[ANALYSIS] No assurance from the Anti-Terror Law's rules

The following is Part 1 of a two-part series. You can read Part 2 here.

Released by the Department of Justice and the Anti-Terrorism Council, the 48-page IRR lays down the guidelines and procedures of the law, and have several salient provisions, including those on warrantless arrests and delisting. Naturally, many critics, both individuals and groups, have raised their concerns regarding the IRR, considering the nature of the law on which it is based. We will look into the contents of the IRR and its most important provisions.

The 48-page IRR seems exhaustive at first. However, the inclusion of new terminologies (such as “reasonable probability of success”), the provisions on posting designated names, and the rule on warrantless arrests leave much to be desired. While some provisions categorically indicate that the burden of proof is on the prosecution, the delisting process still places the burden on the suspected individual or groups. Moreover, the IRR does not allay any concerns regarding potential abuses that might come with the still vague and overbroad definition of terrorism. Though long, it still lacks clarity and guidance, and is therefore insufficient, its chilling effect still palpably felt.

The Anti-Terrorism Council and punishable acts

Rule 3.10 of the IRR provides that “nothing in this Act shall be interpreted to empower the ATC to exercise any judicial or quasi-judicial authority.” It is to be remembered that this was one of the pressing concerns raised by many petitioners who questioned the constitutionality of the law, especially because the ATC is composed of members of the executive branch. 

Another part of the law which merited wide criticism came from the vague and overbroad definition of terrorism, and the other acts punishable under the law (Sections 4-12). The IRR, however, retains much of the contested definitions. The exceptions, advocacy, protest, dissent, stoppage of work, industrial or mass action, creative, artistic, and cultural expressions, and other similar exercises of civil and political rights, are also included in the IRR, as long as they are not intended to cause death or serious physical harm to a person, endanger a person’s life, or to create a serious risk to public safety. Not found in the law, however, and perhaps aimed to allay any concerns that may arise due to the issue of “intent,” the IRR categorically provided in the end of Rule 4.4 that “[t]he burden of proving such intent lies with the prosecution arm of the government.”

The crime of inciting to commit terrorism, found in Section 11 of the law, uses the test “reasonable probability of success,” which is neither defined in the IRR nor present in Philippine jurisprudence, which uses the “clear and present danger” rule when it comes to restriction of freedom of speech. The IRR also provided ways by which to determine the existence of such reasonable probability of success: look into context, speaker/actor, intent, content, and form, extent of the speech or act, and causation. While expanded, this particular provision – and the rest of the punishable acts – still lacks a clear standard and definition, and concerns regarding its chilling effect are still left unanswered.

Another addition to the IRR that was not included in the law is the inclusion of the phrase “as determined by the ATC” with regard to humanitarian activities as exception to the punishable act of providing material support to terrorists. According to the last paragraph of Rule 4.14, “Humanitarian activities undertaken by the International Committee of the Red Cross, the Philippine Red Cross, and other state-recognized impartial humanitarian partners or organizations in conformity with International Humanitarian Law, as determined by the ATC, do not fall within the scope of the crime of providing material support to terrorists penalized under Section 12 of this Act.”

Surveillance and recording of communications

According to Rule 5.4, the order to compel telecommunications service providers (TSP) and internet service providers (ISP) to produce records of any person suspected of committing any of the crimes listed in the law shall be complied with within 48 hours from the time it was received. The Rules reiterate the provision in the law that this application by the law enforcement agent or military personnel shall be done ex parte, which takes place when done by, for, or on application of one party only.  

As in the law, the period of surveillance shall not exceed a period of 60 days; however, this may be renewed for a non-extendible period of 30 days from the expiration of the original period upon the determination that (a) the issuing court is satisfied that such extension or renewal is in the public interest, referring to the security of the nation and the welfare of the general public and society, (b) the ex parte application for extension or renewal is filed by the original applicant, and (c) the ex parte application for extension or renewal was duly authorized in writing by the ATC. 

Also in the law, any listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words which have been secured in violation of the pertinent provisions of the Act shall be inadmissible and cannot be used as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding or hearing. The IRR however includes an exception: the evidence may be “admissible in an action against the erring law enforcement agent or military personnel, but only for the purpose of proving the unauthorized surveillance activities.”

Designation and delisting

Perhaps some of the most controversial provisions surrounding the IRR can be found under Rule VI, or Designation of Terrorist Individual, Groups or Persons, Organizations, or Associations. 

Probable cause is the standard by which the ATC can designate terrorists, which is defined under the IRR as “a reasonable ground of suspicion supported by circumstances warranting a cautious person to believe that the proposed designee meets the requirements of designation.” 

A list of persons or entities designated as a terrorist, according to Rule 6.5 and is not present in the law, will be published in or posted on the online Official Gazette and the official website of the ATC, which will include the name of the designated person or entity or other identifier information, a brief description of the case for designation, and the date of designation or date of last review of designation.  

Also not provided for in the law but is included in the IRR is the provision on delisting. Under Rule 6.9, those designated or their assigns or successors-in-interest may file a request for delisting within 15 days from publication of the designation, and can be done as often as the grounds for delisting exist. However, no request for delisting may be filed within 6 months from the time of denial of a prior request for delisting.

The grounds that a person or entity can rely on for delisting are: (a) mistaken identity; (b) relevant and significant change of fact or circumstance; (c) newly discovered evidence; (d) death of a designated person; (e) dissolution or liquidation of designated organizations, associations, or groups of persons; or (f) any other circumstance which would show that the basis for designation no longer exists.

The process of designation was one of the more contentious provisions of the law with many petitions claiming it as a violation of due process, so the inclusion of delisting was perhaps a move done by the creators of the IRR in order to respond to these concerns. However, the problem still lies with the fact that the burden of proof is placed on the suspect, and not the prosecution, which should be the case when it comes to criminal cases. Moreover, the designation still raises concerns on due process, as this can lead to other consequences, such as freezing of assets (Section 25) and warrantless arrests (Section 29). – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government.

Joy Reyes is a collaborator of La Viña's. She graduated from the University of the Philippines College of Law.