Anti-Terrorism Bill: More Monstrous than the Monster Itself [1] 

The proposed law poses a grave danger to the rights and freedoms of the people whom it purports to protect. The draconian measures will create a monster more monstrous than what it claims to eliminate. 

By Edre U. Olalia
Vice President
International Association of People’s Lawyers (IAPL)
Posted by Bulatlat

We will go straightaway to a textual legal examination of selected provisions of the proposed Anti-Terrorism Bill (ATB) pending in the House of Representatives [2] and attempt to relate its effects on civil and political rights.

The ATB defines terrorism as:

1) the premeditated use, threatened use, actual use 2) of violence, force, or by any means of destruction 3) perpetrated against persons or properties 4) with the intention of (a) creating or sowing a state of (i) danger, (ii) terror, (iii) panic, (iv) fear, or (v) chaos to the general public, group of persons or particular person, or of (b) coercing or intimidating the government.[3]

How then, it may be asked, is this different from murder, homicide, parricide, infanticide, tumultuous affray, mutilation, physical injuries, rebellion, sedition, assault, robbery, theft, arson, kidnapping, coercion, threats, rape, malicious mischief, hijacking, destruction of property, piracy, etc.? Or even abortion, duel, abandoning a minor, drug pushing, obstruction of traffic, hacking etc. already existing in the Revised Penal Code and other special criminal laws?  This makes the definition potentially and actually superfluous as it covers the definition and essential elements of other crimes.

The definition is also overbroad and vague as it is open to subjective interpretation and, therefore, abuse.  It includes even the “threatened use of violence, force or by any means of destruction” which may be conceptually and practically problematic especially if measured against the three recognized stages of executing a crime i.e. attempted, frustrated and consummated.

It does not legally define with clarity concepts like “danger, terror, panic, fear, or  chaos,” concepts that may be amorphous and expansive, and therefore, subject to the unbridled discretion of peace officers. Note also that it covers an act even if the state of “danger etc.” is intended or affects only a “particular person.” Finally, it covers the blanket and catch-all intention of “coercing or intimidating the government.” This may be used against dissenters, oppositionists, critics, advocates, lobby groups and legitimate national liberation movements.

The ATB further on tries to define how terrorism is committed.[4] One disturbing definition of a predicate act is that of “(3) threatening or causing serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than a result of lawful advocacy, protest, dissent or stoppage of work;”[5]

This, in our view, is an open and direct threat by the State toward legitimate political activity that does not agree with its pronouncements, programs, and policies and may even cover an otherwise innocuous daily behavior or conduct. Also, the term “essential service, facility or system” may be overextended to cover just about anything that the State deems “essential”. This may be akin to the arbitrary and questionable inclusion of even non-vital industries to justify the compulsory assumption of jurisdiction by the State in labor disputes for industries “affected with national interest.”

Finally, the qualification “other than [as] a result of lawful advocacy, protest, dissent or stoppage of work” is meaningless and impractical. While obviously attempting to diffuse well-grounded criticism that this might curtail basic civil rights in the Philippine Constitution like freedom of speech and expression and the freedom of peaceful assembly and the right to seek redress for grievances, this seems self-contradictory.  Under the cited provision, when an advocacy, protest, dissent or stoppage of work results in “threatening or causing serious interference with or serious disruption of an essential service, facility or system,” then such advocacy etc., from the point of view of the State through its penal laws, becomes unlawful and, therefore, excluded from the exception.

Besides, there are already laws or provisions in laws (e.g. B.P. 880 or the Public Assembly Act, the Labor Code and the Revised Penal Code) that easily make what otherwise is legitimate advocacy etc. to become unlawful (e.g. no permit-no rally, no strike vote or failure to observe cooling off period in labor strikes; and speeches or materials that may be branded as seditious or inciting to sedition.)

In fact, all the predicate felonies and acts mentioned in the ATB[6] may be covered by existing penal laws and international covenants (depending on the particular elements of the act), making them superfluous and unnecessary. Hence, what ordinarily were just common crimes before are now magnified to constitute acts of “terrorism” if they are committed and could be regarded under the purposes mentioned in the dubious definition above. This puts to naught the constitutional principle against double jeopardy.

For instance, the predicate felony or act of  “threatening or causing death or serious bodily harm to a person or persons or deprivation of liberty, or to cause a serious risk to the health or safety of the public or any segment of the public”[7] may invariably be covered by murder, homicide, parricide, infanticide, tumultuous affray, abortion, duel, mutilation, physical injuries, rape, abandoning a minor, rebellion, sedition, assault, kidnapping, destruction of property, malicious mischief and even drug pushing etc.

Besides, all the enumerated felonies and acts in the ATB as predicate crimes must of necessity involve, directly or indirectly, in varying degrees “the premeditated use, threatened use, actual use of violence, force, or by any means of destruction  perpetrated against persons or properties” and invariably are always accompanied or characterized “with the intention of” either “creating or sowing a state of danger,  terror,  panic, fear, or chaos to the general public, group of persons or particular person,  and/or, in some cases, “of coercing or intimidating the government.” Otherwise, without such intention, the criminal intent may be wanting. Hence, the coverage is redundant and makes the definition indeed superfluous.

To further show the danger of the coverage of the ATB, other predicate felonies and acts may be mentioned. Thus for instance, “attacking or threatening to attack, or transmission of virus in cyberspace, or committing any other unlawful acts against networks, servers, computers and other information and communication systems [8]” or “willful destruction of natural resources such as forests or marine resources, oil spillage, and other similar acts of destruction against the environment that threatens ecological security[9]” are predicate acts of terrorism.

These provisions on “cyberterrorism” and on “oil spillage” show the overextended application of the proposed bill to comparatively less grievous and heinous acts. It is disproportionate to the possible varying degrees of gravity of the offense i.e. even simple technical offenses or unintentional or negligent acts may now be considered a way of committing “terrorism.”

The draconian nature and disproportionateness of the penalty of life imprisonment to death and a fine of P10 million[10] are underscored given the broadness, vagueness and superfluity of the conceptual definition of terrorism and how it is committed.

The ATB also penalizes the participation, facilitation, and contribution to any “terroristic activity” [11] Again, given the broad, vague and superfluous conceptual definition of terrorism and how it is committed, this is draconian and is even expanded not only to “participation” but also “facilitation or contribution,” terms which are undefined and may be subjectively and arbitrarily interpreted.

For instance, “establishing or maintaining or serving as, contact or link, with any person or persons that are known to have pursued or are pursuing terroristic activities[12]” is overbroad because it would penalize even contacts or links which are unintentional or unknowing.

Also, the ATB would penalize the “recruiting in order to facilitate or commit x x x an act or commission outside of the Philippines that, if committed in the Philippines would be an offense under this Act[13]” and hence overextends Philippine criminal  jurisdiction and violates principles and rules on non-extraterritorial application of penal laws.

Moving further on, the ATB proscribes organizations and membership in organizations that supposedly commit or participate in “acts of terrorism,”, “prepare for, promotes or encourages terrorism” or “is otherwise involved in terrorism.” [14] This is virtually the Philippines’ own “terrorist listing” following the pattern of the U.S., European Union and other countries.

A strong argument can be presented that it is against the constitutional ban on bills of attainder i.e. because it punishes mere membership in a “proscribed organization” without such “affiliate or member” being  tried for the alleged particular acts of such organization. It may be argued that it practically singles out a class or group by mere legislative fiat instead of a judicial determination where punishment is pronounced only after trial. Indeed, this is tantamount to guilt by association and violates the presumption of innocence.

And given the vague and expansive definition of “terrorism”, it is even more dangerous that the ATB penalizes “any person who has personal knowledge or information of any of the acts punished and conceals or does not disclose the same as soon as possible to the government.”[15] This may be seen as another imminent threat to journalists in the exercise of their profession and even to ordinary civilians who have inadvertently heard or was informed of a “terrorist act.”

Perhaps what is instantly the most concrete objectionable provision of the ATB is on the detention of a person arrested without warrant. [16]  Under the ATB, the person arrested may be detained without charges being filed in court for 30 full days (compared to the existing period of a maximum of 36 hours only which doubled the theoretical maximum of 18 hours during Marcos).

Based on experience, this situation makes it susceptible to violation of one’s rights to counsel, visit by relatives, to be informed of the right to remain silent and counsel and opening further the opportunity of forced or coerced extra-judicial confessions, maltreatment, torture and even summary execution. This, despite the formal recognition in the ATB of rights under RA 7438 (An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation) which are not being followed anyway, not to mention that no one has been punished under this yet. And considering that the ATB makes the offenses under it non-bailable even more highlights the repressive nature of this provision.

And there is more. Under the ATB, any person who serves as a witness for the government or provides evidence in a criminal case involving any violation of the Act, shall – without qualification – be immune from any criminal prosecution.[17]

Observers think that this may make every human rights violator happy. All they have to do is to testify in the trial of the person violated and they may be exonerated from any liability arising from any violation of civil and political rights. The immunity is absolute and defeats the formal protection of RA 7438.

The ATB now would make the Anti-Money Laundering Act applicable to “acts of terrorism.”[18]  The provision that “deposits or investments with any banking institutions or non-bank financial institutions may be inquired into or examined without prior court order” is a clear invasion of privacy and property rights and is open to arbitrary application because there is no judicial process involved.

Similarly, the ATB would make the Anti-Wiretapping Act applicable.[19] But the ATB even expands the scope of crimes that may be subject of wiretapping. Previously, the situation only applies as an exception to treason, espionage, provoking war and disloyalty, piracy, mutiny, rebellion, sedition, kidnapping and other offenses against national security. In fact, under the ATB, no court order to wiretap is necessary if there is a “written consent of a party to the communication to be monitored or recorded.” This is both ridiculous because no one will intelligently agree voluntarily to such wiretap and dangerous because the consent may easily be manufactured, fabricated or coerced or a poseur may connive in the set-up.

The ATB also would now legalize and provide impunity for the installation, use and retrieval of surveillance device.[20] The application to wiretap can be made before the “executive judge of any Regional Trial Court.” This is open to abuse and collusion because the order to install, use and retrieve a surveillance device may be applied and granted by a judge located remotely outside its ordinary territorial and judicial jurisdiction and considering that the period to wiretap is 60 days extendible for another 60 days.

To provide further impunity, the ATB gives virtual, total, absolute immunity because “a good faith reliance on a court order under this Act, is a complete defense against any civil or criminal action brought under this Act or any other law.” This adds to the existing shield of immunity of state agents against abuse of power because of the longstanding principle in evidence of “presumption of regularity in the performance of official functions.” This is also an invitation to abuse and violation as there is a very lenient, light and liberal penalty of 6 months to 6 years imprisonment for the very dangerous and almost irreparable act of unauthorized disclosure of information taken from wiretapping.

Finally, the ATB makes inapplicable the opportunities for probation and plea-bargaining [21] This further reflects the draconian character of the proposed legislation and discourages remorse, reformation and rehabilitation of those charged and convicted of acts covered.

From the sketch above, the ATB is vague, broad and superfluous and gives unbridled discretion to state agents and is, therefore, against substantive due process.  It is clear that the ATB violates so many constitutional and legal rights and provisions including the right to due process, presumption of innocence, against unreasonable searches and seizures, privacy of communication and correspondence, free speech, assembly, association, right against bills of attainder and other rights. These are rights recognized not only in the 1987 Constitution but also in international instruments such as the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights.

It also fails to distinguish the legitimate acts of groups involved in an armed conflict under the standards of international humanitarian law. It ominously cannot address the atrocious terrorist acts of agents of the State and of foreign governments, governments that have been pressuring the Philippine government to follow its dubious “war on terror.”

There is already an abundance of laws in place that can well cover felonies that cause violence to life, liberty and property. What is more significant to note is that there are still subsisting laws, orders and jurisprudence – enacted and issued in the name of “peace and order” and “national security” – that seriously endanger and even engender violations of the people’s civil and political rights.

The ATB is also an open, contemptuous and flagrant violation of the 1998 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) between the government and the National Democratic Front of the Philippines (NDFP). In that landmark document, the government expressly committed to repeal repressive laws, orders, issuances and jurisprudence.[22] Instead of acting for their immediate and effective repeal, it is now adding insult to injury by pushing for draconian “anti-terrorism” legislation far worse than what already exists. It is not consistent with its common commitment that “all necessary measures shall be undertaken to remove the conditions for violations and abuses of human rights and to render justice to and indemnify the victims.”[23]

We should reexamine and oppose this proposed Act, or any legislation of a similar character, as it is the kind of law that potentially and actually erodes further the civil and political rights of the people and provides further legal impunity for their violations. It makes the rights and freedoms of the people secondary to purported “peace and order” and “national security” considerations and puts a legal imprimatur on the already factual and legal impunity of violators of civil and political rights.

Concretely, coupled with other proposed measures like the national and community ID system, and in the context of present political and economic realities and the people’s discontent, the brazen and ruthless violations of democratic rights and roving killings even of our brethren, this “anti-terrorism” legislation poses a further intrusion and serious threat to the rights of individuals, the people, legal formations as well as genuine national liberation movements.

In conclusion, the proposed law poses a grave danger to the rights and freedoms of the people whom it purports to protect. The draconian measures will create a monster more monstrous than what it claims to eliminate.  Posted by Bulatlat 

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[1] Paper presented before the Forum: “Attack against Lawyers and Civil Liberties: Legal and Political Implications,” 18 April 2005, University of the Philippines (UP) College of Law, Sponsored by the Pro-People Law Network (PLN), Public Interest Law Center (PILC) and Young Lawyers League for Civil Liberties (YLL).

[2] Using the latest consolidated House of Representatives Technical Working Group Draft of the 13th Congress as of 24 February 2005 entitled “An Act Defining Terrorism. Establishing Institutional Mechanisms to Prevent and Suppress its Commission, Providing Penalties Therefor and for Other Purposes.” As of 15 March 2005, the Senate has not yet consolidated the different bills on the subject matter (Senate Bill Nos. 735, 831, 871, 1736 and 1768 introduced by Senators Villar Jr., Lacson and Enrile, J. Estrada, Magsaysay Jr. and Lim, respectively).

[3] Section 3.

[4] Section 4.

[5] Paragraph 3, Section 4.

[6] Paragraphs 1-10, Section 4.

[7] Paragraph 1, Section 4.

[8] Paragraph 8, Section 4.

[9] Paragraph 9, Section 4.

[10] Last Paragraph, Section 4.

[11] Section 6.

[12] Paragraph 1, Section 6.

[13] Paragraph 5, Section 6.

[14] Section 7.

[15] Section 9.

[16] Section 10.

[17] Section 11.

[18] Section 13. R.A. 9160 or “Anti-Money Laundering Act of 2001,” as amended by RA 9194.

[19] Section 14. RA 4200 or “Anti-Wiretapping Act.”

[20] Section 15.

[21] Section 17.

[22] Articles 6, 7 and 8, Part III, CARHRIHL.

[23] Article 4, Part III, CARHRIHL. 

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