Why proposed Anti-Terrorism Law can be terrifying

Gauging by the stiff opposition from various groups to the proposed Anti-Terrorism Act of 2020, it seems many are wary or even terrified of its possible consequences when it becomes law.

I myself have become wary of it, mainly due to my past experience during the Marcos era when I was an activist demanding peaceful reforms. I was twice charged for alleged violations of the Anti-Subversion Law at a time when everyone who dissented or spoke against administration wrongdoings were lumped together as either communists or subversives.

Whether in less developed or even in some advanced democracies, dissent is generally unwelcome and people can be easily tagged as terrorists. In the US, for instance, President Trump called “domestic terrorists” those involved even in peaceful protests that erupted in many states following the death in Minneapolis of African-American George Floyd who died under police custody on May 25.

“These are not acts of peaceful protests. These are acts of domestic terror,” Trump said in his remarks on June 1 at the White House Rose Garden as police used tear gas and rubber bullets to disperse protesters nearby at Lafayette Square in Washington, D.C.

In the Anti-Terrorism Bill certified urgent by President Duterte and passed by both Houses of Congress, the definition of terrorism suffers from overbreadth and vagueness that it could be struck down as unconstitutional.

Section 4 of the bill, in particular, defines terrorism in broader terms than its predecessor (RA 9873) which defines it more precisely. RA 9873 defines terrorism as any of 6 violations of the Revised Penal Code and 7 special laws which sow and create “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.”

The proposed law defines terrorism as engaging in certain acts which are already punishable under the Revised Penal Code and qualified by the purpose of the act, “by its nature and context, 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, or create a public emergency or seriously undermine public safety (Section 4 e).”

Who determines the purpose of the acts? Should terrorists declare the purpose of their acts? What does the phrase “seriously destabilize or destroy the fundamental political, economic or social structures of the country, or create a public emergency or seriously undermine public safety” mean precisely?

Even the assurance in Section 4 raises many questions. The section states: “Provided, That terrorism … 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.”

What does “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” really mean?

And who determines whether a mass action is “intended to cause death or serious physical harm to a person”?

If, for example, an agent-provocateur, embedded by an ultrarightist group to sabotage a peaceful protest in an industrial strike or a student demonstration, throws a molotov bomb at government civil disturbance personnel and injures them, would that be classified as terrorism? Will the peaceful strikers or demonstrators be designated as terrorists or belonging to a terrorist organization because “they endanger a person’s life or create a serious risk to public safety”?

If in a labor strike or moving picket in front of a company office, a confrontation happens between strikers and the company union aided by police and security guards, who determines whether the labor strike creates “a serious risk to public safety”?

Obviously, it is the law enforcers who would determine this first and would proceed to the Anti-Terrorism Council (whose members are all appointed by the president) to authorize the arrest and detention of the alleged “terrorists” and members of terrorist group of persons, organizations, or associations. But what would be the basis of the law enforcers and the ATC in determining if a protest, advocacy, or mass action is terrorism or not when qualifying circumstances of the acts to make them terroristic are very broad and vague? And because such are vague and over-broad, even the doubtful assurance in the proposed law exempting protest, dissent, advocacy and mass action from the definition of terrorism will have a chilling effect on the constitutionally protected freedom of speech or expression.

In implementing the proposed anti-terror bill, if enacted, law enforcement agencies, particularly the police will interpret the law as they enforce it. But what is their track record in implementing laws that directly focus on dissent or opposition to government policies and actions?

Would the safeguards for a detained suspected terrorist be followed? Would there be no torture or other forms of intimidation done on the detainees? Or would law enforcers invoke, as they always do, the principle of “regularity in the performance of official acts” and get off scot-free from charges of torture and abuse of power?

Can a designated or suspected terrorist or members of terrorist groups be arrested without warrant of arrest? Under Sections 25 and 29 of the proposed anti-terror law, the answer is yes. It is the Anti-Terrorism Council (ATC) that is given the power to authorize law enforcement personnel to arrest and detain designated or suspected terrorists or members of a terrorist group, without judicial warrant. These sections are glaringly unconstitutional. They violate Sec. 2, Article III, Bill of Rights of the 1987 Constitution.

Section 25 states: “The ATC 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 defined and penalized” as terroristic acts.

Section 29 entitled “Detention without Judicial Warrant of Arrest” states that “…any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC, has taken custody of a person suspected”of being a terrorist or member of a terrorist organization must deliver the suspected person or persons to the proper judicial authority.

Taken together, these sections 25 and 29 grant power to the ATC to authorize the law enforcement personnel to arrest and detain designated or suspected terrorist or members of terrorist groups, without judicial warrant.

Section 2, Article III of the 1987 Constitution, on the other hand states that “no search warrant of warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the PERSONS or things to be seized.” Therefore, only the judiciary, through a judge, and not through any other body, has exclusive authority to issue warrants of seizure and arrest.

For sure, Section 5, Rule 113 Court on warrantless arrest are based on grounds radically different from the arrest and detention under the proposed law. They are irrelevant and cannot be invoked to justify the ATC’s power of arrest and detention without judicial warrant.

There are other provisions in the proposed law that deserve closer scrutiny. For lack of space, I shall tackle them in future columns. Serious focus must be made on the enormous tasks to combat terrorism placed upon the shoulder of the ATC which is composed of high-ranking officials with full time responsibilities, and on the fact that they are political appointees. Will it not be better to have a more independent permanent body, not politically connected, and composed of individuals who will be full-time on the job coming from the ranks of the judiciary, academe, religious, and youth, and even from the ranks of retired police and military personnel.

Amid all doubts, I find it reassuring that the proposed anti-terrorism bill would yet undergo legal scrutiny before President Duterte acts on it.

“Dadaan pa rin yan sa isang final review para titingnan kung may probisyon na labag sa Saligang Batas bago po pirmahan ng Presidente (It will undergo a final review to see if there are provisions that violate the Constitution before it is signed by the President),” Presidential Spokesperson Harry Roque said in a press briefing on June 4.

I sincerely hope and pray that the President will really think hard and have it in his heart and mind to send the proposed law back to Congress for refinements in substance and style.