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June 4, 2020

Lawyers, Other Groups Terrified By Anti-Terror Bill. Here’s Why

Lawyers, Other Groups Terrified By Anti-Terror Bill. Here’s Why A protester in a vehicle flashes a streamer calling on the government to junk the proposal to amend the Anti-Terror Law in front of the House of Representatives on June 3, 2020. The rallyists said authorities should focus on mass testing for coronavirus disease 2019 instead of the terror bill. Photo by Michael Varcas, The Philippine STAR

Why are lawyers alarmed over the “imprecise and poorly worded” provisions of the proposed Anti-Terrorism Act of 2020 that President Duterte has prioritized in the middle of a raging pandemic?

To understand, try putting yourself in the shoes of a person who is mistaken for a terrorist or is accused of terrorism after criticizing the government.

A key sponsor of the bill in the House of Representatives, Assistant Majority Leader Jericho Nograles of Puwersa ng Bayaning Atleta party list, assured opponents of the measure that “activism is not terrorism” under the law that both chambers have approved and are set to send to Malacañang for President Duterte’s signature.

Speaking to “The Chiefs” on Wednesday night, June 3 on One News / TV 5, Nograles also invoked the presumption of regularity in government as he reassured the public that sufficient safeguards against abuse are in place in the bill.

Defense Secretary Delfin Lorenzana also stressed earlier on Wednesday that protesting against the government does not constitute terrorism as he defended the bill.

Rep. France Castro of ACT-Teachers party list, on the other hand, feared that the measure would aggravate red tagging of groups like hers. She told The Chiefs that the only remedy left is to challenge the measure before the Supreme Court once it is enacted into law.

Senate Bill No. 1083 (read the full text here) seeks to repeal and replace the Human Security Act (HSA) of 2007, the current Anti-Terrorism Law that Lorenzana on May 30 described as “no longer responsive to the evolving nature of the threats we face.

The Senate passed the bill on third and final reading on Feb. 26 and the House of Representatives adopted it at the level of the public order and defense committees on May 29.

On June 1, as public furor boiled over the suffering of workers due to the government’s restrictions on public transportation, Duterte certified the measure as urgent, allowing the administration-allied House majority to fast-track its passage.

On June 2, the House approved the bill on second reading during a session in which no amendments were entertained. Finally, on June 3, the House approved it on third and final reading with 173 votes in its favor and 31 against it; another 29 abstained.

The bill defines “terrorism” as the commission of certain violent acts in order to intimidate the public, spread a message of fear, destabilize society, create an emergency or undermine public safety. It also stated that one of the purposes of terrorism is to “provoke or influence by intimidation the government” or “any of its international organizations.”

Commission on Human Rights lawyer Rosselle Tugade posted on Twitter a comparison of the provisions in SB 1083 and the HSA Act of 2007.

Warrantless arrests, longer detention without charges

A person suspected of violating the proposed Anti-Terrorist Act may be detained for as long as 24 days without being charged with any specific case.

 One of the more striking amendments include prolonging the time during which a terrorism suspect may be kept in detention without being charged in court, on the “mere inkling of involvement and engagement in indefinable acts of terrorism,” as the National Union of People’s Lawyers (NUPL) put it.

 The Anti-Terrorism Law allows law enforcers to arrest suspects on the basis not of a judicial warrant, but a mere authorization from the Anti-Terrorism Council (ATC), which is composed of several Cabinet secretaries and security officials. Notably, these people are part of the executive branch of government and are not independent in theory like judges.

 Normally, under Article 125 of the Revised Penal Code, a detainee must be “deliver(ed) to the proper judicial authorities” within 12 to 36 hours, depending on the severity of the offense. Section 18 of the HSA allows law enforcers to arrest suspects without any judicial warrant and gives them three days counted from the moment of apprehension, arrest or custody without judicial warrant.

 Now, the bill proposes to extend the current three-day period almost five-fold to 14 calendar days. The period of detention may be extended for yet another 10 days maximum, if it is established that further detention is necessary to preserve evidence and prevent the commission of “another” terrorist act.

 No requirement to check for torture

 The bill deleted the current requirement for officers to present an arrested suspect to a judge, for assessment of whether the suspect has been subjected to physical, moral or psychological torture.

 Many crimes under the proposed Anti-Terrorism Law are punishable with life imprisonment – and would thus be nonbailable, unless the prosecution’s evidence is not strong enough to justify indefinite detention.

 The Concerned Lawyers for Civil Liberties (CLCL) says the extended period is unconstitutional. Article 7, Section 18 of the Constitution provides that even when the privilege of the writ of habeas corpus is suspended, the maximum period that a person can be detained without charges is three days. Otherwise, the person should be released.

 Lorenzana, however, said in an interview with CNN Philippines that law enforcement agencies wanted to use the long period to keep a suspect detained even if they have not yet established if the person is a terrorist.

 “We want a longer detention period so that we can hold the suspect if he is really a terrorist. He cannot commit a terror act,” Lorenzana said. “We do not have time to substantiate your charges. You cannot research. You cannot make any allegations. So, 36 hours are too short.”

 He called the 36-hour limit under the Revised Penal Code a “joke.”

 National Union of Journalists of the Philippines (NUJP) chair Nonoy Espina zoomed in on the nature of the warrantless arrests: “The Anti-Terror Council can determine probable cause to arrest and detain persons without judicial warrant? Isn’t that terror?

 Earlier, the National Task Force to End Local Communist Armed Conflict or NTF-ELCAC had accused NUJP, news websites Bulatlat and Northern Dispatch, media outfits Altermidya Network, Kodao Productions, Tudla Productions and Kilab Multimedia as well as student organizations College Editors Guild of the Philippines and Union of Journalists of the Philippines – UP Diliman of being “creations” of the Communist Party of the Philippines (CPP).

 NTF-ELCAC did not provide any proof for its red-tagging allegations, which were hinged on criticism of the government’s order for ABS-CBN to stop broadcasting.

 Under the bill, many of the officials who currently sit in the NTF-ELCAC would also form part of the ATC. News5 chief correspondent Ed Lingao, co-host of The Chiefs and a veteran of wartime reporting, pointed out: “This early, we already have members of the Cabinet and their undersecretaries and assistant secretaries red-tagging civil society groups and media organizations as terrorists or terrorist-affiliates.”

 Bagong Alyansang Makabayan secretary-general Renato Reyes suspected that the ATC would be composed of former generals who would have unbridled power to order arrests and freeze assets without due process. “No hearings. No chance to defend yourself. They’re not even a court. How is this not wrong?” Reyes said.

 Travel ban and wiretapping

 Another concern is that Section 30 of the proposed bill would limit the persons who can have access to a detained terror suspect.

 Religious ministers and members of accredited national or international non-government organizations – who are normally allowed to make visits under Republic Act No. 7438 or the law defining certain rights of person arrested, detained or under custodial investigation – are excluded from the list. The visitors are limited only to the legal counsel, family members or relatives, and a physician of choice.

 Another important change is that Section 16 of SB 1083 seeks to expand the list of persons who may be subjected to surveillance or wiretapping. It wants to include persons who are merely “suspected” of committing any of the crimes penalized under the anti-terrorism law. The period of surveillance would also be doubled to 60 days from the current 30.

 The definition of “surveillance activities” under Section 3(i) of the bill includes the tracking of individuals, and not just members of organizations declared by the courts as terrorist. Tugade notes that the provision should be subjected to the “strict scrutiny” test by the courts because of how it affects the right to privacy of individuals.

 CLCL noted that “the general tone of the bill supports secret surveillance,” as the bill would require that the court be informed only upon the filing of charges. “In short, subjects of surveillance and ‘suspected’ persons will have already been hauled to jail before they are made aware of the actions against them.”

 Additionally, restrictions on the right to travel would now be part of a Congress-authored law, at least for terrorism suspects.

 Even before a case is filed in court and the investigation is still pending, the prosecutor may seek a precautionary hold departure order from a Regional Trial Court under Section 34 of the bill. The PHDO was first introduced by the Supreme Court through A.M. No. 18-07-05-SC on Aug. 7, 2018.

 Chilling effect

 What worries lawyers, civil libertarians and activists the most is the “chilling effect” caused by the inclusion of new crimes – something that they fear can be easily abused and wielded against dissidents and ordinary people who dare complain about the government.

 These are the new crimes of “proposal to commit terrorism” under Sections 3(g) and 8, “threat to commit terrorism” under Section 5, “planning, training, preparing and facilitating the commission of terrorism” under Section 6, “inciting to commit terrorism” under Section 9, and “recruitment to and membership in a terrorist organization” under Section 10.

 Specifically, “inciting to commit terrorism” is defined as committed by a person “who, without taking any direct part in the commission of terrorism, shall incite others to the execution” of violent acts considered to be terrorist. Methods include “speeches, proclamations, writings, emblems, banners or other representations tending to the same end.”

 “Preparing” and “recruitment and membership” are penalized with life imprisonment without benefit of parole or good conduct time allowance, while “proposal,” “threat” and “inciting” are punishable by 12 years’ imprisonment.

 Section 4 of the bill does say that terrorism “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights.”

 But it also includes the catch that acts in the exercise of rights “are not 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.” Like many other provisions of the bill, it is not made clear how expressions of dissent can be cleared as having no intention to cause harm.

 Tugade warned that this “potentially produces a chilling effect on or violates the freedom of expression.”

 Meanwhile, the criminalization of “recruitment to and membership in a terrorist organization” may be prone to abuse because of the vague definition of the term “terrorist organization,” and may potentially infringe on the freedom of association and expression by legitimate groups, she said.

 She noted that the crime of “preparing” may include “even mere possession of objects or documents deemed connected to acts of terrorism.”  She also flagged the vagueness of the “threat” provision because “it could give rise to various interpretations that may include a wide range of acts.” She added that the term “training” could be used as an excuse to “crack down on legitimate organizations that provide educational discussions.”

 CLCL – which counts deans Manuel Quibod, Chel Diokno, Rose-Liza Eisma-Osorio and Tony La Viña as well as lawyers Neri Colmenares, Ted Te, Erin Tañada, Jojo Lacanilao and Kristina Conti as its convenors – pointed out that the government is not new to targeting personalities “with color and force of law.”

 It noted that the premise of the Anti-Terrorism Law shifted from the effects of terrorism on the people toward the effect of opposition to the government.

 “The danger therein lies with how the government can construe legitimate acts of dissent or opposition within these definitions – it gives the government almost free rein in determining who are ‘suspected terrorists.’ Even ordinary citizens airing their grievances against government on social media may fall within its ambit,” CLCL pointed out.

 The Ateneo Human Rights Center sees the bill as a “tool for repression rather than for thwarting terrorism.” It adds: “While any form of terrorism is unacceptable, national security can never be at the expense of the fundamental rights and freedoms enshrined in the Constitution.”

 The Association of Law Students of the Philippines (ALSP) stressed that “individuals and groups have the basic right to gather and engage in peaceful demonstrations and protests by virtue of their freedom to peaceful assembly.”

 “The Philippines, in fulfillment of its responsibilities as signatory to several international human rights treaties, must promote and protect the enjoyment of basic human right and the lawful exercise of fundamental freedoms. The right to peaceably assemble is also protected and sanctified by no less than the 1987 Philippine Constitution,” ALSP said.

 Diokno, a losing opposition senatorial candidate in the May 2019 elections, stressed: “Ang kailangan natin ay mas demokratiko at makataong mga batas (What we need are more democratic and humane laws).”

 Sana patuloy nyo kaming samahang manindigan laban sa terorismo ng estado – lalo na ’yung klase na noon pa natin nakikita sa admin na ito (We hope you will continue to join us in standing up against state terrorism – especially the kind that we have long seen in this administration),” Diokno said.

 Less accountability for authorities

 SB 1083 will also make the punishment for abusive officers in the Philippines much lighter.

 The penalty for unauthorized or malicious surveillance activities would be fixed at 10 years’ imprisonment instead of the current 10 to 12 years. The same change would also apply in case of failure to notify a judge of the arrest of a terrorism suspect.

 Officers who cause or allow the escape of a detained person would be punished by imprisonment of 10 years instead of 12 to 20 in the case of escaped convicts and six to 12 years in the case of detainees who are not yet convicted by final judgment.

 The reduction of penalty is much more significant for the crime of knowingly furnishing false testimony, forged documents or spurious evidence in investigations or hearings. Any person who does this will face a six-year sentence – two to three times shorter than the current 12 to 20 years.

 The crimes of public officers who abuse the powers under SB 1083 will be punished less than those committed by accused individuals – something that CLCL found “aggravating.”

 The bill also deleted the liability of P500,000 in damages for each day that a suspect is detained without warrant for an unproven charge of terrorism, or that an acquitted suspect’s properties and funds were seized.

 The NUPL said the “imprecise and poorly worded” provisions of the proposed law “give the security forces, from the top honchos to those on foot patrol, the license to commit rights violations with impunity.”

 “The police and the military are given much elbow room to subject to their own interpretations the concepts and adjectives found in these provisions,” NUPL said.

 “Should this bill become a law, we should then expect ‘uninvited’ guests peering into our private spaces. This clearly violates our right to privacy enshrined in our Bill of Rights. Additionally, this proposed legislation legalizes red-tagging of organizations on suspicion of engaging in abstrusely termed ‘terrorist acts.’ Thus, it essentially renders nugatory our freedom of association,” it added.

 Lorenzana, however, brushed aside these concerns and described the lighter penalties for abusive law enforcers and public officers as “enough stringent sanctions.”

 Last-ditch effort

 On June 2, several congressmen made a last-ditch attempt to tweak the Anti-Terrorism Act by including language that explicitly limit and specify the kinds of speech that would be considered as “acts of terrorism” and avoid criminalizing dissent.

 For instance, Magsasaka party-list Rep. Argel Joseph Cabatbat proposed that spontaneous violence during protests should not be considered terrorism “without proof that it is premeditated or that it is coordinated.”

 Cabatbat also wanted to exclude “acts due to outbursts of emotions or isolated acts of people who go berserk due to political frustrations, medical conditions or other personal motives.” He said the law should state that these instances are “considered as ailments of our society that need to be addressed through reforms or constructive legislation to alleviate the condition of our poorest sectors.”

 Rep. Jericho Nograles, brother of Cabinet Secretary Karlo Alexei Nograles, rejected all amendments in behalf of the public order and defense committees.

 “The committee wishes to pass the bill without amendments,” Nograles said. “I am not authorized to accept the amendments in behalf of the committee, and the committee chairperson has instructed that no amendments will be accepted.”

 Despite worries that the overbroad provisions of the bill would be abused, he argued that its protection of the constitutional right to engage in activism was implied and there was no need to make it explicit. “Those actions are already implied – that they are not acts of terrorism,” he said.

 Quezon City 4th District Rep. Jesus “Bong” Suntay, who chairs the House committee on human rights, stressed that he agreed “there should really be a law to protect our government from acts of terrorism.”

 After Nograles rejected his proposal to amend the provisions on warrantless arrests, Suntay said he would have to vote against the bill because of “its clear and blatant violations of the provisions of the Bill of Rights.”

 Safeguarding rights a hindrance?

 During the session, proponents of the bill were more focused on the notion that the safeguards contained in the current HSA discouraged authorities from pursuing prosecutions for terrorism.

 “In the past 13 years, there has been sparing use of the law because of much restrictions on the police and military… it did not address the problem of terrorism,” Muntinlupa Rep. Ruffy Biazon said in his sponsorship speech.

 Senate President Vicente Sotto III said “terrorists or their supporters are the only ones who will be afraid of the bill.”

 Presidential spokesman Harry Roque argued that the Constitution would itself still provide enough safeguards even if the Anti-Terrorism Law stoked fear that the rights enshrined in the Charter would be transgressed.

 “Despite the law, the Constitution remains as the fundamental guarantee of freedom of expression and the entire jurisprudence that has grown from the Constitutional provision on freedom of expression,” Roque said.

 He argued that unless there is a clear and present danger that the State has the right to prevent, “the courts will not intervene and will now uphold freedom of expression.”

 “Unless the state can establish that – and I think in the case of terrorists the state can easily do so – then freedom of expression will not be suppressed or infringed upon because according to a decision of the Supreme Court, it enjoys a very high position in the hierarchy of rights – even superior than property right,” he said.

 Roque argued that terror suspects could petition the courts for a writ of amparo should public officers abuse the law.

 Olalia, however, said the assurances that only true terrorists would be targeted would not be enough, in light of the opportunities for abuse.

 “We have mandatory rights of the arrested and accused in the Constitution, the laws and rules; a strict law against torture; a comprehensive law against disappearances; rules on habeas corpus and the novel amparo. We are a signatory or party to all but one international instrument on various human rights, and we even have a bilateral agreement on human rights. And yet the violations continue and are rampant and impunity prevails. And we are assured there are enough safeguards in the Anti-Terrorism Bill anyway?” he pointed out.

 No draconian provision?

 Roque, once a human rights advocate before deciding to be Duterte’s mouthpiece, defended the timing of Duterte’s certification of the bill’s urgency. Roque noted that even during the 17th Congress, there were already moves to revise the Anti-Terrorism Law. He also cited the country’s experience with Maute terrorists in Marawi City and the Abu Sayyaf in Sulu.

 “I don’t think the timing is off because Marawi is still being rebuilt. So the aftershocks of modern-day terrorism are still being felt in Marawi. And of course the Sulu attack happened and you saw how gruesome the murder of our soldiers,” he said. “So I don’t think it is something that just cropped up. It’s a problem that we have perennially faced.”

 Roque was one of the petitioners who had challenged the constitutionality of several provisions in the HAS of 2007 before the Quezon City Regional Trial Court. The government questioned the RTC’s denial of its motion to dismiss the case, and the Supreme Court ruled in the government’s favor in a Sept. 24, 2013 decision.

 The SC’s decision did not directly tackle the constitutionality of the terrorism law’s provisions. Instead, it ruled that Roque and his fellow petitioners failed to show that they “are left to sustain or are in immediate danger of sustaining some direct injury as a result of the enforcement of the assailed provisions.”

 In short, Roque and his fellow petitioners simply failed to present a “real event” at the time to allow the petition for declaratory relief to prosper. The legal questions hounding the anti-terrorism law would thus seem far from answered.

 Former chief justice Maria Lourdes Sereno, in a statement on June 3, said it was “unfortunate” that the SC “never had the chance to pass upon the constitutionality” of the current HSA. But she said the upcoming enactment of SB 1083 “uncannily recalls for me the dark days of Macros’ Martial Law,” which dictator Ferdinand Marcos imposed through Proclamation No. 1081.

 “Our people must keep in mind that not a single claim of the long-term benefits of the martial regime has been validated by the Supreme Court,” Sereno said. “To the contrary, the wide-scale plunder and suffering of the people and the economy are sufficiently recorded in several of its decisions.”

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