Speech on the Anti-Terrorism Bill Before the League of Provinces of the Philippines Forum

Speeches

June 25, 2020 - To Governor Presbitero Velasco, Jr., the National President of the League of Provinces of the Philippines (LPP); Gov. Dakila Carlo Cua, National Chairman; Gov. Susan Yap; to all the members of this honorable organization, my colleagues in public service, ladies and gentlemen, good afternoon.

Allow me to express my gratitude for your overwhelming support to the proposed Anti-Terrorism Bill. As mentioned by no less that Department of Interior and Local Government Secretary Eduardo Año during last week’s webinar, 784 local government chiefs already signed the Manifesto in Support to the proposed Anti-Terrorism Bill as of June 17. This alone shows us a clear picture that there is indeed a demand for a stricter and effective counter-terrorism measures on the ground.

Terrorism sows fear and violence so broad and indiscriminate that everyone — literally you and me — could fall prey of these heinous acts of terror. Our country stands one of the most vulnerable, ranking 9th among countries in the world that were most negatively impacted by terrorism based on the Global Terrorism Index released in 2019.

No less than our people have borne witness to several incidents of these atrocities.

Two decades ago, in December 2000, 20 people died and more than 100 others were injured in what we know as the “Rizal Day Bombings.”

In 2015, our entire nation was appalled by the news that 44 members of the elite Special Action Force of the PNP perished in the hands of armed rebels in Mamasapano, Maguindanao, as they pursued their mission to capture a Malaysian terrorist and bomb maker named Zulkifli Abdhir a.k.a. Marwan, who was considered the ‘Osama Bin Laden of Southeast Asia’; and bomb makers Basit Usman and Amin Baco.

Hindi rin nawawala sa ating alaala ang sinapit ng Zamboanga City noong 2013 sa kamay ng Moro National Liberation Front (MNLF) at Marawi City noong taong 2017 sa pananakop ng mga militanteng miyembro ng Maute-ISIS. 

Samantala, naitala noong 2018 ang pinakaunang kaso ng ‘suicide bombing’ sa bansa na kumitil ng buhay ng sampu (10) sa ating mga kababayan. At noong 2019, ang isa sa hindi natin malilimutan ay ang suicide bombing sa isang katedral sa Jolo, Sulu, na isinagawa ng mag-asawang Indonesian na kumitil sa buhay ng 23 katao at nagdulot ng pinsala sa mahigit isang daang silbilyan.

Against this backdrop is the country’s legislative framework against acts of terror – Republic Act 9372, otherwise known as the Human Security Act of 2007, which since its enactment 13 years ago has remained toothless and a dead-letter law.

Needless to say, our country needs an Anti-Terrorism law that would provide a strong legal backbone to support our response to terrorism.

I must say that the course of the ongoing campaign against the Anti-Terrorism Bill, dominated by massive misinformation and misconception, unfairly devalues this legislative measure on many fronts.

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 this measure, 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 begin with the most controversial provision under the Anti-Terrorism Bill, which is now being challenged as unconstitutional by former Supreme Court Associate Justice Antonio Carpio as well as IBP President Domingo Egon Cayosa.

* Section 29 – Detention Without Judicial Warrant of Arrest

The records of the Senate archives will tell us that the phrase “having been duly authorized in writing by the Anti-Terrorism Council…” 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 same phrase contained in Section 18, (entitled “Period of Detention Without Judicial Warrant of Arrest”) 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 both in the Senate and the House of Representatives.

Justice Carpio has acknowledged that Section 18, similarly worded as Section 29 of the bill, has NOT been ruled unconstitutional by the High Court. Only, 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.

At this point, allow me to also debunk the false claims that are gaining traction in various mainstream and social media platforms:

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

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.

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.”

The statement in question was in reference to acts preparatory to the commission of terrorism. In my response, during the interpellation of Sen. Gordon, I made clear that we never intend to amend the rules on warrantless arrest or citizen’s arrest, and hence, safeguards are still in place. But 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 even “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 because these acts are being performed towards the accomplishment of the desired purpose that is — terrorism. It is also 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.

Kapag nakita ng mga pulis habang nagpapatrulya, 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 pagkitil ng buhay ng maraming inosenteng sibilyan bago nila isagawa ng mga pulis 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? Iyun 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. Policy decision po ito ng Kongreso at naaayon sa Saligang Batas.

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 at the time 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 periods of detention.

* 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. The members of the Congress in crafting the HSA, as well as the ATB, are fully aware that only a judge can issue an order of arrest.

In fact, 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 Section 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?

To underscore, 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.” I am saying exactly the same thing. While it is true that anyone 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 our 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.

* 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, Groups of Persons, Organizations or Associations” under Section 25 of the bill, 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 plain and simple – wrong.

Arrests, same with detention, are not the 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/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 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 that, not the Anti-Terrorism Council — could stop the flow and use of funds or assets to terrorist organizations or associations.

More so, ‘freezing of assets’ under this proposed measure is also actually consistent with the existing provision 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 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.

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 to allow partial withdrawal of frozen funds/assets for humanitarian reasons as well as for reasonable family needs and sustenance of the designated person.

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 of this bill requires court intervention where a full blown hearing will take place before an 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 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.

To properly interpret the nature of the power of the ATC, it would be erroneous, if not careless to rely on reading Section 29, or the “Detention without Judicial Warrant of Arrest” – alone. In fact, the last paragraph of Section 45 particularly states, and I quote: “Nothing herein shall be interpreted to empower the ATC to exercise any judicial or quasi-judicial power or authority.” In other words, the ATC’s power is limited and that they were not given any authority to order arrest or even wiretap.

Muli po – nais ko ring linawin na ang Anti-Terrorism Council ay hindi bagong akda ng Anti-Terrorism Bill. Mayroon na po talaga tayong Anti-Terrorism Council simula pa lamang nang maipasa ang Human Security Act noong 2007. Since then, the ATC has been organized as a central policy-making, supervising, coordinating, and monitoring body of the government’s anti-terrorism efforts.

Lest I forget, I wish to emphasize: the Anti-Terrorism Bill will not stifle political dissent and freedom of speech.

In defining “Terrorism” in the proposed Anti-Terrorism Bill, we included a proviso under Section 4 to guarantee the constitutionally protected right to free speech. It reads:

“xx terrorism as defined in this Section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”

In all of 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 in order to fulfill any of the PURPOSES mentioned under the bill.

Simply put, the battlecry must be loud and clear: Ang Anti-Terrorism Bill ay para labanan ang mga terorista, hindi ang mga nagpoprotesta.

As local chief executives who have eyes and ears on the ground – you know firsthand how terrorism can hamper the progress of your localities. Hindi na bago sa inyo ang bigat ng dagok ng terorismo sa lokal na ekonomiya at turismo, ang pangingikil sa lahat ng negosyo pati na sa programa ng gobyerno, dami ng buhay na kinitil ng mga terorista at ang epekto ng patuloy na pamumuhay sa takot ng inyong nasasakupan dahil sa banta ng armadong terorista.

Needless to say — terrorism generates a circle of fear that broadens and widens through time and across borders. We all share stories of terrorism from different bounds and circumstances, but there remains to be a single, evident truth: Terrorism puts innocent lives in peril.

Hence, as local leaders who remain true to their word of serving the public, we should keep our guard for the safety and well-being of our constituents. No good governance thrives in fear, vulnerabilities, and atrocities that terrorism poses in our day-to-day lives. History will speak of how you have decided for the interest of your people. Let it be a transformational turn to speak clearly and resoundingly against terrorism.

The Anti-Terrorism Act of 2020 as a proposed law 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.

Again, I wish to thank the League of Provinces of the Philippines for your invaluable support to this proposed measure.

Mabuhay po tayong lahat.

*****

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