Like an orchestra, the raucous anti-Duterte presidency critics are playing in sync with their tirades against — and opposition to the — anti-terrorism bill.
Terrorism is a deadly and dastardly crime. The terrorists attack at their target without mercy. Terrorism has no respect for any country, race, religion and ideology. When it treacherously strikes, it leaves a trail of blood of thousands of deaths and a graphic image of incalculable destruction of properties. One can only recall the 9/11 New York shocker masterminded by Osama Bin Laden, and in our country, the Marawi siege led by the Abu Sayyaf Group with links to the international terrorist group Al-Qaeda.
It is indisputable that terrorism puts the national security and general welfare in constant grave risk hence the imperative need for the state to have at its arsenal a law that can respond to the exigencies of the time and neutralize the terrorists’ agenda at its incipience.
On cue, the discordant voices of the critics and detractors unite to demonize the proposed law and peddle a phantom fear of its alleged draconian enforcement and lend their shrill and hysterical deceptive narratives, in competition with the coronavirus in further polluting the already virus-infected air.
They foist the bogey that the contemplated law was crafted for no other purpose than to zip the lips of critics and human rights activists, and to intimidate them into sepulchral silence by the specter of a prolonged detention.
Not only is such advocacy a falsehood, it is cerebrally challenged. The Constitution declares the service to the people and their protection as the prime duty of the government: “The prime duty of the government is to serve and protect the people.” (Section 4, Article II, Constitution) The creation and the enactment of laws, such as the anti-terrorism bill, among others, will fulfill such constitutional directive.
The critique against the anti-terrorism bill is not only biased, lacking in intellectual insight and oblivious of the monstrosity and the grave infinitesimal consequences that terrorism has brought to the world.
Critics say that the bill has broadened the term terrorism. Incorrect. It accurately defines it based on what the world has seen on the acts and stratagem the terrorists have used in unleashing their lethal force on their targets. Critics also argue that the bill is intended against the dissenters. Absolutely false. The proposed act specifically states that terrorism, as penalized thereby, does not include dissent. Neither is advocacy covered. Nor is protest. Industrial or mass action like stoppage of work, and other similar exercises of civil and political rights, like rally or demonstration, not intended to cause death or serious physical harm to a person, or endanger a person’s life, or create a serious risk to public safety, do not fall within the ambit of the anti-terrorism act.
More importantly, the defined terroristic acts must be done for the purpose of “intimidating the general public or spreading a message of fear, or provoking or influencing by intimidation the government or any of its international organizations or seriously destabilizing or destroying the fundamental political, economic or social structures of the country or creating a public emergency or seriously undermining public safety,” before the said terrorist acts can ripen to the crime of terrorism. The requirements are stringent that requires proof that just can’t be extrapolated from thin air. It must be evidence based.
The critics further point to the warrantless arrest for a suspected terrorist whose detention could extend to a total of 24 days compared to the present law allowing a maximum of 3 days before charges are filed. Warrantless arrests are allowed by law and instances where the same may be effected are laid down in Rule 113 of the Rules of Court. The extended detention is necessary by reason of the potential grave risk that a suspected terrorist is freed immediately prior to his being judicially charged. He could immediately join his fellow terrorists and execute their terror attacks or alert them of the impending moves of the government forces to neutralize them. Moreover, comparing it with other countries having the same anti- terror bill, our period of detention is much shorter than them. As correctly pointed out by Senator Panfilo Lacson, the author of the anti-terrorism bill in the Senate, Thailand has 30 days; Malaysia has up to 2 years; Singapore is 720 days which can be extended to an indefinite period of detention minus formal charges; and Indonesia has 120 days for suspected terrorists.
The longer duration of detention of 14 days than the present 3 days is required by reason of the nature of the extraordinary crime and by force of necessity. Furthermore, the extendible period of 10 days can not be had unless there is a showing that 1) further detention of the suspect needed to preserve the evidence related to terrorism or to complete the investigation; 2) further detention of the suspect is necessary to prevent the commission of another terrorism; and 3) the investigation is being conducted properly and without delay. In other words, the discretion to decide to further detain a suspect is removed from the arresting police officer or military personnel by law. They can not increase the number of detention days on a whim.
The critics raise the issue that the finding of a probable cause preliminary to the arrest of a suspected terrorist which presently is given by law to a court judge is now being placed to the Anti-Terrorism Council, composed of 9 civilians who are members of the Cabinet, headed by the Executive Secretary, Vice- Chaired by the National Security Adviser, and the Secretaries of Foreign Affairs, National Defense, Interior and Local Government, Finance, Justice, Information and Communications Technology and the Executive Director of the Anti-Money Laundering Council as members. The implication of the criticism is that the council members do not have the training and the competence of a judge to establish the existence of a probable cause. The criticism is misplaced. The composition of ATC under the proposed law would have 3 lawyers, they are Executive Secretary Salvador Medialdea, Foreign Affairs Secretary Teodoro Locsin, Jr., and Justice Secretary Menardo Guevara. Prior to their entry to government service, the three were active law practitioners. Like any judge, they have been schooled and trained to determine probable cause as defined by law. We have therefore three members of the Bar, instead of one, in addition to 6 other members of the council determining the existence of a probable cause. The reality under the contemplated law makes it more stringent to find probable cause.
Also, the ACT necessarily will necessarily base its findings on the submission of law enforcement officers who will submit evidence or proof to convince the ACT members that there is reason to believe that the suspect has committed acts defined under the law to be terroristic.
Another safeguard missed by the critics is the under the proposed law, before any law enforcement officer can “secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record or collect” any private communication or conversation by the suspected terrorist, an order from the Court of Appeals must be had after an application is made before it showing the existence of a probable cause that terrorism as defined by law has been committed, or is being committed or is about to be committed by the subject terrorist. There is therefore a judicial determination of a probable cause not only by a Regional Trial Court Judge but by a special division of the Court of Appeals consisting of 3 Justices.
Any surveillance made by any law enforcers without judicial authorization, will merit the offender an imprisonment of 10 years, plus whatever information or evidence they obtained arising from the unauthorised surveillance or wiretapping will be inadmissible in evidence in any court or administrative proceeding.
It is important to note that the communication and correspondence between lawyers and clients, doctors and patients, journalists and their sources remain protected under the anti-terrorism bill.
Also, the law enforcement agents, after an arrest is made, are required, under pain of penalty of 10 years imprisonment for non-compliance thereof, to notify in writing the circumstances of the arrest as well as the physical and mental condition of the detained suspect, in addition to furnishing the Commission on Human Rights (CHR) the written notice given to the judge.
The constitutional rights of the suspect under detention remain enforced. He has to be informed of the nature of the charge against him; he has to be informed of his right to remain silent; he has right to have a competent and independent counsel of choice, or if he can not afford the services of a lawyer, the Integrated Bar of the Philippines or the Public Attorneys Office is required to provide him legal assistance. He has the right to confer with his lawyer and he is entitled to visitorial rights during detention. These rights can not be waived by him except in writing and in the presence of his counsel of choice.
The detained terrorist suspect can also avail of the extra-legal remedies of the Writ of Habeas Corpus, and Writ of Amparo and question the legal basis of arrest and detention. Moreover he can also file petition for bail which the Constitution grants to all persons charged.
Salvador S. Panelo
Chief Presidential Legal Counsel
