MANILA, Philippines – For nearly two hours, Commission on Human Rights (CHR) Commissioner Gwendolyn Pimentel Gana listened and argued with 4 former military and police generals pushing for the proposed Anti-Terrorism Act of 2020. 

National Security Adviser Hermogenes Esperon Jr, Interior Secretary  Eduardo Año, National Intelligence Coordinating Agency chief Alex Paul Monteagudo, and Senator Panfilo Lacson ventured explanations of the proposed law’s controversial provisions.

Terrorism is complex and the stakes are extremely high – a single successful attack can kill dozens, hundreds, maybe even thousands.

If the enrolled bill seems “draconian” – prolonging warrantless arrests and broadening what constitutes terrorism – it actually is not, the ex-generals said. To catch a nimble, elusive enemy, the government must cast a wider net.

And they guarantee that every provision in the bill is constitutional – some of them just need further explanation.

That is precisely the problem, Gana said. 

“Napakaganda pakinggan ano ang intent ng ating mga legislators, pero hindi kasi nakasaad sa bill (It’s really nice to listen to the intent of our legislators, but it’s not stated in the bill),” Gana told the ex-generals during the Kapihan sa Manila Bay media forum on Wednesday, June 17.

“You know, when you make a law, it has to be clear, and it should not be open to misinterpretation or misunderstanding,” she added.

‘Activism not terrorism’

Critics of the bill fear it would lead to a crackdown on activism and dissent.

“Terrorism is not activism, and activism is not terrorism,” Esperon said, defending the bill.

Esperon cited Section 4 of the bill, saying it explicitly excludes “advocacy, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights” from what it considers terroristic.

Gana pointed out that the same provision contains a caveat. These actions must be “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.”

“What if, in a legitimate [protest], because of infiltration or dispersal, nagkaroon ng violence and, you know, may namatay, may nasunog, may nasaktan (violence breaks out and, you know, someone dies, something catches fire, someone gets hurt)?” Gana asked.

“Would this give the right to government to say this is a terrorist act?”

The line’s ambiguity leaves room for debate, but it effectively “puts on hold, or alert, people who are legitimately dissenting or protesting for a cause,” she added.

Anti-Terrorism Council to order arrests?

Gana then questioned Section 29 of the bill, which she said authorizes the executive-led Anti-Terrorism Council (ATC) to order the arrest of suspects, a function the law reserves for the judiciary.

The same provision allows law enforcement or military agents to detain arrested suspects for 14 days, or up to 24 days if warranted by a court.

These are unconstitutional, the human rights commissioner said.

Section 29 of the anti-terrorism bill reads, “…any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of any person suspected of committing [terroristic acts]…shall, without incurring criminal liability…deliver said suspected person to the proper judicial authority within a period of 14 calendar days.”

Lacson, the bill’s principal sponsor, said the provision does not allow the ATC to authorize arrests, but rather to authorize certain members of law enforcement or military services to carry out warrantless arrests.

Terrorism is too broad and complicated for ordinary police or soldiers to handle, so the ATC would authorize certain uniformed personnel as qualified to effect the arrest of terror suspects without a court warrant, Lacson explained.

“The legislative intent is to form a special group…with specialized training in how to handle the custodial investigation,” the senator added.

‘If not included, then deemed excluded’

Warrantless arrests of terror suspects are allowed under the Human Security Act (HSA) of 2007 – the “toothless” law the new anti-terrorism bill is poised to replace – but only for 3 days at most.

This sounds similar to a provision in the 1987 Constitution that allows warrantless arrests of suspects when an invasion or rebellion prompts the president to suspend the writ of habeas corpus.

The proposed measure’s allowance of 14 to 24 days of warrantless detention exceeds the constitutional limit, Gana said.

Lacson argued that the Constitution only sets that limit – 3 days – for warrantless arrests of invasion or rebellion suspects when the writ is suspended. He cited transcripts from the 1986 constitutional convention that drafted the charter, saying the drafters did not explicitly extend that restriction to suspects of other crimes.

“We have a saying that what’s not included is deemed excluded,” Lacson said.

Gana then pointed out that the International Covenant on Civil and Political Rights states that any warrantless detention beyond 3 days amounts to an illegal act.

The enrolled bill removed two prerequisites to warrantless arrests that were in the HSA of 2007, Gana noted: that such arrests should be the result of a monthlong, court-sanctioned surveillance, and an inquiry into the suspects’ bank deposits.

The bill also removes the P500,000 fine on law enforcement or military agents for every day they’ve detained and frozen the assets of a suspect who eventually gets acquitted of a terrorism charge.

The ex-generals blame this penalty for spooking law enforcement and military agents from prosecuting suspects under the HSA. In fact, only one terror suspect was ever convicted using that law, they argued. Others had to be prosecuted for other crimes incidental to terrorism such as murder, homicide, or illegal possession of firearms.

For all of Lacson’s lengthy explanations, none of his attempted clarifications are reflected in the proposed law itself.

“What Senator Lacson said is nice. It clears a lot of things, but it is not in the bill,” Gana said.

Red-tagging

And what about the designation of “individuals, groups of persons, organizations, or associations” as terrorists?

The anti-terrorism bill allows the ATC to brand persons or groups as terrorists through designation or preliminary proscription – even before official proscription by the Court of Appeals.

Membership in a group designated or proscribed as a terrorist organization is punishable by 12 years’ imprisonment under the proposed law.

“What do you mean by that?” Gana asked the ex-generals.

“You violate their due process…. You say right away, ‘You’re a communist, so the burden is on you to prove otherwise,'” she added.

The Bill of Rights states that the burden of proof should be on the accuser and not on the defendant. The proposed measure instead denies suspects of the right to an arraignment and to post bail, Gana noted.

Even now, the police and military openly label progressive groups as communists and legal fronts of the New People’s Army (NPA). Although the NPA’s official proscription is still pending, the police and military already refer to it as a “terrorist group” in its media releases.

“That’s what’s worrisome. Red-tagging is very rampant nowadays,” Gana said.

“We’re not the ones doing the red-tagging,” Esperon answered, adding Communist Party of the Philippines leader Jose Maria “Joma” Sison himself listed progressive groups that he said were linked to his organization.

Esperon said these groups use even peaceful assemblies to recruit members and call for the government’s overthrow.

Implementing rules can’t rewrite the law

Año said rallies do not constitute a terrorist act, not even under the enrolled bill.

“Our policy when it comes to rallies is maximum tolerance and calibrated response,” the interior secretary said.

Police often stay on the sidelines – in riot gear – during rallies, but tensions with protesters sometimes escalate into brawls.

In future cases like this, suspects will be tried for “whatever common crimes they will violate and not the anti-terror law,” Año said.

Besides, the government has yet to draft the implementing rules and regulations (IRR) of the proposed Anti-Terrorism Act of 2020, as it still lacks President Rodrigo Duterte’s signature.

Any ambiguities in the bill may be straightened out in the IRR, Año added.

“That is all well if everybody is of the same thinking,” Gana replied.

“You cannot put legislative intent into the IRR because your parameter then would be the language of the law itself,” she added.

Not all parts of the anti-terrorism bill are objectionable, but the CHR finds some provisions need to be removed or at least restudied.

“We just want it to be clarified and then maybe amended or taken out. But just listen – we’re not here to sow dissent or to even try to diminish the importance of fighting terrorism. No, we’re actually here to help government,” Gana said. – Rappler.com