ANTI-TERRORISM ACT OF 2020
Second of a Three-Part Series
In the first part of this series, we discussed what are the punishable acts under the proposed Anti-Terrorism Act of 2020. The said measure, which is now with the Office of the President for his signature, veto or inaction (which will lapse into law as if he signed the same), has also important features to try to prevent law enforcement authorities and personnel from abusing the law against hapless civilians and even dissenters/critics of the establishment. We shall discuss these safeguards and crimes which may be committed by State agents in implementing this law.
Under Section 16 of the proposed law, law enforcement agents or military personnel may only conduct surveillanceactivities upon a written Order of the Court of Appeals. The law enforcement agents or military personnel must secure judicial authorization before the appellate court by filing an ex parte written application with the authority of the Anti-Terrorism Council (ATC). Judicial authorization may only be given by the Court of Appeals if it is satisfied, after examination under oath of the applicant and the witnesses he or she may produce, that there is probable cause based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained. In short, it is like applying for a search warrant before a trial court judge, only that you will have to apply before a division of the Court of Appeals which has three (3) magistrates.
Section 19 of the proposed law provides limitation on the period of effectivity of the judicial authorization. The proposed law provides that it is only effective for not more than sixty (60) days from the receipt of the written Order by the applicant law enforcement agents or military personnel. This may be extended by the Court of Appeals for another thirty (30) days if the applicant files an extension or renewal authorized by the ATC if the court will be convinced that it is for public interest. Another added feature is the provision giving the law enforcement agents or military personnel thirty (30) days after termination of the judicial authorization within which to file appropriate case before the public prosecutor. Section 24 of the proposed law makes it unlawful for unauthorized or malicious interceptions and/or recordings. Any law enforcement agent or military personnel who conducts surveillance activities without judicial authorization shall suffer the penalty of imprisonment of ten (10) years.
Another safeguard provided under the proposed law, particularly in Section 20 thereof, is the proper custody of intercepted and recorded communications by virtue of judicially authorized surveillance. The law mandates that these communications shall, within forty-eight (48) hours after expiration of the period fixed in the written Order or renewal granted thereafter, be deposited with the issuing division of the Court of Appeals in a sealed envelope or package and shall be accompanied by a Joint Affidavit of the applicant law enforcement agent or military personnel and the members of the team. The proposed law makes it a crime for any person who removes, deletes, expunges, incinerates, shreds, or destroys the items enumerated above with a penalty of ten (10) years imprisonment.
Also, in the Joint Affidavit to be executed by the law enforcement agent or military personnel and their team members, they are required to indicate and state the following: (a) the number of tapes, discs, and recordings made; (b) the dates and times covered by each of such tapes, discs, and recordings; and (c) the chain of custody or the list of person who had possession or custody over the tapes, discs and recordings. The Joint Affidavit also requires the State actors to certify under oath that no duplicates or copies of the whole or any part of any of such tapes, discs, other storage devices, recordings, notes, memoranda, summaries, or excerpts have been made, or, if made, that all such duplicates and copies are included in the sealed envelope or package. The proposed law makes it unlawful for any person, law enforcement, agent, or military personnel to omit or exclude from the Joint Affidavit any item or portion thereof mentioned and has a penalty of ten (10) years imprisonment.
Section 22 of the proposed law also makes the deposited sealed envelope or package with the Court of Appeals as classified information. As such, it may not be opened, disclosed or used as evidence unless authorized by a written Order by the authorizing division of the Court of Appeals upon a written application by the Department of Justice with the authority of the ATC. Any unlawful disclosure or violation of this provision is a criminal offense with a penalty of ten (10) years imprisonment. Section 23 of the proposed law makes any intercepted communication without judicial authority or which information was obtained through unlawful disclosure shall be inadmissible as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding or hearing.
The next safeguards we will discuss will be in relation to rights of a detainee under Sections 29 and 30 of the proposed law. We will reserve the discussion on the constitutionality of the days a suspect may be detained without charges in the last part of the series. Section 29 provides that immediately after taking custody of a person suspected of committing terrorism or any member of a group of persons, organization or association proscribed under the procedure laid down in Section 26, the law enforcement agent or military personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest of the following facts: (a) time, date, and manner of arrest; (b) location or locations of the detained suspect/s; and (c) the physical and mental condition of the detained suspect/s. The law enforcement agent or military personnel shall likewise furnish the ATC and the Commission on Human Rights (CHR) of the written notice given to the judge. The head of the detaining facility is mandated to ensure that the detained suspect is informed of his/her rights as a detainee and shall ensure access to the detainee by his/her counsel or agencies and entities authorized by law to exercise visitorial powers over detention facilities. An imprisonment of ten (10) years shall be meted upon any police or law enforcement agent or military personnel who fails to notify any judge.
Section 30 of the proposed law also provides that should any person suspected of committing of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the proposed Anti-Terrorism Act of 2020 is apprehended or arrested and detained, he or she shall be informed, by the arresting law enforcement agent or military personnel to whose custody the person concerned is brought, his or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of his or her choice, the law enforcement agent or military personnel concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney’s Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person/s detained and provide him or her with legal assistance. The detainee shall also have the following rights: (b) to be informed of the cause or causes of his/her detention in the presence of his/her legal counsel; (c) allowed to communicate freely with his/her legal counsel and to confer with them at any time without restriction; (d) allowed to communicate freely and privately without restrictions with the members of his/her family or with his/her nearest relatives and to be visited by them; and (e) allowed freely to avail of the service of a physician or physicians of choice.
Section 31 of the proposed law provides that a penalty of ten (10) years shall be imposed upon any law enforcement agent or military personnel who has violated the rights of persons under custody as provided in Sections 29 and 30 of the proposed law. Section 31 further provides that unless the law enforcement agent or military personnel who violated the rights of a detainee or detainees is duly identified, the same penalty shall be imposed on the head of the law enforcement unit or military unit having custody of the detainee at the time of the violation was done.
Finally, under Section 32 of the proposed law, the law enforcement unit in whose care and control the person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 has been placed under custodial arrest and detention shall keep a securely and orderly maintained official logbook, which is hereby declared as a public document and opened to and made available for inspection and scrutiny of the lawyer of the person under custody or any member of his/her family or relative by consanguinity or affinity within the fourth civil degree or his/her physician at any time of the day or night subject to reasonable restrictions by the custodial facility. The logbook shall contain a clear and concise record of the following: (a) the name, description, and address of the detained person; (b) the date and exact time of his/her initial admission for custodial arrest and detention; (c) the name and address of the physician or physicians who examined him/her physicallyand medically; (d) the state of his/her health and physicalcondition at the time of his/her initial admission forcustodial detention; (e) the date and time of each removedof the detained person from his/her cell for interrogation orfor any purpose; (f) the date and time of his/her return tohis/her cell; (g) the name and address of the physician orphysicians who physically and medically examined him/herafter each interrogation; (h) a summary of the physical andmedical findings on the detained person after each of suchinterrogation; (i) the names and addresses of his/her familymembers and nearest relatives, if any and if available; (j)the names and addresses of persons, who visit the detainedperson; (k) the date and time of each of such visit; (l) the date and time of each request of the detained person to communicate and confer with his/her legal counsel orcounsels; (m) the date and time of each visit, and date andtime of each departure of his/her legal counsel or counsels;and (n) all other important events bearing on and allrelevant details regarding the treatment of the detainedperson while under custodial arrest and detention.The said law enforcement custodial unit shall, upondemand of the aforementioned lawyer or members of thefamily or relatives within the fourth civil degree ofconsanguinity or affinity of the person under custody of his/her physician, issue a certified true copy of the entries of the logbook relative to the concerned detained person subject to reasonable restrictions by the custodial facility.This certified true copy may be attested by the person whohas custody of the logbook or who allowed the party concerned to scrutinize it at the time the demand for the certified true copy is made. The law enforcement custodial unit who fails tocomply with the preceding paragraph to keep an officiallogbook shall suffer the penalty of imprisonment of ten (10)years. (To be continued in the last part of the series)