Anti-terrorism bill sorely needs rewriting

As a criminal statute, the AntiTerrorism Act bill awaiting President Duterte’s action ought to be clearly and precisely written so that “it can give adequate guidance to those concerned,” but it is “hard to understand.” Moreover, the bill heightens international concerns about “the blurring of important distinctions between criticism, criminality and terrorism.” Hence, it must be thoroughly reviewed and rewritten.

These views came from two authoritative voices, just two days apart this week – first, from a retired Supreme Court magistrate, then by the United Nations high commissioner on human rights. And President Duterte is best advised to seriously consider them.

On June 28, retired Supreme Court Associate Justice Vicente V. Mendoza, a highly respected constitutionalist and due process advocate, expounded on why the ATB fails on the criteria of clarity and precision. In a written commentary in another newspaper, he focused on Section 4 of the bill, which enumerates the five acts for which an individual or group shall be deemed guilty of committing terrorism and penalized with life imprisonment without the benefit of parole.

“Section 4 is the heart of the proposed law,” Mendoza pointed out. “It must state what terrorism is and who are guilty of it in clear and precise terms,” he wrote. He asked what the folllowing phrases (already described by many critics as “ambiguous and overbroad”) precisely meant: “serious bodily injury,” “extensive damage or destruction,” “extensive interference,” “seriously undermine public safety,” and “seriously destabilize or destroy the fundamental political, economic, or social structure.”

Delivering his coup de grace, Mendoza wrote: “A statute whose terms are so vague that persons of common understanding must necessarily guess at its meaning or differ as to its application offends due process (emphasis mine).” Likewise offending due process, he added, is a statute that “sweeps unnecessarily broadly both prohibited and protected conduct,” citing the conflicting provisions of the bill’s Section 3 and Section 48 regarding “extraordinary rendition.” (He refers to a practice devised by the US spy agency CIA of transferring a suspected terrorist or supporter to a foreign country for detention and interrogation.)

On June 30, a comprehensive written report on the human rights situation in the Philippines was formally presented by the UN High Commissioner for Human Rights, Michele Bachelet, to the 44th session of the UN Human Rights Council in Geneva. In her brief opening statement, she correlated the ATA bill’s passage to heightening concerns about the blurring of the distinctions between criticism, criminality and terrorism.

Because the proposed law “could have a further chilling effect on human rights and humanitarian work” and would hinder support to vulnerable and marginalized communities, Bachelet told the UNHRC she would urge President Duterte to do two things:

First, refrain from signing the bill into law;

Second, initiate a broad-based consultation process towards drafting legislation “that can effectively prevent and counter violent extremism – but which contains some safeguards to prevent its misuse against people engaged in peaceful criticism and advocacy.” “My Office is ready to assist in such a review,” she said.

Note that Bachelet was duly careful in using the term “violent extremism” instead of “terrorism” since there is as yet no officially internationally accepted or approved definition of terrorism.

The UN human rights chief called on the UNHRC to “remain active and vigilant on the situation in the Philippines” by mandating her office to continue [its] monitoring and reporting, and through support for technical cooperation to implement her report’s recommendations.

Describing the findings of her report as “very serious,” saying laws and policies to counter national security threats have been crafted and implemented “result[ing] in thousands of killings, arbitrary detentions and the vilification of those who challenge these severe human rights violations.” Specifically, Bachelet lamented that “human rights defenders are routinely smeared as terrorists, enemies of the state, and even viruses akin to COVID-19.”

Meantime, recently retired SC Senior Associate Justice Antonio T. Carpio has continued to pursue his main criticism on the ATB – its Section 29, which extends detention without judicial arrest warrant, and without judicial charge, to a total of 24 days. He called this section as the provision that “strikes the deadliest blow on fundamental constitutional rights.”

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