Why the Anti-Terrorism Act is a mistake

Last week, the Senate’s version of the Anti-Terrorism Act of 2020 was approved by the House of Representatives. President Duterte is expected to sign the bill into law any day now.

Meanwhile, civil rights groups, legal associations, netizens and concerned citizens continue to be up in arms saying that the Anti-Terror Law violates our human rights and undermines basic democratic principles. Further, many expressed concern that Malacañang’s haste to pass the bill left no room for the proper deliberation of its many contentious provisions.

While I have serious reservations about the law, I also acknowledge the need to pass new anti-terrorism legislation. See, the legal parameters that govern terrorism in the Philippines is still the Human Security Act of 2007. This law is out of date and too constrained to be effective. Terrorism has evolved so much since 2007 both in manner and in sophistication. We need a new law that better defines terrorism today. We need punitive sanctions that are more appropriate for the times.

I must admit that the Anti-Terrorism Act of 2020 defines terrorism more accurately. Under Section 4 of the law, terrorism is defined as an act committed by a person, within or out of the Philippines, that engages in: a) acts that cause death or bodily injury to a person’s life; b) acts intended to cause extensive damage or destruction to government property, a public facility, a public place or private property; c) acts intended to cause extensive interference or destruction to infrastructure; d) the development, manufacture, processing, acquisition, transport, supply and use of weapons, explosives or of biological, radiological or chemical weaponry.

The abovementioned definition of terrorism is fine. It is item “e” that is contentious. For clarity, I am writing in bold the phrase that is problematic:

e) Release of dangerous substances, or causing fire, floods or explosions when the purpose of such act is to intimidate the public or a segment thereof. Create an atmosphere of fear or spread a message of fear, to provoke or influence the government by intimidation. Destroy the fundamental political, economic or social structures of the country. Create a public emergency or seriously undermine public safety.

Those who commit these acts shall suffer the penalty of life imprisonment without the benefit of parole.

The highlighted provisions is contentious for two reasons. First, it broadens the definition of terrorism not only to acts that affect human lives and property but also to acts that affect the government. The latter should not be included because people should always have the right to air their grievances against the powers that be.

Posting red flags too are the words “provocation” and “intimidation”. These are subjective words, which can vacillate in severity depending on who is deliberating the case.

The bill calls for the creation of an Anti-Terror Council which shall fall under the purview of the executive branch (Malacañang). It is the Anti-Terror Council that decides which acts are acts of terrorism and which are not.

In other words, the executive branch, through the Anti-Terror Council, becomes judge and jury as to who is considered a terrorist. It is self-serving and takes away the people’s right to due process in a court of law.

Granted, the bill also states, and I quote, “acts borne out of an advocacy, protest, dissent, stoppage of work which are not meant to cause bodily harm or risk to public property shall not be construed as terrorist acts.” Still, the power lies solely on the Anti-Terror Council as to who is deemed a terrorist and who is deemed an advocate.

Decisions of the Anti-Terror Council will always be fraught with doubt since it is not an independent body but one under the office of the President. Naturally, it will always decide according to the wishes of the Chief Executive.

Hence, if a concerned citizen expresses his/her dissatisfaction toward government in any way, the Anti-Terror Council will have the power to brand that person a terrorist and subject him/her to the full wrath of the law. It means a simple tweet or Facebook post by someone who expresses dissatisfaction or dissent can effectively be deemed a terrorist. It all depends on how the Office of the President feels about that person.

The law also allows the police and military to conduct a 60-day surveillance on “suspected terrorists” and the right to compel telcos to disclose their calls and messages. This goes smack against the Data Privacy Act of 2012.

The mechanisms of the Anti-Terrorism Act of 2020 effectively gags civil society and oppresses free speech and freedom of expression. It gives government the legal basis to criminalize anyone who opposes or resists it. Conversely, it emboldens government to commit human right violations with greater impunity.

Exacerbating matters is that law enforcement agents are allowed to arrest and detain a suspect, without a warrant, for as long as 14 days, extendable by another 10 days, without charges. It does away with obtaining a Warrant of Arrest from a judge. Again, this railroads the rights of the “suspects” and bestows all the power to the government.

As for the 24-day detention without a warrant, it is in conflict with Article 11, Sec. 18 of the Constitution which prohibits the detention of citizens without charges for more than three days. A 24-day detention is an extremely harsh “punishment” for a mere “suspect.”

Moreover, the bill removes government’s liability toward those it illegally detains. In the old law (the Human Security Act of 2007), government must recompense those wrongfully detained by P500,000 a day. In the new law, government need not recompense those whose rights it had violated. It suffers nothing for its mistakes, whether these “mistakes” were intentional or not.

Duterte’s national security adviser Hermogenes Esperon Jr. said that “the bill provides for measures that will preclude or minimize abuses in implementing the law.”

Esperon can only speak for the present administration, not those that will come after it. What if the next President is more vengeful, more paranoid and more draconian than President Duterte? Can Esperon assure us that this law will not be abused? He cannot. This is why this law is dangerous. This is why it is a mistake.

Again, I recognize the need for a more comprehensive Anti-Terrorism Law. However, to use this law to suppress critics is both opportunistic and reckless. Future generations of Filipinos will curse all those who voted for this law. It will forever be a red mark on Duterte’s memory.