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October 19, 2020

Gov’t To Publicly Tag People, Groups As ‘Terrorists’ Under IRR Of Anti-Terrorism Act

Gov’t To Publicly Tag People, Groups As ‘Terrorists’ Under IRR Of Anti-Terrorism Act Cyclists, farmers and other protesters picket the Department of Agriculture office in Quezon City as they call for the junking of the anti-terrorism measure on June 30, 2020 or three days before President Duterte signed it into law. Photo by Michael Varcas, The Philippine STAR

The government has come out with the implementing rules and regulations of the Anti-Terrorism Act (ATA). Among other things, the IRR empowers the Anti-Terrorism Council (ATC) to release to the public a list of individuals and groups it “designates” as terrorists before giving them the chance to clear their names.

The IRR dated Oct. 14 and supposedly registered with the Office of the National Administrative Registrar on Oct. 16 also includes a six-point guideline on who would be prosecuted for the new crime of inciting to commit terrorism.

The caveat that protests and criticisms will be deemed terrorist acts if they are seen as intended to cause harm and endanger public safety remains unchanged.

On the other hand, the IRR did not mention the regulation of social media as championed by Armed Forces of the Philippines chief of staff Gen. Gilbert Gapay.

The Department of Justice said in an Oct. 15 statement that the nine-member ATC “revisited the Constitution, prevailing laws, other implementing rules and regulations, jurisprudence, even the Rules of Court” in preparing the IRR.

It said the IRR seeks to explain “what a citizen must do – or must not do – to comply with the law,” amid concerns that the law’s provisions were vague, overbroad and prone to abuse by malicious law enforcers, some of whom have resorted to what activist groups and dissidents have decried as red-tagging.

Justice Undersecretary Adrian Sugay, the designated ATC spokesperson, said on Oct. 17: “In crafting the IRR, we cannot go beyond what the law provides, we cannot take out anything.”

“What we did was just break down the provision of the law in its elements to make sure it is properly understood by law enforcement, prosecutors and judges. That’s really all that we can do,” he told reporters.

Some of the lawyers behind the 37 petitions questioning the ATA before the Supreme Court said they no longer expected the IRR to resolve the issues they raised against the law that President Duterte signed on July 3.

Lawyer Howard Calleja, the first-ever petitioner, said “the IRR is only a reflection of the law and since the law is patently unconstitutional, as expected, the IRR is patently unconstitutional as well.”

Bayan Muna party-list chairperson Neri Colmenares, who joined members of the House of Representatives’ Makabayan bloc in filing the fourth petition, agreed that an IRR “cannot run counter to the law.”

“It is a foregone conclusion that the (Anti-Terror Law) violates the Constitution and no IRR can cure that,” Colmenares told The Philippine STAR in a text message.

National Union of People’s Lawyers president Edre Olalia argued that the attempts to address the questions of the law’s constitutionality, as acknowledged by Sugay, “even implicitly supports our contentions.”

“As we have said time and again, the water cannot rise above its source. The IRR is the blindsided way to cure by way of afterthought a defective and unconstitutional law ab initio,” said Olalia, who joined the Concerned Lawyers for Civil Liberties – a group that includes former vice president Jejomar Binay and former senator Rene Saguisag – in filing the 25th petition.

Calleja stressed that even with the issuance of the IRR, the law would still allow the ATC to exercise powers – including “designating” individuals or groups as terrorist, authorizing arrests and freezing the assets of suspects – that belong to the courts.

Dinamihan lang, naglagay ng kung anu-ano, ganun pa rin (They just put more words, put whatever stuff, but it’s still the same). Who would still make the decision? Sila pa rin (It’s still them),” he said in a phone interview with The STAR. “The mere fact you are deciding who is who and what is what, that is judicial process.

Publish list first, hear the persons out later

Among the ATA provisions questioned by petitioners is the power of the ATC – whose members are all officials of the executive branch of government and serve at the President’s pleasure – to “designate” individuals and groups as terrorist under Section 25 of the law.

Petitioners said this violates the right to due process and to be presumed innocent until proven guilty, because the designated people or groups would not be heard out before they suffer the consequences.

Under Rule 6 of the IRR, the ATC may exercise this power “upon a finding of probable cause” that they participate in or facilitate terrorist acts under Sections 4 to 12 of the law.

Entities owned or controlled by, or acting on behalf of individuals or groups suspected of participating in or facilitating terrorist acts may also be designated.

Foreign and supranational jurisdictions may also request the Philippine government to have the ATC designate such individuals or groups and associated entities “upon a finding of probable cause that the proposed designee meets the criteria for designation” under United Nations Security Council (UNSC) Resolution No. 1373.

The IRR defines “probable cause” as a “reasonable ground of suspicion supported by circumstances warranting a cautious person to believe that the proposed designee meets the requirements for designation.”

To establish such a finding, the ATC may collect or solicit information from “relevant government agencies and other sources,” although these were not specified.

The IRR is silent on whether the individuals or groups would be informed or heard before they would be publicly labeled as terrorist.

It just paves the way for the publication and posting of “all ATC resolutions of designation” in a newspaper of general circulation, the online Official Gazette, and the council’s website – a process that the law did not actually provide for.

The list of designated persons or entities will include their names “and other identifier information,” as well as the details of their case and the date of their designation or the last review of designation.

The IRR requires the ATC to adopt a “mechanism for immediately communicating” such lists to the public and financial sectors and “designated non-financial businesses and professions.”

Another effect of designation, as provided under Sections 35 and 36 of the law itself, will be to subject the individuals or groups to the authority of the Anti-Money Laundering Council to freeze assets.

Only after the list has been made public and circulated would the designated individuals or groups be able to question their inclusion.

They may file a verified request for “delisting” before the ATC within 15 days of publication. It should be based on the grounds of mistaken identity, relevant and significant change of facts or circumstances, newly discovered evidence, death, dissolution or liquidation of groups, organizations or associations, or any other circumstance that would show that there is no more basis for the designation.

Should the request for delisting be denied, the individual or group may file another request only after six months has passed.

Those designated as terrorist by the United Nations Security Council would have to file a petition for delisting directly or with the help of the ATC before the appropriate committee of the international body.

The IRR said the ATC’s power to designate terrorist individuals or groups and deprive them of their assets would be “without prejudice” to the “proscription” of terrorist organizations, associations or groups in proceedings before the Court of Appeals (CA). Membership in or recruitment to “proscribed” groups is punishable with life imprisonment.

But besides the consequences of either designation by the ATC or proscription by the CA, Calleja said there was no difference and the council would still encroach on the powers of the judiciary.

He explained that the process of determining that certain individuals or groups are terrorist should be done before the courts where the respondents could participate. He said under the law, both the designation and the delisting of suspected terrorists would be “unilateral” on the part of a council under the executive branch of the government.

“Once you get tagged, there is no due process. They did not even ask you, they just did it on their own for whatever purposes,” he noted in a mix of English and Filipino.

Calleja pointed out that the IRR did not specify whether the ATC’s nine members should unanimously make the designation, or if only the vote of a majority – or even the decision of just one – was needed.

The law did not require the ATC to circulate or make public the list of designated individuals or groups. Olalia said “the IRR contains worrying provisions that supply, extend, enlarge and even add to the provisions of the law without statutory basis.”

Limits to freedom of speech

The IRR also did not clarify the definition of terrorism, which petitioners have claimed to be vague and overbroad.Section 4 of the law states that advocacy, protest, dissent, stoppage of work, industrial or mass action and other similar exercises of civil and political rights shall not be included in the definition of terrorism.

However, it contains a caveat that these will be considered terrorism when they are “intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”

Some petitioners have raised the likelihood that law enforcers would abuse and stretch this definition to construe protesters as posing a risk to public safety by holding outdoor gatherings amid the coronavirus disease 2019 pandemic. Other examples include accidents and scuffles that may occur when policemen clash with rallyists.

Rule 4.4 of the IRR merely reiterated what is stated in the law. Its sole addition is to state that “the burden of proving such intent lies with the prosecution arm of the government.” However, prosecution comes in only when the charges are filed.

The rule does not specifically prohibit law enforcers from using the caveat to detain individuals without charges and subject them to the unlimited warrantless arrests feared by retired senior associate justice Antonio Carpio and former ombudsman Conchita Carpio Morales, who filed the 12th petition challenging the law.

What the IRR does is to lay down a six-point guideline on who may be prosecuted for the new crime of inciting to commit terrorism.

The following should be considered under Rule 4.9 of the IRR: the context of the speech or writing, the position or status of the speaker in the society, the intent that other people commit terrorism, the degree of provocation, the reach and dissemination of the inciting speech or act, and the direct causation between the speech or act and the incitement.

Calleja was still not satisfied. “Who will decide that? Even if they put that there, paano kung ’yung nanghuli, ’yung PO1 (police officer 1), sa tingin niya pumasok diyan (what if the arresting police officer thinks it falls within the scope)?” he asked.

Warrantless arrests

The IRR attempts to tighten Section 29 of the ATA, which allows any law enforcement agent or military personnel duly authorized in writing by the ATC to take custody of a person merely “suspected” of committing terrorist acts and detain him for a maximum of 24 days without filing charges before the court.

This is longer than the three-day maximum period for a person to be detained without charges during extraordinary times of invasion or rebellion that warrant the suspension of the privilege of the writ of habeas corpus under Article 7, Section 18 of the 1987 Constitution.

Rule 9.1 of the IRR adds a condition for law enforcers to first submit to the ATC a sworn statement “stating the details of the person suspected of committing acts of terrorism,” before they can be authorized to conduct warrantless arrests.

Without the written authorization, the ordinary 36-hour maximum period under Article 125 of the Revised Penal Code will apply.

But in such cases, the period of detention without charges can be extended again to a maximum of 24 days if the agents submit a sworn statement and secure a written authority from the ATC before the lapse of the 36-hour period.

Sugay told reporters that this was meant to address fears that law enforcers would arrest people on mere suspicion, regardless of how congressmen chose their words. “It can be reasonably interpreted that any arrest based on Section 29 has to be based on probable cause,” he said.

This hesitance to rely on the literal meaning of the provisions was similar to how the Office of the Solicitor General defended the law before the SC.

The OSG said Congress did not really mean to replace the Constitution’s requirement of probable cause with mere “suspicion” for arrests. In its comment on the first few petitions, the government’s law firm said the provisions of the ATA should not be read literally.

Long wait for the SC’s actions

Rarely has any law been questioned as much as the ATA. Opposition lawmakers, lawyers, journalists, activists, youth groups, Muslims and Roman Catholic groups, and even social media influencers have flooded the SC with petitions from the first weekend it was signed by Duterte into law lawmakers.

Yet the SC has not granted their prayer for a temporary restraining order to stop the implementation of the ATA.

On Oct. 14, Justice Secretary Menardo Guevarra, a member of the ATC, disclosed plans to use as a “test case” for the ATA the Indonesian national arrested in Jolo, Sulu on Oct. 10 on suspicion that she was planning a bomb attack.

Nana Isirano, also known as Rezky Fantasya Rullie or Cici, was allegedly found in possession of an improvised explosive device disguised as a vest, container pipes and a nine-volt battery. Her arrest followed two suicide bombings carried out in Sulu by two women, one of them also an Indonesian and the other a Filipina widow of an Abu Sayyaf militant, that killed 15 people apart from the bombers in August.

Meanwhile, the National Task Force to End Local Communist Armed Conflict continued to accuse random groups critical of the government of ties to the Communist Party of the Philippines and its armed wing, the New People’s Army, without proof.

The military has also demanded that Facebook restore the accounts of supposed “advocacy” pages that the social media giant had taken down for violating its policy against “coordinated inauthentic behavior on behalf of a foreign or government entity.The said pages have been used to link certain politicians to the communists.

Olalia maintained that “this law must be nipped in the bud before it spreads its toxin all over the place.”

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