By TRISTAN BIGLETE, REBECCA OLORVIDA, AND AIRA MARIE SIGUENZA
MANILA — Worse than martial law.
This is what experts are saying as peace advocates continue to fight the government’s attempt to fully implement the anti-terrorism law.
“With the Anti-Terrorism Act as part of the law of the land, it is as if the Philippines is permanently under a situation worse than martial law,” former Supreme Court Senior Associate Justice Antonio Carpio warned during the Management Association of the Philippines’ webinar on the Anti-Terrorism Law.
Despite the 37 petitions filed, making it one of the most challenged law in the Supreme Court’s history, and countless calls for junking the law, the Duterte administration was adamant in pursuing its agenda of fighting what it considers terrorism.
Petitioners against the anti-terror law, human rights organizations and human rights defenders continue to assert the unconstitutionality of the law, asserting that activism is not terrorism.
According to them, the ATL’s definition of terrorism can stifle dissent and might repress the voice of the people. Rights embodied in the constitution could be violated.
In a 26-page report describing the Philippines’ extensive human rights crimes and the worsening culture of impunity, United Nations High Commissioner for Human Rights Michelle Bachelet said that “The vague definitions in the Anti-Terrorism Act may violate the principle of legality.”
After the law took effect on July 18, 2020, it gave more power to authorities to justify human rights abuses and even in stifling civil liberties, like the right to a free press.
Since the law took effect, more human rights defenders and lawyers were red-tagged, and many of those who were red-tagged ended up jailed or killed. Their being critical of the government subjects them to mere suspicion of being involved in a ‘terrorist’ organization. Worse, the practice of planting firearms and explosives is becoming more rampant in order to justify the arrest of development workers, peace advocates, human rights defenders, and others.
Last December 9, 2021, the Supreme Court decided that only two provisions of the law are to be scrapped. These include some portions of Section 4 as well as Section 25, paragraph 2. According to activists, this decision was a “devastating blow to human rights.” Rep. Carlos Zarate of Bayan-Muna party-list called the SC decision as “clear tokenism” for the Filipino people.
The petitioners echoed their disappointment that even with their extensive oral arguments only two provisions were struck down.
Evalyn Ursua, counsel for journalist and artist petitioners, said that the remaining provisions still contain many dangers to human rights and will not curb abuses as the ‘extraordinary powers’ of the Anti-Terrorism Council remains.
Lawyer Virginia Suarez affirmed, saying, “Did we win? No. But is it us who lost? No. It’s our people as a whole… So even in a small space given to us to question this, we will continue our fight.”
For this Bulatlat year-ender series, let us uncover the chilling effects of the implementation of one of the most dangerous laws in the Philippines that would really leave a trail of blood in Duterte’s footsteps as he ends his term.
The danger of the Anti-Terrorism Law and its provisions
Throughout history, the Philippine government has been active in its fight against “terrorism”.
Terrorism is defined by the Global Terrorism Database (GTD) as the use of violence, illegal force, fear, intimidation, and coercion of a non-state person in order to achieve his religious, economic, social, and political goals. However, most of the time, this term has been misused and misdefined by government administrations through the implementation of certain laws aimed at countering terrorism but often leading to human rights violations.
The fight against terrorism was intensified when President Rodrigo Duterte took office.
In the midst of a worsening global health crisis, the Duterte administration implemented the Anti-Terrorism Law (ATL), replacing the existing Human Security Act (HSA) of 2007 or Republic Act No. 9372. HSA was promulgated at the urging of the US government for stricter anti-terror legislation. However, the current administration sees the HSA as “severely underutilized” and needs more teeth, thus the draconian ATL.
With the ATL, an Anti-Terrorism Council (ATC) was convened consisting of appointed members who are close to the president and have a history of military service, such as Executive Secretary Salvador Medialdea who is a childhood friend of President Rodrigo Duterte. The ATC is given vast powers, including the power to designate individuals and groups as terrorists without due process.
Even before the passing of the Anti-Terror Law, President Rodrigo Duterte already called off the peace talks with the National Democratic Front of the Philippines (NDFP), branding them as a “terrorist organization”
Under the Joint Agreement on Safety and Immunity Guarantees (JASIG), peace consultants and those involved in the negotiations should be protected from arrests and detention. However, the agreement was not respected by the Philippine government, and instead, the arrests of consultants and peace advocates were intensified under the ATL. Detained peace consultants Rey Claro Casambre and Vicente Ladlad are among those on the ATC’s terror list.
Bank accounts of individuals and legitimate groups were frozen by the Anti-Money Laundering Council (AMLC) like that of detained peace consultant Casambre, the United Church of Christ in the Philippines, and women farmers group, Amihan.
The ATL also worsened the militarization in Mindanao resulting in more families being forced to evacuate, and more serious injuries and deaths due to the series of mortar shelling and military operations, according to Kawagib Moro Human Rights Network. The worsening militarization in Mindanao, heightened by the ATL, has severely affected not only the groups they claim to be targeting but also civilians, particularly farmers and indigenous peoples who are protecting their land from the intrusion of mining, wide-scale logging, and corporate farming.
Up until now, groups and individuals have been calling for the junking of the draconian Anti-Terror Law.
“The ATC’s power to designate individuals and organizations as ‘terrorists’ is not only arbitrary: as pointed out by Associate Justice Benjamin Caguioa during the oral arguments, the process of the designation ‘already achieves the purpose of proscription.’ It has also proven to be deadly,” Karapatan said.
Rights groups continue to contest the provisions of the law including the whole Section 4 which states:
Section 4. Terrorism, this section gives the definition of terrorism: (a) engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life; (b) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property; (c) engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure; (d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological, or chemical weapons; and (e) Release of dangerous substances, or causing fire, floods or explosions.
The petitioners argue that this whole section is a “killer caveat” that should be void for its vagueness, making it easy for the government to terror-tag anyone who expresses dissent.
It also argues that the following sections should be scrapped, as well:
Sections 5-14. Threat to Commit Terrorism; Planning, Training, Preparing, and Facilitating to Commit Terrorism; Conspiracy to Commit Terrorism; Proposal to Commit Terrorism; Inciting to commit terrorism; Recruitment to and Membership in a Terrorist Organization; Foreign Terrorist; Providing Material Support to Terrorists; Humanitarian Exemption; Accessory; and Penalty for Public Official.
Under these sections, the law can sanction anyone who the ATC deems as those belonging to that defined by Section 4.
The Moro people are afraid that they are on the receiving end of these sections considering that they have been targeted for a long time because of their religion.
“In Mindanao, especially in Muslim communities, it is a frequent occurrence that mosque-goers, Quran reciters, prayer-callers, even simple market vendors and truck drivers are dragged away by law enforcers – simply on suspicion that they are supporters, relatives, co-conspirators or active participants in acts of rebellion, kidnapping and what now constitutes terrorism,” said the Hataman petition.
Petitioners also cited Sections 16-19 as unconstitutional:
Section 16-19. Surveillance of Suspects and Interception and Recording of Communications, meaning any suspected terrorist, even those people or organizations who have not been declared as terrorist yet by the court will be subjected to surveillance up to 60 days by requesting a personal authorization from the ATC.
According to the petitioners, this section will violate Article III Section 2 and 3 of the constitution against unreasonable searches and seizures and the right to the privacy of communication.
“The general tone of the bill supports secret surveillance – the courts are required to be informed of such surveillance, but only upon the filing of charges before the prosecutor. In short, subjects of surveillance and suspected persons will have already been hauled to jail before they are made aware of actions against them,” said the Concerned Lawyers for Civil Liberties.
Yet another provision is Section 25, although paragraph 2 of the said section was struck down by the Supreme Court with a vote of 9-6. The section reads:
Section 25. Designation of Terrorist Individual, Groups of Persons, Organizations or Associations, states that based only on their own decision during a secret trial, a person and group can be designated as a terrorist without asking them to provide evidence of opposition and those designated individuals will have their assets frozen by the Anti-Money Laundering Council (AMLC) and names will be published in the Official Gazette and ATC website under the “reasonable ground of suspicion.” This unilateral power of ATC is still different from the proscription power in Section 27.
Paragraph 2, which was removed, stated that the “request for designations by other jurisdictions or supranational jurisdictions may be adopted by the ATC after a determination that the proposed designee meets the criteria for designation of UNSCR No. 1373.”
Nevertheless, the added power of the ATC is very dangerous as it violates the right to due process.
According to Article 3 of the Constitution, the Bill of Rights, Section 14 paragraph 2: “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, the trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.”
The IRR of publishing names on the website under the “reasonable ground of suspicion” is not found in the Anti-Terror Law, according to Ted Te, a criminal law expert, and former Supreme Court spokesperson.
“Probable cause under the Constitution has a well-accepted definition. The standard inserted by the IRR dilutes the standard of probable cause, as defined by the cases,” Te added.
Section 27 of the law is being questioned, which states:
Section 27. Preliminary Order of Proscription, meaning If the court finds probable grounds to declare a suspect a terrorist or an outlawed organization, it might issue a preliminary order of proscription within three days without any single hearing.
This provision is an ex post facto law, according to petitioners. This means that because of the new definitions of terrorism in ATL, acts undertaken prior to the ATL’s passage, that did not result in people or groups being labeled as terrorists, can now be prosecuted.
“By the mere fact of the preliminary order of proscription, does that justify the law enforcers from arresting?” Senior Associate Justice Estela Perlas-Bernabe challenged the section.
Still another provision in question is Section 29 which states:
Section 29. Detention without Judicial Warrant of Arrest, which gives power to the ATC to confine suspected terrorists for 14 days, and can be extended to a maximum of 10 days if it is established that (1) further detention of the person/s is necessary to preserve evidence related to terrorism or complete the investigation, (2) further detention of the person/s is necessary to prevent the commission of another terrorism, and (3) the investigation is being conducted properly and without delay.
Petitioners argue that the 24-day detention is a violation of the Constitution, citing that under Martial Law, 3 days is the longest period a person can be arrested without a court warrant.
“The threat of arrest without a judicial warrant and prolonged detention would be more than chilling enough to stifle suppress, if not totally snuff out, any fire, flame, or even flicker, of indignation or protest against government corruption, oppression, and abuse,” Far Eastern University (FEU) lawyers, led by Dean Mel Sta. Maria, said, questioning the constitutionality of the section.
Another provision is Section 34 which states:
Section 34. Restriction on the Right to Travel, states that where evidence of guilt is not strong and has been granted bail, the prosecutor can apply for the limitation of the right to travel of the accused to within the municipality/city where he/she resides and can be placed under house arrest by order of the court at his/her usual place of residence.
One of the petitioners, UP Constitutional Law professor John Molo, questioned this section, saying, “How can that happen if the evidence of guilt is not already strong?”.
Molo cites that this section may fall under “political questions” or questions beyond judicial questions, “which under the constitution are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been relegated to the legislative or executive branch of the government.”
“That is why, your honor, we also raise it as part of the grounds that this law turns judges into rubber stamps because of the phraseology of the law therefore it is diminishing the Judiciary,” Molo added.
But Cristina Palabay, secretary general of human rights group Karapatan, cautioned that next May’s elections will be a test for the controversial law when the voters and the candidates will voice criticism against the Duterte administration.
“It will be a litmus test on how this law will be misused by those in power right now in silencing dissent of those who are considered members of the opposition or ordinary Filipinos and the voting public,” Palabay said.
Lastly, petitioners are also questioning Section 56 that states:
Section 56. Repealing Clause, meaning the Republic Act No. 9372 or mostly known as the “Human Security Act of 2007” will be completely revoked. All the laws, decrees, rules, or regulations inside the act will be repealed.
Petitioners believe that this violates the mandate to compensate victims of torture, grievance committee removal, prosecutorial power of Commission on Human Rights (CHR), removal of the suspension of the law before the election, and violates Indigenous Peoples and Moros’ rights to self-governance and self-determination.
With these safeguards and protections removed, the law can be prone to abuse by the added strength of authorities, and victims were left with nothing to hold on to. Concerned Lawyers for Civil Liberties said, “It does not penalize malicious obtaining of authority from the courts for surveillance, or refusal to restore or delay in restoring seized, sequestered and frozen bank deposits, accounts, assets, and records, nor does it grant payment to those falsely and wrongly accused of terrorism which was penalized with a fine of P500,000 for every day of detention under the old anti-terror law.”
Under the HSA, a person who is declared not guilty of the crime gets to be paid P500,000 ($10,000) for every day that their assets, funds, properties were seized. According to Justice Secretary Menardo Guevarra, this section is the primary reason why the implementation of the Human Security Act of 2007 was minimal, the authorities fear being penalized to pay hefty fines.
With these deadly provisions considered constitutional by the court, Ursua said, “The future is scary and depressing. We were hoping for the Supreme Court to protect us, to protect human rights, to protect our constitutional rights, to protect people.”
Despite voiding two provisions as unconstitutional, a large part of the original Anti-terror Law remains.
Neri Colmenares, a senatorial candidate who argued against the anti-terror law, said that the provisions the Supreme Court has declared constitutional are “devastating for human rights.”
“These are still provisions that could make people subject to the penalties of the anti-terror law,” Colmenares said.
One of these is the continued existence of the Anti-Terror Council. The council is responsible for implementing the policies defined in the law. Its members include cabinet officials of the Duterte administration, some of whom were former generals in the army.
In the law, the ATC has vast amounts of power and the highest court has refused to quell its influence. Only one clause referring to the ability of the ATC to declare a person or a group as a terrorist upon the request of another country was removed. Other provisions for designations were preserved by the court.
Colmenares also said that the problem with the section on the designation is that it is the ATC that decides who will be tagged as a terrorist instead of the courts. Furthermore, he said that Duterte is “allergic” to courts and hearings as the anti-terror law effectively moved the power of designation away from the judiciary to the executive branch.
Previously, Duterte designated the CPP-NPA as a terrorist organization two years into his term. However, the former Human Security Act (HSA) stated that only a regional trial court, “with due notice and opportunity to be heard given to the organization, association, or group of persons concerned,” holds the power of designation upon application by the Department of Justice (DOJ). In the anti-terror law, the ATC has monopolized this power and removed the necessity of the courts.
“That is the problem with our President, he’s afraid of the court,” Colmenares said.
The furor over the anti-terror law will likely continue as the 2022 election draws near. Candidates will be judged based on their response and involvement with this draconian law. The law itself, so to speak, holds influence over the ballot.
When the HSA was first enacted as a national policy, part of the law specifically stated that the HSA would be suspended a month before and two months after an election. There is no such provision in the anti-terror law.
Colmenares warned that the removal could translate to political harassment. With the increased length of detention, campaign organizers or candidates themselves can be detained. If this is to happen, individual campaigns would be jeopardized as candidates will spend a lot of time in jails, halting their campaign trails across the country.
“During the election, you can still be arrested. If the president will use the anti-terror law against the opposition, against activists, against progressive party-lists, it’s dangerous,” Colmenares said.
He expressed that the safeguard, the suspension of the former HSA during election season, was placed to preempt the president from potentially meddling in the election by using the law against the opposition and perpetuating themselves in power.
What then, is to be done?
Colmenares stressed that the anti-terror law is “dangerous and requires urgent attention.” He also stated that the battle against the law is comprehensive.
For one, as other petitioners asserted, Colmenares suggested filing a motion for reconsideration.
In Congress, on the other hand, a bill can be filed to repeal the anti-terror law. But Colmenares expressed concern that it will be a hard fight.
In the first place, majority of lawmakers in the House of Representative and Senate supported the anti-terror law. Unless the members of the both houses of Congress changed their initial stand, junking the law through legislation will be a complicated task.
Colmenares also believes that the anti-terror law should be part of the discourse in the upcoming election.
“All voters, all Filipinos, for that matter, should ask their candidates, even if they’re a congressman or senator, or a presidential candidate, ‘what is your position on the terror law?’” Colmenares said.
However, more than the parliamentary approach, protests by the people may also compel the government to overturn their decision and abolish the repressive anti-terror law.
“Sometimes, the government is forced to do something depending on the resistance of the people outside the congress,” Colmenares said. “Even if the fight is hard inside, we can make it work through the support of the masses outside.” (RTS, RVO)