At first glance there appears to be no conflict between the HSA and the other laws punishing the predicate crimes which could constitute “terrorism” if “sowing or creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.”
“But precisely, some of the predicate crimes in Sec. 3 of the HSA necessarily and essentially already result in or include such ‘sowing and creating a condition of widespread and extraordinary fear and panic among the populace’ (as) among the essential elements, (like) rebellion, mutiny, and crimes involving destruction,” Olalia said.
The other question is how to determine whether “a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand” has been created. There are no clear standards in the HSA defining the existence of such a condition.
As Bagong Alyansang Makabayan (Bayan or New Patriotic Alliance), et al put it in their petition filed before the Supreme Court, of which a copy was received by Bulatlat:
“But when are those specified felonies or offenses deemed to have sowed and created a condition of widespread and extraordinary fear and panic among the populace? Otherwise stated, when are the enumerated acts deemed not to have sowed and created a condition of widespread and extraordinary fear and panic among the populace?
“To ‘sow’ means to scatter or place, introduce into an environment or place in or on the ground for future growth while ‘create’ means to cause to exist or bring into being. It must be borne in mind that what needs to be sowed and created under the Act is only a condition of widespread and extraordinary fear and panic. The criminal intent (insofar as those punished under the Revised Penal Code) in relation to resultant widespread and extraordinary fear and panic (and not merely a condition of such) is not even needed as an essential element, unlike in other felonies where deceit (dolo) or deliberate intent must be present (Article 3, Act. No. 3815 or the Revised Penal Code).
“Hence, under this amorphous definition there is no room left for anyone accused or suspected of this crime to dispute the non-existence of a mere condition of widespread and extraordinary fear and panic as one’s criminal intent is immaterial or irrelevant to the determination of culpability. How can anyone then argue that a particular crime did not create a condition of widespread and extraordinary fear and panic among the populace? Is the existence of actual fear and panic not necessary to be created or sowed by one’s act? Will a ‘condition’ of the same suffice or necessarily mean there is fear and panic?”
There is also a question on what is meant by an “unlawful demand.” There are no clear parameters on which demands are lawful and which are not. As Bayan, et al stated in their petition:
“(W)hat exactly is the legal meaning of ‘unlawful demand’? Who determines this? Are there clear standards to measure or determine this? Is this equivalent to illegal? Or illegitimate? What about demands during legitimate strikes, pickets, mass actions which may be ‘unlawful’ because they lack some procedural requirement (e.g. strike vote or cooling off period in strikes or permits in rallies), would these be ‘unlawful’ too? What about a call for boycott of products or the non-payment of taxes, would they be ‘unlawful’ too?
“Or is it the character of the demand alone that makes it ‘unlawful’ even if the act or activity is lawful or legitimate (e.g. workers going on strike to demand a non-legislated wage increase, massive street demonstrations by sections of the populace calling for the resignation or ouster of a sitting public official)? If so, does this not curtail freedom of speech and expression, assembly and the right to redress of grievances?”
“(This is) precisely why our position is that (the law) is so broad and vague that it is susceptible (to) and invites arbitrary and even malicious interpretation,” Olalia said. “The HSA does not define these terms with sufficient clarity and specificity. It leaves so much discretion to the police officer, Anti-Terrorism Council (ATC), Department of Justice (DoJ) and eventually the courts to determine these without any sufficient standard in the law itself, contrary to the principles of due process and non-delegation of legislative powers, among others.”
For these reasons, Olalia said, he is of the view that the HSA is not only unnecessary but even dangerous.
“That has been our position ever since this bill was proposed in 2002,” Olalia said. “More fundamentally, it does not and will not stop terrorism by individuals and groups but encourages, emboldens and legitimizes violation of civil and political rights and freedoms of the people, meaning state terrorism.” (Bulatlat.com)
