Dissecting anti-terror law: Designation feared to reach beyond frozen assets

The families of peace consultants designated by government as terrorists claimed they hardly had any assets to be frozen. This situation led them to fear that the government was not after their properties but was for a faster route to convict the activists.

"My one fear is it would override the judicial proceedings or ongoing tirals...that if the designation is validated, the government would have the basis to override it and just convict them," Sharon Silva, wife of peace consultant Adelberto Silva, said in Filipino in a news conference on Friday, May 14.

Apart from Adelberto Silva, his fellow National Democratic Front (NDF) peace consultants Vicente Ladlad and Rey Claro Casambre were also marked by the anti-terror council (ATC).

This authority of the ATC to designate terrorists is one of the most contested powers provided by the anti-terror law whose constitutionality was still being heard by the Supreme Court.

The peace consultants denied they were members of the CPP's central committee.

Silva, Ladlad and Casambre are all in jail and on trial for illegal possession of firearms and explosives – offenses outside the anti-terror law. (READ: Terror designation of petitioner peace consultant boosts SC case – lawyers)

Purpose is freezing of assets only?

The government has maintained that the designation's main purpose was for the freezing of assets. It is their defense for a power called as arbitrary by petitioners.

In the ongoing oral arguments in the Supreme Court, Associate Justice Benjamin Caguioa said the vast powers of the ATC would disincentivize the government to go through the full-blown court process of proscription.

The consultants' lawyer, Krissy Conti of the Public Interest Law Center (PILC), said to look at the historical context. The consultants were already freed by President Rodrigo Duterte for the now-scuttled peace talks, but when the Department of Justice (DOJ) tried to proscribe them as terrorists in 2018 using the old human security act, they were arrested one after the other for illegal possession of firearms and explosives. The consultants claim the evidence were planted.

"So that's what we are thinking that this designation will be political in nature, but I mean we're prepared for any and all scenario," said Conti, limiting her answers on the anti-terror law because of a gag order by the Supreme Court.

Another designated peace consultant was Rafael Baylosis, but he was already cleared of illegal possession of firearms and explosives charges in 2019. He is free but out on bail for a separate 12-year-old case involving an alleged mass grave in Leyte, related to what was described as a purge of communists. 

"[Baylosis'] existing case roughly alleges the same status as to him, that he is a member of the CPP-NPA, and in that case there is a little bit of chance to – depends on their strategy – perhaps add evidence, or add statement," Conti added.

'Primary purpose'

Justice Undersecretary Adrian Sugay maintained on Friday that "designation is primarily for purposes of going after assets of the designee."

The designation resolution already accused the consultants of "violations of Sections 6, 7, 8, 9 and 10" of the law or planning, conspiracy, proposal, and inciting to commit terrorism, as well as, membership in a terror group.

Another added power in the law is Section 27 or the court's ability to issue a preliminary order of proscription in as quick as 72 hours, without a single hearing, just based on the sufficiency of the application "in form and substance."

During oral arguments, government lawyers said a preliminary order of proscription can already be basis for prosecution under the anti-terror law. They also said that if a person has been designated as a terrorist, and that person's companion was caught with unlicensed firearms – a non-terror offense – the anti-terror council could still prolong the companion's detention under the anti-terror law, even if there was no information as to the affiliation of the companion.

What's stopping government from using the designation to apply for a preliminary order of proscription, prosecute the designated people, or even arrest and detain their companions?

"I don’t think you can stop anybody from using designation for purposes other than what law clearly provides. Whether or not such use will yield the desired result is another matter altogether. That is why we should all be vigilant," said Sugay.

Justice Secretary Menardo Guevarra is a member of the anti-terror council. The Department of Justice (DOJ) crafted the law's Implementing Rules and Regulations (IRR).

"The use of the designation for other purposes is one thing. The appreciation by courts or prosecutors of the relevance, even the weight, of any such supposed ‘evidence’ is quite another," said Sugay.

Conti said "we of course have to trust in the independence of the judiciary, of the judge, in her wisdom in deciding the case on the merits alone and not on mere statements."

Ex post facto

Carlos Montemayor of PILC pointed out that the alleged crimes of the consultants happened in 2018, when there was no anti-terrorism law yet. "The law cannot be applied against them," Montemayor said in Filipino.

This is called the ex post facto law, which is prohibited by the Constitution. An ex post facto law punishes an act which was not a crime yet as the law was not enacted at the time.

In an earlier interview with Rappler podcast Law of Duterte Land, Sugay said "I would like to think this is a continuation of the Human Security Act," but acknowledged that the ex post facto argument was a "valid concept, so that would be a very interesting legal issue once it comes up and once it is raised before our courts."

This was also a major legal contention in the petitions – terror acts, whatever they may be, happened before the passage of the law. The designations do not mention any specific act, just a sweeping statement that they have "validated information" during a proceeding entirely done in secret.

"For those, for example for Rafael Baylosis, there is real fear that he will be sued again, arrested again on trumped-up charges," said Montemayor.

Day 9 of oral arguments is on Monday, May 17. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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