World jurists weigh in on the ATA, red-tagging

As the nation enters the 90-day official campaign period for the May 9 national elections, beginning on Feb. 8, two hot issues will be awaiting final resolution by the Supreme Court.

One concerns final judgment on whether to disqualify Ferdinand Marcos Jr. from running for president, or to cancel his certificate of candidacy (COC), separate questions that the Commission on Elections will decide on en banc.

The other has to do with the constitutionality of the 2020 Anti-Terrorism Act (ATA) that 37 petitions have challenged before the tribunal. Although the SC has upheld the new law except for two questioned provisions, the full decision and the separate opinions of the magistrates have yet to be issued. Petitioners contemplating motions for reconsideration have withheld filing them, pending their receipt and thorough study of the documents.

On the challenges against Marcos Jr.’s candidacy, the expected protracted battle has hardly moved from their starting point. Thus, people are worried that the Comelec en banc might not resolve the two cases in time to enable whichever side to elevate the matter to the SC, and for the latter to settle the issue before the voting day on May 9. A new problem would arise should that become the case.

While the Comelec’s Second Division has refused to cancel his COC, the petitioners have filed a partial motion for reconsideration. The First Division, which heard and consolidated the petitions seeking Marcos Jr.’s disqualification, has yet to issue a decision even as its presiding commissioner, Rowena Guanzon who retired last Tuesday, had already revealed her vote to disqualify him. Two other commissioners, one being Chairman Sheriff Abas, have likewise retired.

Only four commissioners (all Duterte appointees), a simple majority, now constitute the Comelec, unless President Duterte quickly appoints the replacements of the three who retired. Consequently, the two divisions handling the Marcos Jr. cases will have to be reorganized.

As regards the Anti-Terrorism Act, petitioners planning to appeal the SC ruling may glean substantial legal arguments to back up their motions for reconsideration from a recent legal briefing provided by the International Commission of Jurists (ICJ).

The independent body founded in 1952, composed of 60 eminent jurists and lawyers from all regions of the world, presented the legal brief in an online panel discussion last Jan. 31. Two Filipino lawyers participated, representing the Free Legal Assistance Group (FLAG), Public Interest Law Center (PILC) and National Union of People’s Lawyers (NUPL).

Among the significant points raised in the 32-page briefing are the following:

• The ATA provision on detention without a judicial warrant for up to 24 days “patently contravenes the standard for the right to due process,” noting however that, in its ruling, the Supreme Court declined to take down this section as unconstitutional.

• Its definition of “terrorism” is inconsistent with international human rights (IHR) law and standards. It is “replete with vague and imprecise terms, in contravention of the principle of legality.” Yet the SC ruling upheld the constitutionality of most of ATA’s provisions, including the vague and overbroad definitions of “terrorism” and “inciting to terrorism.”

• The underlying acts constituting the crime of terrorism under the ATA do not expressly correspond to crimes punished under Philippine law. “This violates the principle of legality of offenses in criminal law, sometimes expressed in the Latin phrase ‘nallum crimen sine lege (no crime without law).’ This means that ‘any offense must be established in law and defined precisely and unambiguously, so as to enable individuals to know what acts will make them criminally liable.’”

Further, the ICJ briefing explained the principle of legality as “a general principle of law and a principle of the rule of law, applicable to any legislation enacted in a State.” It is also referenced in Article 15 of the International Covenant on Civil and Political Rights [ICCPR], which prohibit retroactive application of the criminal law.

• At present, there is no agreed definition of terrorism, although many elements of a definition have been agreed in the course of the “now-stalled negotiations on a comprehensive convention on international terrorism.” These elements and those of international treaties have been taken into account by the former United Nations Special Rapporteur (SR) on the promotion and protection of human rights and fundamental freedoms while combating terrorism. In 2010, the SR presented to the UN Human Rights Council a “model definition” that is consistent with IHR law and standards.

Details of that model definition were cited in the briefing but cannot be accommodated in this limited space. However, the ICJ emphasized that the ATA’s definition of terrorism “significantly departs from the model definition.”

As a remedial step, the ICJ recommended that Congress amend the ATA to make it conform with IHR law and standards, pursuant to the Philippine government’s obligations under the ICCPR. The definition of terrorism adopted in the amendments, it added, should hew closely to the model definition.

Besides critiquing ATA, the ICJ rejected the vilification of both suspected illegal drug users and human rights defenders (HRDs), particularly the state security forces’ practice of “red-tagging” – categorizing the latter as “terrorists” and/or “communists” without substantial proof of any unlawful conduct. Red-tagging has been applied with greater intensity under Duterte’s presidency, it noted.

Acknowledging the NUPL and FLAG reports that many of those red-tagged have been subsequently killed or injured by unidentified assailants, it lamented “there is no significant progress on effective investigation and accountability for such killings or any accountability for red-tagging by government officials.”

Thus, the jurist body recommended that national and local government officials – including members of the National Task Force to End the Local Communist Armed Conflict (NTF-ELCAC) – must refrain from labeling HRDs as terrorists. Any credible accusation of terrorist conduct must be pursued “through the rule of law, cognizable charges, compliance with due process and the right to a fair trial by a competent independent and impartial court,” it emphasized.

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Published in Philippine Star
February 5, 2022

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