Published 2 February 2024, The Daily Tribune
On 1 January 2024, the Supreme Court issued the Rules on the Anti-Terrorism Act ATA) of 2020 and Related Laws (A.M. No. 22-02-19-SC). Set to have taken effect last 15 January, the rules govern petitions and applications in connection with the ATA and its related laws.
To recall, the ATA was signed into law by former President Rodrigo Duterte in July 2020, with a total of 37 petitions filed before the Supreme Court seeking to nullify the measure. The ATA is the most contentious law to date.
In 2022, the Supreme Court published its full decision declaring only two parts of the measure unconstitutional — one which equated protests with terrorism and the other designating individuals or groups as terrorists on the request of local or foreign groups.
The Rules specifically apply to petitions and applications regarding detentions without judicial warrants of arrest, surveillance orders, freeze orders, restrictions on travel, designations, proscriptions, and other court issuances promulgated to implement the ATA and other related laws.
The Rules outline the procedure to be followed by an individual, organization, association, or group of persons who seek to obtain judicial relief from their designation as terrorist by the Anti-Terrorism Council or the issuance of a freeze order by the Anti-Money Laundering Council as a result of such designation.
The Rules provide for the issuance of an Order of Proscription by the Court of Appeals or CA, upon a verified petition by the Justice Secretary, declaring as outlawed terrorist any group of persons, organization, or association that commits any of the acts defined and penalized under Sections 4 to 12 of the ATA, or that is organized to engage in terrorism.
The Rules further provide that the CA may, within 72 hours from the filing of such verified petition, issue ex parte a Preliminary Order of Proscription upon the petitioner’s showing of probable cause “that such is necessary to prevent the commission of terrorism.”
The issuance of an ex parte Preliminary Order of Proscription empowers the AMLC to investigate, inquire, and examine the bank deposits of the respondent/s and freeze their assets and properties in accordance with the provisions of the ATA.
The CA shall then conduct continuous summary hearings and decide on the petition within three months, counted from when it is submitted for resolution. Upon the petitioner’s establishment of clear and convincing evidence, the CA shall issue a Permanent Order of Proscription, which shall be effective for three years from the date of its publication.
Judicial authorization to conduct surveillance
The Rules provide that a law enforcement agent or military personnel must secure a prior written surveillance order from the CA to be able to secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record, or collect with the use of any electronic, mechanical, or other equipment or device or technology, or any other suitable ways and means, any private communications, conversations, or messages in whatever form, kind, or nature between members of a judicially proscribed terrorist organization.
It further provides that, through a written order from the CA, law enforcement agents or military personnel may compel service providers to produce all customer information and identification records as well as call and text data records, content, and other cellular or internet metadata of any person suspected of committing or committing any of the crimes defined and penalized under the ATA.
Moreover, a copy of the ex parte application shall be furnished the Commissioner of the National Telecommunications Commission, which shall be held in strict confidence.
Under the Rules, the ATC may, in its application for a surveillance order, pray for the issuance of a data preservation order to compel any service provider to preserve all existing data about subscriber information, traffic data, and communication content data of any person or entity subject of the surveillance.
The Rules provide that ATC shall turn over to the CA, within forty-eight hours after each request of the recorded data, the certification executed by the service provider under the preceding section, as well as all the retrieved data of the person, entity or group subject of the surveillance contained within the write-protected storage medium with the assigned hash value.
The Rules clarify that under no circumstance shall the ATC examine, access, or make use of the data recovered from the service provider without first filing a motion with the CA for the opening, replaying, disclosing, or using as evidence of the sealed envelope or sealed package, or the contents thereof under Rule 4, Section 13 of this set of Rules.