Philippine anti-terrorism law

EXPLAINER: Anti-terror law’s IRR on delisting, warrantless arrests

Lian Buan

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EXPLAINER: Anti-terror law’s IRR on delisting, warrantless arrests

JUNK. Protesters from different groups stage a protest march against the new anti-terror law at the University of the Philippines in Diliman, QC on July 4, 2020 Photo by Angie de Silva/Rappler

Photo by Angie de Silva/Rappler

Among others, the Implementing Rules and Regulations of the contentious anti-terror law specifies when designated terrorists can seek to delist themselves

The Implementing Rules and Regulations (IRR) of the feared anti-terror law added two key features:

  • Designated terrorists can seek to delist themselves, following a process.
  • Law enforcement will need to submit to the executive anti-terror council a sworn statement stating the details of a terror suspect before it can be authorized to conduct warrantless arrests and prolonged detentions.

It also clarified that those charged with bailable terror crimes would not be subjected to a house arrest.

Still, the definition of what a terror act is under Section 4 of the law – which petitioners slammed as dangerously too broad – remained unchanged in the IRR. The Department of Justice (DOJ) promised that the IRR would clarify what a person “must or must not do to comply with the law.”

The crime of inciting to terrorism, which the petitions said violated freedom of speech, was expounded on in the IRR, taking into consideration the following elements: context, speaker, intent, content and form, extent of the speech and act, and direct causation between speech and the incitement.

“In crafting the IRR, we cannot go beyond what the law provides, we cannot take out anything, what we did was just break down the provision of the law in its elements to make sure it is properly understood by law enforcement, prosecutors and judges. That’s really all that we can do,” said Justice Undersecretary Adrian Sugay, who was designated spokesperson of the ATC.

Justice Secretary Menardo Guevarra is a member of the council. Executive Secretary Salvador Medialdea is the chairperson, with National Security Adviser Hermogenes Esperon Jr as the vice chair.

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Added condition for warrantless arrest

One of the most contentious provisions of the law was the power of the ATC to authorize law enforcers to arrest suspects without a warrant and detain them for as long as 24 days. The authority must come in writing.

Rule 9.1 of the IRR now added a requirement for law enforcers to first submit a sworn statement to the ATC before they can be authorized to make arrests. 

“The ATC shall issue a written authority in favor of the law enforcement or military personnel upon submission of a sworn statement stating the details of the person suspected of committing acts of terrorism,” said Rule 9.1.

Rule 9.1, however, still allowed law enforcers to arrest without warrant even without a written authorization. But in those cases, Article 125 of the Revised Penal Code would apply – they must file a case against the suspects within a maximum of 36 hours, or otherwise release them.

But Rule 9.1 also said that if agents can submit a sworn statement and secure a written authority before the lapse of the maximum 36 hours, a suspect can be detained for a maximum of 24 days.

Sugay said the need for a sworn statement should ease fears that arrests would be made on mere suspicion.

“It can be reasonably interpreted that any arrests based on Section 29, has to be based on probable cause,” Sugay said.

48 hours to notify a judge

Petitioners are also trying to revoke the provision under Section 29, which only requires law enforcement agents to notify a judge in writing about an arrest or detention. In the Human Security Act, the detained suspect shall be brought in person to the judge.

Under Rule 9.3 of the IRR, there is now a 48-hour fixed limit for sending the written notification to the judge. The law just said “immediately.”

Critics have pointed out that harassment can happen within that window period.

Sugay said they fixed it at 48 hours, keeping in mind remote places where it was difficult to travel to a court.

“Particularly in areas where we have many of the terrorists or suspected terrorists and their activities being undertaken, so like you know if you have to cross the island, cross the seas. These are things we took into consideration in fixing the period for such notification,” said Sugay.

Process for delisting

Another contentious provision of the law was the power of the ATC to designate people or groups as terrorists. This was a distinct power from the court’s authority to proscribe people or groups as terrorists.

Rule 6.9 of the IRR has provided a process by which designated terrorists can seek to delist themselves. This was not found in the law, and was, in fact, pointed out by petitioners as a violation of due process for designated people.

Under Rule 6.9, “a designated party or its assigned or successors-in-interest may file a verified request for delisting before the ATC within 15 days from publication or designation.”

The grounds for delisting are the following:

  • mistaken identity
  • relevant and significant change of facts or circumstance
  • newly discovered evidence
  • death of a designated person
  • dissolution or liquidation of designated organizations, associations, or groups of persons
  • any other circumstance that would show that the basis for designation no longer exists

Section 25 empowers the Anti-Money Laundering Council to freeze the assets of people and groups designated to be terrorists by the ATC. It did not qualify which assets.

In IRR’s Rule 8.1, it said the AMLC may investigate designated peoples’ “property or funds that are in any way related to financing of terrorism, terrorism, planning, training, preparing, facilitating in the commission of terrorism, conspiracy to commit terrorism, recruitment to and membership in a terrorist organization, foreign terrorist, and providing material support to terrorists.”

House arrest

Sugay said the IRR would now make it clear that those who are charged with bailable crimes cannot be subjected to house arrest.

Section 34 of the law has a clause that says if a suspect is granted bail, prosecutors can still request the court to put him or her under house arrest, cut off from telephone and internet access.

The heading of Section 34, or the restriction on the right to travel, lists down even bailable crimes like threat to commit terrorism, proposal to commit terrorism, and inciting to commit terrorism.

One of the petitioners, retired senior associate justice Antonio Carpio, pointed out this meant that people charged with bailable crimes lose their constitutional right to bail if they are placed under house arrest.

But Rule 10.13 of the IRR on house arrest only covers non-bailable crimes.

Sugay pointed out that the preceding paragraph on house arrest in Section 34 only talked of “cases where evidence of guilt is not strong, and the person charged is entitled to bail and is granted the same,” meaning, it contemplated only non-bailable crimes like terrorism itself or conspiracy to commit terrorism.

“When the law speaks of the requirement of evidence of guilt being strong, (that’s it), you’re referring to crimes which are non-bailable in the first place,” said Sugay.

Asked whether the IRR categorically excludes bailable crimes, Sugay said: “That would be a reasonable interpretation.”

‘Still unconstitutional’

The IRR did not satisfy some of the petitioners and their counsels, maintaining the stance that the law was still the main source of the problem, regardless of what the IRR clarified.

“The IRR simply operationalizes the law – it cannot substantively amend the law by adding details that are not in the law or removing items in the law where such addition or deletion would substantially change the law,” said former Supreme Court spokesperson Ted Te, who is a petitioner in the case filed by University of the Philippines (UP) Law Professors, and a counsel in the case filed by opposition lawmakers.

“The test isn’t simply putting them side by side and comparing language but it also requires an analysis of the effect of the words on the substance of the law,” Te said.

Edre Olalia, president of the National Union of Peoples’ Lawyers (NUPL) – counsels in the case filed by progressive group Bayan – said that “the IRR is the blindsided way to cure by way of afterthought a defective and unconstitutional law.”

“We will revisit our legal options to likewise contest this IRR. We reiterate our view that this law must be nipped in the bud before it spreads its toxin all over the place,” said Olalia.

The government is expected to implement the law full swing with the issuance of the IRR.

Three months since the law’s effectivity, and with 37 petitions seeking to strike it out, the Supreme Court has neither acted on the requests for injunction nor scheduled oral arguments. –

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Lian Buan

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