Thursday, March 08, 2007

Notes on the new Anti-Terrorism Law

On March 6, 2007, Pres. Gloria Macapagal Arroyo signed the landmark legislation on terrorism, known as REPUBLIC ACT NO. 9372, AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM (hereinafter, "RA 9372" or the "Anti-Terrorism Law"). Media reports have it that various civic groups are preparing to challenge its constitutionality before the Supreme Court even as businessmen and international allies of the Philippines hail its passage. Indeed, RA 9372 appears to be a controversial piece of legislation as the law attempts to empower state agents by allowing legal intrusions into private communications, bank accounts, and personal liberties in order to curb the growing menace of terrorism. Thus, the challenge to the Supreme Court is to determine whether these legal intrusions are sanctioned by the 1987 Constitution.

While the national security agents and the human rights activists prepare for the case to be filed before the Supreme Court, we will attempt to comprehend this law and see how it will affect our lives. What follows is my notes and analysis based on my own reading of the law.

The Anti-Terrorism Law is composed of 62 sections, which could be divided into five divisions:

A. Terrorism, definition and principles

1. Declaration of Policy (Sec. 2)
2. Definition of Terrorism (Sec. 3)
3. Definition of Persons Liable (Sec. 4,5 and 6)
4. Proscription of Terrorist Organizations, etc. (Sec 17)

B. Legal Intrusions to Private Rights

1. Surveillance of Private Communications (Sec. 7 to 16)
2. Detention of terrorists (Sec. 18 to 25 and Sec. 44)
3. Restrictions to Travel (Sec. 26)
4. Examination of bank accounts, etc. (Sec. 27 to 43)

C. Special Rules and Principles

1. Immunity of government witnesses (Sec. 45)
2. Illegal use of Classified Material (sec. 46)
3. Remedial procedures and principles applicable to terrorism (Sec. 47- 52)
4. Special provisions on extraordinary rendition (Sec. 57) and extra-territoriality Sec. 58),

D. Administrative Bodies on Terrorism

1. The Anti-terrorism council and the role of other government agencies (Sec. 53-56 and Sec. 59)

E. Effectivity provisions

1. Effectivity clauses (Sec. 60-62)

As can be seen from the scope of the law, it appears to be comprehensive. It's almost like a codification of the powers of the state against terrorism and the rights of individuals against the abuse in the use of these powers. In addition, the law also provided for detailed procedures on how the state may exercise these powers, i.e., the legal intrusions to private rights, including penalties for failure to comply with them.

The law declares its underlying principles in Section 2 as follows:

SEC. 2. Declaration of Policy. – It is declared a policy of the State to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.

In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the constitution.

The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military, and legal means duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorist and/or criminal activities. Such measures shall include conflict management and post-conflict peace-building, addressing the roots of conflict by building state capacity and promoting equitable economic development.

Nothing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government. It is to be understood, however, that the exercise of the constitutionally recognized powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times.

From the wording of the above declaration of principles, already one can tell the tension between the state policy against terrorism and the policy to uphold civil liberties. As one reads the rest of the law, it is easy to notice that for every power granted to the state to curb terrorism under this law, the law also provides for a means to temper this power. It is a duality that pervades the entire law, and one wonders whether the decision to craft the law in this manner will actually achieve anything for the survival of the state. Nonetheless, the message appears to be very clear that the law cannot be abused to serve the ends of those in control of the government to stop their enemies in the guise of stopping terrorism.

The law then defines terrorism in Section 3 as follows:

SEC. 3. Terrorism. – Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d‘Etat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under

1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

The definition can be broken down into the following elements:

1. Violation of any penal law enumerated above
2. Sowing and creating a condition of widespread and extraordinary fear and panic among the populace
3. For the purpose of coercing the government to give in to an unlawful demand.

The first element tells us that Terrorism is not exactly a new crime. To be liable under it, the criminal should at least commit one of the following: Piracy in General and Mutiny in the High Seas or in the Philippine Waters), Rebellion or Insurrection, Coup d‘Etat, Murder, Kidnapping and Serious Illegal Detention, Crimes Involving Destruction, Arson, Violation of Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990, Violation of Atomic Energy Regulatory and Liability Act of 1968, Hijacking, Piracy and Highway Robbery, and Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives.

Absent from the above enumeration is the crime of rape. So a group of terrorists who resolve to rape women in an entire village will not be liable under this law but only for the crime of rape.

The second element in the definition, "sowing and creating a condition of widespread and extraordinary fear and panic among the populace" appears to be the heart of the definition of terrorism. Thus, without sowing and creating a condition of widespread and extraordinary ear and panic among the populace, the crime is not consummated. Yet, the words "widespread and extraordinary" fear and panic are suspect. Exactly how widespread and how extraordinary has the fear and panic should be for the crime to be considered as terrorism? If for example the target of the terrorism is just a barangay in a remote town in Mindoro where there are barely a hundred people living, would that be considered widespread? Further, extra-ordinary fear means the kind of fear that is not normally created by an attack. Yet isn't fear itself extraordinary? So I cannot imagine a situation where extra-ordinary fear is created. Atty. Romeo Capulong will have a grand time burrowing holes on this part of the definition of terrorism.

The third element -- "For the purpose of coercing the government to give in to an unlawful demand" -- is also problematic, because of the word "unlawful". The term simply admits a lot of interpretation. If, for example, a group of terrorists are held for committing any of the crimes above, but they say that they are doing it to demand the resignation of Gloria Arroyo, whom they believe is only a de facto President, is the crime terrorism committed? What if the demand is to enforce the rights of a farmer beneficiary of the land reform program to be installed in the farm awarded to the farmer? Further, when a case like this goes to trial, how can the prosecution prove the objectives of the terrorists? What if this is not disclosed by the terrorist group?

A PCIJ blog entry on the signing of the law cites that civil libertarians fear that the definition is too broad that it may even render people power as an act of terrorism. While I agree it is too broad, I don't think this is a bad thing for civil liberties, because indeed it is too broad that the state may find it impossible to convict any one under this law.

(To be continued)


zerline said...

do you, by any chance, have a copy of this R.A. 9372?
i hope you can also post it here, or provide a link to it...

Anonymous said...

i hope you can also post the pros and cons of RA 9372 (ASAP), it would be useful for those who are debating on the issue. thanks