Anti-terrorism bill sorely needs rewriting

As a criminal statute, the Anti-Terrorism Act bill awaiting President Duterte’s action ought to be clearly and precisely written so that “it can give adequate guidance to those concerned,” but it is “hard to understand.” Moreover, the bill heightens international concerns about “the blurring of important distinctions between criticism, criminality and terrorism.” Hence, it must be thoroughly reviewed and rewritten.

These views came from two authoritative voices, just two days apart this week – first, from a retired Supreme Court magistrate, then by the United Nations high commissioner on human rights.And President Duterte is best advised to seriously consider them.

On June 28, retired Supreme Court Associate Justice Vicente V. Mendoza, a highly respected constitutionalist and due process advocate, expounded on why the ATB fails on the criteria of clarity and precision. In a written commentary in another newspaper, he focused on Section 4 of the bill, which enumerates the five acts for which an individual or group shall be deemed guilty of committing terrorism and penalized with life imprisonment without the benefit of parole.

“Section 4 is the heart of the proposed law,” Mendoza pointed out. “It must state what terrorism is and who are guilty of it in clear and precise terms,” he wrote. He asked what the following phrases (already described by many critics as “ambiguous and overbroad”) precisely meant: “serious bodily injury,” “extensive damage or destruction,” “extensive interference,” “seriously undermine public safety,” and “seriously destabilize or destroy the fundamental political, economic, or social structure.”

Delivering his coup de grace, Mendoza wrote: “A statute whose terms are so vague that persons of common understanding must necessarily guess at its meaning or differ as to its application offends due process (emphasis mine).”

Likewise offending due process, he added, is a statute that “sweeps unnecessarily broadly both prohibited and protected conduct,” citing the conflicting provisions of the bill’s Section 3 and Section 48 regarding “extraordinary rendition.” (He refers to a practice devised by the US spy agency CIA of transferring a suspected terrorist or supporter to a foreign country for detention and interrogation.)

On June 30, a comprehensive written report on the human rights situation in the Philippines was formally presented by the UN High Commissioner for Human Rights, Michele Bachelet, to the 44th session of the UN Human Rights Council in Geneva. In her brief opening statement, she correlated the ATA bill’s passage to heightening concerns about the blurring of the distinctions between criticism, criminality and terrorism.

Because the proposed law “could have a further chilling effect on human rights and humanitarian work” and would hinder support to vulnerable and marginalized communities, Bachelet told the UNHRC she would urge President Duterte to do two things:

First, refrain from signing the bill into law;

Second, initiate a broad-based consultation process towards drafting legislation “that can effectively prevent and counter violent extremism – but which contains some safeguards to prevent its misuse against people engaged in peaceful criticism and advocacy.” “My Office is ready to assist in such a review,” she said.

Note that Bachelet was duly careful in using the term “violent extremism” instead of “terrorism” since there is as yet no officially internationally accepted or approved definition of terrorism.

The UN human rights chief called on the UNHRC to “remain active and vigilant on the situation in the Philippines” by mandating her office to continue [its] monitoring and reporting, and through support for technical cooperation to implement her report’s recommendations.

Describing the findings of her report as “very serious,” saying laws and policies to counter national security threats have been crafted and implemented “result[ing] in thousands of killings, arbitrary detentions and the vilification of those who challenge these severe human rights violations.” Specifically, Bachelet lamented that “human rights defenders are routinely smeared as terrorists, enemies of the state, and even viruses akin to COVID-19.”

Meantime, recently retired SC Senior Associate Justice Antonio T. Carpio has continued to pursue his main criticism on the ATB – its Section 29, which extends detention without judicial arrest warrant, and without judicial charge, to a total of 24 days. He called this section as the provision that “strikes the deadliest blow on fundamental constitutional rights.”

In his two column pieces in the Inquirer (on June 8 and on July 2), he showed that the bill’s principal author, Sen. Panfilo Lacson, had himself made contradictory statements on the “rationale for Section 29.” In both instances, the retired justice checkmated the senator.

On June 8, Carpio quoted Lacson, during the Senate deliberation on the bill, as explaining that Section 29 expands the warrantless arrest allowed under the Rules of Court, in mixed Filipino-English:

“Hindi na rin po natin pinapalitan iyong provision sa citizen’s arrest in this case. Kaya lamang, ang in-expand natin ay iyong period. In ordinary crimes, hindi puwede iyong nasa planning stage, hindi naman niya ginawa, hindi naman siya nag-commit ng crime. Pero dahil iyong tinatawag nating inchoate offense, hindi pa nangyayari, nasa simula pa lamang, puwede na nating arestuhin because we want to be proactive because this is a new phenomenon.”

In short, Carpio noted, under Section 29 the Anti-Terrorism Council (to be composed mainly of Cabinet-rank officials) “is authorized to order the arrest of any person even if he or she has not committed any crime of terrorism.” He debunked this view, pointing out that under the Constitution the only person authorized to issue a warrant of arrest is a judge, and he must have “probable cause” to believe that a crime has been committed. About the way Lacson explained it, he wrote, “This is truly mind-boggling.”

But Lacson has also said otherwise. On July 2, Carpio cited Lacson’s letter to IBP President Domingo Cayosa dated June 15. In that letter, he observed, Lacson affirmed that the legislative intent behind Section 29 was to allow warrantless arrest, pursuant to Rule 113, Section 5 of the Rules of Court: – only “by virtue of in flagrante delicto and hot pursuit – in such cases [when} an actual crime is being committed, or has been committed.”

Assuming Lacson’s interpretation was correct, Carpio pointed out, “law enforcement agents and military personnel can never detain the arrested person for more than 36 hours.” Moreover, he wrote, “there is no need for additional time to gather more evidence to strengthen the case against the arrested person for purposes of denying bail.” The investigating prosecutor can immediately conduct an inquest and file the judicial charge within 36 hours, he explained, and the judge will deny bail “because the evidence of guilt is obviously strong.”

“Being under continued detention,” Carpio concluded, “the arrested person cannot commit further acts of terrorism.” Touche!

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Published in Philippine Star
July 4, 2020

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