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On the ATB: Beyond Constitutionality

The current public debate in media and occasionally in the streets, as well as the reported executive department review of the new Anti-Terrorism Bill (ATB) presented by the leaders of both houses of Congress to the President for him to sign it into law, can be said to be focused on its constitutionality. Opponents have already announced their intentions to question the new law’s constitutionality before the Supreme Court (SC) once it has been enacted by presidential approval. Defenders in turn challenge them to just do so, in their desire to get it enacted already, confident that the SC will uphold its constitutionality. As if constitutionality is all there is to it.

Of course, constitutionality and the even broader principle of legality are important. Indeed, it can be said to include concerns of preserving Philippine democracy, fundamental freedoms, civil liberties and human rights – reflected in such basic constitutional concepts and principles as a democratic State, the separation of powers, checks and balances, the Bill of Rights and even adherence to international law. The latter itself has a long tradition of treaties and institutions on human rights and a more recent, growing set of treaties and institutions on terrorism. The latter might also be said to be covered by such constitutional provisions as the primary duty of the Government to protect the people, the maintenance of peace and order, and the protection of life, liberty and property, essential for the enjoyment by all the people of the blessings of democracy.

Still, there is more to anti-terrorism legislation than constitutionality. Beyond or apart from but adjunct to this is the wisdom, correctness and efficacy of the law for its intended purpose of protecting the people from terrorism. Stated otherwise, the question is not only: is it constitutional? The question is also: does or will it serve its intended or at least declared purpose? If we go by the ATB (Senate Bill No. 1083/ House Bill No. 1083) itself, its Sec. 2 Declaration of Policy contains these parameters:

> “… to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.”

>“In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.”

>“The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism…”

>“Such measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict…”

> “… shall not prejudice respect for human rights which shall be absolute and protected at all times.”

These are progressive policies by any measure. Incidentally, this is the same pareho Sec. 2 Declaration of Policy in the sought to be repealed Human Security Act (HSA) of 2007. Much of the credit for progressive policy formulations there must be given to the late Senator Aquilino Q. Pimentel, Jr. Using the HSA/ATB Declaration of Policy as the standard for evaluating the ATB, three things come out:

1. The ATB mainly deals with the criminalization of terrorism. The bulk or the meat of the law covers the “legal means” in the “fight against terrorism,” defining and penalizing terrorism and adjunct crimes, providing for measures of surveillance, interception, designation, proscription, detention, investigation and freezing of bank deposits, continuous trial, special anti-terror courts, among others. Most importantly, the Sec. 4 definition of terrorism, which is the proper starting point in the fight against it, appears to be in accord with United Nations (UN) instruments on the matter. It was the late UN Secretary-General Kofi Annan who called “for a definition of terrorism which would make it clear that any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.”

2. There is at least in “the letter of the law” a number of provisions in the ATB that appear to effectuate the Declaration of Policy’s double upholding of constitutional and “human rights which shall be absolute and protected at all times.” It is interesting to note that the lead agency Anti-Terrorism Council (ATC) in its defining Sec. 45 includes a “Legal affairs program” which “shall ensure respect for human rights and adherence to the rule of law as the fundamental bases of the fight against terrorism.” Again, it was Annan who once said, “Upholding human rights is not merely compatible with a successful counter-terrorism strategy. It is an essential element of it.” One might describe this as a human rights approach or a rights-based approach to terrorism. After all, it has been said that “There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights.” But there also serious concerns that such rights, and the spirit of upholding constitutional and human rights, would be undermined by a number of other provisions in the ATB such as most notably the Sec. 29 Detention Without Judicial Warrant of Arrest on mere suspicion of committing terrorist acts or of membership in a proscribed terrorist organization.

3. The ATB Declaration of Policy speaks of, quite notably, of “the fight against terrorism requiring a comprehensive approach, comprising political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism … Such measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict…” It appears that this “comprehensive approach” is left for the ATC under Sec. 45 to develop “focus programs” of four kinds: “(a) Preventing and countering violent extremism program; (b) Preventing and combatting terrorism program; (c) International affairs and capacity building program; and (d) Legal affairs program.” This presentation of four “focus programs” is new, as it is not found in the counterpart Sec. 53 of the HSA. The ATB or Congress has provided only broad strokes of the four “focus programs.” The one which seeks to address the root causes of terrorism is the “(a) Preventing and countering violent extremism program.” To “address the conditions conducive to the spread of terrorism… It shall identify, integrate, and synchronize all government and non-government initiatives and resources to prevent radicalization and violent extremism, thus reinforce and expand an after-care program.” Off-hand, this does not appear to us to be enough to address the root causes of terrorism. Not to belittle the expert inputs and legislative deliberation that may have gone into and resulted in this policy guidance for the ATC but I believe there can be more inputs and deliberation for a better programmatic guidance… if we give it more time. If the law is now rushed for passage, the short-term recourse to the SC will cover only at most constitutionality issues, it will not cover the other important issues we mentioned earlier of the wisdom, correctness and efficacy of the law for its intended purpose of protecting the people from terrorism. That will have to wait for another, longer time in the future for legislative oversight review and amendments. As we had said, the Implementing Rules and Regulations cannot fill the substantive gaps in the law itself.

Though the ATB Declaration of Policy does not state it, there is reason to believe that for certain of its proponents the real target of the ATB is the domestic proscription of the Communist Party of the Philippines (CPP)-New People’s Army (NPA) as a terrorist organization, as part of a “legal offensive” against it under the auspices of a National Plan to End Local Communist Armed Conflict (NP-ELCAC). Apart from questions of transparency about this objective if indeed it is of the ATB, the questions of wisdom, correctness and efficacy might also be asked. IF this is the underlying motivation for the ATB, does it do justice to the broader and distinct fight against terrorism? On the other hand, is anti-terrorism the right approach (even if it is just one of 12 lines of effort) to end the local communist armed conflict? As it is, President Duterte’s Proclamation No. 374 dated 5 December 2017 had already “declar[ed] the CPP-NPA as an entity designated and/or identified as a terrorist organization pursuant to Section 3(e)(1) of RA No. 10168” (The Terrorism Financing Prevention and Suppression Act of 2012).” It cites as basis for this that “on 09 August 2002, the United States of America (USA) designated the CPP-NPA as a foreign terrorist organization (FTO) and to date continues to include the CPP-NPA in its list of FTOs.”

Once upon a time, there were President Ramos’ Executive Order (EO) No. 125 dated 15 September 1993 and then President Arroyo’s EO No. 3 dated 28 February 2001, both on the Government’s Comprehensive Peace Efforts, developed on the basis of nationwide public consultations in 1992-93 of the National Unification Commission (NUC). Both EOs adopted as government policy the “Six Paths to Peace,” among which were the “Pursuit of Social, Economic and Political Reforms… aimed at addressing the root causes of internal armed conflicts…” and the “Peaceful, Negotiated Settlement with the Different Rebel Groups.” That now seems like ages ago. And now some relevant questions come to mind: Is the CPP-NPA (still) a “rebel group”? Or is it (already) a “terrorist organization”? Or is it both (the categories are not mutually exclusive)? Or is it what the CPP-NPA claims to be “as a co-belligerent in the civil war in the Philippines”? The correct characterization should lead to the correct response. Clearly, questions like these and many others relevant to the ATB are beyond the pale of constitutionality. We should not limit this important discourse to this. -------------------------------- SOLIMAN M. SANTOS, JR. is presently a Judge of the Regional Trial Court of Naga City, Camarines Sur. He is a long-time human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer; and author of a number of books.

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