SHEN v. Anti-Terrorism (G.R. No. 178552; Oct. 5, 2010)

CASE DIGEST: SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC. and ATTY. SOLIMAN M. SANTOS, JR. v. ANTI-TERRORISM COUNCIL, et al.

CONSOLIDATED WITH: G.R. No. 178554; G.R. No. 178581; G.R. No. 178890; G.R. No. 179157; G.R. No. 179461

FACTS: Six petitions for certiorari and prohibition were filed challenging the constitutionality of RA 9372, otherwise known as the Human Security Act. Impleaded as respondents in the various petitions are the Anti-Terrorism Councilcomposed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.ISSUE: Should the petition prosper?

HELD: Section 1, Rule 65 of the Rules of Court provides: Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

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.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.

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.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injuryas a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers.

Petitioners in G.R. No. 178890 allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of the State. 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.

Petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondent's alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the law.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be oneof common and general knowledge; (2) it must bewell and authoritatively settledand 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,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.

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. 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. 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.

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.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.

Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function. 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 aremerely theorized, lie beyond judicial review for lack of ripeness.

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism 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.

A statute or act suffers from the defect ofvaguenesswhen 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.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.

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.

Distinguished from anas-applied challenge which considers only extant facts affectingreallitigants, afacial 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.

Justice Mendoza accurately phrased the subtitle 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. Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against them.

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 must necessarily be transmitted through some form of expression protected by the free speech clause.

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 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.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction.

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 statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. DISMISSED.

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