This story
was taken from Bulatlat, the Philippines's alternative weekly
newsmagazine (www.bulatlat.com, www.bulatlat.net, www.bulatlat.org).
Vol. V, No. 12, May 1-7, 2005
Anti-Terrorism Bill:
More Monstrous than the Monster Itself
[1]
The proposed law poses a grave
danger to the rights and freedoms of the people whom it purports to protect. The
draconian measures will create a monster more monstrous than what it claims to
eliminate.
By Edre U. Olalia
We will go straightaway to a textual legal
examination of selected provisions of the proposed Anti-Terrorism Bill (ATB)
pending in the House of Representatives
[2] and attempt to relate its effects on civil and political rights.
The ATB defines terrorism
as:
1) the premeditated use, threatened use, actual
use 2) of violence, force, or by any means of destruction 3) perpetrated against
persons or properties 4) with the intention of (a) creating or sowing a state of
(i) danger, (ii) terror, (iii) panic, (iv) fear, or (v) chaos to the general
public, group of persons or particular person, or of (b) coercing or
intimidating the government.[3]
How then, it may be asked, is this different
from murder, homicide, parricide, infanticide, tumultuous affray, mutilation,
physical injuries, rebellion, sedition, assault, robbery, theft, arson,
kidnapping, coercion, threats, rape, malicious mischief, hijacking, destruction
of property, piracy, etc.? Or even abortion, duel, abandoning a minor, drug
pushing, obstruction of traffic, hacking etc. already existing in the Revised
Penal Code and other special criminal laws? This makes the definition
potentially and actually superfluous as it covers the definition and essential
elements of other crimes.
The definition is also overbroad and vague as it
is open to subjective interpretation and, therefore, abuse. It includes even
the “threatened use of violence, force or by any means of destruction” which may
be conceptually and practically problematic especially if measured against the
three recognized stages of executing a crime i.e. attempted, frustrated and
consummated.
It does not legally define with clarity concepts
like “danger, terror, panic, fear, or chaos,” concepts that may be amorphous
and expansive, and therefore, subject to the unbridled discretion of peace
officers. Note also that it covers an act even if the state of “danger etc.” is
intended or affects only a “particular person.” Finally, it covers the blanket
and catch-all intention of “coercing or intimidating the government.” This may
be used against dissenters, oppositionists, critics, advocates, lobby groups and
legitimate national liberation movements.
The ATB further on tries to define how terrorism
is committed.[4]
One disturbing definition of a predicate act is that of “(3) threatening or
causing serious interference with or serious disruption of an essential service,
facility or system, whether public or private, other than a result of lawful
advocacy, protest, dissent or stoppage of work;”[5]
This, in our view, is an open and direct threat
by the State toward legitimate political activity that does not agree with its
pronouncements, programs, and policies and may even cover an otherwise innocuous
daily behavior or conduct. Also, the term “essential service, facility or
system” may be overextended to cover just about anything that the State deems
“essential”. This may be akin to the arbitrary and questionable inclusion of
even non-vital industries to justify the compulsory assumption of jurisdiction
by the State in labor disputes for industries “affected with national interest.”
Finally, the qualification “other than [as] a
result of lawful advocacy, protest, dissent or stoppage of work” is meaningless
and impractical. While obviously attempting to diffuse well-grounded criticism
that this might curtail basic civil rights in the Philippine Constitution like
freedom of speech and expression and the freedom of peaceful assembly and the
right to seek redress for grievances, this seems self-contradictory. Under the
cited provision, when an advocacy, protest, dissent or stoppage of work results
in “threatening or causing serious interference with or serious disruption of an
essential service, facility or system,” then such advocacy etc., from the point
of view of the State through its penal laws, becomes unlawful and, therefore,
excluded from the exception.
Besides, there are already laws or provisions in
laws (e.g. B.P. 880 or the Public Assembly Act, the Labor Code and the Revised
Penal Code) that easily make what otherwise is legitimate advocacy etc. to
become unlawful (e.g. no permit-no rally, no strike vote or failure to observe
cooling off period in labor strikes; and speeches or materials that may be
branded as seditious or inciting to sedition.)
In fact, all the predicate felonies and acts
mentioned in the ATB[6]
may be covered by existing penal laws and international covenants (depending on
the particular elements of the act), making them superfluous and unnecessary.
Hence, what ordinarily were just common crimes before are now magnified to
constitute acts of “terrorism” if they are committed and could be regarded under
the purposes mentioned in the dubious definition above. This puts to naught the
constitutional principle against double jeopardy.
For instance, the predicate felony or act of
“threatening or causing death or serious bodily harm to a person or persons or
deprivation of liberty, or to cause a serious risk to the health or safety of
the public or any segment of the public”[7]
may invariably be covered by murder, homicide, parricide, infanticide,
tumultuous affray, abortion, duel, mutilation, physical injuries, rape,
abandoning a minor, rebellion, sedition, assault, kidnapping, destruction of
property, malicious mischief and even drug pushing etc.
Besides, all the enumerated felonies and acts in
the ATB as predicate crimes must of necessity involve, directly or indirectly,
in varying degrees “the premeditated use, threatened use, actual use of
violence, force, or by any means of destruction perpetrated against persons or
properties” and invariably are always accompanied or characterized “with the
intention of” either “creating or sowing a state of danger, terror, panic,
fear, or chaos to the general public, group of persons or particular person,
and/or, in some cases, “of coercing or intimidating the government.” Otherwise,
without such intention, the criminal intent may be wanting. Hence, the coverage
is redundant and makes the definition indeed superfluous.
To further show the danger of the coverage of
the ATB, other predicate felonies and acts may be mentioned. Thus for instance,
“attacking or threatening to attack, or transmission of virus in cyberspace, or
committing any other unlawful acts against networks, servers, computers and
other information and communication systems
[8]” or “willful destruction of natural resources such as forests or marine
resources, oil spillage, and other similar acts of destruction against the
environment that threatens ecological security[9]”
are predicate acts of terrorism.
These provisions on “cyberterrorism” and on “oil
spillage” show the overextended application of the proposed bill to
comparatively less grievous and heinous acts. It is disproportionate to the
possible varying degrees of gravity of the offense i.e. even simple technical
offenses or unintentional or negligent acts may now be considered a way of
committing “terrorism.”
The draconian nature and disproportionateness of
the penalty of life imprisonment to death and a fine of P10 million[10]
are underscored given the broadness, vagueness and superfluity of the conceptual
definition of terrorism and how it is committed.
The ATB also penalizes the participation,
facilitation, and contribution to any “terroristic activity”
[11] Again, given the broad, vague and superfluous conceptual definition of
terrorism and how it is committed, this is draconian and is even expanded not
only to “participation” but also “facilitation or contribution,” terms which are
undefined and may be subjectively and arbitrarily interpreted.
For instance, “establishing or maintaining or
serving as, contact or link, with any person or persons that are known to have
pursued or are pursuing terroristic activities[12]”
is overbroad because it would penalize even contacts or links which are
unintentional or unknowing.
Also, the ATB would penalize the “recruiting in
order to facilitate or commit x x x an act or commission outside of the
Philippines that, if committed in the Philippines would be an offense under this
Act[13]”
and hence overextends Philippine criminal jurisdiction and violates principles
and rules on non-extraterritorial application of penal laws.
Moving further on, the ATB proscribes
organizations and membership in organizations that supposedly commit or
participate in “acts of terrorism,”, “prepare for, promotes or encourages
terrorism” or “is otherwise involved in terrorism.”
[14] This is virtually the Philippines’ own “terrorist listing” following
the pattern of the U.S., European Union and other countries.
A strong argument can be presented that it is
against the constitutional ban on bills of attainder i.e. because it punishes
mere membership in a “proscribed organization” without such “affiliate or
member” being tried for the alleged particular acts of such organization. It
may be argued that it practically singles out a class or group by mere
legislative fiat instead of a judicial determination where punishment is
pronounced only after trial. Indeed, this is tantamount to guilt by association
and violates the presumption of innocence.
And given the vague and expansive definition of
“terrorism”, it is even more dangerous that the ATB penalizes “any person who
has personal knowledge or information of any of the acts punished and conceals
or does not disclose the same as soon as possible to the government.”[15]
This may be seen as another imminent threat to journalists in the exercise of
their profession and even to ordinary civilians who have inadvertently heard or
was informed of a “terrorist act.”
Perhaps what is instantly the most concrete
objectionable provision of the ATB is on the detention of a person arrested
without warrant.
[16] Under the ATB, the person arrested may be detained without charges
being filed in court for 30 full days (compared to the existing period of a
maximum of 36 hours only which doubled the theoretical maximum of 18 hours
during Marcos).
Based on experience, this situation makes it
susceptible to violation of one’s rights to counsel, visit by relatives, to be
informed of the right to remain silent and counsel and opening further the
opportunity of forced or coerced extra-judicial confessions, maltreatment,
torture and even summary execution. This, despite the formal recognition in the
ATB of rights under RA 7438 (An Act Defining Certain Rights of Persons Arrested,
Detained or Under Custodial Investigation) which are not being followed anyway,
not to mention that no one has been punished under this yet. And considering
that the ATB makes the offenses under it non-bailable even more highlights the
repressive nature of this provision.
And there is more. Under the ATB, any person who
serves as a witness for the government or provides evidence in a criminal case
involving any violation of the Act, shall – without qualification – be immune
from any criminal prosecution.[17]
Observers think that this may make every human
rights violator happy. All they have to do is to testify in the trial of the
person violated and they may be exonerated from any liability arising from any
violation of civil and political rights. The immunity is absolute and defeats
the formal protection of RA 7438.
The ATB now would make the Anti-Money Laundering
Act applicable to “acts of terrorism.”[18]
The provision that “deposits or investments with any banking institutions or
non-bank financial institutions may be inquired into or examined without prior
court order” is a clear invasion of privacy and property rights and is open to
arbitrary application because there is no judicial process involved.
Similarly, the ATB would make the
Anti-Wiretapping Act applicable.[19]
But the ATB even expands the scope of crimes that may be subject of wiretapping.
Previously, the situation only applies as an exception to treason, espionage,
provoking war and disloyalty, piracy, mutiny, rebellion, sedition, kidnapping
and other offenses against national security. In fact, under the ATB, no court
order to wiretap is necessary if there is a “written consent of a party to the
communication to be monitored or recorded.” This is both ridiculous because no
one will intelligently agree voluntarily to such wiretap and dangerous because
the consent may easily be manufactured, fabricated or coerced or a poseur may
connive in the set-up.
The ATB also would now legalize and provide
impunity for the installation, use and retrieval of surveillance device.[20]
The application to wiretap can be made before the “executive judge of any
Regional Trial Court.” This is open to abuse and collusion because the order to
install, use and retrieve a surveillance device may be applied and granted by a
judge located remotely outside its ordinary territorial and judicial
jurisdiction and considering that the period to wiretap is 60 days extendible
for another 60 days.
To provide further impunity, the ATB gives
virtual, total, absolute immunity because “a good faith reliance on a court
order under this Act, is a complete defense against any civil or criminal action
brought under this Act or any other law.” This adds to the existing shield of
immunity of state agents against abuse of power because of the longstanding
principle in evidence of “presumption of regularity in the performance of
official functions.” This is also an invitation to abuse and violation as there
is a very lenient, light and liberal penalty of 6 months to 6 years imprisonment
for the very dangerous and almost irreparable act of unauthorized disclosure of
information taken from wiretapping.
Finally, the ATB makes inapplicable the
opportunities for probation and plea-bargaining
[21] This further reflects the draconian character of the proposed
legislation and discourages remorse, reformation and rehabilitation of those
charged and convicted of acts covered.
From the sketch above, the ATB is vague, broad
and superfluous and gives unbridled discretion to state agents and is,
therefore, against substantive due process. It is clear that the ATB violates
so many constitutional and legal rights and provisions including the right to
due process, presumption of innocence, against unreasonable searches and
seizures, privacy of communication and correspondence, free speech, assembly,
association, right against bills of attainder and other rights. These are rights
recognized not only in the 1987 Constitution but also in international
instruments such as the 1948 Universal Declaration of Human Rights and the 1966
International Covenant on Civil and Political Rights.
It also fails to distinguish the legitimate acts
of groups involved in an armed conflict under the standards of international
humanitarian law. It ominously cannot address the atrocious terrorist acts of
agents of the State and of foreign governments, governments that have been
pressuring the Philippine government to follow its dubious “war on terror.”
There is already an abundance of laws in place
that can well cover felonies that cause violence to life, liberty and property.
What is more significant to note is that there are still subsisting laws, orders
and jurisprudence – enacted and issued in the name of “peace and order” and
“national security” – that seriously endanger and even engender violations of
the people’s civil and political rights.
The ATB is also an open, contemptuous and
flagrant violation of the 1998 Comprehensive Agreement on Respect for Human
Rights and International Humanitarian Law (CARHRIHL) between the government and
the National Democratic Front of the Philippines (NDFP). In that landmark
document, the government expressly committed to repeal repressive laws, orders,
issuances and jurisprudence.[22]
Instead of acting for their immediate and effective repeal, it is now adding
insult to injury by pushing for draconian “anti-terrorism” legislation far worse
than what already exists. It is not consistent with its common commitment that
“all necessary measures shall be undertaken to remove the conditions for
violations and abuses of human rights and to render justice to and indemnify the
victims.”[23]
We should reexamine and oppose this proposed
Act, or any legislation of a similar character, as it is the kind of law that
potentially and actually erodes further the civil and political rights of the
people and provides further legal impunity for their violations. It makes the
rights and freedoms of the people secondary to purported “peace and order” and
“national security” considerations and puts a legal imprimatur on the already
factual and legal impunity of violators of civil and political rights.
Concretely, coupled with other proposed measures
like the national and community ID system, and in the context of present
political and economic realities and the people’s discontent, the brazen and
ruthless violations of democratic rights and roving killings even of our
brethren, this “anti-terrorism” legislation poses a further intrusion and
serious threat to the rights of individuals, the people, legal formations as
well as genuine national liberation movements.
In conclusion, the proposed law poses a grave
danger to the rights and freedoms of the people whom it purports to protect. The
draconian measures will create a monster more monstrous than what it claims to
eliminate. Posted by Bulatlat
------------------------------------------------------
[1]
Paper presented before the Forum: “Attack against Lawyers and Civil Liberties:
Legal and Political Implications,” 18 April 2005, University of the Philippines
(UP) College of Law, Sponsored by the Pro-People Law Network (PLN), Public
Interest Law Center (PILC) and Young Lawyers League for Civil Liberties (YLL).
[2] Using the latest consolidated House of Representatives Technical Working
Group Draft of the 13th Congress as of 24 February 2005 entitled “An Act
Defining Terrorism. Establishing Institutional Mechanisms to Prevent and
Suppress its Commission, Providing Penalties Therefor and for Other Purposes.”
As of 15 March 2005, the Senate has not yet consolidated the different bills on
the subject matter (Senate Bill Nos. 735, 831, 871, 1736 and 1768 introduced by
Senators Villar Jr., Lacson and Enrile, J. Estrada, Magsaysay Jr. and Lim,
respectively).
[3]
Section 3.
[4]
Section 4.
[5]
Paragraph 3, Section 4.
[6]
Paragraphs 1-10, Section 4.
[7] Paragraph 1, Section 4.
[8]
Paragraph 8, Section 4.
[9]
Paragraph 9, Section 4.
[10]
Last Paragraph, Section 4.
[11]
Section 6.
[12]
Paragraph 1, Section 6.
[13]
Paragraph 5, Section 6.
[14]
Section 7.
[15] Section 9.
[16]
Section 10.
[17]
Section 11.
[18]
Section 13. R.A. 9160 or “Anti-Money Laundering Act of 2001,” as amended by RA
9194.
[19]
Section 14. RA 4200 or “Anti-Wiretapping Act.”
[20]
Section 15.
[21]
Section 17.
[22]
Articles 6, 7 and 8, Part III, CARHRIHL.
[23] Article 4, Part III, CARHRIHL. © 2004 Bulatlat
■
Alipato Publications Permission is granted to reprint or redistribute this article, provided its author/s and Bulatlat are properly credited and notified.
Vice President
International Association of People’s Lawyers (IAPL)
Posted by Bulatlat