THE TERROR LAW

This is the irony. A proposed law that seeks to prevent and curb “terrorism” will instead promote and encourage it. Senate Bill No. 2137, otherwise known as AN ACT TO DETER AND PUNISH ACTS OF TERRORISM AND FOR OTHER PURPOSES now on 3rd reading in the Halls of the Senate, should instead be aptly called THE TERROR LAW OF 2007. My vehement opposition rests on the following:

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1. The definition of “terrorism” reeks of vagueness and encompasses a broad spectrum of acts that are already punishable under other laws.

Section 3 of the proposed law provides in part:

Sec. 3. Terrorism, How Committed. — Terrorism is committed by any person or group of persons, whether natural or juridical, through premeditated, threatened, or actual use of violence, force, coercion xxx perpetrated against persons, xxx or the government, with the intention of creating or sowing a state of danger, panic, fear or chaos to the general public or a segment thereof by any of the following acts: xxxxx

Again, the definition is vague and all-encompassing. Almost all forms of threatened or actual use of violence — as long as the intention is to create fear, panic, etc. to the public — are covered by the definition whichever way it is interpreted. This is highly dangerous because state authorities are practically given the free hand to determine what constitutes or does not constitute terrorism. Besides, most of the so-called “acts of terrorism” enumerated thereunder have long been declared punishable under other laws, notably the Revised Penal Code. I cannot, therefore, see any cogent reason why another law has to be passed only to parrot what has already been provided. I maintain that our laws are suffcient enough to deal with this kind of problem. Unfortunately, what this country lacks is the political will to implement the penal laws already in place.

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2. The proposed law smacks of subjectivity and violates the due process clause of the Constitution. x

Let’s take a closer look at both Sections 8 and 9 of the proposed law:

Sec. 8. Proscription of an Organization. — For the purpose of this Act and with the observance of due process, the Anti-Terrorism Council, upon its own initiative, or upon recommendation of the Secretary of Justice may proscribe a group as a terrorist organization if such organization is characterized by any of the following:

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1. Any member or members thereof openly and publicly declares, xxx to have committed any of the acts punishable under this Act;

2. Any member or members thereof have been convicted for the commission of any act of terrorism as defined and described in Sections 3, 4 and 5 of this Act;

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3. It is proscribed by the United Nations or international organizations.

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Any proscribed organization or member thereof may move for de-proscription or de listing before the Department of Justice (DOJ), whose decision is appealable to the Court of Appeals.

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Sec. 9. Membership in a Terrorist Organization. — Where an organization has been proscribed as a terrorist organization, it shall be unlawful for any person who knowingly,willfully, and by overt acts, affiliates himself, becomes, or remains a member of such activities unless he can prove a lack of personal knowledge of the organization’s activities; or that he has (not?) taken any part in the activities of the organization at any time while it was proscribed; or that he took immediate steps to terminate his membership therefrom as soon as practicable after it was proscribed; or that the organization was not declared a terrorist organization at the time he became a member or begun to profess to be a member. xxx

Don’t be misled. While Section 8 on the surface mentions the words “observance of due process” and “appealable to the Court of Appeals”, a close reading of the entire provision would lead one to conclude that they are merely stated for convenience, that is, to make it appear that the law recognizes a person’s constitutional right to be heard. In truth, however, the Terror Law does not seek to hear before it condemns but first declares a person or group as a terrorist or terrorist organization, giving them the unnecessary burden of proving their innocence by asking for their de-proscription before the Department of Justice. The only time that a court can intervene is when the aggrieved parties will appeal the Justice Secretary’s decision to the Court of Appeals.

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The essence of procedural due process is the guarantee of procedural fairness. I don’t see anything fair about this whole procedure.

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3. It increases the risk of police brutality, coercion and intimidation.

The first paragraph of Section 10 thereof states:

Sec. 10. Arrest and Detention. — Any person arrested for violation of this Act, pursuant to Rule 113, Section 5, paragraphs (a) and (b), of the Rules of Court, may be detained for an inquest period of not more than three (3) days following his/her arrest. xxx

By the way, what is Rule 113, Sections 5 (a) and (b)? The rule refers to two of three instances where a peace officer or a private person may arrest a person without warrant:

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1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; and

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2. 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.

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Hence, when a person is arrested pursuant to the aforestated Rule, the Terror Law gives the arresting officers up to three (3) days or 72 hours to file the necessary charges in court. If no charges are filed beyond that period, they will have to release the person arrested, otherwise, they will be held criminally liable for arbitrary detention. The underlying procedure is still the same as in the Revised Rules of Criminal procedure in relation to the Revised Penal Code. The Terror Law however, seeks to increase the maximum period of detention from 36 to 72 hours.

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And why do I say that it increases the risk of police brutality, coercion and intimidation? My theory is simple. We hear the cries of people being subjected to torture by police agents in order to extract information or solely to obtain extra-judicial confessions and admissions. If this has been happening even when there is no Terror Law yet in effect, how much more when such a law is enacted? To give more time for state agents to deprive people of their fundamental freedoms even for just a few days might embolden “hoodlums in uniforms” to commit more abuses on those carrying the terrorist tag.

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4. It weakens constitutional safeguards designed to protect the privacy of communication and correspondence.

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Section 3 (1), Article 3 of the Constitution provides:

Sec. 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.

Whereas Section 16 (1) and (3) of the Terror Law states:

Sec. 16. Communications Assistance for Law Enforcement Agencies. —

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1. xxx any peace officer may apply ex parte before the executive judge of any Regional Trial Court for an order, extension of such an order, requiring a provider of wire or electronic communication service to provide intercepted communication and call identifying information to law enforcement agencies, or authorizing or approving the installation, use and/or retrieval of surveillance device, in connection with an investigation for any offense punishable under this Act.

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3. When the peace officer has certified that the information likely to be obtained by such interception, installation or use is relevant to an ongoing investigation for any offense punishable under this Act, the court shall issue an ex parte order requiring a provider of wire or electronic communication service or authorizing the installation, use and/or retrieval of the devices applied for, for a period not to exceed sixty (60) days. Such order shall state one or more of the following- xxx

Again, don’t be misled. There is a marked difference between the manner of court intervention as required by the Constitution and the manner provided for under the Terror Law. Fr. Joaquin Bernas, a noted constitutionalist, is of the opinion that a court may only allow intrusion into private communication if there is probable cause to do so, similar to an instance wherein a judge determines probable cause before issuing a search warrant and/or warrant of arrest. More importantly, it must be determined personally by the issuing judge so much so that mere reliance on the asseverations of police officers will not suffice. Now, what is this legal animal called “probable cause”? Fr. Bernas said and I quote:

“Probable cause means such facts and circumstances xxx that are in themselves sufficient to induce a cautious man to rely upon them. xxx Probable cause xxx would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed xxx.”

By contrast, Section 16 (3) of the Terror Law has reduced the judge into a rubber stamp magistrate. All the peace officer has to do is to certify that “the information to be obtained by such interception is relevant to an ongoing investigation for any offense punishable under this Act”. The court in such a case is left with no option but to forthwith issue the said ex parte order without being given the opportunity to assess whether there is really a need to intrude into the privacy of another. x

5. It can be used by any insecure government as a tool to harrass and repress members of the opposition and militant organizations.

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Need I say more? Regardless of their motivations (who doesn’t have, anyway?), the statements of Senators Nene Pimentel and Jamby Madrigal are more than enough to emphasize this point.

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Senate Bill No. 2137 must be scrapped.