Stare Decisis

By Atty. Julius Gregory B. Delgado

THE ANTI-TERRORISM ACT OF 2020

First of a Three-Part Series

On 26 February 2020, the Philippine Senate voted to pass Senate Bill No. 1083, otherwise known as “An Act to Prevent, Prohibit and Penalize Terrorism, Thereby Repealing Republic Act No. 9372, otherwise known as the ‘Human Security Act of 2007’”. On 30 May 2020, the House of Representatives voted upon in the plenary and passed House Bill No. 6875. Both measures are identical which means that there will be no Bicameral Conference needed. The enrolled bill is now with the President for signature. Several sectors denounced the passage of the law amidst the on-going crisis caused by the COVID-19 pandemic. But before we make a stand on this proposed measure, let us closely examine the law by knowing what acts are punishable, the safeguards and guarantees of our civil liberties and the questionable provisions of the proposed law.

The proposed law punishes terrorism, which is defined and committed by the following acts:

• Engaging in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life;

• Engaged in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;

• Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;

• Develops, manufactures, possesses, acquires, transports, supplies, or uses weapons, explosives, or biological, nuclear, radiological, or chemical weapons; and

• Release of dangerous substances, or causing fire, floods or explosions when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety.

Under the proposed law, if convicted, the accused will not be eligible for parole and cannot enjoy the benefits of the Good Conduct Time Allowance Law which shortens the sentence of a convict for good conduct while under detention.

Other acts made punishable are as follows:

• Threat to commit terrorism, which penalty is imprisonment for twelve (12) years;

• Planning, training, preparation and facilitation tin the commission of terrorism, possessing objects connected with the preparation for the commission of terrorism, or collecting or making documents connected with the preparation of terrorism, which penalty is life imprisonment without the benefit of parole and Good Conduct Time Allowance Law;

• Conspiracy to commit terrorism, which is defined as when two (2) or more persons come to an agreement to commit those acts constituting terrorism, which has also a penalty of life imprisonment without the benefit of parole and Good Conduct Time Allowance Law;

• Inciting to commit terrorism, which is defined as inciting others to commit acts constituting terrorism by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end, which has a penalty of imprisonment of twelve (12) years;

• Recruitment of another to participate in, joint, commit or support terrorism or a terrorist individual or any terrorist organization, association or group of persons proscribed under Section 26 of the proposed law or designated by the United Nations Security Council, which penalty is life imprisonment without the benefit of parole and Good Conduct Time Allowance Law;

• Organizing and facilitating travel of individuals to a state other than their state of residence or nationality for the purpose of recruitment which may be committed through any of the following means, and which if convicted, will also result to a life imprisonment without eligibility of parole or Good Conduct Time Allowance Law:

1. Recruiting another person to serve in any capacity in or with an armed force in a foreign state, whether the armed force forms part of the armed forces of the government of that foreign state or otherwise;

• Publishing an advertisement or propaganda for the purpose of recruiting persons to serve in any capacity in or with such an armed force;

• Publishing an advertisement or propaganda containing any information relating to the place at which or the manner in which persons may make applications to serve or obtain information relating to service in any capacity in or with such armed force or relating to the manner in which persons may travel to a foreign state for the purpose of serving in any capacity in or with such armed force; and

• Performing any other act with the intention of facilitating or promoting the recruitment of persons to serve in any capacity in or with such armed force;

• Voluntarily and knowingly joining any organization, association or group of persons knowing such organization, association or group of persons is proscribed under Section 26 of the proposed law, or designated by the United Nations Security Council as a terrorist organization, or organized for the purpose of engaging in terrorism, which has a penalty of imprisonment of twelve (12) years;

• Being a foreign terrorist, which carries the penalty of life imprisonment without the benefit of parole and Good Conduct Time Allowance Law, committed as follows:

1. 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 terrorism, 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 knowing that such travel is for the purpose of perpetrating, planning, training, or preparing for, or participating in terrorism or providing or receiving terrorist training; or

• For any person residing abroad who comes to the Philippines to participate in perpetrating, planning, training, or preparing for, or participating in terrorism or provide support for or facilitate or receive terrorist training here or abroad;

• Providing material support to any terrorist individual or terrorist organization, association or group of persons committing any of the acts constituting terrorism, knowing that such individual or organization, association, or group of persons is committing or planning to commit such acts, which has a liability of a principal for terrorism and shall be punished a penalty of life imprisonment without the possibility of parole and the benefits of the Good Conduct Time Allowance Law; and

• Being an accessory, which has a penalty of imprisonment of twelve (12) years, committed as follows: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; or (b) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime.

Basically, what are punishable acts related terrorism are in Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12. There are other provisions, which while may result to criminal liability, are connected with the safeguards against abuses by State actors or law enforcement agencies. The exception being is a provision which penalizes an employee, official, or a member of the board of directors of a bank or financial institution, who after being duly served with a written order of authorization from the Court of Appeals, refuses to allow the examination of the deposits, placements, trust accounts, assets, and records of a terrorist or an outlawed group of persons, organization or associations, in accordance with Sections 25 and 26 (proscription or declaration of terrorist groups, organizations and associations).

As to which organizations or associations may be considered as terrorist groups, there is a process of proscription outlined in Sections 25-28 of the proposed law. Please note that while the Anti-Terrorism Council may, upon probable cause, label or declare a certain organization or association as terrorist group, it is the Court of Appeals, by process of proscription, which has the authority to define which organization or association is considered as terrorist group or engaged in acts constituting terrorism. Aside from those proscribed by the Court of Appeals, the proposed law mandates the Philippine Government to adopt the declared terrorist groups by the United Nations. Thus, while it is prohibited to join or recruit someone to join a terrorist group, it should be an organization or association proscribed by the Court of Appeals.