Notes on the Anti-Terrorism Law (Part 5)

IX. We come now to the second authorized legal intrusion into private rights under the Anti-Terrorism Law, the detention of suspected terrorists.

The Anti-Terrorism Law authorizes the warrantless arrest of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism under the following circumstances:

1. There is an authority in writing from the Anti-Terrorism Council
2. The subject of the arrest is a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism
3. The arrest results from the surveillance authorized under Section 7 (discussed in an earlier post) and examination of bank deposits under Section 27 (to be discussed later)

Section 18 of the law gives the law enforcement personnel who arrested the suspected terrorist a period of three (3) days counted from the moment of arrest to submit the arrested terrorist to the proper judicial authority.

The general rule on warrantless arrests of person is provided in Section 5 Rule 113 of the Revised rules of Criminal Prcedure, which states as follows:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Obviously, the provision under the Anti-Terrorism Law for the warrantless arrest a suspected terrorist appears to be a new exception to the rule on warrantless arrests under the Rules on Criminal Procedure. The problem here is that with this provision, Congress appears to be legislating on the matter of criminal procedure in the protection and enforcement of a constitutional right. Under Section 5 Article VIII of the Constitution, the Supreme Court has the jurisdiction to "promulgate rules concerning the protection and enforcement of constitutional rights" Thus, the issue is, Congress may have legislated on a matter which is the exclusive province of the Supreme Court.

Fr. Joaquin Bernas, S.J., in his commentaries on the Constitution, says the power of Congress to legislate on rules of procedure was recognized by the Constitutional Commission, but after the debates on the issue and as a matter of compromise, the Constitutional Commission did not make this power explicit in the text of the 1987 Constitution. This opinion, however, has not yet been supported by jurisprudence.

Thus, this provision of the Anti-Terrorism Law on the warrantless arrest of a suspected terrorist may be challenged as an unwelcome encroachment on the powers of the Supreme Court under Article VIII Section 5 of the 1987 Constitution.

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.

Notes on the New Anti-Terrorism Law (Part 3)

VII. Section 17 provides the Department of Justice with the remedy of having an organization, association, or group of persons declared as a terrorist group upon application, with notice and opportunity to be heard, with the Regional Trial Court. The declaration of an organization as an outlawed terrorist group triggers for the government its rights to exercise the powers of surveillance of private communications (Sections 7 to 16) and examination of bank accounts under section 27 to section 43) The law, however, requires that an organization may only be declared as an outlawed terrorist group upon notice and opportunity to be heard. To be declared as a terorrist organization, the DOj has to prove that the organization actually uses the acts to terrorize mentioned in the law to sow and create 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. Section 17 states,

SEC. 17. Proscription of Terrorist Organizations, Association, or Group of Persons. – Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create 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, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

My first impression was that this might be a superfluous procedure, because if the DOJ has evidence that an organization is a terrorist organization, it might as well sue the members for committing the crime of Conspiracy to Commit Terrorism. Yet, upon closer examination, it appears to be a way to shortcut the process of convicting actual terrorists. Once an organization is declared a terrorist, then all members will be deemed guilty of the crime of Conspiracy to Commit Terrorism, and all the police has to do is prove people's membership in the terrorist organization.

The question is how will a judge distinguish among members, affiliates, supporters, sympathizers, friends, relatives, and neighbors of the terrorist organization, or among the supporters, sympathizers, friends, relatives, neighbors of the members of the terrorist organization, or friends of the supporters of the members of the terrorist organization? It seems to me the DOJ will all have them bunched as one group of terrorists to be sued and jailed. It is a potential tool for witch-hunting. There is a danger for people to be declared as terrorists by association regardless of the degree of association. This is so because in a conspiracy the doctrine is "the act of one is the act of all." Thus, for so long as a person's association with a judicially declared terrorist organization is proven, he will be guilty of Conspiracy to Commit Terrorism and punished as such. If the National Democratic Front, for example, is declared as a terrorist organization, even Joma Sison's dance instructor could be jailed for Conspiracy to Commit Terrorism.

(To be continued)

Notes on the New Anti-Terrorism Law (Part 2)

IV. The Anti-Terrorism Law does not appear to provide a penalty for frustrated or attempted stage of the crime of terrorism. Does this mean that the crime is only punishable in the consummated stage? My reading, however, is the crime of Terrorism is punished regardless of the stage of commission. When the law states that, "Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: x x x or under (the Special Penal laws enumerated therein)" , it includes all stages of commission of the crimes enumerated. Thus, for so long as the other elements of Terrorism concur, the crime is punished as consummated with 40 years imprisonment.

The scenario is, for example, the case when a murder is frustrated because the victim survives the attack. Assuming the other elements of Terrorism concur, can we say that the crime is frustrated Terrorism? No, because the frustrated murder already meets the first requisite for the crime of Terrorism. Thus, regardless of the stage of commission, for so long as all the elements of the crime are present, Terrorism is committed and punished with 40 years in jail.

V. The Anti-Terrorism Law fixes the penalty for the crime of Terrorism at 40 years, without the benefit of the Indeterminate Sentence Law. In general, the Indeterminate Sentence Law tends to lower the penalty for the crime depending on the attendant circumstances to the crime. With respect to the crime of Conspiracy to Commit the Crime of Terrorism, which is penalized also with with 40 years of imprisonment, the Anti-Terrorism Law did not exempt it from the application of the Indeterminate Sentence Law. Conspiracy to Commit terrorism is committed when two or more persons come to an agreement concerning the commission of the crime of terrorism and decide to commit the same.

VI. Accomplices and accessories to the crimes of Terrorism and Conspiracy to Commit Terrorism are punished by a penalty of seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment and ten (10) years and one day to twelve (12) years of imprisonment respectively. Note that for accomplices and accessories, the penalty provided is a range. What would be the standards that a judge can use in graduating the penalty for Terrorism? Will the mitigating and aggravating circumstances provided by the Revised Penal Code be applicable? There appears to be no references to mitigating and aggravating circumstances so my opinion is these may not be applicable.

(To be continued)

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.


I. 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.


II. 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.



III. 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)