MANILA, Philippines – The Integrated Bar of the Philippines (IBP), the mandatory organization of Filipino lawyers, asked President Rodrigo Duterte to veto the “unconstitutional” provisions in the anti-terror bill that will allow non-judicial arrests and non-judicial detention for up to 24 days.

“We hope that the Office of the President will further review the Anti Terror Bill and veto the constitutionally questionable provisions as President Rodrigo Roa Duterte had done in the past,” IBP national president Domingo “Egon” Cayosa said in a statement on Tuesday, June 9, joining  colleagues in the legal profession, including top law schools, in opposing the measure.

The president can only veto line items or provisions in appropriation, revenue or tariff bills.

The enrolled copy of the bill was transmitted to Malacañang on Tuesday.

“The IBP focuses on whether or not the Anti Terrorism Council (ATC) can ‘authorize in writing’ the ‘taking into custody’ of terrorism suspects (Section 29) which under the 1987 Constitution is exclusively a judicial power,” said Cayosa.

Non-judicial arrests

Both the current 2007 Human Security Act and the 2020 Anti-Terror Bill authorize the ATC to order the arrest and detention of suspected terrorists without a court warrant. (READ: EXPLAINER: Comparing dangers in old law and anti-terror bill)

This provision under the 2007 Human Security Act was questioned in the Supreme Court, but petitions were junked because of a lack of legal standing and direct injury to petitioners made up mostly of human rights groups.

What makes the ATC power different in the 2020 anti-terror bill is that it will allow detention of suspects for 14 days, extendible by another 10, for a total of 24 days, when it was just 3 days in the 2007 Human Security Act.

“[The IBP also focuses on] whether or not the 3-day limit within which an arrested person must be “judicially charged” even if the privilege of the writ of habeas corpus is suspended sets a constitutional limit to preventive detention that is violated by the 14-24 days detention without judicially charging the suspected terrorist allowed in the anti-terror bill,” Cayosa said.

Cayosa is referring to Section 18, Article VII of the Constitution wherein it says even when martial law is declared and the privilege of the writ of habeas corpus is suspended, “any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

“We call attention to the possible unconstitutionality and avoid muddling it with issues of wisdom, trust, preference, labeling, and motherhood statements,” said IBP.

Another main difference between the current law and the new bill is that under the current law, non-judicial arrests must be results of a prior surveillance. In this mechanism, the arrest can count as ‘caught in the act,’ which is one of the 3 valid grounds anyway for a warrantless arrest under the rules on criminal procedure.

In the new bill, there is no longer a requirement of prior surveillance.

Broadened surveillance 

In an earlier interview on CNN Philippines, Cayosa also questioned broadened surveillance under the anti-terror bill.

“Malinaw din ho na merong isang section na nagsasabing hindi lang ang Court of Appeals, yung korte ang maaring magbigay ng go signal para arestuhin ka or isurveilalnce,” said Cayosa.

(It’s also clear that there’s a section which says that it’s no longer just the Court of Appeals, no longer just the court which can give the go signal to arrest or surveil you.)

Cayosa was referring to Section 16 of the anti-terror bill.

In both the 2007 Human Security Act and the 2020 anti terror bill, law enforcement must get a written order from the Court of Appeals to conduct surveillance.

However, in the current law, the surveillance must be done on a judicially declared terrorist, meaning the courts must have already made a declaration after a full trial.

In the new bill, under Section 16(c), “any person…suspected of committing” terror crimes can be surveilled.

Note that the 2020 anti-terror bill also added new terror crimes such as inciting to terrorism, which has now directly touched freedom of speech, according to retired supreme court senior associate justice Antonio Carpio.

“We have respectfully communicated IBP’s concerns through a letter to House of Representatives Speaker  Alan Peter S. Cayetano and Senate President Vicente C. Sotto III,” Cayosa said, but Congress transmitted the enrolled bill anyway to Malacañang.

DOJ review

The Department of Justice (DOJ) will conduct its own review and send its recommendation to Duterte.

In a government briefing, DOJ Undersecretary and Spokesperson Markk Perete defended the bill by saying it has an exception on dissent, but the official left out a “killer” caveat which says the only dissent exempted is one that has no intent to create harm or risk to public safety. 

The definition of intent is still up to the law enforcement agents and eventually prosecutors, worrying human rights lawyers of abuse in a government that has launched a wide crackdown on dissenters.  – Rappler.com