THE ANTI-TERRORISM ACT OF 2020
Third and Final Part of a Three-Part Series
The enrolled bill of the proposed Anti-Terrorism Act of 2020 was transmitted to the President last 09 June 2020. Par. 1, Section 27, Article VI of the 1987 Philippine Constitution provides that “the President must communicate his veto within thirty (30) days from receipt thereof; otherwise, it shall become a law as if he had signed it.” While the Palace is preoccupied with the efforts to address the crisis brought by the COVID-19 pandemic, those who are advocating for the passage of the measure wants the President to sign the same, a positive act, rather than allowing it to lapse into law. If the President allows the same to lapse into law, meaning he will not put his signature on it, this will create an impression that the former is allowing the third branch of Government, the Supreme Court, to scrutinize the measure without fear of retribution or earning his ire. This will be an added blow to the credibility of the law given the fact that before its transmittal to the Office of the President, many of its co-authors and co-sponsors changed their votes to either opposing the proposed measure or abstention. This could have been the reason why the Department of Interior and Local Government asked local government officials to issue statements of support to the proposed Anti-Terrorism Act of 2020.
Now, should the President sign the enrolled bill or will allow the same to lapse into law, it is most certain that it will be challenged before the Supreme Court.This humble legal observer is predicting at least three (3) major features or provisions which may be the subject of a challenge before the highest tribunal of the land, namely: 1) the process of proscription which grants the Court of Appeals the right to declare a group of persons, organization or association, which commits any of the acts defined and punishable under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the proposed Anti-Terrorism Act of 2020, or organized for the purpose of engaging in terrorism, be declared as a terrorist and outlawed group of persons (Sections 26 and 27); 2) the provision allowing a law enforcement agent or military personnel to detain a person suspected of committing any 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 and those proscribed under Section 26, for fourteen (14) calendar days extendible to another ten (10) days before cases may be filed to the proper judicial authorities (Section 29); and 3) the provision which allows the Anti-Terrorism Council (ATC) to designate an individual, groups of persons, organization or association, whether domestic or foreign, upon finding by the council of probable cause, that the individual, groups of persons, organization or association commit, or attempt to commit, or conspire in the commission 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 and the Anti-Money Laundering Council (AMLAC) to freeze their assets ex-parte (Section 25 in relation to Section 36).
None of the legal observers or analysts have opined the invalidity of the process of proscription. Who does not want ISIS or any Al-Qaeda-affiliated organization to be outlawed? But recently, there was an indication that even the left-leaning, above-ground and legal organizations will most likely be the candidates for the application of proscription. An argument can be made that the process of proscription in Sections 26 and 27 of the proposed Anti-Terrorism Act of 2020 is akin to a bill of attainder. A bill of attainder is an act of the legislative branch declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial. Section 22, Article III of the 1987 Philippine Constitution provides that “no ex post facto law or bill of attainder shall be enacted.” What is sought to be prevented by this provision is the so-called “guilt by association”. For example, Bayan Muna has been red-tagged and most likely will be connected and associated with the Communist Party of the Philippines-New Peoples Army-National Democratic Front (CPP-NPA-NDF). At the present state of law, membership of these organizations, i.e. CPP-NPA-NDF and Bayan Muna, is not a crime per se. If your political ideology is Marxist-Leninist-Maoist, you are not committing a crime per se. It is the commission of criminal and illegal acts, i.e. rebellion, sedition, murder, robbery, etc., to further your political belief and agenda which is a crime.Par. 1, Section 18, Article III of the 1987 Philippine Constitution provides that “no person shall be detained solely by reason of his political beliefs and aspirations.”
The passage of the Anti-Terrorism Act of 2020 is tantamount to making the CPP-NPA-NDF and its allied organizations, even the legal and above-ground organizations, as terrorist organizations. As a result, mere membership in these organizations will merit punishment even without trial by mere suspicion (probable cause) by the Anti-Terrorism Council. Specifically, based on Section 36 of the proposed Anti-Terrorism Act of 2020, the AMLAC can freeze assets ex-parte of those organizations designated as terrorists by the ATC under Section 25 of the proposed law. Parenthetically, Sections 36 in relation to Section 25 of the proposed measure may be struck down by the Supreme Court as violative of Section 1, Article III of the 1987 Philippine Constitution which provides that “no person shall be deprived of life, liberty, or property without due process of law.” The freezing of assets may be considered as a penalty already and may be argued as a deprivation of property without judicial sanction. Likewise, granting the AMLAC such power to freeze and look into the bank accounts of even those designated by ATC as terrorist organizations without court order may be argued as violative of Section 2, Article III of the 1987 Philippine Constitution which provides a guarantee to citizens against unreasonable searches and seizures of any kind and whatever nature on their persons, houses, papers, and effects.
Section 29 of the proposed Anti-Terrorism Act of 2020, which allows detention without judicial warrant of arrest for a period of fourteen (14) calendar days extendible to another ten (10) days, maybe assailed as infirm substantively and procedurally. On substantive ground, this is problematic since the proposed measure allows law enforcement agent or military personnel to take custody of someone “suspected” of committing any 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. This is proscribed under the “due process” clause of the 1987 Philippine Constitution as it deprives someone of liberty my mere suspicion by the ATC without any judicial concurrence or imprimatur.
On procedural grounds, this is violative of par. 5, Section 5, Article VIII of the 1987 Philippine Constitution which gives the Supreme Court the sole authority to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts. The Rules of Criminal Procedure allows specific instances when a person may be arrested without a warrant of arrest. Section 5, Article 113 of the Rules of Criminal Procedure provides thata warrantless arrest may be made: 1) if a person has committed, is actually committing, or is attempting to commit an offense, or when an offense has been committed; and 2) when an offense has just been committed, and the person making the arrest has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. The same provision mandates that when a warrantless arrest is made based on the two grounds mentioned, the person arrested must be subjected to an inquest proceedings under Section 7, Rule 112 of the Rules on Criminal Procedure and if there is probable cause, an information should be filed against the said person in court. Section 7, Rule 112 of the Rules of Court suggests that the provision under Article 125 of the Revised Penal Code, or the crime of delay in delivering a person detained to judicial authorities, should be followed. Under Article 125 of the Revised Penal Code, a person can only be detained for a maximum of thirty-six (36) hours if he is accused of a crime which penalty is afflictive or capital punishment. As earlier stated, the 1987 Philippine Constitution grants the Supreme Court the sole authority to promulgate rules for the enforcement of constitutional rights and “such rules shall not diminish, increase, or modify substantive rights”. It may be argued that such law arrogated upon itself the rule-making power of the Supreme Court and it diminished the substantive rights of an accused as he may now be detained for a maximum of twenty-four (24) days even without a judicial warrant.