at a glance: the anti-terrorism bill - university of the philippines … · 2020. 6. 16. ·...

at a glance:The

ANTI-TERRORISMBILL

PREPARED BY:Professor Elizabeth Aguiling-Pangalangan, Director

Atty. Glenda Litong, Law Reform SpecialistAtty. Raymond Baguilat, Senior Legal Associate

Atty. Michael Tiu, Jr., Senior Legal Associate

WITH THE RESEARCH ASSISTANCE OF:Amer Madcasim, Jr.

Micah TaguibaoIan Villafuerte

LAYOUT BY:Roy Necesario,

Senior Paralegal Officer

Suspicion alone gives rise to a number of consequences, such assurveillance and recording of communications (upon order ofthe Court of Appeals) and detention without judicial warrant fora period of up to 24 days.

Unlike the Human Security Act (“HSA”), the Anti-Terrorism Bill(“ATB”) contains provisions that may directly impair the right tofree speech and association. This includes broadly-definedprovisions, such as Sections 5 (Threat to Commit Terrorism) and9 (Inciting to Commit Terrorism), which may create a “chillingeffect” on otherwise-protected speech.

On the heels of mounting protests against the passage of the Anti-Terrorism Bill (ATB), the University of the Philippines Institute of HumanRights is providing this briefer to clarify the ATB and explain itsconsequences.

After both chambers of Congress passed the ATB, the Presidentmay either approve or veto the bill. Should he not act upon it 30days after receipt, the ATB shall lapse into law.

Unlike the HSA which only allows judicial proscription, the ATBnow permits administrative designation (by the Anti-TerrorismCouncil). Such designation authorizes the Anti-MoneyLaundering Council to freeze and inquire into the bank depositsof designated individuals and organizations. ATC may alsoauthorize detention without a judicial warrant for at least 14days, without charge.

Compared to the HSA, the ATB features weaker safeguards forpotential abuses of law enforcement officers. Besides reducingpenalties for violating officers, the ATB also removed Section 50of the HSA, which entitles any person who was accused ofterrorism to damages (PHP500,000 for every day deprived ofliberty or arrested without warrant).

Here are the notable problematic provisions under the Anti-Terrorism Bill, which include the definition of terrorism (Section4), the concomitant actions that the law penalizes using theflawed definition (Section 5, 6, 7, 8, 9, & 10), the surveillance ofsuspects and interception and recording of communications(Section 16), the designation power of the Anti-Terrorism Council(Section 25), and detention without a judicial warrant of arrest(Section 29). Several of these provisions are vague and thisambiguity grants authorities wide discretion in determiningcriminal liability, thereby violating the principle of nullum crimensine lege: “there can be no crime without a law punishing the actat the time of its commission.”

1) The Anti-Terrorism Bill carries such graveconsequences for anyone who commits, or issuspected of having committed, terrorism. It isonly fair to demand that the Bill define the crimewith sufficient clarity. The due process guaranteerequires that a penal statute sufficiently "informthose who are subject to it what conduct on theirpart will render them liable to its penalties [lest]men of common intelligence must necessarilyguess at its meaning and differ as to itsapplication.” (Connally v. General Construction Co.,269 U.S. 385 (1926)).

Sec. 4. Terrorism. – Subject to Section 49 of this Act, terrorismis committed by any person, who within or outside thePhilippines, regardless of the stage of execution:

a) Engages in acts intended to cause death or serious bodilyinjury to any person, or endangers a person’s life;

b) Engages in acts intended to cause extensive damage ordestruction to a government or public facility, public placeor private property;

c) Engages in acts intended to cause extensive interferencewith, damage or destruction to critical infrastructure;

d) Develops, manufactures, possesses, acquires, transports,supplies, or uses weapons, explosives or of biological,nuclear, radiological or chemical weapons; and

e) Release of dangerous substances, or causing fire, floods orexplosions

WHEN THE PURPOSE OF SUCH ACT, BY ITS NATURE ANDCONTEXT, IS TO INTIMIDATE THE GENERAL PUBLIC OR ASEGMENT THEREOF, CREATE AN ATMOSPHERE OR SPREAD AMESSAGE OF FEAR, TO PROVOKE OR INFLUENCE BYINTIMIDATION THE GOVERNMENT OR ANY INTERNATIONALORGANIZATION, OR SERIOUSLY DESTABILIZE OR DESTROYTHE FUNDAMENTAL POLITICAL, ECONOMIC, OR SOCIALSTRUCTURES OF THE COUNTRY, OR CREATE A PUBLICEMERGENCY OR SERIOUSLY UNDERMINE PUBLIC SAFETY,shall be guilty of committing terrorism and shall suffer thepenalty of life imprisonment without the benefit of parole andthe benefits of Republic Act No. 10592, otherwise known as “AnAct Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, asamended, otherwise known as the Revised Penal Code”:Provided, That, terrorism as defined in this Section shall notinclude advocacy, protest, dissent, stoppage of work, industrialor mass action, and other similar exercises of civil and politicalrights, WHICH ARE NOT INTENDED TO CAUSE DEATH ORSERIOUS PHYSICAL HARM TO A PERSON, TO ENDANGER APERSON’S LIFE, OR TO CREATE A SERIOUS RISK TO PUBLICSAFETY.

TERRORISM

2) The definition contains an express exclusion ofactivities not covered by the Act including“advocacy, protest, dissent, stoppage of work,industrial or mass action, and other similarexercises of civil and political rights”. If properlyexecuted this exclusion is certainly useful andshould preserve the Constitution’s protection forfreedom of speech, freedom of assembly andlabor strikes.

However, while this describes what is excluded,the Section 4 prohibition against terrorism doesnot sufficiently describe what is included, suchthat the threat to the above-cited constitutionalfreedoms remains.








TERRORISM

3) The key element of the definition is the“purpose” for the conduct:

when the purpose of such act, by its natureand context, is to intimidate the general publicor a segment thereof, create an atmosphere orspread a message of fear, to provoke orinfluence by intimidation the government orany of its international organization, orseriously destabilize or destroy thefundamental political, economic, or socialstructures of the country, or create a publicemergency or seriously undermine publicsafety, shall be guilty of committing terrorismand shall suffer the penalty.

Take the act of attacking “critical infrastructure”defined in Sec 3.a, which includes an “asset orsystem affecting… transportation, radio andtelevision, information systems media andtelecommunications networks,” and combine itwith the purpose of “creat[ing] an atmosphere orspread[ing] a message of fear”; and the protectionfor freedom of speech is easily undermined.








TERRORISM

4) This Bill fails to align itself with the UN's draftComprehensive Convention Against InternationalTerror. Based on Article 2, an offense iscommitted by any person…. [who] by any means,unlawfully and intentionally, causes: (a) Death orserious bodily injury to any person; or (b) Seriousdamage to public or private property, including aplace of public, use, a State or government facility,a public transportation system, an infrastructurefacility or to the environment; or (c) Damage toproperty, places, facilities or systems referred toin paragraph 1 (b) of the present article resultingor likely to result in major economic loss; whenthe purpose of the conduct, by its nature orcontext, is to intimidate a population, or tocompel a Government or an internationalorganization to do or to abstain from doing anyact.”

Unlike Article 2(c) of the UN Draft Convention –where to perpetrate the offense, the purposeshould be “to compel a government orinternational organization to do or to abstainfrom doing any act" – the Anti-Terrorism Billinstead provide that terrorism is committed, if thepurpose of the act is “to provoke or influence byintimidation the government or any internationalorganization.” The Government can then easilyclaim that it was provoked or influenced – a muchlower threshold than having to prove that it wascompelled to do or abstain from doing an act.








TERRORISM

Sec. 5. Threat to Commit Terrorism. - Any person who shallTHREATEN TO COMMIT ANY OF THE ACTS mentioned inSection 4 hereof shall suffer the penalty of imprisonment oftwelve (12) years.

Law enforcers may loosely define the terms underthis provision because the term “threat” is notdefined. Given the breadth of Sec. 4, it can beconstrued as any “act engaged in with theintention to” commit the harms enumerated, asinterpreted by the law enforcers. The bill does notrefer to any objective standard relating to theimpact of such threat that would make the threatso egregious and criminalizing it so necessary tocontribute to the objective of stopping terrorism.Note that what is being penalized is mere threatby a person, without any need to look into thecriminal intent of such person to commit the actsenumerated in Sec. 4. This being the case and inview of the penalty, sufficient standards must beexpressed in the law to protect the life and libertyof the individuals.

THREAT TO COMMIT TERRORISM

Sec. 6. Planning, Training, Preparing, and Facilitating theCommission of Terrorism. - It shall be unlawful for any personto PARTICIPATE IN THE PLANNING, TRAINING,PREPARATION AND FACILITATION IN THE COMMISSION OFTERRORISM, POSSESSING OBJECTS CONNECTED WITH THEPREPARATION FOR THE COMMISSION OF TERRORISM, ORCOLLECTING OR MAKING DOCUMENTS CONNECTED WITHTHE PREPARATION OF TERRORISM. Any person found guiltyof the provisions of this Act shall suffer the penalty of lifeimprisonment without the benefit of parole and the benefits ofRepublic Act No. 10592.

Planning, Training, Preparing, and Facilitating the

Commission of Terrorism

Under this provision, persons or organizationsthat post on social media to state their vehementdissatisfaction with the government, or those whoparticipate in education, capacity-buildingactivities and community immersions maypossibly be charged. Moreover, since the terms“possessing objects” and “collecting or makingdocuments” are broadly defined, law enforcerswho connect it to the preparation for terrorismmay already subject the individual to theexecutive actions under the bill without having togo into the issue of intent in said acts or theobjective result of the commission of said acts.

Sec. 7. Conspiracy to Commit Terrorism. – ANY CONSPIRACYTO COMMIT TERRORISM as defined and penalized underSection 4 of this Act shall suffer the penalty of lifeimprisonment without the benefit of parole and the benefits ofRepublic Act No. 10592.

There is conspiracy when two (2) or more persons come to anagreement concerning the commission of terrorism as definedin Section 4 hereof and decide to commit the same.

Sec. 8. Proposal to Commit Terrorism. - Any person whoPROPOSES TO COMMIT TERRORISM as defined in Section 4hereof shall suffer the penalty of imprisonment of twelve (12)years.

Conspiracy to Commit Terrorism

Despite the use of the Revised Penal Code’sdefinition of conspiracy, there are no cleardefinitions under the related provisions throughwhich “conspiracy” and “proposal” may becommitted under Sections 7 and 8. It may then beloosely used to penalize even legitimate speech.

Sec. 9. Inciting to Commit Terrorism. - Any person who,WITHOUT TAKING ANY DIRECT PART IN THE COMMISSIONOF TERRORISM, SHALL INCITE OTHERS TO THE EXECUTIONOF ANY OF THE ACTS SPECIFIED IN SECTION 4 HEREOF BYMEANS OF SPEECHES, PROCLAMATIONS, WRITINGS,EMBLEMS, BANNERS OR OTHER REPRESENTATIONSTENDING TO THE SAME END, shall suffer the penalty ofimprisonment of twelve (12) years.

Inciting to Commit Terrorism

There is no qualifier or requirement that danger iscreated by the act of inciting. Furthermore, thephrase “[t]ending to the same end” is dangerouslyvague. It fails to put one on notice of a potentialcrime and may likely be prohibitive of legitimatefree speech exercise.

Sec. 10. Recruitment to and Membership in a TerroristOrganization- ANY PERSON WHO SHALL recruit another toparticipate in, join, COMMIT OR SUPPORT ANY TERRORISM OR ATERRORIST INDIVIDUAL OR ANY TERRORIST ORGANIZATION,ASSOCIATION OR GROUP OF PERSONS PROSCRIBED UNDERSECTION 26 OF THIS ACT, or designated by the United NationsSecurity Council as a terrorist organization, or organized for thepurpose of engaging in terrorism, shall suffer the penalty of lifeimprisonment without the benefit of parole and the benefits ofRepublic Act No. 10592.

The same penalty shall be imposed on any person who organizes orfacilitates the travel of individuals to a state other than their state ofresidence or nationality for the purpose of recruitment which maybe committed through any of the following means:

a) Recruiting another person to serve in any capacity in or with anarmed force in a foreign state, whether the armed force formspart of the armed forces of the government of that foreignstate or otherwise;

b) PUBLISHING AN ADVERTISEMENT OR PROPAGANDA for thepurpose of recruiting persons to serve in any capacity in or withsuch an armed force;

c) Publishing an advertisement or propaganda containing anyinformation relating to the place at which or the manner inwhich persons may make applications to serve or obtaininformation relating to service in any capacity in or with sucharmed force or relating to the manner in which persons maytravel to a foreign state for the purpose of serving in anycapacity in or with such armed force; or

d) PERFORMING ANY OTHER ACT WITH THE INTENTION OFFACILITATING OR PROMOTING THE RECRUITMENT OFPERSONS TO SERVE IN ANY CAPACITY in or with such armedforce.

Any person who shall voluntarily and knowingly join anyorganization, association or group of persons knowing that suchorganization, association or group of persons is proscribed underSection 26 of this Act, or designated by the United Nations SecurityCouncil as a terrorist organization, or organized for the purpose ofengaging in terrorism, shall suffer the penalty of imprisonment oftwelve (12) years.

Recruitment to and Membership

in a Terrorist Organization

The Bill does not define with any particularitywhat are considered publications or what willconstitute “publishing.” The lack of clearstandards may “violate due process for failure toaccord persons, especially the parties targeted byit, fair notice of what conduct to avoid; and, itleaves law enforcers unbridled discretion incarrying out its provisions and becomes anarbitrary flexing of the Government muscle”(Estrada v. Sandiganbayan, G.R. No. 148560, Nov.19, 2001). In addition, the determination of anyother acts and the concomitant intention tofacilitate or recruit is undefined and will not putpeople on notice of the potential illegal act.

Sec. 16. Surveillance of Suspects and Interception and Recordingof Communications. - The provisions of Republic Act No. 4200,otherwise known as the "Anti-Wire Tapping Law” to the contrarynotwithstanding, law enforcement agent or military personnelmay, upon a written order of the Court of Appeals secretlywiretap, overhear and listen to, intercept, screen, read, surveil,record or collect, WITH THE USE OF ANY MODE, FORM, KIND ORTYPE OF ELECTRONIC, MECHANICAL OR OTHER EQUIPMENTOR DEVICE OR TECHNOLOGY NOW KNOWN OR MAYHEREAFTER BE KNOWN TO SCIENCE OR WITH THE USE OF ANYOTHER SUITABLE WAYS AND MEANS FOR THE ABOVEPURPOSES, ANY PRIVATE COMMUNICATIONS, CONVERSATION,DISCUSSION/S, DATA, INFORMATION, MESSAGES INWHATEVER FORM, KIND OR NATURE, SPOKEN OR WRITTENWORDS (A) BETWEEN MEMBERS OF A JUDICIALLY DECLAREDAND OUTLAWED TERRORIST ORGANIZATION, AS PROVIDED INSECTION 26 OF THIS ACT; (B) BETWEEN MEMBERS OF ADESIGNATED PERSON AS DEFINED IN SECTION 3 (E) OFREPUBLIC ACT NO. 10168; OR (C) ANY PERSON CHARGED WITHOR SUSPECTED OF COMMITTING ANY OF THE CRIMES DEFINEDAND PENALIZED UNDER THE PROVISIONS OF THIS ACT;Provided, That, surveillance, interception and recording ofcommunications between lawyers and clients, doctors andpatients, journalists and their sources and confidential businesscorrespondence shall not be authorized.

The law enforcement agent or military personnel shall likewise beobligated to (1) file an ex-parte application with the Court ofAppeals for the issuance of an order, to compeltelecommunications service providers (TSP) and internet serviceproviders (ISP) to produce all customer information andidentification records as well as call and text data records,content and other cellular or internet metadata OF ANY PERSONSUSPECTED OF ANY OF THE CRIMES DEFINED AND PENALIZEDUNDER THE PROVISIONS OF THIS ACT; and (2) furnish theNational Telecommunications Commission (NTC) a copy ofsaid application. The NTC shall likewise be notified upon theissuance of the order for the purpose of ensuring immediatecompliance.

Surveillance of Suspects and

Interception and Recording of

Communications

There are no clear guidelines as to how onebecomes a “suspected” person who can besurveilled. Further, the information to bedemanded from the telecommunications serviceproviders (TSP) and internet service providers(ISP) ought to be clearly outlined along with itsrespective purposes. Finally, the use of anexpansive form of electronic, mechanical or otherequipment, device or technology for surveillanceis dangerously shortsighted, as giving the militaryand law enforcers blanket authority to use futuredevelopments in technology puts in jeopardy ourright to privacy.

Sec. 25. Designation of Terrorist Individual, Groups of Persons,Organizations or Associations. – x x x THE ATC MAY DESIGNATEAN INDIVIDUAL, GROUPS OF PERSONS, ORGANIZATION, ORASSOCIATION, WHETHER DOMESTIC OR FOREIGN, UPON AFINDING OF PROBABLE CASE THAT THE INDIVIDUAL, GROUPSOF PERSONS, ORGANIZATION, OR ASSOCIATION COMMIT, ORATTEMPT TO COMMIT, OR CONSPIRE IN THE COMMISSION OFTHE ACTS DEFINED AND PENALIZED UNDER SECTIONS 4, 5, 6,7, 8, 9, 10, 11 AND 12 OF THIS ACT.

The assets of the designated individual, groups of persons,organization or association above-mentioned SHALL BE SUBJECTTO THE AUTHORITY OF THE ANTI-MONEY LAUNDERINGCOUNCIL (AMLC) TO FREEZE pursuant to Section 11 of RepublicAct No. 10168.

The designation shall be without prejudice to the proscription ofterrorist organizations, associations, or groups of persons underSection 26 of this Act.

The designation of “terrorists” is to be done by anon-judicial body, which circumvents the need fora judicial proscription. It is without anytransparent and objectively-set criteria and doesnot provide the individuals designated anyopportunity to refute or challenge the label. Italso requires no review by outside objective thirdparties nor judicial review and has limitedCongressional oversight. Furthermore, thefreezing of accounts is in itself a penalty that mayalready prejudice a person who is entitled to thepresumption of innocence.

Designation of Terrorist

Individual, Groups of Persons,

Organizations or Associations

Sec. 29. Detention Without Judicial Warrant of Arrest. - Theprovisions of Article 125 of the Revised Penal Code to thecontrary notwithstanding, any law enforcement agent or militarypersonnel, who, having been duly authorized in writing by theATC has taken custody of a person suspected of committing anyof the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9,10, 11 and 12 of this Act, shall, WITHOUT INCURRING ANYCRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OFDETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES,DELIVER SAID SUSPECTED PERSON TO THE PROPER JUDICIALAUTHORITY WITHIN A PERIOD OF FOURTEEN(14) CALENDARDAYS COUNTED FROM THE MOMENT THE SAID SUSPECTEDPERSON HAS BEEN APPREHENDED OR ARRESTED, DETAINED,AND TAKEN INTO CUSTODY BY THE LAW ENFORCEMENTAGENT OR MILITARY PERSONNEL. THE PERIOD OF DETENTIONMAY BE EXTENDED TO A MAXIMUM PERIOD OF TEN (10)CALENDAR DAYS IF IT IS ESTABLISHED THAT (1) FURTHERDETENTION OF THE PERSON/S IS NECESSARY TO PRESERVEEVIDENCE RELATED TO THE TERRORISM OR COMPLETE THEINVESTIGATION; (2) FURTHER DETENTION OF THE PERSON/S ISNECESSARY TO PREVENT THE COMMISSION OF ANOTHERTERRORISM; AND (3) THE INVESTIGATION IS BEINGCONDUCTED PROPERLY AND WITHOUT DELAY.

IMMEDIATELY AFTER taking custody of a person suspected ofcommitting terrorism or any member of a group of persons,organization or association proscribed under Section 26 hereof,the law enforcement agent or military personnel shall notify inwriting the judge of the court nearest the place of apprehensionor arrest of the following facts: (a) the time, date, and manner ofarrest; (b) the location or locations of the detained suspect/s and(c) the physical and mental condition of the detained suspect/s.The law enforcement agent or military personnel shall likewisefurnish the ATC and the Commission on Human Rights (CHR) ofthe written notice given to the judge.

Detention Without Judicial

Warrant of Arrest

The Constitution provides the followingprotection against warrantless arrests andfor persons being held to answer for acriminal offense:

Article III Sec 2. The right of the people to besecure in their persons, houses, papers, andeffects against unreasonable searches andseizures of whatever nature and for anypurpose shall be inviolable, and no searchwarrant or warrant of arrest shall issue exceptupon probable cause to be determined personallyby the judge after examination under oath oraffirmation of the complainant and the witnesseshe may produce, and particularly describing theplace to be searched and the persons or thingsto be seized.




Warrant of Arrest

The Constitution provides the followingprotection against warrantless arrests andfor persons being held to answer for acriminal offense:

Article III, Sec.14. (1) No person shall be held toanswer for a criminal offense without dueprocess of law.

(2) In all criminal prosecutions, the accusedshall be presumed innocent until the contraryis proved, and shall enjoy the right to be heardby himself and counsel, to be informed of thenature and cause of the accusation againsthim, to have a speedy, impartial, and publictrial, to meet the witnesses face to face, and tohave compulsory process to secure theattendance of witnesses and the production ofevidence in his behalf. However, afterarraignment, trial may proceednotwithstanding the absence of the accused:Provided, that he has been duly notified andhis failure to appear is unjustifiable.




Warrant of Arrest

The Anti-Terrorism Bill fails to meet thesestandards. Section 29 allows DetentionWithout Judicial Warrant of Arrest. Instead ofimmediately delivering the person to theproper judicial authority, it allows anexcessive period of detention, 14 daysextendible by another 10 days, before theperson is brought before a court. Article 125of the Revised Penal Code provides that aperson arrested without a warrant must becharged in court within a fixed period,namely, the lapse of 12, 18 or 36 hoursdepending on the gravity of the crime. Thatstandard has already been lowered by theHuman Security Act of 2007 (R.A. 9372), whichextended the period to 72 hours or 3 days.The Anti-Terrorism Bill will now extend thatperiod several times over.




Warrant of Arrest

The legislators are passing the Anti-Terrorism Bill and repealing the HumanSecurity Act of 2007. They should explain whythe need to repeal it. For instance, if theperiod of warrantless custodial detention isbeing increased drastically, they shouldexplain in specific terms why the previous12, 18, 36, 72-hour limits did not suffice, andwhy a draconian 14-24 days is required.

Lastly, the duty to inform a person of theirrights (including their Miranda Rights) is aduty that any arresting officer must exercise;a duty that is not simply passed on to thehead of the detaining facility.

at a glance: the anti-terrorism bill - university of the philippines … · 2020. 6. 16. ·...

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