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How will the SC rule on the anti-terror law?

AT GROUND LEVEL - Satur C. Ocampo (The Philippine Star) - May 15, 2021 - 12:00am

Last Wednesday the Supreme Court wound down the oral arguments, which began in February, on the 37 petitions opposing the Anti-Terrorism Act of 2020 for being unconstitutional. It failed to act on the petitioners’ repeated appeals to temporarily restrain the implementation of the controversial law.

The urgent need for a restraining order was, in fact, highlighted by the tribunal’s concerns expressed over the unusual, to say the least, functions and authority the new law grants the Anti-Terrorism Council, the ATA’s implementing arm. (The ATA has amended the first anti-terrorism law, titled the Human Security Act of 2007.)

One justice has described the ATC as an “administrative body that performs a judicial function.” “Very dangerous” is what a senior magistrate calls the council’s authority to prolong up to 24 days the detention of individuals arrested without a court-issued warrant.

Topping these concerns – along with the vague legal terms denoting specific actions that would be deemed as terrorist acts, as pointed out by another justice – is the ATC’s authority to arbitrarily designate organizations, groups and individuals as “terrorists.” Chief Justice Alexander Gesmundo has warned that such authority runs smack against the Constitution’s guarantee: “No person shall be deprived of life, liberty or property without due process of law.”

On Thursday, the ATC made public its resolution, dated April 21, 2021, designating as “terrorists” 19 individuals whom it claims are members of the Communist Party of the Philipppines central committee. Citing “verified and validated information” without presenting proof, it accused the 19 of “planning, preparing, facilitating, conspiring and inciting the commission of terrorism and recruitment to and membership in a terrorist organization.”

Such designation, the ATC said, “is an effective means to eliminate, prevent or suppress the financing of terrorist acts; provision of support to entities and persons involved in terrorist acts; supply of weapons to terrorists; recruitment of members of terrorist groups and movement of terrorists.”

However, the ATC has conceded that the CPP, with the New People’s Army, has been trying to overthrow the elected government by consolidating political power through armed struggle (ongoing for over 50 years now). Normally, the long-running armed conflict comes under the rubric of rebellion and ought to be dealt with under the Revised Penal Code – not under an anti-terror law.

An alternative resolution to the armed conflict has been tried: peace negotiations, first in 1986-87 under the Corazon Aquino government; it gained traction since 1992, under the Fidel V. Ramos government – which produced 10 bilateral substantive accords and vitally important procedural agreements.

After a long hiatus, an encouraging positive response from President Duterte did move the peace talks forward in 2016. In the space of a few months, a second set of substantive agreements on social and economic reforms were nearly completed during the resumed formal peace negotiations. Sadly, intervention by the military establishment, with which Duterte went along, cut down the heightened expectations on both sides of the negotiating table. Even more disappointed were the various peace advocacy groups and the marginalized sectors of society that stand to benefit most from the aborted agreements.

Back to the ATA: “Because the anti-terror law is presumed constitutional,” Malacañang spokesperson Harry Roque said, the immediate consequence of the ATC resolution is that the Anti-Money Laundering Council can now freeze the assets of the 19 individuals designated as terrorists. “If they have no funds, they won’t be able to continue their terrorist acts,” he added.

Reacting to the ATC move, Jose Ma. Sison, founding chairman of the CPP, who along with his wife Julieta de Lima, is included in the designation, said he and his wife are mainly concerned about those designated as terrorists who are in the country “and many more who are Red-tagged and vulnerable to the criminal violence of the Duterte regime.”

He pointed out that most of those designated by the ATC are “publicly known” political consultants of the NDFP negotiating panel in the GRP-NDFP peace negotiations that President Duterte arbitrarily terminated in 2017. They had been originally included in a list of 600-plus names in a 2018 Department of Justice petition for proscription of the CPP-NPA as a terrorist organization, filed at a Manila regional trial court. After vetting the list, the court removed the 600-plus, retaining only the names of Sison and another individual. That proscription petition has remained in the court’s docket.

The Public Interest Law Center (PILC), which represents in court cases four peace consultants included in the designation list, has found the ATC action a “perturbing development after quiet, insistent efforts to reopen the [peace] talks.” The pro-bono human rights law firm’s clients are Rafael Baylosis, Vicente Ladlad, Rey Claro Casambre and Adalberto Silva.

“The inclusion of peace consultants in the list, obviously, is a direct consequence of their role in the peace talks and a clear disincentive to participate [further],” PILC noted. Although the consultants’ safety and immunity from arrest are guaranteed, under a bilateral agreement (JASIG) not rescinded by Duterte’s arbitrary termination of the talks, “they have been politically persecuted, charged with trumped-up cases in courts, illegally arrested… detained and vilified in public.”

“Designation is a highly contentious provision in the terror law, and particularly for individuals, an immensely suspect mechanism for political persecution,” PILC said. “The ATC’s move to implement a law void and unconstitutional is self-destructive; in the end, the unavailability of remedies, the gross violations of due process and the ambiguity of the law will be brought to fore,” it concluded.

On Monday, the Supreme Court is set to close the oral arguments on the ATA, after it hears the opinions of two invited amici curiae (friends of the court): former Chief Justice Reynato S. Puno and recently retired Associate Justice Francis Jardeleza. Hopefully, what they will say will help the SC come to a truly just ruling on the 37 petitions.

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Email: satur.ocampo@gmail.com

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