Speech on the Anti-Terrorism Bill at the Webinar of the Management Association of the Philippines

Speeches

June 24, 2020 - The Management Association of the Philippines (MAP) President Francis Lim, National Issues Committee Chair Rizalina Mantaring, respected members of this great association, ladies and gentlemen, good afternoon.

When two great legal minds clash, not symmetrically, nor tangentially, but squarely, as in head-on, what do laymen like me and probably some of you in this virtual gathering, do?

I am referring to your last week’s guest, retired Supreme Court Senior Associate Justice Antonio Carpio on the one hand, and on the other – an equally eminent legal eagle, a former Justice Secretary, and also my colleague in the Senate – Minority Leader Franklin Drilon. Let me explain.

The records of the Senate archives will tell us that the phrase “having been duly authorized in writing by the Anti-Terrorism Council…” under Section 29, which is now being challenged as unconstitutional by Justice Carpio as well as IBP President Domingo Egon Cayosa, was actually Senator Franklin Drilon’s amendment in the Human Security Act of 2007, later accepted by another giant in the legal profession, the sponsor of the Human Security Act of 2007, former Senator Juan Ponce Enrile, and is merely being retained in the proposed Anti-Terrorism Act of 2020.

The legislative intent of the bill is clearly to premise Section 29 on a valid warrantless arrest, as also lawfully allowed in other crimes that are not related to terrorism. The provision is compliant with Rule 113, Section 5 of the Revised Rules of Court. Under the proposed Anti-Terrorism Law, a warrantless arrest is allowed under the same circumstances as in any other crime, by virtue of: (a) in flagrante delicto arrest; and (b) a hot pursuit arrest.

It was never the intention of Congress to amend the rules on warrantless arrest or what we also refer to as a citizen’s arrest.

The same phrase contained in Section 18, (entitled “Period of Detention in the Event of an Actual or Imminent Terrorist Attack”) of the Human Security Act of 2007 and which has the same language of Section 29 of the Anti-Terrorism Bill, was voted favorably by a number of distinguished legal experts and luminaries, among others, both in the Senate and the House of Representatives.

Without taking anything away from the honorable Justice Carpio, who I respect and admire, I would prefer to go along with my former and present colleagues in the Congress of the Republic of the Philippines, not only because of the power of overwhelming numbers, but more so, I am absolutely certain these legislators as well as their respective legislative staffs and legal researchers had diligently studied, researched, and scrutinized a landmark measure like the Human Security Act of 2007 before casting their affirmative votes, as this is the usual and time-honored practice in legislative work. Nothing less could be said of the Anti-Terrorism Act of 2020 as proposed.

I must tell you this: my own legislative staff – all six of them, lawyers in their own right, and 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 to help me ably defend this measure on the Senate floor for seven straight session days of intense interpellations and three days of back-and-forth period of amendments by many of my colleagues, including such distinguished members of the Bar as eminently qualified as Justice Carpio and Atty. Cayosa, such as Senators Drilon, himself a Bar placer; Koko Pimentel, a Bar topnotcher; Francis Tolentino, Richard Gordon, to name some of them.

Justice Carpio has acknowledged that Section 18, similarly worded as Section 29 of the Anti-Terror Bill, has NOT been ruled unconstitutional by the High Court. Sadly, he said it in another way, the reason of which he alone would know.

For the life of me, I could not understand why the honorable Justice thinks this argument works for his cause when the Supreme Court is clear on the matter of “presumption of constitutionality.” To underscore, the Supreme Court, in Tano vs Socrates, GR No. 110249 dated August 21, 1997 ruled, and I quote: “It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality. To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. Where doubt exists, even if well-founded, there can be no finding of unconstitutionality. To doubt is to sustain.” It is difficult to understand why a former justice would not know such basic and significant jurisprudence.

Anyway, to allay any fears, Section 29 ensures safeguards to avoid abuses by requiring a written notification to be immediately given to the judge of the court nearest to the place of arrest, with copy furnished to the Anti-Terrorism Council. We have proposed that the same notification be also provided to the Commission on Human Rights – a requirement not present under the Human Security Act of 2007.

On its face, it may appear downright stupid and a virtual disaster to be locking horns with a recently retired justice of the Supreme Court, hailed by some of his colleagues in the bench as “the best Chief Justice they never had,” and the incumbent president of the Integrated Bar of the Philippines, Atty. Cayosa, especially on legal matters, even touching on some very delicate constitutional issues. Worse, it is not a three-cornered debate, but two against one who is not even a lawyer.

But why am I doing this, and gamely at that? My explanation is simple enough. Somehow, I have this habit of standing my ground when I am backed by hard facts to argue my case. I don’t stand down when I know I am right.

In the same talk during a webinar last June 17, the honorable Justice Carpio emphasized the inviolable fundamental rights that no less than the Constitution has clearly expressed: first is that only a judge can issue warrants of arrest; and second, that warrants of arrest must be issued only upon probable cause.

I have no argument on this. Neither is there anything in the Anti-Terrorism Bill that says otherwise. But what I will argue, is his averment that the proposed measure blatantly transgresses such fundamental rights.

Let me be clear at the outset: the Anti-Terrorism Bill does not allow encroachment by the executive (particularly the Anti-Terrorism Council) on the court’s exercise of judicial powers, such as the issuance of warrants of arrest; nor does it propose to amend Rule 113, Section 5 of the Revised Rules of Court by adding another circumstance in the conduct of a valid and lawful warrantless arrest. This is contrary to Justice Carpio and other critics’ oft-repeated claims that Section 29, which I think is the most assailed provision of the proposed measure, allows the Anti-Terrorism Council, a body composed of officials from the Executive Department to give a written authority to police and military personnel to arrest without warrant any person on mere suspicion of being a terrorist. Nothing can be further from the truth. I will belabor these points later on.

As we have anticipated, the proposed Anti-Terrorism Bill stirs heated debates. Rightly so – we encourage public discourse, especially among the Filipino masses, for a proposed measure as important as the Anti-Terrorism Bill. But unfortunately, the course of the opposing views and opinions unfairly devalues the measure on many fronts, largely because of the various misconceptions, disinformation and misinformation.

Hence, as the principal sponsor and one of the authors of the bill, it is incumbent upon me to take every available platform to shed light on the legislative intent and merit of the Anti-Terrorism Bill, and how it is fundamentally founded on the rule of law and protection of basic civil rights, contrary to the massive disinformation which has already gained traction especially on social media.

Allow me to debunk these false claims against Section 29 of the bill, by stating these facts:

* First, a law enforcer cannot arrest or detain a person on mere suspicion alone.

Justice Carpio has stretched his qualms over the bill by citing my statement during a Senate deliberation. He said, and I quote: “In the exact words of the principal author of the law, even if hindi naman siya nag-commit ng crime, hindi pa nangyari, puwede na natin arestuhin.”

Unintentionally or not, he ignored the context of my response to the interpellation of Senator Gordon. The statement nitpicked by Justice Carpio was in reference to acts preparatory to the commission of terrorism.

As we deal with the crime of terrorism, we need to adopt proactive measures that will prevent even the planning phase of the crime. Thus, I explained that under the proposal, we included the proposition to 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 – I repeat, UNLESS – these acts are punishable in themselves as independent crimes. It is for this reason that the Revised Penal Code specifically provides that conspiracy and proposal to commit rebellion, treason, insurrection and coup d’etat are indeed, crimes.

We added planning, training, preparing and facilitating the commission of terrorism under Section 6 as INCHOATE OFFENSES punishable under the bill pursuant to United Nations Security Council Resolution 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. In these enumerated acts, an inchoate offense is being performed towards the accomplishment of the desired purpose that is — terrorism. Hence, these acts are criminal in nature. It does negate Justice Carpio’s assertion that under the bill, one can be arrested without doing any criminal act.

Let me ask you: When one lays out the plan when and where to detonate a bomb, trains youngsters how to use guns against our uniformed men as well as unarmed civilians and facilitates the conduct of coordinated attacks without being present in the actual ‘act’ of terrorism, and which has not occurred yet, and with a clear intent or purpose as enumerated under the definition of terrorism, are they not considered criminals? Do you honestly think people responsible for preparing the grand, vicious acts of terrorism do not deserve to be behind bars?

Kapag nakita ng mga pulis habang nagpapatrolya, in plain view sa isang liblib na lugar sa kagubatan ng Sulu o Basilan na may mga nagtitipon-tipon at nagsasagawa ng pagsasanay at pagpaplano ng sabay-sabay na pagpapasabog ng iba’t-ibang pasilidad ng irigasyon at tore ng linya ng kuryente, pati ang ilang simbahang Katoliko at mga palengke – kumpleto ang mga sketches sa mapa kung saan ang mga lokasyon ng targets nila, kasama na ang improvised suicide vests at detonating devices – ang gusto bang mangyari ng butihing dating mahistrado ay maghintay muna ang mga pulis na may mangyaring aktwal na pagsabog at pagkikitil ng buhay ng maraming inosenteng sibilyan bago nila isagawa ang panghuhuli sa mga taong halos nasa harapan na nila? Hindi ba krimen nang maituturing ang ganung gawain kahit hindi pa nagaganap ang malawakang pagpapasabog? Yan po ay isa lamang halimbawa ng INCHOATE OFFENSE na hinahangad na maparusahan sa ilalim ng panukalang batas na Anti-Terrorism Law.

Kayo na po ang humusga.

Moving on. If the ATC has no authority to order an arrest based on suspicion, it clearly has no authority to detain suspected terrorists and much more, fix the period of detention to 14 days, extendible to another 10 days.

The proposed period of detention of up to 14 days, provided in the bill itself, 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.

To emphasize, the allowable periods of detention are determined by Article 125 of the Revised Penal Code, a general law which can be amended by Congress. Looking back at the deliberations of the Constitutional Commission in 1986, records would show that the ConCom delegates did not have any intention of restricting the powers of Congress to fix the allowable period of detention arising from an arrest.

Clearly, the three-day limitation to deny a person the privilege to file a petition for the writ of habeas corpus was incorporated in the provisions of Article VII, Section 18 of the Constitution as a “safeguard” in case the President, in the exercise of his powers, suspends the privilege of the writ of habeas corpus.

Article 125 of the Revised Penal Code mandates the law enforcer to deliver an arrested person to the proper judicial authorities through the inquest prosecutor within the allowable period of detention.

Why do some lawyers insist that Section 18, Article VII of the 1987 Constitution and Article 125 of the Revised Penal Code are the same?

Applying the theory of strict construction, we should follow the word of the law to its strictest sense when technical terms have been used and there should be no room for further interpretation. The express mention of the crimes of rebellion and invasion, qualified by the suspension of the privilege of the writ of habeas corpus, clearly excludes all other crimes from Section 18, Article VII of the Constitution on detention pursuant to the age-old legal maxim, “expressio unius est exclusio alterius” (When one or more things of a class are expressly mentioned, others of the same class are excluded). Simply stated: What the law does not include, it excludes.

* Secondly, the Anti-Terrorism Council’s “written authority” under Section 29 is NOT AN AUTHORITY to order an arrest.

As I have mentioned, the Anti-Terrorism Bill strictly complies with lawful warrantless arrest by virtue of the in flagrante delicto and hot pursuit rule under the Revised Rules of Court – in both cases, the arrests are immediate in nature. That said, it is illogical, inconsistent and even absurd to think that the ATC will issue a “written authorization” to an arresting officer before effecting the warrantless arrest granting the immediacy and spontaneousness of the circumstances leading to the arrest.

Further, when we asked Director General Alex Monteagudo of the National Intelligence Coordinating Agency (NICA), which is the Secretariat of the ATC, he said that never since the passage of HSA in 2007 has the agency released a “written authority” to law enforcers to arrest or detain suspected terrorists. Isn’t that enough proof that the written authority mentioned in Sec. 18 of the Human Security Act of 2007, as similarly written in Section 29 of the Anti-Terrorism Bill, is never intended to authorize the ATC to order an arrest?

In actual fact, the written authority issued by the ATC under Section 29 of the ATB is to be directed to its duly designated deputies such as law enforcement agents and military personnel specially tasked and trained to handle the “custodial investigation” involving violations of the Anti-Terrorism Act of 2020 as proposed, considering the complexities and nature of terrorism. Not all police officers are trained interrogators and investigators, especially involving a crime as complex and complicated as an act of terrorism. These specially trained law enforcement officers and military personnel shall need a written authority to be deputized by the ATC to perform such tasks.

Atty. Cayosa, in his letter-reply to this representation, stated that “Section 29 could not refer to allowable warrantless arrest under Rule 113 because anyone can actually effect a warrantless arrest under Rule 113 without any need for any written authority from anyone.” While it is true that anyone can effect a warrantless arrest – in fact, even a civilian can effect a warrantless arrest – not everybody is trained to properly conduct a custodial investigation particularly of a crime as complex as terrorism. Atty. Cayosa remains adamant in his own interpretation of Section 29 of the ATB, notwithstanding receipt of my letter addressing his concerns.

The term “custody” in Section 29 of the Anti-Terrorism Bill pertains to the lawful custody after a valid warrantless arrest pursuant to Section 5, Rule 113 of the Revised Rules of Court. It is only after a valid warrantless arrest that the law enforcement agent or military personnel, authorized in writing by the ATC, may conduct a custodial investigation. Section 29 does NOT amend the Rules on Warrantless Arrest. Section 29 seeks to provide an exception to the periods stated in Article 125 of the Revised Penal Code with regard to the crime of terrorism.

* Third, the Anti-Terrorism Council CANNOT order a law enforcement agent or military personnel to conduct electronic or technical surveillance of suspected terrorist groups or individuals.

Another misinformation is the proposition that the Anti-Terrorism Council shall be the sole arbiter in determining “terrorists” based on their assessment of “suspicious” activities like the expression of dissent against the government.

Please note that the ATC is not a creation of this legislative measure as it has been existing since the passage of the Human Security Act of 2007 and still functions to this day as a policy-making body. Moreover, by express provision of Section 45, particularly the last paragraph thereof, it is expressly stated that: “Nowhere herein shall be interpreted to empower the ATC to exercise any judicial or quasi-judicial power or authority.”

Thus, under the bill, it is not the ATC but the Court of Appeals that grants judicial authorization for the conduct of electronic and technical surveillance of suspected terrorist groups or individuals. A look at Sections 16 and 17 of the proposed measure would show that the only duty of the Anti-Terrorism Council in this regard is 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 suspected terrorist groups or individuals, the reason being, again, to prevent possible indiscriminate filing of the ex parte application for such judicial authorization.

* Lastly, the Anti-Terrorism Council’s authority to “designate” terrorist individuals and organizations does not authorize arrest and detention.

On the provision for “Designation of Terrorist Individual, Group of Persons, Organizations or Associations” under Section 25, Justice Carpio argues that, and I quote: “once so designated, the individual can now be arrested upon order of the ATC because the individual is engaged in terrorism.”

This is not only inaccurate. This is plain and simple wrong.

Arrests, same as detention, are not intended consequences of “designation.” Designation is purely an executive and administrative process intended to trigger the issuance of a “freeze order” of properties and assets of designated terrorist individuals or terrorist organizations or associations.

In fact, not a single mention of the word “arrest” is found under Section 25 of the bill. A thorough reading and analysis of the provisions in the proposed measure will prove former Justice Carpio dead wrong in his assertion.

Designation serves as a mechanism to trigger the enforcement of targeted financial sanctions currently lacking in our present law. This mechanism, made possible only through an order issued by the Anti Money Laundering Council (AMLC), not the Anti-Terrorism Council – I repeat, not the Anti-Terrorism Council – could stop the flow and use of funds or assets to terrorist organizations or associations.

As businessmen, you all know how important accessible and easy financial transactions are in our day-to-day functions. Terrorism in the Philippines works the same way, with financing as the lifeblood of their terrorist operations and networks.

More so, “freezing of assets” under this proposed measure is not a new feature under the bill. As mentioned by President Lim in his opening statement, the proviso is also actually consistent with the existing provision of Section 11 of RA 10168, known as the Terrorism Financing Prevention and Suppression Act of 2012.

We deemed it important to include “designation of terrorists” under the bill to comply with the United Nations Security Council Resolution 1373 and for the purpose of preventing designated terrorists from accessing their funding by freezing their accounts so the same cannot be used to carry out a terrorist attack.

Contrary to claims that the bill does not expressly provide a remedy for persons or groups whose accounts were frozen, a designated person 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 under this bill, not present under the HSA of 2007 to allow partial withdrawal of frozen funds/assets for humanitarian reasons as well as for reasonable family needs and sustenance of the designated person. Ano pa ba ang gusto nila, Mr. President?

With respect to Justice Carpio, he must have confused “designation” with “proscription” of terrorist groups, organizations or associations. Designation is administrative and not criminal in nature. To effect an arrest, a designated terrorist group or organization must first be proscribed. Proscription under Section 26 requires court intervention where a full-blown hearing will take place before a group or organization may be considered a terrorist organization. It may be done only upon an application filed by the DOJ before the Court of Appeals, with due notice and opportunity to be heard given to the suspected terrorist groups or organizations or 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 a legislator who has advocated accountability and transparency through and through, I have personally valued public discourse and critical thinking to all the matters of the State. This is, after all, the cornerstone of democracy.

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.

Needless to say, terrorism generates a circle of fear that broadens and widens through time and across borders. When a church or a building or a public transport system blows up, killing tens and hundreds of unknowing passers-by, everyone shares the sense of “It could have been me.” It sows fear and violence so broad and indiscriminate that everyone, literally you and I, could fall prey to these heinous acts of terrorism which are bound by a single, evident truth: Terrorism puts innocent lives in peril.

Hence, the Anti-Terrorism Act of 2020 as a proposed bill has one clear message: 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, effective and constitutional.

In conclusion, let me leave you with a simple quote from British philosopher John Stuart Mill: “A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.”

Again, I wish to thank all the officers and members of the Management Association of the Philippines for this opportunity. I am now ready to answer questions from the members.

*****

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