Philippine anti-terrorism law

OSG admits: No definition in anti-terror law for ‘vague’ standards

Lian Buan

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OSG admits: No definition in anti-terror law for ‘vague’ standards

ANTI-TERROR LAW. Associate Justice Benjamin Caguioa grills Assistant Solicitor General Raymund Rigodon during Day 7 of the anti-terror law oral arguments on May 11, 2021.

Screenshot from Supreme Court's livestream

'What I fear about is that the phrase 'provoke the government' is so vague so as to include any kind of provocation,' says Justice Rodil Zalameda

Grilled by the Supreme Court during Day 7 of the anti-terror law oral arguments on Tuesday, May 11, the government’s lawyer admitted that there was no definition in the anti-terror law for the “vague” standards of terror such as fear, intimidation, and extensive damage.

“As far as Philippine law, none that I know of [that defines atmosphere of fear],” said Assistant Solicitor General Raymund Rigodon in reply to the interpellation of Associate Justice Benjamin Caguioa on Tuesday.

Rigodon gave a variety of versions of that same answer.

Asked if there was a case law that defined how many people need to be involved for there to be an atmosphere of fear, Rigodon said: “None that I’m aware of.”

Asked if there was jurisprudence that defined the extent of “extensive interference” for it to be a terror act, Rigodon said: “I’m not aware of any jurisprudence, your honor.”

Section 4 of the anti-terror law, considered to be the crux of the very contentious law, defined a terror act in many ways. These were: causing risk, harm, or death, with the purpose of spreading a message of fear; intimidating the government; or doing extensive damage to critical infrastructure.

The same contentions were raised against the old Human Security Act (HSA). But in the HSA there were predicate crimes, so the government must first prove the existence of the crime – such as murder –  before proceeding to characterize if such crime had a terror intent. 

In the anti-terror law, there were no predicate crimes. It instead had any of those mentioned acts and more.

Day 7 was still held via Zoom, with Solicitor General Jose Calida still avoiding interpellations and letting his assistants take the grilling.

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‘To provoke’ is ‘so vague’

Associate Justice Rodil Zalameda particularly focused on the term “to provoke.”

Section 4 says that the acts mentioned there was a terror act “when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety.”

Zalameda asked: Why was there no modifier for the word “provoke?” Why couldn’t the Congress have put “seriously provoke,” or “provoke the government to do” something.

Zalameda also pointed out that other countries’ anti-terror law used the word “compel,” “coerce” or “force.”

“Because not all terrorist groups have concrete political goals. Not all terrorist attacks are followed by a list of demands, therefore it may explain the use of the word ‘provoke’ instead of ‘compel,'” said Rigodon.

Rigodon also added, “The succeeding phrase is ‘influence by intimidation the government,’ we can apply the statutory construction, we can define the word ‘provoke’ by the phrase following it, so I don’t think using the word ‘provoke’ renders this purpose as impermissibly vague.”

Zalameda did not agree and said: “What I fear about is that the phrase ‘provoke the government’ is so vague so as to include any kind of provocation.” Zalameda even used the example of a community pantry that could be seen as violating minimum health protocols, with the organizer shouting into a megaphone that the government has neglected them.

Susceptible to different interpretations

Caguioa also challenged Rigodon on the latter’s argument that one should apply the ordinary meaning.

“So let me ask you, what is your understanding of the ordinary meaning of ‘atmosphere of fear?’ How many people?” Caguioa asked, pressing Rigodon for an answer.

But Rigodon could not answer, which prompted Caguioa to ask this follow up: Who determines that the standard is met?

It’s the arresting agents, Rigodon said.

“The decision to arrest based on the provisions on the law rests with the arresting officers, correct? And yet that person will have no standard to understand what intimidation of the general public means,” said Caguioa.

“But in previous cases, the Supreme Court ruled that the absence of a standard will not render that statute unconstitutional, your honor,” said Rigodon.

Caguioa wrapped it up by saying: “Remember that you are depriving that person a fundamental liberty, a fundamental right to be free, and are you saying that can be done even if there is no standard, or even if that standard is susceptible to different interpretations, as many policemen as there are?”

To the end, Rigodon fumbled for an answer until Caguioa chose to end his brief interpellation, saying: “That’s all, those are my only questions. I’m done, chief.”

In an unusual schedule, Day 8 will immediately be held the next day, Wednesday, May 12, with Senior Associate Justice Estela Perlas Bernabe and Chief Justice Alexander Gesmundo left to ask the government. But other justices may ask questions to National Security Adviser Hermogenes Esperon Jr. – Rappler.com

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.