by Atty. Neri Colmenares*
OPENING STATEMENT
on Cluster 4 Issues
During Oral Arguments on the Anti-Terrorism Act of 202
02 February 2021
Your Honors, I was assigned to argue that various sections of RA 11479 violate, inter alia, the constitutional prohibition against bills of attainder and ex post facto laws.
At its core, the Anti-Terrorism Act is today’s oppressive and arbitrary legislative vehicle for the attribution of guilt and the imposition of punishment essentially without the need for trial and conviction by a court of law.
And that is the essence of a bill of attainder – a law that inflicts punishment without judicial trial.
Firstly, Your Honors, the law is intrinsically invalid because it suffers from overbreadth and impermissible vagueness. The law punishes any act, including acts which were perfectly innocent when done, for as long as the Anti-Terrorism Council, acting as roving law makers and star chamber judges, imputes vaguely defined terrorist intentions and purposes on the suspect.
After all, who would know what acts are encompassed by a law that penalizes “any act” intended to “endanger another person’s life”? or “seriously interfere with critical infrastructure”? Worse, the act need not even actually result in “endangering” a person’s life. The mere naked imputation that it intended to “endanger” a person’s life would suffice.
Perhaps to project a false assurance that the law has safeguards, the law’s authors and peddlers, disingenuously misappropriating that “activism is not terrorism”, claim that under Sec. 4, there is a provision that excludes the exercise of civil and political rights from the ambit of terrorism, provided, they are not intended to “cause serious physical harm” on another person or “create a serious risk to public safety”, both of which, by the way, are not even included among the intentions that would qualify an act as terrorism in the same Sec. 4 itself.
A person exercising a constitutional right through “artistic and cultural expressions” today, would suddenly be committing a crime tomorrow upon the mere imputation by the respondents that such “artistic expression” was intended to create a “serious risk to public safety”. Clearly, therefore, the mere imputation of intentions and purposes by the respondents suddenly goes into past conduct and transforms acts considered legal and constitutional when done into punishable terrorist acts.
The effect of this supposed safeguard under Sec. 4 – contrary to its announced intention to exclude the exercise of constitutional rights from acts of terrorism – is to actually, and expressly, provide that said legal and constitutional acts can be considered terrorism on the mere say so n of the authorities of a vague and over broad law, immediately opening up the law to the vulnerability of being a bill of attainder and an ex post facto law riding in tandem.
Secondly, Your Honors, RA 11479 inflicts deprivation of rights on a class of “suspected persons” without judicial trial when it grants respondents the power to investigate and freeze the assets of mere suspects”; or cause the detention of “suspects” for more than three days without need for judicial imprimatur.
“Suspects” who are charged in court and granted bail, cannot enjoy the benefits of their fundamental right to liberty because their movements and means of communication are severely restricted under Sec. 34.
Actually, the provisions granting judicial intervention under the law is a mirage. The prejudicial effects of designation and judicial proscription are basically the same, so the ATC does not need to file a proscription case in court.The provision for bailable offenses for inciting, or proposal to commit terrorism which are punishable by 12 years is also an illusion, because these acts also constitute the same acts under Sec. 4 which is penalized with life imprisonment. There is no reason for the ATC, therefore, to file any case for violation of Secs. 5-12 because all these can easily be prosecuted under the vague, overbroad and non-bailable shotgun offense of terrorism under Sec. 4.
Any one of these intrusions into traditionally-recognized areas of protected freedoms, clearly, amount to punishment within the purview of the bill of attainder clause.
Thirdly, your Honors, in the real world out there, who are the targets of these deprivation of rights without judicial trial ? The law targets an ascertainable group of activists and perceived dissenters who have been the victims of red tagging and terrorist tagging by the mere claim that they are “suspected persons.”
Based on the actions of respondents, and contemporaneous events, these “suspected persons” generally refer to activists or perceived dissenters who criticize or oppose certain government acts or policies. The victims range from organizations like Makabayan, churches such as the National Council of Churches, International NGOs such as Oxfam and Caritas, and recently the University of the Philippines and many other schools and colleges.
The personalities targeted by these members of the ATC engaged in terrorist tagging are opposition legislators, human rights defenders, bishops, priests, a UN special rapporteur, prominent lawyers , and celebrities who are perceived to be opposing actions of public officials who can dish it out but cannot take it. Even those who criticize the “anti-terror” law, including the petitioners and lawyers in this case, have become victims of terrorist tagging.
Many activists and dissenters, mostly in the provinces, have died while being served by the police with search warrants many of which were issued by judges in Metro Manila on a formulaic narrative of “nanlaban.”
A look at the sedition cases filed against religious people, a criminal complaint for kidnapping against activists and opposition legislators, as well as the proscription case filed under the Human Security Act by the ATC against more than 600 individuals many of whom are human rights defenders, shows that the ATC considers activists and perceived dissenters as targets of the “anti-terror” law.
A determination of whether a particular group has been “organized for the purpose of engaging in terrorism” necessarily involves applying the definitions of terrorism and terrorism-related offenses to past acts or previous circumstances.
Criminalizing membership in designated or proscribed organizations, likewise, amounts to punishment for acts allegedly committed by these organizations or their members prior to the enactment of the law.
Sec. 16 subjects any “suspected person” and any one who relates to the suspected person as targets of unrestrained surveillance that allows the respondents to collect any private communication, using any mode or device or yet unknown technology on any suspect, a clear violation of the constitutional right against unreasonable searches and seizures, and the right to privacy.
All of these transgressions of rights result in a chilling effect on the exercise of the right to free speech and expression of any person exercising civil and political rights for fear of becoming victims by the mere fact that they are “suspected” terrorists under the amorphous definition of terrorism.
While we consider addressing real terrorism as a legitimate concern, voiding the terror law that overreaches to quell not just the terrorism of motley bands but the dissent of the many and the freedoms of the multitudes, does not render the government helpless against terrorists as there are many laws that can be, and are actually being employed against attacks on government and the public.
A basic principle of a democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts.
No one should go to prison for the exercise of constitutional rights. This terror law has done precisely that. That is why this abomination that pretends to be a law to protect the people must be struck down.
This hydra-headed legal monster must be slayed now lest it devours further anybody and everybody, including even its own defenders in Congress now that the terror law is no longer suspended during elections.
It is time to bring back sanity and restore reason.
We must do the right things for the right reasons in the right way by the right persons at the right time.
Else, we and our children will be stuck with an anti-terror law that terrorizes the people more than the real terrorists.
* Neri Javier Colmenares is Counsel and Petitioner against the Anti-Terror Law, is NUPL Chairperson, CLCL Convenor, Makabayan Chairperson, Manlaban Convenor, and IADL Bureau Member.