The National Union of People’s Lawyers, a newly-formed organization of over 100 lawyers, said the Anti-Terror Council, which it calls a virtual civilian-military junta, usurps the power of the judiciary to determine probable cause and issue warrants, and violates the people’s right to due process; while Memorandum Circular 108, which is being used by Defense and military officials to justify their non-appearance in Senate hearings on the Hello Garci tapes, is a transgression of the legislative power of Congress, and violates the people’s right to information.

BY GERRY ALBERT CORPUZ
Bulatlat
Vol. VII, No. 31, September 9-15, 2007

The National Union of People’s Lawyers (NUPL), a newly formed organization of over 100 lawyers nationwide, described the Anti-Terror Council (ATC), which was formed by Malacañang to oversee the implementation of the Human Security Act (HSA), as a powerful military-civilian junta capable of violating the basic human rights and civil liberties of the people on a day-to-day basis, and in gigantic proportions.

The ATC is composed by Executive Secretary Eduardo Ermita, who heads the council, Justice Secretary Raul Gonzalez, National Security Adviser Norberto Gonzales, Defense Secretary Gilbert Teodoro, and Interior Secretary Ronaldo Puno. Among the support agencies are the National Intelligence Coordinating Agency, the Intelligence Service of the Armed Forces of the Philippines, the National Bureau of Investigation (NBI) office of Civil Defense and the Philippine National Police (PNP).

NUPL preparatory committee member Atty. Neri Javier Colmenares said, “Under Section 54 of the anti-terrorism law, the council has the vague yet powerful function of coordinating national efforts to suppress and eradicate acts of terrorism” and “mobilize the entire nation” against terrorism. This allows the ATC not only to deputize the entire government machinery, but also the power to force information and other forms of cooperation from media entities, bank officials and other private bodies.”

Atty. Colmenares further said, “Paragraph 5 of Sec. 54, also empowers the ATC to freeze the funds, property …. and records belonging to persons suspected of or charged with …conspiracy to commit terrorism. This not only violates the Constitution but existing laws themselves, because it actually grants the ATC the quasi-judicial function to freeze assets of mere suspects. In the hands of politicized cabinet members, this is a powerful tool not only to harass dissenters and the media, but also political opponents.”

The NUPL also said the ATC may also have been surreptitiously granted the power to determine probable cause, a power reserved for the prosecution and the courts, under Section 18 by giving it the power to ‘authorize’ the police and the military to arrest suspects without warrant:

“This badly drafted provision grants the police and the AFP the power to arrest people without warrant provided they are ‘authorized in writing’ by the ATC, another transgression of the judicial power to determine probable cause and issue arrest warrants,” Atty. Colmenares added.

The NUPL said the ATC, as a virtual military-civilian junta, is empowered under Sec. 54 (4) of the anti-terror law with sweeping powers to ‘establish and maintain comprehensive data-base information on terrorism, terrorist activities and counter terrorism operations.

“This virtually grants it the power to maintain dossiers on anybody in the Philippines considering the very broad definition of terrorism. The vague definition of ‘conspiracy to commit terrorism,’ could include any one,” the human rights lawyers’ group added.

“The NUPL plans to use the writ of habeas data, once the rule is promulgated by the Supreme Court, to temper these sweeping powers of the ATC by allowing those in the ATC database, the recourse to correct and even destroy patently inaccurate data and analysis gathered through surveillance,” Atty. Colmenares added.

The NUPL asserted that the writ of habeas data is a constitutional concept which started in Brazil intended to protect the “image, privacy, honor, information self-determination and freedom of information of person”. Any citizen may file a complaint under this writ to find out what information is held by government on his or her person.

The group said the writ of habeas data allows complainants to ask the Court, should to they find the data inaccurate and maliciously detrimental to their honor, image or security, to order that the data be rectified or even destroyed. Under the Sec. 16 of the HSA a subject of unlawful surveillance can only access the information illegally obtained but cannot demand its destruction.

The NUPL also said opposition figures, members of the media, and human rights lawyers, may therefore demand from the ATC a copy of their dossier to see if the ATC data base contains information that is incorrect or erroneously and maliciously fed by agencies intending to harass the subject. The writ plays an important role in a situation when the constitutional right to information is not respected through mechanisms such as EO 464 and the constant defense of ‘confidentiality’ and ‘national security’ by the government.

The NUPL will also take a lead role in the prosecution of those accused of human rights violations such as Gen. Jovito Palparan, who was recently charged with responsibility for the enforced disappearance of the two UP students. Enforced disappearance is a ‘continuing crime’ as long as the disappeared is not surfaced and the perpetrator persists in ‘denying the fate or whereabouts’ of the disappeared.

MC 108 has no legal basis

The NUPL likewise scored the equally controversial Memorandum Circular 108 (MC 108), which was invoked by Defense Secretary Gilbert Teodoro and eight other Armed Forces of the Philippines (AFP) generals to justify their non-appearance in last Friday’s Senate hearing on the Hello Garci wiretapped scandal, as having no legal basis, therefore illegal and constitutional.

In a press statement, the lawyers’ group asserted that the Supreme Court, in its decision nullifying Executive Order 464, has upheld the power of Congress to summon executive officials in congressional inquiries in the case Senate President Franklin Drilon vs. Executive Secretary Ermita, when it declared that “when the inquiry in which Congress requires their appearance is in aid of legislation under Article VI, Section 21, the appearance is mandatory. While the executive branch is a co-equal branch of legislature,
it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.”

The NUPL said if President Gloria Macapagal-Arroyo wants to prohibit officials from appearing, she must personally or through Secretary Ermita claim confidentiality through the principle of executive privilege. The NUPL said the executive privilege as required by the SC decision on EO 464 should convince the Senate if the issue or issues on hand constitute a state secret, part of an internal Cabinet meeting, part of a foreign treaty or an issue of national security.

“It is President Arroyo herself or through her Executive Secretary who should explain and convince the Senators why her Cabinet and military officials are barred from testifying because the Hello Garci tape is not a state secret, not an issue of national security, not part of an internal meeting among Cabinet and military officials, or part of a foreign treaty,” the NUPL said.

Quoting the high tribunal’s decision on EO 464, the lawyers, group said “Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.”

The NUPL said Defense Secretary Teodoro and eight other generals of the AFP- AFP Chief of Staff Hermogenes Esperon Jr., Army Commander Lt. Gen. Alexander Yano, Air Force Chief Lt. Gen. Horacio Tolentino, Navy Flag Officer in Command Vice Admiral Rogelio Calunsag, Association of Generals and Flag Officers head Brig. Gen. Jaime Echeverria (ret), Philippine Military Academy Alumni Association chairman Brig. Gen. Roland Patulagan and PMMA president Gen. Arthur Tabaquero could be held legally and constitutionally liable for violating the SC ruling on EO 464 and Article 150 of the Revised Penal Code.

The NUPL said under Article 150 of the Revised Penal Code, a penalty of arresto mayor shall be imposed upon any person who, having been duly summoned by Congress, its special or standing committees, subcommittees or before any committee chairman or member authorized to summon, refuses, without legal excuse, such summons or being present before such any legislative or constitutional body to answer any legal inquiry or to produce papers, documents or records in his possession.

The NUPL said Secretary Teodoro and 8 other AFP generals cannot invoke either EO 464 or MC 108, the circular President Arroyo had issued after the high court rebuked Palace on EO 464.

“Malacañang did not present any valid claim to exercise the executive privilege in the non-appearance of Secretary Teodoro and the eight generals in last Friday’s Senate hearing on Hello Garci scandal,” the NUPL noted. The lawyers’ group said that in invalidating EO 464, the SC categorically prohibited such unjustified refusal to cooperate as not only violative of the legislative power of Congress, but also of the people’s right to information.

The NUPL also said the refusal of the Defense chief and 8 other generals to attend the Senate hearing on the Hello Garci wiretapped scandal last Friday further made them liable for violating Article 231 and Article 241 of the Revised Penal Code for openly disobeying the orders of the Constitution and the Supreme Court decisions on EO 464.

Under Article 231 on Open Disobedience of the Revised Penal Code, any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities, shall suffer the penalties of a maximum of arresto mayor to the minimum penalty of prison correcional, temporary special disqualification, and a fine.

Under Article 241 on Usurpation of Judicial Function of the Revised Penal Code, the penalty of arresto mayor in its medium period to prison correcional in its minimum period shall be imposed upon any officer of the executive branch of government who shall obstruct the execution of any order or decision rendered by the judge with his jurisdiction.

“The Senate must compel Secretary Teodoro and company to attend the next hearing on the Hello Garci scandal. If they refuse, the Senate should cite them in contempt, order their arrest, ready their detention cell inside the Senate and file criminal and other appropriate charges,” the NUPLadded. (Bulatlat.com)

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