LEGAL MEMORANDUM ON THE ANTI-TERRORISM LAW
KNOWN AS THE HUMAN SECURITY ACT OF 20071
(Draft July 2007)
The Anti-Terrorism Law [ATL] known as “The Human Security
Act” is void because its provisions violate the 1987 Constitution and
irreconcilably clash with the Bill of Rights. The law is irreparably
vague, a violation of the due process requirement that “a penal
statute must be sufficiently explicit to inform those who are subject to it
what conduct on their part will render them liable to its penalties”.2 It
is also overbroad3, and therefore constitutionally infirm, because it
covers and may penalize legitimate dissent. It must be stressed that
the government has a long and judicially confirmed track record of
political persecution as shown in the case of the ‘Batasan Six’4 and
abuse of presidential powers when it used the calibrated preemptive
response policy, Proclamation 1017 and other repressive measures to
stifle protest. This time, however, the ATL will not merely stifle
dissent but impose heavy penal sanctions for the mere exercise of
constitutional rights. Considering that the law is not even necessary
in order to arrest or prosecute members of bandit groups like the Abu
Sayyaf, the law is a high price to pay for something that is nothing
more than a publicly admitted imposition by foreign countries.
The law essentially penalizes “unlawful demand” and is,
therefore, violative of constitutionally guaranteed free speech rights.
1
Drafted by Atty. Neri Javier Colmenares
“A criminal statute that “fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute,” or is so indefinite that “it
encourages arbitrary and erratic arrests and convictions,” is void for vagueness.
People vs Dela Piedra [G.R. No. 121777, January 24, 2001].
2
“A generally worded statute, when construed to punish conduct which cannot be
constitutionally punished is unconstitutionally vague to the extent that it fails to give adequate
warning of the boundary between the constitutionally permissible and the constitutionally
impermissible applications of the statute.” People vs. De la Piedra
3
4
See SC Decision in Ocampo vs. Secretary of Justice.
Admission that the law is a tool for abuse
The law’s main author Sen. Juan Ponce Enrile and Congress have in fact
admitted that the law could be a tool for abuse when they provided that its effectivity
shall be suspended one month before and two months after an election, an important
admission that directly goes into the validity of the law.
The fact that the law is vague yet broad enough to grant sufficient powers to
executive officials, particularly the super body called ‘The Anti-Terrorism Council”, to
unilaterally curtail civil liberties is certainly a strong basis for the fears expressed by
various sectors including the church, the media and members of the legal profession.
As such, the ATL is one of the most dangerous pieces of legislation in Philippine
legislative history, trampling on the entire bill of rights and contravening the
constitutional provisions put in place to avoid a repetition of the horrors of martial
law.
A. The law is vague despite assertion by the executive that it is clear and ‘self
executing’.
I.
Effectivity
The law is so vague that even the executive department did not know when it
actually takes effect. Despite government pronouncements that it takes effect on
July 15, Sec. 62 of the law shows that it took effect on July 14, 2007:
SEC. 62. Special Effectivity Clause. - After the bill shall have been signed into
law by the President, the Act shall be published in three (3) newspapers of
national circulation; x x x
After the publication required above shall have been done, the Act shall take
effect two (2) months after the elections are held in May 2007.
Thereafter, the provisions of this Act shall be automatically suspended one
month before and two months after the holding of any election.
Sec. 62 requires publication after it is signed into law. In fact, “after the
publication” its effectivity is suspended until “two months after” the May 14, 2007
elections.
Firstly, the government did not publish the law until long after the elections, or
exactly seven days before it is supposed to become effective on “July 15”. This delay
in the publication is not merely a violation of the law but also a means to preempt
possible debate on and study of the law while it was suspended for two months. If
the law is a valid law, the Executive should not have been afraid in publishing it
immediately upon its passage, so that the public is notified of its provisions.
2
Secondly, the government was not even correct in declaring July 15 as the date
of effectivity if the basis is the two month suspension period. Under Article 13 of
the Civil Code, a month is equivalent to ‘thirty days” and counting 60 days from
May 14, 2007, the last day for the suspension of the law’s effectivity was on “Friday
the Thirteenth” or July 13, 2007. The Executive failed to consider that there are 31
days in May. The law was therefore effective on July 14, 2007.
It must be stressed, however, that the absence of implementing rules and
regulations, do not affect the constitutionality of the law.
The law is
unconstitutional “on its face”, and no implementing rule can cure such defect. The
absence of the IRR only makes the law more dangerous, as it grants broader
discretion on the part of the executive in implementing, and misusing, the same.
II.
Definition of Terrorism Encompasses Legitimate Dissent
The ATL’s definition of what constitutes a terrorist act is so overbroad and
vague that it can be used to curtail legitimate acts of protest. The ATL virtually
grants Justice Sec. Raul Gonzalez and the Anti-Terrorism Council (ATC) composed
of Executive officials, sweeping powers to deem protests act as ‘terrorist’ acts,
which, when coupled with Section 26, is no other than an absolute discretion to
decide who among the people goes to prison.
Sec. 3 of the ATL or HSA defines terrorism thus:
SEC. 3. Terrorism. – Any person who commits an act punishable under any of the following
provisions of the Revised Penal Code:
A. Article 122 (Piracy and Mutiny)
B. Article 134 (Rebellion or Insurrection);
C. Article 134-a (Coup d‘Etat),;
D. Article 248 (Murder)
E. Article 267 (Kidnapping and Serious Illegal Detention);
F. Article 3245 (Crimes Involving Destruction or under
(1) Presidential Decree No. 1613 (The Law on Arson);
(2) Republic Act No. 6969 (Toxic Substances);
(3) Republic Act No. 5207, (Atomic Energy Regulatory Act of 1968);
(4) Republic Act No. 6235 (Anti-Hijacking Law);
(5) Presidential Decree No. 532 (Anti-piracy and Highway Robbery Law);
(6) Presidential Decree No. 1866, (Illegal Possession of Firearms)
thereby sowing and 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
shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of
imprisonment, without the benefit of parole x x x ]
Basically, the law has at least three basic elements from the point of view of
the prosecution:
5
There seems to be an oversight here as Article 324 has been repealed.
3
1. The commission of an act [eg: rebellion, coup d’etat, illegal possession etc)
2. the act resulted in “widespread and extraordinary fear and panic”
3. an “unlawful demand” was forwarded.
Note that unlike the definition in the previous draft bills, the law does not
require that the act aimed to cause panic [which requires the higher evidentiary
element of ‘intent’], but rather, that it merely “results” into panic.
Since
“widespread” and “populace” are not defined, all that the prosecution needs to show
is that a group or collectivity “panicked” and leaving to that group or collectivity the
discretion to describe their fear as ‘extraordinary’ or ‘widespread’, again, providing
for a lower threshold of evidentiary requirement for the prosecution.
It must be noted that many demands by protest actions or public statements
can be interpreted as ‘unlawful’, thereby broadening the scope of acts that may fall
within the penumbra of a “terrorist” act.
Unlawful Demand: An Impingement on free speech
The operative act for the application of Sec. 3 to a particular set of facts, the
trigger mechanism so to speak, is the utterance of an alleged “unlawful demand.”
While craftily hidden in the convoluted definition of terrorism, what the Human
Security Act seeks to criminalize and punish is the making of verbal demands that
are political in character, they being directed towards the government.
As speech – not merely conduct – is its object, the challenged provision must
be examined on its face for vagueness and overbreadth.6
Under this law, for example, EDSA I was a terrorist act because it may be
deemed by Pres. Marcos as acts of rebellion or insurrection considering the
combination of civilian and military leaders leading a huge rally which paralyzed
EDSA for 4 days [which certainly caused extraordinary fear and panic at least on
Malacanang and the Marcos family], and calling for the military’s withdrawal of
support from the President and demanding that the Chief Executive who has lost
the support of the people relinquish executive power [which is an ‘unlawful’ demand
under the law]. An act hailed around the world as an act of courage by a people
against a dictator is nothing more than a terrorist act under the ATL.
Because the law is so vague and overbroad, nationwide protests, general
strikes and other exercises of free speech and expression may be deemed terrorist acts
if they forwarded an unlawful demand [such as demanding that the President vacate
the presidency]. The fact that the protesters or the organizers have links with the
NPAs or coup plotters can be easily alleged by the prosecution using the phantom and
difficult-to-disprove ‘intelligence report’ to prove such claim. All protests are easily
claimed to have caused ‘fear and panic’ on a segment of the population. What is
considered an ordinary slogan in rallies here and abroad is punishable with forty years
imprisonment under the ATL.
6
.
Romuladez v. Sandiganbayan et al., G.R. No. 152259, July 29, 2004
4
The notion of what constitutes ‘extraordinary fear’, what is the extent of the
word ‘populace’ or when is a demand “unlawful” will certainly be left to the discretion
of Sec. Raul Gonzalez and the Anti Terrorism Council.
Predicate Crimes: Absence of Notice
Many of the predicate crimes are comprehensive laws that include serious and
slight offenses. From the provisions of the law even these slight offenses are included in
the predicate acts of ‘terrorism’. Why were the elements of the predicate offenses not
written and specified in the text of the Human Security Act and thus were not published
as is required for all statutes, rules and regulations? Publication is a requisite of due
process, and it is mandatory precisely because ignorance of the law excuses no one from
complying with it.
For three (3) reasons, the original publications of the mother-statutes of the
predicate offenses – if they were indeed published because in the case of PD 532 (1974) no
publication thereof was made – do not suffice. For one, the requirement of publication is
meant to “inform the public of the contents of the law or rules and regulations before their
rights and interests are affected by the same.”7
For another, the predicate crimes make general references to “violation of this
Act or implementing rules and regulations or orders” as in the case of RA 6969 (1990) and
RA 5207 (1968). It requires at least a three (3) – stage mental process to digest what RA
9372 proscribes: firstly, one must know that RA 9372 has predicate crimes as an
element; secondly, one must understand what the mother-statutes of the predicate
crimes “penalize” under their respective provisions; and thirdly, one must know the
entirety of the mother-statutes since the penalizing provisions thereof make general
references to its entire contents. This is too much for the public to do, that is, for them to
recall, understand and put to heart the entirety of divergent statutes in addition to the
contents of the Human Security Act. The least thing that the government should have
done was to publish everything that it intended to include as elements of the crime of
terrorism.
Furthermore, while the predicate crimes may have already been published
previously, (except for PD 532 (1974)) and the public may have been informed of their
respective contents, the situation is different now since the predicate crimes are made to
mingle with concepts not heretofore included in an individual predicate crime’s definition.
Hence there arises a variation in signification, a difference in what the legislature would
like to prohibit and punish, and therefore the necessity to publish anew the predicate
crimes. Otherwise, how could the government expect compliance with its criminal laws
when the public has to guess the precise intent embedded in RA 9372?
7
Philippine International Trading Corporation v. Commission on Audit, G.R. No. 132593, June 25, 1999.
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Punishment not just for terrorist acts but for the amorphous crime of
‘conspiracy’ to commit terrorism under Section 4
The ATL has invented a new crime, which makes anyone vulnerable to being
penalized with life imprisonment, not for committing a terrorist act, but for a vague
criminal act called ‘conspiracy’.
SEC. 4. Conspiracy to Commit Terrorism. – Persons who conspire to commit the
crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.
There is conspiracy when two or more persons come to an agreement
concerning the commission of the crime of terrorism as defined in Section 3
hereof and decide to commit the same.
While the crime of terrorism requires a positive act, in the case of Sec. 4 it is
easy for government to merely allege that a “conspiracy” existed even if no outward
‘terrorist’ act has actually been committed. It must be noted that conspiracy to
commit terrorism is punished with 40 years imprisonment, the same penalty for an act
of terrorism, even if no one was killed or no malls were bomb or no “terrorist” act has
actually taken place, as a result of the “conspiracy”.
This provision is one of the most dangerous provisions in the ATL as it can
certainly be used against ordinary dissenters considering the government’s penchant
to allege conspiracies where none existed.
The death of the peace process under the ATL
One of the biggest casualties of the ATL is the peace process. All rebel groups
including the MILF, CPP-NPA-NDF, RAM-SFP-YOU and MAGDALO are “terrorist
organizations” under Sec. 3 and Sec. 17 of the law. As a matter of policy, the
government has declared that it will never negotiate with “terrorists”. Any person or
public official talking with these groups, acting as an intermediary or hosting these
talks may be vulnerable to a criminal liability under the ATL. More than that, by
branding these groups ‘terrorists’ the government has effectively driven these groups
from the peace talks since no rebel group will be willing to negotiate with a
government that has labeled them as terrorists.
The dream of millions of Filipinos for a just and lasting peace is completely
crushed by the ‘anti-terrorism law’.
B. The law violates the Bill of Rights
I.
Sec. 26 of the ATL tramples on the right to bail, the presumption of
innocence, due process and the right against incommunicado detention.
SEC. 26. Restriction on Travel. - In cases where evidence of guilt is not strong,
and the person charged with the crime of terrorism or conspiracy to commit
terrorism is entitled to bail and is granted the same, the court, upon application
by the prosecutor, shall limit the right of travel of the accused to within the
municipality or city where he resides or where the case is pending, in the interest
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of national security and public safety, consistent with Article III, Section 6 of the
Constitution. Travel outside of said municipality or city, without the authorization
of the court, shall be deemed a violation of the terms and conditions of his bail,
which shall then be forfeited as provided under the Rules of Court.
He or she may also be placed under house arrest by order of the court at his or
her usual place of residence. While under house arrest, he or she may not use
telephones, cellphones, e-mails, computers, the internet or other means of
communications with people outside the residence until otherwise ordered by the
court. The restrictions abovementioned shall be terminated upon the acquittal of
the accused or of the dismissal of the case filed against him or earlier upon the
discretion of the court on motion of the prosecutor or of the accused.
This provision states that an accused, even if the evidence of guilt is not strong,
may be restricted from traveling outside the municipality or city where he resides and
worse, may even be detained under house arrest despite posting bail—and prohibited
from using cellphones, internet, emails or OTHER MEANS OF COMMUNICATION WITH
PEOPLE OUTSIDE HIS RESIDENCE.
This provision violates , among others, the following constitutional provisions:
i.
The right to bail under Article III, Sec. 13 when it allows for the house arrest of
a person who has posted bail. This provision in fact, encourages the filing of false
charges against opponents of government because even if the evidence is weak
[because the charges are false and baseless] the accused may still be confined. The
government, with the mere intention of harassing legitimate dissenters for example,
may simply file a trumped up charge under the ATL against a member of the media
or the political opposition and the accused can no longer practice their profession
or conduct any activity because they are under house arrest without any access to
the outside world.
ii.
Right against incommunicado detention
The Bill of Rights, and international law, prohibit the use of incommunicado
detention because this is considered a cruel and unjust punishment. Human beings
are social beings and incommunicado detention violates the social nature of a
person. The ATL however, allows for the detention of a mere suspect by placing him
under house arrest without the right to use any means of communication with the
people outside his residence. This is in the nature of ‘an incomunicado’ detention a
prohibited cruel and unjust form of punishment.
iii. Presumption of innocence under Article III, Sec. 14 (2)
The restrictions to travel, house arrest and “incommunicado” detention are actual
punishments on an accused who has not been convicted. Under the ATL, the
accused is presumed guilty, and is thereby heavily confined, until he is acquitted and
declared innocent by a court.
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iv. The right to due process under Article III, Sec. 1
The imprisonment of the accused through house arrest requires no quantum of
evidence or any standard of proof. The law merely declares that, upon the mere order
of a court, a person is placed under house arrest—and his release is obtained only
upon his acquittal or upon the discretion of the court. This is certainly a deprivation
of liberty without due process of law.
v.
violation of the right to travel
Note that under Section 26, the Court does not even have the discretion whether or
not to confine the accused, out on bail, to within the municipality where s/he
resides. Upon the mere “application” of the Justice Department, the Court “shall”
order the same.
II.
The ATL, under section 19, provides for Indefinite detention upon orders
of an official who is not even a part of the judiciary
SEC. 19. Period of Detention in the Event of an Actual or Imminent Terrorist
Attack. – In the event of an actual or imminent terrorist attack, suspects may not
be detained for more than three (3) days without the written approval of a
municipal, city, provincial or regional official of a Human Rights Commission or
judge of the municipal, regional trial court, the Sandiganbayan or a justice of the
Court of Appeals x x x
The approval in writing of any of the said officials shall be secured by the police
or law enforcement personnel concerned within five (5) days after the date of the
detention of the persons concerned.
Provided, however, That within three (3) days after the detention the suspects,
whose connection with the terror attack or threat is not established, shall be
released immediately.
This draconian provision allows for the detention of a mere ‘suspect’ for more than
three (3) days without charges in violation of Article VII, Sec. 18 of the Constitution
which declares that “During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, otherwise he shall be
released.” The minimum that the authorities have to allege to justify detention
without charges is that there is an “imminent” terrorist attack. This virtually places
the liberty of the accused on the discretion of the military, the Justice Secretary or the
executive branch who are given the power to allege the “imminence” of a terrorist
attack.
Considering that many rights have been violated by this government,
especially the right to assembly, on the mere allegation of “intelligence reports”
showing a “possible attack” by “supposed rebels”, this provision is a cause for serious
concern as it virtually allows for the legalization of warrantless arrest as a means of
curtailing civil rights.
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Furthermore, it grants an official of an undefined “Human Rights Commission” the
power to order the detention of a suspect beyond three days, even if that official is not
a member of the judiciary and does not even have the right to issue a warrant of
arrest. Even if the written approval for the continued detention is issued by a judge,
this is still violative of due process because under Section 19, the military or the police
is not required to prove probable cause to justify continued detention. They merely
have to allege the ‘imminence’ of a terrorist attack to get the written approval.
Lastly, the privilege of writ is not suspended and therefore no person may be
detained for three days without the filing of charges against him. The ATL not only
essentially “suspends” the writ of habeas corpus but even goes beyond it by allowing
for the detention of a mere suspect beyond three days, belying the claim of ATL
advocates that the maximum period for detention under the law is only three days. It
must be noted that this particular section does not specify the maximum period
allowed for the detention of a suspect ‘in case of an imminent terrorist attack’. The law
merely requires the government to allege that the supposed link by that person to the
‘terrorists’ is established, but does not require the government to file the necessary
charges, as long as a written approval is secured.
III.
The ATL grants the Anti-Terrorism Council an undefined authority to order
the arrest of persons without warrant
Section 18 on ‘period of detention without judicial warrant’ surreptitiously granted
the Anti-Terrorism Council a vaguely defined power to ‘authorize’ the warrantless of a
‘suspect’:
SEC. 18. Period of Detention Without Judicial Warrant of Arrest. – x x x, any police or
law enforcement personnel, who, having been duly authorized in writing by the AntiTerrorism Council has taken custody of a person charged with or suspected of the
crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring
any criminal liability for delay in the delivery of detained persons to the proper judicial
authorities, deliver said charged or suspected person to the proper judicial authority
within a period of three (3) days x x x Provided, That the arrest of those suspected
of the crime of terrorism or conspiracy to commit terrorism must result from the
surveillance under Section 7 and examination of bank deposits under Section 27
of this Act.
This badly drafted section is interpreted as granting the ATC the power to
‘authorize’ the arrest of a person without warrant, virtually adding another instance of
warrantless arrest. After conducting surveillance on a suspect, the ATC, instead of
getting a warrant from a court, will authorize in writing a ‘law enforcement’ personnel
to arrest and detain a person. The ‘authority in ‘writing’ serves as a warrant under
Sec. 18. This exercise by Cabinet secretaries, of the ‘judicial’ function to find probable
cause and issue a “warrant” is surely unconstitutional as it usurps the powers of the
judiciary.
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IV. The ATL violates the right to association and assembly through its provision
on Proscription under Section 17
Sec. 17 “ Any organization, association x x x organized for the purpose of engaging in
terrorism, or which, although not organized for that purpose, actually uses the acts to
terrorize mentioned in this Act or to sow and create condition of widespread and
extraordinary fear and panic among the populace in order to coerce the government to
give in to an unlawful demand, be declared as a terrorist …organization.
Section 17 allows the ‘banning’ of a terrorist organization if that organization
“although not organized for [the purpose of engaging in terrorism] actually uses acts
x x x to sow and create a condition of widespread panic and extraordinary fear among
the populace in order to coerce the government to give in to an unlawful demand”.
Such a dangerously over broad provision will certainly render all organizations in
opposition to government policies liable for proscription. In the proscription provision,
the quantum of evidence required is substantially lessened so that organizing of a
major rally or a nationwide strike demanding the usual “patalsikin si Gloria” call for
example can lead to proscription because such “unlawful demand” caused fear and
panic.
Furthermore, mere membership in the proscribed organization renders that
member vulnerable to being arrested for being an accessory or a conspirator to the
crime of terrorism. It is also a ground for the examination of bank accounts and the
freezing of assets. The ATL virtually penalizes a person, for the mere exercise of his
constitutional right to association, and deems criminal a person who has not
committed any evil act. Worse, it is not even clear how the government will define
“who is a member” of an organization since Filipinos do not officially “join” or officially
“resign” from an organization.
Lastly, since membership is not easy to establish or refute, Sec. 17 is not just a
bill of attainder, but a direct threat against any individual who in one form or another
participated in the activities of a ‘proscribed’ organization. Filipinos do not normally
‘join’ an organization, we just attend meetings and join its activities. Filipinos do not
normally “resign” from an organization—we just do not attend meetings and activities.
Arrested ‘members’ will find it impossible to prove non-membership in an organization.
V.
The ATL provides for ex parte processes to conduct surveillance, open bank
accounts and freeze assets.
The ATL allows for the surveillance8 and examination of bank deposits of mere
suspects. This threatens not only the right to privacy but the constitutional right of
persons ‘to be secured in their homes, persons and papers”. In fact, under Section 27
even bank accounts of people not subject of the court order may also be examined by
an overbroad Paragraph B as part of the ‘relevant information” desired thus :
Sec. 7 x x x a police or law enforcement official and members of his team may, upon a written order of
the Court of Appeals, listen to, intercept and record x x x any communication, message, conversation x x
x between members of a judicially outlawed organization x x x or of any person suspected of the crime
of …conspiracy to commit terrorism.
8
10
Section 27. x x x [The Court ] may authorize in writing any police or law
enforcement officer and the members of his/her team duly authorized in writing by
the anti-terrorism council to:
(a) examine, or cause the examination of, the deposits, placements, trust accounts,
assets and records in a bank or financial institution; and
(b) gather or cause the gathering of any relevant information about such
deposits, placements, trust accounts, assets, and records from a bank or financial
institution.
[of a person ‘suspected’ of committing terrorism, or a member of a proscribed
organization]
The bank accounts of friends or relatives of a mere suspect, who may have
transacted with that person, may now be examined since it may form part of the
‘relevant information about such deposits under paragraph b, even if said account was
not even the subject of the application.
Worse, the ATL allows for the outright confiscation of the assets of a mere
suspect under Section 39:
SEC. 39. Seizure and Sequestration. –The deposits and their outstanding
balances, placements, trust accounts, assets, and records in any bank or
financial institution, moneys, businesses, transportation and communication
equipment, supplies and other implements, and property of whatever kind and
nature belonging:
(1) to any person suspected of or charged before a competent Regional Trial
Court for the
crime of terrorism or the crime of conspiracy to commit terrorism;
(2) to a judicially declared and outlawed organization, association, or group of
persons; or
(3) to a member of such organization, association, or group of persons
shall be seized, sequestered, and frozen in order to prevent their use, transfer,
or conveyance for purposes that are inimical to the safety and security of the
people or injurious to the interest of the State.
The accused or a person suspected of may withdraw such sums as may be
reasonably needed by the monthly needs of his family including the services of
his or her counsel and his or her family’s medical needs upon approval of the
court. He or she may also use any of his property that is under seizure or
sequestration or frozen because of his or her indictment as a terrorist upon
permission of the court for any legitimate reason.
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It must be noted that the sequestration under Section 39 is automatic—no
process is required at all.9
Opposition elements and business opponents are
vulnerable under this provision since the government has untrammeled powers to
seize these accounts without restrictions as long as that person is at least “suspected”
of the crime of terrorism or ‘conspiracy’ to commit terrorism.
The portion allowing the “suspect” to withdraw reasonable amounts is of no
comfort, and in fact, is humiliating on the “victim”.
The provisions on surveillance and examination of deposits are serious threats
to the right to privacy and security, among others. This is compounded by the
ominous power granted to the Anti-Terrorism Council under Section 54 of the ATL to
“4. Establish and maintain comprehensive data-base information systems on terrorism,
terrorist activities, and counter-terrorism operations” . The ATC’s “big brother” power to
keep dossiers of “suspects” and their “activities” is certainly unfettered as it is undefined.
Coupled with the provision in Sec. 54 par. 2 which grants the ATC the vague yet broad power to
“mobilize the entire nation against terrorism’ the ATC is now transformed into powerful body
with resources and power to decide on the fate of individuals. Considering that it is composed of
Exec. Sec. Eduardo Ermita, Sec. Raul Gonzalez, the DILG Secretary, the DND Secretary, the
National Security Adviser and NICA as its secretariat, the ATC may be deemed a virtual ‘junta’
under the leadership of the President so powerful that it can even order the arrest of members of
other branches of government in efforts to stamp out terrorism. This concern is not without
historical basis, considering our experience when Pres. Marcos declared martial law in 1972.
VI.
Automatic forfeiture without due process under Sec. 41
Worse, the ATL allows for the automatic forfeiture of assets under Sec. 41:
SEC. 41. Disposition of the Seized, Sequestered and Frozen Bank Deposits,
Placements, Trust Accounts, Assets and Record. – x x x
If the person charged with the crime of terrorism or conspiracy to commit
terrorism is convicted by a final judgment of a competent trial court, his
seized, sequestered and frozen bank deposits, placements, trust accounts,
assets and records shall be automatically forfeited in favor of the
government.
There is no need for the prosecution to prove that the moneys and assets are
that of “terrorists” or used by “terrorists”. The mere conviction of an accused,
automatically forfeits his assets, even if the same were legitimately acquired, inherited
or given through other legitimate means. Considering that a the properties of a mere
suspect or a ‘member’ of an organization declared as a terrorist organization is
automatically subject of a ‘freeze’ order, this ‘automatic forfeiture clause is not only
violative of the due process rights of an individual but also those of his or her family
and heirs. The trial as to the guilt of an accused for acts of terrorism, does not
necessarily provide for a finding as to whether his or her assets are ‘terrorist’ assets.
The surreptitious insertion of the word “freezing” or “frozen” in sections 28 and 30 does not cure this defect, and in fact
is clearly disjointed from these provisions, since these Sections 289 and 30 talk about examination and has no relation at
all with ‘freezing’ an account.
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C. THREATS AS CHILLING EFFECTS
The danger posed by the anti terror law is not merely confined on its
application on an individual, but also includes the mere threat of its application.
Media personalities or opposition figures need not be charged under the law—the mere
use of it as threat is already a direct injury to civil rights.
The use of Sec. 26 which
restricts a mere suspect, either in the place where he resides or worse, under house
arrest, will certainly provide a ‘chilling effect’ on media, opposition personalities and
members of various organizations.
Additionally, it must be noted that the law empowers “persons in authority” to
implement the law. The members of the Armed Forces of the Philippines have been
serving warrants of arrest recently and conducting ‘police functions’ in urban areas,
and under the law, they can be deemed to form part of those that will execute the law.
The AFP has been actively involved in political activities, not only in the field of
“propaganda” but even in the election itself. It is certainly anomalous for the AFP to
conduct police functions under the Constitution. It is certainly dangerously “chilling”
on dissenters for military generals to be given the power to implement the ATL.
D. ANTI TERRORISM COUNCIL: A POWERFUL JUNTA
The ATC is composed of executive officials such as the Executive Secretary,
DILG Secretary, Defense Secretary and the National Security “Advisor” with the
National Intelligence Coordinating Agency [NICA] as its Secretariat and the ISAFP and
the NBI among its support agencies. The law grants it sweeping powers and functions:
SEC. 54. Functions of the Council. – x x x:
1. Formulate and adopt plans, programs and counter-measures against terrorists
and acts of terrorism in the country;
2. Coordinate all national efforts to suppress and eradicate acts of terrorism in
the country and mobilize the entire nation against terrorism proscribed in this Act;
3. Direct the speedy investigation and prosecution of all persons accused or
detained for the crime of terrorism x x x ;
4. Establish and maintain comprehensive data-base information systems on
terrorism, terrorist activities, and counter-terrorism operations;
5. Freeze the funds property, bank deposits, x x x assets and records belonging
to a person suspected of or charged with the crime of terrorism or conspiracy to
commit terrorism, pursuant to Republic Act No. 9160 otherwise known as the
Anti-Money Laundering Act of 2001, as amended;
6. Grant monetary rewards and other incentives to informers x x x;
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The ATC, is essential a junta given the broad and undefined executive power to
‘adopt’ counter measures against ‘terrorists’ including the brown-shirts mandate to
‘mobilize the entire nation’ against terrorism’. The ATC could exercise its sweeping
powers to promulgate rules that restrict rights and redefine legal obligations without
legislative sanction as part of its function to ‘adopt plans and countermeasures”
against terrorism. The ATC, a more powerful prosecutorial body than the Inter-Agency
Legal Group (IALAG) and any of the Cabinet Clusters, is empowered to take over the
DOJ function of “directing the prosecution” of those accused under the law. As such,
it can direct the investigation and even prosecution of any person it ‘suspects’ of
committing terrorism including members of the opposition, judiciary and the Senate.
Considering that it can compile dossiers of anybody ‘suspected’ of amorphous
new crimes such as ‘conspiracy to commit terrorism’ under its power to “maintain
comprehensive data-base information systems on … terrorist activities” the ATC is a
virtual “Big Brother” armed with the important power of information that may be used
to influence or threaten not just the opposition but even officials in any of the three
branches of government.
Coupled with its ‘probable cause’ powers under Sec. 18 to ‘authorize police or
law enforcement personnel’ to arrest and detain “suspects” without warrant, the ATC is
a superbody that can tap, examine bank accounts, arrest, prosecute or just detain any
person within its jurisdiction. This powerful superbody therefore with (i) quasilegislative rule making powers to “adopt plans and counter-measures” against
‘terrorism’, (ii) executive powers to investigate, prosecute and mobilize the entire nation
against ‘terrorism’, and (iii) its quasi-judicial function of ordering ‘authorizing’ arrest
without warrant, the freezing and forfeiture of assets, and detention of suspects in
case of ‘imminent terrorist attack’ has the makings of a government agency with
unfettered delegated powers that usurp both certain executive, legislative and judicial
functions without any constitutional sanction.
TOOTHLESS SAFEGUARDS
Due to the fears that the law will be abused, Sen. Enrile provided for
‘safeguards’ in the law to assuage these fears. Are these real safeguards ? No, these
are not effective safeguards.
Firstly, the P500,000.00 payment for each day of illegal detention is no
safeguard at all considering that the amount will not come from the erring military or
police officer but from public funds, namely the budget of the erring agency, the antiterrorism council and the President’s social and emergency funds. It is not certainly
right for the taxpayers to pay a staggering amount for the incompetence or abuses of
the PNP or the AFP. Furthermore, there is no justifiable reason why funds supposedly
allotted for calamities such as floods, will be spent to cover for the abuses of
government, courtesy of the empoverished Filipino people.
Secondly, the supposed Penalty for Arbitrary Detention under a Section 20 is
so vaguely drafted that all detentions can be justified as legal by the AFP and the PNP.
The requirement to ‘deliver’ an accused to the judiciary may be interpreted as merely
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‘presenting’ the detainee to a judge [as required in Section 18]10 instead of the filing of
an appropriate case against the person. After the person is ‘delivered’ to a judge, the
arresting officer may no longer be liable for illegal detention even if he detains the
person without charges. Anyway, under Section 26 the detention of a person without
charges is cured by the ‘written approval’ of municipal functionary.
Lastly, the law itself, under Section 50, provides that if there is no budget for
the payment of the P500,000.00/day damages, the same shall be included in the
following year’s budget, thereby subjecting the supposed payment to the vagaries of
budgetary negotiations and approval in Congress.
Because the law violates the Constitution, and its implementation threatens
the rights of the people, the law is void and must therefore be declared as such.
HRW Report
El Salvador: Terrorism Law Misused Against Protesters
Salvadoran Legislature Should Amend Overbroad Law Against Terrorism
(Washington, DC, July 31, 2007) – The government of El Salvador should dismiss terrorism
charges brought against protesters who allegedly blocked roads and threw stones at a July 2
demonstration, Human Rights Watch said today.
On July 2, a public protest in the Suchitoto municipality against a national plan to
decentralize water distribution ended in a violent confrontation between police and
protesters. Protesters blocked public roads and threw rocks at police, while police fired tear
gas and rubber bullets at protesters. Police also alleged that protesters fired shots, although
none of the press coverage of the demonstration mentioned that protesters were shooting.
Fourteen people were arrested and subsequently charged with "terrorism": 10 of them were
charged on the basis of alleged involvement in the roadblocks and rock-throwing, and three
others on the basis of additional claims that they used firearms against police. (Charges
against the remaining defendant, who allegedly interfered with police operations, were
provisionally dropped.) An appellate court sustained the charges against the 13 defendants,
but found that the firearms allegations were not even minimally supported by the evidence.
10
Sec. 18. The police or law enforcement personnel concerned shall, before detaining the person
suspected of the crime of Terrorism, present him or her before any judge at the latter’s residence or
office … “
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