Months before the implementing rules and regulations (IRR) of the feared 2020 anti-terrorism law was published, Presidential Spokesman Harry Roque gave his two cents about how the document should define the new crime of inciting to terrorism.

Back in July, Roque said that for an act to be considered inciting to terrorism, there should be a “clear and present danger” that the act would lead to actual terrorism.

Groups challenging the anti-terrorism law are now saying that the IRR has a “lower standard” for inciting to terrorism: that there only be “reasonable probability” that the speech will successfully incite others to commit terrorism.

Roque, a respected human rights lawyer before he became Duterte’s mouthpiece in 2017, gave his views on how inciting to terrorism should be defined in a press briefing last July 23.

“This is subject to existing jurisprudence: There must be clear and present danger, and jurisprudence has said that the utterance, in order to be included in incitement must also – the person speaking must also have the capacity to actually do what he is inciting others to do,” said Roque.

So, he continued, if an “ordinary individual” is calling others to commit an act of terrorism but “he has no way to actually carry out what he is inciting others to do,” then his speech is protected by the right to freedom of expression.

“But if the person speaking is a member of the Abu Sayyaf and fully armed, then clearly, there is a clear and present danger. Courts have had extensive experience in the Philippines in evaluating when there is clear and present danger,” added Roque.

Different standard in IRR

But the IRR crafted by the Department of Justice and Malacañang-led Anti-Terrorism Council has a “lower” standard of defining inciting to terrorism, according to lawyer Edre Olalia, president of the National Union of Peoples’ Lawyers (NUPL).

The “reasonable probability of success” rule is stated in the IRR’s Rule 4.9.

Defending the IRR, Justice Undersecretary Adrian Sugay said the element of “reasonable probability of success” was adopted from the 2012 Rabat Plan of Action of the United Nations Office of the High Commissioner on Human Rights (OHCHR).

The Rabat Plan of Action is supposed to set a “high threshold” for restricting free speech to stop incitement to hatred, discrimination, and violence.

Its “test” for identifying these forms of incitement looks at the following aspects of the speech: social and political context, status of the speaker, intent to incite the audience against a target group, content and form of the speech, extent of its dissemination, and likelihood of harm, “including imminence.”

The 2020 anti-terror law, signed by Duterte after the lobbying of retired generals in his Cabinet, has been assailed for its vagueness in defining acts of terrorism and for giving the power to a non-judicial body packed with Duterte appointees to “designate” individuals and groups as terrorists.

There are now 37 petitions from various groups asking the Supreme Court to suspend the law’s implementation, fearing its effects on democracy and the safety of people critical of the Duterte government. – Rappler.com