by Rommel C. Banlaoi, PhD*
4 July 2020
Despite continuing public criticisms, President Rodrigo R. Duterte signed the new Philippine anti-terrorism law or the Republic Act 11479 on 3 July 2020 to serve as a lawful instrument to fight terror and not to cause terror. Officially entitled “The Anti-Terrorism Act of 2020”, the new law is strongly grounded on the universally accepted principle of human rights that the law intends to protect amidst clear and present danger posed by threats of terrorism in the Philippines, which are real and not only imagined.
Section 2 (Declaration of Policy) of RA 11479 upholds State policy “to protect life, liberty and property” of the Filipino people against terrorism. RA 11479 even emphasizes that in the implementation of State policy against terrorism, “the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution”.
The Anti-Terrorism Act of 2020 or ATA is not only mindful of the need to protect human rights. The ATA exists precisely because of human rights. The ATA fights terrorism as terrorism poses a grave threat to human rights not only of the Filipino people but also of the entire humanity.
In fact, the ATA views terrorism as “inimical and dangerous to national security of the country, and to the welfare of the people.” The ATA also regards terrorism as “a crime against the Filipino people, against humanity, and against the Law of Nations.”
Thus, the ATA is clearly against terrorism and not against human rights. In the fight against terrorism, the ATA even has progressive provisions requiring that “respect for human rights” shall be “protected and absolute at all times”.
One important feature of the ATA is the explicit recognition that the fight against terrorism in the Philippines requires not only a legal approach. The ATA emphasizes that a comprehensive approach is needed to defeat terrorism.
This comprehensive approach comprises “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.” In pursuing this comprehensive approach, the ATA requires the State to build its capacity to prevent and combat terrorism by promoting equitable economic development, conflict management and post-conflict peacebuilding.
As such, the ATA meets international standards in fighting terrorism as it implements the Global Counter Terrorism Strategy of the United Nations composed of four pillars: 1) Addressing the conditions conducive to the spread of terrorism; 2) Preventing and combating terrorism; 3) Building states’ capacity to prevent and combat terrorism and to strengthen the role of the UN system in this regard; and, 4) Ensuring respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism.
In addition, the ATA has strong provisions that vigorously guarantee protection of human rights in the fight against terrorism. ATA even empowers the Commission of Human Rights to have “the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act” (Section 47).
The ATA also empowers Philippine courts, as it requires Regional Trial Courts to designate special anti-terrorism courts to speed up trials of terrorism-related cases. In the preventive custody of suspected terrorists for fourteen days (14), the law requires law enforcement agents to notify the nearest court to ensure that all rights of the persons under preventive custody are protected and observed.
Thus, the ATA fights terrorism with justice. The ATA even requires judicial authorization (Section 17) to uphold the rule of law in surveillance of terrorist suspects and interception and recording of communications pertaining to counterterrorism (Section 16). The ATA requires Philippine law enforcement authorities to get the written order from the Court of Appeals to undergo secret wiretap operations. The ATA also empowers the Court of Appeals in the proscription of terrorist organizations, associations or group of persons (Section 26).
Aside from empowering the judiciary, the ATA also provides oversight power to the Philippine Congress to establish Joint Oversight Committee (JOC) composed of twelve (12) members of the House of Representatives and the Philippine Senate including their chairperson of the Committee on Public Order and five (5) additional members from each House to be designated by the Senate President and the Speaker of the House. The JOC is mandated to ensure effective and accountable governance of the Philippine security sectors involved in combating terrorism, particularly the Anti-Terrorism Council (ATC).
The ATC is the main government agency tasked to implement the ATA, especially in protecting human rights while fighting terrorism. Thus, the ATC is mandated to implement programs on preventing and countering terrorism, preventing and combating terrorism, international affairs and capacity building for counterterrorism, and legal affairs, particularly on the protection of the victims of terrorism (Section 45).
The ATA also has adequate provisions that account law enforcement authorities for violation of human rights during counterterrorism operations. Section 30 provides the “Rights of a Person Under Custodial Detention”. Penalty for “Violation of the Rights of Detainee” is in Section 31 stating, “The penalty of imprisonment of ten (10) years shall be imposed upon any law enforcement agent or military personnel who has violated the rights of persons under their custody.”
The ATA absolutely prohibits “Torture or Coercion in Investigation and Interrogation” (Section 33). The ATA upholds the Anti-Torture Act of 2009, which prohibits the use of torture, and other cruel, inhumane and degrading treatment or punishment at any time during investigation or interrogation of a detained suspected terrorist.
Law enforcement agent who is proven guilty of using torture will be penalized not only under ATA but also under existing Philippines laws. Moreover, evidences gathered as a result of torture will be entirely inadmissible and cannot be used as evidence in any judicial, quasi-judicial, legislative or administrative investigation, and inquiry, proceeding or hearing.
Finally, the ATA is solely against terrorism and violent extremism. The ATA is not against activism, unionism, and other peaceful isms. In its definition of terrorism, the ATA clearly states that it does not include “ advocacy, protest, dissent, stoppage of work, industrial or mass action, and other exercises of civil and political rights” as long as those exercises will not cause “deaths or serious physical harm to person, to endanger a person’s life, or to create a serious risk to public safety” (Section 4).
In short, the ATA is not against human rights. The ATA is passed to fight terror in order to primarily protect human rights.
Civil society organizations, human rights associations, cause-oriented groups, workers activists, students, teachers, celebrities and common citizens criticizing the ATA should continue raising their concerns, worries, fears, and apprehensions to ensure that the spirit of the ATA to protect human rights is duly promoted and observed by the State.
*The author is the Chairman of the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR) and President of the Philippine Society for Intelligence and Security Studies (PSISS).
This analysis also appeared in Eurasia Review.
Photo Credit: As used in Eurasia Review. Philippine soldiers secure an area where they encountered Abu Sayyaf bandits in Patikul, Sulu province, on the day a long-held Dutch hostage was shot as he tried to escape the militants during a firefight, May 31, 2019. Joint Task Force Sulu Handout