The Legal Legacy of the Anti-Terror Act, Four Years Later
From the moment of its enactment, the Anti-Terrorism Act of 2020 (“ATA”)[1] quickly became one of the most controversial laws this century. Journalist groups,[2] human rights groups,[3] lawyers,[4] and even some legislators[5] themselves were among the many questioning the Act’s constitutionality, and its implications on human rights and government overreach.
In the four years since the ATA’s enactment, concerns behind the law have continued to loom large in legal academia. This edition of In Retrospect looks at some of the scholarly perspectives developed in the wake of the ATA and how they contextualize, primarily through the lens of international law, the effects of an undeniably consequential piece of legislation.
A key concern over the ATA from the outset was its enactment amid widespread institutional “red-tagging” during then-President Rodrigo Duterte’s administration. Red-tagging is the practice of labeling left-leaning individuals or groups as communists and particularly as “front organizations” for armed movements such as the Communist Party of the Philippines (CPP) or their armed wing, the New Peoples’ Army (NPA)[6]. Given the CPP-NPA’s designation as a terrorist group by the Philippine government,[7] such labelling indirectly brands “red-tagged” individuals as terrorists within the ambit of the ATA.[8] The practice of red-tagging has also been recently recognized by the Court in the 2023 case of Deduro v. Vinoya and was considered a “likely precursor to abduction or extrajudicial killing.”[9]
In Volume 95 of the Philippine Law Journal, Ruby Rosselle L. Tugade tackles this very issue in her article entitled Persistent Red-Tagging in the Philippines as Violation of the Principle of Distinction in International Humanitarian Law.[10] Tugade argues that red-tagging undermines the principle of distinction in international law. Such principle is a jus cogens norm,[11] and is recognized as a binding source of international law within the Philippines’ legal framework.[12] Violations of the principle of distinction are considered violations of the Rome Statute under Article 8(c),[13] but while the country has withdrawn from the International Criminal Court (ICC),[14] it has domesticated the relevant provisions under Republic Act No. 9851 making such acts punishable in the Philippines.[15]
Tugade emphasizes that red-tagging remains a significant challenge to the country’s ability to uphold its adherence to IHL in the context of the non-international armed conflict, by labeling non-combatants as potential terrorists or supporters of terrorist groups, it removes civilians from IHL’s protection.[16] In addition, the ATA has exacerbated the issue by greatly expanding the State’s power to designate terrorist groups.[17] The practice itself violates the International Covenant on Civil and Political Rights (“ICCPR”) and Philippine law, specifically R.A. No. 9851, including the right to life, liberty, and security.[18]
Further, Tugade identifies the rights to life, liberty, and security which are enshrined in the Constitution and international treaties, such as the Universal Declaration of Human Rights (“UDHR”) and the ICCPR to which the Philippines is a party. Tugade points to domestic statutes, such as Republic Act No. 10353 criminalizing involuntary disappearances,[19] or Article 32 of the Civil Code providing for damages for the infringement of a person’s civil liberties,[20] that act effectively as supporting instruments in establishing these rights as causes of action within the Philippine legal system.
In particular, Tugade highlights the protective writs of amparo[21] and habeas data,[22] adopted by the Supreme Court to address similar violations. Tugade also noted that the Supreme Court had necessarily limited the writs’ applicability, particularly in Zarate v. Aquino wherein the Court held that “mere membership in [an organization] is not an actual threat that entitles one to the writ of amparo.”[23] However, Tugade clarified that the parameters set out in Zarate would not necessarily bar a future petition for the writ arising from the act of red-tagging itself,[24] which the Supreme Court eventually had the chance to rule upon in 2023 in the case of Deduro v. Vinoya.[25]
The petition for review in Deduro arose out of a petition for the writ of amparo filed before the Regional Trial Court (RTC) of Iloilo City, alleging that military officers under respondent’s command had identified the petitioner as a member of the CPP-NPA-NDF in Panay.[26] The RTC denied the petition, citing Section 1 of the Rule on the Writ of Amparo which stated that the writ only covered extralegal killings, enforced disappearances or threat thereof.[27] However, the Supreme Court reversed, observing that accounts of red-tagging as a phenomenon “depict it as a likely precursor to abduction or extrajudicial killing.”[28] The Court in Deduro ultimately resolved to partially grant the original petition for the writ, holding that “red-tagging, vilification, labelling, and guilt by association constitute threats to a person’s right to life, liberty, or security, under the second paragraph of Section 1 of the Rules, which may justify the issuance of a writ of amparo.”[29]
Outside of individuals explicitly red-tagged, there may also be risks posed by the ATA against humanitarian workers. Leandro Anton M. Castro, in an article for the Asia Pacific Journal of International Humanitarian Law entitled The Humanitarian Exemption Challenge: Securing the Philippine Humanitarian Space in the Anti-Terrorism Act of 2020 points out the consequences of the said law’s provisions regarding “material support,” which risks criminalizing humanitarian work.[30] Castro argues that this vague scope exposes humanitarian organizations and workers to criminal liability for merely advancing advocacies and other lawful activities, violating the protection granted by IHL to humanitarian activities which ensure the life, security, dignity, and physical and mental well-being of persons affected by the conflict.[31] Moreover, the scope contemplated by the law may produce a chilling effect on organizations providing humanitarian assistance.[32] Incidents of harassment and prosecution against humanitarian organizations have already been noted because of material support provisions.[33]
To counter these consequences, the ATA includes an exemption which clarifies permissible humanitarian activities from material support.[34] Castro posits, however, that the ATA’s exemption is inadequate as it requires state recognition for humanitarian organizations, which IHL itself does not require for such protection to be granted.[35]
Finally, Soliman M. Santos, Jr. in The Constitutionality Petitions on the Anti-Terrorism Act of 2020: An Unfortunate Lack of International Law Discourse on Both Sides (published in the Philippine Yearbook of International Law), argues for integrating international law perspectives in the discourse on the ATA. He criticizes both the petitioners and the Office of the Solicitor General (OSG) for failing to discuss the ATA, particularly its definition of terrorism, in the context of international law during their arguments regarding the constitutionality of the ATA.[36] The article was published in the wake of the debates regarding the constitutionality of the ATA before the Supreme Court—in the case of Calleja v. Executive Secretary.[37]
Together, these perspectives show how the Anti-Terrorism Act of 2020 left an immediate and lasting mark on Philippine law. As the Act approaches its fourth anniversary, these articles demonstrate that the debate on the merits of the Anti-Terror Act is far from settled. While the long-term legacy of the ATA has yet to be determined, the efforts of legal scholars to articulate its nuances as a piece of legislation remain important to protecting the Philippine legal landscape from terror and tyranny alike.
Cite as In Retrospect, The Legal Legacy of the Anti-Terror Act, Fourt Years Later, 98 Phil. L.J. Forum, March 30, 2025, at https://philippinelawjournal.org/forum/post/the-legal-legacy-of-the-anti-terror-act-four-years-later/. This In Retrospect was prepared by PLJ Interns Chloe Wu, Mark Vincent Nogra, Samuel Escueta, and Samuel Gomez.
In Retrospect is a series of thought pieces revisiting past Journal articles in light of recent developments in current affairs or related literature. They are written by PLJ interns, with guidance from the Editorial Board.
[1] Rep. Act No. 11479 [hereinafter “Anti-Terrorism Act] (2020).
[2] See, e.g., Comm. to Protect Journalists, Anti-terrorism legislation threatens press freedom in the Philippines, June 10, 2020, at www.cpj.org/2020/06/anti-terrorism-legislation-threatens-press-freedom-in-the-philippines.
[3] Julie McCarthy, Why Rights Groups Worry About the Philippines’ New Anti-Terrorism Law, NPR, July 21, 2020 at www.npr.org/2020/07/21/893019057/why-rights-groups-worry-about-the-philippines-new-anti-terrorism-law.
[4] Ted Regencia, Court challenge awaits Duterte-backed anti-terror legislation, Al-Jazeera, June 9, 2020, at www.aljazeera.com/news/2020/6/9/court-challenge-awaits-duterte-backed-anti-terror-legislation.
[5] Pangilinan: Vagueness in anti-terrorism bill make it open to abuse, Philstar.com, June 10, 2020, at www.philstar.com/headlines/2020/06/10/2019963/pangilinan-vagueness-anti-terrorism-bill-make-it-open-abuse.
[6] Tugade, infra note 10, at 562.
[7] Proc. No. 374 (2017), declaring the CPP-NPA as a designated terrorist organization under Rep. Act No. 10168.
[8] See Anti-Terrorism Act (2020), § 25–26.
[9] Deduro v. Vinoya, G.R. No. 254753, slip op. at 22, July 4, 2023.
[10] Ruby Rosselle L. Tugade, Persistent Red-Tagging in The Philippines as Violation of the Principle of Distinction in International Humanitarian Law, 95 Phil. L.J. 560 (2022), available at https://philippinelawjournal.org/wp-content/uploads/2025/02/95PLJ560_TUGADE.pdf.
[11] Id. at 570, citing Stefan Oeter, Methods and Means of Combat, in The Handbook Of Humanitarian Law In Armed Conflicts 119, 189 (Dieter Fleck ed., 2008).
[12] Id, citing Const. art. II, § 2.
[13] Rome Statute of the International Criminal Court art. 8(c), July 17, 1998, 2187 U.N.T.S. 90.
[14] See also Cayetano v. Pangilinan, G.R. No. 238875, Mar. 16, 2021.
[15] Tugade, supra note 10,at 570–71.
[16] Id. at 581.
[17] Id. at 566.
[18] Id. at 576–79.
[19] Rep. Act No. 10353 (2012). Section 3 (b) defines enforced or involuntary disappearance as the “rrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such person outside the protection of the law.”
[20] Civil Code, art. 32.
[21] See Amparo Writ Rule. A.M. No. 07-9-12-SC (2007).
[22] See Habeas Data Writ Rule. A.M. No. 08-1-16-SC (2008).
[23] Zarate v. Aquino, G.R. No. 220028, November 10, 2015 at 5, as cited in Tugade, infra at 579.
[24] Tugade, supra note 10,at 579.
[25] G.R. No. 254753, slip. op., July 4, 2023.
[26] Id. at 2–6.
[27] Amparo Writ Rule, § 1.
[28] Id. at 22.
[29] Id. at 24.
[30] Leandro Anton M. Castro, The Humanitarian Exemption Challenge: Securing the Philippine Humanitarian Space in the Anti-Terrorism Act of 2020, 2 Asia Pac. J. Int’l. Humanitarian L. 31 (2021).
[31] Id. at 34–37.
[32] Id. at 36.
[33] Id. at 38.
[34] See Rep. Act No. 11479, § 13 (2020).
[35] Castro, supra note 30,at 45–51.
[36] Soliman M. Santos, Jr., The Constitutionality Petitions on the Anti-Terrorism Act of 2020: An Unfortunate Lack of International Law Discourse on Both Sides, 19 Phil. Y.B. Int’l. L. 1 (2020).
[37] 918-B Phil. 1 (2021).