[EDITOR’S NOTE: Oral Arguments for the petition to declare the Anti-Terrorism Act of 2020 is currently on-going at the time of posting]
By: Annelyse Camille C. Andal and Quennie Razelle B. Sereno
The Anti-Terrorism Act of 2020,[1] arguably the most controversial legislation passed amidst the COVID-19 pandemic, took effect on July 18, 2020. The said law was passed by the Senate on February 3, 2020, by the House of Representatives on June 5, 2020, and finally signed by the President on July 3, 2020. The law repealed the Human Security Act of 2007,[2] aiming to provide stricter measures in containing and combating terrorist activities in the country. Aside from its ill-timing, the law has received backlash and widespread opposition due to its questionable intentions and unconstitutionality, making “#JunkTerrorBill one of the top trending topics across all social media platforms.
A continuous struggle with domestic terrorism
The threat of terrorism in the country is genuine and increasing. The Global Terrorism Database of University of Maryland concluded that the number of attacks in the country has increased over the past five election terms, especially in Mindanao. Harry Roque, the current Presidential spokesperson, mentioned in an interview that the law demonstrates the country’s serious commitment to stamp out terrorism and that it seeks to make communities safe under the rule of law.
Senator Panfilo “Ping” Lacson, one of the authors of the said law, cited a research study entitled 2019 Global Terrorism Index: Measuring the Impact of Terrorism which ranked the Philippines as the ninth (9th) country most impacted by terrorism. According to the study, the Philippines remains to be the only Southeast Asian country to be included in the top ten countries most impacted by terrorism. The New People’s Army (NPA), the Islamic State of Iraq and the Levant (ISIL)[3], the Bangsamoro Islamic Freedom Movement (BIFM), the Abu Sayyaf (ASG), and the Maute Group were responsible for the terrorist activities in the country. The study also mentioned that limited coordination, lack of capacity, and geographical challenges hamper government’s response to terrorism.
Addressing strategic deficiencies
In view of the impact of the COVID-19 pandemic, the Financial Action Task Force, a global money laundering and terrorist financing watchdog, temporarily postponed the review process of those countries in the black list (countries with serious strategic deficiencies) and grey list (countries actively working with the FATF to address strategic deficiencies) as well as those under observation period. In October 2019, the Philippines was put under observation period which will now end in February 2021; after which, the country will submit a comprehensive progress report. The FATF will then decide whether or not to include the country in the grey list in June 2021.
If our state regulations remain lax, international banks and institutions will be compelled to treat transactions by Filipinos with extra caution through an additional layer of scrutiny and may become reluctant to enter partnerships with Philippine banks. The delay in processing of transactions due to requests for additional documentary requirements for five (5) to ten (10) days may result in a reduction of two to four percent (2-4%) in annual foreign currency remittances.
According to Atty. Mel Georgie Racela, executive director of the Anti-Money Laundering Council secretariat, the postponement of the review process gave the country more time to address strategic deficiencies in its anti-money laundering and counterterrorism financing system amid the pandemic. To avoid being included in the grey list, the government would have to amend the Anti-Money Laundering Act and the Human Security Act—the latter now repealed by the Anti-Terrorism Act.
Terrorism 4.0
As the world is changing with advances in technology so does the threat of terrorism. According to Ramona Manescu, Minister of Foreign Affairs of Romania, in the age of smarter, smaller, and cheaper technology, terrorism presents more and new threats. The classic terror attacks such as hijacking planes and planting bombs are still present but many modern threats now arise. There is need to update our traditional definition of terrorism in order for our counterterrorism measures to remain effective in contemporary times.
Breaching Constitutional Rights
It cannot be denied that there is a need for enacting a law that will further protect the country against terrorism, however, such is not a valid excuse to violate constitutional rights. Despite numerous calls to scrap the bill entirely, the law was passed. As of October 2020, 37 petitions were filed in the Supreme Court, making it the most highly contested law in the Philippines.
One of the grounds mentioned in some of the petitions filed against the law is its vagueness and ambiguity. In Estrada vs. Sandiganbayan, [4] Justice Vicente Mendoza stated in his separate opinion that a statute, especially one which involves criminal prosecution, must be definite to be valid. He states that a vague and overbroad statute is in violation of the due process clause if “its language does not convey sufficiently definite warning to the average person as to the prohibited conduct.”
In several petitions, it was raised that the law criminalizes mere intent, and that it tends to expand the definition of terrorism by including broad offenses such as “engaging in acts intended to endanger a person’s life,” intended to “damage public property” or “interfere with critical infrastructure,” where the purpose is to intimidate the government. This is seen as threatening because the expansion of the definition of terrorism, or what specific actions may qualify as acts of terrorism, make it susceptible to erroneous interpretations and even abuse.
Intrusion of the rights to privacy
In the motion filed by the Makabayan bloc seeking injunctive relief to forestall serious damage, it was mentioned how the law intrudes on the right to privacy and the fundamental political rights enshrined under the Constitution. In essence, the Anti-Terror Law endangers the freedoms of the people.
In addition to the restrictions on the right to travel which the law has imposed to terrorism suspects, it has also expanded the list of persons who may be subjected to surveillance or wiretapping by including those who are merely suspected of committing acts that are penalized under the law. Such surveillance includes tracking not only of members of organizations officially declared by the courts as terrorists, but even those who are merely suspects thereof.
The problem with this according to the Concerned Lawyers for Civil Liberties is that those who are subject to surveillance have already been imprisoned even before they are made aware of the actions against them.
Deprivation of due process
“While advocacy continues at the national level toward the passage of a specific law for the protection of human rights defenders, they are now even more vulnerable with the passage of this law. This law not only fails to comply with international human rights law, it will severely restrict due process and the rule of law in the Philippines,” stated by Tess McEvoy in an article published by International Service for Human Rights.
Christian Monsod, one of the framers of 1987 Constitution, pointed out that Section 29 of the Anti-Terror Law, which allows detention without judicial warrant of arrest and only requires that the law enforcer or military personnel be duly authorized in writing by the Anti-Terrorism Council, is contrary to Section 2 of Article 3 of the Constitution. A person can be detained without warrant and charge for fourteen (14) days.
The ‘chilling effect’
Prominent human rights lawyer Neri Colmenares is also among the petitioners against the enactment of the law. He questions the offense pertaining to the criminalization of inciting others [to committing the any of the acts specified in Section 4[5] through speeches, writings, proclamations, emblems, banners, and other representations tending to the same end is violative of free speech. The former legislator sees that this will result to a ‘chilling effect’ on our freedom of expression and free speech, as it penalizes simple threats of committing an act of terror on social media for possible imprisonment for twelve (12) years.
Although it should be clarified that the law does not punish mere advocacy, protest or dissent against the government as long as it does not create a serious risk or threat to public safety. However, several human rights activists are concerned that the law instills fear to the people in a sense that they may be punished for posting criticisms against the government when the council erroneously or vaguely interpret their posts as act of inciting terrorism.
Principle of checks and balances
According to Domingo Cayosa of the Integrated Bar of the Philippines (IBP), the legislative measure vests the Anti-Terrorism Council, composed of Executive officials serving under the President, upon a finding of probable cause, the power to designate a person or group of persons a terrorist under Section 25.
Sections 26-27 also provide that any person or group of persons who commits any of the acts defined and penalized, upon application with an urgent prayer for the issuance of preliminary order of proscription by the Department of Justice before the Court of Appeals (CA), with due notice and opportunity to be heard, be declared as terrorist. The CA, within seventy-two (72) hours from the filing of the application, will issue a preliminary order of proscription declaring that the respondent is a terrorist and outlaw, even before an official hearing begins. This power undermines the principles of separation of powers and checks and balances.
Root of Apprehension
Unfortunately, the ‘war on drugs’ along with the rampant human rights violations committed in the recent years amplified the apprehensions over the law. What is feared is that the law may be implemented with the very same abuse of power and injustice present in the drug war. Moreover, while it is cardinal and customary to presume good faith, the presence of ambiguities and lack of comprehensive procedure creates a possibility for abuse. One can only hope that the law will be implemented with a degree of responsibility and accountability expected from public officials and authorities. However, they, on the other hand, have the duty to ensure that such is not a mere hope or expectancy.
In the end, the Filipinos deserve a law that will certainly safeguard and uphold their rights. Although activism is not terrorism, unless again, it imposes threat to public safety and security, what human rights advocates fear is that the government may use the law as a justification to abuse its power and authority to interpret as terrorism any kind of dissent, opposition, criticism raised against it.
May we never forget that even if the threat of terrorism in the country is real, increasing and imminent, a law that breaches constitutional rights of the very same people that it seeks to protect, is a threat against peace.◾
[1] Republic Act No. 11479
[2] Repubic Act No. 9372
[3] According to 2019 Global Terrorism Index: Measuring the Impact of Terrorism, the ISIL conducts terrorism on its own and through its affiliates BIFM, ASG, and the Maute Group.
[4] G.R. No. 148560, November 19, 2001
[5] The definitions of the acts under Section 4 of the Anti-Terror Law are “so broadly framed as to sweep any speech and any act which would otherwise be protected” and that the same could cover internal acts which are beyond the scope of penal laws, the Makabayan bloc argues