Who to turn to when the law terrorizes

Posted on September 17, 2020

By Pauline Fernandez

The controversial Anti-Terrorism Act of 2020 (ATL) was signed into law on July 3, 32 days after President Rodrigo Duterte certified it as urgent, followed by its swift passage in Congress. The following day, the first petition against the law was filed, urging the Supreme Court (SC) to issue a temporary restraining order to halt its implementation and assailing the constitutionality of some of its key provisions.
As of mid-September, a total of 35 petitions have been filed before the Supreme Court, five of which were from the Muslim community.
On Sept. 15, INCITEGov hosted the webinar, “When the Law Terrorizes: Implications of the Anti-Terror Law on the Muslim Community” to gather the insights of the sector who may well be worst affected by both terrorism and failures in counter-terrorism efforts. 
Present as resource persons were lawyers Mel Sta. Maria and Algamar Latiph, and Anak Mindanao (AMIN) Partylist representative Amihilda Sangcopan. All three have filed their respective petitions against the ATL before the SC.
During the webinar, they pointed out the dangers of Republic Act 11479, particularly based on the experience of the Muslim community who, in the past, have been repeatedly and wrongfully tagged as “terrorists,” and how this is rooted in the centuries-long struggle of the Moro people.
The legal implications of the Anti-Terrorism Act
Sta. Maria, dean of the Far Eastern University Institute of Law, focused on specific provisions deemed unconstitutional by many legal experts: Section 4 (definition of terrorism and terrorist acts); Section 16 (Surveillance of Suspects and Interception and Recording of Communications); Section 25 (Designation of Terrorist Individual, Groups of Persons, Organizations or Associations); and Section 29 (Detention Without Judicial Warrant of Arrest). 













Atty. Mel Sta. Maria explains the salient provisions and legal implications of the Anti-Terror Act.


Section 4 provides vague and overbroad definitions of terrorism, he said. “‘Terrorism is committed by any person who, within or outside the Philippines, regardless of the stage of execution, a) engages in acts intended to cause death or serious bodily injury to any person or endangers a person life.’ This provision is very unclear. Who will interpret [what this means]?” Sta. Maria asked.


He added that the law must be directional and informative. “Our Civil Code states that ‘Ignorance of the law excuses no one.’ Therefore, the law must be very, very clear.”


Moreover, the highly subjective definitions constitute prior restraint and send a chilling effect on the freedom of speech and conscience, Sta. Maria pointed out.


Prior restraint has been defined in Philippine jurisprudence as the “official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.” On the other hand, chilling effect is that which "creates a tendency to intimidate the free exercise of one's constitutional rights.” 


Hindi ka na makagalaw, hindi ka na makasalita dahil naiisip mo ‘yung batas (You cannot move nor even express your thoughts anymore because you’re intimidated by the law),” Sta. Maria explained.


Meanwhile, Section 16 allows a law enforcement agent or military personnel to secretly surveil individuals, including those charged with or suspected of committing crimes under the ATL, upon a written order from the Court of Appeals. Although the provision makes exemptions on certain forms of communication, Sta. Maria pointed out that these don’t cover classroom discussions between a professor and their students.


“Our petition in the Supreme Court also called attention to academic freedom. The Anti-terrorism law is anti-education,” he asserted.


Furthermore, Section 25 of the law also gives excessive power to the Anti-Terrorism Council (ATC) that is virtually acting as a “government within a government.” Sta Maria explained that under the law, the ATC is composed of a questionably wide range of government agencies and has the power to independently designate groups as terrorists without having to grant due process.


“Anong papel ng [DepEd] at CHED kung terrorist ang pakay? Diyan mo makikita, sa aming paniniwala, na nagiging vulnerable group ang mga propesor at mga estudyante lalung-lalo na, wala sila sa exemption ng surveillance,” he explained.


(What is the role of [DepEd] and CHED if they’re after the terrorists? We believe that this will only add to the vulnerability of professors and students, especially because they are not exempted from surveillance?)


Section 29 is designated by Sta. Maria as the berdugo or executioner of the law because the police and military are allowed to take into custody any person suspected of committing terrorist acts merely on the basis of suspicion. 


Sta. Maria expressed that this low threshold for apprehension is prone to abuse and is indicative of a slow chipping away of the democratic system. 


“What is RA 11479? [It is] when the law expressly combined the very low and clear threshold of mere suspicion with the extremely vague and overly broad definition of various offenses, together with their exception, for which a person can be apprehended,” he explained. 


“Government and law enforcers shall have a heyday, using their own boundless imagination, instincts and appreciation, in arresting any person. Whatever their minds can conjure will be their law, and arbitrariness and capriciousness will be the order of the day. There will no longer be a rule of law.”


The fight in Congress


For her part, Sangcopan gave a glimpse of how the House of Representatives approved the bill so ill-received by the public into law. 


Then House Bill 6875, Duterte certified the measure as urgent on June 1 and the House of Representatives approved it on third and final reading by June 3. 


What went to the plenary for approval, however, was the Senate's version of the bill which was earlier adopted by the House Committees on Public Order and Safety, and on National Defense and Security — not House’s own version, which was a consolidation of six House bills previously filed and already deliberated on. 


This, according to Sangcopan, is the reason why certain lawmakers flipped their vote and withdrew their names from authorship. 


Sangcopan explained that AMIN Partylist’s negative vote and their subsequent petition at the Supreme Court are due to the law’s potential to promote terrorist-tagging and Muslim profiling. This is within the context of the rampant Islamophobia globally and of Muslims being “negatively stereotyped as extremist that has resulted in bias, discrimination, and marginalization.”


Sa pagpapatupad ng [Anti-Terrororism Act], naniniwala akong dadagdagan lamang nito ang pagpapahirap at pang-aabuso sa tulad naming nahuhusgahan nang mga terorista bago pa man malaman ang aming mga pangalan o makita ang aming mga mukha,” she said during the webinar, reading the speech that she delivered  earlier to explain AMIN’s vote.


(The passage of the [Anti-Terrorism Act] will only add to the oppression and abuses on groups like us who are already tagged as terrorists even before we speak our names or reveal our faces.)


Prejudice and injustice against Muslims already exist based on unfounded fears toward an entire religion and culture. Sangcopan pointed out that the ATL “threatens to legalize these abhorrent state actions and experience by fellow Muslims.”


Contextualizing the law within the Moro struggle


Latiph, a Moro human rights lawyer, provided context on the history of conflict and violent extremism in Mindanao, and how this relates to the possible abuses that can happen under the ATL. He also urged his fellow Muslims to come forward amidst the current debates on the law, asserting that its abuse will likely be to the detriment of the Moro community. 













Atty. Algamar Latiph explains the roots of Moro struggle and violent extremism.


Latiph examined the issue from a historical context and the Moros’ nearly 400 years of struggle for self-determination and lasting peace. Massive state-sponsored land grabbing has led to their disenfranchisement and resulted in displacement and rise in conflicts. State neglect and failure to provide protections from the violent encroachment of settlers fueled disaffected Moro communities to advocate for Bangsamoro autonomy and for certain groups to resort to violent extremism, he said.


It is also perceived that the State has historically used an extreme amount of military force when dealing with conflicts in the Bangsamoro, leading to the destruction of entire societies. 


“Dispossession of Moro lands and extreme military force (e.g. massacres) created the environment for violent extremism. We are not justifying violent extremism, but this is the root cause that is even recognized by the government,” Latiph explained.


He added that the Moros have been “othered” and removed from the national narrative because of their divergence from a predominantly Christian and capital-centric portrayal of the nation’s history and culture. Such bias has been reflected in national policy.

“The [Anti-Terrorism Act] legitimizes detention without charge and by mere suspicion for 14 to 24 days. This is the period where torture happens. The Moros have experienced this and have always been victims of suspicion or mistaken identities. Kami ang laging pinagsususpetsahan. (We are always the primary suspects). Moro communities in Metro Manila have also experienced raids, and this law will give blanket authority to such conducts,” Latiph said.


The role of civil society


According to the panel, ATL’s implementation can still be stopped if civil society will continue to voice out its criticisms and hound the judiciary.


That petitions continue to pile up despite SC’s lack of action is very telling of the sentiments of the people, Sta. Maria said. 


“The sheer number of petitions is historic and unprecedented — hindi na legal ito (this is no longer just a legal matter), this is already the political landscape of the situation. From all sectors of society — from the youth, to the professionals, sa lahat – every sector is represented. Dapat nadadama na [ng Supreme Court] (The Supreme court should already be feeling the heat]),” he added.


INCITEGov Board of Trustees member and co-lead for the Rule of Law thematic working group Atty. Hector Soliman gave a summation of the webinar and stressed the need to keep the issue at the forefront of national consciousness. Entering the legal-political sphere and the culture and education sphere will help to bring the discussion to more people and create more ripples of dissent, protest and pushback. 


Peace and Transitional Justice thematic working group member Yasmin Busran Lao closed the session by calling out the judiciary to abide by the will of the people. ■