when_laws_have_no_chill

Anti-Terror Bill: When Laws Have No Chill

Date: 17 June 2020

The passage of the Anti-Terror Bill by both chambers of Congress caused a deluge of criticism from Filipinos. It has sparked a debate about the provisions of the bill and how it would affect the lives of Filipinos once it is signed into law.

 

Like all things, there are two sides to every debate. On the one hand, those against the bill claim that it unduly tramples on Constitutionally guaranteed freedoms like the Freedom of Expression. On the other side of the aisle, those pushing for the bill claim that it is necessary for our national security.

We can readily understand the reservations of those opposing the passage of the bill. Sure, there are provisions that, absent the proper safeguards, may be really prone to abuse. That scares a lot of people. This is basically what is called the chilling effect under the law.

 

The term chilling effect is not new. We have heard this being used for numerous legislation – both proposed and passed – in the past. Specifically, the term has been used to justify the striking down of legislation for being incongruent with the Freedom of Expression and of the Press. To be sure, the term is defined as “a term in law and communication that describes a situation where a speech or conduct is suppressed by fear of penalization at the interests of an individual or group.” (https://definitions.uslegal.com/c/chilling-effect/, retrieved on 10 June 2020.) The Supreme Court has used this term to describe the effect a certain law has on an individual or a group, whether connected with the government or not; or whether pro or anti-government.

 

However, this should not be understood that any law which creates a chilling effect would be struck down as being unconstitutional. On the contract, it is precisely the chilling effect that lawmakers are banking on when drafting penal laws. As the Supreme Court explained: “All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct.” (Disini, et. al. vs. The Secretary of Justice, G.R. No. 203335, 18 February 2018.)

 

Question now is, when would the chilling effect have the effect of rendering a law unconstitutional? This is quite a complex question to answer. But the short answer is that it is dependent on the peculiar circumstances of each given case the effect of a certain law on an individual or group.

 

Let us take as an example laws seeking to regulate free speech. The Supreme Court explained: “The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. (Estrada vs. Sadiganbayan, G.R. No. 148560, 19 November 2001.)

 

In another case, the Supreme Court held that: “Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.” (Chavez vs. Gonzalez, G.R. No. 168338, 15 February 2008.)


In summary, the term chilling effect simply means that a law might unduly restrain the exercise of a right or even the doing of everyday things for fear of prosecution and being imprisoned. While, by their nature criminal laws have a chilling effect, in fact, it is the very reason for their existence, it cannot be unduly over-reaching so as to be applicable when doing a something that otherwise would not be a violation of the law. Simply put, the law must be clear and easily discernable, with very little room for interpretation or misinterpretation for that matter. If all of that fails, then the law must at least have robust safeguards that would ensure that the potential for abuse is at a minimum.