Title: Southern Hemisphere Engagement Network, Inc. v.

Anti-Terrorism Council
SCRA Citation: 632 SCRA 146
Date Promulgated: October 5, 2010

Petitioners: This is a consolidation of 6 petitions, thus:
GR No. 178552
Southern Hemisphere Engagement Network, Inc. NGO
certiorari and prohibition
Atty. Soliman Santos, Jr.
Concerned citizen,
taxpayer, and lawyer
GR No. 178554 KMU, NAFLU-KMU, CTUHR citizens
GR No. 178581
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW,
LFS, PAMALAKAYA, ACT, HEAD, Guingona, Jr., Lumbera,
Constantino, Jr., Sr. Manansan, OSB, Dean Paz, Atty. Lichauco, Ret.
Col. Cunanan, Siguion-Reyna, Dr. Pagaduan-Araullo, Reyes, Ramos,
De Jesus, Baua, Casambre

GR No. 178890 SELDA, EMJP, PCPR
GR No. 179157 IBP, CODAL, Senator Madrigal, Osmena III, and Taada
GR. No. 179461
BAYAN-ST, other regl chapters and orgs mostly based in Southern
Tagalog


Respondents:
Anti-Terrorism Council, composed of:
o Chairperson Eduardo Ermita
o Vice-Chair Raul Gonzales
o Acting Defense Secretary Alberto Romulo
o National Security Adviser Norberto Gonzales
o DILG Secretary Ronaldo Puno
o Finance Secretary MargaritoTeves
AFP Chief of Staff General HermogenesEsperon
PNP Chief General Oscar Calderon
PGMA
Support agencies of the Anti-Terrorism Council, namely:
o National Intelligence Coordinating Agency
o NBI
o Bureau of Immigration
o Office of Civil Defense
o Intelligence Service of the AFP
o Anti-Money Laundering Center
o Philippine Center on Transnational Crime
o PNP intelligence and investigative elements

FACTS:
This case consists of 6 petitions challenging the constitutionality of RA 9372, An Act to Secure the State
and Protect our People from Terrorism, aka Human Security Act of 2007.
Petitioner-organizations assert locus standion the basis of being suspected communist fronts by the
government, whereas individual petitioners invoke the transcendental importance doctrine and their
status as citizens and taxpayers.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, and PCR allege 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
they have been branded as enemies of the State.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD, and Agham would like the Court to take judicial notice of respondents alleged action of
tagging them as militant organizations fronting for the CPP and NPA. They claim such tagging is
tantamount to the effects of proscription without following the procedure under the law.
Meanwhile, IBP and CODAL base their claim of locus standi on their sworn duty to uphold the Constitution.
Petitioners claim that RA 9372 is vague and broad, 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.


ISSUES:
1. WON petitioners resort to certiorari is proper NO.
2. WON petitioners have locus standiNO.
3. WON the Court can take judicial notice of the alleged tagging NO.
4. WON petitioners can invoke the transcendental importance doctrine NO.
5. WON petitioners can be conferred locus standi as they are taxpayers and citizens NO.
6. WON petitioners were able to present an actual case or controversy NO.
7. WON RA 9372 is vague and broad in defining the crime of terrorism NO.
8. WON a penal statute may be assailed for being vague as applied to petitioners NO.
9. WON there is merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity
NO.

HELD AND RATIO:
1. Petition for certiorari is improper.
a. Certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions.
Section 1, Rule 65 of the Rules of Court states that petition for certiorari applies 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.
b. 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.
c. The power of judicial review has 4 requisites:
i. There must be an actual case or controversy.
ii. Petitioners must possess locus standi.
iii. Question of constitutionality must be raised at the earliest opportunity.
iv. The issue of constitutionality must be the lismota of the case.
The present case lacks the 1
st
2 requisites, which are the most essential.
2. Petitioners lack locus standi.
a. Locus standi or legal standing requires a personal stake in the outcome of the controversy as to
assure concrete adverseness.
b. In Anak Mindanao Party-List Group v. The Executive Secretary,locus standihas been defined as
that requiring:
i. That the person assailing must have a direct and personal interest AND
ii. That the person sustained or is in immediate danger of sustaining some direct
inquiry as a result of the act being challenged.
c. For a concerned party to be allowed to raise a constitutional question, he must show that:
i. He has personally suffered some actual or threatened injury;
ii. The injury is fairly traceable to the challenged action; AND
iii. The injury is likely to be redressed by a favorable action.
d. RA 9372 is a penal statute. While Chavez v. PCGG 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. Such necessitates closer judicial scrutiny of
locus standi.
e. The mere invocation of the duty to preserve the rule of law does no, however, suffice to clothe the
IBP or any of its members with standing. They failed to sufficiently demonstrate how its mandate
under the assailed statute revolts against its constitutional rights and duties.
f. Former Senator Ma. Ana Consuelo Madrigal who claims to have been the subject of political
surveillance also lacks locus standi. The same is true for WigbertoTaada and Osmea III, who
cite their being a human rights advocate and an oppositor, respectively. No concrete injury has
been pinpointed, hence, no locus standi.
3. Court cannot take judicial notice of the alleged tagging.
a. Matters of judicial notice have 3 material requisites:
i. matter must be one of common and general knowledge
ii. must be well and authoritatively settled, not doubtful or uncertain or capable of accurate
and ready determination
iii. known to be within thelimits of the jurisdiction of the court
b. The principal guide in determining what facts may be assumed to be judicially known is that of
notoriety. It can be said that judicial notice is limited to facts evidenced by public records and facts
of general notoriety. Hence, it can be said that judicial notice is limited to: (1) facts evidenced by
public records and (2) facts of general notoriety.
c. A court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-
existence of a fact of which the Court has no constructive knowledge.
d. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or
proscription under RA 9371 has been filed against them, 3 years after its effectivity, belies any
claim of imminence of their perceived threat emanating from the so-called tagging. They fail to
particularize how the implementation of specific provisions of RA 9372 would result in direct injury
to their organization and members.
e. Notwithstanding the statement of Ermita and Gonzales that the Arroyo administration will adopt the
US and EU classification of CPP and NPA as terrorist organizations, there is yet to be filed before
the courts an application to declare the CPP and NPA organizations as domestic terrorist or
outlawed organization under RA 9372.
4. In Kilosbayan v. Guingona,to invoke the transcendental doctrine, the following are the determinants:
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;
c. The lack of any other party with a more direct and specific interest in the questions being raised
In the case at bar, there are other partiesnot before the Court withdirect and specific interests in the
questions being raised.
5. Petitioners cannot be conferred upon them as taxpayers and citizens.
a. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of
Congress, whereas citizen standing must rest on direct and personal interest in the proceeding.
b. 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.
c. Generalized interest, albeit accompanied by the assertion of a public right, do not establish locus
standi. Evidence of a direct and personal interest is key.
6. Petitioners fail to present an actual case or controversy. None of them faces any charge under RA
9372.
a. Judicial power operates only when there is an actual case or controversy. 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.
b. Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest. The pleadings
must show:
i. an active antagonistic assertion of a legal right and
ii. a denial thereof
c. However, 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 presence of sufficient facts.
d. Prevailing American jurisprudence allows adjudication on the merits when an anticipatory petition
clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks
to do, as there would be a justiciable controversy. However, in the case at bar, the petitioners have
failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or
activity. No demonstrable threat has been established, much less a real and existing one.
e. Petitioners have yet to show any connection between the purported surveillance and the
implementation of RA 9372. 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. If the case is merely theorized, it lies beyond judicial review for lack of ripeness.
Allegations of abuse must be anchored on real events.
7. 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.
a. Romualdez v. Sandiganbayan: 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.
b. Romualdez v. COMELEC:A facial invalidation of criminal statutes is not appropriate, but the Court
nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense under the Voters Registration Act of 1996, with which the therein petitioners were
charged, is couched in precise language.
c. The aforementioned cases rely heavily on Justice Mendozas Separate Opinion in the Estrada
case: Allegations that a penal statute is vague and overbroad do not justify a facial review of its
validity. A facial challenge is allowed to be made to a vague statute and to one, which is overbroad
because of possible chilling effect upon protected speech. This rationale does not apply to
penal statutes. Criminal statutes have general in terrorem effect. If facial challenge is allowed,
the State may well be prevented from enacting laws against socially harmful conduct. Overbreadth
and vagueness doctrines then have special application only to free speech cases. They are inapt
for testing the validity of penal statutes.
8. 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 impossible absent an actual
or imminent chargeagainst them.
a. The doctrine of vagueness and the doctrine of overbreadth do not operate on the same
plane.
i. A statute or acts suffers from the defect of vagueness when:
1. 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 2 ways:
a. Violates due process for failure to accord fair notice of conduct to avoid
b. Leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.
ii. The overbreadth doctrine 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.
b. A facial challenge is likewise different from an as applied challenge.
i. As applied challenge considers only extant facts affecting real litigants.
ii. Facial challenge 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.
1. Under no case may ordinary penal statutes be subjected to a facial challenge. If facial
challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible.
9. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its
validity.
a. Section 3 of RA 9372 provides the following elements of the crime of terrorism:
i. Offender commits an act punishable under RPC and the enumerated special penal laws;
ii. Commission of the predicate crime sows and creates a condition of widespread and
extraordinary fear and panic among the populace;
iii. The offender is actuated by the desire to coerce the government to give in to an unlawful
demand.
b. 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.
The argument does not persuade. What RA 9372 seeks to penalize is conduct, not speech.
c. 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 offender. 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.

Concurring opinion of Justice Abad:
- He concurs with the majority opinion, but he says he needs to emphasize that the grounds for dismissal in this case are more
procedural than substantive. Hence, when an actual controversy arises and when it becomes ripe for adjudication, the specific
questions raised here may be raised again.