SC: CA order needed for surveillance of suspected terrorists

MANILA, Philippines — An order from the Court of Appeals (CA) must be secured first before law enforcers can conduct surveillance activities such as wiretapping, intercepting and recording private conversations of suspected terrorist groups or individuals, according to the Supreme Court (SC).

In the set of procedural rules on the Anti-Terrorism Act (ATA) issued by the SC, law enforcers, through a written order from the CA, may compel service providers to produce all customer information and identification records and call and text data records, content and other cellular or internet metadata of suspected terrorists.

A surveillance order, according to the SC, may be issued if there is probable cause to believe that a suspected terrorist group or individual committed or about to commit terrorism acts and that the evidence that will be obtained will be essential to the conviction of any charged or suspected person.

Surveillance orders can be effective for as long as 60 calendar days and can be extended to 30 more days if a motion for extension has been filed.

Law enforcers will then have 30 days after the termination of the surveillance period to file appropriate charges for any violation of the Anti-Terror law.

They are also required to report to the CA whether a case has been filed or to explain if no case has been filed.

All records of the evidence, including tapes, discs and recordings collected, shall then be deposited to the CA, accompanied by a joint affidavit.

Records will be considered as classified information and will remain so if no case has been filed against the suspected individual.

The justice secretary, however, may file a motion to use the records to be disclosed or used as evidence in a case.

Any intercepted and recorded communication obtained in violation of the Anti-Terror law, or any provision of the SC rules, will be “inadmissible and cannot be used as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry or proceeding,” the SC said.

Under the rules, the Anti-Terrorism Council (ATC) may, in its application for a surveillance order, ask for the issuance of a data preservation order to compel any service provider to preserve all existing data pertaining to subscriber information, traffic data and communication content data of any person or entity subject of the surveillance.

Arrest, detention

Suspected members of terrorist groups and individuals who are arrested without judicial warrants cannot be detained for more than 36 hours from the time of arrest without written authority from the ATC.

Meanwhile, law enforcers may request from the ATC to extend the detention to up to 14 days. Before the lapse of the extension, however, the ATC, through the Department of Justice (DOJ), should file before the regional trial court (RTC) a motion for extension of detention of the suspected terrorist to not more than 10 days.

The motion should contain the justification for the continued detention of a suspect. If the RTC finds no evidence for further detention, the detained suspected terrorist should be released immediately.

Those arrested shall be informed of their constitutional rights and custodial rights. The use of torture and other cruel, inhumane and degrading treatment or punishment during investigation or interrogation is prohibited.

Proscription

Under the rules issued by the SC, the CA may issue an order of proscription, upon a petition by the DOJ, declaring as outlawed terrorist any group of persons, organization or association that commits any of the acts defined and penalized under Sections 4 to 12 of the ATA, or that is organized to engage in terrorism.

The CA may, within 72 hours from the filing of the petition, issue ex parte a Preliminary Order of Proscription if the petitioner is able to prove that such is necessary to prevent the commission of terrorism.

The preliminary order of proscription empowers the Anti-Money Laundering Council (AMLC) to investigate, inquire and examine the bank deposits of the respondent/s and freeze their assets and properties.

The CA shall then conduct continuous summary hearings and decide the petition within three months, counted from the time it is submitted for resolution.

Upon the petitioner’s establishment of clear and convincing evidence, the CA shall issue a Permanent Order of Proscription, which will be effective for three years from the date of its publication.

Members of organizations and individuals suspected of being terrorists can file before the CA their petition against their designation as “terrorists” and the freeze order on their assets issued by AMLC.

“The permanent order of proscription shall automatically lapse upon the expiration of the three-year period provided that there is no order extending or continuing the proscription,” the rules stated.

The rules also provide reliefs for vulnerable groups composed of the elderly, pregnant, persons with disability, women and children.

Arrested persons belonging to vulnerable groups should be detained in a separate facility that is more appropriate to his or her condition, and that the spouses, parents or legal guardians should be informed of the detention.

Also, the rules provide that in cases where persons arrested belong to vulnerable groups and cannot safeguard their interest, the court should appoint a guardian to protect their legal rights.

Hold order

To prevent a suspected terrorist from leaving the country, the SC said the investigating prosecutor may file a verified application for a precautionary hold departure order (PHDO) with any designated RTC within whose territorial jurisdiction the alleged crime was committed.

The investigating prosecutor must prove probable cause that the suspected person has committed terrorism acts and has a high probability that he or she will depart the country to evade arrest and prosecution.

Meanwhile, the suspected person may ask the court to lift the PHDO on the grounds that no probable cause exists that he or she is suspected of or is committing terrorism activities and that he or she is not a flight risk.

Classified evidence

In cases where those belonging to the most vulnerable groups composed of the elderly, pregnant women, persons with disability, women and children are unable to safeguard their interests, the SC said the court shall appoint a guardian ad litem to protect their rights.

The rules issued by the SC provide that it shall not diminish the substantive rights of the parties provided under all existing laws and international treaties, conventions and agreements.

Parties can likewise avail themselves of other existing remedies, such as the writs of habeas corpus, amparo and habeas data, and appeals to the SC when appropriate.

Any violation of any provision of the rules or any duly-issued court order shall be a ground for contempt under Rule 71 of the Rules of Court.

The rules on the Anti-Terror law were adopted by the SC through the help of an ad hoc committee for the Formulation of the Special Rules of Procedure on Anti-Terrorism Cases. The committee was chaired by retired chief justice Reynato Puno.

Members of the committee were representatives of the SC, DOJ, CA, RTC, Philippine Judicial Academy, Bangko Sentral ng Pilipinas, AMLC and the Commission on Human Rights.

The rules will take effect on Jan. 15, according to the SC.

On April 26, 2022 in Baguio City, the SC declared final its Dec. 7, 2021 decision that ruled as constitutional almost all the provisions of the Anti-Terror law.