Activists and progressive groups will just have to rely on good faith that the government will not use its designation power under the anti-terror law to arrest, detain, and prosecute them.
Designation under Section 25 of the law is a tricky power of the anti-terror council (ATC) – it is a power distinct from the court process of proscription, and requires only the approval of the council which consists of Cabinet secretaries.
Without a court trial, and done through secret deliberations, the council will have the power to determine if a person or a group is engaged in any of the 9 crimes in the law, including inciting to terrorism that will punish so-called terroristic speech.
But under the anti-terror law, the only punishment under Section 25 is the freezing of assets by the Anti-Money Laundering Council (AMLC). There is no talk of any criminal liability.
That's how Department of Justice (DOJ) Undersecretary Adrian Sugay understands it too. He is the designated spokesperson of the anti-terror council on matters pertaining to the law's Implementing Rules and Regulations (IRR).
"Designation is really more for purposes of going after assets," Sugay said in Rappler's Law of Duterte Land podcast.
The petition filed by retired Supreme Court senior associate justice Antonio Carpio said law enforcement can use designation as a ground to arrest the person, and even arrest them on endless cycles.
Section 29 of the law authorizes agents to arrest without a warrant suspected terrorists and keep them for as long as 24 days with the council's blessing. If they fail to charge a suspect in court by the 25th day, the suspect should be released.
But according to the Carpio petition: "On the 25th day, the ATC may order the rearrest of the designated individual or member of an organization that remains designated/proscribed as a terrorist since the designation or proscription order is still valid."
"Alam mo magandang tanong 'yan eh (You know that's a good question).. it could be, it could lead to that," said Sugay.
"But you know, if law enforcement agencies do not file, or the case is dismissed during inquest or what, I think it should be an indication that, at least, as far as this person is concerned, there's no case against him, you're not committing anything wrong," Sugay said in a mix of Filipino and English. (READ: EXPLAINER: Anti-terror law's IRR on delisting, warrantless arrests)
However, there is a possibility that prosecutors will order the release of the suspect, rule the warrantless arrest as invalid, but still move the case for further investigation – meaning, the merits of the case have not been totally dismissed. Does that mean designation still stands?
Sugay replied, "I think that's really subject to interpretation, and that has to be interpreted I guess in light of Section 29, but when you talk of designation, and I think I've been saying it all along, designation is really more for the purposes of going after assets. That's a very good issue, that's something we should all resolve as we go along."
But do all law enforcement agents know this?
"I think this has to be made very clear to them. I keep saying this, to us (in the DOJ), when we were doing this, we have a very clear concept of what a terrorist is, and I would like to hope that we can disseminate this concept to law enforcement agencies, and to whoever will be implementing this," said Sugay.
It wasn't so long ago, however, when the DOJ filed a proscription case against more than 600 people, including activists and a United Nations Special Rapporteur, to declare them as terrorists. The DOJ has since acknowledged that it didn't vet the list given to them by the military. It has also withdrawn most of the names on the list.
Three of the people on that list were killed in still unsolved murders. (PODCAST: Law of Duterte Land: A State of Terror)
"I would like to think that, that's a real lesson that we all learned after that episode with the original proscription petition, sana (I hope) moving forward we know better," said Sugay.
Asked categorically if the people in the old proscription case will be designated as terrorists, Sugay said: "As long as they do not qualify under the law. As long as they are not deemed to have engaged in any of the acts enumerated in Rules 4-12 , I see no problem and they have to go through the designation process anyway. I'm not saying that they won't be, but so long as they do not fall within the purview of the anti-terror act, that shouldn't be an issue."
Who will decide this? The ATC whose vice chairman is National Security Adviser Hermogenes Esperon Jr. Esperon is also the vice chair of the National Task Force To End Local Communist Armed Conflict or NTF-ELCAC, which has no qualms about red-tagging activists and progressive groups.
Sugay said he would like to think that the council will be more prudent and careful when making its designations.
"I think the process should be more thorough and deliberate so I'd like to think it would go through the process, and I would like to think that the anti-terrorism council would be, for lack of a better term, will be a little more careful in making its designation," Sugay said in a mix of Filipino and English.
"Hindi na siya biro eh, kapag sa NTF-ELCAC kasi, I don't know, maybe that's a propaganda thing, I don't know, PR whatever, but dito kasi once they start designating, matindi na 'yung legal consequences nun eh, marami nang kasunod, so I would like to think that in this case, the ATC will really be very deliberate and will do its work carefully," Sugay added.
(It's not a joking matter anymore, because in the NTF-ELCAC I don't know maybe that's a propaganda thing, I don't know, PR whatever, but here once they start designating, the legal consequences are grave, and a lot of things will follow, so I would like to think that in this case, the ATC will really be very deliberate and will do its work carefully.)
Sugay said the council will decide as a collegial body in that it will respect the votes of its members. Sugay promised the DOJ, through Justice Secretary Menardo Guevarra, "will stand in the middle of it." But Guevarra is only one vote, if it will indeed be a numbers game in the council.
"There's going to be a lot of discussion, because it will expose the members to a lot of liability, I am so sure that if any of these designations are improvidently done, magkakaproblema talaga ang members (the members will really have a lot of problems)," said Sugay.
The Philippine government, in a report sent to the United Nations, has tagged the Communist Party of the Philippines-New Peoples' Army-National Democratic Front (CPP-NPA-NDF) as terror groups and has listed both progressive and human rights groups as communist fronts.
Justice Secretary Menardo Guevarra has distanced the DOJ from the report and said he would study the possibility of removing the report from the DOJ website.
As of Wednesday, October 21, the report was no longer accessible on the DOJ website. Guevarra said, "I have given instructions for the removal of the human rights situationer from the DOJ website a few weeks ago."– Rappler.com