 97,000
hectares of grasslands in Koronadal Valley and made it as a reservation.44 In Malabang, Lanao del Sur,
residents explained how they were expelled from the old sultanate lands that came under the control of the
Matling Corporation, Mindanao’s oldest corporation founded in 1928. Matling Corporation stands partly on
lands that belonged to the ancient domain of the Maranao Sultan of Tubok, occupied for generations by the
sultanate’s subjects. Through one of the corporate land programs, a person from Cebu was able to secure titles
for 533 hectares in the old sultanate. Subsequently, the Matling Corporation bought the land from the
titleholder and took possession, expelling the people living there and destroying their homes, the madrasah
(Koran school), and the masjid (mosque) in the process.

The Colonization Act of 1935 could be said to have been the first spark to inflame the modern conflagration
in Mindanao. What government administrators conceived as the solution to the land hunger in Luzon and
elsewhere in the Philippines started the war of attrition that engulfed the whole Muslim south. Moreover, by
encouraging families from Luzon and the Visayas to settle in Mindanao, the government had also hoped that
Muslim-Christian relations would ripen to Filipinization and eventually, integration.

Conflict, not integration became inevitable. Migration continued unabated from the first administration of
Manuel Roxas through the successive presidents of the young republic. The land hunger of millions could not
be easily sated but the cost of the promised land was now beginning to be felt. As migrants overflowed into
the four corners of Mindanao, conflicts of all kinds punctuated the processes and activities in the new
resettlement areas. Migrants fought migrants to acquire the best lands. Unlettered Muslims lost even titled
lands to unscrupulous settlers who connived with corrupt government officials. The name of the game was
land grabbing.

18
 In 1939, President Manuel L. Quezon offered Mindanao as
settlement to some of the more than 500,000 Jews who are refugees in
Europe.45 When the government was confronted with a rebellion of
landless Hukbalahap peasants, mostly from Luzon, the government
promised Mindanao. And it was a promise that was fulfilled.
Promises of development was also given to the native inhabitants of
Mindanao which were not meant to be fulfilled. Thus, they continue
to clamor for development and progress. During that early time of
nationhood, development like roads, schools, public markets,
hospitals, and other institutions were given to settlement areas in the
island. While native inhabitants were largely neglected.

VIII
Deprivation

The economy of the Bangsamoro is primary derived from land-

based resources. It impacted their social and economic well-being
brought about by the massive state-sponsored land-grabbing. Because
of the land dispossession, agricultural productivity, which was the
primary basic economic, their social and economic well-being
negatively affected.

Land dispossession unquestionably remains a major trigger of

the violent conflict and poverty that affected large parts of Mindanao.46
In an agricultural economy, dispossession of land will logically result

As the number of Christian migrants grew, so did the resentment and anxiety of the Muslims. Before their
eyes, they saw their former farmsteads being replaced by Christian-owned farms and residences. The early
signs of a growing tension between Muslims and Christians began to darken the horizon but the government
was too preoccupied with other matters. Before long the Muslims began to catch up with the tricks attendant
to land titles, registration, tax receipts, etc. and came up with their own version e.g. selling the land several
times to different owners or refusing to vacate their land after being sold by simply saying, “Iyo ang titulo, akin
ang lupa.” (“You take the title, I’ll take the land.”).

The Commonwealth government under President Quezon gave priority to infrastructure hence, roads were
built, and lands were surveyed. However, as soon as the news spread that this or that highway was going to
be constructed, hordes of migrants followed and took up farms and residences on both sides of the road or
highway. There were massive migrations undertaken by individual initiatives with or without government
assistance. The organized movement of migrants took place in 1938, led by the pioneer Paulino Santos who
chose the Koronadal Valley as the site for homestead of some 97,000 hectares of grasslands in Cotabato. Within
ten days of the proclamation of Koronadal as a reservation.

45https://www.officialgazette.gov.ph/1939/02/15/statement-president-quezon-on-jewish-settlement-in-
mindanao-february-15-1939/ (accessed 17 July 2020)
46 Land: Territory, domain, and identity: A report submitted by the WB-IOM technical team

to the Transitional Justice and Reconciliation Commission (TJRC) at p. 56. <

http://cdn.viiworksdemo.com/pdf/qewk-World%20Bank%20Technical%20Report%20Land%20-
%20Territory,%20Domain,%20and%20Identity_Web.pdf>

19
in conflict and poverty. In this section we explore the major social and
economic impacts of this phenomenon.47 People who have been
displaced suffer from poor socio-economic welfare. Food security,
access to services and housing, income poverty, and exposure to
violence, people who have been displaced are consistently worse off
than those who have not. 48

The Transitional Justice Report of 2016, by the Transitional

Justice and Reconciliation Commission, reads:49

The problem of neglect is particularly evident in the exploitation and

marginalization of indigenous communities and the dereliction of the
State of its duty to defend the integrity of ancestral domains. Neglect
is also perceived to be the reason for the lack of acknowledgment of
Bangsamoro history and culture in public spaces and in the public
education system. xxx.

Ironically, State neglect has gone hand in hand with intensive

development efforts based on its economic policy of promoting large-
scale resettlement and agricultural production in Mindanao in the
1950s and 1960s. Those programs, while benefiting landless poor
from other parts of the Philippines (including former Huk rebels),
resulted in the dispossession of the local population of their ancestral
lands. The various waves of displacement not only impoverished
many Moro and indigenous peoples, but also increased their
vulnerability. As competition for available resources grew,
resentment and mistrust increasingly divided Christian, Muslim, and
indigenous communities.

State neglect is perceived by the disaffected communities of

the Bangsamoro to be the result of intentional policy decisions that
have, in turn, fueled their own struggle for self-determination. The
sentiment of being neglected by the State has been conflated in the
narrative of the Bangsamoro with their experience of the failure by
the State to protect them from the violent encroachments of the
settlers and their paramilitary forces. In fact, the State is seen as
having actively colluded in their marginalization through years of
military occupation characterized by abusive force and by their
involuntary inclusion within a highly centralized, unitary political
system grounded in the ‘ideology of Filipino nationalism’ and
sustained by aggressive corporate development.

47 Id.
48 Id. At page 57
49
< http://cdn.viiworksdemo.com/pdf/j7im-report.pdf> (accessed 14 July)

20
 IX
Revival of Conflict

Two years after the declaration of Philippine independence, the

conflict was revived in 1948, Ma’as Hadji Kamlon launched a rebellion
demanding, among others, land reform.

The years of land dispossession, deprivation, structural neglect

and discrimination has now hunted the new republic which up to this
present the seeds of injustices that was planted continued. But it was
very unfortunate that the Bangsamoro, as well as the rest of the
country, is facing this vicious cycle of violence including terrorism of
violent extremist groups.

Ma’as Kamlon was later subdued and eventually convicted. It

was the first rebellion after the Bangsamoro was disarmed, 35 years
before that, during the conclusion of Moro-American War in 1913.

Ma’as Kamlon, was granted with executive clemency, and Nur

Misuari assisted in his pardon. After two decades, in 18 March 1968,
Jabiddah Massacre occurred it awaken the consciousness of the
Bangsamoro youth. Then, Misuari led the Moro National Liberation
Front against the government that resulted to the death of 120,000 lives
from 1970 to 1996.50

It was during Martial Law where extreme military measures

were used to suppress the liberation fronts. In the process, there were
civilians who suffered casualties. We do not know if they were
collective punishments.51

50Statement: President Quezon on Jewish Settlement in Mindanao, February 15, 1939.

https://www.officialgazette.gov.ph/bangsamoro/cost-of-war/ (accessed 13 July 2020)
51 The Transitional Justice Report < http://cdn.viiworksdemo.com/pdf/j7im-report.pdf> reported the

following:
Burning of Jolo (February 1974). The military command ordered a ground offensive, accompanied by massive
aerial and naval bombardments, against MNLF forces deployed in the city. The result was the flight of
thousands of refugees and the destruction of two-thirds of the city.

Malisbong Massacre that took place some few months later in September 1974 in a coastal village located in
Palimbang town, Sultan Kudarat province. It is alleged that the Philippine military and paramilitary forces
killed an estimated 1,500 Moro men and boys, who were held in a local mosque, and raped an unknown
number of women and girls on a naval vessel anchored offshore. In addition, some 300 houses were burned
to the ground by government forces. On September 24, 2014, 40 years after the events, the Chairperson of the
Commission on Human Rights officially acknowledged the massacre in a visit to the site and proposed that
the survivors file claims for compensation with the HRVCB.

21
The Tran Incident’ refers to a large-scale military campaign against the MNLF in central Mindanao in June-
August 1973. In the Listening Process session, participants spoke of the massacre of Moro civilians from the
Barangay Populacion in the town of Kalamansig, Sultan Kudarat province by military forces during that
campaign. The soldiers separated the men and women; the men were confined in a military camp,
interrogated, and tortured, while the women with their children were taken aboard naval vessels and raped.
In the end, the men as well as the women and children were killed.

Tong Umapuy Massacre. In 1983, a Philippine Navy ship allegedly opened fire on a passenger boat and killed
57 persons on board. The passengers were reportedly on their way to an athletic event in Bongao.

The campaign of the Ilagâ in Mindanao in 1970 to 1971 involved indiscriminate killings and burning of houses
with the intention of terrorizing and expelling the Moro and indigenous population from their homes and
ancestral territories. Violent incidents took place chronologically in a progressive fashion over a widespread
area, occurring among other places:

Upi, Maguindanao (March and September 1970);

Polomok, South Cotabato (August 1970);
Alamada, Midsayap, and Datu Piang, Cotabato (December 1970);
Bagumbayan and Alamada, Cotabato (January 1971);
Wao, Lanao del Sur (July and August 1971);
Ampatuan, Cotabato (August 1971);
Kisolan, Bukidnon (October 1971);
Siay, Zamboanga del Sur (November 1971); Ipil, Zamboanga del Sur (December 1971); and
Palembang, South Cotabato (January 1972).

Manili Massacre. The armed bands of Christian paramilitaries, primarily Ilonggo settlers, that comprised the
Ilagâ, maintained ties with state authorities, including local and national politicians, the Philippine
Constabulary, and the military. In most cases, the paramilitaries acted on their own initiative; on other
occasions, however, it is believed that their attacks were conducted in close coordination with government
authorities. This was allegedly the circumstance in the case of the mass killings of Moro villagers that took
place in a mosque and outlying houses in a rural barangay of Carmen, (North) Cotabato on June 19, 1971.

The Report of the TJRC (http://cdn.viiworksdemo.com/pdf/j7im-report.pdf) (14 accessed 2020) further found:

During the TJRC Listening Process sessions, allegations of other brutal killings perpetrated against Moro
civilians were shared. Participants in a Listening Process session in Basilan related that massacres had taken
place in Lamitan City and in Tuburan. Similarly, it was reported that eighteen Moro women and men were
massacred and their bodies mutilated in Bagumbayan, a municipality in Sultan Kudarat. Incidents such as
these have been largely unreported in the media and are difficult to verify from other independent sources.
Indeed, the pattern of Ilagâ violence seems to point to a systematic effort to drive the Moro and indigenous
away from their lands and, in this way, to secure these areas for resettlement.

Throughout the TJRC Consultation Process, the presence of state-sponsored paramilitaries and private armed
groups was judged to be one of the most disturbing human rights legacies of the 40 year-old conflict.

Gender-based violence in relation to the conflict was also committed during the Martial Law, thus:

Incidents relating to violence against women ranked second to massacres in terms of the frequency of their
being mentioned during the TJRC Listening Process. In most Listening Process accounts, there is a gendered
pattern of direct violence. On the one hand, the men and boys are killed; women and girls, on the other hand,
are raped before being killed. This pattern reflects the gender roles of men and women—men are killed
because they pose a threat of being able to fight back and defend their communities, whereas women, being
regarded as the bearer/nurturer of family and community honor, are raped in order to dehumanize the
collective to which they belong. As the TJRC Listening Process report observed:
During Martial Law, women’s bodies became the last frontier in subduing a small but formidable group of
Bangsamoro mujahideen (‘freedom fighters’). Women were made targets of soldiers’ and paramilitary
groups’ impunity—through rape and other forms of sexual abuse—as a way of weakening the resolve of the
Moro mujahideen.

Sexual and other acts of violence against women have a specific gender and cultural connotation. During the
height of Ilagâ atrocities, women’s bodies were mutilated by cutting off their nipples and breasts, ripping
babies out of pregnant women’s wombs, and disfiguring their reproductive organs.

22
 Then, the government signed a Final Peace Agreement with
MNLF in 1996. And in 2014, the Comprehensive Agreement on
Bangsamoro was signed with the Moro Islamic Liberation Front that
led to the creation of Bangsamoro Organic Law. In between, there were
982,000 internally displaced persons during the all-out-war policy in
1999. 52 And 600,000 IDPs after the collapse of the MOA-AD.53

X
Legitimate Violence and Violent Extremism

Each of these acts in itself represents a symbolic form of denigrating womanhood. The widespread
commission of rape and other acts of violence by government armed forces and auxiliaries against Moro and
indigenous women was a wanton display of power meant to demoralize ‘enemy’ men for their failure to
protect their women. In this context, rape, in particular, was more than an act of sexual violence—it signified
power over the ‘other’ as Moro.

Women were victimized, not just because they were women, but because they were Moro women. A stark,
but not unique illustration of this principle is provided by the ‘Malisbong massacre,’ mentioned above. An
unknown number of women and girls— aged 7 to 60 years old—were taken as hostages on board naval
vessels, where they were raped and then killed, after which their bodies thrown overboard into the sea.

Those who survived the ordeal and were able to return to their communities never managed to live a normal
life again. They were haunted by the brutality of their experience and the shame that they carried.

In the same vein, sexual violence against women and girls in many instances was meant to destroy the moral
fabric of the Moro society where women are seen as bearers of honor and culture. For example, during the
TJRC Listening Process, there were accounts of women being raped by Ilagâ and soldiers in front of their
families114 or of women forced to have sex with their husbands in front of and for the amusement of
soldiers.115 Many Moro women and young girls who were abducted and raped were never seen again; others
were allowed to return home.116 According to the TJRC

Listening Process report, incidents of sexual violence took place during the period of Martial Law that amount
to military sexual slavery:

…between 1972 and 1974, Ilagâ and soldiers alike made Bangsamoro women in Labangan and Ipil, Sibugay
become ‘sex slaves’ of navy men, whose boat was docked at Labangan and Ipil ports. For more than a week,
soldiers rounded up a group of at least ten women from Labangan and forced them to the naval boats to serve
the ‘sexual needs’ of the navy men. The following day, they were released; only to be replaced with another
group of women, and so on.... More than 200 women were [believed to be] enslaved in this way.

Those who were allowed to return to their families and communities were shunned and stigmatized. What is
worse, in some cases, to save their honor they were forcefully married to their perpetrators. Some of the
women, who had been abducted and sexually abused, became pregnant and were forced to marry their
captors, only to be abandoned later.119 In other instances, in order for families and communities to ‘protect’
their young Moro and indigenous women and girls, many of them were just simply married off (early/forced
marriages), often to older men.

Among the Bangsamoro and indigenous peoples, as in other societies, rape and other forms of sexual violence
are treated as a taboo subject—an unspeakable crime. Victims rarely speak out and instead suffer in silence,
usually, on their own, for years on end. In the meantime, gender-based sexual abuse is assuming new forms.
During a TJRC Listening Process session, allegations were made that some women were being trafficked after
having been abused by the military in connivance with men working at the local mayor’s office. According to
a Key Policy Interview respondent, “as a human rights violation, we can raise the issue of rape—we should
raise it…. However, in Moro culture, rape is shameful and agitating for the [victims], especially when it comes
out
52 https://www.officialgazette.gov.ph/bangsamoro/cost-of-war/ (accessed 13 July 2020)

53 https://www.officialgazette.gov.ph/bangsamoro/cost-of-war/ (accessed 13 July 2020)

23
 The government has the monopoly of the legitimate use of violence
against its people in the form of military or law enforcement in order
to suppress violence or to maintain peace and order. But it must also
be tempered with accountability mechanisms in the exercise of the use
of violence so that it will not be abused and secured people’s right.

When Martial Law was imposed, extreme use of military was

resorted not only against the political dissenters but to the
Bangsamoro. The State recognized its misdeeds when it enacted
Republic Act No. 10368 otherwise known as Human Rights Victims
Reparation and Recognition Act of 2013 in order to give justice to its
victims in the form of transitional justice mechanism of reparation and
recognition.

In the case of Bangsamoro the proportionality and necessity in the use

of force was not considered. Rather the extreme military force was
used in Jolo Burning or Jolocaust in 1974, Zamboanga Siege in 2013,
Marawi Siege in 2017, Manalili in 1971, Malisbong Massacre in 1974,
Tran Incident in 1973 , Tong Umapuy Massacre in 1983, and many
more. These are not new, even during the American colonial time, we
have the Bud Dahu in 1906 and Bud Bagsak in 1913.

What we know is that more often than not, military policies shaped
the narratives and identity of the Bangsamoro since the time Capt.
Esteban Rodriguez de Figueroa was instructed by King Philip II in
1596 to colonize Mindanao. Then, during the American colonization
the war claimed many lives of the population of the Bangsamoro. Two
years after the 1946 independence, Ma’as Kamlon rebelled. Then
Jabiddah Massacre happened in 18 March 1968 which became the
immediate cause for the Bangsamoro youth to form a liberation army,
MNLF, MILF and other liberation groups.

XI

In terms of nation-building, the symbol of our nation such as the

national flag and national anthem. The Bangsamoro narratives are
excluded. This othering is evident in our social structure. In major cities
in the country, Bangsamoro formed their owned communities, mostly
in slum areas, as a result of social rejection.

24
 Extreme military measures to suppress violence were used in
Jolo Burning, Zamboanga Siege, Marawi Siege, and Bicutan Siege.54
We do not know if the repeated extreme military measures used were
necessary and proportional under the International Humanitarian
Law. Perhaps, othering or Moro Moro psyche influenced the use of
potent military force.

We cannot help but compare these to military putschists in late

1980s in Makati City where a compassionate action was taken. In one
instance they were merely punished with push-ups.55 Despite
repeated military uprisings, the government was magnanimous.
Perhaps, they are not others, there is a sense of belongingness. So no
harsh punitive military measures were resorted to against the coup
plotters, in fact some became senators and occupied high government
positions.

We do not know if this policy of extreme military measures was

a product of othering by those who shape policies. Perhaps, if
Bangsamoro are not treated as others and there is no prejudice in the
minds of officials making the policies there would be more compassion
in the action taken like those soldiers in Makati City.

And perhaps if there is no othering when conflict arises there

would be more compassion in policy and decision-making. And
perhaps, the discontented youth not be radicalized and resort to
violent extremism.

XII

We hope that we put to context the root cause mentioned in Sec.

2, RA 11479.

We question the Constitutionality of RA 11497 not only because

we seek the affirmation of the constitutional protection of freedom and
liberty. But for the reason that othering in the enforcement of the law
will likely to victimize Bangsamoro people. The Moro Moro syndrome
is still alive in the consciousness of the law enforcers.

54
CHR found military response in Bicutan Siege excessive.
https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=248417> (accessed 12 July 2020)
55
Manila Hotel mutiny.

25
 CONSTITUTIONAL ISSUES

I. SECTION 29 FOR RA 11479 VIOLATES EIGHT PROVISIONS

OF THE CONSTITUTION:

A. SEPARATION OF POWERS
1. Free Access to Courts (Section 11, Article III)
2. Exclusive Judicial Power to Issue Warrant Arrest and
Search (Sections 2, Article III)
3. Exclusive Jurisdiction over the Custody of Person
(Sections 2, Article III)
4. Dimunition of Constitutional Rules on Warrant (Section
2, Article III)
5. Exclusive Judicial Rule-Making Power (Section 5 par. 5,
Article VIII)

B. DUE PROCESS OF LAW (Secs. 1, Article III)

C. EQUAL PROTECTION CLAUSE (Section 1, Article III)

D. PRIVILEGE OF THE WRIT OF HABEAS CORPUS (Section

15, Article III)

E. BILL OF ATTAINDER (Section 22, Article III)

F. RIGHT TO BAIL (Section 14, Article III)

G. RIGHT TO SPEEDY DISPOSITION OF CASES (Section 16,

Article III)

II. SECTION 4 OF RA 11479 VIOLATES CONSTITUTION DUE

PROCESS CLAUSE (Section 1, Article III), AND FREEDOM
OF SPEECH, EXPRESSION, PRESS AND PETITION (Section
4, Article III)

III. SECTION 56 OF RA 11479 VIOLATES DUE PROCESS

CLAUSE (Section 1, Article III)

IV. SECTION 15 OF RA 11479 VIOLATES EQUAL

PROTECTION CLAUSE (Section 1, Article III)

26
 V. SECTION 16 OF RA 11479 VIOLATES DUE PROCESS
CLAUSE (Section 1, Article III)

VI. SECTION 25 OF RA 11479 VIOLATES DUE PROCESS

CLAUSE (Section 1, Article III)

VII. SECTION 19 OF RA 11479 VIOLATES: DUE PROCESS

CLAUSE (Section 1, Article III), EQUAL PROTECTION
CLAUSE (Section 1, Article III) ,AND JUDICIAL RULE-
MAKING POWER (Section 5 (50), Article VIII)

VIII. SECTION 30 OF RA 11479 VIOLATES MIRANDA RIGHTS

(Section 12 (1), Article III)

IX. SECTIONS 34 OF RA 11479 VIOLATES RIGHT TO BAIL

AND (Section 13, Article III) and JUDICIAL RULE-MAKING
POWER (Section 5 (5), Article VIII)

X. SECTION 38 OF RA 11479 VIOLATES EQUAL

PROTECTION CLAUSE (Section 1, Article III)

ARGUMENT

I
SECTION 29 OF RA 11479 VIOLATES
EIGHT PROVISIONS OF THE CONSTITUTION

A
SEPARATION OF POWERS

The assailed law, RA 1147, is not in sheep’s clothing. Frequently

an issue of this sort will come before the Court clad, so to speak, in
sheep's clothing: the potential of the asserted principle to effect
important change in the equilibrium of power is not immediately
evident, and must be discerned by a careful and perceptive analysis. 56
But this wolf comes as a wolf. 57

56 Justice Antonin Scalia’s Dissent in Morrison v. Olson, 487 U.S. 654 (1988). Accessed on 12 July 2020 at
<https://tile.loc.gov/storage-services/service/ll/usrep/usrep487/usrep487654/usrep487654.pdf>
57 Id.

27
 Section 29, RA 11479, violates separation of powers inasmuch as
it contravenes free access to courts (Sections 11, Article III), it
empowers the military or police officer to arrest, search and seize
persons and things (Sections 2, Article III), and it trespasses the rule-
making power this Honorable Court (Section 5 par. 5, Article VIII).

On its face the RA 11479 decriminalized deprivation of right to

liberty and personal security,58 it allows imprisonment for at up to 24
days without conviction,59 it removes the privilege of writ of habeas
corpus,60 it denies right to bail,61 it is repugnant to speedy disposition
of cases,62 it violates due process of law, and it negate equal protection
of law, among many others.

Section 29, RA 11479 provides:

SEC. 29. Detention Without Judicial Warrant of Arrest.- The

provisions of Article 125 of the Revised Penal Code to the contrary
notwithstanding, any law enforcement agent or military personnel,
who, having been duly authorized in writing by the ATC has
taken custody of a person suspected of committing any of the acts
defined and penalized under Sections 4, 5, 6, 1, 8, 9, 10, 11 and 12
of this Act, shall, without incurring any criminal liability for delay
in the delivery of detained persons to the proper judicial authorities,
deliver said suspected person to the proper judicial authority within
a period of fourteen (14) calendar days counted from the moment
the said suspected person has been apprehended or arrested,
detained, and taken into custody by the law enforcement agent or
military personnel. The period of detention may be extended to a
maximum period of ten (10) calendar days if it is established that
(1) further detention of the person/s is necessary to preserve
evidence related to terrorism or complete the investigation; (2)
further detention of the person/s is necessary to prevent the
commission of another terrorism; and (3) the investigation is being
conducted properly and without delay.

Immediately after taking custody of a person suspected of

committing terrorism or any member of a group of persons,

58 Sec. 29, RA 11479 provides removes criminal liability in the delay in delivery of detained person to the
judicial authority for up to 24 days.
59 Id. Suspected person not under custodia legis can be detained up to 24 days.

60 Id. Suspected person detained up to 24 days has no cause of action to file a petition for writ of habeas corpus

because it is legal under this provision.

61 Id. The suspected is not in custodia legis since he or she under administrative detention. Under Rule 114, only

person under custody of law is entitled to bail.

62 Sec. 16, Art. III, Const.

28
 organization or association proscribed under Section 26 hereof, the
law enforcement agent or military personnel shall notify in writing
the judge of the court nearest the place of apprehension or arrest of
the following facts: (a) the time, date, and manner of arrest; (b) the
location or locations of the detained suspect/s and (c) the physical
and mental condition of the detained suspect/s. The law
enforcement agent or military personnel shall likewise furnish the
ATC and the Commission on Human Rights (CHR) of the written
notice given to the judge.

1
Free Access to Courts

"The Constitution," as aptly stated in one case, "is a law for rulers
and for people equally in war and in peace and covers with the shield
of its protection all classes of men at all times and under all
circumstances."63 And it is for this reason that our courts must be open
for accessibility as enunciated in Section 11, Article III of the
Constitution which provides that free access to the courts and quasi-
judicial bodies shall not be denied.

Ironically, Section 29 of RA 11479 provides that the courts are not

accessible for 14 to 24 days to the “suspected person” therein. As the
latter shall not to be delivered to the court for judicial custody. This is
implicit in Section 29 in exempting military officer from the criminal
liability in Article 125 of the Revised Penal Code (“RPC” for brevity)

Section 29, therefore, shut the doors of our courts up to 24 days

to the “suspected person.”

The moment a person is deprived of liberty, his or her

entitlement to due process of law arises. Our deduction is based on a
correlated provision in Section 2, Article III on the inviolability of the
right to personal security which can on only be pierced by a judge who
can seize, under a strict constitutional guidelines, a person thru a
warrant of arrest. And presumption of innocent in Section 14 (2),
Article III.

2.
Exclusive Judicial Power
to Issue Warrant Arrest and Search
63 Rio vs. People of the Philippines, G.R. No. 90294, 24 September 1991.

29
 (Sections 2, Article III)

Section 2, Article III of the Constitution governs the exclusive

judicial power of the courts in the issuance of arrest or search
warrant.64

The State cannot in a cavalier fashion intrude into the persons of

its citizens as well as into their houses, papers and effects. 65 The
constitutional provision sheathes the private individual with an
impenetrable armor against unreasonable searches and seizures. 66 It
protects the privacy and sanctity of the person himself against
unlawful arrests and other forms of restraint.67

Given the significance of this right, the courts must be vigilant in

preventing its stealthy encroachment or gradual depreciation and
ensure that the safeguards put in place for its protection are observed.68

Section 29 echoes a chilling effect to the constitutional rights of

the people to due process.

The assailed provision of the law categorically provides that

“any law enforcement agent or military personnel, who, having been
duly authorized in writing by the ATC has taken custody of a person
suspected of committing any of the acts defined and penalized.”

Section 29 is clear that: a mere suspect may be subjected to a

warrantless arrest by the law enforcement agent or military personnel
with a written authorization by the ATC to make an arrest and detain
a person.

This power in Section 29 is usurpation of the exclusive judicial

powers of judges in Section 2, Article III. The constitutional right to
liberty and personal security is inviolable which can only interferred
with by courts upon application by complainant, presentation of

64 Section 2. 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.
65 People Of The Philippines vs. Zenaida Bolasa Y Nakoboan, G.R. No. 125754, 22 December 1999.

66 Id.

67Id.

68 Honesto Oga Yon Y Diaz vs. People of the Philippines, G.R. No. 188794, 2 September 2015.

30
evidence, satisfaction of probable cause, and issuance of warrant of
arrest.

The power of the court in Section 12, Article III is exclusive. It is

not sharable to the other two branches of the government. The
Congress, in Section 29, cannot diminish it by allocating portion of
such power, even one specific offense, to the Executive Branch.

3
Exclusive Jurisdiction over
the Custody of Person
(Sections 2, Article III)

Section 2, Article III provides for the court’s jurisdiction as to the

custody of person. The Constitution is clear that the court shall exercise
exclusive jurisdiction to issue warrant of arrest but inherent that is the
jurisdiction over any person whose liberty by virtue of making a
person to answer for penal laws.

In Section 29, it legalized up to 24 days custody of a person to the

military or police officer authorized by the ATC. This unconstitutional
inasmuch as it vests jurisdiction over the custody of a person who are
to answer for violation of a penal law, RA 11479. Detention by any law
enforcer is administrative detention as opposed to custody of law
which is essentially a judicial process which requires as we have
discussed above strict constitutional guidelines.

To make imprisonment lawful, it must either be, by process from

the courts of judicature, or by warrant from some legal officer, having
authority to commit to prison; which warrant must be in writing,
under the hand and seal of the magistrate, and express the causes of
the commitment.69

When a person is under the custody of law, he or her rights is

secured by the court’s jurisdiction and powers. He or she is under the
direct judicial oversight of the judges who are presumptively
competent, impartial, and independent. Since our judges are not
themselves the arresting and detaining officers, they can objectively
dispense with their constitutional judicial duties expected of them.

69 Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Justice Antonin Scalia, Dissent. <
https://www.law.cornell.edu/supct/pdf/03-6696P.ZD> (accessed 14 July 2020)

31
 On the contrary, military or police officers has suspected person
under administrative detention. There is no guarantee that he or she
can be protected by the Constitution. Military or police officers, with
all respect, do not have that constitutional prescription imposed to the
judge on accountability of competency, impartiality and
independence.

In our jurisdiction, the only allowable administrative detention

are in deportation proceedings,70 civil commitment of the mentally ill71
and temporary detention in quarantine of the infectious.72 These
exceptions are permitted because they “do not partake of the nature
of a criminal action. 73 This is allowable because the person is not detain
to answer for a crime.

4
Dimunition of Constitutional Rules on Warrant
(Section 2, Article III)

We are still discussing Section 2, Article III in the light of the rules
on arrest it mandated. This provision is immutable. It cannot be altered
by any of the branch of the government, not even this Honorable
Court.

Section 2, Article III provides for a specific judicial process upon

which a person can be seized and detained by virtue of a warrant
issued by a judge.

The issuance of arrest, we must underscore, does not demand a

ministerial function. It cannot be compared with a judge’s duty of
issuance of a summons, in civil cases, where a judge authorizes its
issuance if a complaint is sufficient in form and substance.74

In the issuance of a warrant under Section 1, Article III a sworn

complain, sufficient in substance and form, does not ipso facto impose
duty to the judge to automatically issue a warrant. The judge is
required to follow a stringent constitutional procedure in order curtail
anyone’s right to liberty and personal security.
70 Harvey vs. Defensor-Santiago, G.R. No. 82544, June 28, 1988 citing Ong Hee Sang vs. Commissioner of
Immigration, L-9700, February 28,1962, 4 SCRA 442)
71 Hamdi v. Rumsfeld, supra.

72 Id.

73 Harvey vs. Defensor-Santiago, supra.

74 Sec. 1, Rule 14, Rules of Court.

32
 The judge must: (a) see and personally examine the complainant
and her or his witnesses; (b) requires them under oath or affirmation
(this oath and affirmation entitles an effective remedy to a victim since
a cause of action on perjury arises make false statements); (c) ask the
complainant and the witnesses, not a mere perfunctory question,
searching question to determine probable cause; and (d) be satisfied
that the evidence presented overcome the burden of proof of probable
cause NOT a bare suspicion.

The foregoing constitutional requirement was diminished by

Section 29 inasmuch as it is not a judge but the ATC or the officer
therein authorized to curtail right to liberty and security of person. No
complainant and witnesses are required neither complaint under oath
or affirmation.75 No searching question is observed to seek the truth.
And, finally, the required evidence of probable cause was relegated to
a bare suspicion.

Finally, the neutrality, detachment and independence that

judges are supposed to possess is precisely the reason the framers of
the 1987 Constitution have reposed upon them alone the power to
issue warrants of arrest. 76 To vest the same to a branch of government,
which is also charged with prosecutorial powers, would make such
branch the accused's adversary and accuser, his judge and jury. 77

5
Exclusive Judicial Rule-Making Power
(Section 5 par. 5, Article VIII)

Section 5 (5) of Section VIII of the 1987 Constitution, the Supreme

Court shall have the power to promulgate rules concerning the
protection and enforcement of constitutional rights. This power is now
outside the domain of the other two branches of the government.

This provision expanded the rule making power of this Court for
(1) it extended its power not only to cover pleading, practice and
procedure in all courts, admission to the practice of law and the
integration of the Bar but also to encompass the protection and enforcement

75 So that an aggrieved person can have an effective remedy should the complaint is a fabrication, he or she
can file a criminal case of perjury.
76 People Of The Philippines vs. Panfilo M. Lacson, G.R. No. 149453, 1 April 2003.

77 Id.

33
of constitutional rights and legal assistance to the underprivileged, and (2) it
no longer contained the restriction that said rules "may be repealed,
altered or supplemented by the Batasang Pambansa.”78 In fine, the
power to promulgate rules of pleading, practice and procedure is no
longer shared by this Court with Congress, more so with the
Executive. 79

The separation of powers among the three co-equal branches of

our government has erected an impregnable wall that keeps the power
to promulgate rules of pleading, practice and procedure within the
sole province of this Court.80 And the other branches trespass upon this
prerogative if they enact laws or issue orders that effectively repeal,
alter or modify any of the procedural rules promulgated by the
Court.81

In Estipona, Jr. y Asuela v. Lobrigo,82 it cited cases wherein it struck-

down laws and rules repugnant to this Honorable Court’s rule-making
power:

Viewed from this perspective, We have rejected previous

attempts on the part of the Congress, in the exercise of its legislative
power, to amend the Rules of Court (Rules), to wit:

1. Fabian v. Desierto—Appeal from the decision of

the Office of the Ombudsman in an administrative
disciplinary case should be taken to the Court of
Appeals under the provisions of Rule 43 of the Rules
instead of appeal by certiorari under Rule 45 as
provided in Section 27 of R.A. No. 6770.

2. Cathay Metal Corporation v. Laguna West Multi-

Purpose Cooperative, Inc— The Cooperative Code
provisions on notices cannot replace the rules on
summons under Rule 14 of the Rules

3. RE: Petition for Recognition of the Exemption of the

GSIS from Payment of Legal Fees; Baguio Market Vendors
Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon.
Judge Cabato-Cortes; In Re: Exemption of the National
Power Corporation from Payment of Filing/Docket

78 People Of The Philippines vs. Panfilo M. Lacson, supra.

79 Echegaray v. Secretary of Justice, 361 Phil. 73, 88 (1999)
80 Id.

81Id.

82 G.R. No. 226679, [August 15, 2017], 816 PHIL 789-820

34
 Fees; and Rep. of the Phils. v. Hon. Mangotara, et al.—
Despite statutory provisions, the GSIS,
BAMARVEMPCO, and NPC are not exempt from the
payment of legal fees imposed by Rule 141 of
the Rules.

4. Carpio-Morales v. Court of Appeals (Sixth

Division)—The first paragraph of Section 14 of R.A.
No. 6770, which prohibits courts except the Supreme
Court from issuing temporary restraining order
and/or writ of preliminary injunction to enjoin an
investigation conducted by the Ombudsman, is
unconstitutional as it contravenes Rule 58 of the Rules.

Considering that the aforesaid laws effectively modified

the Rules, this Court asserted its discretion to amend, repeal or even
establish new rules of procedure, to the exclusion of the legislative
and executive branches of government. To reiterate, the Court's
authority to promulgate rules on pleading, practice, and procedure
is exclusive and one of the safeguards of Our institutional
independence.

Section 29 should be declare unconstitutional as it: (a) altered

rules on arrest under Rule 113 as suspect can now be arrested without
a warrant; (b) altered rules on Bail under Rule 114 as suspect cannot
post bail within the detention up to 24 days (this is further discussed
below); (c) altered rules on search and seizure under Rule 126 as there
is no need of warrant of arrest to seize a person; (d) altered rules on
habeas corpus under Rule 102 as no habeas corpus will prosper during
the suspect detention; and, (e) altered Rule on Writ of Amparo under
A.M. No. 07-9-12-SC when detention for up to 24 becomes legal and
makes this writ unavailing.

We observed, under Section 29, that every time an arrest and

detention is conducted the arresting and detention officer will merely
register it to the nearby court by sending a notice of the fact of arrest
and detention. We found it, somehow, disturbing on how court’s role
in the protection and enforcement of constitutional rights is
downgraded to a mere registry office.

B
DUE PROCESS OF LAW
(Secs. 1, Article III)

35
 Constitution and Jurisprudence

Section 1, Art. III of the 1987 Constitution provides:

Section 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 the laws.

The right to liberty guaranteed by the Constitution includes the

right to exist and the right to be free from arbitrary personal restraint
or servitude.83 Its purpose is to prevent arbitrary governmental
encroachment against the life, liberty and property of individuals. 84

In National Telecommunications Commission v. Brancomm Cable and

Television Network Co., the Honorable Supreme Court discussed the
two aspects of the constitutional guarantee of due process --
substantive and procedural, holding that:

In our jurisdiction, the constitutional guarantee of due

process is not limited to an exact definition — it is flexible in that
it depends on the circumstances and varies with the subject
matter and the necessities of the situation. However undefined,
due process has always been consistently divided into two
components: (a) substantive due process; and (b) procedural due
process. Substantive due process is one which requires the
intrinsic validity of the law in interfering with the rights of the
person to his life, liberty, or property; while procedural due
process involves the basic rights of notice and hearing, as well as
the guarantee of being heard by an impartial and competent
tribunal. The former component of due process bars certain
arbitrary, wrongful government actions "regardless of the
fairness of the procedures used to implement them.”

In White Light Corp. v. City of Manila, the Honorable Supreme

Court held:
The question of substantive due process, moreso than
most other fields of law, has reflected dynamism in
progressive legal thought tied with the expanded acceptance
of fundamental freedoms. Police power, traditionally
awesome as it may be, is now confronted with a more rigorous
level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the

83 Rubi v. Provincial Board, G.R. No. L-14078, 7 March 1919.

84 White Light Corporation Vs. City Of Manila, G.R. No. 122846, 20 January 2009.

36
 frequency with which it has been utilized to achieve a liberal
result for, after all, the libertarian ends should sometimes yield
to the prerogatives of the State. Instead, the due process clause
has acquired potency because of the sophisticated
methodology that has emerged to determine the proper metes
and bounds for its application.

We respectfully submit that Section 29 violates both substantive

due process and procedural due process.

2
Violation of Substantive Due Process Law

We present two grounds in respect to Section 29’s violation of Due

Process of Law: that it is void for vagueness; and that it is also void for
its arbitrariness.
a
Void Vagueness

Petitioners respectfully submit that the vagueness of the provisions

of the assailed RA 11479 creates boundless room for interpretation and
discretion on the part of the implementing authority. And leave the
people to make a guesswork as to the meaning and intention of the
vague and over-sweeping provisions of the law.

The vagueness of the assailed provisions of the RA 11479 is a rich

source of abuse of the implementing authority and threatened
violation of the rights to due process of the people.

A vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on ad hoc and subjective
basis, and vague standards result in erratic and arbitrary application
based on individual impressions and personal predilections.85

The Court, in Samahan Ng Mga Progresibong Kabataan vs Quezon

City86, explained that a statute or act suffers from the defect of
vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ

85 Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (1975) U.S. Dist. LEXIS 16477, cited in SPARK v Quezon
City, G.R. No. 225442, 8 August 2017.
86 G.R. No. 225442, 8 August 2017.

37
as to its application. It is repugnant to the Constitution in two (2)
respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the
Government muscle.

In this case, the definition of terrorism is so broad that law enforcers

will have to second-guess and are given a wide discretion to determine
if an act is prohibited under the law or not. Apart from this, the
apprehending enforcers is delegated with a discretion to ascertain on
a person’s intention and purpose in committing acts punished by RA
11479. This is terrifying. Intent is a state of mind. Section 29, by
delegating a duty of a judge in determination of intent and purpose of
the acts of a person, whether it is violated to offenses punished by RA
11479, has made law enforcer judge, jury, and executioner.

Section 29 permits warrantless arrests by bare suspicion and

detained them as if they have actually committed an offense and
criminally liable for their supposed violation of the RA 11479. This is
despite of the fact that the assailed law does not define the term
“person suspected” or “suspected person.”

The lack of adequate definition of the word “suspected person” as

used in the provisions of the assailed RA 11479 violates the peoples
constitutional right to due process of law. Since, the term “suspect”
was used unsparingly.

A “suspected person” under the questionable statute is not one of

those persons where warrantless arrest can be effected such as: (a)
someone who committed a violation of the provisions of RA 11479 in
flagrante delicto; (b) someone who committed an act which the arresting
officer has personal knowledge of; and (c) the suspected is an escapee.

Since a “suspected person” is not defined by the assailed law, and

because of such lack of parameters, any person is now vulnerable and
at the mercy of the military and police officer law to determine who
may be “suspected person.”

b
Void for Arbitrariness

38
 Such unrestrained discretion wield by officers in Section 29 as we
have stated above amounts to arbitrariness.

In Aquino v. Ponce Enrile,87 Justice Cecilia Muñoz Palma described

the arbitrariness test in this manner:

An arbitrary act is one that arises from an unrestrained exercise of

the will, caprice, or personal preference of the actor (Webster's 3rd
New International Dictionary, p. 110), one which is not founded on
a fair or substantial reason (Bedford Inv. Co. vs. Falb, 180 P. 2d 361,
362, cited in Words & Phrases, Permanent Ed., Vol. 3-A, p. 573), is
without adequate determining principle, non-rational, and solely
dependent on the actor's will. (Sweig vs. US. D.C. Tex., 60 F. Supp.
785, Words & Phrases, supra, p. 562) xxx.

In the foregoing jurisprudential definition, there is “arbitrary act”

when there is unrestrained “personal preference of the actor” and
“solely dependent on the actor's will.” Clearly, arbitrariness is present
in Section 29.

This Honorable Court provides us the concept of “suspiciousness”

which characterized the exertion and use of “personal experience,”
“ability to discern,” and “personal knowledge” in Alvin Comerciante Y
Gonzales vs. People of the Philippines,88

The balance lies in the concept of "suspiciousness" present where the police
officer finds himself or herself in. This may be undoubtedly based on the
experience of the police officer. Experienced police officers have personal
experience dealing with criminals and criminal behavior. Hence, they should
have the ability to discern—based on facts that they themselves observe—
whether an individual is acting in a suspicious manner. Clearly, a basic
criterion would be that the police officer, with his or her personal knowledge,
must observe the facts leading to the suspicion of an illicit act.

Suspiciousness, therefore, is personal to the officer making the arrest

and detention.

This is where the arbitrariness lies because it defied standard and

uniformity which cannot be equally and fairly applied when Section
29 is put into operation. As suspicion has no legal prescription in the
Section 29 and its determination is largely depend on personal in traits

87 G.R. No. L-35546, 17 September 1974.

88 G.R. No. 205926, 22 July 2015.

39
of the officer making the arrest and detention we can safely conclude
that there is as many definition of “suspected person” as there are
military and police officers in Section 29.

The unrestrained power of arrest and detention by officer in Section

29 is open to abuse. Prejudiced mind would lead to arbitrary exercise
in addition to personal preference of officer as to who is “suspected
person.” Justice Claudio Teehankee, in a dissenting and concurring
opinion, confirmed petitioners’ perturbation of Section 29, thus: 89

[A]n illegal search and seizure usually is a single incident,

perpetrated by surprise, conducted in haste, kept purposely beyond the
court's supervision and limited only by the judgment and
moderation of officers whose own interests and records are often
at stake in the search. There is no opportunity for injunction or appeal
to disinterested intervention. The citizen's choice is quietly to submit to
whatever the officers undertake or to resist at risk of arrest or immediate
violence.

And we must remember that the authority which we concede

to conduct searches and seizures without warrant may be exercised
by the most unfit and ruthless officers as well as by the fit and
responsible and resorted to in case of petty misdemeanors as well as in
the case of the gravest felonies. (underscoring supplied)

In Wolf v. Colorado:90

The security of one's privacy against arbitrary intrusion by the

police—which is at the core of the Fourth Amendment—Is basic to a
free society. It is therefore implicit in "the concept of ordered liberty"
and as such enforceable against the States through the Due Process
Clause. The knock at the door, whether by day or by night, as a
prelude to a search, without authority of law but solely on the
authority of the police, did not need the commentary of recent
history to be condemned as inconsistent with the conception of
human rights enshrined in the history and the basic constitutional
documents of English-speaking peoples.

The Court should not leave entirely to the hands of government

functionaries discretionary determinations susceptible of abuse and
misuse, for, indeed, "[p]ower is a heady thing." 91 It was held that “an

89 People Of The Philippines vs. Court Of First Instance Of Rizal, Branch IX, Quezon City, J. Teehankee, Separate
Opinion, G.R. No. L-41686, 17 November 1980.
90262 U. S. 522. <accessed at https://tile.loc.gov/storage-
services/service/ll/usrep/usrep338/usrep338025/usrep338025.pdf > (accessed on 11 July 2020)
91 People Of The Philippines vs. Court Of First Instance Of Rizal, Branch IX, Quezon City, J. Teehankee, Separate

Opinion, G.R. No. L-41686, 17 November 1980.

40
executive officer to seize content alleged to be unprotected without
any judicial warrant, it is not enough for him to be of the opinion that
such content violates some law, for to do so would make him judge,
jury, and executioner all rolled into one.”92

Our argument is no unfounded.

Few days ago, Malaybalay Police Station headed by a certain Lt.

Col. Jerry Tambis posted infographic in its official a social media
captioned as: “Malalaman mong sila ay para sa TERORISMO. Papatulan
lahat ng isyu. Basta laban sa GOBYERNO.”93 The infographics’ screened
shot, shows:

Are argument appeared to be not unfounded. And the thinking

of Lt. Col. Tambis perhaps, is not limited to him. It is most, likely,
members of the police or military force may have the same reading of
RA 11479. There was no misinterpretation in the law RA 11479, as we
have argued there were delegation of intent and the acts punished are
left to the determination of the law enforcer. Thus, Lt. Col. Tambis
interpretation.

92Disini Vs. The Secretary Of Justice, G.R. No. 203335, 11 February 2014 citing Pita v. Court of Appeals, 258-A
Phil. 134 (1989).
93 Jerusalem, J, Bukidnon town police logic: If you fight for press freedom, you’re communist or terrorist (17 July 2020),

Philippine Daily Inquirer. < https://newsinfo.inquirer.net/1308343/bukidnon-town-police-logic-if-you-fight-

for-press-freedom-youre-communist-or-terrorist> (accessed on 18 July 2020)

41
 It is also very surprising that so much leeway was given by RA
11479 to law enforcers when the Philippine National Police as reported
by Philippine Daily Inquirer that: “A total of 6,600 persons linked to the
illegal drug trade have been killed since the start of the government’s war
against drugs. data from the Philippine National Police.”94 This data is
not encouraging in terms of protection of liberty and freedom involved
as issues in this petition.

Hence, the arbitrariness of Section 29.

3
Violation of Procedural
Due Process Law

While in detention, the suspected persons, apart from the foregoing,

is denied due process protection of notice and hearing required to an
administrative process.

C
EQUAL PROTECTION CLAUSE
(Section 1, Article III of the Constitution)

1.
Constitution and Jurisprudence

We come now to the equal protection clause which is one of the

basic principles upon which this government was founded. 95 The
purpose of the equal protection clause is to secure every person within
a state’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its improper
execution through the state’s duly constituted authorities. 96

Section 29 violates Equal Protection Clause.

First. Arrest and detention of “suspected person” is based on

personal preference. An officer in Section 29 will exercise his standard of
suspicion in making arrest and detention. Lacking standard in the law,

94 Gonzales, C., 6,600 killed in war vs drugs from July 2016 to May 2019 — PNP (18 June 2019) ), Philippine
Daily Inquirer. < https://newsinfo.inquirer.net/1131433/6600-killed-in-war-vs-drugs-from-july-2016-to-may-
2019-pnp> (accessed on 18 July 2020)
95 Biraogo vs. The Philippine Truth Commission Of 2010, supra.

96 Id.

42
there are as many “suspected person” in Section 29 as there are
military or police officer. The real example here is Lt. Col. Tambis.

Second. The military and police officer under Section 29 is

exempted for prosecution under Article 125 of the RPC while other
military and police officer who may commit the same acts of arresting
or detaining suspected person from committing a crime other than
those defined and punishable under RA 11479 are not exempted from
Article 125. Their delay in the delivery of the person arrested within
the timeline of Article 125, result to criminal liability.

For instance military or police officer who may arrest and detain a
person who may have committed rebellion,97 insurrection,98 coup de’
etat, 99 war crimes, 100 genocide, 101 or other crimes against humanity102
is liable under Article 125 of the RPC if he or she delay the delivery
of said person to the court, but military or police officers under Section
29 are exempted from criminal liability up to 24 days.

We find no distinction and valid classification between the offense

of terrorism and of other crimes we cited to make Article 125 of the
RPC inapplicable to military or police officer under Section 29.

Third. “Suspected person” under Section 29 is deprived of right to

file a case under Article 125 of the RPC against arresting or detaining
military or police officer while a suspect in crimes other than those
punished in RA 11479 has cause of action to file criminal case against
the detaining officer.

There is no valid classification between the suspect under RA 11479

and the suspects in other crimes we cited. In the former, there is no
accountability mechanism in favor of the suspect whereas in the latter
there is presence of accountability. The lack of remedy under Article
125 of RPC to make perpetrators accountable is prejudicial to vindicate
his right. Thus, Section 29 violates equal protection clause.

2.

97 Art. 134, RPC

98 Art. 134. Id.
99 Art. 134-A. Id.

100 Section 4, Republic Act No. 9851.

101 Section 5, Id.

102 Section 6 , Id.

43
 Muslim Na Mananakop

“Muslim na mananakop,” uttered by former Secretary Manuel Roxas II,

Department of Interior and Local Government, during the Zamboanga
Siege in 2013.103 This stereotyping shows how deep his prejudiced towards
Muslims. Even his level of education and position in the government such
unbecomingness was entirely unexpected.

We do not know if his prejudice affected his decision-making during

Zamboang Siege as one of the policy-makers that causes 10,000 houses
burned104 affecting sixteen (16) barangays in Zamboanga City with
119,714 internally displaced persons. .105

But former Sec. Roxas is not alone.

The Supreme Court, during the colonial era said that: “in consideration
of the race [of the Moro] to which the defendant belongs, his barbarous
and savage customs, and his absolute lack of education and culture. This
special circumstance is with greater reason applicable to the Moros
xxx.”106 In another case it described “accused [a Bangsamoro] is a
member of an uncivilized tribe.”107

Still in another case, it depicted two Bangsamoro accused to

have “shown to be members of an uncivilized or semi-civilized
tribe.”108 The decision goes on to say that:

“[W]e have no reason to believe that the crime committed by

them was prompted by peculiar tribal customs or ancient
traditions of their race, which, might have led them to believe
that the act committed by them was not in violation of the known
laws of the community wherein they resided.”109

The Supreme Court, at that time, was unaware that the ancient
tradition of the Bangsamoro, for more than 300 years, had been
103 Esguerra, A. (21 March 2016) Mar Roxas hit for ‘Trumped’ ‘Muslim na mananakop’ remark, Philippine Daily
Inquirer, 21 Mach 2016, <Available at: https://newsinfo.inquirer.net/775419/mar-roxas-hit-for-trumped-
muslim-na-mananakop-remark>, 11 July 2020.
104 Fonbuena, C., Zamboanga the fog of war (5 October 2013) Rappler. https://rappler.com/nation/zamboanga-

crisis-war (accessed 18 July 2020)

105 Zamboanga City - Five years after the siege (28 June 2019), Relief Web,
https://reliefweb.int/report/philippines/zamboanga-city-five-years-after-siege (accessed 18 July 2020)
106 The United States vs. The Moro Jakan Tucko, G.R. No. 6635, 14 September 1911.
107 The United States vs. Moro Jamad, G.R. No. L-12678, 15 December 1917.
108 The United States vs. Nalua and Kadayum, G.R. No. L-7311, 5 August 1912.

109 Id.

44
consistent in defending their human dignity in the protection of their
freedom and liberty from colonial powers.

For the two accused, at that time 21 July 1912, there was jus
bellum justum, in defending freedom. They should have been treated
as prisoner of war not a criminal. The Bangsamoro then has eleven-
year war with colonial power called by historians as Moro-American
War from 1902 to 1913; preceded by two-year Philippine-American
War from 1899 to 1902.

3
Notorious Muslims

Petitioners are grateful when this Honorable Court speaking,

thru Justice Mario Victor F. Leonen, pronounced :

Just because a community outside of Mindanao is predominantly

Muslim does not mean that it should be considered presumptively
"notorious." It is this type of misguided, unfortunately uneducated
cultural stereotype that has caused internal conflict and inhuman
treatment of Filipinos of a different faith from the majority.110

We have stated that arbitrariness in the determination of “suspected

person.” And we also mentioned that it is based on personal experience
of the military or police officer to determine who is “suspected
person.”

In connection hereto, we presented in the foregoing the prejudice

and stereotyping demonstrated by the frame of mind of former
Secretary Roxas, the colonial Supreme Court, and the counsel who
dropped the “notorious” word.

The foregoing instances demonstrative the extent on Bangsamoro

prejudice and stereotyping. The Pulse Asia survey revealed that
“majority of Filipinos think that Muslims are probably more prone to
run amok (55%).111 And a plurality believe that Muslims are probably
terrorists or extremists (47%).”112
110 People of the Philippines vs. Gilbert Sibelleno y Casabar, G.R. No. 221457. January 13, 2020.
111 Philippine Institute for Development Studies (July to Aug 2006), The Bias Against Muslims: A Creeping
Perception. Quezon, Vol. XXIV No. 4. <Accessed on 11 July 2020 at
https://pidswebs.pids.gov.ph/CDN/PUBLICATIONS/pidsdrn06-4.pdf> (accessed 12 July 2020)
112 Philippine Institute for Development Studies (July to Aug 2006), The Bias Against Muslims: A Creeping
Perception. Quezon, Vol. XXIV No. 4. <Accessed on 11 July 2020 at
https://pidswebs.pids.gov.ph/CDN/PUBLICATIONS/pidsdrn06-4.pdf> (accessed 12 July 2020)

45
 The Report of the Transitional Justice and Reconciliation
Commission wrote about persistent prejudice against Bangsamoro:

The persistence of prejudice and mistrust is evident in the

profound ignorance on the part of the majority population of the life
and reality of the Bangsamoro and indigenous peoples and reflects
an intolerance based on a rejection of ethno-religious differences.
Forty years of armed conflict have only deepened the divisions on all
sides. Unfortunately, despite its recent efforts to highlight the peace
process, government policy has not been able to address this ‘us
versus them’ mentality effectively.113

xxx

On the surface, these taunts appear to be nothing more than what

they are, namely vicious everyday expressions of ridicule toward
Muslim and indigenous peoples. In fact, they are expressions of a
prejudice that is deeply embedded in the psyche of Philippine
society at large and, particularly, among many civil servants. 114

xxx

The TJRC Study Group on Historical Injustice, for example, cites

the following studies that reflect the negative perception toward
Muslims: (1) a 1973 Filipina Foundation Study that showed strong
bias and prejudice of the Christian majority toward Muslims,
indicating that they are the ‘least likable’ ethnic group in the
Philippines; (2) a 1985 unpublished graduate thesis by Fredelino
Café that showed the negative portrayal of Muslims in a national
daily newspaper linked to terms such as ‘rebel,’ ‘terrorist,’ ‘killer,’
and ‘outlaw’; (3) a 2011 unpublished thesis by Vladymir Licudine on
‘islamophobia’ in the Philippines; (4) the results of an interfaith
session with a prominent elementary private school in Metro Manila
conducted by the Institute of Islamic Studies, whereby sixth graders
were found to associate Islam with known global terrorist networks
such as Al-Qaeda and the Islamic State of Iraq and Syria (ISIS); and
(5) the results of a study conducted on fourth year students at a State
university depicting negative traits to describe Islam and Muslims in
the Philippines as “violent,” “war freak,” “terrorists.”

Earlier, in the context of the Philippines transitioning from

colonial rule to self-governance, McKenna (1998) observed that
“...only Christian Filipinos were deemed entirely trustworthy...non-
Christian Filipinos [were] deemed culturally suspect...and regarded

113 Report of the Transitional Justice and Reconciliation Commission, p. 14. <
http://cdn.viiworksdemo.com/pdf/j7im-report.pdf> (accessed 12 July 2020)
114 Report of the Transitional Justice and Reconciliation Commission, p. 19. <
http://cdn.viiworksdemo.com/pdf/j7im-report.pdf> (accessed 12 July 2020)

46
 as socially and morally substandard...Muslim-Filipinos, comprising
the largest single category of non-Christians, were judged to be
dangerously disloyal because of their long history of armed enmity
toward Philippine Christians” (Pp. 105-106). See: McKenna, Thomas.
1998. Muslim rulers and rebels: Everyday politics and armed separatism in
the Southern Philippines. Berkeley/California: University of California
Press. 115

Section 29 is not a mere abstract assembly of words. When it

operates in the real world: it can put innocent men and women into jail
based on personal preference, stereotyping, and prejudiced of
arresting and detaining officers without legal accountability for a
period of 24 days.

4
Mistaken Identity

Our apprehensions on abuse and arbitrariness of the enforcement

of vague law, RA 11479, are not premised on empty facts. We have
cases of mistaken identity involving Bangsamoro. And we have
concluded that such mistaken identity victimization shows pattern,
widespread, and systemic in singling out the Muslims, Bangsamoro.

On indiscriminate arrest PHDR 2005 revealed:116

The human right to be free from fear—of terror attacks from whatever quarter
and at all times—is a right that needs to be asserted, and this is what the
current global condemnation of terrorism has done. It is, nonetheless, still
mainly the reinforcement of a right that the majority population already
largely enjoys. There is thus always the real danger that in asserting that right,
a line will be crossed where the rights of minorities may be violated. “Anti-
terror” legislation in certain countries (notably the post-9/11 “Patriot Act” in
the U.S. and recent laws in Australia) has been severely criticized for allowing,
among others, warrantless searches and arrests, indefinite detentions, and
violations of privacy through wire- tapping, eavesdropping, and internet site-
tracking. These new “powers” are typically arrayed first against the profiled
minority-populations, these days invariably Muslims. To be sure, violations
of such rights are occurring even today, as seen in the indiscriminate arrests
and charging of “suspected ASG” or “suspected JI” members. What they still
do not have is the odor of legality. In view of pending proposals for “anti-terror”
laws in this country, extreme vigilance should be exercised to ensure that while a
proper legal framework for terrorism is devised, the new legislation itself continues to
uphold human rights and the rule of law. It would be one of the greatest ironies of

115 Report of the Transitional Justice and Reconciliation Commission, p. 97 at Note 38. <
http://cdn.viiworksdemo.com/pdf/j7im-report.pdf> (accessed 12 July 2020)
116 Philippine Human Development Report 2005, Peace, Human Security and Human Development in the Philippines,

2nd Edition, Published by the Human Development Network (HDN) in cooperation with the United Nations
Development Programme (UNDP) and New Zealand Agency for International Development (NZAID), at
p.13. < at http://hdr.undp.org/sites/default/files/philippines_2005_en.pdf> (accessed 12 July 2020)

47
 the misnamed “war on terror” if, in asserting the freedom from fear, other
basic rights and civil liberties themselves were sacrificed. To majority-
populations that worry about terror, the maxim of Benjamin Franklin may be
instructive: “Any people that would give up liberty for a little temporary
safety deserves neither liberty nor safety.

During Zamboanga Siege, there were 285 persons who were

arrested indiscriminately and prosecuted. The case was eventually
transferred to Regional Trial Court-Branch 157, Pasig City upon the
authority of this Honorable Court to change venue.117 Upon
reinvestigation of the case, 42 Bangsamoro accused were released for
lack of evidence on 14 March 2015 after being detained for one and a-
half year. And seven accused children were released on August
2014.118 Further, reinvestigation were conducted which eventually
freed other mistaken identity accused. One of the petitioners here is a
pro bono counsel of some of the accused.

Then later, most of the accused asked for a plea bargaining that
led to the release of 98 accused, there other accused who were freed
because of their old age. At least 7 died in detention. From 285 accused
in 2013, it was now reduced to 65.119

It is so offense to justice to in such a magnitude for the law

enforcers to err in arresting and charging 44 persons and seven
children who languished for one and a half year.

This is not only instance. In an article entitled 51 Wrongful Arrest,

it was reported that:120

The police wrongfully arrested 51 men over the same 10-year

period in its fight against the Abu Sayyaf Group (ASG), according to
interviews and documents obtained by ABS-CBN.

Eighteen of the 51 are listed in court records, 21 from various

Department of Justice (DOJ) resolutions adopted by the court, 10 from
DOJ interviews , and two from the National Commission on Muslim
Filipinos (NCMF) legal handbook.

118 Alipala, J. (20 May 2018), Court frees 98 MNLF men in Zambo siege, Philippine Daily Inquirer, 21 Mach 20
<https://newsinfo.inquirer.net/995532/court-frees-98-mnlf-men-in-zambo-siege> (accessed on 12 July 2020)
119 We made a disclaimer that the two judges who presided the case have nothing to do with the arrest and

delay. We commend them that from 285 accused, only 65 remained for trial.
120 Grande, G. (27 March 2015), 51 wrongful arrests, ABS-CBN News. < https://news.abs-
cbn.com/nation/03/25/15/51-wrongful-arrests> (accessed 12 July 2020)

48
 "Wrongful arrests" include cases of mistaken identity, or cases
where not a single witness identified the accused in the crime for which
he was charged.

This Honorable Court can take judicial notice that there are
many criminal cases committed in Mindanao, which were transferred
with its approval, to the Regional Trial Court of Taguig City involving
accused, Bangsamoro, for various offences.

We have one very peculiar case that this Honorable Court must
consider exercising its exceptional power of supervision and to look
into this case.

It is entitled People vs. Radullan Sahiron et al Crim. Case no.

128923-H being tried by the Regional Trial Court of Taguig City
Branch 271. Several judges who presided the case but since its filing on
5 November 2002 for nearly two decades, the case is still pending. Galib
Andang, also known as Commander Robot, was one of the accused. He
died during the Bicutan Siege in 2004 along with other 21 detainees
and 2 jail guards.121

One of the petitioners here, represents one accused therein. Said

accused is a victim of mistaken identity; the case was endorsed to him by
the Regional Human Rights Commission sometime in October 2018.

We wish to attach the motions filed in courts including an order

and records of the courts confirming 41 mistaken identity of Bangsamoro
in said case but since there might be issue on data privacy and
confidentiality, we did not attach and the names are reducted. These facts
can be confirmed to the court a quo, RTC-Branch 171.

One of our motion filed in that case, People vs. Radullan Sahiron,
prayed for the immediate release of the accuses, it stated:

It is alarming that FORTY ONE innocent men were

arrested on the basis of false identification. Said FORTY ONE
innocent men were later freed by this Honorable Court. The same
FORTY ONE innocent men spent, in aggregate, 96 years122 in jail
for such mistakes in identifying them.

121 There is a 13-page resolution where the CHR found that there was no clear and present danger or even a
real threat to life that justified the use of police force. As the “response of the authorities is exceedingly not
proportionate to the force used by the person who staged the failed escape attempt". Adraneda, K., et al, CHR
recommends filing of murder charges vs Reyes, two top PNP officials for Bicutan siege, PhilStar Global (23
March 2006). https://www.philstar.com/headlines/2006/03/23/327701/chr-recommends-filing-murder-
charges-vs-reyes-two-top-pnp-officials-bicutan-siege (accessed 18 July 2020).
122 34,973 days to be exact.

49
 It was this Honorable Court who freed them, mostly upon
Department of Justice’s resolutions and motions affirming the
innocence of the FORTY ONE being victims of mistaken identity.

There is irony here: while the Information seeks justice, on

behalf of the People of the Philippines for the alleged crime of
Illegal Detention, the very same Information had became an
instrument of injustice that caused the detention of 41 innocent
men for a total of 96 years!

A mistake in implicating one innocent person to a heinous

crime is already odious to our criminal justice system; no
innocent man shall be detained in jail however brief it is.

And we appended this table with a painstaking precision of an

aggregate of days of 34,973 or nearly 96 years, thus:

TABLE I: This table indicates the dates of Return of Arrest/Commitment/Receipt of

Detainees and the Grant of Motion to Dismiss/ Motion to Release/ Motion to Quash which
were filed by the prosecutor and the accused themselves

Date Return of Page Date Grant of Motion to Dismiss/ Page Days [in
Arrest/Commitment/Reciept of Motion to Release/ Motion to Detention
Detainees Quash ]
10 Jul 03 1. Nhidzmar Maang p. 315, Vol. I 15 Aug 03 Nhidzmar Maang’s Motion to p. 780 , Vol III 36
Quash granted.
11 Jul 03 2. Order of arrest Benejar p. 332, Vol. I 16 Apr 04 Motion to Dismiss (MTD) of p. 1534, Vol. V 280
Hajaraini Bennajar S. Harajaini granted.
11 Aug 03 3. Kayno Bandala Piang; p. 522, Vol 12 Mar 04 MTD of Kayno Bandala Piang p. 1485, Vol. V 214
II granted.
11 Aug 03 4. Wahab Undaya Piang; p. 522, Vol 12 Mar 04 MTD of Wahab Undaya Piang p. 1485, Vol. V 214
II granted.;
11 Aug 03 5. Abdulwhid M. Gano; p. 522, Vol 12 Mar 04 MTD of Abdulwhid M. Gano p. 1485, Vol. V 214
II granted.
11 Aug 03 6. Saudi Lakim Abdul [Omar]; p. 522, Vol 12 Mar 04 MTD of Saudi Lakim Omar p. 1485, Vol. V 214
II granted.
11 Aug 03 7. Solaiman Pati p. 522, Vol 12 Mar 04 MTD of Solaiman Pati granted. p. 1485, Vol. V 214
II
11 Aug 03 8. Juan Piang; p. 522, Vol 12 Mar 04 MTD of Juan Piang granted. p. 1485, Vol. V 214
II
11 Sep 03 9. Receipt of the accused: Ryan p. 1202, Vol 12 Mar 04 MTD of Ryan Harid Ambay p. 1485, Vol. V 183
Harid Ambay @Sarifen; IV granted.
11 Sep 03 Receipt of the accused: Maa Impo p. 1202, Vol 27 Nov 03 Maa Impo Mangot (Deceased) p. 1202, Vol IV
Manggot @ MAh; IV
11 Sep 03 Receipt of the accused: Musa p. 1202, Vol 25 Dec 03 Musa Paitung Died (Deaceased) p. 1351, Vol. V
Paitong Impo @Musa @Tang IV
18 Feb 05 10. Turn over of Jubail Sahibul aka P 1977, Vol 16 Sep 14 The Court granted DOJ’s motion to p. 4247 3840
@Jumbail @Gamabahli Abu IV release Jubail Sahibul aka @Jumbail
Jubang @Jul Gambahali @Abu Jubang @Jul
9 May 05 11. Return of Warrant Alex Kahal p. 2138 16 Sep 14 The Court granted DOJ’s motion to p. 4247 3417
release Alex Kahal
12 Dec 05 12. Return of Warrant Mohammad P 2180 6 Aug 08 The Court granted DOJ’s motion p. 2323, Vol. 968
Quianan to release Mohammad S. Quianian VII
24 Feb 06 13. Commitment Order Jul Akip P. 2204, Vol 27 Oct 10 Court’s Order dropping from the p. 2853, Vol 1706
Pasihul @Jul Maddam VII. case Jul-Akip Pasihul VIII

18 Jun 09 14. Return of Warrant p. 2377 22 Oct 10 ORDER granting immediate p. 9826, VIII 491
15. Bongbong Mustalim @Bong release of Bong Bong Mustalin @
Bong Mustakim @Paradja Bong Bong Mjustakim @Paraja
Mahirul @Abubakar Siddik
3 Aug 09 16. Return of Warrant p. 2415 19 Oct 12 The Court granted DOJ’s motion to p. 3486 1173
17. Jerome Mustakim @Berung release Jerome Mustakim
Mustakim

50
27 Aug 09 18. Return of Warrant Roman p. 2437 6 Dec 13 The Court granted DOJ’s motion to p. 4017 2323
Sahibon @ Abu Omar release Roman Sahibon @ Abu
Omar
NOTE: NOT RELEASE so another
Order 6 Jan 16
1 Dec 09 19. Commitment Order Nijal p. 2532 27 Mar 14 Order case dismissed Nijal Pajiran p. 2856 2227
Pahiran @Abdulrman and Abu NOTE: He was NOT RELEASED
Kudama so another Order 6 Jan 16)
18 Mar 10 20. Commitment Order Burong p. 2589 6 Dec 13 The Court granted DOJ’s motion to p. 4017 1359
Rasul Barro aka Abu release Burong Rasul Barro aka
Mohammad with a notation Abu Mohammad
(NOT IN INFORMATION nor
was a warrant of arrest issued
against him as shown in the
Court’s Status)
12 Apr 10 21. Return of Warrant: Madison p. 2603 6 Dec 13 The Court granted DOJ’s motion to p. 4017 1334
Seraju y Mohara release Madison Seraju y Mohara
@Ayyub/@Mads/@Mhadz/@Di @Ayyub/@Mads/@Mhadz/@Dizon
zon
7 Jun 10 22. Return of Warrant of Fawji p. 2650 13 Feb 13 The Court granted DOJ’s motion to p. 3636 952
Iraji/GeorgeNambi y Iraji @ release Fawji Iraji/GeorgeNambi y
Tiks/Bas/Jing/Alfad Iraji @ Tiks/Bas/Jing/Alfad

10 Aug 10 23. Return of Warrant of Robin p. 2761 Vol. 13 Feb 13 The Court granted DOJ’s motion to p. 3636 918
Sahiyal @Tamiya VII release Robin Sahiyal @Tamiya

7 Sep 10 24. Return of Warrant of Jul p. 7 Sep, 13 Feb 13 The Court granted DOJ’s motion to p. 3636 890
Ahmad Ahadi @Julmain VIII release Jul Ahmad Ahadi

23 Sep 10 25. Return of Warrant of Alton 13 Feb 13 The Court grant DOJ’s motion to p. 3636 2911
Ladjaalam y Ragis @Al release Alton Alton Ladjaalam y
Ragis @Al
(STILL DETAINED per Order 6
Jan 2016)
21 Oct 10 26. Return of Warrant of Adzhar p. 3108 13 Feb 13 The Court granted DOJ’s motion to p. 3636 846
Nawali y Hamsajun @ Adzhar release Adzhar Nawali y Hamsajun
Patta y Maudil @Ajang @ Adzhar Patta y Maudil @Ajang
@Madrigal @Neds @Madrigal @Neds
10 Feb 11 27. Return of Warrant of Arabi p. 2874 13 Feb 13 The Court granted DOJ’s motion to p. 3636 734
Sali @Amil Sali release Arabi Sali

11 Mar 11 28. Return of Warrant of p. 2922 13 Feb 13 The Court granted DOJ’s motion to p. 3636 705
Mohammad Sail Sali release Mohammad Sail Sali
@Mohammad Kaiser @Mohammad Kaiser Saidi/Kaiser/
Saidi/Kaiser/ Said/Usman Said/Usman Said/Mad Ali
Said/Mad Ali
12 May 11 29. Return of Warrant of p. 2958 19 Sep 11 MTDr Abdulwahid Gani p. 3066 130
Abdulwahid M. Gani
30 Jan 11 30. Return of Warrant of Sonny P 3185 13 Feb 13 The Court granted DOJ’s motion to p. 3636 745
Barahim y Baki @Abu Baker release Sonny Barahim y Baki
@Abu Baker
20 Feb 11 31. Return of Warrant of p. 3187 13 Feb 13 The Court granted DOJ’s motion to p. 3636 724
Abdulhan Ussu y Putal release Abdulhan Ussu y Putal
@Black Tungkang ROW Abdulhan Ussu y Putal
@Black Tungkang123
16 Apr 12 32. Return of Warrant of P 3228 13 Feb 13 The Court granted DOJ’s motion to p. 3636 303
Abdulwazah Hamja y Asta release Abdulwazah Hamja y Asta
@Amja @Amja
33.
18 Jul 12 33. Return of Warrant of Junli p. 3248, Vol. 13 Feb 13 The Court granted DOJ’s motion to p. 3636
Orie y Manjuri @ Orie IX release Junli Orie y Manjuri @ Orie
(already dead)
24 Jul 12 34. Return of Warrant of Hajer p. 3261 13 Feb 13 The Court granted DOJ’s motion to p. 3636 204
Arasani @Jiking/Enjeng release Hajer Arasani
@Jiking/Enjeng
/Mansar Mangkobang Asim
3 Aug 12 35. Return of Warrant of Ustadz p. 3290 13 Feb 13 The Court granted DOJ’s motion to p. 3636 194
Ahmadsali Asmad Badron release Ustadz Ahmadsali Asmad
@Ammad/Hamad Ustadz Badron @Ammad/Hamad Ustadz
Edris Edris
19 Sep 12 36. Return of Warrant of Jamal p. 3417 13 Feb 13 The Court granted DOJ’s motion to p. 3636 147
Sawaban @Danny Mustakim release Jamal Sawaban @Danny
@Abu Muksin @Toto Mustakim @Abu Muksin
Mansar Mangkobang Asim
15 Nov 13 37. Return of Warrant of REARREST 27 Mar 14 MTQ Nijal Pahiran @ 920
Abdurahman @Kudama or ED Abdurahman granted.
Nijal S. Pahiran NOTE: Another Order for his
release was issued on 6 Jan 16)

51
 2 Apr 04 38. MTQ Mohammad Said y p. 1508 to 1511,
Gaddong granted. Vol. V
28 Sept 05 Death Idris Tumpilan y p. 3071
Cotsesa
10 Jun 15 39. The Court oreder the release of p. 4461
Jirin Hattimon
13 Feb 13 40. The Court granted DOJ’s p. 3636
motion to release EDWIN
SIAROT SAWALDI
13 Feb 13 41. The Court granted DOJ’s p. 3636
motion to release MANNY
ISMAEL
TOTAL
34,973
95 years
and 10
months

In a supplement to that motion, it was asserted to the court:

The counsel focused to Amily Mantec affidavits of

identification for the past 10 years or, particularly, from 11
August 2003 to 3 June 2013. The undersigned counsel found that
for the past 10 years, Amily Mantec had executed a total of 20
affidavits of identification of accused as shown in Table I and
Table II.

From that period of 10 years, out of that 20 identified by

Mantec, 15 were freed and released by this Honorable Court on
the ground of MISTAKEN IDENTITY. Of which 6 were upon
the instance of the prosecutor, the Department of Justice. And 9
were by Motion to Quash/Dismiss filed by the accused.

In short 75% of the total of those identified, by virtue of

affidavits of Amily Mantec, resulted to MISTAKEN IDENTITY.
It is very clear that based on this data, Amily Mantic can be 75%
wrong in establishing identity of any accused in this case.

As for the other 5 accused, their identities are still sub judice
While Amily Mantec had identified these accused, their
identities have not yet been conclusively established as there
have been no Decision rendered by this Court that they are
indeed the perpetrators of the crime charge. The case is still
pending for decision. Until they are not convicted, their identities
are not yet determined.

In summary:

1. Amily Mantec has proven to have been wrong 75% in

identifying perpetrators of the crime charged out of the
20 affidavits. While the 25% is yet to be confirmed since
they are yet to be convicted;

xxx

52
 3. Accused was not arraigned nearly 6 years since his
commitment on 20 June 2014. The law requires 30 days
from custody of the law;

4. A previous accused which was freed by this Honorable

Court with a name Jubail Sahibulwas being tried as @A
CERTAIN JJULwhen herein accused was arrested to
face the crime charge also committed by the same @A
CERTAIN JJUL

5. There were more than two years where @A

CCERTAIN JULis being prosecuted
SIMULTANEOUSLY in this Court both against
JJulmainand herein accused JJulhassan Jaanni This
Honorable Court should take judicial notice of its
Order dated 6 January 2016 wherein both JJubail
Sahibul @Jumbail Gambahal and @@Abu Jubang and
herein movant as being prosecuted as “@A CERTAIN
JUL as we quoted above in page 9, par. 47 of said
Order;

On 19 January 2017, one of the petitioners attended a case inside

Camp Bagong Diwa, Taguig City involving clients who are victims of
mistaken identity. Before the cases, were heard, the Presiding Judge in
that case freed 10 accused for mistaken identity.124

The 18 years pendency of Sahiron case and the continued arrest

and detention of accused of a crime committed nearly 20 years ago
very alarming. And to the recollection of the counsel, this case is yet to
produce a conviction. There is so much delay in the disposition of the
case which entertains more mistaken identity, and future arrests and
detention. So far said case has not deliver the justice expected to a
court. Rather it produced 41 injustices to those Bangsamoro who are
victims of mistaken identity. It is also a manifestation of systematic
arrest and detention of innocent Bangsamoro and gross disregard of
constitutional rights to liberty and personal security.

It is also yields an evidence on the recklessness of law enforcers

in their arrests and in fictitiously charging innocent Bangsamoro. This
pattern of repeated and series of mistaken identity, the prejudice, the

This was posted in one of the petitioner’s social media, to wit: “They [sic] are 38 Moro accused in one room.
124

The court freed 10 accused today, not my case, on the ground of mistaken identity. They were from island
provinces [Sulu and Basilan].”

53
stereotype, and delegated power of the military and police officer to
determine who are suspect under Section 29, has made the application
of the RA 11479 uneven thereby violative to the equal protection
clause.

E.
PRIVILEGE OF THE WRIT OF HABEAS CORPUS
(Section 15, Article III)

Section 15, Article III provides;

Section 15. The privilege of the writ of habeas corpus shall not
be suspended except in cases of invasion or rebellion, when the
public safety requires it.

The Anti-Terrorism Act is in collision with the constitutional

provision on the privilege of the writ of habeas corpus.

The great writ of liberty of habeas corpus was devised and exists as
a speedy and effectual remedy to relieve persons from unlawful
restraint and as the best and only sufficient defense of personal
freedom.125 Habeas corpus is an extraordinary, summary, and
equitable writ, consistent with the law’s zealous regard for personal
liberty.126 Its primary purpose is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a
person therefrom is such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient.127

Because of no less than the Constitution’s “zealous regard for

personal liberty,” the limitations set by it in case of necessary restraint
of personal liberty are exacting. The Constitution, under Section 18,
Article VII, states that the President may, in case of invasion or
rebellion, when public safety requires it, suspend the privilege of the
writ of habeas corpus for a period not exceeding sixty (60) days. Such
suspension is subject to specific limitations carefully outlined in the
Constitution.

The Constitution provides plainly that: (a) the suspension of the

privilege of the writ of habeas corpus shall apply only to persons

125 Osorio v Navera, G. R. No. 223272, 26 February 2018.

126 Id.
127 Id.

54
judicially charged for rebellion or offenses inherent in, or directly
connected with invasion; and (b) During the suspension of the
privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within three days, otherwise he
shall be released.128

Thus, the Constitution has reserved the suspension of the

privilege of the writ of habeas corpus to cases of actual129 invasion or
rebellion, when the public safety requires it. Even then, the suspension
is true only to persons judicially charged for rebellion or offenses
inherent in, or directly connected with invasion. Such persons must
be judicially charged within three days. Their confinement can no
longer be extended without a valid court order.

Nevertheless, even in cases when the privilege of the writ is not

suspended, a writ of habeas corpus may not issue if the person
allegedly deprived of liberty is restrained under a lawful process or
order of the court. The restraint then has become legal.130

If a “suspected person” is detained without a judicial warrant

pursuant to Section 29 challenges the validity of the deprivation of his
liberty, for up to 24 days, the same should not be upheld on the
strength only of a written authority from the Anti-Terrorism Council.
The Constitution denies the privilege of the writ only to persons
judicially charged for rebellion or offenses inherent or directly
connected with invasion. Ironically, in the case of Section 29, the
“suspected person” is not charged before the court. In fact, they are
exempt in delivering “suspected person” to the court by Section 29.

Even assuming that the acts of terrorism also constitute rebellion

or invasion which requires a formal declaration of martial law, the
Constitution itself directs that such perpetrators be judicially charged
within three days. Otherwise, they shall be released. Therefore, the 14
to 24 days detention cannot stand Constitutional scrutiny.

The claim that this period of detention may be among the most
lenient in the entire world does not, in any way, buttress the attempt

128 Art. VII, Sec. 18, par. 5-6.

129 Lagman v Medialdea, G.R. No. 231658, 4 July 2017.
130 Osorio v Navera, G. R. No. 223272, 26 February 2018.

55
to prove that it is constitutionally permissible. Once again, we have to
stress the supremacy of the Constitution over reasons of expediency.

Finally, Section 29 legalized detention of “suspected person” for 14

to 24 days. Under Section 1, Rule 102 only person who is under “illegal
confinement or detention” has cause of action to file petition for habeas
corpus. And because the “suspected person” is legally detained under
Section 29, he or she has no cause of action to file a petition for writ of
habeas corpus under Rule 102. This makes petition for writ of habeas
corpus inutile to the suspected person in Section 29.

F.
BILL OF ATTAINDER

No bill of attainder shall be enacted.131 A bill of attainder is a

legislative enactment which inflicts punishment without trial.132

In Tuason vs Register Of Deeds, the Supreme Court held:133

In more modern terms, a bill of attainder is essentially a

usurpation of judicial power by a legislative body. It envisages and
effects the imposition of a penalty—the deprivation of life or liberty
or property— not by the ordinary processes of judicial trial, but by
legislative fiat. While cast in the form of special legislation, a bill of
attainder (or bill of pains and penalties, if it prescribed a penalty
other than death) is in intent and effect a penal judgment visited
upon an Identified person or group of persons (and not upon the
general community) Without a prior charge or demand, without
notice and healing, without an opportunity to defend, without any
of the civilized forms and safeguards of the judicial process as we
know it (People v. Ferrer, 48 SCRA 382 [1972]; Cummings and
Missouri, 4 Wall. 277, 18 L.Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303,
90 L.Ed. 1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484
[1965]. Such is the archetypal bill of attainder wielded as a means of
legislative oppression. P.D. No. 293 has clearly been cast from the
mould.

Section 29 is a bill of attainder.

131 Sec. 22, Art. III, Const.

132 People v. Ferrer, 48 SCRA 382.
133 G.R. No. 70484, 29 January 1988, Justice Florentino Feliciano, Concurring.

56
 The 14 to 24 days of detention under Section 29 constitutes
imprisonment.

As we have argued above, a person must be released after three

days from detention if not judicial charged. This three-day
proscription is implicit in the parameters in the last paraph of Section
18, Article VII of the Constitution that during “the suspension of the
privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.”
If it cannot be derogated during martial law or state of war, it cannot
be derogated at any time especially in time of peace.

The persons continued detention up to 24 days by the military or

police officers is already an imprisonment and punishment which is
nearly equivalent to the punishment of arresto menor in the Revised
Penal Code.

Consequently, the “suspected person” under Section is being

punished without judicial conviction proscribed as bill of attainder.

G
RIGHT TO BAIL

Section 14, Article III of the Constitution provides:

Section 13. All persons, except those charged with offenses

punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.

Basic is the principle that the right to bail can only be availed of
by a person who is in custody of the law.134 The right to bail emanates
from the right to be presumed innocent.135 And the protection to right
to bail is safeguarded by the Constitution inasmuch as it cannot be
impaired even during the suspension of the writ of privilege of the writ
of habeas corpus during martial law or during state of war.

Section 29 violates constitutional right to bail.

134 Cortes v. Catral, 344 Phil. 415, 428-429 (1997).

135 People v. Fitzgerald 536 Phil. 413 (2006).

57
 The assailed law has fixed a period of 14 to 24 days upon which
a suspected person can be legally detained by the military and police
officer in Section 29. Within this period, it barred any the court to grant
any provisional freedom of the detained person.

This has been discussed in Lt. General Lisandro Abadia vs. Court Of
Appeals,136 to wit;

The 1987 Constitution reflects both the recognition by the

Constitutional Commission of the necessity of a military force and
the widespread concern, after two decades of authoritarian rule,
over its role in a democratic society. Thus, while the Constitution
recognizes the need for a military force to protect its citizens, it
emphatically ordains the supremacy, at all times of civilian authority
over the military. Through numerous provisions scattered all over
the fundamental law, the constitutional injunction mandating the
principle of civilian supremacy over the military has been given
substantive detail.

In Section 29, the “suspected person” cannot be allowed to post

bail given the definition laid down in Section 1, Rule 114 that bail is
only allowed for a person in “custody of the law.”

This is so as Section 29 contemplates administrative detention

and the “suspected person” is not in “custody of the law” as he or she
is not judicially charged albeit detained. The bail was denied in
extradition proceedings as well as deportation proceedings because
there is no criminal proceedings to speak of.

It was held that: “Section 4 of Rule 114 of the Rules of Court,

applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition
proceedings, because extradition courts do not render judgments of
conviction or acquittal.’137 Similarly, a deportation proceedings do not
partake of the nature of a criminal action, the constitutional guarantee
to bail may not be invoked by aliens in said proceedings.138

F
SECTION 29 VIOLATES RIGHT TO SPEEDY DISPOSITION

136 G.R. No. 105597, 23 September 1994.

137 Government of the United States of America, G.R. No. 148571, 24 September 2002,
138 Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA 442)

58
 The Constitution enjoined that all “persons shall have the right
to a speedy disposition of their cases before all judicial, quasi-judicial,
or administrative bodies.”139 This applies to all cases including
criminal cases.140

The foregoing constitutional right to speedy disposition of cases

is enshrined in the International Convention on Civil and Political
Rights (ICCPR) to which the Philippines is a State Party. It provides
that anyone “arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to
exercise judicial power”141 and “to be tried without undue delay”142
this is in order for the court “to decide without delay on the lawfulness
of his detention and order his release if the detention is not lawful.”143

“Sec. 16 covers all phases before, during and after trial, and
extends protection to all parties in all types of cases: civil, criminal and
administrative.” 144 In this respect, it affords a broader protection than
Sec. 14 (2) which guarantees merely the right to a speedy trial in
criminal cases. 145

Section 29 violates this constitutional injunction inasmuch as

authorized delay in the delivery of the arrested and detained
“suspected person” for up to 14 to 24 days.

The term “speedy,” in relation to disposition of cases, is

mentioned thrice in the Constitution. Its repeated use manifested its
primacy in the Constitution in securing freedom and liberty. It is
corollary to the constitutional right to presumption of innocence so
that person will not suffer the agony of judicial process longer than
necessary.

This Honorable Court has been consistent in its duty in actively

amending and revising rules, issuing administrative orders, discipling
judiciary personnel, and rendering decisions upholding speedy
disposition of cases in the “speedy disposition of cases.” This
exemplary attribute is also what we anticipate in this case and,

139 Sec. 16, Art. III, Const.

140 Sec. 14 (2), Art. III, Const.
141 Art. 9 (3), ICCPR.

142 Art. 14 (3) (c), ICCPR.

143 Art. 9 (3), ICCPR.

144 Id.

145 Id.

59
hopefully, it would, unfailingly, reaffirm right to speedy disposition of
cases.

The cornerstone of both rights is to prevent delays in the

administration of justice by requiring tribunals to proceed with
reasonable dispatch in the trial and disposition of cases. 146

The phase between the delivery of the arrested and detained

“suspected person” under administrative detention by the officer to
the judicial custody of the court is the point of reference on whether
the delay is inordinate.

Section 29, RA 11479 removes the duty of the arresting and

detaining officers to deliver arrested and detained person to the courts
for custodia legis within the timeline provided for under Article 125 of
the Revised Penal Code. In its place, it permits detention of “suspected
person” for a period of 14 to 24 days.

This is contrary to speedy disposition of cases.

First. The 36 hours is the reasonable time of delivery between the

administrative detention to judicial custody in measuring speedy
disposition of cases not because it is provided is Article 125 of the RPC
but it is a constitutional prescription that in Section 18, Article VII of
the Constitution that even during “the suspension of the privilege of
the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.” The 14 to
24 is up to 6 to 8 fold times compared the 36 hours in the Constitution.
The interregnum time is an inordinate delay.

Second. Any detention by the officer in Section 29 constitutes

imprisonment, as we have discussed already, and the “suspected
person” who is not charged with any crime is serving a punishment
that is nearly equivalent to arresto menor. The more reason that the
“suspected person” to be promptly delivered to court to determine his
or her guilt or innocence.

Third. There is a possibility that the “suspected person,” where

no evidence of suspicious is only required, could be after 14 or 24 days
will be eventually released for lack of evidence. He or she will be
prejudiced as he or she cannot resort to any compensation or effective

146 People Of The Philippines Vs. Panfilo M. Lacson, supra.

60
remedy under the law because Human Security Act was repealed by
RA 11479.

Fourth. There is a danger of torture during administrative

detention. And urgent judicial custody of the suspected person must
be secured. This has been underscored in Basic Human Rights
Reference Guide on Detention in the Context of Countering
Terrorism.147

60. Concern has been expressed about the use of administrative

detention as a counter-terrorism tool where such detention
is used on the sole basis of a broadly formulated suspicion
that a person forms a ‘threat to national security’, or similar
expressions that lack the level of precision required by the
principle of legality. Much of the information concerning
the reasons for such detention is often classified, so that the
detainee and his or her lawyer have no access to this
information and thereby no effective means to contest the
grounds of the detention. This form of administrative
detention is at odds with numerous aspects of the right to a
fair hearing under article 14 of the ICCPR, and of access to
an independent and impartial court, especially when there
is no possibility for a review of the detention on the basis of
substantive grounds.
61. The Human Rights Committee has said that measures of
administrative detention must be restricted to very limited
and exceptional circumstances, such as where a detainee
would constitute a clear and serious threat to society that
can- not be contained in any other manner. In the
examination of specific instances of administrative
detention, however, the Human Rights Committee has
generally found that such instances are not in compliance
with the requirements of article 9 of the ICCPR.
Administrative detention has also been characterised as
putting a detainee at greater risk of torture, ill-treatment or
other violations of human rights. The Committee against
Torture has therefore recommended the elimination of all
forms of administrative detention.

II
SECTION 4, OF RA 11479 VIOLATES THE CONSTITUTION

147Basic Human Rights Reference Guide on Detention in the Context of Countering Terrorism (2014), p. 28.
https://www.ohchr.org/EN/newyork/Documents/DetentionCounteringTerrorism.pdf> (Accessed 13 July
2020)

61
 DUE PROCESS CLAUSE AND FREEDOM OF EXPRESSION

A
Void from Vagueness

We assail Section 4 (a), (b), (c) and (e), RA 11479148 for violation
of due process under Section 1 and Section 4 of Article III of the
Constitution for being void for vagueness.

In Grayned v. City of Rockford149 enumerated on why vagueness of

the law violates due process:

First, because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application. Third,
but related, where a vague statute “abut[s] upon sensitive areas of
basic First Amendment freedoms,” it “operates to inhibit the exercise
of [those] freedoms.” Uncertain meanings inevitably lead citizens to

148SEC. 4. Terrorism. - Subject to Section 49 of this Act, 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 serious risk to public safety.

149 408 U.S. 104. < https://supreme.justia.com/cases/federal/us/408/104/> (15 July 2020).

62
 “‘steer far wider of the unlawful zone’ . . . than if the boundaries of
the forbidden areas were clearly marked.”

The common provision in Section 4 (a), (b) and (c) is that they
can be committed when a person “[e]ngages in acts.” But it failed to
define the overt “acts” punishable.

What is provided in the law is the intention of the “acts,” but the
“acts” itself is not defined.

In Section 4 (a), (b) and (c), the term “acts” is qualified by

“intended to cause” such as: “intended to cause death or serious bodily
injury to any person, or endangers a person's life” (Section 4 (a));
“intended to cause extensive damage or destruction to a government
or public facility, public place or private property” (Section 4 (b)); and,
‘intended to cause extensive interference with, damage or destruction
to critical infrastructure” (Section 4 (c)).

The foregoing merely qualified the intention of the “acts”

without really providing the over acts punished. This is opposed to
the other high crimes similar to terrorism which definition of the over
acts punished is distinctively clear, to wit: rebellion and insurrection the
overt act is “rising publicly and taking arms;”150 coup de etat, it
provides “swifts attack,”151 war crimes “willful killing,”152 genocide
“killing of members of the group,’153 other crimes against humanity
“willful killing."154

The overt acts in the above is clear and definitive. But here,
Section 4 (a), (b) and (c) merely define the overt acts as “[e]ngages in
acts intended to cause…” There is no definitive overt acts punished
by RA 11479.

The only clear provisos in Section 4 are paragraphs (d) and (e)
where the term “[e]ngages in acts intended to cause…” were not used.
Instead it provides outrightly the overt acts punished, to wit: In
Section 4 (d) the overt acts punished are clear: “[d]evelops,”

150 Art. 134, RPC.

151 Art. 134-A, RPC.
152 Sec. 4, a, 1, RA 9851.

153 Sec. 5 a, 1, RA 9851.

154 Sec. 6 a, RA 9851.

63
“manufactures,” “possesses,” “acquires,” “transports,” “supplies” or
“uses” while in Section 4 (e) the act is “[r]elease.”

There is no ambiguity in the Section 4 (d) and (e) and people are
appraised of the prohibited offense because the over acts punished are
clearly define unlike in Section 4 (a), (b) and (c) where the prohibited
act is only unknown as “acts.”

Not even the last common element “when the purpose of such
act” can be considered as overt acts because it is a mere a substitute
synonyms of “intention.”

If Section 4 (a), (b) and (c) will not be declared unconstitutional

then the “acts” will be interpreted by the law enforcers as they see fit.
The people of ordinary intelligence cannot have reasonable
opportunity, even petitioners, to know what “acts” are punished.

We therefore plead for this Honorable Court to declare Section 4

(a), (b) and (c) unconstitutional.

B
Freedom of Speech, Expression, Press and Petition.

Section 4, Article III of the Constitution provides:

Section 4. No law shall be passed abridging the freedom of

speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of
grievances.

In this jurisdiction, it is established that freedom of the press is

crucial and so inextricably woven into the right to free speech and free
expression, that any attempt to restrict it must be met with an
examination so critical that only a danger that is clear and present
would be allowed to curtail it.155 When on its face, it is clear that a
governmental act is nothing more than a naked means to prevent the
free exercise of speech, it must be nullified. 156

Chavez v. Gonzales,157 held:

155 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008.

156 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 491.
157 G.R. No. 168338, 15 February 2008 citation omitted.

64
 These guarantees are testaments to the value that humanity
accords to the above-mentioned freedoms – commonly summed up
as freedom of expression. The justifications for this high regard are
specifically identified by Justice Mclachlin of the Canadian Supreme
Court in Her Majesty The Queen v. Keegstra, to wit: (1) Freedom of
expression promotes the free flow of ideas essential to political
democracy and democratic institutions, and limits the ability of the
State to subvert other rights and freedoms; (2) it promotes a
marketplace of ideas, which includes, but is not limited to, the search
for truth; (3) it is intrinsically valuable as part of the self-
actualization of speakers and listeners; and (4) it is justified by the
dangers for good government of allowing its suppression.

Here, we question this proviso in the last sentence of Section 4,

RA 11479, to wit:

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 serious risk to public safety.

The foregoing proviso violated Section 4, Article III because it

practically criminalize freedom protected by Section 4, Article III.

Apart from criminalizing these freedom, the the presumption of

innocent in the exercise of such right is stripped by Section 4, RA 11479.
This proviso requires that in the exercise of freedom under Section 4,
Article III the people must prove that they are “not intended to cause
death or serious physical harm to a person, to endanger a person's life,
or to create a serious risk to public safety.”

To recapitulate, we have Section 4 (a), (b) and (c) which element

of the offense failed to define overt “acts” punished except deciphering
the qualified intent not the actual over “acts” of the offender, followed
by another element attached to “purpose” which is just another term
of intent. And then we have the four freedom in Section 4, Article III
criminalized. And to be exculpate therefrom people must show proof
of good faith.

If we connect this with the military and police officer in Section

29 which has the power to arrest suspicious person and detain him or

65
her for up 24 days our fundamental rights and freedom are in great
peril.

III
SECTION 56 VIOLATES DUE PROCESS CLAUSE

Section 12 (4), Article III provides: ”The law shall provide for
penal and civil sanctions for violations of this Section as well as
compensation to the rehabilitation of victims of torture or similar
practices, and their families.”

The purpose of the constitutional provision against unlawful

searches and seizures is to prevent violations of private security in
person and property; and give remedy against such usurpations when
attempted.158

Thus, when the Congress enacted Republic Act No. 9372,

otherwise known as the "Human Security Act of 2007", it provides
civil sanction in the form of compensation, as an enabling act of Section
12 (4), Article III, the following two provisions:

SEC. 41. Disposition of the Seized, Sequestered and Frozen Bank

Deposits, Placements, Trust Accounts, Assets and Record. – xxx

Upon his or her acquittal or the dismissal of the charges against

him or her, the amount of Five hundred thousand pesos
(P500.000.00) a day for the period in which his properties, assets or
funds were seized shall be paid to him on the concept of liquidated
damages. The amount shall be taken from the appropriations of the
police or law enforcement agency that caused the filing of the
enumerated charges against him/her.

xxx

SEC. 50. Damages for Unproven Charge of Terrorism. - Upon

acquittal, any person who is accused of terrorism shall be entitled to
the payment of damages in the amount of Five hundred thousand
pesos (P500,000.00) for every day that he or she has been detained or
deprived of liberty or arrested without a warrant as a result of such
an accusation. xxx.

Unfortunately, they were taken away by Section 56 of RA 11479,

thus:

158 Nalav. Judge Barroso, Jr., 455 Phil. 999, 1007 (2003).

66
 SEC. 56. Repealing-Clause. - Republic Act No. 9372, otherwise
known as the "Human Security Act of 2007", is hereby repealed. All
laws, decrees, executive orders, rules or regulations or parts thereof,
inconsistent with the provisions of this Act are hereby repealed,
amended, or modified accordingly.

We assailed Section 56 as unconstitutional for it violates Section

12 (4), Article III in relation to due process under Section 1, Article III.

Section 1, Article III is an effective remedy conferred to victims

of persons whose constitutional rights are violated. They are also an
accountability mechanism to prevent violation of people’s
constitutional rights.

Apart from the Constitution, there are plenty of international

treaties to which the Philippine is a signatory that uphold effective
remedy, namely: Article 8 of the Universal Declaration of Human
Rights,159 Article 2 of the International Covenant on Civil and Political
Rights,160 Article 6 of the International Convention on the Elimination
of All Forms of Racial Discrimination,161 Article 14 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,162 and Article 39 of the Convention on the Rights of the
Child,163 and of international humanitarian law as found in Article 3 of

159 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.
160 3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by persons acting in an
official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
161 Article 6. States Parties shall assure to everyone within their jurisdiction effective protection and remedies,

through the competent national tribunals and other State institutions, against any acts of racial
discrimination which violate his human rights and fundamental freedoms contrary to this Convention,
as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any
damage suffered as a result of such discrimination.
162 Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and
has an enforceable right to fair and adequate compensation, including the means for as full
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his
dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to compensation which may
exist under national law.
163 Article 39. States Parties shall take all appropriate measures to promote physical and psychological recovery

and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any
other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery
and reintegration shall take place in an environment which fosters the health, self-respect and dignity
of the child.

67
the Hague Convention respecting the Laws and Customs of War on
Land of 18 October 1907 (Convention IV),164 Article 91 of the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol
I) of 8 June 1977.165

As effective remedy, under Section 12 (4), Article III, the

Congress cannot take away such effective remedy under Sections 41
and 50 of the Human Security Act without violating said constitutional
provision. And it also ripened into a vested right which cannot be
removed without violating the constitutional provision on due process
of law.

Thus, while the Congress can repeal laws, under its plenary
power, it cannot override vested right as in this case such as Sections
41 and 50 of the Human Security Act they are vested right and the only
effective remedy against perpetrators of freedom and liberty. This has
been shown by said law itself where for the past 13 years of its
effectivity it has only convicted one person, as accessory, based on plea
bargaining.

The concept of "vested right" is a consequence of the

constitutional guaranty of due process. 166. The due process clause
prohibits the annihilation of vested rights. "A state may not impair
vested rights by legislative enactment, by the enactment or by the
subsequent repeal of a municipal ordinance, or by a change in the
constitution of the State, except in a legitimate exercise of the police
power".167

In ABAKADA Guro Party List Officer Samson S. Alcantara, et al. v.

The Hon. Executive Secretary Eduardo R. Ermita,168 it was explained:

164 Article 3. A belligerent party which violates the provisions of the said Regulations shall, if the case demands,
be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of
its armed forces.
165 Article 91. A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall,

if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by
persons forming part of its armed forces.
166 Lahom Vs. Sibulo, G.R. No. 143989, 14 July 2003.

167 Ayog vs. Cusi, G.R. No. L-46729 November 19, 1982 citing (16 C.J.S. 1177-78).

168 The Court consolidated the following cases: ABAKADA Guro Party List Officer Samson S. Alcantara, et al. v.

The Hon. Executive Secretary Eduardo R. Ermita, G.R. No. 168056; Aquilino Q. Pimentel, Jr., et al. v. Executive
Secretary Eduardo R. Ermita, et al., G.R. No. 168207; Association of Pilipinas Shell Dealers, Inc., et al. v. Cesar
V. Purisima, et al., G.R. No. 168461; Francis Joseph G. Escudero v. Cesar V. Purisima, et al, G.R. No. 168463;
and Bataan Governor Enrique T. Garcia, Jr. v. Hon. Eduardo R. Ermita, et al., G.R. No. 168730.

68
 The concept of "vested right" is a consequence of
the constitutional guaranty of due process that expresses a present
fixed interest which in right reason and natural justice is protected
against arbitrary state action; it includes not only legal or equitable
title to the enforcement of a demand but also exemptions from new
obligations created after the right has become vested. Rights are
considered vested when the right to enjoyment is a present interest,
absolute, unconditional, and perfect or fixed and irrefutable.

In Teresita C. Francisco Vs. Hon. Court Of Appeals,169

Indeed, Articles 158 and 160 of the New Civil Code have been
repealed by the Family Code of the Philippines which took effect on
August 3, 1988. The aforecited articles fall under Title VI, Book I of
the New Civil Code which was expressly repealed by Article 254 (not
Article 253 as alleged by petitioner in her petition and reply) of the
Family Code. Nonetheless, we cannot invoke the new law in this case
without impairing prior vested rights pursuant to Article 256 in
relation to Article 105 (second paragraph) of the Family Code.
Accordingly, the repeal of Articles 158 and 160 of the New Civil Code
does not operate to prejudice or otherwise affect rights which have
become vested or accrued while the said provisions were in
force. Hence, the rights accrued and vested while the cited articles
were in effect survive their repeal. We shall therefore resolve the
issue of the nature of the contested properties based on the provisions
of the New Civil Code.

Second. By deleting this safeguard, it opens the gate for more

abuses of law enforcement agents and military personnel since there
are lesser repercussions on arbitrary and abusive acts. We have seen
this in the prevalent mistaken identity of Bangsamoro victims.

Section 50 of the Human Security Act is aimed at curtailing the

tendencies of law enforcement agents from concocting half-baked
cases against the people. Instead of curbing the tendencies of these
law enforcement agents from fabricating cases, the current law even
encourages them by providing monetary awards and incentives.

It must be noted that Section 46(g) of the Act does not provide
clear guidelines as to the qualification of the informer. The only
qualification provided by law is that the demurrer to evidence of the
accused has been denied or that the prosecution has rested its case.

169 G.R. No. 102330, 25 November 1998.

69
The incentive and monetary award only encourage ill-intent on the
part of the law enforcement agents and military personnel.

IV
SECTION 15, RA 11479 VIOLATES EQUAL PROTECTION CLAUSE

Section 15 provides:

SEC. 15. Penalty for Public Official. - If the offender found guilty
of any of the acts defined and penalized under any of the
provisions of this Act is a public official or employee, he/she shall be
charged with the administrative offense of grave misconduct
and/or disloyalty to the Republic of the Philippines and the Filipino
people, and be meted with the penalty of dismissal from the service,
with the accessory penalties of cancellation of civil service eligibility,
forfeiture of retirement benefits and perpetual absolute
disqualification from running for any elective office or holding any
public office.

We question this because if the public official is found guilty on

offense penalized under RA 11479 he will only be “charged with the
administrative offense” without suffering criminal liability. That is
how we read the law. And this is the reason that we challenge it for
violation of Equal Protection Clause.

It may also mean that in addition to the punishment for which the
public official is found guilty under RA 11479, he shall be also
“charged with the administrative offense.”

But without this Honorable Court settlement of the issue, we are

of the position that public official will only suffer administrative
liability in violating RA 11479 which runs counter to equal protection
clause.

V
SECTION 16 OF RA 11479 VIOLATES DUE PROCESS OF LAW

We replead our argument in Section 29 inasmuch as the

unconstitutionality of the term “suspect’’ which was similarly used in
Section 16 (c) which says that: “any person charged with or suspected
of committing any of the crimes defined and penalized under the
provisions of this Act.”

70
 The danger posed by the undefined term “suspect” in Section 16
as lies in the unbridled discretion given to the ATC.

Any person merely “suspected” of committing any of the crimes

defined and penalized under the RA 11479 may be under surveillance
by the law enforcement agencies of the government.

The danger posed by the undefined term “suspect” as used in

the Anti-Terrorism Act lies in the unbridled discretion given to the
ATC.
VI
SECTION 25 OF RA 11479 VIOLATES DUE PROCESS OF LAW

Section 25 of R.A. 11479 reads:

SEC. 25. Designation of Terrorist Individual, Groups of

Persons, Organizations or Associations.—xxx

The ATC may designate an individual, groups of persons,

organization, or association, whether domestic or foreign, upon
a finding of probable cause that the individual, groups of
persons, organization, or association commit, or attempt to
commit, or conspire in the commission of the acts defined and
penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act.

Under Section 25 of R.A. 11479, the ATC is the Judge, Jury and
Executioner. The ATC has full discretion on who they will designate
as “terrorists”.

Upon designation, the Act subjects the assets of the designated

“terrorists" to the authority of the Anti-Money Laundering Council for
freezing pursuant to Section 11 of R.A. 10168. Thus, the designated
“terrorist” has no opportunity to contest such designation, again in the
absence of guidelines on how designation is made. Even worse, access
to finances is restricted. Only if proscription proceedings under
Section 26 are initiated may the designated “terrorist” contest such
designation.
VII
SECTION 17, 18, 19, 20, and 22 OF RA 11479 VIOLATES DUE
PROCESS CLAUSE, EQUAL PROTECTION CLAUSE, AND
JUDICIAL RULE-MAKING POWER

71
 Sections 17,170 18,171 19,172 20173 and 22174 are plainly subject to
abuse. Because suspects are not given access to these evidence

170 Section 17. Judicial Authorization, Requisites.—The authorizing division of the Court of Appeals shall
issue a written order to conduct the acts mentioned in Section 16 of this Act upon:
(1) Filing of an ex parte written application by a law enforcement agent or military personnel, who has
been duly authorized in writing by the Anti-Terrorism Council (ATC); and
(2) After examination under oath or affirmation of the applicant and the witnesses he may produce,
the issuing court determines;
(a) that there is probable cause to believe based on personal knowledge of facts and circumstances
that the crimes defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act has
been committed, or is being committed, or is about to be committed; and
(b) That there is probable cause to believe based on personal knowledge of facts and
circumstances that evidence, which is essential to the conviction of any charge or suspected
person for, or to the solution or prevention of any, any such crimes, will be obtained.

171 Section 18. Classification and Contents of the Order of the Court.— The written order granted by the
authorizing division of the Court of Appeals as well as the application for such order, shall be deemed
and are hereby declared as classified information. Being classified information, access to said documents
and any information contained in the said documents shall be limited to the applicants, duly authorized
personnel of the ATC; the hearing justices, the clerk of court and duly authorized personnel of the
hearing or issuing court. xxx

172 Section 19. Effective Period of Judicial Authorization.—Any authorities granted by the Court of Appeals,
pursuant to Section 17 of this Act, shall only be effective for the length of time specified in the order of
the authorizing division of the Court of Appeals which shall not exceed a period of sixty (60) days from
the date of receipt of the written order by the applicant law enforcement agent or military personnel.

The authorizing division of the Court of Appeals may extend or renew the said authorization to a non-
extendible period, which shall not exceed thirty (30) days from expiration of the original period xxx.

xxx

For purposes of this provision, the issuing court shall require the applicant law enforcement or military
official to inform the court, after the lapse of the 30-day period of the fact that an appropriate case for
violation of this Act has been filed with the Prosecutor’s Office.

173 Section 20. Custody of Intercepted and Recorded Communications.—All tapes, discs, other storage devices,
recordings, notes, memoranda, summaries, excerpts and all copies thereof obtained under the judicial
authorization granted by the Court of Appeals shall, within forty-eight (48) hours after the expiration of
the period fixed in the written order or the extension or renewal granted thereafter, be deposited with
the issuing court in a sealed envelope package, as the case may be, and shall be accompanied by a joint
affidavit of the applicant law enforcement agent or military personnel and the members of his team.

Any authorities granted by the Court of Appeals, pursuant to Section 17 of this Act, shall only be
effective for the length of time specified in the order of the authorizing division of the Court of Appeals
which shall not exceed a period of sixty (60) days from the date of receipt of the written order by the
applicant law enforcement agent or military personnel.

It shall be unlawful for any person, law enforcement agent or military personnel or any custodian of the
tapes, discs, other storage devices recordings, notes, memoranda, summaries, excerpts and all copies
thereof to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated
above in whole or in part under any pretext whatsoever.

All tapes, discs, other storage devices, recordings, notes, memoranda, summaries, excerpts and all copies
thereof obtained under the judicial authorization granted by the Court of Appeals shall, within forty-
eight (48) hours after the expiration of the period fixed in the written order or the extension or renewal
granted thereafter, be deposited with the issuing court in a sealed envelope package, as the case may be,
and shall be accompanied by a joint affidavit of the applicant law enforcement agent or military
personnel and the members of his team.”

72
(recorded communication), depriving them the opportunity to
ascertain the veracity and basis of their arrest or detention. This
considered, the supposed evidence used as basis to arrest the suspect
has no probative value.

Under the libertarian exclusionary rule known as the "fruit of the

poisonous tree", evidence illegally obtained by the state should not be
used to gain other evidence because the illegally obtained evidence
taints all evidence subsequently obtained.175

In the case of People vs. Alicando, 176 it was explained thus:

According to this rule, once the primary source (the "tree")
is shown to have been unlawfully obtained, any secondary
or derivative evidence (the "fruit") derived from it is also
inadmissible. Stated otherwise, illegally seized evidence is
obtained as a direct result of the illegal act, whereas the "fruit
of the poisonous tree" is the indirect result of the same illegal
act. The "fruit of the poisonous tree" is at least once removed
from the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be
used to gain other evidence because the originally
illegally obtained evidence taints all evidence
subsequently obtained.
(Emphasis, italics and underscoring supplied)

Sections 17 and 18 deprives the suspect/accused any access to

the information gathered against him that warranted his arrest or
detention.
Any authorities granted by the Court of Appeals, pursuant to Section 17 of this Act, shall only be
effective for the length of time specified in the order of the authorizing division of the Court of Appeals
which shall not exceed a period of sixty (60) days from the date of receipt of the written order by the
applicant law enforcement agent or military personnel.

xxx

174 SEC. 22. Disposition of Deposited Materi,als. - The sealed envelope or sealed package and the contents
thereof, referred to in Section 20 of this Act, shall be deemed and are hereby declared classified
information. The sealed envelope or sealed package shall not be opened, disclosed, 01· used as evidence
unless authorized by a written order of the authorizing division of the Court of Appeals which written
order shall be granted only upon a written application of the Department of Justice (DOJ) duly
authorized in writing by the ATC to file the application with proper written notice to the person whose
conversation, communication, message, discussion or spoken or written words have been the subject
of surveillance, monitoring, recording and interception to open, reveal, divulge, and use the contents
of the sealed envelope or sealed package as evidence.

175 People v. Conde y Lutoc, G.R. No. 113269, 10 April 2001.

176 G.R. No. 117487, 12 December 1995.

73
 By declaring, under Sec. 18 of the Anti-Terror Law, that: “The
written order granted by the authorizing division of the Court of Appeals as
well as the application for such order, shall be deemed and are hereby declared
as CLASSIFIED INFORMATION” it will be difficult, if not impossible,
for the petitioners to alleged material allegations in the Petition for the
Writ of Habeas Data including:

SEC. 6. Petition. - A verified written petition for a writ of habeas

data should contain:

(a) The personal circumstances of the petitioner and the

respondent;

(b) The manner the right to privacy is violated or threatened and

how it affects the right to life, liberty or security of the aggrieved
party;

xxx

(d) The location of the files, registers or databases, the

government office, and the person in charge, in possession or in
control of the data or information, if known;

With the enactment of the ATA, the Petitions for Writ of Habeas
Data in relation to the Anti-Terror Law may be dismissed. This is very
alarming especially because this Writ is an extraordinary remedy
provided by law against abuses of the government which the Supreme
Court defined in Bautista v Dannug-Salucon177 as:

The writ of habeas data is a remedy available to any person

whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved
party.

Same is true with applications for Writ of Amparo. In a case178

decided by Supreme Court, it was held that:

“In the landmark case of Secretary of National Defense, et al. v.

Manalo, et al., the Court categorically pronounced that

177 Bautista vs Dannug-Salucon, G.R. No. 221862, 23 January 2018.

178 Agcaoili v. Farinas, G.R. No. 232395, 3 July 2018.

74
 the Amparo Rule, as it presently stands, is confined to extralegal
killings and enforced disappearances, or to threats thereof, and
jurisprudentially defined these two instances, as follows:

[T]he Amparo Rule was intended to address the

intractable problem of "extralegal killings" and
"enforced disappearances," its coverage, in its present
form, is confined to these two instances or to threats
thereof. "Extralegal killings" are killings committed
without due process of law, i.e., without legal
safeguards or judicial proceedings. On the other hand,
enforced disappearances are attended by the
following characteristics: an arrest, detention or
abduction of a person by a government official or
organized groups or private individuals acting with
the direct or indirect acquiescence of the government;
the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places
such persons outside the protection of law.”

Under the Rules on Writ of Amparo the following are

material and relevant allegations which must be alleged in the
Petition:

SEC. 5. Contents of Petition. – The petition shall be signed and

verified and shall allege the following:

xxx

a. The name and personal circumstances of the

respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the
respondent may be described by an assumed
appellation;
b. The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an
unlawful act or omission of the respondent, and how
such threat or violation is committed with the
attendant circumstances detailed in supporting
affidavits;

It will be difficult, if not impossible, as well for the citizenry to

avail this remedy provided by law due to a long period of time given

75
to Law enforcement Agencies and Military Personnel in delivering the
suspects before the Courts.

Within this 14-day period, with additional 10 days if applicable

as provided in Section 29, there will be, in effect, impossibility for
acquisition of such data for filing of the Petition for Writ of Amaparo.
Also, within said period, such Writ, is in effect, useless which is
contrary to right of every citizen to demand said Writ for their
protection.

The foregoing provision considered all matters relating to the

gathering of information and evidence against the “suspect” as
classified information. As such, the suspect is not given access to
whatever information gathered by the law enforcement agents against
him.

It must be underscored that in Section 22 of the ATA, opening of

the sealed evidence gathered against the suspect may be accessed only
“upon a written application of the Department of Justice (DOJ) duly
authorized in writing by the ATC to file the application.”

To iterate, the “suspect” is not granted access to the supposed

“information” that led the ATC to conclude that the “suspect” should
be subjected to wiretapping.

The provision is rich in “fishing expedition” for evidence.

There is no assurance that Section 17 shall be complied with since

everything relating to the “application” is considered “classified
information”. The means and methods employed by the law enforcers
in tracking the “suspects” communication is not open for scrutiny.

These allow room for fabrication and manipulation of evidence

against the suspect. A clear violation of the rights of the accused to
know the nature and cause of the accusation against him.

Sections 19, 20, and 22 opens the floodgates for law enforcers and
military personnel for “fishing expeditions.”

The foregoing provisions do not allow the suspect or the accused

to have access to the supposed gathered evidence against him. The

76
blatant violation of the rights of the accused to be informed of the
nature and cause of his accusation is apparent. The evidentiary value
of the gathered evidence against the suspect is reeking with violation
of the basic constitutional rights of the accused.

The foregoing provision and its actual application are beyond

validation. To iterate, all these information and evidence are
considered “classified information,” hence, there is no way for the
accused to verify or validate the veracity of the evidence gathered
against him.

Considering that the information gathered and the

documentation of the application are all considered “classified
information,” thus, the ATA clearly grants the law enforcement agents
the opportunity for a “fishing expedition” of which the suspect may
never rebut or ascertain the veracity of the basis of the application for
his surveillance and his arrest, for being classified information.

VIII
SECTION 30 OF RA 11407 VIOLATES
SECTION 12 (1), ARTICLE III OF THE CONSTITUTION

The suspect in violation of ATA is never informed of his rights

as mandated by the Constitution

Section 30. Rights of a person under custodial detention.—

The moment a person is charged with xxx is apprehended or
arrested and detained, he shall forthwith be informed, by the
arresting law enforcement agent xxx to whose custody the person
concerned is brought, of his or her right: xxx (Emphasis supplied)

This violates Section 14 (2) of the Constitution which provides:

Section 12. xxx.

1. Any person under investigation for the commission of an

offense shall have the right to be informed of his right to
remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and
in the presence of counsel.

77
 The foregoing custodial investigation rights, Miranda Rights,
commences the moment a person is singled out as a suspect and
becomes the focus of an investigation.

It must be borne in mind and as earlier discussed that the term

“suspect” is not clearly defined by the RA 11479, neither was its basis
on arriving at the conclusion and identifying a person as a “suspect”
that violated the Anti-Terrorism Act.

The term “suspect” is defined as to believe (someone) to be guilty

of something specified, on little or no evidence (Webster, 1972).
Following this common definition of the term “suspect” the Miranda
rights of the “suspect” should immediately come into play at the
moment the “suspect” is apprehended.

Section 30 of RA 11479, however, expanded this period giving

the law enforcers too much room and leeway to circumvent the
Miranda Rights of the suspects.

We underscore that under Section 30 of RA 11479, two scenarios

are anticipated that will require the law enforcer to inform the suspect
of his rights. First, the moment a person charged with violation of the
RA 11479is apprehended “or” second, is when the person is arrested
and detained.

The operative word “or” spells the difference. To the mind of the
petitioners, this “or” leaves much room for circumvention. This is in
itself a violation of the constitutionally guaranteed rights of the person
charged with violation of the RA 11479.

IX
SECTIONS 34 OF RA 11479 VIOLATES
RIGHT TO BAIL AND JUDICIAL RULE-MAKING POWER

Section 34 of RA 11479179 provides not only a restriction on travel

but it also limits exercise of the right to liberty. This is repugnant to

179 SEC. 34. Restriction on the Right to Travel. - Prior to the filing of an information for any violation of
Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, the investigating prosecutor shall apply for the issuance
of a precautionary hold departure order (PHDO) against the respondent upon a preliminary
determination of probable cause in the proper Regional Trial Court.

78
the right to bail because a person who is awaiting the pendency of his
or her trial, has a right to bail as long the charge is not a capital offense
and the evidence of guilt is not strong.

Here, it is explicitly provided in Section 24 that even when the

evidence of guilt is not strong an accused can be subjected to house
arrest thereby depriving him of his liberty.

This is contrary to the person’s right to bail under Section 14,

Article III of the Constitution. Second, it is also alters rules on Bail
under Rule 114 of the 2000 Revised Rules on Criminal Procedure.

We both discussed exhaustive right to bail and rule-making

power in Section 29. Hence, we replead and adopt our earlier
argument.

X
SECTION 38 OF RA 11479 VIOLATES
EQUAL PROTECTION CLAUSE (Section 1, Article III);

Section 38 provides;

Upon the filing of the information regarding the commission of any acts defined and penalized under
the provisions of this Act, the prosecutor shall apply with the court having jurisdiction for the issuance
of a hold departure order (HDO) against the accused. The said application shall be accompanied by the
complaint-affidavit and its attachments, personal details, passport numbe1·, and a photograph of the
accused, if available.

In cases where evidence of guilt is not strong, and the person charged is entitled to bail and is
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/she 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.
The court shall immediately furnish the DOJ and the Bureau of Immigiation (BI) with the copy of said
order. 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/ her bail, which shall 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/her usual place of
residence.

While under house arrest, he/she may not use telephones, cellphones, e-mails, computers, the
internet, or other means of communications with people outside the residence until otherwise ordered
by the court.

If the evidence of guilt is strong, the court shall immediately issue an HDO and direct the DFA to
initiate the procedure for the cancellation of the passport of the accused.

The restrictions above-mentioned shall be terminated upon the acquittal of the accused or of the
dismissal of the case filed against him/her or earlier upon the discretion of the on motion of the
prosecutor or of the accused.

79
 SEC. 38. Safe Harbor. - No administrative, criminal or civil
proceedings shall lie against any person acting in good faith
when implementing the targeted financial sanctions as
provided under pertinent United Nations Security
Resolutions.

We assail the foregoing provision because it is discriminatory

and, as such, it violates Equal Protection Clause under Section 1,
Article III of the Constitution.

While any person can be arrested by a mere suspicion in

numerous provisions of this law, a person under Section 38, RA 11479
is exculpated from all liabilities administrative, civil, and criminal
liability on the basis of self-serving defense of good faith.

Section 38 violates equal protection of law.

ALLEGATION IN SUPPORT OF THE APPLICATION FOR THE

ISSUANCE OF STATUS QUO ANTE ORDER

Petitioner adopts, by reference, all the allegations in the

preceding paragraphs in support of its application for the issuance of
a Status Quo Ante Order to enjoin the respondents from implementing
RA 11479 and from promulgating the implementing rules and
regulation while this petition is pending.

Section 7, Rule 65 of the Rules of Court empowers the Honorable

Court to grant injunctive relief in Certiorari cases for the preservation
of the rights of the parties pending such proceedings. More
particularly, Section 3, Rule 58 of the Rules of Court.

In Manila International Airport Authority v. Rivera Village Lessee

Homeowners Association, Inc.,180 the Supreme further elucidated on the
nature of the writ prayed for, thus:

“Injunction is a preservative remedy aimed at protecting

substantive rights and interests. The writ of preliminary injunction
is issued by the court to prevent threatened or continuous

180 G.R. No. 143870, 30 September 2005.

80
 irreparable injury to parties before their claims can be thoroughly
studied and adjudicated. Its sole objective is to preserve the status
quo until the merits of the case can be heard fully. The writ is issued
upon the satisfaction of two requisites, namely: (1) the existence of a
right to be protected; and (2) acts which are violative of the said right.
In the absence of a clear legal right, the issuance of an injunctive relief
constitutes grave abuse of discretion. Injunction is not designed to
protect contingent or future rights. Where the complaint’s right is
doubtful or disputed, injunction is not proper. The possibility of
irreparable damage without proof of actual existing right is not a
ground for an injunction.”

The factual backdrop of the instant case necessitates the issuance

of Status Quo Ante Order. As pointed out, Section 3, Rule 58 of the
Rules of Court lays down the grounds or instances which call for the
issuance of a Status Quo Ante Order. The requisites are present in the
instant case.

First, petitioner is entitled to the relief demanded, and the whole

or part of such relief consists in restraining the continuance of the act
complained of. The primary relief demanded in this Petition is to
struck down Sections 4, 10, 16, 17, 18, 19, 20, 22, 25, 29, 30, 32, 34, 46
and 56 of RA 11479 for being unconstitutional. As sufficiently
established above, the subject provisions of the RA 11479 directly
contravenes the safeguards put in place under our Constitution to
protect the people from abuses of the government.

Second, the sweeping and overbroad provisions of RA 11479 if

implemented shall have far reaching consequence and cause
irreparable injury to innocent persons which the law enforcers merely
perceive as terrorists in the absence of clear parameters and definition
in the assailed law. The provisions sought to be declared
unconstitutional runs afoul not just with the Constitution but with the
international laws as well.

Considering the foregoing, and to prevent any other injury

which will certainly be brought about by pending implementation of
RA 11479, petitioners respectfully prays that a Status Quo Ante Order
be issued by the Honorable Supreme Court to enjoin the respondents,
and other persons and/or agencies acting on their behalf from
implementing RA 11479, pending resolution of this petition.

81
 PRAYER
WHEREFORE, premises considered, it is respectfully prayed of
the Honorable Supreme Court;

1. TO ISSUE STATUS QUO ANTE ORDER against the

respondents and all persons acting on or upon their authority
from implementing or enforcing Sections unconstitutional
Sections 4, 15, 16, 17, 18, 19, 20, 22, 25, 29, 30, 34, 38 and 56 of
Republic Act No. 11479;

2. TO DECLARE UNCONSTITUTIONAL Sections 4

unconstitutional Sections 4, 15, 16, 17, 18, 19, 20, 22, 25, 29, 30,
34, 38 and 56 of Republic Act No. 11479 and

3. TO PROHIBIT respondent Anti-Terrorism Council and all

persons acting on or upon their authority from implementing
or enforcing Sections unconstitutional Sections 4, 15, 16, 17,
18, 19, 20, 22, 25, 29, 30, 34, 38 and 56 of Republic Act
No. 11479.

Other reliefs that are just and equitable under the premises are
likewise prayed for.

Respectfully submitted.

Manila. 15 July 2020.

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