Wednesday, March 14, 2007

NOTES ON THE NEW ANTI-TERRORISM LAW (Part 4)

VIII. We come now to a discussion on one of the novel legal intrusions on the rights to privacy that has been sanctioned by the Anti-Terrorism Law.

Section 7 of the Anti-Terrorism Law provides for the requisites under which surveillance of private communications shall be allowed, as follows:

1. It must be done by a police or law enforcement official and the members of his team.

2. There must be a written order of the Court of Appeals

3. The authority given by the Court of Appeals shall be listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose,

4. The object of the surveillance shall be any communication, message, conversation, discussion, or spoken or written words

5. The subject shall be communications between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

The law, however, provides exceptions with respect to the surveillance, interception and recording of communications between the following:

1, lawyers and clients,
2. doctors and patients, and
3. journalists and their sources and confidential business correspondence.

This is one of the controversial provisions of the law, because it excludes surveillance of private communications covered by this law from the application of the Anti-wire Tapping Law or Republic Act No. 4200. The issue is will this provision violate the Constitution, particularly, Art. III section 3? It states as follows:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.


The requirement of an order from the Court of Appeals stated in the Anti-Terrorism Law appears to fit the exception provided by the Constitution on the inviolability of the privacy of communication and corresppondence. Thus, the argument that this provision is unconstitutional appears to be very weak.

Further, in securing this order from the Court of Appeals, the law provides a rigorous procedure in Section 8. The provision states that the authority shall be granted by the authorizing division of the Court of Appeals only upon compliance with the following requirements:

1. An ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application,
2. Upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish:

(a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
(b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and,
(c) that there is no other effective means readily available for acquiring such evidence.


The procedure appears to mirror the provisions of Section2 Article III of the Constitution with respect to the issuance of search and arrest warrants, except that the Anti-Terrorism Law required a higher court, the Court of Appeals, as the court from where the authority for surveillance may be secured. Section 2 Article III of the Constitution states:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and 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, and particularly describing the place to be searched and the persons or things to be seized.


By wording this provision in a simlar manner, Congress incorporates by analogy to the Anti-Terrorism Law the wealth of jurisprudence that has evolved in the Philippines relating to the procedure of the examination of the applicant and his witnesses and the finding of probable cause.

Thus, this novel legal intrusion sanctioned by the Anti-Terrorism may survive the anticipated constitutional challenge from the human rights activists.

2 comments:

Rizalist said...

I left a question for you on MLQ3's blog that I hope you might take the time to answer for the benefit of the audience over there. thanks.

Rizalist said...

Marvin,

Just reproducing your recent comment: (my caveats below):
DJB,

Thre's a second part to that post Ihave above whcih got blpped by my poor internet connection in the house.

If we break dwon your definition of terrorism, the following are the elements:

1. Organized crime
2. for the purpose of achieving the political and ideological end of overthrowing the legitimate government
3. Use of illegitimate means.

The first element of organized crime, means there is a group of persons with leaders and members acting together to commit a crime. But the problem with the word crime is it encompasses all crimes, including unjust vexation, libel, adultery, (not that you would find people organizing to commit adultery), but some crimes appear to be irrelevant in terrorism.

The second element, "the purpose of achieving the political and ideological end of overthrowing the legitimate government", appears likewise to be too broad, and in fact makes the crime the same as rebellion or sedition. I think the key distinguishing mark of terrorism is the the use of "fear and panic" as an end as a tool for achieving the political and ideological prupose.

The third element, "use of illegitimate means" appear to be self-explanatory. But I'm thinking now that perhaps the element of "violence" should be a key element in the definition. If we don't put violence, it appears that the "dagdag-bawas" election cheating method of jueteng lords to get their proteges in office can qualify as terrorism. But jueteng lords are a different class of criminals altogether.



Thanks again for looking
at this more closely. My caveats to your thoughtful comments (also at Philippine Commentary):

(1) The reason I use the term "organized crime" is that it is a more commonly understood term by the public and is dealt with in US law under the RICO statutes. I use it to draw a direct analogy with "economic mafias" and other organized crime syndicates because both the jihadist and communist insurgents which are certainly the implicit targets of the new legislation (Human Security Act of 2007) share in the secretive nature of those organized crime families and gangs whose principal activities and "tools" are indeed a wide plethora of crimes and vices like gambling, prostitution, extortion, murder, kidnapping, etc. At the same time, we need to recognize a big difference between conventional mafias and these terrorist mafias in that the latter have largely political and ideological goals which the former do not. Indeed, they are very different in this sense. The economic mafias do not want a change in the society and civilization as a matter of course, but rather they feed off the corruption as well as general atmosphere of freedoms and "pursuit of happiness" in open societies. Even in totalitarian societies like Russia and China, they can coexist with the existing political system just as well as in capitalist countries. Not so with terrorists in general who are at war with those societies and want to radically alter the social and political systems.. Thus the second element of my definition. Regarding "fear and panic" aspect of HSA2007's definition of terrorism, I don't believe that sowing such fear and panic is the main objective of the terrorists, even if that is an objective effect of their attacks and threats. That is only secondary to their aims, the principal one being to literally destroy the existing order and to replace it with a caliphatic theocracy or totalitarian dictatorship. Most ordinary crimes instill some level of fear and panic, many with the same amount as terrorists, but this aspect of it only muddles the issue to some extent.

Thanks for clarifying something for me regarding the third element. I agree that perhaps instead of the general "illegitimate means" phrase I've used, it would be more direct to say violent means, because indeed that is the principal means by which jihadists and communists are using to gain their ends. However, I would add as elements of terrorist activities, logistical, financial, and even political support for violent means. Other commenters have suggest the term "paramilitary" instead of just violence, because this would include all aspects of an armed struggle, including support systems in the open society which are indeed being used by both the jihadists and communists to sustain their armies.

So yes, that was a very good observation that the element of violence become an explicit part of an expanded definition.

THANKS!