Amid promised oversight of anti-terror law, how has the Senate probed past abuses?

Bella Perez-Rubio - Philstar.com
Amid promised oversight of anti-terror law, how has the Senate probed past abuses?
The Senate Committee on Public Order and Dangerous Drugs, chaired by Sen. Ronald “Bato” dela Rosa, conducts a public hearing on August 27, 2019 on the series of shooting incidents in Negros Oriental. Police officials who attended the hearing gave an update on their investigation on the string of shooting incidents which killed at least 21 persons – 17 civilians and four policemen in just 10 days, from July 18 to July 28, 2019. Killings continued in August, claiming at least four more lives. Also in photo is Sen Panfilo Lacson.
PRIB Photo by Cesar Tomambo

MANILA, Philippines — Senators have repeatedly promised that they would be quick to act if the widely opposed and reviled Anti-Terrorism Act of 2020 leads to the abuses that its critics fear.

Senate President Vicente Sotto III, a main proponent of the law, has even said that Congress could repeal the measure if authorities abuse it. For this to happen, a bill scrapping the Anti-Terrorism Act would need to hurdle Congress and garner the president's signature. 

In a statement on June 14, Sen. Panfilo Lacson, a principal author of the anti-terror law and its sponsor at the Senate, said he would not hesitate to take to the streets along with protestors if the measure is abused.

He also vowed to "closely monitor and call out potential abuses."

"I assure them that I will be the first to stand on the Senate floor and call out those responsible for abuse at the top of my voice in privilege speeches and Senate inquiries, if and when it comes to that," Lacson said.

Few hearings held on past allegations of abuse

Those promises aside, however, the Senate has called few inquiries into alleged rights abuses by the police and the military.

Only seven resolutions seeking to investigate supposed abuses carried out by security forces have been filed at the Senate during the 18th Congress. Of these, only three have led to hearings:

  • Senate Resolution No. 47: Spate of killings that devastated the Island of Negros
  • Senate Resolution No. 460: Shooting of four soldiers of the Armed Forces of the Philippines (AFP) in Sulu
  • Senate Resolution No. 559: Red-tagging/red-baiting of certain celebrities, personalities, institutions, and organizations

Only one committee report — on the killings in Negros — has been filed, in which panels urged the police Internal Affairs Service to "investigate complaints and gather evidence for possible filing of administrative and criminal liabilities against police personnel and units involved in Oplan Sauron who may have committed abuses or violations of laws and/or the Revised Operational Procedures." 

Senators also called for police protection for people that an anti-communist group Kawsa Guihulnganon Batok Komunista (Kagubak) had allegedly accused of being rebels. Of the people on the supposed list, five later ended up dead.

Police Gen. Debold Sinas, who was regional police chief at the time of the killings, has since been promoted to Philippine National Police chief. Police also said there was no evidence that Kagubak exists. 

RELATED: Dela Rosa, Hontiveros want probe into anti-communist group in Negros Oriental

The hearing on red-tagging, convened by Lacson, was meant to "exercise the Senate's oversight authority over the defense sector on the issue of red-tagging/red-baiting," and to clarify the slew of accusations hurled at celebrities, local officials and a women's group.

Instead, military officials took the opportunity to baselessly accuse national artists, an artists' group and a former lawmaker of being communist rebels or of being recruiters for the New People's Army. Members of the Makabayan bloc of activist party-lists at the House of Representatives did not attend the hearing but sent a lawyer to read their statement on the allegations.

"That the Senate investigated the issue of ‘missing minors’ where accusations without evidence were presented and resulted in trumped-up cases against the representative and other members of the Makabayan—which has been junked the by Department of Justice due to lack of basis—should not happen again," the lawmakers said then.

A second hearing on November 24 saw members of the Makabayan bloc and other activist groups proclaim under oath that they are not connected to the CPP-NPA nor are they recruiting for the rebels.

Despite that, activists at the hearing said that the insurgency is fueled by valid issues. "We may not agree with their program, we may not agree with the way they are pushing their agenda but our attitude towards them is we engage because we recognize that their struggles are rooted in legitimate issues and grievances of our people," Bagong Alyansang Makabayan spokesperson Teddy Casiño, a former Bayan Muna party-list representative, said then.

READ:  'Mother of red-tagging': No process yet to remove names from terror list | Ramped-up red-tagging a prelude to crackdown under anti-terror law, Casiño warns

Hearings on extrajudicial killings

In the 17th Congress, at least 20 resolutions were filed urging probes into potential rights violations committed by state forces although there were few hearings held. According to the Senate's Legislative Information System, only one committee report came of those inquiries. 

The upper chamber took up Senate Resolution No. 9 or the "extrajudicial killings and summary executions of suspected criminals" although it also looked into related issues raised by other senators. The hearings led to the release of Committee Report No. 18, which also cited PSR No. 126, filed by Sen. Grace Poe.

Members of the Senate minority disagreed with the findings of the report,— which concluded: "there is no proof that there is state-sponsored policy to commit killings to eradicate illegal drugs in the country" and that "there is no sufficient evidence to prove that a Davao Death Squad (DDS) exists" — with Sens. de Lima and Francis Pangilinan filing their own dissenting reports.

In 2017, members of the Senate majority filed a resolution seeking an inquiry into the death of 17-year-old Kian delos Santos, which has since been ruled a murder, during a law enforcement operation by the Caloocan City police.

Lacson cited the Senate's probes in his June statement defending the anti-terror law to reassure the public that abuses will not be tolerated.

"Regarding the abuses, we've seen them, we've investigated them. The cops responsible for the murder of Kian delos Santos were convicted, largely because of our Senate inquiries. We need a tough anti-terror law but with tougher safeguards to fight and defeat both," he said.

Based on figures released by the state, 5,900 have been killed in anti-drug operations — supposedly for violently resisting arrest. A Department of Justice review of these cases is already underway and will be sent to the United Nations Human Rights Council.

Rights groups estimate that some 30,000 have died due to the Duterte administration's campaign against illegal drugs.

READ: Senate EJK report: Leila claims whitewash, files dissent

The Senate's oversight powers

"The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure," Article VI, Section 21 of the Constitution reads.

Sen. De Lima, in an online exchange with Philstar.com coursed through her officealso pointed out that the Supreme Court, in Neri v. Senate, said that the power to investigate is "incidental" to the legislative function of Congress.

Although the Supreme Court ruled in that case that some information asked at Senate hearings may be covered by executive privilege, then Associate Justice Minita Chico-Nazario wrote in her concurring opinion that "the fundamental power of the Senate...is to make laws, and within this sphere, it is supreme. Hence, this Court had long before upheld the power of inquiry of the Legislature in aid of legislation." 

"[T]he power of inquiry with process to enforce it-is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change," she also wrote.

Although Congress has the power to exercise oversight, it must also work on pending legislation and priority bills. Congress also focuses on the General Appropriations bill in the latter half of the year to keep the government from running on a reenacted budget in the following year. 

Since congressional hearings are held in aid of legislation, the committee reports generally only make recommendations and criminal and administrative complaints have to be filed by the government agencies involved.

Government agencies like the National Bureau of Investigation may also use the congressional inquiries, as in the case of the Senate hearings into bribery at the Bureau of Immigration.

RELATED: 86 Immigration personnel tagged in NBI's 2nd 'pastillas' scheme complaint

Lack of lawyers, time clip Senate oversight

Between them, Sens. De Lima and Risa Hontiveros filed 21 of the 29 resolutions calling for investigations of alleged abuse by security forces. Philstar.com reached out to them to get their perspectives on why the Senate seems to have exercised its oversight function on the security forces sparingly.

"Once a bill or resolution is filed and assigned a number, it is referred to a committee...Thereafter, it is up to the chairperson primarily, and the membership of the committee to decide the fate of each bill or resolution, whether or not to hear it or to set it aside," De Lima said.

This was echoed by Jaye Bekema, a lawyer serving as Hontiveros' chief legislative officer, who added that committee chairpersons are not required to explain their decision-making process on setting hearings.

"For the present Congress, Sen. [Richard] Gordon is the chair of the Committee on Justice and Human Rights. I understand he is doing his best to accommodate all requests for investigation," De Lima, whom Gordon replaced at the justice panel after she was ousted as its chairperson, said.

"But as both the chair of the Justice Committee and the Blue Ribbon Committee, he may not have...enough time to cover [every]thing. These committees need to be presided by lawyers, and there are simply not enough senior lawyers in the Senate to share his burden," De Lima added.

Philstar.com also sought comment from Gordon but received no response from him or his office. The questions were sent to Gordon while the Philippine Red Cross, of which he is also chairman, was dealing with typhoon relief as well as continued COVID-19 testing by the humanitarian organization.

Hontiveros and De Lima both noted that there are other mechanisms to check alleged abuse by security forces apart from the Senate. 

De Lima raises 'Duterte factor'

According to De Lima, the Duterte administration may also be impeding efforts to keep state forces in check.

"The present administration is very protective of our uniformed services. And thus, they are making it difficult for any agency to conduct thorough and independent investigations, many times to the detriment of the victims of abuses by their erring members," she said.

The president has frequently said that he will pardon security forces facing cases in relation to their work.

“Sino paniwalaan ko? (Who will you believe?) Yung witnesses na mga preso o mga pulis ko? Oh, 'di yung pulis ko. Now they have been charged with murder. I will support them. Walang problema. Lahat every military and policeman who will do his job,” he said in March 2017 after a Leyte town mayor suspected of drug links was shot by police while in government custody.

The Palace has maintained, however, that security forces are bound to uphold human rights and that abuses will be investigated. It stressed in June in response to a report by the Office of the United Nations High Commissioner for Human Rights that "the government will continue to respect its international legal obligations, including human rights."

De Lima, who has been detained for more than three years on drug-related cases that she says are politically motivated, added that it "does not help that the independence of Congress is somewhat compromised by the subservience of many of our colleagues to the president."

RELATED: AMLC, PDEA officials confirm no evidence implicating De Lima in illegal drug trade — lawyer | Drug lord admits he never met De Lima or financed her senatorial campaign — lawyer

"The only way for us to protect the people from abuses is to elect independent-minded members of Congress to ensure the checks and balance envisioned by the framers of our Constitution," she said.

'Safeguards' in the anti-terror law

In addition to their promises to curtail abuses under the anti-terror law, Sotto and Lacson have argued that the controversial measure is full of safeguards — largely blaming misinformation for widespread opposition to it.

Lacson has also argued that the law is far less severe than its counterparts in the region and that it remains protective of the human rights enshrined in the 1987 Constitution.

“We followed the Bill of Rights, Article III, Section 4 of the Constitution, and not only that – we defined terrorism, qualified that its intent and purpose is clear. It also stated in the definition that advocacy, protest, dissent, stoppage of work, mass action or other similar exercises of civil and political rights are not included,” he told radio station dzBB in June.

He has also repeatedly defended the provision allowing the detention of terror suspects for up to 24 days, saying that the “legislative intent” behind the provision is premised on valid warrantless arrests under Rule 113 Section 5 of the Revised Rules of Criminal Procedure.

Under these rules, a warrantless arrest may be done if a person has committed, is committing, or is attempting to commit an offense; if a crime has just been committed; or if the person is an escaped prisoner. Critics of the law have rejected this defense from Lacson and the provision on warrantless arrest is one of the most widely assailed by the petitions filed at the Supreme Court.

The senator added that this much-assailed provision was an amendment proposed by Senate Minority Leader Franklin Drilon, who is a lawyer and a former justice secretary. Drilon, the only member of the opposition to vote in favor of the anti-terror law, in July said he included "14 amendments all designed to balance and protect the rights of the people."

Supreme Court flooded with petitions

These assurances, however, have done little to dissuade the law's critics from flocking to the high court, asking it to strike down either the entire law for being unconstitutional or to strike down specific provisions.

There are currently 37 petitions challenging the law at the SC, with a preliminary conference scheduled on November 26 and oral arguments on January 2021.

Petitioners flagged issues such as the vagueness of the definition of terrorism in the bill, which they said gives state authorities "unbridled discretion" to interpret its provisions and curtails lawyers ability to defend those who may be arrested or prosecuted as the Anti-Terrorism Council (ATC) can designate a person or organization as terrorists, “not by the law itself."

Bangsamoro leaders in their petitions also warned that their communities, which are the hardest hit by terrorism, are also the most vulnerable under the anti-terror law.

Meanwhile, law professors have said that the vagueness and overbreadth of the definition of terrorism in the new measure is sure to interfere with academic freedom.

With the law already enacted and oral arguments slated for the next year, the public may have to rely on other ways to check security forces, including the oversight powers of Congress.

As it stands, two Aetas have been detained on a non-bailable charge due to their supposed violation of the contested law, according to the National Union of Peoples’ Lawyers. They will likely spend the holiday season in detention.

— with reports from Kristine Joy Patag and The STAR

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