Big gap in fleshing out ATB declared state policy

AT GROUND LEVEL - Satur C. Ocampo (The Philippine Star) - June 13, 2020 - 12:00am

“The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military and legal means, duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorist and/or criminal activities. Such measures shall include conflict management and post-conflict peacebuilding, addressing the root causes of conflict by building State capacity and promoting equitable economic development.”

The above quote is from Section 2, titled “Declaration of State Policy,” of the proposed Anti-Terrorism Act of 2020, now submitted to President Duterte for his signing to enact it into law. Section 2 sets out the guideposts for the law to be fleshed out in specific provisions.

However, there’s no provision in the bill on either political measures (“conflict management and post-conflict peacebuilding”) or on economic measures (“building State capacity and promoting equitable economic development”) which should both take into account the root causes of terrorism and address the causes of armed conflict.

The Philippine Ecumenical Peace Platform, composed of conglomerations of churches pushing for the resumption of the GRP-NDFP peace negotiations to end the 50-year-plus armed conflict, has opposed the ATB and urged its veto. Reason: it counters their call for a “broader peace” approach.

A long-time legislative consultant and legal scholar, human rights lawyer and peace advocate, Soliman M. Santos Jr., has also made this observation. He suggested that President Duterte should veto the bill and return it to Congress for further deliberations.

Santos, now the presiding judge of Regional Trial Court-Camarines Sur Branch 61, wrote in an online commentary: “There is… a dearth of (Anti-Terrorism Act) provisions that flesh out its declared policy of a comprehensive approach… except for (legal means) which constitute the meat of the ATA.” This dearth, he added, “warrants the reopening of legislative deliberations in order to address it.”

Not that the main authors of the bill have ignored or set aside the declared state policies altogether. The legal provisions they have written into the legislation – passed by the Senate and the House – seem to adhere to certain declared state policies, such as condemning terrorism as “criminal and dangerous to the national security of the country and to the welfare of the people,” and making it “a crime against the Filipino people, against humanity, and against the law of nations.”

Apparently focused on replacing the Human Security Act of 2007, which they found to be lacking “teeth” but whose safeguards against abuses they say are unacceptably severe, they formulated “stronger”provisions in the ATB. These provisions, however, have raised widespread criticism and condemnation – nationally and internationally including from the United Nations – for their dubious legality and unconstitutionality and proneness to abuse in their implementation.

For one, retired Senior Associate Justice Antonio Carpio described the enrolled bill as a “double whammy”: that it violates provisions of the Bill of Rights. First, the “inviolable… right of the people to be secure in their persons, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose”; second, that “no search warrant or 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…”

In reply to the outcry, inluding the mounting calls for Duterte to veto the bill, Malacañang through the president’s spokesperson Harry Roque meekly said, “The truth is, if it becomes a law, (critics) can still file cases because our judiciary is functioning. If there is a provision that violates the Constitution, it would be declared unconstitutional.”

Now, there’s another passage in the Declaration of State Policy, which might make one wonder why it’s so stated. It says:

“Nothing in this Act shall be interpreted as a curtailment, restriction or discrimination of constitutionally recognized powers of the Executive branch of the government. It is to be understood, however, that the exercise of [these powers] shall not prejudice respect for human rights, which shall be absolute and protected at all times.”

But no one has claimed that the Executive’s powers are being curtailed, restricted or discriminated against: In fact, what alarms the critics is that excessive powers are being handed to the Executive, particularly the powers given to the Anti-Terrorism Council, composed of Cabinet members headed by the Executive Secretary, in determining the persons or organizations that can be designated as “terrorists” and which could order arrests without a warrant issued by the court.

The second sentence in the above-cited passage is also repetitive. A prior declared state policy under Section 2 already states: “In the implementation of the policy, the state shall uphold the basic rights and fundamental liberties of the people enshrined in the Constitution.”

On this repeated assurance of upholding basic rights and liberties, Judge Santos commented that “in the final analysis, only implementation and practices will tell whether such assurance would be upheld.” The general and historical experience in the country, he observed, shows that “the law and its implementation [are] two, sometimes very, different things.”

The difference, he pointed out, may be attributed to the “criminal justice system and its several pillars, most crucially that of law enforcement led by the police.” In this particular bill, law-enforcement agents or military personnel will be the ones implementing it, he said.

Given the experience of the Duterte government’s “war on drugs” – the subject of severe criticisms by the UN Office of the High Commissioner on Human Rights – Santos advised that police reforms be achieved first before the law is passed or implemented. “Let this be our counterpart to the call for police reforms in the US now arising from the killing of George Floyd.”

The tasks assigned by the ATB to both the police and the military in its implementation include the following: surveillance of suspects; interception and recording of communications; filing of written applications with the authorized division of the Court of Appeals; custody of intercepted and recorded communications and joint affidavits for this purpose; written notification of the judge nearest the place of arrest made; informing detained persons of their rights; maintaining official custodial logbooks; and filing cases before the Public Prosecutor’s Office.

All these tasks will require some special training for the implementers, Santos noted, but there is no provision in the ATB for such training. A corresponding training is also needed, he added, for the designated special division of the Court of Appeals and certain RTC branches that would handle ATA cases. “As a rule,” he emphasized, the law’s Implementing Rules and Regulations cannot fill the substantive gaps in the law itself.”

There’s certainly a lot of tough questions that President Duterte must chew on before acting on the bill.

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Email: satur.ocampo@gmail.com

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