Speech at the Philippine Army Multi-Sector Advisory Board Summit 2020
My distinguished colleague and chairperson of the Philippine Army MSAB Governance Committee, Sen. Manny Pacquiao; Philippine Army Commanding General Lt. Gen Cirilito Sobejana; Department of the Interior and Local Government (DILG) Assistant Secretary Alexander Macario; Davao de Oro Governor Tyron Uy; Vice Commander of the Philippine Army Reynaldo Aquino; members of the Philippine Army Multi-Sector Advisory Board; men and women of the Hukbong Katihan ng Pilipinas, a pleasant morning to all.
There are two broad categories of evil according to political philosopher Joel Feinberg: one consists of unfortunate circumstances, such as the existence of killer diseases that are not caused by human misconduct, indifference, or error. The second contains all the evils that are foreseeable and preventable consequences of human beings’ actions.
Tragically for us, in this very day and age, we are facing these two evils. In late August of this year, as the whole country suffers in silent fear and anxiety from the Covid-19 infection, two heavy explosions were set off by suicide bombers in Jolo, Sulu; the first blast instantly killed soldiers and civilians who were on a COVID-19 humanitarian mission, while the second explosion hit near the church which was the same site of a suicide bombing only a year ago. At least seven soldiers, one police officer, and six civilians were killed. For a while, critics of the Anti-Terrorism Law – those who questioned the timing of its passage when we should be addressing the pandemic took a break, probably realizing what we have been saying all along: terrorism knows no timing nor borders.
As members of the regular force at the frontline, you know the atrocities of terrorism to an extent more concrete and personal. Many times when you had brushes with death and breathed alive again, the worst thing is not the feeling of fear nor anger. It is the feeling of loss – loss from senseless violence, indiscriminate killings, and corrupt ideologies.
Well within our borders, the acts of terrorism are utterly atrocious, beyond all bounds of civility, and incomprehensible in character. In 2019 alone, the Action on Armed Violence (AOAV) named the Philippines as one of the most affected countries and territories with the most number of casualties and injuries from explosive devices. It records 360 casualties from explosive violence across the country. This figure constantly rises as we fail to address the weakness of our response to terrorism.
With the signing of the Republic Act No. 11479, otherwise known as the Anti-Terrorism Act of 2020, which effectively repealed Republic Act 9372 or the Human Security Act of 2007, we made a bold statement against all acts of terror. In fact, recent operations of our government forces have already made headway on our robust anti-terrorism campaign. In September of this year alone, 15 Abu Sayyaf Group-affiliated terrorists were neutralized in focused military operations while 17 others had surrendered to the Western Mindanao Command and Eastern Mindanao Command. A Filipino-American kidnap victim was also rescued from the bandits on September 30.
We also welcome the string of successes in the capture of Abu Sayyaf members last weekend, particularly, the arrest of a Coast Guard personnel and two other alleged members of the Abu Sayyaf Group under Mundi Sawadjaan during an operation on Friday; the capture of suspected Indonesian suicide bomber and two others in Sulu on Saturday; and, the arrest of a senior ASG member on Sunday. These encouraging results show us that the Anti-Terrorism Law is already gaining ground pending the publication of its Implementing Rules and Regulation (IRR), which is finally scheduled to be released tomorrow, October 14. Needless to say, the ball now rests in your hands as law enforcers to judiciously and effectively implement the measure.
In retrospect, the whole time we were debating in plenary, the Bill of Rights as enshrined in our Constitution remained foremost in my mind, and I’m quite certain, in the consciousness of my colleagues, as well. Subliminal or not, we were mindful that the measure we were about to pass would face challenges from those who may not fully agree with the wisdom and rationale of having a more effective legal weapon that is at par with those in other jurisdictions in fighting and preventing terrorism. I thought it was time that our country should stop being the safe haven of terrorists in Asia, primarily because of our weak laws against acts of terrorism.
To say the least, we won the legislative battleground – with the mission of giving more teeth and better foothold for our law enforcers against terrorism and its perpetrators, as well as providing safeguards to protect the fundamental civil and human rights of even the most probable suspected terrorists.
At the outset, due to the sub judice rule, I would like to veer away from discussing the merits of the pending cases filed in the Supreme Court against the Anti-Terrorism Act of 2020 and to simply narrate from my account as a former military officer and law enforcer and now legislator, the need for a more robust anti-terrorism measure.
I can say with certainty that without a strong legal instrument, no amount of ammunition, tenacity nor military strength will win us the war against terror. Without effective laws, terror looms. This had been our case for 13 years, when the now-repealed Human Security Act of 2007 proved to be toothless and a dead-letter law.
In fact, in its 13 years of existence, it had only been utilized twice: first was the proscription of the Abu Sayyaf as a terrorist organization by a Basilan court in 2015, and second was the conviction of Nur Sapian by a Taguig City RTC in connection with the Marawi siege in 2017.
Just two weeks ago, another Taguig Regional Trial Court handed its decision to the cases filed against suspects in the 2016 bombing of a night market in Davao City that killed 15 people and wounded 69 others. The Court acquitted all of the accused members of the Islamic State-linked Maute group of the crime of terrorism under the Human Security Act of 2007. Instead, 11 men were found ‘guilty beyond reasonable doubt for the complex crime of multiple murder and multiple attempted murder.’ You may wonder and ask, why multiple murder and not for acts of terrorism?
As law enforcers, you may be on your toes in catching these perpetrators, but to convict them for the crime of terrorism is a different roadblock altogether. In the mind of a law enforcement officer, if suspected terrorists are charged and found guilty of say, murder or illegal possession of explosives, they will still be put behind bars. So why the need to charge them with terrorism if the penalty is the same but the odds are not even?
The risk of being fined with an exorbitant amount of five hundred thousand pesos (P500,000.00) for each day that the suspected terrorist was ‘wrongfully detained’ is admittedly another factor that tied the hands of our law enforcers in enforcing the Human Security Act of 2007.
Worse, these have a far more complicated implication to our criminal justice system. In fact, as of October 2018, the Bureau of Jail Management and Penology (BJMP) reported 735 high-risk persons deprived of liberty (PDLs) incarcerated in their facilities that are suspected members of terrorist organizations. However, they were not in jail for violations of the now-repealed Human Security Act. They were in prison for other crimes penalized under the Revised Penal Code. Hence, instead of implementing an efficient ‘deradicalization’ program by isolating these terrorists from common criminals, the tables are turned: common criminals are radicalized to become potential terrorists once they are out of detention.
Hence, to remedy the situation, we sought to give our law enforcers a strong foothold to enforce the anti-terror law to its full extent. The so-called Sword of Damocles in the form of an excessive fine to be awarded to the suspect for an unproven charge of terrorism no longer hangs over the heads of our law enforcement authorities.
Nonetheless, we ensured that a person illegally charged has multitudes of recourse, such as suing for civil damages under existing laws.
Under the repealed Human Security Act, literally, there were more provisions restricting our law enforcers from performing their duties in enforcing the law than bringing terrorists to justice.
Hence, in crafting the Anti-Terrorism Act of 2020, we recognized that terrorism, in all forms and manifestations, constitutes one of the most serious threats to international peace and security, and that any acts of terrorism are utterly criminal and unjustifiable — whenever, wherever and by whomsoever committed. These nature and concept of terrorism are stated in several United Nations Security Council Resolutions (UNSCR), to wit: UNSCR Nos. 1373, 1624, and 2396, to name a few.
The Anti-Terrorism Law has also made the definition of terrorist acts more concise, clear, and adherent to 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 the said Acts, as well as Safeguards.
And thus, the new law excludes the element of ‘motive’ and defines terrorist acts to cover the following unlawful Acts, in or outside the Philippines, regardless of its stage of execution.
Further, under the new Anti-Terrorism Law, we penalize ‘inchoate offenses,’ or preparatory acts that are deemed criminal even without the actual harm being done, provided that the harm that would have occurred is one the law tries to prevent, such as terrorism. Preparatory acts, as a rule, are not punishable unless these acts are punishable in themselves as independent crimes. It is for this same reason that the Revised Penal Code explicitly provides that the conspiracy and proposal to commit rebellion, treason, insurrection, and coup d’etat are indeed crimes. Thus, we added planning, training, preparing, and facilitating the commission of terrorism under Section 6 as ‘inchoate offenses’ punishable under the law because these acts are being performed towards the accomplishment of the desired purpose, that is, terrorism. Penalizing inchoate offense is made pursuant to the mandate under UNSCR No. 1373, which states that planning and preparation, among others, are established as serious criminal offenses in domestic laws and that the punishment should duly reflect the seriousness of such terrorist acts.
Let me cite a very recent example: In the early Saturday of October 10, the 11th Infantry Division and the Joint Task Force Sulu arrested a suspected suicide bomber believed to be the daughter of the Indonesian couple behind the deadly 2019 Jolo Cathedral bombing, and two other persons allegedly linked to the Abu Sayyaf Group. Seized during the operation were an improvised explosive device disguised as a vest, two pieces of container pipes, a piece of a nine-volt battery, a switch button, and a detonation cord, among others. This is one example of an inchoate offense made punishable under the new Anti-Terrorism Law. By including inchoate offenses as punishable acts under the new measure, we are criminalizing the foregoing acts of the arrested suspects which include planning, preparation and facilitation of terrorism and possession of objects with knowledge or intent that these are to be used in the preparation for the commission of terrorism. Last night, I was informed by the police investigators that Provincial Prosecutor Pierreangeli Ledesma of Sulu advised against the filing of cases under the new law pending the release of the IRR and instead recommended the filing of a case in violation of RA 9516 or illegal possession of explosives. Immediately, I contacted Justice Secretary Menardo Guevarra, who told me that he stands by his earlier pronouncement that the Anti-Terrorism Law is already in effect upon its publication on July 18, 2020, and its application is not dependent upon the issuance of the IRR. He promised to contact the Prosecutor General to issue the proper guidance, particularly to Provincial Prosecutor Ledesma in this regard.
As I mentioned earlier, this provision is absent in the repealed Human Security Act of 2007 which only punished ‘conspiracy to commit terrorism’. Lack of penalties for other inchoate offenses in the old law, as well as for recruitment, incitement, possession of material related to terrorism or terrorist acts, financing terrorism, among others, made our campaign against terrorism unresponsive and weak. Malaysia, Thailand, Indonesia, Bangladesh and Australia regard these acts as criminal offenses and punish them with varying levels of imprisonment.
As legislators, we adhere to the principle of fellowship by forging international understanding and peace among our community of nations. This includes harmonizing our laws with global standards against terrorism. The repealed Human Security Act restricted us from doing so. Without legislative reforms, we will continue to harbor terrorists within our borders. We will consciously allow our lands to be the safe haven of terrorism. Lest we forget, as we speak, our country ranks 9th among countries in the world that were most negatively impacted by terrorism based on the Global Terrorism Index released in 2019.
Fact is, our old law was weak because we did not have the wherewithal and the needed mechanism to stop the flow and use of funds or assets of terrorist groups. We had strategic deficiency in terms of the domestic designation process of terrorist individuals and organizations as provided by the United Nations Security Council Resolution 1373. Hence, the new Law intends to address this gap through the provisions laid down by Section 25, entitled ‘Designation of Terrorist Individual, Groups of Persons, Organizations or Associations.’
Designation serves as a mechanism to trigger the enforcement of targeted financial sanctions lacking in the Human Security Act of 2007. This mechanism, made possible only through an order issued by the Anti-Money Laundering Council (AMLC), could stop the flow and use of funds or assets to terrorist organizations or associations.
More so, ‘freezing of assets’ under the measure is consistent with the existing provisions of Section 11 of RA 10168, otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012. The provision also complies with the United Nations Security Council Resolution 1373 and is intended for the purpose of preventing designated terrorists from accessing their funding by freezing their accounts.
A person so designated is not however without any recourse. He is allowed under this measure to question the freeze order by filing the necessary petition with the Court of Appeals. We even added a provision to allow partial withdrawal of frozen funds/assets for humanitarian reasons as well as for reasonable family needs and sustenance of the designated person.
To be clear, designation is administrative and not criminal in nature. On the other hand, Proscription under Section 26 of the new law requires court intervention where a full-blown hearing will take place before an organization may be declared and proscribed as a terrorist organization. It may be done only upon an application filed by the Department of Justice before the Court of Appeals, with due notice and opportunity to be heard given to the suspected terrorist groups or organizations and associations. Even membership in a proscribed terrorist organization goes through the same due process of law where the burden is on the DOJ to prove.
As members of our country’s security forces, we put a high premium on the ability to gather intelligence information in order to provide protection and security to our communities effectively. To find a compromise between enhancing our intelligence gathering while still preserving our people’s right to privacy, the Law allows the Anti-Terrorism Council to authorize a law enforcement agent or military personnel to file an ex parte application with the Court of Appeals to conduct electronic and technical surveillance of a suspected terrorist group or individual which, when granted by the Court of Appeals, would last for 60 days extendible to another period of 30 days.
This would give our law enforcers enough time not only to build an airtight case against suspected terrorists but also to monitor and keep track of any sleeper cells these terrorists may have in the pursuit of their evil design.
Further, the Anti-Terrorism Law extends the number of days a suspected person can be detained without a warrant of arrest from the current three (3) days under the Human Security Act to a period of fourteen (14) working days, extendible to another ten (10) days. To emphasize, we can find the allowable periods for detention in Article 125 of the Revised Penal Code, a general law that can be amended by the Congress. That said, the detention of up to 14 days, provided in the Anti-Terrorism Law, and its extension to another 10 days is to be treated as a policy decision of Congress after considering the unique nature and effects of the crime of terrorism as thoroughly explained during our public hearings and in plenary session.
Granting the complexities and seriousness of the crime, you and I would agree that our law enforcers and investigators need adequate time to obtain and collate the necessary and sufficient evidence for the conviction of suspected terrorists; absence of which will restrict and undermine our counter-terrorism measures, often resulting in acquittal due to insufficiency of evidence.
Allow me to emphasize that the 14-day detention period still keeps Philippine legislation within the moderate/lenient bracket (as seen in the slides). As law enforcers, we know the glaring fallacy in claiming that ‘what looks, smells and kills like terrorism is terrorism.’ Hence, in expanding its definition, we made sure that political dissent, freedom of speech and expression as guaranteed by the Bill of Rights would neither be stifled nor restricted.
In all our discourses in understanding the definition of ‘terrorism,’ our general guide should be ACT + PURPOSE. We should bear in mind that ‘terrorism’ refers to both the commission of any of the terrorist ACTS to fulfill any of the PURPOSES mentioned under the law.
Respect for the rule of law and constitutional liberties such as right to due process should serve as the backbone of effective anti-terrorism legislation.
Let me share with you: I, as well as my legislative staff, in further consultation with counter-terrorism experts both local and foreign, notably from Australia and the United States, unarguably countries with strong democracies, burned the proverbial midnight oils so we could come up with a good committee report and prepare me to ably defend the measure on the Senate floor. As the principal sponsor and one of the authors of several anti-terrorism bills in the 18th Congress, I had to patiently and confidently respond to intense interpellations for seven straight session days, and another three days of back-and-forth period of amendments by many of my colleagues including distinguished members of the Bar such as Senators Franklin Drilon, himself a Bar placer, Aquilino ‘Koko’ Pimentel III, a Bar top-notcher, Francis ‘Tol’ Tolentino, Richard ‘Dick’ Gordon, Pia Cayetano, Francis ‘Kiko’ Pangilinan, to name some of them.
These are all to ensure that we plug the loopholes of our anti-terrorism measure. I trust that with a more robust anti-terrorism measure, we will further boost the morale of our government forces, including our brave men and women from the Philippine Army, to fight our collective battle at the frontlines with more tenacity and strength for our nation and countrymen.
Remember that we all adhere to the one clear message of the Anti-Terrorism Act of 2020: To terrorists who commit crimes against the Filipino people, against humanity, and against the Law of Nations, our policy will be one that is swift and effective.
Again, thank you and mabuhay ang Hukbong Katihan ng Pilipinas.