7 Reasons Why the Anti-Terror Bill Should Be Junked

Certified as urgent, the Anti-Terror Bill (ATB) is on its way to becoming a law. With eyebrows raised and worries heightened, YLS explains, in connection with the Human Security Act (HSA), why the Anti-Terror Bill should be junked.

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Sereno: It is the most unfortunate time to pass anti-terror bill
Photo from Jire Carreon/Rappler

1. What constitutes terrorism? It is actually harder to know, and that’s dangerous.

For an act to be considered as “terrorism” under the ATB, “the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any of its international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country.” (Sec. 4, ATB) Comparing it with Section 3 of the HSA, the HSA provides with more specificity that a terrorist act must be one which is “sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.”

Notice that intimidation of the general public or spreading a message of fear (no longer ‘widespread’ nor ‘extraordinary’, and apparently, regardless whose ‘fear’ it is) now count as acts of terrorism. Will burning effigies and megaphoning dystopian scenarios cause fear, enough to be qualified as terrorism?

The ATB includes “acts intended to cause extensive damage or destruction to a government or public facility, public place or private property” as terrorist acts. Will graffiti of militant groups on their rallies count as a terrorist act since, for some, this is considered as damage to public property?

Included among the terrorist acts are “acts intended to cause death or serious bodily injury to any person, or endangers a person’s life”. Will the occasional physical altercations, sometimes descending to ‘riots’, between law enforcement personnel and rallyists fit in this definition?

Even acts which “seriously destabilize the fundamental political, economic, or social structure of the country” count as terrorism. We know that we have heard “destabilization” quite a number of times as being ascribed to the opposition’s airing of grievances, sometimes even with a fancy matrix.

There is an exception in the law, however. Terrorism, according to the ATB shall “not include advocacy, protest, dissent, stoppage of  work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.” A good exception. However, notice that the exception has an exception in itself. Protests and activism must not have the intention to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety. One can easily say that a noisy barrage in Mendiola may create a serious risk to public safety.

The coverage has likewise been expanded to include not just the widespread, but also those intending to cause serious physical harm to even a singular, specific person. This seems quite encompassing.

The bar for an act to be considered as terrorism has been dangerously set too low. It is too open to interpretation that it may fit whatever

2. More criminal acts based on a vague definition.

Threat to Commit Terrorism (Sec. 5), Planning, Training, Preparing, and Facilitating the Commission of Terrorism (Sec. 6), Proposal to Commit Terrorism (Sec. 8), Inciting to Commit Terrorism (Sec. 9), Recruitment to and Membership in a Terrorist Organization (Sec. 10), Providing Material Support are the new crimes in the ATB not found in the HSA. With more acts hinged on a vaguer definition of terrorism, we can only guess the flurry of cases that may come invoking sections of the ATB charging who knows who.

Will the hashtag #OustDuterte count as inciting to commit terrorism, since it tends to “destabilize” the government? Maybe a quarter of Philippine Twitter population may be in jail (or prolonged detention) if this happens. How about the case of leftist student organizations? Their existence and presence inside campuses could be criminalized as their organizations may be tagged as terrorist organizations, and their recruitment activities will constitute as a crime. Your guess is just as good as mine.

3. Terrorism might be harder to define, but the ATC has the discretion in identifying who the terrorists are.

The Anti-Terrorism Council (ATC), composed of the Executive Secretary, Secretary of Justice, Secretary of Foreign Affairs, among others (Sec. 45) (who, based on the previous or current persons occupying such positions, have statements that made headlines one way or another) may designate an individual, groups of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, groups of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the acts we mentioned in number 1 and number 2 (Sec. 25, ATB).

Any group of persons which commits any of the acts we have mentioned or organized for the purpose of engaging in terrorism shall, upon application of the Department of Justice (DOJ) before the authorizing division of the Court of Appeals (CA) with due notice and opportunity to be heard given to the group of persons, organization or association, be declared as a terrorist and outlawed group of persons, organization or association, by the CA. Well, at least, the judicial authority to declare a group as terrorist is now lodged with a higher court. Under the HSA, the authority was with the Regional Trial Court. (Sec. 26, ATB).

Curiously, the power of ATC to designate terrorists requires no court authority.

4. Suspected? Your private conversations can be wiretapped.

This is a provision of the HSA that was retained by the ATB, but with additional powers, of course. If you use Smart or Globe to make your calls, it appears that the ATC, may file a written application with the CA for the issuance of an order, which has the power to compel telecommunications and internet service providers (yes, Smart, Globe, PLDT, Converge, etc.) to produce ALL customer information and identification records as well as call and text data records, content (right, content, I’m quoting the bill by the way) and other cellular or internet metadata of any person suspected of any of terrorism (Sec. 16, ATB). This compelling power is not found under the HSA. The CA must find probable cause before issuing the order (Sec. 17, ATB).

The powers that were carried over by ATB include the power to “secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record or collect any private communications” from and between terrorists and even mere suspects.

5. Wiretapped not just for hours, for days, but for as much as 2 months.

Oh the horror of someone listening to your private conversation, much more if you are being suspected of terrorism. Well, apparently, you have to bear with this secret wiretapping not just for a period of one month as stated in the old HSA (Sec. 10, HSA), but at a period not exceeding 60 days (Sec. 19, ATB). Yes, the ATB extended the possible duration of effectivity of an order allowing law enforcement agencies to wiretap a suspected terrorist.

Well, if it gives you some sense of calmness, a law enforcement officer who wiretaps or intercepts without a court order shall be punished by imprisonment of ten years (Sec. 24, ATB), that is, if you will know that you have been secretly wiretapped or intercepted and be able to file a complaint.

6. Warrantless Arrest? Yes. Detained? From 3 days, now up to 24 days.

The HSA provides that upon your warrantless arrest, the arresting officer must deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel (Sec. 18, HSA). Accordingly, you must be already charged within that period. The logic is that there must be a reason why one is detained. If charges aren’t filed against a person within three days, then why does he remain captive?

The ATB extends that to 14 days, extendible to 24 days on certain grounds. Yes, you can be detained for more than three weeks without a formal charge even if you were arrested without a warrant.

As a safeguard, which hopefully will be done, the law enforcement personnel shall inform the judge of the nearest court (copy furnished ATC and the Commission on Human Rights) of such detention. Well, again, if it gives you some sense of calmness, a law enforcement officer who violates the notice rule shall be punished by imprisonment of ten years (Sec. 29, ATB), that is, if you’ll be released by your violator-captor and risk that he be charged.

7. Even if you are not a terrorist, you should be scared.

Even if you are not a terrorist, which I hope is true, you should be scared. An unfortunate reality is that laws may sometimes be used to oppress through absurd interpretations. We note of one instance where Atty. Diokno shared that one of his clients was summoned on his commentary that funds should be used for the country’s pandemic response instead of buying helicopters, citing that it is an “unlawful use of utterance”. We note that media companies were subjected to multiple threats of shutdowns and lawsuits, with one reaching as far as an actual shutdown. With the ATB, we’ll be seeing sentences of 12 years of imprisonment up to life imprisonment, which is a lot, considering the unclear coverage of what constitutes terrorism.

A skeptic may say I am stretching my interpretation too far. I hope I do. I hope my fear is just exaggerated. I hope that the way I am absurdly stretching these interpretations are unique to me, but many lawyer groups, such as the Concerned Lawyers for Civil Liberties, the National Union of People’s Lawyers, among other rights groups, have raised alarms. The concern is not imaginary. It is real, imminent, and very much felt. Airing of grievances is an indispensable element of participative democracy. It is a constitutional right which we ought to protect while we have.

Well, they say only terrorists should be afraid of the Anti-Terror Bill. What is being ignored is that after this bill is passed, whether you believe in yourself that you are not a terrorist, if the ATC says otherwise, then you are technically a terrorist. When the time comes that you need to address the government for any reason, a terrorism label might already be on your forehead. You should be scared. We hope this legal authority will not be abused, but we can only hope.

Last words

We need a law which will target, discourage, and penalize terrorism. While, admittedly, it is arguable that the Revised Penal Code and the Anti-Money Laundering Act, among others, are enough, the Human Security Act has imposed a high barrier to discourage charges of terrorism. Section 50 of the HSA provides that upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of P500,000 for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation. Such is a hefty sum that effectively discouraged attempts to prosecute terrorism. The HSA may indeed need some change.

Personally, I would not mind the vague definition or the authority to wiretap our conversations (with judicial determination of probable cause, of course) if this is for the noble purpose of quelling terrorism. After all, who would not want to be safe in his own country? However, I may be too idealistic and naïve. Notwithstanding all the safeguards in the ATB, such as the involvement of the Commission on Human Rights (Sec. 47, ATB), the exception of the definition on activism (Sec. 4, ATB), protection of most vulnerable groups (Sec. 51, ATB), monitoring of progress of investigation and prosecution of all persons accused/detained (Sec. 46, ATB), a legal affairs program which shall ensure respect for human rights and adherence to the rule of law (Sec. 45, ATB), among others, we always note that a law is only as good as the persons implementing and interpreting it. With the current political climate and with statements coming from some government officials themselves, it is reasonable, and even patriotic, for us to doubt and worry. Protection of the citizens against terrorism should go along the protection of our constitutionally guaranteed rights. #

(ATB used is based on the Senate Bill uploaded in the Senate website. I urge you to read more.)