Speaking at the first day of the three-day Dialogue with the Supreme Court on the Proposed Judicial Rules on Anti-Terrorism and Counter-Terrorism Financing Cases being held in Mandaue City, retired Chief Justice Reynato S. Puno yesterday remarked that “[t]errorism is a different specie of a crime. Its damage to peace, its prejudice to innocent persons, its harm to national security, its potential to bring down democratically elected governments, require that terrorism be accorded a different treatment from ordinary crimes.”
Chief Justice Puno characterized terrorism as a sui generis offense which calls for a sui generis approach for its deterrence, that is, an approach that should “prevent the crime of terrorism from being committed—to nip it in the bud, so to speak—not just punish the terrorist after committing the crime.” But the “threat of terrorism in the Philippines is nothing less than an existential threat,” he continued. “Hence, the necessity for us to respond to this threat of terrorism (should be) in accord with our legal processes.”
He emphasized that the response to suppress terrorism “is defined by the strictures of our Constitution—by how our constitution distributed the three great powers of government; by how these powers were separated; and how our check and balance mechanism was precisely designed to prevent the exercise of any power in government.”
However, the retired Chief Justice explained that one peculiarity of counter-terrorism measures, which is preemptive in nature, is the possibility of a proceeding where one party is absent, as in the case when the government seeks a surveillance order from the court or when sensitive classified information is presented.
In such ex-parte proceedings, he called on the courts “to transform itself from a passive court to an active court. Active in the sense that it ought to be more interventionist in order that the rights of the excluded party can be protected despite the absence of that party…(the) government cannot take advantage of the absence of a party; violate his rights just because he is absent from the court—an absence that is not his own making, but an absence dictated by the law.”
Chief Justice Puno then asked his audience comprised of incumbent Justices of the Supreme Court, Court of Appeals, and presiding judges of Regional Trial Courts designated as Special Courts for Anti-Terrorism Cases: “Can our courts transform themselves from passive courts to active courts to protect the rights of an excluded person?”
“Our respectful submission is yes,” he answered, “[T]he Anti-Terror Act (ATA) itself has adopted the principle of effective judicial protection. This is a new concept for us—but this is a very significant principle well-developed in Europe…Under the ATA itself, these adversely affected parties are entitled to effective judicial protection.”
“The essence of effective judicial protection,” he imparted, “calls for courts not to be laid back in the protection of constitutional rights. This transformation is sanctioned by our 1987 Constitution…our courts, especially our Supreme Court, can strike out any order or act—judicial, legislative, executive in nature—that constitutes grave abuse of discretion.”
The retired Chief Justice made it clear that in the Proposed Rules, that “there is no stage in the proceedings where the constitutional rights of a party are left unprotected, even when a party is excluded from the proceedings.”
“Striking the right balance is easier said than done,” remarked the 22nd Chief Justice of the Republic of the Philippines. “The point of the balance does not stand still—the point of the balance is a moving point, sometimes it moves from the left of center; sometimes from the right of center. It moves both imperceptible and imperceptible degrees depending on the exigencies of the time. Under our system of government, it is the courts that move the point of this balance, and so in the draft rules we put a guide on how the courts will navigate this balance, where a move of the point will derogate the rights of persons protected under the Bill of Rights.”
To contextualize the long fight against terrorism, retired Chief Justice Puno gave a brief history of the four major models “on how states deal with violent conflicts that threaten their stability and in the extreme situations…threaten the very existence of their established government.” These major models, he explained, “are the sources from which the states crafted their Constitutions and their laws to meet extreme emergencies.”
“We, in the Committee, entertain no doubt that our courts, specially our High Court, will not be lacking in competence and skill in striking this elusive balance in our jurisdiction,” he closed.
Chief Justice Puno came out of retirement to chair the Ad Hoc Committee for the Formulation of the Special Rules of Procedure on Anti-Terrorism Cases. The Ad Hoc Committee is composed of Philippine Judicial Academy (PHILJA) Chancellor Rosmari D. Carandang as Vice-Chairperson, with CA Justice Germano Francisco D. Legaspi; RTC Judges Maria Josefina G. San Juan-Torres and Niven R. Canlapan; Anti-Money Laundering Council Executive Director Matthew M. David; Bangko Sentral ng Pilipinas Assistant Governor Mel Georgie B. Racela; Former Commission on Human Rights Commissioner Leah C. Tandora-Armamento; University of the Philippines Professor Anthony Charlemagne C. Yu; Former Department of Justice Undersecretary Adrian Ferdinand S. Sugay; and Office of the Chief Justice representatives Atty. Fritz Bryn Anthony Delos Santos and Atty. Miguel Martin A. Buenaventura as members. The Ad Hoc Committee recently submitted its Proposed Judicial Rules on Anti-Terrorism and Counter-Terrorism Financing Cases which is currently under the consideration of the Supreme Court En Banc.
In attendance during opening day of the Dialogue were Chief Justice Alexander G. Gesmundo; Supreme Court Justices Japar B. Dimaampao and Jose Midas P. Marquez; Court of Appeals Justices; Court Administrator Raul B. Villanueva and officials of the Office of the Court Administrator; First Secretary Simon Hayter of the Australian Embassy; Counter-terrorism Program Manager Amielle del Rosario of the United Nations Office on Drugs and Crime (UNODC); Judges of the Regional Trial Courts designated as Special Courts for Anti-Terrorism Cases and its Pairing Courts; Members of the Ad Hoc Committee; representatives from the Department of Justice and the PHILJA; and other Supreme Court Officials.
Held from May 3 to May 5, 2023, the three-day Dialogue in Mandaue City was organized with the support of the UNODC in partnership with the Australian Embassy and The Asia Foundation.