6 June 2020
We, the undersigned faculty members of the Department of Political Science of the University of the Philippines Diliman, express our vehement objection to the contents and the nature of the passage of the Anti-Terror Bill.
On 26 February 2020, the Senate passed on third and final reading Senate Bill No 1083 or the Anti-Terror Bill. On 1 June 2020, President Rodrigo Duterte certified the bill as urgent. Two days later, despite opposition from various groups, the House of Representatives approved its version, House Bill No 6875. The bill’s intent is to amend and repeal Republic Act No 9372 or the Human Security Act of 2007 (HSA), which, while the subject of criticisms from human rights groups for possible abuses on the part of enforcers and misuse or usurpation of the term human security at the time it was enacted, was also unwanted by those who had to enforce it because of the safeguards it had against abuse. If anything, the Anti-Terror Bill removes the safeguards present in the HSA and lessens the penalties for abuse of discretion by concerned authorities.
The 1987 Constitution of the Philippines provides that no law shall be enacted depriving any person of his or her life, liberty, and property without due process of law. While we recognize the problem terrorism poses and the need for law enforcers to respond effectively, we are also concerned about how the proposed legislation may affect individual and collective human rights. In particular, we want to direct attention to the following issues.
Ambiguity and Abuse of Authority
Any law that imposes penalties on a convicted person or group must be clear about how it defines an offense. Under the proposed law, what qualifies as an act of “terrorism” has been expanded and can be subject to a variety of interpretations. Ambiguity in the definitions of “terrorist” and the “acts of terrorism” may lead to the abuse of authority, especially when substantive institutional oversight is reduced.
Furthermore, the bill expands the composition of the Anti-Terrorism Council (ATC) to include other heads of executive departments (Section 45, SB 1083 and HB 6875). However, all of the members remain to be alter-egos or appointees of any sitting president. The ATC has also been given the power to designate persons or organizations as terrorists, in addition to those already designated by the United Nations Security Council, for the purposes of surveillance and investigations by the Anti-Money Laundering Council (AMLC). Other than probable cause, the ATC has no set criteria for the designation. This may be subject to arbitrary interpretation and application, especially without the participation of government bodies independent of the Executive, such as the Commission on Human Rights (CHR) (Section 25, SB 1083 and HB 6875).
Safeguards have been reduced. In the Congress-approved bills, the penalties for unauthorized and malicious examination and furnishing false evidence, forged documents, or spurious evidence were reduced (Sections 37 and 43, SB 1083 and HB 6875).
With too much discretion at the disposal of the ATC and reduced penalties for abusive interpretation of the law, there can be violations on the right to due process of an individual. Does this mean that one is guilty until proven otherwise?
Rights of the Accused to be Informed
One of the constitutionally-guaranteed rights of an accused is to be informed of the nature and cause of the accusation against him or her.
Under the proposed law, the arresting officer or the head of the detaining facility is tasked to inform the accused of his or her rights upon arrest (Section 30, SB 1083 and HB 6875) and detention (Section 29, SB 1083 and HB 6875). However, it is being proposed that some of the existing rights in the HSA be removed.
In the HSA, the person under surveillance or the accused has the right to be informed of the acts done by the law enforcement agencies and to challenge the legality of such interference before the court (Section 9, HSA). The accused also has the right to be informed of the termination of the surveillance, interception, and recording should there be no case filed against him or her for any violation of the law (Section 10, HSA). But under the proposed measure, these parts were deleted.
There are also restrictions and limitations to be imposed in accessing records and logs, which may be used by the accused to file cases against those who conducted malicious investigations (Sections 32 and 37, SB 1083 and HB 6875).
The accused may be rendered clueless about what is happening. With limited information, the accused may not be able to respond properly to any accusations lodged against him or her. This may also constitute a violation of the right to due process. The so-called “safeguards” usually do not protect the poor and the powerless.
Surveillance and Detention
In the proposed measure, the period of surveillance is extended from 30 to 60 days. Surveillance includes tracking down, following, or investigating individuals or organizations; or the wiretapping, listening, intercepting, screening, reading, and recording of messages, conversations, discussions, spoken or written words, including computer and network surveillance, and other communications of individuals charged with or suspected to be engaged in terrorism (Section 16, SB 1083 and HB 6875). While judicial authorization is required before the conduct of surveillance, the mechanisms and equipment used to conduct the above-specified acts remain within the control and jurisdiction of military intelligence units and personnel.
The period of detention without judicial warrant of arrest of suspected terrorists is also increased from three days to fourteen days and may be extended by a maximum of ten days. Furthermore, the arresting officer may not need to present the suspect before any judge (Section 29).
These provisions encroach upon the rights to communication and privacy of the people that this state has sworn to serve and protect.
No Court Order Needed
A portion of the proposed law is dedicated to the authority to investigate, inquire into and examine bank deposits of the accused. In the current law, a written order from the Court of Appeals (CA) is required to access bank deposits of the accused. This is a safeguard placed to ensure that no malicious investigations are conducted and no one’s right is violated.
In the proposed law, the Anti-Money Laundering Council (AMLC) no longer needs a court order to conduct investigations (Section 35, SB 1083 and HB 6875). This can lead to an investigation-spree by the AMLC, under the instruction of the ATC, of political enemies, critics, and vocal opposition to any administration.
Role of the Commission on Human Rights (CHR)
The proposed law retains the expectation on the Commission on Human Rights (CHR) to give “the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation” of the law. The CHR, however, will no longer have concurrent jurisdiction to prosecute persons who may have violated the civil and political rights of persons suspected of or detained for the crimes defined and penalized (Section 47, SB 1083 and HB 6875).
In order to prevent abuses on the part of the executive, legislative oversight is necessary. However, the oversight powers, under the proposed law, have been watered down (Section 50, SB 1083 and HB 6875).
The report of the ATC to Congress was changed from semiannual to annual. The report does not have to include recommendations for reassessment, amendment, or repeal of the Act and other provisions regarding the authorization of surveillance of suspected and charged persons. Lastly, courts handling cases will not be required to report the status of the cases to the two Houses of Congress and the President.
The reduction of oversight power opens the possibility of abuses in the implementation of the law. Instead of serving as checks on the powers given to the executive, the other branches of government become accomplices to the systematic disenfranchisement of rights.
Timing and Mode
We are also gravely concerned with the timing and mode of the passage of this bill. In the middle of a pandemic, Congress chose to prioritize an anti-terror law, thereby instilling fear instead of compassion. Moreover, critical decisions have been made in a span of days—definitely a short period for a measure needing much scrutiny.
Some members of the House of Representatives, in particular, have not been given a chance by the House leadership to introduce amendments to the Senate version and the majority approved the Senate version in toto. Has there been a thorough review of the existing provisions and careful deliberation of the proposed amendments? What demands this kind of urgency especially under a public health emergency?
Stifling Dissent and Criticism
We also strongly condemn the violent dispersal of peaceful protestors against the bill during a demonstration held on 5 June 2020 at the University of the Philippines Cebu campus under the guise of enforcing the city’s general community quarantine. If a law purporting to protect public health can be implemented in this abusive manner, how much more prone to abuse will this proposed Anti-Terror Bill be with all of its problematic provisions?
While terrorism, as defined in the bill, excludes advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, there are dangers as regards the manner in which the powers to deal with terrorism are left in the hands of the executive branch. If abused, the law can be used to instill fear among the critics of any administration—a weapon like no other.
Signed by the following faculty members of the Department of Political Science, University of the Philippines, Diliman
Aries A. Arugay
Maria Ela L. Atienza
Aimee Dresa R. Bautista
Dennis V. Blanco
Francis Joseph A. Dee
Jean S. Encinas-Franco
Miriam Coronel Ferrer
Perlita M. Frago-Marasigan
Enrico V. Gloria
Jan Robert R. Go
Herman Joseph S. Kraft
Raisa E. Lumampao
Ruth R. Lusterio-Rico
Marielle Y. Marcaida
Maria Elize H. Mendoza
Matthew Manuelito S. Miranda
Jaime B. Naval
Ranjit Singh Rye
Jalton G. Taguibao
Maria Thaemar C. Tana
Aletheia Kerygma B. Valenciano
Jean Paul L. Zialcita