SEVERAL petitions have been filed to seek relief from the Supreme Court with respect to provisions of the newly signed anti-terror law that may impact on the people’s basic freedoms.
A common thread in their arguments is that Section 29 of the law is unconstitutional because it encroaches on the exclusive power of judges to issue a warrant of arrest, and seeks to legitimize arrests based on mere suspicion and without the benefit of such a warrant.
In a previous column, we asserted that Section 29 is repugnant to the Constitution because the determination of probable cause as an antecedent to the issuance of a warrant of arrest is a function reserved solely to a judge sitting in a court of law. This power is derived directly from the Constitution and may not be watered down by Congress through ordinary legislation such as the anti-terror law.
Instead, this new law empowers the Anti-Terrorism Council (ATC), a purely executive body, to direct the police and the military to arrest and detain suspects on the strength of a simple written authorization.
Section 45 of the law provides for the composition of the ATC: the Executive Secretary as chairperson, the National Security Adviser as vice chairperson, with the secretaries of Foreign Affairs, National Defense, Interior and Local Government, Finance, Justice, Information and Communications Technology, as well as the executive director of the Anti-Money Laundering Council as its members.
These are appointees of the President who hold their jobs at his pleasure. They can be hired and fired at any time without the President owing any of them any explanation. As his alter egos, the actions of the Cabinet are ultimately the actions of the President. The net effect of the anti-terror law is an ultra-powerful executive department.
In contrast, judges enjoy security of tenure as an implement of the doctrine of separation of powers. Once appointed by the President, judges cannot be fired from office and can fruitfully perform their functions until they reach the mandatory age of retirement.
It is the Supreme Court that has the power to dismiss judges for misconduct and other allied offenses, and only after affording them the opportunity to explain themselves in administrative proceedings.
Judicial independence is a prized pillar of a working democracy. A truly independent and competent judiciary can separate the chaff from the grain. It should be able to shield the ordinary citizen from the intrusive and oppressive actions of the other branches of government.
Now how does that measure against a body whose members must kowtow to the appointing power if only to remain in office?
Of course, there continue to be reservations about the current system where the President continues to appoint judges based on a list submitted by the Judicial and Bar Council. Overweening ambition among some members of the judiciary may have taken a chip off their chiseled facade of independence. That point requires an entire discussion.
But better that than a process that takes away the duty of the State to show probable cause before a judge who is sworn to be impartial and must dispose of a legal incident based strictly on the facts and the applicable law.
We now await the Supreme Court ruling on the petitions currently on file to invalidate Section 29 and other provisions of the anti-terror law. We heard that more petitions are still being drafted.
Seen as the least powerful among the branches of government, the Supreme Court is nonetheless the last bastion of democracy that needs to address the suspicion that the anti-terror law is Congress’ failure to check executive power gobbling up a chunk of judicial power. This was hopefully not impelled by fear if not disrespect of judicial authority.
After all, in matters of national interest as well as affecting civil liberties, the caveat, according to the Supreme Court, is obsta principiis — oppose or resist from the very beginning such “erosion of small encroachments.”/PN
