How terrifying is the approved Anti-Terrorism bill?

Since the enactment of the Human Security Act of 2007, there were more than 80 significant incidents of terrorism in the country. How can we ever forget the bombing of the Jolo Cathedral during a mass on January 27, 2019 killing at least 20 persons and injuring about a hundred more. The identified perpetrators of this senseless massacre of innocent churchgoers died with their victims. But how many were charged and convicted for violations of this special law in relation to the other incidents?

The good Senator, who described the law as providing more offenses on the part of the law enforcer than the terrorist, noted only one conviction positing that law enforcers would rather charge perpetrators with murder than risk the penalties imposed under the Human Security Act. Is the problem in the law then, or is it in its enforcement?

In pushing for the amendment of this law, the Armed Forces of the Philippines raised, among several concerns, the provision awarding damages upon acquittal of the accused in the amount of five hundred thousand pesos (P500,000) for every day that the accused has been deprived of liberty or arrested without a warrant, chargeable against the appropriations of the agency responsible for the accusation.

This provision was removed in the now controversial Anti-Terrorism Act of 2020, which the President is expected to sign into law any day now. What made it more controversial was the withdrawal of the primary mover of the Anti-Terrorism bill in the House of Representatives as author of the bill, and his subsequent “NO” vote to the Senate version that was reportedly adopted in its entirety by the House. The introduction of any modification would have required a bicameral conference that would lengthen the process hence no amendments were allowed to the dismay of some congressmen.

What made him change his mind, other than the fact that he did not want his name attached to a bill that is not his real work? He later explained the need to reword some provisions to avoid misinterpretation, zeroing in on the authority of the Anti-Terrorism Council (ATC) to determine probable cause in designating a terrorist. Indeed, there is a new provision on designation of terrorist individual, groups of persons, organizations or associations that is not done by the more objective courts, but by the ATC consisting of cabinet secretaries, who are all alter egos of the President.

Those opposing the new measure fear that any individual or group critical of the President may be designated as terrorist on a finding of mere probable cause by the President’s men and immediately subjected to the provisions of the law. It appears however that the designation mentioned in Section 25 is particularly limited to subjecting the assets of the suspected terrorist to the authority of the Anti-Money Laundering Council (AMLC) to freeze pursuant to the Terrorism Financing Prevention and Suppression Act of 2012. It does not appear that the designation would be tantamount to conviction. Considering that money could be transferred instantly, there may be good justification for an ex parte order from the AMLC to freeze the asset for a period not exceeding 20 days. Besides, there are available judicial remedies against a patently wrongful designation of an individual or group as terrorist.

Except for the warrantless arrest, possible curtailment of rights such as surveillance of suspects and interception and recording of communications; issuance of an order of proscription where a group of persons, organization or association is declared as a terrorist and outlawed group; restriction on the right to travel; and imposition of punishment upon determination of guilt, shall go through judicial proceedings.

The way I see it, the approved bill has some redeeming provisions, such as the recognition in the Declaration of Principles that combating terrorism requires full understanding of the root causes of violent extremism. The approved bill also stipulates that terrorism “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety”.

Then there is the mandate on the ATC to formulate and adopt counter-terrorism programs like one that “shall address the conditions conducive to the spread of terrorism, which include, among others: ethnic, national, and religious discrimination; socio-economic disgruntlement; political exclusion; dehumanization of victims of terrorism; lack of good governance; and prolonged unresolved conflicts by winning the hearts and minds of the people to prevent them from engaging in violent extremism.”

There is also a more active and meaningful role of the Commission on Human Rights (CHR) since the bill requires law enforcement agents or military personnel implementing an order of the ATC to take into custody persons suspected of committing any act of terrorism, to furnish the CHR with a copy of the written report of apprehension. There is strengthening of international cooperation and assistance in the fight against terrorism by automatically adopting the United Nation Security Council’s list of designated individuals, group of persons, organizations, or associations designated or identified as terrorist groups.

However, there are possible constitutional challenges when the approved bill becomes a law, and I wonder how the Supreme Court would resolve the following issues: (1) The expansion of the qualifying objective of the predicate crimes in Section 4 by including “to provoke or influence by intimidation the government or any international organization”, which appears to be vague and therefore allows the government unbridled discretion in its implementation; (2) The authority of the ATC to order the taking into custody of a person who is suspected of committing any of the acts prohibited by the bill without judicial warrant. Under the 1987 Constitution, only a judge can order the arrest of a person upon a finding of probable cause that the person committed a crime. Administrative officers have no authority to order the arrest of persons for prosecution purposes. It may be argued though that the taking into custody under this provision is only intended to allow the authorities to conduct custodial investigation, and not an arrest as defined under Rule 113 of the Rules of Court, which can be ordered only by a Judge. Yet any form of forcible restraint of liberty is an arrest no matter how you call it.

On a delicate issue that could rub on the sensibilities of people of different leanings, there may not be a perfect anti-terrorism law that could both satisfy the wishes of law enforcers and at the same time appease fears against its abuse and misapplication. Yet, we all know that terrorism has no place in our civilized society, thus the need for an effective law to stop it. The beauty of our democracy is our system of Constitutional checks and balances. There may be flaws in the approved bill, but certainly, at the opportune time, the Supreme Court shall weed out its unconstitutional provisions, if any.

It seems that most of the objections are premised on the possible excesses in the enforcement of the soon to be signed Anti-Terrorism Act. Thus, the ATC, military, and police personnel tasked to implement the law should be guided by the basic rule that in all crimes, from the petty theft to terrorism, the Constitutional presumption of innocence unless proven otherwise, still applies. Meanwhile, the citizenry should remain vigilant to ensure that the system of checks and balances shall never be compromised.