That there is no court order needed to freeze the assets of designated terrorists has been repeatedly slammed by critics, but it's apparent that the Anti-Money Laundering Council (AMLC) need not even investigate deeper before issuing such a freeze order.
Under Section 25 of the anti-terror law, the anti-terror council (ATC) made up of Cabinet secretaries has the power to designate people and groups as terrorists. Under the same provision, AMLC would then have the power to freeze their assets.
"I don't think the AMLC has enough manpower or expertise to do that," said Senator Grace Poe during a hearing on Thursday, October 29, on the amendments to the anti-money laundering act.
AMLC Executive Director Mel Racela admitted that "AMLC has no... or lacks the investigative powers to perform that function."
"And so part of the report or the recommended actions is to give the AMLC the right authority or right power to fully conduct investigations in regard to this money laundering or terrorism financing and so we propose the insertion of number 13," said Racela.
Racela was referring to Section 7(13) of Senate Bill No. 1412, which would give the AMLC the power to "subpoena any person and compel his attendance to produce information, books, papers, documents, data and other relevant information or subjects."
But while that is still pending, Poe said: "We go back to the fact that you don't have the manpower or the expertise to be able to determine exactly if that individual is a terrorist or not."
Racela said they will do this in coordination with the anti-terrorism council.
"It will be a coordination effort between the ATC and the AMLC.. so when the ATC proscribes an organization as a terrorist, the AMLC will have to freeze the assets of the organization or individual, that is where the linkage and the coordination will begin," said Racela.
Racela used the word "proscribe" wrongly, because proscription is a separate power under the law which requires a court order. Designation under Section 25 for the purposes of freezing an asset is a sole and distinct power of the anti-terrorism council.
Racela is a member of the anti-terrorism council. (READ: Are activists at risk of arrest, being designated terrorists? They'll rely on good faith.)
Opposition senator Franklin Drilon, who voted for the anti-terror law, seemed surprised that it allows the AMLC to issue a freeze order without court permission.
"The authority is already under the anti-terror act, Senator Drilon, AMLC has the power to freeze the assets," said Racela.
"Don't you have to go court to get a freeze order?" Drilon asked.
"It is the AMLC that can issue the freeze order upon finding of probable cause," Racela answered
"By the judge?" Drilon asked again.
"By the anti-money laundering council. Under Section 25, and Section 35 and 36 of the anti-terrorism act," said Racela.
Poe interjected and told her colleagues, "Basically, Senator Drilon, I don't think they need to go to the courts to obtain a permit, they can do it themselves."
"That's a pretty broad power for the AMLC, I'm not sure other countries have that same scope," said Poe.
Drilon said "it might be an overreach and it might be too broad," saying it could be used to harass people.
Speaking on the proposed additional power to subpoena, Senator Imee Marcos said it was indeed "a massive overreach."
"Lahat na lang mapupunta sa kanila, at hindi na papansinin ang court order, labis labis na po ito (All the powers will be with them, they won't have to have a court order, this is too much) ," Marcos said.
But even without the added power, as Racela pointed out, the anti-terror law already authorizes them to freeze an asset on mere probable cause as determined by the anti-terrorism council.
Poe also questioned the capacity of the AMLC, citing manpower. AMLC only has 161 staff in total but will expand to 250, according to Racela.
"Even now there's not enough of you to be able to investigate all of these accounts, how can you possibly have the expertise to know, since you are mostly financial individuals, if in fact an individual or a group is a terrorist group?" Poe said.
Poe, Drilon, and Marcos all voted to pass the anti-terrorism law. Only opposition Senators Francis "Kiko" Pangilinan and Risa Hontiveros dissented.
Jailed opposition Senator Leila De Lima was not able to vote because one has to be on the floor to cast a vote, according to her chief-of-staff Fhillip Sawali.
The Implementing Rules and Regulations (IRR) of the anti-terror law allow the all-powerful anti-terror council to designate terrorists upon its own finding of probable cause.
Probable cause is defined in Rule 6.3 as "reasonable ground of suspicion supported by circumstances warranting a cautious person to believe that the proposed designee meets the requirement for designation."
The deliberations will be kept secret and designated terrorists will only be notified after they have been designated, a designation that will be published on the internet.
The IRR added a feature of delisting, meaning those designated can appeal the anti-terror council to delist themselves on basis of mistaken identity, new evidence, change of circumstance, dissolution of the group or death of the person.
The Free Legal Assistance Group (FLAG), which represents petitioners such as Pangilinan and De Lima, said the grounds for delisting are not a source of comfort because they assume that the designation is correct.
"The enumerated grounds presume that the basis of the designation is correct from the very beginning and there is no way to allege otherwise," said FLAG in its reiterative motion filed before the Supreme Court asking the law to be junked.
Justice Undersecretary Adrian Sugay said that the anti-terror council will be careful in its designations – more careful than how the National Task Force To End Local Communist Armed Conflict or NTF-ELCAC brands activists as terrorists.
National Security Adviser Hermogenes Esperon Jr. is the vice chairman of both the ATC and the NTF-ELCAC. Sugay said that notorious Lieutenant General Antonio Parlade Jr – behind an intense red-tagging campaign – does not sit in the ATC.
"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 said in an earlier interview with Rappler's podcast Law of Duterte Land.
(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.) – Rappler.com