[OPINION] Duterte raises the bar on impunity

Tom Villarin
'It is now hoped that petitions to junk the anti-terror law filed in the Supreme Court can be judiciously decided sooner than later'

 

As new COVID-19 infections were reported to be rising, President Duterte signed RA 11479 or the Anti-Terror Act of 2020, effectively repealing the Human Security Act of 2007 and raising the bar on impunity under his watch.

It also came a day after the Bangsamoro parliament passed a unanimous resolution calling for the President to veto the said measure, for fear that it would lead to abuse and discrimination in Muslim Mindanao, including gatherings for worship, that could fall under the broad definition of terrorism.  

According to former ARMM governor and now Basilan Representative Mujiv Hataman, community dialogues and working with sectors to help potential terrorists turn their backs on violence are important strategies that were left out in the law. Hataman also pointed out that Bangsamoro institutions are not included in the law’s policy mechanisms, save for membership in a secretariat. 

With the Anti-Terror Act of 2020, the Philippines has elevated its status as being among countries with draconian laws against terrorism. (READ: [OPINION] Martial rule without martial law: An anti-terror bill subtext)

The Global Terrorism Database (GTD), a comprehensive database of domestic and transnational terrorist incidents, defines terrorism as “acts of violence by non-state actors, perpetrated against civilian populations, intended to cause fear, in order to achieve a political objective.” 

By contrast, violent acts committed without a political, economic, religious or social goal are not classified as terrorism, but as “violent crimes.” Its definition also excludes state-initiated violence (state terrorism) and hostilities between opposing armed forces, even if they’re non-state actors. 

Many terrorist incidents happen in countries of high internal conflict, because terrorism is ultimately seen as another form of conflict. Overlaps between terrorism and other forms of crime and political violence, such as insurgency, hate crimes, and organized crime, are used to justify using a broad and expansive definition of terrorism. 

Several countries, however, are using anti-terror laws to go after government critics, ordinary citizens, and the press. RA 11479, or the Anti-Terror Law of 2020, is eerily similar to laws of these countries that stifle dissent of its citizens.

Egypt, which updated its 2015 anti-terrorism law in light of the COVID-19 pandemic, allows police to detain suspects without a warrant for 8 days and criminalizes inciting to terrorism and fake news. Their law provides an extremely broad definition of terrorism as any act that disturbs public order with force. It also gives Egyptian security forces immunity from prosecution, maximum prison sentences and the death penalty for terror-related offenses, as well as heavy fines for those who publish fake news.

In the past, 20,000 prisoners in Egypt arrested on terrorism charges were deemed politically motivated and released. According to the Committee to Protect Journalists, all but one journalist imprisoned in 2019 were charged with terrorism. Recently, a prominent journalist, Mohamed Monir, editor of the al-Diyar, was arrested for fake news and joining a terrorist group. Global media outlet, Al-Jazeera, has been banned in Egypt.

In Turkey, a 2013 anti-terror law criminalized propaganda that would incite terrorism. In 2015, another law permitted the warrantless arrest of terrorist suspects. According to Turkish government records up to July 2019, nearly 70,000 people in Turkey were being tried for terrorism and over 150,000 were being investigated for terrorism. Government closed down more than 100 news outlets.

Early this year, 3 parliamentarians were expelled from office on terrorism and espionage charges. Leyla Guven and Musa Farisogullari, members of the pro-Kurdish Peoples’ Democratic Party and Enis Berberoglu, of the main opposition Republican People’s Party, are the latest victims in a crackdown on dissent.

In Malaysia, the Prevention of Crime Act of 1959, Prevention of Terrorism Act (POTA) 2015, and Security Measures Act (SOSMA), have been cited as draconian by Human Rights Watch and face calls for repeal. 

Malaysia’s security laws allow for preventive detention of up to 28 days for a broadly defined range of security offenses. Maria Chin Abdullah, a member of the ASEAN Parliamentarians for Human Rights, was detained in 2016 and last year, P. Gunasekaren and G. Saminathan, both members of Democratic Action Party, were also detained.

An appointed Board can even order detention without trial for up to two years, renewable for an indefinite period, conduct electronic surveillance, and impose other severe restrictions on freedom of movement and association, all without judicial review. 

In Indonesia, a stronger anti-terrorism law was passed in May 2018, after the Surabaya bombings by the Islamic State. The new measure allows terrorism suspects to be detained for 21 days, up from 7 days. The law allows police to keep a terror suspect in custody, after being charged, for a maximum 290 days.

President Widodo though has taken a new tack against terrorism by focusing on educational programs and materials that promote “unity in diversity” and a healing process among the victims and perpetrators.    

Before COVID-19 struck, Australia had around 82 anti-terror laws since the September 11 attacks and is further discussing 6 bills in parliament. The core of Australia’s anti-terrorism laws is a “balanced definition” and very detailed description of terrorism, though threats to freedom of the press and right to travel are raised. 

According to Australia’s Attorney General’s manual on counter-terrorism, preventive detention of suspects is up to a maximum of 48 hours, but under orders by federal courts. However, a combination of state and federal laws allow preventive detention up to 14 days, with full rights including the right to remain silent, and access to lawyers and family members. 

Terrorism is a complex problem and as early as 2006, the United Nations Global Counter-Terrorism Strategy notes, violations of human rights are among the conditions “conducive to the spread of terrorism” even though they can never excuse or justify terrorist acts. The United Nations has thus emphasized the important role of victims in countering and preventing violent extremism while ensuring their human rights.

The ATA 2020 obliterates human rights safeguards, overstretches the period of detention without warrant from 3 to 14 days, extendable by another 10 days, and a vague definition of terrorism. It establishes the Anti-Terrorism Council that can issue arrest and detention orders, proscribe groups as terrorists, conduct surveillance, and freeze bank accounts. The vague definitions in the Anti-Terrorism Act violate the principle of legality in criminal law.

Aside from the ATA 2020, the country already has a 2012 Cyber Libel Law that punishes online libel as in the case of Rappler’s Maria Ressa and Rey Santos, and RA 10973 or the Subpoena Powers law of 2018, that gives subpoena powers to the PNP chief and the Criminal Investigation and Detection Group. Both laws are broad, subjective, and expansive of state powers that infringe on individual rights and freedoms. (READ: Keng sues Ressa for cyber libel anew over a 2019 tweet)

While these laws aim to strengthen public order and counter terrorism, the risk of eroding constitutional and other legal protections of citizens is too high. Bills to restore the death penalty for drug-related offenses and other serious crimes and to lower the age of criminal responsibility, unsolved and continuing EJKs by the police and vigilantes, and now an expansive anti-terror law would breach the Philippines’ obligations under international human rights law. (READ: 4 years on, climate of fear and impunity blocks justice for Duterte’s drug war victims)

The detention of Senator Leila De Lima, quo warranto ouster of critical Chief Justice Maria Lourdes Sereno, sedition charges against the opposition led by Vice-President Leni Robredo, cases against Rappler, the closure of ABS-CBN, arrests of thousands of lockdown violators – mostly the poor and hungry – among many others, are portent signs that indeed the ATA 2020 is directed against government critics.

It is now hoped that petitions to junk the anti-terror law filed in the Supreme Court can be judiciously decided sooner than later. 

But knowing Duterte’s penchant for impunity, he will likely use this new weapon to wield control as the pandemic transitions from the “hammer” to the “dance” phase, but with bad choreography. – Rappler.com

Tom Villarin is former congressman of Akbayan Party List in the 17th Congress. He authored the law Institutionalizing the 4Ps and the Safe Spaces Act, co-authored the Universal Health Care Law, Expanded Maternity Leave Law, Free Tertiary Education in Public Schools, and the vetoed Anti-Contractualization Law, among others.