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IRR Makes Anti-Terrorism Act Itself Tamer In Comparison, Lawyers Tell SC

IRR Makes Anti-Terrorism Act Itself Tamer In Comparison, Lawyers Tell SC
Lawyers and human rights advocates lead the filing of the 28th petition against the Anti-Terrorism Law on Aug. 18, 2020. Among the petitioners were three Muslims who were randomly tagged as members of terrorist groups. Photo by KJ Rosales, The Philippine STAR

The implementing rules and regulations of the Anti-Terrorism Act (ATA) is so objectionable that it “makes the law itself sound oddly more benign in comparison,” the National Union of People’s Lawyers told the Supreme Court (SC) in a pleading filed on the same day that it received the Department of Justice’s resolution finding lack of evidence connecting youth activists to communist insurgents.

This comes as National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) spokesperson Lt. Gen. Antonio Parlade received flak after he dragged outspoken celebrities like Angel Locsin, Liza Soberano, Catriona Gray and even Manila Mayor Isko Moreno into the issue of support for rebels. Both Malacañang and Defense Secretary Delfin Lorenzana advised Parlade to keep silent if he has no evidence against persons or groups he is accused of “red-tagging.”

Parlade has not stopped talking, and has said he has nothing to apologize for in his warning to Soberano about consorting with the Gabriela Youth. In a television interview on Monday, Oct. 26, he disclosed that lawmakers of the progressive Makabayan party-list bloc were under surveillance for their alleged connection to the Communist Party of the Philippines (CPP) and its armed wing, the New People’s Army (NPA). He specifically cited the ATA as the basis for such actions.

“We have this Anti-Terror Law now. It’s actually in effect, and we have to do our job to make sure that we are focusing on the right persons and we are properly implementing the law,” Parlade said, without citing any basis for his claim that the lawmakers were “card-bearing members” of the CPP-NPA.

Additional ways to treat dissent as terrorist acts

A total of 37 petitions have been filed before the SC since President Duterte signed the ATA, or Republic Act No. 11479, into law on July 3 – making it one of the most assailed laws in Philippine history.

The IRR, dated Oct. 14, was formally brought to the SC’s attention on Monday by the 11th set of petitioners led by Bagong Alyansang Makabayan secretary general Renato Reyes Jr., represented by the NUPL.

Department of Justice Undersecretary Adrian Sugay, designated spokesperson of the Anti-Terrorism Council (ATC), said the government was mindful that it “cannot go beyond what the law provides” when it crafted the IRR of the terrorism law.

The NUPL disagreed. In a 12-page manifestation, it reiterated its plea for an injunction stopping the government from implementing the ATA – and now its IRR, too. It said the IRR “dangerously goes over the boundaries of the statute, making it patently ultra vires,” or void for going beyond authority.

For one, amid all the “red-tagging” of government critics, the NUPL argued that Rule 4.4 of the IRR inserted additional ways for law enforcers to detain and label them as terrorists.

Under the ATA, advocacy, protest, dissent, stoppage of work, industrial or mass action, and similar exercises of civil and political rights will be considered acts of terrorism if these are intended to cause death or serious physical harm, endanger a person’s life, or create a serious risk to public safety.

Lawyers and petitioners have consistently pointed out that the ATA did not provide any safeguards to prevent enforcers from falsely claiming that speech and protest actions were meant to endanger the public.

The NUPL said Rule 4.4 of the IRR takes the ATA a step further by inserting the phrase “creative, artistic and cultural expressions” among the acts that law enforcers can consider as terrorism by invoking public safety concerns.

“This further poses an open threat or provides a chilling effect on freedom of expression, speech and the press,” the manifestation read. “It also encroaches on an even wider area of constitutionally protected speech.”The IRR also expanded the criteria in determining when speech and protest actions can be considered as terrorist, the NUPL said. Notably, there were only three indications of intent, as listed above.

Five more reasons were added by the IRR: to intimidate a segment of the public; to spread a message of fear; to provoke or influence the government by intimidation; to seriously destabilize or destroy political, economic or social structures of the country; or to create a public emergency or seriously undermine public safety.

“Unlike R.A. 11479 which was arguably equivocal in this respect, the IRR now expressly provides that advocacy, protest, dissent, strike, mass action etc. may be considered terrorism because of a subjective determination or even a malicious imputation of intent and purpose (which are internal processes) rather than based on a determinable or defined act (predicate crime) and the effect and result of the act,” the NUPL said.

‘Reasonable probability of success’

The NUPL also highlighted Rule 4.9 of the IRR as another dangerous provision that exceeded the ATA.

The ATA defines the new crime of inciting to commit terrorism as expressions that “incite others” to commit acts considered as terrorist under the law.

But the IRR allows the prosecution of people who may not be directly involved in terrorist acts as long as their speeches and writings have a mere “reasonable probability of success in inciting the commission of terrorism.”

The NUPL said mere “reasonable probability of success” is “glaringly different” from the much stricter and substantial “clear and present danger rule” consistently applied by the SC in freedom of speech cases.

The group also questioned the insertion of a power not granted by the law to the ATC –  the determination of which humanitarian partners or organizations are “impartial” and fall outside the scope of the new crime of providing material support to terrorists.

Besides the “serious and negative implications this provision bears on legitimate humanitarian activities,” the NUPL said it would be dangerous to grant this power to the NTF-ELCAC and its member-agencies.

“Simply put, this is too much power being afforded to a body composed of executive agencies that have a long history of harassing and vilifying private groups as purported ‘terrorists’ or ‘terrorist front organizations,’ ” it added.

Extending detention for unauthorized arrests

The NUPL also cried foul over the corresponding IRR clause that would implement an already questionable provision under the ATA – the power of the ATC to order the warrantless arrest of persons merely “suspected” of committing terrorist acts and their detention for a maximum of 24 days without charges.

Lawyers and petitioners have pointed out that the Constitution only granted judges, not the executive branch of the government, the power to issue arrest warrants.

Even then, the Constitution requires that arrest warrants be based not on mere suspicion but on probable cause that a crime has been committed by the person. Additionally, the Constitution provides that even during the suspension of the privilege of the writ of habeas corpus, persons may only be detained without charges for a maximum of three days.

The IRR, however, compounds the issue by applying the 24-day detention period even to arrests that are not authorized by the ATC, the NUPL pointed out.

Rule 9.1 provides that law enforcers who make unauthorized warrantless arrests may still avail themselves of the written authority to extend the detention period to a maximum of 24 days, as long as they secure it before the lapse of the ordinary 36-hour period under the Revised Penal Code.

“This last-minute addendum on the part of the ATC is obviously intended to cover all bases, so to speak, by permitting police and military personnel to arrest people on mere suspicion, even without proper documentation from the ATC, and keep their victims locked up for up to 24 days, so long as the documents can be conveniently produced within the period prescribed under Article 125 of the Revised Penal Code,” the NUPL said.

The NUPL questioned Rule 6.5 of the IRR, which requires the ATC to publicize and circulate the list of individuals and groups designated as terrorist, without giving them any chance to explain themselves, in violation of the right to due process.

The group also attacked Rule 9.3 for giving enforcers as long as 48 hours for the “immediate” notification to the courts of an arrest – which it saw as enough time for “abuses, torture, coercion, manufacture or even destruction of evidence” to take place.

Enforcers’ participation in crafting the IRR

The NUPL noted that the IRR was promulgated “with the active participation of police and military institutions.” It singled out Parlade as “the anointed omnipresent mouthpiece” used by the government to “viciously, relentless, recklessly and baselessly red-tag various human rights and cause-oriented individuals and organizations.”

It called on the SC to order the suspension of the implementation of the ATA and its IRR while the legal challenges are pending, to “ensure the protection of basic rights” and “protect [the petitioners] and countless citizens who stand to be victimized by such a draconian law.”

“It may even spell the difference between life and death for individuals in the crosshairs of those intolerant of dissent and divergence,” the NUPL said.

On Monday, the NUPL received the National Prosecution Service’s Oct. 15 resolution dismissing the criminal complaint filed by the police Criminal Investigation and Detection Group (CIDG) against activists for kidnapping and recruitment of children to armed groups, in relation to the case of Far Eastern University student Alicia Jasper Lucena.

Lucena’s mother Relissa had joined the CIDG in accusing youth group Anakbayan of recruiting the student against her will when she was still a minor. Relissa told a Senate hearing in August 2019 that Alicia was missing, but the daughter said she left home on purpose.

No proof that Anakbayan is an armed force

Prosecutors said the complainants “failed to prove that Anakbayan is an armed force or that the members thereof used children to participate in hostilities.”

“As it appears in the evidence presented, Anakbayan is just a comprehensive national mass organization of the Filipino youth that is advocating for jobs, land reform, education, rights and justice,” read the resolution.

“There is also no evidence presented showing that Anakbayan is the recruiting arm of or somehow connected to the CPP-NPA-NDF,” it added.

It disregarded the testimony of witnesses claiming to be rebel returnees and accusing progressive youth groups of recruiting members for the NPA, as they were never members of Anakbayan and would not have personal knowledge about the issue.

Cleared of charges were Anakbayan national president Vencer Crisostomo, secretary general Einstein Recedes, spokesperson Alex Dandy, liaison officer Al Omaga and organizer Shittie Sharine Amerol as well as NUPL chair Neri Colmenares, Kabataan party-list Rep. Sarah Jane Elago and Netherlands-based CPP founder Jose Maria Sison.

The SC last September also dismissed the petition for the writ of amparo and habeas corpus filed by Relissa and her husband Francis, also based on the same allegations. It noted that Alicia was not missing as she was staying with Anakbayan.

NUPL president Edre Olalia said this was “a resounding rebuff of irresponsible and bigoted creatures who are full of themselves.”

“Viewed with other significant dismissals of other false and trumped-up harassment cases – rare and far between as they may be – this gives some sliver of hope that sooner or later, we will be vindicated by people in government who remain professional, evenhanded and fair, most especially in the light of indubitable facts and a no-nonsense application of the law,” Olalia said.

Despite the failure to provide evidence to link activists to the CPP-NPA in this case, Parlade, speaking about the surveillance of Makabayan congressmen, said: “Part of that is making sure that we have a strong case against people and organizations who, by the way, have been declared as a terrorist organization.”

Presidential Proclamation No. 374, issued by Duterte in December 2017, designated only the CPP-NPA as an “identified terrorist organization” for the purpose of freezing and forfeiting its assets.

On Monday night, Parlade told “The Chiefs” on OneNews / TV5 that the military has documents linking certain progressive groups to the CPP-NPA.

He accused the Gabriela women’s party-list of “duplicity” and said it has an “underground” component that supports the NPA, called Makibaka. He added that the government wanted to “isolate” the activists in Gabriela, who comprise the majority of the group and its supporters, from the radicalized members of Makibaka. “Isolating” activists in progressive groups from radicalized members who support armed struggle is a mission of the task force, he said.

Former Gabriela party-list representative Emmi de Jesus told The Chiefs that after Makibaka was declared an illegal organization, it was no longer a component of the party-list group. She slammed the “unfair” accusations of Parlade about Gabriela.

The petition of the Department of Justice asking the Manila Regional Trial Court to officially declare the CPP-NPA as a terrorist organization remains pending. It initially named 656 people, including United Nations special rapporteur Victoria Tauli-Corpuz and former Bayan Muna party-list Rep. Satur Ocampo among the individuals it accused of being terrorists, but they have since been delisted. Only CPP founder Sison and Mindanao Commission Secretary Antonio Cabanatan remain implicated, with none of them sitting in the House of Representatives.