Sponsorship Speech for the Anti-Terrorism Act of 2019 (18th Congress)

Thank you, Mr. President. Distinguished colleagues, I have the honor to report on the Senate floor Senate Bill No. 1083 entitled “An Act Amending Certain Provisions of Republic Act No. 9372,” otherwise Known as “An Act to Secure the State and Protect Our People from Terrorism,” as embodied in Committee Report No. 9 in substitution of Senate Bill Numbers 6, 21, and 30.

The amendment to the Human Security Act of 2007 is among the unfinished business of the 17th Congress. Almost eight months ago, I stood here to sponsor the Anti-Terrorism Act of 2019. Unfortunately, time was not on our side to deliberate on the said measure. Since then, the Filipino people have already been confronted by a number of terrorist attacks. As we speak, terrorist groups are probably planning their next attacks.

Mr. President, we have seen a mutation in the way terrorist groups perpetrate their evil acts since the passage of the Human Security Act. We have seen the phenomenon of terrorism become more complex and malevolent. We have seen how the ISIS’ tactics have changed as the terror group continues to lose ground in Iraq and Syria, how their members and sympathizers are taking the fight here in Southeast Asia.

Related: At a Glance: The Anti-Terrorism Act of 2019 (18th Congress)

Yes, Mr. President, right here in our backyard. In fact, they attempted to establish a caliphate as they laid siege in Marawi. Unsuccessful, we saw the recent spate of suicide bombings in our southern island provinces. Just over the weekend of September 15, at least 700 kilos of ammonium nitrate and an 81mm mortar fuse were recovered in Patikul, Sulu. Imagine the extent of damage that these huge amounts of explosive components could have done if these were not seized by our security forces.

Nations have made headway in amending or passing new anti-terrorism laws. Sadly, we could not say the same for our country. Since its enactment in 2007, our country’s legislative framework for anti-terrorism has remained toothless, to say the least.

Only in the Philippines – as the expression goes – where the anti-terror law has literally more provisions restricting our law enforcers than bringing terrorists to justice. That is not an exaggeration. Under the current Human Security Act, there are only four instances for terrorists to be prosecuted under the law. These are: commission of the actual crime of terrorism; conspiracy to commit terrorism; accomplice; and accessory. On the other hand, there are a total of 20 instances where law enforcers can be charged and penalized for violations of the Human Security Act. I believe this is not rational. Add to this the penalty of P500,000 per day to be paid by the government to anyone erroneously detained for possible terrorism.  This is not only irrational, Mr. President; it borders on the absurd.

Sadly, the Human Security Act has proven to fail in terms of its efficacy as an anti-terrorism measure. Despite the real and present threat presented by terrorist organizations, groups, and individuals to the Filipino people, we have had only one conviction for violation of the law. Imagine that, time and again, and seemingly more and more often, we hear of terrorist attacks happening, with a mounting number of those killed and injured. One conviction, Mr. President. That alone is enough proof of the ineptness and inadequacy of the current law.

It is therefore incumbent upon the legislature to amend the Human Security Act of 2007. Our country needs an anti-terror law that would provide a strong legal backbone to support our criminal justice response to terrorism, enable our law enforcers the much-needed tools to protect our people from the threat of terrorism, and at the same time, safeguard the rights of those accused of the crime. We need a strong legal structure that deals with terrorism in order to exact accountability, liability, and responsibility. Those who have committed, are about to commit, or are supporting those who commit terrorist acts should be prosecuted and penalized accordingly.

As a responsible member of the international community, there is a clear need for us to amend the Human Security Act in order to more effectively implement relevant United Nations Security Council Resolutions, meet international and regional standards on anti-terrorism laws, and fulfill state obligations as a United Nations member-state.

We need a legal framework for anti-terrorism that is clear, concise, balanced, and rational, which is the very backbone of this measure under consideration.

In the current definition of terrorism under the Human Security Act, three things are needed for the crime of terrorism to be proven: the cognate or predicate crime, intent, and motive. Let me elucidate. For predicate crimes, one must first prove that the act constitutes any of the predicate crimes listed in the law. Then the intent must be proven. According to the Human Security Act, the predicate crime should have been intended to sow and create a condition of widespread and extraordinary fear and panic among the populace. The law does not stop there, Mr. President. Contrary to what criminal law requires, terrorism as defined under the Human Security Act calls for another element: motive. The crime must have been motivated by the desire to coerce government to give in to an unlawful demand.

To illustrate, if I am a prosecutor, first I must prove the crime of murder, which is a violation of the Revised Penal Code. Afterwards, I must prove that the crime of murder was committed with the intent to sow and create widespread and extraordinary fear and panic among the populace. At the same time, I still have to prove that the motive behind the act is to coerce the government to give in to an unlawful demand. No wonder we do not normally file terrorism charges against suspected terrorists. What do we expect if it is more convenient and easier to get a conviction if the suspected terrorists are charged with any of the predicate crimes listed in the act without any danger of being imposed with a P500,000 fine in case of acquittal.

A case in point – just last September 10, 2018, the PNP was reported to have filed murder charges against 18 individuals for the Lamitan, Basilan bombing. All the accused are members of armed groups known to have pledged loyalty to the international terrorist group Islamic State (IS). Note that despite having committed clear acts of terrorism, the suspects were charged with murder.

Sure, if suspected terrorists are charged and found guilty of say, murder, they will still be put behind bars. So why the need to charge them with terrorism, if the penalty is the same? Because this has far-reaching implications on our overall criminal justice’s response to terrorism. Consequently, there is currently no legal basis for our penal institutions to introduce de-radicalization interventions to those involved in terror acts because they were not charged for the crime of terrorism.

Therefore, one of our main amendments we are introducing is the new definition of terrorist acts. Our Committee seeks to make the definition of terrorist acts concise, clear, and adherent with regional and international standards. If you would direct your attention to the slides, the definition of terrorist acts in the anti-terror laws of Malaysia, Thailand, Sri Lanka, and Australia contain three main elements: the Acts that would fall under the definition, the Intent of said Acts, as well as Safeguards. And thus, we propose to do away with the element of ‘motive’ and define terrorist acts to cover the following unlawful Acts, in or outside the Philippines, regardless of its stage of execution:

  1. Attacks that cause death or serious bodily injury to any person, or endangers a person’s life;
  2. Attacks that cause extensive damage or destruction to a government or public facility, critical infrastructure, public place or private property likely to endanger human life or result in major economic loss;
  3. Manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of biological or chemical weapons, as well as research into, and development of biological and chemical weapons;
  4. Release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; and
  5. Threat to commit any of the abovementioned acts.

Note that we include the phrase, “in or outside the Philippines,” Mr. President, as an acknowledgment of the extraterritorial nature of the crime of terrorism. Accordingly, we are adopting the principle of law that “permits a state to exercise jurisdiction over perpetrators of certain offenses considered particularly heinous or harmful to mankind, regardless of any nexus the state may have with the offense, the offender, or the victim.”  This however does not create an obligation on the part of the Philippines to take cognizance of terrorist acts committed abroad.  It merely gives us the authority to take cognizance of a terrorist act when needed, such as when a terrorist act has been committed abroad by an individual and such person comes here to try to evade prosecution abroad.  With our proposed amendment, we can be sure that whether the terrorist act is committed here or abroad, the perpetrator shall be within the arms of the law once he or she comes to our country.

This resonates with a proposed new section on Foreign Terrorist Fighters, which I will discuss later.

With respect to the element of Intent, it can be inferred from the following amendment on the definition:  When the purpose of such act, by its nature and context, is to intimidate, put in fear, force or induce the government or any international organization, or the public to do or to abstain from doing any act, or seriously destabilize or destroy the fundamental political, economic or social structures of the country, or create a public emergency or undermine public safety, shall be guilty of committing a Terrorist Act, and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known as “An Act Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, as Amended, Otherwise Known as the Revised Penal Code.”

And equally important, the Safeguards:

Terrorist Acts defined under this Section shall not cover legitimate exercises of the freedom of expression and to peaceably assemble, including but not limited to engaging in advocacy, protest, dissent or mass action where a person does not have the intention to use or urge the use of force or violence or cause harm to others.

Moreover, the Human Security Act does nothing to deter participation in the plotting of terrorist acts. And so we propose to penalize the following preparatory acts:

* Planning, Training, Preparing and Facilitating the Commission of a Terrorist Act;

* Attempt or Conspiracy to Commit a Terrorist Act;

* Proposal to Commit Terrorist Acts;

* Inciting to Commit Terrorist Acts;

* Recruitment to and Membership in a Terrorist Organization;

* Providing Material Support to Terrorists; and

* Being an Accomplice or Accessory to a Terrorist Act, regardless of its stage of execution.

At this point Mr. President, allow me to discuss in detail the transnational nature of terrorism. As a responsible member of the community of nations, we are duty-bound to improve upon our laws towards ensuring we are able to implement UN Security Council Resolutions, meet international standards, and fulfill state obligations with the United Nations.

Thus, we are inserting a provision on Foreign Terrorist Fighters, to cover Filipinos who may join and fight with terrorist organizations outside the Philippines. The proposed Anti-Terrorism Act establishes the Philippine state’s jurisdiction over Filipino nationals who commit terrorist offenses outside of Philippine jurisdiction. It also provides measures to ensure foreign terrorists do not use our motherland as a transit point, a safe haven to plan and train for terrorist attacks in other countries, or as a source of new recruits. Mr. President, we send a strong message to them: You are not welcome here. If you dare set foot in our country, you will be dealt with the full power of our laws.

Mr. President, our proposal is to deem the following acts unlawful and be punished with the penalty of life imprisonment without the benefit of parole and the benefits of R.A. No. 10592:

* For any person to travel or attempt to travel to a state other than his/her state of residence or nationality, for the purpose of perpetrating, planning, or preparing for, or participating in terrorist acts, or providing or receiving terrorist training;

* For any person to organize or facilitate the travel of individuals who travel to a state other than their states of residence or nationality for the purpose of perpetrating, planning, training, or preparing for, or participating in terrorist acts, or providing or receiving terrorist training, including acts of recruitment; and

* For any person residing abroad who comes to the Philippines to participate in perpetrating, planning, training, or preparing for, or participating in terrorist acts or provide support for or facilitate terrorist training here or abroad.

Mr. President, our unwavering resolve to fight terrorism also entails the removal of the restrictive and absurd fine of P500,000 per day for erroneous detention. Moreover, law enforcement personnel are provided with the capacity to build airtight cases against the perpetrators of such vile acts. We also strengthen the Anti-Terrorism Council (ATC) by increasing its membership to include the Chief Minister of the Bangsamoro Autonomous Region in Muslim Mindanao. We also designate the ATC Program Management Center as the main coordinating and program management arm of the Council.

The amendments provide for a longer judicial authorization for the conduct of surveillance, 60 days to be specific, which may be further lengthened to another non-extendable period of 30 days. As a safeguard, the authority to issue Judicial Authorization for Surveillance is retained with the Court of Appeals.

We also seek to extend the number of days a suspected person can be detained without a warrant of arrest from the current three days to now a non-extendible period of 14 working days. This increase still keeps Philippine legislation within the moderate/lenient bracket. Both Australia and Sri Lanka, in their proposed amendment to their Anti-Terror Law, allow for 14 days’ detention without warrant of arrest. Bangladesh allows for 15 days while Indonesia for 21 days, Pakistan for 30 days, Malaysia for 59 days, and Singapore for 730 days.

Mr. President, I would also like to add that some of our neighboring countries allow for the extension of detention periods without warrant. To illustrate, Thailand’s initial period of detention without warrant is seven days but this can be extended up to 30 days. Indonesia allows for extension up to 120 additional days, and Malaysia up to two years. Both The Maldives and Singapore provide for the indefinite period of detention of suspects deemed to be threats to national security.

To safeguard against abuse, we are proposing to require the arresting officer to establish the existence of the following circumstances:

  1. That the further detention of the person is necessary to preserve evidence related to the terrorist act or to complete the investigation;
  2. That the further detention of the person/s is necessary to prevent the commission of another terrorist act; and
  3. That the investigation is being conducted properly and without delay.

Moreover, the proposed Anti-Terrorism Act maintains the added safeguards of mandating the arresting officer to:

  1. Notify in writing the judge of the court nearest the place of apprehension of the following facts: a) time, date and manner of arrest; b) location or locations of the detained suspect/s; and c) physical and mental condition of the detained suspect/s; and
  2. Furnish the ATC of the written notice given to the judge. Mr. President, the amendments also seek to ensure persons charged under the Anti-Terrorism Act are appropriately managed and taken care of inside our jail and corrections facilities. We know that prisons can unintentionally provide the perfect venue for terrorists to recruit, plan, and build their networks. The amendments mandate the Bureau of Jail Management and Penology and the Bureau of Corrections to establish a system of assessment and classification for persons charged with committing terrorist and preparatory acts. The said system shall provide for the proper management, handling and interventions for said persons detained. We would like to emphasize that any law enforcement or military personnel found to have violated the rights of persons accused under the said Act shall be penalized with imprisonment ranging from 10 years and 1 day to 12 years.

This amendatory measure also subscribes to the saying that justice delayed is justice denied. And so, to ensure the speedy disposition of cases filed under the proposed Anti-Terrorism Act we include new provisions regarding the trial of persons charged under this Act. We propose the designation of certain Regional Trial Courts as Anti-Terror Courts whose jurisdiction will be exclusively limited to try violations of the proposed Anti-Terrorism Act. We have likewise included a provision allowing the use of videoconferencing technology for persons charged under this Act to be able to, as well as other witnesses, to remotely appear and testify.

Finally, learning from the Philippine experience in proscribing the Abu Sayyaf group as a terrorist organization, which lagged in our courts for more than 10 years, we are proposing an amendment regarding the issuance of a preliminary order of proscription.  Under our proposal, upon a determination that probable cause exists, a regional trial court judge shall issue a preliminary order of proscription within 72 hours from the filing of application.  After which, the court shall have a period of six months from the filing of verified application within which to determine, through a summary hearing, whether to set aside, modify or make permanent such preliminary order of proscription.

May I also remind my esteemed colleagues that amending the Human Security Act means an end to martial law in Mindanao. Though analysis of the situation shows that it is an empty martial law, “psywar” to even quote Defense Secretary Lorenzana, the term still has a lingering threat to the minds of the Filipino people, being a country severely traumatized and still being haunted by the horrors of Martial Law decades ago. The Armed Forces of the Philippines had repeatedly made a commitment to end martial law in Mindanao if the measure is passed.

Lastly, Mr. President, I emphasize that amending the Human Security Act does not take away the intent and spirit of the human rights safeguards provided by RA 9372 for persons accused of Terrorist Acts and Preparatory Acts. Furthermore, by amending RA 9372, we ensure that our anti-terror law is clear, concise, and balanced. We strive to provide the state a strong legal backbone to protect the life, liberty and property of the Filipino people against the evils of terrorism.

Mr. President, I have said it then and I will say it again: “A person may cause evil to others not only by his actions but by his inactions, and in either case he is justly accountable to them for the injury.” I therefore seek with utmost urgency the passage of the Anti-Terrorism Act, seeking to amend Republic Act 9372 or the Human Security Act of 2007.

Thank you very much, Mr. President.