Acceptable and contentious facets of Anti-Terrorism Law

THE CORNER ORACLE - Andrew J. Masigan (The Philippine Star) - July 22, 2020 - 12:00am

Despite ten petitions for a temporary restraining order (TRO) on the newly signed Anti-Terrorism Law, the Supreme Court ruled not to grant the request. This opened the way for the full implementation of the law beginning midnight of July 19. I salute the group of La Sallians including Atty. Howie Calleja, Alvi Siongco and Br. Armin Luistro for being the first to file for a TRO. It was a valiant effort and a responsible exercise of civil rights.

Is the new Anti-Terrorism Law as bad as it is portrayed to be? Let’s put it this way – the country needs a new law that deals with modern terrorism. Before the Anti-Terrorism Act of 2020 was signed into law, the Human Security Act of 2007 provided the legal parameters on all matters relating to terrorism. This law is out of date. Terrorism has evolved in complexity and sophistication since then. We need a new law that better defines terrorism with punitive sanctions that are more appropriate for the times.

Much has been said about how the new law oversteps human rights and defies certain provisions of the Constitution. While this is true, I prefer to be a pragmatic and not overly legalistic about it. There are acceptable and contentious facets about the law.

I do not see a problem with the warrantless detention of 14 days, extendable by ten. I understand that it sometimes takes weeks to gather evidence to build a viable case. It is safer to keep suspected terrorists in custody rather than roaming the streets. Besides, when compared to the anti-terror laws of our ASEAN neighbors, our detention period is mild.

As for the law allowing law enforcers to wiretap without clearance from the courts, I am fully aware that this railroads our rights to privacy under the Bill of Rights. But let’s be practical. Law enforcers need the privilege of warrantless wiretapping if it is to intercept terrorist acts before they occur. Timing and secrecy are of the essence in anti-terrorist operations and having to obtain court clearances before wiretapping negates that. Wiretapping should be a tool in our law enforcers’ arsenal.

What is contentious about the new law, however, is the definition of terrorism. In the 2007 version of the law, terrorism is specifically defined as acts of piracy, rebellion, coups d’ etat, murder, kidnapping, destruction of property, arson, hijacking, use of illegal firearms or nuclear weaponry – either to cause fear or panic, with the intention to coerce government to give-in to an unlawful demand.

The 2020 version is worded this way: If an act, by its nature and context is intended to intimidate the general public, create an atmosphere or spread fear, to provoke the government or influence it by intimidation, or to destabilize the fundamental economic, political, social structure of the country or create a public emergency – these acts are considered terrorism.

What’s the difference? In the 2007 law, one must have actually carried-out a terrorist act to be considered a terrorist. In the 2020 version, having mere intention is enough to be identified as an extremist or radical.

So who determines a person’s intent ? This is where it gets more contentious…. According to the new law, this power is bestowed upon the Anti-Terrorism Council (ATC).

And who makes up the ATC? The law specifies that the Executive Secretary shall act as its chairman. The vice-chair shall be the National Security Adviser. Other members of the council include the secretaries of Foreign Affairs, National Defense, DILG, Finance, Information and Communication Technology as well as the executive director of the Anti-Money Laundering Council.

The composition of the ATC is prickly because all its members belong to the executive branch. This makes Malacañang the judge and jury as to who is labelled a terrorist. It gives the Palace the power to arrest anyone it deems a threat.

Further, the law empowers the military to arrest and detain a suspected terrorist. This too raises red flags as law enforcement is not a mandate of the military, but the police. The military’s purpose is national defense, humanitarian missions. The ability to invoke the armed forces gives the ATC the full fire power of the state.

The absolute power bestowed upon Malacañang and its ability to use the armed forces gives it the wherewithal to quell all voices of dissent. It gives a chilling effect to anyone who wishes to voice out his/her grudges against the government. This provision brings us back to the martial law days where the President had the power to arrest anyone on the back of a Presidential Commitment Order (PCO) and/or an Arrest and Siege Order (ASO). The PCO and ASO were so oppressive that both were outlawed by the 1987 Constitution. The Anti-Terrorism law of 2020, in effect, revived it.

Those that support the new law argue that there are ample safeguards against abuse by the ATC. First, the law mandates the Commission on Human Rights to ensure that the rights of suspected terrorists are not violated. Second, it specifies that arresting agents must declare, to the nearest court, that an arrest has been carried out.

These provisions are also contained in the 2007 version of the law. It offers no extra protection to potential human rights victims than it did before.

The new law also specifies that, “terrorism, as defined in this bill, shall not include advocacies, protests, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights.”

This provision is intended to safeguard the people’s rights of free speech and expression. It allows civil society to freely express its dissent, but only if borne out of an advocacy and/or non-violent means.

Although it is good that the abovementioned exception is specified, it does not change the fact that it is still up to the ATC to determine intent. In other words, if the ATC would like to arrest a protester, regardless of whether his actions are borne out of advocacy, it can do so.

While the new Anti Terrorism Law is necessary, it gives absolute power to the Executive branch. This is its main flaw. If you think this is unfair, blame your representatives in Congress and the Senate for ratifying it.

The law is now in effect. The only remedy is to repeal or amend it. Realistically, this can only happen after 2022. The risk, however, is that the next president will surely want to keep the power and block all efforts to recant it.

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