Shen V Atc
Shen V Atc
EN BANC
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Before the Court are six petitions challenging the constitutionality of Republic Act No.
9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism,"
otherwise known as the Human Security Act of 2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr.,
a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on
July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo
Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
and Center for Trade Union and Human Rights (CTUHR), represented by their respective
officers[3] who are also bringing the action in their capacity as citizens, filed a petition for
certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action
(GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned
Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng Damayang
Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino
Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya
(PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for
Democracy (HEAD), and Agham, represented by their respective officers,[4] and joined by
concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato
Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina
Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro
Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.
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(SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church
People's Response (PCPR), which were represented by their respective officers[5] who are
also bringing action on their own behalf, filed a petition for certiorari and prohibition
docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense
of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and
Wigberto E. Tañada filed a petition for certiorari and prohibition docketed as G.R. No.
179157.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of
Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence
and investigative elements.
Petitioners' resort to
certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or
quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
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Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave abuse
of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.
Locus standi or legal standing requires a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.[11]
Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule on
locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury as
a result of the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.
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[A] party who assails the constitutionality of a statute must have a direct and
personal interest. It must show not only that the law or any governmental act is
invalid, but also that it sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that it
suffers thereby in some indefinite way. It must show that it has been or is about
to be denied some right or privilege to which it is lawfully entitled or that it is
about to be subjected to some burdens or penalties by reason of the statute or act
complained of.
While Chavez v. PCGG[13] holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and
personal injury, cases involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later be elucidated, necessitate a
closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None
of them faces any charge under RA 9372.
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
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The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1)
the matter must be one of common and general knowledge; (2) it must be
well and authoritatively settled and not doubtful or uncertain; and (3) it
must be known to be within the limits of the jurisdiction of the court. The
principal guide in determining what facts may be assumed to be judicially
known is that of notoriety. Hence, it can be said that judicial notice is limited to
facts evidenced by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a reasonable dispute in that it
is either: (1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.
No ground was properly established by petitioners for the taking of judicial notice.
Petitioners' apprehension is insufficient to substantiate their plea. That no specific charge
or proscription under RA 9372 has been filed against them, three years after its effectivity,
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belies any claim of imminence of their perceived threat emanating from the so-called
tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed "link" to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result in
direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America[17] (US) and the European Union[18] (EU) have both classified
the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes
note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary
Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of
the CPP and NPA as terrorist organizations.[19] Such statement notwithstanding, there is
yet to be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA 9372. Again,
RA 9372 has been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely without any threat
of, much less an actual, prosecution or proscription under RA 9372.
More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.[22] Of recent development is the filing of the first
case for proscription under Section 17[23] of RA 9372 by the Department of Justice before
the Basilan Regional Trial Court against the Abu Sayyaf Group.[24] Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under
RA 9372 by alluding to past rebellion charges against them.
In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in 2006
against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis,
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Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of
Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro
Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist movement
were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE.[26]
The dismissed rebellion charges, however, do not save the day for petitioners. For one,
those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this
Court. For another, rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor
does the enactment thereof make it easier to charge a person with rebellion, its elements
not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective
charges under RA 9372. It cannot be overemphasized that three years after the enactment
of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their
sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372
directing it to render assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to
clothe the IBP or any of its members with standing.[27] The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single
arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity, let alone
legal basis, of the claim of "political surveillance," the Court finds that she has not shown
even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi
are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their
being respectively a human rights advocate and an oppositor to the passage of RA 9372.
Outside these gratuitous statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in
G.R. No. 178552 also conveniently state that the issues they raise are of transcendental
importance, "which must be settled early" and are of "far-reaching implications," without
mention of any specific provision of RA 9372 under which they have been charged, or may
be charged. Mere invocation of human rights advocacy has nowhere been held sufficient
to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger
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of sustaining, direct injury as a result of the law's enforcement. To rule otherwise would be
to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared
by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens.
A taxpayer suit is proper only when there is an exercise of the spending or taxing power of
Congress,[28] whereas citizen standing must rest on direct and personal interest in the
proceeding.[29]
RA 9372 is a penal statute and does not even provide for any appropriation from Congress
for its implementation, while none of the individual petitioner-citizens has alleged any
direct and personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public
right, do not establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to
present an actual
case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice 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.[30] (emphasis and underscoring
supplied.)
As early as Angara v. Electoral Commission,[31] the Court ruled that the power of judicial
review is limited to actual cases or controversies to be exercised after full opportunity of
argument by the parties. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.
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ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.[32]
The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat
to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to enable the Court to
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Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed
the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since
plaintiffs faced a "credible threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief."[40] The plaintiffs
therein filed an action before a federal court to assail the constitutionality of the material
support statute, 18 U.S.C. §2339B (a) (1),[41] proscribing the provision of material support
to organizations declared by the Secretary of State as foreign terrorist organizations. They
claimed that they intended to provide support for the humanitarian and political activities
of two such organizations.
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity
that they seek to do. No demonstrable threat has been established, much less a real and
existing one.
Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is
not peculiar to RA 9372 since the exercise of any power granted by law may be abused.
[45] Allegations of abuse must be anchored on real events before courts may step in to
settle actual controversies involving rights which are legally demandable and
enforceable.
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A facial invalidation of a
statute is allowed only in free speech cases,
wherein certain rules of constitutional
litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the
crime of terrorism[46] under RA 9372 in that terms like "widespread and extraordinary fear
and panic among the populace" and "coerce the government to give in to an unlawful
demand" are nebulous, leaving law enforcement agencies with no standard to measure the
prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to free
speech cases; and that RA 9372 regulates conduct, not speech.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly cite Romualdez v.
Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5[49]
of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly
broad. The Court stated that "the overbreadth and the vagueness doctrines have special
application only to free-speech cases," and are "not appropriate for testing the validity of
penal statutes."[50] It added that, at any rate, the challenged provision, under which the
therein petitioner was charged, is not vague.[51]
The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente V.
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Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act
No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify a facial
review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza,
which was quoted at length in the main Estrada decision, reads:
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
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challenge a statute on its face only if it is vague in all its possible applications.
"A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from
the case and controversy requirement of the Constitution and permits decisions
to be made without concrete factual settings and in sterile abstract contexts.
But, as the U.S. Supreme Court pointed out in Younger v. Harris
For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a
case must be examined in the light of the conduct with which the defendant is
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The confusion apparently stems from the interlocking relation of the overbreadth and
vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute
(under a claim of violation of due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the
same plane.
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
as to its application. It is repugnant to the Constitution in two 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.[57] The
overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.[58]
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected.[59]
Distinguished from an as-applied challenge which considers only extant facts affecting
real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws
and defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities.[60]
Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable
to penal laws. A litigant cannot thus successfully mount a facial challenge against a
criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the
"chilling effect" on protected speech, the exercise of which should not at all times be
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abridged.[62] As reflected earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and lawful, so
long as it refrains from diminishing or dissuading the exercise of constitutionally protected
rights.[63]
The Court reiterated that there are "critical limitations by which a criminal statute may be
challenged" and "underscored that an `on-its-face' invalidation of penal statutes x x x may
not be allowed."[64]
[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.[65]
(Emphasis and underscoring supplied)
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 cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation
in order to plot areas of protected speech, inevitably almost always under situations not
before the court, that are impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if
the court confines itself only to facts as applied to the litigants.
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,[67] observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment,[68] and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever, will
an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are
justified by the "transcendent value to all society of constitutionally protected expression."
[71]
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of
the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding,
however, that there was no basis to review the law "on its face and in its entirety."[72] It
stressed that "statutes found vague as a matter of due process typically are invalidated only
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American jurisprudence[74] instructs that "vagueness challenges that do not involve the
First Amendment must be examined in light of the specific facts of the case at hand and not
with regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants' claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the
most important guarantees of liberty under law."[75]
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause
has been utilized in examining the constitutionality of criminal statutes. In at least three
cases,[76] the Court brought the doctrine into play in analyzing an ordinance penalizing the
non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable
under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2)
of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in
the two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any of
the cited provisions of the Revised Penal Code, or under any of the enumerated special
penal laws; (2) the commission of the predicate crime sows and creates a condition of
widespread and extraordinary fear and panic among the populace; and (3) the offender is
actuated by the desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of "unlawful demand" in the definition of terrorism[77]
must necessarily be transmitted through some form of expression protected by the free
speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate
crime actually committed to trigger the operation of the key qualifying phrases in the other
elements of the crime, including the coercion of the government to accede to an "unlawful
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demand." Given the presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition cannot recategorize the
unprotected conduct into a protected speech.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter
neither the intent of the law to punish socially harmful conduct nor the essence of the
whole act as conduct and not speech. This holds true a fortiori in the present case where
the expression figures only as an inevitable incident of making the element of coercion
perceptible.
[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been
deemed an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was, in part, initiated, evidenced, or
carried out by means of language, either spoken, written, or printed. Such an
expansive interpretation of the constitutional guaranties of speech and press
would make it practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies deemed
injurious to society.[79] (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they merely
evidence a prohibited conduct.[80] Since speech is not involved here, the Court cannot
heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged on vagueness grounds. The Court
in said cases, however, found no basis to review the assailed penal statute on its face and in
its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of
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a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a
"credible threat of prosecution" and "should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of "terrorism" is thus legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling on a statute's future effect on
hypothetical scenarios nor allows the courts to be used as an extension of a failed
legislative lobbying in Congress.
SO ORDERED.
Corona, C.J., Velasco, Jr., Nachura, Leonardo-De Castro, Brion, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza, and Sereno, JJ., concur.
Carpio, J., on official leave.
Abad, J., certify that J. Abad who is on official business a concurring opinion.
[1] A consolidation of House Bill No. 4839 and Senate Bill No. 2137.
[5] Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy
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Portajada for Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon
for EMJP and Fr. Gilbert Sabado for PCPR.
[6] IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is
represented by Atty. Noel Neri, convenor/member.
[8]Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran, Edgardo Bitara Yap,
Oscar Lapida, Delfin de Claro, Sally Astera, Christian Niño Lajara, Mario Anicete, and
Emmanuel Capulong.
[10]
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415
SCRA 44, 133 (2003).
[11]
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v.
Carr, 369 U.S. 186 (1962).
[12] G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.
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[18] and its recent update on the Council Common Position (last visited August 13, 2010).
[19]
Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also (last visited August 16,
2010).
[21]In his State of the Nation Address, President Benigno Aquino III said: "x x x x.
Tungkol naman po sa CPP-NPA-NDF: handa na ba kayong maglaan ng kongkretong
mungkahi, sa halip na pawang batikos lamang?
Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan.
Mag-usap tayo.
Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin.
Nananawagan ako: huwag po natin hayaang masayang ang napakagandang pagkakataong
ito upang magtipon sa ilalim ng iisang adhikain.
[22] In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court
followed the determinants cited by Mr, Justice Florentino Feliciano in Kilosbayan v.
Guingona for using the transcendental importance doctrine, to wit: (a) the character of the
funds or other assets involved in the case; (b) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or instrumentality of
the government; and (c) the lack of any other party with a more direct and specific interest
in the questions being raised.
terrorize mentioned in this Act or to sow and create a condition of widespread fear and
panic among the populace in order to coerce the government to give in to an unlawful
demand shall, upon application of the Department of Justice before a competent Regional
Trial Court, with due notice and opportunity to be heard given to the organization,
association, or group of persons concerned, be declared as a terrorist and outlawed
organization, association, or group of persons by the said Regional Trial Court.
[28]Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US
83, 20 L Ed 2d 947, 88 S Ct 1942.
[35] Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA
782.
[37] G.R. No. 89651, November 10, 1989, 179 SCRA 287.
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[38]De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing
Buckley v. Valeo, 424 U.S. 1, 113-118 (1976) and Regional Rail Reoganization Act Cases,
419 U.S. 102, 138-148 (1974).
[39] 561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.
[43]
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005,
449 SCRA 1, 10, citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500,
October 18, 1990, 190 SCRA 782.
[45]Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227
SCRA 100, 117, stating that "all powers are susceptible of abuse. The mere possibility of
abuse cannot, however, infirm per se the grant of power[.]"
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SEC. 3. Terrorism. - Any person who commits an act punishable under any of the
following provisions of the Revised Penal Code:
a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
b. Article 134 (Rebellion or Insurrection);
c. Article 134-a (Coup d'etat), including acts committed by private persons;
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction); or under
thereby sowing and creating a condition of widespread and extraordinary fear and panic
among the populace, in order to coerce the government to give in to an unlawful demand
shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of
imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise
known as the Indeterminate Sentence Law, as amended.
[49]Republic Act No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for
the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of
the President of the Philippines, the Vice-President of the Philippines, the President of the
Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly,
in any business, transaction, contract or application with the Government x x x.
(Underscoring supplied)
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[52] G.R. No. 167011, April 30, 2008, 553 SCRA 370.
[53]
Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No.
8189.
[57] People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.
[58]Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992,
207 SCRA 712, 719-720.
[60]Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160,
239; Romualdez v. Commission on Elections, supra at 418, note 35.
[63]The power to define crimes and prescribe their corresponding penalties is legislative in
nature and inherent in the sovereign power of the state to maintain social order as an aspect
of police power. The legislature may even forbid and penalize acts formerly considered
innocent and lawful provided that no constitutional rights have been abridged. (People v.
Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476, 485).
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[69] Id.
[73] Id.
[74]United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119,
134 L. Ed. 2d 519 (1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524
(1991); United States v. Powell, 423 U.S. 87, 46 L. Ed. 2d 228 (1975); United States v.
Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
[76]People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela
Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No.
169364, September 18, 2009, 600 SCRA 476.
[78]Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 164 L.Ed
2d 156 (2006).
[79]Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949);
Cf Brown v. Hartlage, 456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x
The fact that such an agreement [to engage in illegal conduct] necessarily takes the form of
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words does not confer upon it, or upon the underlying conduct, the constitutional
immunities that the First Amendment extends to speech. Finally, while a solicitation to
enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct
from pure speech, such a solicitation, even though it may have an impact in the political
arena, remains in essence an invitation to engage in an illegal exchange for private profit,
and may properly be prohibited.
[80]Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses
of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev.
1277, 1315 (2005).
CONCURRING OPINION
ABAD, J.:
I concur with the majority opinion in dismissing the various petitions filed before this
Court challenging the validity of Republic Act (R.A.) 9372. I feel a need to emphasize,
however, that as the grounds for dismissal are more procedural than substantive, our
decision in these consolidated cases does not definitively uphold the validity of the
questioned law. The specific questions raised by the petitioners against R.A. 9372 may be
raised in the proper forum if and when an actual controversy arises and becomes ripe for
adjudication.
ROBERTO A. ABAD
Associate Justice
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