by Adolf Azcuna

It is Rep Act No 11479 signed into law on July 3, 2020 and effective after publication for 15 days in the Official Gazette or newspaper of general circulation in the country. The Anti-Terrorism Council and the Secretary of Justice are to draw up the IRR or implementing rules in 90 days after the law’s effectivity.

It repeals or replaces the Human Security Act of 2007 which was allegedly largely unused because of the heavy fines provided against law enforcers who violated its safeguards.

It adopts a policy against terrorism and seeks to defend the nation against it. It then defines what constitutes terrorism, penalizes proposals to commit it, terrorist training, funding and recruitment activities and membership in designated terrorist organizations. It covers foreign terrorist activities that have links to the Philippines.

It creates an Anti-Terrorism Council composed of Executive Officials that will oversee the Act’s implementation.

It provides for an elaborate system of surveillance including wiretapping by state agents of suspected terrorists upon directive or permission from the Anti-Terrorism Council with the approval of the Court of Appeals, for a period of 60 days extendible for another 30 days.

It allows arrests without judicial warrants and detention without filing of charges in court for a period of 14 days extendible for another 10 days in the name of fighting terrorism.

And it removes the heavy fines on law enforcers if they transgress the law’s safeguards and instead provides for imprisonment of up to 12 years.

The thrust of the objections and of petitions to declare all or parts of the law invalid are or are likely to be—

1. The definition of terrorism is vague and too broad so it violates the right of an accused to be informed of the nature of the charges against him or her;
2. It violates the provision of the Constitution that says that no warrant of arrest shall issue except upon probable cause to be determined by a judge;
3. It allows arbitrary detentions without charges for an unreasonable length of time in violation of a person’s fundamental right;
4. It grants the State law enforcers the right to determine that something is terrorism and one is guilty of it without ones being heard thus violating the fundamental requirement of due process;
5. It makes innocent and peaceful assembly and protest to criticize government a dangerous activity that could easily be deemed as constituting terrorism by state agents acting without the safeguard of requiring court authority;
6. Granted that there is a need for an honest to goodness Anti-Terrorism Law, one should be adopted after broad consultation with all affected sectors, unlike this law which was hastily passed by both House of Representatives and the Senate;
7. The law is liable to be weaponized and used to suppress legitimate criticism and put a chilling effect on peaceful dissent, a necessary ingredient of a democratic society;
8. The law is a divisive one that detracts from the unity needed now to fight the pressing spectre of the pandemic while saving our economy and ensuring the people’s survival.

On the other hand the defenders will claim —

1. That such a law is needed now due to the sophisticated nature of modern day terrorism that has to be addressed;
2. The right to a judicial warrant and against detention without charges for 24 days can be restricted under prevailing jurisprudence and treaty law on grounds of public order and public safety;
3. There are sufficient safeguards against abuse in this and other laws. For example, in case of detention, the nearest court has to be informed, the Commission of Human Rights has to be informed, a logbook entering every detention has to be kept. Congress has also provided for an Oversight Committee to make sure the law is faithfully executed;
4. Court approval is needed for surveillance, which surveillance cannot exceed 90 days, and for the freezing of assets; and
5. These counter terrorism measures are needed to fulfill our commitment to the international community and to the our foreign lenders and could compromise our fiscal standing if not put in place now.

How all these will play out remains to be seen in the coming days and weeks.

I suggest you read

The law: RA 11479.

The Constitution of the Republic of the Philippines.

The Universal Declaration of Human Rights.

The International Covenant on Civil and Political Rights.

The Siracusa Principles on the Limitation and Derogation of Fundamental Rights.

The decision of the Philippine Supreme Court penned by Justice Antonio T Carpio ruling that the fundamental rights of the people are binding on the State even during a period when there is no constitution. Sandiganbayan v Republic— the Elizabeth Dimaano case.

Thank you.

Adolf Azcuna was Associate Justice of the Supreme Court, 2002 to 2009. We are re-posting with permission via Krip Yuson.