[ANALYSIS] The Anti-Terrorism Act: Duterte will have all dissenters’ necks

At a time when people are sick, dying, hungry, and anxious because of the COVID-19 pandemic, Duterte’s focus isn’t on mobilizing government to combat the virus and aid the poor. Rather, his priority is how to continue wielding power. He coddles the military and police, from which his power eventually emanates. The Inter-Agency Task Force, the body tasked to lead the Duterte government’s COVID-19 response, isn’t a health crisis management team but a club of generals geared for informational warfare, aiming not to contain the pandemic per se but the potential political fallout therefrom. And while his tough-on-lawlessness speeches unleash a new wave of arrests and rough treatment by police of the “pasaway” or quarantine violators among ordinary people, Duterte gives the birthday party-hosting police chief a pass. 

The proposed Anti-Terrorism Act of 2020 continues Duterte’s drive towards the oppression of his enemies, increasingly ordinary people. Filipinos have waited for some semblance of a government plan for managing the easing of quarantine restrictions. Duterte’s response? Counterinsurgency against the New People’s Army (NPA). People are increasingly impatient and fed up with government’s utter lack of regard for their basic needs at this most trying of times; it’s a natural reaction to incompetence and arrogance of power. They don’t need ideological indoctrination from the NPA to feel that way. But Duterte will not take any lectures about how to govern from anyone he doesn’t need or like; he’d rather just get rid of them.

Anti-terrorism laws typically give executive authorities broad discretion to hold out terrorists as having drastically fewer guarantees to due process than those provided under ordinary criminal laws and the Constitution. The Philippines’ Human Security Act (HSA), enacted during President Arroyo’s term in office, the anti-terrorism law which the bill seeks to amend, already provides for drastic reductions in rights for those who are deemed terrorists. For example, the HSA allowed police to detain a suspect for up to 3 days without charging him/her with any offense. This was a controversial provision at the time. In comparison, the criminal law only allowed police to detain a suspect without charges up to 36 hours even when the suspicion was for the most serious crimes (art. 125, Revised Penal Code). 

The Anti-Terrorism Act drops the bar even lower. It allows police to make arrests based on the written order of executive officials alone, dispensing with need for warrants of arrest from judges. The bill allows police, not having any warrant of arrest, to detain a suspect for up to 14 days (extendible by another 10 days) without filing any charges against that person (sec. 29). We haven’t yet seen Congress authorizing police to exercise such an immense power over ordinary people under normal circumstances. (READ: EXPLAINER: Comparing dangers in old law and anti-terror bill)

It also removed the provision in the HSA (sec. 50) which allowed suspects who were eventually acquitted to recover damages from the police in the amount of P500,000 for every day that he/she was detained or deprived of liberty without a warrant. Art. 50 at least makes police pause to consider the possible consequences to themselves of detaining suspects unnecessarily. Without this provision, police are now free from such worry.

The bill further institutionalizes terrorism discourse that, in the Philippines, government uses to delegitimize dissent, particularly coming from communists and leftists. When the HSA was enacted, Arroyo was an enthusiastic participant in the US-led War on Terror and happily enrolled in the global campaign targeting extreme Islamists. It was convenient. She was losing support from almost every corner of Philippine society as the most unpopular president in Philippine history; renewed alliance with the United States allowed her to throw money at the military and obtain their loyalty.

Arroyo also extended the rhetoric of the War on Terror by rendering as “terrorism” the armed struggle of the Communist Party of the Philippine-New People’s Army previously regarded as “insurgency.” In practice, counterterrorism was just another name for counterinsurgency, with the added benefit that it now had the backing of Western governments. Counterterrorism almost exclusively consisted in military operations, supplemented by diplomatic initiatives like the terrorist listing of the CPP-NPA and Jose Maria Sison in the European Union and the Netherlands. The urgency to have a legal framework for counterterrorism was really the external pressure brought to bear by the United States, fully supported by the United Nations Security Council, which obliged countries the world over to adopt anti-terrorism laws.

In hindsight, Duterte almost broke with this aggressive global approach. Presidential candidate Duterte promised peace with everyone, including the CPP-NPA. But unable to appease the communists with token Cabinet seats and needing military support to consolidate his power as national boss, peace with the CPP-NPA was soon ejected from his to-do list. While styling himself a critic of US aggression, Duterte eventually adopted the same terrorism discourse as Arroyo had. Erstwhile fellow travelers of Duterte, communists were terrorists again and leftist activists were again considered simply as communist fronts, aiding and abetting his military’s enemies, and therefore also terrorists. Rather than a Comprehensive Agreement on Social and Economic Rights (CASER), the next substantive goal in their peace negotiations, Duterte’s response to the CPP-NPA is the Anti-Terrorism Act. 

The bill is best seen as enshrining in law the military’s perspective on security and its wide net approach to counterinsurgency. This perspective prefers suppression of practically everyone that exhibits disagreement with or disapproval of the status quo over listening and responding to people’s real needs for radical redistribution of land, resources, and opportunities whoever may have voiced those demands. Its wide net approach is reflected in the bill’s criminalization of various non-violent acts, such as extending “training” which could include educational activities (sec. 3(k)); “planning,” “preparing,” or “facilitating,” and even mere possession of documents that are deemed by authorities as connected to terrorism but do not in themselves constitute conspiracy to commit a specific violent act (sec. 6); recruitment to and membership in organizations deemed terrorists by the authorities; etc. (READ: U.N. report raises concern over ‘problematic’ PH anti-terror bill)

The military has long regarded everyone with any experience or disposition for anti-government political activity as actual or potential enemies. Indeed, Arroyo’s infamous campaign of extrajudicial killings against leftists and journalists featured the military going village-to-village proclaiming everyone in the community with any association with leftist organizations or have joined political demonstrations to be terrorists before hunting them down. 

Under the Constitution, non-violent political activities including strikes, protests, demonstrations, and organizing are protected rights, honored as important mechanisms for checking governmental abuse. The bill carves up a twilight zone in which these activities are reasons for arresting people and detaining them without charge for longer than ordinary criminal suspects. It institutionalizes a version of order, closer to authoritarianism than to liberal democracy, in which rights exists only for people authorities approve of. 

Although the bill will make it easier to prosecute people they normally deal with extrajudicially or in the combat zone, it is likely that military-led counterterrorism will continue. The bill was not meant to suddenly shift from a military-led to a criminal justice-based approach such as what Indonesia has. What the bill signifies is Duterte’s willingness to subject ordinary people to the increased risk of police abuse. Duterte started with drug addicts, now he’s after all dissenters. – Rappler.com

Jayson Lamchek is a Filipino lawyer based in Canberra, Australia. He is currently an Honorary Fellow at the Australian National University (ANU) College of Law. He has written a book entitled Human Rights-Compliant Counterterrorism: Myth-making and Reality in the Philippines and Indonesia, published by Cambridge University Press.